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

The matter before the court was an application by Mr El Khoueiry to review a decision of the Administrative Appeals Tribunal (AAT). The dispute centred on the AAT's refusal to revoke the mandatory cancellation of Mr El Khoueiry's visa under section 501CA of the Migration Act 1958 (Cth). Mr El Khoueiry argued that the AAT should have considered his drug addiction as a health issue in its mandatory assessment of the extent of impediments pursuant to Direction 90, section 9(1)(b). The contention was that this omission constituted a jurisdictional error, an illogical or irrational decision, or a denial of procedural fairness.

The court was required to determine whether the AAT erred in failing to consider Mr El Khoueiry's drug addiction as a relevant health issue when assessing the impediments he would face if removed from Australia. The court also needed to examine whether the AAT's decision was illogical or irrational and if procedural fairness was denied. The court recognised that the AAT must consider other relevant factors specified in section 9:9 of the relevant Direction, including the extent of any impediments to the non-citizen if removed from Australia, which takes into account the non-citizen's age and health.

The court held that the AAT was not required to consider Mr El Khoueiry's drug addiction as a health issue under section 9.2, which mandates consideration of impediments to establishing and maintaining basic living standards in the non-citizen's home country. The court found that the AAT's decision was neither illogical nor irrational, and procedural fairness was not denied. The representations made by Mr El Khoueiry were considered as a whole but did not compel the AAT to address his drug addiction as a health issue. The court dismissed the application and ordered that the applicant pay the first respondent's costs, to be assessed if not agreed.