30 In our view, the respondent's approach is correct.
31 Second, a proper reading of the primary judgment, viewed as a whole, reflects that the primary judge did not approach the question of unreasonableness on the basis that a delay is not unreasonable provided there was an explanation for the delay (including if resourcing was the, or a part of the, explanation).
32 The primary judge did not misapply Wei. To the contrary, the appellant's reliance on [200] of the primary judgment, the high point of his case, does no more than reflect an acceptance that Wei explains that a Court can have regard to the lack of resources when considering a question of unreasonable delay, but there is a limit beyond which a delay is unreasonable regardless of resourcing being the explanation for it. The primary judge at [200] refers to Wei at 477:
Clearly, it is not for the court to dictate to the Parliament or the Executive what resources are to be made available in order properly to carry out administrative functions under legislative provisions. Equally clearly, however, the situation cannot be accepted in which the existence of a right created by the Parliament is negatived, or its value set at nought, by a failure to provide the resources necessary to make the right effective.
33 It is plain from the primary judge's detailed analysis of each IC review application that his Honour considered each delay in the context in which it occurred. An individual assessment was undertaken in relation to each, which turned on the facts of the specific review application.
34 In so doing it is apparent, as the respondent submitted, that the primary judge considered the resources available to the respondent and the workload of the respondent's office in several different ways. The respondent identified four ways. His Honour:
- (1) referred to the resource constraints of the Office as part of the context in which the reasonableness of particular case management decisions (such as decisions to allow extensions of time to agencies to provide information to the Office) were to be assessed: PJ [111], [112], [126], [160], [175]–[176];
- (2) considered that staffing constraints were relevant to the assessment of whether particular alleged failures of process had materially contributed to the delay in determining particular IC reviews: PJ [131]–[133], [146], [160];
- (3) considered the respondent's workload and competing priorities as part of the context for assessment of whether relatively short periods of inactivity indicated unreasonable delay: PJ [142], [157]–[158], [174], [192]; and
