Delay justified while special leave application is decided?

Federal Court. Should the FCA grant peremptory mandamus, compelling the Minister to grant the Appellant a SHEV? Is consideration of the "national interest" under cl 790.227 "limited to whether or not the appellant poses an unacceptable risk of harm to the Australian community"? May the Minister justify delay where he or she is exhausting his or her rights of appellate review, including by applying to the High Court for special leave to appeal from the FCAFC's decision?

On appeal from the Federal Circuit Court, the Full Court of the Federal Court (FCAFC) made the following order on 26 November 2021:

A writ of mandamus issue directed to the respondent requiring her to determine the appellant’s application for a Safe Haven Enterprise (Class XE) Subclass 790 visa according to law.

On 14 June 2022, the Federal Court (FCA) said as follows:

1    By amended interlocutory application dated 1 June, filed 2 June 2022, the appellant sought, (not including the proposed orders as to costs):

(a)    a peremptory writ of mandamus commanding the respondent, the Minister for Home Affairs, to grant the appellant the protection visa for which he has applied (a Safe Haven Enterprise (Class XE) Subclass 790 visa (SHEV visa)), forthwith;

(b)    alternatively to (a), an order requiring the Minister to comply with order 2(b) of the orders made by Justices Collier, Katzmann and Wheelahan on 26 November 2021 on or before a date not more than 7 days after the date of this order.

27    By way of brief summary, the appellant contends that a writ of peremptory mandamus be made:

(a)    by reason of the orders made by Perry J on 20 February 2020 and the Court’s notation of the Minister’s concession, that there was no probative basis to contend that the appellant had an “ongoing risk” of reoffending such that he posed an unacceptable risk of harm to the Australian community, the Minister no longer has a “pathway” to refuse his visa under s 501;

(b)    by reason of (a), the appellant’s application for a SHEV can only be granted or refused under s 65 of the Act. All of the relevant criteria under s 65 have been satisfied and have been satisfied since 15 December 2021, and accordingly “there remains nothing further to be done in considering the application”; and

(c)    the terms of the order made by the Full Court on 26 November 2021 that a writ of mandamus issue required a return be made by 10 December 2021 (by reason of the application of the High Court Rules 2004 (Cth) given the purported insufficiency in the Federal Court Rules 2011 (Cth)) and the Minister made no return. Therefore, given the return date of the writ made was legally insufficient (by reason of there being no return date), a peremptory writ of mandamus may issue by application of the reasoning of the High Court in Plaintiff S297/2013 v Minister for Immigration and Border Protection (No 2) [2015] HCA 3; 255 CLR 231 (Plaintiff S297/2013 (No 2)).

As at the time of the FCA's judgement on 14 June 2022, the Minister had failed to make a decision regarding the appellant’s application for a SHEV visa.

Some of the questions to the FCA were as follows:

Question 1: Given that the orders made on 26 November 2021 were final in nature, is questionable that the appellant’s application to the FCA was interlocutory in nature?

Question 2: If the answer to Question 1 is 'yes', can it nevertheless be said that the FCA "is not yet functus officio given the Court retains the power in the same suit to make supplemental orders determining the rights of the parties"?

Question 3: If the answer to Question 2 is 'yes', does it necessarily follow that the FCA "has jurisdiction to make supplemental orders to aid the enforcement of the orders of the Full Court made on 26 November 2021"?

Question 4: Should the FCA grant peremptory mandamus, compelling the Minister to grant the Appellant a SHEV?

Question 5: Is consideration of the "national interest" under cl 790.227 of Schedule 2 to the Migration Regulations 1994 (Cth) "limited to whether or not the appellant poses an unacceptable risk of harm to the Australian community"?

Question 6: Was the FCAFC's order returnable within 14 days, by reason of the applicability of r 25.13.4 of the High Court Rules?

Question 7: If the answer to Question 6 is 'yes', is it necessarily the case that the "issue that arises for determination on the current application is whether relief is founded upon the appellant’s allegation that the Minister in this proceeding has not complied with an order of the Court that has not been stayed"?

Question 8: If the answer to Question 7 is 'yes', is it necessarily the case that the assessment of that issue must be carried out "by reference to all that has transpired since the 26 November 2021 order and where the duty of the Minister is considered not by reference to the specific acts or omissions taken by individuals holding the position from time to time"?

Question 9: Can it be said that, "once a delay is established which calls for explanation, then the persuasive onus might shift to the Minister to establish what that explanation was"?

Question 10: May the Minister justify delay where he or she is exhausting his or her rights of appellate review, including by applying to the High Court for special leave to appeal from the FCAFC's decision, even though "it is unsatisfactory that the Minister did not seek a stay of the Full Federal Court’s orders made on 26 November 2021" and therefore, by not seeking a stay, "the Minister deprived the appellant of the ability to seek any orders (which may have been favourable to the appellant) at the time of any consideration of a stay application"?

Question 11: Can it be said that, "regardless of an election and ministerial change, the assessment of the reasonableness of the duties of the Minister (including Acting Ministers) attach to the position, not to the individuals who, from time to time, hold that office"?

The FCA answered those questions as follows:

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