Federal Court of Australia

Pewhairangi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1322

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The applicant, Tyler Pewhairangi, is a New Zealand national. He arrived in Australia on 13 June 2001, aged 5.

2    On 23 October 2020 Mr Pewhairangi was convicted in the District Court of New South Wales of “Aggravated robbery and use violence cause wounding/GBH-SI” and sentenced to a term of imprisonment of three years and four months.

3    On 27 November 2020 Mr Pewhairangi was informed that his Special Category (Temporary) (Class TY subclass 444) visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (original decision). He was invited to make representations to the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, about revocation of that decision.

4    On 19 December 2020, within the statutory period permitted for him to do so, Mr Pewhairangi made representations to have the original decision revoked.

5    On 19 April 2022 a delegate of Minister decided under s 501CA(4) of the Act not to revoke the original decision.

6    On 27 April 2022 Mr Pewhairangi lodged an application for review of the delegate’s decision with the second respondent (Tribunal).

7    On 22 June 2022 Mr Pewhairangi appeared at a hearing before the Tribunal represented by his migration agent, Mr Chand. On 12 July 2022 the Tribunal affirmed the decision under review and on 2 August 2022 it produced written reasons for its decision.

8    The applicant now applies to this Court for judicial review of the Tribunal’s decision.

Legislative framework

9    Section 501(3A) of the Act provides:

The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

10    Section 501(6) of the Act defines the character test for the purpose of s 501 including that a person does not pass the character test if the person has a substantial criminal record as defined by subsection (7). In turn, s 501(7) of the Act provides that for the purpose of the character test a person has a substantial criminal record if, relevantly, the person has been sentenced to a term of imprisonment of 12 months or more: see s 501(7)(c) of the Act.

11    Section 501CA of the Act applies if the Minister makes a decision (referred to as the original decision) under s 501(3A) to cancel a visa that has been granted to that person. Subsections 501CA(3) and (4) provide:

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

The Tribunal’s decision

12    The Tribunal first considered and determined whether Mr Pewhairangi passed the character test and, having regard to the relevant statutory test, found that he did not because he was sentenced to a term of imprisonment of three years and four months. Accordingly, the Tribunal concluded that Mr Pewhairangi did not meet the requirements of s 501CA(4)(b)(i) of the Act. The Tribunal then moved on to consider if there was another reason why the original decision should be revoked as set out in s 501CA(4)(b)(ii) of the Act.

13    The Tribunal noted that in considering whether to exercise the discretion in s 501CA(4) of the Act it was bound by s 499(2A) of the Act to comply with any directions made under the Act and that it was therefore bound by the considerations in “Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).

14    At [16]-[17] of its reasons the Tribunal noted that paragraphs 8 and 9 respectively of Direction 90 set out four primary considerations that it must take into account and five other considerations which must be taken into account and identified each of those considerations. The Tribunal also observed (at [18] of its reasons) that paragraph 7(2) of Direction 90 provides that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations.

15    The Tribunal then set out Mr Pewhairangi’s background and his offending before turning to consider each of the primary considerations. In relation to each of those considerations it concluded that:

(1)    primary consideration 1, protection of the Australian community, “weighs heavily against revocation of the cancellation of [Mr Pewhairangi’s] visa”: reasons at [44]-[78];

(2)    primary considerations 2 and 3, family violence and the best interests of minor children in Australia, were not relevant to Mr Pewhairangi: reasons at [79]-[85]; and

(3)    primary consideration 4, the expectations of the Australian community, “weighs heavily against revocation of the cancellation of [Mr Pewhairangi’s] visa”: reasons at [86]-[94].

16    In relation to the other considerations the Tribunal concluded that:

(1)    international non-refoulement obligations were not relevant to the determination of the application: reasons at [96]-[97];

(2)    extent of impediments if removed “carry a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of [Mr Pewhairangi’s] visa”: reasons at [98]-[100];

(3)    impact on victims was neutral: reasons at [101]-[102]; and

(4)    links to the Australian community carried “some weight in favour of revoking [Mr Pewhairangi’s] mandatory visa cancellation”: reasons at [103]-[107].

17    At [109]-[112] of its reasons the Tribunal drew the following conclusion (as written):

109.    Under s501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of [Mr Pewhairangi’s] visa: either [Mr Pewhairangi] must be found to pass the character test; or, the Tribunal must be satisfied that there is another reasons, pursuant to the Direction, to revoke the cancellation. As noted and found above, [Mr Pewhairangi] does not pass the character test.

110.    Having regard to the Direction and to the totality of the evidence, the Tribunal is of the view that there is not another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision.

111.    In reaching that conclusion, the Tribunal has had regard to the considerations referred to in the Direction. The Tribunal finds follows:

•    Primary Consideration 1 weighs heavily against revocation of the cancellation of [Mr Pewhairangi’s] visa;

•    Primary Consideration 2 is not relevant;

•    Primary Consideration 3 is not relevant;

•    Primary Consideration 4 weighs heavily against revocation of the cancellation of [Mr Pewhairangi’s] visa; and

•    The weight attributable to the four-listed Other Considerations as found above.

•    The Tribunal considers that the totality of the very heavy weight it has attributed to Primary Consideration’s 1 and 4, outweighs the weight it has allocated to the remaining Primary and Other Considerations;

•    A holistic view of the considerations in the Direction therefore favours the non-revocation of the mandatory cancellation of [Mr Pewhairangi’s] visa.

112.    Consequently, the Tribunal cannot exercise the discretion to revoke the mandatory cancellation of [Mr Pewhairangi’s] visa.

18    The Tribunal recorded its ultimate decision at [113] of its reasons affirming the delegate’s decision.

The application for review

19    Mr Pewhairangi relies on a further amended originating application filed on 18 May 2023 in which he raises two grounds of review:

1.    The second respondent acted on a misunderstanding of the law.

a.    First, the second respondent (the Tribunal) determined that the issue for determination was whether the discretion to revoke the mandatory cancellation of [Mr Pewhairangi’s] visa may be exercised pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

b.    Second, the operation of s 501CA(4)(b) of the Act does not involve a discretion. The Tribunal asked itself the wrong question. The Tribunal stated that the statutory question for determination involved a discretion on at least nine occasions in the reasons for decision. It did not.

c.    Third, the Tribunal’s error was material.

2.    The second respondent failed to complete the exercise of its jurisdiction.

a.    First, by statutory force of s 499(2A) of the Act, the Tribunal was bound to have regard to mandatory considerations reflected in Direction 90. In particular, the Tribunal was mandatorily required to have regard to a non-citizen’s health in the context of the other consideration of the extent of impediments if removed under paragraph 9.2(1)(a) of Direction 90.

b.    Second, there was evidence before the Tribunal concerning [Mr Pewhairangi’s] health:

•    [Mr Pewhairangi] had been diagnosed with alcohol use disorder and a gambling disorder.

•    [Mr Pewhairangi] claimed mental health issues with depression and anxiety.

•    [Mr Pewhairangi] required ongoing treatment for his health issues.

c.    Third, the Tribunal did not consider [Mr Pewhairangi’s] health issues for the purposes of paragraph 9.2(1) of Direction 90. In that context, the Tribunal failed to lawfully consider a mandatory consideration in this case.

d.    Fourth, the Tribunal’s error was material. It involved a question of fact of wide import. It involved, self-evidently, human consequences for [Mr Pewhairangi]. More weight could have been attributed to the impugned other consideration had there been lawful compliance.

20    I address each ground in turn below.

Ground 1

21    By this ground Mr Pewhairangi contends that the Tribunal acted on a misunderstanding of the law because it considered that the issue for determination before it was whether the discretion to revoke the original decision may be exercised pursuant to s 501CA(4) of the Act when the operation of that section does not involve a discretion.

Parties’ submissions

22    Mr Pewhairangi submits that in making its decision the Tribunal incorrectly applied a discretionary test when considering s 501CA(4) of the Act. He submits that the Tribunal determined that it was bound to apply Direction 90 which was problematic because Direction 90 incorrectly states “Part 2 Exercising the discretion” and the heading to paragraph 6 of Direction 90 is “Exercising the Discretion”. Mr Pewhairangi submits that the upshot is that the Tribunal asked itself the wrong question, referring to Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315, and its error was material.

23    The Minister submits that the Tribunal correctly understood its task, that it can reasonably be inferred that the Tribunal had regard to Full Court authority as to the statutory task upon which it was called to perform and then turned its mind to the questions it needed to ask itself and resolved the application for review within that context.

24    The Minister submits that although the Tribunal used the words “discretion” in parts of the reasons it did so in the context of considering the matters set out in Direction 90 which expressly refers to “[e]xercising the discretion”. The Minister submits that these references should be read only as incorporating terminology taken from Direction 90, as opposed to involving a fundamental misunderstanding by the Tribunal of its task. The Minister submits that the Tribunal referred extensively to the mandatory considerations within Direction 90 and at reasons [110] concluded that there was not “another reason” why the cancellation should be revoked. The Minister contends that, read fairly and in context, the Tribunal did not misunderstand the nature of the power it had to exercise.

25    The Minister submits that, to the extent the Tribunal erred, the error was not material and that, on the question of materiality, Au is wrongly decided.

The decision in Au

26    Before considering whether the Tribunal erred in the manner contended for by Mr Pewhairangi it is convenient to have regard to the principal authority upon which he relies, Au.

27    In Au the appellant, Mr Au’s, visa had been mandatorily cancelled under s 501(3A) of the Act. Mr Au sought revocation of that decision under s 501CA(4) of the Act. A delegate of the Minister determined that there was not another reason why the cancellation decision should be revoked and accordingly the power in s 501CA(4) of the Act was not enlivened. Mr Au was unsuccessful in his application for review in the Tribunal and thus sought judicial review of the Tribunal’s decision in this Court. At first instance, the Court concluded that the Tribunal did not address the correct question in undertaking its task but held that the same result would have been reached had the statute been correctly applied such that the error was not material and therefore not jurisdictional. Mr Au appealed.

28    The sole ground of appeal before the Full Court concerned whether the Tribunal’s failure to address the essential jurisdictional question, that is whether there was another reason for revocation for the purposes of s 501CA(4)(b)(ii) of the Act, amounted to a jurisdictional error: see Au at [7].

29    The Minister relied on a notice of contention seeking to uphold the primary judge’s decision on the basis that the primary judge had erred in finding that the Tribunal had made a legal error by assuming its task was a “‘re-exercise’ of a general discretion” and contended that the primary judge should have held that the Tribunal did not misapprehend its task as evidenced by the decision making process: see Au at [8].

30    As a preliminary matter Derrington J (with whom Perry J agreed) observed at [18] that the Tribunal had used the word “discretion” 11 times in its reasons. His Honour summarised the findings of the primary judge noting at [19] that:

The learned primary judge below concluded (PJ [52]) that the manner in which the Tribunal approached its task was in error because it did not in terms or, on a fair reading of its reasons, in substance address itself to the conditions of the existence of the revocation power. Her Honour referred to the Minister’s submission that although there was no reference in the Tribunal’s reasons to its consideration of the subjective jurisdictional facts in s 501CA(4)(b)(i) and (ii), on a fair reading of its reasons, the Tribunal’s satisfaction on each of those issues might be inferred. However, her Honour concluded that it was plain that the Tribunal’s approach assumed that its task was to “re-exercise” a general discretion having regard to the considerations in Direction No 79 without giving any active consideration to the circumstances on which the exercise of that discretion is conditioned.

31    Justice Derrington then considered the Minister’s notice of contention. In doing so at [21]-[23] and [26] his Honour said:

21    The Minister, by his notice of contention, re-agitated the above issue before this Court. In support he submitted that the primary judge should have found that, notwithstanding the language adopted by the Tribunal, the Tribunal had asked itself the correct question when it searched for “another reason” under the Direction. It was submitted that because the Tribunal applied the Direction it necessarily followed that the Tribunal was looking for “another reason for revocation”. So the submission went (RS [16.1]), “[l]ooking for ‘another reason’ was evident because the Direction required a balancing process of considerations on an application to revoke the cancellation decision”.

22    These submissions can be quickly rejected. There is nothing in the Tribunal’s reasons suggesting that it understood the correct question to be determined. As indicated above, it expressly directed itself to the exercise of what it perceived to be a discretion in s 501CA(4) as to whether it should or should not revoke the cancellation decision. It seems to be undoubted that when the Tribunal member referred to a “discretion”, he intended that to be an accurate description of the power in question.

23    Secondly, the express and repeated statements by the Tribunal member that he was exercising a discretion cannot be ignored. He is a Senior Member of the Tribunal and a member of the legal profession. As such, the distinction between a discretion and the formation of a state of satisfaction would have been readily understood. It is not reading the reasons too finely to attribute to the Tribunal an approach that it repeatedly said it was adopting.

…

26    The Minister’s notice of contention fails. The matter must proceed upon the basis that the Tribunal erred in applying s 501CA(4). It did not seek to ascertain whether the subjective jurisdictional fact – being the satisfaction of the matters in s 501CA(4)(b)(ii) – existed but wrongly perceived that the exercise of power in issue was the discretion to revoke the cancellation decision.

32    At [33]-[34] Derrington J drew a distinction between what his Honour described as the exercise of a discretion, on the one hand, “in a sense” and, on the other, “in a broad sense”:

33    The importance of the type of discretion being considered is that the decision-maker’s autonomy extends to the outcome of a particular decision so long as it falls within the scope of the power in the sense that it is not unreasonable. One might regard a statutory obligation on a decision-maker to be satisfied of a particular matter as a condition precedent to the exercise of power as being far less than a discretion. Although the formulation of a state of mind equating to a satisfaction that a thing exists might involve elements of subjectivity in assessing the facts and circumstances relevant to the existence or otherwise of the thing, it cannot be said that whether the state of mind exists or not has any discretionary element to it. The formation of the state of mind might be regarded as the exercise of a discretion “in a sense” or “in a broad sense”: Coal and Allied Operations v AIRC at [20]: however, the two activities do not involve the same mental process. Indeed, the difference in approach was referenced by their Honours in Coal and Allied Operations v AIRC in that paragraph where they said:

20    In the present case, the decision by Boulton J to terminate the bargaining period involved, in effect, two discretionary decisions. The first was as to his satisfaction or otherwise that the industrial action being pursued posed a threat for the purposes of s 170MW(3) of the [Workplace Relations Act 1996]. Although that question had to be determined by reference to the facts and circumstances attending the industrial action taken in support of claims with respect to a certified agreement, the threat as to which his Honour had to be satisfied was one that involved a degree of subjectivity. In a broad sense, therefore, that decision can be described as a discretionary decision. And if Boulton J was satisfied that there was a threat for the purposes of s 170MW(3), that necessitated the making of a further discretionary decision as to whether the bargaining period should be terminated.

34    So, even if the concept of a decision-maker being satisfied of a particular matter or thing can be described in a sense as being a discretion, there remains a distinction between it and a general discretion which might roughly equate to the qualitative difference between a “weak” discretion and a “strong” discretion respectively, as recognised by Dworkin R in Taking Rights Seriously, Harvard University Press, 1977, pp 31-36.

33    At [36], after considering the distinction from the perspective of the type of remedial relief available in relation to the two types of powers, Derrington J concluded that: the power to revoke in s 501CA(4) of the Act is conditioned upon the formation of a particular state of mind; and whether an error in the formation of that state of mind vitiates any subsequent exercise of power is determined in accordance with the principles in Avon Downs v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360. After referring to the discussion in EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409 in relation to the manner in which courts have treated the vesting in the executive of a right to be satisfied of a particular matter or thing, his Honour observed that:

On this approach it is difficult to conclude other than that the forming a state of mind is, both functionally and legally, substantively different from exercising a general discretion.

34    At [37] Derrington J thus rejected the Minister’s submission that there was no difference in that case between what the Tribunal did and what it ought to have done under s 501CA(4) of the Act.

35    At [42] his Honour observed that a further difficulty that belied the Tribunal’s decision was that it “did not address the correct question in any way” and “simply did not attempt to engage with the statutory task”. His Honour concluded at [43] that:

From the foregoing rejection of the Minister’s submissions, it must be accepted that the Tribunal’s error was one of substance and not merely of form. In no way did it address the question of whether it was satisfied there was another reason why the cancellation decision should be revoked and the learned primary judge was correct to conclude this was so.

36    On the question of whether the Tribunal’s error was material at [51]-[52] Derrington J said:

51    In the present case the application of the process identified in MZAPC is somewhat difficult. In cases where the decision-maker has identified for itself the correct question and issues to be determined but has erred in one respect, it is not an unreasonably difficult task to identify what was decided and then ascertain the impact, if any, the error had on the conclusion. Here, the position is quite different. The Tribunal member did not address the question of whether, on the material, there was “another reason for revocation”. Instead, it asked itself whether, as a matter of discretion, the cancellation decision should be revoked. As identified previously those two considerations are functionally and substantively different. The former does not seek to determine whether the cancellation decision should be revoked, but only whether there is another reason for doing so.

52    On one view, if the decision in MZAPC is applied to the circumstances of this case, it would necessitate the Court considering whether, on the facts and materials before the Tribunal, there was a realistic possibility that it could have concluded there was another reason for cancellation. That would require the Court, standing in the shoes of the decision-maker, considering the material and determining for itself whether such a reason existed. However, that is not the correct approach. Here, the correct question was not addressed. It should have been whether the delegate’s decision that the power under s 501CA(4) was not enlivened because they were not satisfied of the existence of another reason for cancellation, was the correct or preferable one. As mentioned, the Tribunal asked itself a different question. Therefore, in the application of the materiality principles the question is whether, if the Tribunal addressed the correct question, there was a realistic possibility of a different outcome. The answer must, of course, be in the affirmative. That is, the Tribunal would not have determined that the correct or preferable decision was that the discretion should be exercised not to revoke the cancellation decision. How it would have answered the entirely different question of whether there was “another reason for revocation” is impossible to ascertain. It follows that the failure to address the correct question was an error that, had it not occurred, meant that there was a realistic probability of a different outcome.

37    Justice O’Sullivan came to the same conclusion as Derrington J but approached the analysis differently. As a preliminary matter O’Sullivan J considered the terms of s 501CA(4) of the Act and whether there was a residual discretion in s 501CA(4)(b)(ii). His Honour concluded, having regard to the relevant authorities, that there is a single stage process with no exercise of a residual discretion and, it followed, that the word “may” in the chapeau to s 501CA(4) means “must”. His Honour proceeded on that basis. Justice O’Sullivan then considered the primary judge’s reasons and the Minister’s notice of contention. At [154]-[155] his Honour concluded that:

154    In the circumstances of this matter, the evaluative task required to be undertaken in reaching, or not reaching, a state of satisfaction is not the same as approaching the question from the perspective of the exercise of a discretion. Accordingly, it does not follow that because the Tribunal carried out the required task it did not make an error of law.

155    As noted above at [97], the parties proceeded on the basis that once the criteria in s 501CA(4) are met and the statutory power is enlivened, “may” means “must”. Her Honour found that the way in which the Tribunal approached its task was in error, no matter the view taken as to whether or not s 501CA(4) involved the exercise of a residual discretion, because it did not address itself to the conditions required to enliven the statutory power: Reasons at [52]. In so finding, the primary judge correctly identified the error of law.

38    Justice O’Sullivan reached the same conclusion on the question of materiality as Derrington J: see Au at [167]-[169].

Consideration

39    Part 2 of Direction 90, titled “Exercising the discretion”, identifies “[t]he factors that must be considered in making a decision under section 501 or section 501CA of the Act” (see paragraph 5.2 of Direction 90). Direction 90 sets out a detailed description of the primary considerations and the other considerations.

40    Insofar as the Tribunal’s decision in this case is concerned, Mr Pewhairangi identified nine references to the term “discretion” in the Tribunal’s reasons:

(1)    at [8] of its reasons where the Tribunal said that “… the issue in this matter is whether the discretion to revoke the mandatory cancellation of [Mr Pewhairangi’s] visa may be exercised if either s 501CA(4)(b)(i) or s 501CA(4)(b)(ii) of the Act are met”;

(2)    at [12] of its reasons where the Tribunal noted that “[i]n considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act” and went on to refer to Direction 90;

(3)    at [98] of its reasons where the Tribunal considered the extent of impediments to Mr Pewhairangi if removed. It commenced its consideration of that factor by stating:

As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decisionmaker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(a)    the non-citizen’s age and health;

(b)    whether there are any substantial language or cultural barriers; and

(c)    any social, medical and/or economic support available to that non-citizen in that country.

And concluded on that factor at [100] stating that:

Considering the evidence before the Tribunal, the extent of impediments if removed carry a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of [Mr Pewhairangi’s] visa.

(4)    at [108] of its reasons the Tribunal summarised its finding of the other considerations in relation to Mr Pewhairangi including that:

The application of the Other Considerations in the present matter can be summarised as follows:

(a)    …

(b)    extent of impediments if removed: carries a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of [Mr Pewhairangi’s] visa;

(c)    … ; and

(d)    links to the Australian community: carries some weight in favour of exercising the discretion to revoke the mandatory cancellation of [Mr Pewhairangi’s] visa.

(5)    at [109]-[110] of its reasons where the Tribunal, in reaching its conclusion, said:

109.    Under s501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of [Mr Pewhairangi’s] visa: either [Mr Pewhairangi] must be found to pass the character test; or, the Tribunal must be satisfied that there is another reasons, pursuant to the Direction, to revoke the cancellation. As noted and found above, [Mr Pewhairangi] does not pass the character test.

110.    Having regard to the Direction and to the totality of the evidence, the Tribunal is of the view that there is not another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision.

(6)    finally, at [112] where the Tribunal concluded that it could not “exercise the discretion to revoke the mandatory cancellation of” Mr Pewhairangi’s visa.

41    Of itself the references by the Tribunal in its reasons to “exercising the discretion” is not sufficient to conclude that the Tribunal did not understand its statutory task. Rather, the question to be resolved is whether, as was the case in Au, the Tribunal asked itself the wrong question in considering Mr Pewhairangi’s application or, put another way, whether it addressed itself to the condition required to enliven the power in s 501CA(4) of the Act, namely the condition in s 501CA(4)(b)(ii).

42    The Minister submits that the Tribunal’s decision before me can be distinguished from the Tribunal’s decision which was the subject of the decision in Au. On that basis the Minister seeks to make the same argument he made in the notice of contention relied on before the Full Court in Au, namely the Minister contends that when the Tribunal’s reasons are read as a whole, it is evident that the Tribunal asked itself the correct question in considering whether there was “another reason” to revoke the cancellation decision and that it correctly carried out the statutory task under s 501CA(4)(b)(ii) of the Act. I turn to consider whether that contention is made out.

43    It is evident from a review of the Full Court’s decision in Au that in that case the Tribunal failed to identify for itself the statutory task which it was to undertake.

44    In contrast, in this case, as the Minister points out, the Tribunal at [7] of its reasons and in the heading preceding [12] of its reasons identified the relevant section of the Act, s 501CA(4)(b), set out the requirements of the section and properly articulated the question to which it had to address itself, namely was there another reason to revoke the cancellation of Mr Pewhairangi’s visa. Of itself that is not sufficient to allow me to conclude that the Tribunal understood and properly discharged its statutory task.

45    The Tribunal then proceeded to refer extensively to the mandatory considerations set out in Direction 90. It considered each of the primary considerations and, to the extent they were relevant, each of the other considerations. At [110] of its reasons the Tribunal concluded that there was not “another reason to exercise the discretion … to revoke the mandatory visa cancellation decision”.

46    That conclusion cannot be read in isolation. It must be read in context having regard: first, to the detailed consideration the Tribunal gave to each of the primary and other considerations mandated by Direction 90; and secondly, to [109] of the reasons where once again the Tribunal stated the statutory task that there were “two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation” of Mr Pewhairangi’s visa, that is either he must pass the character test or the “Tribunal must be satisfied that there is another reasons (sic), …, to revoke the cancellation”.

47    As to the latter, when the Tribunal’s reasons are read fairly and in context, it is apparent that the Tribunal did not misunderstand the nature of the power it had to exercise. The Tribunal’s reasons demonstrate that it understood its statutory task and that s 501CA(4)(b)(ii) of the Act required a weighing up of factors for and against revocation. As described by Derrington J at [33]-[35] of Au, in considering the requirement in s 501CA(4)(b)(ii) as to whether there is another reason why the original decision should be revoked, the Tribunal is exercising a discretion “in a sense”, also described as a “weak discretion”. That is, it must reach a state of satisfaction as to whether, as set out in s 501CA(4)(b)(ii) of the Act, there is another reason why a decision to cancel a visa should be revoked. That is exactly what the Tribunal did in this case having regard to the criteria in Direction 90. Given that conclusion it is not necessary for me to consider the question of materiality.

48    Mr Pewhairangi has not made out ground 1.

Ground 2

49    By ground 2 Mr Pewhairangi contends that the Tribunal failed to consider a mandatory consideration, namely Mr Pewhairangi’s age and health, as part of its consideration of the extent of impediments if removed pursuant to paragraph 9.2(1)(a) of Direction 90.

Mr Pewhairangi’s submissions

50    Mr Pewhairangi submits that he was diagnosed with an alcohol use disorder and a gambling disorder and that he also said that he suffered from depression and anxiety. Mr Pewhairangi submits that his health issues were evident from a range of material that was before the Tribunal, including:

(1)    a psychosocial assessment report for sentencing proceedings dated 8 September 2020 prepared by Brian Bembrick which includes:

(a)    under the heading “History of addictive behaviours–alcohol abuse and gambling”:

30.    However, his cannabis use appears to have been replaced by binge drinking, and he discussed quite openly and sincerely regular binge drinking with work mates, usually of a Friday and Saturday night, which he referred to as “two night benders,” during which he would drink fairly large quantities of “Jack Daniel’s and Coke, two 750ml bottles.”

31.    [Mr Pewhairangi] also developed a serious gambling addiction over recent years, in his case to poker machines. He somewhat understated the problem referring to it being a “bit of a problem” and a “'bit of an addiction.” He recognises it is at a problematic level and has a good level of awareness that his alcohol misuse feeds into his gambling addiction and exacerbates this problem. In his words: “When I'm intoxicated, I forget about my losing- it doesn’t matter to me. It makes me less aware.”

…

33.    He has, based on his discussion, an alcohol use disorder and gambling disorder as defined by the DSM-5 and it is evident both these disorders have played a part in his offending. These maladaptive behaviours probably have their genesis in unresolved complex trauma from him being witness to high level violence and conflict between his parents as a child and his poor adjustment to their separation.

(Footnotes omitted.)

(b)    under the heading “Treatment needs and plans on release”:

It is likely that [Mr Pewhairangi’s] addictive behaviours are a consequence of his unresolved complex trauma as a child. He would in my opinion benefit from therapy from a psychologist able to help him discuss and process his past in a trauma-informed way. A referral under the Medicare Better Access to Mental Health Care program, facilitated by his general practitioner, would provide him with six to ten sessions of therapy, which may be extended in some circumstances, with a clinical psychologist.

(2)    Mr Pewhairangi’s personal circumstances form dated 19 December 2020 which included (as written):

Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship? Yes No

If yes, describe your concerns and what you think will happen to you if you return.

My concerns are that living wise back in New Zealand would be rough, majority of the family I have back there are all alcohol abusers and would not be any help for me trying to change my bad habits. The work wont be as good as it is in Australia. And I personally would not like to be around family who are gang affiliated.

…

Are there any other problems you would face if you have to return to your country of citizenship? If so, describe these.

Mostly just being around family who abuse drugs, alcohol and who are in gangs. It would not be the best environment for me to live in.

(3)    a letter from Roylene Ruatita, Mr Pewhairangi’s mother, to the Tribunal dated 16 December 2020 which included:

I understand fully the seriousness of what he has done and once released, myself, along with my family here in Australia are committed to helping, guiding and encouraging Tyler to attend for psychological support regarding his addictive behaviour, e.g drinking and gambling being the most important.

… It saddens me because I know my son has so much trauma, he has bottled away for all this time and with help from a psychologist will help him move forward.

My son will not benefit from being deported back to New Zealand as there is no family guidance or support there for him, that would only put him in a more depressed state than he is now. …

(4)    the following evidence given by Ms Ruatita to the Tribunal:

Mr Chand:    Have you made any arrangements for Tyler’s rehabilitation if he gets released from the detention centre?

Ms Ruatita:    Yes, I have. I’ve gotten on to a psychologist here in Wollongong. So, he’s booked in to see her next month. I’ve also spoken with our medical centre as well to also get him an appointment and to get some free psychologist appointments as well. So, that will be done with the mental health wellbeing psychologist in Wollongong.

(5)    the following evidence given by Mr Pewhairangi to the Tribunal:

Mr Chand:    Thank you, Senior Member. Yes, we were talking about the possible deportation to New Zealand?

Mr Pewhairangi:    Yes. Sorry about before. Yes, just the thought of getting deported back to a family that pretty much just relies on drugs and alcohol to sort of, you know, get through their day and have fun, it’s definitely not the best environment for me for rehabilitation. Due to obviously going through that sort of situation myself, the whole alcohol and smoking marijuana, it’s obviously going to set me to sort of relapse I feel if I was to go back to my home country. And just being, you know, separated away from my immediate family, it’s really heartbreaking to where I am at today.

51    Mr Pewhairangi submits that when assessing the extent of impediments if removed from Australia at [98]-[100] of its reasons the Tribunal: did not address his health issues concerning alcohol use and gambling disorders; did not address his claim of depression and anxiety; and made no reference to any of the evidence of those matters. He submits that the clear inference to be drawn is that the Tribunal simply forgot to address his mental health issues when it came to addressing paragraph 9.2 of Direction 90 and that the Tribunal’s omission or failure in that regard was material.

52    Mr Pewhairangi submits that this is so despite the Tribunal referring to Mr Bembrick’s report earlier in its decision, in the context of considering protection of the Australian community and, in particular, his likelihood of engaging in further criminal or other serious conduct. Among other things, the Tribunal noted Mr Bembrick’s opinion that Mr Pewhairangi’s offending was caused, in part, by his alcohol and gambling issues which the Tribunal observed “are not resolved”: see reasons at [74], [76]. Mr Pewhairangi submits that the inference to be drawn is that the Tribunal failed to consider these factors in the context of impediments if removed.

Relevant principles

53    It is for an applicant to make his or her case to the Tribunal.

54    In Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17 the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) observed at [22] that the statutory scheme under s 501CA(4) of the Act “commences with the former visa holder making representations” and that the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations. Their Honours explained at [23]-[25] that:

[23]    It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

[24]    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

[25]    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

55    In determining whether the decision-maker has had regard to the representations put, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard. As Rares and Robertson JJ stated at [45] in Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643:

What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put …

56    In Okoh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 297 FCR 63, a Full Court of this Court (Thomas, O’Bryan and McElwaine JJ) considered the level of engagement required by the Tribunal in the context of how an applicant put their case to it. The appellant, Emmanuel Okoh’s, application for review of a decision by a delegate of the Minister not to revoke a cancellation decision under s 501CA(4) of the Act came before the Tribunal for hearing, differently constituted, on two occasions. The decision of the first Tribunal was set aside and a writ of mandamus issued requiring the Tribunal to determine the review application according to law. A second hearing then took place before the Tribunal, differently constituted.

57    Mr Okoh submitted that the primary judge’s error was in failing to conclude that the second Tribunal had erred in failing to consider the appellant’s mental health when considering the impediments to the appellant’s return to Nigeria and that the ground was “not one of failing to consider an integer of the claim, but a failure to engage with material before the Tribunal”. Mr Okoh placed emphasis on the requirement to consider claims which arose squarely on the materials before the Tribunal, even if they were not clearly articulated.

58    Relevantly, the material before the first Tribunal included: a personal circumstances form in which Mr Okoh answered “no” to the question “Do you have any diagnosed medical or psychological conditions”; a typed written statement of further information in which Mr Okoh did not mention any mental health impairment; a clinical psychologist’s report which recorded that Mr Okoh did not present with any major mental illness; a witness statement of Mr Okoh which did not contain a claim that Mr Okoh suffered from a mental health impairment; a statement of facts, issues and contentions authored by Mr Okoh’s migration agent which only referred to the scarce “employment prospects, medical access, social welfare, and economic support in his home country … [which] could be detrimental to his mental, and physical well-being” when addressing the extent of impediments if removed; and a supplementary statement of facts, issues and contentions prepared by a solicitor which did not claim that Mr Okoh suffered from a mental health impairment.

59    Mr Okoh’s material before the second Tribunal included a statement of facts, issues and contentions which stated that “[t]here is no impediment to [Mr Okoh] establishing himself in Nigeria presented by his age, health, language or culture”.

60    The Minister submitted that the primary judge was correct to infer that all of Mr Okoh’s evidence relating to his mental health as an impediment to his return to Nigeria was considered by the Tribunal but was not given significant weight in circumstances where Mr Okoh had accepted that he had no health conditions and it was conceded that there was no impediment to his return presented by his health.

61    The Full Court concluded at [51] of Okoh that Mr Okoh’s arguments “impermissibly fail to read all of the material before the Tribunal as a whole and reduce to the point of distortion how the case was framed and emphasised before it” and that the proposition that the Tribunal must make the correct or preferable decision on the materials before it does not “operate in a vacuum”. At [53]-[56] their Honours set out the following principles:

[53]    The issue in this case is the level of engagement required by the Tribunal in the context of how the case was put to it. The appellant places emphasis on Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334; 35 ALR 186 and McKeown v Repatriation Commission (1995) 22 AAR 229; 39 ALD 30 to support the submission that perceived concessions or the form of submissions made do not alter the Tribunal’s statutory task. However, much depends on context and it is often important where, as here, an applicant has legal representation before the Tribunal as explained by Flick J in Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 at [17]-[21]. His Honour commenced by observing at [17] that:

In determining the “correct or preferable” decision, the Tribunal will ordinarily be best “guided by the parties” in identifying the issues.

(Original emphasis. Citations omitted.)

[54]    His Honour acknowledged that in some circumstances the Tribunal will be obliged to raise issues which the parties have not and continued at [18]:

In determining the “correct or preferable” decision the Tribunal must also be satisfied that there is “enough material” before it on a matter of central importance to the decision to be reached (Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 66; (1981) 54 FLR 334 at 343 per Bowen CJ). And “[t]he Tribunal [is] required to make the correct or preferable decision on the material before it, regardless of the form which the parties’ submissions [take]”: McKeown v Repatriation Commission (1995) 39 ALD 30 at 33 per Jenkinson J. An error of law may be committed if the Tribunal ignores a central issue, even if no submission at all is directed to it: Australian Trade Commission v F & F Asia Pty Ltd (1996) 69 FCR 252 at 266 per Carr J. See also: Transport Accident Commission v Bausch (1998) 4 VR 249 at 263 per Tadgell JA (Batt and Buchanan JJA agreeing).

[55]    As his Honour further acknowledged at [19], although the statutory task is unaltered where an applicant is unrepresented before the Tribunal, “[t]he more important and the more centrally relevant available evidence or an available submission may be to the decision to be made, the greater may be the necessity for the issue to be addressed and resolved — even if not otherwise addressed by an unrepresented party”. At [20], his Honour eschewed any general duty of the Tribunal “to pursue submissions not otherwise advanced” and continued:

The need to inquire into facts not otherwise before the Tribunal may not be confined to those facts going to jurisdiction, as in Kuswardana; but should be confined to facts of central importance to the decision to be made: cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. And the need to consider submissions or issues not raised by the parties may equally normally be confined to those submissions which are submissions of substance which emerge from the factual material before the Tribunal: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1. It was said there that a “judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made. The claim must emerge clearly from the materials before the Tribunal”: at [68]. … . In MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 at [14] Finkelstein J referred to NABE and observed that there “is no precise standard for determining when an issue is ‘raised squarely’, but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it”.

(Original emphasis.)

[56]    In ABB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 715, Allsop CJ at [61] adopted the summary of Flick J.

62    As Mr Okoh had the benefit of legal representation before both Tribunals, the Full Court rejected his invitation to infer that his counsel before the second Tribunal “got it wrong” and failed to emphasise the mental health contention as an impediment to removal. The Full Court also found that there was no basis to question the competence of representation or that forensic choices were made conformably with instructions: see Okoh at [57]. Their Honours further observed at [58] that:

… the appellant had multiple opportunities to assert mental ill-health and access to mental health services as an impediment to removal to Nigeria. He stated that he did not have any diagnosed medical or psychological condition in his representation of 14 October 2019. Although he did mention significant insomnia, fatigue and discomfort arising out of the murderous incident at the marketplace in Nigeria, he did not list those matters or his mental health is an impediment to removal. Nor is any contention made which links any claim to mental ill-health with an impediment to removal in his witness statement of 4 May 2020, his Statement of Facts, Issues and Contentions of 10 July 2020, his supplementary Statement of Facts, Issues and Contentions of 3 August 2020, his Statement of Facts, Issues and Contentions of 3 May 2021, his undated witness statement, or his further witness statement of 10 May 2021. To the extent that those documents do reference mental health, it is in the context of the likelihood of his reoffending.

63    At [63], in response to Mr Okoh’s submission that if the Tribunal considered the mental health impediment to be “weak or even abandoned, it could have said so”, the Full Court stated:

… With respect, that submission assumes favourably to the appellant that this claim was clearly made and maintained. It was not. The submission fails to grapple with the long and consistent line of authority in this Court that the Tribunal’s review function only requires consideration of “substantial clearly articulated argument relying on established facts” or which “clearly emerge from the materials”: …

64    Mr Pewhairangi relies on the decision in LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039. In LRMM the applicant held a Refugee (Class XB) (Subclass 200) visa which was cancelled by a delegate of the Minister under s 501CA of the Act on the basis that he did not pass the character test. The Minister decided not to revoke that cancellation and the applicant applied to the Tribunal for review. At the time the Tribunal made its decision the applicable direction was “Direction no. 79 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (Direction 79). Paragraph 14.5 of Direction 79 concerned the extent of impediments if removed and was in substantially the same terms as paragraph 9.2(1) of Direction 90 (see below).

65    At [12]-[13], after referring to that part of the Tribunal’s decision which addressed the requirements of paragraph 14.5 of Direction 79, Logan J observed:

12    Neither in that paragraph nor elsewhere in that part of the Tribunal’s reasons which addresses the considerations specified in paragraph 14.5 of the ministerial direction is there any reference whatsoever to the alcohol disorder; much less is there any reference in that part of the Tribunal’s reasons to whatever, if any, medical support might be available to the applicant in the home country of reference, namely Ethiopia.

13    Of course, the Tribunal’s reasons must be read as a whole. Doing so makes it clear to the point of demonstration that the Tribunal was very well aware indeed of the applicant’s difficulties over a number of years with alcohol. These dated back to his school years, such as they were, during which he was introduced to the consumption of alcohol by older students.

66    Relevantly, in LRMM the applicant had obtained a report prepared by a clinical psychologist who opined that, as a provisional diagnosis, he suffered from alcohol dependency disorder which was in “partial remission within a controlled environment”, that environment being immigration detention: see LRMM at [14]. At [17] Logan J noted that the applicant’s consumption of alcohol “was a feature of the Tribunal’s reasoning” in respect of the applicant’s risk of offending. In his personal circumstances form, the applicant had left blank whether there was any particular diagnosed medical condition which might have affected any return to his home country. At that time, the applicant did not have any formal diagnosis, provisional or otherwise. By the time the applicant’s case came before the Tribunal, he had lodged a statement in reply which stated that his submission in his statement of facts, issues and contentions as to the absence of evidence to indicate he suffers from alcoholism or dependency “need[ed] to be re-calibrated in light of [the clinical psychologist’s] findings”: see LRMM at [23].

67    At [25] Logan J found that the applicant’s claim in respect of a problem with alcohol was accepted by the Tribunal. His Honour continued at [26]-[29]:

26    Against this background, including, as I have mentioned, the pervasive reference in the Tribunal’s reasons to the applicant’s drinking and his problem with alcohol, it was put on behalf of the Minister that it could be inferred that the Tribunal took into account the alcohol dependency disorder under the required subject, health. The Tribunal certainly specified another condition diagnosed by Professor Freeman at [175], but the fact that the Tribunal did this, against a background of otherwise being aware of the problem of alcohol, seems to me to make it inherently unlikely that the subject was somehow subliminally considered.

27    Indeed, so important was the subject of the applicant’s difficulties with alcohol to its reasoning process in respect of risk, it seems to me that the Tribunal on this occasion, and with all respect, has just forgotten that it was additionally necessary to advert to this health condition separately, as ministerially required, when addressing the requirements of [14.5]. Had the Tribunal addressed this subject, it may well have had to confront the discounting promoted in the reply submission on behalf of the applicant. It might also have had to confront the presence or otherwise of any medical facilities in Ethiopia to provide programs for rehabilitation or treatment of those with alcohol dependency disorder. A fair reading of the reference of the minister’s specification of health in his direction is that, necessarily, that reference embraces alcohol dependency disorder.

28    Contrary to an initial impression formed by the Tribunal’s otherwise repeated reference to the applicant’s consumption of alcohol over the years, but as a result of determined and focused advocacy on his behalf by his counsel, I am persuaded that the Tribunal has failed to take into account a relevant consideration namely, health, as specified in paragraph 14.5 of the ministerial direction. Of course, that consideration only applies where relevant, but the applicant, from the moment he sought revocation, made reference to his drinking, and by the time of the hearing, that particular reference had matured into an expert diagnosis.

29    In these circumstances, and even taking into account as was rightly emphasised, with respect, on behalf of the Minister by his counsel, the course of the administrative continuum, the Tribunal was obliged, under the heading health, to acknowledge and then address the ramifications of the alcohol dependency disorder.

68    His Honour found that the Tribunal’s failure to take into account this consideration was material: see LRMM at [32].

Consideration

69    Part 2 of Direction 90, titled “Exercising the discretion”, relevantly includes paragraph 6 which provides that:

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

70    Paragraph 9 of Direction 90 is titled “Other considerations” and provides:

(1)    In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a)    …;

b)    extent of impediments if removed;

…

71    Paragraph 9.2 concerns the extent of impediments if removed and provides:

(1)    Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)    the non-citizen’s age and health;

b)    whether there are substantial language or cultural barriers; and

c)    any social, medical and/or economic support available to them in that country.

72    The Tribunal addressed the extent of impediments if removed at [98]-[100] of its reasons where it said:

98.    As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decisionmaker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(a)    the non-citizen’s age and health;

(b)    whether there are any substantial language or cultural barriers; and

(c)     any social, medical and/or economic support available to that non-citizen in that country.

99.    Having regard to the abovementioned matters, [Mr Pewhairangi] is aged 26 years and the evidence before the Tribunal does not support the making of findings regarding:

(a)    physical ill health;

(b)    substantial language or cultural barriers if removed to New Zealand; or

(c)    any lesser social, medical and/or economic support available to [Mr Pewhairangi] in New Zealand that he would otherwise be able to access in Australia. In making this finding, the Tribunal notes the evidence before it regarding some anti-social characteristics of his family in New Zealand.

100.    Considering the evidence before the Tribunal, the extent of impediments if removed carry a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of [Mr Pewhairangi’s] visa.

73    As is evident from its reasons, the Tribunal found that the evidence before it did not support making any findings about, among other things, “physical ill health” or that there would be any lesser medical support available to Mr Pewhairangi in New Zealand than he would otherwise be able to access in Australia. In making the latter finding the Tribunal noted the evidence before it about some “anti-social characteristics of” Mr Pewhairangi’s family in New Zealand.

74    Notwithstanding those findings the Tribunal concluded that the extent of impediments if removed carried a “slight level of weight” in favour of exercising the discretion to revoke the mandatory cancellation of Mr Pewhairangi’s visa. Mr Pewhairangi contends that the Tribunal’s attribution of a “slight level of weight” to this consideration was reached by reference to the “anti-social characteristics” referred to in the preceding paragraph.

75    In considering whether the Tribunal failed to consider Mr Pewhairangi’s health issues in the context of its consideration of impediments if removed it is necessary, as a starting point, to have regard to the claims made by him. As to his health they were:

(1)    in his request for revocation of the mandatory cancellation of his visa Mr Pewhairangi responded “no” to the question “Do you have any diagnosed medical or psychological conditions?”;

(2)    when the delegate considered whether the original decision should be revoked, the delegate considered the extent of impediments if removed as the delegate was bound to do. Unsurprisingly, given Mr Pewhairangi’s answer to the question about his health conditions, the delegate’s statement of reasons (at [61]) recorded that Mr Pewhairangi “has no known health issues” and at [64]-[66] under the sub-heading “Social, medical and/or economic support available in New Zealand” the delegate said:

64.    I have considered that Mr PEWHAIRANGI has worked as a scaffolder and as such, I find that he has transferable skills that would help him to gain employment in New Zealand.

65.    I note in his Personal Circumstances Form Mr PEWHAIRANGI states that a number of his family members in New Zealand abuse alcohol and drugs and that this environment would make it difficult for him to ‘change bad habits’. He states he has family members who are ‘gang affiliated’ including the Mongrel Mob and Black Power, and he does not want to be exposed to this. Also, there are better employment opportunities available in Australia Attachments C2, C6.

66.    I find that Mr PEWHAIRANGI will have access to health services, treatment and welfare services in New Zealand, and I also find that these services are of the same high standard, and as widely available, as they are in Australia.

(Emphasis in original.)

(3)    in his statement of facts, issues and contentions (Applicant’s SFIC) relied on before the Tribunal, Mr Pewhairangi made the following claims under the heading “Other considerations: ties and impediments”:

73.    [Mr Pewhairangi] is 25 years old and has spent more than 20 years in Australia since arriving when he was 5 years old.

74.    [Mr Pewhairangi’s] immediate family (parents, step-parent and brother) are all in Australia.

75.    [Mr Pewhairangi] advices (sic) that the Australian community will be the victim if he was to be deported as they will miss out on his positive contribution via employment as well as sports.

76.    [Mr Pewhairangi] has ties with the football community in Australia as he played for the football clubs.

77.    [Mr Pewhairangi] is really concerned with returning to New Zealand as most of his extended family in New Zealand are either involved with motor bike gangs or are drug and alcohol users. This is not the environment for [Mr Pewhairangi] to start his life (ASFIC at Annexure 9).

Annexure 9 to the Applicant’s SFIC was a series of photographs of, among other things, unidentified persons on or near motor bikes some of whom were wearing jackets marked “Mongrel Mob” and a photograph of a car boot filled with alcohol; and

(4)    in the Minister’s statement of facts, issues and contentions, in relation to impediments if removed, the Minister said:

34.    The Minister contends [Mr Pewhairangi] will be able to establish himself and maintain basic living standards (9.2(1)). [Mr Pewhairangi] is young and healthy (9.2(1)(a)). [Mr Pewhairangi] states he suffers from ‘depression and anxiety’ however there is no evidence of any formal diagnosis (ASFIC, Annexure 11). [Mr Pewhairangi] will not face substantial language or cultural barriers (9.2(1)(b)). [Mr Pewhairangi] will also have access to the same level of social, medical and economic support as what is generally available to other citizens of New Zealand (9.2(1)(c)). The Tribunal has previously found that New Zealand is culturally and linguistically similar to Australia, and that it has comparable standards of health care, social welfare and housing support to those in Australia: Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly. There is evidence [Mr Pewhairangi] has issues with drugs, gambling and alcohol. [Mr Pewhairangi] also states that his family is involved in drugs, alcohol and gangs (G9, 64). The Minister contends that these issues do not present insurmountable obstacles and [Mr Pewhairangi] may face similar challenges in Australia. [Mr Pewhairangi] also has a ‘good work ethic and a history of employment’ (G6, 35) as a scaffolder (G9, 62).

35.    The Minster (sic) contends that while [Mr Pewhairangi] may face some obstacles in returning to New Zealand, they are not insurmountable and that the Tribunal should give this factor limited weight in favour of revocation.

    (Emphasis in original.)

76    As is apparent from the material set out above, and in contrast to the facts before the Court in LRMM, Mr Pewhairangi stated that he did not have any medical or psychological conditions and did not refer to alcohol and gambling issues in his personal circumstances form. At no point did Mr Pewhairangi seek to qualify or change his response to the question concerning medical conditions in the personal circumstances form. Nor did Mr Pewhairangi make any claim in the Applicant’s SFIC that his alcohol and/or drug abuse would be an impediment to his removal. His concern was about the familial environment to which he would be subject upon return to New Zealand. It was the Minister who raised in his statement of facts issues and contention that Mr Pewhairangi had “issues with drugs, gambling and alcohol” in the context of impediments if removed.

77    The articulated representation made by Mr Pewhairangi (as set out at [75(1)] above) was that he did not have any diagnosed medical or psychological conditions. As a Full Court of this Court (Nicholas, Thomas and Downes JJ) observed in Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134 at [38], in the context of considering the same argument that is now before me:

The point which the appellant now wishes to advance as being an unarticulated claim is therefore directly contrary to the articulated representations made by the appellant, which means it is more obscure and less obvious. In such a case, there is less need for the Tribunal to consider the claim: AXT19 v Minister for Home Affairs [2020] FCAFC 32 (Flick, Griffiths and Moshinsky JJ) at [56].

78    The Tribunal considered the extent of impediments if removed to New Zealand by considering the consequences for Mr Pewhairangi if he was returned to New Zealand. Although the Tribunal’s reasoning in that regard is not detailed, it is implicit in it that the Tribunal had regard to the matters he expressly raised: his family ties, his employment and the issues concerning his family in New Zealand. The Tribunal also noted that Mr Pewhairangi would have access, among other things, to medical services equivalent to those available in Australia.

79    The Tribunal was aware of the evidence about Mr Pewhairangi’s gambling and alcohol use disorders and considered that evidence in the context in which it was relied on by Mr Pewhairangi, namely in support of his contention that he would not reoffend and thus in the context of the Tribunal’s consideration of risk to the community. This was because those matters were expressly raised as playing a part in Mr Pewhairangi’s offending. The Applicant’s SFIC states, among other things, that Mr Pewhairangi’s offending was “due to him being quite intoxicated” and that Mr Bembrick noted that Mr Pewhairangi “impressed as quite motivated to address his addictive behaviours” and that he would benefit from therapy to address his childhood traumas.

80    Again, in contrast to the circumstances in LRMM, there was no evidence before the Tribunal that Mr Pewhairangi had been diagnosed as suffering from anxiety or depression. Mr Pewhairangi contended that “health” in the context of paragraph 9.2 of Direction 90 can apply regardless of a formal medical diagnosis, relying on Holloway v Minister for Immigration, Citizenship and Multicultural Affairs (2022) 179 ALD 217; [2022] FCA 1126 at [12]. There Colvin J said:

... Used in the phrase “age and health”, the word health would ordinarily be understood to mean any aspect of a person’s physical wellbeing and would include the overall state of a person’s fitness and condition, including underlying health issues and ongoing effects of any past injury. Within ordinary parlance, a person’s status as having a history of substance abuse, especially where there was evidence from which it may be concluded that there was a real risk of relapse into misuse of substances to such an extent that it would be an impediment to a person being able to establish and maintain basic living standards, is aspect of that person's overall health. …

81    In Holloway Colvin J considered whether the Tribunal had failed to give effect to paragraph 9.2(1) of Direction 90 when it confined the term “health” to include only the applicant’s currently manifested health issues and difficulties. In that case the applicant advanced submissions before the Tribunal that he had an issue with addiction to substances, that he would relapse into serious drug misuse were he to be removed and the Tribunal made findings, among other things, that there was a significant likelihood that the applicant would relapse into drug use. That is not the case here. While the Tribunal found, at [76] of its reasons, based on Mr Bembrick’s report that Mr Pewhairangi’s offending was caused in part by his alcohol and gambling issues, which were not resolved, there were no claims made by Mr Pewhairangi that he would relapse into, continue or increase his drinking and gambling to such an extent that it would be an impediment should he be removed to New Zealand and no findings were made by the Tribunal to that effect. The highest Mr Pewhairangi’s claim went was to state that being with members of his family, who were drug and alcohol users, would not be a good environment in which to start his life in New Zealand and in his oral evidence that being around his family in New Zealand who smoke marijuana and drink may cause him to “sort of relapse”. That claim was addressed by the Tribunal.

82    The Tribunal engaged with the case advanced by Mr Pewhairangi. The Tribunal’s review function “only requires consideration of ‘substantial clearly articulated argument relying on established facts’ or which ‘clearly emerge from the materials’”: see Okoh at [63]. Relevantly, no claim clearly emerges on the material before the Tribunal to the effect that Mr Pewhairangi’s drug, alcohol and gambling disorders and/or his depression and anxiety were health conditions to be considered as an aspect of impediments to his removal. In particular:

(1)    while the Tribunal referred to Mr Bembrick’s report and Mr Pewhairangi’s alcohol and gambling disorders as being part of the reason for his offending, there was no medical evidence before the Tribunal of any diagnosed condition. Nor did Mr Pewhairangi in his oral evidence in the Tribunal state that he had any diagnosed condition. Relatedly, there was no medical evidence to suggest that Mr Pewhairangi’s alcohol and gambling disorders were related to his health. This was so despite Mr Pewhairangi being legally represented before the Tribunal;

(2)    there is no suggestion that Mr Pewhairangi’s representative before the Tribunal “got it wrong” by failing to raise the gambling and alcohol issues as an impediment to removal or that the forensic choices that were made were not in conformity with instructions nor is there reason to question the competence of Mr Pewhairangi’s legal representative: see Okoh at [53]-[57]; and

(3)    as I have already observed, Mr Pewhairangi raised his alcohol and gambling disorders in relation to the risk of his reoffending and the Tribunal’s consideration of primary consideration 1.

83    Given the conclusion I have reached, it is not necessary for me to consider the question of materiality.

84    Ground 2 is not made out.

Conclusion

85    Mr Pewhairangi has failed to make out either of his grounds of review. Accordingly, his application should be dismissed.

86    As Mr Pewhairangi has been unsuccessful he should pay the Minister’s costs as agreed or taxed.

87    I will make orders accordingly.

Associate:

Dated:    2 November 2023