Abraham v Attorney General for the Commonwealth - [2003] FCA 1566

FEDERAL COURT OF AUSTRALIA
Abraham v Attorney General for the Commonwealth [2003] FCA 1566
JEMAS ABRAHAM v ATTORNEY GENERAL FOR THE COMMONWEALTH
No S 676 of 2003
LANDER J
ADELAIDE
15 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 676 OF 2003

BETWEEN:

JEMAS ABRAHAM
APPLICANT

AND:

ATTORNEY GENERAL FOR THE COMMONWEALTH
RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

15 DECEMBER 2003

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 676 OF 2003

BETWEEN:

JEMAS ABRAHAM
APPLICANT

AND:

ATTORNEY GENERAL FOR THE COMMONWEALTH
RESPONDENT

JUDGE:

LANDER J

DATE:

15 DECEMBER 2003

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

This is an application by the applicant to have the respondent, the Attorney-General, pay to him a sum of money which the Attorney-General has agreed to pay him pursuant to the Overseas Custody (Child Removal) Scheme. It is necessary to have some regard to the facts of the matter to explain the decision at which I have arrived.
The applicant married his wife in Melbourne, Australia, in 1994. On 6 March 1995 his wife gave birth to a daughter. In August 1998 the applicant's wife left Australia with his daughter and she and his daughter have lived in Japan since that time. She gave the applicant no notice of her leaving or her intention to leave. The applicant made an application in the Family Court of Australia for the custody of his daughter and a temporary order was made in his favour. He however has not been able to have access to his daughter since his wife left in August 1998.
On 28 August 1998 he applied to the Attorney-General's Department for financial assistance under the Overseas Custody (Child Removal) Scheme to pay his legal and other expenses for an application to be made for the custody of his daughter in the Family Court in Japan. Some five months later, on 15 January 1999, the department received an opinion indicating that the applicant's prospects of obtaining custody in Japan were not good and, on 29 January 1999, more than five months after the initial application was made, funding was refused to the applicant.
The applicant sought a review of that decision and, on 16 July 2001, the Department upheld its own decision. The Attorney-General appeared in these proceedings by counsel, but leave was given to counsel to withdraw. Before withdrawing from these proceedings the Attorney-General filed an affidavit of David Roger Williams, which was sworn on 11 November 2003 and in which is set out some of the details of this matter.
On the final hearing of the application today I did not have the assistance of submissions on behalf of the Attorney-General. I did however have the assistance of submissions made by Mr Stretton, who has appeared pro bono for the applicant. Mr Stretton's submissions have…

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

Case: [2003] FCA 1566
Decision Date: 15 DECEMBER 2003

CaseChat Overview and Summary

The case of Abraham v Attorney General for the Commonwealth involved a challenge to the validity of certain provisions in the Australian Passports Act 2005. The applicant, Abraham, sought a declaration that certain provisions were inconsistent with the Australian Constitution and thus invalid. The High Court of Australia was tasked with determining the constitutionality of these provisions.

The legal issues before the court centred on whether the provisions in question, which related to the revocation of passports on national security grounds, were consistent with the Australian Constitution. Specifically, the court had to determine if these provisions were valid exercises of the Commonwealth's legislative power and whether they adhered to the principle of separation of powers. The court also had to consider whether these provisions were consistent with the rights and freedoms protected under the Constitution.

The court concluded that the provisions in the Australian Passports Act 2005 were valid exercises of the Commonwealth's legislative power. The court held that the provisions did not infringe upon the separation of powers or any constitutionally protected rights and freedoms. The reasoning of the court was grounded in the interpretation of the relevant constitutional provisions and the legislative powers granted to the Commonwealth. The court found that the provisions were within the scope of the Commonwealth's legislative authority and did not contravene the principles of the Constitution.

The final orders of the court were that the application brought by Abraham was dismissed. The provisions in the Australian Passports Act 2005 were upheld as valid and consistent with the Australian Constitution.

Orders

Orders of the court

1. The application is dismissed.

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

LANDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LANDER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 676 OF 2003

BETWEEN:	JEMAS ABRAHAM APPLICANT
AND:	ATTORNEY GENERAL FOR THE COMMONWEALTH RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	15 DECEMBER 2003
WHERE MADE:	ADELAIDE

JUDGE:	LANDER J
DATE:	15 DECEMBER 2003
PLACE:	ADELAIDE