The Guardian reports that it has obtained internal emails of the department of immigration revealing that DIBP delayed making a decision on an asylum seeker’s case waiting for the government’s new temporary protection visa laws come into force.

The emails were connected with an 84-year-old Iraqi refugee and her daughter who were both found to be refugees by the Refugee Review Tribunal and have completed their health and security checks, according to a report in The Guardian.

Under section 65A of the Migration Act, DIBP is required to make decision on a protection visa application within 90 days of an RRT decision. However, the report states that the women have been waiting for DIBPs decision for over 130 days since the RRT decision.

Among the leaked DIBP emails one noted, ““although she is grant ready for her visa the appropriate legislation has not been passed for the grant; it may take a few months and could be a TPV”

A second email stated,” The applicant arrived in Australia as an Unauthorised Air Arrival (UAA) and therefore, as part of the government’s strategy to place measures on illegal arrivals receiving a permanent visa, the case is on hold until legislation and new reforms are possibly introduced later this month”

“A decision will not be made on her application until new legislation is considered in late September. This is outside our control as it is a government priority.”

If this is indeed the case, then DIBP is recklessly in breach of an unambiguous parliamentary command and clearly putting the applicants and their family at risk.

This would not be the first time DIBP has failed in its duty. In the past, there have been court challenges to the failure of the Minister to perform its duty under the law in similar circumstances. These actions have sought a writ of Mandamus - which are court orders requiring the Minister to act in accordance with the law. In SZLDG v Minister for Immigration and Citizenship [2008] FCA 11, the court indicated that the Minister had an enforceable duty to act within the timeframe.

But all of this takes time. And in the meantime, families are split and kept at risk. Katie Wrigley, principal solicitor at the Refugee Advice and Casework Service, which represents the women, told The Guardian: “Mothers should not be separated from their two-year-old children. Those accepted as refugees should not be considering returning to places where Australia has found they face a real chance of serious harm.

“This case is particularly disturbing because it involves a young child, her parents and elderly grandmother each facing difficult choices because of the recent passage of legislation which has immediate impact for them. Placing refugees in the position of having to choose between these two very difficult circumstances is unfair and unconscionable.”