Cac19 v Minister for Home Affairs - [2019] FCCA 2570

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAC19 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2570

Catchwords:
MIGRATION – Application for judicial review of Administrative Appeals Tribunal – applicant scheduled for immediate removal from Australia – serious harm – meaning of serious harm under s. 36(2)(aa) Migration Act 1958 (Cth) – whether separation of family members can amount to serious harm – conflicting authorities – balance of convenience – injunctive order to restrain Minister from removing applicant from Australia until application is heard – matter listed for hearing with priority.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Cases cited:

AUB16 v Minister for Immigration& Anor [2017] FCCA 2634

COH17v Minister for Immigration & Anor [2018] FCCA 1656

GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201

Minister for Immigration & CitizenshipvSZQOT [2012] FCAFC 141

MZAEN v Minister for Immigration [2016] FCCA 620

SZRSN v Minister for Immigration and Citizenship [2013] FCA 751

Applicant:

CAC19

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1534 of 2019

Judgment of:

Judge Riethmuller

Hearing date:

28 August 2019

Date of Last Submission:

28 August 2019

Delivered at:

Melbourne

Delivered on:

28 August 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents:

Mr Cunynghame

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The First Respondent be restrained from removing the Applicant from Australia until the application is heard and determined, and if an appeal is lodged, the determination of that appeal (unless otherwise ordered).
The matter be listed for hearing with priority.
The Applicant file and serve an Outline of Argument within 7 days.
The First Respondent file and serve an Outline of Argument within 14 days.
Costs be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1534 of 2019

CAC19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application to bring judicial review proceedings with respect to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 15 February 2017. The applicant filed his application for judicial review of that decision around two years out of time. He submits that he has been in immigration detention for that period and was told that he was not able to bring these proceedings until some criminal law proceedings had been disposed of.
The applicant represents himself today, although has a pending application with Victoria Legal Aid (‘VLA’) for legal assistance. It seems that somebody from VLA gave him some assistance in providing a draft affidavit for today’s hearing, which he lodged without being formally sworn as he was not able to obtain somebody to swear the affidavit in front of, given the timeframes involved.
The matter is listed before me for an urgent hearing on short notice as the applicant is scheduled to be removed from Australia tomorrow. The applicant seeks orders to prevent his forced removal from Australia until such time as his application for judicial review is determined.

Grounds

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: [2019] FCCA 2570
Decision Date: 28 August 2019

CaseChat Overview and Summary

The applicant, Cac19, sought judicial review of a decision by the Administrative Appeals Tribunal. Cac19 was facing immediate removal from Australia and contended that such removal would cause them serious harm. The Minister for Home Affairs was the respondent. The matter came before Judge Riethmuller of the Federal Court of Australia.

The central legal issue before the Court was the interpretation of "serious harm" as defined in section 36(2)(aa) of the *Migration Act 1958* (Cth). Specifically, the Court was required to determine whether the separation of family members could constitute serious harm for the purposes of this provision, a question on which there were conflicting judicial authorities. The Court also considered the balance of convenience in relation to an application for an interlocutory injunction.

Judge Riethmuller acknowledged the conflicting authorities regarding whether family separation could amount to serious harm. The Court noted that the assessment of serious harm is a factual one, requiring careful consideration of the specific circumstances of the individual. In granting an interlocutory injunction to restrain the Minister from removing the applicant until the judicial review application was heard, the Court found that the balance of convenience favoured the applicant. The Court also ordered that the matter be listed for hearing with priority.

Orders