Is separation from family “significant harm”

The Full Court of the Federal Court (FCAFC) heard two appeals together. In summary, both appellants argued that if their protection visas were not granted, they would be separated from their respective families, as their respective relatives would not be able to accompany them to their country of nationality. They argued that the separation from those relatives of itself constituted "significant harm" for the purposes of s 36(2)(aa) of the Migration Act 1958 (Cth).

The questions to the FCAFC were as follows:

Question 1: "[C]an a person satisfy the criterion in s 36(2)(aa) if the harm she or he identifies arises because of separation from her or his family members, who – for one reason or another – will not in fact return with that person to her or his country of nationality"? Can the significant harm arise from the act of removal from Australia itself?

Question 2: If significant harm cannot arise from the act of removal from Australia itself, might rendition be an exception to that rule?

Question 3: If "the Federal Circuit Court [FCCA] considers any 'doubt' attaches to a decision of [the Federal Court (FCA), is the FCCA] bound to follow [that decision]"?

Question 4: Can the mental harm that would flow from the separation of the appellants from their respective families or self-harm constitute "significant harm"?

The FCAFC answered those questions as follows: