Federal Court of Australia

Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 934

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant must pay the first respondent's costs of and incidental to the proceeding, fixed at $5,000.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Mr Mizen, is a citizen of the United Kingdom who has lived in Australia since 1971. The first respondent (the Minister) cancelled Mr Mizen's Class BF Transitional (Permanent) visa under s 501(3A) of the Migration Act 1958 (Cth) after Mr Mizen was convicted of three offences relating to child exploitation material (CEM).

2    Mr Mizen made representations to the Minister as to why he should revoke the decision to cancel the visa. Acting under s 501CA(4) of the Migration Act, a delegate of the Minister declined to revoke the cancellation. Subsequently, the second respondent, the Administrative Appeals Tribunal, affirmed the delegate's decision. Mr Mizen now seeks judicial review of the Tribunal's decision in this Court.

3    Mr Mizen's grounds of review raise issues about the Tribunal's assessment of the risk that he would reoffend in respect of CEM if he were to be released from detention to live in the community. The Tribunal found that the level of that risk was 'in the medium range' and 'in the moderate range'. Mr Mizen impugns this on the basis that it was not supported by the evidence, and that the Tribunal's process of reasoning was illogical because it failed to modify an initial assessment of risk to take account of other findings about protective factors that it made or that it should have made.

4    The grounds also raise issues about the Tribunal's treatment of another consideration that is mandatory under a Ministerial direction which the Tribunal was bound to follow in its conduct of the review, namely the strength, nature and duration of Mr Mizen's ties to Australia. Mr Mizen contends that the Tribunal failed to give any or sufficient weight to his long residence in Australia since his formative years. He also makes other complaints about the Tribunal's treatment of this consideration.

5    For the following reasons, the application will be dismissed.

Background

6    Mr Mizen arrived in Australia on 19 September 1971, when he was 4 years old. He has lived continuously in Australia ever since, residing in the Kalamunda area.

7    Prior to his imprisonment, Mr Mizen lived with and provided care for his elderly mother, who has Alzheimer's disease. He has two sisters, who live in Melbourne and the United Kingdom, respectively. It appears that he and his mother are estranged from those sisters, or at least have limited contact with them. His mother and sisters are Australian citizens.

8    On 22 December 2020, Mr Mizen was convicted and sentenced in the District Court of Western Australia on two counts of possessing CEM and one count of distributing CEM, having entered a guilty plea to each count. The CEM in question included images at a high level of depravity. Mr Mizen received three terms of imprisonment with a total effective sentence of three years.

9    On 1 March 2022, the Minister cancelled Mr Mizen's visa under s 501(3A) of the Migration Act, on the basis that he had a substantial criminal record pursuant to s 501(6)(a) of the Migration Act. At the time, Mr Mizen was in prison for the offences described above.

10    Mr Mizen requested that the Minister revoke the cancellation decision. On 10 July 2023, a delegate of the Minister decided pursuant to s 501CA(4) of the Migration Act not to revoke. The Tribunal heard Mr Mizen's application for review in September 2023. On 3 October 2023, the Tribunal affirmed the delegate's decision.

The Tribunal's decision

11    Given the grounds of review, the following description of the Tribunal's reasons will focus on its assessment of the likelihood that Mr Mizen would reoffend in respect of CEM, and on its assessment of the strength, nature and duration of Mr Mizen's ties to Australia.

12    The Ministerial direction that applied to the Tribunal's review was Direction no. 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99). This was binding on the Tribunal by reason of s 499(2A) of the Migration Act.

13    Paragraph 8 of Direction 99 provides for five primary considerations when making a decision under s 501CA(4), including the protection of the Australian community from criminal or other serious conduct and the strength, nature and duration of the non-citizen's ties to Australia. The other three primary considerations are the best interests of minor children in Australia, the expectations of the Australian community, and whether the relevant conduct constituted family violence: only the second of these was relevant in Mr Mizen's case, and he does not challenge the Tribunal's analysis of it.

Protection of the Australian community from criminal or other serious conduct

14    The Tribunal's ultimate finding concerning the primary consideration of the protection of the Australian community was that it weighed in favour of not revoking the cancellation of Mr Mizen's visa. The Tribunal made particular reference to the remarks of the sentencing judge in the District Court. Her Honour described some of the images the subject of Mr Mizen's offending as 'both significant, highly perverse, depraved, and show images which depicted real punishment and pain suffered by these children'. The Tribunal noted that while Mr Mizen did not engage directly in the sexual abuse of the children depicted, the sentencing judge's comments made it clear that these offences encourage, promote and facilitate direct acts against children and are properly regarded as offences against children.

15    In assessing the primary consideration of the protection of the Australian community, the Tribunal was required to have regard to the following when considering the nature and seriousness of the non-citizen's criminal offending (Direction 99 para 8.1.1(a)):

without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

i.    violent and/or sexual crimes;

ii.    crimes of a violent nature against women or children, regardless of the sentence imposed;

iii.    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed …

16    Consequently, the Tribunal found that Mr Mizen's offences should be 'viewed very seriously because they involved both sexual crimes and violent crimes against children' (violence against children being depicted in some of the CEM) and in any event, were 'very serious conduct' with regard to the 'nature and volume of material held and distributed by the Applicant and the period over which he was engaged in the conduct'.

17    The Tribunal also considered, in line with the requirements of paragraph 8.1.2(2)(a), the nature of the harm to individuals or the Australian community should Mr Mizen reoffend. It found that such harm would be 'very serious' and could cause 'significant physical, emotional and psychological injury … to members of the Australian community, particularly to children'.

18    The Tribunal then turned to its consideration of the likelihood of Mr Mizen reoffending if he were permitted to remain in the Australian community, pursuant to paragraph 8.1.2(2)(b) of Direction 99. That paragraph required the Tribunal to consider:

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 re-offending; 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).

19    The Tribunal noted Mr Mizen's contention that there was a low risk that he would reoffend. Mr Mizen said that was the level of risk that had been assessed by the sentencing judge, as reflected in a relatively short prison term with eligibility for parole. He referred to rehabilitation courses that he had completed and a plan he had put in place for avoiding reoffending in the community. He said that he had strong support in the community which would act as a protective factor.

20    The Tribunal also referred to the Minister's submission that Mr Mizen had never been assessed as presenting a low risk of CEM offending, as distinct from contact offending against children, where the risk had been assessed as low. According to the Minister's submissions, 'the prison risk assessment process determined him to be a moderate risk of [CEM] reoffending, resulting in his referral to the sex offender's program'.

21    The Tribunal had regard to the sentencing judge's analysis of the 'key aspects' of several psychological reports before her Honour, noting that the reports themselves were not before the Tribunal. These included a forensic psychological assessment and treatment report by a Ms Fowler dated 12 November 2020, a psychological report by a Mr Midford dated 25 September 2020, and a pre-sentence report prepared by the Department of Corrective Services dated 14 July 2020 (recalling that Mr Mizen was sentenced in December 2020). The Tribunal referred further to reports that were before it, including a Treatment Assessment Report dated 19 May 2021 during Mr Mizen's imprisonment, the completion report for the Medium Sex Offending Treatment Program (SOMED) completed on 6 September 2022, and parole reports.

22    In considering the sentencing remarks, the Tribunal noted that the sentencing judge had in turn noted attempts by Mr Mizen to 'find other explanations for his offending including toxoplasmosis and autism spectrum disorder - neither of which the Court accepted the Applicant was suffering from' (para 93). The Tribunal quoted the sentencing judge's summary of the forensic psychological assessment and treatment report as concluding that Mr Mizen was (para 93):

… a fantasy driven CEM offender, so rather than it being something that is connected to any contact offending … it is connected to your sexual interest in children.

She posits … that the CEM in your possession in her opinion indicates that you have a deviant sexual interest of a paedophilic nature. The conclusion is based on you likely being sexually aroused by looking at the CEM material containing prepubescent children and:

Him having experienced arousal by this material for over six months.

It's less clear whether your possession of bestiality and sadistic material involving children represents you having any additional paraphilias:

Mr Mizen impresses as a fantasy driven offender who has shown no evidence of progressing to becoming [a] contact offender.

So she posits a very big distinction between those who use child exploitation material in a fantasy driven way which related to their own sexual interests in children as opposed to using it to commit offences against children. That is relevant when it comes to the issue of risk …

23    The sentencing judge had also noted the most obvious explanation, posed by the forensic psychologist, as being 'that you do have a deviant sexual interest in children and that that is the reason why you have sought out over a long period of time this type of material'.

24    The Tribunal (at para 94) further quoted the sentencing judge as referring to a:

… growing realisation on your part that there is work you need to do from a psychological perspective to understand your offending and it may be that that will take a very long period of time for you to recognise, reconcile and come to accept and it's exactly that path that Ms Fowler suggests is the ongoing treatment plan for you.

25    But the sentencing judge had also said that there had been no significant indication of remorse, acknowledging at the same time that the guilty plea was a mitigating factor, as well as the lack of any prior record and 'that personal factors including his age, social isolation and the situation of his mother justified a reduced sentence' (para 95).

26    As for the fact that Mr Mizen had been eligible for parole, the Tribunal considered that it reflected 'a view by the court that rehabilitation would be supported by a structured, and supervised, re-entry to the community' (para 96) rather than a view that he presented a low risk of reoffending.

27    The Tribunal was unable to find any assessment in the material that Mr Mizen presented a low risk of reoffending with respect to CEM, drawing once again a distinction between that and contact offending. The Tribunal considered (at para 97) that 'the discussion of the reports demonstrates a recognition of an ongoing risk of offending with respect to CEM without rehabilitation and lifestyle changes by the Applicant'. Evidently, this was a reference to the sentencing judge's discussion of the reports predating the sentencing on 22 December 2020 that are listed above at [21].

28    The Tribunal's treatment of reports that were prepared during Mr Mizen's time in prison are at the heart of the first ground of review, so it is worth quoting that treatment in full (italics in original, footnotes removed):

98.    As noted above, information before the Tribunal indicates risk assessments were done in a pre-sentencing context and when the Applicant was in prison for the purpose of program suitability. The information indicates that in the pre-sentence and prison assessment, his overall risk for general offending was medium. The prison report, prepared in May 2021 observed that the Applicant did not attempt to minimise his offending and displayed appropriate victim empathy 'and the suffering the children depicted in the images endure during the process of creation of such material'. However the report notes:

Mr Mizen has denied having any interest in children. Mr Mizen has denied ever resorting to sexual thoughts or behaviour as a coping strategy however, his index offences may suggest otherwise. For example, Mr Mizen attributed his offending behaviour to a desire to seek relief from the frustration and isolation arising from spending the majority of his adult life in the role of primary caretaker for his elderly parents. Mr Mizen has displayed limited insight into how lack of intimate relationships and social isolation over the years may have contributed to his index offending. He further displayed limited insight into longstanding mental health issues including depression and low self-esteem.

99.    His identified treatment needs were:

significant social influences; capacity for relationship stability; general social rejection; poor problem solving; sex drive/preoccupation; and sex as coping.

He was recommended to undertake the SOMED program to address these need[s] and address self-esteem, coping, intimacy and attachment risk factors and identify coping strategies and warning signs to 'hopefully' reduce the risk of reoffending.

100.    The SOMED Program Completion Report [notes]:

Mr Mizen attended all sessions of the program and made some gains in the treatment areas, specifically in identifying stress and emotional management, and how to practise strategies to manage these in the community. He also identified a deviant sexual interest in children, which had been developed over time from viewing CEM, and his offending had served to distract from his problems due to social isolation and poor mental health.

Although initially presenting as emotionally fragile at the start of the program, Mr Mizen developed improved self-confidence in the group sessions and worked with both the group and his prison counsellor to develop some self-management strategies to mitigate further offending. Should he continue to practice and strengthen skills developed during his sentence, his risk of reoffending will be reduced.

101.    The report went on to note that if the Applicant remained in Australia the following conditions should apply to his parole:

•    Engage in psychological counselling to reinforce gains made in the program.

•    Liaise with his GP to address both physical and mental health issues

•    Encouragement to engage [in] pro-social activities

•    Abide by all Sex Offender Management Squad (SOMS) conditions, including computer use restrictions

•    No unsupervised contact with children under 16 years.

102.    The parole assessment recommended the Applicant's release on parole subject to successful completion of the SOMED program noting the salutary nature of his term of imprisonment, good conduct in prison, cancellation of the visa, lack of prior convictions and parole conditions including reporting requirements. The report also noted a 'lack of pro-social community support'. He was paroled on 20 October 2022. The Tribunal notes that the Applicant's parole expires in December 2023.

29    While observing that its risk assessment was somewhat broader and longer-term than 'the immediacy of sentencing', the Tribunal considered nevertheless that the sentencing judge's analysis of the reports were relevant to assessing the likelihood of Mr Mizen reoffending. The Tribunal's assessment of the material suggested that (para 103):

there is a risk the Applicant will reoffend and that the risk was assessed to be in the medium range. While he has now completed the SOMED program, the [completion] report indicates his risk of reoffending will be reduced 'should he continue to practice and strengthen skills developed during his sentence'. This suggests there is further work to be done.

30    The Tribunal went on, at paragraph 104, to say that it:

… was concerned that the Applicant's responses evidenced at the hearing continued a pattern of minimisation of his offending and a lack of insight into its impacts. When asked about his remorse of the offending at the hearing, the Applicant focussed on the impact of his conviction and cancellation of his visa, and on his distaste for the financial side of CEM production or distribution as indicated in the following exchange …

31    The Tribunal then quoted excerpts from the transcript of the cross examination that counsel for the Minister had conducted before the Tribunal, in which Mr Mizen said that his 'photographic practice is based on a kind of Marxist assessment of capitalism' and emphasised his dislike of financial aspects of the production of CEM. When pressed on his degree of remorse for the harm that had been inflicted on the children that were the subject of the CEM, Mr Mizen said, 'I would rather it hadn't happened. I regret that it happened'.

32    The Tribunal also set out excerpts from the transcript in which the Senior Member had 'sought to clarify the Applicant's responses and to understand what insight he had learned from the SOMED program' (para 105). In that exchange, Mr Mizen effectively acknowledged that the offending against the children caused them trauma and then the redistribution of the images perpetuated the trauma. He said he had his 'head in the sand' but that the offences were very serious and he regretted them. In the face of questioning from the Senior Member he acknowledged that the financial aspects of CEM he had criticised probably did not matter to the children.

33    The Tribunal also appeared to place weight on the following exchange (para 106):

SENIOR MEMBER:    And how is it that you understand that [the treatment of your anxiety] would assist with what the sentencing judge identified from the reports before her, with respect to a sexual attraction to children?

APPLICANT:    Well there's - I'm - looking from my perspective there's two - two issues, so that's one, which is - I don't know whether that's at the top of the tree or roots of the trees, and the anxiety and stress and the things that go with that. My looking at that plan, my plan of attack was address the stress and anxiety and sort that out and then look at where the stress and anxiety took me.

SENIOR MEMBER:    And if the stress and anxiety was in part [driven] by isolation of caring for your mother, how will that be different if your primary role is going to be caring - - -?

APPLICANT:    Well, I'm not sure if I've actually said that. My general frustration was - was with the, you know, working in a job which I really felt a lot of times I didn't know what I was doing and - as I think I've put in my document - my transcript is not the best thing in the world, it's all over the place, like a - I don't know what. So I felt out of my depth a lot of the time which then perpetuated the anxiety and the stress and probably depression as well and spiralling down into the black hole, and adopting a stiff upper lip, trying to tough it out - didn't work.

34    Of this the Tribunal said (para 107):

As noted above, the Tribunal considers that while the Applicant's responses indicate some progress in his understanding of the offences, they also indicated the Applicant continues to have limited insight into the impact of his offending and is reluctant to acknowledge that a sexual interest in children was an underlying factor in his offending. In the Tribunal's view, this ongoing lack of acknowledgement contributes to a risk of reoffending.

35    The Tribunal said the following about Mr Mizen's plans for reintegration into the community (para 108):

The Tribunal also notes the Applicant'[s] plan for reintegration and reducing the risk of recidivism involves living with and caring for his mother and changing his work habits. As the social isolation caused by his living arrangements was one of the issues he identified was a stressor which led him to offend, in the Tribunal's view, this provides a limited protective factor against reoffending. The Applicant also plans to reskill to work in photography and in his historical work, avoiding the stressors arising from his work as a lawyer. Further, he plans to seek psychological and medical support to deal with stress and anxiety and Mr Midford provided a letter indicating his willingness to provide treatment. His GP also provided a letter indicating he would remain a patient of the practice.

36    The Tribunal placed weight on statements from friends and colleagues who were prepared to support Mr Mizen's return to the community. It noted, however (para 109):

that their capacity to provide pro-social support is limited by the nature of their relationships with the applicant, which is to say they are friends and colleagues who have regular but not intensive interaction with the Applicant. Further, the Tribunal notes these pro-social supports were present in the past but not sufficient to prevent the Applicant's offending.

37    Therefore, while the Tribunal accepted that Mr Mizen's plans for reintegration provided some protection against reoffending, it could not 'find with any degree of satisfaction' that he presented a low risk of reoffending (para 110). Mr Mizen's parole was due to expire soon so that would not provide any protection, although the Tribunal did accept that ongoing child offender reporting requirements would.

38    The Tribunal's conclusion was (para 111):

On balance, and having considered the material before it related to the risk of reoffending, the Tribunal considers there is a likelihood the Applicant will reoffend and to the extent that risk can be measured the information suggests the risk of reoffending remains in the moderate range.

That is the finding that Mr Mizen seeks to impugn in his first ground of review, described below.

39    The Tribunal then went on to find on the basis of that and the other matters mentioned above that the primary consideration of the protection of the Australian community weighed in favour of not revoking the cancellation of Mr Mizen's visa.

Strength, nature and duration of Mr Mizen's ties to Australia

40    After finding that the primary consideration in Direction 99 pertaining to family violence was not relevant, the Tribunal went on to consider the next primary consideration, of the strength, nature and duration of Mr Mizen's ties to Australia. As will be seen, the Tribunal's approach to this ground is the subject of Mr Mizen's other ground of review.

41    The Tribunal quoted paragraph 8.3 of Direction 99, which reads as follows (although the Tribunal did not quote sub-paragraph (1)):

(1)    Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)    In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(3)    The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(4)    Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    the length of time the non-citizen has resided in the Australian community, noting that:

i.    considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

ii.    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

iii.    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

(There are no sub-paragraphs (b), (c) etc. following sub-paragraph (a).)

42    Mr Mizen's ground of review concerning these matters focusses more on the concluding remarks at the very end of the Tribunal's reasons rather than its more detailed treatment of the evidence under this consideration, so that treatment need only be described in overview.

43    The Tribunal found that Mr Mizen came to Australia as a toddler and had no doubt that he identifies as Australian and has a strong connection to the area in which he has lived 'for the vast majority of his life' (para 119).

44    The Tribunal also acknowledged that prior to entering prison, Mr Mizen had always lived with his mother, and she was reliant on his care and assistance, given her progressive and worsening Alzheimer's disease and dementia. The Tribunal considered that her interests would be best served by Mr Mizen remaining in Australia, and that his removal would cause her emotional distress and may mean she would have to move to a nursing home sooner than she wishes and which might otherwise be the case. It also found, however, that there were alternatives available to her to receive the care that she needs. Overall, the Tribunal found that Mr Mizen's ties to his mother weighed in favour of revoking the cancellation decision.

45    The Tribunal also accepted evidence of Mr Mizen's close ties to the Kalamunda area, particularly its historical community, and that he has made important contributions to documenting the local history. The Tribunal found that his friends and colleagues had provided 'strong statements in support of Mr Mizen's contribution to the community and connection to them'. The Tribunal considered that certain people Mr Mizen had described as his 'friends and associates' were relatively casual associates, but it ultimately found that his connections to the community, particularly the Kalamunda area, weighed in favour of revocation.

46    Overall, the Tribunal concluded, Mr Mizen's ties to Australia were a factor weighing in favour of revocation.

Other considerations

47    It is not necessary to describe the Tribunal's treatment of any of the further considerations that Direction 99 made mandatory, as they do not arise under the grounds of review. It is only necessary to note one further matter, not mandatory under the direction, which the Tribunal considered to be relevant. That was Mr Mizen's work providing voluntary historical research and reports in the Perth Hills area. The Tribunal considered that weighed in favour of revocation of the cancellation decision as it meant that Mr Mizen had a particular connection to his local area which carried value for the local community. The Tribunal found this work to be commendable and clearly valued by the relevant communities, and that Mr Mizen was committed to the work and had continued with it since entering detention (though the Tribunal also noted that this may suggest that the work could be continued from outside Australia, with some limitations in terms of access to historical archives and sites).

The Tribunal's ultimate conclusions

48    Under a heading 'Weighing and Conclusion', the Tribunal brought together the various considerations it had addressed in the earlier parts of its reasons. It found that the protection of the Australian community had 'very strong weight' (para 194) against revocation of the cancellation of the visa. That was because of the very serious nature of Mr Mizen's offending, the significant harm that could be caused if he reoffended, and, relevantly because the Tribunal found the risk of reoffending with respect to CEM offending to be 'moderate … consistent with the information before it' (para 194).

49    Also, at paragraph 196, in connection with ties to Australia, the Tribunal found that:

The strength, nature and duration of the Applicant's ties to Australia are strong, noting the Applicant came to Australia as a young child and has made this country his home. He strongly identifies as Australian and has not left since coming here as a child. The Tribunal considers such connections cannot be easily discounted. He has lived in the same area of Perth for most of his life and has a strong spiritual connection to that area and a commitment to researching and recording its history. He is a valued member of the historical community there. His elderly mother is ill and is dependent on his support to assist her to continue to live in her home. While care arrangements may be able to be made for Mrs Mizen without her son being present in Australia, the Tribunal accepts his removal would have a significant negative impact on her. Having regard to all the circumstances, including the other considerations, the Tribunal places strong weight on this consideration in favour of revocation of the cancellation of the Applicant's visa.

50    The Tribunal found the primary consideration of the expectations of the Australian community weighed strongly against revocation. The other primary considerations (see [13] above) were not relevant to Mr Mizen.

51    In terms of other considerations (that were not primary considerations), the Tribunal placed only slight weight in favour of revocation on the legal consequences of the decision, moderate weight in favour of revocation on the impediments Mr Mizen would face if removed to the United Kingdom, and slight weight on the impact his removal would have on his historical work. The Tribunal placed no weight on the impact his removal would have on certain legal or complaint proceedings in which Mr Mizen said he was involved.

52    The Tribunal's concluding assessment included the following (paras 201-202):

201.    The Applicant has made some progress towards acknowledging those impacts [of his offending]. He has undertaken rehabilitation and has indicated a plan to re-establish himself in the community. However, on the information before it, the Tribunal considers he lacks a full appreciation of the reasons such conduct is unacceptable. Further, his plan relies on many of the same arrangements which were insufficient to protect against offending in the past. While these were his first serious offences, he has by his own admission been engaged in this conduct for a significant period of ten years. There is a risk he will reoffend and the consequences of reoffending would be serious harm to children.

202.    Balanced against this, it must be recognised that the Applicant has been in Australia most of his life and considers himself to be Australian. Many in the community would share this view, including some of those in the Kalamunda community where he has lived since he was a child and where he has devoted significant efforts to recording the local history. His mother is elderly, has dementia/Alzheimer's and relies on his support. She will require ongoing alternate care if his visa cancellation is not revoked. He is estranged from other family members here and his social network, while supportive, was limited to friends and colleagues. In such circumstances his ties to members of the community in this country cannot, in the Tribunal's view, be said to be particularly strong. If his visa cancellation is not revoked, he would be unlikely to obtain another visa to return here which would cause him and his mother distress. He faces challenges on return to the UK, however, the Tribunal does not regard these to be insurmountable.

53    The Tribunal considered that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweighed the other primary consideration of the strength, nature and duration of the Applicant's ties to Australia and the other relevant considerations. It thus affirmed the delegate's decision.

The grounds of review

54    Shortly after filing his originating application, Mr Mizen obtained pro bono representation and filed an amended application on 5 April 2024. At the hearing, I granted Mr Mizen leave to rely on that amended application.

55    Two grounds of review are stated in the amended application:

1.    The Tribunal fell into jurisdictional error by:

(a)    making a finding not supported by the evidence; or

(b)    alternatively, misunderstanding or misapplying a mandatory relevant consideration

in making its decision by finding that the risk of the applicant reoffending was in the moderate range.

2.    The Tribunal fell into jurisdictional error by:

(a)    making a finding not supported by the evidence; or

(b)    alternatively, misunderstanding or misapplying a mandatory relevant consideration

in making its decision when assessing the strength, nature and duration of the applicant's ties to Australia.

56    There are long particulars to each ground, which do not need to be set out. They will be picked up in the summaries of Mr Mizen's case given below in the course of considering each ground.

Ground 1 - the Tribunal's finding that the risk of reoffending was moderate

Mr Mizen's submissions about the risk of reoffending

57    The particulars to the first ground refer to the Tribunal's reliance on 'pre-sentence and prison assessments', contending that this can only have been a reference to a document styled 'Level of Service/Risk, Need, Responsivity', known as the LS/RNR QuickScore Form, that was among the materials before the Tribunal. That is a form that was completed at the outset of Mr Mizen's incarceration, before he was sentenced, and according to the particulars, is directed primarily towards prison management considerations.

58    The particulars to the first ground assert that two of the findings by the Tribunal were irrational and unreasonable and lacked a probative basis in the evidence. The first was the finding at paragraph 111 that there was a likelihood that Mr Mizen would reoffend and that the risk of reoffending remained in the moderate range. The second was a finding at paragraph 109, however this particular was not pressed by the time of hearing so it is not necessary to mention it again.

59    Mr Mizen contends that the finding at paragraph 111 of the Tribunal's reasons was irrational, unreasonable and lacking in a probative basis when viewed against five protective factors. Although a list of protective factors was given in the originating application, by the time of Mr Mizen's written submissions, it had changed so as to run as follows:

(1)    Mr Mizen completed the SOMED Program, with gains in treatment areas.

(2)    He developed additional insight into his offending, shown by his acknowledgment of his sexual interest in children.

(3)    He had a plan for reintegration and reducing his risk of recidivism, including ceasing his stressful career as a lawyer, retraining into less stressful careers, and seeking psychological and medical support for stress and anxiety.

(4)    He had social support in his local community, with friends and colleagues being willing to assist him to rehabilitate and re-enter that community.

(5)    The Australian National Child Offender Register (ANCOR) reportable offender arrangements would apply to him if he were released.

60    At first blush, with respect, this ground seeks merits review, in that it invites the Court to weigh certain countervailing evidence against evaluative findings that the Tribunal made. If so, it would not be capable of establishing jurisdictional error. But counsel for Mr Mizen submitted that there is no evident or intelligible justification for the impugned findings and that they did not reflect an active intellectual engagement with the Tribunal's own findings or the material before it that related to above five 'positive findings of protective factors': ts 21.

61    In particular, counsel submitted that at paragraph 98 of the Tribunal's reasons (set out at [28] above), the Tribunal made an assessment of Mr Mizen's initial risk of CEM re-offending, meaning the risk at or around the time of sentencing, as being 'medium'. This, he says, should not have survived in light of the five protective factors listed above that were apparent on the material before the Tribunal.

62    The so called 'initial' risk assessment is said to have been based on the LS/RNR QuickScore Form, which was completed in July-August 2020 by a community corrections officer. That form rates Mr Mizen as having a medium 'Risk/Need Level'. He submits that this form is the 'pre-sentence and prison assessment' referred to in paragraph 98. Mr Mizen submits the form is limited because its function was to decide on levels of services and interventions in prison. The rating in the form does not distinguish 'risk' from 'needs', the form lacks a clear or specific risk assessment for reoffending, it is structured to prompt the person filling it out to assign numerical scores and thus to conduct an entirely quantitative assessment (creating related further limitations such as not distinguishing the seriousness of his past offences, which were traffic offences), and there are errors in how the particular form was filled out (including by understating his level of education and employment status) which, if corrected, might have changed the assessment to the 'low' category.

63    Mr Mizen submits that the Tribunal expressly found the final three of the five factors listed above to be protective against the risk of reoffending, and that it should have found the same in relation to the first two on the material before it. As to protective factor (1), he submits that the Tribunal did not expressly credit his completion of the SOMED program as reducing the risk of reoffending, but must have implicitly counted it as protective. As to protective factor (2), he submits that the references the Tribunal made to the transcript do not support the Tribunal's finding that he was reluctant to recognise his sexual interest in children, contributing to the risk of reoffending. In any event, the Tribunal's overall assessment was that Mr Mizen's understanding of his offences had improved, which must mean an improvement from its initial assessment of risk.

64    Overall, Mr Mizen submits the material before the Tribunal demonstrated a clear reduction of risk from the time of the initial risk assessment, and notes in addition to the above five factors that he was in fact granted parole. And yet the Tribunal's conclusion at paragraph 111, that the risk of reoffending 'remains in the moderate range', suggests an unchanged risk from its assessment of the initial risk (at or around the time of sentencing) as 'medium'. It was thus irrational, legally unreasonable and/or illogical for the Tribunal to reach the conclusion that the risk of reoffending remained in the moderate range. Mr Mizen submits that the Tribunal made no attempt to synthesize or weigh the factors it identified and provided no justification for why the assessment remained moderate.

Consideration

65    In Mr Mizen's submissions, ground 1 is principally put in terms that the Tribunal's conclusion about the level of likelihood that he would reoffend was irrational, unreasonable or lacked a probative basis. It is convenient to repeat the summary of principle given in BAE23 v Minister for Home Affairs [2023] FCA 1152 at [27]-[29]:

… [J]urisdictional error may occur when either the outcome of the exercise of a statutory power was one that no rational or logical decision-maker could reach, or because it was not open to the Minister to engage in the process of reasoning in which he did engage and to make the findings he did make on the material before him: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133]; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [34]-[35]. Where reasons are given, the Court ordinarily looks to those reasons to assess the reasonableness of the exercise of power: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]-[47].

Nevertheless, the characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made, and not every lapse of logic will give rise to jurisdictional error: SZMDS at [130]; Djokovic at [34]. It is not sufficient that the court disagrees with the basis of the fact finding or associated reasoning, or even strongly or emphatically disagrees; it must be shown that the findings were not rationally open to be made: CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [65] (Moshinsky, O'Bryan and Cheeseman JJ) and the cases cited there.

It was also common ground that a finding of fact on a key matter can lead to jurisdictional error if there was no probative basis for it in the materials before the decision maker. In Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 at [48] Mortimer J (Moshinsky J agreeing) endorsed the following statement of principle made in submissions:

Save that the reviewing court must be satisfied that the evidence relied upon achieves at least a threshold probative value, the inquiry is not otherwise concerned with ascertaining the sufficiency or quality (including cogency) of the evidence. The ground necessarily invites and requires a comparison between the material available to the decision-maker and the conclusions drawn from that material.

66    The core of Mr Mizen's contentions under ground 1 is that the Tribunal started from a (questionable) assessment that while in prison, his risk of reoffending was medium, and received evidence indicating that since then the likelihood had reduced, but still concluded that the likelihood was 'moderate' (which he appears to equate with medium).

67    However, despite Mr Mizen's submission that this is illogical, in my view the contention does amount to a mere expression of disagreement with the Tribunal's factual conclusions. It is a claim that an evaluative conclusion should not have been reached because the Tribunal should have found that the matters listed contradicted that conclusion.

68    That is said to be because the Tribunal started with an assessment of medium risk at the time of sentencing, and should have discounted that by reference to subsequent positive developments to arrive at an assessment lower than 'moderate'. That starting point is open to doubt; it is not clear, in paragraph 98 of its reasons, whether the Tribunal is adopting the finding from the 'pre-sentence and prison assessment [that] his overall risk for general offending was medium' or just noting that the assessment was made. But even if the Tribunal did accept the assessment, Mr Mizen's argument, with respect, focusses on selected aspects of the Tribunal's reasons, divorced from their context in the rest of the reasons. It is trite that the Tribunal's reasoning must be assessed as a whole. I have set out those reasons in detail at [14]-[53] above. When assessed as a whole, the following path of reasoning emerges.

69    The Tribunal's focus was on the risk that Mr Mizen would possess and distribute CEM again if he remained in Australia. That is common ground before this Court. The Tribunal assessed the risk that he would commit an offence involving contact with a child as low, and did not have any real regard to that risk.

70    The Tribunal was aware of, and addressed, Mr Mizen's representations to the effect that he was at a low risk of reoffending by the possession of CEM.

71    When the Tribunal turned to the likelihood, in the sense of degree of probability, that Mr Mizen would reoffend, it recorded Mr Mizen's submissions in that regard. Mr Mizen does not suggest that it did so inaccurately or in any way that evinced a misunderstanding of his submissions. The Tribunal also recorded the Minister's submissions to the effect that the prison risk assessment process determined Mr Mizen to present 'a moderate risk of reoffending'.

72    It is necessary at this point to digress from the summary of the Tribunal's reasoning to say that I do not accept Mr Mizen's submission that the Tribunal's reference to this process is a reference to the LS/RNR QuickScore Form. That is not among the materials that the Tribunal listed as being before it at paragraph 92 of its reasons. It does say that 'a presentence report prepared by the Department of Corrective Services dated 14 July 2020' was before the sentencing judge. 14 July 2020 is the date on which the person who filled out the LS/RNR QuickScore Form signed off on it. But at paragraph 92 the Tribunal said that this document was not before it.

73    The Tribunal made no direct reference to the LS/RNR QuickScore Form and says nothing to suggest that it had read that document. This tends to indicate that it did not have regard to the form, even though it was in fact in the tender bundle before it. I find that the Tribunal proceeded on the misapprehension that the LS/RNR QuickScore form was not in the materials before it. Further, while the sentencing judge's remarks indicated that her Honour had regard to a document that can be inferred to be the LS/RNR QuickScore form, those remarks make no apparent reference to that form subsequently and do not say anything that can be inferred to have been derived from the form. Therefore the Tribunal had no regard to the contents of the LS/RNR QuickScore form, directly or in any indirect way.

74    As counsel for the Minister pointed out at the hearing in this Court, the Tribunal did say that it had before it the (post sentencing) Treatment Assessment Report of May 2021 that is mentioned above. This is what it calls 'the prison report', immediately after having referred to information indicating that 'in the pre-sentence and prison assessment, his overall risk for general offending was medium' (see text excerpted at [28] above). The Treatment Assessment Report had indeed assessed Mr Mizen as presenting 'a medium risk for general reoffending'.

75    It is true, as counsel for Mr Mizen pointed out, that the Treatment Assessment Report refers to and partly relies on a previous ‘LS/RNR assessment [that] was completed by a Community Corrections Officer'. But whoever completed the Treatment Assessment Report did not stop there, but reviewed and updated it, including after interviewing Mr Mizen, and it is evident from the form that a qualitative assessment of Mr Mizen was undertaken. Therefore Mr Mizen's criticisms of the LS/RNR QuickScore form in this Court are not relevant.

76    To return to tracing the Tribunal's reasoning, it had regard to the sentencing judge's analysis of psychological and pre-sentencing reports that were not before it (noting that, as remarked above, her Honour did not appear to undertake any analysis of the LS/RNR QuickScore form). But her Honour's remarks said nothing about a 'medium' (or 'moderate') level of risk. The Tribunal also referred to the Treatment Assessment Report, the SOMED report and parole documents that were before it.

77    The Tribunal then commenced its analysis of the material before it by referring to the sentencing judge's observations as to attempts by Mr Mizen to find 'other explanations for his offending including toxoplasmosis and autism spectrum disorder - neither of which the Court accepted [Mr Mizen] was suffering from' [22]. In context, this means explanations other than having a sexual interest in children. The sentencing judge said that the psychologist ultimately concluded, in her forensic psychological assessment, that Mr Mizen was 'a fantasy driven CEM offender, so rather than it being something that is connected to any contact offending … it is connected to [Mr Mizen's] sexual interest in children'. The Tribunal quoted further passages from the sentencing remarks which add detail to and bolster that assessment.

78    Thus the focus of the Tribunal's consideration was Mr Mizen's sexual interest in children as a cause of his offending. The Tribunal also highlighted the sentencing judge's view that Mr Mizen had not recognised or accepted that he had a sexual interest in children and had not shown significant remorse for his offences [24]-[25]. The Tribunal then referred to the report that it did have before it, the Treatment Assessment Report, and similarly highlighted a passage indicating that Mr Mizen denied having a sexual interest in children [28].

79    The Tribunal then considered the SOMED report, setting out a passage recording that Mr Mizen had identified a deviant sexual interest in children. However the Tribunal reached the conclusion set out at [29] above, that 'there is a risk [Mr Mizen] will reoffend and that the risk was assessed to be in the medium range' and that the SOMED report suggested that there was 'further work to be done'. It did this after considering the different nature of the task before it, as compared to the task of sentencing.

80    The Tribunal then turned to evaluate Mr Mizen's evidence before it as indicating that he had 'continued a pattern of minimisation of his offending and a lack of insight into its impacts' [30]. It was open to the Tribunal to characterise the cross examination described at [31] above as showing that Mr Mizen resisted expressing remorse for the impact of the offending on the children, that he attempted to deflect the discussion to an esoteric question of Marxist theory and the financial dimensions of child pornography, and that at most he could bring himself to express bland 'regret that it had happened'. It is true that in a subsequent passage Mr Mizen acknowledged that the offending perpetuated trauma, but this does not address the reasons for his offending, namely his sexual interest in children.

81    Mr Mizen did appear to acknowledge the existence of that interest in the final excerpt set out by the Tribunal [33], when he was asked directly about how psychological treatment plans would help with regard to his sexual attraction to children, but he then immediately digressed into an unclear metaphor about trees and attributed his offending to stress and anxiety. In the end, any acknowledgement of the point that he gave was fleeting and unclear, and immediately undermined by his subsequent evidence.

82    In view of that, it was open to the Tribunal to reach the conclusion that Mr Mizen continued to be reluctant to acknowledge that a sexual interest in children was an underlying factor in his offending.

83    The Tribunal then went on to consider that continuing to care for his mother would provide a limited protective factor, since it was a stressor before his incarceration to which Mr Mizen attributed his offending. The Tribunal noted his plans to engage in less stressful work, and the availability of psychological and medical treatment [35]. While it then put weight on the evidence of friends and colleagues, it assessed them as having limited relationships with him, and said that the relationships had not prevented his past offending [36]. These findings were all rationally open.

84    Finally, the Tribunal discounted the protective effect of the parole, since it was almost over, but did consider that the ongoing ANCOR reporting obligations would be a protective factor [37].

85    The Tribunal's conclusion that the risk of reoffending remained 'in the moderate range' must be considered in the context of all that reasoning. When that is done, it becomes apparent that the reasoning and the conclusion were both logically open on the material before the Tribunal. Specifically, the Tribunal's concern that Mr Mizen continued to be reluctant to acknowledge that his offending stemmed from a sexual interest in children informed its concern that there was a moderate risk that he would reoffend in respect of CEM. There was nothing illogical about that; the unstated but reasonably open premise in the argument appeared to be that acknowledgment of that interest as an important cause was a necessary step to treatment and rehabilitation.

86    Viewed in that light, it does not demonstrate jurisdictional error for Mr Mizen to isolate a selected subset of the materials before the Tribunal and put them together in order to posit an arguable conclusion that is contrary to the one the Tribunal did reach. Still less does it demonstrate error to posit an 'initial' assessment of risk as 'medium' and then to apply quasi-quantitative discounts to that, by reference to a selected list of specific matters, to seek to establish that the end point could not have been 'moderate' (noting, anyway, that the Tribunal was careful to speak of the risk of reoffending as being in the moderate range [33]).

87    As far as Mr Mizen's list of five protective factors is concerned (using the numbering from [58] above):

(1)    The Tribunal did consider the SOMED report, carefully, and concluded, rationally, that there was 'further work to be done' [29]. Mr Mizen's submission that the Tribunal should have found that the SOMED report indicated a reduced risk of reoffending is merely an expression of disagreement with the Tribunal.

(2)    The Tribunal also considered the cross-examination where Mr Mizen acknowledged his interest in children, and came to the view that he had made some progress but was still reluctant to acknowledge this [34]. The Tribunal was entitled to reach that view. As noted in the preceding sub-paragraph 87(a), the Tribunal considered the SOMED report's finding that Mr Mizen had identified a deviant sexual interest in children, ultimately reaching the conclusion that there was 'further work to be done'. Again, Mr Mizen's submission about his acknowledgment of a sexual interest in children is merely an expression of disagreement.

(3)    While the Tribunal did note Mr Mizen's plan to reduce stress by ceasing to practise as a lawyer, it did not appear to choose to put weight on that. The weight to put on any specific piece of evidence was a matter for the Tribunal: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [197] (Gummow and Hayne JJ). It also noted his ongoing access to medical and psychological services, and also did not appear to put much weight on that. Once again, that was a matter for the Tribunal. Mr Mizen submits that the Tribunal found that his reintegration plans were a 'limited protecting factor', but that takes the finding out of context. It related specifically to Mr Mizen's plans to live with and care for his mother, not his plans for avoiding stress and seeking psychological and medical support as Mr Mizen appears to submit. Further, reading the relevant paragraph as a whole (see [35]), the Tribunal's emphasis was clearly on the limited weight to be given to this as a protective factor, because the demands of caring for his mother had been a cause of his stress before, allegedly pushing him towards offending.

(4)    The Tribunal minimised the importance of Mr Mizen's social supports because it found that the relevant relationships were not close ones, and because they were present in the past but not sufficient to prevent Mr Mizen's offending. Mr Mizen has identified no basis to doubt that this was open to the Tribunal. Its assessment overall was that Mr Mizen's plans for reintegration did not mean that it could find that he presented a low risk of reoffending. Further, Mr Mizen submits that the Tribunal found that this factor would 'provide some protection against reoffending'. This is an excerpt of part of a sentence, and overstates the Tribunal's finding. When read in full, the sentence is as follows [37]: 'The Tribunal considers that while the Applicant's plans for reintegration provide some protection against reoffending, in the Tribunal's view they do not mean it could find with any degree of satisfaction that the Applicant presents a low risk of offending.'

(5)    The Tribunal noted that ANCOR reporting requirements would apply to Mr Mizen if he were released, and considered that they would act as a protective factor against reoffending [37]. But again, the weight to be put on this in the overall evaluation of risk was a matter for the Tribunal. Its presence as a protective factor does not mean that the conclusion that the risk of reoffending was in the moderate range was irrational.

88    Counsel for Mr Mizen sought to draw an analogy between the decision of the Tribunal in this case and decisions of the Minister which were set aside due to unreasonableness or illogicality in Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 and in Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620; (2018) 261 FCR 385. But the process of identifying jurisdictional error on such grounds will inevitably be fact dependent and each case turns on its own facts: see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [48]; KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; (2022) 292 FCR 15 at [50]. Both Muggeridge and Ogbonna are distinguishable.

89    In Muggeridge, the Minister had made a positive finding that the appellant had rehabilitated. The appellant had not been convicted of any offences for 19 years and was suffering from a debilitating medical condition. And the Minister had made no real assessment of the possibility that the appellant would resume contact with the outlaw motorcycle club that had been the context of his previous offending. So the finding that it was possible that he would reoffend in the same fashion was insupportable: see Muggeridge, especially at [42], [52], [55]. In this case, the Tribunal made no finding that Mr Mizen has rehabilitated. Further, Mr Mizen's offending was recent. Above all, the reasoning described above shows there was a rational basis for the Tribunal's conclusion, in particular the Tribunal's concern that Mr Mizen had not confronted the likely cause of his efforts to seek out CEM and had little insight into or remorse for his offending.

90    In Ogbonna, the Minister had found that there was a likelihood that the applicant would reoffend in a similar manner by taking part in the supply of a large commercial quantity of commercial drugs. But all but one of the matters which the Minister said he took into account in reaching that conclusion pointed away from reoffending in a similar manner, and the remaining matter - that his rehabilitation had not been tested in the community - was incapable by itself of providing a probative foundation to conclude that there was a likelihood that he would reoffend in that way: see Ogbonna, especially at [31], [43]-[45]. This case and the Tribunal's reasoning about it are quite different; the Tribunal articulated logically coherent reasons to be concerned that Mr Mizen would reoffend . To say, as Mr Mizen does, that the Tribunal should have found that more protective factors existed is merely to disagree with its fact finding. And to 'add' other findings to a finding that the risk of reoffending at the time of sentencing was medium is merely to argue for a different evaluation of the weight to be put on those factors, and to disregard the course of reasoning above.

91    Jurisdictional error on the basis of illogicality and irrationality is not easy to establish. In truth, Mr Mizen's arguments under ground 1 do no more than express disagreement with the Tribunal's evaluative findings of fact.

92    While the ground also asserts that the Tribunal misunderstood or misapplied the relevant paragraph from Direction 99, Mr Mizen made no submission that purported to identify any misunderstanding or misapplication of the paragraph.

93    To the extent that Mr Mizen submitted that the impugned finding did not reflect an active intellectual engagement with the materials or the Tribunal's own earlier findings, that submission cannot be sustained. As the discussion above shows, the Tribunal's engagement with the likelihood of reoffending was careful and thorough.

94    Ground 1 is not upheld.

Ground 2 - the Tribunal's assessment of ties to Australia

Mr Mizen's submissions about ties to Australia

95    The particulars under ground 2 make three substantive contentions about the Tribunal's consideration of the strength, nature and duration of Mr Mizen's ties to Australia. The first is that the Tribunal made no specific reference to the fact that Mr Mizen spent his formative years in Australia, and gave no or insufficient weight to that fact. The second is that the Tribunal failed to give any or sufficient weight to a range of factors concerning Mr Mizen's ties to Australia, specifically: his long residence in Australia (including in his formative years); his family connection to Australia through his mother; his supportive social network of friends and colleagues; and his contributions to his local area in the Perth Hills, in particular through his historical work for the Kalamunda and Pickering Brook Historical Societies. The third contention is that the Tribunal failed to reconcile its conclusion at paragraph 202 of its reasons - that Mr Mizen's ties to members of the community in Australia could not be said to be particularly strong - with its own earlier findings that his ties to Australia were strong.

96    As for the first contention, Mr Mizen submits that while the Tribunal may have actively engaged with the material concerning his ties to his mother and his social links to Australia, including his historical work under paragraph 8.3(3) of Direction 99 (concerning family or social links generally with Australian citizens etc), it failed to give proper, genuine or realistic consideration to those matters in connection with the matters it was required to consider under paragraph 8.3(4) concerning other ties to the Australian community, including the length of time Mr Mizen has lived in the Australian community (see [41] above).

97    In particular, Mr Mizen's counsel emphasised the requirement in paragraph 8.3(4)(a)(i) that 'considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years' and submitted that the phrase 'formative years' must refer to something more than long residence; it invokes the sense of connection and identity that a person is likely to develop in relation to a country when he or she grows up there. He submitted that, having made no direct reference to that, the Tribunal showed no active intellectual engagement with it. While the Tribunal mentioned his arrival in Australia as a toddler and the fact that he identifies as Australian and has a strong connection to his local area, according to Mr Mizen that was mere lip service.

98    It was not clear that the second contention was pressed, as no written or oral submissions were directed to it. I will deal with it briefly below.

99    In relation to the third contention, the point is simply that:

(a)    at paragraph 128, the Tribunal acknowledged that Mr Mizen's ties to Australia, and in particular his local area, are 'strong';

(b)    at paragraph 196, the Tribunal found that the strength, nature and duration of Mr Mizen's ties to Australia are 'strong';

(c)    but at paragraph 202, the Tribunal stated that Mr Mizen's 'ties to members of the community in this country cannot, in the Tribunal's view, be said to be particularly strong'.

Consideration

100    I will deal with each of the three contentions set out at [95] above in turn.

101    I do not accept the first contention, that the Tribunal failed to give considerable weight to Mr Mizen's presence in Australia during his formative years. What is required is the reality of consideration by the decision-maker, as the Court on judicial review is required to assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the relevant matter: see Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ). There is no requirement that the specific words used in paragraph 8.3(4) be used. I do not suggest that counsel for the applicant contended that there was - he appeared to rely on the lack of those words as indicating a lack of weight put by the Tribunal on that consideration - but the basic point still needs to be made because, with respect, focussing on the particular verbal formulation can distract from the real task.

102    The real task is to determine whether the Tribunal did put considerable weight, as required by paragraph 8.3(4), on the fact that Mr Mizen had been ordinarily resident in Australia since he was a young child. Having reviewed its reasons as a whole, I have no doubt that it did. At paragraph 119, the Tribunal said: 'The Applicant came to Australia as a toddler. There is no doubt he identifies as Australian and has a strong connection to the area where he has lived, in effect, for the vast majority of his life.'

103    Then, to repeat what the Tribunal said at paragraph 196:

The strength, nature and duration of the Applicant's ties to Australia are strong, noting the Applicant came to Australia as a young child and has made this country his home. He strongly identifies as Australian and has not left since coming here as a child. The Tribunal considers such connections cannot be easily discounted.

104    At paragraph 202, after referring to factors that weighed against revoking the cancellation of the visa, such as the risk of reoffending, the Tribunal said: 'Balanced against this, it must be recognised that the Applicant has been in Australia most of his life and considers himself to be Australian.'

105    It does not avail Mr Mizen to submit, as he did, that this is merely repetition of the same point. The fact that it is repeated shows that the Tribunal was giving it considerable weight (and the fact that it was repeated in different words dispels any suggestion that it was mere copying and pasting). Not only was it repeated, but the Tribunal said, expressly, that the connection that Mr Mizen had to Australia could not be easily discounted; this is the Tribunal saying, in effect, that it puts considerable weight on the connections formed by reason of Mr Mizen having spent his formative years here.

106    Therefore, even if it is accepted that paragraph 8.3(4) of Direction 99 required weight to be given to the sense of connection and identity in relation to Australia that Mr Mizen developed because he grew up here, the Tribunal did just that. With respect, the submission that the Tribunal's several references to that consideration were 'lip service' is pure assertion. Viewed in context, the examples I have just mentioned show that the Tribunal actively engaged with the process of weighing Mr Mizen's residence here since he was a small child against other factors.

107    Turning to the second contention, as has been said it was not clear that it was pressed. In any event, it has no merit. It is, in terms, a contention that the Tribunal 'failed to give any or sufficient weight' to certain matters. One of those - Mr Mizen's long residence in Australia including in his formative years - has just been addressed in connection with the first contention. The others - his relationship and support for his mother, his social network of friends and colleagues and his contributions to his local area - are not suggested to be matters in themselves made mandatory or given any particular weight under Direction 99. That being so, the weight to be put on them was a matter for the Tribunal: Abebe at [197].

108    The third contention is based on what is said to be logical inconsistency between selected parts of the Tribunal's reasons: see [98] above. But when read as a whole and in context, there is no inconsistency.

109    The immediate context of the finding at paragraph 128 that Mr Mizen's ties to Australia and his local area were strong was discussion of his work for local historical societies. Immediately after making the finding, the Tribunal went on to support it by reference to evidence about work that Mr Mizen had done recording the history of Kalamunda.

110    The finding at paragraph 196 that the strength, nature and duration of Mr Mizen's ties to Australia are strong was part of the concluding section of the reasons where the Tribunal weighed the various considerations against each other and reached its final decision. The paragraph in which it is found was clearly intended to give an overview of the Tribunal's findings about those ties, and refers (as has been said) to Mr Mizen's strong identification as an Australian, his having come here as a young child, his 'spiritual connection' to the area of Perth in which he has lived for most of his life, his place in the historical community there, and his mother. The Tribunal concluded the overview by saying that it put strong weight on this consideration in favour of revocation of the cancellation of Mr Mizen's visa.

111    The finding at paragraph 202 that is said to be inconsistent with these other findings is about something different. It neither gainsays Mr Mizen's connection to the Perth Hills area through his historical work nor contradicts the broader overview of his ties to that area and to Australia. It immediately follows a finding that Mr Mizen 'is estranged from other family members here and his social network, while supportive, was limited to friends and colleagues'. So in then saying that Mr Mizen's 'ties to members of the community in this country cannot, in the Tribunal's view, be said to be particularly strong' the Tribunal was focussing on the strength of his relationship with individuals (other than his mother, where the Tribunal clearly recognised the ties were strong).

112    There is no inconsistency between paragraph 202 of the Tribunal's reasons and the earlier findings at paragraphs 128 and 196.

113    Ground 2 is not upheld.

Conclusion

114    The application is dismissed.

115    The Minister submitted that if he were successful, it would be appropriate to order Mr Mizen to pay the Minister's costs of the proceeding, fixed at $5,000. Counsel for Mr Mizen properly acknowledged that he could not resist such an order. $5,000 is a reasonable sum in the circumstances and an order to that effect will be made.

Associate:

Dated:    19 August 2024