By Lorenzo Boccabella, Barrister-at-law, specialist in migration law, published on 3 March 2025.
So, what to do when there’s an unreasonable delay in Immigration or a tribunal making a decision. One option is to write to the global feedback unit1 drawing attention to what the court authorities say about a delay. Ultimately if there is no response, one can bring court action to force a decision by way of mandamus. One cannot get an injunction to force Immigration to make a positive decision but one can get an injunction to force Immigration to make the decision, ‘within a reasonable time”.
The pedigree on the court signalling, that Immigration can’t sit on decisions, is impressive. One place to start is the early comments of Dixon J in Koon Wing Lau v Calwell2 [1949] HCA 65 who said that a statutory power has to be exercised within a reasonable time. He added:
“10…What is a reasonable time will depend upon all the facts, including the conduct of the person named in the certificate.”
In Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24, the High Court said: 37.The Act, in contrast, is silent as to the period within which the Minister must make such a decision in respect of a valid application for a visa of a class other than a protection visa. The duties of the Minister to consider a valid application for a visa of a class other than a protection visa and to make a decision granting or refusing such a visa are, by implication, to be performed within a reasonable time.
In Shahi v Minister for Immigration and Citizenship [2011] HCA 52, the High Court said:
28…. the relevant provisions of the Regulations are to be construed on the footing that a decision to grant or refuse to grant a visa will be made promptly.
Perhaps the broadest comment came in BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530, where the Federal Court stated:
20.As Murphy J observed in Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 (at 578), where a statutory obligation to perform a public duty exists, without a time limit “any duty would be illusory”. For that reason, where a time limit is not specified, a “reasonable time” will be implied. The same approach was taken by Dixon J in Koon Wing Lau v Calwell (1949) 80 CLR 533 at 573–574. These authorities have been relied upon in support of the proposition that in the absence of specified time limits decisions required by statute are to be made within a reasonable time: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [102] (Gageler J); Repatriation Commission v Morris (1997) 79 FCR 455 at 461 (Beaumont J); NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 at [12] (Beaumont J); and see generally Pearce and Geddes, Statutory Interpretation in Australia (8th ed, Lexis Nexis Butterworths, 2014) at 300 [6.51].
In Li, Gageler J (as he then was) said:
102.The permissive terms in which the power to adjourn is conferred on the MRT make clear that the power itself carries no duty on the MRT to consider its exercise. The overriding duty of the MRT to review a decision may nevertheless require the MRT, acting reasonably, to consider exercise of the power in a particular case. The duty of the MRT to review a decision is to be performed within what, in all the circumstances, is a reasonable time. The power of the MRT to adjourn is in aid of the performance of that duty.
Regrettably, in many areas of migration law including before the review tribunals, decisions can be left in the queue for years. A well crafted letter or submission could be used to stir a dormant case into action.
_______________________
2 Cases involving taking on the Minister for Immigration in the High Court go back a long way, Mr Calwell being the first post World War II minister for Immigration. Totally unrelated to this case, he introduced the legislative concept of Australian citizenship which abolished the status of Australians as ‘British subjects’.