FEDERAL COURT OF AUSTRALIA
Khalil v Minister for Home Affairs [2019] FCAFC 151
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Details
- AGLC
- Khalil v Minister for Home Affairs [2019] FCAFC 151
- Case
- [2019] FCAFC 151
- Decision Date
CaseChat Overview and Summary
In the case of Khalil v Minister for Home Affairs, the applicant, Mr Khalil, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to adjourn the hearing of his application for review of a decision to refuse his visa application. The application for review arose out of a decision by the Minister to refuse Mr Khalil's visa application under s 501 of the Migration Act 1958 (Cth). Mr Khalil's counsel, Mr Rodgers, withdrew from the case on the morning of the scheduled hearing, leading to the AAT's decision to adjourn the hearing for 24 hours. The AAT was under the misapprehension that it was required to make a decision on the application for review within 84 days of Mr Khalil being notified of the decision to refuse his visa application, as provided for by s 500(6L)(c) of the Migration Act. The primary issue for the court was whether the AAT fell into jurisdictional error in adjourning the review hearing for 24 hours, given the apparent urgency to make a decision within the 84-day period.
The court found that the AAT had indeed fallen into jurisdictional error in adjourning the hearing for 24 hours. The court held that the AAT had presumed that the 84-day period for decision applied, which was not necessarily the case. The court further held that the AAT's decision to adjourn the hearing was not justified, as there was no evidence that the adjournment was necessary to ensure a fair hearing or to allow for proper consideration of the application. The court emphasised that the AAT had a discretion to adjourn a hearing, but that discretion must be exercised judiciously and in accordance with the law. In this case, the court found that the AAT had not exercised its discretion properly, as it had not considered all relevant factors and had not given adequate reasons for its decision to adjourn the hearing.
The court allowed the appeal and set aside the orders of the primary judge. The court ordered that a writ of certiorari issue directed to the AAT, quashing its decision made on 26 February 2018, and that a writ of mandamus issue directed to the AAT, requiring it to determine the applicant's application for reinstatement of his application for review according to law. The court also ordered that the Minister pay the applicant's costs of the application before the primary judge and of this appeal. The case highlights the importance of proper exercise of discretion by the AAT in making decisions about adjournments, and the need for the AAT to consider all relevant factors and give adequate reasons for its decisions.
The court found that the AAT had indeed fallen into jurisdictional error in adjourning the hearing for 24 hours. The court held that the AAT had presumed that the 84-day period for decision applied, which was not necessarily the case. The court further held that the AAT's decision to adjourn the hearing was not justified, as there was no evidence that the adjournment was necessary to ensure a fair hearing or to allow for proper consideration of the application. The court emphasised that the AAT had a discretion to adjourn a hearing, but that discretion must be exercised judiciously and in accordance with the law. In this case, the court found that the AAT had not exercised its discretion properly, as it had not considered all relevant factors and had not given adequate reasons for its decision to adjourn the hearing.
The court allowed the appeal and set aside the orders of the primary judge. The court ordered that a writ of certiorari issue directed to the AAT, quashing its decision made on 26 February 2018, and that a writ of mandamus issue directed to the AAT, requiring it to determine the applicant's application for reinstatement of his application for review according to law. The court also ordered that the Minister pay the applicant's costs of the application before the primary judge and of this appeal. The case highlights the importance of proper exercise of discretion by the AAT in making decisions about adjournments, and the need for the AAT to consider all relevant factors and give adequate reasons for its decisions.
Orders
Orders of the court
1. The appeal is allowed.
2. The orders of the primary judge are set aside and, in their place, it is ordered that:
(a) The application is allowed.
(b) A writ of certiorari issue directed to the second respondent, quashing its decision made on 26 February 2018.
(c) A writ of mandamus issue directed to the second respondent, requiring it to determine the applicant's application for reinstatement of his application for review according to law.
(d) The first respondent pay the appellant's costs of the application before the primary judge.
3. The first respondent must pay the appellant's costs of this appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
In this court and before the primary judge Mr Khalil was represented by counsel acting pro bono. We wish to record the court's gratitude for the assistance thus provided.Background Mr Khalil's application for review arose out of a decision by the Tribunal to adjourn the hearing of the application for review, for one day only. The decision was made in the following difficult circumstances, which are largely not in dispute. On 4 December 2017, notice of the decision of the Minister to refuse the visa application was communicated to Mr Khalil and he signed an acknowledgment to that effect. At all relevant times, Mr Khalil was in immigration detention on Christmas Island. Mr Rodgers filed the application for review of the decision on 7 December 2017, and acted for Mr Khalil in relation to the review until the morning of the day on which the hearing of the application was listed. On 10 January 2018 the Tribunal listed the matter for hearing on Monday, 19 February 2018. Early on the morning of 19 February, Mr Rodgers emailed Mr Khalil saying that he (Mr Rodgers) would not be able to attend the hearing because of a commitment in the District Court of Western Australia. Mr Rodgers also emailed the Tribunal and the solicitors for the first respondent on the same morning asking 'that the hearing be deferred' and also saying 'given the position i [sic] am in with the current trial, I would have great difficulty in assisting Mr Khalil in the near future and I apologise for this, as I have been assisting Mr Khalil on a pro bono basis given that he is on Christmas Island and as far as I know does not have the means to pay for legal representation'. Mr Khalil disputes the claim that Mr Rodgers was acting pro bono but it is not necessary to make a finding about that for the purposes of this appeal. The solicitors for the Minister emailed the Tribunal very soon afterwards indicating that, to the extent that Mr Rodgers' email was a request for an adjournment of the hearing, the request was opposed. The email said that under s 500 of the Migration Act, the Tribunal was required to make any decision by 26 February 2018. Correspondence was exchanged directly between Mr Rodgers and the Minister's solicitors at around the same time, to similar effect. Both Mr Khalil and the Tribunal were thus in an invidious position. Section 500(6L) of the Migration Act provides as follows:If:(a)an application is made to the Tribunal for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and(b)the decision relates to a person in the migration zone; and(c)the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Therefore, whether or not the Tribunal was in error in failing to determine whether the 84 day period had started to run, we do not consider that it was in error in proceeding on the assumption that it had. Even if the Tribunal had looked into the matter, that would not have made any difference to its approach to the adjournment of the hearing. We would not uphold ground 4.Effect of quashing the Tribunal's decision In the course of the appeal the court raised the question of whether, if the decision that the Tribunal made on 26 February 2018 were quashed, the effect of s 500(6L) of the Migration Act will be that the Tribunal will be taken to have affirmed the delegate's decision anyway, so that there would be no utility in granting judicial review. A Full Court constituted by the same judges as have heard the present appeal considered the construction of s 500(6L) in that regard in Somba v Minister for Home Affairs [2019] FCAFC 150 and the reasons for the decision have been published on the same day as these reasons. The issues are not precisely the same. In Somba the question was whether a decision to dismiss an application under s 42A of the AAT Act for default in appearance meant that s 500(6L)(c) was no longer engaged, even though the application for review was subsequently reinstated under s 42A(9). In this appeal, the question is whether the Tribunal's decision (made under s 43 of the AAT Act) means that s 500(6L)(c) is no longer engaged, even after the decision is quashed by the issue of a writ of certiorari. In this appeal both the appellant and the Minister submitted that s 500(6L) would have no further application if the court were to quash the Tribunal's decision. It therefore suffices to say that that submission is consistent with the construction of s 500(6L) set out in Somba, and with the approach that Finkelstein J took in Hall v Minister for Immigration & Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387 at [30]‑[31]. The quashing of the Tribunal's decision here will not result in s 500(6L) being engaged or re‑engaged, and no deemed affirmation of the delegate's decision will arise under that provision.Orders The appeal should be allowed. The orders of the primary judge should be set aside and, in their place, it should be ordered that:(a)The application is allowed.(b)A writ of certiorari issue directed to the second respondent, quashing its decision made on 26 February 2018.(c)A writ of mandamus issue directed to the second respondent, requiring it to determine the applicant's application for reinstatement of his application for review according to law.(d)The first respondent pay the appellant's costs of the application before the primary judge. The first respondent should also be ordered to pay the appellant's costs of this appeal.
Ratio Decidendi
Legal Principle Established
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