Gubbay v Minister for Home Affairs

Mr Gubbay, a British citizen, challenged the Minister for Home Affairs’ decision to cancel his visa under s 501BA(2) of the Migration Act 1958 (Cth). Mr Gubbay does not dispute that he does not meet the character test under s 501BA(2)(a) of the Act. The only issue before the court was whether the Minister was satisfied that the cancellation of Mr Gubbay’s visa was in the national interest, as required by s 501BA(2)(b) of the Act.

The court found that the Minister was satisfied that the cancellation of Mr Gubbay’s visa was in the national interest, given the seriousness of his criminal conduct and the risk to the Australian community if he reoffended. The court also found that the Minister considered all relevant factors in reaching his decision, including the impact on Mr Gubbay’s children, although the court did not consider it necessary for the Minister to have considered the special return criterion in cl 5001 of the Migration Regulations 1994 (Cth). The court concluded that the Minister’s decision was not legally unreasonable and dismissed the application.

The court ordered that the amended application for review filed on 21 May 2020 be dismissed and that Mr Gubbay pay the respondent’s costs of and incidental to this application to be taxed if not agreed.