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

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.