Sharma and Minister for Immigration and Border Protection (Migration)

[2018] AATA 2110

Sharma and Minister for Immigration and Border Protection (Migration) [2018] AATA 2110 (5 July 2018)

Division:GENERAL DIVISION

File Number:           2018/2088

Re:AJAY SHARMA

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:5 July 2018

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the Applicant not be refused a Partner (Temporary) (Class UK) visa under s 501(1) of the Migration Act 1958 (Cth).

[sgd]........................................................................

Dr Damien Cremean, Senior Member

Catchwords

MIGRATION – visa cancellation — offences against child — plea of guilty — character test — best interests of minor children — community expectations — decision set aside

Legislation

Migration Act 1958 (Cth) s 501

Secondary Materials

Minister for Immigration and Border Protection, Ministerial Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of mandatory cancellation of a visa under s 501CA, 22 December 2014

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

5 July 2018

BACKGROUND

1. The Applicant, Mr Ajay Sharma, makes an application for review of a decision of a delegate of the Respondent, the Minister for Immigration and Border Protection (the Minister). The decision was made on 22 March 2018 under s 501(1) of the Migration Act 1958 (Cth) (the Act) to refuse his application for a Partner (Temporary) (Class UK) visa.

2. Mr Sharma’s visa was refused on the basis that he failed the character test under s 501(6)(d)(i) of the Act, as the delegate found that there was a risk that Mr Sharma would engage in criminal conduct if he were allowed to remain in Australia.

3. The discretion to cancel Mr Sharma’s visa is guided by Ministerial Direction No.65 (the Direction), which the Tribunal is bound to apply in accordance with s 499(2A) of the Act.

4. Paragraph 8(1) of the Direction specifies that primary and other considerations must be taken into account when considering whether to exercise the discretion. Paragraph 11 of the Direction provides that these considerations include:

   ·protection of the Australian community from criminal or other serious conduct;

   ·the best interests of minor children in Australia; and

   ·the expectations of the Australian community.

   These primary considerations should generally be given greater weight when compared to other considerations as specified in paragraph 8(4) of the Direction.

5. Paragraph 8(2) of the Direction specifies that in applying primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.

6. Regarding the risk of future criminal conduct, para 6(2) of Annex A of the Direction states the grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person would engage in such conduct if allowed to remain in Australia.

   Mr Sharma

7. Mr Sharma is an Indian national. He was born on 22 September 1988.

8. He first came to Australia on 7 October 2009.

9. On 13 November 2014 he lodged a combined application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa.

10. His wife, Sarah Spiteri, is an Australian citizen. She is aged 37 and was born on 27 November 1981.

11. Mr Sharma and Ms Spiteri married in the Melbourne Registry Office on 28 April 2014. This was followed by a small ceremony with friends.

12. No one from Mr Sharma’s family or from Ms Spiteri’s family knew that the marriage was taking place.

13. Mr Sharma and Ms Spiteri had met one another working at a café called Duchess of Spotswood.

14. On 5 March 2015 their son was born at the Bacchus Marsh and Melton Regional Hospital in Victoria.

15. A short time after noticing a bruise on the child’s cheek, they were visited on 20 July 2015 by a Ms M Bamford, a government official with the Department of Health and Human Services (the Department). Ms Bamford was concerned to find out more about how         Mr Sharma and Ms Spiteri were caring for their child.

16. When Ms Bamford attended the house again on 22 July 2015, she noticed bruising on the Applicant’s son’s back.

17. After this the Department requested that Mr Sharma not live with his wife, so he went to stay with a friend.

18. A full body check of the child was undertaken at the Royal Children’s Hospital by            Dr Joanna Tully, paediatrician, on 23 July 2015. It was discovered that the Applicant’s son had suffered what appeared to be a fractured ankle. Further testing revealed this to be a healing fracture.

19. Mr Sharma says that his wife then contacted him and said that if one of them did not take the blame for the child’s condition, the Applicant’s son would be taken away from them both.

20. As Mr Sharma had admitted to the bruising, he decided to admit to the other injury as well.

21. Victoria Police followed the matter up and Mr Sharma made a statement in which he said he had hurt his son because his son had annoyed him.

22. Following this, Ms Spiteri took out an intervention order against Mr Sharma, and the couple separated.

23. Subsequently, Mr Sharma was charged with four offences of recklessly causing injury to his son.

24. Mr Sharma had intended to plead not guilty to the ankle injury, but later changed his plea to guilty and received a sentencing indication from the Magistrate.

25. On 22 December 2016, following his pleas of guilty, Mr Sharma was released on a 12-month Community Corrections Order with a condition that he obey the directions of the Department.

    Issue and Contentions

26. The central issue in this matter is whether Mr Sharma satisfies the character test in s 501(6)(d) of the Act.

27. Mr Brown for the Respondent Minister contended that Mr Sharma fails this test based on his criminal history and its nature, and submitted that the decision under review should be affirmed. Mr Sharma’s criminal history, he said, is evidence of someone struggling with parenting.

28. Mr Gilbert SC for Mr Sharma on the other hand, contended that in the circumstances, considering all the evidence before the Tribunal, Mr Sharma does satisfy the character test – assuming the ground in s 501(6)(d)(i) is enlivened in this case. Accordingly, he submitted that the decision under review should be set aside and the matter remitted.

    Hearing

29. At the hearing the Applicant gave affirmed evidence with the assistance of a Punjabi interpreter.

30. Affirmed evidence also was given by Mr M Thompson, real estate agent; Ms S Chandel, business proprietor of Duchess in Spotswood ; and Mr S Singh, friend and security guard.

31. Sworn evidence was given by Mr Patrick Newton, psychologist.

32. The Respondent Minister called no witnesses.

33. Ms Spiteri was not called to give evidence by either party; and the Applicant’s son being a minor, could not give evidence.

34. The G-Documents and Supplementary and Further Supplementary Documents submitted by the Respondent were received into evidence.

35. Dr Tully, who prepared a report on 23 July 2017 contained in the G-Documents, was not called to give evidence either.

36. A recording of the Magistrate’s sentencing remarks on 20 December 2016 and                22 December 2016 was played to the Tribunal, a transcript of which is also contained in the G-Documents.

37. A series of colour photographs, repeated in black and white in the G-Documents, was also viewed by the Tribunal.

    Evidence

38. The Applicant, who is currently in detention, confirmed the contents of his Statutory Declaration made on 9 October 2017.

39. In his Declaration he said that he and his wife after marriage decided we wanted to have a baby as soon as possible… given Sarah was in her mid-30’s at the time…

40. Mr Sharma says that after noticing a bruise on his son’s face he realised he may have been playing too roughly with him when being affectionate (squeezing his cheek). He told the Department this and said it might have been my fault.

41. On another occasion Mr Sharma says after a bruise was discovered on his son’s back, he explained to the Department there had been an incident when he was feeding the child and he panicked as he began to choke. He says that initially I tapped his back but it did not seem to help so I formed my hand into a fist and tapped his back more firmly which seemed to relieve him straight away.

42. After a full body assessment at the hospital it was discovered that the Applicant’s son had a healing fracture in his right ankle. Mr Sharma admitted to causing this, saying that his son had been annoying him. Mr Sharma stated that he only said this to prevent <the Applicant’s son> being taken from us both, as his wife had told him that one of them needed to take the blame for the injuries.

43. He says he realizes I have made many mistakes as a new parent and I care for my son unconditionally and want him to have the best life he can…I deeply regret that I caused harm to my son, I never intended to hurt him.

44. He says that if he is forced to return to India I will be devastated and I know that this is not in the best interest of <the Applicant’s son> because I believe I will [sic] a positive influence and figure in his life.

45. In oral evidence Mr Sharma said he needs to be available for his son and that there is no risk I will harm him in the future. He said he had undertaken three different courses to help him with various matters, including parenting skills, which he intended to keep working on to improve.

46. Under cross-examination Mr Sharma agreed he may have been too rough with his son in pinching him on the cheek, but he stood by his account of only tapping him on the back maybe three times.

47. He said that it was in fact a lie when he told police that he had picked his son up by the ankle, thereby causing him his ankle injury.

48. In re-examination he said he could not continue to financially support his son if he (Mr Sharma) was required to return to India but he said I want to support him morally, financially and help him achieve his goals in life.

49. Mr Thompson, who was a primary school teacher and is now a real estate agent gave evidence confirming his Statutory Declaration made on 4 June 2018.

50. He said in evidence he had come to know Mr Sharma through the café where Mr Sharma worked, the Duchess of Spotswood.

51. He had seen Mr Sharma on many occasions in the presence of small children, with whom he interacted normally.

52. Ms Chandel in oral evidence confirmed the contents of her statement of 5 October 2017.

53. In her oral evidence she described Mr Sharma as a great employee of over seven years, who did not get angry. She said he was more like a son to her own parents.

54. She said she had seen Mr Sharma with his wife and son, and had seen how Mr Sharma and his son interact.

55. She said that if Mr Sharma were to return to India, consideration would need to be given to either recruiting a replacement employee, or closing the business.

56. Mr Singh in oral evidence said Mr Sharma and his son relate well to one another - they are good together - and he added that looking after a young child can be very hard.

57. Mr Newton gave sworn evidence in which he verified the contents of his report dated       29 May 2018.

58. Mr Newton’s expert qualifications as a psychologist were not in dispute.

59. In the course of his report he said his comprehensive review suggests that Mr Sharma would be at Low Risk for violent recidivism. Beyond his criminal history, there are no Historical factors of note.

60. In his oral evidence Mr Newton said he had read all the various documents he had been given in detail.

61. He said that Mr Sharma was at a low risk of reoffending but that someone could never be given a zero risk. Mr Sharma was however in his view a low risk amongst the low.

62. Mr Newton said he regarded Mr Sharma as a well-controlled person with no signs of irritability.

63. Under cross-examination Mr Newton said he regarded Mr Sharma as a relaxed individual and not as an angry man.

64. He said he regarded Mr Sharma’s actions resulting in bruising on his son’s back as due to panic not due to frustration.

65. He said he considered that the gravity of his offences was not lost on Mr Sharma and that he spoke of his son with love, but that he (Mr Newton) had not actually seen the two of them together.

    Analysis

66. Authorities must act swiftly and effectively when they come across cases of child abuse.

67. Occasionally however, it is possible they are mistaken in identifying a case as one of child abuse.

68. I regard this case as one mistaken for a case of child abuse.

69. But the Applicant is himself responsible for this in the answers he gave the police. The police acted on the information they were given and charged him accordingly. Had he told the truth that likely would not have happened.

70. Having said that, I observed the Applicant giving evidence very closely and I am quite satisfied he is a witness of truth. That is to say, I also believe he is telling me the truth when he says he lied to the police.

71. I have seen the photographs of the bruising on the Applicant’s son’s face and back.

72. The bruising is fading in the photographs and I expect it would have been more visible earlier on.

73. I accept the Applicant’s explanation that the bruising on the Applicant’s son’s face occurred because he pinched the child’s cheek.

74. I have something to say about Dr Tully’s letter below, which I have found generally unhelpful.

75. I also accept the Applicant’s explanation that the bruising on the Applicant’s son’s back occurred because of his panic over the child possibly choking. I consider that striking the child’s back would have been forceful enough, but how forceful I am unable to say. Again, I indicate that Dr Tully’s letter does not greatly assist me.

76. I consider Mr Newton is correct in his summation that the bruising on the Applicant’s son’s back is due to panic not frustration.

77. I do not regard either of these bruisings therefore as a case of child abuse. Neither occurred in my view as a result of an action done with intent to hurt the Applicant’s son. The first occurred out of a gesture of affection and the second occurred out of panic.

78. Regarding the Applicant’s son’s healing ankle fracture, I accept that Mr Sharma is telling me the truth when he indicated he does not in reality know how this occurred, but that it may have happened through the child playing too rigorously in a bouncer.

79. Of course, he told the police that he caused it when he picked the Applicant’s son up and that he was annoyed with him. But I accept as plausible his explanation for saying this, namely that his wife had told him that unless one of them admitted to causing it, the child would be taken from both of them. She asked him to take the blame because he had already admitted to causing the bruising. Therefore, he said he told the police he was responsible. But I accept his evidence that this was a lie he told the police because of what his wife said to him.

80. There is nothing else in the evidence which explains how the Applicant’s son came to have a fractured ankle—except for surmise by Dr Tully—and I am unable to make any finding of fact in relation to it.

81. In her report Dr Tully writes that the commonest cause of a metaphyseal corner fracture of the tibia is inflicted injury, usually forceful shaking. She writes that it is not commonly the result of direct blunt force trauma. Fractures of this kind she writes do not occur as a result of gentle bouncing in a baby bouncer.

82. These are vague generalisations—commonest cause; usually forceful; commonly the result; gentle bouncing. These are expressions of uncertain import. I cannot relate these comments directly to the case of the Applicant’s son.

83. Moreover, Dr Tully discloses as her sources Ms Spiteri, Ms Bamford, and the police.

84. Mr Sharma was not consulted by Dr Tully. Had she consulted him, I am satisfied he would have had other things to say. In particular, he could have corrected Dr Tully when she writes that he hit the Applicant’s son really hard on the back. She writes she was told this by Detective Senior Constable McGuire. In fact, Mr Sharma told the police officer--and it is recorded by her--that he only tapped the Applicant’s son on the back.

85. Dr Tully also writes that Mr Sharma stated that he might have caused the bruising on <the Applicant’s son>’s back during winding (burping). This is not possible, if Dr Tully means that Mr Sharma stated this to her, because the two have never met.

86. So I have various misgivings about  Dr Tully’s report.  

87. In any event, Dr Tully was not called to give evidence and was not given any opportunity to explain her report and to clarify matters.

88. Having seen and heard the witnesses who did give evidence, I consider I am well placed to make the correct or preferable decision in this matter. Namely, that the decision under review must be set aside.

89. I am satisfied that the events involving the Applicant’s son occurred in a context of innocent explanation - not one of intentionally inflicted harm.

90. I have taken into account the learned Magistrate’s sentencing remarks.

91. I note that he recorded no conviction against Mr Sharma.

92. I am satisfied that Mr Sharma is a person of good character with no prior convictions who has otherwise led a blame-free life.

93. I accept that the Applicant is of good character based on what the witnesses have told me, in particular Mr Thompson, and what appears also in character references in the        G-Documents.

94. I am satisfied Mr Sharma is not an angry or bad-tempered man, and in that regard I rely in particular on the evidence of Mr Newton.

95. I accept Mr Sharma does love the Applicant’s son, would not intentionally hurt him, and has undertaken appropriate parenting training.

96. Finally, I accept that harm could come to the Applicant’s son if Mr Sharma was to be deported, in that he would no longer have a fatherly influence in his life living in Australia. This would place the Applicant’s son’s financial care in jeopardy.

97. I accept Mr Gilbert SC’s submission that members of the community, knowing all of the evidence in this case, would have an expectation that Mr Sharma should remain in Australia.

98. It is generally regarded as appropriate by the community that a child have both parents available. I acknowledge that much of our family law system is based on this premise.

99. In my view, for the reasons I have given, it is in the best interests of the Applicant’s son, a minor that his father Mr Sharma remain free to live in Australia.

100. It follows that I cannot agree with Mr Brown’s submission that there is an overall risk to the Australian community such that it would need protection unless Mr Sharma is deported.

101. This submission seems fanciful and unreal and without regard to the evidence. I cannot think that it gains any credence by referring to what may be the case with any further children of Mr Sharma.  

102. I regard any future risk as only minimal and remote, given that no one is a zero-risk. I accept Mr Newton’s evidence, who I note assessed Mr Sharma as a low risk among the low.

103. I am unable to see any evidence that Mr Sharma is a danger to anyone else’s children—in fact the evidence is to the contrary - or to anyone else in the community. Mr Sharma has found himself in trouble in an entirely private domestic setting.

104. However, I do agree with Mr Brown that it is important in cases of this kind to take great care in reaching a decision.

     Conclusion

105. My analysis leads me to conclude that the primary considerations in the Direction do not call for the deportation of Mr Sharma.

106. There is no basis for me in the evidence to reach a conclusion that Mr Sharma would engage in criminal conduct if allowed to remain in Australia within the meaning of s 501(6)(d)(i) of the Act.

107. The evidence before me points entirely to the contrary.

108. The Tribunal sets aside the decision under review and in substitution decides that the Applicant not be refused a Partner (Temporary)(Class UK) visa under s 501(1) of the Act.

109.    I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

[sgd]…………………………………………….
Associate

Dated:  5 July 2018

Date of hearing:	27 and 28 June 2018
Counsel for the Applicant:	Mr Guy Gilbert SC
Solicitors for the Applicant:	Ms Leah Perkins - Carina Ford Immigration Lawyers
Solicitor for the Respondent:	Mr David Brown - Australian Government Solicitor