- (4) considered the resourcing constraints and volume of IC reviews before the respondent as part of the circumstances for considering whether longer periods of inactivity indicated unreasonable delay: PJ [145], [183], [194], [197], [198].
35 This approach illustrates that his Honour undertook a more nuanced consideration of resources in each assessment than that alleged by the appellant. His Honour did not merely identify that the AIC was inadequately resourced and hold it out as the justification in turn. His approach, as reflected in the above outline, was careful and considered, meeting the practical demands of assessing whether the delay was unreasonable in all of the circumstances. That his assessments mainly (or wholly) concerned considerations of resourcing is of no moment. See: [36]–[37] below; PJ at [45]–[47].
36 Third, the approach to the assessment of whether it has been established that any of the delays were unreasonable is, as the respondent contends, to be considered like any other matter. That the explanation for the delay is in whole or part due to resourcing is one factor in the assessment. That resourcing may wholly explain the delay does not alter the approach. It does not require a prior assessment of the agency's resources (see [27] above).
37 The primary judge correctly identified the principles relevant to the assessment of unreasonable delay: PJ [45]-[57]. It may be accepted that, in the absence of specified time limits, decisions required by statute are to be made within a reasonable time: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [102]. The standard of reasonableness is a matter of statutory construction: Li at [67]. It is to be assessed objectively: Thornton v Reparation Commission [1981] FCA 71; (1981) 35 ALR 485 (Thornton) at 490–491. Whether a delay is unreasonable, or whether a decision has been made within a reasonable time, is to be assessed "in all the circumstances": Thornton at 493. See also BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 (BMF16) at [26]. It is to be determined by the Court, "having regard to the circumstances of the particular case within the context of the decision-making framework established by the [relevant Act]": Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179 at [37]. An explanation for any delay is always a relevant consideration. In Thornton at 492, in a statement frequently cited with approval, Fisher J said:
The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is, on the evidence, a delay for a considered reason and not in consequence of neglect, oversight or perversity. …
