Federal Court. Is the exercise of the power in s 501BA(2) of the Migration Act 1958 (Cth) "subject to a requirement that it be exercised within a reasonable time having regard to the purpose for which the power was conferred and the circumstances in which it falls to be exercised by the Minister"? Is the Minister required to consider the effect of any delay in making a decision under s 501BA?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the exercise of the power in s 501BA(2) of the Migration Act 1958 (Cth) "subject to a requirement that it be exercised within a reasonable time having regard to the purpose for which the power was conferred and the circumstances in which it falls to be exercised by the Minister"?
Question 2: If the answer to Question 1 is 'yes', is the test "whether there are circumstances which a reasonable man might consider render this delay justified and not capricious"?
Question 3: If the answer to Question 1 is 'yes', it it for the applicant to show that there is unreasonable delay affecting the jurisdiction to make the decision, with the persuasive onus then shifting to the Minister to provide a reasonable explanation for a delay?
Question 4: If the answer to Question 3 is 'yes', is it relevant to the question of whether the Minister had a reasonable explanation for the delay that the power in s 501BA is to be exercised personally by the Minister?
Question 5: If the answer to Question 3 is 'yes', is it relevant to the question of whether the Minister had a reasonable explanation for the delay that the Minister and the Department have competing powers, duties and functions?
Question 6: Is the Minister required to consider the effect of any delay in making a decision under s 501BA?
The FCA answered those questions as follows: