Unreasonable delay in refusing visa under s 501A?

Federal Court: The FCA assumed, without determining, that 'the exercise of power under s 501A is subject to an implied obligation that it be exercised within a reasonable time'. Given that assumption, was that obligation breached by the Minister's 5-month delay in making a decision?

Summary and discussion

The timeline of events is crucial in this decision. The following is a summary of those events:

  • September 2015: the Applicant's visa was cancelled
  • December 2015: the Applicant was taken to immigration detention
  • August 2016: the Applicant applied for a safe haven enterprise visa (SHEV), which was refused by a delegate of the Minister
  • October 2017: the Tribunal set aside the delegate's decision and remitted the matter to the Department
  • November 2017: the Department provided Minister Dutton's office with a submission seeking an indication as to whether the Minister wished to exercise his personal power pursuant to s 501A(2) of the Migration Act 1958 (Cth) to set aside the AAT's decision and refused to grant the SHEV
  • August 2018: new Minister Coleman was appointed
  • January 2019: the Applicant commenced proceedings in the Federal Court (FCA). According to the FCA: "By that date no decision had been made by the Minister and the relief originally sought by the applicant included an order that the Minister make a decision to grant or refuse the applicant's protection visa within two weeks".
  • April 2019: Minister Coleman exercised his personal power under s 501A(2) to set aside the AAT's decision and refused to grant the SHEV

Bearing in mind that the Applicant was still in immigration detention at the time of the FCA's decision, the following passages from the FCA reasons for judgement summarise the Applicant's arguments on judicial review:

42    In summary it took from November 2017, when Minister Dutton's office was first contacted with respect to the Tribunal's decision, until April 2019 for a Minister to make a decision to set aside the Tribunal's decision. During that time a social worker had prepared a report to the effect that the prolonged detention was causing the applicant's mental health to deteriorate. A copy of the report formed part of the applicant's submission to the NCCC of 23 April 2018.

43    That time period of approximately 18 months provides context to the particular complaint. There are objectively some key matters to note that led to delay with respect to the applicant's case: the delivery of a relevant decision by this Court that required consideration; the appointment of a new Prime Minister and a new Minister with the immigration portfolio; the return of submissions that had been before Minister Dutton to the Department; the need to consider and put in place a regime in accordance with the new Minister's requirements for such applications; and the publication of Direction 79 (which does not bind the Minister but to which it is apparent that the Minister has regard).

44    The applicant does not rely on inactivity over the whole of that period as evidencing unreasonable delay. His complaint is that there was inactivity between 3 September 2018 and 19 February 2019.

63    As to relief, the applicant submits that the failure to comply with the implied condition to make a decision within a reasonable time means that any decision eventually made is beyond the Minister's power and therefore invalid. The applicant submits that although the delay did not deprive the applicant of a successful outcome, it falls within an exception recognised in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [40] and [72] in that the delay demonstrated a lack of respect for the dignity of the applicant as an individual in circumstances where the applicant was in detention with deteriorating mental health. The applicant therefore seeks a writ of prohibition against the Minister or a declaration that the Minister's decision was invalid, with the result, it is contended, that the Tribunal's decision must stand.

The questions to the FCA were as follows:

Question 1: Is the exercise of power under s 501A subject to an implied obligation that it be exercised within a reasonable time?

Question 2: If the answer to Question 1 is "yes", what is a reasonable time?

Question 3: If the answer to Question 1 is "yes", was that obligation breached by the fact that it took 5 months for the Minister to make a decision?

Question 4: Assuming that the power under s 65 is subject to an implied obligation that it be exercised within a reasonable time and that s 501 is "one step in the visa application process" contemplated by s 65, is 501A "subject to 'the same duty that the Minister has in deciding any visa application to [exercise power] reasonably and [make a decision] within a reasonable time”?

The FCA answered as follows:

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