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

Federal Court of Australia

Khodr v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 198 File number: VID 128 of 2020

Judgment of: BROMBERG J

Date of judgment: 11 March 2021

Catchwords: MIGRATION LAW – ss 51A, 57, 501(1) and (6)(c) of the Migration Act 1958 (Cth) – application for judicial review of Minister's decision to refuse application for a Prospective Marriage visa – where applicant failed character test because not of good character – where applicant legally married his wife in Lebanon when she was younger than the marriageable age in Australia – whether Minister erred by treating applicant's beliefs in respect of marriageable age as "present general conduct" for the purposes of s 501(6)(c)(ii) – whether uncommunicated beliefs constitute "conduct" – whether Minister erred in his consideration of the standards and expectations of the Australian community in respect of child marriage – where Minister failed to take into account Marriage Act 1961 (Cth) as indicator of Australian expectations in relation to child marriage in foreign countries – procedural fairness – opportunity to be heard – whether Minister failed to identify to the visa applicant an issue critical to the decision – extent to which requirement to afford procedural fairness ousted by s 51A and s 57 of Subdivision AB of Migration Act – legal unreasonableness – irrationality – whether Minister erred in his consideration of the risk of the applicant's daughters entering under-age marriages – application allowed

Legislation: Migration Act 1958 (Cth) Marriage Act 1961 (Cth) Criminal Code Act 1995 (Cth)

Cases cited: BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929 BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Degning v Minister for Home Affairs (2019) 270 FCR 451 Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774 Kioa v West (1985) 159 CLR 550 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v Omar (2019) 272 FCR 589 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 Reg. v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327