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

The applicant, a citizen of the Republic of Ireland, arrived in Australia in 2012 at the age of 20 with the intention of improving his employment prospects. He has one child, a two-and-a-half-year-old, for whom his former partner has sole custody based on orders from the Federal Circuit and Family Court of Australia. The applicant is allowed only Facetime or other electronic contact with the child once per fortnight. He may seek to develop his relationship with the child through court application if released from immigration detention. To protect the child’s confidentiality, a confidentiality order has been issued, and the applicant has been given a pseudonym, which is also the surname used by the child according to the birth certificate.

Most of the applicant’s relatives still reside in Ireland. He has one aunt in Sydney, with whom he has a good relationship, and her family. When he first came to Australia, he lived with them in Adelaide. His parents and younger brother have also visited him in Australia. The applicant held a Class BS Subclass 801 Partner visa, which granted him permanent residence, work rights, and a Medicare card. However, this visa was canceled in July 2022 while he was serving a 12-month prison sentence. He had additional concurrent sentences.

He was released on parole on November 18, 2022, and taken into Villawood Immigration Detention Centre, where he remains. He made representations to the Minister for the revocation of his visa cancellation, which were denied by a delegate. He is now seeking a review of this decision in the Tribunal.

The applicant’s time in Australia can be divided into two distinct periods: before a workplace injury in May 2020 and after it. In 2018, he fell in love with a woman of his age, and they had a child together in April 2021. His former partner now works as a licensed real estate agent. Other than a mid-range PCA offense in 2018, for which he received a fine and a six-month driving disqualification, he had a good record. His friends from that period testified to his honesty, reliability, and hard work.

He worked as a steel-fixer and formwork carpenter, traveling around the country for bridge-building projects. One of his friends was his supervisor and stated that he would employ the applicant without hesitation. He had plans to start his own business and had gathered a team of ten colleagues for this venture before his workplace injury.

The applicant consumed alcohol and occasionally used marijuana, along with infrequent use of other drugs until he met his partner in 2018. He ceased taking illegal drugs at that time and decided to quit drinking in May 2022 when he was arrested. He expressed his commitment to sobriety and future rehabilitation and hopes to spend three months on a retreat with John Malone if released.

In May 2020, the applicant sustained a workplace injury while working on a windfarm. He had multiple surgeries for a torn anterior cruciate ligament and a torn meniscus in his right knee. These surgeries were delayed due to the COVID-19 pandemic. He was prescribed strong opiates, leading to withdrawal symptoms when he weaned off them around the time of his son’s birth.

The applicant’s evidence regarding the post-May 2020 period suggests that he struggled with pain, self-medicated with heavy drinking, and experienced a failed surgery that caused further pain. He also had short-term memory loss, osteoarthritis, and sought psychiatric help before his third surgery, after which he underwent intensive rehabilitation. He now retains 70% of his muscle strength. His partner returned to work while he was still incapacitated, and his drinking increased. His criminal offenses began in October 2021, all while he was intoxicated. These offenses will be discussed in relation to community protection.

The central issue in this review is whether there are reasons to revoke the visa cancellation under the Migration Act 1958. The Direction 99, which the Minister issued under the Migration Act, provides specific matters that decision-makers must consider. This includes primary considerations that should generally carry more weight than other considerations, as well as the protection of the Australian community, family violence, ties to Australia, the best interests of the applicant’s son, and expectations of the Australian community.

In the context of these considerations, it is noted that the applicant’s criminal offenses are significant and pose a potential risk to the community. However, if he maintains abstinence from alcohol, there is a low risk of recidivism. His strong motivation to avoid alcohol and the desire to have a meaningful relationship with his son are protective factors. Additionally, his intention to reunite with his former partner and future employment are also protective factors. The humanitarian aspect of the case, as discussed in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, is also relevant.

Balancing these considerations, it is found that the mandatory considerations favor non-revocation, primarily due to community protection concerns. However, other factors, such as the applicant’s ties to the community, his relationship with his son, the potential for reuniting with his former partner, and humanitarian aspects, outweigh the community protection concerns. Therefore, the decision is to revoke the cancellation of the applicant’s visa under section 501CA(4)(b)(ii) of the Migration Act 1958.

Written by Ross Ahmadzai

20 Oct, 2023

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