CJDM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 3092

CJDM and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3092 (29 September 2023)

Division:GENERAL DIVISION

File Number(s):      2023/5500

Re:CJDM

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:29 September 2023

Place:Sydney

The decision under review is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

.................................[SGD].......................................

Deputy President B W Rayment OAM KC

CATCHWORDS

MIGRATION – refusal to revoke mandatory cancellation – citizen of the Republic of Ireland – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth)

CASES

Hands v Minister for immigration and Border Protection [2018] FCAFC 225

SECONDARY MATERIALS

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

29 September 2023

1. The applicant is a citizen of the Republic of Ireland, who arrived in Australia in 2012 at the age of 20. He came here to improve his employment prospects. He has one child aged two and a half, and by orders of the Federal Circuit and Family Court of Australia his former partner has sole custody, the applicant to have only Facetime or such other electronic contact as may be agreed between the parents once per fortnight. If he should be released from immigration detention, he may seek to develop his relationship with the child including by application to the Court.

2. Because of a need to preserve the confidentiality of the child and his parents, I have decided to make a confidentiality order and to give the applicant a pseudonym. His son uses the applicant’s surname, as shown by the birth certificate.

3. Most of the applicant’s relatives still live in Ireland. He has one aunt in Sydney and she and her husband have three children. When he migrated to Australia he lived with them in Adelaide. I gathered that he remains on good terms with his aunt and her family. His parents have visited here to spend time with the applicant, as has his younger brother.

4. The applicant had a Class BS Subclass 801 Partner visa, which entitled him to reside permanently in Australia, to work and to have a Medicare card. It was the subject of mandatory cancellation on 22 July 2022 while the applicant was in prison, having been sentenced to 12 months imprisonment on 6 July 2022, a sentence which commenced on 19 May 2022, with a non-parole period of 6 months concluding on 18 November 2022. Various other concurrent sentences were imposed on the applicant as mentioned below.

5. On 18 November 2022 he was released from prison on parole and was taken into detention at Villawood Immigration Detention Centre, where he remains today.

6. He was invited by the Minister to make representations for the revocation of the cancellation of his visa. He did so and a delegate refused to revoke the cancellation of his visa, and the applicant has sought review of that decision in the Tribunal.

7. The applicant’s time in Australia falls into two distinct categories, before a workplace injury of May 2020, and after that time. In 2018 he fell in love with a lady of about his own age. They moved in together, and they conceived a child, a son, born on 8 April 2021. His former partner now works as a licenced real estate agent.

8. Apart from one mid-range PCA offence in 2018, for which he was fined and disqualified from driving for six months, his conduct was good, he worked hard and consistently, and made lasting friendships. I heard evidence from three friends he made in that period, and each of them said that he was honest, reliable, and a hard worker, and generally spoke well of him.

9. His work in Australia has been as a steel-fixer and formwork carpenter, and he has worked around the country on bridge-building. One of his friends was his supervisor in that trade. He said that he would again employ the applicant without hesitation. Not long before his workplace injury took place, the applicant had decided to start his own business and had lined up ten workmates to work for him.

10. He drank alcohol, and occasionally took marijuana, and still less frequently, took other drugs until he met his partner in 2018. He has taken no illegal drugs since he met his partner. He remained a drinker until his arrest in 2022, referred to below. His workplace injury led to him being prescribed strong opiates, and after his son was born, he weaned himself off those medications. He said that he had seen others with an opiate addiction, and that he did not want his son to be exposed to such a father. He went cold-turkey, putting up with withdrawal symptoms while still suffering from his workplace injuries. Today he has weaned himself off opiates, and has not taken illegal drugs for five years.

11. Alcohol remained his only vice. He told me that the last time he had a drink was 19 May 2022 when he was arrested and commenced imprisonment. He said that his time with alcohol then finished.

12. I mention that I treat the applicant as a truthful witness and accept his stated intentions for the future, as genuine intentions. He told me that if he is released he has the opportunity to spend three months on retreat with John Malone, when he hopes to reinforce his abstinence from alcohol, and his general rehabilitation. It seemed to me that, if he is released, taking up that opportunity is in his own interests and in the interests of his infant son, and may help him one day to reconcile with his partner, a thing which, as discussed below, he strongly desires.

    The events of May 2020

13. In May 2020, the applicant was injured at work. He was working on a windfarm, building steel formwork. He stepped on a small piece of concrete, fell down, feeling his right knee popping. There followed three separate surgeries in succession, all performed by an orthopaedic surgeon. The third surgery was performed in 2022. Delays to surgery were caused by the COVID period. He had a torn anterior cruciate ligament and a torn meniscus in his right knee. He was wholly incapacitated for work and received worker’s compensation payments. He was prescribed opiates which he took, as mentioned above, until around the time of the birth of his son.

14. The following material about the post-May 2020 period comes from the oral evidence of the applicant. The timeline is somewhat unclear, but I am satisfied that the large lines of what follows is correct.

15. He started drinking heavily as a form of self-medication. His discontinuance of the pain-killing medication led to symptoms of withdrawal. The second surgery failed, and caused him much pain, which did not diminish until after the third surgery. The second surgery led to bone loss and in the third surgery his surgeon took a segment from his left leg, which caused him to suffer pain in the left leg for a period. He suffered for a time short-term memory loss and osteoarthritis before the third surgery, and saw a psychiatrist for assistance. After the third surgery he described his situation as having recovered 70% of his muscle strength, after intensive rehabilitation. Today he still gets a reminder after 30 minutes of exercise. He was told to expect that he would be off work for a further 6-9 months after the third surgery. His partner went back to work. It was at that time that his partner went back to work while the applicant was still not working, and he then started to struggle, and his drinking increased further. His criminal offending commenced in October 2021. He was drunk at the time of all his offending. Those offences will be discussed in relation to the mandatory primary consideration of protection of the Australian community. No offence resulted in any injury to any person

16. Given that the applicant does not pass the character test in the light of his sentence of imprisonment, the question in this review is whether there is another reason to revoke the cancellation of the applicant’s visa, within the meaning of s 501CA(4)(b)(ii) of the Migration Act 1958. Direction 99 made by the Minister under s 499 of the Migration Act 1958 binds decision makers considering whether to revoke the cancellation of the applicant’s visa to take into account certain matters, informed by the principles set out in paragraph 5.2 of the Direction. I note those principles.

17. Primary considerations specified in the Direction should, in accordance with cl 7(2) of the Direction generally be given greater weight than the other considerations, which include those specified in section 9 of the Direction, where relevant. As will become apparent, the major important considerations are all primary considerations.

18. There are 5 primary considerations enumerated in cl 8 of the Direction, and I will commence these reasons by taking those same considerations in turn, where relevant.

19. The first such consideration is the protection of the Australian community, which is dealt with in cls 8.1, 8.1.1 and 8.1.2 of the Direction.

20. On 19 October 2021, after drinking at a bowling club he reversed out of the club carpark and hit another parked car. The car he was driving was a second-hand Ford Falcon. He did not realise that he had collided with another car when reversing. He was called back to the club and was abused by the owners of the other vehicle. He explained that his car was not yet insured and offered to pay for the damage. The owner of the other car asked continually by telephone for his insurance details. He took a taxi to their business premises being in a fit of rage about the harassment. His third surgery was due at that time. He did not set fire to the business premises and left. He also offered to buy the other car which he valued at about $3,000. Most of those facts appear in the corrective services report in the Supplementary G-Documents page 8. He was convicted of two offences on 25 January 2022 relating to the attempted damage by fire and also to driving with high range PCA (first offence) for which he was given an intensive corrections order for 12 months from 25 January 2022 and other orders noted at G-Documents page 41. No particulars of that offending are before the Tribunal.

21. Other orders were made on 25 January 2022 arising from an interaction with police discussed at Supplementary G-Documents page 8, for which the applicant was fined.

22. Other offending for which the applicant was sentenced as noted in [4] above is described by the remarks on sentence of Judge Arnott SC at G8 (pages 70-78) the terms of which I respectfully adopt as part of these reasons.

23. Thus the applicant has been sentenced for three PCA events in 2021 and 2022 of which two were for high-range PCA. He punched a hole in a door with his fist after a dispute with his partner when intoxicated with alcohol, conduct which was also a breach of an AVO put in place by police.

24. It seems clear that the injuries suffered by the applicant occasioned great pain, and the repeated surgeries, followed by his being prescribed strong painkillers, led to his increased drinking and ultimately led to his offending, imprisonment and the cancellation of his visa and he further loss of liberty while he has been in detention, not to mention the deprivation of access to his son, and also his partner’s loss of faith in him.

25. Turning in particular to the detailed provisions of cls 8.1,8.1.1 and 8.1.2 of the Direction, noting clause 8.1(1), it should be said first of all that the driving offences while intoxicated were very serious although fortunately no person was injured. The offences had the potential to kill or maim others, and posed a real risk to the community if they should be repeated. The punching of a hole in a door was clearly an expression of anger and frustration, but probably not, in my opinion, family violence as defined in the Direction. There was no harm done to the partner at all. It was no doubt the consequence of his being drunk, but it was not activity directed against the person. The sentences imposed on the applicant were appropriate and the drink-driving offending was repeated.

26. As to the likelihood of recidivism, it seems to me that a number of protective factors exist. If he abstains from alcohol, there is a very low risk of recidivism. He has a strong motive to avoid alcohol and well knows that his deportation is likely if he repeats drink-driving. The best way for him to achieve that result is to refrain from drinking, that is, to maintain abstinence, just as he has weaned himself from opiates, from drugs, and as he told me he has decided upon. A very potent protective factor relates to the applicant’s only son, with whom the applicant desires to have a continuing and loving relationship. If the applicant again becomes the man that he was before 2020, that should occur. After all, he has now largely recovered from the knee problem, which provoked his heavy drinking. It is over the period from about May 2020 to early 2022 that he became a heavy drinker, with disastrous results to his personal life. Another protective factor is his desire to reunite with his former partner, if that is possible. He said that he will not push her too hard or too quickly. When he resumes employment, that will be a further protective factor. So will the proposal to enter a retreat over three months after speaking to John Malone.

    Family violence (cl. 8.2)

27. The applicant told me he has not ever committed any act of violence against his former partner. There is no evidence to the contrary, I accept his evidence. Punching a door is not directed against a person and the offence of which he was convicted was drink-related and not repeated. His partner walked away when it occurred. Especially if he remains abstinent from alcohol, nothing of the kind is expected to occur again.

28. In any event, in case I am wrong about the construction of the family violence consideration, I will take it into account as if it applied.

    The strength, nature and duration of ties to Australia (cl 8.3)

29. This factor overlaps with the best interests of the applicant’s minor child, and also related to his now-estranged partner. The applicant told me that he still loves his former partner and is strongly desirous of reuniting with her. That will be impossible if he is deported.

30. As to his son, he told me that his son means everything to him. Deporting him would mean to the applicant that he would be unable to re-enter Australia without a visa permitting him to do so granted by the Minister personally. That would devastate the applicant. He would be reduced to fortnightly chats by Facetime or the like. That is no way for a child to have a proper relationship with his father.

    The best interests of the applicant’s son (cl 8.4)

31. I do not doubt that the applicant would be a good influence on his son if the applicant has reasonable contact with his son. If the child’s mother chooses one day to have the applicant back, that will be better still for the child and the father.

    Expectations of the Australian community (cl 8.5)

32. The expectations for this purpose are those stated in cl 8.5(1) and (2), (3) and (4). The applicant’s offending alone means that this factor does not favour the applicant, but rather favours non-revocation of the visa cancellation.

    Other considerations

33. None of the expressly mentioned other considerations are relevant. There are no protection obligations owed in respect of the applicant. I know of no impediments if he removed, other than his likely devastation about physical separation from his former partner, and his son, not to mention the loss of contact with friends he has made in this country.

34. There is no evidence of impact on victims or impact on Australia’s business interests.

35. It should be added that a relevant consideration not expressly mentioned in the Direction also affects this matter. Humanitarian considerations, such as were discussed in Hands v Minister for immigration and Border Protection [2018] FCAFC 225 at [3] per Allsop CJ are also proper to be borne in mind in the circumstances of this case.

    Balancing the considerations

36. In my opinion, the mandatory considerations favouring non-revocation of the cancellation are the expectations of the Australian community, and, subject to the protective factors discussed in relation to the first primary consideration, that consideration, and the family violence consideration which I take into account for reasons of precaution. The factors favouring revocation are those of clauses 8.3 and 8.4, together with the consideration mentioned in the previous paragraph. Taken together, in my opinion the ties to the community, the relationship with the applicant’s son and the possibility of salvaging the relationship with his former partner, and the humanitarian considerations outweigh the considerations which favour non-revocation. In my opinion, the correct or preferable decision is revoke the cancellation of the applicant’s visa.

    The decision under review is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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Associate

Dated: 29 September 2023

Date(s) of hearing:	26 September 2023
Applicant:	In person
Solicitors for the Respondent:	HWL Ebsworth Lawyers