Minister for Home Affairs v Sharma

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FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Sharma [2019] FCA 597

File number: VID 947 of 2018
Judge: ANASTASSIOU J
Date of judgment: 7 May 2019
Catchwords: ADMINISTRATIVE LAW – application for judicial review of decision of the Administrative Appeals Tribunal – character test – power of Tribunal to look behind guilty plea – application of s 501 of the Migration Act 1958 (Cth) – application of Direction 65
Legislation: Migration Act 1958 (Cth)
Cases cited:

Brown v Minister for Immigration & Citizenship (2009) 112 ALD 67

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155

Date of hearing: 1 March 2019
Date of last submissions: 21 January 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 39
Counsel for the Applicant: Mr R Knowles
Counsel for the First Respondent: Mr A Aleksov
Counsel for the Second Respondent: The second respondent did not appear

ORDERS

VID 947 of 2018
BETWEEN:

MINISTER FOR HOME AFFAIRS

Applicant
AND:

AJAY SHARMA

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

ANASTASSIOU J

DATE OF ORDER:

7 MAY 2019

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs of this application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ANASTASSIOU J:

  1. On 2 August 2018, the applicant, the Minister for Home Affairs, applied to this Court for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal.  The Tribunal upheld an appeal against a decision of a delegate of the Minister denying the first respondent, Mr Sharma, a Partner (Temporary) (Class UK) visa. 

  2. For the reasons that follow the application for judicial review is refused.

    BACKGROUND

  3. On 7 October 2009, the first respondent, a citizen of India, arrived in Australia on a Student (Class TU) visa.  He was subsequently provided a further student visa.

  4. On 28 April 2014, the first respondent married an Australian Citizen. On 13 November 2014, the first respondent lodged an application for a partner visa with the Minister for Immigration and Border Protection, whose relevant responsibilities have since been assigned to the Minister.  The visa was sponsored by the first respondent’s then wife.

  5. On 5 March 2015, the first respondent’s then wife gave birth to their son. 

  6. In July 2015 the first respondent and his then wife separated and she withdrew her sponsorship of the visa.

  7. On 7 January 2016, the first respondent was charged with four offences of Recklessly Causing Injury to his son, to which the first respondent eventually pleaded guilty, on or around 22 December 2016.  

  8. The first respondent was ordered to serve a 12-month community corrections order but no conviction was recorded.  The details and procedural history of these offences are described below. 

  9. On 11 September 2017 the Minister provided the first respondent with a

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Details
Case
[2019] FCA 597
Decision Date

CaseChat Overview and Summary

The case of Minister for Home Affairs v Sharma involved the Minister for Home Affairs seeking judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning the first respondent's application for a partner visa. The AAT had upheld the Minister's decision to refuse the visa on the grounds that the first respondent did not meet the character test under the Migration Act 1958 (Cth). This was due to the risk that if allowed to remain in Australia, the first respondent would engage in criminal conduct. The first respondent, a citizen of India, had previously pleaded guilty to charges of recklessly causing injury to his son, and the Minister had concluded that this posed a risk to public safety.

The key legal issues before the court were whether the AAT had erred in its application of the law by looking behind the first respondent's guilty pleas, misapplying section 501 of the Migration Act, and misapplying Direction 65 of the Migration Regulations. The applicant argued that the AAT had incorrectly assessed the first respondent's character by considering evidence that contradicted his guilty pleas and had failed to properly apply the legal standards set out in the Act and Direction 65. The court needed to determine if the AAT's decision was legally sound and whether it was based on appropriate considerations.

The court held that the AAT had not erred in its decision. It found that the AAT was entitled to consider the evidence presented by the first respondent, including his admissions about lying to the police regarding the circumstances of the injury to his son. The court confirmed that the AAT was not bound by the first respondent's guilty pleas and could look behind them when assessing the risk posed by the first respondent. Additionally, the court found that the AAT had correctly applied the relevant provisions of the Act and Direction 65. The court concluded that the AAT's decision was not affected by jurisdictional error and was legally sound.

The final orders of the court were that the application for judicial review be dismissed and that the applicant pay the first respondent's costs of the application. This decision confirmed the AAT's authority to consider all relevant evidence when assessing an applicant's character and upheld the Minister's decision to refuse the first respondent's visa application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the first respondent’s costs of this application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow the application for judicial review is refused. BACKGROUND On 7 October 2009, the first respondent, a citizen of India, arrived in Australia on a Student (Class TU) visa. He was subsequently provided a further student visa. On 28 April 2014, the first respondent married an Australian Citizen. On 13 November 2014, the first respondent lodged an application for a partner visa with the Minister for Immigration and Border Protection, whose relevant responsibilities have since been assigned to the Minister. The visa was sponsored by the first respondent’s then wife. On 5 March 2015, the first respondent’s then wife gave birth to their son. In July 2015 the first respondent and his then wife separated and she withdrew her sponsorship of the visa. On 7 January 2016, the first respondent was charged with four offences of Recklessly Causing Injury to his son, to which the first respondent eventually pleaded guilty, on or around 22 December 2016. The first respondent was ordered to serve a 12-month community corrections order but no conviction was recorded. The details and procedural history of these offences are described below. On 11 September 2017 the Minister provided the first respondent with a Notice of Intention to Consider Refusal. In brief, the Notice stated that “the Department … holds information about your criminal history listed at the end of this notice, which suggests that you may not pass the character test by virtue of s 501(6)(d) of the Migration Act”. The Notice contains text from (i) to subsection 501(6)(d) of the Migration Act 1958 (Cth), which relevantly states that “in the event the [applicant] were allowed to enter or to remain in Australia, there is a risk that the [applicant] would … (i) engage in criminal conduct in Australia …” The Notice attached several documents relevant to the charges. On 9 October 2017 the first respondent provided a response to the Notice through his lawyer Carina Ford. The response stated that three factors should be considered by the Minister in determining whether to refuse the first respondent’s visa application, being the Magistrate’s remarks in determining what punishment to impose on the first respondent, a psychological assessment of the first respondent, and the fact that he had completed various behaviour change programs. The balance of the letter described the bases for these factors. On 22 March 2018, a delegate of the Minister made a decision under s 501(1) of the Act refusing to grant the first respondent a partner visa. The delegate was not satisfied that the first respondent passed the ‘character test’ contained in s 501(6), as the delegate found that if the first respondent were “allowed to … remain in Australia, there is a risk that [he] would engage in criminal conduct in Australia”: s 501(1)(d)(i) of the Act. In coming to this conclusion, the delegate had regard to, inter alia, the charges. Further, the delegate was not satisfied that other reasons existed to exercise the discretionary power to grant the visa having regard to the factors set out in Ministerial Direction No. 65 (Direction 65), which the delegate was bound to consider: s 499(2A) of the Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

By its Notice of Appeal, the applicant seeks to impugn the Tribunal’s decision on the following ground: “1. The Tribunal's decision dated 5 July 2018 (the Tribunal's decision) is affected by jurisdictional error because the Tribunal applied the wrong legal test or failed to take into account a relevant consideration or took into account an irrelevant consideration or otherwise constructively failed to exercise its jurisdiction.”(particulars omitted) The ground is particularised with respect to three aspects of the Tribunal’s reasons, namely that the Tribunal:(1)impermissibly looked behind the first respondent’s guilty pleas; (2)misapplied s 501 of the Act; and(3)misapplied Direction 65. Each of these grounds is considered in turn below. Ground One – the Tribunal impermissibly looked behind the first respondent’s guilty pleas The particulars under Ground One, aside from repeating the background to the proceeding, state as follows: “In so deciding [for the first respondent], the Tribunal accepted the first respondent's evidence that, in making admissions about recklessly causing injuries to his son, he had lied to police about, in particular, the circumstances in which his son's ankle had been broken: see, in particular, [70] and [78]-[80]. In doing so, the Tribunal impermissibly looked behind the first respondent's guilty pleas to the Magistrates' Court. …” The applicant submits that this analysis was in error, as the first respondent did not discharge the onus of proof necessary to enliven the power to look behind the guilty pleas. It is well established that there are limitations on the circumstances in which an administrative decision-maker may make findings inconsistent with facts underpinning a criminal sentence. In HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 Bromberg J at [78] reviewed the relevant recent authorities from which the following categories may be distilled:“(1)Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.(2)Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.” This statement adopted the approach taken by the Victorian Court of Appeal in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155. In the present case, as the applicant correctly accepted, the Tribunal’s exercise of power is within the second of the above categories. The fact of the conviction creates a ‘heavy onus’ on the party seeking to agitate an alternate view of the facts forming the necessary basis of that conviction.

Ratio Decidendi

Legal Principle Established

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