Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 25 May 2022
• Neutral Citation: [2022] FCA 610
• Date: 25 May 2022

Federal Court of Australia

Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 610

Review of:	Mailau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1224
File number:	ACD 35 of 2021
Judgment of:	BURLEY J
Date of judgment:	25 May 2022
Catchwords:	MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal (Tribunal) – whether Tribunal erred in placing “no weight” on psychological report – whether Tribunal erred by considering the cumulative best interest of the relevant minor children – whether use of hearsay evidence legally unreasonable – whether Tribunal failed to consider impact of non-revocation on a victim – application dismissed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c) Migration Act 1958 (Cth) ss 499(2A), 501(3A), 501CA(4)
Cases cited:	BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69; 284 FCR 416 DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97; 285 FCR 1 Meyrick v Minister for Immigration [2020] FCA 677 Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; 280 FCR 178 Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; 219 FCR 504 Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; 135 ALD 45 Stewart v Minister for Immigration. Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; 281 FCR 578 Tomasi Mailau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1224 WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Division:	General Division
Registry:	Australian Capital Territory
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	71
Date of hearing:	5 October 2021
Solicitor for the Applicant:	Mr S Kikkert of Kikkert Law
Counsel for the First Respondent:	Ms K Hooper
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The second respondent filed a submitting notice, save as to costs

ORDERS

		ACD 35 of 2021
BETWEEN:	TOMASI MAILAU Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	BURLEY J
DATE OF ORDER:	25 MAY 2022

THE COURT ORDERS THAT:

1. The application be dismissed with costs

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

REASONS FOR JUDGMENT

1 INTRODUCTION	[1]
2 THE DECISION OF THE TRIBUNAL	[8]
3 GROUND 1 – FAILURE TO GIVE WEIGHT	[27]
3.1 Introduction	[27]
3.2 Consideration	[29]
4 GROUND 2 – BEST INTERESTS OF CHILDREN	[42]
4.1 Introduction	[42]
4.2 Consideration	[45]
5 GROUND 3 – USE OF HEARSAY EVIDENCE	[54]
6 GROUND 4 – IMPACT ON VICTIMS	[59]
6.1 Introduction	[59]
6.2 Consideration	[61]
7 DISPOSITION	[71]

BURLEY J:

1. INTRODUCTION

1. In these proceedings Tomasi Mailau seeks review of a decision of the Administrative Appeals Tribunal dated 14 April 2021, which affirmed the decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 13 February 2020 not to revoke the cancellation of Mr Mailau’s visa under s 501CA(4) of the Migration Act 1958 (Cth): Tomasi Mailau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1224.

2. Mr Mailau is a 47 year-old citizen of Tonga who arrived in Australia in September 1981 at the age of 6 and has spent most of his life since then in Australia. He has been convicted of a number of criminal offences, including attempted aggravated robbery in company, for which he was sentenced to 36 months’ imprisonment, make demand with threat to endanger health, for which he was sentenced to 30 months’ imprisonment and possess/use a prohibited weapon without authorisation, for which he was sentenced to 1 month’s imprisonment.

3. In December 2018 a delegate of the Minister cancelled his visa pursuant to the mandatory cancellation provision in s 501(3A) of the Act. Mr Mailau made representations to the Minister as to why the cancellation should be revoked, and on 13 February 2020 a delegate of the Minister decided not to revoke the cancellation of his visa pursuant to s 501CA(4) of the Act. Mr Mailau then applied to the Tribunal for a merits review of the decision of the delegate.

4. A first hearing was conducted before the Tribunal over three days on 28 to 29 April 2020 and 6 May 2020 and on 7 May 2020 the decision of the delegate was affirmed, with the Tribunal providing written reasons on 28 May 2020. On 29 July 2020 that decision was set aside by orders of this Court (made by consent), and the matter was remitted to the Tribunal for reconsideration according to law.

5. A differently constituted Tribunal conducted a further hearing on 19 January 2021, 5 March 2021 and 9 April 2021, and on 14 April 2021 the Tribunal affirmed the decision under review and provided its reasons for the decision on 10 May 2021. Mr Mailau now seeks review of the decision of the Tribunal in this Court.

6. The applicant was represented by Kikkert Law, solicitors, who filed written submissions in advance of the hearing. The Minister was represented by Ms Hooper of counsel, who also filed submissions in advance of the hearing.

7. Mr Mailau relies on the following grounds:

1. The Tribunal committed a jurisdictional error by placing no weight on Ms Cowdery’s psychological report, and/or finding that the applicant’s age and state of health are not impediments that attract any level of weight. By doing so the Tribunal either (a) failed to take into account a relevant mandatory consideration; (b) failed to give genuine and proper consideration and engage with the applicant’s submissions and/or; (c) made findings that were legally unreasonable.

2. The Tribunal erred by considering the “cumulative best interests” of the relevant minor children in Australia. Rather, the Tribunal was required to make a finding on whether or not revocation of the visa cancellation was in the best interest of each minor child.

3. The Tribunal erred by making an adverse finding against the applicant on the basis of hearsay evidence. Alternatively, it was legally unreasonable for the Tribunal to use hearsay evidence to make an adverse finding against...