Federal Court of Australia

Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 119

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KATZMANN J

1    I agree with McDonald J.

Associate:

Dated:    11 September 2024

REASONS FOR JUDGMENT

DOWLING J

2    I agree with McDonald J.

Associate:

Dated:    11 September 2024

REASONS FOR JUDGMENT

MCDONALD J

Introduction

3    Section 501(1) of the Migration Act 1958 (Cth) confers on the first respondent (Minister) a discretion to refuse to grant a visa to a person if they do not satisfy the Minister that they pass “the character test”. The Minister may delegate that power: Migration Act, s 496(1). A visa applicant who is dissatisfied with a decision of a delegate made under s 501(1) may apply to the Administrative Appeals Tribunal (Tribunal) for merits review of the decision. Section 499(1) of the Migration Act provides that the Minister may give written Directions to a person or body having functions or powers under the Act, relating to the performance of those functions or the exercise of those powers. Section 499(2A) imposes an obligation on a person or body to comply with a Direction made under s 499(1).

4    Over the years, Directions under s 499(1) have been made in relation to the manner in which the discretion conferred by s 501(1) of the Migration Act is to be exercised. In recent years, such Directions have been included in instruments entitled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” or similar. These instruments are commonly referred to by a number – for example, “Direction 65”. The stated purpose of each of these Directions is to “guide decision-makers” in the exercise of their functions or powers under the Migration Act. They contain a set of principles and list a number of considerations that decision-makers are required to take into account, informed by those principles.

5    The issue raised by this appeal is which Direction the Tribunal is required to comply with in circumstances where one Direction is revoked and another is made in its place, at a point in time after an application for merits review is made to the Tribunal and before it is decided.

6    The appellant, Mohamed Khalil, is an Egyptian national. He arrived in Australia on a student visa and later applied for a Partner (Temporary) (Class UK) visa (partner visa). That visa application has given rise to several decisions by delegates of the Minister, the Tribunal on merits review, judges of this Court on judicial review, and the Full Court of this Court on appeal.

7    The present appeal is brought from a decision of a judge of this Court on an application for judicial review of a decision made by the Tribunal on 26 October 2022. The Tribunal decided that the discretion in s 501(1) of the Migration Act should be exercised to refuse the grant of a partner visa to Mr Khalil. The Tribunal consequently affirmed a decision of a delegate of the Minister to that effect.

8    On the application for judicial review, Mr Khalil contended that the Tribunal’s decision was affected by jurisdictional error because the Tribunal had considered itself bound by Direction 90 when (Mr Khalil contends) it should instead have proceeded on the basis that it was bound by Direction 65. The primary judge determined that matter as a separate question and held that the Tribunal was correct to apply Direction 90. In so doing, the primary judge applied the decision of the Full Court in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461; [2016] FCAFC 48 (Jagroop). The judicial review application was subsequently dismissed.

9    For the reasons that follow, the decision of the primary judge was correct. Jagroop is not relevantly distinguishable. The decision in that case is not plainly wrong and this Court should not depart from it. Accordingly, the law as stated in Jagroop governs this case. The appeal should be dismissed.

Factual background

10    The following summary of the background facts is largely taken from the Full Court’s judgment in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [2]-[5] (Khalil 2022).

11    Mr Khalil arrived in Australia in 2007 at the age of 19. He married in 2009 but the marriage ended in divorce only two years later. In 2012, he married again, this time to an Australian citizen, and in April 2013 he applied for a partner visa. On 4 November 2014, a delegate of the Minister refused the application as the delegate was not satisfied the marriage was genuine. On review, the Tribunal set aside that decision and remitted the application to the Minister’s Department for determination of the remaining considerations.

12    Since his arrival in Australia, Mr Khalil has been convicted of a number of offences, generally escalating in severity over the years. In 2009, two years after his arrival in Australia, he was convicted of the offence of driving without authority, for which he was fined $300 and had his licence suspended for three months. On 28 November 2013, he was convicted of an offence described as “creating a false belief” and was fined $750. On 24 February 2014, he was convicted of assault occasioning bodily harm with circumstances of aggravation and was sentenced to a six-month intensive supervision order. The victim of this assault was his then-wife. On 6 August 2014, he was convicted of possessing a prohibited drug (cannabis) and was fined $250. On 11 August 2014, he was convicted of possessing a prohibited drug (cannabis) and was fined $400. On 25 August 2014, he was convicted of breaching the intensive supervision order, for which he was given a six-month suspended prison sentence and fined $500. On 12 February 2015, he was convicted of possessing a prohibited drug (cannabis) and was fined $400. On 15 January 2016, he was sentenced to a term of imprisonment of one year and four months for possessing a prohibited drug (cannabis) with intent to sell or supply.

13    On 9 November 2017, a delegate of the Minister refused to grant Mr Khalil a partner visa on the basis that the delegate was satisfied that Mr Khalil had a “substantial criminal record” and did not pass the character test for the purposes of ss 501(6)(a) and (7)(c) of the Migration Act. That decision was affirmed by the Tribunal on review. Mr Khalil applied to this Court for judicial review of the Tribunal’s decision. That application was dismissed but, following an appeal to the Full Court (Logan, Steward and Jackson JJ), the Tribunal’s decision was quashed: Khalil v Minister for Home Affairs (2019) 271 FCR 326; [2019] FCAFC 151.

14    On remittal, a differently constituted Tribunal again affirmed the delegate’s decision to refuse to grant Mr Khalil a partner visa on character grounds: Khalil and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4592. Mr Khalil again applied to this Court for judicial review. That application for judicial review was dismissed but, once again, following an appeal to the Full Court (Katzmann, Banks-Smith and Rofe JJ), the Tribunal’s decision was quashed: Khalil 2022.

15    On 26 October 2022, the Tribunal (again differently constituted) made a further decision affirming the decision of the delegate to refuse to grant Mr Khalil a partner visa in the exercise of the discretion conferred by s 501(1) of the Migration Act. In considering the exercise of the discretion, the Tribunal applied Direction 90. It is that decision from which the application for judicial review, decided by the primary judge, was brought.

The Migration Act and the Directions

16    Section 501(1) of the Migration Act states: “The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.” The rules of natural justice apply to the exercise of the power. The circumstances in which a person does not pass the “character test” are defined by ss 501(6) and (7). Section 500(1)(b) of the Migration Act provides that (subject to two exceptions that are not presently relevant) applications may be made to the Tribunal for review of decisions of a delegate under s 501.

17    Section 499 provides:

Minister may give directions

(1)     The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)     the performance of those functions; or

(b)     the exercise of those powers.

(1A)     For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)     Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)     A person or body must comply with a direction under subsection (1).

(3)     The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

(4)     Subsection (1) does not limit subsection 496(1A).

18    In the exercise of the power in s 499(1), successive Ministers have made a series of Directions relating to the exercise of powers under s 501 of the Migration Act (and also, in later Directions, s 501CA), with each new Direction revoking and replacing its predecessor. Each of the Directions to which reference is made below was expressed to apply to both delegates of the Minister exercising the power in s 501(1) and to the Tribunal exercising its merits review function in relation to decisions made by delegates under s 501(1).

19    The Ministerial Direction relating to the exercise of the power in s 501(1) of the Migration Act which was in force at the time when Mr Khalil made his application for the partner visa, on 10 April 2013, was Direction 55.

20    On 22 December 2014, the Minister made Direction 65, which was to replace Direction 55. Clauses 2 and 3 of Direction 65 stated:

2. Commencement

This Direction commences on the day after it is signed.

3. Revocation

Direction no. 55, given under section 499 of the Migration Act 1958 (the Act) and dated 25 July 2012, is revoked with effect from the date this Direction commences.

21    On 20 December 2018, the Minister made Direction 79, which was to replace Direction 65. Clauses 2 and 3 of Direction 79 stated:

2. Commencement

This Direction commences on 28 February 2019.

3. Revocation

Direction no. 65, given under section 499 of the Migration Act 1958 (the Act) and dated 22 December 2014, is revoked with effect from the date this Direction commences.

22    On 8 March 2021, the Minister made Direction 90, which was to replace Direction 79. Clauses 2 and 3 of Direction 90 stated:

2. Commencement

This Direction commences on 15 April 2021.

3. Revocation

Direction no. 79, given under section 499 of the Migration Act 1958 (the Act) and dated 28 February 2019, is revoked with effect from the date this Direction commences.

23    Since the decision of the Tribunal in the present case, two further Directions in relation to the exercise of the power in s 501(1) of the Migration Act have been made, Direction 99 and Direction 110.

24    None of the Ministerial Directions included any saving clause providing expressly for the continued application of revoked Directions in relation to visa applications, or applications for merits review by the Tribunal, that had already been made and were still under consideration at the time when the new Direction commenced.

25    It is not necessary for present purposes to discuss the differences between the Directions in detail. It is sufficient to note that, as was said in Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at 95 [8] and 112 [61], one “significant” or “critical” difference between Direction 65 and Direction 79 was the introduction of a new paragraph 9.1.1(1)(b) in Direction 79, which stated that decision-makers must have regard to, among other things, “[t]he principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed”. Further relevant differences were introduced in Direction 90, including the insertion of new subcll 8.1.1(1)(a)(ii) and (iii), new cl 8.2 in relation to family violence, and the insertion of references to family violence and serious crimes against women in cl 8.4. As noted above, Mr Khalil’s criminal record includes an offence of a violent nature against his former wife. The submissions of both parties proceeded on the basis that, if the Tribunal applied Direction 90 when it was required by law to apply Direction 65, that error would be material and would constitute jurisdictional error.

The appeal

26    Mr Khalil contends that the primary judge erred, either because Direction 79, which revoked Direction 65, “did not disapply” Direction 65 to proceedings that were already “on foot” or because he had an “accrued right” to have his application for review conducted “in compliance with Direction 65”. Mr Khalil relies upon a single ground of appeal, expressed as follows:

The learned primary judge erred in not upholding ground 1(a) of the amended originating application. His Honour should have concluded that the Tribunal erred jurisdictionally in failing to comply with ministerial direction 65 issued under s 499(1) of the Migration Act 1958 (Cth). The conclusion that the Tribunal was required to comply with ministerial direction 65 is required by:

a.    The text, context and purpose of direction 79 (which purported to revoke direction 65), and common law principles informing its interpretation; and/or

b.    Sections 7(2)(c) and/or (e) of the Acts Interpretation Act 1901 (Cth), read with s 46(1)(a) of that Act.

27    In the course of oral argument, Mr Khalil identified paragraph (b) as the “primary” argument on which he relied.

28    The Minister submitted that paragraph (a) reflected a new argument that had not been relied upon before the primary judge. It was submitted that Mr Khalil required leave to rely on that argument on appeal and that leave should not be granted.

29    The two paragraphs are both directed to the same ultimate question, namely which Direction the Tribunal ought to have applied for the purposes of determining the application for review. The two paragraphs reflect different arguments relied upon in support of the same answer to that one question. The question involves the construction and effect of the Migration Act and of the Directions made under it. In the circumstances of this case, I consider it appropriate that the Court consider all of the submissions that bear on that question. To the extent that Mr Khalil may require leave to advance any of the arguments on which he seeks to rely, I would grant that leave.

30    Mr Khalil no longer contends (as he did below) that “Direction 79 was beyond power insofar as it purported to revoke or disapply [Direction 65] to Tribunal proceedings where the earlier Direction had applied at the time of application”. He now accepts that s 499(1) “may empower the Minister to amend, revoke or supplant a direction applicable to proceedings that had already been commenced [in the Tribunal], but [had] not concluded”. However, he submits that any such Direction would have to be clearly expressed to have that effect, and that Direction 79 was not so clearly expressed.

Legislative provisions

31    As he did before the primary judge, Mr Khalil relies on ss 7(2)(c) and (e) of the Acts Interpretation Act 1901 (Cth). Insofar as it is presently relevant, or provides context necessary to understand the parts of it that are relevant, s 7 provides as follows:

Effect of repeal or amendment of Act

…

No effect on previous operation of Act or part

(2)    If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:

…

(c)    affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or

(d)    affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or

(e)    affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability …

Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.

Note: The Act that makes the repeal or amendment, or provides for the instrument to make the repeal or amendment, may be different from, or the same as, the affected Act or the Act containing the part repealed or amended.

Interpretation

(3)    A reference in subsection (1) or (2) to the repeal or amendment of an Act or of a part of an Act includes a reference to:

(a)    a repeal or amendment effected by implication; and

(b)    the expiry, lapsing or cessation of effect of the Act or part; and

(c)    the abrogation or limitation of the effect of the Act or part; and

(d)    the exclusion of the application of the Act or part to any person, subject-matter or circumstance.

(4)    A reference in this section to a part of an Act includes a reference to any provision of, or words, figures, drawings or symbols in, an Act.

32    In s 7(2)(c) of the Acts Interpretation Act, the nouns in the phrase “any right, privilege, obligation or liability” are qualified by the adjectives “acquired, accrued or incurred under the affected Act or part”. Some of the adjectives more naturally apply to some of the nouns than others. So, the section operates to preserve, for example, any “right … acquired [or] accrued”, any “privilege … acquired”, any “obligation … incurred” and any “liability ... incurred”.

33    Mr Khalil relied in particular upon s 7(2)(c) insofar as it refers to a “right” or “obligation” “acquired, accrued or incurred” and s 7(2)(e) insofar as it refers to a “legal proceeding”. For present purposes, I shall assume that “legal proceeding” includes proceedings before the Tribunal.

34    Section 13(1) of the Legislation Act 2003 (Cth) relevantly provides that:

If enabling legislation confers on a person the power to make a legislative instrument or notifiable instrument, then, unless the contrary intention appears:

(a)    the Acts Interpretation Act 1901 applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act[.]

35    In Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296; [2016] FCA 348 at 307 [54], Robertson J expressed the opinion that Direction 65 was not a legislative instrument within the meaning of the Legislation Act “primarily because the Minister is giving directions as to the exercise of a broad discretion and, properly construed, the Direction does not alter the scope or content of the power in s 501”. Rather, his Honour continued, the Direction is “a statement of policy”, which “promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike”: citing Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at 194 [54]. In MQGT Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 291 at [17], Colvin J described it as “an instrument of policy”.

36    It is not necessary to resolve the question of whether Ministerial Directions under s 499(1) of the Migration Act are legislative instruments (or notifiable instruments) because, as the parties accepted, even if they are not, the Acts Interpretation Act still applies to their interpretation as if they were an Act and as if each of their provisions were a section of an Act: Acts Interpretation Act, s 46(1)(a); Jagroop at 467 [24]-[25].

The decision in Jagroop

37    In Jagroop, a case concerning a review by the Tribunal of a delegate’s decision to cancel a visa under s 501(2) of the Migration Act, a joint judgment was delivered by Kenny and Mortimer JJ. Justice Dowsett agreed with their Honours’ reasons. Justices Kenny and Mortimer summarised the applicant’s contention in Jagroop in the following terms (at 463 [4]):

The applicant’s contention is that the Tribunal should have applied the former version of the Direction, which is entitled “Direction No. 55”. In reliance on Esber v Commonwealth (1992) 174 CLR 430, he contends he had a right to a decision by the Tribunal on review that applied Direction No 55 as the Direction which was in force at the time he made his application to the Tribunal in February 2013.

38    Their Honours (at 463 [5]) identified the “real issue” before them as:

… the application of s 7(2)(c) of the Acts Interpretation Act 1901 (Cth) and whether the applicant had acquired or accrued a right under Direction No 55, upon which the terms of s 7(2)(c) could operate.

39    The reasoning in Jagroop in relation to this issue appears at 474-8 [60]-[79]. Justices Kenny and Mortimer identified three “difficulties” with the formulation of the “accrued right” advanced by the applicant in Jagroop. 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.

40    The second reason given by Kenny and Mortimer JJ was that 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.

41    The third reason relied upon, and the basis on which Kenny and Mortimer JJ distinguished other cases, was that the manner in which the discretion is to be exercised in any given case is not determined by the content of the direction in force at the time of the decision. Their Honours said (at 477-8 [78]):

In the present case, the discretionary power in s 501 has remained the same. The contents of Direction No 65, like the contents of Direction No 55, must inform the matters the Tribunal examines. Both Directions set out prescriptively the content of many of those matters. By doing so, a question may arise regarding the relationship between the Directions and s 501, including the extent to which a Direction may validly modify the scope of a power or function provided for by the Act: Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112 at [36]-[43]. However, no submission was advanced in this proceeding regarding the validity of either Direction and the prescriptiveness just identified is a common feature of both Directions, rather than a difference between them. 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.

Jagroop is not distinguishable

42    Mr Khalil’s primary submission was that Jagroop should be distinguished. He contended that there were three respects in which the arguments on which he relied differed from those advanced in Jagroop. The three matters relied upon to distinguish Jagroop were as follows.

43    First, Mr Khalil submitted that the “right” which he had, and which accrued on the filing of the application for review by the Tribunal, was the right to have the merits review determined pursuant to s 43 of the AAT Act and s 500 of the Migration Act, in compliance with s 499(2A) and the Direction under s 499 that was in effect at that time. This description of the source of the accrued right relied upon was said to be different from that which had been identified by the applicant in Jagroop.

44    Secondly, it was submitted that the argument in Jagroop had focussed only upon the effect of s 7(2) of the Acts Interpretation Act and had not considered the common law presumption against the retrospective operation of legislation. Mr Khalil now invites the Court to apply the common law presumption as an alternative to s 7(2).

45    Thirdly, it was submitted that, in Jagroop, it had only been argued that the applicant for review in the Tribunal had an “accrued right” to have a decision made in accordance with the Direction in force at the time of the Tribunal’s decision. The questions of whether there was an “obligation incurred” within the meaning of s 7(2)(c) of the Acts Interpretation Act, or a “legal proceeding” within the meaning of s 7(2)(e), were not argued in Jagroop.

46    For the reasons that follow, I do not consider that Jagroop can be distinguished on any of these bases. The question determined by Jagroop was in substance the same ultimate question that arises in the present case: that is, whether, in determining an application for merits review of a decision under s 501(2) (or, in this case, s 501(1)) of the Migration Act, the Tribunal is required to apply the Direction in force at the time when the application for merits review is made or the Direction in force at the time when the Tribunal makes its decision. That question inevitably depends on whether an applicant for merits review has an accrued right to have the application dealt with in accordance with the Direction in force at the time of the application. To the extent that the way the arguments were developed before us differed from the way they were advanced in Jagroop, those differences may potentially shed light on whether that issue was correctly decided in Jagroop and so, in that way, may be relevant to the question of whether Jagroop should be reconsidered and overruled. However, I do not think the differences in the arguments provide a basis to distinguish the reasoning in Jagroop.

The suggested difference in focus of the arguments compared with Jagroop

47    In Jagroop, Kenny and Mortimer JJ identified the applicant’s contention, and the real issue to be decided, in terms that were quite general and did not depend on the precise source of the right (see [37]-[38] above). In Jagroop, as in this case, the substance of the contention advanced was that an applicant for merits review was entitled to have their application determined by applying the Direction that had been in force at the point in time when the application for review was lodged, even if that Direction had since been revoked, on the basis that the review applicant had, on lodging the application for review, acquired an “accrued right” to such a determination within the meaning of s 7(2) of the Acts Interpretation Act.

48    In Jagroop, Kenny and Mortimer JJ identified the nature of the “accrued right” for which the applicant in that case had argued in the following terms (at 474 [60]):

The applicant variously put the description of the “right” he had accrued under Direction No 55, but ultimately submitted it was a right to “de novo review of the exercise of the [s 501] discretion in accordance with Direction No. 55”.

49    The first reason given by Kenny and Mortimer JJ in Jagroop for rejecting the applicant’s formulation of his accrued right was that “the source of the right articulated by the applicant is not the Direction” (at [61]). In context, the point of that observation would seem to have been that, s 7(2)(c) of the Acts Interpretation Act is only engaged if the “right, privilege, obligation or liability” has been “acquired, accrued or incurred under the affected Act or part” (emphasis added) and that, since it was Direction 65 that had been revoked, for s 7(2) to apply, the relevant “right” would have to have been acquired, accrued or incurred under Direction 65 itself. Given that Mr Khalil now seeks to identify certain provisions of the Migration Act as the source of his accrued right, rather than Direction 65 itself, it is not apparent that the different emphasis of his argument assists him in relation to the first reason stated by Kenny and Mortimer JJ.

50    Justices Kenny and Mortimer identified (at 474 [61]) that “[t]he applicant’s right to have the s 501 residual discretion exercised by the Tribunal arises under ss 25 and 43 of the Administrative Appeals Tribunal Act, read with s 500 of the Migration Act”. That is not, in my view, materially different from the way Mr Khalil articulated the source of the “accrued right” in this case. Justices Kenny and Mortimer expressly recognised (at 472 [55]) that the Tribunal was legally required to comply with Directions issued under s 499(1) and that s 499(2A) was the source of that obligation.

51    Critical to the conclusion in Jagroop was the Full Court’s analysis of the nature of the “accrued right” of a person who has applied to the Tribunal for merits review in accordance with s 500(1) of the Migration Act. A person who has lodged an application for merits review within the time fixed by s 500(6A) is entitled to have the Tribunal decide that application by exercising the discretion conferred by s 501(2) of the Migration Act (or s 501(1), as the case may be). In that sense, at least, the lodging of an application has the effect of creating a “right” in the applicant. The critical issue in Jagroop, as in the present case, was whether a person who applies to the Tribunal for merits review thereby acquires an accrued right not just to have the Tribunal make a decision in the exercise of that discretion but to make a decision applying the particular Direction that is in force under s 500(1) at the time of the making of the application.

52    The primary judge in this case held (at [36]) that it followed from the reasoning of the Full Court in Jagroop that Mr Khalil did not have an accrued right to have his application for review determined in accordance with Direction 65. Although Mr Khalil’s argument was advanced as an argument about the construction of the words “revoked with effect from the date this Direction commences” in Direction 79, the primary judge held that those words would only be construed in the manner for which Mr Khalil contended if he had an accrued right of the kind which was denied by Jagroop. Thus, while a contention in the precise terms advanced by Mr Khalil had not been raised in Jagroop, the overall effect of the reasoning in Jagroop was against it (at [38]). I consider that the primary judge was correct in this conclusion.

53    Mr Khalil can only succeed if he is able to establish that Jagroop should not be followed on the critical issue of whether an applicant for merits review of a decision made under s 501 of the Migration Act has an “accrued right” to have their application determined in accordance with the Direction in force at the time when the application for merits review is made.

The common law presumption against disturbing vested rights

54    The relevant common law presumption of statutory construction is “that a statute is not to be read as disturbing substantive rights, vested as the result of past events, unless it clearly appears that it is intended to do so”: Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 582 (Windeyer J). In Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647, Dixon J described the common law presumption in the following terms (at 652):

The presumptive rule of construction is against reading a statute in such a way as to change accrued rights the title to which consists in transactions passed and closed or in facts or events that have already occurred. In other words, liabilities that are fixed, or rights that have been obtained, by the operation of the law upon facts or events for, or perhaps it should be said against, which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends, appears with reasonable certainty. But, when the alteration in the law relates to the mode in which rights and liabilities are to be enforced or realized, there is no reason to presume that it was not intended to apply to rights and liabilities already existing and its application in reference to them will depend rather upon its particular character and the substantial effect that such an operation would produce.

55    The focus of the reasons of Kenny and Mortimer JJ in Jagroop was on the operation of s 7(2) of the Acts Interpretation Act. However, their Honours (at 474 [63]) correctly described the “common law rule” as analogous to s 7(2) and quoted part of the passage from Kraljevich v Lake View & Star Ltd which I have set out above as illuminating the “underlying purpose” of provisions like s 7(2)(c). Later, in explaining the operation of s 7(2)(c), their Honours also referred to Maxwell v Murphy (1957) 96 CLR 261, another leading case regarding the common law rule (at 474 [65]).

56    There is little if any substantive difference between the common law presumption and s 7(2) of the Acts Interpretation Act in situations to which s 7(2) applies: see PD Herzfeld and TO Prince, Interpretation (2nd ed, Lawbook Co, 2020) p 242 [9.520], p 254 [9.660]. As with s 7(2) of the Acts Interpretation Act, a central question relevant to the operation of the common law presumption is whether it can be said that a person had acquired a “vested” or “accrued” right. Thus, in Ogden Industries Pty Ltd v Lucas, after referring to s 7(2) of the Acts Interpretation Act 1958 (Vic), which was relevantly in identical terms to the current s 7(2) of the Acts Interpretation Act 1901 (Cth), Windeyer J said (at 582):

It is thus I think better now to have regard to the interpretation statute than to passages in judgments in which the presumption against a statute being read so as to affect vested rights has been formulated, but remembering that the statute states in effect the common law principle, using some economy of words to do so.

57    I do not consider that Mr Khalil’s distinct reliance on the common law presumption in this case provides a basis to distinguish Jagroop.

Additional arguments framed by reference to an “obligation” and “legal proceedings”

58    As to the contention that the Court in Jagroop did not distinctly consider the concepts of “obligation” and “legal proceedings” that appear in s 7(2) of the Acts Interpretation Act, that is true. However, Mr Khalil’s reliance on those concepts does not advance his argument beyond his contention that he had an “accrued right”.

59    First, as to an “obligation”, Mr Khalil accepted in the course of oral argument that any “obligation” of the Tribunal to apply Direction 65 when determining his application for merits review was merely “the other side of the coin” to Mr Khalil’s “accrued right” to have his application for merits review determined in accordance with Direction 65. In other words, the Tribunal would only have “acquired” or “incurred” an “obligation” to determine Mr Khalil’s application for merits review in accordance with Direction 65 (as opposed to any later Direction in force at the time of the decision) if Mr Khalil had an accrued “right” to have the review determined in accordance with Direction 65, and vice versa. It makes no practical difference to the arguments considered in Jagroop to recognise that, if, but only if, Mr Khalil did have an accrued “right” to have the review decided by applying Direction 65, then the Tribunal would also have a correlative “obligation” to apply Direction 65.

60    Secondly, as to a “legal proceeding”, the words “any such right, privilege, obligation, liability, penalty, forfeiture or punishment” in s 7(2)(e) of the Acts Interpretation Act refer back to the particular rights, privileges, obligations or liabilities preserved by s 7(2)(c), and the words “any such … penalty, forfeiture or punishment” refer back to each particular penalty, forfeiture or punishment preserved by s 7(2)(d). The effect of s 7(2)(e) is to provide for the continuation of legal proceedings in which such preserved rights or obligations are in issue. No question of construing the Directions so as to preserve a “legal proceeding” can arise in this case. The proceedings before the Tribunal are provided for by s 500(1)(b) of the Migration Act and by the AAT Act, not by any Direction, and there has been no repeal or amendment of s 500(1)(b). The revocation of a Direction could not have affected the existence or continuation of the legal proceeding before the Tribunal, irrespective of whether it altered the law to be applied in that proceeding. For these reasons, I do not consider that s 7(2)(e) has much relevance to the present case.

Jagroop should not be overruled

The circumstances in which it is appropriate to overrule a previous Full Court decision

61    Mr Khalil contended that, if Jagroop was not distinguishable, it was wrongly decided. He submitted that this Court should hold that Jagroop was “plainly wrong” and should depart from it.

62    The practice of this Court and the principles to be applied when a Full Court of this Court is asked to overrule a decision of a previous Full Court were discussed by Allsop CJ at some length in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 (2021) 287 FCR 181; [2021] FCAFC 153 (FAK19) at 186-91 [2]-[22]. Some of the aspects of that discussion which are pertinent to the present case may be summarised as follows:

(1)    The Full Court of this Court is not strictly bound by previous Full Court authority but should exercise its power to overrule earlier decisions of differently constituted Full Courts “sparingly and with great care” (at 190 [18], 191 [20]).

(2)    The Court’s usual practice is to follow an earlier decision unless strongly convinced that it is wrong (at 187 [6]-[7]).

(3)    The phrase “plainly wrong” was used by the High Court in decisions that established the principle that intermediate appellate courts and trial judges should not depart from earlier authority unless convinced that it is “plainly wrong” (at 186 [2]-[3]).

(4)    The words “plainly wrong” do not have fixed content of meaning. In deciding whether it is appropriate to depart from an earlier decision, there is no exhaustive list of criteria to be applied. The Court should consider the particular circumstances of the case and balance the importance of promoting consistency and regularity with the risk of perpetuating error by too rigidly adhering to precedent (at 187 [9]).

(5)    Other considerations that are relevant when determining whether the Court should depart from earlier authority include “whether the earlier decision rested on principle carefully worked out and whether the earlier decision had been otherwise acted upon” (at 188 [10]).

(6)    Full Court decisions, and particularly those addressing questions of statutory construction, “should not be lightly interfered with” where minds may differ as to meaning and where there is no “clear or patent” error (at 189 [14]).

(7)    The Court’s power to depart from earlier authority should be exercised with caution and care, particularly in the exercise of the migration jurisdiction where promoting consistency and predictability in judicial decision-making is especially important given the field is “so heavily regulated by complex and voluminous legislation, fought over on a daily basis in a constant flow and volume of cases” (at 188 [13], 190 [18]).

63    Chief Justice Allsop concluded that it is only appropriate for a Full Court to depart from an earlier Full Court decision in circumstances where the Court is “convinced of error in the earlier decision”. His Honour emphasised the need for caution as well as sound and convincing reasons for any interference with earlier Full Court authority (at 191 [22]).

Practical considerations against overruling Jagroop

64    There are several practical considerations which, in my opinion, weigh heavily against this Court overruling Jagroop.

65    First, Jagroop was decided in 2016. Since it was decided, successive Ministers have issued four further Directions: Directions 79, 90, 99 and 110. In each case, the Minister adopted the same form of expression that had been used in cll 2 and 3 of Direction 75, the effect of which was authoritatively determined by Jagroop. It is therefore probable that each of those Directions was issued on the understanding, and with the intention, that the legal effect of the Directions would be as described in Jagroop, and thus that each new Direction would apply to all Tribunal decisions made after its commencement. Conversely, had Jagroop been decided differently, the Ministers might well have expressed the later Directions in different terms that expressly stated whether they were to be applied to all decisions made by the Tribunal after their commencement.

66    Secondly, since 2016, in reliance on the authority of Jagroop, all decisions of the Tribunal will have been made on the basis that the relevant Ministerial Direction to be applied was the Direction that was in force at the time of the Tribunal decision, and not the Direction that was in force at the time of the making of the application for merits review. If this Court were to overrule Jagroop now, that would throw doubt on the validity of a great many Tribunal decisions. The affected decisions would include decisions granting or restoring visas as well as decisions by which visas were refused or cancelled or which determined not to revoke the cancellation of a visa.

67    This is a significant consideration, suggesting that we should not overrule Jagroop unless convinced to a high degree of certainty that it was wrongly decided and that the issue is not, for example, merely one in respect of which there are reasonable arguments either way.

68    Thirdly, although Mr Khalil’s argument focussed upon the lodging of the application for review as the relevant point in time at which he contended his “right” to have the Tribunal apply a particular Direction “accrued”, the logic of the argument might be thought to raise a further question as to why any such “accrued right” should become fixed by reference to the Direction in force at the point in time when the application for review is lodged with the Tribunal. Directions made under s 499(1) bind not only the Tribunal but also delegates of the Minister considering the exercise of the power to refuse a visa under s 501(1). Given that the Tribunal on review stands in the shoes of the delegate, why should the particular Direction to be applied be fixed in time by the making of an application for review by the Tribunal, as opposed to the lodging of a valid visa application?

69    In this case, the Direction applicable at the time when Mr Khalil first made his application for a partner visa was Direction 55, not Direction 65. If Jagroop were to be overruled, it would be necessary to decide whether any “accrued right” of Mr Khalil to have a decision made in accordance with a particular Direction became vested at the point when he made the application for a partner visa or only at the point when he applied to the Tribunal. That is a large question that was only briefly touched on in oral argument in response to questions from the bench. The answer might be informed in part by a wider consideration of the character-related provisions in Part 9 Division 2 of the Migration Act, noting that the kinds of character-related decisions include decisions about the cancellation of visas (where there is no application or equivalent and the decision is made on the motion of the Minister or officers of their Department) and decisions to revoke visa cancellation decisions (where there is an invitation and representation process that has some similarities to an application).

70    One surprising consequence of accepting Mr Khalil’s argument would be that, for delegates exercising the power to refuse a visa under s 501(1) of the Migration Act, the relevant Direction could change during the course of that consideration each time a new Direction commenced, right up until the point when the delegate’s decision was made, but the Tribunal would always be bound to apply the Direction that happened to be in force at the point when application for merits review was made.

71    Another surprising consequence is that, on the lodging of an application for review, the Tribunal could be obliged to apply a particular Direction which was a different Direction from the one that the delegate had been required to apply when making the decision under review: that would occur in any case where a new Direction had commenced after the date of the delegate’s decision but before the date on which the application for review was lodged. Any proper consideration of this issue might also need to take into account the differences in the decision-making processes relating to decisions under ss 501(1) and (2) and 501CA(4), all of which are reviewable under s 500.

72    Finally, it should be noted that changes to Ministerial Directions do not necessarily operate systematically to the disadvantage of non-citizens. When a new Direction is made under s 499(1) of the Migration Act, the guidance provided by the new Direction may make it practically more likely that non-citizens who fail the character test will be refused or deprived of a visa, or it may make it more likely that they will be granted or retain a visa. Further, a new Direction may alter the guidance in a way that works to the advantage of some visa applicants and to the disadvantage of others. For example, while changes introduced by Direction 75 and Direction 90 undoubtedly worked to the disadvantage of certain non-citizens who had engaged in family violence, changes made by Direction 99 would have benefited some non-citizens who had lived in the Australian community for most of their lives, or from a very young age. Mr Khalil acknowledged that, if his argument were to be accepted, the consequence would be that a non-citizen would have an “accrued right” to have their application for merits review determined in accordance with the Direction in force at the date of application to the Tribunal, even if the application of a later Direction would have been more beneficial to that non-citizen.

Esber v Commonwealth

73    In support of his argument that Jagroop was wrongly decided, Mr Khalil relied principally upon the same authorities that were discussed in the judgment of Kenny and Mortimer JJ in Jagroop, namely Esber v Commonwealth (1992) 174 CLR 430 (Esber), Repatriation Commission v Keeley (2000) 98 FCR 108; [2000] FCA 532 (Keeley) and Lee v Secretary, Department of Social Security (1996) 68 FCR 491 (Lee).

74    Esber establishes that the concept of an accrued “right” for the purposes of s 7(2) of the Acts Interpretation Act will, in some circumstances, extend to a right to have a determination made by an administrative tribunal (at 440-1 (Mason CJ, Deane, Toohey and Gaudron JJ); contra at 448-9 (Brennan J, dissenting)). However, the nature of the decision-making function in Esber was quite different from the discretionary decision-making function provided for in s 501(1) of the Migration Act. As Kenny and Mortimer JJ observed in Jagroop (at 475 [70]), Esber concerned “the repeal of statutory provisions [which] changed an entitlement, rather than a process to secure an entitlement”.

75    Notably, the High Court in Esber referred with approval to a passage from the judgment of Hope JA in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act (1988) 14 NSWLR 685 (NSW Aboriginal Land Council). In that case, the New South Wales Court of Appeal considered the power of a Minister to grant a Land Council’s claim to particular land if the land claimed met the definition of “claimable Crown lands”. That depended on whether certain conditions were satisfied as at the date of the making of the claim. Justice Hope explained the nature of the Minister’s decision-making power in that case as follows (at 694):

[The Aboriginal Land Rights Act 1983 (NSW)] envisages that there will be an investigation by the Minister of the facts and if the facts establish that the conditions in the definition are satisfied the Minister is then bound to grant the claim. If the Minister refuses, the court on appeal again investigates the same matters but the onus is put on the Minister. As it seems to me, assuming the conditions were in fact satisfied, the Land Council did not merely have a right to have its claim investigated; it had a right to have the claim granted. If the Minister wrongly refused to grant it, it had the right to have the court grant it. The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.

76    The last sentence of this passage was quoted with approval by the High Court in Esber (at 440). It is important to appreciate the contrast that Hope JA drew (at 693-4) with other kinds of rights which he said were not the kinds of rights involved in NSW Aboriginal Land Council:

It was not a mere right existing in the members of the relevant class of the community “to take advantage of an enactment, without any act done by an individual towards availing himself of that right”: Abbott v Minister for Lands [1895] AC 425 at 431, nor was it a right to set in train an application for a grant which the Minister or on appeal, the court might, as a matter of discretion, grant or refuse. The position of an applicant for the exercise of a discretionary power was considered by the Privy Council in Director of Public Works v Ho Po Sang [1961] AC 901. There a lessee’s rights depended on the application of the provisions of the Interpretation Ordinance of Hong Kong analogous to s 8 of the Interpretation Act, … in relation to the repeal of an ordinance under which a lessee, in certain circumstances, could apply for a rebuilding certificate. It was held that the lessee did not have any right which was preserved by the ordinance because, as appears in the judgment delivered by Lord Morris (at 920):

… In the present case the position on 9 April 1957, was that the lessee did not and could not know whether he would or would not be given a rebuilding certificate. Had there been no repeal, the petitions and cross-petition would in due course have been taken into consideration by the Governor in Council. Thereafter there would have been an exercise of discretion.

The Governor would have directed either that a certificate be given or be not given, and the decision of the Governor in Council would have been final.

And (at 921-922):

… In their Lordships’ view the entitlement of the lessee in the period prior to 9 April to have the petitions and cross-petition considered was not such a “right”. On 9 April the lessee was quite unable to know whether or not he would be given a rebuilding certificate, and until the petitions and cross-petition were taken into consideration by the Governor in Council no one could know. The question was open and unresolved. The issue rested in the future. The lessee had no more than a hope or expectation that he would be given a rebuilding certificate even though he may have had grounds for optimism as to his prospects.

77    Mr Khalil submitted that the reasoning of Hope JA in NSW Aboriginal Land Council quoted at [75] above supported his argument. He submitted that, upon lodging an application for merits review with the Tribunal, an applicant acquired a “right”, albeit one that was “conditional” or “inchoate”. However, the kind of inchoate or conditional right to which Hope JA was referring was one that depended for its existence on the fact that, if certain relatively objective conditions were met, the decision-maker was legally required to make a particular decision. In such a case, the right to have that decision made is conditional on establishing the relevant facts.

78    The decision in Jagroop is consistent with the distinction drawn by Hope JA in New South Wales Aboriginal Land Council, between “a right to set in train an application for a grant which the Minister … might, as a matter of discretion, grant or refuse” and a conditional right to an exercise of power in a particular way if certain facts were established. That is essentially the same distinction that was drawn by Kenny and Mortimer JJ in Jagroop at 476 [72]-[73], in the context of their Honours’ discussion of Esber.

Contextual support from s 501CA of the Migration Act?

79    In support of the submission that he had a conditional right, Mr Khalil also drew attention to the terms of s 501CA of the Migration Act. Section 501CA(4)(b)(ii) empowers the Minister (or a delegate or, on review, the Tribunal) to revoke a decision to cancel a visa in accordance with s 501(3A) if “satisfied … that there is another reason why the original decision should be revoked”. I understood Mr Khalil to submit that s 501CA was relevant to the question of interpretation that arises in this case because it forms part of the overall scheme for character-related visa decisions which are reviewable by the Tribunal under s 500(1), and there should be a consistent approach to the “accrued rights” question in relation the review of decisions under ss 501(1) and 501CA(4). Mr Khalil submitted that s 501CA(4) confers a power which is to be exercised if there is “another reason to revoke”, rather than a “discretion” in the strictest sense of that term.

80    However, the exercise of the power in s 501CA(4) involves the formation of a subjective evaluative judgement by the decision-maker which is highly analogous to the discretion exercisable under s 501(1). The existence of “another reason” to revoke a visa cancellation decision is not an objective fact that exists independently of the decision, such that it can sensibly be said that a person who requests revocation has an “accrued right” to revocation of a visa cancellation decision, subject only to the establishment of a fact that already exists independently of the evaluative judgement to be made by the decision-maker. Indeed, in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at 598 [22], Kiefel CJ, Keane, Gordon and Steward JJ described s 501CA(4) as conferring “a wide discretionary power”: see also at 597 [20], 598 [23].

81    It is not necessary to canvas all the character-related provisions for the purpose of considering whether any of them do turn on the satisfaction of criteria that are sufficiently objective to give rise to an “accrued right” of the kind discussed in NSW Aboriginal Land Council. It is sufficient for present purposes to conclude that the structure of decision-making under s 501CA(4) of the Migration Act does not provide a compelling reason to conclude that an applicant for merits review of a decision made under that section must have an accrued right to have their application determined in accordance with the Direction in force at the time when the application is made. This is consistent with the conclusion reached by Feutrill J in Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583.

Repatriation Commission v Keeley

82    Mr Khalil relied upon Keeley, which he submitted supported the conclusion that he had an “accrued right” to have his application for review determined on the basis that Direction 65 applied. He submitted that Jagroop could not be reconciled with Keeley.

83    Keeley involved a claim for a war-widow’s pension under the Veterans’ Entitlements Act 1986 (Cth). Relevantly, s 120(1) of that Act provided that the Repatriation Commission “shall determine” that a particular injury, disease or death was “war-caused” unless satisfied beyond reasonable doubt that the injury was not war-caused. In applying s 120(1), s 120(3) required the Commission to assess whether the material before it raised a reasonable hypothesis that the relevant injury, disease or death was war-caused. Section 120A(3) provided that a hypothesis connecting an injury, disease or death with the circumstances of any particular service was “reasonable” only if there was in force a Statement of Principles “that upholds the hypothesis”. Section 196B provided for the making of Statements of Principles. The effect of the Statement of Principles was to identify circumstances in which the Commission was authorised to find that there was a reasonable hypothesis that a particular kind of injury, disease or death was war-caused. As Kiefel J put it in Keeley (at 130 [76]):

… [T]he Statements of Principles operate generally as a bar or threshhold test. The bar or limitation operates on the right to a pension itself because the Statements of Principles determine the connection between death and service as a minimum, in each case[.]

84    The claimant in Keeley (the respondent in the Full Court) had sought to establish that there was a reasonable hypothesis connecting her deceased husband’s death from multiple myeloma with his service with the Royal Australian Air Force between 1941 and 1946. Two Statements of Principles were in force during the period relevant to her application. The first Statement of Principles had included, as one circumstance in which a reasonable hypothesis connecting death by multiple myeloma to the circumstances of operation service may be raised, “being occupationally exposed to paints and/or lacquers before the clinical onset of multiple myeloma”. The second Statement of Principles, which replaced the first Statement of Principles while the claimant’s application remained on foot in the Commission, “required more — that work as a painter had been undertaken for a minimum period or periods and that the condition onset within a certain time from cessation of exposure through that work”: Keeley at 131 [77] (Kiefel J). The effect was to increase the minimum required connection and thus to “increase the bar”.

85    Mr Khalil submitted that, although Kenny and Mortimer JJ had referred to Keeley in Jagroop, they had not explained how Keeley could be distinguished. This was advanced as a basis on which this Court should depart from Jagroop.

86    On an overall reading of the judgment in Jagroop, Kenny and Mortimer JJ did identify the basis on which Keeley was distinguished. Their Honours’ discussion of Keeley commenced at 475 [67]. That discussion began with the observation that “instruments such as Statements of Principles issued under the Veterans’ Entitlements Act 1986 (Cth) have been held to attract the operation of provisions such as s 7(2) [of the Acts Interpretation Act] or in the same or relevantly similar terms”. They then (at 475 [67]-[69]) set out three passages from the judgments in Keeley which explained the role played by the Statements of Principles under the Veterans’ Entitlements Act and why the Court in Keeley had held that the change to the second Statement of Principles affected an accrued right of the claimant. Those three passages emphasised that the change in the Statement of Principles was a change to a “bar or limitation” that “operate[d] on the right to a pension itself” and “substantively reform[ed] the nature of the right that is to be determined under the Act”. Justices Kenny and Mortimer then turned to discuss Esber (at 475-6 [70]-[72]), introducing that discussion with the word “Similarly”. At 476 [72]-[73], their Honours contrasted the nature of the right possessed by the applicant in Jagroop (“the applicant had, if the Tribunal was so satisfied, an entitlement to have the residual discretion in s 501(2) exercised in his favour”) with the accrued right identified in Esber. Given the content of the discussion regarding Keeley and the way it was linked with the discussion of Esber, a fair reading of 476 [73] of Jagroop is that Kenny and Mortimer JJ were, in that paragraph, seeking to distinguish Jagroop not from only Esber but also from Keeley.

87    In any event, on close analysis, the effect of the Statements of Principles considered in Keeley was different in an important respect from the effect of the Ministerial Directions made under s 499. The role played by the Statements of Principles in the statutory scheme was to define the limits of what could amount to a “reasonable hypothesis connecting … the death of a person with the circumstances of … service rendered by the person”: that is, the Statements of Principles served to define objective circumstances in which the statutory criterion could, and could not, be met. The second Statement of Principles had altered the limits by, relevantly, taking away one of the bases on which the claimant could have established that a relevant “reasonable hypothesis” existed. Keeley was more like Esber, and was distinguishable from Jagroop (and the present case) on the basis that the change in the Statements of Principles resulted in a change to an objective criterion, and not merely a change in the principles informing the exercise of a discretion.

88    The decision in Keeley does not dictate that an applicant for merits review of a s 501(1) visa refusal decision must be taken to acquire an accrued right to have the decision of the Tribunal made in accordance with a particular Direction.

Lee v Secretary, Department of Social Security

89    Mr Khalil also relied on Lee in support of the proposition that the decision in Jagroop was wrong.

90    Lee was carefully considered by Kenny and Mortimer JJ in Jagroop. Their Honours described the decision of the majority in Lee, Moore and Cooper JJ, in the following terms (at 476-7 [74]):

In Lee … , the applicant had sought review in the Tribunal in relation to her obligation to repay social security debts accumulated as a failure to notify of changes in her circumstances. Before the review was completed, the applicable terms of the social security legislation concerning the ability of the Secretary (and therefore the Tribunal) to waive such debts changed. The new provisions gave no residual discretion to the Secretary to exercise the power of waiver in other than the circumstances set out in the new section. The previous waiver discretion was unconfined. Moore J held (at 516) that Ms Lee’s right of review in the Tribunal was a conditional right of the same kind as the majority in Esber had identified — that is, provided she could succeed on persuading the Tribunal about what was the correct or preferable decision, she was entitled to have the waiver discretion exercised in its original form — that is, in a manner unconfined by the statutory amendments. Cooper J took a similar approach, and (at 506) he said:

… where the previous law has operated on past facts and resulted in a decision under the repealed s 1237, the new sections do not as a matter of construction or statutory purpose operate to displace whatever rights have accrued in consequence of a decision of the Secretary made before 24 December 1993.

91    After referring to the dissenting judgment of Davies J in Lee, Kenny and Mortimer JJ said (at 477 [76]):

The different approaches between Davies J on the one hand and Cooper and Moore JJ on the other illustrate how much the answers to questions about the application of provisions such as s 7(2) of the Acts Interpretation Act depend on judicial analysis of the “right” accrued. Davies J, in dissent in Lee, analysed the right at a broader level – being, the right to merits review of an exercise of a discretion. Cooper and Moore JJ analysed the “right” at a great level of specificity – namely the right to have the waiver power exercised on merits review on the same basis as the primary decision.

92    It is that difference in the accepted level of analysis that explains the difference in outcome between Jagroop and Lee. That question as to the appropriate level of analysis – to be determined as a matter of statutory construction – depends on a consideration of the statutory context. It may often be debatable and the statute may provide little direct guidance. For example, perhaps unsurprisingly, the Migration Act contains no express provision articulating the nature of the right which an applicant for merits review accrues upon the lodging of the application for review.

93    In Jagroop, Kenny and Mortimer JJ placed emphasis on the fact that, in Lee, “[t]he statutory power itself had changed”, whereas that was not the case in Jagroop (at 477 [77]-[78]). This suggests that Kenny and Mortimer JJ characterised the relevant “accrued right” of an applicant for tribunal review at the level of the statute: the right which an applicant accrued was a right to the exercise of a discretionary power ultimately bounded by the terms of s 501(2) itself, as well as by the statutory obligation imposed by s 499(2A) to comply with any relevant Directions of the Minister.

94    There is some force in the submission that there were similarities in the potential practical effects on the exercise of the discretions in Lee and Jagroop. Indeed, in Jagroop, Kenny and Mortimer JJ acknowledged (at 477 [77]) that Lee was the case that afforded the most support for the “accrued right” argument. The distinction between the two cases reflects the contestable nature of the judgement required in selecting the level of generality at which the relevant “right” should be characterised in the context of a particular legislative scheme. The different conclusion reached was, however, informed by a fairly obvious difference between Lee and Jagroop: what was amended in Lee was the statutory provision conferring and defining the scope of a discretion, whereas what changed in Jagroop was a Ministerial Direction which, although binding on decision-makers, served to inform the exercise of a statutory discretion, the terms and ultimate scope of which remained unaltered.

95    It should be noted that, even if it were thought that the decisions in Lee and Jagroop could not be convincingly reconciled (a view that I should not be understood as endorsing), it would not necessarily follow that Jagroop was wrongly decided: logically it might alternatively be that it was Lee that was wrongly decided.

Nathanson v Minister for Home Affairs

96    Mr Khalil drew attention to a passage in the judgment of Kiefel CJ, Keane and Gleeson JJ in Nathanson at 95 [9], where their Honours said:

The appeal to this Court proceeded on the basis that the Tribunal was required to act in accordance with Ministerial Direction 79. It was not suggested that the appellant might have had any accrued right to consideration of his application to the Tribunal in accordance with Ministerial Direction 65 and that question is not considered further.

(Citation omitted.)

A footnote after the reference to “Ministerial Direction 65” stated: “cf Esber v The Commonwealth (1992) 174 CLR 430.”

97    I would not read this passage as doing more than identifying a potential issue that was not raised, and did not fall to be decided, in Nathanson. Notably, Kiefel CJ, Keane and Gleeson JJ made no reference to Jagroop, as might perhaps have been expected if the passage had been intended to throw doubt on the conclusion reached in that case. All that can really be said is that their Honours did not feel so strongly that the applicant obviously had an accrued right to have his application determined in accordance with Direction 65 that they were not prepared to proceed on the contrary basis. The statement in Nathanson provides no support for the view that Jagroop was wrongly decided. It is neutral.

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

98    In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (LPDT), the High Court considered the application of Ministerial Directions in connection with a review by the Tribunal of an exercise of the power in s 501CA(4) of the Migration Act. Mr Khalil relied upon the following passage from the judgment of Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ (at 618 [31]):

In the courts below, the parties and the courts approached the identification of error by considering each aspect of the Tribunal’s reasons which was challenged as a separate error. That was a misidentification of the error. As counsel for both the appellant and the Minister accepted in the course of argument, there was one error – a failure to comply with s 499(2A) of the Migration Act. Each aspect of non-compliance with s 499(2A) was a particular of the one error – a breach by a statutory decision-maker of a condition governing the making of a decision, namely statutory non-compliance with s 499(2A) of the Migration Act in failing to comply with Direction 90.

99    Incidentally, I note that the visa held by the appellant in LPDT was cancelled by a decision of a delegate made in May 2019. The appellant’s valid application for review must have been lodged soon after that – that is, before the commencement of Direction 90 on 8 March 2021. However, the correctness of Jagroop was not raised or argued in LPDT so, again, all that can be said is that the High Court proceeded on the basis that Direction 90 applied.

100    Mr Khalil sought to emphasise the fact that a material failure to comply with the applicable Ministerial Direction would amount to jurisdictional error. He submitted that Ministerial Directions issued under s 499 of the Migration Act “set the boundaries of the Tribunal’s jurisdiction such that material non-compliance with a direction will take the Tribunal outside of jurisdiction”. This was said to support the conclusion that the Directions were “substantive law, not procedure”, and that, “at the time of the application, there was a right accrued”.

101    It is of course to be accepted that decision-makers, including the Tribunal, are bound by law to apply any applicable Ministerial Direction. That requirement is imposed by s 499(2A) of the Migration Act. A material failure to comply with a clear obligation imposed by the applicable Direction will be jurisdictional error, because such obligations are inviolable limitations imposed by s 499(2A): YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39].

102    The fact that the obligations imposed by the Ministerial Directions define the limits of jurisdiction, in the sense that failure to comply with whatever Direction the Tribunal is legally required to apply amounts to a failure to comply with s 499(2A), ultimately does not itself say much about which Direction the Tribunal is legally required to apply or, in particular, whether a person who applies for review by the Tribunal has an “accrued right” to have a decision made in accordance with the Direction that was in force at the time of application. Even compliance with purely procedural requirements may be (and often is) required as a condition of the exercise of the Tribunal’s jurisdiction. It does not, however, follow that, on the filing of an application in the Tribunal, an applicant acquires an “accrued right” to a hearing in accordance with the procedural requirements applicable at the time when the application for review was lodged.

103    If anything, I think the emphasis in LPDT on non-compliance with s 499(2A) as the “one” jurisdictional error, involving “breach by a statutory decision-maker of a condition governing the making of a decision”, tends to support the view that the obligation of the Tribunal and the corresponding right of an applicant for review are properly characterised at the level of what is fixed by the statute itself, rather than by reference to the content of a particular Direction that happens to be in force at the time when the application for review is filed. That is, the relevant “condition” on which an applicant for review is entitled to insist is compliance with such Direction(s) as may be in place under s 499(1), rather than compliance with any particular obligation imposed by a particular Direction.

104    That is essentially the approach taken by Kenny and Mortimer JJ in Jagroop at 477-8 [78]-[79], and the basis on which their Honours distinguished Lee.

Limits on the capacity of Ministerial Directions to control the exercise of discretion

105    In FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185, Stewart J said (at 475 [90]) that “to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case” would “be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker”.

106    In Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94, the Full Court said (at [42]) that “[t]he Minister cannot, by a direction made under s 499, fetter the exercise of the power conferred by s 501(1) of the [Migration Act]”. In context, I understand that reference to “fettering” the exercise of power to mean that the Minister cannot restrict the scope of the statutory discretion by directing decision-makers that they must exercise the discretion in a particular way in certain cases or categories of cases, or by directing that decision-makers are to exercise the discretion otherwise than by the ultimate application of the terms of s 501 itself. See also Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516; [2023] FCAFC 116 at 530 [93].

107    The power in s 499(1) does not allow the Minister to make a direction that would have the effect of dictating a particular outcome of the exercise of the discretion conferred by s 501(2) of the Migration Act, for example by requiring decision-makers to grant a visa if identified circumstances exist or to refuse to grant a visa if other identified circumstances exist. Such a direction would be inconsistent with s 501 of the Migration Act on the ground that it would impermissibly narrow the range of outcomes contemplated by the discretion expressly conferred by s 501. Section 499(2) expressly provides what would otherwise be implicit, namely that s 499(1) does not empower the Minister to give directions that would be inconsistent with the Migration Act.

108    The revocation of a Direction made under s 499(1) cannot change the ultimate scope of the discretion to be applied by the Tribunal, although Directions clearly can, and are intended to, affect the way the Tribunal exercises that discretion in individual cases. The existence of these limitations on the scope of permissible Directions made under s 499(1) of the Migration Act provides some support for the conclusion that s 500 only confers on applicants for review a right to review in accordance with any Direction in force from time to time, and not a right to a review applying the particular Direction that was in force at the time of the application for review.

109    Although they cannot go so far as to narrow the ultimate scope of the discretion conferred by s 501(1), or to dictate its exercise in a particular manner in specified circumstances, it should be acknowledged that Ministerial Directions may have a real and substantive effect on the outcome of decision-making under s 501(1) of the Migration Act – including by requiring a decision-maker to consider certain matters which they would otherwise be free to ignore; to give more or less weight to certain matters which they would otherwise be entitled to weigh as they think fit; or to treat as serious certain matters which they might otherwise regard less seriously. I accept that the effect of Ministerial Directions cannot be described as purely “procedural”. While provisions creating “accrued” or “vested” rights have sometimes been contrasted with mere matters of procedure, there is not always a strict dichotomy between those two categories. The correct conclusion in relation to a particular statutory scheme may be that the legislation merely creates an obligation on a decision-maker to exercise a discretion in accordance with the outer limits fixed by statute (and a correlative right in an applicant to the exercise of that kind of discretion), and not to exercise the discretion in accordance with any particular principles, or any particular policy.

110    Mr Khalil was critical of the reasoning in Jagroop at 476 [73] and 478 [79], insofar as it relied on the observation that the Directions themselves were not determinative of the outcome of the Tribunal’s review. It was submitted that s 7(2) of the Acts Interpretation Act is not limited to preserving the operation of determinative provisions or instruments. I accept that s 7(2) preserves any “accrued” right. That may, potentially, include a right to have a discretion exercised according to particular criteria or giving weight to certain matters. Whether that is so is a matter of construction that depends on a consideration of the particular statutory scheme. That statutory construction exercise may involve weighing up fairly subtle indications that tend to point one way or another.

111    The question in this case, as in Jagroop, concerns the identification of the relevant right. Does an applicant for merits review before the Tribunal merely have an accrued right to the exercise of the discretion conferred by s 501(1), or do they have an accrued right to the exercise of that discretion by the application of a particular Direction?

112    Although not necessarily conclusive, the fact that the Directions in force from time to time do not – and, consistently with the Migration Act, cannot – themselves dictate the outcome of any particular exercise of the s 501(1) discretion is a relevant factor that tends in favour of a conclusion that an applicant for review does not acquire a vested or accrued right to determination in accordance with any particular Direction, as opposed to a right to the exercise of the discretion conferred by s 501(1) itself. There is a real, if fine, distinction between a statutory scheme which contemplates an instrument that will operate to confine the scope of a discretion or the range of circumstances in which a particular outcome is available (as was the case for the Statements of Principles considered in Keeley, for example), and a scheme that preserves the scope of a discretion which is fixed by statute while controlling, in certain respects, the manner in which that discretion is to be exercised. That distinction is capable of being constructive, even it is not itself conclusive. That is the contrast that was drawn in Jagroop at 476 [73] and 478 [79], in the context of distinguishing the provisions of the Migration Act from the statutory schemes considered in Keeley and Lee.

Minogue v Victoria

113    In Minogue v Victoria (2018) 264 CLR 252; [2018] HCA 27 (Minogue), a decision which post-dates Jagroop, the High Court considered whether a prisoner, Mr Minogue, had an accrued right to have his application for release on parole determined in accordance with the law applicable as at the date of that application. The plurality, comprising Kiefel CJ, Bell, Keane, Nettle and Edelman JJ, held that Mr Minogue had no accrued right to have his application for parole determined by reference to the law in force when the application was made (at 264-5 [21]) and that the question of what a successful parole application may require was “one to be answered in the light of whatever the legislation requires at the relevant time”, being “when the application for parole comes to be determined” (at 264 [20]). It was observed that “statutes providing for parole may be expected to change from time to time, to reflect changes in government policy and practice” (at 264 [20]). Likewise, Gordon J held that “a prisoner has no right, entitlement or expectation that the Board’s jurisdiction concerning an application for parole would be governed by the statutory regime in force at their ‘parole eligibility date’ or when an application for parole is submitted” (at 284-5 [105]). Justice Gageler preferred to express no view as to whether Mr Minogue had an “accrued right”, instead basing his decision solely on a specific provision which he considered sufficiently clear to displace the presumption in any event (at 281 [92]).

114    Although a decision on a review by the Tribunal of a decision under s 501 of the Migration Act is obviously of a different character from a decision considering the release of a prisoner on parole, they have some relevant features in common. Both involve a decision-making process in which an administrative decision-maker is empowered, on the making of an application by a person, to exercise a broad discretionary or evaluative power to make a binary decision, where one outcome is to the benefit of the applicant and the other is not. Both arise in contexts where the manner in which the discretion is to be considered and exercised depends on government policy, the content of which may be expected to change from time to time.

115    Notably, in Minogue, the relevant law regulating the exercise of the power to grant parole was to be found in the statute that conferred both the power and the entitlement to apply for its exercise, whereas the scheme of the Migration Act is that s 501 identifies the essential character of the power, s 500(1) confers the entitlement to apply to the Tribunal for the exercise of the power on review, and s 499(2A) requires that the discretion be exercised in accordance with guidance provided through Ministerial Directions made under s 499(1). The scheme of the Migration Act seems, if anything, more likely to support a conclusion that the content of Directions may change from time to time to reflect changes in government policy, and that an applicant has no right to a determination by the Tribunal applying the Direction in force at the point when the application for review is lodged.

116    The general reasoning in Minogue thus provides some further support for the view that the Court in Jagroop was correct to hold that an applicant for merits review by the Tribunal has no accrued right to have their application determined in accordance with the content of any particular Direction. It supports the point made at [109] above.

Predictability and consistency

117    Mr Khalil submitted that the statutory purpose of s 499, in conferring a power on the Minister to make directions, was to increase predictability and consistency in decision-making. That purpose, Mr Khalil submitted, was better served by a construction which enabled an applicant (and the Tribunal) to know from the outset, and throughout the duration of the proceedings in the Tribunal, which Direction the Tribunal would be required to apply.

118    It may be accepted that one of the purposes of the Parliament in enacting s 499 was to enable the Minister to give directions that would result in greater consistency of decision-making by delegates and by the Tribunal. That has long been recognised as one of the purposes served by the promulgation of policy: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-40; NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35 at 320 [137] (Kirby J).

119    However, the consistency and predictability which s 499 seeks to achieve is consistency and predictability between decisions to be made in like cases to which the same Direction applies.

120    Any time a new Direction is given that differs materially from an earlier Direction, that will necessarily result in some inconsistency between decisions made applying the old Direction and decisions made applying the new Direction. Once a Minister has decided that the policy guidance provided by a Direction ought to be changed, there is no reason why it should be assumed that the Minister must have intended that applications for review which were already on foot should all be decided in the same way, but decided differently from similar applications yet to be made (some of which might well be determined before some of the applications that were already on foot). A Minister might just as likely have intended that all decisions made after the new Direction came into effect should be determined by applying that Direction, and thus consistently with each other (though, necessarily, inconsistently with earlier decisions). Indeed, it might be thought improbable that a Minister would intend that decisions should continue to be made applying a Direction that no longer reflected the Minister’s favoured policy. I consider that the legislative purpose of promoting consistency and predictability in decision-making is essentially neutral.

121    Furthermore, promoting predictability and consistency in decision-making is not the only purpose served by s 499. The power conferred on the Minister by s 499 is one that may be exercised from time to time. Another obvious purpose of s 499 is to enable the Minister to influence and alter the balance of decision-making, including in response to perceived trends in decision-making which the Minister may consider undesirable. Changes in the Directions may respond to such trends in a manner designed to encourage decision-makers to consider relevant factors in a way that better aligns with the government’s policy; or they may reflect changes in government policy.

122    In his written submissions, Mr Khalil relied upon a related contextual consideration that was said to lend support to the conclusion that an applicant for merits review has an accrued right to have the review determined in accordance with the Direction in force at the time of the application for review. That contextual consideration was that the Tribunal, on a review of a character-related decision under s 500 of the Migration Act, is required to make its decision within a strict time limit: the Migration Act, s 500(6L). It was submitted that it was foreseeable that the hearing of a review proceeding might be conducted on the basis of a particular Direction but that a new Direction might come into effect while the decision is reserved, and close to the final day for the making of the decision. That, it was submitted, would create chaos, not predictability, in the review process.

123    However, when selecting the day on which a new Direction is to come into effect, it is open to a Minister to delay the commencement of the Direction having regard to these kinds of practical considerations. For example, Direction 79 was made on 28 December 2018 but was not expressed to commence until 28 February 2019. The time limit imposed by s 500(6L) is, at best, a very weak factor in favour of the conclusion that Direction 79 should be construed as not applying to any application lodged before its commencement.

Submissions drawing on the rule of law and the principle of legality

124    Mr Khalil submitted that an interpretation of Direction 79 that left Direction 65 to apply to proceedings already pending in the Tribunal was more consistent with the law’s preference for prospectivity and the rule of law. It was submitted that a person could not plan their affairs if they did not know what law might apply to them. It was submitted that the “principle of legality” ought to inform the interpretation of the Directions and that the Minister should be required “to speak clearly when they change the boundaries of the Tribunal’s jurisdiction by changing the direction applicable to proceedings pending in the Tribunal”.

125    The strength of that kind of consideration must vary according to the extent to which the “law” (or, in this case, the content of the Directions) in question has normative force as a practical guide to the conduct of individuals. In short, the fact that Directions made under s 499(1) may require decision-makers to take particular matters into account or generally to give greater weight to a particular consideration in the exercise of an overall discretion to cancel a visa is a matter that is likely to have little practical impact on the capacity of non-citizens to order their affairs. For example, it could not realistically be suggested that a person in Mr Khalil’s position might “order their affairs” differently by refraining from committing offences involving domestic violence, in reliance on the content of a particular Ministerial Direction. This consideration is entitled to little weight in determining the correct construction of the provisions of the Migration Act and the AAT Act.

126    There is some artificiality in describing the operation of a new Direction as “retrospective”, given the nature of the discretion in s 501(1) of the Act. The discretion requires consideration of the relevant conduct and circumstances of the non-citizen up to and at the point when the decision is made. The Tribunal, on an application for merits review, is to exercise the discretion in s 501(1) on the basis of the facts as they exist at the time of the Tribunal’s decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at 298-9 [34]-[38] (Kirby J), 314-16 [96]-[101] (Hayne and Heydon JJ), 327-8 [140]-[143] (Kiefel J; Crennan J agreeing); Taniela v Minister for Immigration and Border Protection (2014) 141 ALD 452; [2014] FCA 375 at 456 [26]. As in this case, much of the conduct of the non-citizen relevant to the exercise of the discretion may have occurred after the making of the visa application; and some relevant facts may only have come into existence after the lodging of the application for merits review. If anything, it might be thought somewhat incongruous to require the Tribunal to exercise the s 501(1) discretion by applying a Direction fixed at a point in time that might well pre-date some of the relevant conduct to be considered.

A further consideration

127    Another consideration potentially weighing against the conclusion that an applicant for merits review acquires an accrued right to the exercise of the s 501(1) discretion applying the Direction in force at the time of their application for review is that, although the Tribunal, on a review under s 500, may ordinarily be expected to re-exercise the s 501(1) discretion for itself, the Tribunal is not obliged to do so. Under s 43(1)(c)(ii) of the AAT Act, the Tribunal may remit the matter for reconsideration. Section 500(6L) of the Migration Act contemplates that the Tribunal may make a decision under s 43 of the AAT Act, which includes a decision to remit the matter to a delegate in accordance with s 43(1)(c)(ii). It is at least theoretically possible for the Tribunal to remit a matter to a delegate without first determining whether the discretion in s 501(1) should be exercised: cf, eg, MAH v Minister for Immigration and Border Protection [2018] AATA 416 at [127].

128    It would seem incongruous if a delegate, re-considering the exercise of the power in s 501(1) on a remittal from the Tribunal, were bound to apply the Direction that happened to be in force at the point when the visa applicant had lodged their application for merits review. On the other hand, if only the Tribunal (and not a future delegate) were bound to apply the Direction in force at the time when the application for review was lodged, the “accrued right” for which Mr Khalil contends would be quite a peculiar one: it would be a right to have that particular Direction applied if the Tribunal decided to exercise the s 501(1) discretion afresh for itself, but not otherwise.

Conclusion

129    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.

130    It follows that the primary judge was correct to answer the separate question as he did. The appeal should be dismissed with costs.

Associate:

Dated:    11 September 2024