Federal Court. Was a delay of almost 4 years in deciding a protection visa application very lengthy? Is it reasonable for the Minister to consider s 501A for some period? Even though the Applicant's case was about the delay after the Tribunal remitted the matter to the Department, should this delay be considered in light of a previous delay? Is an absence of resources a justification for delay? Could the Minister further delay making a decision on the basis of a pending criminal trial?
In June 2013, the Applicant and his mother arrived by boat in Australia as “unauthorised maritime arrivals”, as defined in the Migration Act 1958 (Cth). In March 2015, the Applicant was convicted of some minor offences committed the same month.
In April 2017, the Applicant applied for a protection visa as a dependant of his mother, who claimed to be owed protection. The mother was granted a protection visa in December 2017.
In March 2018, the Applicant was convicted of some minor offences committed the same month. From April 2018 to March 2019, the Applicant committed offences while detained, for which he was convicted in November 2019. He remained in immigration detention until March 2021.
On 5 March 2021, a delegate of the respondent Minister refused to grant the Applicant a protection visa pursuant to s 501(1) of the Act, for failure to satisfy the character test by reason of s 501(6)(d)(i). On 2 June 2021, the Administrative Appeals Tribunal set aside the delegate’s decision and remitted the Applicant’s visa application to the Minister with a direction that the Applicant was not a person to whom s 501(6)(d)(i) applied.
On 16 June 2022, the Applicant was charged with another offence. By the time of the Federal Court’s (FCA) judgment, that charge had not been determined and the Minister had not decided whether to grant or refuse to grant the Applicant a protection visa.
The applicant sought mandamus compelling the Minister to make a decision.
Some of the questions to the FCA were as follows:
Question 1: Must the duties to consider whether a visa application is valid pursuant to s 47 and to decide whether to grant or refuse to grant a visa pursuant to s 65 of the Migration Act 1958 (Cth), by implication, be performed within a reasonable time?
Question 2: Must the determination of whether a reasonable time has passed be made having regard to the circumstances of the case within the relevant decision-making framework established by the Act?
Question 3: In determining whether the delay is reasonable, is the question iswhether a reasonable person may consider the delay justified and not capricious?
Question 4: Where the delay in making an administrative decision is unexplained, does the persuasive burden shift to the administrator to prove a satisfactory explanation or justification for the delay?
Question 5: Is the delay of almost 4 years from March 2017 to 5 March 2021 (or even the delay of more than 3 years from the date of the decision to grant the Applicant’s mother a protection visa) very lengthy?
Question 6: May it be reasonable to permit the Minister some period to consider exercising the personal power under s 501A of the Act to set aside in the national interest a decision of the Tribunal?
Question 7: Was the delay of almost 4 years from March 2017 to 5 March 2021 manifestly unreasonable?
Question 8: Does the Minister’s attempt to justify the delay from 2 June 2021 to 16 June 2022 on the basis that the Department was understaffed under that period justify the inactivity or paralysis in the period?
Question 9: Can it be said that, at best, the delay from 23 September 2021 to 16 June 2022 was bureaucratic oversight and neglect and, at worst, it was administrative incompetence or perversity?
Question 10: Can it accepted that, in some cases, it might be reasonable to defer a decision in respect of a visa application where the visa applicant has been charged with a criminal offence?
Question 11: If the answer to Question 10 is 'yes', is this such a case?
Question 12: Can it be said that, that it would be open to the Minister to cancel the Applicant’s visa following its grant if and when he is convicted provide another reason why it would be unreasonable to further delay the decision in respect of his visa application?
Question 13: As there has been unreasonable delay, should the Minister be compelled through a writ of mandamus to decide the Applicant’s visa application forthwith, though the writ is returnable in 14 days from the date of the judgment?
The FCA answered those questions as follows: