On borrowed time: Challenging deliberate government delay in visa and citizenship processing

The reasonable time requirement

A functional migration system requires a consistent and transparent process for issuing visas. For this reason, the Migration Act 1958 (Cth) (the Act) creates obligations on the Minister for Home Affairs (the Minister) to consider ² and determine ³ all valid visa applications. Because the Act is silent as to the timeframe in which the Minister must perform these statutory duties, the High Court has held that the Minister is by implication required to perform them within a reasonable time. ⁴

There is no established period that constitutes a ‘reasonable’ time to process an application – what is considered reasonable differs in each individual case. In assessing reasonableness, a court will consider all the circumstances of the case, including the purpose of the legislative scheme and the practical impacts of delay on the visa applicant, ⁵ whether the delay affects the liberty of a person, ⁶ and whether there have been long periods of inactivity on the file, ⁷ and assess whether there is any reasonable justification for the delay. ⁸

What constitutes a reasonable processing time also varies significantly across visa categories, particularly those subject to annual limits. For example, 90 per cent of applications for Skilled Independent (subclass 189) visas are processed within four months. ⁹ In contrast, the processing time for some Parent visas is 31 years. ¹⁰

A visa applicant experiencing unreasonable delay may seek a writ of mandamus to compel the Minister to perform their statutory duty to determine the visa application. In doing so, an applicant needs to demonstrate at a prima facie level that delay has occurred. The onus then shifts to the Minister to prove that the delay has been reasonable. ¹¹ A lack of bureaucratic resources alone will not generally constitute an acceptable explanation for delay. ¹² Despite this, as explored in further detail below, litigation challenging unreasonable delay is surprisingly rare.

It must be acknowledged that the inverse of delay – stringent timeframes imposed on visa applicants, where non-compliance can extinguish review rights ¹³ or even the right to apply for asylum ¹⁴ – can also be problematic. Measures like the Department’s ‘real time’ processing of certain protection visa applications, which expressly aims to increase the speed of visa refusals, ¹⁵ risks disadvantaging people on the basis of nationality. However, this use of time is yet to be recognised in law as unreasonable or as giving rise to a remedy and is not further explored in this article.

Protracted delays in assessing character

Visa processing delays are particularly acute in the assessment of a person’s character – a process which can often prolong detention. Under s 501 of the Act, a visa may be refused (or cancelled) if the applicant does not satisfy the Minister that they pass the ‘character test.’ ¹⁶ The scope of that test is broad and highly subjective. It contemplates consideration of a range of factors including the applicant’s criminal record, past and present ‘general’ conduct, actual or suspected associations, and the risk that the person may engage in certain undesirable behaviour in the Australian community. ¹⁷ Even where a person has been found to satisfy the character test by a delegate of the Minister or the Administrative Review Tribunal (formerly the Administrative Appeals Tribunal, referred to hereafter as the Tribunal), the Minister may exercise a personal power in s 501A to set aside that decision, resulting in the refusal or cancellation of the visa.

Despite the breadth of the character test, courts have recognised that at least some assessments of character must not unreasonably delay determination of a visa application.

In CMA19 v Minister for Home Affairs, ¹⁸ Murphy J held that the Minister had unreasonably delayed in determining the applicant’s protection visa application under s 65 of the Act, and also in considering whether to refuse the visa on the basis that the applicant did not satisfy the character test. While a positive protection finding had been made by the Department one year after the application was lodged, it took a further 28 months for the Minister to personally refuse to grant the visa under s 501(1) of the Act, including a period of 451 days during which it appeared that no action was taken to progress the application. ¹⁹ The applicant remained in immigration detention for the duration of the processing and, at the time of judgment, had been detained for a decade since his arrival in Australia.

In AFX17 v Minister for Home Affairs, ²⁰ the applicant’s protection visa application had been remitted from the Tribunal with a finding that the applicant passed the character test. Despite this, and following a complicated procedural history, the application remained undetermined some four years later. Justice Flick held that unreasonable delay was established due to the slow pace at which the application was processed post-remittal in circumstances where the applicant remained in immigration detention. His Honour also emphasised the extraordinary conduct of the Minister in intending to consider the exercise of his personal powers in s 501A, despite the jurisprudence at the time precluding the use of that power in the applicant’s circumstances. ²¹ His Honour held that a ‘reinforcing’ factor which contributed to the unreasonableness of the delay was the Minister’s attempt to prolong consideration of the application on the basis of the Minister’s personal view about the correctness of the current law and in anticipation of a successful appeal about the availability of s 501A. ²² The Minister’s subsequent efforts to delay giving effect to Justice Flick’s orders led to a warning that contempt proceedings may be instituted against him. ²³ The Minister’s conduct in this case demonstrates a clearly intentional use of delay in an attempt to manufacture a particular visa outcome and avoid releasing a person from detention.

Other legal challenges to unreasonable delays in the consideration of this personal power have generally not been successful. For example, a delay of one year following remittal from the Tribunal was held to be ‘regrettable’ but not unreasonable in AQM18 v Minister for Immigration and Border Protection. ²⁴ Similarly, in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, ²⁵ two judges held that it was not necessary to decide whether the power in s 501A(2) is subject to the reasonable time requirement because the Minister had not unreasonably delayed in exercising it, despite an 18-month period between the Tribunal’s decision and the Minister’s refusal of the visa. ²⁶

The reasonable time requirement may also apply in respect of powers to cancel, rather than refuse, visas on character grounds. Delays in the exercise of those powers can also have a direct impact on a person’s liberty: a person whose visa has been mandatorily cancelled on character grounds will wait an average of 641 days for their request for revocation of that cancellation to be determined, and they will remain in detention throughout that period. ²⁷ Unreasonable delay in these circumstances continues to be tested in the courts. For example, in Morgan v Minister for Immigration and Multicultural Affairs, McDonald J held that the applicant had failed to establish that the Minister’s decision to cancel his visa on ‘national interest’ grounds under s 501BA was made outside a reasonable time, and on that basis declined to determine whether the power is conditioned by such a requirement. ²⁸ Nine months had elapsed between the Tribunal’s determination to revoke the visa cancellation and the Minister’s subsequent decision to override that determination. Despite this conclusion, McDonald J noted that it will ‘usually serve the national interest for [the Minister’s] decision to be made expeditiously.’ ²⁹ It is understood that similar arguments regarding unreasonable delay in the exercise of the s 501BA power have been raised in a number of Federal Court proceedings presently on foot.

Delays arise not only in the assessment of character, but also in the administrative processes that surround such assessments. For example, s 501(3A) provides that a person’s visa must be cancelled if they are sentenced to a term of imprisonment of 12 months or more. There is no scope for discretion and no evaluative process involved – the cancellation is mandatory (followed by the opportunity to request that the cancellation be revoked). But the Department has developed a standard practice of notifying people of mandatory visa cancellations towards the conclusion of their prison term, rather than when they are sentenced. ³⁰ The result is that a person must then spend potentially years in immigration detention while seeking revocation, rather than pursuing that process over the course of their prison term – which could enable their release into the community at the completion of their sentence.

It has been theorised that such practices, in combination with a ‘two-track’ legal system which sees differential treatment of citizens and non-citizens in prison on the basis of visa status, are designed to create the circumstances that encourage people to ‘choose’ to accept deportation rather than fighting to reinstate their visa. ³¹

While unreasonable delay in character matters has only been recognised to date in a small number of cases, data shows a trend of increasing average processing times for revocation requests, ³² indicating that delays are rapidly becoming the norm. The deliberateness of those delays may not always be as clearly evinced as in cases like CMA19 and AFX17, but the Minister’s conduct in those cases together with the increasing politicisation of character matters ³³ and administrative practices that exacerbate delays, suggests that the presence of delay is far from benign and coincidental.

Delays keeping skilled workers on temporary visas

In other contexts, visa processing delays can trap people in the limbo of temporary visa status, preventing their rightful progression to permanent residency. Not only does this create uncertainty and stress, but it can also put people’s lives on hold and increase their vulnerability to workplace exploitation. Conditions of temporary visas can limit the number of hours a person is permitted to work, or tie them to particular employers, breach of which can result in visa cancellation and deportation. Temporary visa holders are therefore often beholden to employers for the ability to stay in Australia, which can lead to exploitation: at least one third of temporary migrant workers are paid less than $12 per hour (approximately half the minimum wage). ³⁴ Permanent visas, by comparison, place no restrictions on the right to work.

The Skilled Regional Visa (Subclass 887) is a permanent visa available to skilled migrants based on satisfaction of limited criteria, including two years’ residence and full-time work in a designated regional area while holding a qualifying visa. It is designed to attract migrants to help fill skills shortages in regional areas – a particularly crucial need during and after the COVID-19 pandemic. Temporary migrants apply for those qualifying visas, and relocate their lives to remote and regional areas, with the legitimate expectation of transitioning to permanent residency after the qualifying period.

Between 2020 and 2022 the processing time for subclass 887 visas more than doubled to over 24 months. ³⁵ The criteria for the visa, which are straightforward to assess, had not changed. The negligible rate of refusals did not increase. ³⁶ There was no readily apparent cause for the increased processing time. Although the COVID-19 pandemic impacted the Department’s operations, Australian visa applications overall declined by 86 per cent, and within the permanent skilled migration program, applicants already in Australia were said to be prioritised. ³⁷ While waiting for processing, people were stuck on bridging visas – short term visas which make it extremely difficult to obtain jobs, rental accommodation or loans, and which prevent access to government income support, childcare subsidies and accessible higher education. Many visa applicants believed the slowing down of subclass 887 visa processing was an intentional strategy to tie them to their existing employers in regional areas long after they had completed the required work period, while post-COVID skills shortages persisted. ³⁸

In 2022, thousands of people affected by these delays mobilised to highlight the impact of this precarious visa limbo on them and their families, and to campaign for fair visa processing. They staged rallies, circulated petitions and shared their personal stories with journalists. ³⁹ They also engaged with lawyers, who began taking steps towards legal action claiming unreasonable delay. One by one, their visas were issued, demonstrating the power of collective action in which legal proceedings may be just one tactic. Today, the average processing times for subclass 887 visas has returned to a more functional level. ⁴⁰

Delays limiting access to family reunion

Even after obtaining a permanent visa, people may still be impacted by intentional delays as they seek to reunite with family members.

For more than a decade, Australia has sought to deter people seeking asylum by limiting access to family reunion for people who arrived by boat. ⁴¹ Express policies and unwritten practices have delayed refugee family visa applications for years on end, causing people to be separated from their partners, children and other loved ones.

From 2013 until 2023, directions issued by the Minister dictated that all applications for family visas that were sponsored by people who arrived by boat were the ‘lowest processing priority’. ⁴² Considering that demand for family visas has inevitably outstripped supply, that policy meant those applications simply never progressed to the front of the visa processing queue. Thousands of people from refugee backgrounds were indefinitely separated from their families while their applications languished.

In 2016, a husband and father who had sought safety in Australia from the Taliban brought a legal challenge to the validity of the policy that was endlessly deprioritising his wife and children’s visa application. ⁴³ He argued that the Ministerial direction was inconsistent with the implied statutory obligation to determine visa applications within a reasonable time. But before the High Court of Australia could determine the matter, the Minister revoked the direction and replaced it with another which purported to guard against unreasonable delays (while continuing to deprioritise refugee-sponsored applications). ⁴⁴ This slightly improved version, however, remained in force for less than two years before the policy reverted to its original, seemingly unlawful, form. ⁴⁵ That policy continued to prevent almost all family visa applications sponsored by people who arrived by boat from progressing at all, ⁴⁶ until it was finally revoked by the Albanese government in 2023.

The impact of policies which intentionally create visa delays is stark. In 2021, the average processing time for a Partner visa for a person from the United Kingdom was 296 days. For an applicant from Afghanistan, it was 1326 days – more than four times as long. ⁴⁷ Delays were so prolonged that children frequently became adults and could no longer be included in their parent’s visa applications that had been lodged a decade earlier, their entire childhoods lost to the visa processing system. This phenomenon was so widespread it required a legislative fix in 2024. ⁴⁸

Despite the revocation of this particular policy, a significant backlog of affected family visa applications remains, stretching as far back as 2012. ⁴⁹ In the authors’ experience, lawyers acting for clients in this situation frequently find that visas are promptly issued in response to threatened or actual litigation challenging processing delays, ⁵⁰ although a one-by-one approach to compelling lawful processing leaves much to be desired.

More broadly in the family migration program, processing speeds are carefully managed to engineer the desired number of visa grants each year. It is unlawful for the Government to set a formal limit on the number of Partner or Child visas issued each year, ⁵¹ yet the Department determines annual ‘planning levels’ which are generally delivered with a high degree of accuracy, and therefore act for all intents and purposes as a cap. Although Partner visas are said to have moved to a ‘demand driven’ processing model in recent years, this has not translated to a higher number of visa grants, despite an increase in the number of applications lodged. ⁵²

Citizenship delays targeting refugees

The delays that pervade visa processing are also evident in the conferral of Australian citizenship – but only for some. Delays have long plagued applicants in particular circumstances with particular attributes, most clearly refugees who arrived by boat, as the Department uses the citizenship assessment process to re-interrogate identity and look for opportunities to cancel the permanent visas of people who have lived in Australia for years. Such delays not only destabilise the lives of long-term residents and prevent their full civic participation in the Australian community, but they have also had the effect of prolonging separation from family members overseas by preventing access to family reunion. ⁵³

Applications for Australian citizenship by conferral made by people deemed to be ‘unauthorised maritime arrivals’ on average take markedly longer to process. This trend has been evident since at least 2015: the average processing time for all citizenship applications lodged in the 2015–16 financial year was 230 days, however for people who had originally arrived by boat, the average processing time was 954 days. ⁵⁴

Following the election of the Coalition government in 2013 and a performance audit of identity verification processes in 2015, ⁵⁵ the Department began to apply more stringent ‘integrity’ assessment processes to certain citizenship applications. ⁵⁶ The new procedures were said to respond to concerns about identity fraud and national security. The Department identified people who arrived by boat and people from Afghanistan as ‘high risk’ cohorts, ⁵⁷ although no justification for the singling out of people in these circumstances has ever been publicly provided.

People in these ‘high risk’ categories were subjected to intense scrutiny regarding their identity, with everything from social media accounts to details from prior visa applications placed under the microscope again. ⁵⁸ Those protracted investigations delayed the outcome of citizenship applications, often for years. For example, one refugee lodged his application for Australian citizenship in 2015, but his application was not decided until November 2019. It was refused on the basis that the delegate was not satisfied of the applicant’s identity, ⁵⁹ but the Tribunal subsequently set aside that decision. The applicant gave evidence that the ‘exorbitant delays’ of over six years were ‘causing him great distress as he has been unable to apply for many positions, been unable to seek a wife or to finally feel truly secure’. ⁶⁰

Independent investigations have revealed systematic and discriminatory delays in citizenship processing. The Australian National Audit Office found the new identity investigation process was ‘a significant driver of the decrease in approvals throughout 2017–18 and consequently of the increased processing times and backlog of applications on hand.’ ⁶¹ In the first year of its implementation, new information of sufficient weight to refuse a citizenship application was identified in just one of the 167,421 applications flagged for enhanced screening. ⁶² In addition, the Commonwealth Ombudsman investigated at least one case in which the Department appeared to have intentionally and unlawfully delayed an applicant from taking the citizenship pledge, specifically so that identity investigations could continue. ⁶³

In 2016, two men who had been waiting 18 and 23 months respectively for their citizenship applications to be processed challenged the delays in court. ⁶⁴ Both men were originally from Afghanistan and had been granted permanent protection. After passing their citizenship tests, their applications lay dormant rather than progressing to a citizenship ceremony, having been submitted for ‘further integrity checks’ purely on the basis of their mode of arrival. Their applications were quite literally put in a drawer and not progressed for 14 months. Justice Bromberg in the Federal Court found the delays to be unreasonable, in the absence of any satisfactory explanation by the Minister for the inactivity. ⁶⁵

Despite the success of this litigation, similar cases have not followed, or at least have not progressed to judgment. Today, citizenship applications are still frequently utilised by the Department as an opportunity to re-open questions of identity and seek to cancel permanent visas issued to people years or even decades earlier. Citizenship processing times for people targeted for ‘integrity’ assessments remain disproportionately high, ⁶⁶ despite just 65 people from refugee or humanitarian backgrounds being refused citizenship on identity grounds in the 2023–24 financial year (out of a total of 11,781 citizenship refusals that year). ⁶⁷

The discriminatory focus on identity for a select group of people who have already had their identities scrutinised, assessed and verified in their earlier visa application process is unjustified, particularly when the key factor triggering the re-investigation is the person’s nationality or mode of arrival, rather than (for example) any new information about a specific person’s identity. The selective application of enhanced identity screening processes and the low number of applications ultimately refused on identity grounds, combined with evidence that at least some applications have been ignored and others intentionally and unlawfully stalled, points to the deliberate deployment of delay. In 2019, the Refugee Council of Australia expressed the view that the pattern of delays going back as far as 2015 was ‘a deliberate attempt to try to deny refugees their right to citizenship as a further deterrent or further punishment.’ ⁶⁸ The Asylum Seeker Resource Centre similarly concluded that ‘the Government is unfairly implementing their policy platform through delays in processing.’ ⁶⁹ In this context, proper scrutiny of the opaque and convoluted integrity screening process will likely only occur through future litigation.

Lawfulness of detention where unreasonable delay in visa processing

Given that processing delays can extend the period that a person remains in immigration detention, attempts have fairly been made to directly challenge the lawfulness of detention where the processing of the applicant’s visa application is alleged to have been unreasonably delayed.

In the recent case of CZA19 v Commonwealth of Australia ⁷⁰ (CZA19), the applicants sought to extend the limitation on the permissible period of detention set out in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs ⁷¹ (NZYQ) beyond detention for the purposes of removal to detention for the purposes of visa processing. Both applicants had remained detained for prolonged periods, even after the Tribunal remitted their visa applications to the Department with the finding they were owed protection obligations.

In the High Court, the applicants raised a supplementary argument that the power to detain them extended only for so long as was reasonably needed to fulfil the purpose of their detention – that is, assessing and determining their visa applications. They argued that the Minister had exceeded the reasonable time required for that task, with the result that their detention was no longer sufficiently connected to a permissible, non-punitive purpose (and was thus unconstitutional).

Six members of the High Court rejected this argument, on the basis of reasoning set out in Commonwealth v AJL20 (AJL20) ⁷² and endorsed in NZYQ, that the proper remedy for delay in these circumstances is mandamus to compel a decision on the pending visa application, rather than habeas corpus to release the applicant from detention. ⁷³ However, as Gordon J observed, the Court’s decision in AJL20 did not ultimately decide that point as that case concerned detention for the purposes of removal, rather than for the purpose of visa processing. It is also not immediately apparent why the mere availability of mandamus to compel a decision on a pending visa application should be ‘determinative of whether detention is lawful’. ⁷⁴ While pursuit of this argument in future cases may not be entirely foreclosed, it will undoubtedly be challenging for it to now succeed.

Conclusion

There are persistent patterns of delay within the migration system, reflecting policies, processes and systems that are designed to manufacture certain outcomes for particular visa and citizenship applicants. There are clear examples of delay being used as a tool to control migration outcomes (such as the imposition of informal annual caps on family visas, and the delaying of citizenship processing to enable potential visa cancellation); to extend periods of visa uncertainty (such as the unexplained doubling of processing time for people waiting to transition to permanent skilled visas); to prolong immigration detention (through the protracted assessment of character and delayed exercise of personal Ministerial powers); and to punish and deter asylum seekers (through the endless deprioritisation of family reunion applications and the unjustified additional scrutiny in citizenship applications for people arriving by boat).

Despite a legal requirement to determine visa applications within a reasonable time, the increasing politicisation of the migration system has coincided with increased delays. As illustrated by the examples discussed in this article, accountability is sometimes possible through collective public advocacy or individual litigation. But it is a serious injustice that visa applicants must mobilise or litigate – potentially repeatedly – to compel the Minister to fulfil the duty to determine a valid application within a reasonable time. Where processing timeframes are almost entirely within the control of the Minister and the Department, the current status quo places a disproportionate burden on individual applicants and their families. There is an urgent need for the Minister and the Department to stop treating the duty to determine visa applications within a reasonable time as an optional practice, and to accept it as a legal obligation.