Federal Court: the respondent pleaded guilty to recklessly causing injuries to his child, which led to the refusal of his visa application; the AAT accepted the respondent's argument that he had only pleaded guilty because he thought that his child would otherwise be taken away from him; the Minister applied for judicial review...
Court: Federal Court of Australia
Applicant: Minister for Home Affairs
Respondents: AJAY SHARMA; AAT
Judgement (for the respondents): ANASTASSIOU J
Summary and discussion
The first respondent (the respondent) applied for visa subclass 820, after which his then wife (the sponsor) gave birth to their son. The respondent was then charged with four offences of Recklessly Causing Injury to his son, to which he pleaded guilty.
'The [respondent] was ordered to serve a 12-month community corrections order but no conviction was recorded'. Subsequently, the Minister refused to grant the 820 visa after finding that if the respondent were 'allowed to … remain in Australia, there [was] a risk that [he] would engage in criminal conduct in Australia”: s 501(6)(d)(i). The charges played a central role in that finding.
The respondent applied to the AAT for review of the Minister's decision, arguing that 'he had only pleaded guilty to the charges because his ex-wife had told him to take the blame for causing the injuries to their son, as if he did not do so their son would be taken away from them by the Department of Human Services'.
The AAT accepted the respondent's evidence as to why he had pleaded guilty and set aside the Minister's decision. The Minister then applied to the Federal Court (FCA) for judicial review of the AAT's decision, arguing among other things that such a decision was affected by jurisdictional error because the Tribunal 'impermissibly looked behind the first respondent’s guilty pleas' (Ground 1).
Ground one was particularised 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,  and -. In doing so, the Tribunal impermissibly looked behind the first respondent's guilty pleas to the Magistrates' Court. …”
The FCA held as follows:
20 It is well established that [...]
The remainder of this article is only available to Case Law and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Where GST applies, the above amounts are inclusive of GST.
Basic Content includes basic news, some media articles and selected announcements.
Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.
Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.
Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.
If you already have a Case Law or Platinum subscription, click on 'Login' below.