FEDERAL COURT OF AUSTRALIA

ZGWQ v Minister for Home Affairs [2019] FCA 1096

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This application under s 476A(1)(b) of the Migration Act 1958 (Cth) is for judicial review of the decision of the Administrative Appeals Tribunal dated 1 March 2019 affirming the decision under review. That decision under review was made by a delegate of the Minister for Home Affairs, who decided under s 501CA not to revoke a mandatory visa cancellation decision under s 501(3A).

2    The applicant is a citizen of New Zealand who first arrived in Australia in 1990 when he was two years old. He has an extensive criminal history dating back to 2006. No issue presently arises of the applicant passing the character test.

The Tribunal’s reasons

3    The Tribunal made the following statements at [66]-[68] of its reasons:

Extent of impediments if the applicant is removed

66.    The extent of impediments if the applicant is removed from Australia relies on his capacity to reside in New Zealand. Pursuant to paragraph 14.5 of the Direction, I must consider the applicant’s age and health, whether there are any substantial language or cultural barriers, and any available social, medical and/or economic support.

67.    The applicant is 31 years old. Although he told the Tribunal he has suffered from depression, clinical records dated 12 July 2018 show that a psychiatrist found no evidence of mental illness. There are no language or cultural barriers to the applicant returning to New Zealand and obtaining employment. I am satisfied that, as a citizen of New Zealand, the applicant would have access to a public health system and social welfare. However, I accept the applicant’s evidence that he has no known family members in New Zealand and he will be “very challenged”.

68.    I find there are no impediments, apart from being removed from his family in Australia, which would affect the applicant commencing a life in New Zealand. I am satisfied that this consideration weighs for revoking the decision to cancel the applicant’s visa.

(Emphasis added. Footnote omitted.)

The ground of review

4    In substance, only a single ground of the amended application was pressed. The relevant ground was as follows:

3.    The Tribunal made a jurisdictional error of want of proper genuine and realistic consideration or legal unreasonableness by failing to compare the health and welfare system of New Zealand with that of Australia.

The parties’ submissions

5    Counsel for the applicant, in his succinct written submissions, argued as follows:

6.    … the Tribunal has failed to engage in any comparative analysis whatsoever. It has merely asserted that the Applicant, as a citizen of New Zealand would have access to a public health system and social welfare.

7.    However, the Tribunal has not engaged with the question of whether the health and welfare system of New Zealand is comparable with that of Australia and whether there are any differences between the two jurisdictions which weigh in favour of against cancellation.

8.    It is not sufficient for the Tribunal, from the standpoint of an active intellectual process, or for the purpose of providing an evident and intelligible justification, simply to identify that New Zealand has a health and welfare system. It is necessary for the Tribunal to engage with how far that system, in comparison with that of Australia, weighs for or against cancellation.

9.    The Tribunal has failed to do so, with the result that it has made a jurisdictional error. …

The applicant referred to Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162; 162 ALD 495 at [32] “for illustrative purposes”.

6    The respondent submitted that no legal basis was identified for the requirement, contended for by the applicant, that the Tribunal engage in some explicit comparative consideration of the health and welfare system of New Zealand. The respondent submitted that what the Tribunal was relevantly required to do was consider the matters set out in paragraph [14.5(1)] of Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No 79), which provides as follows:

(1)    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.

7    The respondent submitted that the Tribunal, in finding at [67] that the applicant would have access to a public health system and social welfare in New Zealand, was doing no more than what was required by paragraph [14.5(1)(c)] of Direction No 79. The respondent submitted that finding was open based on the Tribunal’s own knowledge, and the Tribunal did not need specific evidence for it. In this respect the respondent referred to Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [69] per Robertson J, McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [37] per McKerracher J and Hands v Minister for Immigration and Border Protection [2018] FCA 662 at [38] per Griffiths J.

8    The respondent submitted that the Tribunal was not required to engage in any comparison of the Australian and New Zealand health and welfare systems as pleaded, and that Schmidt was not authority for such a proposition. The respondent submitted that case turned on a finding that the welfare systems in the United States and Australia were “broadly comparable” (referring to Schmidt at [25]), which was held by Burley J to have been made without evidence. There was no such finding by the Tribunal in this case, the respondent submitted, so the issue in Schmidt does not arise. The respondent also noted that Schmidt was distinguished in Anakai v Minister for Home Affairs [2018] FCAFC 195 at [22].

Consideration

9    In my opinion, it was not a jurisdictional error for the Tribunal to reason as it did. No specific evidence is required to underpin the Tribunal’s conclusion that the applicant would have access to a public health system and social welfare if he were returned to New Zealand: I would apply the earlier decisions in Uelese at [69], McLachlan at [35]-[37] and Hands at first instance at [38] (no challenge was made to this aspect of Griffiths J’s judgment on appeal: see Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [44] per Allsop CJ).

10    In the present case it was not put to the Tribunal, for example, that the applicant had made a specific representation as to his inability to access the public health and social welfare system of New Zealand or that it was relevantly different to the public health and social welfare system of Australia. What was put in the documents before the Tribunal concerned the applicant’s parents and his brother and the effect on the applicant if he was removed from Australia away from his family. Any factual issue of the applicant’s depression was rejected by the Tribunal at [67] of its reasons.

11    I reject the applicant’s submission that the Tribunal was required, as a matter going to jurisdiction, to engage in a comparative analysis of the health and welfare system of New Zealand and that of Australia and of whether there are any differences between the two jurisdictions which weighed in favour of or against cancellation. In my opinion, Direction No 79 does not, as a matter of language or of construction, require the comparison for which the applicant contends. It follows that the Tribunal did not misconstrue [14] of Direction No 79.

12    I also reject the applicant’s submission, whether put as a failure to engage in an active intellectual process or to provide an evident and intelligible justification for the decision, that it was not sufficient for the Tribunal simply to identify that New Zealand has a health and welfare system. In my opinion, it was not necessary, either generally or in the particular case, for the Tribunal to engage with how far the health and welfare system of New Zealand, in comparison with that of Australia, weighs for or against cancellation.

13    Schmidt, referred to by counsel for the applicant, for illustrative purposes as I have said, is distinguishable on its facts. The impugned statement by the Minister in that case was:

I nevertheless consider that the United States of America’s culture and society are broadly similar to Australia’s and there would be no language barrier. Furthermore the United States has a government welfare system that offers a level of support broadly comparable to that available in Australia. I find that any practical hardship faced by Mr SCHMIDT in re-establishing himself in the United States of America would not be so great as to prevent him in maintaining basic living standards.

(Emphasis added.)

Thus the question of comparison arose by reason of the terms of the Minister’s statement.

14    As explained by Burley J in Schmidt at [27], in the circumstances of the particular facts of that case the question of the need for Mr Schmidt to rely on welfare as an impediment to his return to the United States was a central issue under consideration. It was on that basis that, at [32], Burley J held that the comparability of welfare in the United States was a critical step leading to the decision of the Minister and that there was nothing before the Minister which said anything about the welfare system of the United States that might form the basis for the conclusion that the system there was broadly comparable with the welfare system in Australia. Accordingly, it was held that there was no evidence for the Minister to find that the two systems were comparable.

15    It was also held in Schmidt, at [34], that the case was not comparable to the situation in Uelese, where the applicant was found to be young and in good health (at [24]) and the case put to the Tribunal did not include a submission that the non-availability of welfare benefits constituted an impediment upon removal from Australia (at [69]). In those quite different circumstances, as Burley J explained, a broad statement by the Minister as to the availability of welfare benefits in New Zealand was regarded as unexceptional. Burley J also noted at [34] that McLachlan also concerned quite different circumstances from Schmidt not least because the system under consideration was that of New Zealand.

16    It is unnecessary for me to consider issues of materiality or of the status in Direction No 79 of “other considerations”: compare Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].

Conclusion and orders

17    The application should be dismissed, with costs.

Associate:

Dated:    12 July 2019