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…

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] FCCA 1873
Decision Date: 9 July 2020

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Riley considered an application by Mr Shinde against the Minister for Immigration. The dispute concerned the Minister's decision to cancel Mr Shinde's visa, and whether the delegate who made the decision adequately considered the best interests of Mr Shinde's child as required by policy.

The court was required to determine whether the delegate, in considering the cancellation of Mr Shinde's visa, had given the best interests of the child the status of a primary consideration as mandated by the relevant policy. This involved assessing whether the delegate's assessment of the child's best interests was sufficiently distinct and given paramount importance, or if it was merely considered alongside other factors and family members.

Judge Riley reasoned that the pre-printed form used by the delegate did not explicitly state that the child's best interests were a primary consideration, only that they must be considered in accordance with the Convention on the Rights of the Child. Furthermore, the delegate's written reasons bundled the child with other family members when assessing hardship, and while the delegate noted the visa holder's aspirations regarding his children, this was found to be insufficient to demonstrate that their best interests had been treated as a primary consideration. The court found that simply acknowledging the visa holder's wishes regarding his children did not equate to a primary consideration of those best interests.

Orders

Orders of the court

Full text does not contain this section.

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

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.