Issue revolves around interpretation of Migration Act provision
Australia’s High Court has dismissed the appeal of an Egyptian national challenging a visa refusal upon finding that the Federal Court’s Full Court correctly construed s 499(2A) of the Migration Act and rejected the claim regarding an accrued right.
In Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, [2025] HCA 33, a delegate of the minister administering the Migration Act 1958 exercised the discretion under s 501(1) to deny the appellant’s request for a visa based on character grounds.
The appellant applied to the then Administrative Appeals Tribunal to review the visa refusal. The issue was whether the tribunal had to follow the directions in force at the time of its decision or those in force at an earlier point in time.
The Full Court determined that the tribunal had to adhere to the directions in force at the time of its decision.
On appeal, the appellant alleged that the earlier time was either the time of making the decision under review or the time of making the application for review.
The High Court of Australia dismissed the appeal with costs.
The High Court ruled that the Full Court correctly construed s 499(2A) of the Migration Act – read with Direction 90, in force at the time of the tribunal’s decision – as requiring the tribunal’s compliance with the direction in force at the time of its decision.
The High Court added that the Full Court appropriately rejected the appellant’s argument that he accrued a right to the tribunal’s determination of his review in line with earlier directions, such that s 7(2) of the Acts Interpretation Act 1901 (AIA) had no relevant operation.
First, the High Court addressed the general principle. The High Court noted that s 43(1) of the Administrative Appeals Tribunal Act 1975 empowered the tribunal to exercise “all the powers and discretions that are conferred by any relevant enactment” on the original decision-maker.
The High Court said this power showed that the tribunal should apply the laws governing the exercise of powers and discretions in force at the time of its decision.
The High Court cited Esber v The Commonwealth, [1992] HCA 20, which provided that, if the issue was whether to grant an applicant a right on a rehearing at first instance, the court should apply the law as it then existed, rather than the law as it existed at an earlier time.
Next, the High Court held that s 499(2A) of the Migration Act conformed to the general principle stated in Esber.
The High Court explained that s 499(2A) applied to the tribunal directly, not derivatively due to the tribunal standing in the delegate’s shoes, and required the tribunal to follow the direction in force at the time of exercising the relevant function or power.
The High Court noted that, through s 499(2A), the direction-making power bestowed by s 499(1) ensured the consistent application of government policy and practice, which was expected to change sometimes.
In this case, because Direction 90 took effect on 15 April 2021, the High Court found that the tribunal that made the October 2022 decision had to follow Direction 90 as the direction then in force, not Direction 65, which lacked legal effect under s 499(2A) since its revocation date.
Lastly, the High Court said the appellant could not assert an accrued right to the tribunal’s review in line with Direction 65 or rely on s 7(2) of the AIA.
The High Court noted that s 7(2) of the AIA provided that, if an Act repealed or amended another Act partly or entirely, the repeal or amendment would not affect:
This provision also allowed the institution, continuation, or enforcement of the investigation, legal proceeding, or remedy as if there had been no repeal or amendment.
The High Court further noted that, under s 46(1)(a) of the AIA, if a provision conferred a power to make an instrument apart from a legislative instrument, the AIA would apply to any instrument made as if it were an Act.
