Burgess [2018] FCA 447

Burgess [2018] FCA 447

The material in Mr Simmons' affidavit, including media reports and references to other proceedings, was insufficient to give rise to a serious question to be tried that a fair-minded lay observer might apprehend that the Minister might not bring an impartial mind to any third decision to cancel Mr Burgess' visa. The ordinary entitlement of the Minister to consider a further decision lawfully, together with the insufficiency of the evidence, meant the injunction should not be granted.

Jurisdiction
Australia
Judgment Date
12 February 2018
Procedural Posture
Urgent Application Before the Start of a Proceeding Under R 7.01(1) of the Federal Court Rules 2011 (cth) Seeking an Injunction Restraining the Minister From Exercising Personal Power Under S 501 of the Migration Act 1958 (cth) in Respect of the Prospective Applicant's Visa. / Application for Interlocutory Injunctive Relief Dismissed on 12 February 2018.
Outcome
Application dismissed.
Legal Topics
['visa Cancellation on Character Grounds' 'apprehended Bias' 'interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'proper Consideration by Decision Maker']
['migration' 'administrative Law'] ['visa Cancellation on Character Grounds' 'apprehended Bias' 'interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'proper Consideration by Decision Maker']

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Procedural Posture

Urgent Application Before the Start of a Proceeding Under R 7.01(1) of the Federal Court Rules 2011 (cth) Seeking an Injunction Restraining the Minister From Exercising Personal Power Under S 501 of the Migration Act 1958 (cth) in Respect of the Prospective Applicant's Visa. / Application for Interlocutory Injunctive Relief Dismissed on 12 February 2018.

Legal Issues

  1. 1 ["Whether there was a serious question to be tried that a third decision by the Minister to cancel Mr Burgess' visa would be affected by apprehended bias." 'Whether the evidence in the affidavit of Mitchell Simmons justified an injunction restraining the Minister from personally exercising power under s 501 of the Migration Act 1958 (Cth).' 'Whether the balance of convenience favoured restraining the Minister before any further visa cancellation decision was made.']

Ratio Decidendi

The material in Mr Simmons' affidavit, including media reports and references to other proceedings, was insufficient to give rise to a serious question to be tried that a fair-minded lay observer might apprehend that the Minister might not bring an impartial mind to any third decision to cancel Mr Burgess' visa. The ordinary entitlement of the Minister to consider a further decision lawfully, together with the insufficiency of the evidence, meant the injunction should not be granted.

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.' 'The prospective applicant is to pay the costs of the prospective respondent, the Minister for Home Affairs, capped in the amount of $500.']