5.2.3 Jurisdictional error is established
32 In my view, these passages fail to engage in an active intellectual way with the applicant's submissions as to her financial situation and accommodation and in failing to do so, the Minister fell into jurisdictional error.
33 First, in deciding whether there is another reason why the cancellation decision should be revoked under subs 501CA(4(b)(ii), the Minister is required to consider any representations the applicant elects to make pursuant to subs 501(4)(a) of the Act "if in making representations, the applicant provided information to the Minister… and that information was critical and relevant to the applicant's case": Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [55] (Robertson J). As the applicant submits, the basic living standards representations were a core aspect of the representations made by the applicant in favour of revocation. I also agree that it was critical and relevant to her case. In this regard, not only had the applicant given specific evidence as to her financial circumstances at the interview with the Departmental officer, including her lack of assets, but the cancellation request itself referred to the fact that she had never been employed and had been in receipt of welfare payments for all of her adult life. Moreover, the Minister found at [40] that the applicant had completed high school only up to the tenth grade, accepted that she was taking medication for depression (at [44]), and accepted that her estranged brother in New Zealand would not be able to assist her (at [47). These factors no doubt would compound her financial difficulties. Furthermore, the Minister apparently accepted that the applicant was homeless from approximately December 2015 to December 2016 (at [65]). That being so, it cannot be said that the applicant's representations as to her financial position and fears of having nowhere to live if returned to New Zealand rose no higher than bare assertions and were not critical and relevant to her case.
34 Secondly, that being so, the Minister was required to give the basic living standards representations a proper, genuine and realistic consideration. Whether the Minister has done so is a question of fact determined by reference to the Minister's reasons in line with the principles earlier referred to. However, while there is a reference at [45] to the fact that the applicant "states that she would have nowhere to live and no money", how that submission is resolved is left unstated. In this regard, the Minister finds at [49] that such hardships will not be insurmountable "in light of New Zealand's similar culture, language and health system standards". However, as the applicant submits, none of these three matters - culture, language and health standards - addresses or responds to the basic living standards representations or explains why the hardship claimed by the applicant in those respects would not be insurmountable. Nor is any light cast upon the Minister's reasoning in this regard by the bare assertion at [48] of the reasons that the applicant "will undergo a period of adjustment due to her absence from New Zealand of over 28 years, as well as the practical changes to her life, such as accommodation". Not only does the statement not address her financial concerns, but it is unilluminating as to how the Minister considered (if at all) that she would be able to manage those practical changes. It follows in my view that the finding by Flick J in WZAQU at [29] is equally apt to describe the Minister's reasons on this issue in the present case:
29. … Ambiguity in reasons provided may not be sufficient to expose legal error. But the cursory manner in which the [decision-maker] summarily dismissed the claims being made, together with a lack of certainty as to what was in fact being resolved, leaves inescapable the conclusion that no proper and genuine consideration was given to the claims and materials sought to be relied upon.
35 Against this, the Minister submitted that he had considered the claim but that it could be inferred from his failure to address the matter in his reasons that he found that it was not material (relying upon King v Minister for Immigration and Border Protection [2014] FCA 766; (2014) 142 ALD 305 at [44] (Flick J) and Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [121] (Kenny and Perry JJ)). However, even if it can be inferred that the Minister did not consider the basic living standards representation to be material, the question then arises as to whether the Minister fell into jurisdictional error in so finding (see Yusuf at [27] above).
36 In this regard, the Minister submitted that there could be no error on the ground that "objectively, the claim that [the applicant] would be homeless and without money … was not material … [b]ecause, objectively, the welfare system is the same." In the Minister's submission, there is no doubt that the applicant's fears are without any basis in reality given that:
(1) it is a matter of common knowledge that New Zealand is a first world country with a functioning welfare system (referring to s 144 of the Evidence Act 1995 (Cth));
(2) the onus lay upon the applicant to show that this was a critical issue and that she would not have money or housing in New Zealand; and
(3) the evidence in Ms Wong's affidavit affirmed 15 December 2017 sets out "the incontrovertible facts" that the applicant will have access to welfare benefits, can access social housing if she cannot find private housing on her welfare or other income, and that the Australian government makes interim support arrangements for persons who have been deported.
37 The third proposition can be shortly dealt with. It is, with respect, an invitation to this Court to embark upon impermissible merits review having regard to material which was not even before the Minister. Furthermore, for the reasons earlier given at [33], I have already rejected the second proposition. In support of the first proposition, the Minister drew an analogy with the decision in Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 (Uelese). In that case, the applicant contended that the Tribunal found without any evidence that, at least in New Zealand, the applicant would have access to government benefits similar to those available to him in Australia (Uelese at [28]). That ground was dismissed by Robertson J for the following reasons:
68. When addressing the extent of impediments if the applicant were removed, the Tribunal noted that there was no specific evidence of any social, medical and/or economic support available to Mr Uelese in either New Zealand or Samoa, but said: "I take into account that at least in New Zealand Mr Uelese would have access to government benefits similar to those available to him in Australia".
69. In my opinion, that statement is no more than a broad proposition as to the availability of government benefits in New Zealand and not one that required evidence as to the amount of the benefit, the terms and conditions of that benefit or the eligibility criteria for that benefit. The applicant did not put forward to the Tribunal that the non-availability of welfare benefits constituted an impediment which he may face if removed from Australia. I also note that the applicant before me has not put forward any material which suggests that the Tribunal was mistaken in its statement. In any event, I am not satisfied that, in the circumstances, the Tribunal's statement could constitute jurisdictional error.
38 In my view, the decision in Uelese is distinguishable on the facts. In that case, the Tribunal had found that Mr Uelese was young and in good health, did not face any substantial language or cultural barriers, and conceded that the availability of welfare benefits formed no part of his case (Uelese at [24] and [44]). In such a case, no doubt it was sufficient for the Tribunal simply to rely, in effect, on "a broad proposition" as to the level of government benefits to which Mr Uelese would have access, if returned to New Zealand, as Robertson J held. In the present case, however, Ms Moiha raised concerns about how she would live and how she would find accommodation if returned, against a complex background of disadvantage relevant to those concerns and a history which included a recent period of homelessness. It follows that in this case it was not sufficient for the Minister merely to assume (if in fact he did) as a "broad proposition" that Ms Moiha would have equivalent access to government benefits if returned to New Zealand and that this would suffice to give a proper, genuine and realistic consideration to her basic living standards representations.