Federal Court of Australia

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

ORDERS

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 had advanced in support of his case that the cancellation of his visa should be revoked. That argument concerned the unavailability in New Zealand of a particular type of drug rehabilitation or treatment program – an opioid substitution treatment program or OSTP. Mr Mamaku did not press a second ground of review which contended that the Tribunal’s findings lacked a logical or probative basis.

3    As will be explained in the reasons that follow, I am not persuaded that the Tribunal overlooked or ignored Mr Mamaku’s argument concerning the unavailability in New Zealand of a suitable OSTP in any way which would constitute a jurisdictional error. His challenge to the Tribunal’s decision must accordingly fail.

4    References to provisions in the Migration Act in these reasons are references to those provisions in the form they took at the time of the cancellation of Mr Mamaku’s visa and the time of the decisions of the delegate and the Tribunal not to revoke the cancellation.

MR MAMAKU’S VISA IS CANCELLED

5    Mr Mamaku’s visa was cancelled pursuant to s 501(3A) of the Migration Act, which relevantly provided as follows:

(3A)     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)     …; 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.

6    Subsection 501(6)(a) of the Migration Act relevantly provided that a person does not pass the “character test” if the person has a “substantial criminal record”. Subsection 501(7)(c) of the Act provided that for the purposes of the “character test” a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

7    There was and is no dispute that Mr Mamaku did not meet the character test. He had an unfortunately long and lamentable record of criminal convictions. His record of convictions relevantly included convictions on 17 February 2022 for various serious offences for which he was sentenced to an aggregate term of imprisonment of two years. As the facts relating to Mr Mamaku’s criminal history indicate, Mr Mamaku did not pass the character test because he had a substantial criminal record as defined in the Migration Act. There was also no dispute that on the day his visa was cancelled, Mr Mamaku was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of New South Wales. The preconditions for the cancellation of Mr Mamaku’s visa under s 501(3A) of the Migration Act were clearly met.

THE MINISTER’S DELEGATE REFUSES TO REVOKE THE CANCELLATION

8    Section 501CA of the Migration Act applied where the Minister had made a decision (referred to as the “original decision”) under s 501(3A) to cancel a visa that had been granted to a person. Subsection 501CA(3)(b) of the Migration Act provided that the Minister must invite the person to make “representations … about revocation of the original decision”. Subsection 501CA(4) provided as follows:

(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.

9    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

10    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.

11    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.

12    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.

13    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.

14    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.

15    The Tribunal convened a further directions hearing on 9 August 2024. It would appear that Mr Mamaku was directed to, or at least granted leave to, provide further written submissions in reply to the Minister’s SFIC. Mr Mamaku subsequently provided written submissions in reply dated 22 August 2024 (Mr Mamaku’s Submissions in Reply). Those submissions included, among other things, a reply to the Minister’s submissions in respect of Mr Mamaku’s argument concerning the unavailability of a suitable OSTP in New Zealand.

THE TRIBUNAL’S DECISION

16    The Tribunal affirmed the decision under review: Decision and Reasons for Decision dated 24 October 2024.

17    It is unnecessary to give a detailed account of the Tribunal’s reasons, particularly given the narrow focus of Mr Mamaku’s ground of challenge to the Tribunal’s decision. The Tribunal, having noted that there was no dispute that Mr Mamaku did not pass the character test (Reasons at [10]) proceeded to give detailed findings in respect of each of the primary and other considerations which it was required by Direction 110 to consider when determining whether there was “another reason” to revoke the cancellation of Mr Mamaku’s visa. The findings made by the Tribunal in respect of those considerations included, in short summary, that: the “totality” of Mr Mamaku’s unlawful conduct in Australia “can be readily characterised as ‘serious’” (Reasons at [42]); Mr Mamaku represented a “low-medium risk of returning to a pattern of illicit substance abuse and to again seriously offending in the Australian community” and that the “risk he poses in this regard is real and not insignificant” (Reasons at [84]); the primary consideration of protection of the Australian community accordingly weighed very heavily in favour of affirming the decision under review (Reasons at [87]); the primary consideration concerning the strength, nature and duration of Mr Mamaku’s ties to Australia weighed heavily in favour of revoking the visa cancellation (Reasons at [107]); the Australian community would expect the Australian Government to refuse to set aside the cancellation of Mr Mamaku’s visa (Reasons at [121]); and the “other consideration” concerning the extent of the impediments that Mr Mamaku would face if removed to New Zealand weighed in favour of revocation of the cancellation of Mr Mamaku’s visa to an extent that the Tribunal described as “moderately strong” (Reasons at [136] and [137(b)]).

18    In arriving at its conclusion as to whether there was “another reason” to revoke the cancellation of Mr Mamaku’s visa, the Tribunal in effect weighed up the various findings it had made in respect of the relevant considerations in Direction 110: Reasons at [139]-[140]. Having conducted that weighing exercise, the Tribunal concluded that a “holistic application of the considerations in the Direction … militates in favour of … finding there is not another reason to revoke the mandatory cancellation of [Mr Mamaku’s] Visa”: Reasons at [141]. The Tribunal accordingly affirmed the decision under review.

19    There are two aspects of the Tribunal’s reasoning that warrant further attention having regard to the focus of Mr Mamaku’s challenge to the Tribunal’s exercise of its review jurisdiction.

20    First, in his submissions in this proceeding, Mr Mamaku drew attention to aspects of the Tribunal’s reasoning which led it to conclude that Mr Mamaku represented a “real and not insignificant level of recidivist risk of committing further criminal offences if returned to the Australian community”: Reasons at [86(c)]. That finding was made in the context of the primary consideration relating to protection of the Australian community.

21    In his evidence, Mr Mamaku attributed some of his offending conduct to the fact that at various times he was a regular user of the methamphetamine “Ice”. He claimed in his evidence that, for a period of about a year after his visa status had been restored after an earlier cancellation, he had been involved in a “Buprenorphine opioid substitution program”: Reasons at [64]. At some point in time, however, he relocated to Sydney’s northern beaches and had “difficulties in … maintaining a consistent pattern of engagement” with that program “as a result of community movement restrictions arising from the COVID-19 pandemic”: Reasons at [65]. The effect of Mr Mamaku’s evidence was that his incapacity to regularly receive the required dosage of Buprenorphine caused him to relapse “into abusing ice and to consequently [re]offending”: Reasons at [66].

22    The Tribunal concluded, apparently on the basis of the evidence just summarised, that the “Buprenorphine program” was “the most significant element speaking to [Mr Mamaku’s] recidivist risk” because, “on his own evidence”, when he is not able to access that program he relapses into “a pattern of illicit substance abuse”: Reasons at [82] (fifth dot point). The Tribunal, however, was obviously concerned that there was no independent clinical evidence concerning Mr Mamaku’s participation in the program, and had various misgivings about Mr Mamaku’s evidence in respect of his participation in the program: see Reasons at [82] (sixth dot point). The Tribunal relevantly concluded as follows (Reasons at [83]):

Resolution of the Applicant’s difficulties with illicit substance abuse remain a work in progress. The only safe and realistic finding is that this Applicant’s level of recidivist risk is very significantly dependant on a consistently maintained pattern of involvement with an opioid substitution program involving Buprenorphine (or other medically-advised equivalent). My principal concern about the Applicant’s recidivist risk is that the evidence does not contain a clinical safeguard operating around him to displace my misgivings about the reliability of his own evidence that he will consistently maintain such rehabilitative engagement.

(Emphasis added.)

23    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”.

24    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.”

25    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

26    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.)

27    Several observations should be made in respect of the enumerated particulars of Mr Mamaku’s ground of review.

28    First, paragraph 2 refers to s 499 of the Migration Act. Subsection 499(1) of the Migration Act relevantly provides that the Minister may give written directions to a “person or body having functions or powers under this Act” in respect of the exercise of those powers, and that the person or body must comply with any such direction. Mr Mamaku’s argument appeared to be that the Tribunal failed to comply with s 499 because it ignored or overlooked his evidence or argument about the unavailability of an appropriate OSTP in New Zealand to treat his Ice addiction. While somewhat unclear, the argument appeared to be that, in ignoring or overlooking that evidence or argument, the Tribunal did not comply with paragraph 9.2(1)(c) of Direction 110 because it failed to take into account the extent of any impediment that Mr Mamaku might face if he is returned to New Zealand taking into account any “… medical … support available to [him] in that country”.

29    Second, the case citation in paragraph 3 would appear to be a reference to Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 in which, at [27], the High Court referred (relevantly) to the “established principle that … if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument … that may give rise to jurisdictional error” (emphasis added; footnotes omitted). That statement of principle should not, however, be read in isolation. It will be necessary in due course to refer to other relevant principles enunciated in Plaintiff M1/2021.

30    Third, paragraph 4 refers to paragraphs [64] and [83] of the Tribunal’s decision. The content of those paragraphs was summarised earlier. Mr Mamaku’s contention that the Tribunal in those paragraphs accepted that the “opioid substitution program … was … centrally important to [Mr Mamaku’s] rehabilitation” is oversimplistic and not entirely accurate. It is true that the Tribunal found that Mr Mamaku’s “level of recidivist risk” was “dependent on a consistently maintained pattern of involvement with an opioid substitution program involving Buprenorphine (or other medically-advised equivalent)”, however equally the Tribunal plainly had misgivings about Mr Mamaku’s evidence concerning his “rehabilitative engagement” with that program and the absence of any “clinical safeguard operating around him”, by which the Tribunal appears to have meant the absence of any clinical evidence concerning Mr Mamaku’s engagement with that program.

31    Fourth, paragraphs 5 and 6 refer to the evidence that was said to have been given at the “oral hearing”, however Mr Mamaku did not tender the transcript of the Tribunal hearing. The only indication of the oral evidence given by Mr Mamaku at the Tribunal hearing is the evidence reproduced or summarised in the Tribunal’s reasons. There is no indication in the Tribunal’s reasons that Mr Mamaku gave any evidence at the hearing in respect of the unavailability of any OSTP for Ice users in New Zealand.

32    Fifth, paragraphs 6 and 7 refer to Mr Mamaku’s Supplementary Submissions and asserts that they contained “evidence and contentions” to the effect that opioid substitution programs in New Zealand are “solely intended to treat addiction to opioid drugs” and that Mr Mamaku “is ineligible for a program, as a user of the drug ‘ice’ which is not an opioid drug”. The actual content of Mr Mamaku’s Supplementary Submissions will be detailed later, as will the evidence that was otherwise before the Tribunal in respect of the availability of drug rehabilitation programs in New Zealand.

33    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?

34    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.

35    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

36    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.

37    First, a decision-maker must “read, identify, understand and evaluate the representations” and 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”: Plaintiff M1/2021 at [24] (footnotes omitted).

38    Second, the “weight to be afforded to the representations is a matter for the decision-maker” and the decision-maker is not obliged to ‘to make actual findings of fact as an adjudication of all material claims’ made by a former visa holder”: Plaintiff M1/2021 at [24] quoting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 at [14].

39    Third, “[w]hat 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” and the “requisite level of engagement … will vary, among other things, according to the length, clarity and degree of relevance of the representations”: Plaintiff M1/2021 at [25].

40    Fourth, the principles just identified do not detract from and are not inconsistent with the established principle that “if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument … that may give rise to jurisdictional error”: Plaintiff M1/2021 at [27] (footnotes omitted).

Relevant facts, material and arguments that were before the Tribunal

41    As has already been indicated, Mr Mamaku’s principal contention in support of his review ground was that it can be inferred from the Tribunal’s reasons at [131] that the Tribunal ignored or overlooked the submissions and materials in which he claimed indicated that he would face an impediment if returned to New Zealand because he would not be able to access a suitable OSTP like the one he had previously been able to access in Australia. To address that contention, it is necessary to consider precisely what Mr Mamaku had submitted in that respect and what the Minister had submitted in response. It is also necessary to have regard to what, if any, evidence or materials Mr Mamaku had in fact supplied in support of his submission.

42    The starting point is that on or about 20 February 2024, Mr Mamaku provided the Tribunal with a Statement of Facts, Issues and Contentions. In relation to the “other consideration” which involved the extent of the impediments that Mr Mamaku would face if returned to New Zealand, this initial Statement of Facts, Issues and Contentions simply stated (at paragraphs [29]-[30])):

The Applicant would face substantial barriers if removed to New Zealand given the following:

1.    The Applicant is 43 years old and has never lived in NZ.

2.    He has no ties or connections with NZ. It is a completely foreign country to him.

3.    The Applicant has drug dependency issues and has no support networks there[.]

We submit that this consideration weighs moderately in the Applicant’s favour.

43    As can be seen, nothing was said about any impediment based on Mr Mamaku’s inability to access any particular type of drug rehabilitation or treatment program if he was required to return to New Zealand.

44    As has already been discussed, the fact that Mr Mamaku had attended a particular OSTP in Australia in respect of his Ice use was the subject of some oral evidence from Mr Mamaku during the Tribunal hearing. It is, however, readily apparent from the Tribunal’s reasons that Mr Mamaku’s evidence on that topic arose in the context of the Tribunal considering the extent to which there was a risk that Mr Mamaku would reoffend. Mr Mamaku’s evidence was that his reoffending in more recent times had occurred because he had been unable to continue to engage with the OSTP that he had previously engaged with as a result of community movement restrictions arising from the COVID pandemic. He claimed that once he ceased receiving the substitute drug which was provided as part of that program – a drug called Buprenorphine - he had relapsed into abusing Ice which had in turn caused him to reoffend: see Reasons at [66].

45    Mr Mamaku’s Supplementary Submissions were lodged with the Tribunal on 17 May 2024. That was after the hearing and before the Tribunal member who had presided at the hearing became unavailable to complete the review. The supplementary submissions noted that during the hearing in the Tribunal an issue arose as to whether OSTP was available in New Zealand to aid Mr Mamaku’s rehabilitation from methamphetamine. As noted earlier, however, there was no evidence before this Court which was capable of verifying that contention. In any event, the supplementary submissions went on to deal with that issue. Reference was made, in that context, to a September 2022 report which had been commissioned by the New Zealand Drug Foundation. That report recommended a “pilot programme of stimulant-assisted treatment in Aotearoa New Zealand” the purpose of which was said to “help extricate people who are addicted to methamphetamine from the harms that result from reliance on the black market”. A copy of the report was attached to the submissions. The following “relevant propositions”, apparently based on the report, were then advanced in the supplementary submissions:

8.1 Firstly, if the Applicant [Mr Mamaku] were returned, he would be exposed to methamphetamine treatment policies that are failing the New Zealand Community.

8.2 The authors conclude a Stimulant Substitution Therapy model for treatment should be trialled in New Zealand. This is drawn in part from the success of Opioid Substitution Therapy for opioid dependence. This should assist the Tribunal to find the Applicant will meet success in rehabilitating through his OSTP. That is, the treatment he currently receives in Australia.

8.3 The Stimulant Substitution Therapy model, (or agonist model) is not presently available in New Zealand to treat methamphetamine dependence.

46    Mr Mamaku’s Supplementary Submissions went on to assert that Mr Mamaku’s “review of current New Zealand literature and Medical and dependency information all confirm that Stimulant Substitution Therapy model, (or agonist model) treatment is not available in New Zealand for methamphetamine dependence”.

47    In late June or early July 2024, the Tribunal member who presided at the hearing became unavailable and the Tribunal member who ultimately decided the review was assigned to the review. As discussed earlier, that Tribunal member convened a directions hearing on 4 July 2024. At that directions hearing, the parties were directed to file further submissions. Mr Mamaku’s further SFIC was provided to the Tribunal on 15 July 2024, presumably in accordance with that direction. That statement, among other things, repeated what had been said in Mr Mamaku’s initial Statement of Facts, Issues and Contentions concerning the impediments that Mr Mamaku would face if returned to New Zealand, though the following paragraph was added:

33. Over the days 22-23 April 2024, the Tribunal asked about the capacity for the Applicant to continue his program of rehabilitation from drug dependency in New Zealand, and invited the Applicant to make post-hearing submissions. The Applicant duly made post-hearing submissions, showing his program of rehabilitation is not practised in New Zealand. Those submissions and their supporting materials are attached to this Statement.

48    On 29 July 2024, the Minister lodged a Statement of Facts, Issues and Contentions, also presumably in accordance with the direction given by the Tribunal on 4 July 2024 (the Minister’s SFIC). That statement, among other things, responded to the submissions in Mr Mamaku’s Supplementary Submissions and Mr Mamaku’s further SFIC concerning the impediments he would face if returned to New Zealand. The Minister contended that, subject to his “evident issues with drug use”, Mr Mamaku had not claimed that he had any physical or mental health conditions that would present as a barrier to returning to New Zealand. As for Mr Mamaku’s issues with drugs, the Minister submitted that if he “was to relapse into drugs and require mental health services in New Zealand, there is no evidence that he would not be entitled to the same support available to other New Zealand citizens”.

49    As for Mr Mamaku’s contentions concerning the availability of an OSTP for Ice users in New Zealand, the Minister’s SFIC stated (at [88]):

The applicant submits that “his program of rehabilitation is not practised in New Zealand”. There is no evidence that the applicant is exclusively limited to [Opioid] Substitution Treatment Program. There is also not medical evidence suggesting how long the applicant has been undergoing this treatment, his progress, outcomes and prognosis. There is material before the Tribunal of available rehabilitation programs in New Zealand (RB 1165). Further, the Tribunal has previously held that health and welfare services in Australia and New Zealand are comparable. The respondent contends that the applicant will have access to various appropriate rehabilitation services when he returns to New Zealand. While accessing these services may initially be challenging, the respondent submits that this does not present an insurmountable obstacle.

(Footnote omitted.)

50    The reference to material that was before the Tribunal concerning available rehabilitation programs was a reference to a New Zealand Ministry of Health publication which provided various details concerning community treatment services that were available in New Zealand for, among other things, people with drug problems. That publication referred to several services, programs and treatments. Specific reference was made to an opioid substitution treatment, though that treatment was said to only be suitable for persons who wanted to “come off drugs like homebake, codeine, morphine, fentanyl and oxycontin”.

51    On 9 August 2024, shortly after Mr Mamaku’s Supplementary Submissions, Mr Mamaku’s further SFIC and the Minister’s SFIC had been lodged with the Tribunal, the Tribunal convened a further directions hearing. The Tribunal’s reasons state that the submissions lodged in accordance with the directions made by the Tribunal on 4 July 2024 had been received by the Tribunal on 9 August 2024: Reasons at [6].

52    Following the directions hearing on 9 August 2024, Mr Mamaku lodged his [Mr Mamaku’s] Submissions in Reply with the Tribunal. Those submissions were said to be in reply to the Minister’s SFIC. It is unnecessary to refer in detail to the content of Mr Mamaku’s Submisions in Reply. They essentially just repeated Mr Mamaku’s assertion that there is no suitable OSTP treatment for methamphetamine users in New Zealand. The reply submissions did, however, respond to the Minister’s submission that there was no medical evidence before the Tribunal concerning the “progress, outcomes and prognosis” of the OSTP that Mr Mamaku had claimed to have participated in. Mr Mamaku submitted that Mr Mamaku had himself given evidence concerning his treatment and that “there is nothing inherent to the evidence which calls for an expert medical opinion.”

The impediments consideration and the Tribunal’s findings

53    Paragraph 9.2 of Direction 110 provides as follows in respect of the impediments consideration:

9.2. Extent of impediments if removed

(1) Decision-makers must consider the extent of any impediments that the noncitizen 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.

54    As can be seen, the consideration relevantly requires the decision-maker, when considering the impediments that might be faced by the non-citizen, to take into account the non-citizen’s health and any medical support available in the country to which the non-citizen will be returned.

55    The Tribunal’s reasoning and finding in respect of paragraph 9.2(c) of Direction 110 was as follows (Reasons at [131]):

Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in New Zealand. First, with reference to medical support, to the extent the Applicant will require access to, and placement on, an opioid replacement program in New Zealand, he will surely have a similar level of such publicly available healthcare as a citizen of New Zealand as is currently available to him in Australia. To whatever extent he may require support for any mental health issue (about which the evidence is scant) he will have access to such publicly available mental health support in New Zealand as would be available to other citizens in that country. The question of medical support in New Zealand is not an impediment to his return and re-settlement there.

(Emphasis added.)

56    The Tribunal also concluded that Mr Mamaku was “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).

The Tribunal did not overlook or ignore Mr Mamaku’s contentions or materials in relation to the availability of a suitable OSTP in New Zealand

57    As was noted at the outset, Mr Mamaku contended that the Tribunal failed to complete the exercise of its review jurisdiction because it ignored or overlooked the material and submissions concerning the unavailability in New Zealand of an OSTP of the type that he had accessed in Australia. He submitted that there was “nothing in [the Tribunal’s] reasons to indicate [that] the Tribunal considered [his] supplementary submissions and evidence” in relation to the unavailability of a suitable OSTP in New Zealand. In Mr Mamaku’s submission, it was “surprising” that the Tribunal did not expressly deal with his contention that a suitable OSTP program for methamphetamine users was not available in New Zealand, particularly given the prominence that the Tribunal had given to his participation in such a program when considering whether he was likely to reoffend. He submitted that the Tribunal’s failure to expressly address that issue supported the inference that it overlooked or ignored his evidence and submissions in respect of it.

58    I am unable to accept those submissions. I am not persuaded that the Tribunal overlooked or ignored Mr Mamaku’s evidence or submissions concerning the unavailability of a suitable OSTP in New Zealand for the treatment of Ice users. While the Tribunal did not expressly decide whether or not a program which was exactly like the one that Mr Mamaku had accessed in Australia was available in New Zealand, it was not required to make such a finding. That is because it found that Mr Mamaku would be able to access a “similar level of such publicly available healthcare” in New Zealand: Reasons [131].

59    While the Tribunal’s reasoning (at Reasons [131]) in respect of the health aspect of the impediments consideration was undoubtedly brief, read fairly and in context, it is tolerably clear that the Tribunal essentially accepted the Minister’s submissions in respect of this issue. In particular, it accepted that it was not essential for Mr Mamaku to participate in exactly the same type of OSTP he had accessed in Australia, that health and welfare services in Australia and New Zealand were “comparable” and that Mr Mamaku would be able to access “appropriate” rehabilitation services in New Zealand if he needed to. In those circumstances I do not consider it to be surprising, as Mr Mamaku contended it was, that the Tribunal did not make any express finding about the availability or otherwise of OSTPs for Ice users in New Zealand. Nor do I consider it to be significant that the Tribunal had earlier given some prominence to Mr Mamaku’s engagement with the OSTP he had accessed in Australia when addressing whether Mr Mamaku was likely to reoffend, particularly given the Tribunal’s obvious misgivings about the reliability of Mr Mamaku’s evidence concerning his commitment to that engagement and the absence of any clinical or medical evidence.

60    The sequence and timing of the lodgement of Mr Mamaku’s Supplementary Submissions, Mr Mamaku’s further SFIC and the Minister’s SFIC, each of which addressed Mr Mamaku’s contentions concerning the availability of a suitable OSTP for Ice users in New Zealand, also indicates to me that it is extremely improbable that the Tribunal simply overlooked this issue and Mr Mamaku’s contentions in respect of it. Mr Mamaku’s further SFIC (which annexed a copy of Mr Mamaku’s Supplementary Submissions) was lodged with the Tribunal in accordance with, and shortly after, the directions made by the Tribunal (constituted by the Tribunal member who eventually decided the review) at the directions hearing on 4 July 2024. It is highly improbable that the Tribunal was not aware of those documents in those circumstances. In any event, the Tribunal expressly referred to its receipt of those submission documents in its Reasons: Reasons at [6].

61    There is also no sound basis for any inference that the Tribunal simply ignored Mr Mamaku’s contentions concerning the issue. The Tribunal expressly adverted to the issue in its Reasons at [131] when it prefaced its findings with the words: “to the extent the Applicant will require access to, and placement on, an opioid replacement program in New Zealand”. It was in that context that the Tribunal reasoned that Mr Mamaku would be able to access a “similar level of such publicly available healthcare as a citizen of New Zealand as is currently available to him in Australia” (emphasis added). Read fairly and in context, the point the Tribunal was making was that, even if Mr Mamaku could not access in New Zealand the exact type of opioid replacement program that he had accessed in Australia, he could nevertheless access a “similar level” of healthcare to deal with any issue he might experience in respect of drug use in New Zealand. There was, as the Minister had submitted, some evidence before the Tribunal which supported the proposition that health and welfare services in New Zealand were comparable to those in Australia.

62    It should also perhaps be noted in this context that it is entirely unclear whether Mr Mamaku had given any oral evidence at the Tribunal hearing about the availability of an OSTP for methamphetamine users in New Zealand. Indeed, it is doubtful that he could give any such evidence as it is unlikely that he would have had any firsthand knowledge in respect of that issue. He had been residing in Australia for almost his whole life. Moreover, the material that was before the Tribunal in respect of that issue was very limited. It essentially comprised the September 2022 New Zealand Drug Foundation report which recommended a pilot program which appeared to be similar to the program that Mr Mamaku had accessed in Australia, together with the bare assertion in Mr Mamaku’s Supplementary Submissions that a review of the “current literature” suggested that such a program was not available in New Zealand.

63    I am not, in all the circumstances, persuaded that the Tribunal “ignored, overlooked or misunderstood” any “relevant facts or materials” or any “substantial and clearly articulated argument” that had been advanced by Mr Mamaku: cf Plaintiff M1/2021 at [27]. I am also not persuaded that the Tribunal was required to make an express finding about whether Mr Mamaku would be able to access in New Zealand the same sort of OSTP that he had accessed in Australia. I am in all the circumstances satisfied that the Tribunal had regard to, and brought its mind to bear on, the representations made by Mr Mamaku about the impediments that he might face in New Zealand, including his assertion that he would not be able to access in New Zealand an appropriate OSTP for Ice users.

64    I am accordingly not satisfied that the Tribunal failed to complete the exercise of its jurisdiction, or failed to comply with Direction 110 or s 499 of the Migration Act, as contended by Mr Mamaku.

CONCLUSION AND DISPOSITION

65    Mr Mamaku failed to establish any jurisdictional error on the part of the Tribunal. His application for judicial review of the Tribunal’s decision must accordingly be dismissed with costs.

Associate:

Dated:    14 August 2025