El Khoueiry and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The applicant, El Khoueiry, sought judicial review of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to refuse to grant a Class BB Subclass 155 Five Year Resident Return visa. The refusal was based on the applicant failing to pass the character test, as mandated by section 501(1) of the Migration Act 1958 (Cth). The core of the dispute concerned whether the discretion to refuse the visa should have been exercised, particularly in light of Ministerial Direction No. 90, and the applicant's involvement in offences related to the trafficking of dangerous drugs. The matter was heard by SM J Rau.

The legal issues before the court were whether the Minister's delegate had properly considered and applied Ministerial Direction No. 90, specifically concerning the weight to be given to primary and other considerations, and whether the delegate had correctly assessed the nature and seriousness of the applicant's conduct and the risk to the Australian community. The court was required to determine if the delegate's decision to refuse the visa was affected by an error of law.

The court affirmed the decision under review, finding that the delegate had correctly applied the principles outlined in Ministerial Direction No. 90. The delegate considered the importance of "other considerations" being distinct from "secondary" considerations, as clarified in *Suleiman v Minister for Immigration and Border Protection*. The court noted that while primary considerations are generally given greater weight, the Direction requires an assessment of whether an "other consideration" should be afforded the greatest weight in specific circumstances. In this instance, the delegate appropriately considered Primary Consideration 1, the protection of the Australian community, by evaluating the nature and seriousness of the applicant's conduct, which involved offences related to dangerous drug trafficking, and the associated risk to the community. The court concluded that the delegate did not err in exercising the discretion conferred by section 501CA(4) of the Act to refuse to revoke the visa cancellation.