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

(b) if the Applicant does not pass the character test, whether the Tribunal should exercise its discretion to cancel the Applicant's visa under s 501(2) of the Migration Act, having regard to the primary and other considerations in Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction no. 110).

1. The hearing was conducted at the Tribunal's Perth Registry on 7 January 2026. The Applicant appeared in person and was represented by Ms Alice Graziotti of Estrin Saul Lawyers. The Respondent was represented by Mr Tom Lettenmaier of counsel, and instructed by Ms Alexandra O'Grady of MinterEllison who appeared by video.
2. The Applicant gave evidence and was cross-examined at the hearing. The Tribunal also took evidence from Ms Lee, the Applicant's wife.
3. The Tribunal admitted the following documents into evidence:

(c) Hearing Book, comprising s 501 G-Documents, documents filed on behalf of the Applicant and documents filed on behalf of the Respondent (pages HB1 - HB975) (Exhibit 1); > > (d) Miss A's message to the Applicant (MP4 Video), filed 19 December 2025 (Exhibit 2); > > (e) Miss A's message to the Tribunal (MP4 Video), filed 19 December 2025 (Exhibit 3); > > (f) Master A's message to the Applicant (MP4 Video), filed 12 December 2025 (Exhibit 4); > > (g) Master A's message to the Tribunal (MP4 Video), filed 19 December 2025 (Exhibit 5); and > > (h) Applicant's further bundle of evidence, filed 25 December 2025 (Exhibit 6).

4. The Hearing Book included the following submissions:

(a) The Applicant's Statement of Facts, Issues and Contentions, dated 12 December 2025 (ASFIC); and > > (b) The Respondent's Statement of Facts, Issues and Contentions, dated 22 December 2025 (RSFIC).

1. The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. Section 501(2) of the Migration Act provides:

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

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

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

1. These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether the decision maker should exercise their discretion to cancel a person's visa.
2. The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(e) of the Migration Act relevantly provides that a person does not pass the character test if:

(e) A court in Australia or a foreign country has:

(i) Convicted the person of one or more sexually based offences involving a child; ...

1. If the Applicant does not meet the character test, the remaining issue is whether the discretion to cancel his visa should be exercised.
2. On 7 June 2024, the Minister issued Direction no. 110[17] under s 499 of the Act. The purpose of the Direction is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[18]
3. Direction no. 110 includes guidance for decision-makers on applying the character test.[19] The Direction also sets out primary and other considerations to be taken into account where the Tribunal is considering the exercise of the power under s 501(2) to cancel a visa.[20] The principles and guidance set out the Direction no.110 are discussed further below.

1. The first issue in this review is whether the Applicant passes the character test set out in s 501 of the Act.
2. The Applicant must satisfy the Tribunal that they pass the character test set out in s 501(6). Direction no. 110 notes that in practice this requires the Tribunal to determine, on the information before it, that the Applicant does not pass the character test.[21]
3. The Applicant's offending history is set out in the 'Nationally Coordinated Criminal History Check Results Report', dated 3 September 2024, and detailing offences for which the Applicant was convicted on 20 December 2017 and resentenced on appeal on 29 August 2018.[22] The Applicant did not dispute the contents of the report, and the Tribunal accepts it as accurate.
4. On 20 December 2017, the Applicant was convicted of a number of offences including:
   • indecent act with child under 16 (seven counts);
   • attempted indecent act with child under 16 (two counts); and
   • attempted procure for sexual penetration of a child under 16 (one count).
5. Section 501(6)(e) of the Migration Act provides that a person does not pass the character test if they have been convicted in Australia or a foreign country of one or more sexually based offences involving a child.
6. Direction no 110 indicates that sexually based offences involving a child include, but are not limited to, offences such as child sexual abuse and indecent dealings with a child.[23]
7. The Applicant accepted the offences for which he was convicted were properly characterised as sexually based offences involving a child and agreed he did not pass the character test.[24]
8. The Tribunal is satisfied the offences the Applicant was convicted of on 20 December 2017 are sexually based offences involving a child and finds the Applicant has been convicted of offences meeting the criteria in s 501(6)(e).
9. As the Applicant has been convicted of sexually based offences involving a child, he does not pass the character test.[25]
10. Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

1. As the Applicant does not pass the character test, I must then determine whether the discretion to cancel the Applicant's visa under s 501(2) should be exercised, having regard to the representations of the Applicant and the primary and other considerations contained within Direction no. 110.

1. Where the discretion to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise the discretion.[26] In considering the exercise of the power under s 501(2), informed by the principles set out in para 5.2 of Direction no. 110, I must take account of the primary and other considerations set out in Direction no. 110 where relevant to the decision.[27]
2. In making a decision under s 501(2), the primary considerations to be taken into account by the Tribunal are:[28]
   • the protection of the Australian community from criminal or other serious conduct;
   • family violence engaged by the Applicant (if any);
   • the strength, nature and duration of the Applicant's ties to Australia;
   • the best interests of minor children in Australia affected by the decision; and
   • the expectations of the Australian community.
3. The other considerations that the Tribunal must take into account, insofar as they are relevant to the application, include (but are not limited to):[29]
   • the legal consequences of the decision;
   • the extent of impediments if removed; and
   • the impact on Australian business interests.
4. I must also take into account any other considerations or representations made by the Applicant in support of his request that his visa not be cancelled.
5. The principles set out in paragraph 5.2 of Direction no. 110 provide the framework within which decision-makers should approach their task of deciding whether to cancel visa under s 501. Those principles highlight that the safety of the Australian community is the government's highest priority and that Australia has a right to determine whether non-citizens who are of character concern are allowed to remain in Australia. They stress that entering or remaining in Australia is a privilege conferred on individuals on the basis they will be law-abiding, will respect Australia's law enforcement framework, and will not harm members of the community.[30]
6. The Direction provides that while the community has a low tolerance of any criminal or other serious conduct by individuals holding a limited stay visa, or who have only been contributing to the community for a short period of time, Australia may afford a higher level of tolerance of such conduct where the individual has lived in the community for most of their life, or from a very young age.
7. Further guidance as to how a decision-maker is to apply the considerations in

Direction no. 110 can be found in paragraph 7, which provides that:

(a) Information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations. > > (b) The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations and primary considerations should generally be given greater weight than the other considerations. > > (c) One or more primary considerations may outweigh other primary considerations.

1. In seeking a review of the decision to cancel his visa the Applicant contended that the delegate failed to fully consider his circumstances including the length of time since the offences were committed, the rehabilitation he had completed, and the impact on his wife and (in particular) his children.[31]
2. With respect to the matters arising for consideration under Direction no. 110 the Applicant contended that there are several key reasons why the discretion to cancel his visa should not be exercised, in summary:[32]

(a) He accepts the nature of the offences for which he was convicted was serious, despite maintaining his stance they did not occur. He has no other charges or convictions. Given his compliance with the terms of his sentence and reporting obligations and the time which has passed since the offences, less weight should be given to this consideration; > > (b) He has been objectively assessed to be a low risk of reoffending and has no other criminal history, including in the years he has spent in the community since the offences. He does not pose an unacceptable risk to the community, reflected in the fact the Minister waited more than four years to cancel the Applicant's visa during which time he was living in the community. His time spent in the community should also be considered to demonstrate his rehabilitation and his extremely low likelihood of reoffending; > > (c) He has made a positive contribution to the community including through employment. His family is settled in the community and his wife and children will be significantly impacted by his inability to remain in or return to Australia. Ms Lee has medical issues for which she requires treatment and support from the Applicant and the children have spent most of their lives here and are well settled here; > > (d) The best interests of his minor children in Australia are that the visa not be cancelled, noting cancellation would either separate them from their father or force them to move to Malaysia at a crucial point in their schooling, noting in particular that they do not speak Malay and are excelling in school in Australia. Their mother is ill and may not be in a position to care for them in the Applicant's absence; > > (e) The legal consequences of the decision include that cancellation and removal would result in a permanent ban on returning to Australia which weighs in favour of not cancelling the visa; > > (f) The Applicant has had stable, senior employment in Australia and his employer has been unable to find a suitable replacement for him. Their business interests weigh in favour of not cancelling the visa; > > (g) He would suffer psychological distress and financial and practical disadvantage if returned to Malaysia. He has a history of depression and anxiety and would be separated from his children. He would be unable to receive substantial support from family in Malaysia who are unaware of his convictions and who rely on his financial support from Australia. These are impediments to the Applicant reestablishing himself in Malaysia which weigh in favour of not cancelling the visa.

1. The Minister submitted, in summary, that: [33]

(a) the Applicant has committed serious sexual offences against two teenage girls, in relation to whom he held a position of power; > > (b) Notwithstanding his relatively low sentence, the nature and seriousness of the Applicant's offending is very serious (applying the Direction); > > (c) The nature of the harm that would be caused were the Applicant to reoffend is very serious, noting the impacts of sexual harassment in the workplace; > > (d) While the length of time the Applicant has spent in the community without reoffending indicates a low risk of reoffending, there was contradictory evidence of remorse and overall his risk was low-medium. Given the very serious nature of the offending, even a low risk is unacceptable; > > (e) Noting the nature of the offences and unacceptable risk, the protection of the Australian community weighs in favour of cancelling the visa and should be given greater weight than other considerations; > > (f) While the Applicant has ties to Australia his offences were committed shortly after arriving and less weight should be given to the time he has spent in Australia subsequent to the offences as a result; > > (g) There is a well-established healthcare system available to the Applicant in Malaysia and accordingly, less weight should be placed on the need for medical treatment for the applicant or his family members as a tie to Australia; > > (h) Given the nature of the offences, the Australian community would expect that his visa is cancelled regardless of whether there is a measurable risk of reoffending and this weighs in favour of cancelling the visa; > > (i) Permanent exclusion from Australia was a legal consequence of cancellation which weighed in favour of not cancelling the visa, but did not outweigh other considerations; > > (j) There is no evidence to suggest the Applicant would face financial distress in Malaysia, noting his strong employment history, growth of the Malaysian economy and low unemployment in that country, as well as his current financial means and the consideration of impediments should not be given significant weight in favour of not cancelling the visa; and > > (k) There was no evidence to support a claim that Australian business interests would be impacted by the cancellation of his visa and little or no weight should be afforded this consideration in the applicant's favour.

1. Direction 110 at 8.1(1) requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[34]

1. I must consider the nature and seriousness of the Applicant's criminal offending and other conduct to date.[35] In doing so, para 8.1.1(1) of Direction no. 110 provides that I must have regard to specific types of crimes or conduct which are 'viewed very seriously' by the Australian Government and the Australian community. Direction no. 110 also provides that certain other offences or conduct are considered to be 'serious'. I note that while Direction no. 110 expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[36]
2. In considering the nature and seriousness of the Applicant's criminal offending or other conduct to date, I must also have regard to the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the Applicant's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). In addition, Direction no. 110 introduced a requirement under this consideration that I consider the impact of the offending on any victims and their family, where information regarding this is available, and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness as part of its consideration of the nature and seriousness of the Applicant's offending and other serious conduct.[37]
3. The Applicant acknowledges the nature and seriousness of the offences weigh in favour of the cancellation, however he submitted it was the only factor that weighs in favour of cancellation and is insufficient to outweigh other factors in favour of not cancelling the visa.[38] The Applicant contended:[39]

(a) He has not engaged in any offending behaviour since the offences were committed, between October and November 2014; > > (b) He accepts that the nature of his convictions is serious, despite maintaining that they did not occur; > > (c) He served 2 months in prison, was granted and fully complied with bail conditions and his community corrections order, and continues to report to SOMS as required with no evidence he has breached any orders in the years these requirements have been in place; > > (d) There is no trend of increasing seriousness, frequency of offending or cumulative effect of repeated offending to consider. There is no evidence the Applicant has perpetrated family violence, caused a person to enter a forced marriage, committed any offences against government representatives/officials, provided false or misleading information to the Department, received a formal warning, nor had a criminal history in any other country.

4. The Minister submitted the Applicant's offending should be regarded as very serious, noting:

(a) Notwithstanding the Applicant received a relatively low sentence, the offences were of a sexual nature against children and, applying the Direction, are very serious; > > (b) The Applicant appears to deny committing the offences which is at odds with statements of regret in his representations. This suggests misleading information has been provided to the Department and indicated the Applicant does not respect Australian institutions and has engaged in further unlawful conduct which is serious; > > (c) This consideration weighs heavily in favour of cancelling the visa.

5. I am required, pursuant to Direction no. 110, to take into account a range of factors, including certain conduct which is to be regarded as 'very serious' or 'serious'.[40] Offences to be considered very seriously include crimes of a sexual nature against children regardless of the sentence imposed. The Applicant's offences are properly characterised as such and applying the direction are to be viewed very seriously.
6. There was limited information before the Tribunal regarding the details of the offences. While there was a 'preliminary brief - statement made by the informant' in evidence, [41] this did not make it clear which parts of the facts related to which offences. Noting that the Applicant was not convicted of all the offences with which he was initially charged, it is difficult to determine the precise facts on the basis of which the Applicant was convicted. Further, the Applicant contested elements of that brief.
7. The brief indicates that two teenage employees worked for the Applicant for about a month before resigning and later complaining to police. The complainants alleged instances of conduct by the Applicant including:
   • Making sexualised comments to the complaints including saying he would 'tap that';
   • Telling one complainant he was in love with her and would fire her for it;
   • Asking one complainant to lift her top and show him her boobs;
   • Purchasing an iPhone for one complainant so he 'could keep in touch with her' and then sending her multiple non-work related texts saying he was lonely, needed her and asking her on a date. When she refused he called her a 'bitch';
   • Kissing one complainant on the cheek, hugging her repeatedly, coming up behind her while she was working and placing his hands on her hips and rubbing his genitals against her bottom;
   • Suggesting to one complainant that they should have sex and when she refused stating 'Oh then I'll rape you'.
8. The Applicant denied engaging in this conduct. In particular he stated the work phone had been purchased for the business and then stolen, and the complainant had sent the messages to herself. The Tribunal found this explanation confusing and unconvincing. The Applicant also claimed that he had been asking the complainant to lift her top because she was wearing inappropriate clothing and that occasionally he brushed against staff because the pizza shop space was tight.
9. He stated that when he purchased the business he was misled by the vendor and did not know anything about the area. He soon learnt the area was not safe and sold the business shortly after he purchased it, in December 2014. This followed issues employing staff and maintaining the business. The Applicant described this time as follows:[42]

While I owned the business I hired several employees, two of whom were the complainants ([J] and [R]). I believed them to be 16 years old when I offered them a job, and came to understand that they were actually 14 years old a few weeks after they began working in the shop. I had a mobile phone purchased for the purposes of the business and this phone was stolen so I reported that to police, along with some amount of cash that had gone missing from the register. I also had noticed a used condom on the floor of my shop one morning. I dismissed the two employees I believed were responsible. > > After dismissing the employees and reporting the stolen goods to police I went on with my life, selling the shop and not having any contact with any of the former employees.

10. He submitted that in March 2016 he was advised by police that J and R had made allegations against him from the time he owned the pizza shop. In the same month, he and Ms Lee bought a home which they lived in until selling it in late 2022. The property was purchased in the Applicant's name and he paid all expenses as Ms Lee was not working at that time.
11. The Applicant gave evidence that was consistent with him not accepting he had engaged in the conduct which gave rise to the convictions. He testified he did not understand employment obligations; was lied to about the age of the victims working for him (which he considered was a responsibility of their parents) and that his actions were misrepresented. It was implied the victims were engaging in in appropriate behaviour at the business.
12. The Applicant's denial of the offences raised the issue of the extent to which it was open to the Tribunal to 'go behind' the convictions or accept the Applicant's alternate account of the events surrounding them. These matters were discussed with the parties at the hearing.
13. The Tribunal is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence are necessarily based.[43]
14. The overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power under s 501 of the Migration Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind the conviction.[44]
15. As summarised above, the Applicant was convicted of a number of offences against two minor children. There was dispute the victims were 14 years old or that the Applicant had been convicted of offences against them which constituted sexually based offences.
16. The convictions are basis on which the Applicant fails the character test and on which the power to cancel under s 501(2) is enlivened. In those circumstances, it is not open to the Tribunal to go behind the essential facts of that conviction and sentence.
17. While there was limited evidence of the exact facts found in convicting the Applicant of those offences, his representative accepted that the Tribunal could not find he had not engaged in conduct which underpinned the convictions. That would include conduct that the Applicant was found to have committed multiple 'indecent act with child under 16', several 'attempted indecent act' and 'one attempted procurement of a child for sexual penetration'. In the Applicant's case his denial of any conduct amounting to an offence was sufficient in the Tribunal's view to amount to a denial of all facts found. That was not a position the Tribunal considered was open to it to accept and his representative accepted this was the case.
18. Noting this and the fact the Applicant did not offer evidence in support of his contested versions of events which might discharge the heavy onus which he bears to convince the Tribunal to adopt an alternate version or characterisation of the facts of offences for which he was found guilty, the Tribunal is unable to accept the Applicant's alternate version of events as credible, even if it were open to the Tribunal to do so. This is because the evidence falls well short of discharging the 'heavy onus' which falls on an Applicant seeking to challenge the facts upon which a conviction is necessarily based, noting the only evidence offered was his own account.
19. To the extent the Applicant sought to explain or minimise his offending, the Tribunal does not accept this reduces the very serious nature of that offending.
20. The Minister submitted the Applicant's denials suggested a lack of insight and remorse and the Tribunal considered it did. Whether that lack of insight presents or contributes to a risk of further offending is considered further below.
21. With respect to the seriousness of the offending, I accept that the Applicant acknowledged the convictions were serious even if he did not accept his behaviour should have constituted an offence or that he did not engage in some of the acts alleged. This is reflected in his consistent compliance with reporting obligations and his successful completion of community service.
22. To the extent that Minister contended that the Applicant's expressions of remorse are inconsistent with his denials of conduct giving rise to the convictions, I did not consider that to be conduct evidencing the provision of false or misleading information to the Department such as might contribute to an overall assessment of the Applicant's conduct and offending which the Direction is clear is to be viewed as very serious.[45] The Tribunal accepts this is so, notwithstanding his relatively low sentence of imprisonment for two months and a period of community orders.[46]
23. There was no evidence of frequency or increasing seriousness in the Applicant's offending. While the Applicant was convicted of multiple instances of similar offences there is no evidence of any cumulative effect of his offences which occurred over a relatively confined period. There is also no information regarding the impact of the offending on the victims or their families. There was no evidence of any offences committed overseas and no evidence the Applicant had re-offended since having been formally warned of the consequences of further offending, which in his case was when the first NOICC was sent to him.[47]
24. Overall, I find the Applicant has engaged in offences which, applying Direction no. 110, are very serious.

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

1. I am required to assess the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm which would be caused should the Applicant engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in such conduct.[48] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[49]
2. The Applicant contended with respect to the risk of reoffending:

(a) There is no indication that the Applicant poses a risk of reoffending in a similar manner in the future, noting he has not engaged in any similar conduct in the more than 11 years he has spent in the community. Further, there is no evidence he poses any risk of further offending noting his compliance with reporting obligations over an extended period and the lack of any other offences on his record; > > (b) The Applicant's life circumstances are very different to those which existed at the time the offences were committed, and he has been thoroughly tested in the community, including a long period where he was unaware he would be charged with the offences but did not reoffend; > > (c) While the potential harm which may be caused were he to reoffend is serious, when considered cumulatively with the likelihood of the Applicant engaging in further criminal or serious conduct, the risk the Applicant poses to the Australian community is negligible; > > (d) The fact that the Minister issued a NOICC in November 2021 but did not make a decision for over 4 years indicates the Minister does not reasonably consider that the Applicant poses an 'unacceptable risk' to the Australian community having allowed the Applicant to remain in the community on a visa for this extended period following his convictions.

3. The Minister contended the following with respect to the risk of reoffending:

(a) The nature of the harm which would be caused were the Applicant to reoffend was very serious and included financial, psychological and physical harm to children and their families and the costs associated with the detection and prosecution of such crimes; > > (b) Such offending also has broader impacts on the community noting the impacts of sexual harassment in the workplace identified by the Sex Discrimination Commissioner in 2020 in the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces Report.[50] This included the sorts of behaviours which led to the Applicant's convictions; > > (c) Providing further misleading statements to the Department undermines government decision making and impedes public officers carrying out their duties; > > (d) The fact the Applicant has not reoffended since 2014 and has been in the community for a lengthy period indicated a low risk of reoffending, however the evidence of his treating psychologist should be approached with caution given evidence that the psychologist considered the Applicant to be innocent and was provided with inconsistent accounts of how the offences arose. > > (e) Overall, the Applicant's is a likely to low-medium risk of reoffending, but given the very serious nature of the offences that risk is still unacceptable. Sexual offences against children in a position of power are simply so serious that any risk is unacceptable and this consideration weighs very heavily in favour of cancellation

1. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[51]
2. The Applicant conceded that should the Applicant reoffend in a similar manner to the offences, it could result in psychological damage to a member of the Australian community, including a minor victim.[52]
3. The Minister contended that the nature of the harm to the community should the Applicant re-offend is 'psychological and physical harm to victims, their families and bystanders'.[53] It was contended there are broader effects on the community of sexual harassment at work including the financial, social and other costs detailed in the Respect@Work Report.[54]
4. I agree the harm caused by sexual harassment in the workplace should not be underestimated or trivialised. The impact of such conduct against children undoubtedly has the potential to cause additional, and serious harm to victims and their families. The Respect@Work Report details the harm such conduct can cause to individuals and the broader society. Such harm is very serious.
5. As noted above, I consider there is insufficient evidence to establish the Applicant's accounts of his behaviour or his remorse amount to serious conduct misleading the Department. While it is fair to describe the position adopted by the Applicant in denying the conduct or explaining it away as a cultural misunderstanding or lack of knowledge of the legal system as inconsistent with genuine remorse and insight, in my view, it is not the sort of information which is established to be knowingly false or misleading. In any event, I do not accept the evidence of such conduct in this instance establishes that, were the Applicant to again provide inconsistent accounts of his circumstances of behaviour to the Department, such conduct would cause serious harm in the manner contemplated by the Direction.
6. However, I consider the nature of the harm which would be caused were the Applicant to reoffend in a similar manner be very serious.

1. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[55]
2. The Applicant contended he is at 'low risk' of reoffending. In summary, the Applicant's submissions were: [56]

(a) The Applicant is registered with the Sex Offender Management Squad (SOMS). He has been compliant with his reporting obligations over an extended period and now reports once per year;[57] > > (b) The Applicant adhered to his reporting obligations and claimed to organise his life in a way that minimised any risk, including not having children over for sleepovers or playdates, never going to other children's parties without his wife, and no unsupervised contact with any children apart from his own.[58] > > (c) The Applicant spent significant time in the Australian community, noting the Applicant not reoffended in the 11 years he has been present in the Australian community after committing the offences, demonstrating his rehabilitation and capacity not to reoffend.[59] > > (d) Following his release from prison, the Applicant resumed living with his family, attended counselling and registered with the Frankston Sex Offender Register. Once the Applicant's 10 subsidised visits with the counsellor ceased he continued, paying for the sessions out of pocket. His treating psychologist considered he presents a low risk of reoffending;[60] > > (e) In the context of sentencing, another psychologist reported the offences did not represent any 'diagnosable psychosexual disorder or paraphilia' and considered if his depression was treated he could 'return to being a useful and contributing member of society';[61] and > > (f) Assessments made in the corrections context support a finding that the Applicant presents a low risk of reoffending.

3. The Minister contended the Applicant presented a low-medium risk of reoffending. The Minister accepted that the period that the Applicant had spent in the community without reoffending indicated a low risk of reoffending however the Minister contended that sexual offences against children by those in a position of power are so serious that any risk is unacceptable.
4. In terms of expert assessments of the Applicant's risk of reoffending, the Applicant provided a report dated 29 November 2017 from Mr Ian Joblin.[62] In it, Mr Joblin described that the Applicant was 'certainly depressed and high in anxiety', noting the Applicant's pending charges and financial issues. Mr Joblin reported that he was not of the opinion that the offences represented any 'diagnosable psychosexual disorder or paraphilia', and that if he can address successfully the parameters of his depression, there is no reason why the Applicant could not return to being a useful and contributing member of the community.[63]
5. In September 2018, an assessment was conducted by the Specialised Offender Assessment and Treatment Service (SOATS) of Corrections Victoria to determine intervention pathways for the Applicant. The record of the outcome of that assessment notes it was conducted by a file review to provide a general risk assessment of sexual recidivism and that based on that assessment the Applicant was identified as 'within the Low sexual risk category'. The recommended intervention pathway was participation in case management with SOATS to 'address and manage risk' associated with his offending. He participated in case management until the order expired on 27 April 2020.[64] Records of his case management were included in the materials.
6. Evidence before the Tribunal also included 'level of service/risk, need, responsivity' testing reports for testing undertaken in August 2018 and October 2019.[65] The 2018 record notes the Applicant is recorded as 'low' risk by the LSI-R:SV.[66] This is an actuarial assessment tool designed to identify an offender's risks and needs with regard to recidivism. In addition to the risk factors of having a history of perpetrating a sexual offence, the 2019 report noted the Applicant engaged in 'denial/minimisation' and recorded that motivation was a barrier. However, the report indicates that the Applicant was assessed as 'low risk' using the Static-99 risk assessment tool,[67] as 'low' by the LSI-R:SV tool, and as 'low' by the LS/RNR[68] assessment tool.[69]
7. As part of his sentence, the Applicant was required to undergo sessions with Mr Michael Warner, registered psychologist. The Applicant underwent further sessions past the required sessions with Mr Warner for a total of 20 sessions of treatment. As part of these sessions, the Applicant completed several modules including Social Skills Training, Risk Management, and Support Systems.[70] The Applicant provided several statements from Mr Warner, in which Mr Warner describes the Applicant as highly intelligent and committed to his therapy. Mr Warner's later statement goes on to say: [71]

I do not believe that there is any possibility of [the Applicant] reoffending. I have worked with a number of serious offenders, but very few have been as open and honest throughout therapy and as committed to move forward.

8. As noted in the Minister's submissions, there was evidence in the reports of those supervising the Applicant's community corrections documenting concerns that Mr Warner may consider the Applicant to be 'innocent' from which it could be inferred his assessment was not impartial.[72] The Minister also contended it appeared the Applicant had given differing accounts of his offending to Mr Warner and that the assessment of Mr Warner should be treated cautiously as a result.
9. Neither Mr Warner nor the source of the recorded comments in the corrections files was called as a witness in order to test that evidence or the credibility of Mr Warner's assessments. Further, the Minister accepted that Mr Warner's assessment was consistent with both the actuarial assessments done in the corrections context and the report of Mr Joblin. As such, the Tribunal is not inclined to discount Mr Warner's assessment on the basis of concerns about objectivity or reliance on the Applicant's account of events or 'openness'. It is evident Mr Warner treated the Applicant over an extended period there is no evidence to suggest he lacked the expertise to make the assessments contained in his report. As such the Tribunal places weight on his assessment.
10. The Applicant highlighted that he had undertaken additional counselling with Mr Warner and, with the support of his wife, had been careful to organise his activities, including engagement with any children, to avoid any risk of further offending or breach of reporting conditions. Ms Lee gave evidence consistent with this.
11. In the Tribunal's view the Applicant has demonstrated the capacity to live in the community for an extended period without reoffending. He has a successful career and his children are doing well in Australia. He and his wife have recognised the risk of any further offending and have gone to some length to avoid interactions with may lead to offences, whether by what the Applicant may have characterised as 'misunderstandings' or otherwise. In the Tribunal's view, Ms Lee and the Applicant's children provide him with strong pro-social support and are a motivating factor not to reoffend.
12. There was also evidence the Applicant has consistently maintained employment over an extended period and has stable financial circumstances relative to the period in which the offending occurred. While it was not clear if he would be reemployed by his most recent employer if permitted to remain in the community, I consider he has good prospects for employment and that this will continue to be a protective factor against reoffending.
13. The Minister contended that the Applicant's denial of the offences suggested a lack of insight and genuine remorse and that this may be associated with a risk of reoffending. The Applicant contended that it could not be inferred that because he denied some of the conduct leading to this convictions he would be more likely to reoffend.
14. I note also that Ms Lee indicated in her early statement that she still believes that the Applicant 'would never behave in such a manner', referring to the offences, noting he jeopardised his visa status, has no prior criminal records, and respects women, having grown up in a loving, stable family consisting of his mum and 2 sisters. However, Ms Lee stated that she accepts he was convicted and has done everything required of them while trying to move on with their lives.[73] The Tribunal considers the effect of her efforts to ensure the family is not impacted by any further convictions is strong protective factor against reoffending in the Applicant's case, notwithstanding her professed belief in his innocence.
15. In the Tribunal's assessment the Applicant's evidence was not consistent with genuine remorse for his actions. On more than one occasion he sought to shift blame for his convictions to the victims, their parents or his lack of understanding of the legal system in Australia. This causes some concern over his level of insight into his responsibility for the offending. However, it is clear he regrets having been convicted and the impact this has had on his family members. He has taken steps to ensure he is not in a position to repeat this behaviour, even if he denies to himself and others any criminality. In the Applicant's case, I accept the submission that his denial of responsibility is not sufficient to demonstrate any clear increased risk of reoffending. In this regard I note the general assessments by Mr Joblin and Mr Warner were both made in the context of the Applicant denying the offences or minimising his responsibility for them. Notwithstanding this, both assessments support the capacity of the Applicant to lead a prosocial life in the community without reoffending. Further, his period living pro-socially in the community has demonstrated an ability and commitment to not reoffending.
16. It was also submitted on behalf of the Applicant that the extended delay by the Department in cancelling the visa was not consistent with the Applicant being a serious risk to the community. It is submitted that were it considered he was likely to reoffend, or the risk of him doing so was unacceptable, it is reasonable to assume the Minister would have taken action to cancel his visa following the response to the first NOICC rather than several years later, during which period the Applicant was in the community. There is some force to this submission given there was no explanation for the delay in cancellation or for the issuing of the second NOICC. At the very least, that delay provided a period in which the Applicant was able to demonstrate a capacity to live pro-socially and not reoffend which is in his favour.
17. Noting the counselling the Applicant has done since the offending occurred, his changed personal circumstances and his consistent period leading a pro-social life in the community, I consider the likelihood of his reoffending is at least somewhat lower than at the time the assessments were undertaken in 2017 by Mr Joblin and in the prison context in 2018 and that there is now a very low likelihood of him reoffending.
18. Having regard to all the material, including the extended period the Applicant has spent in the community without reoffending, or offending in any manner, I consider the Applicant presents a very low likelihood of reoffending. While accepting the very serious harm which would be caused were he to reoffend, having regard to all the evidence I do not consider the circumstances are such that any risk of reoffending is unacceptable.

Conclusion on the protection of the Australian community

1. The Applicant's conduct and offending was very serious. The nature of the harm which would be caused were he to reoffend is also very serious. The Tribunal considers there is a very low likelihood he will reoffend in a similar manner.
2. Having regard to the very serious nature of the Applicant's offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, I find that this primary consideration weighs strongly in favour for cancelling the Applicant's visa.

1. Paragraph 8.2 of Direction no. 110 provides that when deciding whether to cancel a visa, the Tribunal must have regard to any information or evidence that an applicant has engaged in family violence.
2. As there is no evidence before me to suggest that the Applicant has engaged in acts of family violence, this consideration is not relevant in the Applicant's case and I afford it no weight.

The strength, nature and duration of ties to Australia

1. I am required to consider any impact of the decision on the Applicant's immediate family members in Australia who are Australian citizens, permanent residents, or people who have an indefinite right to remain in here.[74] I must also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regarding to how long they have lived in Australia and any family or social links with citizens, permanent residents and/or people who have an indefinite right to remain in Australia.[75]
2. The Applicant moved to Australia when he was 34 years old and has lived here for over 11 years. His first recorded offences were committed in 2014, the year of his arrival.
3. The Applicant identified his wife, Ms Lee, his daughter, Miss A, and his son, Master A, as his immediate family members in Australia. It was submitted that none of the family members have applied for Australian citizenship because Malaysia does not allow or recognise dual citizenship, and the Applicant and Ms Lee want to leave that decision to the children when they are adults, however each hold Resident Return visas.[76] The Tribunal accepts that each has an indefinite right to remain in Australia.
4. As Miss A and Master A are minor children, their best interests are considered in detail further below. The Applicant contended that his children's interests should also be considered in the context of the Applicant's ties to Australia as well as in relation to the consideration of the 'best interests of minor children in Australia'.[77]
5. The Minister generally accepted that this consideration weighed against cancellation, however it was submitted that as the Applicant committed the offences shortly after arriving in Australia, less weight should be given to the length of time he had spent in Australia.[78] Further, the Minister noted that well-established and universal healthcare is available to citizens in Malaysia. I discuss this point further under the consideration 'extent of impediments if removed'.
6. Ms Lee provided several statutory declarations and gave evidence before the Tribunal.[79] In her early statement, Ms Lee described the Applicant as her 'dearest husband of 21 years, and devoted father to [their] two beautiful children'. Ms Lee said she did not think his visa should be cancelled, noting that he had not reoffended since his 2018 conviction and that he had 'followed and dutifully obliged to all his required reporting with the SOR and adheres to all restrictions especially since engaging with the community'.
7. Ms Lee says they have limited engagement with other families, and their children can never understand why their friends are not allowed over or why the Applicant is not available to bring them to birthday parties. She said that cancelling the Applicant's visa would be 'unfair and cruel', not only to her and the Applicant, but also to their children, and that it would break up their family. Ms Lee describes the Applicant as the 'pillar of [their] home and family', and says their children, Miss A and Master A, have a very strong emotional bond with the Applicant. She says Australia is the only home their children know, and notes that they are doing well at school, but this is due to the fact they have a 'stable, happy, complete & loving home', and if the Applicant were to be deported their 'world would collapse'.[80]
8. Ms Lee gave evidence that in her view the Applicant is fully aware of his restrictions and avoids any possible risk. She reports that he has 'zero chance of offending as his life has been greatly impacted negatively', referring to restricted movement and engagement, and restricted employment opportunity.
9. Ms Lee said that if the Applicant were to be removed from Australia it would impact her and their children negatively and they would lose their jobs, income, home and friends. If he were to be removed, Ms Lee said that her priority would be what is best for their children, which would be to remain in Australia. The Applicant similarly stated he wanted Ms Lee to remain here for the children. However, Ms Lee says she will not be able to cope without the Applicant's support and she would not be able to afford their mortgage, health insurance, utility bills, school fees and everyday expenses on her own. She notes she would struggle to maintain full-time employment as she and the Applicant 'work as a team for school drop off and pick-ups'.
10. In her letter dated 12 December 2025 Ms Lee discusses the negative impact the decision has had on her, noting that as both children will attend different high schools in opposite directions next year she is unsure how she will be able to manage their drop offs. She states she is unsure if she will even be able to work if the Applicant is removed from Australia due to the level of stress and physical and practical requirements of her job.
11. It was also submitted that Ms Lee was currently suffering from health concerns which would limit her capacity to cope and to manage the needs of the children if the Applicant is removed. She will undergo surgery in February 2026 and will not be able to work afterwords. Information before the Tribunal indicates Ms Lee has been advised that she will need someone to take care of her and her children after the surgery as she will be unable to drive and will need assistance with showering, wound cleaning, chores and childcare for 6-8 weeks.[81] Further treatment may be required depending on the outcomes of the surgery. Miss A has also expressed worry over who will care for her and her brother while Ms Lee is recovering from her surgery.[82] Ms Lee's letter notes how their son, Master A, is struggling completing some household tasks without the Applicant's assistance.
12. The children also provided video messages to the Tribunal and to their father. Ms A notes she has lived here since she was 4 years old and considers Australia to be home but does not think she can live without her father. She notes he supports and cares for them and that she worries her mother will be unable to manage. Mstr A worries about how they will pay bills and who will care for them. He states he misses his father and can't imagine his future without his father. There was evidence the children are doing well in school in Australia and are engaged in extracurricular and school activities supported by their parents.
13. The Tribunal accepts the Applicant has strong ties to Australia through Ms Lee and his children who have lived in Australia for a significant period and consider it to be their home. Ms Lee has health challenges which, at least in the immediate term, will cause her to face additional challenges in coping without the Applicant's physical, emotional and financial support. I accept that if the Applicant's visa is cancelled this will cause significant emotional hardship for the Applicant's family and may result in the family relocating to Malysia. This would be difficult for the children who consider Australia to be their home and have not lived in Malaysia since infancy. While there was evidence the family own a home of significant value and I have relatively good financial means, I accept they will struggle financially if the Applicant has to relocate and reestablish himself in Malaysia. Again, this problem will likely be more acute in the short term while Ms Lee is undergoing surgery.
14. While the applicant has spent significant time in Australia, I accept the submission that less weight should be placed on that time given he offended shortly after arriving in Australia. In the Applicant's case this is somewhat tempered by the fact he has continued to live lawfully in the community, strengthening his ties and particularly those of his children in part because of the delay in finalising a decision on the cancellation of his visa. In such circumstances, the Tribunal does not consider the additional hardship caused by the cancellation of the visa after a long period in the community should be discounted because the offending was committed early in the period of the Applicant's time here.
15. A number of letters of support from work colleagues, clients and friends were provided to the Department in support of the Applicant. These demonstrated the Applicant's ties to the broader community, particularly through his employment.
16. Mr Spina, a work colleague, said that he and the Applicant are friends and work together to improve business and assist each other in their respective roles.[83] He described the Applicant as a hardworking, helpful and respectful industry colleague and friend. Mr Spina said he did not believe there is any chance of the Applicant posing a risk to anyone, and the Applicant should be supported and rewarded on his path to provide for his family. Mr Spina said that if the Applicant is removed from Australia, it is his family that would suffer the most.
17. Mr Christopher Ho, the Applicant's colleague, described the Applicant as a person of strong character and integrity, who consistently demonstrates honesty, reliability and respect in his interactions with others.[84] Mr Christopher John Vassallo, a work client of the Applicant, notes he is an asset to his employer and the audio-visual community, and is a hardworking, tax abiding citizen. [85] Mr Vassallo said he had full knowledge of the Applicant's criminal history and finds the charges brought against him difficult to acknowledge and comprehend. Mr Vassallo said that, in his opinion, the Applicant does not pose any risk to the broader community. He said his wife and children rely on the Applicant's income that he provides to sustain a good education and healthy lifestyle, noting the children's extracurricular activities such as sports and music. Mr Vassallo said the Applicant's family would suffer a lot if he were forced to leave Australia.
18. Mr Michael Cameron describes the Applicant as ambitious, knowledgeable and highly skilled, and as a caring family man.[86] Ms Geissa Alonso described the Applicant as a 'professional and approachable person'.[87] Mr Matthew Sharpe provided a letter of support, in which he described the Applicant as a 'caring and compassionate individual' with a strong work ethic who was recently promoted within the company.[88] Mr Jason Coy, APC sales director, provided a general professional reference for the Applicant. [89] Mr Sean Tobin provided a letter in which he described the Applicant as 'one of the most dedicated, hardworking, and innovative people' he'd worked with, and said 'I judge his character to be honest and [truthful] in our professional working relationship'.[90]
19. While some of these personal references do not address the Applicant's offending or the impact if he is removed, they do evidence ties to Australia, particularly through the Applicants' employment and speak to him being held in regard by those he works with including colleagues and client companies.
20. Overall, I consider the Applicant has demonstrated strong ties to Australia, principally through his wife and children and through a consistent history of professional employment here.
21. I find that the strength, nature and duration of the Applicant's ties to Australia weigh strongly against the cancellation of the Applicant's visa.

Best interests of minor children in Australia affected by the decision

1. Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ. Paragraph 8.4(4) of Direction no. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant.
2. The Applicant identified his two children, Miss A, who is 15 years old and Master A, who is 12 years old, as children whose best interests are affected by the decision.
3. It was accepted by the Minister that the best interests of the children weighed heavily against cancellation.[91]
4. As there was no evidence before the Tribunal suggesting the children's living arrangements, personal profiles and needs differ significantly, the Tribunal has considered together as siblings, but separately to the extent there is evidence specific to their circumstances.[92]
5. Miss A is the Applicant's eldest child, aged 15. She was born in Malaysia and has lived in Australia since her arrival at age 4. [93] Master A, aged 12, was born in Malaysia but came to Australia when he was 11 months old.
6. The children have lived with both parents since they were born. The Applicant's relationship to the children is parental. The evidence establishes that the Applicant and Ms Lee have shared responsibilities for raising the children and that the Applicant has been the primary earner, though Ms Lee makes a significant contribution through her own employment.
7. To date all their schooling has been undertaken in Australia. Both are doing well in school. Miss A is currently in a private High School and is an elected year representative. Master A is entering High School and has been accepted into a Specialist High School under the Western Australian Gifted and Talented Selective Entrance (GATE) program.[94]
8. There is evidence of both children being well-established in their school communities and engaging in a range of extracurricular activities, including school commendations and awards. There was some evidence Master A suffers from asthma which is being medically managed.
9. As noted earlier, Ms Lee gave evidence stating it was in the children's best interests that their father be permitted to remain in Australia so the family could stay together and the children could be supported to continue school here. She expressed concerns about her ability to cope physically, emotionally and financially alone, particularly given her current health issues. The Applicant gave consistent evidence noting he was very close to his children and involved in their lives. He wants them to remain in Australia even if he is removed but is concerned about the emotional toll this will have on them and the difficulties it will cause their mother. He is also concerned about his ability to support them financially from Malaysia where his earning capacity will be significantly reduced.
10. The Applicant provided the Tribunal with a video message and transcript each of the children addressed to the Tribunal and to the Applicant as well as cards and letters from the children.[95] In her message, Miss A describes the Applicant as 'the best', an 'inspiring, respectful and a role model' for her. She says that although the Applicant works hard and is always busy, he still makes time for her and goes cycling, plays frisbee, and takes walks with Miss A after a long day. Miss A said that her father would earn money for the family and would take and collect her and her brother from school. Now that the Applicant was detained and no longer lived at home, Miss A described that her mother was very busy, both working and at home, and she missed being able to speak with a parent.
11. In her video message, Miss A says that she loves calling Australia home however she doesn't know if she can continue living here without her father, though she doesn't think she would 'survive' in Malaysia because she doesn't fit in with the belief system, the education system is a lot harsher, and she doesn't know how to speak Malay. Miss A said that Ms Lee will need surgery soon and Miss A did not know who would look after them, pick them up from school, or how they will pay the bills without the Applicant. She said their house no longer feels like a home and their family does not feel complete.
12. The video messages to the Applicant demonstrate a close parental relationship with the children including providing them with emotional support and financial security.
13. Master A states 'everything just feels wrong' without his father. He says there is no one to help him with homework and the future feels scary. He worries they will lose their home and have no where to go and he fears ending up with nothing. He wants his dad back to pick him up, watch him get awards and go to sporting events and says he can't imagine his life without his dad.
14. There is no evidence that the Applicant's prior conduct, and any likely future conduct, has had, or will have, any negative effect on the children.
15. Both children are in their teens and have 3 and 6 years respectively until they turn 18. This is a period of significant development for the children during which time the Applicant could make a positive contribution to their lives.
16. The Applicant has maintained contact with the children in visits and via electronic means and in writing while in detention. There is no information before the Tribunal to suggest contact with could not be maintained by those means if the Applicant is in the Malaysia and the children remain here. However, the Tribunal accepts this would not be a substitute for the close personal contact they have had with their father to date. While the children have visited Malaysia in the past and may do so in the further, the Tribunal accepts their capacity to do so may be constrained by financial and school commitments and that this would not be a substitute for the regular care and protection of their father living with them.
17. Ms Lee indicated she and the Applicant consider the children should remain in Australia for their schooling but acknowledge it may not be possible financially or if Ms Lee requires ongoing treatment. The children are not familiar with the Malaysian schooling system and do not speak Malay. This would cause them hardship in maintaining their studies and would likely be a more significant problem for Miss A who has only a few years schooling left to complete.
18. Overall, the evidence established the Applicant has a close relationship with his children and is heavily involved in their lives. They will suffer significant hardship if they are separated from him or if they must return to Malaysia to maintain their family unit.

1. I acknowledge that the Applicant's removal from Australia would have a significant, negative impact on Miss A and Master A. If the Applicant were to be removed from Australia, either the family would remain for the children to continue their schooling, or they would return to Malaysia. Either would cause the children significant hardship.
2. I consider it is in the best interests of children that the Applicant's visa is not cancelled. I afford this consideration very strong weight against cancelling the visa.

1. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
2. Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
3. Direction no. 110 notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen's visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)-(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered 'very seriously' or 'serious' and include crimes of a sexualised nature against children. The Tribunal has found earlier that the Applicant has been convicted of offences which are considered 'very serious' under these provisions.
4. Paragraph 8.5(3) of Direction no. 110 further confirms that the stated expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the 'norm' expressed in para 8.5(1), which refers to the 'unacceptable risk' of conduct being engaged in. This makes it clear that a 'measureable [sic] risk' of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
5. This consideration will, in most cases, weigh in favour of cancellation of a visa if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
6. The Applicant contended that, apart from the offences committed in 2014, the Applicant has complied with Australian laws during the time he has been in Australia and that there is not an unacceptable risk that he will engage in serious conduct in breach of the expectations of the Australian community if he is allowed to remain.[96]
7. The Minister contended that sexual offences against children whilst in a position of power are so serious that the Australian community would expect, as a norm, that the applicant would not be permitted to remain in Australia and refusal is appropriate simply because of the very serious nature of such offending.[97]
8. The Applicant has engaged in very serious offending and I find the Australian community would expect that the Applicant's visa would be cancelled.
9. However, it remains for me to determine the appropriate weight to be given to this consideration.
10. In weighing this consideration, I am also guided by the principles in para 5.2 of Direction no. 110. Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to para 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
11. Overall, I consider the expectations of the Australian community weigh strongly in favour of cancelling the visa.

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

a) legal consequences of the decision;

b) extent of impediments if removed;

d) impact on Australian business interests

Legal consequences of decision under section 501 or 501CA

1. I am required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.[98]
2. While this consideration in Direction no. 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision to cancel the Applicant's visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
   • Refusal of other visa applications and cancellation of other visas;[99]
   • A prohibition on applying for other visas;[100] and
   • Periods of exclusion and special return criteria may apply.[101]
3. Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[102] Under s 189 of the Migration Act, an unlawful non-citizen must be detained and removed as soon as reasonably practicable under s 198.[103]
4. The Applicant accepted that international non-refoulment obligations had not been engaged but contended the most significant legal consequence in the Applicant's case is that he will be permanently excluded from re-entering Australia if his visa remains cancelled, and that his exclusion from Australia would prevent him from actively participating in his children and wife's lives.[104]
5. The Minister contended that the detention, removal and visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of s 501 and related provisions.[105] However, the Minister conceded that, having regard to the Applicant's ties to Australia, the impact the consequences would have on the Applicant, in particular the prospect of permanent exclusion, weigh slightly in favour of revocation.
6. I accept that, as a consequence of the cancellation of his visa, the Applicant will be barred from applying for any other Australian visa other than a Bridging R (Subclass 070) visa (BVR)[106] and may also be subject to permanent exclusions from Australia as he may not be able to meet Special Return Criteria 5001(c).
7. Noting the consideration above of the circumstances of the Applicant and his family in Australia, I consider that these consequences will cause hardship to the Applicant and his family. In those circumstances, this consideration carries moderate weight against exercising the discretion to cancel the visa.

1. Paragraph 9.2 of Direction no. 110 provides that, taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in their home country, in the context of what is generally available to other citizens of that country. 'Home country' has a clear meaning in the Migration Regulations.[107] The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
   • The Applicant's age and health;
   • Whether there are substantial language or cultural barriers; and
   • Any social, medical and/or economic support available to the Applicant in their country.
2. The Applicant was born in Malaysia and resettled in Australia when he was 34 years old. There was evidence he has diabetes, high blood pressure, and has suffered glaucoma but underwent an eye operation in June 2025.[108] There was also evidence he has suffered from anxiety and depression in the past and had presented with suicidal ideation at the time of his convictions.
3. The Applicant contends that while he would be unlikely to face significant cultural or language barriers in Malaysia, he would suffer financial, practical, emotional and psychological distress if separated from his family. While it was accepted he would have the same supports as other Malaysians, he has a history of mental health issues. His family in Malaysia would be unable to support him as his mother and sister are unwell and rely on him for financial support. They are not aware of his offences.
4. The Minister accepted that this consideration weighs against cancellation. However, the Minister stated 'it was not clear' why the Applicant would face financial distress if he were removed to Malaysia, noting:

(a) he is well qualified and has a strong employment history including in a management role in Australia and Malaysia; > > (b) Malaysia has experienced strong economic growth over the last decades (noting that COVID-19 had a major impact) and is an upper middle-income, export-oriented economy;[109] and > > (c) there is very limited unemployment and there are labour shortages in multiple sectors of its economy.[110]

5. The Minister also submitted that the Applicant and his family had a strong financial position in Australia including a home estimated to be worth a significant amount, superannuation and savings.
6. As noted above, the Applicant is close to his wife and children and will suffer hardship if separated from them, noting also he has a history of mental health issues though this has not impeded his maintaining employment in the past. However, he lived in Malaysia until he was 34 years old, was educated and employed there and has access to the same supports available to other Malaysians.
7. I accept the family may be struggling at present due to the loss of the Applicant's income. However, I find they have financial means to support the Applicant's resettlement in Malaysia, including assets such as their home which the applicant estimated to be worth about $1.2 mil on which they had a mortgage of around $660,000 in July last year.
8. Overall, while the Tribunal accepts the Applicant will suffer emotionally from being separated from his family if removed, I do not consider he faces significant impediments to establishing himself and maintaining basic living standards in Malaysia on return, in the context of what is generally available to other citizens of Malaysia.
9. I find that this consideration weighs slightly against cancellation in the Applicant's circumstances.

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

1. The Applicant submitted that he has worked for Midwich since March 2016 and would have continued were his visa not cancelled.[111] He submitted that his employer has been unable to find a suitable replacement for his position, and that brands that were managed by the Applicant had a significant fall in November. No evidence was provided to support this contention and no evidence was tendered from the Applicant's employer suggesting the business' interests would be negatively impacted if he not allowed to remain in Australia. The Applicant advised that he signed a Non-Disclosure Agreement upon ceasing work with his employer and cannot provide any further information or documents about his position, but contends that this factor weighs in favour of not cancelling his visa.
2. As noted above under the consideration 'the strength, nature and duration of ties to Australia', many former colleagues of the Applicant provided letters of support for the Applicant, describing him in terms such as 'knowledgeable', 'professional', 'approachable' and 'hardworking.[112] However, in the Tribunal's assessment these did not establish any particular impact on any identified Australian business interest were the Applicant unable to remain in Australia.
3. The Minister submitted that the Tribunal should not give this consideration any weight where the Applicant's employment ended after his visa was cancelled rather than because of the outcome of the decision. The Minister submitted that there was no indication the Applicant would be re-employed by the same company if his visa was not cancelled, and that 'given the existence of the non-disclosure agreement it was unclear how the Tribunal could be satisfied that the termination of the Applicant's employment was due to the visa cancellation, as opposed to another reason, such as the existence of his criminal conviction'. In conclusion, the Minister submitted that the impact described by the Applicant does not constitute significant compromise of the delivery of a major project or important service in Australia.
4. While the Tribunal accepts there is evidence the Applicant was a valued employee and was respected by clients of the business, there was no evidence before me from the Applicant's prior employer to suggest their business would be negatively impacted if he is not permitted to remain in Australia or that there are any broader interests of the type identified in the Direction which would be impacted by a decision to cancel the visa.
5. For those reasons, I find that this consideration weighs neither for nor against cancellation.

1. The Applicant does not pass the character test under s 501 of the Migration Act.
2. I have therefore considered whether the Tribunal should exercise its discretion to cancel the Applicant's visa under s 501(2), having regard to the primary and relevant other considerations in Direction no. 110.
3. Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.
4. I must weigh the various primary and other relevant considerations outlined in Direction no. 110 against each other and undertake an evaluation of whether the discretion should be exercised.[113]
5. In determining the weight to be applied to each consideration, I have considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. I have gone on to compare and balance all of the considerations to determine whether the reviewable decision should be affirmed.
6. I have considered all of the primary considerations, including the protection of the Australian community. The Applicant has been convicted of very serious offences and while I have found that there is a very low risk of reoffending, I found that the protection of the Australian community weighs in favour of cancellation and I afford the consideration strong weight.
7. The consideration of family violence was not relevant in the Applicant's case. I afford it neutral weight in the Applicant's circumstances.
8. The strength, nature and duration of the Applicant's ties to Australia through his family and employment are strong and weigh against cancellation. I find strong weight should be afforded to this consideration in the Applicant's case.
9. The Applicant's two minor children, Miss A and Master A have lived here for most of their lives and have a close relationship with their father who is an important part of their development and schooling. The best interests of the Applicant's children weigh against cancellation, and this consideration carries very strong weight in the Applicant's circumstances.
10. The Applicant has engaged in very serious offending. The expectations of the Australian community weigh in favour of cancellation and I find this consideration should also be afforded strong weight in the Applicant's case.
11. In relation to the relevant 'other considerations' identified in Direction no. 110, I find that the legal consequences of the decision weigh moderately against cancellation in the Applicant's case. The extent of impediments if removed weigh slightly against cancellation of the visa. The impact on Australian business interests weigh neither for or against cancellation in the Applicant's case.
12. The Applicant has breached Australian laws committing serious offences. Since that time he has spent a considerable amount of time in the community demonstrating an ability to live a pro-social life. Generally primary considerations are to be given greater weight than other considerations. The protection of the Australian community is to be given greater weight than other primary considerations.[114] However, in this case I find that the considerations weighing in favour of not exercising the discretion to cancel the Applicant's visa outweigh those that weigh in favour of cancellation.
13. Having weighed the considerations in favour of the cancellation of the Applicant's visa and the considerations against cancellation, I find that the considerations weighing for cancellation, being the primary considerations of the protection of the Australian community and the expectations of the Australian community, are outweighed by those weighing against cancellation, being the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children, and the other consideration of the legal consequences of the decision and the extent of impediments if removed.
14. In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction no. 110, I consider that, in the Applicant's case, the discretion to cancel the Applicant's visa should not be exercised.

1. The decision of the Respondent to cancel the Applicant's Class VE Subclass 175 Skilled - Independent visa is set aside and substituted with a decision that the visa not be cancelled under section 501(2) of the Migration Act 1958 (Cth).

I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Burford

.....................................................................

[11] While the Applicant's submissions contended the notice was re-issued as the Department had taken so long to consider the matter the relevant policy had changed three times, no reason was given in the notice or material before the Tribunal.

[17] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024).

[20] Direction no. 110, para 6, referring to paras 8 and 9.

[21] Direction no 110, Annex A, Section 1(2).

[23] Direction no 110, Annex A, Section 2(7).

[25] Migration Act s 501(6)(e).

[27] Direction no. 110, para 6, referring to paras 8 and 9.

[36] Direction no. 110, para 8.1.1(1)(a).

[37] Direction no. 110, para 8.1.1(1)(d).

[40] Direction no. 110, para 8.1.1(1)(a) and 8.1.1(1)(b).

[43] Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 (Ali) at [41].

[44] Ali at [42]; HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (HZCP); [2019] FCAFC 202; (2019) 273 FCR 121 at [63], [68], [71], [76]-[79] per McKerracher J, with whom Colvin J agreed at [179]; see also [181]-[196] per Colvin J.

[45] Direction no 110, par 8.1.1(1)(g).

[46] Direction no 110, par 8.1.1(1)(c).

[47] Direction no 110, par 8.1.1(1)(d), (e), (f), (h), (i).

[48] Direction no. 110, para 8.1.2(2)(a) and (b).

[49] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.

[50] Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (report, 2020), included at Exhibit 1, HB745-970.

[51] Direction no. 110, para 8.1.2(2)(a).

[55] Direction no. 110, para 8.1.2(2)(b).

[59] Citing, as an example, Fetelika v Minister for Home Affairs [2023] FCA 95 at [74], [86] and [87] per Murphy J.

[66] Level of Service Inventory-Revised: Screening Version (LSI-R:SV). The Tribunal understands the LSI-R:SV is an 8-item actuarial screening tool derived from the LSI-R. It encompasses seven key risk factors: criminal history, criminal attitudes, criminal associates, personal/emotional, employment, family and substance abuse.

[67] The Tribunal understands this is an actuarial assessment tool for use with adult male sex offenders (age 18 years or older at the time of release from their most recent sexually motivated offence) to assess the risk of sexual recidivism.

[68] Level of Service/Risk Need Responsivity. The Tribunal understands this is an actuarial assessment developed to estimate risk of recidivism, identify rehabilitation needs and assess the most relevant factors related to supervision and management.

[76] Exhibit 1, HB164-173; ASFIC [78], Exhibit 1, HB282.

[77] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2.

[79] Exhibit 1, HB112-116, 116-117, 329; Exhibit 6, p 55.

[95] Exhibit 1, HB 119-122, 299-301; Exhibits 2-5. Direction no.110, par 8.4(4)(f).

[97] RSFIC [44], Exhibit 1, HB341, citing Direction no. 110, paras 8.5(1) and (2)(c).

[99] Migration Act, s 501F.

[100] Migration Act, s 501E.

[101] Migration Act, s 503; Migration Regulations 1994 (Cth) special return criteria (SRC) 5001.

[102] Migration Act, s 15.

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

[104] ASFIC [109]-[110], Exhibit 1, HB286.

[106] Migration Regulations 1994 (Cth), reg 2.25AB.

[107] Migration Regulations 1994, reg 1.03.

[108] Exhibit 6, p 52 [15]; ASFIC [27].

[109] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia (Report, 24 June 2024) [2.7].

[110] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia (Report, 24 June 2024) [2.10].

[111] ASFIC [113], Exhibit 1, HB286.

[112] See, for example, Exhibit 1, HB126-133.

[113] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [35]. See also Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.