Background
Jericho Wano, a New Zealand citizen who had lived in Australia since childhood, held a Special Category visa. His visa was mandatorily cancelled in April 2023 because his convictions and sentences, including for armed home entry, extortion and dangerous driving, meant he had a substantial criminal record under the Migration Act 1958 (Cth).
A ministerial delegate declined to revoke the cancellation under s 501CA(4), and the Administrative Review Tribunal affirmed that decision. The Tribunal found Mr Wano presented a moderate and unacceptable risk of further violent offending, notwithstanding his recent rehabilitation programs, opioid substitution treatment and family circumstances.
The Court’s Holding
Derrington J dismissed Mr Wano’s judicial-review application. The Court held that he had not proved that the Tribunal failed to consider his opioid substitution treatment, his evidence about delays in obtaining rehabilitation and mental-health programs in custody, or the couple’s Islamic faith as an explanation for their short courtship before marriage.
Read fairly, the Tribunal’s reasons showed it had considered the treatment and other evidence but found them unpersuasive when assessing rehabilitation and reoffending risk. In any event, any alleged omissions were immaterial: the evidence would not realistically have changed the Tribunal’s conclusions, which rested on broader concerns including Mr Wano’s prior conduct, limited insight, his wife’s evidence, the couple’s lack of cohabitation, proposed relocation and limited employment history. Mr Wano was ordered to pay the Minister’s costs.
Key Takeaways
- A judicial-review applicant must prove that a legally relevant matter was not considered; silence in reasons does not itself establish that error.
- The Court will read tribunal reasons fairly and will not require a decision-maker to address every item of evidence expressly.
- An alleged failure to consider evidence will not justify relief unless there is a realistic possibility it could have produced a different result.
Why It Matters
The decision illustrates the narrow distinction between judicial review and a merits appeal in Australian migration cases. A claimant cannot recast disagreement with the Tribunal’s assessment of rehabilitation evidence as a failure to consider it.
It also confirms that recent treatment participation and family support may be given limited weight where the Tribunal identifies broader, evidence-based concerns about credibility, insight, stability and future reoffending risk.