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The Federal Court has pushed back the Home Affairs Minister’s bid to refuse an Indian man’s visa who pleaded guilty to causing hurt to his three-month-old son. It was found that the man falsely accepted he hurt his son in order to prevent the child from being taken away from his wife.
16 May 2019 - 1:26 PM  UPDATED 16 May 2019 - 1:26 PM

An Indian national who was considered a “risk to the community” and faced deportation after pleading guilty to causing harm to his own infant son will not be deported after the court dismissed the Home Affairs Minister’s appeal against handing him the visa.

Mr Sharma*, whose November 2014 partner visa application was refused on the basis of him pleading guilty to causing harm to his three-month-old son first had the visa refusal overturned last year when the Administrative Appeals Tribunal ruled in his favour. The decision has now been upheld by the Federal Court of Australia, refusing an appeal by the Minister for Home Affairs.

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

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

Mr Sharma said his wife had told him 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.

His partner visa application was refused in March 2018 based on his guilty plea. But during the hearing of his case, he told the Tribunal that he had lied to the police in order to prevent his son from being taken away from both himself and his wife.

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The lawyer for the Department of Home Affairs said Mr Sharma was an overall risk to the Australian community such that it would need protection unless he was deported.

However, the AAT rejected the submission and said it was “fanciful and unreal and without regard to the evidence” and that it was a mistaken case of child abuse.

The explanation was accepted that Mr Sharma pinched his son’s cheek that caused bruising and that the bruising on his back occurred because Mr Sharma panicked over his son’s possible choking.

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.

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.”

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The Federal Court of Australia said it saw “no reason to disturb” the key factual finding by the Tribunal that Mr Sharma accepted responsibility for causing harm to the child in order to prevent him from being taken away.

The Court dismissed the appeal by the Minister for Home Affairs last week.

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

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