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The visa application of a 29-year-old Indian national was refused because he had admitted to causing hurt to his 3-month-old son. But the Tribunal has now found he had lied in order to prevent his son from being taken away.
Shamsher Kainth, MP Singh

9 Jul 2018 - 5:03 PM  UPDATED 15 Jul 2018 - 12:16 PM

An Indian national facing imminent deportation after pleading guilty to causing harm to his own infant son has been granted a reprieve.

Mr Sharma* whose November 2014 partner visa application was refused on the basis of him pleading guilty to causing harm to his son has now had that decision overturned by the Administrative Appeals Tribunal.

In overturning the decision, Dr Damien Cremean, Senior Member of the AAT said it was a mistaken case of child abuse.

In July 2015, officials of Department of Health and Human Services got concerned after noticing a bruise on his three-month-old son’s cheek and back and Mr Sharma was told not to live with his wife and son.

A couple of days later, the child was found to have a healing fracture on his ankle.

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Mr Sharma- in immigration detention at that time- told the Tribunal that his wife then contacted him and said that if one of them did not take the blame for the child’s condition, their son would be taken away from them both.

He told the police that he had hurt his son because the child annoyed him. 

Mr Sharma pleaded guilty to the charge of causing injury to his son and he was released on a 12-month Community Corrections Order in December 2016.

After the Department of Home Affairs refused his partner visa application in March 2018, Mr Sharma told the AAT that he had lied to the police in order to prevent his son from being taken away from both himself and his wife. He said he would be devastated if he was forced to return to India. 

"I know that this is not in the best interest of [my son] because I believe I will [have] a positive influence in his life," he said.

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The Department of Immigration and Border Protection said Sagar Shah met all the requirements for Australian citizenship, except one.

The Department’s lawyer told the Tribunal that Mr Sharma was an overall risk to the Australian community such that it would need protection unless Mr Sharma is deported.

Senior Member Dr Cremean said the Department’s submission was “fanciful and unreal and without regard to the evidence.”

The AAT said while the authorities should act swiftly in case of child abuse, but sometimes those may be mistaken cases of child abuse.

“I accept the Applicant’s explanation that the bruising on the Applicant’s son’s face occurred because he pinched the child’s cheek,” said Dr Cremean

“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.”

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The Indian man and his Australian partner believe their application was deliberately prolonged, and then, the break in their cohabitation was used against them.

While Mr Sharma had told the police that he had held his son from his ankle which caused a fracture, the Tribunal accepted that he, in reality, didn’t know how it occurred.

A psychologist’s report also concluded that the bruising on his son’s back as due to panic by Mr Sharma and not due to frustration.

SBS Punjabi contacted Mr Sharma’s solicitor Leah Perkins but she declined to comment.

In directing the Department of Home Affairs not to refuse his visa, the AAT said Mr Sharma poses no threat to children.

“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.”

*Full name not revealed in order to protect his identity.

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