Burgess v Minister for Immigration and Border Protection [2018] FCA 69
File number:
SAD 293 of 2016
Judge:
CHARLESWORTH J
Date of judgment:
12 February 2018
Catchwords:
MIGRATION – decision to cancel visa on character grounds quashed – subsequent decision by the same decision-maker to cancel the same visa – whether subsequent decision affected by actual or apprehended bias – whether subsequent decision affected by legal unreasonableness – whether decision-maker gave proper consideration to submissions and materials bearing on the subsequent decision
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
95
Counsel for the Applicant:
Mr Ower SC
Solicitor for the Applicant:
Tern Visa and Migration Lawyers
Counsel for the Respondent:
Mr Johnson SC with Mr D O’Leary
Solicitor for the Respondent:
Australian Government Solicitor
ORDERS
SAD 293 of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Burgess v Minister for Immigration and Border Protection [2018] FCA 69
Case
[2018] FCA 69
Decision Date
CaseChat Overview and Summary
In Burgess v Minister for Immigration and Border Protection, the Federal Court of Australia considered the validity of the Minister's decision to cancel the visa of an individual on character grounds. The court was tasked with determining whether the Minister's subsequent decision to cancel the visa was affected by actual or apprehended bias, legal unreasonableness, or whether the Minister gave proper consideration to the materials presented. The matter arose after the Minister initially cancelled the visa of Mr Burgess on character grounds but later rescinded that decision upon judicial review. The Minister then promptly made a new decision to cancel Mr Burgess' visa on the same grounds. Mr Burgess challenged the validity of the second decision on the grounds of actual or apprehended bias, legal unreasonableness, and improper consideration of materials.
The court examined the Minister's reasoning in both decisions to ascertain whether the second decision was legally unreasonable. It found that there was no evidence to suggest that the Minister's earlier suspicion influenced the substantive reasoning in the second decision. The court held that the Minister's suspicion did not affect the path of reasoning taken in the second decision, and therefore, the decision was not legally unreasonable. The court also considered whether the Minister had given proper consideration to the materials before him. It found that the Minister did not have adequate time to review the materials before making the decision and thus concluded that the decision involved jurisdictional error due to the lack of proper consideration of the materials.
The Federal Court allowed the application and quashed the Minister's decision to cancel Mr Burgess' visa. The court issued a writ of certiorari to the Minister, setting aside the decision made on 16 September 2016 to cancel Mr Burgess' visa under section 501(3) of the Migration Act 1958 (Cth). The court's decision underscores the importance of proper consideration of materials and the absence of bias in the decision-making process in migration law.
Orders
Orders of the court
1. The application is allowed.
2. A writ of certiorari issue to the respondent quashing the decision made on 16 September 2016 to cancel the applicant’s visa under s 501(3) of the Migration Act 1958 (Cth).
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
Before turning to the grounds of review it is convenient to set out some of the background to the Minister’s decisions and to briefly summarise the reasons given for each of them.THE JUNE DECISION Prior to making the June decision, the Minister received a submission relating to the proposed cancellation. An Issues Paper and a proposed Statement of Reasons were attached to the submission. The Issues Paper had attached to it a series of annexures, including one marked “Attachment Z”. It contained information provided to the Minister by a gazetted agency within the meaning of s 503A(9) of the Act, being information communicated to officers of the Department of Immigration and Border Protection on the condition that it remain confidential. In accordance with the requirements of the Act, the information contained in Attachment Z was not disclosed to Mr Burgess. There is no statutory obligation to provide written reasons in respect of a decision to cancel a visa under s 501(3) of the Act. The Minister nonetheless adopted the Statement of Reasons for the June decision that had been pre-prepared for him, and those reasons were provided to Mr Burgess. They may be broadly summarised as follows:(1)the Minister reasonably suspected that Mr Burgess did not pass the character test as defined in both:(a)s 501(6)(a) of the Act (by virtue of his “substantial criminal record” as defined in s 501(7)(c)); and (b)s 501(6)(b) of the Act (by virtue of his suspected membership of an outlaw motorcycle gang (OMCG));(2)the Minister determined that Mr Burgess had a substantial criminal record because he had been convicted in the District Court of South Australia for robbery and assault offences for which he had been sentenced to 15 months imprisonment;(3)the Minister took into account the information contained in Attachment Z, both for the purpose of considering the application of the character test in s 501(6)(b), and for the purpose of determining whether cancellation of the visa was in the national interest (see s 501(3)(d));(4)the Minister concluded that it was in the national interest to cancel Mr Burgess’ visa, both because of his suspected involvement in an OMCG, and because of his history of prior offending, which included a series of offences in addition to those relied upon to determine whether Mr Burgess passed the character test. In respect of Mr Burgess’ suspected involvement in an OMCG, the Minister stated:16.In considering the national interest, I also considered the Australian Government’s National Security Strategy and the Commonwealth Organised Crime Strategic Framework Overview which recognise that organised crime is an issue of national security and that preventing, detecting and disrupting organised crime is a commitment of the Australian Government in the interests of protecting the Australian community, I also noted the view of the Australian Crime Commission that OMCGs remain one of the most high profile manifestations of organised crime.17.I also had regard to the establishment of a national taskforce named Operation Morpheus by the Australian Crime Commission’s Serious and Organised Crime Coordination Committee and how the purpose of Operation Morpheus is to disrupt, disable and dismantle the criminal activities of Australia’s highest risk OMCGs and their members.18.In considering the national interest in this case I also took into account information that is protected under section 503A of the Migration Act.19.I concluded that the cancellation of Mr BURGESS’ visa on the basis of his substantial criminal record and suspected membership of a group suspected of being involved in criminal conduct is in the national interest insofar as excluding such persons from the Australian community will contribute to national law enforcement efforts to combat organised crime including through disrupting and disabling groups that are involved in criminal conduct.20.I further concluded that the information before me raised concerns that were of such a serious nature that the use of my discretionary power to cancel Mr BURGESS’ Class BF Subclass 155 Resident Return visa, without prior notice, is in the national interest.
Ratio Decidendi
Legal Principle Established
On the facts, however, it has not been shown that the Minister’s previously formed suspicion in fact affected the Minister’s reasoning toward the outcome in the substantive September decision. More particularly, it has not been shown that the Minister cancelled the visa for reasons that included a suspicion or finding that Mr Burgess was an OMCG member. For this Court to judicially review an impugned path of reasoning for legal unreasonableness, it must first be satisfied that the path of reasoning was one in fact taken. I am not satisfied that it was.NO PROPER CONSIDERATION The fourth ground of review is expressed as follows:4.Further or in the alternative, the September Decisions … were made in circumstances where the Minister did not give proper consideration to the materials before him and therefore did not constitute a lawful exercise of the discretion pursuant to s. 501(3) and involved jurisdictional error.Particulars4.1In the time available to him between the making of the consent orders and the making of the September Decision, the respondent did not give proper consideration to the material contained in the further submission. It is not disputed that the June decision was quashed by an order of this Court made on 16 September 2016 in Adelaide at 9:20 am Australian Central Standard Time (ACST) and that the September decisions were made approximately 20 minutes afterwards. It is Mr Burgess’ case that the Minister did not receive the September Materials until about five minutes after the June decision was quashed, such that he could not have considered the September Materials for any more than 15 minutes. The period of time in which the Minister considered the September Materials is a question of fact. Mr Burgess bears the onus of proof in respect of that critical issue: AB Pty Ltd v Australian Crime Commission (2009) 175 FCR 296 at [8]; Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177; X v Australian Crime Commission (2004) 139 FCR 413 at [22].When did the Minister receive the September Materials? Mr Burgess relied upon the following evidence:(1)the evidence of Mr Peter John Dwyer given by affidavit sworn on 16 January 2017 and the oral evidence given by him in cross-examination;(2)the affidavit evidence of Mr Mitchell Simmons affirmed on 21 October 2016; and(3)the Departmental records contained in a joint case book tendered on the application. Mr Dwyer is a Director of the Legal Advice and Operational Support Branch of the Department. In that role, he has supervisory oversight of legal officers within the Department. He has responsibility for making decisions of a more significant or strategic nature, and did so in Mr Burgess’ case. Mr Dwyer deposed to having acted on the advice of the Department’s Senior Counsel, Mr Dean. Mr Dean did not give evidence. In some respects, Mr Dwyer’s recollection of the timing and content of his communications with others was uncertain. He relied upon the Department’s documents as a record of some of the things he had said and done. He nonetheless was a forthright witness who gave what I consider to be reliable evidence in respect of those matters within his personal knowledge and actual recollection.