Mamaku v Minister for Immigration and Multicultural Affairs

Case [2025] FCA 963

FEDERAL COURT OF AUSTRALIA

Mamaku v Minister for Immigration and Multicultural Affairs [2025] FCA 963

Review of:  Mamaku v Minister for Immigration and Multicultural Affairs [2023] ART 0456
File number: NSD 1667 of 2024
Judgment of: WIGNEY J
Date of judgment: 14 August 2025
Catchwords: MIGRATION – applicant’s visa cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) – decision not to revoke cancellation pursuant to s 501CA(4) of the Migration Act – application for judicial review of a decision of the Administrative Review Tribunal pursuant to s 499 of the Migration Act – whether the Tribunal failed to comply with Direction 110 of the Migration Act – whether the Tribunal ignored, overlooked or misunderstood relevant facts, materials or substantial and clearly articulated argument – consideration of comparable health and welfare services in New Zealand – application dismissed
Legislation: Migration Act 1958 (Cth) ss 499, 499(1), 500(1)(ba), 501(3A), 501(6)(a), 501(7)(c), 501CA, 501CA(3)(b), 501CA(4)
Cases cited:

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 65
Date of hearing: 24 July 2025
Counsel for the Applicant: Mr P Berg
Solicitor for the Applicant: SouthWest Migration & Legal Services
Counsel for the First Respondent: Mr T Reilly
Solicitor for the First Respondent: Mills Oakley Sydney
Counsel for the Second Respondent: The second respondent filed a submitting notice.

ORDERS

NSD 1667 of 2024
BETWEEN:

WALTER MAMAKU

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

14 AUGUST 2025

THE COURT ORDERS THAT:

1.The application be dismissed

2.The applicant pay the first respondent’s costs.

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


REASONS FOR JUDGMENT

WIGNEY J:

  1. The applicant, Mr Walter Mamaku, is a citizen of New Zealand who has resided in Australia pursuant to visas for almost his entire life.  On 28 February 2022, however, his visa was mandatorily cancelled by the respondent, the Minister for Immigration and Multicultural Affairs, pursuant to s 501(3A) of the Migration Act 1958 (Cth). Mr Mamaku subsequently made representations to the Minister concerning the revocation of the cancellation of his visa, however the Minister’s delegate declined to revoke the cancellation. Mr Mamaku then applied to the Administrative Appeals Tribunal, now the Administrative Review Tribunal, for a review of the delegate’s decision.  That review application was unsuccessful. 

  2. In this proceeding, Mr Mamaku applied for judicial review of the Tribunal’s decision to affirm the delegate’s decision not to revoke his visa cancellation.  The ground of his challenge to that decision was narrow. He contended that the Tribunal failed to complete the exercise of its review jurisdiction because it overlooked or ignored a substantial argument he…

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AGLC
Mamaku v Minister for Immigration and Multicultural Affairs [2025] FCA 963
Case
[2025] FCA 963
Decision Date

CaseChat Overview and Summary

In Mamaku v Minister for Immigration and Multicultural Affairs, the Federal Court considered a judicial review application brought by Mr Mamaku, challenging a decision of the Administrative Appeals Tribunal (AAT) not to revoke the cancellation of his visa. The core issue was whether the AAT properly considered Mr Mamaku's submissions concerning the unavailability of suitable opioid substitution treatment programs in New Zealand, which he argued would impede his rehabilitation if returned there. The Court held that the AAT's failure to explicitly refer to Mr Mamaku's submissions did not necessarily mean they were overlooked or misunderstood. The Tribunal's broader consideration of Mr Mamaku's health and rehabilitation needs, as well as the specific findings about the availability of medical support in New Zealand, indicated that the Tribunal had adequately considered the relevant issues. The Court concluded that the AAT had not failed to comply with its statutory obligations or ignore pertinent facts and materials.

The Court examined the principles governing the AAT's approach to reviewing visa cancellation decisions, emphasizing that the Tribunal is required to consider all relevant submissions and evidence but does not need to explicitly address every point raised by a party. The Tribunal's comprehensive analysis of the impediments consideration, including health and rehabilitation, demonstrated its compliance with the statutory requirements. Despite Mr Mamaku's arguments that the Tribunal ignored his specific contentions, the Court found no basis to support this claim. The Tribunal's decision, which included an assessment of Mr Mamaku's health needs and the availability of medical support in New Zealand, was deemed reasonable and in line with the statutory framework.

Orders

Orders of the court

1. The application be dismissed

2. The applicant pay the first respondent’s costs.

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

Background

Background to the litigation

The essence, or main thrust, of Mr Mamaku’s contention, as articulated in paragraphs 7 and 8, is that it is apparent from paragraph [131] of the Tribunal’s reasons that the Tribunal “did not consider” the “evidence and contentions” in his supplementary submissions concerning the fact that he would be ineligible for any opioid substitution treatment programs that may be available in New Zealand because only opioid addicts are eligible for such programs, and he is an Ice addict, not an opioid addict. In his written and oral submissions, Mr Mamaku emphasised that the Tribunal does not refer to his [Mr Mamaku’s] Supplementary Submissions in paragraph [131] of its Reasons, and does not address his evidence or contention that he would suffer an impediment if returned to New Zealand because he would be ineligible to participate in any OSTP in New Zealand because the programs that are available there are only for opioid users, not Ice users. He submitted that it could be inferred or concluded that the Tribunal ignored or overlooked the evidence and submissions on that topic in his Supplementary Submissions, particularly given the Tribunal’s earlier acceptance of his evidence concerning the importance of his participation in the OSTP he had accessed in Australia, albeit in the context of the risk that he might reoffend. DID THE TRIBUNAL IGNORE OR OVERLOOK ANY RELEVANT FACTS, MATERIALS OR ARGUMENTS? It may be accepted that, when considering and making findings concerning the “impediments” consideration at paragraph [131] of its Reasons, the Tribunal did not expressly or explicitly refer to Mr Mamaku’s Supplementary Submissions, or his contention that he would face an impediment if returned to New Zealand because New Zealand did not offer OSTPs like the one in which he had participated in Australia, being an OSTP which treated Ice users. It may also be accepted that the Tribunal did not make any express finding as to whether such OSTPs were available in New Zealand. It does not necessarily follow, however, that the Tribunal ignored or overlooked Mr Mamaku’s contentions or materials that addressed that issue. Before squarely addressing the question whether it can or should be concluded that the Tribunal ignored or overlooked Mr Mamaku’s contentions or materials concerning the unavailability of a suitable OSTP in New Zealand, it is necessary to say a little more about the applicable principles. It is also necessary to provide more detail about exactly what submissions and materials were before the Tribunal in respect of the availability of OSTPs or similar drug treatment or rehabilitation programs for Ice users in New Zealand. It is also necessary to address exactly what the Tribunal was required to consider in respect of the impediments consideration and what the Tribunal actually found in respect of it. Relevant principles As noted earlier, Mr Mamaku relies on a passage from the judgment of the High Court in Plaintiff M1/2021. That passage, however, must be read and considered in light of the other principles enunciated by the High Court in that case concerning the approach that decision-makers must take to representations made by a person in the context of s 501CA(4) of the Migration Act. A decision-maker, in that context, would include the Tribunal, standing in the shoes of the Minister, when hearing an application for the review of a decision of the Minister’s delegate not to revoke the cancellation of a person’s visa. The principles which are of particular relevance to this case may be briefly summarised as follows.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Mamaku was invited to and made representations to the Minister about the revocation of the decision to cancel his visa. On 17 January 2023, the Minister’s delegate decided not to revoke the cancellation. It is unnecessary to refer to the reasons given by the delegate.THE TRIBUNAL’S REVIEW OF THE DECISION NOT TO REVOKE THE CANCELLATION Mr Mamaku applied to the Tribunal pursuant to s 500(1)(ba) of the Migration Act for a review of the delegate’s decision not to revoke the cancellation of his visa. Unfortunately, the Tribunal’s consideration and determination of that review application had a rather long and tortuous history. It is necessary to recount some of that history as it bears to some extent on the issues raised by Mr Mamaku’s contention that the Tribunal overlooked or ignored one of his important arguments. Mr Mamaku’s review application was initially heard and determined by a Deputy President of the Tribunal. On 12 April 2023, the Deputy President affirmed the delegate’s decision, however that Tribunal decision was set aside by consent by order of this Court on 3 October 2023. The review application was remitted to the Tribunal for redetermination. The Tribunal, constituted by a Senior Member, convened a hearing on 22 and 23 April 2024. Mr Mamaku, who was represented by counsel at the hearing, gave evidence, as did his sister. A large volume of documentation was also tendered. Mr Mamaku filed a Statement of Facts, Issues and Contentions. Importantly, following the April 2024 hearing Mr Mamaku provided supplementary written submissions to the Tribunal. Those submissions (Mr Mamaku’s Supplementary Submissions), which were dated 17 May 2024, were said by Mr Mamaku to have been provided at the request of, or with the leave of, the Tribunal. As will be seen, those submissions addressed the argument that Mr Mamaku contended, in this proceeding, was overlooked or ignored by the Tribunal – that is, the argument concerning the unavailability of a suitable OSTP in New Zealand. Unfortunately, the Senior Member who conducted the hearing in April 2023 became unavailable to deliver a decision in respect of the review. That necessitated the appointment of a different Senior Member to conclude the review, a course that was not opposed by the parties. The Tribunal, constituted by the new Senior Member, convened a directions hearing on 4 July 2024. At that directions hearing, the Tribunal directed the parties to file further submissions which, among other things, were to address the introduction of a new direction (Direction No 110) made by the Minister under s 499 of the Act. That direction addressed, among other things, the making of decisions in respect of the revocation of visa cancellations under s 501CA of the Migration Act. Following the directions hearing, and in accordance with the directions made at that hearing, Mr Mamaku provided a further Statement of Facts, Issues and Contentions (Mr Mamaku’s further SFIC). It annexed a copy of Mr Mamaku’s Supplementary Submissions. Mr Mamaku’s further SFIC was undated, but there was no dispute that it was provided to the Tribunal on or about 15 July 2024. The Minister provided the Tribunal with a Statement of Facts Issues and Contentions dated 29 July 2024 (the Minister’s SFIC). As will be discussed in more detail later, the Minister’s SFIC addressed, albeit in brief terms, the argument in Mr Mamaku’s Supplementary Submissions concerning the unavailability of an appropriate OSTP in New Zealand.

Ratio Decidendi

Legal Principle Established

The second aspect of the Tribunal’s reasoning which is of particular relevance to Mr Mamaku’s argument in this proceeding concerned the impediments that Mr Mamaku might face if he were to be removed to New Zealand. Paragraph 9.2 of Direction 110 provides that decision-makers “must consider the extent of any impediments” that a non-citizen facing removal from Australia may face upon their return to their home country taking into account, among other things, their health: paragraph 9.2(1)(a) of Direction 110. The impediments consideration is one of the “other considerations” identified in Direction 110. It is not a primary consideration. That is of some significance as paragraph 7(2) of the Direction indicates that “primary considerations should generally be given greater weight than the other considerations”. The Tribunal specifically addressed the impediments consideration at paragraphs [128]-[134] of the Reasons. Mr Mamaku’s challenge to the Tribunal’s decision focusses in particular on the Tribunal’s finding (at Reasons [131]) concerning whether Mr Mamaku would suffer any impediments in New Zealand taking into account his health. Paragraph [131] of the Reasons is set out in full later in these reasons. It suffices at this point to note that the Tribunal adverted to the issue of whether Mr Mamaku would require access to an OSTP in New Zealand and found that Mr Mamaku would “surely have a similar level of such publicly available healthcare as a citizen of New Zealand as is currently available to him in Australia”. The Tribunal concluded that the “question of medical support in New Zealand is not an impediment to [Mr Mamaku’s] return and re-settlement there.” The Tribunal also relevantly concluded that Mr Mamaku “is not likely to experience an impediment in the form of a difficulty to obtain medical support and care in New Zealand should his personal health circumstances require it”: Reasons at [135] (third dot point). MR MAMAKU’S CHALLENGE TO THE TRIBUNAL’S DECISION Mr Mamaku pressed one ground of judicial review of the Tribunal’s decision. That ground was particularised in the following terms in his Amended Originating Application for Review:The Tribunal failed to complete the exercise of its jurisdiction.1.The Tribunal failed to consider other reasons to revoke the visa cancellation which were clearly given by the applicant for the purpose of the review.2.The Tribunal did not comply with s 499 Migration Act in regard to the decision.3.The Tribunal’s reasons disclose that the decision‑maker ignored, overlooked, or misunderstood relevant facts or materials: Plaintiff M1-2021 v Minister for Home Affairs (2022) 96 ALJR 497 [27].4.The opioid substitution program was accepted by the Tribunal as centrally important to the Applicant’s rehabilitation; at paragraphs [64] and [83] of the decision.5.At the earlier oral hearing, the Tribunal directed the parties to give evidence to answer the question of whether the Applicant could participate in a program of opioid substitution, if he lived in New Zealand.6.The Applicant gave evidence that he could not. In supplementary submissions dated 17 May 2024, evidence and contentions were given to the Tribunal that such programs in New Zealand are solely intended to treat addiction to opioid drugs. The Applicant is ineligible for a program, as a user of the drug ‘ice’ which is not an opioid drug.7.The medical treatment in Australia and New Zealand is dissimilar in this respect. The consequence is that the Applicant’s rehabilitation would be impeded if he lived in New Zealand.8.However, that impediment to rehabilitation was denied by the Tribunal at [131] of the decision. The Tribunal did not consider the Applicant’s evidence and contentions on that issue and erred.9.If the Tribunal had considered those evidence and contentions it could have accepted the impediment to rehabilitation. The Tribunal could then have found there was another reason to revoke the visa cancellation and made a different decision.(Mark-up not reproduced.)