Which Ministerial Direction applies when a new one comes into operation after a review application is lodged and before a decision is made? The general rule is that the Tribunal should apply the law as it exists at the time making it’s decision.
Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 119, the Applicant’s partner visa was refused on s501 character grounds. At the time he lodged his application Ministerial Direction 65 was in force. By the time of the hearing Ministerial Direction 90 had come into effect. The Tribunal proceeded to apply the new Ministerial Direction. By the time the matter was heard by the Full Court two further Ministerial Directions had been made (numbers 99 and 110).
Timing matters like this can often cause difficult issues.
Right, privilege or obligation?
Although there were several arguments, the main one was based on section 7(2)(c ) of the Acts Interpretation Act. That section says if there is a repeal or amendment of any legislation then it does not: “affect any right, privilege, obligation or liability acquires, accrued or incurred under the affected Act or part”.
In short, Mr Kahlil said that he had an accrued right to have his review conducted on the basis of Ministerial Direction 65 and not 90. One of the obstacles to success was a previous Full Court decision of Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48. Jagroop had also considered the “accrued right” argument although it was in the context of a cancellation not a refusal.
Jagroop
In Jagroop the Full Court found:
- The first was that the source of the right of an applicant to an exercise of the discretion by the Tribunal was not Direction 55 itself but ss 25 and 43 of the Administrative Appeals Tribunal Act 1977 (Cth) (AAT Act), read with s 500 of the Migration Act.
- the Tribunal’s obligation to comply with a Ministerial Direction was said to be contrary to the terms of s 499(2A), which requires a person or body to whom the direction is given to comply with the direction in operation at the time the decision is made.
- Ultimately, in the application of both Directions, each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
The judgment in Kahlil is quite detailed. There were clearly many arguments raised. Mr Kahlil failed in his attempt to convince the Full Court to distinguish Jagroop. Once that failed the argument was then about whether Jagroop should be overturned. For that to occur, the Court had to be satisfied that the decision was “plainly wrong”.
Not plainly wrong
Unfortunately, for Mr Kahlil he failed on this argument as well for two reasons. Firstly, there were a number of practical considerations which weighed against overturning Jagroop. Secondly there is a quite a detailled discussion of the bases on which Jagroop was wrong. The conclusion was that: There are sound reasons in favour of the conclusion reached by the Full Court in Jagroop. Although it may be accepted that there are reasonable arguments that can be mounted in favour of the contrary conclusion, for the reasons given above, I am not convinced that the decision in Jagroop is plainly wrong (in the sense discussed at [62] above). This is an instance where, if there is to be any departure from the conclusion reached in that earlier decision, it is not appropriate that that step be taken by this Court. This Court should decline to overrule Jagroop. [129]
Creative commons acknowledgement for the photograph.
