El Khoueiry v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 18 March 2022
• Neutral Citation: [2022] FCA 247
• Date: 18 March 2022
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

El Khoueiry v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 247

File number(s):	QUD 358 of 2021
Judgment of:	SC DERRINGTON J
Date of judgment:	18 March 2022
Catchwords:	MIGRATION – application to review decision of Administrative Appeals Tribunal – original decision by delegate of Minister not to revoke mandatory cancellation of visa under s 501CA – whether drug addiction ought to have been considered a health issue in the Tribunal’s mandatory consideration of extent of impediments pursuant to Direction 90 s 9(1)(b) – whether jurisdictional error made by Tribunal – whether decision of Tribunal was illogical and/or irrational – whether procedural fairness was denied
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B) Migration Act 1958 (Cth) ss 476A, 499, 501, 501CA
Cases cited:	AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 Matthews v Minister for Home Affairs [2020] FCAFC 146 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Home Affairs v Buadromo [2018] FCAFC 51; 267 FCR 320 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 Pallas v Minister for Home Affairs [2019] FCAFC 149 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 Tickner v Chapman [1995] FCA 1726; 57 FCR 451 Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	76
Date of hearing:	18 March 2022
Counsel for the Applicant:	Dr Jason Donnelly
Solicitor for the Applicant:	Zarifi Lawyers
Counsel for the First Respondent:	Jonathan Kay Hoyle
Solicitor for the First Respondent:	Australian Government Solicitor

ORDERS

		QUD 358 of 2021
BETWEEN:	PAUL EL KHOUEIRY Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	SC DERRINGTON J
DATE OF ORDER:	18 MARCH 2022

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the first respondent's costs, to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SC DERRINGTON J

1 Mr El Khoueiry is a citizen of Lebanon who arrived in Australia at the age of 15 on 1 December 1999. Since that time, he has held a succession of Class BB, Subclass 155 Five Year Resident Return Visas. Mr El Khoueiry’s visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs pursuant to s 501(3A) of the Migration Act 1958 (Cth) following his conviction for numerous offences, including drug trafficking, for which he was sentenced to a five-year term of imprisonment.

2 Mr El Khoueiry made representations on 5 May 2020 seeking revocation of the cancellation decision pursuant to s 501CA(4) of the Migration Act. On 14 July 2021, a delegate of the Minister decided not to revoke the cancellation decision. The Administrative Appeals Tribunal affirmed that decision on 6 October 2021 and published reasons for its decision (Tribunal’s reasons).

3 Mr El Khoueiry now seeks judicial review of that decision pursuant to s 476A of the Migration Act on the following grounds:

1. There was a constructive failure to exercise jurisdiction by the second respondent.

2. The decision of the second respondent was illogical and/or irrational.

3. The Tribunal denied the applicant procedural fairness.

4 Fundamentally, the application concerns the construction of ‘Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’ (Direction 90) in circumstances where drug use and/or dependency is at the root of the relevant offending but is not the subject of a separately articulated claim in relation to the non-citizen’s health.

5 The Tribunal accepted that Mr El Khoueiry had a serious drug addiction (Tribunal’s reasons at [103]) which had been conceded by Mr El Khoueiry to go ‘hand in hand’ with his very serious criminal conduct (Tribunal’s reasons at [108]). The critical question now raised is whether Mr El Khoueiry’s drug addiction ought to have been considered as a health issue in the context of the Tribunal’s mandatory consideration of the extent of impediments Mr El Khoueiry may face if he were to be removed from Australia to Lebanon, even though no representation had been made that he suffered from any other health issue.

6 For the reasons that follow, the appeal must be dismissed.

Legislative provisions

7 Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

. . .; and

(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

8 Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by...