Burgess v Assistant Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: BESANKO J
• Judgment Date: 25 January 2019
• Neutral Citation: [2019] FCA 34
• Date: 25 January 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Burgess v Assistant Minister for Home Affairs [2019] FCA 34

File number:	SAD 105 of 2018
Judge:	BESANKO J
Date of judgment:	25 January 2019
Catchwords:	MIGRATION — application for judicial review of a decision made by the Assistant Minister for Home Affairs (Assistant Minister) — where Assistant Minister made a decision to cancel the plaintiff’s class BF Transitional (Permanent) visa under s 501(3) of the Migration Act 1958 (Cth) — where plaintiff has a substantial criminal record — where no dispute that the plaintiff did not pass the character test — where the Assistant Minister considered the national interest and, in that context, the seriousness of the plaintiff’s conduct, the risk of the plaintiff’s reoffending and the possible harm to the Australian community ; ADMINISTRATIVE LAW — whether the Assistant Minister’s decision to cancel the plaintiff’s visa was affected by jurisdictional error on the basis that the Assistant Minister failed to identify reasons or considerations as to why he should proceed under s 501(3) rather than s 501(2) of the Migration Act — whether the Assistant Minister made an “anterior decision” or “personal procedural decision” to proceed under s 501(3) rather than s 501(2) of the Migration Act within the principles identified by the High Court of Australia in Minister for Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 — whether the Assistant Minister made a “decision” which is subject to judicial review for legal unreasonableness — whether the decision to proceed under s 501(3) rather than s 501(2) of the Migration Act was legally unreasonable ; ADMINISTRATIVE LAW — whether the Assistant Minister’s decision to cancel the plaintiff’s visa was affected by jurisdictional error on the basis that the Assistant Minister proceeded on an incorrect understanding of ss 501(2) and 501(3) of the Migration Act — whether the Assistant Minister considered that s 501(2) of the Migration Act required that the person who is provided with a notice of intention to consider cancellation be given 28 days in which to respond to the notice — whether the Assistant Minister considered that in exercising the power under s 501(3) of the Migration Act the plaintiff could not be accorded any type of hearing ; ADMINISTRATIVE LAW — whether the Assistant Minister made an error of finding a fact for which there was no evidence — where a statement made in submissions provided to the Assistant Minister to the effect that the plaintiff was “currently in the community” following a decision to quash the Assistant Minister’s decision cancelling the plaintiff’s visa — where a statement made in submissions provided to the Assistant Minister to the effect that the plaintiff had been “released from immigration detention” on Christmas Island — whether the Assistant Minister acted on either of these statements in reaching the decision to cancel the plaintiff’s visa ; ADMINISTRATIVE LAW — whether the Assistant Minister’s decision to cancel the plaintiff’s visa was affected by jurisdictional error on the basis that the materials upon which the Assistant Minister based his decision that the cancellation was in the national interest did not afford any reasonable or rational foundation for a conclusion that cancellation of the plaintiff’s visa was in the national interest
Legislation:	Judiciary Act 1903 (Cth) s 44 Migration Act 1958 (Cth) ss 48B, 195A, 417, 501, 501C, 501G High Court Rules 2004 (Cth) r 20.01, Pt 25
Cases cited:	Burgess v Minister for Immigration and Border Protection [2018] FCA 69 Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 91 ALJR 890; (2017) 347 ALR 350 Ibrahim v Minister for Home Affairs [2018] FCA 1592 Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326 Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 Rangiwai v Minister for Immigration and Border Protection [2015] FCA 621 Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146
Date of hearing:	2 October 2018
Registry:	South Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	48
Counsel for the Plaintiff:	Mr S Ower SC with Mr S McDonald
Solicitor for the Plaintiff:	Tern Visa and Migration Lawyers
Counsel for the Defendants:	Mr G Johnson SC with Mr D O’Leary
Solicitor for the Defendants:	Australian Government Solicitor

ORDERS

		SAD 105 of 2018
BETWEEN:	PAUL WILLIAM BURGESS Plaintiff
AND:	ASSISTANT MINISTER FOR HOME AFFAIRS First Defendant ; COMMONWEALTH OF AUSTRALIA Second Defendant

JUDGE:	BESANKO J
DATE OF ORDER:	25 January 2019

THE COURT ORDERS THAT:

1. The application for judicial review be dismissed.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1. This proceeding began as an application for an order to show cause in the High Court of Australia (High Court Rules 2004 (Cth), r 20.01 and Pt 25). On 6 April 2018, the High Court exercised the power in s 44 of the Judiciary Act 1903 (Cth) to remit the action to this Court. The plaintiff seeks judicial review of a decision made by the Assistant Minister for Home Affairs (Assistant Minister) on 13 February 2018 cancelling the plaintiff’s class BF Transitional (Permanent) visa under s 501(3) of the Migration Act 1958 (Cth) (the Act). For the purposes of the Act, the Assistant Minister is “the Minister” (Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275 at [21] per Perry J).

2. The plaintiff is a national of the United Kingdom. His visa has been cancelled on three occasions. On 3 June 2016, the Minister for Immigration and Border Protection (the Minister) cancelled the plaintiff’s visa under s 501(3) of the Act. The plaintiff issued proceedings in this Court seeking judicial review of that decision. On 16 September 2016, this Court made orders by consent quashing the decision. On the same day, the Minister made a second decision to cancel the plaintiff’s visa under s 501(3) of the Act. The plaintiff again issued a proceeding in this Court seeking judicial review of the Minister’s decision. On 12 February 2018, this Court quashed the Minister’s decision made on 16 September 2016 (Burgess v Minister for Immigration and Border Protection [2018] FCA 69). The Assistant Minister then made the decision which is the subject matter of this proceeding.

3. At the time it was issued, the application contained six grounds of judicial review. Ground 1 has been dismissed. I will address the grounds of review by reference to their original numbering. The bulk of the oral submissions were directed to Grounds 2, 3 and 4 which, broadly speaking, relate to the Assistant Minister’s “decision” to proceed under s...