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

The ground of review 10 The single ground of review is the contention that the Minister's decision not to revoke the visa cancellation is unreasonable because the low risk of potential re-offending was found to outweigh all other factors including the interests of Mr Da Costa's children.

The statutory scheme 11 Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to a substantial criminal record, or sexually based offences involving a child, and that the person is serving a full-time sentence of imprisonment. It is not in issue that Mr Da Costa did not pass the character test on the basis that he has a "substantial criminal record" in that he was sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)). That was the basis for the delegate cancelling his visa. 12 Section 501CA(4) of the Act empowers the Minister to revoke the cancellation decision: (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 13 The Minister accepted that Mr Da Costa had made representations in accordance with the invitation, and Mr Da Costa accepted that he did not pass the character test. Accordingly, the Minister was required to consider whether there was "another reason" why the cancellation decision should be revoked.

The Minister's decision 14 The Minister in the customary way took account of various factors under the following headings: best interests of minor children; extent of impediments if removed; strength, nature and duration of ties; and, protection of the Australian community. 15 The Minister gave detailed consideration to the evidence and submissions concerning the circumstances of Mr Da Costa's minor stepson and daughter. The Minister had regard to each of their best interests individually. He accepted that it was in each of their best interests to revoke the decision to cancel Mr Da Costa's visa. The Minister acknowledged the strength and detail of the submissions addressing this consideration and gave it weight, as a primary consideration, in favour of a decision to revoke the visa cancellation. 16 With regard to the extent of impediments if Mr Da Costa was removed to his home country of Brazil, the Minister considered a number of factors. The Minister accepted that if Mrs Da Costa chooses to remain in Australia, along with her two children, Mr Da Costa will experience significant emotional and possibly psychological hardship. The Minister also acknowledged the hardship that would be faced by Mrs Da Costa and her family in Australia if she was to go to Brazil with Mr Da Costa, as well as the hardship that would be faced by him by having to devote substantial time and effort to assisting his wife and stepson to cope with a new language and different culture. 17 The Minister also noted that Mr Da Costa had resided in Brazil until the age of 19 and that he has close family members in Brazil, including his mother. The Minister considered that it is unlikely that Mr Da Costa will face substantial language or cultural barriers in Brazil and that he will have similar levels of access to economic and social welfare as generally available to other citizens of Brazil. He found that Mr Da Costa has the ability to establish himself and maintain basic living standards in the context of what is available to other Brazilian citizens. 18 With regard to the strength, nature and duration of ties in Australia, the Minister noted Mr Da Costa's family ties in Australia beyond his wife and children. These include his wife's family, his step-brother, two uncles and a number of cousins. The Minister found that Mr Da Costa had been making a contribution for some five years to the community through his employment, and made a positive contribution to the community through his volunteer work relating to bushfire recovery and took that into account. 19 With regard to the protection of the Australian community, the Minister considered whether Mr Da Costa poses a risk to the Australian community through reoffending, informed by factors including the existence of mitigating and causal factors, and evidence of any steps Mr Da Costa has taken towards rehabilitation. 20 The Minister noted Mr Da Costa's evidence that his excessive alcohol consumption was a major contributing factor to his offending, and had regard to a New South Wales Department of Correctional Services Sentencing Assessment Report (SAR) dated 4 November 2019. The SAR included a Case Note Report dated 3 October 2019 in which Mr Da Costa stated he had an alcohol abuse problem prior to his arrest in January 2018, and engaged in binge drinking on the weekends. 21 The Minister took into account Mr Da Costa's submission that he had stopped drinking alcohol following his arrest, and was cognisant that the SAR indicated that Mr Da Costa reported that he ceased alcohol consumption without formal intervention. The Minister was "not persuaded that the risk of Mr Da Costa indulging in alcohol in the future to excess can be completely discounted" and found that "if he was to do so, the judgements and lessons he has obtained from his experience could be rendered ineffective by inebriation." 22 The Minister "note[d] with concern" the SAR's statement that Mr Da Costa "was assessed by a Community Corrections Senior Psychologist as appearing to 'have a limited understanding of consent, and specifically maintaining appropriate sexual boundaries in intimate/sexual relationships'." 23 The Minister found that there was no evidence before him that Mr Da Costa "has undertaken any specific intervention to address his sexual offending and his substance abuse, or to address any underlying issues that may bear upon his risk of recidivism." The Minister observed that no steps were taken by Mr Da Costa to undertake appropriate programs or counselling in the period between his arrest and incarceration, which was a period of some two years. The Minister found it was likely that Mr Da Costa "has unmet treatment needs", and was unable to accept that Mr Da Costa was fully rehabilitated. 24 The Minister took into account the evidence of Mr Da Costa and his wife as to his remorse and shame, and his submissions that he was unlikely to reoffend and did not pose a threat to the Australian community. 25 The Minister accepted that Mr Da Costa was remorseful. He was "mindful however, that in regard to Mr Da Costa's insight into the impact of his offending, the [SAR] states that while he articulated the impact of his offending on his relationship with his wife and other family members, 'he demonstrated no insight into the impact on the victim'." The Minister found Mr Da Costa's "lack of appropriate counselling to be particularly concerning given his failure to demonstrate insight." 26 The Minister expressly took into account that the sentencing judge made a finding of special circumstances and varied the statutory ratio so that the duration of Mr Da Costa's non-parole period could be less than three quarters of the length of the sentence due to his youth, and so that his good prospects of rehabilitation would be assisted by a long parole period. The Minister also took into account that the sentencing judge was of the view that Mr Da Costa is unlikely to reoffend. 27 The Minister had regard to the SAR, noting that it stated that Mr Da Costa "was assessed at a low risk of reoffending according to the Level of Service Inventory - Revised (LSI-R). The Minister noted, however, that Community Corrections determined Mr Da Costa's overall risk of reoffending as T2/Medium. 28 The Minister took into account the psychologist's assessment following a pre-sentence psychological consultation based on a file review (not an in-person interview) which placed Mr Da Costa in the average risk category of sexual offence recidivism. The psychologist noted that the limitations of a consultation based on a file review are that Mr Da Costa's dynamic risk factors, which together with static factors contribute to the risk of reoffending, were not comprehensively assessed. The psychologist reported that potential dynamic risk factors such as general self-regulation difficulties and impulsivity are likely to have been present at the time of Mr Da Costa's offending, in addition to his alcohol use. 29 On this aspect, the Minister found on the basis of the information he identified that there is a risk, albeit a low risk, that Mr Da Costa will reoffend. The Minister considered that should Mr Da Costa reoffend in a similar manner involving sexual offending against a minor, it could result in serious physical and/or psychological harm to members of the Australian community. 30 The Minister expressed his ultimate conclusion, having considered the various identified factors, as follows: 82. In considering, in light of Mr DA COSTA's representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr DA COSTA's children, […], and his cousin (referred to as his nephew) […], I found that their best interests would be served by the revocation of the original decision. 83. In addition, I have considered the length of time Mr DA COSTA has made a positive contribution to the Australian community (five years) and the consequences of non-revocation of the original decision for his other family members, and the extent of impediments that Mr DA COSTA would face if he were removed to Brazil. 84. On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr DA COSTA, which are of a sexual nature, and involved a vulnerable member of the community, that being a minor person living in his household. 85. Further, I find that the Australian community could be exposed to harm should Mr DA COSTA reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr DA COSTA. 86. I am cognisant that where harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa. 87. I concluded that Mr DA COSTA represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other minor family members, as a primary consideration, and any other considerations as described above. These include his familial ties to Australia, his employment history and volunteer/charity activity, and the hardship Mr DA COSTA, his family and social networks will endure in the event the original decision is not revoked. 88. Therefore, I am not satisfied that there is another reason why the decision to cancel Mr DA COSTA's Class WC Subclass 030 - Bridging C visa should be revoked, as required by s 501CA(4)(b)(ii) of the Act. Consequently, my power to revoke is not enlivened and Mr DA COSTA's visa remains cancelled.

The applicant's submissions 31 Central to the submissions put on behalf of Mr Da Costa is the contention that the Minister's finding, or acceptance, that there is a low risk of reoffending and his finding that reoffending cannot be ruled out, is tantamount to saying that only "zero risk" would be acceptable. It is submitted on behalf of Mr Da Costa that "there simply is no category of 'nil risk' on standardised risk measures and that it is never possible to rule out further offending". That quotation is from EGH19 v Minister for Home Affairs (No 2) [2021] FCA 903 at [29] per Griffiths J who was paraphrasing from the report of an expert psychologist, Mr Patrick Sheehan, in that case. 32 The submissions on behalf of Mr Da Costa draw on EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; 272 FCR 409 at [84] where, in summarising the position on subjective jurisdictional fact review following a survey of the authorities, Derrington J relevantly stated the following: The prevailing view on the above authorities indicates that the assessment of the fulfilment of a subjective jurisdictional fact is, in essence, a matter of whether the state of mind of a designated person accords with that which the legislature requires, and that it is reached in accordance with the implicit requirements of, inter alia, an absence of illogicality or irrationality, and it is not based upon illogical fact finding. If the state of mind actually reached by the repository of power could be reached by a logical or rational person on the same material and complies with the other requirements, it is a state of mind which will enliven the relevant power. That will be so even where the probative evidence can support different reasoning processes by logical or rational people resulting in a different conclusion. But, if the actual state of mind reached was arrived at by a path which was illogical and irrational, the required state of mind will not have been attained. That remains so even if there were an alternative path to the same conclusion, because the state of mind will not have been formed in accordance with the implicit requirements of the Parliament. … It can be fairly assumed that the Parliament intended the person is to be given the chance of a favourable outcome (at least in the sense of overcoming the initial jurisdictional hurdle) by the repository's engagement in a process that is not illogical or irrational. (Emphasis added.) 33 Counsel for Mr Da Costa submits that by adopting a zero tolerance approach to the risk of reoffending the Minister acted illogically or irrationally (because an assessment of zero risk is impossible) by denying Mr Da Costa "the chance of a favourable outcome". It is submitted that although there may be categories of offence (e.g., involving terrorism or serial child sex offending) where zero, or close to it, tolerance may be appropriate, this is not such a case. 34 It is submitted on behalf of Mr Da Costa that whilst his offence was serious, it was only just serious enough to be sufficient to cause him to fail the character test and was therefore at the low end of the spectrum. That is because although he was sentenced to 18 months' imprisonment it was for a non-parole period of nine months, and he was released from prison after nine months. The relevant character test standard (in s 501(7)(c)) is having been sentenced to a term of imprisonment of 12 months or more. 35 Inherent in those submissions is the contention that it was illogical or irrational for the Minister to conclude that Mr Da Costa's offence was sufficiently serious to mean that no risk of harm would be tolerated. It also carries the implication that the Minister would not tolerate a risk of reoffending in respect of any offence which was the basis to the relevant person not satisfying the character test, with the result that no person who did not satisfy the character test would be able to establish "another reason" for revocation of the cancellation of their visa.

Consideration and conclusion 36 It is uncontroversial that the exercise of the power under s 501CA(4) of the Act to revoke a cancellation decision requires, relevantly with reference to paragraph (b)(ii), the existence of a subjective jurisdictional fact, being the satisfaction of the Minister "that there is another reason why the original decision should be revoked." The question for a court on review is not whether another reason why the original decision should be revoked existed, but whether the Minister (or delegate) was satisfied that such a reason existed: Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 at [41] per Collier, Reeves and Derrington JJ. 37 Review by the Court as to the existence of a subjective jurisdictional fact is limited to determining whether the state of mind actually reached is one within the range which the legislature intended to be formed as a pre-requisite to the exercise of power: EHF17 at [70] per Derrington J, cited with approval in Singh v Minister for Home Affairs [2020] FCAFC 7; 274 FCR 506 at [77] per Derrington J, Reeves J agreeing. 38 As the Full Court held in Ali at [110]: It is apparent that the standard inherent in the concept of "another reason" [in s 501CA(4)(b)(ii)] involves matters of opinion, value judgment and policy which accords a degree of decisional freedom to the decision-maker that does not exist in the s 36(2) criteria. 39 Also, in Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [137], Gummow J relevantly noted that: where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. 40 As indicated, the Minister concluded that the offending conduct was so serious that even a low risk of harm was unacceptable. It was permissible for the Minister to approach his fact-finding (or satisfaction forming) on the basis that any risk of serious harm to members of the Australian community was unacceptable. I reject the submission that it was not open to the Minister, acting logically and rationally, to regard Mr Da Costa's offence as so serious as to mean that even a low risk of reoffending was sufficient to outweigh the countervailing factors. It was a matter for the Minister to place Mr Da Costa's offending on a spectrum of seriousness; it is not for the Court in these judicial review proceedings to impose its own view as to how serious or otherwise the offending was or to balance the risk of reoffending against other factors. 41 The principal difficulty with the submissions on behalf of Mr Da Costa is their inarticulate premise which is that the Minister's so-called "zero tolerance" approach to Mr Da Costa's offending is that no matter what his other circumstances are the Minister would still not have formed the requisite state of satisfaction as to there being another reason to revoke the cancellation. There is no justification to that premise because the Minister took into account a number of other factors, for and against revocation, and there is nothing in the Minister's reasons to show that he closed his mind to factors in favour of revocation, or that he fettered his mind to such a degree that the outcome of non-satisfaction was inevitable. 42 To the extent that the ground of review questions the weight that was given to the risk of Mr Da Costa reoffending, or to the seriousness of his offending, relative to the countervailing considerations in favour of revocation, that was clearly a matter for the Minister: Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 at [68] per Rares, Anastassiou and Stewart JJ. 43 It is apparent from the summary of the Minister's reasons that I have set out above that the Minister took account of a number of factors. The Minister also took account of several different assessments of the risk of Mr Da Costa reoffending, including the sentencing judge's view that he is unlikely to reoffend. I am not able to discern any jurisdictional error in the approach of the Minister, notwithstanding that on one view at least it may seem harsh particularly to Mr Da Costa's young family in Australia. Parliament has given to the Minister the responsibility to make such decisions, and I see no basis for the Court to intervene in the decision that he made. See, for example, Sabado v Minister for Home Affairs [2020] FCA 458 at [65]-[66] per Wigney J and Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 165; 280 FCR 559 at [2] and [24] per McKerracher J and [27] per White J. 44 In the circumstances, the application should be dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.