Mizen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 3113 (3 October 2023)

(a) whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and > > (b) if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).

2. For the reasons below, the Tribunal has decided that the correct and preferable decision is that the Non-Revocation Decision be affirmed.

1. The hearing was held on 12 September 2023 at the Tribunal's Perth Registry. The Applicant attended the hearing in person. He was not represented in relation to his application. The Minister was represented by Mr Beetham assisted by Ms Mumford from the Australian Government Solicitor.
2. At the hearing, the Applicant made submissions, gave evidence and was cross-examined. The Tribunal also took evidence from Ms Sharron Patrick, a former colleague of the Applicant and the solicitor acting for his mother, Mrs Christine Mizen, the Applicant's mother, Mr Gordon Freegard, a colleague of the Applicant's and Mr Michael Nikoloff, long time neighbour and friend of the Applicant's.
3. The following documents were marked as exhibits:
   • Statutory Declaration sworn by David Charles Mizen with attachments A-J dated 30 June 2023 (Exhibit A1);
   • Statutory Declaration from Christina Susan Mizen with one attachment dated 5 September 2023 (Exhibit A2);
   • Statutory Declaration from Michael Nikloff dated 31 August 2023 (Exhibit A3);
   • Statutory Declaration from Sharron Patrick dated 23 August 2023 with Annexure A with three letters (Exhibit A4);
   • Statutory Declaration from Gordon Freegard dated 24 August 2023 (Exhibit A5);
   • Letter from Applicant with respect to letters from Inspector of Custodial Services and Stirk Medical Centre dated 23 July 2023 (Exhibit A6);
   • G documents labelled G1-G19 consisting of pages 1-243; and

• Respondent's Tender Bundle, consisting of pages 1-304 (Exhibit R2).

1. With the agreement of the parties, the Tribunal directed that the Respondent file their Statement of Issues, Facts and Contentions first to assist the Applicant to understand the points the Minister contended were at issue and to prepare submissions and evidence in response to matters arising for consideration under Direction No 99.
2. The Respondent filed a Statement of Issues, Facts and Contentions (RSFIC) dated 18 August 2023 and Amended Statement of Facts, Issues and Contentions (RSFIC 2) dated 8 September 2023 (Exhibit R1). The Applicant filed a Statement of Facts, Issues and Contentions (ASFIC) dated 3 September 2023.

Migration Act

1. The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
2. These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
3. The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by

subsection (7)); ...

1. A 'substantial criminal record' is relevantly defined by s 501(7)(c) of the Migration Act as follows:

(7) For the purposes of the character test, a person has a substantial criminal record if: ...

(c) the person has been sentenced to a term of imprisonment of

12 months or more; ...

1. Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
2. Additionally, under s 501(3A) of the Migration Act, the person must be 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.
3. If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[14] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is 'another reason' why the original decision should be revoked.[15]

1. The Tribunal is required to form a state of satisfaction as to whether there is 'another reason' why the original decision should be revoked, reasonably and on a correct understanding of the law.[16] By reason of s 499 (2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
2. On 23 January 2023, the Minister made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021).[17]
3. An objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[18] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 99 where relevant to the decision.[19]
4. Paragraph 5.1 of Direction No 99 sets out '[o]bjectives' including para 5.1(3) which provides that:

Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full­time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen 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.

1. Paragraph 5.2 of Direction No 99 sets out '[p]rinciples' which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles 'provide the framework within which decision-makers should approach their task of deciding whether to ... revoke a mandatory cancellation under section 501CA' and are expressed as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on

non-citizens in the expectation that they are, and have been, law-abiding,

will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.

(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

(6) Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) [20](Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

1. Informed by the principles set out in para 5.2 of Direction No 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding 'whether to revoke the mandatory cancellation of a non-citizen's visa'.[21]
2. In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[22]

(a) protection of the Australian community from criminal or other serious conduct; > > (b) whether the conduct engaged in constituted family violence; > > (c) the strength, nature and duration of ties to Australia; > > (d) the best interests of minor children in Australia; and > > (e) expectations of the Australian community.

3. The 'other considerations' that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[23]

(a) legal consequences of the decision;

(b) extent of impediments if removed;

(c) impact on victims; and

(d) impact on Australian business interests.

1. Further guidance as to how a decision-maker is to apply the considerations in

Direction No 99 can be found in para 7, which provides that:

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2) Primary considerations should generally be given greater weight than the other considerations.

(3) One or more primary considerations may outweigh other primary considerations.

1. As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a 'substantial criminal record', as defined by s 501(7). Relevant to the Applicant's case,

a person has a substantial criminal record if they have been 'sentenced to a term of imprisonment of 12 months or more'.[24] 2. As noted above, on 22 December 2020 the Applicant was convicted in the District Court of Western Australia of three offences relating to the possession and distribution of child exploitation material (CEM). He was sentenced to terms of imprisonment of at least 12 months with respect to each offence, with a total effective term of imprisonment of three years.[25] 3. As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act. 4. Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[26]

IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?

1. As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 99, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is 'another reason' why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
2. The Applicant submitted, in summary, that:
   • He spent his formative years in Australia having arrived at four years of age and has lived continuously in the City of Kalamunda area (in the Perth hills) since shortly after arriving;[27]
   • He has a strong work history in Australia including as a lawyer and union member and delegate;[28]
   • The Applicant has made a unique and important contribution to the City of Kalamunda community through his historical writing and research. He continues to participate in these activities including from detention;[29]
   • He has close ties to the local community having grown up in the area and through his work and historical research and writing activities;[30]
   • The Applicant's has accepted responsibility for his offences which were fantasy based and the punishment for which was at the lower end of the scale. He has otherwise been of good character and presents a low risk of reoffending;[31]
   • In prison the Applicant's behaviour has been the subject of commendation. He has undertaken rehabilitation in the form of counselling and an offenders program. He has a plan 'to move forward' on release which includes professional support;[32]
   • The Applicant's mother is elderly and suffering from dementia/Alzheimer's disease. The Applicant's siblings are estranged or not available to care for her and her interests will be severely adversely impacted if he is removed as she is reliant on external providers for care in her home. She is at risk of exploitation from in-home care and has been the subject of theft by carers. She will be forced into a nursing home and lose her autonomy if he is not permitted to remain in the community. Her out of home care is an expense to the Australian taxpayers;[33]
   • The Applicant has made complaints about incidents or activities he witnessed in prison and detention to appropriate bodies for investigation and these complaints will be compromised by his removal from Australia. He has also been assisting victims seeking compensation through the Redress program (Royal Commission into Institutionalised Abuse);[34]
   • A decision not to revoke the cancellation of the visa makes the decision maker complicit in the corruption he has complained of;[35]
   • The Applicant has no support in the United Kingdom;[36] and
   • The considerations weighing in favour of revoking cancellation of his visa, including his ties to the Australian community, the impact on the City of Kalamunda and the complaints/reports he is assisting with outweigh those against revocation particularly having regard to the low risk of reoffending and provide 'another reason' why the Cancellation Decision should be revoked.
3. In his Application for review, the Applicant raised a number of additional issues in response to the question 'Why do you claim the decision [of the Delegate] is wrong? One issue was that;[37]

The decision fails to disclose or set out the applicable facts. > > As a consequence of the failure to set out the applicable facts the decision maker falls in error. > > Paragraph 91 is factually incorrect and is not supported by the evidence, and in fact is contrary to the evidence provided and the fact stated refers to some other matter. The considerations referred to in the paragraph are tainted by factual error and consequently are unreliable, irrelevant and unlawful. > > Paragraph 95 of the decision is factually incorrect and is contrary to the evidence provided, the considerations in the paragraph are tainted by factual error, the facts stated refers to some other matter. The considerations referred to in the paragraph are tainted by factual error, are unreliable, irrelevant and unlawful. > > As a result of the errors of fact and law by the decision maker it appears the decision maker is confused by the matter at hand and some other matter. As a result of the decision makers confusion over the facts and the relevant law the findings set out in the decision are not and cannot be reliable as a proper decision.

These references appear to relate to reference in the Delegate's decision record which refer to 'New Zealand'. Those references appear to be a drafting error but, in any event, the Tribunal is considering the Application de novo.

The Decision maker fails to consider relevant material relating to the applicants personal circumstances > > The Decision maker Fails to consider the improved state of mind following the removal of the stressors arising from ceasing to work in the legal industry.

Decision maker fails to consider the submission of material relating to the historic actions of WA military service man for publication and its acceptance for publication as evidence of rehabilitation and reintegration and further the acceptance of the article as evidence of community support.

1. With respect to the protection of the Australian community he submitted:

The Decision maker misapplies the test relating to the protection of the Australian public by substituting a hypothetical future risk in relation to re offending for actual present harm on an Australian Citizen. The effect of the failure to apply the test properly is discriminatory and offends the principle of equality before the law.

2. In representations to the Delegate, the Applicant has also contented that he self-identified as a Wudjuk man and was a custodian and steward of 'the land of the descendants of Munday'.[39] The Applicant did not press this claim in his ASFIC and in evidence before the Tribunal he accepted he was not an Indigenous or First Nations person.[40] He did press his connection to the City of Kalamunda area as a lifelong resident and historian.
3. The Minister submitted, in summary, that:
   • The Applicant's offending cannot be regarded as anything other than very serious. The Sentencing Judge described the Applicant's offending as a 'particularly serious example of this type of offending' both in terms of the number of images and the level of depravity depicted in the material;[41]
   • The number of images held and the 10-year period of time over which the Applicant he had been engaged in possessing them meant the frequency of the offending was significant;[42]
   • The Applicant's offences enabled harm to the children exploited in the material. The nature of that harm involves serious physical and psychological damage to those children such that 'any risk at all' of it reoccurring is unacceptable';[43]
   • The Applicant demonstrated no insight into his offending and its impact. He seeks to minimise the seriousness of his offending and has posited various implausible or unsupported explanations for it. His risk management plan is untested in the community. Given concerns over his remorse, rehabilitation and credibility, he presents an unacceptable risk of reoffending;[44]
   • The Applicant has ties to Australia through his mother and sisters. His ties to his sisters should be given neutral weight as he has no contact with the sister remaining in Australia. His mother's statements should be treated with caution as they appear to be prepared for her. However, the Minister accepts there is an adverse impact on her if his visa remains cancelled; [45]
   • The Applicant has lived in Australia for most of his life. He has built ties through volunteer work, employment, education and community groups and his family should be given considerable weight. He is not an Indigenous person, but the Minister accepts he has strong ties to the area where he grew up and resides in including a spiritual connection to the area; [46]
   • The Applicant has been convicted of serious crimes involving sexual crimes against children aged as young as a year old and the community expectation would be that the visa would remain cancelled;[47]
   • While the Applicant will have limited access to family or social support in the United Kingdom, he does have a link through his sister who resides there. He has a range of employment experience making him well placed to reengage in employment in the United Kingdom. There are reintegration services available to him on return to mitigate hardship. While he identified some health-related concerns, little information was available regarding those issues and in any event, he will have access to similar medical care and support to that available in Australia. Overall, the impediments to the Applicant upon return are by no means insurmountable;[48]
   • The Applicant's historical work for Kalamunda is not work relevant to the consideration of the impact on Australian Business Interest consideration but can be considered as a separate consideration or a tie to the community;[49]
   • The 'other' consideration of the Applicant's complaints to relevant authorities regarding corrupt conduct and other proceedings in which he may be involved should be given no weight. The complaints were lodged after the Delegate's decision and are not supported by evidence. There is no evidence that he will be required as a witness in other matters mentioned. In any event, his participation could be facilitated from the United Kingdom in the event it is sought by relevant authorities or the Courts;[50] and
   • The considerations weighing against revocation outweigh any considerations weighing in favour of revocation.
4. The parties' submissions are considered further below.

1. The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction No 99 requires decision-makers 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. In this respect, the Tribunal is directed to 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.[51]
2. Paragraph 8.1(2) of Direction No 99 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
3. The Applicant submitted that although the offences were serious, there was 'low to no risk' he would reoffend, and the protection of the Australian community did not require that his visa remain cancelled.
4. The Respondent contended that the Applicant's offending was very serious and that any risk of reoffending was unacceptable. The Respondent contended that the protection of the Australian community weighed very heavily in favour of non-revocation of the Cancellation Decision.

1. In considering the nature and seriousness of the Applicant's criminal offending and other conduct to date, paragraph 8.1.1(1) of Direction No 99 provides that the Tribunal must have regard to:[52]

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: > > 1. violent and/or sexual crimes; > 2. crimes of a violent nature against women or children, regardless of the sentence imposed; > 3. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed; > > b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious: > > 1. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed; > 2. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; > 3. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c)); > 4. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;

1. with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; > > e) the cumulative effect of repeated offending; > > f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; > > g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). > > h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

2. The Tribunal notes it is required, pursuant to Direction No 99, to take into account a range of factors, including certain conduct which is to be regarded as 'very serious' or 'serious'. Relevantly, the Tribunal is to have regard to whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence, without limiting the range of conduct that may be considered to be very serious.
3. The Applicant conceded the offences were serious.[53]
4. The Respondent submitted the offences could not be regarded as other than very serious having regard in particular to the amount of content possessed by the Applicant and the very serious nature of that content, reflected in the sentencing Judge's remarks.[54]
5. The three offences for which the Applicant was sentenced on 22 December 2020 were his first serious offences since arriving in Australia as a child. He has three minor traffic offences during that time (in 1987, 1990 and 1996)[55] and there is no information that he had come to the attention of police before he was identified in January 2019 by the Joint Anti Child Exploitation Scheme in connection with a peer-to-peer file sharing network which was sharing CEM. [56]
6. The sentencing remarks note that the Applicant did not dispute the facts presented by the State. According to the sentencing remarks the offence relating to distribution of CEM concerned a period between 30 January 2019 and 1 February 2019 when the Applicant was identified on the peer-to-peer platform as a user requesting and making available CEM at his IP address.[57] The Applicant's laptop had a hard drive attached to it on which the material was stored. When connected to the peer-to-peer platform on the internet that meant a portion of the Applicant's CEM catalogue was available on the network.[58] The sentencing Judge observed that while the indictment related to a 2-day period, the Applicant had his material connected for longer than that period.[59]
7. The counts in relation to possession of CEM related to images and videos found on two devices seized by police - A ScanDISK USB and a Seagate Hard Drive. The material distributed on the peer-to-peer network was contained on the Seagate Hard Drive. [60] On the USB, there were 35 child exploitation images and 90 child exploitation videos showing children between the ages of five and 12 years old. On the hard drive there was 1,413 images and 230 videos depicting children ranging in age from one to 14 years old.
8. The material was described as falling into 'Categories 1-6 of CEM,[61] The categories for this material are described as follows:
   • Category 1: nudity or sexually suggestive posing with no sexual activity, of which the applicant's seized devices contained 12,730 images or videos;
   • Category 2: non-penetrative sexual activity between children, or solo masturbation by a child, of which the applicant's seized devices contained 1,582 images or videos;
   • Category 3: non-penetrative sexual activity between adult(s) and child(ren), of which the applicant's seized devices contained 1,854 images or videos;
   • Category 4: penetrative sexual activity between children or adult(s) and child(ren), of which the applicant's seized devices contained 2,368 images or videos;
   • Category 5: sadism, humiliation or bestiality, of which the applicant's seized devices contained 376 images or videos; and
   • Category 6: animated or virtual depictions of children engaged in sexual poses or activity, of which the applicant's seized devices contained 35 images or videos.
9. The material on the two devices in relation to which the Applicant was convicted covered material in categories 1-5. In addition, the sentencing remarks note that it was not disputed that there were 27 devices seized by police and that across those devices there was material covering all categories (1-6) for a total of 17,554 images and 1,391 videos.[62] The additional material was not covered by the convictions but the sentencing Judge noted it indicated that the material covered by the indictment was not the totality of the Applicant's collection and that the overall figures indicated the 'magnitude' of that collection.[63] The sentencing remarks record that that Applicant admitted to a psychologist who prepared a report before the Court in the sentencing context that he had been accessing CEM for a period of 10 years.
10. Her Honour indicated she viewed a representative sample of the material in relation to which the Applicant had been charged (that is contained on the ScanDISK USB and Seagate Hard Drive. Her Honour noted that a large portion of the images in Category 1 were of children who were six years old or younger (as opposed to children in a pubescent age range) and focussing on their genitalia.[64] Her Honour noted there was material that fell within Category 5 which included BDSM and bestiality noting 'BDSM images were particularly significant in both in terms of their level of depravity but also in terms of the pain that can be seen on the children who are depicted.'[65] Describing some of the more disturbing material Her Honour noted:[66]

...images and the videos and the BDSM material show children being tied up in submissive ways. For example, one of the images depicted a girl who had a noose around her neck and she appeared to be naked on the lower half. > > There were images which showed children tied up and being penetrated with objects such as dildos, or with penises. There were images which showed children being whipped. In particular, there was a compilation image which showed the backsides of children which were red raw from whipping injuries, those children included very young children at the age of two to three years of age. > > There were children which had pictures of naked children with very derogatory words written on their stomach, suggesting that the children were the property of their dad and needed to be fucked. > > There were children for example that included images of a young boy, there were many images of him tied to a cross or to poles and he was being poked by a large stick and appeared to be in obvious pain. > > The category 5 images also included bestiality images which included images of children giving fellatio to animals. > > There was a video of dogs licking the genitals of young children, young girls who appeared to be about 12 years of age. > > There were images of children being sexually penetrated by animals, some including the depiction of pain on the face of the children and in particular one image that stood out to me was an image of an infant, a very small infant, with a dog's penis placed right close to its mouth.

11. Her Honour expressed the view that category 5 images were 'both significant, highly perverse, depraved, and showed images which depicted real punishment and pain suffered by these children.'[67]
12. 'Other significant material' included a large number of videos in Category 4 showed full penetrative sex between adult males and young girls, all under the age of 10.[68]
13. While the Applicant did not have contact with the children, Her Honour noted that the children depicted in the material on the indictment (Categories 1-5) were real children.[69]
14. In addition, there was material which appeared to provide instructions on performing sexual acts including penetrative sex on girls between the ages of three and six. Her Honour noted it seemed that the purpose of this material, which consisted of images and text, 'is to be providing information and encouragement to people as to how to engage in the actual sexual abuse of children, as opposed to simply providing information to view or an image to view.'[70]
15. Having viewed the material, Her Honour formed the view that this was a serious example of offending of this type 'both in terms of the number of the images and the videos but in terms of the level of depravity depicted in both the images and the videos.'[71]
16. Her Honour also noted that 'it is fair to say that offences of this type are serious' having regard to the maximum penalty for such offences which was 'significant' (at 10 years for distribution and seven years for possession) because of the nature of the material.[72]
17. The Applicant has a number of convictions for the possession and distribution of CEM. The sentencing remarks make it clear that the material was demonstrable sexual in nature and was used for the purposes of sexual gratification. It included images and video recordings of sexual abuse of infants and children. It also included material recording violence, including sexual violence, against children. While the Applicant did not engage directly in that abuse, the sentencing Judge's comments make it clear that these offences encourage, promote and facilitate direct acts against children and are properly regarded as offences against children. In the Tribunal's view, having regard to the direction, these offences to be viewed very seriously because they involved both sexual crimes and violent crimes against children. In the Tribunal's view, there can be no doubt that the Applicant's offending comes within the types of crimes or conduct that Direction No 99 states should be "viewed very seriously". In any event, the conduct reflected in the offences and in the uncontested facts before the Court is, in the Tribunal's view, very serious conduct particularly having 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.
18. There was evidence the Applicant had used the material for masturbation purposes but no evidence he had received payment for disseminating the material, or that there was significant distribution over an extended time period.[73] This was relevant to the assessment of the seriousness of the distribution offence. However, the sentencing Judge noted the material made available for distribution was a 'serious collection' of material including material in the 'upper echelons of category 4 and 5'.[74]
19. Further, the Applicant contended in the sentencing context that he did not recall viewing the material falling in the category 5 classification, however the sentencing Judge did not accept this claim was credible having regard to the amount of material in that category contained in the material possessed by the Applicant and the length of time he admitted to having been viewing CEM content.[75] The Applicant did not make this claim before the Tribunal and in any event the Tribunal accepts the Court's assessment regarding the credibility of the claim noting that it was consistent with other evidence suggesting the Applicant had a tendency to minimise the seriousness of his conduct, in part apparently due to the fact he found it difficult he had a sexual interest in children.
20. Her Honour noted that a sentence of imprisonment was a sentence of last resort but having regard to the nature of the material in the Applicant's case, the only appropriate sentence was a term of immediate imprisonment with a total effective sentence of three years.[76] While this was below the statutory maximum for the offence, having regard to the sentencing Judge's comments and the Applicant's lack of prior convictions, the Tribunal considers that sentence to reflect the fact the offending was very serious.[77]
21. Considering the frequency of the Applicant's offending and whether there is any trend of increasing seriousness,[78] the Tribunal notes the Applicant submitted there was no escalation in his offending.[79] While the Tribunal acknowledges the Applicant's conduct included material which could be regarded as being in the most serious category, being Category 5, there was no information to demonstrate the Applicant's engagement with CEM progressed in the sense of escalating to the point of including such material or of increasing access to material generally. In addition, while distribution of the material might be regarded as more serious than its possession, a point made in the sentencing Judge's comments and reflected in the statutory penalties for the offences being higher for distribution, there was no information before the Tribunal regarding the point at which the Applicant commenced distributing material, noting the sentencing remarks that participation in the peer-to-peer platform for accessing material encouraged distribution to allow faster downloading of other people's material. In any event, in the Tribunal's view, the lack of information regarding the progression for the Applicant's conduct in possessing and distributing CEM does not reduce the assessment of that conduct as very serious.
22. With regard to the frequency of the offending, while there were only one set of offences, the sentencing remarks record that the Applicant admitted having accessed CEM over a 10-year period. The number of images and videos in his possession indicates the 'magnitude' of his collection and in the Tribunal's view indicates frequent and prolonged engagement in distribution and possession of CEM. In the Tribunal's view, this aspect of the Applicant's conduct does contribute to the overall assessment of the nature of his conduct as being very serious.[80]
23. The possession and distribution of CEM harms those who are the victims of the abuse depicted in the material, both through encouraging a marketplace for the material and perpetuating the exposure of the individual children to the ongoing impact of exposure. While the Applicant admitted to having possessed and accessed this material over a 10-year period, the Tribunal considers that as there was not 'repeated offending' as referred to in the Direction No 99 however it was prolonged conduct which was not detected for a considerable period of time.[81] As such, the effect of repeat offending does not, in the Tribunal's assessment, contribute to the overall assessment of the seriousness of the offending. However, for the reasons the Tribunal has outlined above, the protracted nature of the conduct is a feature contributing to the overall assessment of the conduct as very serious.
24. The Tribunal notes there is no information before it that the Applicant had previously received any formal or other written warnings that further offending may affect his migration status or that he has provided false or misleading information to the Department.[82] While the activity in the material possessed or distributed by the Applicant may have occurred offshore (that information is not before the Tribunal), the Applicant's offending did not occur in another country and so paragraph 8.1.1(1)(h) of Direction No 99 is not relevant.
25. Taking the Applicant's record as a whole, the Tribunal considers the Applicant's offending and conduct to be very serious.

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

1. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 99 states, in part:[83]

(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:

1. information and evidence on the risk of the non­citizen re-offending; and
2. 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). ...

1. In relation to risk the Applicant acknowledged that the harm caused to victims was significant but that there were 'countervailing factors'. These included that:[84]

1. the Applicant accepted responsibility for his actions and entered a guilty plea G5 pg 40. 2. The offences are fantasy based G5 pg 49.

1. There is no escalation or contact offending G5 pg 49.

1. Punishment is on the lower end of the scale G5 pg 47. 2. There is no other serious offending G5 pg 53 para 6. 3. Judge Barone found that there is a low risk of reoffending G5, pg 46. 4. The Judge expresses a view that parole and reintegration into society is an appropriate course of action (G5, pg 56). 5. The applicant has community support, refer declaration of Sharron Patrick and attachments, and declarations of Gordon Freegard and Michael Nikloff.
2. The Applicant submitted that the Judge's findings should be given significant weight and that the Tribunal should adopt the rational of Deputy President Boyle[85] in Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs.[86]
3. The Tribunal has considered the decision of Deputy President Boyle in Fetelika. The factual circumstances of that decision were quite different to the Applicant's case and it is not obvious to the Tribunal the 'rationale' in that case to the assessment of the risk to the Australian community in the Applicant's circumstances. In Fetelika the Tribunal held that while the offences were serious, the offending was not premediated and was out of character. As such it was 'not, however, of such a nature that even strong countervailing considerations would be insufficient to justify there being another reason the revoke the mandatory cancellation of the Applicant's visa'.[87] Deputy President Boyle went on to assess that while the harm which might be caused was the relevant offending in that case to be repeated was serious, the likelihood was extremely low and as such only minor weight should be afforded the consideration in that case. For similar reasons, the Tribunal placed only minor weight on the consideration of the expectations of the Australian community in that case.[88]
4. As discussed with the Applicant at the hearing, it appeared to the Tribunal that in Fetekila Deputy President Boyle was engaging in the exercising of examining and weighing all the relevant considerations in that case,[89] which is what the Tribunal must do in this case. The Tribunal was unable to discern a particular 'rationale' applicable to this case other than that consideration of the particular circumstances of an Applicant will need to be taken into account in determining the weight to be given to the relevant considerations under Direction No 99 in deciding if there is 'another reason' why the visa cancellation should be revoked.
5. The Respondent submitted that the risk to the Australian community weighed heavily against revocation having regard to the serious psychological and physical harm caused to victims of CEM and to risk of recidivism. The Respondent submitted that given the harm which would be caused if the Applicant were to reoffend, any risk was unacceptable.

1. 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 consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[90]
2. In the Tribunal's view there can be no doubt the nature of the harm to individuals, or the Australian community should the applicant reoffend would be very serious.
3. The sentencing Judge noted with respect to the harm done by the distribution and possession of CEM:[91]

... child exploitation material is not a victimless crime. These are real children. > > Those who are prepared to possess child exploitation material fuel the demand for it, and it is often said that people with paedophilic interests might be stimulated to commit paedophilic acts if they have access to this material.

Her Honour also noted several times with respect the Category 5 material that the images depicted real punishment and pain being inflicted on children.

1. The Respondent referred the Tribunal to material from the Bravehearts organisation relating to research into the impacts of CEM on children, recording the fact that survivors of CEM can carry psychological injury and trauma into adulthood. In addition to the trauma of the abuse inflicted on them, victims suffering is prolonged due to the dissemination of images, the permanence of online material and a sense of ongoing abuse.[92]
2. The fact that CEM offending causes harm to children who are its victims was noted by the Full Court of the Federal Court of Australia in Craig v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 196 at [11]:

... it is obvious and logical that those who in some way use child exploitation material contribute to market demand for the creation of more such material. The creation of such material necessarily involves the actual abuse of children in order to photograph or film them. That could involve Australian children as a result of any such activity taking place in Australia.

Later their Honours went on to observe:[93]

Akin to what has already been observed, there is an obvious and logical connection between any dealing with child exploitation material, and such dealing contributing to the demand market for the creation of more such material and thereby the exploitation of children to produce that material. That may include children in Australia. Specific evidence to support such an obvious and logical conclusion from the nature of such offending is not required, including identifying, as a matter of ordinary logic, the contribution of such dealing towards market motivations to create such material. This is not mere guess work or speculation.

1. In the Tribunal's view it is well accepted that the possession and distribution of CEM causes serious phycological 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 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'.[94]
2. 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 was removed and was offshore when reoffending. With respect this issue, the Full Court in Craig held that:[95]

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.

3. 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.

Likelihood of the non-citizen engaging in further criminal or serious conduct

1. 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.[96]
2. The Applicant contended the is low risk he will reoffend.[97] He contends that the sentencing Judge assessed him to be a low risk of reoffending, reflected in his relatively short prison term and the fact the Judge considered it was appropriate he be made eligible for parole.[98] Further, the Applicant noted he had completed rehabilitation courses, including the medium intensity sex offender's program in prison and had a greater understanding of the triggers or causes of his offending as a result. He has been able to put in place a plan for avoiding reoffending in the community which includes seeking psychological and medical support, continuing his historical work and reskilling to work outside the legal profession and living with and caring for his mother. This plan was accepted by the Parole Board. He also has strong support in the community which will act as a protective factor against reoffending.
3. The Respondent submitted the Applicant has never been assessed as presenting a low risk of CEM reoffending. Rather, the prison risk assessment process determined him to be a moderate risk of reoffending, resulting in his referral to the sex offender's program. Further the psychological assessments referred to by the sentencing Judge assessed the Applicant to be a low risk of contact offending against children,[99] a distinct consideration from the risk of CEM reoffending.
4. The sentencing Judge's remarks note that the Court had the benefit of several psychological reports including the forensic psychological assessment and treatment report of Ms Fowler dated 12 November 2020, a psychological report from clinical psychologist, Richard Midford dated 25 September 2020 and a presentence report prepared by the Department of Corrective Services dated 14 July 2020.[100] Those reports were not before the Tribunal, however the sentencing Judge provided an analysis of key aspects of them. In addition, the material before the Tribunal included a Treatment Assessment Report dated 19 May 2021 to assess the Applicant's programmatic intervention needs in prison,[101] the completion report of the Medium Sex Offending Treatment Program (SOMED) completed on 6 September 2022[102] and the Parole Review Report dated 12 April 2022[103] and Parole Addendum dated 7 September 2022.[104] These reports or records in part address issues of the Applicant's likelihood of reoffending.
5. The sentencing Judge noted attempts by the Applicant during the indictment process to find other explanations for his offending including toxoplasmosis and autism spectrum disorder - neither of which the Court accepted the Applicant was suffering from. The Court recorded the observations of the report of Mrs Fowler as follows:[105]

Mr Mizen presents numerous possible explanations for his current offending. However, none provided a clear or cogent reason as to why he accessed and saved the CEM in the manner he did over a considerable period of time.

She says:

Overall, Mr Mizen presented as a highly anxious man who lives a somewhat socially isolated lifestyle. He presented with a limited ability to cope with any psychological distress he experiences and maintains a defensive and avoidant approach and attitude to trying to explain his current behaviour.

It is her opinion that you meet the diagnostic criteria for an avoidance personality disorder and that avoidance personality disorder is usually characterised by the individual experiencing a pervasive pattern of social inhibition, feelings of inadequacy, hypersensitivity to negative evaluation beginning by early adulthood and present in a variety of contexts.

Ultimately she makes a conclusion that you are a fantasy driven CEM offender, so rather than it being something that is connected to any contact offending that it is connected to your sexual interest in children.

She posits this in her opinion 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 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 ....

Her Honour accepted on this basis that the Applicant did not present a risk of contact offending with children. Her Honour observed, noting with respect to autism the report of Mr Milford, that:[106]

..there is no support for the idea that you have autism spectrum disorder that would explain your offending. The most obvious explanation is that which is posed by Ms Fowler is 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.

1. Her Honour considered the Applicant's attempts to find possible explanations for his offending, other than a sexual interest in children:[107]

...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.

2. However, Her Honour indicated 'there had been no significant indication of remorse' noting however, in mitigation that he had plead guilty (though not at the earliest possible time) had no prior record and that personal factors including his age, social isolation and the situation of his mother justified a reduced sentence.[108] She also notes the rehabilitation recommendations of Mrs Fowler but the sentencing remarks do not detail these.
3. Her Honour concluded parole was appropriate, noting the Applicant would need support to reconnect in the community and re-enter employment and that parole would be a support in this regard.[109] The Tribunal notes these observations were offered by the Applicant as evidence that he presented a low risk of offending, however the Tribunal considers they reflect a view by the court that rehabilitation would be supported by a structured, and supervised, re-entry to the community.
4. As discussed with the Applicant at the hearing, the Tribunal was unable to find any assessment in the material that he presented a low risk of offending with respect to CEM material.[110] There was support for an assessment that he presents a low risk of contact offending, which the Tribunal accepts based on the reports or records available. However, the reports draw a distinction between contact offending and possession and distribution of CEM. The Tribunal considers 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.
5. As noted above, in formation 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'.[111] However the report notes:[112]

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.

6. His identified treatment needs were:[113]

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 and address self-esteem, coping, intimacy and attachment risk factors and identify coping strategies and warning signs to 'hopefully' reduce the risk of reoffending.[114]

1. The SOMED Program Completion Report for the notes:[115]

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 GEM, 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.

2. The report went on to note that if the Applicant remained in Australia the following conditions should apply to his parole:[116]

• 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 in pro-social activities
  • Abide by all Sex Offender Management Squad (SOMS) conditions, including

• No unsupervised contact with children under 16 years.

1. 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'.[117] He was paroled on 20 October 2022.[118] The Tribunal notes that the Applicant's parole expires in December 2023.[119]
2. The Tribunal notes that these reports were prepared and analysed in the sentencing context. 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. As such, the Tribunal's task necessarily involves a somewhat broader and more long-term assessment of risk, beyond the immediacy of sentencing. However, the Tribunal considers the sentencing Judge's analysis of the reports before it and the reports prepared in the context of rehabilitation programs and parole considerations to be relevant in assisting to assess the likelihood of reoffending in the context of the Tribunal's task. In the Tribunal's assessment that material suggests 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 competition 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.
3. In this regard, the Tribunal 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[120]:

MR BEETHAM: One of the impressions the Minister gets from the materials you've filed in the tribunal and in other places is that you remain devoid of remorse for the offending. Is that the case? > > APPLICANT: Do I regret bringing everybody here today? Yes, I do regret that. > > MR BEETHAM: Are you remorseful for the impact on the children? > > APPLICANT: Yes. You went back to the fantasy, well part of that and I don't know if - this is kind of the anxiety and the avoidance and all these things coming together. My - (indistinct) honestly in my photographic practice is based on a kind of Marxist assessment of capitalism. I don't like - there's a duality in this and part of the duality and I think this is what Helen was alluding to with the low-risk stuff. I don't like that financial exploitation issue that arises in that and I kind of - I can't reconcile my aversion on that side to what happened here. > > MR BEETHAM: When you say the financial component or the financial incentive on that, are you talking about the financial component of the production of child exploitation material?--- > > APPLICANT: Yes. > > MR BEETHAM: Okay. My question originally was about your degree of remorse for the conduct which throughout the course of things like your Statement of Facts Issues and Contentions you describe as serious charges. What I'm trying to understand is while I appreciate you're remorseful about having to bring your mother and friends and colleagues into this environment what is your degree of remorse for the harm that's been inflicted on the children the subject of the material that you possessed and distributed? > > APPLICANT: I would rather it hadn't happened. I regret that it happened.

4. The Tribunal later sought to clarify the Applicant's responses and to understand what insight he had learned from the SOMED program. He stated that he had learnt about the extent of his anxiety problems, which he 'needed to get on top of'.[121] With respect to the impact on children:[122]

SENIOR MEMBER: Anything else you would say you learned from the program? > > APPLICANT: The effects of what I did. I regret that. I don't look back on that with great fondness but I did it, so. > > SENIOR MEMBER: So what would you say the effects of what you did were? What was your realisation now? > > APPLICANT: The traumatic effects on the children. It perpetuates, the trauma, really, I think is probably a better way of putting it. > > SENIOR MEMBER: What perpetuates the trauma? > > APPLICANT: The - well, there's the offending against them in the first instance and then the redistribution of the images perpetuates the trauma. And it goes on perpetuating for as long as the image is floating around out there. > > SENIOR MEMBER: And did you learn anything about why you didn't understand that at the time you were committing those offences? > > APPLICANT: It was a head in the sand, I think. > > SENIOR MEMBER: And so how is it that you view those offences now? > > APPLICANT: They are serious - very serious. I regret it. > > SENIOR MEMBER: So when you described being uncomfortable with the financial aspect, what did you mean by that? > > APPLICANT: There is a trauma inflicted on them which I contributed to but it - I think it's referred to in there, and a sex tourism - so tourism for sex for money. > > SENIOR MEMBER: So what is it that you are uncomfortable with there? > > APPLICANT: The fact that that happens. > > SENIOR MEMBER: Does it matter if it's not for money? > > APPLICANT: Yes, it does matter. Well, does it matter? It's - it's adding trauma. > > SENIOR MEMBER: Do the children care if money changes hands? > > APPLICANT: I don't know. In that context I haven't turned my mind to the - to the grass roots level of - - - > > SENIOR MEMBER: Because some of these children are too young to even know what money is? > > APPLICANT: M'mm. > > SENIOR MEMBER: So, does it matter to them if there is any money changing hands? Does that make it any better from your perspective? > > APPLICANT: No.

5. When asked why the Tribunal should be confident he wouldn't reoffend, the Applicant pointed to his plan to work on his anxiety with Mr Mitford:[123]

SENIOR MEMBER: And why is it that you say the tribunal should be confident that you wouldn't reoffend? > > APPLICANT: Because at this time - I've worked out one of the things that I didn't do during that time was get help and as part of the talking to the PCS, formulated that plan that's in the - in its fairly brief form, but it includes going back to Dr Mitford to address the underlying stress - trauma - whatever - anxiety. > > SENIOR MEMBER: And how is it that you understand that 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 driving 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.

6. 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.
7. The Tribunal also notes the Applicant' 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.[124] His GP also provided a letter indicating he would remain a patient of the practice.
8. In addition, while the reports before the Tribunal noted his social isolation and lack of pro-social supports in the community, the Applicant provided statements from friends and colleagues prepared to support his return to the community. This included the evidence of Mr Nikoloff, Ms Patrick and Mr Freegard. The Tribunal found those witnesses to be appraised of the general nature of the Applicant's offending and committed to assisting him to rehabilitate and re-enter their local community in their own individual ways. The Tribunal places weight on their evidence in this regard but notes 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.
9. 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 reoffending. Further, as the Applicant's parole expires in December 2023,[125] the supports offered by parole will be of limited impact with respect to protection against reoffending. The exception would be any ongoing reporting requirements due to the Applicant's designation as an ANCOR (Australian National Child Offender Register) reportable offender.[126] The Tribunal considers the reportable offender arrangements will act as a protective factor against reoffending.
10. 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.

Conclusion on the protection of the Australian community

1. The Tribunal considers the protection of the Australian community weighs in favour of not revoking the cancellation of the visa.

1. Paragraph 8.2 of Direction No 99 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
2. There is no evidence or information before the Tribunal to suggest that the Applicant has engaged in offending or conduct that constitutes family violence and therefore this consideration is not relevant in the Applicant's circumstances.

The strength, nature and duration of ties to Australia

1. Paragraph 8.3 of Direction No 99 states that decision-makers must consider the non-citizen's immediate family members in Australia, where those family members are Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely, when making a decision.
2. Relevantly, para 8.3 of Direction 99 provides states:

(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:

1. 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
2. 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
3. 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.

1. The Applicant submitted he has enduring ties to Australia having arrived as a young child and having spent the majority of his life living in the Perth hills area. He claimed a close connection through his mother, who is in her 90's and suffering from dementia. He contends his removal will hasten her move to institutional care. This is not something she wants.[127] He also claims he has a strong spiritual connection to the Kalamunda area, to its land and its history.[128] He likened this to the connection the Wadjuk peoples, the traditional owners of that area, to the land. Although initially claiming identification as a Wadjuk person he later clarified he was not claiming to be Indigenous.[129] He submitted he made an ongoing contribution to the community through his work recording the history of the area.
2. The Respondent accepts the Applicant's ties to Australia are strong, particularly through his mother but contends that this consideration does not outweigh other considerations weighing against revocations.[130]
3. 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. The Tribunal also acknowledges he has lived with his mother his whole life and she was reliant on his care and assistance prior to him entering prison.
4. The information before the Tribunal indicates Mrs Mizen suffers from Alzhiemer's disease/dementia and her condition is progressive and worsening.[131] She lives at home with the assistance of in-home aged care assistance from two government support providers. Other members of the community, including Mr Nikoloff, who is a neighbour, and Ms Patrick who is her solicitor, provide assistance.[132] She is estranged from her youngest daughter, who lives in Melbourne, and her older daughter lives in the UK. They do not speak often. She couldn't recall when she last spoke to her older daughter but thought it was several months ago.[133] There was evidence Mrs Mizen's daughter was engaged in her care arrangements, including in conversations regarding her home care support package.[134] Mr Mizen and his older sister hold a power of attorney for their mother but she has no guardian appointed at this stage.[135] Her other son died in infancy, a twin of her younger daughter.
5. Mrs Mizen gave evidence before the Tribunal.[136] She provided two statutory declarations outlining her situation and the impact her son's removal will have on her. While the Respondent contended her statements must be approached with caution given her medical condition and the fact her statement resembles one of Mr Mizen's,[137] the Tribunal considered the statements were consistent with the evidence given orally and while she may have had assistance drafting the statements, the Tribunal considers they fairly reflected her views. Further, Ms Patrick attested to having gone through the statements with her and was confident she understood them.[138] While the Tribunal approached Mrs Mizen's testimony with some caution as she had attended the hearing, the Tribunal decided to allow her to testify and found she was able to answer questions and understand the proceedings.
6. It is clear that Mrs Mizen does not want her son removed from Australia. She wants to remain living in her home and is cognizant this will become increasingly difficult if he is unable to live with and care for her. Further, she clearly has a strong bond with her son. She described him as being her only means of moral support.[139] When asked what she would do if he were removed she said she would 'slash her wrists'[140] and while the Tribunal did not take this as a statement of intent (noting there was no evidence to suggest she had presented with suicidal ideation), it did understand her statement as an expression of the profound effect she feels her son's removal would have on her. Further, she suggested that the Commonwealth will bear the costs of her care in a nursing home and the inheritance of her Australian citizen daughters will be impacted.[141]
7. It was also clear from the evidence of Ms Patrick[142] and Mr Nikoloff[143] that Mrs Mizen's condition is deteriorating and she needs increasing assistance to enable her to function independently at home. Ms Patrick described Mrs Mizen's capacity as 'very questionable' and noted she needed someone to manage her finances and day-to-day health.[144] Ms Patrick testified she was assisting Mrs Mizen with a Centrelink application to continue her care in the home.[145]
8. The Tribunal notes Mr Mizen's evidence was that he wished to live with and care for his mother to keep her in her home as long as possible. However, he recognised that there would be a point where her needs would be beyond his capacity, and she would have to enter a nursing home.[146] He felt this might be a number of years. He also wanted to be present to act as her guardian when she lost capacity to make decision on her future, noting that his sisters were unlikely to fulfil this role.
9. The Tribunal considers that Mrs Mizen's interests would be best served by Mr Mizen remaining in Australia. His removal will 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. However, she is receiving care in her home, is being treated by a GP and a specialist gerontologist and members of the community who are providing her with other assistance. While Mrs Mizen suggested she had items stolen from her by one of the external carers. There was no evidence to suggest her care needs were not being met at the present time or that they would not continue to be met in the future. Again, while this may not be ideal from Mrs Mizen's perspective, the Tribunal considers there are alternatives to Mrs Mizen's care which are available to her. Notwithstanding this, the Applicant's ties to her weigh in favour of revoking the visa cancellation.
10. Mr Mizen also has close ties to the area where he has lived for most of his life. He is active in the historical community there and the Tribunal accepts based on the evidence he has made an important contribution to documenting the history of the Kalamunda area, including for the Kalamunda council. Several friends and colleagues provided strong statements in support of Mr Mizen's contribution to the community and connection to them.[147] Those statements acknowledged the seriousness of his offending but offered support for his rehabilitation and a belief in his capacity to make a positive contribution in the future. As noted earlier, the Tribunal found the evidence of community support to be genuine and demonstrated the esteem with which Mr Mizen is held particularly with respect to his historical work. Mr Nikoloff described the support of Kalamunda Historical Society Members in following way:[148]

I think a lot of the members at the historical society - and I was quite pleased that they had the attitude that, you know, they would still welcome you back and they - some people as Sharron [Ms Patrick] said, some people are very nasty and that's it, that's - won't want anything to do with someone after this. But you know, they were all very supportive and said help (indistinct) and you're welcome to come back.

11. The Tribunal notes that it has given further consideration to Mr Mizen's historical work as 'other consideration' in the context of the revocation decision below. The Tribunal has also given consideration to his potential as a witness in court and corruption inquiries below.
12. However, in terms of ties to Australia, the Tribunal acknowledges the Applicant's ties to Australia, and in particular, his local area are strong. He has engaged with in-depth work recording the history of Kalamunda and that work is clearly valued by members of the community. Mr Nikoloff indicated he would miss the Applicant's company and assistance with his vintage car if he were removed.[149] Ms Patrick spoke to him being a courteous and knowledgeable colleague. She testified that his mother needs someone to look after her and he is the 'obvious choice'.[150] Notwithstanding the challenges presented by the nature of his offending, members of the Kalamunda community were prepared to advocate for him to remain in the community and the Tribunal places weight on those representations as an indication of the esteem in which his efforts in the historical area in particular have been held.
13. The Applicant provided a description of his 'friends and associates'[151] and contended that these associations gave him strong ties to Australia. While the Tribunal considers the descriptions of some of these relationships suggests relatively casual associations, the Tribunal considers that the Applicant's connections to the community particularly in the Kalamunda area weigh in favour of revocation.
14. Overall, the Tribunal considers the Applicant's ties to Australia are a factor weighing in favour of revocation.

Best interests of minor children in Australia affected by the decision

1. Paragraph 8.4 of Direction No 99 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4(1), the Tribunal must make a determination whether refusal is, or is not, in the best interest of a child affected by the decision.
2. There were no children identified in the material before the Tribunal who would be affected by the decision.[152] The Applicant did not suggest at the hearing that there were any children in Australia who would be affected.
3. Accordingly, this consideration is not relevant in the Applicant's circumstances.

1. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction No 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government to not allow such a non-citizen to enter or remain in Australia.
2. Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
3. The Direction notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen's visa if they raise serious character concerns through conduct, in Australia or elsewhere, listed in sub-paras 8.5(2)(a)-(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered 'very seriously' or 'serious'. Relevant to the Applicant's circumstances, those concerns include, at paragraph 8.5(2)(c):

commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect.

4. Paragraph 8.5(3) of Direction No 99 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the 'norm' expressed in para 8.5(1), which refers to the 'unacceptable risk' of conduct being engaged in. This makes it clear that a 'measureable [sic] risk' of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
5. This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
6. The Applicant submitted that the consideration was normative but did not bind the Tribunal. He submitted that the Tribunal may assign such weight to the consideration as it sees is appropriate. In this regard he referred to the following circumstances:[153]
   • The Applicant accepted responsibility for his actions and entered a guilty plea.
   • The offences are fantasy based.
   • There is no escalation or contact offending.
   • Punishment is on the lower end of the scale.
   • There is no other serious offending.

The Applicant contended that in light of these factors, minor weight should be placed on this consideration.

1. The Respondent submitted that The Applicant's offending came within the categories giving rise to serious character concerns. The Minister cited the Bravehearts organisation noting that:[154]

The growth of online CEM is a global threat requiring coordinated action - ten years ago, 70% of reports of online CEM received through the National Center for Missing and Exploited Children's CyberTipline reflected abuse in the Americas. Today, 68% of report relate to abuse in Asia, while 19% of reports relate to abuse in the Americas, 6% in Europe and 7% in Africa (Bursztein, DeLaune, Eliff et al., 2019).

2. The Respondent went on to submit that:[155]

Various international law enforcement agencies, including the AFP, Interpol and Europol conduct operations to stifle such offences. International conventions, such as the Convention on the Rights of the Child, and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (of which there are 148 State Parties and 7 Signatories),54 are clear in clarifying the obligation of states to protect children from sexual exploitation and sexual abuse. Accordingly, the Minister contends that offending involving child exploitation material is a serious crime of international concern.

3. In the Respondent contended that the nature of the applicant's offending and conduct falls into the category of crimes which are so serious that even strong countervailing considerations do not sway the expectation that the visa should remain cancelled.[156]
4. The Applicant's offending can be properly characterised as falling within the categories identified in sub-paras 8.5(2)(a)-(f), specifically in sub-para 8.5(2)(c). He has breached this expectation by not obeying Australian laws. He has engaged in offences which, for reasons detailed earlier in this decision are properly characterised as offences against children. Those offences are of a sexual nature and are regarded very seriously. Consequently, the expectation of the Australian community would be that he would not continue to hold a visa, or in this case that the cancellation of the visa he held would not be revoked.[157]
5. Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community's expectations are what the Government deems them to be, by effectively telling

decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that the Applicant poses a moderate risk of reoffending. However, even if the Tribunal had found he was a minimal risk, the community's expectations as stated would apply. 6. Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government's articulated views without assessing the community's expectations in the particular case. 7. The Applicant's referred to the decision of the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN which considered the operation of the provision.[158] While the Full Court in HSRN was considering Direction 90, the corresponding provisions in Direction 99 are the same. At [40] and [44] the Full Court observed:

It is to be observed that s 499(2A) of the Act, as mentioned, provides that a person or body "must" comply with a direction given under s 499(1) - reference is expressly made to that requirement in para 5.1(4) of Direction No. 90. Also, the Direction provides that the decision-maker "must", amongst other things, consider the expectations of the Australian Government as expressed in the Direction (para 5.2(4), 5.2(5) and 6 read with 8.4(4)), and that expression of the expectations applies as a "norm" (para 8.4(1)). In that context, "should" in para 8.4(4) is indicative of a requirement that must be followed; it is mandatory. That is because it would be inconsistent to read, for example, para 6 as being mandatory because of its use of the word "must", with the result that the relevant consideration must be taken into account, but reading para 8.4(4) as merely offering guidance thereby permitting the decision-maker to arrive at its own view or assessment of what the expectations of the Australian community are. It is to be noted that one of the meanings of "should" is to convey duty or obligation rather than merely guidance: Oxford English Dictionary online version, "shall" (meaning no. 18.a). Reading "should" as indicating only guidance would also be inconsistent with what was held in FYBR, and the acceptance by the Court in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] that a failure to comply with the relevant Direction's express requirements as to the conditions to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional. > > ... > > Leaving aside whether the Tribunal can permissibly have independent regard to community expectations as assessed by it, which must be considered at least doubtful given the Direction's express provisions with regard to that subject which can be expected to cover the field, the submission fails on the facts. That is because the Tribunal did not take account of its own assessment of community expectations "outside the prism of para 8.4(4)". On the contrary, it made its own assessment of community expectations expressly within the context of its consideration of para 8.4.

8. However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations.
9. In weighing this consideration, the Tribunal is also guided by the principles in para 5.2 of Direction No 99. Paragraph 5.2(2) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(3) expresses a principle similar to para 8.5(2) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
10. Given the Full Court's observations in Craig quoted at [61] above and that Court's acceptance of the direct link between possessing and/or distributing images of CEM and the commission of the child abuse, it follows that the Applicant's offences are properly characterised as crimes against children. In any event, the conduct listed in subparas 8.5(2)(a) to (f) of Direction No 99 are examples of conduct of a "kind". In the Tribunal's view, the offences committed by the Applicant are of the same kind as the offences listed in subpara (c) and as such give rise to the application of the norm that the community expects his visa to remain cancelled.
11. However, the Applicant arrived in Australia when he was four years and six months old, and he is now 56 years of age. Having regard to the principle in 5.2(4) of Direction No 90, the Tribunal finds that the Australian community would have a higher level of tolerance for the Applicant's conduct because he has lived in the Australian community from a very young age. However, the Tribunal has also found that his offending is very serious. He committed offences against children, offending which causes children significant physical, emotional and psychological damage. In such circumstances the Tribunal finds that the community's tolerance for his offending would be significantly diminished.
12. The Tribunal finds that the primary consideration of the expectations of the Australian community weighs against the revocation of the Cancellation Decision. Further consideration to the weight to be applied is given below as part of the weighing exercise.

(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on victims;

d) impact on Australian business interests

Legal consequences of decision under section 501 or 501CA

1. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.[159]
2. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
   • Unlawful status;
   • The likelihood of becoming subject to detention and/or removal;[160]
   • Refusal of other visa applications and cancellation of other visas;[161]
   • A prohibition on applying for other visas;[162] and
   • Periods of exclusion and special return criteria may apply.[163]
3. Where a visa application is refused or a visa is cancelled on character grounds under s 501, this results in deemed refusal of any other undecided non-protection visa applications and deemed cancellation of any other (non-protection) visa held.[164] Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[165] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[166] As no protection finding has been made with respect to the Applicant, there is no information to suggest he would be detained indefinitely. He would be subject to removal as soon as his appeal rights are exhausted, or he applies for another visa if eligible to do so.
4. The Applicant did not make any claims to be owed non-refoulment obligations with respect to his removal to the United Kingdom, nor did any claims arise on the material before the Tribunal. In any event, the information indicates the Applicant has never applied for or been refused a protection visa and as such he would not be prevented from doing so in the event he had protection claims not raised in the proceedings before the Tribunal. There was no information to suggest the Applicant would be indefinitely detained.
5. Under s 501E of the Migration Act, a person cannot apply for another visa while they remain in Australia if:
   • They have been subject to a visa refusal or cancellation under s 501, and
   • The decision has not been set aside or revoked prior to their making the visa application.

Such an application is not a valid application for a visa.[167] The only exceptions are an application for a protection visa or a visa specified in the Migration Regulations 1994 (the Regulations) (i.e. reg 2.12AA).[168] The only visa currently prescribed in those Regulations is a Bridging R (Class WR) visa.[169] If the original decision made under s 501 is set aside or revoked, any refused visa applications or cancelled visas are revived.[170] In addition, certain visas are subject to special return criteria (SRCs). For the visa subclasses to which SRCs apply, the SRC is prescribed in Schedule 2 to the Regulations as a criterion for visa grant. SRC 5001(c) provides for permanent exclusion if the visa applicant has previously had a visa cancelled under s 501 and there was no revocation of the decision under s 501CA. There is no provision for a visa applicant to whom SRC 5001 applies to request a waiver of the permanent exclusion.

1. The Applicant claimed that if he was removed, this would impact a range of legal proceedings he has been involved in including corruption complaints against SERCO and the prison. He submits that his removal would compromise his ability to be a witness in a redress matter in relation to which he was acting prior to being removed from the roll and in civil legal proceedings in the Family Court.[171] The Respondent contended those matters were not relevant to this consideration.[172] The Tribunal considers those matters do not raise legal consequences of the decision as such and, as indicated to the Applicant at the hearing,[173] considers those are more appropriately considered as an 'other consideration'. Further consideration of those matters is given below.
2. The Tribunal considers the legal consequences of the decision would be the Applicant will be removed from Australia and that he would be unlikely to meet the criteria for a visa to return in the foreseeable future. As such the consideration weighs in favour of revoking the cancellation though not to the degree which might otherwise be the case were non refoulement considerations owed to him.

1. Paragraph 9.2 of Direction No 99 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 99, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of the basic living standards available to other citizens of the United Kingdom. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
   • The Applicant's age and health;
   • Whether there are substantial language or cultural barriers; and
   • Any social, medical and/or economic support available to the Applicant in their country.
2. The Applicant is 56 years old and has lived in Australia since he was a child. He has not left Australia since arriving as a child. He has a sister living in the UK but claims to be estranged from her. He claims to have no contact with his sister. The only impediment in establishing himself raised in submissions by the Applicant was his lack of family members to support him in the UK.[174]
3. In other material, the Applicant raised a number of health concerns in material before the Tribunal including:[175]
   • Chronic anxiety and possible collapse of mental health (the applicant cannot cope with mental distress);
   • Degenerative bone issue;
   • Diabetes; and
   • Lung damage.
4. There is little information before the Tribunal regarding these conditions and the Applicant did not suggest they were such as to be an impediment if removed. Further, the sentencing Judge noted that there was no information that any of the Applicant's medical conditions were such that they would be adversely affected by his incarceration.[176]
5. In any event, the Respondent contended, and the Tribunal accepts, that the Applicant will have access to similar medical care and support in the United Kingdom as he would in Australia noting that the Applicant will be able to access the National Health Service (NHS) upon providing information confirming he no longer resides in Australia. This includes counselling services and psychological support which are available for the applicant through the NHS, or private charitable organisations.[177] The Applicant did not seek to contest these submissions or challenge the availability of these services on his return. In this regard, the Tribunal notes the Applicant testified he is now more aware of his mental health challenges and committed to addressing them with psychological support. While the Tribunal accepts the Applicant would need to identify and access appropriate support in the UK, there is no information to suggest such supports would not be accessible for him in that country.
6. The Tribunal notes there was also evidence the Applicant has been employed or engaged in a range of activities which would give him valuable experience in terms of gaining employment in the UK including training as a lawyer and in photography. These are in addition to his historical research and writing which he conceded he would continue from overseas, albeit not in the same manner as he has worked previously. The Tribunal noted also that Applicant does not want to work as a lawyer in the future given he identified that as a prior stressor. Accepting he would not wish to work as a lawyer, nonetheless he is highly educated and has skill sets which should assist in finding alternate employment in the UK.
7. Overall, the Tribunal considers the Applicant faces some impediments if removed, particularly having regard to the length of time he has been out of the UK and his lack of family support there. However, the Tribunal did not consider such impediments to be insurmountable and considers he will be able to resettle in the UK and maintain basic living standards in the context of those available to other citizens of the UK.
8. On balance, the Tribunal gives some weight to this consideration in favour of revoking the visa cancellation.

1. Paragraph 9.3 of Direction No 99 requires the Tribunal to consider the impact of the decision on members of the Australian community, including victims of the Applicant's criminal behaviour, and the family members of the victim or victims, where information is available and the Applicant has been afforded procedural fairness.
2. There is no information before the Tribunal regarding the effect of a decision under s 501 with respect to the Applicant's visa application on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant's offending, or any family members of victims. Consequently, the Tribunal considers this consideration is not relevant in the Applicant's circumstances.

(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

1. The Applicant submitted that his historical work for the City of Kalamunda as well as the City of Gosnells and City of Armadale was relevant to this consideration.[178] However, as submitted by the Respondent[179] and discussed with the Applicant at the hearing,[180] the evidence presented did not suggest that the City of Kalamunda represented a business interest which would be impacted by the decision such as might compromise the delivery of a major project or important service in Australia. There was no evidence from the relevant city councils to suggest their operations would be impacted by the Applicant's removal in any manner that might fall within this consideration. The Tribunal suggested this work might be more appropriately considered as a separate 'other consideration' and the Applicant agreed.
2. No other Australian business interests were identified as being impacted by the decision and the Tribunal considers this consideration is not relevant in the Applicant's circumstances.

1. As noted earlier, the Applicant contended that his work providing historical research and reports in the Hills area of Perth, particularly in the City of Kalamunda, provide another reason why the visa cancellation should be revoked. This was supported by the evidence of Mr Freegard and Mr Nikoloff who both testified as to the important of the Applicant's historical work in the area and on the value place on that work, particularly by the Kalamunda and Pickering Brook Historical Societies.
2. The Respondent records the work done by the Applicant with respect to researching and recording the history of these areas of Perth. However, the Respondent contended that while the Applicant had a connection to the area, this did not amount to another reason why the visa cancellation should be revoked.
3. The Applicant provided substantial evidence of having undertaken historical research and writing on his local area on a voluntary basis. His work in recording the history of these areas is to be commended and is clearly valued by the local communities, particularly those with an interest in local history. Mr Freegard noted the importance of the Applicant's work as follows:[181]

If David's visa is not reinstated a considerable body of local history knowledge will be lost. There are a number of historic sites that David has identified including historic burial sites. The loss of David's knowledge will impact the protection of these sites, particularly the burial sites as these are not currently protected.

4. The Tribunal notes that the Applicant has continued to write and submit works for publication since entering detention.[182] This reflects his commitment to this work. However, it also suggests that this is work which may be able to continue to be done if the Applicant were removed from Australia. The Applicant and Mr Freegard accepted this was the case, though Mr Freegard noted that the Applicant's access to historical archives and sites would be more restricted from overseas. [183] This may limit the scope of his works.
5. The Tribunal considers the Applicant's work demonstrates as particular connection to his local area which does carry value for the local community. As such, the Tribunal considers it is a matter which weighs in favour of revocation.

1. The Applicant submitted that there were other legal consequences that require consideration namely the corruption complaints referred to by the Applicant. The Applicant contended that:[184]

(a) If the Applicant is correct in his observations regarding those matters and the visa is not reinstated, the failure to reinstate would constitute tacit approval to corrupt and/or criminal conduct by those implicated, those with knowledge of the matters open themselves up to accessorial liability and corruption allegations and taint the proceedings with illegality; > > (b) If the Applicants beliefs are incorrect and the visa is not reinstated the referrals are of no consequence; > > (c) If the Applicant is correct in his observations and the visa is reinstated the Applicant will be available to confirm the evidence he has at his disposal.

2. The Applicant contended that in the event his visa is not reinstated but the information provided to authorities is correct,[185] 'it is not clear to the Applicant how the Applicant could be contacted by investigators to give evidence given the matters raised' in the Applicant's complaints,[186] in particular, because his laptop and mobile phone were stolen when items were taken from his mother's house, allegedly by those providing her care at home.
3. The Applicant also contended a person he had assisted with a victim redress claim now has a renewed right to claim compensation from the State Governments after they altered their position following the Royal Commission into institutionalised abuse. This change occurred when the Applicant was at Karnet Prison and the Applicant has no means of forwarding that information to the person.[187]
4. Further, the Applicant submitted there were ongoing civil legal proceedings in the Supreme Court which are in abeyance pending proceedings in the Family Court in Bunbury which the Applicant gave evidence in October 2022.[188] He submitted this was connected to a professional indemnity insurance claim in which he is a defendant.[189] The Applicant submitted he has no knowledge of the status of the proceedings and that this may be impacted by his removal if he is required to give further evidence.
5. The Applicant has claimed he has information about possibly corrupt conduct in the State prison system[190] and officers in immigration detention[191] and he has made a report to the Corruption and Crime Commission of WA (CCC) and the National Anti-Corruption Commission (NACC).[192] He contended his removal would mean that he would be unable to pursue these reports things or provide further evidence to authorities with respect to them.
6. The Respondent submitted these matters should be given no weight having regard to the following factors:[193]
   • the Applicant has made bald assertions of corrupt conduct without any supporting evidence. He initially indicated that investigations could not commence while he was in prison or detention because it was a risk to him.[194] However, the Applicant has lodged complaints with the CCC and the NACC. Significantly, these complaints were lodged after the delegate's decision (on 14 July 2023 and 17 July 2023);
   • the Applicant states that his Supreme Court proceedings have been held in abeyance. However, the E-courts portal indicated one ongoing matter for the applicant (PER CIV 2217 2020), which is listed for mediation, not stayed;[195]
   • there is no corroborative evidence that the Applicant has been subpoenaed, and the Applicant himself has indicated it is unclear whether he will need to give evidence in person; and
   • Further, even if these matters were true, they are not a reason to revoke the cancellation. Insofar as the applicant's presence in Australia is required for justice processes to occur, the relevant authorities may apply for a Criminal Justice Visa. The assertion that he will be non-contactable is speculative. The applicant, if he chooses, can continue to be involved in these proceedings. There are various arrangements in place to enable international witnesses to give evidence, if required, in any proceedings.[196]
7. The Tribunal considered the Applicant's contentions but did not accept that the decision regarding the revocation of his visa would substantially impact the complaints or Court proceedings on foot. The Tribunal accepted the Respondent's submission that authorities seeking evidence with respect to complaints made by the Applicant would be in a position to seek information or evidence from him, including from overseas and that the absence of his mobile phone or computer would not prevent him providing contact details for this purpose. Further, the Tribunal considered that it was a matter for relevant authorities to assess whether the Applicant's complaints were able to be substantiated and to seek information from the Applicant if appropriate.
8. Further, as discussed with the Applicant at the hearing,[197] the Tribunal did not consider that it would be complicit in any matters in respect of which the Applicant had made complaints because to exercise its power with respect to the decision whether or not to revoke the cancellation of his visa in a particular way. Those were matters within the jurisdiction of relevant authorities and not matters before the Tribunal.
9. The Tribunal acknowledged the Applicant's concern to discharge what he regards as a civic duty to report what he perceives to be wrong-doing or to participate in Court proceedings as required. However, the Tribunal considers that while it may be more challenging to engage in these processes from abroad, there will likely be opportunities for the Applicant to do so electronic means. Where that is not possible, the Tribunal accepts the Respondent's submissions, which the Applicant did not challenge, that visa options may be available to authorities to facilitate his participation in investigations or proceedings.
10. Having regard to the information before it the Tribunal considers does not place weight on this consideration either for or against revocation of the cancellation decision.

1. The Applicant does not pass the character test under s 501 of the Migration Act.
2. The Tribunal has therefore considered whether there is 'another reason' why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction No 99.
3. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account and weighed.
4. There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction No 99).[198] Recently, the Full Court of the Federal Court considered the operation of Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[199] While the Court was considering Direction No 90, it's observations would apply to Direction No 99. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction No 99) against each other and undertake an evaluation of whether there was 'another reason' why the cancellation should be revoked.[200]
5. In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction No 99. The Tribunal has considered each of the primary and other relevant considerations under Direction No 99 and whether those considerations weigh in favour or against revocation of the Cancellation Decision.
6. The Tribunal has considered the weight to be applied to each consideration in the context of comparing and balancing all of the considerations to determine whether the Cancellation Decision should be revoked.
7. 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 the 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.
8. The primary considerations of family violence and the best interests of children impacted by the decision were not relevant to the Applicant's circumstances.
9. 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.
10. The Applicant has engaged in serious conduct against children which the community views very seriously. The expectations of the Australian community as set out in Direction No 99 are that he would not continue to hold a visa. However, the Applicant arrived in Australia as a young child and has lived here effectively for his whole life, the Tribunal has found that the Australian community would have a higher level of tolerance for his conduct because of this. However, having regard to the nature and seriousness of his offending which involved offences against children including offences of sexual violence, the community's tolerance for his offending would be significantly diminished. Having regard to the Applicant's circumstances, the Tribunal considers the expectations of the Australian community weighs strongly against the revocation of the cancellation of the Applicant's visa. In relation to the relevant 'other considerations' identified in Direction No 99, the Tribunal finds that there is no suggestion non-refoulment obligations arise with regard to the Applicant's return to the UK. However, the legal consequences of the decision would be that he is removed from Australia and would be unlikely to obtain a visa to return. Having regard to his circumstances and the impact of these legal consequences, the Tribunal places only slight weight on this consideration in favour of revocation.
11. The Applicant does not face significant impediments if removed to the UK. However, he has not been to the UK since he was a child and lacks a support network in that country. In his circumstances, the Tribunal places moderate weight on this consideration in favour of revoking the cancellation of the Applicant's visa.
12. The impact on the victims and the impact on Australian businesses were not relevant in the Applicant's circumstances.
13. The Tribunal also considered the other matters raised by the Applicant including the impact his removal would have on his historical work for the Kalamunda and other areas in which he has worked and the impact on legal or complaints proceedings in which he is involved. The Tribunal recognises the Applicant's historical work and the value members of his local community place on his efforts to research and record aspects of the area's history. While commendable, the Tribunal considers his historical research could continue from overseas with the cooperation of colleagues such as Mr Freegard. The Tribunal places slight weight on this consideration in all the circumstances. With respect to the legal or complaint proceedings referred to by the Applicant, the Tribunal considers those matters will not be significantly impacted by the decision and does not consider this consideration weighs either for or against revocation of the visa cancelation. As with many cases involving mandatory visa cancellation, there are no easy answers in an Applicant's case. He has committed serious offences against some of the most vulnerable members of the community, children, placing them at risk of serious physical, psychological and emotional harm. The community's tolerance for this type of offending is very low because of the unacceptable risk it presents to members of the community who must be protected.
14. The Applicant has made some progress towards acknowledging those impacts. 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.
15. 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.
16. Paragraph 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations. Nothing has been presented which would cause the Tribunal to find that that general principle should not apply in the present case. Having regard to the evidence before it and having evaluated and weighed the considerations in favour of the revocation of the cancellation of the Applicant's visa and the considerations against revocation, the Tribunal considers that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh the other primary consideration of the strength, nature and duration of the Applicant's ties to Australia and the other relevant considerations including the extent of impediments if he is removed to the UK, the legal consequences of the decision, the impact on his historical work and his involvement in legal or other proceedings here.
17. In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 99, the Tribunal is not satisfied that there is 'another reason' why the Cancellation Decision should be revoked. The correct or preferable decision is that the Non-Revocation Decision be affirmed.

1. The decision of the delegate of the Respondent dated 10 July 2023 not to revoke the cancellation of the Applicant's Class BF transitional (permanent) visa is affirmed.

I certify that the preceding 205 (two hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford

...................... [Sgd]..................................................

Ms Madison Scott, Australian Government Solicitor

[2] R1, G3, page 21; see also R1, G8, page 82.

[5] R1, G13, page 180 and G13, page 179 (undated correspondence).

[7] See s 501CA(4)(a) of the Migration Act and reg 2.52(2)(b) of the Migration Regulations.

[13] Migration Act s 500(6L).

[14] Migration Act s 501CA(3).

[15] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121, 136 [66].

[16] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].

[20] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).

[21] Direction No 99 para 6; see also the definition of 'decision-maker' in para 4(1) of Direction No 99, which includes the Tribunal.

[24] Migration Act s 501(7)(c).

[25] R1, G4, pages 35-36 (2 years and 14 month concurrent sentences and a 12 month cumulative sentence).

[26] See Migration Act s 501CA(4)(b)(i).

[29] ASFIC at [16], [21]-22]; [56]; R1, G2, page 8.

[30] ASFIC at [14]- [16], [42]-[44].

[31] ASFIC at [17]; [35]-[37]; R1, G2, page 8.

[33] ASFIC at [20], [23], [40]-[41].

[34] ASFIC at [24]-[26]; [50]-[51]; [52]-[53].

[51] See also Direction No 99 para 8(1).

[52] See also Direction No 99 para 8.1(2)(a).

[56] R1, G5, page 41; R2, pages 238-240 and the definition of child exploitation material at R2, page 301.

[61] RSFIC, page 5 referring to AFP Standard Operating Procedure on ANVIL Categorisation of Child Exploitation Material, Annexure A at Standard Operating Procedure on ANVIL Categorisation of Child Exploitation Material (afp.gov.au) also citing; also noting the category breakdown in the report at R2, page 300. The categorisation scheme was detailed in an annexure to the Amended Statement of Material Facts at R2, page 228-229.

[77] Paragraph 8.1.1(1)(c) of Direction No 99.

[78] Paragraph 8.1.1(1)(g) of Direction No 99.

[80] Paragraph 8.1.1(1)(d) of Direction No 99.

[81] Paragraph 8.1.1(1)(e) of Direction No 99.

[82] Paragraphs 8.1.1(1)(f) and (g) of Direction No 99.

[83] See also Direction No 99 para 8.1(2)(b).

[86] [2023] AATA 2606.

[92] RSFIC, page 7 citing Braveheats, 'Online risks, Child exploitation and Grooming'https://bravehearts.org.au/research-lobbying/stats-facts/online-risks-child-exploitation-grooming/

[128] R1, G10, pages 87-88; ASFIC at [39] - [44].

[131] Transcript, page 59; A2, Attachment A; A4

[137] RSFIC 2 at [55]; RSFIC 2 at [55].

[147] Mr Nikoloff f at A4, attachment A, A3, Transcript pages 61-71; Mr Freegard at A4 Attachment A, A5, Transcript pages 46-57; Ms Patrick at R1, G2 page 14, A4 Transcript pages 15-19; Mr Vincenti at R1, G2 page 13, A4 Attachment A; Ben Baker at R1, G2, page 12, A1 Attachment E; Sue and Nigel Miles, A1, Attachment D.

[152] RSFIC, pages 12; ASFIC, at [45].

[154] https://bravehearts.org.au/research-lobbying/stats-facts/online-risks-child-exploitation-grooming/

[156] RSFIC at [54] citing Paragraph 5.2(6) of Direction No 99.

[158] [ 2023] FCAFC 68.

[160] Migration Act ss 189, 196, 197C and 198.

[161] Migration Act s 501F.

[162] Migration Act s 501E.

[163] Migration Act s 503, special return criteria (SRC) 5001.

[164] Migration Act s 501F.

[165] Migration Act s 15.

[166] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant's detention had at all times been lawful: at [112]-[122].

[167] Migration Act s 46(1)(d).

[168] Migration Act s 501E(2).

[169] Migration Regulations 1994, Reg 2.12AA.

[170] Migration Act s 501F(4).

[177] RSFIC citing https://www.gov.uk/guidance/using-the-nhs-when-you-return-to-live-in-the-uk; https://www.nhs.uk/nhs-services/mental-health-services/ ;https://www.prisonersabroad.org.uk/Pages/FAQs/Category/resettlement-related-helpfulorganisations

[181] A4, Attachment A (Freegard letter) and A5; R1, G10, pages 90-91.

[190] R1, G10, pages 94-95; 104-105 and 171; A1, pages 27-33 at [93]-[113].

[191] R1, G13, page 186; A1, pages 25-27 at [82]-[92].

[192] R1, G2 page 8, 15; ASOFIC, at [26]; RSOFIC, pages 15-16.

[195] Citing https://ecourts.justice.wa.gov.au/eCourtsPortal/CourtListings/SearchForCourtListings

[196] Citing the Hague Evidence Convention.

[198] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.

[199] [2023] FCAFC 138.