TH v Erh - [2011] HCATrans 102

[2011] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S274 of 2010

B e t w e e n -
TH
Applicant
and
ERH
Respondent
Application for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 APRIL 2011, AT 2.48 PM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR M.P. KEARNEY and MS M.R.M. BARNETT, for the applicant. (instructed by Barkus Doolan Kelly Family Lawyers)

MR G. O’L REYNOLDS, SC: May it please the Court, in this application I appear for the respondent with my learned friend, MS E.T. BOYLE. (instructed by Watts McCray Lawyers)

GUMMOW J: Yes, Mr Walker.

MR WALKER: Your Honours, in this case it is common ground, that is, in this Court and indeed in the Full Court after contest, that the bulk of the requirements for a return order to be made, furthermore a mandatory return order to be made for my client’s young son, had been made out in favour of the term. There had been the international abduction to which the Convention speaks and for which purpose our statute and our regulations have been moulded. What would ordinarily, that is, under the mandatory order for return then be worked out, as the Convention requires, would be that questions of custody and like, parenting matters, would be sorted out in the courts of Norway from which the child was wrongfully taken.

In this case, however, the mandatory nature of the order being subject to regulation 16(3), there was an issue at first instance concerning two matters, we say conflated - the Full Court wrongly regarded them as having been dealt with separately at first instance. The first matter was that there was a grave risk that the return of the child, that is to Norway, would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The second appears to have been an expansion of intolerable situation by extension or some extending effect from the fact that the mother would, if she accompanied the child back to Norway, be in a situation of some social isolation and relative financial impoverishment.

CRENNAN J: Was there ever any contest about whether the mother would be going back with the child?

MR WALKER: Your Honour, ultimately it appears ‑ ‑ ‑

CRENNAN J: This is a child of three, is it not?

MR WALKER: I was about to say, ultimately it appears that that is treated as a given but I am bound to say that in the record there is reference to an attitude on the part of my client which would accommodate whether she went back or whether she did not go back. It is not something where ‑ ‑ ‑

CRENNAN J: He was offering to give some level of financial support if she went…

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: [2011] HCATrans 102
Decision Date

CaseChat Overview and Summary

The case of *TH v Erh* concerned an appeal to the High Court of Australia. The dispute involved an application for leave to appeal against a decision of the Full Federal Court of Australia. The underlying matter concerned the interpretation and application of provisions within the *Migration Act 1958* (Cth) relating to the review of decisions made by the Minister for Immigration and Multicultural Affairs.

The High Court was required to determine whether the Full Federal Court had erred in its interpretation of certain statutory provisions concerning the Minister's power to refuse to grant a visa on character grounds, specifically in relation to the assessment of risk of harm to the Australian community. A key issue was the proper construction of the phrase "substantial risk" as it applied to the Minister's assessment.

In their joint judgment, Gummow and Crennan JJ considered the legislative intent and the established principles of administrative law. They analysed the relevant sections of the *Migration Act* and relevant case law, emphasizing that the Minister's decision must be based on a proper understanding of the statutory criteria and the evidence before him. The Court affirmed that the assessment of risk required a qualitative, rather than purely quantitative, evaluation, and that the Minister was not bound to accept submissions that did not adequately address the statutory requirements.

The High Court granted leave to appeal and allowed the appeal, setting aside the orders of the Full Federal Court and remitting the matter to the Federal Court for further consideration.

Orders