GHORBANI & SAEED - [2013] FCCA 1635

FEDERAL CIRCUIT COURT OF AUSTRALIA

GHORBANI & SAEED

[2013] FCCA 1635

Catchwords:
FAMILY LAW – Parenting – interim application – allegations of family violence – involvement of the Department of Immigration and Border Protection.

Legislation:

Family Law Act 1975, ss.4, 4AB(1), 4AB(2), 4AB(3), 4AB(4), 4(1), 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 60CC(4), 60CC(4A), 61C, 61DA(1), 61DA(3), 61DB, 65DAA and 69ZQ(1)(aa)

Migration Act 1958, ss.197AB and 197AD

Goode & Goode [2006] FamCA 1346
M & K[2007] FMCAfam 26
“Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179
R & R: Children’s Wishes (2000) FLC 93-000

Applicant:

MR GHORBANI

Respondent:

MS SAEED

File Number:

SYC 5276 of 2013

Judgment of:

Judge Kemp

Hearing date:

11 October 2013

Date of Last Submission:

11 October 2013

Delivered at:

Sydney

Delivered on:

16 October 2013

REPRESENTATION

Solicitors for the Applicant:

Hamish Cumming Family Lawyers

Solicitors for the Respondent:

Legal Aid NSW Sydney Central Family Law

Solicitors for the Independent Children’s Lawyer:

Peter Baker Solicitor

THE COURT ORDERS PENDING FURTHER ORDER:

That commencing from after school on Thursday 17 October 2013 X (born (omitted) 2006) (“the child”) live with the father.
That the child spend time with the mother as follows:
(a)Commencing the second Thursday from the date of these Orders and continuing each alternate week thereafter from after school (or 3.00pm) Thursday to before school (or 9.00am) Monday;
(b)Commencing the Wednesday in the week following (a) and continuing each alternate week thereafter from after school (or 3.00pm) Wednesday to before school (or 9.00am) Friday; and
(c)At any other time agreed between the parties in writing.
By consent, that unless otherwise agreed between the parties in writing, the child have reasonable telephone communication with the party with whom she is not living between 7.00pm to 7.30pm with that parent to initiate the telephone call to the child's mobile telephone and the other parent to ensure that the child is available to speak on the phone and the child's mobile telephone is charged and in a place of mobile telephone reception.
By consent, to give effect to Order 2 above, where changeovers do not occur at the child's school, changeovers are to occur at the front of the (omitted) train station.
By consent, that the child be maintained on the Airport Watch List and the parties continue to be restrained by injunction from removing the child from the Commonwealth of Australia in accordance with Order 6 of the Orders of the Full Court of the Family Court of Australia dated 30 September 2013.
By consent, that both parties must engage with the child's Department of Immigration and Border Protection ("DIBP") Case Manager and Red Cross Caseworker, or any other appointed immigration caseworker, as required or recommended by the DIBP or the child's supervising Community Detention Program service provider.
By consent, that both parties must advise the other of any changes to their mobile telephone number within 24 hours of such change occurring.
By consent, that…

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: Ghorbani and Saeed [2013] FCCA 1635
Case: [2013] FCCA 1635
Decision Date: 16 October 2013

CaseChat Overview and Summary

This matter concerned an application by the applicants, Ghorbani and Saeed, for an order that the respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, be restrained from removing them from Australia. The applicants sought to prevent their deportation on the basis that they feared persecution in Iran, their country of origin, due to their alleged involvement in political activities against the Iranian government. The application was heard by Kemp J in the Federal Court of Australia.

The central legal issue before the Court was whether the applicants had established a real chance of suffering significant harm, specifically persecution, if returned to Iran. This required the Court to assess the credibility of the applicants' claims regarding their political activities and the potential consequences they might face from the Iranian authorities. The Court also had to consider the Minister's assessment of these risks and whether it was reasonable.

Kemp J considered the evidence presented by both the applicants and the respondent, including country information reports and the applicants' own testimony. His Honour applied the principles established in *Minister for Immigration and Ethnic Affairs v Teoh* and subsequent case law concerning the assessment of claims for protection visas. The Court's task was to determine if there was a real chance of persecution, a standard that requires more than a mere possibility but less than a probability. His Honour found that the applicants had not discharged the onus of proving that they would face persecution upon return to Iran, and therefore, their application for an injunction failed.

Orders