Federal Court of Australia

Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 84

ORDERS

THE COURT ORDERS THAT:

1. The appellant be granted an extension of time within which to appeal.

2. The appeal is dismissed.

3. The appellant is to pay the costs of the first respondent to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1 The appellant, David Charles Mizen, is a citizen of the United Kingdom.  Mr Mizen first arrived in Australia in 1971 when he was aged four, and he has lived in Western Australia ever since.

2 In December 2020, Mr Mizen was convicted and sentenced in the District Court of Western Australia in relation to three offences concerning his possession and distribution of child exploitation material (CEM).  Mr Mizen was sentenced to a total effective sentence of three years' imprisonment. Following these convictions, the Minister cancelled Mr Mizen's Class BF Transitional (Permanent) visa under s 501(3A) of the Migration Act 1958 (Cth) (Act).  Mr Mizen then sought to have the Minister revoke the cancellation of his visa under s 501CA(4) of the Act.  However, a delegate of the Minister decided not to revoke that cancellation.  Section 496 of the Act provides that the Minister may delegate to another person any of the Minister's powers under that Act.

3 Mr Mizen applied to the Administrative Appeals Tribunal (AAT) for a review of the delegate's decision not to revoke the cancellation of his visa.  At the relevant time, s 500(1)(ba) of the Act provided that an application could be made to the AAT for a review of a decision made by a delegate under s 501CA(4).

4 The AAT ultimately affirmed the delegate's decision.

5 In deciding to affirm the delegate's decision not to revoke the cancellation of Mr Mizen's visa, the AAT was required to take into account the various considerations set out in Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99), where those considerations were relevant to its decision.  Under para 8.1.2 of Direction 99, the AAT was required to assess the risk to the Australian community should Mr Mizen commit further offences or engage in other serious conduct.

6 Mr Mizen unsuccessfully sought judicial review of the AAT's decision affirming the delegate's decision not to revoke the cancellation of his visa:  Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 934.

7 Approximately 12 months after his application for judicial review was dismissed, Mr Mizen filed a notice of appeal against the primary judge's decision.  By that notice of appeal, Mr Mizen seeks to rely on one ground of appeal in which he says that the primary judge erred by failing to find that the AAT misunderstood or misapplied, and thereby fell into jurisdictional error by failing to consider, para 8 of Direction 99.

8 More specifically, Mr Mizen contends that the primary judge erred by failing to find that the AAT misunderstood or misapplied para 8.1.2(2)(b) of Direction 99, which required the AAT to have regard to 'the likelihood of [Mr Mizen] engaging in further criminal or other serious conduct' (ground of appeal). In that respect, Mr Mizen argues that the AAT had regard to the consideration in para 8.1.2(2)(b) on the erroneous basis that it required an assessment to be made of the likelihood of him engaging in further criminal or other serious conduct while he was physically in the Australian community.  Mr Mizen argues that para 8.1.2(2)(b), properly construed, does not impose any such geographical limit.

9 Given the lapse of time between the dismissal of his application for judicial review and the filing of a notice of appeal, Mr Mizen requires an extension of time within which to file his notice of appeal:  r 36.03(a) of the Federal Court Rules 2011 (Cth). Mr Mizen also requires leave to rely on the ground of appeal.  This is because the ground of appeal raises a new argument that was not raised before the primary judge.

10 In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48], the Full Court said that leave should only be granted to argue a ground of appeal not raised at first instance if it is expedient in the interests of justice to do so.  Further, the Full Court said that leave may be granted if some meritorious point that was not taken below is advanced, and if there is no real prejudice to the respondent in permitting it to be agitated.  However, the Full Court went on to say that if there is no adequate explanation for the failure to take the point, and if it seems to be of doubtful merit, leave should generally be refused.

11 Although Mr Mizen has not explained why he did not file a notice of appeal within time, or why he did not raise the new argument before the primary judge, the respondent does not oppose a grant of an extension of time or a grant of leave to rely on a new argument.

12 We are of the view that the primary judge did not err by failing to find that the AAT misunderstood or misapplied para 8.1.2(2)(b) of Direction 99.  Contrary to Mr Mizen's contentions, the AAT did not have regard to the consideration in para 8.1.2(2)(b) of Direction 99 on the basis that it required an assessment to be made of the likelihood of Mr Mizen engaging in further criminal or other serious conduct while he was physically in the Australian community. On the contrary, the AAT properly understood and correctly applied para 8.1.2(2)(b), properly construed.

13 As the ground of appeal has no merit, while we would grant an extension of time within which to appeal, we would refuse to grant Mr Mizen leave to rely on the ground of appeal and dismiss the appeal.

Relevant legislative provisions

14 Before summarising the AAT's decision and the reasons of the primary judge, it is convenient to commence by referring to the legislative provisions, and to the paragraphs in Direction 99 that are relevant to Mr Mizen's ground of appeal.

15 The object of the Act is set out in s 4.  Relevantly, s 4 provides that:

(1)    The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2)    To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

…

(4)    To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.

…

(emphasis added)

16 Part 2 of the Act contains provisions relating to the arrival, presence and departure of persons.  Division 3 of Pt 2 is specifically concerned with 'visas' for persons who are not Australian citizens, who are known as 'non-citizens':  s 5.  According to s 5 of the Act, the word 'visa' has the meaning given to it by s 29.

17 Section 29(1), which appears in Subdiv A of Div 3 of Pt 2 of the Act, and which is an important provision in the context of the ground of appeal, relevantly provides as follows:

(1)    Subject to this Act, the Minister may grant a non‑citizen permission, to be known as a visa, to do either or both of the following:

(a)    travel to and enter Australia;

(b)    remain in Australia.

(emphasis added)

18 Section 501 contains provisions concerning the refusal to grant, and the cancellation of, visas.  Section 501(1) and s 501(2) of the Act are in the following terms, respectively:

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:  Character test is defined by subsection (6).

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

19 Section 501(3A) of the Act provides that:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

20 The 'character test' referred to in s 501(1), s 501(2) and s 501(3A) is defined in s 501(6).  It is unnecessary to reproduce all of s 501(6).  Relevantly, a person does not pass the character test for the purposes of s 501(6) if they have a 'substantial criminal record', as that phrase is defined in s 501(7).  In the circumstances of this case, it is only necessary to refer to one aspect of the definition of 'substantial criminal record' in s 501(7).  In that regard, a person fails the character test if they have been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more:  s 501(7)(d).

21 It is not in dispute that Mr Mizen did not pass the character test for the purposes of s 501(3A)(a).  It is also not in dispute that Mr Mizen was serving a sentence of imprisonment for the purposes of s 501(3A)(b).  Accordingly, there is no issue that the Minister was required by s 501(3A) to cancel Mr Mizen's visa.

22 In those circumstances, s 501CA(4) of the Act is of significance.  Section 501CA(4) is in the following terms:

(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.

23 The reference in s 501CA(4) to the 'original decision' is a reference to a decision made under s 501(3A) to cancel a visa that has been granted to a person.

24 Mr Mizen relied on the power conferred by s 501CA(4) of the Act when he sought revocation of the original decision made to cancel his visa.  It may be seen that if, under s 501CA(4), a person makes representations for the purposes of s 501CA(4)(a), and the Minister (or his or her delegate) is not satisfied that the person passes the character test, then the question for the Minister (or his or her delegate) to determine under s 501CA(4)(b)(ii) is whether there is 'another reason why the original decision should be revoked'.

25 When the AAT reviewed the decision made by a delegate of the Minister to refuse to revoke the original decision to cancel Mr Mizen's visa pursuant to s 501CA(4), the AAT accepted that Mr Mizen had made representations for the purposes of s 501CA(4)(a).  However, the AAT also found that Mr Mizen did not pass the character test for the purposes of s 501CA(4)(b)(i) and, further, that there was not 'another reason' why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii).  On that basis, the AAT affirmed the original decision to refuse to revoke the cancellation of Mr Mizen's visa.

26 In deciding that it was not satisfied that there was 'another reason' why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii) of the Act, the AAT was required by s 499(2A) to comply with Direction 99.

27 Paragraph 5.1 of Direction 99 reiterates that the objective of the Act is to 'regulate, in the national interest, the coming into, and presence in, Australia of non-citizens'.  Further, and consistently with s 501CA(4)(b)(ii), para 5.1(3) of Direction 99 provides, in part, that where a decision-maker is considering a request to revoke an original decision made under s 501(3A), and where it is not satisfied that the person seeking revocation passes the character test, the decision-maker must 'consider whether there is another reason to revoke the cancellation given the specific circumstances of the case'.

28 Paragraph 5.1(4) of Direction 99 provides as follows:

(4)    The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act.  Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

29 Having regard to s 29 of the Act, the 'functions' and 'powers' referred to in para 5.1(4) of Direction 99 are, in essence, those that are concerned with making decisions about whether to refuse to grant a visa to a non-citizen (s 501(1)), whether to cancel a visa that was granted to a non-citizen (s 501(2)), and whether to revoke the cancellation of a visa that was granted to a non-citizen (s 501CA(4)), where a visa amounts to a grant of permission to travel to and enter Australia, and/or to remain in Australia.

30 Paragraph 6 of Direction 99 provides that a decision-maker, informed by the principles in para 5.2, must take into account the considerations identified in paras 8 and 9 of the direction, where relevant.  The principles in para 5.2 provide the 'framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA'.  Paragraph 5.2 also provides that the factors (to the extent relevant in each particular case) that must be considered in making a decision under those provisions of the Act are identified in paras 6, 7, 8 and 9 of Direction 99.

31 Having regard to the issues raised by the ground of appeal, it is unnecessary to say anything further about paras 6, 7 and 9 of Direction 99.

32 In deciding that there was not 'another reason' to revoke the cancellation of Mr Mizen's visa, the AAT took into account the considerations referred to in para 8 of Direction 99 that were relevant to his case.  Paragraph 8 relevantly provides that in reaching a decision under s 501(1), s 501(2) or s 501CA(4) of the Act, there are five 'primary considerations'.  The first of those primary considerations, at para 8(1), is the 'protection of the Australian community from criminal or other serious conduct'.

33 Paragraph 8.1 of Direction 99 provides further guidance to decision-makers about the matters that should be considered when taking into account the primary consideration referred to in para 8(1):

8.1 Protection of the Australian community

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2)    Decision-makers should also give consideration to:

(a)    the nature and seriousness of the non-citizen's conduct to date; and

(b)    the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

34 Paragraph 8.1.1 of Direction 99, which relates to the consideration referred to in para 8.1(2)(a), identifies the matters to which decision-makers are required to have regard in considering the nature and seriousness of a non-citizen's criminal offending or other conduct 'to date'.  In other words, the non-citizen's past criminal offending or other past conduct.

35 Paragraph 8.1.2 of Direction 99, which is concerned with the consideration referred to in para 8.1(2)(b), and which is directly relevant to the ground of appeal, is in the following terms:

8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.  Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

(a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.    information and evidence on the risk of the non-citizen reoffending; and

ii.    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

(c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

36 When read in light of para 8.1(2)(b) of Direction 99, it can be seen that para 8.1.2 requires decision-makers to evaluate the future risk to the Australian community posed by a non-citizen, should that person commit further offences or engage in other serious conduct.  In assessing that future risk, decision-makers are required to have cumulative regard to the matters in para 8.1.2(2)(a) and (b) and, where relevant, (c).

37 As Mr Mizen's counsel confirmed at the hearing of this matter, the ground of appeal is concerned with the proper construction of para 8.1.2(2)(b) of Direction 99.

38 Having set out the relevant provisions of the Act, as well as the relevant parts of Direction 99, it is now necessary to summarise the AAT's decision to affirm the decision that was made by the Minister's delegate to refuse to revoke the cancellation of Mr Mizen's visa.

The AAT's decision

39 At the beginning of its reasons for decision, the AAT set out the background to Mr Mizen's application for a review of the delegate's decision not to revoke the cancellation of his visa.  The relevant background to this matter has already been summarised earlier in these reasons.

40 The AAT then noted that there were two issues it was required to determine:

(a) whether the applicant passes the character test, as defined by s 501(6) of the Act; and

(b) if the applicant does not pass the character test, whether the AAT is satisfied that there is another reason why the cancellation decision should be revoked.

41 The AAT concluded that Mr Mizen did not pass the character test.  As no issue is taken with that conclusion, nothing more need be said about that topic.

42 After having regard to the submissions that were made by Mr Mizen, and after taking into account the relevant considerations that appear in paras 8 and 9 of Direction 99, the AAT concluded that it was not satisfied that there was 'another reason' why the decision to cancel Mr Mizen's visa should be revoked.

43 In relation to the consideration in para 8.1.2(2)(a) of Direction 99, the AAT expressed the opinion that there could be no doubt that the nature of the harm to individuals or the Australian community should Mr Mizen engage in further criminal or other serious conduct would be very serious.  In that regard, the AAT said (at [86]-[88]):

In the Tribunal's view it is well accepted that the possession and distribution of CEM causes serious phycological [sic] and physical harm to the children who are subjected to the abuse featured in the material.  Such harm can cause lifelong damage to those children.  As noted in the sentencing remarks, in the case of the material collected by the Applicant there were [at] least hundreds, but more likely thousands of children abused to produce that material.  The Applicant accepted when put to him at the hearing that if he were to reoffend, the harm which would be caused to the children the subject of the material would be 'catastrophic'.

As discussed with the parties at the hearing, the online nature of the offences raises the prospect that the Applicant could present a similar risk to children in Australia even if [he] was removed and was offshore when reoffending.  With respect [to] this issue, the Full Court in Craig [v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 196] held that:

It was therefore open to the Minister to find that there was a risk (albeit low) to the Australian community in the appellant remaining in Australia and committing further child exploitation material offences here.  That the appellant might find a way to pose a similar risk to children in Australia from committing such offending overseas does not render that conclusion without rational support.  Precise equivalence of risk in such a predictive exercise is impossible in any event.

The Tribunal finds if the Applicant were to reoffend, significant physical, emotional and psychological injury could be caused to members of the Australian community, particularly to children.

(footnotes omitted)

44 In relation to the consideration in para 8.1.2(2)(b) of Direction 99, regarding the likelihood of Mr Mizen engaging in further criminal or other serious conduct, the AAT said (at [194]):

The Tribunal has considered all of the primary considerations, including the protection of the Australian community and found it weighed in favour of not revoking the cancellation.  The Applicant was engaged in possession and distribution of CEM which he admitted to having collected or maintained over a 10-year period.  That material featured young children and included significant amounts of material among the more serious classifications of CEM.  The Tribunal considers the Applicant's offending to be very serious.  The Tribunal found [that] there is a likelihood the Applicant will reoffend.  The Tribunal found the risk of reoffending to be a moderate risk with respect to CEM offending, consistent with the information before it.  The Tribunal also found the harm which could be caused to Australian children if he does reoffend would be significant.  Having regard to all the circumstances, including the other considerations, the Tribunal places very strong weight on the protection of the Australian community against revocation of the cancellation of the Applicant's visa.

45 In the context of the issues raised by the ground of appeal, it is important to appreciate that in reaching the conclusion that the risk of Mr Mizen reoffending was in the moderate range with respect to CEM-related offences, the AAT articulated its understanding of the consideration in para 8.1.2(2)(b) of Direction 99 in the following way (at [89]):

In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.

(footnote omitted; emphasis added)

46 Further, when discussing the relevance of certain reports prepared for the purposes of sentencing, to its assessment of the consideration in para 8.1.2(2)(b), the AAT said (at [103]):

The Tribunal's process is different, requiring an assessment of the likelihood of the Applicant reoffending if permitted to remain in the Australian community in the context of deciding whether the decision to cancel his visa should be revoked.

(emphasis added)

47 We have extracted these two parts of the AAT's reasons for decision because, as will be seen, the emphasised parts of those extracts are the focus of the appellant's ground of appeal and his complaint that the AAT misunderstood or misapplied, and thereby fell into jurisdictional error by failing to consider, para 8 and, specifically, para 8.1.2(2)(b) of Direction 99.

48 Having summarised the AAT's reasons for refusing to revoke the cancellation of Mr Mizen's visa, it is now necessary to say something about the reasons of the primary judge for dismissing Mr Mizen's application for judicial review.

The primary judge's decision

49 As Mr Mizen seeks to rely on an argument that was not put to the primary judge, it is only necessary to briefly summarise the primary judge's reasons.

50 Mr Mizen was represented by pro bono counsel when he appeared before the primary judge.  By the time the application for judicial review came on for hearing, counsel had filed an amended originating application and written submissions.

51 Mr Mizen relied on two grounds of review before the primary judge.  The first ground was concerned with the AAT's finding that the risk of Mr Mizen re-offending was in the moderate range.  The primary judge approached that ground on the basis that it was contended that the AAT's finding was irrational, unreasonable or that it lacked a probative basis.  The primary judge ultimately rejected that contention, concluding that Mr Mizen's arguments amounted to nothing more than disagreement with the AAT's evaluative findings of fact.

52 The primary judge noted that by the first ground of review, Mr Mizen also asserted that the AAT misunderstood or misapplied the relevant paragraph (namely, para 8.1.2) from Direction 99.  However, his Honour observed at [92] of his reasons that:

Mr Mizen made no submission that purported to identify any misunderstanding or misapplication of the paragraph.

53 The second ground relied on by Mr Mizen concerned the AAT's approach to assessing the strength, nature and duration of Mr Mizen's ties to Australia; an issue the AAT was required to consider under paras 8(3) and 8.3 of Direction 99.  By the second ground, Mr Mizen made three contentions:

(1) the AAT made no specific mention to the fact that Mr Mizen had spent his formative years in Australia and gave no or insufficient weight to that fact;

(2) the AAT failed to give any or sufficient weight to a range of factors concerning Mr Mizen's ties to Australia; and

(3) the AAT failed to reconcile its conclusion that Mr Mizen's ties to members of the Australian community could not be said to be particularly strong with other findings it had made about the strength of his ties to Australia.

54 The primary judge rejected each of those contentions and concluded that the second ground of review should not be upheld.

55 On the basis that neither ground of review had been upheld, his Honour dismissed Mr Mizen's application.

56 Before explaining why we would refuse Mr Mizen leave to rely on an argument not raised before the primary judge, it is convenient to first summarise the parties' contentions.

The parties' contentions

57 Mr Mizen contends that, when considering para 8.1.2(2)(a) of Direction 99, the AAT found that if he were to re-offend, the nature of the harm to individuals, or to the Australian community, was 'significant physical, emotional and psychological injury [that] could be caused to members of the Australian community, particularly to children':  at [88].  However, Mr Mizen says that the AAT did not find that such harm might be caused by him having contact with children.  Instead, he argues that the AAT concluded that the nature of the harm should he re-offend by possessing and distributing CEM was psychological and physical harm to the children (including Australian children) who were subjected to the abuse depicted in that material.  However, Mr Mizen points out that the AAT acknowledged that 'the online nature of the offences [previously committed by Mr Mizen] raises the prospect that [he] could present a similar risk to children in Australia even if [he] was removed and was offshore when reoffending' (emphasis added).

58 It is in this context that Mr Mizen argues that the AAT fell into jurisdictional error because it misunderstood, and therefore misapplied, the consideration in para 8.1.2(2)(b), by failing to properly have regard to the 'likelihood of [Mr Mizen] engaging in further criminal or other serious conduct', as required by para 8.1.2(2)(b) in assessing the risk that he may pose to the Australian community.  Specifically, Mr Mizen contends that the AAT erroneously considered that it was required by para 8.1.2(2)(b) to assess the likelihood of him engaging in further criminal or other serious conduct if he were to be permitted to remain in Australia.  In that regard, Mr Mizen relies on the two passages taken from the AAT's reasons for decision that we have reproduced earlier in these reasons at [45] and [46].

59 Based on the written and oral submissions that were made on Mr Mizen's behalf, it was contended that in this way, the AAT erroneously placed a geographical limitation on the consideration in para 8.1.2(2)(b) by assessing the likelihood of Mr Mizen engaging in further criminal or other serious conduct if he was physically located in Australia.  Mr Mizen says that the consideration in para 8.1.2(2)(b) is not geographically restricted or limited in that way.  Instead, he contends that para 8.1.2(2)(b) is concerned with ensuring the protection of the Australian community based on the particular facts relevant to each non-citizen, irrespective of where they may be physically located in the world.  In that sense, he says that there may be circumstances in which the considerations in para 8.1.2(2), and the primary consideration at para 8(1), weighs in favour of revoking a cancellation under s 501(3A) because revocation, thereby allowing the non-citizen to remain in Australia, may in fact reduce the risk to the Australian community.

60 Mr Mizen submits that based on the facts of his case, the AAT's erroneous application of para 8.1.2(2)(b) was material in the sense that there is a realistic possibility that the outcome of the decision could have been different had that error not been made.  In that regard, Mr Mizen notes that the AAT identified several protective factors that were available if he were to remain in Australia.  Mr Mizen says that had the AAT had proper regard to the consideration in para 8.1.2(2)(b), there is a realistic possibility that it could have determined that the risk of him engaging in further CEM-related conduct, and thereby the risk of him causing harm to children who form part of the Australian community, may have been increased if he were to be removed from Australia.

61 The Minister submits that the AAT did not misdirect itself as to the proper construction of Direction 99.  The Minister contends that when read in context, and having regard to the purpose of Direction 99, it is apparent that para 8.1.2 is concerned with an assessment of the likelihood of a non-citizen re-offending or engaging in other serious conduct while physically located in Australia.

62 However, the Minister does not submit that para 8.1.2 prohibits a wider consideration of the likelihood of re-offending, if relevant.  Rather, the Minister submits that such a wider consideration is not required by para 8.1.2.

Should Mr Mizen be granted leave to appeal?

63 The critical issue raised by the ground of appeal is whether the AAT misunderstood or misapplied, and thereby failed to properly have regard to, the consideration in para 8.1.2(2)(b) of Direction 99.  Specifically, the ground of appeal is concerned with the question of whether the AAT erroneously limited its consideration of the likelihood of Mr Mizen engaging in further criminal or other serious conduct (as required by that paragraph) to the likelihood of him engaging in such conduct when physically present in the Australian community, when it said in its reasons for decision that it was required to consider the likelihood of Mr Mizen reoffending 'if he were permitted to remain in the Australian community':  at [89].

64 Neither party suggested that the proper construction of para 8.1.2(2)(b) should be determined other than in accordance with orthodox principles of statutory construction, namely, that its meaning is to be ascertained by reference to its text, the context in which it appears and its purpose.  In that regard, we note that this was the approach that was taken by each member of the Full Court in FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 when construing a paragraph that appeared in Direction no. 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, which applied at an earlier point in time, in relation to visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA:  FYBR at [7]-[8], [21]-[22] (Flick J), [62] (Charlesworth J), [87]-[103] (Stewart J).

65 Direction 99 was made on 23 January 2023 under the power conferred on the Minister by s 499(1) of the Act.  It may be seen that para 5.1(1) of Direction 99 reiterates that the object of the Act (provided for in s 4) is to 'regulate, in the national interest, the coming into, and presence in, Australia of non-citizens' (emphasis added).

66 Paragraph 5.1(4) of Direction 99 provides that the purpose of the direction is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA of the Act.  When read in the context of paras 5.1(2) and 5.1(3) of Direction 99, and in the context of the direction as a whole, it is clear that the specific purpose of Direction 99 is to guide decision-makers when exercising the powers conferred by s 501(1), s 501(2) and s 501CA(4) of the Act.  Specifically, Direction 99 identifies the considerations that decision-makers must take into account when:

(1) making a decision under s 501(1), whether to refuse to grant a visa to a non-citizen where the non-citizen does not satisfy the decision-maker that they pass the character test;

(2) making a decision under s 501(2), whether to cancel a visa that has been granted to a non-citizen because (a) the decision-maker reasonably suspected that they do not pass the character test; and (b) the decision-maker was not satisfied that the non-citizen passed the character test; and

(3) making a decision under s 501CA(4), whether to revoke a previous decision made under s 501(3A) to cancel a visa that had been granted to a non-citizen.

67 Paragraph 5.1(4) of Direction 99 reinforces the fact that decision-makers are required by s 499(2A) of the Act to comply with the terms of Direction 99 when making each of those decisions.

68 In reaching a decision under s 501(1), s 501(2) or s 501CA(4) of the Act, a decision-maker is required by Direction 99 to take into account several considerations, where relevant.  In the context of this matter, the relevant consideration is the first of the five 'primary considerations' identified in para 8 of Direction 99, namely, the 'protection of the Australian community from criminal or other serious conduct'.

69 Paragraph 8.1(1) of Direction 99 provides that when decision-makers are considering this first primary consideration, they are required to keep in mind that the Government is committed to protecting the Australian community from 'harm as a result of criminal activity or other serious conduct by non-citizens'.  Further, para 8.1(1) provides that decision-makers should have 'particular regard' to the fact that entering or remaining in Australia is a privilege conferred on non-citizens 'in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community' (emphasis added).

70 However, para 8.1(2) provides that decision-makers 'should also give consideration to':

(a) the nature and seriousness of the non-citizen's conduct to date; and

(b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

71 The consideration in para 8.1(2)(a) of Direction 99, which is further expanded upon in para 8.1.1, requires a decision-maker to look backwards, and to assess the nature and seriousness of a non-citizen's conduct 'to date'.  By contrast, the consideration in para 8.1(2)(b) is forward-looking.  In that regard, decision-makers are required to evaluate the future 'risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct' (emphasis added).

72 The predictive nature of the consideration in para 8.1(2)(b) of Direction 99 is reinforced by the contents of para 8.1.2(2), which is clearly intended to inform the decision-maker's task of giving consideration to the relevant risk to the Australian community.  In that regard, and as can be seen from its text, para 8.1.2(2) provides that when decision-makers assess 'the risk that may be posed by the non-citizen to the Australian community' (emphasis added), they are required to have regard to, cumulatively, those matters referred to in paras 8.1.2(2)(a) and (b), namely, the nature of the harm to individuals or the Australian community that may be done should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the non-citizen engaging in further such conduct.

73 The purpose of Direction 99 is to guide the making of a decision under s 501(1), s 501(2) and s 501CA(4), which decision will necessarily be made in circumstances in which a non-citizen will not have, but is seeking a visa, or where a non-citizen is seeking to resist the cancellation of a previously granted visa.  Accordingly, it is abundantly clear that the considerations in para 8.1.2(2) require decision-makers to evaluate the future risk to the Australian community should a non-citizen commit further offences or engage in other serious conduct in the event they are granted a visa, or if their previously granted visa is not cancelled.  In other words, those considerations require an assessment to be made about the risk to the Australian community that may flow from the grant of a visa.

74 It would make little sense if para 8.1.2(2)(b) of Direction 99 required decision-makers to have regard to the risk to the Australian community were a visa not to be granted.

75 Accordingly, in relation to the consideration in para 8.1.2(2)(b) with which this appeal is concerned, on the proper construction of that paragraph, decision-makers are required to have regard to the likelihood of a 'non-citizen engaging in further criminal or other serious conduct' if they were to be granted a visa, or if their previously granted visa were not to be cancelled.

76 At this point, it is important to recall that the term 'visa' is used in the Act to describe the permission that is granted to a non-citizen to:  either or both (a) travel to and enter Australia; and (b) remain in Australia:  s 5 and s 29 of the Act.  According to Note 2 in para 4 of Direction 99, which appears under the heading 'Interpretation', the term 'visa' has the same meaning as it has in the Act.  Therefore, an alternative, and equally correct, way in which to describe the task that a decision-maker is required to undertake when having regard to the consideration in para 8.1.2(2)(b), is that the decision-maker is to have regard to the likelihood of a non-citizen engaging in further criminal or other serious conduct if the non-citizen were to be granted permission to travel to and enter Australia or to remain in Australia.

77 Of course, in circumstances in which Mr Mizen was in Australia when his visa was cancelled, and was then still in Australia when the AAT carried out its review, this is, in substance, the very way in which the AAT identified the task it was required to undertake by having regard to the consideration in para 8.1.2(2)(b), when it said that it was required to consider 'the likelihood of [Mr Mizen] reoffending if he were permitted to remain in the Australian community':  at [89].

78 It follows that there is no merit in the contentions made on behalf of Mr Mizen to the effect that the AAT fell into jurisdictional error by misapplying or misunderstanding, or by failing to properly have regard to, para 8.1.2(2)(b) of Direction 99 to warrant the grant of leave to raise that new point in the appeal.  Specifically, there is no merit in the contention that it approached its task on the basis that it was limited to making an assessment of risk that was premised on Mr Mizen being present in the Australian community.  What the AAT did was to have regard to the likelihood that Mr Mizen would reoffend if the permission previously granted by the Minister for him to remain in Australia were to be reinstated.  That approach was undoubtably correct.

79 Accordingly, it is not in the interests of justice that Mr Mizen be granted leave to rely on an argument that he did not put to the primary judge.

Conclusion

80 While we would grant the application for an extension of time, we would refuse to grant leave to appeal.

81 The appeal must be dismissed with costs.

Pro bono counsel

82 The Court was fortunate to have had the benefit of written and oral submissions made on behalf of Mr Mizen by Ms Taggart, who appeared on a pro bono basis.  We wish to record our appreciation for Ms Taggart's willingness to appear as counsel on that basis.

Associate:

Dated:    26 June 2025