BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530

FEDERAL COURT OF AUSTRALIA

BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 File numbers: VID 546 of 2016 VID 547 of 2016

Judge: BROMBERG J

Date of judgment: 16 December 2016

Catchwords: ADMINISTRATIVE LAW – unreasonable delay in making a decision – Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 7(1), 16(3) – where the Act requires the Minister to either approve or refuse to approve an application for citizenship – where the Act does not specify a time limit for performance of the duty – whether "unreasonable delay in making the decision" within meaning of s 7 ADJR Act; relevant question is whether by reference to the statutory scheme in which the decision-making power is found there has been, in all of the circumstances, delay in making the decision which is not justified – where delay arises out of periods of inactivity the Minister has the onus of providing a meaningful explanation for the inactivity – where only part of a fourteen-month period of inactivity is satisfactorily explained – whether balance of unexplained inactivity amounts to unreasonable delay – unreasonable delay made out ADMINISTRATIVE LAW – legal unreasonableness – Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(2)(g), 16(1) – where applicant failed to respond to an invitation to provide further identity documentation within the 35 days specified by the delegate – where the delegate made a decision to refuse the application on the 36th day without recourse to the applicant or his legal representatives – whether the delegate's exercise of discretion to finalise the decision was legally unreasonable – whether such legal unreasonableness amounted to a jurisdictional error – whether the delegate's failure to make inquiries of the applicant's legal representatives amounted to legal unreasonableness and/or a constructive failure to exercise jurisdiction or a breach of procedural fairness – the delegate's failure to make inquiries amounts to jurisdictional error – whether jurisdictional error rendered the decision nugatory for all purposes and to be regarded as no decision at all ADMINISTRATIVE LAW – procedural fairness – Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(a), 16(1) – whether statutory scheme evinces an intention to curtail the content of procedural fairness – whether applicant given opportunity to respond to issues critical to the decision – whether the identification of an issue at a high level of generality is sufficient – whether applicant given opportunity to respond to adverse information – whether opportunity should have been afforded for applicant to respond to what delegate regarded as prior inconsistent statements – the delegate failed to afford procedural fairness – whether relief should be refused on the basis of the rule in Stead – no basis for considering that affording procedural fairness would have been futile ADMINISTRATIVE LAW – discretion to exercise jurisdiction and grant relief – Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 10(2)(b)(ii), 16(1) – where a decision is made which had been the subject of an application for failure to make a decision – whether there remains any utility in the proceeding – where the purported decision has been found to have been vitiated by jurisdictional error –– where another law makes adequate provision for review of the decision – whether an applicant must show special circumstances to persuade Court to exercise its jurisdiction – where Court proceeding sufficiently advanced – no cause to refuse to exercise jurisdiction and/or grant relief