Family law
Olofsson & Olofsson [2019] FCCA 3467
The matter relates to parenting proceedings concerning two children, aged 5 and 10 years at the time of judgment. In May 2016, the parties entered into final consent orders with respect to parenting arrangements for the children. These orders provided for the father to have sole parental responsibility, and for the children to live with him and spend alternate weekends with their mother. Following a breakdown of the relationship and spend time arrangements between the mother and the children, the mother filed a Contravention Application in May 2018. Subsequent to this and in November 2018, the parties entered into further consent orders with respect to spend time arrangements, such that the mother’s time spent with the children would be supervised. For reasons unknown to the Court, only one supervised visit occurred. This led to the mother filing a further Initiating Application in February 2019 seeking orders that the children live with her. Before the matter could progress further, the mother filed a Notice of Discontinuance in respect of both her Contravention Application and her Initiating Application. This occurred in May 2019. She later filed an Application in a Case in August 2019 seeking that the Notice of Discontinuance be set aside, so as to allow her to re-engage with the proceedings. The central issue for determination was therefore whether that Notice of Discontinuance be set aside, in circumstances where it was argued that the rules about Notices of Discontinuance of parenting proceedings are inconsistent with the statutory obligation on this Court under Part VII of the Family Law Act 1975 to act in the best interests of children. The mother and the Independent Children’s Lawyer pressed for the Notice of Discontinuance to be set aside on the basis that it was in the best interests of the children that the mother be given an opportunity to re-engage with the proceedings. The father resisted this application.
The Court ultimately concluded that the mother’s application to set aside the Notice of Discontinuance must be dismissed, having carefully considered the objects of the Act and the Rules relating to Notices of Discontinuance, as well the overarching principle of finality. In reaching this conclusion, the Court undertook an extensive analysis of the principles emanating from the decisions of Laramie & Caul [2018] FCCA 1371 and Chen v Monash University [2016] FCAFC 66. While the Court expressed hesitation and reservedness about the applicability of those principles in the context of parenting matters, the Judge found that the Court was bound by these decisions. The Court suggested that consideration should be given to a specific rule within a family law context which provides for circumstances in which a Notice of Discontinuance may be set aside.
Pandell & Walburg (No 2) [2020] FCCA 1853
This matter concerned a parenting dispute that arose due to the COVID-19 pandemic.
The father filed an Application in a Case in the COVID-19 List alleging that the mother had withheld the child in breach of existing interim parenting orders. In her response, the mother stated that she and the child had been isolating at home under the advice of the child’s treating GP, due to concerns that the child was at severe risk if he contracted COVID-19 given a pre-existing medical condition.
The Court was required to determine whether the mother had a reasonable excuse pursuant to section 70NAE of the Family Law Act 1975 for not complying with court orders, in the context of the COVID-19 pandemic.
The Court considered the affidavit material filed by the parties and two expert reports from the child’s treating GP. The Court was satisfied that the initial medical advice provided to the mother, as reflected in the first medical report, showed the child was at greater risk of suffering an adverse reaction to a COVID-19 infection given their existing health conditions. Accordingly, the Court found that the mother, at that stage, had a reasonable excuse for withholding the child in contravention of existing orders.
However, the same could not be said for the mother’s continued withholding of the child from the date when the parties received the second and updated medical report from the child’s GP, which indicated that the child was not at high risk during the COVID-19 pandemic. Accordingly, the Court found that the mother lacked reasonable excuse for withholding the child from that date. The Court ordered that the child have make-up time with the father.
Lapham & Ferman [2020] FCCA 1029
The substantive proceedings involved a de facto property settlement. The parties had reached a settlement and prepared draft consent orders and in response to a demand, the applicant made payment of the agreed settlement sum to the respondent’s solicitor’s trust account prior to the consent orders being approved by the court. The respondent’s solicitor then accessed some of those trust moneys to meet the respondent’s unpaid legal fees. The Court later declined to make the consent orders and proceedings were instead set down for trial. The applicant demanded the return of the settlement sum to which respondent and her solicitors refused resulting in the applicant making a formal complaint about the conduct of the respondent’s solicitor to the Legal Services Commissioner and both parties bringing competing interim applications as to the use of the settlement sum remaining in trust. With the trial dates looming, the applicant applied to restrain the respondent’s solicitor from continuing to act for her on the basis of the solicitor’s reputational interests being at stake due to a perceived interest in the outcome of the proceedings and the likelihood that the solicitor will be a material witness at trial.
The Judge considered the Court’s ‘inherent jurisdiction’ to restrain a solicitor from continuing to act for a party including question of delay. The Judge was mindful of the applicant’s lengthy and unexplained delay in bringing the application and rejected the submission that the respondent’s solicitor would be a material witness. The Judge concluded that neither the solicitor’s potential reputational or pecuniary interests in the litigation could be seen to imperil fulfilment of her duties and obligations to the Court. The applicant’s application was dismissed.
Greenfield & Conley (No 2) [2020] FCCA 827
On 5 February 2018, orders concerning the parenting arrangements of the child were made in the Arlington Juvenile and Domestic Relations Court in Virginia in the United States of America (the US orders). At the time of the interim hearing in this Court, the US orders had not been registered in Australia.
The applicant father filed an application in this Court seeking orders that would significantly alter the effect of the US orders. In seeking these orders the applicant father relied upon the fact that the US orders were not registered in Australia and, accordingly, were not enforceable in Australia.
The respondent mother, alternatively, sought for the US orders to be registered in this Court and contended that this Court could register the US orders pursuant to subregulation 23(6) of the Family Law Regulations 1984. Subregulation 23(6) of the Regulations stipulates that where it appears to a court that it has received the necessary documents from a prescribed overseas jurisdiction, other than from the Secretary of the Attorney-General’s Department, the Court may register the overseas order.
The issue for the Court to decide was whether the reference to ‘a court’ in subregulation 23(6) of the Regulations included the Federal Circuit Court of Australia and, consequently, whether the Federal Circuit Court of Australia could register the overseas orders.
The Court was satisfied that the reference to ‘a court’ included the Federal Circuit Court of Australia. The Court held it had the power to register orders made in a prescribed overseas jurisdiction and directed that the US orders be registered in this Court.
Migration
CRW20 v Minister for Immigration [2021] FCCA 18.
This was an application for review of an Immigration Assessment Authority (IAA) decision where the IAA affirmed the Minister’s decision not to grant the applicant a protection visa. The applicant was a Sri Lankan national of Tamil ethnicity and a Roman Catholic Christian.
There was one ground of review in the application: the IAA’s decision to refuse the applicant’s request for a further eight business days to provide submissions and new information, and making its decision prior to the expiry of the requested time, was legally unreasonable.
It was concluded that the IAA’s decision was not a decision that a reasonable decision-maker could have made, in the following combination
of circumstances:
(a) the applicant was in detention
(b) the applicant required an interpreter
(c) the IAA was told that the applicant had mental-health difficulties that required any conference that he had with his lawyer to be supported by a counsellor, which made it difficult to arrange a conference with him
(d) remittal to the IAA occurred early in the COVID-19 pandemic, when people were still adjusting to conducting their legal practices and working from home
(e) the COVID-19 pandemic caused significant stress and disruption to work practices that, by order of the Commonwealth, often led to many extensions of time being granted, for example, for rent, for mortgage repayments, and for bankruptcy notices
(f) the Department itself said that COVID-19 might impact on its ability to respond to FOI requests within the expected timeframes
(g) there were approximately three years between the original IAA decision and its proposed decision in 2020, rendering updated country information important
(h) the applicant was not represented on the remittal until 16 days before the IAA made its decision
i) the lawyer representing the applicant on the remittal did not receive relevant documents from the IAA until eight days before the IAA made its decision, and did not receive relevant documents from the Department at all, and
(j) the amount of time the applicant sought was relatively brief and had a clear end date.
The matter was remitted with costs.
AZC20 v Minister for Immigration & Anor [2020] FCCA 2317
The applicant, an Iranian National, arrived in Australia in 2013 as an unauthorised maritime arrival. In May 2018, the applicant was not granted a visa because of an unresolved security issue. That decision was affirmed by the IAA on 29 March 2019. The Federal Circuit Court of Australia then made orders by consent quashing the decision of the IAA and remitted the matter for reconsideration. Upon considering the matter a second time, the IAA received material referred to it by the Secretary of the Department of Home Affairs which included material that indicated the applicant was considered a national security risk by ASIO, material relating to an arrest in Iran relating to alleged terrorist activities, material relating to criminal charges against the applicant that had been discontinued, and material relating to past convictions for unlawful and indecent assault.
The IAA, after inviting the applicant to comment, stated that the material was irrelevant and had not been taken into account in reaching its decision. The principal issue before the Court was whether the decision of the IAA had been affected by apprehended bias. The Court found that given the nature of the material (which was considered highly prejudicial), and the manner in which it had come before the IAA given the history of the matter, a fair minded lay observer might reasonably consider that it would be difficult for the IAA to put the information out of its mind when determining whether to grant the visa. The attempts by the IAA to cure the issue were insufficient, and the matter was remitted to the IAA for reconsideration.
BNZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 1614
The applicant, who had arrived in Australia as an unauthorised maritime arrival, was born in Iran but claimed to be a citizen of Afghanistan and made claims for protection in respect of both countries. The IAA affirmed the delegate’s decision to refuse to grant the applicant a protection visa. The IAA considered it more likely that the applicant was a national of Iran and treated Iran as the ‘receiving country’ for the purposes of section 5 of the Migration Act 1958. It accordingly assessed only the applicant’s claims for protection in respect of Iran.
The Court found that the IAA had fallen into jurisdictional error in its treatment of the applicant’s nationality. Its error consisted of a failure to explore the question of nationality with any reference to Iranian law. The IAA relied upon the applicant’s birth in Iran and his use of Farsi. However, fluency in Farsi was only indicative of residence in Iran, and the IAA failed to consider whether birth in Iran was sufficient to make a finding of Iranian nationality. Furthermore, the IAA’s finding on nationality involved an element of doubt, and therefore it was required to have considered the position in the event that its nationality finding was mistaken and the applicant was a stateless person or an Afghan citizen as claimed.
AMB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (No.2) [2020] FCCA 1736; (2020) 354 FLR 286
The applicant, an Iranian citizen, claimed to be homosexual and to fear harm in Iran on this basis, among other reasons. On the basis of adverse credibility findings, the IAA affirmed the delegate’s refusal of the applicant’s protection visa application. The IAA had identified deficiencies in the applicant’s protection visa interview with the delegate: namely, that the questions asked concerning his key claim required a high level of intelligence or insight and therefore the applicant’s simplistic responses may have been attributable to his low level of education rather than a disengagement with the topic. The IAA also considered that the complexities of the delegate’s questions may have been lost in translation.
The Court found that given the IAA’s identification of significant problems with the protection visa interview, its reliance on that interview to make adverse credibility findings was ‘wholly unsatisfactory’. Inviting the applicant to give further information at an interview would have permitted the IAA to form its own assessment of the applicant’s credibility, taking into account his educational background. The IAA’s silence concerning its discretion to seek further information from the applicant pursuant to section 473DC of the Migration Act 1958 gave rise to the inference that it had failed to consider exercising that discretion. That failure went to the heart of the review process, given the centrality of the IAA’s adverse credibility findings, and therefore constituted jurisdictional error.
W&Y Property Management Pty Ltd as Trustee for the W&Y Family Trust v Minister for Home Affairs & Anor [2020] FCCA 883
The applicant company applied to be an approved work sponsor under section 140GB of the Migration Act 1958. Such application intended to sponsor the two sole shareholders and directors of the applicant company, who were also husband and wife, as ‘property managers’. The Administrative Appeals Tribunal refused to approve the applicant company as a work sponsor on the basis that the occupation of ‘property manager’ did not constitute an approved nomination, and that the work sponsor application was not genuine. Pursuant to Regulation 2.72(10)(aa) of the Migration Regulations 1994, an intended nomination must correspond to an occupation and its relevant 6-digit code specified by the Minister in an instrument in writing. Pursuant to Regulation 2.72(10)(f) of the Regulations, the Minister must also be satisfied that the position associated with the nominated occupation is genuine. While the nomination application was on foot, the Minister issued IMMI 17/060 which repealed IMMI 16/059 to no longer include the occupation of ‘property manager’ as a qualifying occupation. IMMI 17/060 also provided that such instrument applied to nomination applications made but not finally determined before 1 July 2017. The Court held that the Minister held power to change criteria for approval of nomination application, and that consequently the Applicant Company failed to satisfy an essential condition for the grant of the work sponsor approval. On that basis, the application for extension of time to review the Tribunal’s decision was refused as the applicant’s substantive claims did not establish any jurisdictional error.
Singh v Minister for Immigration & Anor [2020] FCCA 1323
The applicant, an Indian citizen, was the holder of a Subclass 572 Student Visa. The applicant left Australia to India for a period of one month in early 2012. Two years later, the applicant was declared to be a ‘proclaimed offender’ by a Court in the Batala District in India. In 2016, the applicant applied for a Subclass 887 (Skilled – Regional) Visa. Within such application, the applicant declared that he had never been the subject of an arrest warrant. The applicant was granted the Visa in September 2016. In August 2017, the Department sent a Notice of Intention to Consider Cancellation of the applicant’s Visa on the basis that the applicant had provided a false declaration in his 2016 visa application, in circumstances where he had been declared a proclaimed offender in India. The Tribunal noted that it did not have before it an arrest warrant for the applicant issued by the Indian authorities, only Departmental notes of a verbal confirmation from India that an arrest warrant had been issued.
The Court held that Tribunal had failed to make further inquiries about whether the applicant had in fact been the subject of an arrest warrant. Such inquiries were held to be necessary because the summons document relied upon by the Tribunal could not be ordinarily characterised as being associated with criminal proceedings, and the Tribunal had expressed reservations as to whether the applicant had in fact been the subject of an arrest warrant. There were consequential findings of a failure by the Tribunal to seek further information pursuant to section 424A of the Act, and the matter was remitted to the Tribunal for re-hearing.
Behay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 215
The applicant applied for a Partner Visa which was refused by the Department. The applicant applied to the Tribunal for review of the decision of the delegate. While the applicant’s review application to the Tribunal was on foot, the applicant telephoned the Tribunal’s offices and advised that she wished to withdraw her visa application. That day, the Tribunal sent to the applicant a withdrawal form, which the applicant duly executed and returned to the Tribunal. Six days later, the applicant emailed the Tribunal claiming she had made a mistake when withdrawing her application and sought for her application to be resumed. The Tribunal considered that the withdrawal had been accepted, and that a decision had therefore been made, causing the Tribunal to lack power to take any further action on review. The applicant alleged that the Tribunal erred by failing to determine the review, claiming that the purported withdrawal of the visa application by the applicant was not legally effective to end the Tribunal’s obligation to review the delegate’s decision. In support of this proposition, the applicant claimed that the enactment of section 24Z of the Administrative Appeals Tribunal Act 1975 abrogated the existing common law right of an applicant to withdraw their application should they so wish. The Court held that section 24Z did not evidence a Parliamentary intention that the Tribunal consider all applications before it notwithstanding any expression of intention by an applicant that their application be withdrawn. The Tribunal was therefore found to be functus officio following the applicant’s withdrawal.
CZR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 199
The applicant was the holder of a Subclass 155 Resident Return Visa which was mandatorily cancelled pursuant to the provisions of section 501 of the Act due to the applicant failing the character test. The applicant was then placed in immigration detention. Whilst in detention, the applicant applied for a Protection Visa which was refused by the Department in February 2020. The applicant applied to the Tribunal for review of the decision of the delegate, which was set down for hearing on 25 March 2020. Prior to the hearing, the applicant sought an adjournment by way of two letters to the Tribunal on the basis that, due to a mental health disorder suffered by the applicant, the applicant was making necessary attempts to obtain legal representation. The Tribunal refused the adjournment request, stating that it did not have before it any medical evidence of a mental health disorder which necessitated the applicant obtaining legal representation.
The Court held that the Tribunal unreasonably refused the adjournment request in circumstances where the Tribunal had before it medical reports validating the applicant’s condition, and where the State of Victoria was in lockdown as a result of the COVID-19 pandemic which raised difficulties for litigants seeking representation from Community Legal Centres such as Victoria Legal Aid. Failure to grant an adjournment was material as it deprived the applicant the opportunity to properly present his claims for protection. The matter was remitted for re-hearing.
CAF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 93
The applicant applied for a Safe Haven Enterprise Visa which was refused by the Department in December 2016 on the basis that the applicant could safely relocate within Afghanistan to Kabul for safety. The Department did, however, accept the truth of the applicant’s statements regarding his fear of harm from the Taliban in his home province. The applicant applied to the IAA for review, which was refused for the same reasons as the Department in April 2017. Appeals were filed in the Federal Circuit Court and Federal Court and the matter was subsequently remitted to the IAA for re-hearing. The second differently constituted IAA again refused to grant the visa to the applicant, although this time on the basis that the IAA had made adverse credibility findings against the applicant regarding his claims for protection. The applicant’s lawyers had submitted that due to the applicant’s diagnosed Post Traumatic Stress Disorder (PTSD), the applicant suffered from memory deficits which compromised the IAA’s ability to recount historical events relevant to his claims for protection. In support of that proposition, the applicant relied upon two medical articles which made findings regarding memory deficits arising from PTSD. The IAA found that the articles did not fall within the provisions of section 473DD and consequently refused to consider them.
The Court held that the Tribunal unreasonably failed to consider the contents of the two journal articles. The First Respondent submitted that the articles, which were published well before the making of the application for the visa, were able to be put before the Department and therefore unable to be accepted pursuant to section 473DD(b)(i). The Court held that in circumstances where the applicant had, only a short time before the hearing before the IAA, been diagnosed with PTSD, the Articles were not relevant to the applicant’s application at the Departmental stage. Further, given that the IAA based its adverse credibility findings upon the applicant’s inability to accurately recall dates, the journal articles ought to have been considered by the IAA as potentially affecting the consideration of the applicant’s claims. Jurisdictional error was established and matter remitted for re-hearing.
DEP18 v Minister for Home Affairs [2020] FCCA 2726;
The applicant arrived in Australia in 2012. He applied for a protection visa which was refused by the Minister’s delegate. The IAA affirmed the Minister’s delegate’s decision to refuse the applicant a protection visa.
The applicant made submissions to the IAA that he struggled with memory loss and that he believed this was caused by his poor mental health. In support of this claim, the applicant provided a letter from a counsellor which indicated the apparent trauma suffered by the applicant and stated that he displayed symptomology for PTSD.
The IAA, in making its decision, concluded that there was an ‘absence of corroborating evidence’ indicating that the applicant struggles with his memory because of his mental health.
The application for judicial review of the IAA’s decision raised one ground of review claiming that the IAA’s finding that there was no corroborative evidence was illogical, irrational or unreasonable because the letter provided by the applicant amounted to corroborating evidence of the applicant’s claim to struggle with his memory because of his mental health.
The Court was satisfied that the IAA’s use of the phrase ‘in the absence of corroborating evidence’ to describe the evidence before it was not illogical, irrational or unreasonable. The Court concluded that the phrase was consistent with an intention of the IAA to convey the view that the letter did not confirm or strengthen the applicant’s claim that he suffered memory loss because of his mental health.
ANC17 v Minister for Immigration and Border Protection [2020] FCCA 707
The applicant was a citizen of Iraq who came to Christmas Island by boat in 2013. He applied to the Department of Home Affairs for a temporary protection visa, alleging that he feared persecution in Iraq from the Shia militia, relevantly, because of his previous work and occupation as a barber.
The applicant gave evidence that in 2012, a number of barber shops in Iraq had been targeted and the owners threatened. The applicant and his brother owned a barber shop and had received threats and demands that they close the business, which they initially resisted. Although the applicant had been a barber all his working life, during this period he considered changing his line of work and applied for positions in other fields but was unsuccessful. The applicant’s brother continued to operate the barber shop and was shot and killed while doing so. The applicant then sold the shop and left Iraq for Australia. The applicant’s application was refused by the Minister’s delegate.
The IAA reviewed the decision of the Minister’s delegate and found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under section 36(2)(a) or (aa) of the Migration Act 1958. In making this decision, the IAA found that were the applicant to modify his conduct by not working as a barber, it would not conflict with a characteristic fundamental to his identity or conscience; would not conceal an innate or immutable characteristic of himself; and would not constitute any other modification contemplated by section 5J(3)(c) of the Act. To make this finding the IAA relied on the applicant’s conduct in seeking work in different fields, which it concluded was inconsistent with the idea that being a barber was fundamental to his identity or conscience.
In the judicial review proceeding, the applicant alleged that the IAA’s decision was affected by jurisdictional error on several grounds. The first ground included an allegation that the IAA’s finding that the applicant’s occupation was not central to his identity lacked evident and intelligible justification.
The Judge held that a person’s chosen career is capable of being of central importance to that person and, consequently, is capable of being a characteristic fundamental to their identity or conscience for the purposes of section 5J(3)(a) of the Act. However, His Honour found that no jurisdictional error on the part of the IAA had been demonstrated in this case because it had been open to the IAA to conclude from the evidence that being a barber was not fundamental to the applicant’s identity or conscience.
The Judge had regard to but did not follow AYY17 v Minister for Immigration and Border Protection [2017] FCCA 2886.
Fair Work
Abdirahman v Assetlink Link Services [2021] FCCA 90.
This was an application for costs with respect to an application for preliminary discovery in the context of allegations of underpayment of wages. The prospective applicants were all employed by the prospective respondent as security guards.
The prospective respondent argued that this Court has no power to order preliminary discovery. That question was dealt with as a threshold issue. The prospective applicants were successful on the threshold issue. However, the prospective applicants were unsuccessful on the substantive question of whether preliminary discovery should be ordered in the particular circumstances of this case.
The prospective respondent sought costs on scale of the threshold issue and the substantive question.
The Court held that it would be entirely inappropriate for the prospective respondent to get its costs of the threshold issue in circumstances where the respondent’s detailed and lengthy arguments on this discrete issue had been rejected.
The prospective respondent argued that section 570 of the Fair Work Act 2009 did not apply. The prospective applicants submitted that the application for preliminary discovery was a precursor to prospective proceedings in relation to a matter arising under the Act, and thus fell within the scope of section 570 of the Act.
The Court held that the application for preliminary discovery was a proceeding in relation to a matter arising under the Act, noting that the prospective respondent did not submit that any particular aspect of section 570(2) was satisfied in this case. The prospective applicants were successful on the threshold issue and unsuccessful on the substantive issue. However, their conduct was within the normal range. It did not warrant a costs order.
The prospective respondent’s application for costs was dismissed.
