Roberts (a pseudonym) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 370
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Roberts (a pseudonym) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 370
File number(s): MLG 43 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 18 May 2022 Catchwords: MIGRATION– application for mandamus directing the Minister to make a determination in relation to the applicant’s visa application – protection (Class XA) (subclass 866) visa – where the Administrative Appeals Tribunal has directed the Minister that the applicant has satisfied the criterion for the visa in section 36(2)(aa) of the Migration Act 1958 (Cth) – where the applicant initially lodged his visa application in November 2012 – consideration of where the onus of establishing unreasonable delay lies – consideration of whether there has been an unreasonable delay in the applicant’s visa determination – consideration of the explanation for delay – circumstances distinguished from BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 – relevance of the statutory framework within which the Minister’s assessment must be made –
application dismissed with costs.Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 199
Migration Act 1958 (Cth), ss 36
Cases cited: AQM18 v Minister for Immigration and Border Protection 268 FCR 424
ASP15 v Commonwealth (2016) 248 FCR 372
BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA 24
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179
Thornton Repatriation Commission (1981) 35 ALR 48
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of last submission/s: 27 April 2022 Date of hearing: 27 April 2022 Place: Melbourne Counsel for the Applicant: Mr Albert Solicitors for the Applicant: Midwinters Lawyers Counsel for the Respondent: Mr Hibbard Solicitors for the Respondent: Minter Ellison Lawyers ORDERS
MLG 43 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVID ROBERTS (A PSEUDONYMN)
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
18 MAY 2022
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for an order in the nature of mandamus directing the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) to determine the applicant’s visa application according to law.
At the hearing before me, the applicant conceded that the court did not have the power to make orders in the terms of proposed order 2 in the applicant’s application and that order was not pressed.[1] The applicant also seeks an order that the respondent pay the applicant’s costs of the proceeding.
BACKGROUND
[1] Applicant’s Initiating Application filed on 10 January 2022.
Protection visa application filed on 15 November 2012
The applicant applied for a Protection (Class XA) (subclass 866) visa (‘protection visa’) on 15 November 2012. That application was refused by a delegate of the Minister on 18 May 2015. The applicant then applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the delegate’s decision on 20 May 2015. The Tribunal affirmed the delegate’s decision on 20 July 2018.
On 1 August 2018, the applicant applied to the then Federal Circuit Court for a review of the Tribunal’s decision and on 26 March 2019, the Federal Circuit Court dismissed that application. On 15 April 2019, the applicant lodged an appeal from the decision of the Federal Circuit Court to the Federal Court. On 10 October 2019, the Federal Court upheld the applicant’s appeal and remitted the applicant’s case to the Tribunal for reconsideration.
Remittal of the protection visa application to the Tribunal
Relevantly, at paragraph [20(h)] of the second Tribunal decision record, dated 18 December 2020,[2] the Tribunal notes that the applicant claimed that in 2014, a court in Lebanon found him guilty in absentia of terrorism charges and sentenced him to death.[3]
[2] Affidavit of Alexandra Clare O’Grady affirmed and filed on 6 April 2022 at ACO-1.
[3] See also paragraphs [51], [52] and [67] to [71] of the second AAT decision record.
The Tribunal’s conclusions are set out at paragraphs [93] to [94] in the following terms:
93.The Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
94.The Tribunal notes that the material before it may give rise to issues relating to s.36(2C) of the Act. The Migration and Refugee Division of this Tribunal has no power to consider s.36(2C) issues. Accordingly, the matter will be remitted to the Department for reconsideration, including consideration as to whether the applicant is ineligible for the grant of a protection visa by s.36(2C).
Remittal of the protection visa application the Minister
On 18 December 2020, the Tribunal remitted the matter to the Minister for reconsideration with a direction that the applicant satisfied the criterion for the visa contained in section 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).[4]
[4] Affidavit of Alexandra Clare O’Grady affirmed and filed on 6 April 2022 at ACO-1.
Ms Oakley’s evidence is that in light of the claims that the applicant had been convicted in Lebanon in absentia for a crime involving the alleged selling of weapons and fraudulent passports to a terrorist organisation for which he had been sentenced to death, a request was made for a security assessment to be undertaken for the purposes of assessing the criteria in subsections 36(1B), 36(1C) and 36(2C) of the Act.[5]
[5] Affidavit of Caroline Oakley affirmed and filed on 6 April 2022 at paragraph [13].
Relevantly, sections 36(1B) and 36(1C) of the Act provide:
(1B)A criterion for a protection is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b)having been convicted by a final judgement of a particularly serious crime, is a danger to the Australian community.
Section 36(2C) further provides:
(2C)A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i)the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii)the non-citizen committed a serious non-political crime before entering Australia; or
(iii)the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non-citizen is a danger to Australia’s security; or
(ii)the non-citizen, having been convicted by a final judgement of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
APPLICANT’S EVIDENCE
The applicant relies upon two affidavits. The first was affirmed on 23 December 2021 and filed on 10 January 2022 and the second was affirmed on 18 March 2022 and filed on 22 March 2022. Relevantly, the applicant states that in 2014, he was sentenced to death in absentia in Lebanon.[6]
[6] Applicant’s affidavit affirmed on 23 December 2021 and filed on 10 January 2022 at paragraph [7].
Applicant’s affidavit affirmed on 23 December 2021
In his affidavit affirmed on 23 December 2021, the applicant refers to correspondence that he has instructed his solicitor to send to the Department seeking a finalisation of his visa application.[7] Relevantly, it includes the following:
[7] Applicant’s affidavit affirmed on 23 December 2021 and filed on 10 January 2022 at BEH-4.
·an email from the Department to the applicant’s newly appointed legal representative on 3 September 2021;
·correspondence from his legal representatives on 16 September 2021 providing the Department with a translation of the police report regarding the applicant’s criminal record to 29 March 2010;
·further correspondence from the applicant’s representative on 23 September 2021, indicating that they had received instructions to issue proceedings if the Department was not able to provide a review within seven business days, to which the Department responded on 28 September 2021, advising that the applicant’s claim was with the Security Assessment Liaison and Analysis Team;
·in the email from the applicant’s representative dated 23 September 2021, the applicant’s representative also enclosed a police report provided by the Australian Criminal Intelligence Commission noting that the applicant had no criminal records up to 22 September 2021;
·the 23 September 2021 email appears to have been resent, albeit to a different email address within the Department, on 30 September 2021;
·the applicant’s representative again wrote to the Department on 6 October 2021, seeking further information about the progress of the application, and which relevantly stated:
We act for the abovenamed who is still in detention whilst a “Character Review” by the Minister is underway, despite an AAT Determination in December last year.
We would appreciate it if you could call the writer … to discuss this matter.
·on 7 October 2021, the Department responded to the applicant’s representative in the following terms:
…
All visa applicants must meet the character and health requirements, as well as the relevant criteria of the visa for which they have applied.
We are mindful of your client’s circumstances and recognise that the time taken to progress (the applicant’s) visa application may be causing him concern. The length of time taken to complete an assessment of a visa application varies. Timeframes depend on factors such as the individual circumstances of an applicant and the complexity of resolving each of the criteria in the application. While it is not possible to provide a date or timeframe for completion of the assessment, the Department is seeking to progress (the applicant’s) visa application as soon as possible.
…
·further correspondence was sent by the applicant’s legal representative on 8 October 2021 again seeking further information and also addressing the issue of the applicant’s ongoing detention;
·on 24 November 2021, the applicant’s representative again wrote to the Department regarding the applicant’s mother’s departure from Australia and a further request as to whether he could be released to spend some time with her before she left the country; and
·a response was sent by the Department to the applicant’s further email regarding the possibility of him being released from detention in the following terms:
…
(The applicant)’s protection visa application is still ongoing. (The applicant) is currently unlawful and in detention, and as such he doesn’t hold a valid visa and therefore cannot be released from detention.
Applicant’s affidavit affirmed on 18 March 2022
In his 18 March 2022 affidavit, the applicant states:
(a)he was born in Lebanon on 18 March 1973 and first arrived in Australia as a visitor in 2005;
(b)the then returned to Lebanon not long after and returned to Australia in 2010 having left Lebanon in fear;
(c)he has been in immigration detention since 2018; and
(d)he has been suffering from a series of medical complaints, including symptoms which might be evidence of bowel cancer and, notwithstanding numerous requests, he has not been provided with appropriate medical treatment whilst in detention.
RESPONDENT’S EVIDENCE
The respondent relies upon an affidavit of Ms Alexandra Clare O’Grady affirmed and filed on 6 April 2022 and an affidavit of Caroline Oakley also affirmed and filed on 6 April 2022.
No objection was raised in relation to the affidavit of Ms O’Grady.
Affidavit of Ms Caroline Oakley
However, a preliminary issue arose regarding the affidavit of Ms Caroline Oakley. Ms Oakley was not available for cross-examination at the hearing before me due to a death in the family. The respondent sought a short adjournment to allow Ms Oakley to be available for cross-examination. That application was opposed.
In the alternative, the respondent asked the court to exercise its discretion to allow Ms Oakley’s affidavit to be read into evidence and give it such weight as the court thinks fit in the circumstances pursuant to section 199(6) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’).
I indicated to the parties that if an adjournment was pressed, I could accommodate the matter on 10 May 2022. Both counsel stated that they were not available on that day and counsel for the applicant indicated that the applicant was prepared to proceed on the alternate basis proposed by the respondent, namely that the court exercise its powers under section 199(6) of the FCFCOA Act.
In those circumstances, I indicated that I would allow the affidavit to be read and would give it such weight as I thought fit in all of the circumstances. The applicant submits that Ms Oakley’s affidavit ought to be given minimal, if any weight.
In addition, the applicant also submitted that certain paragraphs of Ms Oakley’s affidavit ought to be excluded in any event on the basis that they are hearsay and/or irrelevant. In particular, the applicant said that the evidence contained in paragraphs [13] to [25] and [28] to [30] were inadmissible as it was hearsay. In addition, the applicant objected to the evidence given by Ms Oakley at paragraphs [28] to [30] of her affidavit on the additional basis that it was not relevant.
At paragraphs [1] and [2] of her affidavit, Ms Oakley sets out her current position within the Department, and her previous roles. At paragraph [3] of her affidavit, Ms Oakley states:
I make this affidavit on the basis of my own knowledge, including knowledge I hold by reason of my position in the Department and the people and matters which I supervise, and my review of the files maintained by the Department in respect of the applicant in this proceeding.
At paragraph [6] of her affidavit, to which no objection was taken, Ms Oakley states that the applicant’s visa application was allocated to a Protection Obligation Decision Maker on 28 January 2021 ‘to assess the application against the criteria in subsections 36(1B), 36(1C) and 36(2C) of the Act’. She then sets out the various sections within the Department which play a role in these assessments.
I accept that much of the information contained at paragraphs [13] to [25] in her affidavit relates to events which occurred prior to Ms Oakley commencing in her current role. It was submitted for the applicant that the information in these paragraphs of her affidavit are largely, if not solely, based on hearsay evidence and are therefore inadmissible as such.
In reply it was submitted that the content of Ms Oakley’s affidavit was no more than a summary of the material available to her and that the court could exercise its discretion to admit that evidence on that basis and that it was a relatively uncontroversial way of assisting the court in understanding what has happened.
I accept that the information contained in paragraphs [13] to [25] appear on their face to be a summary of documents and/or conversations that Ms Oakley had in preparing her affidavit. It sets out the timeline within which the Department has dealt with the applicant’s visa application to date. As indicated at the hearing, I am prepared to allow Ms Oakley’s affidavit in pursuant to section 199(6) of the FCFCOA Act, but will deal with it on the basis of the weight to be given to her evidence. In coming to this view, I have also noted that the applicant himself relies upon some of her evidence as to timeline, to justify his submission that there has been unreasonable delay in the respondent’s consideration of the applicant’s visa application.
As to paragraphs [28] to [30], I do not accept that the hearsay exclusion applies. The statistics in paragraph [28] is information that one would expect someone in Ms Oakley’s position to be aware of, not from her personal knowledge of each of the individual claims, but by reference to statistics produced in the context of workload and the like.
Paragraphs [29] and [30] do not contain hearsay evidence, but rather are statements about the manner in which claims are dealt with and assessed. Again, that is evidence which someone in Ms Oakley’s position could properly give. Paragraphs [28] to [30] are therefore admissible.
Nor do I accept the applicant’s submission that the evidence in paragraphs [28] to [30] of Ms Oakley’s affidavit is not relevant to the issues in dispute. The fundamental issue in this case is whether there has been an unreasonable delay in the exercise by the Minister of his duty to determine the applicant’s case. The number of, and manner in which, claims for protections visas are determined, is relevant to that issue.
ISSUES FOR CONSIDERATION
As stated, the applicant seeks an order in the nature of mandamus compelling the Minister to determine his visa application.
It is common ground that there is no statutory time limit within which the Minister is to determine the applicant’s visa application. It is also common ground, however, that where no specified time frame exists, there is a need for the decision maker to exercise their statutory duty within a reasonable period of time.
For example, in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at paragraph [313], Kiefel J relevantly noted:
Where no time requirement is provided by a statute for the doing of an act, the law will imply a requirement that it be done as soon as reasonably practicable, at least where such an implication is possible.
The two issues which are in dispute are:
(a)whether, on the facts in this case, there has been an unreasonable delay such that an order in the terms sought by the applicant should issue?
(b)where does the onus lie in terms of establishing such an unreasonable delay?
Onus of establishing unreasonable delay
I will deal with the second issue first. It is common ground that it is for the applicant to show that there has been a delay; the respondent says that the applicant needs to show that there has been an unreasonable delay. If that is established, it is also common ground that the onus then shifts to the respondent to explain the delay. In the absence of any reasonable explanation, it is submitted by the applicant that mandamus should issue.
It is submitted for the applicant that it is readily apparent that there has been an unreasonable delay in the processing of the applicant’s application since it was remitted to the Minister in December 2020. The applicant points to the following to support this position:
·the Tribunal, having concluded that the applicant satisfied the criterion in section 36(2)(aa), remitted the application back to the Minister’s delegate on 18 December 2020, over 12 months prior to this application being filed in this court;
·more than 16 months had passed since that remittal when the matter had come before this court, and still no decision was made;
·this amount of time was clearly an unreasonable delay in circumstances where the applicant initially applied for a visa in November 2012 and particularly where the applicant was, and remained at the time of hearing, in detention.
In relation to the issue of the applicant’s detention, it was submitted that the determination of the applicant’s claim for a protection visa would have the result either of the applicant being released into the community if a protection visa was granted, or alternatively, being removed from Australia, again to his country of origin. In either case, he would cease to be in detention and therefore the undue delay on the determination of his visa application would lead to a continued period of detention. It was therefore submitted for the applicant that this is a factor that the court ought to have regard to in determining whether or not there has been an unreasonable delay.
As noted in AQM18 v Minister for Immigration and Border Protection 268 FCR 424 at paragraph [59], the Full Court of the Federal Court noted:
… As to onus, it was for the appellant to show that there was unreasonable delay affecting the jurisdiction to make the decision. If the appellant established a delay which called for explanation, then the persuasive onus might shift to the Minister to establish what that explanation was. In considering whether the appellant discharged her onus of establishing unreasonable delay, the evidence of each party is to be evaluated in accordance with the capacity of each to adduce evidence on the issue: Blatch v Archer (1774) I Cowp 63; 98 ER 969. That is a principle which authorises a particular form of reasoning.
That position is relatively uncontroversial as a statement of principle. The issues which then arise for determination are:
(a)whether the applicant has established that there was an unreasonable delay; and
(b)if so, whether the respondent has established an explanation for that delay.[8]
[8] MZAPC v Minister for immigration and Border Protection [2021] HCA 17 at [109]
Has there been an unreasonable delay?
As noted by Crennan, Bell, Gageler and Keane JJ in Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at paragraph [37]:
… The duties of the Minister to consider a valid application for a visa … and to make a decision granting or refusing such a visa are, by implication, to be performed within a reasonable time. … What amounts to a reasonable time is ultimately for determination by a court, on an application for mandamus against the Minister under s75(v) of the Constitution or equivalent statutory jurisdiction, having regard to the circumstances of the particular case within the context of the decision-making framework established by the Act.
It is submitted for the applicant that if any weight is given to Ms Oakley’s affidavit, it is clear from the information contained therein that the applicant’s application has ‘simply sat around waiting to be processed or waiting for a particular step’.[9] Moreover, the applicant says that there has clearly been delay and indifference ‘to the ongoing deprivation of liberty of the applicant awaiting an inexplicably slow and unjustifiably sequence process’.[10]
[9] Court transcript at pages 38 and 39.
[10] Applicant’s Outline of Submissions filed on 11 April 2022 at paragraph [8].
Relevantly, the applicant specifically points to the following information in Ms Oakley’s affidavit and says that they establish unreasonable delay:
(a)the 41 days for the Department to allocate the file internally;
(b)the 348 days for the ‘Security Assessment Liaison and Analysis area’ within the Department to receive a ‘non-prejudicial’ security assessment; and
(c)as at the date of lodgement of this application, a further 90 days for the Department to assess the applicant against the criteria in section 36(2C) without any explanation as to why this assessment was not undertaken in the 13 months from December 2020, when the matter was remitted to the Minister for reconsideration.
In support of this submission, the applicant relies upon the comments made by Bromberg J in BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 (‘BMF16’), and in particular at paragraph [27], where his Honour said:
The tenor or underlying rationale for the approach taken in the authorities is consistent with the proposition that a delay which has not been justified or satisfactorily explained is to be regarded as unreasonable … Many of those cases suggest that the onus (or at the least the evidentiary onus) of demonstrating that a delay is justified, may fall upon the decision-maker. That approach is expressly taken by the Canadian cases to which I have just referred where, in considering whether mandamus should issue, a delay will be considered unreasonable if:
(i) the delay has been longer than the nature of the process required, prima facie;
(ii) the applicant is not responsible for the delay; and
(iii)the authority responsible for the delay has not provided satisfactory justification.
The applicant submits that in this case it is clear from the evidence, including the evidence of Ms Oakley, that:
·the delay has been longer than is required – and in this regard, the mere fact that this amount of time may not be uncommon does not in and of itself justify the delay involved;
·the applicant is not responsible for the delay; and
·the respondent has not provided any adequate explanation for the delay.
At paragraph [29] of his reasons in BMF16, Bromberg J said:
… inactivity, long periods where an application simply sits around waiting to be processed or waiting for some particular step in the process to be taken, provide a more compelling basis for establishing unreasonable delay.
Applying the reasoning in BMF16, it is the applicant’s submission that this court should come to a similar conclusion in this case.
Whilst the general principles identified in BMF16 stated above are clearly binding on this court, the facts in BMF16 are relevantly distinguishable from the facts before me. BMF16 involved the processing of applications for Australian citizenship under a different statutory scheme. The applications related to two individuals, each of whom had been granted a protection visa some years before they applied for citizenship.
The first applicant applied for Australian citizenship in early 2014. The court noted that the Department’s own service standards envisaged that 80% of citizenship applications would be processed within 80 days of being made. After initially failing the citizenship test on two occasions, the applicant passed the citizenship test on 27 February 2015. Upon doing so, he received correspondence from the Department indicating that in the ordinary course, a decision on citizenship would be made within four weeks of a person passing the citizenship test.
The first applicant in BMF16 followed up with the Department on four occasions in the following 12 months and was told that his application was being assessed. His legal representatives then engaged in correspondence with the Department in March 2016 about the delay in the processing of the applicant’s application, more than 12 months after he had passed the citizenship test. Ultimately, after no satisfactory response was received, the applicant initiated legal proceedings.
On 20 July 2016, almost 18 months after passing his citizenship test, a delegate of the Minister refused the applicant’s application for citizenship.[11]
[11] The situation in relation to the second applicant was, for present purposes, substantially similar to those outlined above in relation to the first applicant.
In BMF16 a period of 15.5 months had passed between the first applicant passing his citizenship test and the Department asking him for further information to progress his application. A similar delay occurred in the case of the second applicant in BMF16.
After considering the evidence before him, Bromberg J concluded that in the context of a process, which on the Department’s own evidence ordinarily would take two to three months, and where there was evidence that no action at all was taken in relation to the two applicants’ applications for a period of some 15 months, ‘there has been an unreasonable delay in the processing of each of (the applicant’s) applications for citizenship’.[12]
[12] BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [106].
Having regard to the reasoning in BMF16 and the facts in this case, I accept that the following factors weigh in favour of the applicant’s position:
·the Minister has not yet made a decision in relation to the applicant’s visa application over 500 days after the Tribunal remitted it with a direction that the applicant satisfied the requirements of section 36(2)(aa) of the Act on 18 December 2020;
·the applicant is and remains in detention; and
·although the applicant’s application was remitted to the Minister in December 2020, the applicant actually initiated this proceeding in 2012.
However, as stated earlier, in determining whether any delay is an unreasonable delay, the court must also have regard to the statutory framework within which the Minister’s assessment must be made. Unlike BMF16, this case involves an application for a protection visa, not a citizenship application.
Nor is there any evidence before the court in this case, as there was in BMF16, that there is a timeframe within which decisions of this nature are ordinarily expected to be made. On the contrary, correspondence from the Department to the applicant’s representative, annexed to the applicant’s affidavit affirmed on 23 December 2021, makes it clear the Department stated that the time taken to assess such applications will vary and that timeframe will be affected by the level of complexity involved.[13]
[13] Applicant’s affidavit affirmed on 23 December 2021 and filed on 10 January 2022 at BEH-4.
In this case it is relevant to note that the applicant’s own evidence is that he was tried in absentia in Lebanon for very serious offences potentially involving the supply of weapons and false passports to a terrorist organisation. In those circumstances, it is appropriate that inquiries are made to determine whether the criterion in section 36(1B), 36(1C) or 36(2C) of the Act are satisfied.
The evidence of Ms Oakley is that the applicant’s application was allocated to a Protection Obligation Decision Maker on 28 January 2021. On the applicant’s own evidence, the Department advised his representative on 28 September 2021 that the application was with the Security Assessment Liaison and Analysis section. Ms Oakley’s affidavit states that this section within the department is the section within the Intelligence Services and Threat Discovery Branch which is responsible, among other things, for ‘liaising with external security agencies for the purposes of obtaining security assessments of visa applicants’.[14]
[14] Affidavit of Caroline Oakley affirmed and filed on 6 April 2022 at paragraph [9].
Ms Oakley further states that on 19 January 2022, the Security Assessment Liaison and Analysis section was advised that the external agency security assessment had been finalised and was non-prejudicial to the applicant. Ms Oakley also says that on the same day, an onshore police check was initiated and a non-prejudicial result was received.
The statutory scheme under which this application was to be considered involves an assessment of the risk, if any, posed to the Australian community by the applicant being granted a visa. It also involves assessments as to whether the applicant meet the character tests under the Act, and importantly, those considerations arise in the context of the applicant’s own evidence that he has been convicted in Lebanon of terrorism charges and has been sentenced to death, albeit in absentia.
Having regard to the totality of the evidence, the serious matters raised in the applicant’s own material and the statutory scheme, I do not agree with the applicant’s submission that this period of time is itself evidence of inaction on the part of the Minister and evidence of unreasonable delay. When one has regard to the statutory scheme pursuant to which an assessment was required in this case, the Minister is required to consider whether there are adverse security assessments or other security concerns which would preclude the granting of a visa.
As noted by Edelman J in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA 24 at paragraph [54]:
… The decision under s 65 must still be made within a reasonable time but what amounts to a reasonable time is determined “having regard to the circumstances of the particular case within the context of the decision-making framework established by the Act”. That decision-making framework includes a reasonable opportunity, where relevant, for the Minister or delegate (where permitted) to consider, and exercise, any powers under s 501 … It is both lawful and desirable for the Department to develop policies and processes to facilitate the exercise of powers such as those under s 501 consistently with a decision under s 65.
Similarly, a reasonable period of time includes a period of time in which to make the necessary inquiries and assessments required to be satisfied of the matters in sections 36(1B), 36(1C) and 36(1C) of the Act.
Finally and for completeness, I note with sympathy that the applicant has given evidence that he was suffering ‘bleeding issues in his bowel system’ and for which he had not been referred to a gastroenterologist. In this regard, I note that the Department has not explained whether, and if not, why not, appropriate medical attention has been provided to the applicant. Whilst this is a factor which may be taken into account in determining the reasonableness or otherwise of the time taken to deal with the applicant’s claim, it is not determinative. Moreover, I note that there was no mention of the applicant’s health concerns in the correspondence sent to the Department on the applicant’s behalf annexed to the applicant’s 23 December 2021 affidavit.
Having regard to all the circumstances of this case, the applicant has not established to the requisite standard that the time taken to date amounts to an unreasonable delay in the making of a decision as required. In those circumstances, the applicant has not established that there is an unreasonable delay in the sense contemplated in Thornton Repatriation Commission (1981) 35 ALR 485 at 492 per Fisher J, that is ‘whether there are circumstances which a reasonable man might consider render this delay justified and not capricious … not in consequence of neglect, oversight or perversity’.[15]
[15] See, also, ASP15 v Commonwealth (2016) 248 FCR 372 at [20]-[23].
Unlike BFM16, this is not a case in which the Minister has taken no action at all for an extended period of time. The issues raised by the applicant’s application are significant and require appropriate inquiry.
In coming to this view, I have also had regard to the fact that whilst the applicant initially filed an application for a protection visa in 2012, the period from November 2012 to December 2020 was taken up with various reviews and appeals and was not the result of delay on the part of the respondent in progressing this application.
CONCLUSION
For these reasons, I make orders dismissing the applicant’s application with costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 18 May 2022
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