FEDERAL COURT OF AUSTRALIA
Webb v Minister for Home Affairs [2020] FCA 831
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- Case
- [2020] FCA 831
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Minister gave proper, genuine, and realistic consideration to the Applicant’s representations concerning the best interests of her children and the consequences of her deportation, and whether the Minister was entitled to rely on common or general knowledge. The court found that the Minister failed to give proper, genuine, and realistic consideration to the Applicant’s representations concerning the best interests of her children and the consequences of her deportation. The Minister’s decision was vitiated by jurisdictional error for being legally unreasonable.
The court’s reasoning was that the Minister’s failure to expressly address the likely consequence that the younger children would be placed in state care at some point in the future, or to give any express consideration to who else might care for them if and when their grandparents are no longer able to do so, was a basis upon which the court concluded that the Minister failed to properly consider the best interests of the children. The court also found that the Minister was not entitled to rely on common or general knowledge to find that the Applicant would have access to medical and social services in the United Kingdom comparable with those in Australia.
The court made the following orders: 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.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In my view the Minister’s failure to expressly address the likely consequence that the younger children would be placed in state care at some point in the future, or to give any express consideration to who else might care for them if and when their grandparents are no longer able to do so, is a further basis upon which I have concluded that he failed to properly consider the best interests of the children. Sub-heading (4) – Inter generational trauma The fourth and final matter referred to in the Applicant’s sub-headings in support of Ground 1 arises from a representation made on behalf of the Applicant concerning the aboriginal ancestry of Chase, Nakita, Matthew and Shae-Lee. The representation was that since the death of their father, Matthew West, “it has become apparent that Mr West’s family identified as aboriginal and as victims of the Stolen Generation … It is clear that the removal of Ms Webb from her children would only exacerbate the intergenerational trauma they already experience as a result of being descendants of the Stolen Generations. It is submitted that Ms Webb’s children, through their ancestry, have experienced historic injustices”. The Minister referred to this representation at [21] in his Reasons, and said simply, “I have taken this into consideration.” In the written submissions of the Minister at [41] it is submitted that: “When read in context, the Minister’s reasons at [21] can be taken to reject this submission as being a matter of any weight in the Minister’s decision.” I agree it is open to construe the Reasons in this way, though it is an elliptical way of saying that the representation is rejected. The Applicant in her written submissions referred to the critique by Allsop CJ in Hands at [3] quoted above concerning what is required if a matter is to be properly and genuinely taken into account. Though the Minister was dismissive of the representation, the despatch with which he dealt with it was not a legal error in the present circumstances. The relevant facts here are very different to the relevant facts in Hands. Here, the Applicant does not make any claim to identify as an Aboriginal Australian, where as in Hands the appellant was an Aboriginal Australian and his removal would have an adverse effect on the Aboriginal community of which he was a member. Most importantly, in my view, the representations concerning the connection between the deportation of the Applicant and the alleged consequences in relation to exacerbation of intergenerational trauma here are so tenuous and assertive as to be untenable. No evidence for this assertion was put before the Minister, merely the assertion itself. The making of such a representation does not impose any obligation upon the Minister to give it earnest consideration when the representation is without apparent evidentiary or analytical support. Conclusion – Ground 1 For the above reasons Ground 1 is established.Ground 2 In the Applicant’s submissions to the Minister, she stated: I have lived in Australia since I was 2 years old. I’m now 30. I have never been overseas my whole life has been in Australia. My mother was adopted & both her adopted parents are dead so I have no family, no friends, no housing I don’t even understand London’s currency. If I got sent to London I would simply die that’s being completely honest.I just wouldn’t be able to survive in another country. I have no money whatsoever, I have no accommodation, no family ties, no job. I don’t even have efficient [sic] clothing for the weather. I’d end up in jail or dead because to live I’d have to steal as that’s all I know how to do to survive