ZKQX and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 2027

ZKQX and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2027 (2 October 2025)
Applicant:ZKQX
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4345

Tribunal: Senior Member C Thwaites
Place:Melbourne
Date:2 October 2025
Decision:The decision not to revoke the cancellation of the Class BF transitional (permanent) visa, is affirmed.

Statement made on 02 October 2025 at 11:51am
Senior Member C. Thwaites

Catchwords
MIGRATION – review under section 501CA(4), character test – Ministerial Direction No 110.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Regulations 1994 (Cth)
Secondary Materials
Minister for Immigration and Multicultural Affairs (Cth), Direction No 110: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (7 June 2024)
Statement of Reasons

This is an application for review of a decision made by a delegate of the Respondent not to revoke the cancellation of a Class BF transitional (permanent) visa previously held by the Applicant, made under section 501CA(4) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The Applicant was born in 1964 and raised in Tonga. In 1982 the Applicant and his mother and siblings joined his father in Australia. The Applicant found employment soon after arriving. He initially worked as a casual labourer and then on a dairy farm. The Applicant married his wife in 1983. They have four adult children and seven grandchildren.
On 14 November 2022 the Applicant was convicted of two counts of indecent assault upon a child under 16 years of age, and two counts of sexually touching a child between 10 and 16 years of age. The Applicant was sentenced to an aggregate term of four years and six months imprisonment.
On 30 October 2023 the Applicant was convicted of two counts of indecent assault where the victim was under the age of 10 years. The Applicant was sentenced to an aggregate term of four years and six months imprisonment.
On 26 July 2024 the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Act.
The Applicant made representations for revocation of that decision within the time allowed.
On 9 July 2025 a delegate of the Minister decided not to revoke the cancellation of the Applicant’s visa under s 501CA(4) of the Act, because the delegate was not satisfied the Applicant passed the character test, and the delegate was not satisfied there was another reason why the cancellation decision should be revoked. Therefore the power in s 501CA(4) was not enlivened and the Applicant’s visa remained cancelled.
On 17 July 2025 the Applicant applied for review of that decision to the Administrative Review Tribunal (the Tribunal).
The Applicant attended a hearing on 15, 22 & 23 September 2025 and gave oral evidence. The Applicant was not represented in relation to the application. The Tribunal also received oral evidence from the Applicant’s wife and from his aunt.
In this statement of reasons, the Tribunal has refrained from using the names of the victims of the Applicant’s conduct and his relatives out of respect for their privacy.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act states 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.
Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record.
Section 501(7)(c) states that, for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (section 499(2A)).
The Minister has issued Direction 110, Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (the Direction) dated 7 June 2024.
The Direction sets out the considerations to be taken into account when considering a request to revoke a cancellation and states: 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. The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act.
Clause 5.2 of the Direction sets out the principles to provide a framework for decision making. These 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 non-citizen poses a measurable 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 non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out the primary considerations to be taken into account:
8.1protection of the Australian community from criminal or other serious conduct;
8.2whether the conduct engaged in constituted family violence;
8.3the strength, nature and duration of ties to Australia;
8.4the best interests of minor children in Australia;
8.5expectations of the Australian community.
Paragraph 9 of the Direction sets out other considerations to be taken into account including:
9.1Legal consequences of the decision;
9.2Extent of impediments if removed;
9.3Impact on Australian business interests.
ISSUES
The issues to be determined in this application are:
1)Does the Applicant pass the character test as set out in section 501(6), and if not,
2)Whether there is another reason why the original decision should be revoked under section 501CA(4), having regard to the Minister’s Direction No. 110.
FINDINGS AND REASONS
Does the Applicant pass the character test?
It is not in dispute that the Applicant does not pass the character test.
On the evidence before it, including the Check Results Report and the sentencing remarks of Her Honour Judge Noman SC of the District Court of the New South Wales Criminal Jurisdiction dated 14 November 2022, the Tribunal finds that on 14 November 2022 the Applicant was convicted of two counts of indecent assault upon a child under 16 years of age, and two counts of sexually touching a child between 10 and 16 years of age. The Applicant was sentenced to an aggregate term of four years and six months imprisonment with a non-parole period of three years.[1]
[1] Consolidated Hearing Book (HB), pp 40 & 53.
On the evidence before it, including the Check Results Report and the sentencing remarks of His Honour Judge Gartelmann SC of the District Court of the New South Wales Criminal Jurisdiction dated 30 October 2023, the Tribunal finds that on 30 October 2023 the Applicant was convicted of two counts of indecent assault where the victim was under the age of 10 years. The Applicant was sentenced to an aggregate term of four years and six months imprisonment for these convictions with a non-parole period of two years and six months.[2]
[2] HB, pp 40 & 44
The Tribunal finds the Applicant has a substantial criminal record and does not pass the character test set out in section 501(6)(a) of the Act.
Whether there is another reason why the original decision should be revoked under section 501CA(4), having regard to the Minister’s Direction No. 110.
The Tribunal has considered each consideration set out in the Direction in turn, keeping in mind the principles in clause 5.2 of the Direction.
8.1 The protection of the Australian community from criminal or other serious conduct
This consideration requires the Tribunal to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and 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.
The Tribunal is required 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.
The Tribunal 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.
8.1.1 Nature and seriousness of the conduct
Paragraph 8.1.1(1) states that when considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal must have regard to a number of factors.
As noted above on 14 November 2022 the Applicant was convicted of two counts of indecent assault upon a child under 16 years of age, and two counts of sexually touching a child between 10 and 16 years of age.
According to the sentencing remarks of Her Honour Judge Noman these offences were committed on three separate occasions over a number of years. The victim’s age was an element of each offence. Her Honour accepted the general proposition that the younger the victim is within an age range the more serious the offence. Young child victims are especially vulnerable.
The Applicant was the victim’s uncle by marriage. For a period of time, she resided with the Applicant and his family. Her Honour Judge Noman considered this was a relatively close familial link and an aggravating circumstance. Her Honour considered the offending entailed a relatively high degree of breach of trust. All the offences occurred in the Applicant’s home.
The first offence occurred at a time the victim was living there. This elevates the seriousness as it was her home and a place she had a legitimate expectation to feel safe and protected. The Applicant violated this sense of safety within the home. The victim was seven years old. The Applicant entered the kitchen and while standing behind the victim rubbed his penis against her over clothing.
The second offence occurred when the victim was visiting the house and when she was in the garage with her cousin. The victim was nine years old. When her cousin left the Applicant entered, he placed her on a bed on her back and placed himself on top and rubbed his groin against her through clothing.
The next two offences occurred during a family visit to the house. The victim left her mother and aunt in the living room and went to the kitchen. The victim was 12 years old. The Applicant followed and placed her hand on his penis directly skin to skin, and then rubbed his groin against her over clothing. The rubbing on each occasion was referred to in the evidence as “grinding”.
None of the offences involved violence beyond the innate features of the offence. None of the offences were of long duration. From all the evidence it appears the time involved for most incidents was not long but not momentary. There was an estimate of each involving minutes. The longest was an estimate of six minutes.
Her Honour Judge Noman noted these acts were said to have occurred within the context of other acts of “grinding”. Her Honor accepted the acts occurred within a broader history of sexualised touching. Her Honour also accepted that there was an occasion when the Applicant intentionally viewed the victim in the shower through the window. Her Honour considered this reflects a continuation of a sexual interest but did not elevate the seriousness of the offences for sentence. Each offence involved the risk of detection.
The victim made a complaint at school which was reported to police and this commenced the formal investigation.
Her Honour noted that none of the offences reflected planning. The offences reflect opportunistic offending in that the Applicant probably did not plan any particular occasion or particular sexual act until the opportunity presented itself.
Her Honour considered each offence as serious as reflected by the elements and the penalties.
Her Honour considered the first, second and fourth offence fell below the mid-range of offending and the third offence within the mid-range of objective seriousness.
Her Honour noted that the Applicant chose to defend these matters at trial as was his right. Her Honour did not use that as adverse to him, but considered it reflected an absence of remorse. Her Honour noted that since the verdict there has been no expression of remorse.
Her Honour also noted the offender chose to exploit a family relationship to commit the offences.
As noted above on 30 October 2023 the Applicant was convicted of two counts of indecent assault where the victim was under the age of 10 years.
In his sentencing remarks His Honour Judge Gartelmann stated the offences all occurred in the Applicant’s family home. The victim was the Applicant’s niece on his wife’s side. From about 1997, the victim often slept at the Applicant’s house on weekends. When she stayed over, she slept in the same bedroom as her cousins, the Applicant’s two daughters. In the bedroom was a bunk and a single bed. The victim would share the bottom bunk with one of the Applicant’s daughters. At the time, the Applicant was working night shifts. Between 1 January 1997 and 5 December 1998, the victim, then aged seven and nine years, was asleep in the bottom bunk with her cousin. She was closest to the edge while her cousin slept closest to the wall. Her other cousin was on the single bed. The victim woke when the Applicant scooped her up from the bed and gently placed her on the floor. She opened her eyes and recognised him above her. He was dressed in his work clothes. She closed her eyes and pretended to sleep. He pulled her underwear down and unzipped his pants. He placed his hands on either side of her while he rested his lower body on hers. He moved his erect penis up and down against her genitalia. About a minute later, he ejaculated into his hand. Some of the ejaculate also fell onto her stomach. At about this time, the Applicant’s wife called out to him, urging him to hurry up and go to work. He wiped the victim’s stomach, pulled up her underwear and placed her back on the bed with her cousin. He left the room. The victim moved towards her cousin and hugged her. She cried for a short time before falling asleep.
A few weeks later, as she was again sleeping at the Applicant’s home, the victim made sure she positioned herself closest to the wall and held her cousin’s hand before she went to sleep. She woke to find the Applicant trying to pick her up from the bed. She tried unsuccessfully to wake her cousin by tugging on her hand but she did not wake. The Applicant scooped her up from the mattress and placed her on the ground. He removed her shorts and underwear and unzipped his pants. He placed his lower body against hers with his hands on either side supporting his body weight. He began to grind up and down with his erect penis against the outside of her genitalia against the skin. He then ejaculated into his hand. He put her clothes back on, placed her back in bed and then left the room.
A few weeks to a month later, the victim was showering with the Applicant’s two daughters in the bathtub. The Applicant’s wife was not at home. The Applicant came into the bathroom and told the victim “I will dry you up and then get the other two”. She told him she did not want to go and wished to remain with her cousins. He took her from the bathtub and wrapped a towel around her. He then carried her into his bedroom and stood her on the bed. He dried her before lying her down on it. He closed and locked the door. He got a bottle of baby oil and put some on his hands. He then began rubbing his penis until it became erect. He lay on top of her and placed his erect penis against the outside of her genitalia against the skin. He rubbed his penis up and down against her genitalia. He told her to “keep quiet” in Tongan. He continued to grind on her vagina before ejaculating on her stomach. He used the bath towel to wipe semen off her stomach before he dressed her. They then left the room.
His Honor stated all such offences are serious. The victim’s age at the time of these offences was not low relative to the range the offence provisions cover, but she was still a child and so vulnerable. The Applicant was in his early 30s. The disparity between their ages was significant. The Applicant used no force or coercion to commit the offences but did not need to in the circumstances. The victim was his niece. She regularly stayed with him and his family. He abused the trust of the victim and family in abusing her in a place where she should have been safe and secure. The Applicant committed the first offence in his daughter’s presence, but she did not wake so was not affected. He committed the last offence in his own room after taking her there and closing and locking the door. The effect of this was to make her more isolated and increase her vulnerability. This indicated some albeit brief premeditation. No planning was otherwise apparent in either offence. The act involved in each offence was rubbing his bare penis against her bare genitalia. It culminated when he ejaculated, and the ejaculate went on her body in each instance. This conduct was highly invasive and degrading of the victim. The offences were relatively serious examples of their kind.

When considering the nature and seriousness of the Applicant’s conduct, clause 8.1.1(1)(a) of the Direction provides a list of matters the Tribunal must have regard to. Without limiting the range of conduct that may be considered very serious, the types of crimes or conduct listed are viewed as very serious by the Australian Government, and include sexual crimes, crimes of a sexual nature against women and children regardless of sentence imposed, and acts of family violence regardless of whether there is a conviction or sentence imposed.
During the hearing the Applicant told the Tribunal he regretted his actions and was sorry for what he had done. It was difficult for him to go back to what had happened, and difficult to hear himself described as a bad man. He is a family man who made mistakes. He noted his conduct was not as serious as taking a life.
On the evidence before it, the Tribunal finds the Applicant has committed sexual crimes, crimes of a sexual nature against a child (two children), and acts of family violence. These types of crimes and conduct are viewed very seriously by the Australian Government and the Australian community in accordance with cl 8.1.1(1)(a) of the Direction.
Sentence imposed
Clause 8.1.1(1)(c) requires the Tribunal to have regard to the sentence imposed by the courts, with the relevant exceptions of crimes of violent and or sexual nature against women and children (cl 8.1.1(1)(a)(ii), and acts of family violence (cl 8.1.1(1)(a)(iii).
The Tribunal has considered whether to have regard to the sentence imposed in this matter. As noted above, the Tribunal finds the Applicant has committed sexual crimes (cl 8.1.1(1)(a)(i)), which is not included in the relevant exceptions set out in cl 8.1.1(1)(c). The Tribunal also considers that while cl 8.1.1(1)(c) exceptions mean the Applicant’s sentence may not be a mandatory relevant consideration, the Tribunal can still have regard to the sentences.
As found above, on 14 November 2022 the Applicant was convicted of two counts of indecent assault upon a child under 16 years of age, and two counts of sexually touching a child between 10 and 16 years of age, and sentenced to an aggregate term of four years and six months imprisonment with a non-parole period of three years. [3]
[3] Consolidated Hearing Book (HB), pp 40 & 53.
On 30 October 2023 the Applicant was convicted of two counts of indecent assault where the victim was under the age of 10 years and sentenced to an aggregate term of four years and six months imprisonment with a non-parole period of two years six months.[4]
[4] HB, pp 40 & 44
The Tribunal considers sentences of imprisonment as the most serious in the sentencing hierarchy. The Tribunal accepts the Respondent’s submissions that the sentences imposed reflect the seriousness of the Applicant’s conduct.
Impact of offending on victims and cumulative effect of repeated offending
In her sentencing remarks for the sentencing of the Applicant on 14 November 2022, Her Honour Judge Noman accepted the victim was without a doubt adversely affected by the betrayal of trust and the offences. During the trial it was evident that the disclosure had caused a fracture in the family relationships and a resultant loss of contact with cousins. The victim impact statement expressed the harm the victim encountered including deterioration in her mental health with correlating physical acts and serious risk of harm. The victim indicated she had not disclosed all aspects of the trauma and the lasting legacy of the offences against her.
In his sentencing remarks for the sentencing of the Applicant on 30 October 2023 His Honour Judge Gartelmann noted the victim’s impact statement described the victim being made to live with a secret that she did not want. She described feeling ashamed and suffering poor self-esteem and recounted being depressed and having thoughts of suicide.
The Tribunal accepts the impact of the Applicant’s offending on the victims had profound and significant adverse effects.
The Applicant’s wife’s oral evidence, her affidavit dated 27 October 2022, written statement dated 16 September 2024 and a written statement dated 28 August 2025, and the oral evidence of the Applicant’s aunt and her written statement dated 26 October 2022, also provided evidence of the impact of the Applicant’s offending on the family. The Tribunal accepts the Applicant’s offending has also affected the victim’s family members and fractured family relationships. The Tribunal also accepts the cumulative effect of the repeated offending had a profoundly negative impact on his victims, their families and the wider community.
Frequency of offending
On the evidence before it, the Tribunal finds the Applicant’s offending occurred over a number of separate incidents over a number of years.
The offending relating to the sentencing on 14 November 2022 occurred across three separate occasions over a five-year period, when the victim was between 7 and 12 years old.
The offending relating to the sentencing on 30 October 2023 related to three separate events over an almost two-year period between 1 January 1997 and 5 December 1998.
The Tribunal accepts the Respondent’s submissions that the Applicant’s offending was not the result of a single, situational lapse of judgment or an isolated episode, and demonstrated sporadic and opportunistic offending indicating a pattern of predatory behaviour and a willingness to reoffend over a period of years. The Tribunal considers this increases the seriousness of the Applicant’s conduct. While the Tribunal accepts the Applicant’s offending against his nieces occurred over a number of years and had a profound impact on them and their family, the Tribunal also accepts that there was no trend of increasing seriousness as set out in cl 8.1.1(1)(e).
Providing false and misleading information
There is no material before the Tribunal to suggest the Applicant has provided false or misleading information.
Reoffending since being warned
On the evidence before it, the Tribunal accepts the Applicant did not have a criminal history prior to being arrested for the offences noted above, and the Applicant has not offended since.
Offences or conduct committed in another country
The offences and conduct that is the subject of this application occurred in Australia. There is no material before the Tribunal to suggest the Applicant has offended or committed criminal conduct in another country.
Conclusion 8.1.1 Nature and seriousness of the conduct
Overall, having regards to all the factors set out in cl. 8.1.1, including the crimes of a sexual nature against children, and acts of family violence, and the impact of the offending on the victims and their family, and while the Tribunal accepts the Applicant’s submissions that his offending was not as serious as taking a life, the Tribunal finds that the nature and seriousness of the Applicant’s conduct is very serious.
8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has had 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. In assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal must have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in further criminal or other serious conduct.
Nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
As noted above, the Applicant told the Tribunal he regretted his actions and was sorry for what he had done, and the Tribunal accepts the Applicant’s submissions that his offending conduct was not as serious as taking a life.
Nevertheless, on the evidence before it, the Tribunal accepts if the Applicant was to engage in further criminal or other serious conduct, he could cause serious harm including serious psychological harm to members of the Australian community, in particular vulnerable children in his care.
The Tribunal also accepts the Respondent’s submissions that any future offending would cause harm to the Australian community given the impost on the community of the costs of dealing with this behaviour.
The likelihood of the Applicant engaging in further criminal or other serious conduct
In considering this aspect of the consideration the Tribunal must take into account information and evidence on the risk of the Applicant reoffending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
Risk of the Applicant reoffending and evidence of rehabilitation
During the hearing the Applicant told the Tribunal he regretted his actions and was sorry for what he had done, and it was difficult to hear himself described as a bad man.
In Her Honour Judge Noman’s sentencing remarks dated 14 November 2022, Her Honour noted the Applicant had no criminal record and was of otherwise good character. There were no mental health issues informing the offending. The material indicated the Applicant had the support to his family and community. He is a person with strong Christian faith who actively participated in his church and affiliated activities, and he conducted himself in the community with generosity. Her Honour also noted the psychologist indicated that the Applicant was in the low-risk category for reoffending. The Applicant chose to exploit a family relationship to commit the offences, and as the offences were denied it was difficult to ascertain motivators for the offending other than a sexual interest in the victim. Her Honor noted the Applicant was still supported by his extended family and would therefore have access to other children. They did not accept he offended and would therefore have no heightened vigilance when he is around children. Given the limited antecedents and the fact that the offending was detected with significant personal ramifications to the offender, Her Honor considered the risk of reoffending to be low. Her Honour indicated this determination suggested that there existed favourable prospects for rehabilitation despite non-acceptance of the offending.
In His Honour Judge Gartelmann’s sentencing remarks dated 30 October 2023 His Honour stated the Applicant’s upbringing in Tonga was disadvantaged in some respects but it was not dysfunctional in any way such as to make him less morally culpable for the offences. The Applicant’s education ceased at the year 10 level, but he has since demonstrated a good employment history, working continuously until a redundancy in 2018. His wife and children continue to support him. They are now all adults. He suffered with a heart condition. He has been prescribed medication to treat it. He was unable to access the medication when he was first taken into custody. There is no evidence this impacted his health, but it has likely caused him significant stress as his father died of a heart condition. The Applicant also suffered symptoms of depression in custody. A psychologist assessed him in late 2022. She considered a diagnosis of persistent adjustment disorder with depressed mood was warranted then. She assessed him again about a year later and noted his symptoms have since abated. There is no evidence the offender suffered a mental condition that contributed to the offences so as to make him less morally culpable. Nor does his mental condition now make his case less suitable to use to deter others. But his mental condition has made his experience of incarceration more onerous than it otherwise would have been. The restrictions imposed on all inmates during the pandemic have made it harder still. The Applicant was isolated for about five weeks and unable to leave his cell for more than a couple of hours a day. Family members could not visit him. He was then transferred to a remote correctional centre where his family were unable to visit him on a regular basis. He became suicidal early in his time in custody though he has since recovered from this. The evidence as to his remorse is conflicting. The agreed facts note he apologised to the victim before he was charged with the offences. His guilty pleas spared her from the need to give evidence. The sentence assessment report noted he expressed some insight into the impact of the offences on the victim but then said he could not recall them. The evidence did not establish on the balance of probabilities that he had accepted responsibility for the offences so as to warrant a finding of remorse. Nor was there any other specific evidence to demonstrate rehabilitation. The Applicant complied with conditional bail for a period of about three years from late 2019 until late 2022, and his custodial history records no misconduct since his incarceration. The psychologist noticed he was willing to engage in any intervention to address his offending. The evidence did not establish on balance good prospects of rehabilitation, but prospects nonetheless subsist. A corrections psychologist considered the Applicant posed a very low risk of sexual offence. A sentence assessment report author concluded he posed a low to medium risk of re-offence. The psychologist who assessed him considered his risk of reoffending was low. His Honour stated the evidence did establish the Applicant is unlikely to reoffend.
In the sentencing assessment report dated 19 October 2023, the author stated the Applicant had been assessed at a very low risk of sex reoffending according to the static-99R. A psychological assessment report deemed the Applicant to have a low density of dynamic risk. Given the Applicant’s risk of sexual reoffending he was likely to be ineligible for CSNSW custody or community-based sex offender programs. The Applicant demonstrated a repeated pattern of offending against the victim over the course of almost 2 years and the age of the victim indicates vulnerability. It was considered that risks increased in the presence of prepubescent females. While the Applicant appears to have some insight into the impact of his offending, he was unable or unwilling to accept responsibility for his offending. He was unable to recall the offer of an apology to the victim years later. Initially when questioned, he reflected the victim would have been scared during the commission of the offence however later reflected he was sorry if things had happened. Despite this attitude the Applicant expressed a willingness to engage in intervention to address his sexual offending behaviour namely psychological intervention. The Applicant disclosed the willingness and ability to engage in community service work. He has health issues whereby light duties may need to be considered. The Applicant had no prior contact with community corrections, and during the preparation of the report he engaged well in discussing and was forthcoming with information. The author of the report stated the Applicant has been assessed at a low-medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).
In the psychological assessment report dated 4 October 2022, psychologist Alison Cullen stated the Applicant’s Static-99R score placed him in the risk level below average. His Stable-2007 score falls into the interpretive range considered to be a low level of stable dynamic risk and needs. When these measures are combined his composite assessment places him in the low priority category for supervision and intervention, in comparison to other sexual offenders assessed using these measures. Men with the same risk profile as the Applicant have been seen to recidivate (with any criminal recidivism, including breaches) at 15.6% over three years. These are empirically derived estimates. The Applicant’s score on the LSI-R placed him in the low risk/needs (i.e. approximately 11.7% chance of recidivism).
Alison Cullen stated the Applicant’s prospects of rehabilitation are supported by his lack of criminal history in light of his age, his long-term (meaningful) marriage, his children, his sound employment history, the absence of any prior mental health concerns, the absence of any alcohol/substance abuse issues, stable accommodation, financial stability, prosocial attitudes, strong religious faith, strong community-based support, his capacity for empathy and lack of impulsivity (as supported by his long-term employment and long-standing volunteer involvement), and his compliance with bail for a period of 2.75 years.
In addition to the aforementioned protective factors, this assessment identified the Applicant’s risk of sexual and general recidivism as low. This was supported by the lack of addictions (past and present) and violent history, as well as strong community skills possessed by the Applicant which therefore indicate there were no identifiable custodial programs that would benefit his rehabilitation. Notwithstanding that a low risk of assessment does not denote less gravity with respect to the offending misconduct, it was Allison Cullen’s understanding that inmates rated as low risk are ineligible for custodial programs. Accordingly, any targeted community-based treatment options to address individual criminogenic needs would need to be decided by the sex offender program team and the forensic psychological services when the Applicant was eligible for parole.
In his written statement for reasons requesting revocation, the Applicant stated he was a first-time offender with no criminal record and was very remorseful and prepared to seek professional assistance to become a better person. He also stated he will get help professionally if his visa is reinstated. The Applicant stated that in Junee (correctional centre) they don’t have any programs or courses, but he is willing to take courses if it is available in jail. He also stated he promises there won’t be any risk of reoffending in the future. He will get help from his family and from the church leaders as well.[5] In his handwritten statement to the Minister, the Applicant stated there is not a single day that passes without him regretting the direct result of his actions, and how it has impacted so many individuals including those who are so dear to him. He fully comprehends and accepts his current incarceration as a direct and just outcome of the indiscretion. He has also come to understand that no matter how much he regrets his actions there is no changing the past. However, he is capable of taking accountability and ensuring he becomes the person he knows he can be, a law-abiding and hard-working husband, father and grandfather, that his family and community deserves him to be for the victims and their family. He will take full advantage of courses and resources available to him. He hopes his current actions will demonstrate his willingness to improve himself and help assure that he will do anything he can to never ever reoffend again. He actively participates in programs offered and with the help of his faith he has successfully put plans in place to help him through difficult times. He also looks to enrol in further courses and counselling upon his release to ensure he has all the opportunities to prove his successful rehabilitation. He arrived in Australia in 1982 and over the past four decades has been blessed by this wonderful country many times over. Today his wife, four children and seven grandchildren are proud and honoured to call Australia home. He knows no words will ever be enough to fully convey his condolences and repentance.
[5] HB, pp 75 &86
The Tribunal has given weight to the Applicant’s wife’s oral evidence and written statements and affidavit.[6] She provided detailed and consistent evidence in relation to her relationship history with the Applicant, their marriage, their family, and life together in Australia. It is clear she continues to support the Applicant but also recognises the effects of his offending behaviour. She is convinced he is remorseful for the offences and provided persuasive evidence that she will do her utmost to support him and ensure he does not reoffend. The Applicant’s aunt’s oral evidence and written statement also indicated she will provide support to the Applicant on his release to engage with support services and treatment options, so he does not reoffend.
[6] HB, pp 114-115, 395-399, 431

The evidence before the Tribunal indicates that while in custody the Applicant has completed the Foundational Skills Level I and Level 2 programs, which the Applicant described as being about how to manage and start a business. He also completed a Certificate III in Work Health and Safety program and received a Participant in Sustainable Work Practices certificate.
The Tribunal has also given weight to the time the Applicant spent in the community since the most recent offence, noting the Applicant has not reoffended during that period or while on bail.
While the Tribunal has considered the Respondent’s submissions that the Applicant’s conduct before the court in denying some of the allegations and otherwise proceeding to trial reflects an absence of remorse, and the evidence indicated a limited insight by the Applicant into his offending conduct and the impact it had on the victims, the Tribunal considers the Applicant’s more recent evidence indicates he now takes responsibility for his offending conduct and has insight into its effects and is remorseful.
While the Tribunal accepts that the Applicant has not undertaken any targeted rehabilitation for sex offences while in prison, the Tribunal also accepts Allison Cullen’s statement that due to the Applicant’s assessment as being at a low risk of recidivism, he is not eligible for such custodial programs.
On the evidence before it the Tribunal accepts the Applicant is remorseful and sorry for his offending conduct. The Tribunal also accepts the Applicant’s wife and family members now accept he engaged in the offending behaviour. The Tribunal considers there are a number of protective factors in the Applicant’s favour as noted above. The Tribunal also accepts the Applicant is willing to undertake any treatment, counselling and rehabilitation programs available to him now or in the community in the future and his family members will support him to do so.
On the evidence before it, taking into account the information and evidence on the risk of the Applicant reoffending, and the evidence of rehabilitation noted above, the Tribunal finds the likelihood of the Applicant engaging in further criminal or other serious conduct is low.
Conclusion 8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Having considered, cumulatively, the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct as serious harm including serious psychological harm to members of the Australian community, in particular vulnerable children in the Applicant’s care, and the likelihood of the Applicant engaging in further criminal or other serious conduct as low, and having regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the serious of the potential harm increases, and that 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, the Tribunal considers the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct is moderate.
Conclusion: 8.1 The protection of the Australian community from criminal or other serious conduct
Having considered the nature and seriousness of the conduct as very serious, and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct as moderate, the Tribunal has concluded that the protection of the Australian community consideration weighs heavily in favour of affirming the decision under review.
8.2 Family violence committed by the Applicant
Paragraph 8.2(1) states the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
As noted above on 14 November 2022 the Applicant was convicted of two counts of indecent assault upon a child under 16 years of age, and two counts of sexually touching a child between 10 and 16 years of age. The Applicant was the victim’s uncle by marriage. For a period of time, she resided with the Applicant and his family.
On 30 October 2023 the Applicant was convicted of two counts of indecent assault where the victim was under the age of 10 years. The victim was the Applicant’s niece on his wife’s side and the offences all occurred in the Applicant’s family home.
Family violence is defined by the Direction as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family. Assault is given as an example of behaviour that may constitute family violence. Member of the person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person.
On the evidence before it, including the evidence provided by the Applicant and his wife and the sentencing remarks of Her Honour Judge Noman and His Honour Judge Gartelmann, the Tribunal finds the victims of the Applicant’s offending conduct were members of the Applicant’s family, and the conduct engaged in by the Applicant constituted family violence.
In considering the seriousness of the family violence engaged in by the Applicant the Tribunal must take into account a number of factors where relevant, including the frequency of the conduct and whether there is any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation achieved at the time of decision including the extent to which the person accepts responsibility for their family violence related conduct, the extent to which the person understands the impact of their behaviour, and the efforts to address factors which contributed to their conduct.
As noted above, the Tribunal finds the Applicant’s offending conduct in relation to one of his victims occurred on three occasions commencing when the victim was seven and concluding when she was 12 years old. In relation to his other victim his offending conduct occurred on three occasions between 1 January 1997 and 5 December 1998 when the victim was then aged seven to nine years old. The Tribunal accepts the Applicant’s offending against his nieces occurred over a number of years and had a profound impact on them and their family.
The Tribunal accepts the Respondent’s submissions that the Applicant has engaged in opportunistic family violence over this time when around his young nieces.
While the Tribunal also accepts that there is no trend of increasing seriousness, the cumulative effect of the repeated acts of family violence had profound and significant adverse effects on his victims and their family as discussed above.
As noted above, the Tribunal accepts the Applicant accepts responsibility for his family violence related conduct and understands the impact of his behaviours on the abused. The Tribunal also accepts the Applicant apologised to one of the victims, and has undertaken programs while in prison, and is willing to undertake any treatment, counselling and rehabilitation programs available to him now or in the community in the future.
Taking the above factors into consideration, noting the frequency and cumulative effect of the repeated acts of family violence, as well as the rehabilitation achieved by the Applicant at the time of this decision, the Tribunal has concluded the family violence engaged in by the Applicant is very serious and at the higher range of seriousness for such conduct.
On balance, the Tribunal considers the family violence committed by the Applicant weighs heavily in favour of affirming the decision under review.
8.3 The strength, nature and duration of ties to Australia
During the hearing, the Tribunal heard oral evidence from the Applicant, his wife and aunt about the strength, nature and duration of ties to Australia. The Tribunal has also considered the information provided in the Applicant and his wife’s and aunt’s written statements as well as the letters in support provided in support of the Applicant.
On the evidence before it the Tribunal finds the Applicant has been living in Australia since he first arrived in 1982. He married his wife in 1983 and they have four children, who are now all adults. The Applicant has seven grandchildren. He has worked and paid tax in Australia. He and his wife bought their house in 1990. The Applicant initially worked as a casual labourer in Australia, and then between 1993 and 2018 he worked on a dairy farm. He did some casual labouring work after that time. Prior to being incarcerated the Applicant was active in his community and played a leading role in the Tongan Catholic community in his local parish.
The Tribunal accepts the Applicant is in an ongoing long-term marriage with his wife, despite their physical separation while he has been imprisoned. The Tribunal accepts they plan for the Applicant to return to their home if he remains in Australia and is released into the community after his time in prison. The Tribunal accepts the Applicant played a very active role as a grandparent seeing his grandchildren nearly daily prior to incarceration, and he has spoken to them on the telephone while in prison. The Tribunal accepts the Applicant loves his wife, children and grandchildren and wishes to play a positive role in their lives.
The Applicant also has two sisters and three brothers in Australia, as well a large number of aunts, uncles and cousins. The Tribunal accepts the Applicant’s oral evidence that these relatives are all Australian citizens, Australian permanent residents or have an indefinite right to remain in Australia. The Applicant also has friends from work and through the Tongan community and his religious community.
The Tribunal has given weight to the letters in support provided by each of the Applicant’s adult children as well as the letter from his oldest granddaughter. The Tribunal has also given weight to the letters from Fr Viliami Ita Koloamatangi from the Tongan Catholic Chaplaincy of Australia, as well as from Fr Alatini Kolofo’ou, and the Tribunal accepts the Applicant played an active and leading role in his religious community.
The Tribunal accepts affirming the decision under review would further disrupt the Applicant’s relationship with his wife, children and grandchildren. The Tribunal accepts this would cause distress and emotional and financial hardship for the Applicant’s wife. It would also cause emotional distress and hardship for his children and grandchildren and adversely affect their plans for him to play an active and positive role in their lives. The Tribunal also accepts affirming the decision under review would adversely affect the Applicant’s relationship with his friends and members of his community and church community.
The Tribunal has given weight to the time the Applicant has been resident in Australia and positively contributing to the Australia community between when he arrived 1982 until his incarceration in 2022. The Tribunal has also given weight to the time the Applicant spent in the community after he was first arrested in 2019 prior to his imprisonment in 2022, noting the Applicant did not reoffend.
The Tribunal considers the Applicant has strong ties to Australia through his history in Australia, his work, friends and church community, as well as his ongoing relationship with his wife, children and grandchildren, even though some of these relationships have been limited since he has been in prison. Overall, the Tribunal considers the strength, nature and duration of the Applicant’s ties to Australia provides significant weight in favour of revoking the original decision.
8.4 Best interest of minor children in Australia affected by the decision
Based on the Applicant’s oral evidence during the hearing and the oral evidence of his wife and aunt, which was generally consistent with the information they had previously provided in their written statements, the Tribunal accepts the Applicant has seven grandchildren who are minor children in Australia affected by the decision.
During the hearing the Tribunal discussed with the Applicant his relationship with his grandchildren. The Applicant confirmed his seven grandchildren were all aged under 18 years old and are all minor children in Australia affected by the decision.
On the evidence before it the Tribunal finds the Applicant’s oldest grandchild was born in 2017. The Applicant has a close and unique relationship with his first-born grandchild. Prior to imprisonment he would see her almost every day as he worked close to her home. Since being in prison he speaks to her on the phone.
The Tribunal has given weight to the one letter in support written by any of the applicant’s grandchildren, his eldest grandchild. The Tribunal has considered this letter and accepts that while this is a non-parental relationship, it is a very important relationship to this grandchild and she misses her “Pa” very much, and does not want him to be sent to Tonga. The Tribunal has given weight to her views in accordance with her age and maturity.
The Tribunal accepts the impact of the Applicant’s prior conduct has meant he has been removed from her day-to-day life, and the Tribunal accepts this has affected this grandchild, and while they still have contact on the telephone, she misses him.
As noted above the Applicant is this child’s grandfather, and she has others to fulfill a parental role in her life. The evidence before the Tribunal indicates this grandchild has not been subjected to or exposed to family violence perpetrated by the Applicant nor has she otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally.
The Tribunal has considered the evidence that this grandchild is at risk of being subjected to or exposed to family violence perpetrated by the Applicant. The evidence before the Tribunal indicates the Applicant has accepted responsibility for his previous conduct and is committed to not reoffending, and the Tribunal accepts the risk of the Applicant reoffending is low. The Tribunal accepts this risk provides some countervailing weight that the best interests of this minor child favours affirming the decision under review.
Nevertheless, as noted above the Tribunal accepts this grandchild misses her grandfather since he has been incarcerated. There is no other evidence before the Tribunal that this grandchild has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
The Tribunal finds this is the longest and most established relationship the Applicant has with all his grandchildren.
Having considered all the factors set out in 8.4 of the Direction, the Tribunal considers the factors providing weight in favour of finding revoking the decision under review is in the best interest of this minor child outweighs the factors against, and the Tribunal finds the best interests of this minor child in Australia affected by this decision provides weight in favour of revoking the decision under review.
The Applicant’s second oldest grandchild was born in 2018. The Tribunal accepts the Applicant saw her every day prior to being incarcerated, and that she has some developmental delays, and the Applicant has always felt very close to her and has a close and ongoing relationship with her. They continue to have contact on the phone every day.
The Tribunal accepts the Applicant’s oral evidence that this grandchild expresses to him that she misses him during their conversations, and that the impact of his prior conduct means they are unable to see each other since he has been in prison. They continue to have contact on the phone every day. This grandchild has others to fulfill a parental role in her life. The evidence before the Tribunal indicates this grandchild has not been subjected to or exposed to family violence perpetrated by the Applicant nor has she otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally.
The Tribunal has considered the evidence that this grandchild is at risk of being subjected to or exposed to family violence perpetrated by the Applicant. The evidence before the Tribunal indicates the Applicant has accepted responsibility for his previous conduct and is committed to not reoffending, and the risk of him reoffending is low. The Tribunal accepts this risk provides some countervailing weight that the best interests of this minor child favours affirming the decision under review.
As noted above the Tribunal accepts this grandchild misses her grandfather since he has been incarcerated. There is no other evidence before the Tribunal that this grandchild has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
Having considered all the factors set out in 8.4 of the Direction, the Tribunal considers the factors providing weight in favour of finding revoking the decision under review is in the best interest of this minor child outweighs the factors against, and the Tribunal finds the best interests of this minor child in Australia affected by this decision provides weight in favour of revoking the decision under review.
The Applicant’s third grandchild was born in 2019. The Applicant told the Tribunal he was at the hospital the day he was born, and they have a special relationship as he is the Applicant’s first grandson. While the Applicant was picked up by police the following day he was then released on bail and saw this grandchild almost every day until he was imprisoned in August 2022. Since being in prison, they speak on the telephone and talk about football and the Applicant is looking forward to seeing him play.
The Tribunal accepts this grandchild misses his grandfather, and the impact of the Applicant’s prior conduct means they are unable to see each other since he has been in prison. They continue to have contact via telephone. Others fulfill a parental role in his life. The evidence before the Tribunal indicates this grandchild has not been subjected to or exposed to family violence perpetrated by the Applicant nor has he otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally. The evidence before the Tribunal also indicates the Applicant has accepted responsibility for his previous conduct and is committed to not reoffending and the risk of reoffending is low. The Tribunal accepts this risk provides some countervailing weight that the best interests of this minor child favours affirming the decision under review. There is no other evidence before the Tribunal this grandchild has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
Having considered all the factors set out in 8.4 of the Direction, the Tribunal finds the best interests of this minor child in Australia affected by this decision provides further weight in favour of revoking the decision under review.
The Applicant’s fourth grandchild was born in 2020. He was named after his grandfather, and this is a rare and unique name in their family. The Applicant’s oral evidence about his relationship with this grandchild was consistent with the information provided by the child’s father in his letter of support.[7] That letter confirmed the Applicant cared for this grandchild twice a week prior to his incarceration, and since then they show him a photo of the Applicant. Given his absence he does not recognise the Applicant despite always calling him “Papa”.
[7] HB, p 120
The Tribunal accepts this child misses his grandfather, and the impact of the Applicant’s prior conduct means they are unable to see each other since he has been in prison. They continue to have contact via telephone. Others fulfill a parental role in his life. The evidence before the Tribunal indicates this child has not been subjected to or exposed to family violence perpetrated by the Applicant nor has he otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally. The evidence before the Tribunal indicates the Applicant has accepted responsibility for his previous conduct and is committed to not reoffending and the risk of him reoffending is low. The Tribunal accepts this low risk provides some countervailing weight that the best interests of this minor child favours affirming the decision under review. There is no other evidence before the Tribunal that this grandchild has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.

On the evidence before it, the Tribunal finds the best interests of this minor child in Australia affected by this decision provides some weight in favour of revoking the decision under review.
The Applicant’s fifth grandchild was born in 2021 and they saw each other regularly before the Applicant was incarcerated. They speak on the telephone every day and she says “Hi Pa” whenever she can.
The Tribunal accepts this grandchild misses her grandfather, and the impact of the Applicant’s prior conduct means they are unable to see each other since he has been in prison. They continue to have contact via telephone. Others fulfill a parental role in her life. The evidence before the Tribunal indicates this grandchild has not been subjected to or exposed to family violence perpetrated by the Applicant nor has she otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally. The evidence before the Tribunal indicates the Applicant has accepted responsibility for his previous conduct and is committed to not reoffending. The risk assessment for the Applicant reoffending discussed above is low, and the Tribunal accepts this low risk provides some countervailing weight that the best interests of this minor child favours affirming the decision under review. There is no other evidence before the Tribunal this grandchild has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
Having considered all the factors noted above, the Tribunal finds the best interests of this minor child in Australia affected by this decision provides some weight in favour of revoking the decision under review.
The Applicant’s sixth grandchild and seventh grandchild were born after the Applicant was incarcerated. The Applicant has not met them in person. This has limited the nature and duration of their relationships with him, and the Tribunal gives less weight to these relationships accordingly. They try to say “Hi Pa” on the phone with the other grandchildren. Others fulfill parental roles in their lives. The evidence before the Tribunal indicates these children have not been subjected to or exposed to family violence perpetrated by the Applicant nor have they otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally. The Tribunal has considered the evidence that these children are at risk of being subjected to or exposed to family violence perpetrated by the Applicant. The evidence before the Tribunal indicates the Applicant has accepted responsibility for his previous conduct and is committed to not reoffending. The Tribunal also notes the risk assessment for reoffending discussed above is low. The Tribunal accepts this low risk provides some countervailing weight that the best interests of these minor children favours affirming the decision under review. There is no other evidence before the Tribunal that these grandchildren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
On the evidence before it the Tribunal finds the best interests of these minor children in Australia affected by this decision provides some limited weight in favour of revoking the decision under review.
While the Tribunal has considered the Respondent’s submissions that the best interests of the minor children must include a consideration of the Applicant’s prior sexual offending conduct against children in his family and in his care as a countervailing weight that the best interests of the children may be met by their protection from the Applicant, as noted above the Applicant has accepted responsibility for his actions and committed to not reoffending, and the risk of him reoffending is low.
Overall, having considered all the factors in 8.4 of the Direction for each child, the Tribunal considers the best interests of minor children in Australia affected by the decision provides medium weight in favour of the revoking the decision under review.
8.5 Expectations of the Australian Community
The Australian community expects non-citizens to obey Australian laws while in Australia. 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.
Clause 8.5(2) of the Direction sets out examples of conduct that would raise serious character concerns that the Australian community would expect that a person who undertook such conduct would not continue to hold a visa and includes acts of family violence and the commission of serious crimes against children, including crimes of a sexual nature.
On the evidence before it, the Tribunal finds the Applicant has failed to obey laws while in Australia, and committed two counts of indecent assault upon a child under 16 years of age, two counts of sexually touching a child between 10 and 16 years of age, and two counts of indecent assault where the victim was under the age of 10 years. The Applicant was sentenced to an aggregate term of four years and six months imprisonment, in acts of family violence and the commission of a serious crime against two children. The Tribunal finds the Applicant has engaged in serious conduct in breach of the Australian community’s expectations.
The Tribunal considers the expectations of the Australian community weighs significantly in favour of affirming the decision under review.
9 Other Considerations
In making a decision under section 501CA(4), the Tribunal must also take into account the following considerations.
9.1 Legal Consequences of the decision
The Tribunal accepts that if it affirms the decision under review the Applicant will remain an unlawful non-citizen and will be placed in immigration detention and be liable for removal from Australia as soon as reasonably practicable after he is released from prison. This will mean his wish to remain in Australia with his wife and children and grandchildren will not occur.
The Applicant is not a person who is covered by a protection finding and he has not raised any specific claims that would attract or relate to Australia’s non-refoulement obligations. Nor is the Applicant in special circumstances that would result in indefinite detention.
The Tribunal accepts that the legal consequence of affirming the decision means the Applicant’s ability to apply for another visa would be curtailed under s 501E of the Act, and may be subjected to indefinite exclusion from Australia by operation of the Special Return Criteria in clause 5001(c) of Schedule 5 of the Migration Regulations 1994 (Cth) if the Minister has not, acting personally, granted the Applicant a permanent visa. Affirming the decision will also adversely affect the Applicant’s ability to meet the requirements of the Public Interest Criterion 4001 of Schedule 4 of the Migration Regulations 1994 in any future visa applications. The Tribunal considers this does provide some weight in favour of revoking the original decision.
On the evidence before it, the Tribunal considers the legal consequences of the decision provides some weight in favour of revoking the original decision.
9.2 Extent of impediments if removed
The Tribunal must also consider the extent of any impediments the Applicant may face if removed from Australia to his home country, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account his age, health and whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to him in that country.
The Tribunal has considered the Applicant’s concerns raised in his personal circumstances document and discussed with him during the hearing.
Based on the Applicant’s oral and written evidence the Tribunal finds the Applicant had heart angioplasty in 2016 and suffers from high blood pressure which is treated with daily medication. While the Applicant has an aunt and a friend in Tonga, the Tribunal accepts his aunt is elderly and not in a position to offer support and his friend is also not in a position to offer him support. The Tribunal also accepts the Applicant’s wife’s oral evidence that her family members in Tonga will not offer support to the Applicant as they are aware of his offending conduct.
The Tribunal finds the Applicant is 61 years old and suffers from high blood pressure for which he takes daily medication. The country information discussed during the hearing indicates treatment for hypertension is available in Tonga.[8]
[8] HB, pp281-288
While the Tribunal does accept the Applicant’s age or health provide some impediments, the Tribunal considers they are not insurmountable in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
Given the Applicant grew up in Tonga, the Tribunal finds language is not a substantial barrier.
While the Tribunal accepts the Applicant is familiar with Tonga culturally, the Tribunal also accepts the Applicant’s oral evidence and that of his wife and aunt that the Applicant is the head of his family, and it will be difficult for him to be removed from Australia, away from his wife, children, grandchildren, friends and community including his church community.
The Tribunal has also considered the Applicant’s concerns that he will not have any family that can support him in Tonga, and he will suffer financial hardship due to unemployment. The Tribunal has also considered the country information discussed during the hearing that noted the unemployment rate in Tonga in 2024 was 2.2%.[9] The Tribunal also notes the Applicant has extensive work experience in casual labouring and on a dairy farm, and has recently completed programs in relation to running his own business and work health and safety and sustainable work practices.[10] The Tribunal does not accept the Applicant will be unable to find employment on his return to Tonga.
[9] HB, p 456
[10] HB, pp 210-213, 435, 437
On the evidence before it, the Tribunal accepts the Applicant will face degrees of financial, social and emotional hardship if removed from Australia to Tonga. While the Tribunal accepts these factors are hardships and impediments, the Tribunal also considers some of them somewhat temporary in nature and not insurmountable.
Having considered all the factors noted above, the Tribunal considers the extent of impediments if removed provides some weight in favour of revoking the original decision.
9.3 Impact on Australian business interests
The Tribunal must consider any impact on Australian business interests if the Applicant 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 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
While the Tribunal notes the Applicant’s previous work in Australia, and that the Applicant will try to find work if he remains in Australia and is released into the community, the evidence before the Tribunal does not indicate the Applicant’s future employment would fall into the category contemplated by this clause, and the Tribunal has concluded this consideration neither weighs for nor against revoking the decision under review.
CONCLUSION
As noted above, the Applicant does not pass the character test under section 501 of the Act, and the Tribunal has to decide whether there is another reason why the original decision should be revoked under section 501CA(4), having regard to the Minister’s Direction No. 110.
The Tribunal has given appropriate weight to information from independent and authoritative sources, and the primary consideration at clause 8.1 has been given greater weight than the other primary considerations, while the other primary considerations have been given greater weight than the other considerations, in line with the Direction.
The Tribunal has taken the principles set out in 5.2 of the Direction into consideration including the principle that 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 lives, or from a very young age, and the Tribunal has given weight to this principle noting the Applicant has been in Australia for most of his life, since the age of 18 in 1982.
Having considered the specific circumstances relating to the Applicant, the Tribunal considers the protection of the Australian community from criminal or other serious conduct weighs heavily in favour of affirming the decision under review. The family violence committed by the Applicant weighs heavily in favour of affirming the decision under review. The strength, nature and duration of the Applicant’s ties to Australia provides significant weight in favour of revoking the original decision, and the best interests of minor children in Australia affected by the decision provides medium weight in favour of revoking the original decision. The expectations of the Australian community provide significant weight in favour of affirming the decision under review. Of the other considerations, the legal consequences of the decision and the extent of the impediments to the Applicant if removed provides some weight in favour of revoking the original decision. The impact on Australian business interests neither weighs for nor against revoking the decision under review.
While the Tribunal considers there are considerations that weigh in favour of the Applicant including the strength, nature and duration of his ties to Australia, and the best interests of minor children in Australia, and the legal consequences and extent of impediments if removed, given the primary consideration at clause 8.1 must be given greater weight than the other primary considerations, and the other primary considerations given greater weight than the other considerations, and the principle set out in 5.2 of the Direction that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not revoking a mandatory cancellation, the Tribunal has concluded the primary considerations of the protection of the Australia community, conduct engaged in constituting family violence, and the expectations of the Australian community weigh heavily in favour of affirming the decision under review, and on balance, outweigh the considerations in favour of revoking the original decision.
Having weighed up all the factors as part of a single evaluation, the Tribunal is not satisfied there is another reason why the original decision should be revoked under section 501CA(4), having regard to the Direction.
DECISION
The decision not to revoke the cancellation of the Class BF transitional (permanent) visa, is affirmed.

...................[SGD].....................
Senior Member C. Thwaites
Date: 2 October 2025
Date of hearing:   15, 22 & 23 September 2025
Counsel for the Applicant:                Self-represented
Solicitor for the Respondent:            Mr Sharma, HWL Ebsworth Lawyers