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].