Federal Court of Australia

El Khoueiry v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 136

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs of and incidental to the appeal, such costs to be taxed if not otherwise agreed.

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, Mr El Khoueiry, was born in Spain and is a citizen of Lebanon. He arrived in Australia in December 1999 at the age of 15 with his mother and two younger brothers. Since arriving in Australia, the appellant has held a number of visas. Relevantly, on 23 April 2020, his Class BB Subclass 155 – Five Year Resident Return visa was mandatorily cancelled by the first respondent (Minister) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (cancellation decision).

2    On 5 May 2020, the appellant applied to the Minister for revocation of the cancellation decision pursuant to s 501CA of the Migration Act. On 14 July 2021 a Delegate of the Minister decided not to revoke the cancellation decision (non-revocation decision). The appellant sought review of the non-revocation decision in the Administrative Appeals Tribunal (Tribunal); however, on 6 October 2021, the Tribunal affirmed the non-revocation decision.

3    The appellant sought judicial review of the Tribunal’s decision in the Federal Court. By judgment given in El Khoueiry v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 247, the Court dismissed his application. The appellant now appeals the decision of the primary Judge. In particular, the appellant contends that the Tribunal, and the primary Judge, erred in respect of the consideration given by the Tribunal to his health and the extent of impediments to his removal to Lebanon in terms of Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction).

4    For the reasons that follow, we consider that the appeal should be dismissed.

Background

5    The appellant has an extensive criminal record in Queensland, South Australia and New South Wales. Since 2005, these offences have been many and of increasing seriousness, including:

    Enter premises and commit indictable offence;

    Drive with excess blood alcohol;

    Drive on road while licence was suspended;

    Obtain money by deception under $2,000;

    Fighting, giving false or misleading personal details to officer, drive unregistered motor vehicle on the road, fail to answer truly, drive uninsured motor vehicle on road;

    Fail to comply with bail agreement;

    Drive under disqualification or suspension;

    Breach of bond (x 3);

    Due care – basic offence, unauthorised person drive motor vehicle on road, drive with excess blood alcohol;

    Use amphetamine;

    Possess amphetamine;

    Fail to answer bail;

    Sell a controlled drug;

    Cultivate up to prescribed number of cannabis plants;

    Possess prescribed equipment;

    Traffic (type unknown) in a controlled drug;

    Drive under disqualification or suspension;

    State false personal details;

    Possess or use a prohibited weapon;

    Fail to comply with bail agreement;

    Drive unregistered vehicle on a road;

    Contravene defect notice code of practice;

    Give false or misleading personal details to officer;

    Drive uninsured motor vehicle on road;

    Basic offence: dishonestly take property without consent;

    Aggravated offence – possess firearm without licence;

    Non-aggravated offence – possess firearm without licence;

    Fail to comply with regulations, fail to keep class a or b firearm secured;

    Fail to comply with regulations, fail to keep class c, d or h firearm secured;

    Fail to store ammunition separately from firearms;

    Carry offensive weapon;

    Possess prescribed equipment;

    Unlawful possession (x 2);

    Breach of community services order (x 2);

    Drive motor vehicle with meth amphetamine in fluid of blood (x 2);

    Drive under disqualification or suspension (x 3);

    Drive uninsured motor vehicle on road;

    Drive unregistered motor vehicle on road;

    Basic offence: dishonestly take property without consent;

    Carry visible offensive weapon in a school or public place;

    Possess controlled drug (not cannabis);

    Possess equipment to use with controlled drug (not cannabis);

    Breach of bail condition (x 6);

    Possess property suspected or having been used in connection with the commission of drug offence (three charges);

    Possess utensils or pipes etc that had been used (two charges);

    Unlawful possession of restricted drugs;

    Authority required to possess explosives;

    Possession of property suspected of being the proceeds of an offence;

    Deal with prohibited thing;

    Possess utensils or pipes etc that had been used (two charges);

    Possess tainted property;

    Possess property suspected of having been used in connection with the commission of a drug offence;

    Unlawful possession of suspected stolen property;

    Possess dangerous drug specified in schedule 1 or 2 (x 2);

    Possess dangerous drug specified in schedule 1 drug of quantity of or exceeding schedule 3 but less than schedule 4;

    Possess dangerous drug specified in schedule 1 or 2;

    Possess dangerous drug specified in schedule 2 drug quantity of or exceeding schedule 3;

    Possess dangerous drug specified in schedule 1 drug of quantity of or exceeding schedule 3 but less than schedule 4;

    Possess relevant substances or things;

    Unlawful possession of weapons category D/H/R weapon (x 2);

    Shot firearm in public;

    Possess dangerous drug specified in schedule 1 or 2;

    Trafficking dangerous drugs;

    Supplying schedule 1 dangerous drugs.

6    On 14 October 2013, the Department of Immigration and Border Protection informed the appellant that his visa was subject to cancellation on character grounds under s 501(2) of the Migration Act.

7    On 22 November 2013, the appellant was informed by letter that a decision had been made not to cancel his visa on character grounds. He was issued with a formal warning to the effect that his case could be reconsidered if he committed further offences or otherwise breached the character test under the Migration Act. On 25 November 2013, the appellant signed a formal written acknowledgement of his receipt of the warning regarding any future breach of the character test.

8    As we noted earlier, the appellant’s visa was mandatorily cancelled on 23 April 2020 under s 501(3A) of the Migration Act. An application for revocation of that cancellation decision was unsuccessful and he sought review of the non-revocation decision by the Tribunal.

Decision of the Tribunal

9    The decision of the Tribunal is detailed. It set out, at length, background history leading to the decision of the Delegate, and relevant legal provisions. The Tribunal then turned to relevant considerations for it to take into account under the Direction.

10    In relation to Primary Consideration 1 – Protection of the Australian Community, the Tribunal noted the evidence of family violence involving the appellant against both his former domestic partner and his brother (at [86]). The Tribunal noted at [90] that the appellant had been sentenced to two significant terms of imprisonment since 2011, and that the sentences of imprisonment reflected the very serious nature of his offending. The Tribunal noted at [92] that the appellant has been offending, on a regular and increasingly serious basis, since 2005. At [94], the Tribunal concluded that the cumulative effect of the appellant’s offending, escalating as it had to the level of serious drug trafficking offences and the possession of firearms, was extremely serious. At [95]–[96], the Tribunal noted that the appellant had made false declarations on incoming passenger cards on his returns to Australia from overseas.

11    Finally, the Tribunal noted at [97]–[98] that the appellant had reoffended notwithstanding being formally warned in November 2013 about the consequences of further offending in terms of his migration status.

12    At [103] the Tribunal observed as follows:

103.    The Applicant has committed multiple offences of escalating seriousness since 2005. He had admitted engaging in family violence. The Applicant has a serious drug addiction problem. He has shown himself to be both willing and able to engage in commercial drug trafficking. He has a fascination with firearms and has been convicted of firearms offences. So far, there is no evidence of him using firearms. It is clear from the findings of Justice Brown in the Supreme Court of Queensland on 6 April 2020, that the Applicant’s “fascination with guns” is more than academic and in fact extends to the use of a firearm to “protect his business”. When it is noted that his first firearms conviction in 2012 involved a handgun, it is perhaps only good fortune that has thus far prevented the Applicant using a firearm in circumstances where a person may have been seriously injured or killed. Any reoffending by the Applicant would be very serious, particularly if weapons were involved.

13    In relation to the appellant’s ongoing drug use, the Tribunal noted:

108.    The Applicant has been a serial offender, committing offences of greater and greater magnitude since 2005. Despite his attempts to rehabilitate himself since 2005, there is nothing in his history to suggest that he has the determination or the capacity to remain drug free. The only times that he has been drug-free since 2005 have been when he was incarcerated, or for a period of approximately 18 months after his participation in the Byron Bay rehabilitation program. On every occasion, he has returned to drug use and the magnitude of his involvement in drug trafficking has increased. He has engaged in drug trafficking when on bail. As he himself has conceded, drug use and offending go hand in hand in his case. There is nothing in his history to inspire confidence that the Applicant can escape from the drug taking habits of almost his entire adult life. He has no concrete arrangements to be supported in the community if the cancellation of his visa were to be revoked. To believe that he can stay away from the drug scene if released into the community, would be a triumph of hope over experience. In the past, even bail and parole supervision have not deterred him from offending and using drugs.

14    The Tribunal concluded that this consideration weighed very heavily against revocation of the cancellation of the appellant’s visa.

15    Second, in respect of Primary Consideration 2 – Family Violence, the Tribunal noted at [112] that the appellant had no convictions for family violence, although there was evidence of family violence involving him as the perpetrator, and that this weighed against revocation.

16    Third, in respect of Primary Consideration 3 – the Best Interests of Minor Children in Australia, the Tribunal referred to two minor children who were family members of the appellant, albeit not his own children. The Tribunal gave the appellant the benefit of the doubt, and found that this consideration weighed moderately in favour of revocation.

17    Fourth, in respect of Primary Consideration 4 – the Expectations of the Australian Community, the Tribunal noted at [125] that it was not for the Tribunal to determine for itself the expectations of the Australian community by reference to the appellant’s circumstances or evidence about those expectations, but rather to be guided by the Government’s views as to the expectations of the Australian community found in the Direction. After reiterating the appellant’s history of offending and his involvement in family violence, the Tribunal concluded that this consideration weighed against revocation.

18    The Tribunal then looked at other considerations listed at paragraph 9 of the Direction.

19    The appellant made no claims with respect to Australia’s non-refoulement obligations, and none arose on the evidence.

20    In relation to the extent of any impediments that the appellant may face if removed from Australia, para 9.2 of the Direction required the decision-maker to take into account the non-citizen’s age and health, whether there were any substantial language or cultural barriers, and any social, medical and/or economic support available to that non-citizen in that country. At [133], the Tribunal noted that the appellant was 37 years of age and apparently in good health. At [135] the Tribunal noted:

… The Applicant would find it difficult to get employment or to access health or other services comparable to those available in Australia. According to Ms Rizk, there are few supports to help people with drug problems and drugs are easily obtained in Lebanon.

21    In relation to the appellant’s links to the Australian community, the Tribunal concluded that that his very significant family and social links to Australia weighed in favour of revocation.

22    Weighing all considerations in accordance with the Direction, the Tribunal affirmed the non-revocation decision made by the Delegate.

Decision of the Federal Court

23    Before the primary Judge the appellant sought judicial review of the Tribunal’s decision on the following grounds:

(1)    There was a constructive failure to exercise jurisdiction by the Tribunal.

(2)    The decision of the Tribunal was illogical and/or irrational.

(3)    The Tribunal denied the appellant procedural fairness.

24    Each of these grounds was extensively particularised.

25    As her Honour explained:

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.

26    After setting out the particulars of the appellant’s claim with respect to ground 1, her Honour observed that the gravamen of his challenge to the Tribunal’s decision was that it failed to consider a mandatory consideration relevant to the extent of impediments he may face if removed to Lebanon, that being his health. Her Honour continued:

31.    Mr El Khoueiry contends that, in the face of the Tribunal’s several findings about his serious and sustained drug habit, the Tribunal was mandatorily required to consider that habit as a health issue when considering section 9(1)(b), whether or not Mr El Khoueiry raised that matter himself, because it was in the nature of an unarticulated claim that ‘clearly emerged’ on the material before it in the context of the Tribunal’s consideration of the primary consideration of the protection of the Australian community.

27    Her Honour noted that the appellant sought to support this contention by reference to the decision of Logan J in LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 at [27], where in considering the predecessor to para 9.2(1), his Honour said:

Indeed, so important was the subject of the applicant’s difficulties with alcohol to its reasoning process in respect of risk, it seems to me that the Tribunal on this occasion, and with all respect, has just forgotten that it was additionally necessary to advert to this health condition separately, as ministerially required, when addressing the parameters of [14.5] … It might also have had to confront the presence or otherwise of any medical facilities in Ethiopia to provide programs for rehabilitation or treatment of those with alcohol dependency disorder. A fair reading of the reference of the minister’s specification of health in his direction is that, necessarily, that reference embraces alcohol dependency disorder.

28    Her Honour then referred to the decision of Barker J in AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 and continued:

34.    The principles relevant to determining whether a claim ‘clearly emerges’ from the material were summarised by Barker J in AWT15 at [67]-[68]:

(a)    such a finding is not to be made lightly (NABE at [68]);

(b)    the fact that a claim ‘might’ be seen to arise on the materials is not enough (NABE at [68];

(c)    while there is no precise standard for determining whether an unarticulated claim has been ‘squarely raised’, (MZXLB v Minister for Immigration and Citizenship [2007] FCA 1588 at [14] (Finkelstein J)) a court will be more willing to draw the line in favour of an unrepresented party: Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; 49 AAR 77 at [21].

(d)    to clearly emerge from the materials, the claim must be based on ‘established facts’: SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214.

29    Her Honour then made a number of observations regarding the material that was before the Tribunal, in summary:

    In his personal circumstances form dated 4 May 2021, the appellant left ‘Section 12, Impediments to Return, Health Information’, blank. The attached statement acknowledged that his “main problem is my drug addiction” when addressing his risk of reoffending (at [35]).

    The appellant did not identify either his drug addiction or any other condition as a health difficulty (at [35]).

    The appellant’s representations pursuant to s 501CA(3) were prepared by his legal representatives, in which they stated that there would be a lack of support to the appellant should he return to Lebanon which could damage his mental health and rehabilitation efforts (at [36]).

    The Delegate made findings concerning the appellant’s age and health, and the health system in Lebanon (at [37]).

    In his Statement of Facts, Issues and Contentions to the Tribunal, also prepared by his legal representatives, the appellant repeated the submission to the Delegate, albeit noting that his submissions as to his susceptibility to relapse should he be returned to Lebanon should not infect the assessment of his risk to the Australian community. No other health condition was raised (at [38]).

    Before the Tribunal was the appellant’s Parole Assessment Report dated 23 June 2020, noting his completion of three short substance intervention courses between November 2018 and October 2019, and that he had provided a clear drug test on 14 August 2019 (at [39]).

    As at June 2020, no current medical issues were raised with the Parole Board, and it appeared that not only was the appellant’s mental health stable but that he was also drug free (at [39]).

30    In summary, her Honour concluded at [43] that, in light of material before it, the Tribunal could not be criticised for concluding that the appellant was apparently in good health, and further it could not realistically be supposed that the Tribunal “overlooked” his addiction in concluding generally that the appellant was “apparently in good health”. Her Honour concluded that no jurisdictional error had been established on the part of the Tribunal.

31    Her Honour further concluded at [49] that, even if an error were established, that error would not be material.

32    Her Honour then examined the appellant’s contention that the Tribunal’s decision was illogical and/or irrational, by reference to the Tribunal’s finding that the appellant was “apparently in good health” was also recognising that he had a serious drug addiction problem and – given his history – he did not have the capacity to remain drug-free. Her Honour found that the appellant’s criticism of the Tribunal’s analysis was unjustified. In particular her Honour observed:

63.    … As is apparent from the whole of the Tribunal’s reasons, the Tribunal had Mr El Khoueiry’s drug addiction front of mind and made findings including that he had a ‘serious drug addiction’ (Tribunal’s reasons at [103]); that there is nothing in his history to inspire confidence that the Applicant can escape from the drug-taking habits of almost his entire adult life (Tribunal’s reasons at [108]); and that as the ‘Applicant presents a significant risk of returning to substance abuse, … [he is at] significant risk of reoffending’ (Tribunal’s reasons at [109]).

64.    Evidently conscious of the extent of Mr El Khoueiry’s addiction, the Tribunal nevertheless also took into consideration that ‘There is nothing in his history to suggest that he has the determination or the capacity to remain drug free’ (Tribunal’s reasons at [108]). The Tribunal also had before it the remarks of the sentencing judge, Brown J, in the Supreme Court of Queensland on 6 April 2020:

Given the charges for which you are now being sentenced it is hard to see that you have not decided that you want to be a career criminal rather than doing something about your life.

65.    As has already been observed in respect of Ground One, there was no evidence before the Tribunal that Mr El Khoueiry reported any other health issues during the periods in which he was drug free.

33    Her Honour concluded that the findings of the Tribunal were neither so illogical nor irrational that no reasonable decision-maker could have made the same finding on the same evidence.

34    In relation to ground 3 before her Honour and his complaint that the Tribunal denied the appellant procedural fairness by failing to respond to a substantial, clearly articulated argument (being the reduced risk of reoffending because of Mr El Khoueiry’s rehabilitation efforts, and in failing to intellectually engage ‘with the courses rehabilitation claim’), her Honour noted that the Tribunal had set out at length the appellant’s attempts to rehabilitate himself. In particular at [73], her Honour noted the Tribunal’s finding that none of the appellant’s efforts to rehabilitate himself had succeeded. Her Honour found that no error was shown in the Tribunal’s approach.

35    It followed that the application was dismissed.

Ground of appeal

36    The appellant relies on the following ground of appeal:

1.    The primary judge erred in failing to find that there was a constructive failure to exercise jurisdiction by the second respondent.

a.    First, the primary judge found that the appellant did not identify either his drug addiction or any other condition as a health difficulty ([35], [40], PJ). However, even an explicit concession by a party to tribunal proceedings cannot supplant the Tribunal’s function to reach the correct or preferable decision.

b.    Secondly, the primary judge found that on a fair reading of the material, no health issue could be said to ‘clearly emerge’ in these proceedings ([40], PJ). However, the Tribunal itself made clear findings that demonstrated the appellant had unresolved drug addiction problems:

•    The appellant has been a heavy drug user for most of the last 16 years ([5], TD).

•    The appellant had no concrete arrangements regarding post-release treatment or rehabilitation for his addiction ([61], TD).

•    The appellant has a serious drug addiction problem ([103], TD).

•    There is nothing in the applicant’s history to suggest that he has the capacity to remain drug-free ([108], TD).

•    As the appellant presents a significant risk of returning to substance abuse, he is a significant risk of reoffending ([109], TD).

c.    Thirdly, before the Tribunal, the material otherwise showed:

•    The delegate of the first respondent had found that the appellant was a ‘recovering addict’: CB138[76].

•    The sentencing judge considered the appellant’s drug-taking to be a health issue: CB258[5]-[10].

•    The Parole Board Assessment Report (the Report) noted that the appellant was ‘intent to again engage in drug rehabilitation’ after leaving prison: CB867. The same Report noted that the appellant reported a willingness to attend live-in rehabilitation or engage in programs to address his needs in substance abuse: CB867.

•    The Report otherwise noted that the appellant’s previous participation in a 5-month live-in rehabilitation service provides some confidence that the appellant may engage in future rehabilitative activities: CB867.

d.    Fourthly, the primary judge found that there was no evidence that the appellant reported any other health issues following his participation in a rehabilitation program at Byron Bay and remained drug free while incarcerated ([41], PJ). However, that finding ignores the fact (with respect) that the appellant continued to undertake several rehabilitation treatment programs (as related to his drug problem) that post-dated the Byron Bay rehabilitation program: CB83.

e.    For example, after the Byron Bay rehabilitation program, the appellant undertook the following rehabilitation treatment programs: Artius Options (Recovery from Substances Abuse); Kairos Inside Short Course; Lives Lived Well DO IT Program; Men’s Group and Life Skills programs; Drug and Alcohol Abuse 101; Depression Management, and Stress Management: CB83, 977-980. Various of these rehabilitation programs were undertaken during the appellant’s most recent period of immigration detention.

f.    Fifthly, the primary found that no medical issues were raised with the Parole Board ([42], PJ). However, that finding (with respect) ignores that the Report from the Parole Board (under the heading of Re-entry to Community) reported that the appellant intended to undertake drug rehabilitation in the community and a willingness to further engage in rehabilitation programs to address ‘his needs in substance abuse’: CB867. The Report noted there was ‘some confidence that the [appellant] may engage in rehabilitative activities’ in the community for substance related issues: CB867.

g.    Under the heading ‘Recommendation & Endorsement’, the Report further noted that the appellant was currently had a ‘Relapse Prevention Plan’ in relation to substance abuse problems: CB868. Under the heading ‘Suggested Conditions’, the Report recommended (as a special condition) that the appellant ‘undertake and engage with alcohol and other drug counselling and/or programs’: CB868. The Report noted that the appellant has an ‘extensive substance abuse history’ and the nominated conditions were considered necessary: CB869.

h.    Sixthly, the primary judge next reasoned that given the extensive references to the appellant’s drug addiction throughout the Tribunal’s reasons, it cannot realistically be supposed that the Tribunal ‘overlooked’ that addiction in concluding generally that he was ‘apparently in good health’ ([43]). Respectfully, that reasoning demonstrates error:

•    The reasons for the decision of the Tribunal are to be taken to reflect what the Tribunal found. When considering the other consideration of the extent of impediments if removed from Australia for paragraph 9.2(1) of Direction 90, the Tribunal made no express finding that the appellant had unresolved drug/substance abuse problems.

•    The impugned reasoning of the primary judge is in tension with the reasoning of Logan J in LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 [27], where the Tribunal had made extensive references to the applicant’s health issue when considering the primary consideration of protection of the Australian community but failed to address that health issue (for the different purpose) in the context of the other consideration of the extent of impediments if removed from Australia.

•    The Tribunal failed to consider (i.e. active intellectual engagement) with the mandatory consideration of the appellant’s health for the purposes of paragraph 9.2(1)(a) of Direction 90.

i.    Seventhly, the primary judge reasoned that the Tribunal brought the risk of the appellant returning to substance abuse when considering paragraph 9.2(1)(c) of Direction 90 (i.e. the social, medical and/or economic support that would be available to him in Lebanon) ([45], PJ). Respectfully, that reasoning demonstrates error:

•    When considering paragraph 9.2(1)(c), the Tribunal merely found that the social, medical, and other economic support available to the appellant there would be less than is available to him in Australia ([136], TD).

•    When considering paragraph 9.2(1)(c), the Tribunal made no express finding in relation to the appellant’s drug/substance abuse problems: CB58.

j.    The primary judge reasoned that the Tribunal confronted the presence, or lack of, drug addiction rehabilitation programs in Lebanon, apparently accepting the evidence given by the appellant’s mother that there were ‘few supports to help people with drug problems and drugs are easily available in Lebanon’ ([46], PJ). Respectfully, that reasoning demonstrates error:

•    The Tribunal made no express finding that it accepted the evidence of the appellant’s mother: CB58.

•    The Tribunal went no further than merely citing the evidence of the appellant’s mother: CB58[138], TD. It did not indicate whether it accepted that evidence or otherwise reject that evidence. Regardless, that evidence did not address paragraph 9.2(1)(a) of Direction 90 (i.e. the appellant’s health).

k.    The primary judge found that the Tribunal subsumed the appellant’s drug addiction within its overall consideration of the impediments he might face if removed ([46], PJ). Respectfully, that reasoning demonstrates error:

•    When addressing paragraph 9.2(1)(a) (i.e. the appellant’s health for the extent of impediments if removed), the Tribunal merely found that the appellant is ‘apparently in good health’ (CB57[133], TD).

•    When considering paragraph 9.2, the Tribunal made no finding in relation to the appellant’s drug/substance abuse issues: CB57-58.

•    The primary judge herself found that on a fair reading of the material, no health issue clearly emerged on the material ([40]-[42], PJ). If no issue clearly emerged on the material, it is difficult to see how the appellant’s drug/substance issues were considered under paragraph 9.2 by the Tribunal.

l.    Eighthly, the primary judge finally concluded that any error would not be material ([49], PJ). Respectfully, that reasoning demonstrates error:

•    The Tribunal found that three primary considerations weighed against revocation of the mandatory cancellation decision ([149]-[155]). However, in relation to two of those primary considerations, the Tribunal did not outline the attribution of weight to those considerations.

•    The Tribunal found that one primary consideration and two other considerations weighed in favour of revocation of the mandatory cancellation decision ([149]-[155]). There were, thus, competing considerations that went both ways.

•    Direction 90 requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply. The Tribunal was unable to lawfully address that legal question because it failed to address a mandatory consideration relevant to paragraph 9.2(1) of Direction 90 (i.e. an important criterion within the impugned other consideration).

•    Context is important here. When considering the appellant’s risk of recidivism question for the purposes of paragraph 8.1.2(2)(b) of Direction 90, the Tribunal found that the appellant has a serious drug addiction ([103], TD). Had the appellant’s serious drug addiction health problems been lawfully considered when the Tribunal came to consider paragraph 9.2 (the extent of impediments if removed – which is for a different purpose), there was the realistic possibility of a different outcome.

•    The primary judge further reasoned that the Tribunal made a positive finding in relation to the extent of likely impediments should the appellant be removed from Australia ([54], PJ). Again, this reasoning is also in tension with the reasoning of Logan J in LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 [32], where the Tribunal had also made very positive findings in relation to the extent of likely impediments should the applicant be removed from Australia (but materiality was still made out).

(emphasis original; footnotes omitted)

Submissions of the parties

37    The appellant’s legal representative ceased acting for him in the appeal approximately two weeks prior to the hearing, and prior to the filing of written submissions. In the circumstances, the appellant sought to rely on his submissions made before the primary Judge. Relevantly to the ground of appeal which is advanced in this appeal, those submissions can be summarised as follows:

    The Tribunal failed to lawfully have regard to the appellant’s health, including his serious health issues related to drug addiction, when considering the extent of impediments if removed under the Direction;

    This error is substantially similar to the error found in LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039;

    The Tribunal failed to engage in an active intellectual process when considering the lawful considerations, including failing to consider whether those impugned health matters would act as an impediment to the appellant if he was returned to Lebanon;

    That failure led to jurisdictional error, which was material.

38    The Minister submitted, in summary:

    The appellant relied on three grounds before the primary Judge. Two of those grounds are not pressed upon appeal;

    The appellant did not provide any evidence as to the medical or health aspects of his drug addiction, nor any diagnoses of an identifiable medical condition;

    The Tribunal considered the risk of the appellant re-offending and expressly noted the many attempts of the appellant to rehabilitate himself;

    The Tribunal considered the impediments the appellant would face if removed from Australia, and that this consideration weighed in favour of revocation;

    Primary Considerations 1, 2 and 4 weighed against revocation;

    The facts in this appeal can be distinguished from LRMM; and

    Even if an error of the type contended by the appellant had been made by the Tribunal, it was not material.

Consideration

39    The ground of appeal on which the appellant relies was extensively particularised, and in the nature of submissions. The substance of the appellant’s case appears to be:

(1)    The Tribunal failed to take into account the appellant’s serious drug addiction as a health issue which impeded his removal from Australia to Lebanon as required by para 9.2 of the Direction. The appellant placed heavy reliance on the decision in LRMM in respect of this aspect of his case;

(2)    The primary Judge misapplied the law in respect of whether the contended error of the Tribunal would have been material.

40    Turning to each issue, we make the following findings.

1. Alleged failure to take into account the appellant’s health issues as required by para 9.2 of the Direction

41    In written submissions before the primary Judge, the appellant contended that the Tribunal was content to hold the appellant’s health issues (concerning unresolved serious drug addiction) against him when considering the protection of the Australian community, but forgot those same health issues when it came to consider the extent of impediments the appellant would face if he was removed to Lebanon. The appellant further contended that the jurisdictional error of the Tribunal in this respect was very similar to that found to have occurred in LRMM.

42    In LRMM the applicant, a non-citizen, held a Refugee (Class XB) (Subclass 200) visa. A delegate of the relevant Minister refused revocation of a decision to cancel that applicant’s visa. Justice Logan noted that, in evidence before the Tribunal, there was a report of a clinical psychologist. Materially, the clinical psychologist had diagnosed the applicant with alcohol dependency disorder, in partial remission in a controlled environment, and adjustment disorder caused by his situation which could solidify into major depressive disorder if he was removed from Australia. His Honour relevantly observed:

12.    Neither in that paragraph nor elsewhere in that part of the Tribunal’s reasons which addresses the considerations specified in paragraph 14.5 of the ministerial direction is there any reference whatsoever to the alcohol disorder; much less is there any reference in that part of the Tribunal’s reasons to whatever, if any, medical support might be available to the applicant in the home country of reference, namely Ethiopia.

13.    Of course, the Tribunal’s reasons must be read as a whole. Doing so makes it clear to the point of demonstration that the Tribunal was very well aware indeed of the applicant’s difficulties over a number of years with alcohol. These dated back to his school years, such as they were, during which he was introduced to the consumption of alcohol by older students.

43    Justice Logan continued:

26.    Against this background, including, as I have mentioned, the pervasive reference in the Tribunal’s reasons to the applicant’s drinking and his problem with alcohol, it was put on behalf of the Minister that it could be inferred that the Tribunal took into account the alcohol dependency disorder under the required subject, health. The Tribunal certainly specified another condition diagnosed by Professor Freeman at [175], but the fact that the Tribunal did this, against a background of otherwise being aware of the problem of alcohol, seems to me to make it inherently unlikely that the subject was somehow subliminally considered.

27.    Indeed, so important was the subject of the applicant’s difficulties with alcohol to its reasoning process in respect of risk, it seems to me that the Tribunal on this occasion, and with all respect, has just forgotten that it was additionally necessary to advert to this health condition separately, as ministerially required, when addressing the requirements of [14.5]. Had the Tribunal addressed this subject, it may well have had to confront the discounting promoted in the reply submission on behalf of the applicant. It might also have had to confront the presence or otherwise of any medical facilities in Ethiopia to provide programs for rehabilitation or treatment of those with alcohol dependency disorder. A fair reading of the reference of the minister’s specification of health in his direction is that, necessarily, that reference embraces alcohol dependency disorder.

28.    Contrary to an initial impression formed by the Tribunal’s otherwise repeated reference to the applicant’s consumption of alcohol over the years, but as a result of determined and focused advocacy on his behalf by his counsel, I am persuaded that the Tribunal has failed to take into account a relevant consideration namely, health, as specified in paragraph 14.5 of the ministerial direction. Of course, that consideration only applies where relevant, but the applicant, from the moment he sought revocation, made reference to his drinking, and by the time of the hearing, that particular reference had matured into an expert diagnosis.

29.    In these circumstances, and even taking into account as was rightly emphasised, with respect, on behalf of the Minister by his counsel, the course of the administrative continuum, the Tribunal was obliged, under the heading health, to acknowledge and then address the ramifications of the alcohol dependency disorder.

44    As to whether the failure on the part of the Tribunal to take into account the health issues of the applicant (as found by Logan J) was material, his Honour concluded that the error was material, in that:

32.    … Quite what might be the ramifications for the applicant if removed to Ethiopia was addressed not at all in relation to his alcohol dependency. One might apprehend that it would intrude not just on health but also upon ability to obtain work or otherwise settle in that country. In my view, consideration of that subject does carry with it a realistic possibility that the administrative decision might be different. It is not for me, obviously, to make any such decision, only to recognise the existence of a realistic possibility.

45    Turning back to the present case, the primary Judge observed:

33.    Of course, LRMM concerned a different set of circumstances from those in the present proceedings. In LRMM, there was evidence before the Tribunal that the applicant had been diagnosed with a specific medical condition, namely alcohol dependency disorder (LRMM at [14]). The Tribunal made no reference to that diagnosis but appears to have considered another condition that had been diagnosed by the applicant’s psychologist (LRMM at [26]).

…

40.    In the present case, not only did Mr El Khoueiry make no specific representation about any health issue, on a fair reading of the material, none could be said to ‘clearly emerge’ in the same manner as found by Logan J in LRMM. The only medical report referred to in the materials, and by the Tribunal (Tribunal’s reasons at [14]-[15]), was that of psychologist Dr Cayley whose report was dated 22 December 2010 and which appears to have been prepared in respect of Mr El Khoueiry’s sentencing before the District Court of South Australia on 9 March 2011. Nothing more recent was in evidence.

41.    There was no evidence that Mr El Khoueiry reported any other health issues during the periods in which was drug free when incarcerated or for the period of approximately 18 months following his participation in a rehabilitation program at Byron Bay (Tribunal’s reasons at [108]).

46    We agree with the primary Judge that LRMM is plainly distinguishable from the facts of the present case. Although the Tribunal accepted that the appellant had a history of serious drug use, and drug addiction, the appellant, who was legally represented both before the Tribunal and the primary Judge, at no point presented medical evidence of a drug addiction or the health ramifications to him if it was untreated. Nor did he present any evidence to support a link between the drug use or drug addiction, and his health. We note that the Tribunal referred to a medical report prepared by psychologist Dr Cayley in 2010 in the context of criminal charges then faced by the appellant in the District Court of South Australia, however identified no further expert evidence, medical or otherwise, adduced by the appellant.

47    On no interpretation of the Tribunal’s reasons could it be said that the Tribunal had overlooked the appellant’s claim of drug addiction, or failed to give it weight as a consideration for revoking the cancellation decision. Rather, in the context of protection of the Australian community, the Tribunal discussed in detail the appellant’s drug history, noting for example:

108.    The Applicant has been a serial offender, committing offences of greater and greater magnitude since 2005. Despite his attempts to rehabilitate himself since 2005, there is nothing in his history to suggest that he has the determination or the capacity to remain drug free. The only times that he has been drug-free since 2005 have been when he was incarcerated, or for a period of approximately 18 months after his participation in the Byron Bay rehabilitation program. On every occasion, he has returned to drug use and the magnitude of his involvement in drug trafficking has increased. He has engaged in drug trafficking when on bail. As he himself has conceded, drug use and offending go hand in hand in his case. There is nothing in his history to inspire confidence that the Applicant can escape from the drug taking habits of almost his entire adult life. He has no concrete arrangements to be supported in the community if the cancellation of his visa were to be revoked. To believe that he can stay away from the drug scene if released into the community, would be a triumph of hope over experience. In the past, even bail and parole supervision have not deterred him from offending and using drugs.

48    Further, as the primary Judge explained, before the Tribunal, the appellant did not identify either his drug addiction or any other condition as a health difficulty, or make representations referable to para 9.2 of the Direction as to the nature of any impediment he would face if removed to Lebanon, beyond the general proposition that he would have difficulty accessing health or other services comparable to those available in Australia. Rather, before the Tribunal the issue of the appellant’s history of drug use, and repeated relapse into drug use, was the subject of submissions by him relevant to Primary Consideration 1 and the protection of the Australian community, rather than any impediment to his removal from Australia to Lebanon in the context of para 9.2.

49    However, notwithstanding that the appellant had not framed his case in such a way as to identify his claimed drug addiction as an impediment to removal, the Tribunal plainly had regard to this claim in that context. In particular, we note the following comments of the Tribunal in its decision under the heading of “OTHER CONSIDERATIONS – (b) Extent of Impediments if Removed”:

135.    Lebanese society is very different from Australian society with many quite different cultural and religious groups within the country. This would no doubt require some adjustment on the Applicant’s part. It is also the case that economic and social conditions in Lebanon are poor, particularly of recent times. The Applicant would find it difficult to get employment or to access health or other services comparable to those available in Australia. According to Ms Rizk, there are few supports to help people with drug problems and drugs are easily obtained in Lebanon.

136.    The Applicant does have relatives in Lebanon including his father, various aunts, uncles and cousins. It is unclear what level of support he could expect to receive from his relatives, and the social, medical, and other economic support available to him there would be less than is available to him in Australia. He would be reliant on financial support from his mother, at least initially. Ms Rizk stated that while she would not want to be put in a position where she has to financially support him, she would no doubt do as it if he was in need.

(emphasis added)

50    Significantly, in considering this issue and the appellant’s claim of drug addiction, the Tribunal found at [137] that the consideration referable to impediments in para 9.2 of the Direction weighed in favour of the appellant.

51    As the Minister has submitted, there was no further relevant material before the Tribunal for it to take into consideration.

52    We are not satisfied that the Tribunal erred as contended by the appellant in failing to have regard to the state of his health – namely his drug addiction – as an impediment to his removal from Australia to Lebanon.

2. Did the primary Judge misapply the law in respect of materiality?

53    The primary Judge gave this issue detailed consideration at [49]–[54] of her reasons. In particular, and referable to the High Court authority of MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [38], her Honour observed that the appellant bore the onus of establishing the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made. Her Honour observed that para 7(2) of the Direction provided that primary considerations should generally be given greater weight than other considerations in the Direction, that the Tribunal had analysed all relevant considerations, and determined whether they weighed in favour of or against revocation of the cancellation decision.

54    Her Honour examined the comments of the Tribunal, and concluded at [54] that, in light of its ultimate findings (including the extent of likely impediments should the appellant be removed from Australia to Lebanon), it was difficult to see that there was a realistic possibility that a different decision could have been made by the Tribunal.

55    In our view, the primary Judge did not misapply the law in respect of materiality.

Conclusion

56    The appeal should be dismissed. Costs follow the event.

Associate:

Dated:    22 August 2022