Shinde v Minister for Immigration - [2020] FCCA 1873

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHINDE v MINISTER FOR IMMIGRATION

[2020] FCCA 1873

Catchwords:
MIGRATION – Decision of a delegate of the Minister to cancel the applicant’s bridging visa upon his arrival at Melbourne Airport – substantive visa being a partner visa – allegations of gross family violence perpetrated in India – whether the delegate acted on the basis that an interim intervention order had been made in Australia in circumstances where no such order had been made – whether the delegate treated the best interests of the child of the relationship as a primary consideration.

Legislation:
Migration Act 1958, ss.116, 116(1)(e)(ii), 499
Family Violence Protection Act 2008 (Vic), s 50

Cases cited:
DFTD v Minister for Home Affairs [2020] FCA 859
Gong v Minister for Immigration and Border Protection (2016) 309 FLR 151; [2016] FCCA 561
Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; (2013) 136 ALD 41; (2013) 302 ALR 572; [2013] FCA 317
Minister for Immigration Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189; (1994) 33 ALD 13; (1994) 19 AAR 266

Applicant:

KARTAVYA HARISHCHANDRA SHINDE

Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File number:

MLG 886 of 2020

Judgment of:

Judge Riley

Hearing date:

29 June 2020

Date of last submission:

29 June 2020

Delivered at:

Melbourne

Delivered on:

9 July 2020

REPRESENTATION

Counsel for the applicant:

Angel Aleksov

Solicitors for the applicant:

Carina Ford Immigration Lawyers

Counsel for the respondent:

David Brown

Solicitors for the respondent

The Australian Government Solicitor

ORDERS

The decision made on 12 March 2020 by a delegate of the respondent to cancel the applicant’s subclass WB-020 visa be set aside.
The respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 886 of 2020

KARTAVYA HARISHCHANDRA SHINDE

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by a delegate of the Minister (“the delegate”). On 12 March 2020, the delegate cancelled the applicant’s bridging visa under s.116(1)(e)(ii) of the Migration Act 1958 (“the Act”) upon the applicant’s arrival at Melbourne Airport. The applicant has been held in immigration detention since that date.
The matter was originally filed in the Federal Court, which issued certain injunctions. A fresh application was then filed in this court.

Background

The applicant filed a two page written submission that did not provide any of the background facts of the matter or summarise the delegate’s decision. However, in his written submissions filed on 17 June 2020, the Minister summarised the background as follows:
1.The applicant is a 28 year old Indian national who married an Australian citizen in Melbourne on 19 May 2018, and lodged a Partner visa application on 13 December 2018. Pending determination of the Partner visa application, the applicant was granted a Bridging visa A on the same date.
2.The couple’s first child was born on 3 January 2019.
3.The police were called by the applicant’s wife following an argument with the applicant on 16 January 2019, who she claimed was subjecting her to controlling behaviour, and a family violence safety notice was issued to the applicant, requiring his attendance at Heidelberg Magistrates’ Court on 18 January 2019. Subsequently a final intervention order was issued against the applicant on 21 February 2019, which included the applicant’s wife and the new born child as protected persons.
4.The applicant applied for a Bridging visa B (the visa) so that he could travel to India to visit a sick relative on 15 December 2019, which was quickly granted. He departed Australia, accompanied by his mother and his one year old daughter, in late January 2020.
5.The applicant’s wife travelled to India in mid-February 2020, and returned with her one-year old daughter, on Qantas flight QF 36 arriving in Melbourne on 2 March 2020. She was about 9 weeks pregnant at this time.
6.Qantas cabin staff on the QF36 flight were concerned about the applicant’s wife’s welfare, as she had bandages to her hands and neck, and they asked the Australian Federal Police (the AFP) to conduct a welfare check on arrival at Melbourne Airport.
7.The applicant’s wife was interviewed by the AFP upon arrival at Melbourne Airport, who recorded that the applicant’s wife had stated that while she was in India she had been stabbed by the applicant a number of times in the neck and hands, and that his family came to her aid and assisted her. Eventually they took her to the hospital and she received treatment for her cuts. She reported the incident to the police in India and she understood that the applicant had been taken into custody.
8.The applicant’s wife was subsequently taken by ambulance to the Royal Melbourne Hospital in Melbourne for a check-up. Her daughter was placed in the care of her mother. The hospital prepared a report on the applicant’s wife’s injuries.
9.She attended the Broadmeadows Police Station on 3 March 2020 to file a report, and was subsequently referred to the Sex Offences and Child Abuse Investigations Team (the SOCIT), based at Fawkner Police Station, where she gave a statement, and photographs were taken of her injuries.
10.On 5 March 2020 the Department sent an e-mail to the applicant inviting him to comment, within 28 days, on information that it had received that his relationship with his sponsoring partner had ended.
11.On 5 March 2020 a SOCIT police officer applied to the Heidelberg Magistrates’ Court for an intervention order, to provide protection to both the applicant’s wife and his baby daughter, and a warrant to arrest the applicant should he return to Australia, under s 50 of the Family Violence Protection Act 2008 (Vic), which provides:
Magistrate or registrar may issue warrant on certain applications for family violence intervention orders
(1) A magistrate or an appropriate registrar for the court may issue a warrant for the arrest of an adult respondent, as if the application for a family violence intervention order alleged the commission of an offence, if the magistrate or registrar believes on reasonable grounds it is necessary –
(a)to ensure the safety of the affected family member; or
(b)to preserve any property of the affected family member; or
(c)to protect a child who has been subjected to family violence committed by the respondent; or
(d)to ensure the respondent attends court at a mention date for the application.
12.The application for an intervention order and warrant for the applicant’s arrest detailed the basis for the application, including that while the applicant’s wife was in India, the applicant had:
attacked her, stabbing her 4 times to the neck with a kitchen knife, attempting to suffocate her with a pillow and hands. The (applicant’s wife) was taken to hospital, received numerous stitches to her injuries, and a report was taken by the Gujarat police. The (applicant) was arrested but released when the (applicant’s wife) accepted a ticket to Australia with her daughter, provided by the family if she left the country. The (applicant’s wife) reported the assault to the Federal Police and attended the Royal Women’s Hospital on 2 March 2020 for treatment of her injuries. The (applicant’s wife) is in fear of her life, and is currently in undisclosed accommodation to keep herself and her daughter safe, as it is unknown when the (applicant) will return from India. Police have observed the trauma and injuries suffered by the (applicant’s wife) today and hold concerns for her safety and well-being.
13.The warrant for arrest was granted by an appropriate registrar on 5 March 2020, and was served on the applicant when he arrived at Melbourne Airport on 12 March 2020. The applicant was bailed to appear at Broadmeadows Magistrates’ Court on 23 March 2020, and released from police custody. A copy of the application for an intervention order and warrant was provided to an officer of the respondent at Melbourne Airport.
14.On 23 March 2020 an interim intervention order was made at Broadmeadows Magistrates’ Court against the applicant ordering that he must not commit family violence against his wife or his baby daughter, and that he must not attempt to locate them, contact them or go within 200 metres of their premises.

The proceedings before the delegate

The Minister’s written submissions filed on 17 June 2020 summarised the proceedings before the delegate as follows:
15.A delegate of the respondent interviewed the applicant at Melbourne Airport by reason of the applicant having been arrested by the police and then released on bail upon arrival, where the basis for the application for an intervention order and warrant for arrest issued by the Magistrates’ Court registrar was that the applicant had stabbed his wife in the neck with a kitchen knife, and had attempted to suffocate her with a pillow, and his hands, while they were in India. The applicant provided a ‘no comment’ response to a number of the delegate’s questions, and denied that he had attacked his wife with a knife.
16.The delegate issued the applicant with a Notice of Intention to Consider Cancellation (NOICC). Section 116(1)(e)(ii) of the Migration Act 1958 (the Act) was identified as a potential ground for cancelling the applicant’s. The section provides:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(e)the presence of its holder in Australia is or may be, would or might be, a risk to:
…
(ii)the health or safety of an individual or individuals; …
17.The applicant was provided with an opportunity to respond to both the potential ground for visa cancellation under consideration, and whether, if that ground was found to exist, whether the discretion to cancel the visa should be exercised.
18.The applicant provided a response to the NOICC, denying that he had assaulted his wife, stating that he had obtained a police clearance certificate before leaving India as proof that no charges were outstanding against him, contending that he himself had been the victim of domestic violence, both physical and mental, and indicating that it was his intention to seek a ‘parenting visa’ so that he could look after his child.
19.The delegate took into account the applicant’s response, and went on to make a decision that a ground existed for cancellation of the visa under s 116(1)(e)(ii) of the Act, and that he was satisfied that the available discretion to cancel the applicant’s visa should be exercised, placing significant weight on the contents of the application for an intervention order and warrant, which detailed the basis upon which the application had been made, and had been granted by an appropriate registrar of the Magistrates’ Court of Victoria.
20.The applicant was subsequently taken into detention as an unlawful non-citizen, which is where he remains today.

Ground 1

The first ground of review in the application filed on 13 March 2020 and amended on 1 June 2020 (“the application”) is:
The delegate misconstrued important evidence, and thereby failed to consider the actual evidence, in thinking that the application for an IVO was a judicial order.
It was common ground that, when the delegate cancelled the applicant’s visa, no intervention order had been made against him. An interim intervention order was eventually made against the applicant, but not until about 11 days after the delegate cancelled the visa.
The material before the delegate included the application for the intervention order, which stated as follows:
[The applicant] and [the applicant’s wife] have been in a defacto relationship since 2017. They have a one year old daughter, [X] and are expecting another child. Late January, 2020 [the applicant] left Australia with [X] and flew to India to visit an ill relative. [The applicant’s wife] followed two weeks later as she had concerns with the way in which [the applicant] was speaking in that he did not intend to return. On arrival in India [the applicant’s wife] was told by [the applicant] that he wanted to live in India with her and [X]. [The applicant’s wife] refused and told [the applicant] she wanted to return home to Australia on 28/02/20 with [X]. [The applicant] told [the applicant’s wife] to commit suicide if she wanted to leave and later attacked her, stabbing her 4 times to the neck with a kitchen knife, attempting to suffocate her with a pillow and hands. [The applicant’s wife] was taken to hospital received numerous stitches to her injuries and a report was taken by the Gurajat police. [The applicant] was arrested but released when [the applicant’s wife] accepted a ticket to Australia with her daughter provided by the family if she left the country. [The applicant’s wife] reported the assault to the Federal police and attended the Royal Womens Hospital on 02/03/20 for treatment of her injuries. [The applicant’s wife] is in fear of her life and is currently in undisclosed accommodation to keep herself and her daughter safe as it is unknown when [the applicant] will return from India. Police have observed the trauma and injuries suffered by [the applicant’s wife] today and hold concerns for her safely and well-being.
The Notice of Intention to Consider Cancellation (“the NOICC”) and record of the decision to cancel are both dated 12 March 2020, and are exhibit CF-2 to the affidavit affirmed by Carina Ford on 29 May 2020. The NOICC said:
Include the specifics (particulars) of the ground [for cancellation of the visa] and the information because of which the ground appears to exist.[1]
[1] The words above the box here and in the quotations below are part of the pre-printed form. The words in the boxes are the delegate’s.

You have arrived at Melbourne Airport on 12/03/2020 as the holder of a subclass WB-020 bridging visa. This Bridging Visa is in association with a Partner Visa application lodged on 13/12/2018.

Upon arrival at Melbourne Airport you were served with an Intervention Order by Victoria Police for Family Violence against [the applicant’s wife].

You signed an Undertaking of Bail and you are listed to appear in court on the 23rd March 2020.

The intervention order states that on 28 February 2020 in Gujarat India you were involved in an altercation with [the applicant’s wife] that resulted in you stabbing her in the neck with a kitchen knife and attempting to suffocate her.

As you have been issued with an intervention order relating to family violence against [the applicant’s wife], I am satisfied that there appear to be grounds for cancelling your visa under s116(1)(e)(ii) of the Act as your presence in Australia may be a risk to the safety of an individual/s. (emphasis added)

It was common ground that the applicant had not actually been served or issued with an intervention order at the time the delegate issued the NOICC on 12 March 2020. No such intervention order against the applicant had been made when the NOICC was issued on 12 March 2020. The documents before the delegate at that time relevantly consisted of an application for an intervention order and a warrant for the applicant’s arrest.
The record of the delegate’s decision to cancel the applicant’s visa said that:
7Details of the evidence and findings about why the delegate is satisfied GROUNDS for cancellation DO EXIST

The visa holder has arrived at Melbourne Airport on 12/03/2020 as the holder of a subclass WB-020 bridging visa. This Bridging Visa is in association with a Partner Visa application lodged on 13/12/2018.

Upon arrival at Melbourne Airport on 12th March 200, the visa holder was served with an Intervention Order by Victoria Police for Family Violence against [the applicant’s wife].

The visa holder signed an Undertaking of Bail and he is listed to appear in court on the 23rd March 2020.

The intervention order states that on 28 February 2020 in Gujarat India the visa holder was involved in an altercation with [the applicant’s wife] that resulted in the visa holder stabbing her in the neck with a kitchen knife and attempting to suffocate her.

Based on the above information that the visa holder has been issued with an intervention order relating to family violence against [the applicant’s wife]. I am satisfied there are grounds for cancelling the visa holder’s visa under s116(1)(e)(ii) of the Act as his presence in Australia may be a risk to the safety of an individual/s. (emphasis added)

The record of the decision to cancel then stated, in section 9:
The degree of hardship which may be caused to the visa holder, their family members and others, if the visa is cancelled. (Where applicable, the best interests of a child in Australia under 18 years must be considered in accordance with Australia’s obligations under the Convention of the Rights of the Child.)

The visa holder confirmed he has a child or family members in Australia who would be affected if his visa is cancelled.

The visa holder stated that he would suffer from mental, emotional as well as financial hardships if he will be away from his daughter.

The visa holder states he is wishing to apply for a parenting visa to look after his kids and give them a safe place to live, good food and education. This is noted and it is open to the visa holder to explore alternative visa options in the event his visa is cancelled today.

I acknowledge that the cancellation of the visa holder’s bridging visa may result in some inconvenience and or financial, psychological and emotional hardship.

The department has acknowledged this however an intervention order has been lodged against the visa holder which includes the visa holder’s daughter, prohibiting the visa holder from contacting his daughter and partner.

I therefore assign reasonable weight in favour of cancelling the visa holder’s visa. (emphasis added)

…
Client circumstances in which the ground for cancellation arose (whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing)

The visa holder claims that his partner has attempted committing suicide and that he is actually the victim of domestic violence. He claimed the allegations against him were false and that he has been falsely accused of stabbing his partner.

Despite the above, the visa holder has not provided any evidence to support his claims. Additionally, the visa holder has been served with an Intervention Order relating to Family Violence against his partner.

As such I afford this consideration significant weight in favour of cancelling the visa holder’s visa. (emphasis added)

The delegate then said, in section 10 of the record of the decision to cancel:
Other relevant reasons (including mandatory legal consequences)

I have also considered the legal consequences of a decision to cancel the visa holder’s visa and note that if the visa is cancelled he:

- will be subject to a s48 bar on applying for certain visas

- will be affected by a risk factor under Public Interest Criteria 4013 which may affect the eligibility for other visas in the future

- may be liable for detention and removal from Australia

I accept that the above consequences may have an impact on the visa holder. However, I place significant weight on the Intervention Order that has been served on him and consider that this outweighs the consequences above.

I therefore lend this factor significant weight in favour of visa cancellation. (emphasis added)

The delegate then decided to cancel the applicant’s visa.
The applicant argued that the delegate had mistakenly thought that the application for an intervention order was an actual intervention order, made by a judicial officer after consideration of the facts, rather than an allegation of certain facts that had not been assessed by a judicial officer.
The applicant argued this amounted to a constructive failure to exercise jurisdiction: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; (2013) 136 ALD 41; (2013) 302 ALR 572; [2013] FCA 317.
The Minister focussed on the issue of whether a judicial officer had assessed the application for the intervention order. The Minister noted that a judicial officer, being an appropriate registrar of the Magistrates’ Court of Victoria, had issued a warrant for the applicant’s arrest pursuant to s.50 of the Family Violence Protection Act 2008 (Vic). That provision stated:
Magistrate or registrar may issue warrant on certain applications for family violence intervention orders
(1)A magistrate or an appropriate registrar for the court may issue a warrant for the arrest of an adult respondent, as if the application for a family violence intervention order alleged the commission of an offence, if the magistrate or registrar believes on reasonable grounds it is necessary –
(a)to ensure the safety of the affected family member; or
(b)to preserve any property of the affected family member; or
(c)to protect a child who has been subjected to family violence committed by the respondent; or
(d)to ensure the respondent attends court at a mention date for the application. (emphasis added)
…
Section 53 of that Act specifies when an interim intervention order may be issued as follows:
Court may make interim order
(1)The court may make an interim order if—
(a)a person has applied to the court for a family violence intervention order and the court is satisfied, on the balance of probabilities, that an interim order is necessary pending a final decision about the application—
(i)     to ensure the safety of the affected family member; or
(ii)    to preserve any property of the affected family member; or
(iii)   to protect an affected family member who is a child who has been subjected to family violence committed by the respondent; or
… (emphasis added)

As can be seen, a warrant for arrest may be issued if the appropriate registrar believes certain things on reasonable grounds, whereas an intervention order may be issued if a magistrate is satisfied, on the balance of probabilities, of certain things. The threshold for an interim intervention order is significantly higher than for a warrant for arrest.
The Minister also relied on the decision of Judge Smith in Gong v Minister for Immigration and Border Protection (2016) 309 FLR 151; [2016] FCCA 561 at [41], where Judge Smith said:
While it is true, as the applicant submits, that the word “risk” entails an element of futurity, the addition of the words “or may be” and “or might be” by the 2014 amendments undermines the balance of the applicant’s arguments. Simply put, the fact that sub-s 116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does not have to be, as the applicant suggests, any direct, solid or certain foundation before the power to cancel a visa can arise. In other words, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of the charges. That is to say that that fact alone was not legally irrelevant to the question posed by sub-s 116(1)(e).
That case supports a contention that it may have been legally reasonable for the delegate to have relied on the application for an intervention order and the warrant for arrest to support the decision to cancel the applicant’s visa, if he had understood them to be an application and a warrant. However, it does not support a contention that the delegate actually did understand the application and the warrant to be what they were, as opposed to a judicially determined intervention order.
The Minister also relied on the transcript of the interview between the delegate and the applicant, which is exhibit CF-4 to Ms Ford’s affidavit. The transcript shows at page 11 that the applicant understood the documentation he had received that day to be an intervention order, which prevented him from having contact with his wife, but that otherwise he needed to speak to his lawyer about it. The transcript also shows at page 11 and elsewhere that the delegate described the documents that the applicant had received on 12 March 2020, being the application and the warrant, as an intervention order. The fact that the applicant, as well as the delegate, might have misunderstood the nature of the application and the warrant does not assist the Minister in this case.
As the applicant explained to the court, as at 12 March 2020, it was not the application and the warrant that prohibited the applicant from contacting his wife, but an undertaking that he gave the Magistrates’ Court as a condition of his bail. On 12 March 2020, when the visa was cancelled, there was not an intervention order against the applicant.
In any event, the Minister’s point about the transcript of the interview between the delegate and the applicant was that the misuse of the term intervention order by both the applicant and the delegate did not amount to a misconstruction of the evidence. That is a bare assertion, and is unpersuasive.
The Minister’s more general point was that:
a)there was evidence before the delegate, consisting of the matters stated in the application, which gave the appropriate registrar reasonable grounds to issue the warrant, that the applicant may be a risk to the health or safety of an individual in Australia; and
b)it was open to the delegate to have regard to that evidence in deciding to cancel the applicant’s visa.
It may have been open to the delegate to rely on the application and the warrant to cancel the visa. However, the delegate did not do so. The delegate repeatedly said that there was an intervention order against the applicant, and that he placed significant weight on that circumstance in favour of cancellation.
An intervention order is qualitatively different from an application and a warrant. It is by no means clear that the delegate would have cancelled the visa if he had correctly understood that an intervention order had not been made against the applicant as at 12 March 2020.
The Minister’s submissions invite the court to conclude that, because the application and warrant would have been sufficient for the delegate to cancel the visa, it does not matter that the delegate based the cancellation on the misapprehension that an intervention order had been made against the applicant. That is tantamount to an invitation to impermissible merits review.
In my view, the delegate did misunderstand that an intervention order had been made. I cannot be confident that the same decision would have been made if the delegate had not been under that misapprehension. The Minister’s submissions are essentially an attempt to reconstruct the delegate’s reasons. Ground 1 is made out.
For completeness, it seems that the interim intervention order made in this case on 23 March 2020 arguably should not have been made on the strength of the events that allegedly occurred in India. That is because s.53(3) of the Family Violence Protection Act 2008 (Vic) provides that:
The court may make an interim order whether or not—
(a)some or all of the alleged family violence occurred outside Victoria, so long as the affected family member was in Victoria at the time at which that alleged family violence occurred;
(b)the affected family member was outside Victoria at the time at which some or all of the family violence alleged in the application for the family violence intervention order occurred, so long as that alleged family violence occurred in Victoria.
In other words, the Magistrates’ Court was arguably unable to make the interim intervention order in this case because it was not alleged that the applicant’s wife was in Victoria when the violence occurred, or, alternatively, that the violence occurred in Victoria.

Ground 2

The second ground of review in the application is:
The delegate failed to consider policy, being a mandatory relevant consideration, which required that the best interest of children be treated as a primary consideration.
The applicant and his wife have a child who, at the time of the cancellation of the applicant’s visa, was 14 months old. The wife was also pregnant with their second child, though it may not have been necessary for the delegate to take that circumstance into account.
The applicant noted that there is a government policy concerning visa cancellations. It is set out in exhibit CF-5 to Ms Ford’s affidavit. It says:
s116 – Deciding whether to cancel
Prescribed matters
Unlike visa cancellation under s109, there are no prescribed matters to which the delegate must have regard in considering whether to cancel a visa under s116.
Matters that should be considered
It is policy that delegates take into account the following ten matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters, even if not specifically raised by the visa holder. The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder:
…
ŸThe degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.
ŸThe circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.
…
ŸWhether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, – as two examples:.
ŸIf there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children - for more information, refer to:
Ÿ Australia's international obligations and
Ÿ PAM3: Act - Compliance and Case Resolution - Case resolution - Guiding principles - Treatment of children.
…
If a delegate is considering whether to cancel a permanent visa, they are also to take into account whether the visa holder has formed strong family, business or other ties in Australia.
(emphasis added)
The applicant noted that the delegate did not mention the policy in the transcript of his interview with the applicant or in his reasons for decision. The applicant argued that it should be inferred from those failures to mention the policy that the delegate did not have regard to it.
The applicant argued further that, although the delegate was not bound to apply the policy, he was bound to have regard to the policy, as a mandatorily relevant consideration. The applicant relied on Minister for Immigration Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189 at 206; (1994) 33 ALD 13; (1994) 19 AAR 266, where French and Drummond JJ said:
The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored. It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, an acceptance of the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application. As Bowen CJ and Deane J observed in Drake (at 420):
" ... the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power."
This is particularly so in the case of a power which involves high volume decision-making or which may, in any event, because of its subject matter, be expected to attract policy guidelines. Certain classes of immigration decision are necessarily high volume, such as those relating to the grant of visas and entry permits. The exercise of the power to deport involves a direct interference with individual liberty. Common concepts of justice suggest that, while each case is to be considered on its individual merits, like cases will generally be treated similarly. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion. Recognition of legislative contemplation that policy guidelines will be made is consistent with the requirement that each case is considered on its merits. But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. In the case of the power to deport non-citizens convicted of criminal offences, the existence and content of a lawful criminal deportation policy is a matter the Tribunal is bound to take into account and to give such weight as it thinks proper having regard to all the circumstances of the case. … (emphasis added)
The applicant argued that the delegate displayed no awareness of the s.116 policy set out above, and the court should infer that the delegate ignored the policy. The applicant conceded that the delegate could lawfully have decided to depart from the policy for a sensible reason, but maintained that the delegate could not just ignore it.
The Minister did not accept that the delegate was bound to take into account the policy. However, the Minister’s main point was that the delegate had taken into account the best interests of the child as the primary consideration, albeit without using those words and without mentioning the Convention on the Rights of the Child. The Minister based that argument on the following passage from section 9 of the record of the decision to cancel:
The degree of hardship which may be caused to the visa holder, their family members and others, if the visa is cancelled. (Where applicable, the best interests of a child in Australia under 18 years must be considered in accordance with Australia’s obligations under the Convention of the Rights of the Child.)

The visa holder confirmed he has a child or family members in Australia who would be affected if his visa is cancelled.

The visa holder stated that he would suffer from mental, emotional as well as financial hardships if he will be away from his daughter.

The visa holder states he is wishing to apply for a parenting visa to look after his kids and give them a safe place to live, good food and education. This is noted and it is open to the visa holder to explore alternative visa options in the event his visa is cancelled today.

I acknowledge that the cancellation of the visa holder’s bridging visa may result in some inconvenience and or financial, psychological and emotional hardship.

The department has acknowledged this however an intervention order has been lodged against the visa holder which includes the visa holder’s daughter, prohibiting the visa holder from contacting his daughter and partner.

I therefore assign reasonable weight in favour of cancelling the visa holder’s visa. (emphasis added)

As noted in a footnote above, the words outside the box are part of a pre-printed form. The words in the box are the delegate’s words.
The pre-printed form included the words:
Where applicable, the best interests of a child in Australia under 18 years must be considered in accordance with Australia’s obligations under the Convention of the Rights of the Child.
The pre-printed words differ a little from the words of the policy, which relevantly stated:
If there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children … (emphasis added).
The difference is that the policy says that delegates are obliged to consider the best interests of a child as a primary consideration, whereas the pre-printed form only says that the best interests of the child must be considered in accordance with the Convention on the Rights of the Child.
In any event, the Minister said that the delegate considered the relevant matters in the passage set out above.
It seems to me that it is not entirely clear that the delegate had regard to the policy about the best interests of the child being a primary consideration. Firstly, the pre-printed words of the form do not say that the best interests of the child are a primary consideration. While it may be readily accepted that the delegate read and understood the pre-printed words, it is not apparent from the pre-printed words that the delegate understood that the policy obliged him to treat the best interests of the child as a primary consideration.
Secondly, the delegate noted that:
The visa holder confirmed he has a child or family members in Australia who would be affected if his visa is cancelled.
In that statement, the delegate bundled up the child with other family members. There was an entirely separate point in the policy about other family members, which is as follows:
The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.
By bundling the consideration of the child with the consideration of other family members, the delegate may have failed to consider the specific requirement of the policy that required him to treat the best interests of the child as a primary consideration.
The delegate then noted that:
The visa holder stated that he would suffer from mental, emotional as well as financial hardships if he will be away from his daughter.
The applicant’s hardships are not to the point. The applicant’s hardships say nothing about the best interests of the child.
The delegate then noted that:
The visa holder states he is wishing to apply for a parenting visa to look after his kids and give them a safe place to live, good food and education. This is noted and it is open to the visa holder to explore alternative visa options in the event his visa is cancelled today.
The Minister submitted that, by saying that the applicant had said that:
…he is wishing to apply for a parenting visa to look after his kids and give them a safe place to live, good food and education
the delegate demonstrated that he had treated the best interests of the child as a primary consideration. However, that is quite a stretch. Simply mentioning the applicant’s aspirations in relation to his children is a long way short of treating their best interests as a primary consideration.

The delegate then said that:
I acknowledge that the cancellation of the visa holder’s bridging visa may result in some inconvenience and or financial, psychological and emotional hardship.
There is no reason to suppose that the delegate was referring to the hardship to the applicant’s daughter at this point. The delegate had previously only referred to hardship that the applicant might suffer. In context, the delegate must be taken as having meant that there may be some hardship to the applicant if his visa is cancelled. This is not indicative of the delegate treating the child’s best interests as a primary consideration.
The delegate then said:
The department has acknowledged this however an intervention order has been lodged against the visa holder which includes the visa holder’s daughter, prohibiting the visa holder from contacting his daughter and partner. (emphasis added)
The reference in the first line of that passage to this is a reference to the hardship faced by the applicant. This passage in terms does not treat the best interests of the child as a primary consideration, or explain why it would be appropriate in this case to depart from the policy requiring that the best interests of the child be treated as a primary consideration.
The Minister’s submission was to the effect that the delegate had said, implicitly, that:
In view of the application and the warrant, the best interests of the child would be met by her father being removed from the country, and because I must treat the child’s best interests as a primary consideration, I will cancel the visa.
In my view, the delegate’s words do not bear that interpretation. I am not persuaded that the delegate did treat the best interests of the child as a primary consideration.
Nor do I accept that the delegate considered the policy. While the pre-printed form partially summarised the policy, the delegate’s reasons do not reflect a consideration of that policy, or a deliberate decision not to apply the policy on some reasonable and proportionate basis.
That leaves the question of whether the policy was a mandatory consideration. The Minister submitted that it was not. The Minister submitted that Gray was distinguishable, because it concerned the policy framework relating to deportation, which, the Minister submitted, is quite different to the present situation where the policy expressly stated that:
there are no prescribed matters to which the delegate must have regard in considering whether to cancel a visa under s116.
By saying that there are no prescribed matters, the policy meant that there were no legislative provisions prescribing the matters to which delegates making decisions under s.116 of the Act must have regard.
However, the policy went on to state that:
It is policy that delegates take into account the following ten matters …
That is, although it was not a legislative requirement that certain matters be taken into account, it was a policy requirement.
The Minister relied on the following passage from page 204 of Gray, where French and Drummond JJ set out an extract from the relevant policy as follows:
16.The most important broad criteria on which judgments will be based are the nature of the crime; the possibility of recidivism; the contribution that the person has made to the community or may reasonably be expected to make in the future and the family and/or social ties that already exist. In particular the following factors will be taken into account when making a decision on whether a deportation order should be issued:
Ÿthe nature of the offence as outlined in paragraph 9 and the length of sentence imposed by the Court;
Ÿthe person’s previous general record and conduct;
Ÿthe risk of further offences;
Ÿthe extent of rehabilitation already achieved, the prospect of further rehabilitation and positive contribution to the community the person may reasonably be expected to make;
Ÿthe length of lawful residence in Australia, the strength of family, social, business and other ties in Australia;
Ÿthe degree of hardship which would be caused to lawful residents of Australia (especially Australian citizens) known to be affected adversely by deportation or conversely the extent of support for deportation from persons directly affected;
Ÿany unreasonable hardship the offender would suffer;
Ÿties with other countries;
Ÿthe relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government;
Ÿthe likelihood that deportation of the offender would prevent or inhibit the commission of like offences by other persons.
This list is not exhaustive; if relevant, other factors that come to notice will be taken into account in individual cases.”
The Minister argued that Gray was distinguishable, because it clearly concerned the deportation of criminals. While the bolded passage from Gray set out in paragraph 35 above is cast in general terms that would apply to all migration decisions, the passage concludes with the more circumscribed words that:
In the case of the power to deport non-citizens convicted of criminal offences, the existence and content of a lawful criminal deportation policy is a matter the Tribunal is bound to take into account and to give such weight as it thinks proper having regard to all the circumstances of the case. …
Gray has been cited in numerous cases including, for example, in DFTD v Minister for Home Affairs [2020] FCA 859 by Snaden J at [59] where his Honour said:
There are obvious points of difference separating Gray from the present case. In Gray, the policy of which the Tribunal was bound to take account was one specifically aimed at the exercise of the power that was in issue in that case. It was one whose development and promulgation the legislature was presumed to have contemplated; and to which it was presumed to have intended that decision makers would give consideration in the course of exercising the power. Here, by contrast, the Non-Refoulement Policy exists as an incident of commitments that Australia has made to other nations. It exists independently of the power conferred by s 501CA(4) of the Act.
The distinction drawn in DFTD does not apply in the present case, as the relevant policy is headed:
s 116 – Deciding whether to cancel
The policy in the present case is clearly directed to the exercise of powers under s.116 of the Act. Additionally, the policy under consideration in Gray had been presented to the legislature. It is not clear whether the policy under consideration in the present matter had been presented to the legislature.
In any event, in Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141, Tracey J said at [35]:
Reliance was placed on the judgment of French and Drummond JJ in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; [1994] FCA 225. The case was concerned with the relevance of ministerial or governmental policy statements in the process of administrative decision-making. More specifically, the question was whether the Administrative Appeals Tribunal was bound to have regard to policy statements made in relation to what was then described as “criminal deportation” when dealing with appeals from deportation orders made by delegates of the Minister. Their Honours held that the Tribunal was not bound by governmental policy (at 205-206). Nonetheless, and subject to certain qualifications, they said (at 206) that:
... the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. In the case of the power to deport non-citizens convicted of criminal offences, the existence and content of a lawful criminal deportation policy is a matter the Tribunal is bound to take into account and to give such weight as it thinks proper having regard to all the circumstances of the case.
This decision pre-dated the enactment of s 499 of the Act. The relevant government policy on criminal deportation had been explained in Parliamentary statements made by Ministers. It may well be that the introduction of the scheme of ministerial directions under s 499 has displaced any common law requirements which might have bound decision-makers to take into account government policy. ...
In the present case, there were no submissions directed to whether s.499 of the Act might affect the application of Gray. In the absence of such submissions, and because the delegate’s decision will be set aside under ground 1, it is probably preferable that I do not address ground 2 further.

Conclusion

As the applicant’s first ground has been made out, the delegate’s decision will be set aside with costs.

I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 9 July 2020