Burgess, Ex parte - Re MIMIA

This matter concerned an application by Mr. Burgess for a writ of prohibition directed to the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA). Mr. Burgess sought to prevent the Minister from making a decision under s 501(1) of the *Migration Act 1958* (Cth) to refuse to grant him a visa, or alternatively, to cancel his existing visa, on the grounds that he did not pass the character test. The application was heard by Gummow J in chambers.

The central legal issue before the Court was whether the Minister's power to refuse or cancel a visa under s 501(1) of the *Migration Act* was enlivened by the applicant's criminal record, specifically a conviction for assault occasioning actual bodily harm. Mr. Burgess contended that his conviction did not meet the threshold for the Minister to exercise this power, arguing that the conduct underlying the conviction was not sufficiently serious to warrant such action.

Gummow J considered the wording of s 501(1) and relevant case law, including *Brodie v Minister for Immigration and Ethnic Affairs* (1997) 77 FCR 196. His Honour determined that the Minister's power under s 501(1) was engaged if the person had been convicted of an offence. The nature or seriousness of the offence was not a prerequisite for the Minister to consider exercising the power, but rather a factor to be taken into account in the exercise of that discretion. The Court found that Mr. Burgess had indeed been convicted of an offence, thereby satisfying the initial requirement for the Minister to consider the application of s 501(1).

The application for a writ of prohibition was dismissed.