Can DHA delay decision while appealing judgement?

Federal Court. In BAL19, FCA decided that s 501 and PIC 4001 do not apply to protection visa applications. Can DHA delay making a decision on protection visa applications on the basis that it disagrees with BAL19 and is appealing that decision? Was FCA's decision in BAL19 plainly wrong? Does s 501(3A) apply to the cancellation of protection visas? Does s 501 operate independently from s 65? If the delay is not justified and BAL19 was not plainly wrong, should FCA issue a writ of mandamus, requiring DHA to consider according to law the protection visa application on the basis that s 501(1) does not empower the refusal of the application?

The questions to the Federal Court (FCA) were as follows:

Question 1: Can the Department delay making a decision on a protection visa application on the basis that it is waiting for the outcome of the BAL19 appeal?

Question 2: Was the decision of the Federal Court (FCA) in BAL19 plainly wrong to the extend that it held that s 501 of the Migration Act 1958 (Cth) does not apply to protection visa applications?

Question 3: Was the decision of the FCA in BAL19 plainly wrong to the extend that it held that Public Interest Criterion 4001 of Schedule 4 to the Migration Regulations 1994 (Cth) does not apply to protection visa applications?

Question 4: Does s 501(3A) apply to the cancellation of protection visas?

Question 5: Does s 501 operate independently from s 65?

Question 6: If the answer to both Questions 1 and 2 is "no", should the FCA issue a writ of mandamus, requiring the Minister or his delegate to consider according to law the applicant's application for a protection visa on the basis that s 501(1) does not empower the refusal of the application?

The FCA answered those questions as follows:

The remainder of this article is only available to Case Law and Platinum subscribers.

Read our Terms & Conditions and upgrade below:

Monthly Subscriptions

Premium
Basic Content
Premium Content
-
-
$ 29 /month
Subscribe
Case Law
Basic Content
-
Case Law Content
-
$ 49 / month
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 9 / month
$ 69 / month
Subscribe

Annual Subscriptions

Premium
Basic Content
Premium Content
-
Save $ 49 / year
$ 299 / year
Subscribe
Case Law
Basic Content
-
Case Law Content
Save $ 89 / year
$ 499 / year
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 237 / year
$ 699 / year
Subscribe

 

Where GST applies, the above amounts are inclusive of GST.

Content Types

Basic Content includes basic news, some media articles and selected announcements.

Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.

Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.

Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.

If you already have a Case Law or Platinum subscription, click on 'Login' below.