Kumar and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 1260

Kumar and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1260 (7 August 2025)
Applicant/s:  Tarun Kumar
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/3665
Tribunal:Administrative Review Tribunal
Place:Sydney
Date:7 August 2025
Decision:1.         The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.

2.Pursuant to s 70 of the Administrative Review Tribunal Act, 2024, without leave of the Tribunal, the names of the witnesses and children of the applicant referred to in these reasons must not be published or otherwise disclosed to any person other than the parties and their representatives.

..................[SGD].............................
Senior Member M Harrowell
Catchwords
Migration – Cancellation of visa – application for revocation of cancellation – very serious criminal offending – risk to Australian community should non-citizen commit further offences or engage in other serious conduct – low risk of reoffending – strength, nature and ties to the community – best interests of on minor children – decision to revoke cancellation
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1959 (Cth)
Cases
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4069
Secondary Materials
Direction No. 110 – Direction under s 499 Migration Act 1958
Direction No. 99 – Visa refusal and cancellation
REASONS FOR DECISION
INTRODUCTION

The applicant is a citizen of India who held a Class BB Subclass 155 Five Year Resident Return Visa (Resident Return Visa) issued on 13 July 2019. [1] The Resident Return Visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on 22 May 2024.
[1] HB 189 – Notice of Visa Cancellation under s 501(3A) of the Act.
The cancellation followed the applicant’s conviction, on 22 September 2023, on one count of aggravated sexual assault and two counts of aggravated sexual touching under ss 61J and s 61KD(1)(a) of the Crimes Act 1900 (NSW) (Crimes Act). An aggregate custodial sentence of 3 years and 6 months was imposed for the offences commencing 4 July 2023 (Sentence). The non-parole period was 22 months expiring 4 May 2025 (Parole Period).
Upon release from prison, the applicant was placed in detention at the Villawood Immigration Detention Centre.
On 30 June 2024, the applicant made representations to have the cancellation revoked under s 501(CA) of the Act (revocation application).
On 20 May 2025, a delegate of the respondent decided not to revoke the cancellation. This was because the delegate was not satisfied the applicant passed the character test, nor that there was another reason why the cancellation decision should be revoked. Notice of the decision was given to the applicant on 20 May 2025 (Delegate’s decision).
On 21 May 2025, the applicant applied to the Tribunal for review of the Delegate’s decision (review application).
For the reasons below, I have decided to set aside the Delegate’s decision and revoke the cancellation.
THE TRIBUNAL PROCEEDINGS
Following the making of the review application, directions were made by the Tribunal on 6 June 2025 for the filing and service of evidence as well as the provision of documents by the respondent as required by s 23 of the Administrative Tribunal Act 2024 (Cth) (ART Act). The directions included requiring the respondent to prepare a hearing book.
The parties were also required to provide statements of facts, issues and contentions, witness statements, other evidence and/or submissions in support of their respective positions. In addition, directions were made permitting the parties to request the issue of summonses.
Those directions contained a notation concerning the limitations in s 500(6H) and 500(6J) of the Act. These sections prevent the Tribunal having regard to “any information presented orally in support of the person’s case” or “any document submitted in support of the person’s case” unless a written statement of the information to be presented orally or a copy of the document (as the case may be) has been provided to the respondent at least two clear business days before the Tribunal holds a hearing. The limitation in connection with documents does not apply to documents given to the person or the Tribunal under subsection 501G(2) or subsection 500 (6F) of the Act.
The proceedings were heard by the Tribunal on 28 and 29 July 2025. The applicant appeared in person and represented himself. The respondent was represented by Mr Valliapan, solicitor.
Documentary evidence consisted of the following material:
(a)Exhibit HB – the hearing book prepared by the respondent (hearing book/HB). It contained four parts numbered HB 1 – HB 4.
At the commencement of the hearing, the Tribunal confirmed the applicant had access to the hearing book. The Tribunal explained to the applicant the task of the Tribunal on review including that, in determining the review application, the Tribunal was required to have regarded to Direction 110[2] (Direction 110) in deciding whether to exercise of any discretion to revoke the cancellation of the Resident Return Visa. Direction 110 is contained in the hearing bundle and the applicant was given an opportunity to read the document prior to the hearing commencing.
[2] Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of these are under section 501CA.
Less than two business day before the hearing, the applicant had provided to the Tribunal four further written statements from:
(a)applicant;
(b)Ms S – applicant’s ex-wife;
(c)Mr M – a friend; and
(d)Mr A – applicant’s former father-in-law.
These statements became MFI 1, MFI 2, MFI 3 and MFI 4 respectively (Late Evidence).
The statements had not been provided to the respondent prior to the hearing.
By reason of the limitations in s 500(6H) and 500(6J) of the Act referred to above, these statements could not be relied upon if the hearing proceeded on 28 July 2025.
The Tribunal indicate to the applicant that he may be able to apply to adjourn the hearing for the purpose of serving the documents and for the hearing to take place at a later stage. In doing so, the Tribunal indicated that there was a strict time limit on it providing its decision under review. The final date for a decision in respect of the review application is 12 August 2025, failing which the Delegate’s Decision under review is taken to be affirmed.[3]
[3] The Act s 500(6L).
Ultimately, the applicant did not seek to rely on the Late Evidence nor did he seek an adjournment of the hearing. This was because of other evidence that was properly before the Tribunal as identified below. In this regard, the hearing book included earlier statements from the same witnesses given to the respondent for the purpose of the revocation application.[4]
[4] Applicant’s revocation application, statements and submissions HB 55 – 89; Ms S’s statement HB 90-96 (also HB 292-3); Mr M’s statements HB 101-104 (also HB 294); Mr A's statement HB 97.
There was no dispute that the statements in the hearing book could be relied upon.
At the hearing, the respondent cross examined each of these witnesses.
In addition, the respondent cross examined Ms C, the sister of the applicant’s ex-wife, and Ms R (a friend of the applicant and wife of Mr M). Again, documentary evidence (in the form of a letter and statement respectively[5]) was part of the hearing bundle and was considered by the respondent in making the Delegate’s Decision.
[5] Ms C’s letter – HB 147; Ms R’s statement – HB 98-100.
Following completion of the oral evidence, the parties made oral submissions. As necessary I will refer to the evidence and submissions below.
NON-PUBLICATION ORDER
As this point I should note that I have anonymized the names of the applicant’s ex-wife and witnesses. For these people together with the applicant’s children, I have formed the view that the nature of the complaints against the applicant are such that there is potential harm which these people may suffer if their names are published.
While no application was made by either party in connection with a non-publication order, it seems to me some protection should be given to those witnesses and to the children.
Accordingly, I will make an order under s 70 of the Administrative Review Tribunal Act 2024 (Cth) preventing the publication of their names.
EVIDENCE
It is convenient to first set out some background information, the applicant’s history in connection with his offending and evidence provided by the applicant and his witnesses. These facts are relevant to the matters for consideration under Direction 110.
Background
The applicant is 39 years old. He is a citizen of India.
The applicant first entered Australia on 15 January 2009 under a Student (Temporary) Visa subclass TU-572.[6] He was then 23 years old.
[6] HB 188.
After arrival in Australia, the applicant completed a number of courses in hospitality including responsible service of alcohol, Certificate III in Hospitality (Asian cookery), Hospitality Management and an Advanced Diploma of Management[7]. Since arriving in Australia, he has been a chef and, prior to his conviction, was operating a cleaning business in the mid North Coast area.
[7] HB 106 – 116.
The applicant met Ms S in Australia. They have known each other for more than 14 years. They married in 2011 but are now divorced having separated after more than 13 years marriage. This occurred while the applicant was incarcerated. Ms S is now in a new relationship with a different person.
Together, the applicant and Ms S have three children, a girl aged 7, a boy aged 4 and a boy aged 2 (collectively children). The children and Ms S are Australian citizens and presently live together. Ms S has a further child with her new partner.
Until conviction, the applicant lived with his ex-wife and children.
Criminal history and sentencing
The Check Results Report from the Australian Criminal Intelligence Commission dated 9 October 2023 indicate the only offending by the applicant is that giving rise to revocation of the applicant’s Resident Return Visa. Neither party suggested otherwise nor was the Tribunal’s attention drawn to other conduct of the applicant, either in Australia or elsewhere, that suggests other unlawful behaviour.
The circumstances of offending involve one count of aggravated sexual assault and two counts of aggravated sexual touching of a work colleague (victim) who was under his authority when carrying out his cleaning business.[8] The offences occurred on 19 March 2021 in a bathroom of premises which were being cleaned. The details of the offending conduct are recorded in the transcript of the sentencing hearing on 22 September 2023[9], a summary being found in the Delegate’s Decision[10].
[8] Crimes Act ss 61J(2)(e) and 61KD(2)(b).
[9] HB 39 and following.
[10] Delegate's Decision at [20]-[22] – HB 24.
For aggravated sexual assault, the maximum period of imprisonment is 20 years.[11] For aggravated sexual touching, the maximum period of imprisonment is 7 years.[12]
[11] Crimes Act s 61J(1).
[12] Crimes Act s 61KD(1).
The offending followed an earlier occasion on which there had been sexual activity between the applicant and the victim while at work on 17 March 2021. The applicant was acquitted on three counts of sexual assault and sexual touching relating to this earlier occasion, there being one trial in relation to both events. In sentencing the applicant, the Court determined the earlier occasion was consensual.
Having referred to various decisions concerning sentencing principles, of the events of 17 March 2021 the Court said:[13]
I accept that it significantly reduces the effect of the aggravating element of being under authority.
[13] Transcript of sentencing, 22 September 2023 at [40] – HB 46.
The Court determined the offending “is well below the mid-range” having regard to the following matters:[14]
·the state of mind of the offender was one of knowledge of nonconsent,
·the offending occurred opportunistically and was not premeditated,
·[the victim’s] verbal protest during the incident consisted of reminding him about his children on one occasion.
·The aggravating factor is less serious for the reasons that I have indicated. They were both adults and had engaged in consensual sexual activity in the workplace two days earlier, necessarily minimising the extent to which that factor aggravates the offending.
·Whilst [the victim] was unable to say how long the penetration lasted, the effect of her evidence was that it was very short in duration.
·Although the door to the bathroom was closed, there was no evidence it was locked, and there was insufficient evidence to make any finding that the offender had detained or trapped her in the room, although it was conceded that the door was shut at some point which would have increased [the victim’s] feelings of fear.
·There was no violence or physical force over and above that which is inherent in the offence of sexual assault.
[14] Transcript of sentencing, 22 September 2023 at [42] – HB 47.
Having referred to the circumstances relating to applicant’s childhood, his relationship with his former wife following the birth of his first daughter and a psychologist’s report prepared in connection with those matters, the Court continued:[15]
I accept that his prospects of rehabilitation are favourable and there is a low risk of reoffending, even though he maintains his innocence. This is because he has the ongoing support of his wife and family, he had no prior convictions before or after this offending. Notwithstanding his denial, he has expressed a sense of empathy, acknowledged problems and his need for help, as well as the importance of personal responsibility, and he is also open to the prospect of engaging in psychological and therapeutic work. He is likely to benefit from targeted treatment.
[15] Transcript of sentencing, 22 September 2023 at [46] – HB 48.
Finally, the Court took account of special circumstance which the Court described as follows:[16]
[the applicant’s] first time in custody, the hardship he will experience in custody, his low risk of reoffending and the desirability of treatment in the community while on parole.
[16] Transcript of sentencing, 22 September 2023 at [48] – HB 48-HB 49.
It was in these circumstances that the Sentence was imposed and Parol Period fixed.
Pre-sentencing Report
A number of reports were prepared both for the purposes sentencing and for the purposes of parole and release. The content of these reports is relevant to the determination of this application.
Prior to sentencing, a pre-sentence psychological report dated 18 August 2023[17] assessing the applicant was prepared by Dr Smith, a forensic psychologist (2023 Report). This report was referred to by the Court when sentencing the applicant.
[17] HB 280 and following.
The 2023 Report detailed information received in an interview with the applicant including in relation to him growing up as a single child of poor parents in a “complex caste system in rural India” where he was treated poorly due to his mother’s low social standing, including “within their own home and extended family” and his realisation of these detrimental effects upon his life when he moved to Australia.[18] The report also detailed his relationship with his wife, his connection to her and his children and how relationship with his wife changed over time.
[18] see e.g. HB 287.
In relation to prospects of rehabilitation, the 2023 Report concludes[19] the applicant:
(a)does not appear to have any long-standing sexual deficits or deviancies;
(b)was able to engage in appropriate emotions pertaining to guilt, shame and regret and express some victim empathy;
(c)does not appear to meet any of the relevant diagnostic criteria for having a personality disorder;
(d)agreed to engage with any treatment program offered to him (although he may not be offered such a program in custody due to his history and level of risk); and
(e)was open to the prospect of engaging in psychological and therapeutic work.
[19] 5.0 Summary – HB 286 and following.
In reaching these conclusions, the 2023 Report states “there is no evidence to suggest that there have been offences or distorted thinking surrounding abusive sexual behaviours outside of [the applicant’s] index offences”.[20]
[20] 6.0 Recommendations – HB 288.
Prison Conduct Report
In relation to his incarceration, the Prison Conduct Report (Conduct Report) prepared by Corrective Services NSW dated 8 January 2025[21] records the following:
(a)the applicant was placed in a “minimum-security, Special Management Area Placement location”;
(b)since April 2024 the applicant was a cleaner and general assistant in a position described as “highly regarded as a trusted role”, the applicant performing his duties to “a high standard” with staff reporting his performance as “above average”; and
(c)the applicant was “co-operative and compliant” and “well-behaved and no issues whatsoever to staff or management” during his time in the correctional facility.
[21] HB 287.
The Conduct Report noted the applicant was deemed to be “Programs ineligible” although he was “motivated to participate in non-criminogenic programs and has recently completed the Positive Lifestyle Program with the Chaplain”. The reference to eligibility related to the target therapy proposed in the 2023 Report.
In addition to the Positive Lifestyle Program, the applicant also completed the “RUSH – Real Understanding of Self Help” program while in the correctional centre.
Pre-release Report
Prior to his release, a Pre-release Report dated 29 January 2025 was prepared by Correctional Services (Pre-release Report).[22] It reported on the following matters:
[22] HB 569 and following.
Family circumstances
Prior to the offending the relationship between the applicant and his ex-wife had become “distant” following the birth of their second child. This, the applicant said, caused him to seek comfort in the victim, rather than address his marriage issues.
At that time, he was self-employed, operating a domestic and commercial cleaning business undertaking work on a contract basis.
The applicant and his wife separated since incarceration. However, while in custody he remained in regular contact with her and her parents as well as his three children “via telephone and tablet visits”. Upon release, his wife has agreed to him returning to the family home to reconnect with his children – his wife temporarily moving to her parents until the applicant can make appropriate living arrangements.
Offending
The Pre-release Report indicates there was no prior record of antisocial behaviour prior to the offending and that the applicant “appeared to have lived a pro-social lifestyle up until the offending episode.
The Pre-release Report notes the applicant is appealing his conviction and sentence, maintaining his sexual contact with the victim was consensual and that they were having an extra marital affair. The applicant suggested to the author of the Pre-sentencing Report that the victim had become concerned about her partner finding out about the relationship that is why allegations of sexual assault made.
In doing so, the applicant also said he never intended to cause harm or fear to the victim. He also indicated to the authors that he accepted his behaviour was unethical and immoral due to him being married and maintains he treated the victim with respect throughout their interaction. The applicant indicated he did not pose a risk to the victim of the offence, the author of the report noting no personal protection orders were in place but that an order prohibiting contact should be made as a condition of parole.
Responsivity

The Pre-release Report records the applicant expressed concern for the victim despite maintaining his innocence. The applicant indicated a willingness to undertake intervention. However, the author noted “his denial of offending behaviour may impede the benefit of such intervention”.
While incarcerated, the applicant “demonstrated consistently positive behaviour, having received just one warning for having too much linen in his cell”. Otherwise, he was described as “polite and positively engaged” in respect of preparation of the Pre-release Report.
Program and service participation in custody
As recorded above, the applicant:
(a)was assessed as program eligible. However, he is ineligible for offence targeted programs including sexual offence programs; and
(b)participated in the Positive Lifestyle Program, for which he received positive feedback in respect of participation and engagement. He also expressed interest in improving his literacy and computer skills; and
(c)when work was available while in custody, he worked as a sweeper and received positive employment reports.
Mr Kumar had otherwise been ineligible for pre-release leave due to the nature of his offending.
Post release plans
If released into the community, the applicant intends to resume operating his cleaning business for which he still has equipment. In the short term his intention was to spend time with his children.
The Pre-release Report records:
(a)the applicant “has been assessed at a low risk of reoffending according to the Level of Service Inventories – Revised (LSI-R); and
(b)that a corrective services psychologist has assess the applicant “as being in the average risk range of committing a further sex offence”.
Release reporting conditions will require contact with a Community Corrections Officer every 2 weeks, including a home visit every 8 weeks. As to supervision, the applicant will be required to engage in practice interventions, targeting communication, self-awareness and interpersonal relationships. In this regard the applicant was to be referred to a Correctional Services Psychologists for completion of Sex Offender Assessments and for case management advice and to a private psychologist for external treatment targeting sexual offending behaviour.
The applicant is classified as a serious sex offender under the Crimes (High Risk Offenders) Act 2006 (NSW). Consequently, the applicant would also be electronically monitored and to submit activity schedules following release on parole.
The applicant has not expressed any intention of contacting or resuming a relationship with the victim. However, an additional condition prohibiting contact should be imposed.
The Pre-release Report concluded by recommending parole on conditions. In making this recommendation, the report provided the following “Overall Assessment”:[23]
While [the applicant] has maintained he did not believe he has committed an offence and that it was never his intention to harm the victim, evidenced by his intention to appeal his conviction, he has verbalised his regret for any harm caused towards the victim.
[The applicant] benefits from community support and maintains a relationship with his children and ex-partner. He has appropriate post-release plans and supports should he be released to the community. Should he be released from immigration detention to the community, he will have access to targeted sexual offending interventions and case management. [The applicant] has continually demonstrated positive institutional behaviour and has limited options available in respect to access to programs and interventions in custody.
[23] HB 574.
Evidence of applicant and witnesses in support
The evidence of the applicant and his witnesses is summarised below.
Applicant
The applicant’s written evidence is contained in his application for revocation.[24] The applicant was cross-examined and gave the following oral evidence.
[24] HB 55-89.
In relation to the offending, the applicant accepted the sentencing remarks in the transcript in paragraph 12 of the sentencing transcript but not the first two sentences, which concerned undressing the victim and the victim reminding him about his children), or the statement “get away from me”.
The applicant restated that that he had appealed the conviction and was awaiting the decision of the Court of Criminal Appeal which was reserve. In doing so, he indicated he was extremely remorseful. Remorse was expressed in terms of the impact on the victim (which he described as very heinous), cheating his on ex-wife and the impact on his children.
In later questions, the applicant accepted that:
(a)the victim’s subsequent distress, including crying, indicated she did not consent to what had occurred in the bathroom; and
(b)he lied in the police interview as to whether anything happened.
Of lying to the police, he variously said he was scared, his children were at daycare, and he wanted to get home before his wife got back from work and he would have had to remain in custody if he wanted to get legal advice prior to giving any statement to the police.
The applicant also confirmed the statement by the sentencing judge that he apologised to the victim. In this regard he said he told the victim that if she did not want to have a relationship then they would not have one.
In relation to undertaking corrective courses and working with psychologists while incarcerated, he confirmed particular targeted courses were not available to him as he was ineligible. He was told by Correctional Services staff he was in ineligible as he had been assessed as low risk. However, he did discuss with Correctional Services staff attending courses if he was released from detention. He also undertook the courses referred to above.
In general, the applicant confirmed the matters in the Pre-release Report.
As for attending treatment while in immigration detention in Villawood, the applicant said he only found out the Friday before the hearing that these might be available to him while in detention. This information was provided by another person in detention.
He accepted that he had not made enquiries concerning psychological support or targeted treatment while in detention at Villawood. He said he did not turn his mind to the possibility of programs in the detention centre, having been at Villawood for only a couple months. He said he had made a booking last Friday to see a psychologist but could not attend as the booking was the same day as the Tribunal I was calling hearing.
The applicant gave evidence of continuing support from his ex-wife and family. In this regard he said his ex-wife proposed allowing him to stay at her home if he was released back into the community. His friend would also support him.
In terms of moving back into the home, he indicated his work equipment was there and that his ex-wife would allow him to stay with the children until he re-established his business. During this time, his ex-wife would move back to her parents’ house.
The applicant also said that he was considering moving to Sydney to live with his friend until he re-established himself in the community. Again, he said his friend would support him. Alternatively, he would stay with his ex-wife’s father at his house. This would allow his ex-wife to stay in the current house with the applicant’s three children as well as the fourth child from her new partner.
While incarcerated, and now in detention, he communicates by iPhone and iPad, speaking to his daughter almost every day. As to his middle child, a boy, the applicant said he is four years old and often asks after the applicant. As to the youngest child, he has little memory of the applicant due to his age when the applicant was incarcerated. The applicant said in his written statement that he had been providing child support to his ex-wife while he was incarcerated.[25]
[25] HB 75; HB 152-3.
As to future work, the applicant expects to be able to re-establish his business in the Central Coast/Hunter Valley area. While he may live in Sydney with his friend in the short term, he says he previously travelled more than 200 km per day for work so that the distance to work and/or his family would not be a problem. He proposes to work 4 to 5 days per week so he can spend time with his children.
The applicant gave evidence that he previously took his son to daycare early in the morning. They would first go to the beach and have a chai latte before he dropped his son off at daycare.
The applicant said he had a good relationship with his ex-wife’s family, including his father-in-law, sister-in-law and his sister-in-law’s young children. These and his friends who gave evidence to the Tribunal are his community in Australia, the applicant having little contact with other friends after he was incarcerated.
While he has not spoken to his sister-in-law’s young children while in immigration detention, while he was incarcerated one of them sent cards and artwork to the applicant while he was incarcerated.[26]
[26] eg HB 125-1 to 6.
As to his parents and their family, the applicant said he was an only child. His parents live in India in a village. His father, who is 70 recently had a heart attack. His mother is in her sixties. His parents would help him with accommodation and food however they are not wealthy.
There are some other relatives in India. However, he was not in contact with them and said they would not help him.
The applicant acknowledged that, apart from shame, he did not consider there was any risk of being killed and any other risk appeared minimal. These comments were made when he was cross-examined about his earlier statement that such risks existed. Of this earlier statement, referred to in the Delegate’s Decision[27], he said it was included in his original application to the Minister for revocation of the cancellation following help from a person while in detention.
[27] at [82] and following – HB 31- HB 32.
As to working in India if he was returned, he gave evidence that that he was capable of gaining employment but may need to move away from his parents to do so. He expressed concern about the effect separation from his children would have on his mental health, which may impact his capacity to work. Otherwise, he acknowledged his cultural background, language and upbringing would not negatively impact him if he was returned. He also acknowledged that, while he had reflux, he was not aware of any serious medical condition.
Ms S
Ms S had provided a written statement which formed part of the information available to the Minister’s delegate.[28]
[28] HB 292-HB 293.
Ms S explained the effect of the applicant’s offending on her and the children. She explained her reliance on the applicant’s income to help support and raise their family and his positive role on a parent. She explained in his role in teaching his children about Indian culture and the Hindu religion and her immense stress and anxiety and concern about her family’s future.
I note this statement was provided prior to the Ms S divorcing the applicant.
However, Ms S was cross-examined about this statement and the relationship between the applicant, her and their children since they were divorced.
Ms S gave evidence that she is currently the primary caregiver for the children. She had not sought custody of the children and saw the applicant playing a co-parenting role in the future if he was permitted to stay in Australia. She said their current relationship is amicable, and the applicant and Ms S would be able to work out any issues concerning bringing up their children.
Financially, she indicated she was managing okay but financial assistance from the applicant would help, particularly in providing money for the children to buy food and clothes.
Ms S explained the applicant is presently in regular contact with the children through FaceTime and messaging. If released into the community, she explained that she was proposing to move back with her parents and allow the applicant to live in the current home where the children reside for a couple of months to help re-establish his relationship with their children.
Ms S gave evidence concerning her new partner and that he would also play with the children. It was unclear what, if any, financial support the new partner provides for the applicant’s children.
As to the situation if the applicant’s return to India, Ms S said she would try to facilitate visits to India if she could afford it. Of this scenario she was not sure, other than to say visits would not be regular due to financial constraints. Otherwise, she would help maintain contact between the applicant and their children if he was removed.
Mr A
Mr A had provided a written statement for the purpose of the applicant’s application to the Minister[29] and was cross-examined.
[29] HB 97.
Mr A gave evidence that he had known the applicant for over 12 years. He observed the applicant was a devoted father and that his absence had “weighed heavily” on his daughter (Ms S) and grandchildren. He also said the applicant’s absence had meant his daughter had “to manage all finances and has sole responsibility of the [grandchildren]” which has placed “a lot of additional stress” on his daughter. In this regard Mr A described the applicant as the “breadwinner”. Mr A described the applicant as having a deep commitment to his family’s welfare and an unwavering loyalty to his children.
In cross-examination, Mr A gave evidence as to his role in supporting his daughter, including school pickups and taking his grandchildren to swimming and other sporting events and providing assistance in minding the children if they were sick.
Mr A indicated that he was retired and that he was not in a position to provide financial support for his daughter and grandchildren. In this sense, support was as described above as well as moral support.
Mr A confirmed that his daughter, while no longer close with the applicant, nonetheless remained supportive of his relationship with the children. Mr A also confirmed the applicant was in regular contact with the applicant’s children and close to them. In this regard, prior to being incarcerated, the applicant would come home early from work so he could spend time with the children.
Mr A said that accommodation support could be provided if the applicant was released back into the community. He confirmed there had been discussions about the applicant moving in with the applicant’s children and Mr A’s daughter moving back to his house for a short period of time. He also confirmed that the applicant had operated his own cleaning business, Mr A describing the applicant as a reliable worker who would be called back to do work by his clients.
Ms C
Ms C wrote a letter to the applicant while he was incarcerated.[30] That letter was part of the material considered by the Minister’s delegate.
[30] Letter sent 18 December 2023 – HB 147.
In that letter, Ms C offered support from her, her husband and their two children.
In cross-examination, Ms C gave evidence that she considered the applicant part of the family who had a significant relationship with her children. She described the applicant as a loving father and a person who provided support to her father, Mr A.
Mr M
Mr M has been a friend of the applicant for more than 17 years, having first studied with the applicant in India. He provided a statement in support of the applicant to the Minister’s delegate.[31]
[31] HB 101-104 and 294.
Mr M’s evidence is to the effect that the applicant has no criminal record in India or Australia other than the occasion to which this application relates. He described their relationship of one of mutual support and assistance through hard times.
Of the applicant, he said he had a reliable work ethic, the applicant having previously worked for Mr M as a chef. He described the applicant as a person who “worked hard to provide for his family” and who had “a very successful cleaning business”. He described the applicant as a “dedicated husband and father of his 3 young children”.
Mr M said the applicant had become “very quiet and withdrawn”, being “concerned about his parents as well as his children and wife”. Mr M noted the financial strain placed on Ms S and the applicant’s children and what happened deeply troubles the applicant.
In cross-examination, Mr M indicated he would provide free food and accommodation to the applicant while he re-established himself and would provide financial support. Of the situation if the applicant returned to India, Mr M said that he used to live about 10 km away from the village where the applicant’s parents are located. While Mr M’s parents still in the village in India, they would not be able to financially support the applicant if he returned there.
Ms R
Ms R provided a statement to the Minister’s delegate dated 16 June 2024.[32]
[32] HB 98-HB 100.
Ms R is the wife of Mr M and a friend of the applicant. She has known the applicant for 10 years, having met him in Australia through her husband. She describes him as being a very trustworthy person who has supported her in hard times.
Ms R described the applicant as “honest and dedicated husband and father of 3 young children”, although he has recently been depressed as a result of being away from his family. As with Mr M, she noted the financial strain placed upon Ms S as a result of the applicant being in detention.
Ms R has maintained contact with the applicant through his time in detention.
CONSIDERATION
Section 501CA(4) of the Act provides:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Tribunal is permitted to exercise this power in connection with the present review application.
There is no dispute that the applicant does not pass the character test as defined by s 501 of the Act. In this regard he was convicted and sentenced in the circumstances described above. However, the applicant has lodged an appeal against his conviction and sentence. The effect of this appeal and the ability of the applicant to rely on evidence seeking to impugn the Sentence is considered below.
Direction 110 applies to the exercise of power under s 501CA. The direction is made by the Minister under s 499 of the Act. The Tribunal is required to comply with this direction. The direction sets out primary and other considerations to be taken into account and the principles to be applied in doing so. The principles are:
(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) The safety of the Australian Community is the highest priority of the Australian Government.
(3) 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.
(4) 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 noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5) 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.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may 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.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.

In Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration),[33] the President of the Administrative Appeals Tribunal (now the President of this Tribunal), set out the approach to be taken by the Tribunal in the decision-making process. At [16]-[18] the President said:
16. As stated by the Full Court of the Federal Court in Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, although the Tribunal is required to take into account Direction 99, that direction does not dictate the outcome of the review before the Tribunal. The primary and other considerations in Direction 99 are mandatory relevant considerations but are ‘not an exhaustive universe’ of considerations.
17. Complying with Direction 99 is no substitute for the Tribunal reading, identifying, understanding and evaluating the case made by an applicant on the material before the Tribunal.
18. It is not sufficient for the Tribunal to weigh each of the considerations in Direction 99 separately and then aggregate each of the individual assessments by some form of calculus. Instead, the Tribunal must undertake a process of weighing and balancing, by which it evaluates the different considerations in relation to each other in a balancing exercise in order to reach the ultimate conclusion required by s 501(1) of the Act.]
18. The discretion conferred by s 501(1) of the Act is to be exercised subject to the Act and subject to the self-evident Australian community protective purpose of the discretion. However, by the very circumstance that the section confers a discretion, it necessarily follows that Parliament has accepted that this purpose is not necessarily served in a given case by a refusal to grant a visa to a person who does not pass the character test.
[33] [2023] AATA 4069.
While the President’s decision was in the context of s 501(1) of the Act and the former Ministerial Direction 99,[34] the approach is equally applicable to a decision under s 501CA in circumstances where Direction 110 applies.
[34] Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
As noted above, the Resident Return Visa was cancelled pursuant to s 501(3A) of the Act. Relevantly, this section provides:
(3A) The Minister must cancel a visa that has been granted to a person
if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
…
and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) provides:
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)).
It is not in dispute that the applicant has a substantial criminal record in that he “has been sentenced to a term of imprisonment of 12 months or more”,[35] or that he does not pass the character test. Consequently, for the Tribunal to exercise a discretion in his favour to revoke his visa cancellation, the Tribunal must be satisfied “that there is another reason why the original decision should be revoked”.[36]
PRELIMINARY MATTER – APPEAL AGAINST CONVICTION AND PROPER APPROACH TO ASSESSING EVIDENCE RELATING TO CIRCUMSTANCES OF OFFENDING
[35] s 501(7)(c) of the Act.
[36] s 501CA(4)(b)(ii) of the Act.
It is common ground that the applicant appealed the conviction and sentence to the Court of Criminal Appeal of the Supreme Court of New South Wales. The appeal was lodged on 14 March 2025 and heard on 7 May 2025. The decision on the appeal is reserved.
It is convenient to deal with principles applicable when considering evidence concerning the fact of conviction where there is an unresolved challenge by way of appeal.
The respondent submitted that the challenge to the conviction and the fact of the appeal did not permit the Tribunal to make its own determination about whether the applicant committed the offences in question. In this regard the respondent submitted in its Supplementary Submissions dated 22 July 2025:[37]
Although the applicant has an appeal on foot in relation to the convictions and sentence which gave rise to the mandatory cancellation of his visa under s 501(3A) of the Act, the respondent submits that the Tribunal must proceed on the extant convictions and sentencing remarks in the material before it.
[37] at paragraph 7 – HB 603.
The respondent continued:
The mere fact that there is an appeal on foot does not give the Tribunal the power to go behind the judgment and sentencing remarks. That power resides in the NSW Court of Criminal Appeal. Nor should the Tribunal attempt to engage in a de facto exercise of that power, by attempting to second guess the NSW Court of Criminal Appeal. This is especially the case where the Tribunal is not privy to the full range of material before the NSW Court of Criminal Appeal.
The respondent relied on the decision of the Full Court of the Federal Court of Australia in HZCP v Minister for Immigration and Border Protection (HZCP)[38] and the passage at [77]. That reference was to the reasons of McKerracher J, with whom Colvin J agreed. Derrington J, the other member of the Full Court, was in dissent.
[38] [2019] FCAFC 202.
In HZCP, the Court was also considering the operation of s 501CA(4) of the Act and whether the Tribunal could have regard to evidence that sought to impugn the conviction. This case considered the enquiry to be made where revocation was sought under s 501CA(4)(b)(ii), namely there is “another reason why the original decision should be revoked”, and what findings could be made by the Tribunal in relation to the criminal offending.
As noted by McKerracher J in the passage set out below, the discretion to revoke only arises where the Minister has first found the visa must be cancelled under s 501(3A) of the Act. That section provides:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
In relation to s 501CA(4)(b)(ii) and the scope of enquiry, McKerracher J said:[39]
67. It may be accepted that “another reason” is a broad expression. What is excluded from falling within the scope of the expression is the possibility of the applicant passing the character test as the decision-maker does not come to consider whether there exists “another reason” under s 501CA(4)(b)(ii) if the decision-maker is satisfied the person passes the character test. What does this mean in practical terms? Scope for satisfaction on the first limb in s 501CA(4)(b)(i) must be limited, for such satisfaction would seemingly only be arrived at where there was an error when the Minister was satisfied in s 501(3A)(a). The wrong person may have been identified or there may have been a material error in the charge record. There may be other possibilities, but to proceed to “another reason” there must be a lack of satisfaction that the person passes the character test, which in turn centres on, relevantly, conviction or sentence.
68. To permit under the rubric of “another reason”, evidence contrary to essential facts which must underlie this conclusion cannot have been the legislative intention. These provisions were introduced against a backdrop of some decades of recognition that at least where conviction or sentence was the foundation of the decision-maker’s power, any evidence going behind and contradicting the conviction or sentence would not be allowed. Can the jurisdictional fact being a “satisfaction” create a different requirement without express legislative expression to that effect? If anything, the scope for such evidence will be more limited in the latter situation. One can challenge the lack of satisfaction or assert that the failure to be satisfied was based on legal or jurisdictional error. But where the foundation for the jurisdiction is predicated on satisfaction of a test which turns on the conviction or sentence, relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error.
[39] [2019] FCAFC 202 at [67]-[68].
Having noted that the power under s 501CA(4) was enlivened after sentencing and that the sentencing judge was “generally … required to consider the circumstances surrounding the commission of the offence for which the person was convicted and [make] findings of fact in relation to this enquiry[40] , McKerracher J continued:[41]
77. As a matter of policy, it would be highly undesirable if Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function: Waterside Workers’ Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 per Griffiths CJ (at 444); Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 per Isaacs J (at 175); Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 per Mason CJ (at 258); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ (at 27) and Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1 per McHugh J (at [53]).The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.
78. The Tribunal’s observation that it could not contradict or go behind a conviction was correct. The Tribunal’s finding that it could not ‘examine the facts upon which the conviction was based’ is less clear because the phrase is ambiguous. On the one hand, it could merely be an extension of the (correct) legal principle just confirmed. On the other, it could be construed as an assertion that the Tribunal could not have regard to the facts as found by the court. In context, it is apparent that the Tribunal had in mind the first interpretation. The appellant’s evidence was centred on assertions that the sentencing judge’s fact-finding was wrong. In any event, the Tribunal’s reasons are not to be read with an eye finely attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
79. The Tribunal was correct in concluding that the evidence the appellant sought to rely upon, by which he impugned the facts found by the sentencing judge, could not be entertained. The primary judge was correct in refusing the application on this ground. ...
[40] [2019] FCAFC 202 at [72].
[41] [2019] FCAFC 202 at [77]-[79].
Similarly, in explaining his agreement with McKerracher J and providing additional observations, Colvin J said:[42]
195. In short, a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.
196. The statement by the Tribunal in the present instance that it could not examine the facts upon which the conviction was based, must be understood in a context where the Tribunal was invited to make factual findings that were contrary to those made by the sentencing judge in passing the sentence that enlivened the statutory power to be exercised by the Tribunal on review. It did not mean that it could ignore those facts. It meant that the Tribunal could not scrutinise or go behind those findings when reaching a decision as to whether it was satisfied that there was 'another reason' to revoke the decision under s 501(3A) to cancel the appellant's visa. The Tribunal was correct in that view.
[42] [2019] FCAFC 202 [195]-[196].
It follows that an applicant seeking revocation under s 501CA(4)(b)(ii), on the basis there is another reason of which the Tribunal should be satisfied which warrants revocation, cannot do so by seeking to impugn the conviction or challenge the appropriateness of the sentence imposed.
If the applicant’s appeal against conviction and sentence is successful, revocation would be permitted if the consequence of any orders made in the appeal resulted in the applicant then satisfying the character test and there by establishing ground s 501CA(4)(b)(i).
Until that occurs, the Tribunal is bound to proceed in the manner set out in HZCP.
FINDINGS – PRIMARY CONSIDERATIONS
I will deal with each of the primary considerations in turn.
Primary consideration 1- Protection of Australian community
This consideration concerns the commitment of the government to protecting the Australian community from harm as a result of criminal or other serious conduct by non-citizens. In accordance with clause 8.1(1), I should have 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. As required by clauses 8.1(2) I should also give consideration to:
(a)the nature and seriousness of the non-citizen's conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
In doing so, I note paragraph 7(2) of Direction 110 provides that this consideration is generally to be given greater weight than other primary considerations. I also note
Nature and seriousness of the applicant’s conduct
The criminal history of the applicant and the circumstances of the offending is summarised above as is what occurred at the sentencing hearing at which the custodial sentence was imposed.
The three offences of which the applicant was convicted occurred in “circumstances of aggravation” as defined in each of ss 61J(2)(e) and 61KD(2)(b) of the Crimes Act in that the victim was “under the authority of the applicant”. They are offences of a sexual nature against a woman and constitute criminal conduct which is very serious. This is so despite the comments of the sentencing judge who described the offending as “well below the mid-range” of offending.[43] In this regard, as provided by cl 8.1.1(c) of Direction 110 I have not had regard to the sentence imposed for the purpose of assessing the nature and seriousness of the offending.
[43] Transcript of sentencing, 22 September 2023 at [42] – HB 47, set out in these reasons above.
The victim provided a victim impact statement for the purpose of sentencing. Of this statement, the Court said:[44]
It is not evidence which is tested, but it sets out the not unexpected effects of the offending found by the jury.
[44] Transcript of sentencing, 22 September 2023 at [22] – HB 43.
Further insight as to the effect on the victim is apparent from the 000 telephone call by her husband to paramedics who were called to the victim’s premises after she returned home. During the call, her husband described her as hysterical.[45]
[45] Transcript of telephone call to 000 service – HB 298.
Clearly the victim was significantly impacted by what occurred. This is so despite any earlier consensual sexual activity.
Risk to the Australian community
The serious nature of the offending is such that the tolerance of the Australian community to any risk of future harm arising from such conduct is low.
Self-evidently, the nature of the harm to individuals should the applicant engage in further criminal conduct of the present type is significant.
In relation to the applicant’s frequency of offending, the occasion at work on which he was convicted on the three counts of sexual assault and sexual touching is the only occasion on which there is evidence of the applicant offending in Australia. Otherwise, I am satisfied on the evidence available that the applicant has not committed any offences when he lived in India or when he was overseas.
The offending was described by the sentencing Judge as opportunistic and not premeditated. It followed on occasion two days earlier where there had been consensual sexual activity.[46] As noted above, the sentencing Judge concluded there was a low risk of reoffending.
[46] Transcript of sentencing, 22 September 2023 at [42] dot points 2 and 4 – HB 47.
Both in the 2023 Report and the Pre-release Report support the conclusion that there is a low risk of reoffending. He has not been diagnosed with a personality order nor assessed as having any deficits or deficiencies which might suggest a likelihood or propensity to reoffend.
The applicant’s evidence was to the effect that he was concerned for the victim, despite his maintenance of innocence. He participated in rehabilitation programs available to him and his evidence discloses a continuing preparedness to participated in targeted treatment discussed by the sentencing Judge and proposed in the various reports.
Observations by others of his time in custody reflects a person who was compliant with his obligations as a prisoner and did not exhibit any signs of disruptive or inappropriate behaviour towards his custodians or those around him.
The applicant’s antecedence, described above, supports a conclusion that repeat offending or offences of a different nature are unlikely to occur.
Finally, the applicant’s parole reporting conditions including monitoring and reporting obligations further support a conclusion that any risk to the Australian community of reoffending will be minimised.
In my opinion, having regard to the evidence above, there is a low risk to the Australian community that the applicant will commit further offences or engage in other serious conduct.
The conclusion the applicant represented a low risk appeared to be a matter accepted by the respondent in oral submissions at the hearing.
In saying so, I note the respondent earlier said in written submissions:[47]
31. In summary, the respondent submits that the applicant maintains that the sexual activity was consensual and has not taken responsibility for his actions or shown any insight, and has not undergone the necessary rehabilitation which was recommended by the psychologist and referred to by the sentencing judge.
32. The Tribunal should not accept the applicant’s low risk of re-offending is such that it is acceptable, also having regard to the seriousness of the potential harm that would be caused if the offences were to be repeated.
33. In the alternative, the Tribunal should find that the applicant’s past conduct is such that, if it were to be repeated, the harm that would be caused is so serious that any risk it may be repeated is unacceptable.
[47] Respondent's SFICS at [31]-[33] – HB 596.
This submission is to be considered in circumstances where the respondent’s representative said to the Tribunal in oral submissions that, ordinarily, any decision to cancel a visa in like circumstances would be made after appeal rights had been exhausted. However, in this case, the appeal to the Court of Criminal Appeal of the Supreme Court of New South Wales remains reserved.

As discussed at the hearing, the question remains as to how the appeal on conviction and the facts surrounding that appeal are to be evaluated in assessing risk, particularly in the context of remorse.
In my view, while the applicant is maintaining his innocence and exercising appeal rights, his evidence satisfies me that he is remorseful for his conduct and its impact upon the victim and those around him. His evidence was consistent with the psychological assessments that have been made in the reports referred to above and his expressed desire to continue with targeted treatments of the type proposed in those reports.
While the respondent made submissions about the applicant’s failure to attend targeted treatment, his inability to do so while he was incarcerated is explained by ineligibility following his assessment as low risk. As to the position in detention, he was only released from gaol and placed in detention in May 2025. While his follow-up on access to treatment only occurred the week before the Tribunal hearing, his desire and commitment to undertaking relevant treatment has remained since he was placed in custody.
As such, these facts do not alter my view that the risk to the Australian community is, in the present case, low.
When considering the overall weight to be given to Primary consideration 1, there can be no doubt that the offending in question is very serious. Having said so, I have assessed the risk to the Australian community as low.
Taken together, while the risk is low, the nature of the offending weighs moderately against revocation of the cancellation.
Primary consideration 2- Family violence committed by the non-citizen
The respondent submitted:[48]
There is no current evidence indicating that the applicant has engaged in family violence, and so this consideration is neutral.
[48] Respondent's SFICS at [35] – HB 597.
There is no evidence of which I am aware that would suggest a contrary position.
Primary consideration 3- Strength, nature and duration of ties to Australia
The applicant has been in Australia for about 16 years, having first entered on a student visa as an adult age 23 in 2009.
His only offending since arrival is as described above.
The applicant gave evidence that prior to his arrival in Australia he lived with his parents and studied in a town outside the village where he lived. Upon arrival in Australia, he undertook various courses and commenced his adult working life. In this regard he was a chef, established his own cleaning business, formed a relationship with his then wife, married and raised a family whom he has supported emotionally and financially until he was convicted and sentenced to imprisonment.
His ex-wife, children and his ex-wife’s family are all Australian citizens.
Despite his divorce, which occurred while he was incarcerated, his ex-wife and her family have provided evidence of their continued support both emotionally and practically. Practical support includes offers of accommodation if the applicant is released from detention and returns to the Australian community. He maintains strong bonds, not only with his children but also those of his sister-in-law.
The strength of support and his ties is also demonstrated by the evidence of his friends, Mr M and Ms R, who offered to provide not only accommodation and food but also financial support to assist the applicant if released from detention while he re-establishes his business.
The respondent accepted the applicant has ties with Australia. Of these, the respondent said in written submissions:[49]
37. The respondent accepts the applicant has ties to Australia in the form of his three minor children. Further, the respondent also accepts he has ties in the form of his former wife and her family, his own extended family and friends, and has made positive contributions by way of his employment. However, the respondent submits that any favourable weight should not outweigh the protection and expectations of the Australian community, having considered the following matters:
a. The applicant did not arrive in Australia as a young child, but rather he arrived as a 23-year-old in 2009,
b. The applicant and his wife are now divorced, and so the relationship with her and her family should no longer be considered as a “significant” tie. Further, the ex-wife and the children have the support of her family in Australia.
c. The applicant has not provided any information of his relationship with his own extended family residing in Australia.
d. The applicant could maintain contact with his children in Australia via electronic communication and visits from them to India when able.
e. The offending took place in the workplace where the victim was under the authority of the applicant by virtue of their employee/employer relationship.
[49] Respondent's SFICS at [37] – HB 597.
I do not accept the respondent’s submission that the applicant’s relationship with his ex-wife and her family should no longer be considered significant. My impression of the witnesses is that they genuinely valued the applicant as a person and as a member of their family who had made a positive contribution and would continue to do so in the future. While each witness had a different perspective on how these contributions manifested themselves in day-to-day life, they were all reflective of a positive and ongoing relationship with the applicant.
In relation to his ex-wife, there was no suggestion that she sought to exclude the applicant. Rather she spoke of co-parenting and working with the applicant in maintaining family connections. She also expressed an expectation that the applicant would contribute in both an emotional and financial way to the family unit.
While the applicant’s relationship with his ex-wife has obviously changed in light of their divorce, her new partner and new child, I have formed the opinion that this new situation will not detract from the significant ties which have existed to date and which I expect will continue in the future.
As to ties to his “extended family” in Australia, the applicant explained that he saw his former in-laws as his extended family. Otherwise, he is an only child, the Tribunal understanding that his parents’ relations still reside in India.
As to contact with his children if he returns to India, his ex-wife explained, and I accept that for financial reasons visits to India would be infrequent. As to electronic communications and ongoing communications with his children, I will deal with this matter in further detail under Primary consideration 4.
Finally, as the respondent accepted, the applicant has made a positive contribution to the community, noting that the offending occurred in the course of him carrying on his cleaning business.
Having regard to the above, in my view this consideration weights in favour of revocation of the cancellation.
Primary consideration 4- Best interests of minor children in Australia affected by the decision
As detailed above, applicant has three minor children aged 7, 4 and 2. All are Australian citizens.
Until convicted and incarcerated, the applicant lived together with his children and his ex-wife. The evidence discloses he was the primary “bread-winner”, his wife caring for small children, one of whom was less than one year old when the applicant was convicted.
The applicant gave evidence of his relationship with his daughter, aged 7 and his older son aged 4, candidly explaining that his youngest son, now aged 2, was too young to remember him when he was convicted. The applicant gave evidence concerning things he did with his children prior to conviction and his relationship with them. He also gave evidence concerning his ongoing relationship with his children including communicating with them while he was incarcerated and, more recently, in detention.
His ex-wife gave evidence about his positive relationship with his children and his qualities as a parent.[50] Ms S also gave evidence about the importance to her for the children to have their father present, including being able to teach them about their Indian background and the Hindu faith. As noted above, she saw the applicant performing the role of a co-parent and that they would work together in bringing up their children. In this regard, it was also important that the applicant previously and would continue to provide financial support for the family.
[50] Ms S’s written statement – HB 292-293.
As the evidence discloses, the children have had and maintained a relationship with the applicant since they were born. Obviously, in connection with the youngest child, this relationship has been limited in consequence of the applicant being imprisoned and then in detention.
It is highly likely that the applicant will play an active and positive parental role in the future of the children over the next 16 years until the last child reaches 18 years of age. There is no suggestion that the circumstances surrounding the applicant’s offending will have a negative impact upon their upbringing.
On the other hand, in the event the applicant was removed from Australia, it is highly likely that his face-to-face contact with his children will be substantially reduced because of the inability of the ex-wife to be able to afford frequent trips to India. His children will not benefit from having their father attend educational, sporting and social events nor will he be close by to nurture and support is children on daily basis. While electronic communication is available if the applicant is returned to India, one would expect there would be a negative impact on his ability to parent his children with his ex-wife.
As to the children’s views, no statements have been provided by them. However, artwork from his children[51] and the applicant’s evidence of communications with his children indicate a continuing bond and closeness which one would reasonably expect would be adversely affected if the applicant was removed from Australia.
[51] e.g. HB 132.
In addition to the above, there is also evidence of an existing and continuing relationship with the children of Ms C, a niece and nephew who are both minors. In this regard, the niece did drawings for the applicant while he was incarcerated and sent messages of love.[52]
[52] e.g. HB 125-HB 126.
On the issue of the best interests of the minor children, the respondent submitted:[53]
38. The respondent accepts that it is in the best interests of the applicant’s 3 minor children, aged 7, 4, and 2 years old, for the cancellation of his visa to be revoked. However, the respondent submits that any weight is moderated by the following circumstances:
a. First, there has been limited meaningful contact between the applicant and his children since September 2023.
b. Secondly, the applicant can maintain contact via electronic means, and with the children visiting India when possible.
c. Thirdly, the applicant’s ex-wife already fulfils and will continue to fulfil a parental role in relation to the 3 children.
39. Accordingly, the respondent submits that the favourable weight to be afforded to the applicant should be considered only moderate.
40. In relation to the applicant’s niece and nephew, given those children are already in the care of their parents, who have not advised of any hardship the children would experience if the applicant was removed, and the applicant is now divorced from his wife, the Tribunal should give this little to no weight.
[53] Respondent's SFICS at [38] – HB 598.
I do not accept the submission in paragraph 38 set out above. Separation is a consequence of incarceration and, more recently, detention. When contact has occurred, in my view it has been meaningful and is reflective of an existing family unit which would be expected to continue in the future. The evidence from the applicant’s ex-wife and her family shows a commitment to such a future.
Communicating and parenting remotely is clearly not in the best interests of the applicant’s children. The capacity to do so electronically is not an equivalent alternative in this case. Further, the evidence of Ms S makes clear that regular visits to India to enable physical contact with the children is not financially feasible.
Lastly, while the ex-wife has been performing the parental role in relation to the 3 children while the applicant is incarcerated, it is clear that she would like the ongoing financial and personal support of the applicant. In this regard, I note her parents are not able to contribute financially and, no doubt as they get older, may be less available to assist in the day-to-day tasks of getting the children to and from home and extra-curricular activities.
As to the children of his ex-sister-in-law, the evidence to which I have referred shows an existing and continuing bond arising from the contribution of the applicant to his former in-laws which he considers as his extended family.
Accordingly, this matter weighs strongly in favour of revocation of the cancellation of the visa.
Primary consideration 5- Expectations of the Australian community
There is an expectation that non-citizens will obey Australian laws while in Australia. Clause 8.5(1) provides:
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.
As noted in paragraph 8.5(3) these expectations “apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community”.
The offending that occurred here constitutes a serious crime against a woman in breach of this expectation.
This consideration weighs against revocation of the cancellation of the Resident Return Visa.
FINDINGS – OTHER CONSIDERATIONS
Paragraph 9 of Direction 110 requires the Tribunal to take account of other considerations including those specified in paragraphs 9(1)(a)-(c), namely:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
As noted in Direction 110, the applicant is liable to be removed from Australia if the cancellation of the Resident Return Visa is not revoked.[54] Until that occurs, he must remain in detention.[55]
[54] s 198 of the Act.
[55] s 189 of the Act.
Section 501E prevents the applicant applying for another type of visa while in the migration zone. Finally, an inability to meet Special Return Criteria 5001(c) may operate to prevent the applicant obtaining a visa to return to Australia in the future. These considerations provide some weight in favour of revocation of the cancellation of the Resident Return Visa.
The applicant claimed in his application for revocation of cancellation that if he is returned to India he may be harmed or killed by reason of his offending.[56] This claim was not assessed in the Delegate’s Decision.[57]
[56] Application requesting revocation commencing HB 55 at HB 73.
[57] Delegate's Decision HB 32 at [91].
At the hearing before the Tribunal, the applicant did not pursue this assertion, explaining that the claim was made following advice that was provided to him by someone assisting with his application while in detention. However, he did maintain there might be some vilification – the applicant suggesting that those in India might find out about what he had done through social media.
I am not satisfied these matters constitute a relevant impediment to the applicant being returned to India. The evidence does not establish any likelihood that his conduct would become general knowledge in India or that there is a real risk to his well-being arising therefrom.
As to other impediments if the applicant is removed, there is no evidence of ill-health or matters of like nature that would prevent him from being able to return to India. Although it was reported the applicant suffered from reflux. There is some evidence that returning to India may have an adverse impact on his mental well-being, particularly arising from separation from his children. In evidence, the applicant indicated he expected to be able to find work of some type although he had not previously worked in India prior to coming to Australia in 2009. It is unclear what social services might be available to him in India but there is no evidence to suggest he would not have access to any available services.
There is no suggestion of any language or cultural barriers affecting his return to India where he grew up. As stated above, his parents are live in India. The applicant’s evidence indicates his parents could provide food and housing but were not in a position to provide financial support, being elderly and living in the village. There was no evidence of any support was available from his extended family in India. Indeed, the caste system and evidence concerning the status of his parents in the family structure would suggest no support would be available to the applicant from any relatives.
In relation to consideration 9(1)(c), there is no evidence to suggest there is any impact on Australian business interests and this consideration is irrelevant in the present case.
Together, the other considerations weigh slightly in favour of revocation of the cancellation of the Resident Return Visa.
CONCLUSION
As recorded above, I have made the following determinations:
(a)Primary consideration 1 (Protection of Australian community) weighs moderately against revocation of the cancellation of the Resident Return Visa.
(b)Primary consideration 2 (Family violence committed by the noncitizen) has been given no weight as there are no reported incidents.
(c)Primary consideration 3 (strength, nature and duration of ties to Australia) weighs in favour of revocation of the cancellation of the Resident Return Visa.
(d)Primary consideration 4 (Best interests of minor children in Australia affected by the decision) weighs strongly in favour of revocation of the cancellation of the Resident Return Visa.
(e)Primary consideration 5 (Expectations of the Australian community) weighs against revocation of the cancellation of the Resident Return Visa.
In relation to other considerations, these weigh slightly in favour of revocation of the cancellation of the Resident Return Visa, noting that limited family support is available to the applicant if he is returned to India.
Direction 110 provides primary consideration 8.1 (protection of the Australian community) “is generally to be given greater weight than other primary considerations” and otherwise “primary considerations should be given greater weight than other considerations”.[58]
[58] Paragraph 7(2) of Direction 110.
Having reviewed the evidence in the context of the requirements of Direction 110, particularly primary consideration 8.1 and the weight generally afforded to that consideration and the conclusion I have reached in relation to primary consideration 8.5, I am nonetheless of the view that the factors in favour of revocation of the cancellation of the Resident Return Visa outweigh the factors in favour of its cancellation. The criminal conduct engaged in by the applicant is very serious. However, the risk to the Australian community is low, even having regard to the nature of the harm and the consequences if it re-occurred. His ties to Australia and the best interests of his children led me to the conclusion that revocation of the cancellation is appropriate in the present case
In these circumstances the cancellation of the Resident Return Visa should be revoked.
DECISION
The decision under review should be set aside and its substitution the cancellation of the applicant’s Visa is revoked.

Date of hearing: 28 July 2025

Applicant: Self-represented

Solicitors for the Respondent: Mr S Valliappan, Solicitor
Australian Government Solicitor

Date of hearing:	28 July 2025
Applicant:	Self-represented
Solicitors for the Respondent:	Mr S Valliappan, Solicitor Australian Government Solicitor