BAL19 attacked again

Federal Court. In BAL19, FCA decided that s 501 did not apply to protection visa refusals. Does BAL19 also apply to s 501A refusals? Was the decision in BAL19 plainly wrong? Can the Minister "continue to administer the law on their own understanding of what the law is (or what it “should be”), and not as settled in BAL19, or to ... administer the law in a manner which they hope will be settled by the Full Court on appeal"? Subsection 476A(1) gave FCA jurisdiction in relation to migration decisions personally made by the Minister under s 501 and its analogues, but not under s 65. Minister argued that if he failed to make a decision within a reasonable time, that would be a decision under s 65, with the result that FCA did not have jurisdiction to order mandamus in relation to the failure to make a decision within a reasonable time. Did FCA have jurisdiction by reason of the terms "in relation to" in s 476A(1)?

The questions to the FCA were as follows:

Question 1: Does the principle in BAL19 also apply to visa refusals under s 501A of the Migration Act 1958 (Cth)?

Question 2: Was the decision in BAL19 plainly wrong?

Question 3: Can the Minister "continue to administer the law on their own understanding of what the law is (or what it “should be”), and not as settled in BAL19, or to ... administer the law in a manner which they hope will be settled by the Full Court on appeal"?

Question 4: Subsection 476A(1) gave the FCA jurisdiction in relation to migration decisions personally made by the Minister under s 501 and its analogues, but not under s 65. The Minister argued that if he failed to make a decision within a reasonable time, that would be a decision under s 65, with the result that the FCA did not have jurisdiction to order mandamus in relation to the failure to make a decision under s 501 or its analogues within a reasonable time. Did the FCA have jurisdiction by reason of the terms "in relation to" in s 476A(1)?

Question 5: Was the Minister's delay in making a decision unreasonable?

Question 6: If the Minister's delay in making a decision was unreasonable, should the FCA nevertheless exercise its discretion against granting mandamus?

The FCA answered those questions as follows:

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