Immigration Law Conference February 2017 Panel discussion Brenda Tronson Barrister Level 22 Chambers btronson@level22.com.au 02 9151 2212 Unreasonableness In December, Bromberg J delivered judgment in BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530. In respect of each of the two individual applicants, his Honour: set aside decisions by a delegate of the Minister to refuse to grant citizenship; made a declaration that there had been unreasonable delay in making a decision in relation to the application for citizenship; and stated an intention to make an order directing the Minister to make a decision to approve or refuse to approve the application for citizenship, subject to hearing the parties further as to the appropriate timeframe. Justice Bromberg considered questions of unreasonableness in two important respects: first, in determining that there had been unreasonable delay in determining the citizenship application in each case, and secondly, in determining that there had been a denial of procedural fairness. His Honour s analysis of the factors which led to his findings of unreasonableness may be of utility in a range of other cases. Factual background There were two applications before the Court. Each applicant (referred to as F and G in the judgment) was an Afghan man of Hazara ethnicity who had arrived in Australia in 2010 as an irregular maritime arrival. Each was granted a protection visa and permanent residency in Australia by the end of 2010. Each made an application for citizenship in 2014, four years after the grant of permanent residency. Each passed the citizenship test, and the identity of each was recorded as having been verified. However, consideration of the citizenship application of each applicant appeared to stall. Each contacted the Department on a number of occasions, and each ultimately engaged solicitors, who also contacted the Department on their clients behalf.
On 25 May 2016, each applicant commenced proceedings in the Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) on the basis there had been a failure in each case to make a decision pursuant to s 7(1) of the ADJR Act. Within a month of the commencement of proceedings, the Department wrote to each of F and G requesting further information. The cases diverged at this point to some extent. F was overseas, no response was sent to the Department within the 35 day period nominated by the Department, and a delegate of the Minister made a decision to refuse F s citizenship application on the 36th day after the letter had been sent. G was able to respond in time, and provided additional information and attended an interview with his legal representatives. Again, a delegate of the Minister made a decision to refuse G s citizenship application. During this time, the proceedings before the Court had been continuing, and each applicant also challenged the refusal decision made in his case. Unreasonable delay principles It was common ground between the parties that there was no time prescribed by statute within which a decision on a citizenship application must be made. His Honour observed this led to a requirement that the decision be made within a reasonable time, following Murphy J in Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 at 578 and other authorities: at [20]. This common law principle applied equally to s 7(1) of the ADJR Act: at [21]. As to what constitutes a reasonable time, this depends on all the circumstances (at [22]) and calls for an objective assessment : at [26]. The legislative scheme will be of particular importance: at [23]. At [25], his Honour observed: The subject matter of the power, its statutory purpose, the importance of its exercise both to the public and to the interests of the persons it is directed to address, the nature of those interests and the likely prejudicial impact upon interest-holders of any delay, as well as the practical limitations which attend the particular exercise of the power by reason of the nature of the decision required and the preparation, investigation and considerations called for, are all likely to be relevant to what, in the context of the particular legislative scheme, was intended as a reasonable time for the performance of the duty. At [30], Bromberg J made some observations in relation to the scheme of the Australian Citizenship Act 2007 (the Act). Citizenship is a public good and conferral of it is to be encouraged, and delay may undermine that objective. However, delay is often unlikely to cause great detriment. The Act contemplates a desktop assessment, and the Department s own advice is that most applications are decided within 80 days (and within four weeks of passing the citizenship test). But reasonable resourcing Unreasonable delay 2
constraints may cause some (reasonable) delay, as may the need for the Minister to seek further information in some cases. Finally, there is at least an evidentiary or practical onus on the decision-maker to justify or explain satisfactorily any delay: at [27]-[28]. In this regard, where time is taken to consider an application actively, that is unlikely to amount to unreasonable delay but long periods of inactivity are likely to be a different matter: at [29]. Unreasonable delay in these cases In each of F s and G s case, there was a long period of inactivity between successful completion of the citizenship test and the request by the Department for further information: at [55]. That inactivity formed the core of each applicant s complaint. The Minister adduced evidence about the relevant processes, but Bromberg J considered this to be largely pitched at a level of generality that revealed very little about the actual processing of F and G s applications : at [58]. Having considered that evidence, his Honour made the following critical findings: each application was categorised as complex and dealt with accordingly: at [68]; after that categorisation was made in each case, nothing was done for a period of approximately 14.5 months (with an additional delay of four months in relation to G prior to the categorisation of his case as complex ): at [69]; the letters sent by the Department in each case were general, and no attempt was made to obtain information from other branches of the Department until after those letters were sent: at [70]; while there was evidence as to a queue of some sort (at [74]), the evidence (including statistical data) disclosed some leap frogging (at [75]-[78]) which was unexplained by questions of resourcing (at [79]); and the evidence suggested the substantial delay may have been caused by reference to an unreasonable rationale or some arbitrariness (at [81]) and that the applications may have been left aside and forgotten (at [83]). His Honour rejected the general circumstances relied on by the Minister, namely the change in processes concerning the assessment of identity (this had not been applied to F or G, and in any event would only explain a delay of some few months: see in particular [91], [101]-[102]) and the scarcity of resources (the evidence in this regard was too general: see [103]-[104]). His Honour concluded there was unreasonable delay in each case: at [105]. Unreasonable delay 3
Applicability to migration cases The ADJR Act applied in this case because decisions made under the Australian Citizenship Act 2007 are not excluded from the operation of the ADJR Act, unlike (most) decisions made under the Migration Act 1958. The applicants had included in their applications grounds based on s 39B of the Judiciary Act 1903, but Bromberg J found it unnecessary to consider those claims: at [19]. Accordingly, some caution must be exercised in seeking to apply the principles set out in this case in migration cases more generally. That said, as Bromberg J made clear, the common law principles requiring administrative decisions to be made within a reasonable time are reflected in s 7(1) of the ADJR Act: at [21]. In addition, it is plain from judicial statements as to the nature of jurisdictional error that a failure to make a decision where there is a duty to do so may amount to jurisdictional error: see, for example, Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at 500 [57] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); see also Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia [2012] HCA 25; (2012) 249 CLR 398 at 408 [15], 410 [21] (French CJ), 420 [57] (Gummow, Hayne, Crennan, Kiefel and Bell JJ), 428 [75]-[76] (Heydon J). This would seem to be common sense. One description of jurisdictional error is a failure to exercise jurisdiction: see S157 at 506 [77]. There can be no clearer example of a failure to exercise jurisdiction than a failure to make a decision at all. The question will be when it can be said that there has been such a failure. The principles concerning unreasonable delay become relevant at this point, assuming the duty to make the decision is established. Failure to inquire Justice Bromberg also used the lens of unreasonableness in determining that the delegate s decision to refuse F s citizenship application was invalid as a result of the delegate s failure to inquire as to whether F intended to respond to a letter from the Department seeking further information after the commencement of proceedings. As set out above, F did not provide information in response to that letter. The delegate s view that there had been a failure to respond was a critical aspect of the delegate s reasoning: at [120]. His Honour considered that there was a rational expectation that a reasonable person in the shoes of the delegate would have been surprised to discover that F did not respond within the time stipulated: at [124]. There was, further, a basis for the delegate to infer that F s circumstances at the time caused him to fail to respond, as Unreasonable delay 4
the delegate knew F was overseas and that he was apparently having some difficulty in contacting the Department: at [125]. Thirdly, the Department was aware that F was legally represented (even though it had refused to recognise this fact, as to which see [130]-[134]) and could have made inquiries of his solicitor as to whether he intended to respond: at [126]-[127]. His Honour considered this is the kind of obvious inquiry which ought to have been made: see [136]-[143]. The failure to make that inquiry lacked an evident or intelligible justification and resulted in the legally unreasonable exercise of the power conferred by the Act: at [143]. On this basis, the decision to refuse F s citizenship application was affected by jurisdictional error. Unreasonableness as a touchstone? Recently, in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29, (2016) 90 ALJR 901, the High Court has given fresh air to the concept of practical injustice. The two appeals in SZSSJ arose out of the event known as the Data Breach, which occurred when the identities of over 9,000 applicants for protection visas were included in embedded information in a document published by the Department of Immigration and Border Protection on its website. The Department retained KPMG to investigate the Data Breach, and an abridged version of KPMG s report was ultimately provided to each applicant. The Department also advised visa applicants affected by the Data Breach that International Treaties Obligations Assessments (ITOAs) would be undertaken and, specifically, notified each applicant formally when his or her ITOA process commenced. The High Court considered whether the two visa applicants before it had been denied procedural fairness because the ITOA process was inadequately explained or because the unabridged KPMG report was not provided. The Court emphasised the judicial role of the declaration and enforcing of the law which determines the limits and governs the exercise of the [administrative] repository s power, rather than merely correcting or curing administrative error or injustice: at [81]. Further, in determining whether procedural fairness has been denied, the Court observed this occurs only where the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the [statutory] power as to amount to a practical injustice : at [82], referring to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 14 [37] and Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 90 ALJR 25 at 33 [36]. Unreasonable delay 5
The Court ultimately considered that there had been no practical injustice in the circumstances of the cases before it. Justice Bromberg s conclusion in BMF16 that there was a denial of procedural fairness in relation to the delegate s decision to refuse G s citizenship application drew on this concept: BMF16 at [160], referring to SZSSJ at [82]-[83], and BMF16 at [166]. His Honour was satisfied that G demonstrated a practical injustice in relation to a number of concerns which formed part of the delegate s reasons for refusing G s application, and in respect of which G was not on notice: at [182], [184], [192], [195], [204]. It appears that his Honour s conclusions that G had demonstrated practical injustice in certain respects were essentially interchangeable with conclusions that there had been denials of procedural fairness: at [219]. This is consistent with the High Court s exposition in SZSSJ at [82]-[83]. The term practical injustice is not new. However, a re-enlivened use of the term appears to be part of the process of drawing an explicit link between reasonableness and procedural fairness, that is, that compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances : SZSSJ at [82]. There is nothing novel in this concept either. But the emphasis on reasonableness is consistent with the development of principle in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and the cases building upon it. It may be a sign that reasonableness is becoming an increasingly explicit touchstone in establishing error in administrative decision-making. Unreasonable delay 6