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

The applicant, Mr Khalil, sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) to refuse to grant him a partner visa under the Migration Act 1958 (Cth). The Tribunal's decision was based on the application of Ministerial Direction 90, which was in force at the time of the review, rather than Direction 65, which was in force at the time Mr Khalil made his application for the visa. The primary judge dismissed the application, and Mr Khalil appealed. The Full Court was asked to decide whether the Tribunal erred in applying Direction 90 instead of Direction 65, and whether the Court should depart from earlier authority.

The court found that the Tribunal did not err in applying Direction 90 instead of Direction 65. The court followed the decision in Jagroop, which held that the exercise of discretion by the Tribunal is not determined by the content of the direction in force at the time of the decision, but rather by its application by a particular decision-maker to the evidence and material in an individual case. The court also found that the decision in Jagroop was not plainly wrong and should not be departed from. The court rejected the argument that Mr Khalil had accrued a right to have Direction 65 applied to his case, as the source of the right of an applicant to an exercise of the discretion by the Tribunal was not the Direction itself, but sections 25 and 43 of the Administrative Appeals Tribunal Act 1977 (Cth), read with section 500 of the Migration Act. The court held that the Tribunal's obligation to comply with a Ministerial Direction was not contrary to the terms of section 499(2A) of the Migration Act, 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.

The appeal was dismissed, and the appellant was ordered to pay the first respondent's costs. The court found that the Tribunal's decision was not affected by any error of law, and that there was no basis for the Court to depart from the earlier authority in Jagroop. The court held that the exercise of discretion by the Tribunal is not determined by the content of the direction in force at the time of the decision, but rather by its application by a particular decision-maker to the evidence and material in an individual case. The court also found that Mr Khalil did not have an accrued right to have Direction 65 applied to his case, as the source of the right of an applicant to an exercise of the discretion by the Tribunal was not the Direction itself, but sections 25 and 43 of the Administrative Appeals Tribunal Act 1977 (Cth), read with section 500 of the Migration Act.