Khalil v Minister for Home Affairs

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.