Webb v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: ANASTASSIOU J
• Judgment Date: 15 June 2020
• Neutral Citation: [2020] FCA 831
• Court: Federal Court
• Date: 15 June 2020

FEDERAL COURT OF AUSTRALIA

Webb v Minister for Home Affairs [2020] FCA 831

File number:	VID 1059 of 2019
Judge:	ANASTASSIOU J
Date of judgment:	15 June 2020
Catchwords:	MIGRATION – mandatory cancellation of visa under s 501(3A) of the Migration Act 1958 (Cth) – decision not to revoke cancellation under s 501CA(4) of the Act – Minister failed to give proper, genuine and realistic consideration to representations made by the Applicant regarding the best interests of her children – Minister entitled to rely on common or general knowledge to find the Applicant would have access to medical and social services in the United Kingdom comparable with those in Australia – Minister failed to give proper, genuine and realistic consideration to the consequences for the Applicant if returned to United Kingdom – Minister’s decision vitiated by jurisdictional error for being legally unreasonable
Legislation:	Evidence Act 1995 (Cth), s 144 Migration Act 1958 (Cth), ss 467A, 501, 501C, 501CA
Cases cited:	Anaki v Minister for Immigration [2018] FCA 77 Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 BSJ16 v Minister for Immigration (2017) 252 FCR 82 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 Hands v Minister for Immigration and Border Protection [2018] FCA 662 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 56 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1; 329 ALR 491 Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; 87 ALJR 618; 297 ALR 225; 139 ALD 181 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; 259 ALR 429; 111 ALD 15 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304 Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 Navoto v Minister for Home Affairs [2019] FCAFC 135 Nguyen v Minister for Immigration and Border Protection [2019] FCAFC 128 Parramatta City Council v Hale (1982) 46 LGRA 319 Pennie v Minister for Home Affairs [2019] FCAFC 129 Republic of Nauru v WET040 (No 2) [2018] HCA 60; 93 ALJR 102; 362 ALR 235 Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162; 162 ALD 495 Secretary, Department of Family and Community Services v Verney [2000] FCA 570; 60 ALD 73 Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 Vaokakala v Minister for Home Affairs [2019] FCA 1979 ZGWQ v Minister for Home Affairs [2019] FCA 1096
Dates of hearing:	31 January and 12 February 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	134
Counsel for the Applicant:	Ms C. M. Harris QC with Mr G. Buchhorn
Counsel for the Respondent:	Mr G. Hill
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		VID 1059 of 2019
BETWEEN:	KELLY MARIE WEBB Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

JUDGE:	ANASTASSIOU J
DATE OF ORDER:	15 JUNE 2020

THE COURT ORDERS THAT:

1. The application be allowed.

2. A writ in the nature of certiorari be issued to the Minister quashing his decision dated 28 August 2019 to refuse to revoke the mandatory cancellation of the Applicant’s visa.

3. A writ in the nature of mandamus be issued to the Minister requiring him to determine the application according to law.

4. The Minister pay the Applicant’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

introduction

1. The application before the Court concerns a decision of the Respondent Minister for Home Affairs, which will have the consequence that five Australian children, one aged eleven, twins aged eight, one aged six and one aged three, are to remain in Australia; while their mother, the Applicant, is to be deported to the United Kingdom. The Applicant’s prior criminal offending and the reprieve she was given in 2016 when the Minister previously exercised his discretion in her favour to revoke an earlier mandatory cancellation of her visa, made the questions faced by the Minister far less stark than the above consequence might otherwise suggest. For the reasons that follow, I have concluded that although the decision was more finely balanced than at first appears, the Minister committed jurisdictional error in deciding not to revoke the cancellation of the Applicant’s visa.

Background

2. The Applicant was brought to Australia in 1988 from the United Kingdom at two years of age. She has lived in Australia ever since. She has never visited the United Kingdom since coming to Australia.

3. The Applicant’s parents separated when she was between approximately three and four years of age. Her mother re-partnered to a man who became abusive to her mother and to her. The family moved between Queensland, South Australia and Tasmania, before settling in Geelong in about 1998.

4. At the age of eight, the Applicant moved to live with her father in Geelong, though from time to time she stayed with her mother. Her father and step-mother separated when she was in her early teens. At this time the Applicant returned to live with her mother and step-father. By this time her step father’s drug and alcohol abuse had become more severe. He had been convicted of assaulting the Applicant’s mother and her sister.

5. In 2001 the Applicant and another girl about two years older than her, who was residing in the household, hit the Applicant’s step-father with a hockey stick and stabbed him, causing his death. In 2002 the Applicant was convicted of manslaughter. The Applicant was not given a custodial sentence and instead was subject to a bond to be of good behaviour for three years.

6. On 21 April 2015, the Applicant was convicted of Aggravated Burglary, Assault with a Weapon, Robbery and Being Unlawfully on Premises. She was sentenced to eighteen months imprisonment for these offences. Having been sentenced to a term of imprisonment for greater than twelve months the Applicant was deemed to have a substantial criminal record by operation of ss 501(7)(a)-(c) of the Migration Act 1958 (Cth). On 3 March 2016 the Applicant’s visa was cancelled under s 501(3A) of the Act.

7. On 8 November 2016 the Minister revoked the...