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

This case concerned an appeal to the High Court of Australia by an applicant for a partner visa who had been refused the visa on character grounds. The dispute arose because the Ministerial Direction in force at the time of the delegate's decision (Direction 65) was different from the Direction in force at the time the Administrative Appeals Tribunal (AAT) reviewed the decision (Direction 90). The applicant argued that the Tribunal should have applied the earlier Direction 65, asserting an accrued right to have his review determined under the law as it stood when the delegate made the original decision.

The central legal issues before the High Court were whether the AAT was required to comply with the Ministerial Direction in force at the time of its decision, and whether the appellant had acquired an accrued right to have his review determined in accordance with the Direction that was in force at the time of the delegate's decision. These issues required the Court to consider the interplay between the Migration Act 1958 (Cth), the Administrative Appeals Tribunal Act 1975 (Cth), and the effect of the repeal and replacement of Ministerial Directions.

The High Court held that the AAT was bound by the Ministerial Direction in force at the time of its own decision, not the one in force at the time of the delegate's decision. The Court reasoned that s 499(2A) of the Migration Act mandates compliance with directions in force at the time of the exercise of the function or power, which in this instance was the Tribunal's review. Furthermore, the Court found that the appellant did not possess an accrued right to have his review determined under the earlier direction, as the right to review itself did not confer a right to have that review conducted under a specific, superseded legislative instrument. The Court noted that s 7(2) of the Acts Interpretation Act 1901 (Cth) did not operate to preserve the application of the earlier direction in these circumstances.

The appeal was dismissed with costs.