Webb v Minister for Home Affairs

Webb v Minister for Home Affairs concerned the mandatory cancellation of the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth). The Applicant challenged the Minister’s decision not to revoke the cancellation under s 501CA(4) of the Act, arguing that the Minister failed to give proper, genuine, and realistic consideration to representations made regarding the best interests of her children and the consequences of her return to the United Kingdom. The Applicant also argued that the Minister was not entitled to rely on common or general knowledge to find that she would have access to medical and social services in the United Kingdom comparable with those in Australia.

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.