Is low risk still too risky? That’s up to the Minister!

Da Costa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]

By Daniel Lane – Staff Writer

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Migration Case Law Updates

Introduction

1.             The applicant was convicted of indecent assault and been sentenced to more than 12 months imprisonment. The applicant sought the revocation of his visa cancellation. It had been cancelled by the Minister under the Migration Act 1958 (Cth) 501CA(4) (‘the Act’). The Minister used his power to cancel the visa and personally refused the revocation, citing 501CA(4)(b)(ii) “that there is another reason”. The subjective nature of this Minister’s power provides his desired outcome seemingly in spite of the evidence.

Previous Case Proceedings

2.             While drunk, the applicant indecently assaulted a 16-year-old girl and was convicted of three counts of assault with an act of indecency and sentenced to 18 months’ imprisonment.

Visa Cancellation and Review

3.             The applicant has his visa cancelled by a delegate of the Minster’s department in January 2020. He requested a review of the Minister’s decision before being placed in immigration detention in September of the same year where he remains.

4.             The applicant sought a review of the Minister’s decision under the grounds that the Courts determined that his risk of reoffending was quite low this was supported by the Sentencing Assessment Report (‘SAR’), which highlighted that excessive alcohol consumption was a major contributing factor and that he had an alcohol abuse problem at the time of offending. The Minster took into account that the sentencing judge also noted that the applicant was unlikely to reoffend.

5.             In April of 2021, the Minister personally considered the application and the applicant’s request for revocation of the cancellation of his visa. The Minister deemed that the applicant did not pass the character test provided by the Act.

The Applicant’s Circumstances

6.             Concerning the applicant’s circumstances, the Minister, considered the fact that the applicant had made a positive contribution to the Australian community prior; however, given the severe nature of the applicant’s crimes committed in the Minister’s opinion, the bad had thoroughly washed out any good. The Minister also considered the applicant’s family and what they might go through should they be relocated to Brazil or if they were to stay in Australia, seemingly determining that the applicant would be able to:

‘establish himself and maintain basic living standards in the context of what is available to other Brazilian citizens’. 

Level of Risk

7.             The Minister’s reasoning for using the power provided to him by the Act was that the applicant was assessed as low risk, and the Minister acknowledged the effort the applicant went to reform his behaviour toward alcohol, however according to the Minster low risk is still a risk to the Australian community and whilst progress was made on the alcohol front very little was done in the Minister’s view to minimising the applicant’s sexual offence recidivism.

8.             The Minster determined that on balance, there is enough information to provide that is a risk, although a low one that the applicant could and might offend again. Any reoffending involving sexual offences involving a minor on the applicants that might happen could result in further psychological and physical harm to the Australian community.

Zero risk as an impossibility

9.             Legal Counsel for the applicant expressed their dissatisfaction with the Minister’s decision. Commenting that the Minister’s decision effectively said only zero risk is acceptable, however, zero risk does not exist on the standardised measures. It is impossible to rule out further offending, as stated by Griffiths J in  EGH19 v Minister for Home Affairs (No 2) [2021].

10.          Counsel for the applicant asserted that Minister acted illogically and that his zero-tolerance decision denied the applicant any chance of rehabilitation within the Australian community, though it was conceded by Counsel for certain offences such as serial offending of a similar nature to the applicant or perhaps terrorism a zero-tolerance approach was appropriate however this was no such case.

Conclusion

11.          It was ultimately an unremarkable decision by the Minister, and well within the limits of the power granted to him by the Act; however, the difficult question for the Court remained that under the Act, the power under 501CA(4)(b)(ii) is purely subjective and whether or not such a reason existed for the Minster.

12.          The Minster is given the responsibility by parliament to make such decisions. The applicant’s visa cancellation was upheld, despite the Court’s view on the remoteness of reoffending and despite all the evidence that may have given weight to an alternative outcome, the Minister found a reason to be satisfied that the applicant did not pass the character test.

DISCLAIMER

Disclaimer: the above is only an extract of the case and is an opinion of the author regarding part of the court decision

These views may not reflect the views held by the OMARA, the Department, the AAT or any court

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