Khalil v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 30 August 2019
• Neutral Citation: [2019] FCAFC 151
• Date: 30 August 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Khalil v Minister for Home Affairs [2019] FCAFC 151

Appeal from:	Khalil v Minister for Home Affairs [2018] FCA 1712
File number:	WAD 515 of 2018
Judges:	LOGAN, STEWARD, JACKSON JJ
Date of judgment:	30 August 2019
Catchwords:	MIGRATION - appeal from decision of Federal Court of Australia - review by Administrative Appeals Tribunal of decision to refuse visa application - application refused under s 501 of the Migration Act 1958 (Cth) - Tribunal presumed 84 day period for decision in s 500(6L)(c) of the Act applied - applicant's counsel withdrew representation immediately prior to review hearing - Tribunal under misapprehension that decision and reasons required within 84 day period - Tribunal fell into jurisdictional error in adjourning review hearing for 24 hours - appeal allowed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 33A, 34J, 39, 40, 42A, 43 Migration Act 1958 (Cth) ss 476A, 477A, 500, 501, 501G
Cases cited:	BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292; (2003) 134 FCR 308 Craig v State of South Australia (1995) 184 CLR 163 Daw v Minister for Immigration & Citizenship [2012] FCA 705 Daw v Minister for Immigration and Citizenship [2012] FCAFC 123 Hall v Minister for Immigration & Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482 Jarrett v Westpac Banking Corporation [1999] FCA 425 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Pomare v Minister for Immigration and Citizenship [2008] FCA 458; (2008) 167 FCR 494 Re Australian Railways Union; Ex parte Public Transport Commission (1993) 117 ALR 17 Somba v Minister for Home Affairs [2019] FCAFC 150 Sullivan v Department of Transport (1978) 20 ALR 323 Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 367 ALR 465 TTY167 v Republic of Nauru [2018] HCA 61; (2018) 362 ALR 246 Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327; (2003) 128 FCR 469
Date of hearing:	23 May 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	67
Counsel for the Appellant:	Mr MGS Crowley
Solicitor for the Appellant:	AUM Legal
Counsel for the First Respondent:	Mr GT Johnson SC with Ms SJ Oliver
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The second respondent filed a submitting notice save as to costs

ORDERS

		WAD 515 of 2018
BETWEEN:	MOHAMED YOUSSEF HELMI KHALIL Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	LOGAN, STEWARD, JACKSON JJ
DATE OF ORDER:	30 AUGUST 2019

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The orders of the primary judge are set aside and, in their place, it is ordered that:

   1. The application is allowed.

   2. A writ of certiorari issue directed to the second respondent, quashing its decision made on 26 February 2018.

   3. 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.

   4. 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.

REASONS FOR JUDGMENT

THE COURT:

1. The appellant, Mohamed Youssef Helmi Khalil, is a citizen of Egypt who applied for an Australian visa. His application was refused under s 501 of the Migration Act 1958 (Cth) because a delegate of the first respondent (the Minister) determined that he did not pass the character test for the purposes of that section, by reason of his criminal record.

2. Mr Khalil applied to the Administrative Appeals Tribunal for review of that decision. The Tribunal dismissed the application on 26 February 2018. Mr Khalil applied to the Federal Court of Australia for judicial review of that dismissal. The primary judge dismissed the application for judicial review, and Mr Khalil now appeals from his Honour's judgment.

3. 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

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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...