Federal Court. The Minister found: "I also consider that he would have the same access to welfare, health, education and public support as other nationals". Was the Minister’s finding limited to a general finding that the Applicant would have the same level of access to welfare and public support as other PRC citizens, which did not encompass a finding as to the existence or extent of such services in the PRC?
In making a decision to refuse under s 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant's visa, the Minister found as follows at [29] of his reasons:
... I also consider that he would have the same access to welfare, health, education and public support as other nationals. I find that he would be capable of settling in China again.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Was the Minister’s finding limited to a general finding that the Applicant would have the same level of access to welfare and public support as other PRC citizens, which did not encompass a finding as to the existence or extent of such services in the PRC?
Answer: Yes.
Question 2: If the answer to Question 1 is 'no', can it nevertheless be said that the fact that the Applicant did not provide evidence on the welfare and public support available in China allowed the Minister to make the impugned finding?
Answer: Yes. [With respect, query whether the very foundation of a no-evidence ground is that, regardless of the reason for the lack of evidence, including the fact that no evidence was put forward by the Applicant, a decision cannot be made without being grounded on the evidence].
Question 3: If the answer to Question 1 is 'no', can it nevertheless be said that "the Minister made no finding as to the nature or the quality of welfare and public support in the PRC"?
Answer: Yes.
Question 4: Should the court "infer that the finding was derived from the Minister’s personal or specialised knowledge accumulated in performance of his function under the Act"?
Answer: Yes.
The FCA answered those questions as follows: