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

In the matter of Da Costa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the applicant sought the revocation of the cancellation of his visa under section 501(3A) of the Migration Act 1958 (Cth). The Minister had cancelled the visa after the applicant was convicted of indecent assault and sentenced to more than 12 months’ imprisonment. The applicant's visa was subsequently cancelled due to his failure to meet the character test. The Minister personally refused to revoke the cancellation under section 501CA(4) of the Act, finding that there was another reason not to revoke the cancellation of the visa. The applicant argued that the Minister’s decision was irrational as his risk of reoffending was assessed as low and that the Minister’s intolerance for even a low risk of reoffending denied him the possibility of a successful outcome.

The central legal issue was whether the Minister’s decision was irrational and whether it was permissible for the Minister to conclude that even a low risk of reoffending was unacceptable. The court examined the scope of judicial review in such cases, which 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. The Minister had considered various factors, including the best interests of the minor children, the extent of impediments if the applicant was removed, the strength of ties in Australia, and the protection of the Australian community. The Minister concluded that the offending conduct was so serious that even a low risk of harm was unacceptable, which the court found to be within the permissible scope of the Minister's discretion.

The court held that it was permissible for the Minister to regard the applicant’s offence as so serious that even a low risk of reoffending was sufficient to outweigh the countervailing factors. The court emphasised that it was a matter for the Minister, not the Court, to place the applicant’s offending on a spectrum of seriousness and to balance the risk of reoffending against other factors. The court dismissed the application, finding that the Minister’s decision was not irrational.

ORDERS:
1. The application be dismissed with costs.