What happened
The respondent, Rebecca Rewa Maioha, had her visa cancelled mandatorily under s 501(3A) of the Migration Act 1958 (Cth) because she did not pass the character test and was serving a full-time sentence of imprisonment. The cancellation occurred while she was in custody. Pursuant to s 501CA(3), she was given notice of the decision and invited to make representations about revocation. She did so in a document dated 27 February 2017 and in further statements and submissions provided through her migration agent.
In those representations she stated under the heading "Reasons for Revocation" that all her children are Australian citizens living in Australia, that her immediate family in Australia provided emotional support and were temporary caregivers for her children, that she had no support from family in New Zealand, that she had not lived in New Zealand since she was a small child, that she would have nowhere to live or no financial help in New Zealand, and that she needed to be part of her four children's lives. Under the heading "Impediments to Return" she answered "Yes" to having concerns, stating she would have nowhere to live, no money, and was scared she would not see her children for a long time. She added that re-establishing herself was a concern because she had no friends or other support, had not seen other family members for over 20 years, her children were her main priority, and she would have nowhere to live or no money.
The Assistant Minister, acting personally, considered the representations but on 17 July 2017 decided not to revoke the original cancellation decision. The Assistant Minister's written reasons addressed the "Extent of impediments if removed" at paragraphs 43 to 49. At paragraph 43 the Assistant Minister recorded having regard to the impediments Ms Maioha would face in establishing herself and maintaining basic living standards. Paragraph 45 noted her statement that she was fearful she would suffer hardship due to leaving her parents, sister and six children, that her children were her life, and that she would have nowhere to live and no money. Paragraph 46 recorded a child's letter fearing for her safety, well-being and mental health without support. Paragraph 47 accepted she had an estranged brother who could not assist. Paragraph 48 found she would experience significant emotional hardship from leaving her children and would undergo a period of adjustment due to 28 years' absence plus practical changes to accommodation and social networks. Paragraph 49 concluded that such hardships would not be insurmountable in light of New Zealand's similar culture, language and health system standards.
In the conclusion at paragraph 91 the Assistant Minister stated that Ms Maioha represented an unacceptable risk of harm to the Australian community, that protection of the community outweighed the best interests of her children and any other considerations, including her lengthy residence, bonds and the hardship she, her family and social networks would endure if the original decision was not revoked.
Ms Maioha sought judicial review. The primary judge upheld ground 6, finding at [32] that paragraphs 44-49 of the Assistant Minister's reasons failed to engage in an active intellectual way with the submissions as to her financial situation and accommodation. The primary judge characterised the "basic living standards representations" as a core aspect that was critical and relevant, requiring proper, genuine and realistic consideration which had not been given. The primary judge rejected the contention that it could be inferred the Assistant Minister found the matter immaterial, and held that it was not sufficient to assume equivalent access to government benefits.
The Minister appealed on two grounds: first, that the primary judge erred in treating the subjective fears as a mandatory relevant consideration; second, that the primary judge erred in holding that the Assistant Minister had not given proper, genuine and realistic consideration to those fears. Ms Maioha filed a notice of contention asserting that the Assistant Minister had also failed to give proper and genuine consideration to her representation that she was a victim of domestic violence.
The Full Court (Rares and Robertson JJ, Flick J concurring in the result) allowed the appeal, dismissed the notice of contention, set aside the primary judge's orders, dismissed the originating application with costs, and ordered Ms Maioha to pay the Minister's costs.
Why the court decided this way
Rares and Robertson JJ began by noting the statutory task under s 501CA(4)(b)(ii): the Minister may revoke if satisfied there is another reason why the original decision should be revoked. The respondent did not pass the character test, so the only issue was whether the Minister was satisfied there was another reason.
Their Honours observed a possible tension in earlier Full Court authority between Buadromo and the approaches in Hay, Hooton and Viane, but found it unnecessary to resolve the precise characterisation of mandatory relevant considerations. They noted that the primary judge's language of failure to engage in an active intellectual way was not the traditional language of mandatory relevant considerations from Peko-Wallsend. Nothing turned on the characterisation because no procedural point was taken.
The central holding was that the Assistant Minister had in fact considered the consequences for the respondent if returned to New Zealand. At paragraph 43 the Assistant Minister expressly stated he had regard to impediments in establishing herself and maintaining basic living standards. The representation about having nowhere to live and no money was noted at paragraph 45. The finding at paragraph 49 that hardships would not be insurmountable was construed to mean that, although the respondent currently had nowhere to live and no money in New Zealand (because she had not yet been returned), that hardship would be temporary only, given New Zealand's similar culture, language and health system standards. The Assistant Minister also accepted at paragraph 91 that hardship would be endured.
Rares and Robertson JJ relied on the analysis in Buadromo that a decision-maker is not required to make a finding of fact on every claim; a claim may be subsumed within a finding of greater generality. They held that the Assistant Minister had addressed whether the respondent was likely to be able to establish herself, finding the hardships not insurmountable. This was sufficient.
Their Honours cautioned against the language of "proper, genuine and realistic consideration", citing Swift, SZJSS, Fraser and other authorities for the proposition that such epithets risk encouraging impermissible merits review. Instead, what is required is the reality of consideration; the Court must assess qualitatively whether the decision-maker has as a matter of substance had regard to the representations. The Assistant Minister's express references and overall weighing at paragraph 91 showed that regard had been had.
Importantly, the respondent bore the onus of satisfying the Minister that her prospective hardship constituted another reason for revocation. The Minister was not required to investigate further, make additional findings about how she would manage practical changes, or produce independent probative material to support the "not insurmountable" finding. The Minister was not required to negate the representation; it was enough that he was not satisfied by what had been asserted.
On the notice of contention, Rares and Robertson JJ accepted that the respondent had put forward the domestic violence context as relevant to the nature and seriousness of her offending and as a mitigating factor. However, the Assistant Minister had addressed the "deeply dysfunctional" and "volatile" relationship at paragraphs 64 and 80 when considering risk of re-offending and the nature of the conduct. This was sufficient; no jurisdictional error arose.
Flick J reached the same result by a different path. His Honour emphasised that the task is to form a state of satisfaction as to whether there is another reason to revoke. Representations must be considered, but not every discrete matter within them needs express mention. Where, as here, the Assistant Minister had expressly identified the "nowhere to live and no money" submission and incorporated it into the reasoning, the question was whether that submission had been properly engaged with. Flick J held that the character of the submission was one inherently within the respondent's own knowledge and control; she bore primary responsibility to provide supporting facts. Paragraphs 44 and 49 were to be read practically and in a common-sense manner, not with an eye attuned to error (citing Wu Shan Liang). On that basis the Assistant Minister had given adequate consideration.
Both sets of reasons therefore converged on the conclusion that the primary judge had impermissibly engaged in merits review by demanding a more detailed response than the statute required.
Before and after state of the law
Before this decision, Full Court authority on the extent of the obligation to consider representations under s 501CA(4) was not entirely uniform. Goundar had held that the representations as a whole are a mandatory relevant consideration. Viane had found jurisdictional error where substantial and significant representations about hardship to a partner and child if they relocated were not considered. Buadromo had emphasised that representations as a whole must be considered but that the decision-maker is not required to make findings on every claim, especially if subsumed in a broader finding. Hay, Hooton and DRP17 had also addressed the limits of the obligation.
The present judgment clarifies and reinforces the Buadromo line of reasoning. It confirms that individual factual assertions within representations do not each become mandatory relevant considerations. It expressly prefers a qualitative assessment of whether substance has been given to the representations over the language of "proper, genuine and realistic consideration". It reiterates that the visa holder carries the onus and that the Minister is not required to make inquiries or produce independent evidence to rebut every claim. It applies the principle that claims may be subsumed within broader findings, specifically approving the Buadromo and DRP17 analyses.
After the decision, the law is clearer that judicial review in this context should not descend into a granular examination of whether every factual nuance was the subject of an express finding. Provided the reasons read as a whole demonstrate that the decision-maker has turned his or her mind to the substance of the case advanced for revocation, including by weighing identified hardships against countervailing considerations such as community protection, the decision will withstand scrutiny. The judgment also confirms that a finding that hardship "will not be insurmountable" can be a sufficient dispositive response to claims of homelessness and impecuniosity when supported by reference to objective country circumstances known to the Minister.
Key passages with plain-English translation
Paragraph 40 states: "in the present case the Minister did consider the consequences for the respondent if returned to New Zealand. The Minister considered the impediments the respondent 'will face if removed from Australia to her home country of New Zealand in establishing herself and maintaining basic living standards.' The Minister's conclusion, at [49], was that such hardships would not be insurmountable."
Plain English: The minister looked at what life would be like for her back in New Zealand and decided the difficulties, while real, would not be impossible to get through.
Paragraph 45 of the Assistant Minister's reasons (extracted in the Full Court judgment) notes the respondent's statement that she would have nowhere to live and no money. Paragraph 49 then concludes the hardships will not be insurmountable.
Plain English: The minister did not ignore what she said about being homeless and broke; he accepted it as part of the hardship but decided New Zealand's similarities to Australia meant she could sort out accommodation and money over time.
Paragraph 45 of the Full Court reasons: "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."
Plain English: Judges should ask whether the minister really thought about what the person said, looking at the overall sense of the decision rather than ticking boxes.
Paragraph 48: "It should again be emphasised that the issue for the Minister was whether he was satisfied that there was another reason why the original decision to cancel the visa should be revoked. It was for the respondent to put before the Minister by way of representation what it was she wished the Minister to take into account. The Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the respondent or to make inquiries into the representations she had made."
Plain English: It is up to the person to make their best case; the minister does not have to chase after more information or prove the person's claims wrong.
Paragraph 50: "It follows, in our opinion, that the Minister did not make a jurisdictional error by failing to make a finding, beyond those he made, that the respondent would suffer hardship that would 'not be insurmountable in light of New Zealand's similar culture, language and health system standards', which addressed in greater detail the respondent's representation that she would have nowhere to live and no money if returned to New Zealand. It was for the respondent to satisfy the Minister that her prospective hardship was another reason why the original decision should be revoked. The Minister was not legally required to analyse the representation in order to negate it, the Minister not having been satisfied by what the respondent asserted. It was also not necessary for the Minister's conclusion that the hardship that the respondent may suffer 'will not be insurmountable' to be supported by probative material outside what the respondent had put by way of representation."
Plain English: The minister does not have to write an essay disproving every worry the person raises. If the minister is not convinced by what the person has said, that is enough; no extra evidence is needed to back up the minister's view that the problems can be overcome.
Paragraph 52 (on the notice of contention): the Assistant Minister took sufficient account of the respondent's representation at [80], referring to the relevant relationship as a "volatile relationship".
Plain English: The minister did not have to use the exact words "victim of domestic violence" if the substance of the dysfunctional relationship was considered when deciding how serious the offending was and how likely she was to reoffend.
What fact patterns trigger this precedent
This precedent is triggered whenever a person whose visa has been cancelled under s 501(3A) makes representations under s 501CA(4) that include claims of practical hardship upon return—such as having no accommodation, no money, no family support, or difficulty re-establishing themselves—and the Minister or Assistant Minister expressly notes those claims, considers them under a heading dealing with impediments or basic living standards, and reaches a broader finding that the hardships "will not be insurmountable" by reference to objective features of the receiving country (for example, comparable culture, language, health or social systems).
It applies with particular force where the claims concern the visa holder's own position rather than the position of Australian-citizen family members, and where the Minister weighs the identified hardship against the risk to the Australian community and other statutory considerations, ultimately concluding that community protection outweighs revocation.
The precedent is also engaged where a representation that past domestic violence was a contributing factor to offending is made; the decision shows that such a representation is adequately considered if the Minister addresses the volatile or dysfunctional nature of the relationship when assessing the nature and seriousness of the conduct and the risk of re-offending.
Fact patterns that do not trigger jurisdictional error include those in which the Minister does not make a granular finding on exactly how accommodation or income will be obtained, provided the broader issue of basic living standards has been addressed. Claims that are peripheral or capable of being subsumed within a larger finding about adjustment or hardship will not ground error. The precedent confirms that the absence of independent country information to support a "not insurmountable" finding is not fatal if the finding is reasonably open on the representations themselves.
How later courts have treated it
The judgment itself treats earlier authorities in a particular way. It follows the analysis in Buadromo at paragraph 41 that representations as a whole are mandatory but that discrete findings are not required on every claim. It follows DRP17 at paragraph 47 for the proposition that the Minister is only required to answer the ultimate question whether there is another reason to revoke, and that overlooking a substantial clearly articulated argument that could be dispositive may be error, but only if such an argument was in fact raised. It distinguishes Viane on its facts because Viane concerned unaddressed representations about relocation of family members, whereas the present case concerned the respondent's own position upon return.
The judgment applies Wu Shan Liang for the principle that reasons are not to be construed with an eye attuned to error but in a practical, common-sense manner. It cites and approves the caution against "proper, genuine and realistic consideration" language expressed in SZJSS, Swift, Fraser, Carrascalao, BZD17 and Sabharwal.
The judgment cites Peko-Wallsend for the traditional understanding of mandatory relevant considerations and notes that the primary judge's approach was not expressed in those terms. It follows BSJ16 and Folau for the proposition that even if a matter must be considered, the Minister is not obliged to evaluate it in any particular way.
Flick J's concurring reasons treat Ali as illustrating that absence of express reference to a discrete matter may sometimes assist in concluding that representations as a whole were not properly considered, but holds that on the facts no such difficulty arose because the Assistant Minister had expressly incorporated the critical submission into the reasoning process.
Still-open questions
The judgment leaves open the precise resolution of any tension between the Buadromo line of authority and the approaches taken in Viane, Hay and Hooton. It notes at paragraph 31 that Buadromo did not consider Viane, perhaps because of the way that case was argued, but does not decide which line is to be preferred in all circumstances.
It remains open whether there could be a case in which a claim about basic living standards is so central, and so clearly articulated with supporting detail, that a mere statement that hardships will not be insurmountable would be insufficient. The present reasons emphasise that the claim here was not of that character, but the boundary is not exhaustively defined.
The judgment does not decide whether the Minister is ever required to make inquiries into matters raised in representations that are not wholly within the visa holder's knowledge. Flick J discusses the distinction between matters within the visa holder's control and those that are not, but concludes that on these facts the submission was within the respondent's control. The limits of any obligation to invite further representations or to seek external verification therefore remain for future cases.
Whether a finding that hardship is "not insurmountable" could itself be legally unreasonable in the absence of any country information or reasoning explaining why that is so is not foreclosed, although the judgment holds that no independent probative material was required on the facts before the Court.
Finally, the precise interaction between the obligation to consider representations and the non-reviewability provision in s 501CA(7) is not explored beyond the established understanding that jurisdictional error remains reviewable. The decision assumes that the ordinary principles of jurisdictional error continue to apply to the formation of the state of satisfaction under s 501CA(4)(b)(ii).