Federal Court of Australia

Khodr v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 198

ORDERS

THE COURT ORDERS THAT:

1.    An order in the nature of certiorari be issued to the respondent quashing the decision made on 23 October 2019 to refuse the applicant’s application for a Prospective Marriage (Temporary) (Class TO) (Subclass 300) visa.

2.    The matter be remitted to the respondent for the redetermination of the applicant’s application for a visa according to law.

3.    The respondent pay the applicant’s costs of the application for judicial review.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant (“Mr Khodr”) seeks judicial review of a decision of the first respondent (“Minister”) to refuse his application for a Prospective Marriage (Temporary) (Class TO) (Subclass 300) visa (“visa”).

2    Mr Khodr is a national of Lebanon. Some 16 years ago whilst he and his wife (“Mrs Khodr”) were domiciled in Lebanon, Mr and Mrs Khodr were married in accordance with Lebanese law. Mrs Khodr is the sponsor of his application for the visa. She is a dual citizen of Australia and Lebanon. Mr and Mrs Khodr have four children – three daughters and a son – all of whom are Australian citizens. In late 2013, the family decided to move from Lebanon to Australia and, to enable Mr Khodr to come here as a resident, on 17 January 2014 he applied for the visa.

3    It was not until some three and a half years later, on 9 October 2017, that the Minister’s department (“Department”) first advised Mr Khodr that consideration was being given to refusing his application. On 23 October 2019, some five years and nine months after Mr Khodr first made his application, the Minister determined to refuse that application.

4    The refusal decision of the Minister was made pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”) on the ground that Mr Khodr did not pass the character test because, having regard to Mr Khodr’s past and present general conduct, he was not of good character within the meaning of s 501(6)(c)(ii) of the Act. Section 501(1) of the Act provides that the Minister “may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test”. The character test is specified by s 501(6) and relevantly paragraph (c) thereof provides as follows:

For the purposes of this section, a person does not pass the character test if:

…

(c)    having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character…

5    The decision made by the Minister was accompanied by reasons (“Minister’s reasons”). Broadly stated, the Minister was of the view that Mr Khodr did not pass the character test because of his past conduct in commencing a relationship, marrying and having sexual relations with Mrs Khodr when she was a child as well as what the Minister considered to be Mr Khodr’s “continued belief in and support for under-age relationships, marriage and under-age sexual relations with persons who become child brides”.

6    Mr and Mrs Khodr are first cousins and first met in Lebanon on 1 November 2002 when Mrs Khodr’s Australian-based family visited Lebanon. At that time Mr Khodr was nearly 19 years of age and Mrs Khodr was 9 years and 7 months old. The Minister found that during this trip to Lebanon, Mr Khodr “instigated a non-sexual romantic relationship” with Mrs Khodr. Mr and Mrs Khodr were engaged to be married on 15 July 2004. The Minister found that the engagement followed upon Mr Khodr approaching Mrs Khodr’s father (or her parents) for consent to marry Mrs Khodr, whereupon the offer of marriage was raised with Mrs Khodr. Mrs Khodr’s family returned to Lebanon for several months commencing in October 2003 so that Mr and Mrs Khodr could spend time together and returned again to Lebanon for the engagement in June 2004. At that time, Mrs Khodr was 12 years of age.

7    Mr and Mrs Khodr were married in Lebanon on 9 November 2005. At that time, Mr Khodr was nearly 22 years old and Mrs Khodr was 12 years and 9 months old. At the time of their marriage they were both domiciled in Lebanon. Soon after their marriage Mr and Mrs Khodr commenced a sexual relationship and their first child was born when Mrs Khodr was 13 years and 6 months old.

8    The Minister accepted that there was no evidence to indicate that Mrs Khodr was threatened or coerced to enter into the marriage. He noted her evidence and that of Mr Khodr that the marriage was consensual but regarded Mrs Khodr as incapable of consenting to marriage or to sexual relations given her age at the time of the marriage.

9    At the time of the Minister’s decision to reject Mr Khodr’s application for a visa, Mr and Mrs Khodr had been married for almost 14 years. Their marriage was enduring. Mr Khodr was said to be a good husband and father. Broadly speaking, the Minister accepted that beyond those matters of concern arising from his early relationship with Mrs Khodr, Mr Khodr was law-abiding and otherwise of good character.

10    There are laws and customs of relevance to the Minister’s decision which need also to be mentioned.

11    The marriage of Mr and Mrs Khodr was lawful under Lebanese law and consistent with Sharia law. Under the Marriage Act 1961 (Cth) and in particular s 11 and s 12 thereof, it is unlawful for a person under 18 years of age to marry in Australia, other than in exceptional circumstances in which case the person must be at least 16 year old. In his reasons for decision, the Minister accepted that when Mr Khodr married Mrs Khodr in Lebanon he was unaware of the marriageable age under Australian law.

12    The Criminal Code Act 1995 (Cth) deals with offences relating to forced marriages, including marriages that occur outside of Australia involving Australian citizens. Broadly speaking, a forced marriage occurs where a person is married without fully consenting including because the person is incapable of understanding the nature and effect of a marriage by reason of the person’s age: s 270.7A and s 270.7B. Those laws were first enacted in 2013, some eight years after Mr and Mrs Khodr were married.

13    Further, Pt VA of the Marriage Act specifies the circumstances in which a marriage solemnised in a foreign country is recognised as valid for the purposes of Australian law. Section 88D(3) relevantly provides that where neither of the parties to a marriage to which Pt VA applies was, at the time of the marriage domiciled in Australia, the marriage should not be recognised as valid in accordance with s 88D(1) at any time while either party is under the age of 16 years.

14    In considering Mr Khodr’s “past general conduct” by reference to s 501(6)(c)(ii), the Minister’s reasons concluded as follows (emphasis in original):

[40]    However, I consider Mr KHODR's conduct upon meeting in Lebanon Ms Khodr, who was born in Australia, and his pursuing an attraction to her when she was under 10 years of age and the submissions made by him or on his behalf referring to Abeir as then being a 'mature lady', to be indicative of conduct that is immoral and offensive. This is further shown by the conduct of Mr KHODR's courtship of Ms Khodr leading to engagement and marriage which legalised in Lebanon a sexual relationship when Ms Khodr was at that stage under the age of 13 years. At the birth of their second child Ms Khodr was 15 years and six months. At the time Mr KHODR pursued Ms Khodr prior to their marriage he continued to communicate with her upon her return to her home country of Australia at which time she would have been at primary school. Throughout this period Mr KHODR was aged over 18 years of age.

[41]    Overall, despite Mr KHODR's submissions that he had no knowledge of the laws of Australia, I consider that Ms Khodr was an immature child who was incapable of consenting to marriage or sexual relations, and I find Mr KHODR's conduct toward Ms Khodr, in instigating a relationship with an Australian citizen child, and maintaining that relationship when Ms Khodr returned to Australia, leading to their marriage and the commencement of a sexual relationship when Ms Khodr was 12 years old, is lacking in sound judgement.

15    The Minister then turned to consider Mr Khodr’s “present general conduct” pursuant to the requirement in s 501(6)(c)(ii).

16    What appears to have been important to the ultimate conclusion reached by the Minister as to this criterion were views on the appropriate age for marriage expressed by Mr Khodr in an interview conducted on 9 November 2017 between a senior migration officer of the Department and Mr Khodr. Mr Khodr there expressed a number of views on marriage and the age of consent that the Minister considered to be “inconsistent with the standards of the Australian community and broadly indicative of an ongoing lack of moral character”.

17    The Minister’s reasons (at [50]) state that upon being asked the appropriate age for a woman to be married in Lebanon, Mr Khodr said:

I am in Lebanon, according to Sharia law, age is not the factor, if woman has reached puberty then that is the issue. Before we got married, we went to a doctor and the doctor did a blood test and she said it was fine, that she had reached puberty and so we could get married.

18    At [51], the Minister stated that when Mr Khodr was asked how this might relate to his own children, he said:

If I had a daughter and she wanted to get married, as long as she reached puberty and she has and it is 11, 12 to 13 it is fine with me for her to get married. An example in my family, my father and my mother got married, my father was older by 7 year and when I was born, my mother was 13 or 14 years old, she was pregnant at 12

19    Further, the Minister’s reasons state at [53] that when Mr Khodr was asked about the appropriate age to consummate a marriage, he responded:

Again, there is no age, but it depends on the girl and if she is ready. In 'warm' climate countries, women reach puberty faster and is she is physically ready, and she has the right man and this is appropriate, then it is the time. In my family, culturally, this is common and in my case it is special and if you would see her and you would think she is much older.

20    Referring to the interview, the Minister’s reasons then state (emphasis in original):

[54]    Mr KHODR goes on to express ignorance of Australian laws in relation to underage marriage, stating ‘I have no idea about them and I never knew anything about the country and then was with my wife, then the circumstances changed and it was after the marriage. Australia was never in my mind'. Mr KHODR made no comment upon being informed by my Department in an interview in 2017 that people under 16 may not marry in Australia.

21    The Minister concluded this section of his reasons by making findings expressed as follows:

[55]    In considering Mr KHODR's present conduct I find that is indicative of a continued belief in and support for underage relationships, marriage and sexual relations with persons who become child-brides, and that such beliefs extend to the condoning of his daughters to become child-brides provided they have reached puberty and wish to marry. I find Mr KHODR's beliefs condone conduct that, in Australia, is criminal conduct involving forced marriages and sexual offending being perpetrated on Australian citizens.

22    Under a heading “Conclusion – character test”, the Minister went on to largely repeat his concerns earlier expressed about Mr Khodr’s past general conduct and made some further statements in relation to Mr Khodr’s present general conduct including the following (at [62]):

In assessing Mr KHODR's present conduct, I place significant weight on the evidence that shows Mr KHODR is of good conduct in continuing to be a supportive husband to Ms Khodr and a loving and supportive father to their four children. Notwithstanding, I also consider that his displayed lack of understanding of the immoral nature of his conduct is consistent with his recently expressed beliefs in marriage and associated sexual relations with a person who is considered a child bride - and referring to his own children in the context of marrying of children - provided they have reached puberty, and his past conduct, as outlined above, outweighs his recent and continuing good behaviour.

23    On the question of Mr Khodr’s character, the Minister concluded as follows:

[66]    I had regard to the totality of Mr KHODR's circumstances. I found that, through his instigation and maintenance of a sexual relationship with an underage child, notwithstanding their spousal relationship, his lack of insight concerning meaningful consent and the harms associated with such conduct, his continuing belief in the validity of child marriage and sexual relationships with an underage person and his dealings with the Department, which I find to have involved the provision of misleading information, Mr KHODR's past and present conduct makes him distinguishable from others as a person not of good character.

[67]    In totality, I find that Mr KHODR's past and present conduct shows that his moral judgement lacked in soundness and reliability, making him distinguishable from others as a person not of good character.

[68]    I conclude that, having regard to his past and present conduct, that Mr KHODR is not of good character pursuant to s501(6)(c)(ii).

[69]     Mr KHODR has not satisfied me that he passes the character test; I find Mr KHODR does not pass the character test by virtue of s501(6)(c)(ii).

24    The Minister’s reasons then turned to consider whether he should exercise his discretion to refuse Mr Khodr’s visa application. The Minister discussed the need to protect the Australian community, the best interests of Mr Khodr’s minor children, the expectations of the Australian community and the impact of refusing the visa application upon the family members of Mr Khodr in Australia. Whilst I will need to return to some of those considerations, they were summarised by the Minister in his concluding comments at [121] to [126] as follows:

In considering whether or not to refuse Mr KHODR's visa, I gave primary consideration to the best interests of Mr KHODR's four minor children and have found that their best interests would be best served by not refusing the visa.

In considering my discretion, I am mindful that Australia has a low tolerance of conduct that does not pass the character test by persons outside Australia who are applying for a visa, reflecting that there should be no expectation such people are allowed to enter Australia.

In addition, I considered the expectations of the Australian community as they relate to views on age appropriate marriage and sexual relations. It is my view that the Australian community would not expect a person holding the views professed by Mr KHODR to be granted a visa.

While I accept that it is unlikely that Mr KHODR would participate in a child marriage, in Australia, I have found that Mr KHODR poses an ongoing risk to the Australian community, due to his beliefs and views about child marriages and their consummation. I find that the Australian community could be exposed to harm should he act upon his contemporary beliefs, including by espousing these beliefs within the Australian community. Even Mr KHODR's public presence in the local community, where the circumstances of his relationship with Ms Khodr, and her approximate age when the relationship commenced would be evident to community members, risks undermining the strong efforts of the Australian Government to combat serious forms of exploitation, including forced marriage such as child marriage. In view of the potentially very serious consequences to individuals and the damage to the community caused by child marriages and the sexual abuse of minor children, the Australian community should not tolerate the risk of harm he poses.

I find that the expectations of the Australian community, along with the risk of harm posed by Mr KHODR, outweigh the countervailing considerations in Mr KHODR's case, including the best interests of his Australian citizen minor children, and the impact on his wife, Australian citizen Ms Abeir Khodr, and other family members.

Having given full consideration to all of these matters, I decided to exercise my discretion to refuse to grant Mr KHODR's application for a Prospective Marriage (Temporary) (Class TO) visa under s501(l) of the Act.

Did the Minister err in treating Mr Khodr’s beliefs as if they were “present conduct”?

25    Mr Khodr’s first ground of judicial review is that the Minister erred in his construction of s 501(6)(c) by treating a belief (or an imputed belief) as if it were “present general conduct”. Mr Khodr contended that the jurisdictional error here was the Minister’s misconstruction of the statutory phrase “present general conduct” in s 501(6)(c)(ii) of the Act.

26    The discretion provided to the Minister to refuse to grant a visa is only enlivened where the visa applicant does not satisfy the Minister that he or she passes the “character test”: s 501(1). Over some eleven paragraphs, s 501(6) sets outs criteria which specify the multiple circumstances where a person does not pass the character test. The relevant criteria applied by the Minister is that found in s 501(6)(c). As Lee J stated in Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774 at [49], what the Minister must do under s 501(6)(c) is “determine as a fact whether that person is not of good character”.

27    In observations subsequently endorsed by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552 at [34], Lee J at [52] said this:

A finding that a person is “not of good character” requires the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197).

28    Further, at [56] his Honour said:

Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.

29    It is not in contest that s 501(6)(c)(ii) requires the Minister to have regard to both “past general conduct” and “present general conduct” in determining whether the visa applicant is of good character. There is a dichotomy in paragraph (c) of s 501(6) between “criminal conduct” dealt with by sub-para (i) and “general conduct” which is separately dealt with in sub-para (ii). That dichotomy suggests that “general conduct” is intended to refer to conduct other than criminal conduct. The scope of sub-para (c)(ii) is obviously wide but the word “conduct” nevertheless provides boundaries that must be respected.

30    The question ultimately raised by this ground is whether the Minister had regard to a consideration (particular beliefs held by Mr Khodr) which he characterised as “conduct”, giving it the significance that sub-para (c)(ii) requires that “conduct” be given, when the consideration in question (Mr Khodr’s beliefs) was not “conduct” within the meaning of that term in s 501(6)(c)(ii).

31    There is no doubt that the Minister had regard to Mr Khodr’s past conduct and in particular his past involvement in a romantic and a marital relationship with Mrs Khodr while she was still a child. The Minister also had regard to Mr Khodr’s present conduct. What he had regard to and that which he regarded as constituting “present general conduct”, was set out at [42]-[56] of the Minister’s reasons under the heading “Section 501(6)(c)(ii) Present general conduct” as well as in the section headed “Conclusion – character test” and in particular at [62] thereof. A close reading of those paragraphs suggests that regard was had to some conduct that is better characterised as past rather than present conduct. Nevertheless, regard was had to considerations which can clearly be characterised as present conduct including the respect shown by Mr Khodr to the legal system and religious standards of the country in which his family is domiciled (at [47]). That Mr Khodr had been a supportive husband and a loving and supportive father was also regarded by the Minister as demonstrating recent good conduct (at [60]). Inconsistencies in some of the submissions provided to the Department by or on behalf of Mr Khodr was also “present general conduct” to which the Minister had regard (at [56]).

32    In addition to those matters, the Minister had regard to what he perceived to be Mr Khodr’s beliefs. Characterised by the Minister as “present general conduct” was what the Minister perceived to be Mr Khodr’s “contemporary views on marriage” (at [48]), a perception based upon the interview conducted by an officer of the Department with Mr Khodr which I have earlier referred to at [16] above. The exchange between the departmental officer and Mr Khodr and the Minister’s perception as to Mr Khodr’s “contemporary views” are addressed in the Minister’s reasons at [50] to [55] and at [62] and [66] all of which are set out above.

33    In my view, the Minister was wrong to treat Mr Khodr’s beliefs as “present general conduct”. Communicating a belief is clearly “conduct” within the meaning of that term as used in s 501(6)(c)(ii). By answering the questions put to him by the departmental officer, Mr Khodr conveyed information and the act involved in conveying that information is readily capable of being characterised as “conduct”. However, an uncommunicated belief is not conduct. An uncommunicated belief involves neither an action nor an omission. In its ordinary use, the term “conduct” in reference to a person, encompasses the taking of action or the failure to take action. Whilst the formation and retention of a belief may engage or involve physiological functions internal to the person, there is no external act or omission of that person until the belief is put into effect. Belief may generate conduct but, of itself, belief is not “conduct” because it does not involve any act or any omission. Conduct engaged in by a person may be indicative of a particular belief held by that person but the belief itself is not “conduct” in the ordinary meaning of that expression. It was not suggested by the Minister, nor do I see any basis for the conclusion, that the expression “conduct” as used in s 501(6)(c)(ii) was intended to bear anything other than its ordinary meaning.

34    Counsel for the Minister contended that arising from the interview with the departmental officer, what the Minister took into account as “conduct” was the communication or expression by Mr Khodr of his beliefs at the interview. Whilst I accept, as I have already said, that the act of communicating a belief is capable of constituting conduct, I do not accept that it was the act of Mr Khodr conveying information and not the content of that information (ie Mr Khodr’s beliefs) that the Minister had regard to as “conduct”.

35    Mr Khodr’s conduct at the interview of conveying information in answer to questions directly put to him by the departmental officer was not the subject of any condemnation by the Minister. It was not the act of conveying information which the Minister had regard to in the assessment made as to Mr Khodr’s character. Mr Khodr was not proselytizing, seeking to incite others into action or even (on what must be inferred to have been the Minister’s view) being dishonest or in some way mischievous in providing the answers that he did. What told against Mr Khodr’s good character in the assessment made by the Minister, and heavily so, was the content of the information conveyed, upon which the Minister found at [55] that Mr Khodr:

    “[has] a continued belief in and support for under-age relationships, marriage and sexual relations with persons who become child-brides and that such beliefs extend to the condoning of his daughters to become child-brides provided they have reached puberty and wish to marry”; and

    Holds beliefs which “condone conduct that, in Australia, is criminal conduct involving forced marriages and sexual offending being perpetrated on Australian citizens”.

36    Fairly read, the Minister’s reasons reveal that he had regard and gave very significant weight to Mr Khodr’s beliefs, treating those beliefs as part of Mr Khodr’s “present general conduct”. That is apparent from the heading to the section in which the Minister’s discussion of Mr Khodr’s beliefs was set out; from the introduction of that discussion where (at [42]) the Minister said “I then considered Mr Khodr’s present conduct”; from the statement “I also had regard to Mr Khodr’s contemporary views on marriage, based on his response in an interview” (at [48]); from the opening words to [55] “[i]n considering Mr Khodr’s present conduct” and from the terms of [66] where the Minister referred to Mr Khodr’s “continuing belief” to be part of his “past and present conduct”; and at [67] where by reference to past and present conduct alone, the Minister found that Mr Khodr was not of good character.

37    It was not impermissible for the Minister to have had regard to Mr Khodr’s beliefs (or the Minister’s perception of those beliefs) in assessing pursuant to s 501(6)(c), whether Mr Khodr was “not of good character”. The considerations of conduct specified by s 501(6)(c) ought not be regarded as intended to be exhaustive of all of the matters the Minister may take into account. They are the considerations that the Minister “is bound to consider”: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J). As Lee J stated in Godley at [52], the Minister “must look at the totality of the circumstances”. An assessment of a person’s character naturally raises questions about that person’s moral qualities and those qualities will often be influenced by, if not founded upon, that person’s beliefs. A person’s beliefs are therefore readily capable of falling within the totality of the circumstances that the Minister must examine.

38    However, it was impermissible for the Minister to take Mr Khodr’s beliefs into account as though those beliefs were “conduct”. A person’s beliefs have not been included in s 501(6)(c) as a consideration that the Minister must have regard to. A person’s conduct, whether past or present, criminal or general, has been included as a consideration that the Minister must have regard to, meaning that the Minister must take the person’s conduct into account as a fundamental element in making his determination: Reg. v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 (Mason J); The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333 (Gibbs CJ); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [65] (Gageler J).

39    The emphasis given to conduct by s 501(6)(c) by its inclusion as a fundamental element of the specified criteria, suggests that the assessment of good character is more concerned with the person’s conduct than with beliefs which have not been put into effect. That emphasis on the active rather than the passive is reflected in the observations made by Lee J in Godley at [51] (emphasis added):

The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character. (See: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432).

40    It is by reason of the emphasis and importance given to a person’s conduct by the criteria specified by s 501(6)(c), that only the acts or omissions of that person may be taken into account as “conduct”. Here, the Minister took belief into account as though it was “conduct” deserving of the weight and importance that “conduct” must be given in the assessment required by s 501(6)(c). In so doing, the Minister misconstrued that statutory expression and failed to carry out his statutory task in the manner required of him by the Act.

41    The Minister did not contend that such an error was not material to the Minister’s decision. In any event I am satisfied that it was. If the Minister had correctly arrived at the view that the only “present general conduct” which tended towards the conclusion that Mr Khodr was not of good character was that there was some inconsistency in statements made by or for Mr Khodr (see [31] above), the possibility that the Minister may have reached a different outcome is neither fanciful or improbable: Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75 at [66] (Mortimer and Bromwich JJ).

42    Mr Khodr’s first ground of judicial review should be upheld.

The Standards and Expectations of the Australian Community

43    Central to the Minister’s determination that Mr Khodr was not of good character and also central to the Minister’s exercise of his discretion, was the Minister’s view that Mr Khodr’s conduct in courting, marrying and having sexual relations with Mrs Khodr while she was a child was unacceptable and inappropriate by reference to the standards and expectations of the Australian community. By this ground of review, Mr Khodr essentially contends that there is a flaw in the manner in which the Minister considered the standards and expectations of the Australian community on the subject of the appropriate age for a foreign marriage.

44    In relation to the determination that Mr Khodr was not of good character, the centrality of the standards and expectations of the Australian community to the Minister’s decision is sufficiently demonstrated by the content of [59] where the Minister said this:

I find that Mr KHODR's conduct of acting on an attraction to a child aged under 10 years of age who, at the time of their first meeting, was residing in Australia as a dual citizen, and his subsequently entering into a relationship with and engaging in a marriage ceremony in Lebanon with Ms Khodr aged 12 years and eight months, and having two children with her prior to her reaching the age of 16 years, is not only repugnant to the expectations and standards of the Australian community but is also unlawful conduct under the laws in Australia.

45    In relation to the exercise of his discretion, the Minister discussed and took into account what he called the “Expectations of the Australian community” in a section of his reasons devoted to that subject. He there found that Mr Khodr’s expressed beliefs concerning child marriage and the consummation of such a marriage to be “inconsistent with the laws of Australia and with widely held views of the Australian community” (at [106]). Further, in his concluding remarks the Minister acknowledged that he had “considered the expectations of the Australian community as they relate to views on age appropriate marriage and sexual relations” (at [123]). The Minister’s reliance upon the standards and expectations of the Australian community is reflected in his conclusion at [125] as follows:

I find that the expectations of the Australian community, along with the risk of harm posed by Mr KHODR, outweigh the countervailing considerations in Mr KHODR's case, including the best interests of his Australian citizen minor children, and the impact on his wife, Australian citizen Ms Abeir Khodr, and other family members.

46    The Minister’s decision also reveals that in assessing what were the relevant standards and expectations of the Australian community, the Minister relied on public policy as reflected in legislation of the Australian Parliament. In that respect, the Minister relied on the provisions of the Marriage Act which specify the legal age of marriage in Australia and on the Criminal Code Act which deals with forced marriages. Beyond the laws of Australia to which the Minister referred, the Minister’s reasons do not reveal any other source which guided his assessment of the standards and expectations of the Australian community. To say that involves no intended criticism. The Minister understandably and correctly looked to Australian law as a reflection of public policy on the standards and expectations of the Australian community regarding the acceptable age of marriage.

47    The submissions made to the Minister on Mr Khodr’s behalf referred the Minister to the provisions of the Marriage Act which recognised foreign marriages and, in particular, drew the Minister’s attention to s 88D. Whilst the reasons of the Minister (at [31]) refer to the relevant submission made on behalf of Mr Khodr, the reasons do not deal with the submission nor otherwise address the issue there raised.

48    As earlier discussed (at [13] above) Pt VA of the Marriage Act specifies the circumstances in which a marriage solemnised in a foreign country will be recognised as valid for the purposes of Australian law.

49    As the submissions made for Mr Khodr observe, s 88A of the Marriage Act specifies that the object of Pt VA of that Act is to give effect to Ch II of the Convention on Celebration and Recognition of the Validity of Marriages signed at The Hague on 14 March 1978 (the Convention). Chapter II of the Convention requires State parties to recognise as valid marriages that are validly solemnised in other countries, subject to certain exceptions. For example, Article 11(3) of the Convention expressly authorises State parties to refuse to recognise foreign marriages where one of the parties to the marriage had not reached the minimum age for marriage under a law of that State at the time of the marriage. Save as described below, Australia has not availed itself of this option. Article 14 provides for another specific exception: a State may refuse to recognise the validity of a marriage where such recognition is manifestly incompatible with its public policy.

50    Section 88D of the Marriage Act sets out a number of circumstances in which a marriage that was validly entered into in a foreign country will not be recognised as valid under Australian law. The exceptions include, if one of the parties to the marriage was domiciled in Australia, one of the parties to the marriage not having been of marriageable age at the time of the marriage: sub-s(2)(b). However, s 88D(3) provides that where neither of the parties to the marriage was domiciled in Australia at the time of the marriage – as was the case in the marriage of Mr Khodr and his wife, both of whom were domiciled in Lebanon – a marriage where one of the parties was not of marriageable age at the time of the marriage will not be recognised as valid in Australia while either party to the marriage is under 16. Therefore, once both parties to such a marriage have reached the age of 16, if the marriage is continuing, the marriage will be recognised as valid.

51    Mr Khodr contended that, in balancing the public policy interests of recognising marriages that were lawful in the country in which they were solemnised and the interests of not promoting under-age marriages, the Australian legislature reached the position that marriages such as the marriage between Mr and Mrs Khodr should be recognised as valid once both parties had reached the age of 16. He contended that despite Australian public policy disapproving of the circumstances in which the marriage was entered into, public policy favoured recognition of an enduring marriage once both parties had reached the age at which they could have legally married in Australia. The fact that the marriage in the present case had endured for 14 years by the time of the Minister’s decision and had produced four children, all of whom are Australian citizens, was said by Mr Khodr to further support the position that the recognition of the marriage relationship as it stood at the time of the Minister’s decision was consistent with Australian public policy.

52    In identifying the jurisdictional error contended for, Mr Khodr submitted that by failing to take into account the expectation of the Australian community as reflected in the provisions of the Marriage Act dealing with foreign marriages, the Minister failed to deal with an important aspect of the claim he made and, relying on Minister for Home Affairs v Omar (2019) 272 FCR 589 (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ), Mr Khodr contended that the Minister failed to give meaningful consideration to the standards and expectations of the Australian community.

53    In response, the Minister made several submissions, the first of which should be rejected at the outset of this discussion. Counsel for the Minister denied that the Minister had failed to have regard to the fact that Mr and Mrs Khodr’s marriage had been recognised as valid by the Marriage Act since Mrs Khodr turned 16. However, the mere reference made in the Minister’s reasons to Mr Khodr’s submission does not establish that the Minister had regard to the standards and expectations of the Australian community reflected in the provisions of the Marriage Act dealing with foreign marriages. Beyond that mere reference, there is no engagement in the reasons with those provisions and the underlying public policy which they reflect.

54    The issue I need to determine by reference to the principles enumerated in Omar (at [40] and [41] in particular) is whether there was a failure by the Minister to consider, in the relevant legal sense of giving the matter active intellectual engagement, a substantial or significant and clearly articulated claim raised by Mr Khodr. If, in the relevant statutory context, that failure constituted a failure to carry out the Minister’s statutory task, it will give rise to jurisdictional error.

55    In making that assessment, I will keep in mind as I must do, the danger of the assessment sliding into an impermissible merits review: Omar at [36(a)]. It is no part of my function to substitute the moral judgment made by the Minister for my own. It is, however, my function to assess whether or not the Minister complied with the statutory process required of the Minister in forming the moral judgment he did.

56    The Minister has a statutory obligation to have regard to information provided by a visa applicant or otherwise obtained by the Minister: s 55 and s 56 of the Act. I am satisfied, including with particular reference to the consequences of the statutory decision in question, that it is implicit that the discharge of the Minister’s statutory task entails an obligation “to engage in an active intellectual process with reference to those representations”: Omar at [36(d)].

57    As the Full Court said in Omar at [37] (emphasis in original):

The Minister’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request is also consistent with the following observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed):

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

58    The obligation upon the Minister to give meaningful consideration to the representations made by Mr Khodr also arises from the central place in the relevant statutory regime that the subject matter of those representations occupies. No proper assessment of a person’s good character could be reasonably made in the absence of the moral compass provided by the standards and expectations of the Australian community.

59    That imperative was appreciated by the Minister, as is recognised by the extensive reference made in the Minister’s reasons to the expectations of the Australian community. What is curious however, particularly because the Minister was considering a foreign marriage, is that there is no recognition in those reasons of the community standards and expectations that are reflected in the provisions of the Marriage Act dealing with foreign marriages.

60    The representations made by Mr Khodr to the Minister in relation to those provisions of the Marriage Act were directed to the acceptable age of marriage and sought to make the point that, in relation to foreign marriages, the Marriage Act essentially recognised the acceptable age of marriage to be that provided for by the local law of the country in which the parties to the marriage were domiciled.

61    There was substance to that representation, although it requires qualification. It is true to say that the provisions of the Marriage Act which provide for recognition of foreign marriages are conditioned upon the local law having recognised the marriage as valid. That condition is required by s 88C(1)(a) and to that extent the marriageable age set by the local law is given recognition. There are, however, other conditions specified in s 88D of the Marriage Act upon which the recognition of the foreign marriage in Australia as a valid marriage depend. Some of those conditions turn upon the age of the parties when entering upon marriage and there are other disqualifying conditions which turn upon different considerations such as:

    that at the time of the marriage, one of the parties was already a party to a marriage recognised in Australia as valid: s 88D(2)(a);

    that the parties are not in a prohibited relationship as specified by s 23B (such as where one party is a descendent or sibling of the other): s 88D(2)(c); or

    where consent of either of the parties to the marriage was not a real consent for a reason set out in s 23B(1)(d)(i), (ii) or (iii) (which reasons include that the party did not understand the nature and effect of the marriage ceremony): s 88D(d).

62    Section 23B of the Marriage Act sets out a number of grounds on which a marriage in Australia is void. Some of those grounds have been picked up and applied to foreign marriages as the discussion above indicates. One disqualifying ground for Australian marriages (specified in s 23B(1)(e)) is that either of the parties is not of marriageable age (ie 18 years old or where a relevant exception applies 16 years old). That ground has not been picked up and applied to foreign marriages. A different approach has been taken on the question of marriageable age for foreign marriages to that taken for marriages entered into in Australia or involving a person domiciled in Australia. As stated already, s 88D(3) provides that if neither party was domiciled in Australia at the time of the marriage, the marriage will be recognised as valid once both parties are over 16 years of age.

63    That difference in treatment, particularly in circumstances where it was open to Australia under the Convention to refuse to recognise a foreign marriage where the parties to the marriage had not reached the marriageable age in Australia or to refuse recognition of a marriage which is manifestly incompatible with Australian public policy, is instructive. It reveals that the underlying public policy or the Australian standards and expectations on the acceptable marriageable age for a foreign marriage, are different to those for an Australia marriage.

64    The Minister is right to contend that the provisions of the Marriage Act dealing with the recognition of foreign marriage do not condone Mr Khodr’s conduct in marrying Mrs Khodr when she was only 12 years of age. Nevertheless, the provisions speak to the legal consequences of that conduct and recognise that conduct as having established a marriage that Australian law will recognise to be a valid marriage once certain conditions are satisfied. The provisions dealing with foreign marriages may not be an exhaustive reflection of Australian standards and expectations on that subject and the Minister’s counsel was correct to contend that the Minister was not required to assess the expectations of the Australian community “exclusively” by reference to those provisions. However, whilst I recognise the need to give due recognition to the Minister’s “decisional freedom” (Omar at [34](h)) as to what constitutes the relevant standards and expectations of the Australian community, for the Minister to have left out of consideration entirely the provisions of the Marriage Act dealing with foreign marriages, when those provisions speak to the very subject the Minister was considering – Australia’s standards and expectations as to the acceptable marriageable age of a foreign marriage – demonstrates that the Minister failed to give meaningful consideration to those standards and expectations.

65    In coming to that conclusion I reject the contention made on behalf of the Minister that the provisions of the Marriage Act dealing with foreign marriages say nothing about the expectations of the Australian community in relation to a person who, after being validly married under the law of the foreign State in which he was domiciled, commenced a sexual relationship with a person who is 12 years old. Again, whilst the provisions in question do not condone such conduct, that such conduct (ie under-age sexual relations prohibited by law in Australia) would occur is not beyond what the underlying policy about the recognition of foreign marriages must have contemplated. Despite such sexual relations having been contemplated or more probably presumed, Australia remained prepared to recognise the validity of the marriage in which relations of that kind occurred. That preparedness says something about the standards and expectations of the Australian community.

66    There is a second aspect of Mr Khodr’s second ground of review that I also need to address. Mr Khodr relied on the statement of the Minister made at [59] (set out above at [44]) and in particular the Minister’s statement at [59] that the conduct of Mr Khodr in Lebanon with which that paragraph is dealing “is also unlawful conduct under the laws in Australia”. Mr Khodr contended that in concluding that his conduct in Lebanon was conduct that contravened Australian law, the Minister erred by having misunderstood Australian law.

67    However, fairly read, the Minister’s statement was not to the effect that Mr Khodr’s conduct in Lebanon was unlawful under Australian law. The Minister was merely saying that if the conduct had occurred in Australia it would have been unlawful conduct under Australian law. That the Minister acted on that premise rather than the premise contended for by Mr Khodr seems to be confirmed by the contents of [75] of the reasons of the Minister.

68    Accordingly the first aspect of Mr Khodr’s second ground of judicial review should be upheld whilst the second aspect should be rejected. No point was taken about the materiality of the error made and, in my view, it was material.

Procedural Fairness

69    By his third ground, Mr Khodr contended that jurisdictional error was manifested in the Minister’s failure to afford him an opportunity to respond on particular matters.

70    As earlier stated, the Minister imputed to Mr Khodr the holding of various beliefs about under-age marriage. At [82] of his reasons the Minister set out his concern that if Mr Khodr “were to continue to espouse these views or act on these views in Australia” he may encourage other members of the Australian community “to participate in conduct that is forced marriage and otherwise illegal by the laws of Australia”.

71    The Minister then (at [83]) noted that Mr Khodr’s most recently declared employment in Lebanon was that of a teacher of the Quran in a Mosque and that all of his declared employments had been in Islamic educational institutions, as a teacher, supervisor or a salesman. At [84] the Minister then said this:

If Mr KHODR's visa is granted and he came to live in Australia and obtained similar employment, I consider that this could provide him with a platform to espouse his views regarding marriage and consummation of marriage with female children, including those under the age of 16, the earliest legal age for marriage in Australia. Were he to secure similar employment, he could have access to community members including minor, male Australian citizen children, whom I find may be vulnerable to influence, the minors due to their age, and all community members, owing to the position of authority held by teachers or instructors.

72    At [85]-[86] the Minister continued (emphasis in original):

I also consider that Mr KHODR would have the opportunity to espouse his views concerning child marriage, and the consummation of such marriages, within his immediate and extended family in Australia, and within other groups such as any social or religious circles he may develop within Australia.

I find that that the promulgation of these views by Mr KHODR has the potential to encourage others to engage in similar conduct, either in Australia, where it is prohibited by law, or abroad. I further consider that Mr KHODR's conduct is not conducive to equality of agency within a spousal relationship nor in the freedom and dignity of the child victim, such values being identified in the Australian values statement. In a document dated 5 November 2017, the values are acknowledged by Mr KHODR who states that he 'underrated' these values and now understands and undertakes to respect these.

73    The Minister then noted that under-age marriage is outlawed in Australia, and that in all States and Territories it is a criminal act to engage in sexual conduct with a child under the age of 16 years (at [87]), whereupon the Minister concluded at [88]:

I find that Mr KHODR's presence in Australia poses a risk to the Australian community in that others may be influenced to believe and act on his views that the marriage to an Australian citizen child and having sexual relations with the child, provided it occurs in a country where that conduct is not outlawed, is moral, lawful, justified and acceptable. While I acknowledge that this risk is low, I nevertheless consider it to be an unacceptable risk associated with the grant of a visa to Mr KHODR.

74    The denial of procedural fairness asserted by Mr Khodr was particularised as:

(a)    The Minister relied on the applicant’s previous employment in Lebanon with “Islamic educational institutions” as a basis for finding the applicant posed a risk to the Australian community.

(b)    The Minister further made a finding that the applicant might espouse his (imputed) beliefs to other vulnerable people in Australia if he obtained similar employment and thereby posed a risk to the Australian community.

(c)    The issues of the applicant’s employment in Lebanon, his intended employment in Australia (if any) and the possibility the applicant might seek to proselytise on the issue of child marriage in Australia were not put to the applicant for comment.

75    Mr Khodr submitted that the issue of his possible employment in Australia in Islamic educational institutions was never canvassed with him or put to him as a matter that may lead to a refusal of his visa application on character grounds. Furthermore, he contended that, to the extent that the views or beliefs attributed to him by the Minister were an accurate description of his views about the appropriate age for girls to marry in Australia (which he did not accept), there was no evidence to indicate that he had ever sought to proselytise that view or to persuade others to act on it by procuring marriages with under-age girls. He contended that such a proposition was never put to him for comment and that, as that was a proposition on which the Minister relied in finding that he would pose a risk to the Australian community if he were granted a visa, he was denied procedural fairness.

76    The first particular upon which Mr Khodr relies – the Minister’s use of information about his employments in Lebanon – may be dealt with briefly. In my view Mr Khodr’s reliance on the Minister’s use of that information is misplaced. The paragraph in question in the Minister’s reasons is [84]. Read fairly, I do not regard the Minister as relying upon the fact that in his prior employments in Lebanon, Mr Khodr had been espousing his beliefs. If the Minister had done that, it may well be the case that Mr Khodr should have been given an opportunity to deal with whether or not he had so conducted himself in those employments. All that I think the Minister did in relation to Mr Khodr’s employments in Lebanon is take into account the fact that given his experience in Lebanon as an employee of educational institutions, it was more likely that if residing in Australia, Mr Khodr may obtain work in similar institutions. That greater likelihood was then relied upon by the Minister for the proposition that there was a greater risk that Mr Khodr could have a platform from which to espouse his beliefs. However, there was no obligation on the Minister to provide Mr Khodr with an opportunity to respond to the information the Minister relied upon as to the nature of Mr Khodr’s prior employments in Lebanon. That is so because, for reasons I will shortly explain, the Minister’s obligation to afford Mr Khodr an opportunity to comment on information that may be adversely utilised by the Minister as a reason or part of the reason to refuse his application for a visa, is governed by s 57 of the Act. Section 57(1)(c) of the Act operated to excuse the Minister from giving to Mr Khodr particulars of the information about his prior employments in Lebanon because that information was given by Mr Khodr to the Minister for the purpose of his application for a visa.

77    There is more merit in the second matter relied upon by Mr Khodr – that the natural justice hearing rule required the Minister to have provided him an opportunity to respond to the concern relied upon by the Minister that, if he were permitted to reside in Australia, he would advocate or proselytise his beliefs so as to pose a risk to the Australian community because “others may be influenced to believe and act on his views” (at [88]).

78    It was not in contest that in deciding under s 501 of the Act to refuse a visa application, the Minister is required to afford a visa applicant procedural fairness. What was primarily in contest on this ground was whether the content of the Minister’s obligation to provide procedural fairness was affected by Subdivision AB of Div 3 of Pt 2 of the Act (“Subdivision AB”) and, in particular, by s 51A(1) read with s 57, so as to excuse the Minister from being required to give Mr Khodr notice of a particular issue or concern adverse to him and critical to the success of his application in circumstances where the issue or concern was not obviously open on the known material.

79    Mr Khodr denied that the Minister’s obligation to accord him procedural fairness was relevantly ousted by the statute. However, before turning to whether and to what extent procedural fairness obligations may have been ousted, it is convenient to deal first with the requirement of the natural justice hearing rule and consider whether Mr Khodr was denied procedural fairness presuming that the content of the Minister’s obligation to afford procedural fairness was that required by the common law as implied into the Act but otherwise not relevantly ousted by the Act.

80    The procedural fairness obligation imposed by the common law natural justice hearing rule was discussed in the reasons of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29] and also [32]. Their Honours there endorsed the following observations made by Northrop, Miles and French JJ in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, which they extracted at [29] as follows:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

(Emphasis added by Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ)

81    The procedural fairness obligation there specified addressed two separate but related incidents of the requirement to provide an affected person with a fair opportunity to be heard. The first is that the person be given an opportunity to comment or respond to adverse material put before the decision-maker “from other sources”, that is, material received from sources other than the affected person. The second incident is the requirement upon the decision-maker to identify to the person affected any issue or conclusion critical to the decision which is “not apparent from its nature or the terms of the statute” or “which would not obviously be open on the known material”.

82    Those two incidents of the obligation to provide an affected person with a fair opportunity to be heard reflect observations made in Kioa v West (1985) 159 CLR 550. The first incident reflects observations made by Brennan J, whilst the second reflects separate and additional observations made by Mason J. So much was noted in the following statement made by French CJ, Gummow, Hayne, Crennan and Kiefel JJ in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [19] (references omitted):

Brennan J in Kioa v West said that, in the ordinary case, an opportunity should be given to a person affected by a decision to deal with any adverse information that is “credible, relevant and significant”. That approach has more recently been confirmed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs. Mason J in Kioa v West went further. In his Honour’s view the common law would require the decision-maker to bring the critical issue or factor on which the decision was likely to turn to the attention of the person. Brennan J’s approach would not deny that this may be necessary in a particular case.

83    In Degning v Minister for Home Affairs (2019) 270 FCR 451 at [12], after referring to Alphaone and SZBEL, Allsop CJ (with whom Collier J agreed at [43]) summarised the common law position by observing that a person affected was “entitled to have his mind directed to the critical issues or facts on which the decision was likely to turn unless the recognition of the issue was, from the material with which he was provided, an obvious and natural conclusion to draw”. His Honour continued (at [13]):

One should look at the whole of the circumstances including the documents given to [the affected person] to assess whether he had his mind directed to the critical issues or factors on which the decision was likely to turn and to be informed of the nature and content of relevant material. In that assessment, it is relevant to assess what is or is not an obvious or natural evaluation of the material which need not be the subject of particular attention being drawn. The ultimate touchstone is fairness.

84    Further, as to the nature of the obligation to direct the mind of the affected person to the critical concerns of the decision-maker, in BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [162] I said this:

Bearing in mind that the guiding principle is one of fairness (VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82; at [28] (Allsop J, with whom Gyles and Conti JJ agreed on this point)), the obligation upon the delegate to notify [the affected person] of the critical issues on which the decision was likely to turn cannot have been discharged at the level of generality for which the Minister contended. The critical issues to be considered and any adverse information relied upon by the delegate needed to be identified at a level of specificity which gave meaning to the opportunity to respond: SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [22] (Flick J).

85    I turn then to consider whether the Minister provided Mr Khodr procedural fairness in accordance with the content of the natural justice hearing rule.

86    Any obligation upon the Minister to have identified his concern that Mr Khodr would advocate his beliefs in Australia, with the consequent risk to the Australian community that others would act on his views, only arose if that issue or concern may be regarded as critical to the decision made by the Minister. It was not contended on behalf of the Minister that that issue was not an issue critical to the decision to refuse the grant of the visa. In my view, the reasons provided by the Minister demonstrate that whilst the issue was not necessarily determinative, it was an important issue in the Minister’s exercise of his discretion and of sufficient criticality to engage the obligation in question. The criticality of the issue is sufficiently demonstrated by reference to [124] and [125] of the Minister’s reasons. The risk of harm to the Australian community posed by Mr Khodr espousing his views was one of the two factors identified by the Minister at [125] as outweighing countervailing considerations and resulting in the Minister exercising his discretion to refuse Mr Khodr’s application for a visa.

87    Mr Khodr is right to contend that he was given no notice of the Minister’s concern that he would advocate his beliefs in Australia with consequential risk for the Australian community. There were various communications between the Department and Mr Khodr, and between the Department and Mr Khodr’s migration agent. A notice of intention to consider refusing the application was provided to Mr Khodr on 9 October 2017. That notice did identify various concerns held by the Minister relating to Mr Khodr’s marriage and the age of Mrs Khodr upon their marriage and upon giving birth to two of their children. Mr Khodr was notified that those matters might constitute past or present conduct indicating that he was not of good character. Mr Khodr’s migration agent made submissions in response to the notice. As indicated already, Mr Khodr was interviewed by an officer of the Department on 9 November 2017. It was from the answers there given to questions directly put to Mr Khodr that the Minister imputed to Mr Khodr the various beliefs that he did. There was no suggestion made to Mr Khodr in that interview that he had advocated for his beliefs and sought to influence others, and no indication of any concern that he may advocate his beliefs in Australia. Mr Khodr’s migration agent provided further submissions regarding the record of interview including by raising issues about its accuracy. More than a year later, the Department issued a “request for further information regarding possible visa cancellation ([sic refusal]) under s 501(1) of the Migration Act”. The notice provided Mr Khodr with a copy of Ministerial Direction No 79 and invited him to comment. Further submissions were made on Mr Khodr’s behalf in response to that notice. A further notice was sent to the applicant on 27 May 2019. That notice included information referrable to the age of consent in Australia. Further submissions in response were provided on behalf of Mr Khodr.

88    Those communications from the Department directed Mr Khodr to various concerns held by the Department and provided him with an opportunity to respond to those concerns. A concern that Mr Khodr would advocate his views in Australia was not raised. It is not surprising that that issue was not canvassed in the submissions made on Mr Khodr’s behalf, the available inference being that neither Mr Khodr nor his migration agent appreciated that any such concern existed.

89    The Minister did not contend that the concern in question was put to Mr Khodr in its terms. However, the Minister did say that Mr Khodr was on notice that one of the matters that the Minister may take into account in deciding whether to exercise his discretion to refuse the visa was the protection of the Australian community, including whether Mr Khodr represented a risk of harm to individuals and groups in the Australian community. In support of that contention, the Minister referred to the correspondence from the Department to Mr Khodr of 6 March 2019 in which a copy of Ministerial Direction 79 was enclosed. The correspondence advised Mr Khodr that the Minister was not bound by Direction 79 but that that Direction provided a broad indication of the types of issues that the Minister was likely to take into account in deciding whether to refuse Mr Khodr’s visa application. Mr Khodr was invited to comment.

90    Direction 79 is a sizeable document of some 33 pages which addresses a large number of topics. The submissions made by the Minister pointed to some of the content of Part B of Direction 79. The introduction to Part B identifies three “primary considerations” in deciding whether to refuse a non-citizen’s visa. One such consideration is the “protection of the Australian community from criminal or other serious conduct”. That consideration is then dealt with in more detail and Direction 79 specifies that when considering the protection of the Australian community, decision-makers should have regard to the principle that the Government “is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct non-citizens”. The Direction then states that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. There then follows a section (on which the Minister’s submissions specifically relied) in which guidance is provided to decision-makers for assessing the risk to the Australian community:

11.1.2    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.

(2)    In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(3)    In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

a)    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)     The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.     information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and

ii.     evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and

   iii.     the duration of the intended stay in Australia.

(4)    Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

91    It is notable that in considering the risks to the Australian community, what Direction 79 seems to direct attention to is the risk of the non-citizen engaging in “further criminal or other serious conduct”.

92    I would accept that by reason of his attention being drawn to Direction 79, Mr Khodr was on notice that it was possible that the Minister may refuse his application by reason of a concern to protect the Australian community from the risk of harm occasioned by Mr Khodr engaging in “further criminal or other serious conduct”. However, in the absence of the Minister specifying the conduct or the further conduct which may be the basis of the particular concern, or the circumstances otherwise making that basis obvious, I do not accept that the Minister’s obligation to direct Mr Khodr to the particular concern in question was discharged. As I stated in BMF16 by reference to the observation of Flick J in SZMUF v Minister for Immigration and Citizenship [2009] FCA 182, the issue “needed to be identified at a level of specificity which gave meaning to the opportunity to respond”. As I also observed in BMF16 at [165] by reference to the facts of that case, it would not be sufficient for a decision-maker to merely identify a broad topic “leaving it to [the person affected] to anticipate and address every conceivable issue that might possibly arise” in relation to that topic.

93    At best, all that was identified to Mr Khodr was that his prior serious conduct may give rise to a concern held by the Minister that if that conduct was repeated whilst he resided in Australia, the Australian community would be put at risk. There was no prior conduct drawn to Mr Khodr’s attention other than his conduct in and surrounding his marriage to Mrs Khodr. No attention was drawn to Mr Khodr’s beliefs and there was no hint given to Mr Khodr that his beliefs would be treated as conduct. It was not suggested to Mr Khodr that he had previously advocated his beliefs at all or, more particularly, done so in an attempt to influence others into action and there was no suggestion of that from the known material. To adopt the language of Allsop CJ, in Degning at [36] and [38] (in a case where a visa was cancelled under s 501 because of a specific concern and the Minister relied on the general terms of Direction 65, the predecessor to Direction 79 ), “[Mr Khodr] was entitled to have the issue drawn to his attention” and it was “unfair not to direct [Mr Khodr] to this issue” in the context of the “common law requirement of procedural fairness or natural justice [being] rooted in the common law’s inhering demand for fairness in the way power is exercised”.

94    As may already be apparent, I am not persuaded that the Minister was relieved of the obligation to identify his specific concern to Mr Khodr because it was “apparent from its nature or the terms of the statute” or “would [have been] obviously…open on the known material”. Neither its nature nor the terms of the statute made the particular concern held by the Minister apparent. I note that the position may well have been different if Mr Khodr had been notified that the statutory criteria to be applied by the Minister was that in s 501(6)(d)(iv), which relevantly provides that a person does not pass the character test if, in the event that the person were allowed to enter or to remain in Australia, there is a risk the person would “incite discord in the Australian community or in a segment of that community”.

95    Nor is there a basis for a conclusion that the particular concern of the Minister was obviously open on the known material. The Minister did not contend that it was and did not point to any material upon which that conclusion could be founded. The Minister’s decision identifies two matters upon which he relied to come to the view that Mr Khodr may advocate his beliefs with consequent risk to the Australian community if he were permitted to reside in Australia. The first matter was that Mr Khodr held the beliefs imputed to him by the Minister and the second was that Mr Khodr had been employed in Lebanon in Islamic educational institutions. There was no material before the Minister which established or from which an inference could legitimately be drawn that, either within those educational institutions or elsewhere, Mr Khodr had been involved in advocating his beliefs in an attempt to influence others to act upon them. Bearing in mind that the “ultimate touchstone is fairness”, I do not accept that an obvious or natural evaluation of the known material objectively demonstrates that Mr Khodr’s mind was directed to the issue in question.

96    I then turn to consider the Minister’s submission that, by reason of the provisions of Subdivision AB, the content of the Minister’s procedural fairness obligation did not include a requirement to identify to Mr Khodr an issue critical to the Minister’s decision.

97    That submission was made relying on two provisions of Subdivision AB – s 51A and s 57 – the relevant terms of which are as follows:

s 51A    Exhaustive statement of natural justice hearing rule

(1)    This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

…

s 57    Certain information must be given to applicant

(1)    In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

   (a)    would be the reason, or part of the reason:

    (i)    for refusing to grant a visa; or

(ii)    for deciding that the applicant is an excluded fast track review applicant; and

(b)    is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c)    was not given by the applicant for the purpose of the application.

Note:    Excluded fast track review applicant is defined in subsection 5(1).

(2)    The Minister must:

(a)    give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

   (c)    invite the applicant to comment on it.

98    The Minister contended that s 57 is an exhaustive statement of what the natural justice hearing rule required in relation to adverse information that the Minister must give to the visa applicant. That submission recognised, as is well accepted by authority, that s 51A (as well as counterpart provisions such as s 422B(1) of the Act) only has effect in ousting the natural justice hearing rule in relation to a matter which is dealt with by both the natural justice hearing rule and a provision of Subdivision AB: Saeed at [35]-[42]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [34]-[35] (Bell, Gageler and Keane JJ); and BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at [31] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon JJ).

99    In SZMTA, referring to s 422B(1) and (2) and citing Saeed at [41]-[42] and [78], Bell, Gageler and Keane JJ said at [35] that “[t]he ‘matters’ to which the sub-sections refer are the discrete subject matters of the provisions. The discrete subject matter of each provision is indicated by, but not limited to, the terms of each provision”. The reasoning in SZMTA at [27]-[37] was subsequently described as recognising that an incident of the obligation of procedural fairness can fall outside the scope of the discrete subject matter of a provision like s 57: BVD17 at [31].

100    It is necessary then to consider whether the incident of the obligation of procedural fairness which Mr Khodr contends the Minister failed to provide him, falls within or outside of the discrete subject matter dealt with by s 57.

101    The two separate but related incidents of the natural justice hearing rule are referred to above at [81]. The authorities referred to at [80] and [82] underscore the separate and distinct nature of each incident of the obligation.

102    Relying on BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929 at [122]-[125] (Thawley J), the Minister contended that s 57 is an exhaustive statement of what the natural justice hearing rules requires in relation to adverse information that the Minister must give to the visa applicant. I would agree that the incident of the natural justice hearing rule which requires that the affected person be given an opportunity to comment or respond to adverse material obtained from other sources, is encompassed within the “matter” dealt with by s 57 of the Act. However, what was implicit in the submission made for the Minister, what is crucial to its success and not addressed in BHL19, is that another discrete matter is dealt with by s 57, namely, the requirement upon a decision-maker to identify to the person affected any issue or conclusion critical to the decision which is not apparent from its nature or the terms of the statute and which would not obviously be open on the known material. In my view that incident of the natural justice hearing rule is not a discrete subject matter of s 57 of the Act.

103    The matter dealt with by s 57 by reference to its subject was described by French CJ, Gummow, Hayne, Crennan, Kiefel JJ in Saeed at [42] as “the provision of information more generally relevant and adverse, for comment”. The term “information” utilised in s 57 (and its counterparts) has been described as not extending “beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature”: see SZMTA at [28] and SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

104    The “matter” dealt with by s 57 bears a close resemblance to the requirement of the natural justice hearing rule that the person affected be given an opportunity to comment or respond to adverse material put before the decision-maker from other sources. The incident of the natural justice hearing rule, which requires the decision-maker to identify to the person affected any issue critical to the decision, is not dealing with the provision for comment of adverse material or documentation of an evidentiary nature. That incident of the natural justice hearing rule is not directly concerned with providing an affected person with an opportunity to respond to adverse information obtained from sources other than that person. Its primary concern is that a person affected be provided with a fair opportunity to comment on adverse inferences or conclusions which a decision-maker may make on the basis of information, howsoever obtained, including where obtained from the person affected.

105    That subject is not a discrete “matter” with which s 57 deals. If it were a subject matter with which s 57 deals, the protections afforded to an affected person by the natural justice hearing rule would be substantially diminished. In particular, adverse inferences could be drawn and adverse conclusions could be made by a decision-maker on the basis of information provided by the affected person without that person being given any opportunity to comment. That would be so irrespective of whether the inference drawn or conclusion reached was obviously open on the material provided to the decision-maker. The facts of this case demonstrate the potential for such unfairness. More severe examples of unfairness can readily be contemplated. Highly prejudicial inferences could be drawn from information which, if an opportunity to explain had been given, would be revealed to be entirely innocuous. In the absence of clear language, s 57 should not be construed as intended to have such a consequence. As was stated in Saeed at [25], the imposition of limitations upon or extinguishment of the obligation to accord procedural fairness requires a clear expression of legislative intent.

106    For those reasons, I reject the Minister’s contention that the requirement to have identified to Mr Khodr a critical issue for consideration was ousted by the operation of s 51A and s 57. The materiality of the failure to accord procedural fairness was not in issue. Accordingly, Mr Khodr succeeds on this ground of review.

The risk of under-age marriage for Mr Khodr’s daughters

107    A further jurisdictional error asserted by Mr Khodr was based upon the manner in which the Minister addressed the risk of under-age marriage for Mr Khodr’s three daughters, each of whom is an Australian citizen. The nature of the jurisdictional error was variously described as a failure to consider or to properly consider an issue that arose squarely from the materials before the Minister or, alternatively, as an instance of legal unreasonableness founded upon the application of an illogical or irrational reasoning process by the Minister.

108    Mr Khodr relied upon the following observations made by Wigney J in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 as to illogicality or irrationality in relation to the exercise of the discretion conferred by s 501(1) of the Act. Whilst his Honour was in dissent, the following statement of the relevant principles is uncontentious. At [143] to [146], Wigney J stated:

That is not, however, the only basis upon which the Minister may be found to have erred in a jurisdictional sense in cancelling the appellant’s visa. If, having found that he was not satisfied that the appellant passed the character test, the Minister exercised his discretion to refuse to grant the visa on the basis of factual findings that were illogical or irrational, or not supported by probative evidence, that too would amount to a jurisdictional error: Muggeridge at [35] and [58]. Illogical or irrational findings made by a decision maker “on the way” to a final conclusion may establish jurisdictional error: SZMDS at [132]; see also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62]; Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 at [54].

It is critical to emphasise, however, that illogicality or irrationality in this context must mean something more than emphatic disagreement with the reasoning or findings: SZMDS at [124]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61]. If “probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion”: SZMDS at [131].

It should equally be emphasised that, for an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must generally be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: SZRKT at [148]. The “critical question” whether an administrative decision is irrational, illogical, and not based on findings or inferences of facts supported by logical grounds, “should not receive an affirmative answer that is lightly given”: SZMDS at [40]. A high degree of caution must be exercised before concluding that a finding is irrational or illogical in order to ensure that the Court does not embark impermissibly on “merits review”: SZMDS at [96]; SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 at [14]-[15].

It should finally be observed, in this context, that in considering whether an administrative decision maker’s decision or exercise of discretion was the product of, or was materially affected by, illogical or irrational reasoning or factual findings, the decision maker’s reasons should not be the subject of over-zealous scrutiny: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].

109    How Mr Khodr’s beliefs related to the marriage of his daughters was the subject of a question put to Mr Khodr at the interview with the departmental officer. The content of Mr Khodr’s answer is set out at [51] of the Minister’s reasons (reproduced at [18] above). Read in the context of his previous answer about marriage in Lebanon (at [50] and reproduced above at [17]), Mr Khodr stated that if a daughter of his wanted to get married and she had reached puberty (as Sharia law requires) it would be fine with him for his daughter to marry.

110    Having set out that answer, the Minister then said (at [52]):

It is relevant that Mr KHODR has three Australian citizen daughters.

111    The Minister thereafter treated the risk of under-age marriage of Mr Khodr’s three Australian daughters as relevant to the exercise of his discretion. Despite the fact that Mr Khodr declared to the Minister that he had been informed of Australian values and undertook to respect those values and to obey the laws of Australia (at [79]), the Minister (at [81] and [82]) in assessing the need to protect the Australian community, considered that if Mr Khodr was in Australia there was a risk that he would “condone under-aged marriage practices involving child-brides in Australia and this risk may extend to approving the practice in regard to his own daughters” and that if Mr Khodr continued to espouse his views, his three daughters who are members of the Australian community would be placed at risk of harm, namely, that they may be subjected to a forced marriage or conduct otherwise illegal by the laws of Australia which, in context, I understand the Minister to have meant that the daughters may be subjected to under-age sex and under-age marriage.

112    The Minister treated the risk of harm to Mr Khodr’s daughters as a consideration that weighed against the exercise of his discretion to grant the visa because he reasoned that the grant of the visa would put members of the Australian community, including Mr Khodr’s daughters at risk. The Minister separately considered the best interests of the daughters and came to the view that it was in their best interests that he exercise his discretion in favour of the grant of the visa. However, in considering that issue, the Minister did not take into account that Mr Khodr’s daughters were at risk of exposure to under-age marriage and its associated ills in Lebanon because the refusal of the visa would likely result in the daughters moving to Lebanon.

113    Mr Khodr contends that having identified the risk to Mr Khodr’s daughters as a relevant consideration it was incumbent upon the Minister, if he was to properly carry out his statutory task, to have assessed that risk properly and rationally. That was not done according to Mr Khodr because the Minister failed to take into account that the risk to Mr Khodr’s daughters identified and relied upon by the Minister, was heightened if the Minister exercised his discretion to refuse the visa. Mr Khodr contended that that was so for two reasons. First, there was material before the Minister (which was not rejected and arguably accepted) showing that it was likely that a rejection of Mr Khodr’s application for the visa would lead to the daughters and Mrs Khodr (who were each domiciled in Australia at the time of the Minister’s decision) joining Mr Khodr and residing in Lebanon. Second, the likelihood of the daughters being subjected to under-aged marriage, under-aged sex or forced marriage was far greater if they were domiciled in Lebanon than if they were domiciled in Australia.

114    On the findings made by him, the Minister was correct to consider the risk to Mr Khodr’s Australian daughters of exposure to under-age marriage and its associated ills to be a relevant consideration to the exercise of his discretion. However, the reasoning applied by the Minister to deal with that consideration was clearly unsound.

115    The risk to the daughters was dealt with as though it would only be brought about or caused by the exposure of the daughters to Mr Khodr as a resident of Australia and that, for that reason, the grant of the visa should be refused. It was irrational for the Minister to so reason. Whilst on the Minister’s findings the exposure of the daughters to their father’s influence or demands created the risk to the daughters, that exposure was not dependent upon Mr Khodr being a resident of Australia. The daughters could equally have been exposed to the influence or demands feared by the Minister if they resided in Lebanon with Mr Khodr, a circumstance that, on the material before the Minister, was the likely consequence of the visa being denied. Nor does it rationally follow that the daughters would not have been exposed to the feared influence or demands of their father even where they resided in a different country to their father. In sum, it was irrational for the Minister to base the risk he identified on Mr Khodr being a resident of Australia. The existence of that risk was not dependent upon Mr Khodr’s residency in Australia. Furthermore, given that the feared conduct would have been legal in Lebanon but illegal in Australia, the logical conclusion was that the daughters were safer from the risk of under-age marriage if they resided in Australia with their father. That irrationality in the Minister’s reasoning manifested jurisdictional error.

116    The contentions made for the Minister did not address legal unreasonableness. The Minister did contend that the possibility that Mr Khodr’s daughters would enter into under-age marriage if they returned to Lebanon was not a matter that the Minister was required to take into account. That was said to be so because the possibility was so speculative that no regard needed to be had to it.

117    I reject that submission. It is not a submission that directly addresses the irrationality or illogicality of the Minister’s approach to this issue. I will, however, take the submission into account on the question of materiality.

118    Dealing with the submission for that purpose, I reject the Minister’s contention that the possibility of the daughters’ entering into under-age marriage was speculative. The fact is that the Minister did take the possibility of under-age marriage for the daughters into account and regarded it as significant in considering the protection of the Australian community. In the context of the significance ascribed to this issue by the Minister, I do not regard the possibility of a different outcome as either fanciful or improbable: Chamoun at [66].

119    Mr Khodr succeeds on the basis of legal unreasonableness. It is not necessary to consider the alternative characterisation of jurisdictional error relied upon by Mr Khodr in relation to this ground.

120    For all those reasons, the fourth ground of review relied upon by Mr Khodr should be upheld.

conclusion

121    I will make orders setting aside the Minister’s decision to refuse Mr Khodr’s application for the visa and requiring that Mr Khodr’s application for the visa be reconsidered. There is no reason why costs should not follow the event. I will make an order requiring the Minister to pay Mr Khodr’s costs of this application.

Associate:

Dated:    11 March 2021