AFX17 v Minister for Home Affairs (No 2) [2020] FCA 858

AFX17 v Minister for Home Affairs (No 2) [2020] FCA 858

Because the Minister intentionally stated that no visa decision would be made pending the appeal, despite the Court's earlier reasons that such a course was not open and contrary to BAL19, an order was necessary to ensure that the First Respondent administered the Migration Act in accordance with law. The Court therefore required the First Respondent to make a decision by 4.00pm on 26 June 2020 on the basis that s 501A(2)(a) of the Migration Act 1958 (Cth) does not empower refusal of the application.

Jurisdiction
Australia
Judgment Date
17 June 2020
Procedural Posture
Migration; Practice and Procedure / Application Pursuant to Liberty to Apply After Judgment and Orders Made on 10 June 2020, Seeking an Order Requiring a Visa Decision Within a Specified Time
Outcome
Order made requiring the First Respondent to decide the Applicant's Safe Haven Enterprise (Class XE) visa application by 4.00pm on 26 June 2020; liberty to apply granted; First Respondent ordered to pay the Applicant's costs.
Legal Topics
['s 501 a of the Migration Act 1958 (cth)' 'safe Haven Enterprise (class Xe) Visa' 'protection Visa Refusal' 'mandamus' 'ministerial Delay' 'contempt of Court' 'model Litigant']
['administrative and Constitutional Law and Human Rights' 'migration' 'practice and Procedure'] ['s 501 a of the Migration Act 1958 (cth)' 'safe Haven Enterprise (class Xe) Visa' 'protection Visa Refusal' 'mandamus' 'ministerial Delay' 'contempt of Court' 'model Litigant']

Case Brief

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Procedural Posture

Migration; Practice and Procedure / Application Pursuant to Liberty to Apply After Judgment and Orders Made on 10 June 2020, Seeking an Order Requiring a Visa Decision Within a Specified Time

Legal Issues

  1. 1 ["Whether an order should be made requiring the First Respondent to decide the Applicant's Safe Haven Enterprise (Class XE) visa application by a specified time." 'Whether the Respondent Ministers could defer making a decision pending an appeal on the basis that s 501A was available to refuse the visa application.' "Whether continued non-compliance with the Court's stated view of the law and any order made could expose a party, including a Minister, to contempt of court."]

Ratio Decidendi

Because the Minister intentionally stated that no visa decision would be made pending the appeal, despite the Court's earlier reasons that such a course was not open and contrary to BAL19, an order was necessary to ensure that the First Respondent administered the Migration Act in accordance with law. The Court therefore required the First Respondent to make a decision by 4.00pm on 26 June 2020 on the basis that s 501A(2)(a) of the Migration Act 1958 (Cth) does not empower refusal of the application.

Court Disposition

Order made requiring the First Respondent to decide the Applicant's Safe Haven Enterprise (Class XE) visa application by 4.00pm on 26 June 2020; liberty to apply granted; First Respondent ordered to pay the Applicant's costs.

Orders

  • ["On or before 4.00pm on 26 June 2020 the First Respondent is to make a decision in respect to the Applicant's application for a Safe Haven Enterprise (Class XE) visa made on or about 19 December 2016 on the basis that s 501A(2)(a) of the Migration Act 1958 (Cth) does not empower the refusal of the application."...