Divesh Sharma v Minister for Immigration and Multicultural Affairs
[2001] AATA 501
•7 June 2001
DECISION AND REASONS FOR DECISION [20001] AATA 501
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q00/980
GENERAL ADMINISTRATIVE DIVISION )
Re DIVESH SHARMA
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member
Date7 June 2001
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the visa applicant and that his visa application be reconsidered in an expedient manner in light of the Tribunal's findings of fact and rulings of law.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION - visa refusal - character grounds - seriousness of offence - time since conviction - risk of recidivism.
Migration Act 1958 s 501
REASONS FOR DECISION
7 June 2001 Deputy President DP Breen, Presidential Member
This was a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs dated 29 August 2000 to refuse Mr Daya Shankar Sharma a subclass 103 (parent) visa on character grounds. The appeal was brought by Dr Divesh Sharma, the visa applicant's son.
The matter was heard by me in Brisbane on 31 May and 1 June 2000. Mr P Chand, Migration Agent, represented the applicant while Mr B Cramer, Solicitor of Messrs Blake Dawson Waldron, represented the respondent Minister.
Oral evidence was taken from the visa applicant; the applicant; Mr LR Vayeshnoi, Assistant Minister to the Prime Minister and Mr A Tawkawa, Policeman. Both Mr Vayeshnoi and Mr Tawkawa gave evidence by phone from Fiji.
The following documents were taken into evidence:
Exhibit 1 "T" Documents
Exhibit 2 Statutory Declaration of Mr A Tawkawa
Exhibit 3 Documents from the Native Land Trust of Fiji
Mr Sharma is 59 years of age and a Fijian citizen of Indian descent. Mr Sharma's visa was refused under Section 501 of the Migration Act 1958 on the grounds that he was not of good character due to his criminal history. Mr Sharma's criminal history is as follows:
April 1973 Selling goods at more than the maximum price
Penalty: $75 fine, 2 months imprisonment in default
September 1980 Assault occasioning actual bodily harm
Penalty: Parties reconciled and proceedings terminated, bound over in the sum of $50
March 1988 Acting with intent to cause grievous bodily harm
Penalty: 12 months imprisonment suspended for 2 years. $200 fine with 6 months imprisonment in default
July 1991 Counselling another to commit an offence of assault
Penalty: 18 months imprisonment, suspended for 2 years. $40 fine with 40 days imprisonment in default
On his application for the visa, Mr Sharma said that he had a minor conviction for assault. However, the respondent did not rely on this failure to completely disclose the above criminal record as a basis for refusing the visa. The convictions in 1988 and 1991, with their subsequent sentences, mean that the visa applicant has a substantial criminal record as defined in subsection 501(7) and so is deemed to fail the character test. This subsection considers only the sentence imposed by the Court, not whether it was actually served. This subsection does not take into account the age of the conviction, nor does it allow for the Tribunal to enquire as o whether the offence was in fact committed. The Tribunal must accept the fact of the conviction. Therefore, the Tribunal is left to consider whether to exercise the discretion in favour of the applicant, notwithstanding that he fails the character test. Ministerial Direction No 17 – Visa Refusal and Cancellation under Section 501 applies to the exercise of the discretion.
There are three primary considerations under this Direction – protection of the Australian community, expectations of the Australian community and, where the applicant is involved in a parental relationship with any children, the best interest of those children.
Considering, firstly, the protection of the Australian community, the Tribunal must have regard to the nature and seriousness of the crimes committed, the risk of recidivism and the general deterrence effect that the cancellation of the visa will have on other non-citizens.
Under the Ministerial Direction, assault and counselling others to assault a person are considered very serious. On a general level, the Tribunal agrees with this assessment. However, the factual seriousness of an offence must be looked at on a case by case basis. A number of explanations were provided to the Tribunal for the convictions in 1988 and 1991. These explanations suggested that the crimes committed were not actually of the same level as the convictions detailed or that Mr Sharma did not in fact commit them. The convictions, as they are recorded, are what the Tribunal has to accept. All that the Tribunal notes from the explanation is that the offences arose out of situations involving Mr Sharma's mistress and another man she was having an affair with. The Tribunal is of the view that the best indicator of the seriousness of the offences is the sentence imposed by the Courts. In this case, suspended sentences were imposed and the fines were quite minimal, making them fairly minor examples of a very serious offence. As such, the Tribunal is persuaded to view them merely as relatively serious offences.
The Tribunal views the visa applicant's risk of recidivism as negligible, in that, he has not had a conviction in ten years. A number of references were provided by people within the visa applicant's community, although only one person gave oral evidence at the hearing. While it appears most of these people may have been unaware that the visa applicant had previous criminal convictions, it also seems clear that he is not regarded as a person of a criminal disposition within his community. The Tribunal does not rely heavily on these references but merely notes them as conforming with the Tribunal's conclusions about the visa applicant's more recent conduct.
While it appears that the visa applicant is fairly well known within his community and his visa refusal may be publicised to some extent, the general deterrence factor is only of marginal weight in this case. The refusal would only go to show that anyone with a criminal history, no matter how remote, might be refused entry on that basis – a fact which is already widely known.
The second primary consideration is the expectations of the Australian community. These expectations are that a non-citizen will obey Australian laws. Where there is a risk that this trust will be breached, or the crime which the person is convicted of is so abhorrent, it may be appropriate to refuse the visa.
It cannot be said that any of the matters the visa applicant has been convicted of are particularly abhorrent. As stated above, it is the Tribunal's view that the visa applicant is unlikely to breach the criminal law of Australia or any other laws for that matter. These provisions under the Migration Act are not designed to further punish an individual for their crimes but to protect the Australian community. In this case the refusal of the visa on these grounds would further penalise Mr Sharma. The Australian community is also of the view that if a person has paid the penalty ascribed to their crime and the actions are some time in the past, the person should be able to get on with their lives without that conviction still hanging over their heads. That is why some States have passed laws like the Criminal Law (Rehabilitation of Offenders) Act Qld 1986. Therefore, in the Tribunal's view, the community expectations would not preclude the granting of a visa to Mr Sharma.
The final primary consideration is not applicable in this case as all of Mr Sharma's children are over the age of 18 years.
Given that the offences under consideration are relatively serious, but that they are at least 10 years old, the risk of recidivism is low and the community expectations do not preclude a visa being granted, the primary considerations are weighed in the visa applicant's favour.
There are a number of secondary considerations which must also be taken into account, although one on its own cannot outweigh a primary consideration. The pertinent considerations are as follows:
(a)the extent of disruptions to the non-citizen's family, business and other ties the Australian community;
(b)the degree of hardship which would be caused to immediate family members lawfully resident in Australia;
(c)family composition of the non-citizen's family, both in Australia and overseas;
(d)any evidence of rehabilitation and any recent good conduct;
(e)whether the application is for a temporary visa or a permanent visa; and
(f)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances.
Mr Sharma has a son, a daughter-in-law, a daughter and a grand-daughter resident in Australia. His other son is resident in the United States. He currently has no business ties in Australia. While his ties to his current country are not specifically mentioned as a consideration under the Direction, that is not an exhaustive list and in the interests of natural justice, those ties can be taken into account. He currently has no business ties to Fiji, nor does he own any property there. He does have some extended family in Fiji. While it is true that his children would have the financial capacity to visit him occasionally in Fiji, they are concerned for their safety if they travelled there because of their Indian ethnicity. The current tension in Fiji, and the harassment of Indian Fijians is a matter which has been publicised internationally and the Tribunal is able to take judicial notice of this issue. The visa applicant's children currently support him financially and there is no reason to suspect that they will not do so once he comes to live in Australia. The application is for a permanent visa. However, the Tribunal does not see this fact as causing any concern and if contrary to the Tribunal's assessment Mr Sharma is involved in any criminal activity, his visa can easily be cancelled. The visa applicant's good conduct for the past ten years is a matter which the Tribunal has already taken into account.
The Tribunal places no great weight on any of the secondary considerations individually but finds that as a whole they are in favour of the visa applicant being granted the visa. As the primary considerations are also in favour of the visa applicant, the Tribunal is of the view that the discretion should be exercised in the visa applicant's favour.
For the above reasons the Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that the discretion under Section 501 of the Migration Act 1958 be exercised in favour of the visa applicant and that his visa application be reconsidered in an expedient manner in light of the Tribunal's findings of fact and rulings of law.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed: Emma Oettinger
AssociateDate/s of Hearing 31.5.01, 1.6.01
Date of Decision 7.6.01
Rep. for the Applicant Mr P Chand, Migration Agent
Solicitor for the Respondent Mr B Cramer, Messrs Blake Dawson Waldron
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