Burgess

[2018] FCA 447

FEDERAL COURT OF AUSTRALIA

Burgess [2018] FCA 447

File number:

SAD 36 of 2018

Judge:

CHARLESWORTH J

Date of judgment:

12 February 2018

Catchwords:

MIGRATION – urgent application before a hearing to restrain a person from making a decision to cancel a visa under the Migration Act 1958 (Cth) — whether serious question to be tried as to whether anticipated decision would be affected by apprehended bias — evidence insufficient to demonstrate serious question to be tried sufficient to justify the order sought

Legislation:

Migration Act 1958 (Cth) ss 189, 501

Federal Court Rules 2011 (Cth) r 7.01

Cases cited:

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

Burgess v Minister for Immigration and Border Protection [2018] FCA 69

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, (2017) 347 ALR 173

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Date of hearing:

12 February 2018

Registry:

South Australia

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

21

Counsel for the Prospective Applicant:

Mr Ower SC

Solicitor for the Prospective Applicant:

Tern Visa and Migration Lawyers

ORDERS

SAD 36 of 2018

PAUL BURGESS

Prospective Applicant

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

12 FEBRUARY 2018

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The prospective applicant is to pay the costs of the prospective respondent, the Minister for Home Affairs, capped in the amount of $500.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1. This is an application made before the start of a proceeding commenced under r 7.01(1) of the Federal Court Rules 2011 (Cth). The order sought is an injunction restraining the Honourable Peter Dutton MP, Minister for Home Affairs, from exercising his power under s 501 of the Migration Act 1958 (Cth) personally in respect of any visa held by the prospective applicant. The prospective applicant is Mr Paul Burgess. Mr Burgess is the holder of a class BF subclass 155 resident return visa issued under the Act.

2. The application for relief was dismissed on 12 February 2018.  In circumstances of urgency, brief oral reasons were given on that day.  This is a written record of those oral reasons.

3. In June 2016 the prospective respondent made a decision cancelling Mr Burgess’ visa on character grounds under s 501(3)(b) of the Act. This Court quashed that decision by orders made with the consent of the parties. On 16 September 2016 the Minister again made a decision purporting to cancel the visa under s 501(3)(b) of the Act on character grounds. By orders made today, 12 February 2018, this Court made orders quashing the decision of 16 September 2016 to cancel Mr Burgess’ visa.

4. There were four grounds of review argued in the application for judicial review in connection with that decision.  The first and third grounds of review alleged that the decision was affected by actual or apprehended…