Federal Court of Australia

Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1528

ORDERS

THE COURT ORDERS THAT:

1.    The separate question set out in the orders made on 6 July 2023 (namely, whether ground 1 of the amended originating application is established) be answered: “No”.

2.    Ground 1 of the amended originating application be dismissed.

3.    The costs of the separate question be reserved.

4.    If and to the extent necessary, the time within which any appeal from this judgment and these orders must be commenced be extended to: within 28 days after the date on which the balance of this proceeding is determined.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal): Khalil and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3563.

2    The procedural background to the present proceeding can be summarised as follows:

(a)    On 10 April 2013, the applicant made a combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa.

(b)    Between April 2013 and December 2017, a number of procedural steps took place. It is not necessary to refer to these for present purposes.

(c)    On 9 November 2017, a delegate of the first respondent (the Minister) refused the applicant’s application on character grounds pursuant to s 501(1) of the Migration Act 1958 (Cth).

(d)    On 8 December 2017, the applicant applied to the Tribunal for review of the delegate’s decision. At that time, the applicable Ministerial direction under s 499 of the Migration Act was Direction No. 65: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 65).

(e)    On 20 December 2018, the Minister made Direction No. 79: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79).

(f)    On 8 March 2021, the Minister made Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90).

(g)    Between December 2017 and October 2022, on two occasions, the Tribunal decided to affirm the delegate’s decision. On each occasion, the applicant applied to this Court for judicial review of the Tribunal’s decision. In each case, a single Judge of this Court dismissed the application for judicial review. In each case, an appeal to a Full Court of this Court was successful and the matter was remitted to the Tribunal for determination according to law.

(h)    On 26 October 2022, the Tribunal made the decision that is under review in this proceeding. The Tribunal decided to affirm the decision of the delegate. In making its decision, the Tribunal applied Direction 90.

3    By ground 1 of his amended originating application, the applicant contends (in summary) that the Tribunal fell into jurisdictional error by applying Direction 90 to his application for review. The applicant contends that the Tribunal should have applied Direction 65, being the Direction in place when he filed his application for review to the Tribunal.

4    By grounds 2 and 3 of his amended originating application, the applicant raises grounds that substantially overlap with the grounds in issue in a proceeding before the High Court of Australia, namely Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (M20/2023).

5    This proceeding was listed for hearing on 6 July 2023. Shortly before the hearing, the Minister filed an interlocutory application seeking an adjournment of the proceeding until after the High Court determined the Ismail proceeding. This was opposed by the applicant. At the outset of the hearing, I raised with the parties the possibility that I could hear ground 1 as a separate question, and defer the balance of the proceeding pending the outcome of the Ismail proceeding in the High Court. (At that time, the High Court had not yet heard argument in that proceeding.) Both parties were content with that course. Accordingly, I made orders that:

(a)    the question whether ground 1 of the amended originating application is established be determined separately from, and in advance of, the other issues in the proceeding;

(b)    the hearing of the separate question proceed today; and

(c)    subject to further order, the balance of the proceeding be stayed pending the outcome of the Ismail proceeding in the High Court of Australia.

6    Argument then proceeded in relation to the separate question.

7    For the reasons set out below, I have concluded that the separate question should be answered: “No”. It follows that ground 1 is to be dismissed.

Ground 1

8    Ground 1 of the amended originating application is as follows (omitting particulars):

The Tribunal erred jurisdictionally in failing to comply with Direction 65 issued under s 499(1) of the Act because:

a.    the Tribunal’s approach was not permitted on the correct interpretation of paragraph 3 of Direction 79; or

b.    insofar as the Tribunal’s approach was purportedly permitted by paragraph 3 of Direction 79, that paragraph is not a valid exercise of the power in s 499(1) of the Act.

9    As noted above, the applicant contends, in summary, that the Tribunal fell into jurisdictional error by applying Direction 90 to his application for review. The applicant contends that the Tribunal should have applied Direction 65, being the Direction in place when he filed his application for review to the Tribunal.

10    It is common ground that the Tribunal did apply Direction 90 in making its decision. This is plain from paragraphs 12-18 of the Tribunal’s reasons, where Direction 90 is summarised. The balance of the Tribunal’s reasons is structured around the considerations identified in Direction 90. Before the Tribunal, the applicant, who was legally represented, did not submit that the Tribunal should apply any other Direction. However, it is not suggested by the Minister that this, of itself, is a reason to reject ground 1.

11    The applicant’s outline of submissions was prepared before counsel for the applicant had become aware of the judgment of the Full Court of this Court in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461 (Jagroop), in which the Full Court rejected an argument that appears to be (at least) similar to the applicant’s present argument. Once the applicant’s counsel became aware of that decision, he promptly brought it to the attention of counsel for the Minister and indicated that the applicant would give consideration to whether he pressed ground 1. In the applicant’s reply submissions, the applicant’s counsel indicated that the applicant does press ground 1. In those submissions, and in oral submissions at the hearing, the applicant submitted that the applicant’s contentions in the present case are different from those dealt with in Jagroop and therefore the judgment in that case does not determine the present issues.

Key provisions

12    It is necessary to set out part of s 499 and certain key paragraphs of Directions 65, 79 and 90 to provide context for the issues raised by ground 1.

13    Section 499 of the Migration Act relevantly provided:

499    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).

14    Direction 65 (which was made on 22 December 2014) relevantly 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.

15    Direction 79 (which was made on 20 December 2018) relevantly 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.

(Emphasis added.)

16    Direction 90 (which was made on 8 March 2021) relevantly 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.

Consideration

17    In support of ground 1 generally (that is, both paragraphs (a) and (b)), the applicant relies on the concept of accrued rights, as discussed by Mason CJ, Deane, Toohey and Gaudron JJ in Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 (Esber) at 439-441. That case concerned a right to redeem weekly payments so as to receive a lump sum. The appellant had applied to the Tribunal for review of a decision to reject his application so as to redeem weekly payments. While the application was pending, a legislative change removed the right to redeem weekly payments. The High Court, by majority, held that the legislative change did not apply to the appellant’s application to redeem weekly payments. The appellant in Esber put his case in two ways. The applicant in the present case focuses on the High Court plurality’s treatment of the second way in which the appellant put his case. In relation to that aspect of the appellant’s case, their Honours observed (at 440) that the appellant “had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim”. Their Honours also observed (at 440-441):

Once the appellant lodged an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely “a power to take advantage of an enactment”. Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, “although that right might fairly be called inchoate or contingent”. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.

(Footnotes omitted.)

18    The applicant submits that, while Esber was concerned with s 8 (now s 7) of the Acts Interpretation Act 1901 (Cth) and the interpretation of legislation, similar principles apply to delegated legislation. The applicant submits that, although directions under s 499(1) may not be legislative instruments, there is no reason not to take a similar interpretative approach to such directions.

19    In relation to ground 1(a), the applicant submits that the better reading of the words “is revoked with effect from the date this Direction commences” in paragraph 3 of Direction 79 is that they have prospective effect, such that (the revoked) Direction 65 does not apply to any Tribunal applications initiated after the commencement of Direction 79, but that Direction 65 continues to apply to Tribunal applications commenced prior to the commencement of Direction 79. The applicant submits that there are three reasons to prefer that reading of paragraph 3 of Direction 79, namely (in summary):

(a)    that reading preserves an applicant’s accrued right to have their review conducted and/or continued according to the substantive law, as opposed to procedure, in force at the time of their application to the Tribunal;

(b)    that reading of Direction 79 also accords with the purpose of the direction-making power in s 499(1), which was to increase predictability and consistency in decision-making under the Act; and

(c)    relatedly, the prospective interpretation of Direction 79 better advances the rule of law’s preference for clearly ascertainable, and workable, laws.

20    In oral submissions in relation to ground 1(a), the applicant relied, in particular, on Esber at 440-441; Lee v Secretary, Department of Social Security (1996) 68 FCR 491 (Lee) at 505, 509; and Repatriation Commission v Keeley [2000] FCA 532; 98 FCR 108 (Keeley) at [39]-[40].

21    At the hearing, the applicant submitted that the main relevant difference between Direction 65 and Direction 79 was the introduction of paragraph 9.1.1(1)(b) in Direction 79. I note that paragraph 9.1.1(b) of Direction 79 states that decision-makers must have regard to factors including: “The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed”. The applicant noted that in Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737 this difference (also seen in paragraph 13.1.1(b) of Direction 79) was described (at [8] and [61]) as “significant” and “critical”. The applicant submitted that the differences between Direction 65 and Direction 90 were more extensive and included the introduction of paragraph 8.1.1(1)(ii) and (iii), section 8.2 (dealing with family violence) and the references to family violence and serious crimes against women in section 8.4.

22    In the alternative, the applicant submits that, if Direction 79 cannot be read to preserve the applicant’s accrued right to have his application for review determined in compliance with Direction 65, then Direction 79 goes beyond the power conferred by s 499(1) and is invalid to that extent. This is ground 1(b) of the amended originating application. The applicant submits that, while the power to give directions in s 499(1) is not subject to any explicit limitations, like any broadly framed power it may be limited by reference to statutory text, context and purpose, and by common law principles protective of accrued rights (whether framed as the principle of legality, the presumption against retrospectivity or in other ways). The applicant submits that the purpose of s 499(1) (being to enhance predictability and consistency in administrative decision-making) would be frustrated by permitting directions that disturb accrued rights.

23    Having summarised the applicant’s submissions, I now turn to consider Jagroop, a judgment of the Full Court of this Court comprising Dowsett, Kenny and Mortimer JJ. A joint judgment was given by Kenny and Mortimer JJ. Dowsett J agreed with their Honours’ reasons and proposed orders. The key background facts to that case were:

(a)    On 30 January 2013, a delegate of the Minister decided to cancel the applicant’s skilled visa pursuant to s 501(2) of the Migration Act on the basis that he did not pass the character test.

(b)    On 6 February 2013, the applicant applied to the Tribunal for review of the delegate’s decision. At this time, the applicable direction under s 499 was Direction No. 55 (Direction 55).

(c)    On 25 September 2015, the Tribunal affirmed the delegate’s decision. In so doing, the Tribunal applied Direction 65, which was signed on 22 December 2014 and commenced on the day after it was signed.

24    At [4], Kenny and Mortimer JJ summarised the applicant’s contention as follows:

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.

25    Their Honours noted at [5] that the focus of argument before the Court was on the characterisation of the Directions as either legislative or administrative in nature. However, for reasons explained by their Honours later in their judgment, that distinction did not ultimately matter. Their Honours stated that, in their opinion:

… the real issue is 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.

26    I note that s 7 of the Acts Interpretation Act relevantly provides (and provided at the time Jagroop was decided):

(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

…

27    At [19]-[22], their Honours referred to provisions of the Legislative Instruments Act 2003 (Cth) as in force at the time of the Tribunal decision in that case. Section 13(1)(a) had the effect that, if the Directions were legislative instruments (as defined), the Acts Interpretation Act applied as if the Directions were an Act. At [24], their Honours referred to s 46(1)(a) of the Acts Interpretation Act, which provided that, if a provision conferred on an authority the power to make an instrument that was neither a legislative instrument for the purposes of the Legislative Instruments Act 2003 nor a rule of court, then the Acts Interpretation Act applied to any such instrument as if it were an Act. Thus, as their Honours stated at [25], the effect of both provisions was that, for the purposes of the application of s 7(2) of the Acts Interpretation Act, unless there was a contrary intention, the operation and application of instruments of either a legislative or administrative character could be affected by the terms of s 7(2)(c). See also their Honours’ reasons at [58].

28    Their Honours outlined the steps in the applicant’s argument at [32]-[33] and explained why Direction 55 was seen as more beneficial to Direction 65 at [34] of their reasons.

29    At [45]-[57], their Honours examined Directions 55 and 65 in some detail. At [46], their Honours quoted paragraph 3 of Direction 65 (set out earlier in these reasons). At [53], their Honours quoted a paragraph from Direction 55 that appeared under the heading “General Guidance”. At [55], their Honours stated that the applicant was correct to identify, and to emphasise, the compulsory aspects of Direction 55. Their Honours continued:

First, there is a statutory obligation to apply it: see s 499(2A). Second, the terms of the Direction itself seek to impose on the decision-makers to whom it is directed mandatory matters which they must take into account in making decisions about visa cancellation and refusal under s 501 of the Migration Act. Third, and flowing from the second feature, the Direction gives precise and detailed content to those considerations, including by interpretative provisions, but also by reference to judicial decisions, references to examples and by statements which involve a qualitative judgment that decision-makers are then required to apply in the terms in which the qualitative judgment is expressed. Fourth, the Direction is expressly intended to affect the weight decision-makers generally give to the factors with which it deals. This is achieved by the division of parts of the Direction into “primary” and “other considerations”, and an instruction that primary considerations are “generally” to be given more weight. There are also instructions about weight contained within various clauses of the Direction.

30    Having described further features of Direction 55, their Honours stated at [57]:

Notwithstanding these features, as the Minister submitted, the terms of Direction No 55 do not purport to direct a decision-maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals. Further, by the use of qualifying words such as “generally” (for example, in cl 8(4) that primary considerations “should generally be given greater weight than the other considerations”), the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.

31    Their Honours’ core reasoning was at [60]-[79]. Their Honours noted at [60] that, ultimately, the applicant submitted that he had a right to de novo review of the exercise of the s 501 discretion in accordance with Direction 55. Their Honours reasoned at [61]:

The first difficulty with a formulation such as this is that, contrary to the requirements of s 7(2)(c), the source of the right articulated by the applicant is not the Direction (as the instrument which has been revoked). The 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. Second, a right of the kind asserted is contrary to the terms of s 499(2A) which require that a person or body to whom the direction is given complies, at the time it comes to make a relevant decision, with Direction No 65. Clauses 2 and 3 of Direction No 65 make this quite clear. Third, as we explain below, the content of Direction No 65 does not determine how the s 501 discretion will be exercised in any given case.

32    Their Honours explained the purpose and scope of s 7(2) at [62]-[66]. At [67]-[77], their Honours discussed Keeley, Esber and Lee. Their Honours considered Lee to be the case that provided the greatest support for the applicant’s contentions. However, at [77], they considered Lee to be distinguishable because, in that case, “the underlying basis for the exercise of the statutory discretion was altered by statutory amendment so that on merits review the Tribunal was exercising a more narrowly confined discretion. The statutory power itself had changed”. Kenny and Mortimer JJ then stated:

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.

79    Implicit in the way the applicant articulated the “right” was the proposition that Direction No 55 was in its content more favourable to the applicant than Direction No 65, with the consequence that the revocation of Direction No 55 and its replacement by Direction No 65 had an adverse effect on his interests. As already stated, however, we do not accept the submission that the revocation of Direction No 55, and its replacement with Direction No 65 caused any diminution in the content of the applicant’s rights of review in the Tribunal. There being no amendment to s 500 or s 501 of the Migration Act, those rights were preserved and protected by the Administrative Appeals Tribunal Act itself, making provision for the Tribunal’s review function. Despite the transformation of cl 9.2 (dealing with “Strength, duration and nature of the person’s ties to Australia”) from a primary consideration in Direction No 55 to become cl 10.2 and merely an “other consideration” in Direction No 65, with the concomitant loss of the benefit of cl 8(4) concerning the “generally” increased weight to be given to primary considerations, in our opinion that change did not necessarily make Direction No 65 “less beneficial” in a relevant way. Although Direction No 65 (like Direction No 55) is prescriptive, and detailed in its prescriptions, the current Direction, like its predecessor, is intended to be applied to each set of individual facts and circumstances presented to the decision-maker. The ultimate decision must therefore reflect the claims of, and evidence and information about, an individual. No matter where the factor “Strength, duration and nature of the person’s ties to Australia” is located in the Direction, the evidence about a particular individual (and the claims made) may mean that this consideration is afforded the most weight of any factor. All these are evaluative assessments for the decision-maker, which the Direction cannot determine.

(Emphasis added.)

33    Their Honours therefore concluded, at [80], that the applicant had failed to identify any right, as understood in the light of the authorities, which he had under Direction 55 and which he lost by its revocation. Accordingly, their Honours concluded that there was “nothing to which the preservatory effect of s 7(2)(c) of the Acts Interpretation Act could attach”.

34    In my view, the conclusion reached by the Full Court in Jagroop, namely that the applicant in that case did not have an accrued right to have his application for review determined on the basis of the Direction in place at the time he lodged his application for review, is equally applicable in the present case.

35    Although the Directions in issue in Jagroop (Directions 55 and 65) were not the same as the present case (Directions 65, 79 and 90), I do not see this as a point of distinction. The essential character of the Directions has remained the same. Thus, the observations made by the Full Court about Directions 55 and 65 are equally applicable to Directions 79 and 90.

36    Insofar as the applicant contends (in relation to ground 1(a)) that the words “is revoked with effect from the date this Direction commences” in paragraph 3 of Direction 79 should be construed as having prospective effect, such that Direction 65 continues to apply to Tribunal applications commenced prior to the commencement of Direction 79, it does not appear that an argument in these terms was put in Jagroop. However, the essential reasoning in Jagroop is against such a construction. As Kenny and Mortimer JJ explained at [78], while the contents of the Directions inform the matters the Tribunal examines, ultimately “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”. It follows from the reasoning of the Full Court that the applicant in the present case did not have an accrued right to have his application for review determined in accordance with Direction 65, being the Direction in place at the time he lodged his application for review. In these circumstances, I would not interpret paragraph 3 of Direction 79 in the way contended for by the applicant. Rather, I would interpret paragraphs 2 and 3 of Direction 79 as meaning that Direction 65 was revoked and replaced with Direction 79, including for applications for review that were already on foot.

37    Insofar as the applicant contends (in the alternative) that, if Direction 79 cannot be read to preserve the applicant’s accrued right to have his application for review determined in accordance with Direction 65, Direction 79 goes beyond the power conferred by s 499(1) and is invalid to that extent, it does not appear that an argument in these terms was put in Jagroop. However, in my view, such an argument should be rejected for much the same reasons as for the first contention. As stated above, it follows from the reasoning in Jagroop that the applicant in the present case did not have an accrued right to have his application for review determined in accordance with Direction 65, being the Direction in place when he lodged his application for review. Consistently with that analysis, the power in s 499(1) was not constrained in the way submitted by the applicant, and it was open to the Minister to provide, in paragraphs 2 and 3 of Direction 79, that Direction 65 was revoked and replaced with Direction 79 (including for applications for review that were already on foot).

38    In summary, although the applicant’s contentions do not appear to have been raised in Jagroop, the overall effect of the reasoning in Jagroop is against the applicant’s contentions. I am not satisfied that the Tribunal fell into jurisdictional error on the basis of ground 1(a) or (b).

Conclusion

39    It follows that the separate question should be answered “No”. There should also be an order dismissing ground 1. I consider it appropriate to reserve costs at this stage. They can be the subject of submissions at a later stage.

40    As discussed at the hearing, I will also make an order, if and to the extent necessary, that the time within which any appeal from this judgment and the orders must be commenced be extended to: within 28 days after the date on which the balance of this proceeding is determined.

Associate:

Dated:    6 December 2023