Minister for Home Affairs v AFX17 - [2020] FCA 903

FEDERAL COURT OF AUSTRALIA
Minister for Home Affairs v AFX17 [2020] FCA 903

Appeal from: AFX17 v Minister for Home Affairs [2020] FCA 807
AFX17 v Minister for Home Affairs (No 2) [2020] FCA 858

File number: NSD 654 of 2020

Judge: WHITE J

Date of judgment: 26 June 2020

Catchwords:
MIGRATION – application for a stay of an order of the Court pursuant to s 36.08 of the Federal Court Rules 2011 (Cth).

Held: application refused.

Legislation:
Migration Act 1958 (Cth) ss 36, 65, 501, 501A

Federal Court Rules 2011 (Cth) r 36.08

Cases cited:
AFX17 v Minister for Home Affairs [2020] FCA 807

AFX17 v Minister for Home Affairs (No 2) [2020] FCA 858

Arnhem Land Aboriginal Land Trust v Northern Territory [2007] FCAFC 31; (2007) 157 FCR 255

BAL19 v Minister for Home Affairs [2019] FCA 2189

Davies v Minister for Urban Development and Planning [2011] SASC 87; (2011) 109 SASR 518

FAI Insurances Ltd v Winneke (1982) 151 CLR 342

Franklin v The Queen (No 2) [1974] QB 205

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCA 615

Date of hearing: 24 June 2020

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 39

Counsel for the Appellants: Mr G Johnson

Solicitor for the Appellants: Australian Government Solicitor

Counsel for the Respondent: Ms M Yu

Solicitor for the Respondent: Human Rights for All

ORDERS

NSD 654 of 2020

BETWEEN:
MINISTER FOR HOME AFFAIRS

First Appellant

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Appellant

AND:
AFX17

Respondent

JUDGE:

WHITE J

DATE OF ORDER:

26 JUNE 2020

THE COURT ORDERS THAT:
1.The application for a stay of Order 1 made on 17 June 2020 (as varied by Order 2 made on 24 June 2020) in NSD550/2020 is refused.

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

REASONS FOR JUDGMENT
WHITE J:

This is a judgment on an application for a stay of an order of the Court pending the hearing and determination of the appeal against the making of that order.
The principles which the Court applies in exercising the discretion under r 36.08 of Federal Court Rules 2011 (Cth) (the FCR) to grant a stay pending the hearing and determination of an appeal are settled. See, by way of example, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCA 615 at [12]. The appellant has the onus of establishing that the stay is appropriate. The matter is not to be approached on the basis that the first instance decision is provisional or operates only subject to confirmation on the appeal. Successful litigants are, prima facie, entitled to the benefit of their success. On the other hand,…

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: [2020] FCA 903
Decision Date: 26 June 2020

CaseChat Overview and Summary

The case involved the Minister for Home Affairs and an individual identified as AFX17, with the dispute centred on the application for a stay of a court order related to migration matters. The application was heard in the Federal Court of Australia. The Minister sought a stay of certain orders that had been previously made in relation to AFX17's case, arguing that public interest considerations warranted a halt to the proceedings.

The legal issues before the court involved the interpretation and application of section 36.08 of the Federal Court Rules 2011, which pertains to the court's discretion to grant a stay of proceedings. The Minister argued that the stay was necessary to allow for the consideration of sensitive matters affecting national security and public interest. The court had to weigh these arguments against the rights and interests of AFX17, including the principle of legality and the right to a fair hearing.

The court examined the arguments put forward by the Minister and concluded that the application did not meet the threshold for granting a stay. The court found that the Minister had not demonstrated a sufficient basis to warrant a suspension of the proceedings. The decision was made considering the balance between the public interest and individual rights, ultimately leading to the refusal of the application for a stay. Consequently, the orders previously made remained in effect, and the court denied the Minister's request to halt the proceedings.

Orders

Orders of the court

1. The application for a stay of Order 1 made on 17 June 2020 (as varied by Order 2 made on 24 June 2020) in NSD550/2020 is refused.

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	AFX17 v Minister for Home Affairs [2020] FCA 807 AFX17 v Minister for Home Affairs (No 2) [2020] FCA 858
File number:	NSD 654 of 2020
Judge:	WHITE J
Date of judgment:	26 June 2020
Catchwords:	MIGRATION – application for a stay of an order of the Court pursuant to s 36.08 of the Federal Court Rules 2011 (Cth). Held: application refused.
Legislation:	Migration Act 1958 (Cth) ss 36, 65, 501, 501A Federal Court Rules 2011 (Cth) r 36.08
Cases cited:	AFX17 v Minister for Home Affairs [2020] FCA 807 AFX17 v Minister for Home Affairs (No 2) [2020] FCA 858 Arnhem Land Aboriginal Land Trust v Northern Territory [2007] FCAFC 31; (2007) 157 FCR 255 BAL19 v Minister for Home Affairs [2019] FCA 2189 Davies v Minister for Urban Development and Planning [2011] SASC 87; (2011) 109 SASR 518 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Franklin v The Queen (No 2) [1974] QB 205 KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 by his Litigation Representative BFW20A [2020] FCA 615
Date of hearing:	24 June 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	39
Counsel for the Appellants:	Mr G Johnson
Solicitor for the Appellants:	Australian Government Solicitor
Counsel for the Respondent:	Ms M Yu
Solicitor for the Respondent:	Human Rights for All