MIGRATION - historical offences involving indecent treatment of a child - sexually based offences - failure to pass character test - notice of intention to consider cancellation of visa - representations - effluxion of time - discretion to cancel visa - consideration of implied temporal limit on exercise of discretionary power - relevant considerations - Ministerial Direction No. 110 - balance of considerations - decision set aside and substituted

Administrative Review Tribunal Act 2024 (Cth), ss 12, 56

Migration Act 1958 (Cth), ss 189, 198, 499, 500, 501, 501BA

Ashley and Minister for Immigration and Multicultural Affairs [2025] ARTA 875

Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21

DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97

FYBR v Minister for Home Affairs [2019] FCAFC 185

Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 285

Koon Wing Lau v Calwell [1949] HCA 65

Minister for Immigration and Border Protection v Makasa [2021] HCA 1

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50

Minister for Immigration and Citizenship v Obele [2010] FCA 1445

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38

Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983

XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553

Direction no. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)

1. KTTY[1] is a Tongan-born New Zealand citizen. In 2000, he migrated to Australia with his wife and four children. He was convicted of three offences involving indecent treatment of a child and sentenced to terms of imprisonment which were served as an intensive correction order or wholly suspended. Years passed. In 2020, he was given notice that cancellation of his Class TY Subclass 444 visa (Visa) was under consideration.[2] On four occasions in the period to April 2021 he was invited to comment, which he did. KTTY was given a further notice of intention to consider cancellation of his Visa in June 2025, inviting further comment, with which he complied. In September 2025, a delegate of the Minister decided to cancel KTTY's Visa under s 501(2) of the Migration Act 1958 (Act). KTTY lodged an application for review of the delegate's decision by the Tribunal.
2. The review is subject to legislative procedures set out in s 500(6) to (6L) of the Act.

1. I am satisfied the following background facts are established by the documentary and oral evidence before the Tribunal.
2. KTTY was born in Tonga. He holds New Zealand citizenship.[3]
3. As a child, he moved to New Zealand with his family. He attended high school but did not complete year 12. He worked as a forklift driver for a time. As I understand his evidence, as a youth he was exposed to alcohol use and a party culture. He drank heavily.
4. In 1991, KTTY had a daughter, 'Witness R', with a woman he later married (Wife). They had another daughter in 1992, 'Daughter A'; a son, 'Son A', in 1995; and another daughter 1998, 'Daughter B'.
5. On 28 February 2000, KTTY, his Wife and their children entered Australia on a Class TY Subclass 444 visa.
6. KTTY obtained employment in a fibreglass factory.
7. Later in 2000, KTTY and his Wife had another daughter, 'Daughter C'. They purchased a house under mortgage.
8. On 15 April 2001, KTTY was apprehended and charged with Drink driving - 0.08 and under 0.15.[4]
9. On two occasions in 2001, KTTY returned home intoxicated, entered Witness R's bedroom and touched her genitals while she was sleeping, causing her to wake and leave her bedroom. She was 10 years old when this occurred. The first incident occurred between early June 2001 and late October 2001.[5] The second incident occurred in a new house the family moved into in late October 2001.[6]
10. On 11 December 2001, KTTY made admissions to police. He was arrested, charged and bailed.
11. On 4 April 2002, KTTY entered guilty pleas and was convicted of two counts of indecent treatment of a child under 12 of lineal descent. He was sentenced to concurrent 12-month terms of imprisonment to be served as an intensive correction order, including the special condition he undergo treatment and counselling for alcohol abuse.[7]
12. On 8 May 2002, KTTY underwent an alcohol and drug assessment and accessed related services thereafter.[8]
13. On 3 June 2002, KTTY was assessed by Cathy Gearon, a Queensland Department of Corrective Services psychologist, who recommended he attend a substance abuse relapse prevention program and he should complete a Community Sex Offender Program (CSOP) and be referred to complete individual counselling to address relationship issues and alcohol abuse.[9] KTTY attended a Substance Abuse Education Program, which he completed on 13 March 2003,[10] and engaged in counselling from August 2002.[11] He attended 12 sessions, including 6 sessions with his Wife present. The sex offender program was due to begin on 21 September 2002.[12] KTTY was unable to attend the sex offender program due to his work commitments and, instead, he was referred to attend Dr Edwin Young, a psychiatrist, on 12 February 2003.[13] He did so.[14]
14. On 21 June 2002, KTTY breached the conditions of the intensive corrections order, driving a motor vehicle without a licence. He was convicted and fined $100.[15]
15. On 4 May 2004, a fresh complaint was made against KTTY by the mother of another female child in respect of a similar alleged offence in 2001 when the child was sleeping over at KTTY's house.[16] Details of what was alleged remain opaque. Nevertheless, on 9 March 2005, KTTY was interviewed, arrested and charged. On 23 February 2006, KTTY entered a guilty plea and was convicted of indecent treatment of a child under 12. He was sentenced to an 8-month term of imprisonment, wholly suspended for 12 months, and a community service order.[17]
16. In or about July 2005, KTTY and his Wife informally adopted the infant son, 'Son B', of a cousin who was unable to care for him.[18]
17. On 17 July 2007, KTTY was convicted of failure to comply with his reporting obligations. As I understand the evidence, he departed from Australia on 12 May 2007 and returned on 3 June 2007 without reporting this to police.[19] He was convicted and fined $500.
18. In July 2012, KTTY and his Wife informally adopted the infant son, 'Son C', of KTTY's sister who was unable to care for him.[20]
19. On seven occasions, KTTY declared no criminal convictions on incoming passenger cards he completed on 25 July 2003, 13 June 2005, 3 July 2007, 1 August 2011, 13 April 2012, 29 July 2012 and 18 September 2016.[21]
20. On 13 June 2020, an officer of the Minister's Department notified KTTY of intention to consider cancellation of his Class TY Subclass 444 visa granted on 18 September 2016 under s 501(2) of the Act.[22] The delegate referred to a National Criminal History Check dated 30 October 2019 and Transcript of proceedings of the District Court of Queensland at Brisbane on 23 February 2006 and stated the information appears to suggest that you do not pass the character test because you have been convicted of one or more sexually based offences against a child.[23]
21. On 13 July 2020, Dr Naomi Ng, a haematology resident doctor at the Princess Alexandria Hospital, reported that KTTY's Son A was undergoing treatment as an inpatient for a new diagnosis of acute myeloid leukaemia.[24]
22. On 18 July 2020, KTTY provided a response, including a Personal Circumstances form dated 17 July 2020.[25]
23. On 20 July 2020, an officer of the Minister's Department created a file note in respect of information regarding [KTTY's] conviction of 4 April 2002 received by the Department.[26]
24. On 21 July 2020, a Departmental officer invited KTTY to comment on further information received by the Department, namely File Note of QPRIME Statement of Facts for Court matter of the District Court of Queensland at Brisbane on 4 April 2002, dated 20 July 2020.[27]
25. On 21 August 2020, a Departmental officer informed KTTY your matter is still under consideration and a decision is yet to be made and invited further information.[28]
26. On 24 August 2020, KTTY provided a response.[29]
27. The materials KTTY provided included letters from his Wife and children,[30] and a cousin.[31] A Minister of the Oxley-Darra Uniting Church, and a Reverend of the Wesleyan Methodist Church of Australia also provided letters.[32]
28. On 23 April 2021, a Departmental officer informed KTTY of New Direction 90 to replace Direction 79 (previously provided) and invited further comment.[33]
29. On 14 May 2021, KTTY provided a response.[34]
30. On 5 June 2022, KTTY's daughter Daughter C attended police and lodged a complaint of domestic violence against KTTY. Police reported the matters alleged by Daughter C.[35] KTTY does not contest his daughter's account but asserts the Tribunal should not place weight on alleged facts set out in the police report which are second hand and were not squarely put to him in cross examination. KTTY's assertion of procedural unfairness in respect of such matters effectively goes nowhere. Key matters were squarely put to KTTY. He explained he could not recall specific details of the incident, including whether he punched his daughter with a closed fist or hit her with a broom handle. KTTY accepted he reacted in anger and his conduct was inappropriate even though his daughter was acting disrespectfully to him and respect is significant in Tongan culture. No charges were laid against him, although a domestic violence order for protection of the daughter was made. This was withdrawn by the daughter shortly thereafter.[36]
31. On 29 May 2025, a Departmental file note was created setting out the facts of charges dealt with by the District Court of Queensland on 4 April 2002.[37]
32. On 5 June 2025, a Departmental officer issued KTTY with a Notice of intention to consider cancellation of his Visa under s 501(2) of the Act. The Notice attached documents held by the Department and invited comment. It stated:

Any information you have provided previously in relation to the possible cancellation of the visa identified above will also be taken into account, and you do not need to provide it again in response to this notice. Any additional information to update or replace what you provided previously should be submitted in accordance with this notice. Please also advise the Department (see the details set out in this notice under 'Where to send your response') if you would like the information you provided previously to be wholly disregarded.[38]

33. On 10 July 2025, KTTY provided another Personal Circumstances form.[39]
34. On 3 September 2025, a delegate of the Minister decided to cancel KTTY's Visa under s 501(2) of the Act.[40]
35. On 19 September 2025, KTTY was taken into immigration detention at 6:10am having been removed from his home earlier that morning.[41]
36. On 19 September 2025, KTTY was given notice of the cancellation of his Visa.[42]
37. On 26 September 2025, KTTY applied for review of this decision by the Tribunal.[43]

1. The issues to be decided in the review arise under s 501(2) of the Act:

(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.

2. KTTY contends exercise of the discretionary power conferred by s 501(2) is subject to an implied temporal limitation, a reasonable time, beyond which it will expire or lapse and no longer be available. The Minister strongly disagrees.
3. Beyond this 'threshold issue', there is a two-stage process of decision-making.[44] In the first stage, both limbs of the subsection must be met before the discretion to cancel a visa is enlivened for exercise in the second stage, applying directions issued by the Minister under s 499 of the Act: presently, 'Direction No. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA' (Direction). In every case, exercise of the power begins with the Minister forming a reasonable suspicion the visa holder does not pass the character test and giving the non-citizen a notice of intention to consider cancellation of their visa, and it ends with a binary decision: to cancel or not cancel the person's visa.[45]
4. Reasonable suspicion in this context is no more than a state of mind, conjecture or surmise, necessarily preconditioned by the existence of facts sufficient to induce a reasonable person to surmise that one or more of the circumstances exhaustively enumerated in s 501(6) has occurred.[46]

1. KTTY asserts s 501(2) of the Act should be construed to apply a temporal limit on the exercise of discretionary power to cancel a visa, such that the cancellation power is only available for exercise within a reasonable time. Support for this construction is drawn from XMBQ v Minister for Immigration and Multicultural Affairs (XMBQ)[47] in which, when dealing with a similar issue under s 501BA of the Act, Horan J found the power under s 501BA to set aside an original decision and cancel a visa must be exercised within a reasonable time after the original decision is made by the delegate or the Tribunal.[48] KTTY cavils with a recent decision of the Tribunal, Ashley and Minister for Immigration and Multicultural Affairs (Ashley),[49] in which a similar contention was rejected.
2. In essence, KTTY argues where the cancellation power in s 501(2) of the Act accrues as a result of conviction and sentence for a criminal offence, the time for exercise of the power commences on the date of the conviction and sentence. Relying on XMBQ, KTTY asserts the power to cancel his Visa was available for exercise within a reasonable period thereafter.
3. In KTTY's submission, the reasonable period would commence on 23 February 2006, the day on which he was most recently convicted and sentenced for the offence of indecent treatment of a child under 16. It is manifestly unreasonable, he argues, for his Visa to be cancelled more than 19 years later. As the period of more than 19 years exceeds the reasonable period during which the discretionary power was available for exercise, so the argument goes, the power has elapsed and the Minister's delegate lacked the power to cancel his Visa on 3 September 2025. For this reason, KTTY contends the Tribunal must set aside the delegate's decision.
4. The Minister disagrees. The Minister asserts KTTY's reliance on XMBQ is misplaced as the Court was addressing the power conferred by s 501BA(2) of the Act, which is not a freestanding visa cancellation power, unlike the power conferred by s 501(2). The Minister argues the power in s 501BA(2) is conditioned by an original decision to revoke mandatory cancellation of a non-citizen's visa, and it is to that decision the discretionary cancellation power applies. In the Minister's submission, the power in s 501(2) is not a duty or compellable, and it is not conditioned by the occurrence of an event, including a conviction or sentence for a crime, or by the Minister becoming aware of such an occurrence. The Minister alleges the power is essentially preconditioned by the Minister reasonably suspecting the person does not pass the character test and the person not satisfying the Minister they pass that test. Consequently, the Minister argues, as the discretionary power conferred on the Minister by s 501(2) is not conditioned by the occurrence of an event, it is distinguished on the facts from the nature of the power considered in XMBQ and, as the statutory construction principles drawn from Koon Wing Lau v Calwell[50] are not applicable, it is not subject to an implied temporal limit.
5. The Minister alleges the precise argument KTTY now makes was put and rejected in Ashley, which was correctly decided. This notwithstanding, the Minister asserts the Tribunal lacks authority to determine an implied temporal limit to exercise of the power in s 501(2) or to find the delegate's decision was affected by jurisdictional error, as these are matters of law for judicial determination. The Minister observes, furthermore, KTTY has not fleshed out the broad assertion of an implied temporal limit and he declined to do so when given express opportunity by the Tribunal. The Minister declined to meet any case not squarely put by KTTY, albeit noting the statutory obligation of both parties to assist the Tribunal under s 56 of the Administrative Review Tribunal Act 2024 (ART Act).
6. Addressing the facts of KTTY's case, the Minister asserts the conviction and sentence KTTY was given on 23 February 2006 is not capable of raising the discretion in

s 501(2) as the essential preconditions to enlivenment of the discretion are those set out in s 501(2)(a) and (b). The Minister contends KTTY's argument fails on this point. 7. The Tribunal's review jurisdiction is in respect of a reviewable decision as defined in s 12 of the ART Act, namely where an Act or legislative instrument provides for an application to be made to the Tribunal for review of the decision. In this context, the legal effectiveness of a decision in fact made is not to the point. Albeit dealing with s 25 of the Administrative Appeals Tribunal Act 1975, the reasoning of Bowen CJ and Smithers J in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd[51] is apposite insofar as it illuminates the important differentiation of a decision in fact made under legislation and the legal effectiveness of the decision for want of power. 8. There is no dispute the delegate in fact made a reviewable decision on 3 September 2025. The issue presently raised for the Tribunal is one of power, not jurisdiction. On KTTY's submission, the delegate lacked power to make the decision as the decision was not made within a reasonable time following KTTY's conviction and sentence on 23 February 2007. The logical extension of this assertion is that either the decision is a nullity and the lack of power carries into the Tribunal's review, requiring the Tribunal to set aside the reviewable decision. 9. Leaving aside the question of the legal effectiveness of the delegate's decision, there are two important flaws in KTTY's argument. 10. Firstly, the discretionary power to cancel a non-citizen's visa under s 501(2) is not predicated on or responsive to a conviction or sentence for an offence, albeit such factual matters have relevance to elements of the 'character test' set out in s 501(6) of the Act. Determination of a conviction and the passing of sentence are matters for a court of competent jurisdiction, commonly within a State or a Territory, far removed from the ambit of Minister's responsibility and authority within the Commonwealth. 11. The two essential preconditions which must be met to enliven the Minister's discretion under s 501(2) are set out in paragraphs (a) and (b). The first essential precondition requires the Minister to formulate a state of mind, a reasonable suspicion, the person does not pass the character test. The second precondition will be met where the non-citizen fails to satisfy the Minister they do pass the character test. It is only when both of these preconditions are met the discretionary power to cancel the person's visa is enlivened and available for exercise. Natural justice applies. 12. The exercise of power under the legislation involves a number of steps: the receipt of information of relevance to the factors set out in the character test; the formulation of reasonable satisfaction the non-citizen does not pass the character test by the Minister and the giving of notice of intention to consider cancellation of the non-citizen's visa; a response by the non-citizen which fails to satisfy the Minister the person passes the character test; a decision by the Minister to exercise the discretion to cancel or not cancel the person's visa. The making of the decision to cancel or not cancel the person's visa is the end point of the discretionary exercise of power conferred by s 501(2).[52] The date on which the person is convicted and sentenced for an offence plays no part in this statutory procedure. 13. The obvious difficulty stemming from XMBQ, using the language of Horan J, is identification of the factum that attracts application of the section.[53] In XMBQ, the factum was the original decision, not satisfaction of the essential preconditions to enlivenment of the power conferred which are unable to be divorced from the discretionary aspects of the exercise of the power conferred. It is on this point the Minister argues XMBQ is distinguished. There is some force to this argument but, as will appear, the general principle Horan J drew from relevant authorities is likely applicable to the power conferred by s 501(2). 14. KTTY argues the relevant factum for the purposes of s 501(2) is the conviction and sentence on which he failed to pass the character test. This is not consistent with the legislative framework and it raises the second flaw in his argument. The character test in s 501(6) sets out multiple factors by which a person fails to pass the test. On any reading of the subsection, it is immediately apparent some factors turn on the fact of a conviction or a sentence, others turn on less precise grounds involving the person's conduct or character, risk, danger and reasonable suspicion. Having regard to the plain text and language of the legislation, the proposition KTTY attempts to advance, that the power under s 501(2) is only available within a reasonable time commencing from the date on which KTTY was convicted and sentenced, cannot be accepted. It does not address the multiplicity of factors set out in s 501(6) and (7). 15. Furthermore, a person might fail to pass the character test on grounds relating to past conduct or crimes, such as crimes of genocide, war crimes or crimes of serious international concern. One does not require an active imagination to comprehend that crimes of this nature may well come to light years after their commission. The proposition that s 501(2) should be construed to limit consideration of such matters has been rejected. In Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[54] when addressing a question of legal unreasonableness relating to delay (which was not upset or further addressed by the Full Court which upheld the decision on appeal), Derrington J said:

There is no period of limitation in the Act which might prevent the Minister taking action under s 501(2). It may be exercised at any time and there is nothing in the nature scope and purpose of the section or the Act itself which might give rise to an implication that the Minister cannot exercise the power if the events on which he relies occurred many years previously. For example, if the Minister becomes aware of a person who had committed war crimes many years in the past, it is not possible that s 501(2) could not be exercised merely because the person in question had resided in Australia for an extended period of time. Similarly, it may be that the Minister, through his Department, has been unaware of the historical circumstances which demonstrate that a non-citizen does not pass the character test. Again, it cannot be said that merely because the Minister did not know of the past offending until recently the power effectively cannot be exercised.[55]

16. The unfettered nature of the power in s 501(2) has long been recognised.[56]
17. The minister urged caution drawing any point of principle from XMBQ, which is on appeal in the Federal Court of Australia. I understand the case has been heard but judgment has not yet been given. Noting the time constraints imposed by s 500(6L) of the Act, no party applied for delay dealing with this issue, pending judgment. MK is in immigration detention. In these circumstances it is not appropriate to delay dealing with this matter, XMBQ expresses the law as it now stands.
18. Two further things should be said of XMBQ. Firstly, XMBQ addresses temporal considerations in the context of the Minister's power conferred by s 501BA. The power is essentially preconditioned by the criteria set out in s 501BA(2) following the making of a 'non-adverse decision' under s 501CA by a delegate or the Tribunal. Horan J found exercise of the power is for the purpose of setting aside the 'non-adverse decision' and stated:

Accepting that the power under s 501BA must be exercised for the purpose of setting aside an original decision and cancelling the visa, it is a short step to imply a temporal limitation on the exercise of the power by reference to the making of the original decision. Notwithstanding the absence of words such as "upon" or "on" in s 501BA(2), the structure and context of the provision essentially place it in the same territory as the provisions considered in cases such as Koon Wing Lau. The text, context and purpose of s 501BA are sufficient to attract the principle of statutory construction referred to in Koon Wing Lau and subsequent cases, to the effect that an exercise of power under s 501BA to set aside an original decision and cancel a visa must be exercised within a reasonable time after the original decision is made by the delegate or the Tribunal. If the power is not exercised within a reasonable time, it will lapse or expire and will no longer be available for exercise by the Minister.[57]

19. Secondly, the principle of statutory construction which may be drawn from XMBQ and the related line of authorities reaching back to Koon Wing Lau, requiring the exercise of otherwise unfettered discretionary power conferred by statute, turns on the text, context and purposes of the particular statute. Horan J drew a general principle from the authorities:

... a statute that requires or authorises something to be done without specifying any period for performance will "ordinarily" (that is, subject to a contrary intention) be construed as requiring that thing to be done within a reasonable time, consistently with the subject matter and purpose of the statute. This principle may be particularly relevant in cases where the statutory duty or power arises on and in relation to the occurrence of a given event or circumstance.[58]

20. The power to cancel a non-citizen's visa conferred by s 501(2) of the Act arises in relation to the non-citizen's failure to pass the character test. Necessarily, considering the multiplicity of factors set out in the character test and the diverse circumstances of non-citizens within its terms, the power arises where the Minister (or the Minister's Department) obtains or is given information relevant to any factor set out in the character test which is sufficient to raise the possibility a non-citizen might fail the character test. As natural justice applies under s 501(2), the point at which the power arises is crystallised by the giving of notice to the non-citizen the Minister intends to consider cancellation of their visa. The purpose of the power includes protection of the Australian community.[59] Exercise of the power has potentially grave legal consequences for the non-citizen, affecting their rights and liberty, including changing their immigration status to that of an unlawful non-citizen who is subject to immigration detention and removal from Australia.
21. Thus, despite the flaws in KTTY's argument, the discretionary power conferred by s 501(2) arises in relation to an event, namely the giving of notice to the non-citizen the Minister intends to consider cancellation of their visa on character grounds.
22. KTTY did not raise or press the issue of an implied temporal limit on this basis and, despite opportunity, declined to address the issue in any detail. Consequently, as the Minister asserts, the Tribunal should not proceed to determine the matter without the assistance of properly considered submissions and related argument. Nonetheless, it is appropriate to make the following observations.
23. In the context of the protective purpose of the discretionary power and the binary nature of a non-citizen's legal status in Australia, unreasonable delay following the giving of such a notice is problematic. Delay and uncertainty in such circumstances are anathema to natural justice and the just and reasonable exercise of power. To my mind, the 'ordinary rule' Dixon J expressed in Koon Wing Lau and the general principle Horan J drew in XMBQ are likely to be applicable. If so, the discretionary power to cancel a non-citizen's visa under s 501(2) would be available for exercise within a reasonable period following the giving of notice of the Minister's intention to consider cancellation of the non-citizen's visa on character grounds. To the extent this conclusion is not consistent with Ashley, with the greatest of respect, I would not follow it.
24. Adopting this construction in KTTY's case, the reasonable period would run from the date on which notice of the Minister's intention to consider cancellation of his Visa was given.
25. It is at this point the factual background becomes confusing. The Minister first issued a notice of intention on 13 June 2020 which stated:

[The Department] holds information which suggests that you may not pass the character test by virtue of s 501(6)(e) of the Act.[60]

26. The notice attached a National Criminal History Check in respect of KTTY dated 18 November 2019[61] (although this is cited as 30 October 2019 in the list of attachments[62]), and a transcript of Judge Forno's sentencing remarks on 23 February 2006. A Departmental file note on 20 July 2020 refers to additional relevant information the Department received in respect of KTTY's conviction on 4 April 2002 and related charges.[63] The document does not disclose when the information was received or who provided it. This was followed by further invitations for KTTY to comment on 21 July 2020, 21 August 2020 and 23 April 2021.
27. The materials given to the Tribunal by the Minister's Department do not suggest a decision was made following receipt of the information KTTY provided in response to the notice and related invitations to comment.
28. A further notice of intention was issued on 5 June 2025 in which the following statement was made:

By letter dated 13 June 2020 you were notified that consideration would be given to whether to cancel your [Visa] on character grounds under s 501(2) of the [Act]. You now have a further opportunity to comment in relation to the possible cancellation.[64]

29. No additional or new grounds were specified in the notice.
30. Despite opportunity, the Minister declined to provide submissions addressing related matters beyond those squarely raised by KTTY. Consequently, no explanation has been provided for what occurred in the process of decision-making under s 501(2) in response to the information and comments provided by KTTY in response to the invitations he was given in June, July and August 2020 and April 2021. Furthermore, no explanation has been given for any progress or delay in related decision-making in the period from 21 April 2020 to 5 June 2025. There is no evidence a decision was made not to cancel KTTY's Visa during this period, although that possibility cannot be ruled out. If such a decision had been made, it was not communicated to KTTY and it would exhaust the power under s 501(2) on the facts raised in the notice.
31. It appears the Minister's Department obtained a New Zealand Police criminal history dated 20 October 2021 and an updated National Criminal History Check which was released on 7 August 2024. From this it is open to infer the decision-making process remained on foot, unresolved and incomplete, during this period.
32. Proceeding on that assumption, more than 5 years elapsed from the Department first issuing KTTY a notice of intention to consider cancellation of his Visa on character grounds and the final decision to do so. On the available materials, the fact of a delay exceeding 5 years is not explained or justified. It is not clear that anything was done to progress the matter from 2022 to 2024. In my preliminary view, this may well exceed a reasonable period for proper consideration of relevant matters, taking into account any relevant circumstances and the nature and purpose of the discretionary power.
33. On this I will go no further.
34. KTTY's contention of an implied temporal limit running from the date on which he was convicted in 2006 cannot be accepted. Nonetheless, it is likely a temporal limit applies to the exercise of power under s 501(2) of the Act and that the discretionary power is available for exercise within a reasonable period. I have formed the preliminary view that the reasonable period would commence with the Minister giving notice of intention to consider cancellation of a non-citizen's visa on character grounds. This has not been squarely raised and argued, and it is best left for further consideration and determination in an appropriate case. It is not appropriate to express a concluded view without hearing further from the parties. Even despite the temporal constraints imposed by s 500(6L) of the Act, it is not necessary to do so as no different result would be obtained.
35. KTTY's application is resolved on other grounds, weighing all relevant considerations under the Direction. There is no controversy that the effluxion of time is a relevant factor when considering any risk KTTY poses to the Australian community, as well as his rehabilitation and ties to Australia.

1. The Minister relies on the following circumstance in s 501(6):

(6) For the purposes of this section, a person does not pass the character test if: > > ...; or > > (e) a court in Australia or a foreign country has: > > (i) convicted the person of one or more sexually based offences involving a child; or > > ... > > Otherwise, the person passes the character test.

2. The term 'sexually based offences involving a child' is not given any special meaning. The 'sexually based' element directs attention to the qualitative aspects of the offence.[65]
3. KTTY has three convictions of Indecent treatment of a child under 16, under 12 under

s 210(1)(a) and (3) of the Criminal Code 1899 (Qld).[66] The offence under s 210(1)(a) applies to a person who unlawfully and indecently deals with a child under 16, where 'deals with' is taken to be an 'assault' which by definition in s 245, includes touching without consent. The 'indecent' element of the offence KTTY committed in 2001 involved the touching of his daughter's vagina which imports a sexual connotation, squarely within the meaning of 'sexually based offences involving a child'. 4. The materials on which these facts are raised supports a reasonable suspicion s 501(6)(e)(i) of the Act is made out and KTTY does not pass the character test. KTTY does not cavil with the fact of his convictions and he has not satisfied me that he passes the character test. 5. From this it follows the two limbs of the first stage of decision-making are met and the discretion to cancel his Visa is enlivened.

1. Once enlivened, the discretion to cancel a non-citizen's visa is to be exercised in compliance with the Direction. The discretionary task is to be approached within the framework of objectives, principles, instructions and considerations set out in the Direction. The principles are:
   1. Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
   2. The safety of the Australian Community is the highest priority of the Australian Government.
   3. Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
   4. The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
   5. Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
   6. With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
   7. Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
   8. The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
2. The following instructions are given:

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

3. Taking the relevant considerations into account

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. > > (2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. > > (3) One or more primary considerations may outweigh other primary considerations.

4. Primary considerations In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

(1) protection of the Australian community from criminal or other serious conduct; > > (2) whether the conduct engaged in constituted family violence; > > (3) the strength, nature and duration of ties to Australia; > > (4) the best interests of minor children in Australia; > > (5) expectations of the Australian community. > > ...

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

(a) legal consequences of the decision;

(b) extent of impediments if removed;

(c) impact on Australian business interest

1. Generally, protection of the Australian community is to be given greater weight than other considerations. This aligns with the principle that the safety of the Australian community is the highest priority of the Australian Government and the statement that the Government is committed to protecting the community from harm resulting from criminal conduct or other serious conduct by non-citizens. It is also consistent with the protective purpose of the discretion conferred by s 501(2) of the Act where a non-citizen fails to pass the character test.
2. In this context, protection considerations are essentially forward-looking: to protect the Australian community from harm which might be caused should a non-citizen who fails to pass the character test engage in further serious conduct. The gravity of the protection consideration is proportional to the seriousness of the conduct and the risk of harm. These are not abstract considerations divorced from the actual circumstances and relevant static and dynamic factors in any case. Albeit somewhat chameleon-like, risk may be tempered by time: the risk is likely to be heightened in close proximity to the circumstances which caused the non-citizen to fail the character test, especially where the person has been removed from the community and any rehabilitative efforts have not been tested in the community. It is for this reason one might expect the discretionary power to cancel a visa to be exercised in a timely manner. Even so, regard is to be had to the principle that remaining in Australia is a privilege conferred on non-citizens in the expectation they are law abiding. These matters should be kept squarely in mind when considering protection of the Australian community.

1. Regard must be had to the matters set out in s 8.1.1 of the Direction:

1. In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:

(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community: > > > (i) violent and/or sexual crimes; > > > > (ii) crimes of a violent nature against women or children, regardless of the sentence imposed; > > > > (iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed; > > (b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious: > > > (i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed; > > > > (ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; > > > > (iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c)); > > > > (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again,, or an offence against section 197A of the Act, which prohibits escape from immigration detention; > > (c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes; > > (d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; > > (e) the cumulative effect of repeated offending; > > (f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; > > (g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). > > (h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

2. KTTY's offending conduct involving indecent treatment of a child under 12 is viewed very seriously within the express terms of paragraph 8.1.1(a). The first two of these offences have a sexual character and involve assault of a child, in breach of parental trust and responsibility. This conduct demonstrates a deviant sexual interest which is not excused or explained by intoxication. Details of the third indecent treatment of a child offence, of which KTTY was convicted in February 2006, are not apparent on the available relevant evidence. The inference available is that the offence was committed at or about the time of KTTY's offences against his daughter in the latter part of 2001.
3. So much is reinforced by Forno J's observation in February 2006 when sentencing KTTY: you have pleaded guilty before me today in respect of what the community quite rightly regards as a very serious offence even though it may be described as falling towards the lower end of the scale of disgusting behaviour such as this.[67] The disgusting nature and objective seriousness of KTTY's offences are reflected in the sentences Judge Forno and Judge O'Brien imposed.
4. KTTY committed three offences in or about the latter part of 2001. There is no evidence of him committing further similar offences in the 24 years which have elapsed since those events.
5. KTTY failed to disclose these offences on seven occasions when completing incoming passenger cards for re-entry to Australia. He explained these failings on grounds of language, miscomprehension of what was required, and personal stress. I accept that KTTY's repeated failure to disclose his criminal convictions was not a deliberate attempt to conceal that history.
6. KTTY engaged in domestic violence conduct against Daughter C in 2022. Even though he was not charged with an offence, this conduct is also viewed very seriously. KTTY's explanation that respect is a significant factor in Tongan culture and the disrespect his daughter engaged in was a factor in his angry and violent response does not sit easily or well with his prior indecent offending conduct against Witness R and a female niece in 2001.
7. Overall, KTTY's conduct is viewed very seriously.

1. Paragraph 8.1.2(1) states 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. The matters set out in 8.1.2.(2) must be considered separately and cumulatively:

(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

(i) information and evidence on the risk of the non-citizen re-offending; and

(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

1. The consequences drawn from evaluation of the particular circumstances which pertain to KTTY's offending conduct,[68] should they be repeated, are grave. The harm to individual victims should KTTY engage in further child sex offences would likely be substantial. On Dr Watson-Munro's evidence, the physical and psychological effects of such offending on child victims can be very long lasting.
2. Risk is affected by static and dynamic factors which should be considered when determining if the level of risk is unacceptable:

It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like. [69]

3. Three considerations bear heavily on the risk KTTY poses to the Australian community.
4. The first stems from the passage of more than 24 years since KTTY's offences involving indecent treatment of a child. During this period, there is no evidence he has engaged in any further similar conduct involving children. Rather, the evidence suggests he has ceased consuming alcohol, he has reconciled with his family members, particularly the victim of his offending conduct, and he has reformed himself through active engagement with his church.
5. The second consideration is the rehabilitation KTTY engaged in following his convictions. He engaged in alcohol and relationship counselling treatments, some of which he attended with his Wife. On 21 June 2002, he was reported to be making significant progress.[70] On 12 February 2003, KTTY consulted Dr Young for sex offending as he was unable to attend the Community Sex Offender Program due to employment commitments.[71] While there is no report or direct evidence from Dr Young, KTTY's response to supervision was reported to be satisfactory and his progress was reported to be very good.[72]
6. The third consideration is that KTTY has been assessed as a low risk. On 21 November 2025, Mr Tim Watson-Munro, a consultant psychologist, reported KTTYs risk of reoffending is now low.[73] Mr Watson-Munro explained his risk assessment was made without the use of a formal instrument during a telehealth consultation. It is his opinion the low level of risk is buttressed by the passage of more than 20 years in which KTTY has not engaged in further indecent treatment of a child. When examined on this point, Mr Watson-Munro explained KTTY's acceptance of responsibility and culpability for his offending, and his expressions of real remorse and deep shame coupled with clear insight into the role of alcohol in his previous conduct, are likely to reduce the risk he would engage in further similar conduct. In Mr Watson-Munro's opinion, this is reinforced by KTTY's actual behaviour over subsequent years in which he committed no further similar crimes; he has been abstinent from alcohol for more than 15 years; he maintained steady employment, providing for his family; and he engaged in pro-social activities with the strong support of his family and his church community. On the question whether KTTY's conduct demonstrates a deviant sexual interest or paraphilic tendences, Mr Watson-Munro found no pattern of behaviour before or after the period in which KTTY offended that suggests he harbours deviant sexual interests or paraphilic tendencies. It is Mr Watson-Munro's opinion KTTY's offending was probably opportunistic, at a time when he was likely suffering from an Alcohol Abuse Disorder which affected his judgment and his impulsivity. On the scant relevant evidence, Mr Watson-Munro did not consider KTTY engaging in an extra-marital affair while his Wife was in New Zealand and in a single incidence of domestic violence against his daughter is indicative of a pattern of impulsivity or paraphilic tendencies. Mr Watson-Munro's opinion gains some support from the overall risk rating of LOW KTTY was given when he was taken into immigration detention on 19 September 2025.[74]
7. Even though Mr Watson-Munro's assessment is not as forensic and detailed as one might expect, being conducted by telehealth with access to only scant relevant materials,[75] in large part it relies on accounts from family members and KTTY's criminal history which illuminate KTTY's actual behaviour over the 24 years since he committed the offences involving children. Mr Watson-Munro is an appropriately qualified expert with many years of experience dealing with sexual offenders in the criminal justice system and their victims. I have no difficulty accepting his opinion evidence and his assessment of the low risk KTTY might engage in further similar conduct.
8. I am satisfied the risk of KTTY engaging in further serious conduct involving a child is low but, should he do so, the harm which would be caused to any child victim would likely be substantial.
9. With regard to the domestic violence conduct KTTY engaged in against Daughter C, on the available materials, this was an isolated incident. The available material, including evidence from KTTY's Wife and family members, and church leaders, does not point to a history of domestic violence incidents and it does not reveal a pattern of impulsively violent behaviour. Nonetheless, the harm caused by repetition of such behaviour, allegedly punching with a closed fist and hitting the victim with a broom handle, has potential to cause significant physical injuries. On this point I note the police report refers to bruising and scratches Daughter C sustained in the incident.[76] It is not clear whether they are attributable to KTTY's actions or the fight in which Daughter C was engaging with her sister. As these were not squarely put to KTTY in cross-examination, I will go no further than to observe injuries of these kinds may well be expected to result should KTTY engage in further similar conduct.
10. Considering these matters, on the evidence of KTTY's Wife and Witness R, KTTY is a changed man[77] who abstains from alcohol and engages in pro-social activities with his family and his church. I accept Mr Watson-Munro's risk assessment. I am satisfied there is a low risk of harm to the Australian community should KTTY engage in further serious conduct.
11. In this context, it is germane to recall what the plurality said in Minister for Immigration and Ethnic Affairs v Guo:[78]

The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.[79]

12. In KTTY's case, it is probable significant changes in his conduct and behaviour have occurred in the long period since he engaged in offending conduct against a child in 2001. I am not persuaded his past conduct in 2001 is a reliable guide to his likely future conduct. While the risk KTTY might engage in further similar conduct cannot be safely disregarded, for practical purposes, the probability of such an occurrence is low. This reduces the level of concern and the weight given to the protection consideration.
13. Overall, the primary protection consideration weighs in favour of cancellation of KTTY's Visa, but not decisively.

1. Family violence must be considered under s 8.2 of the Direction. The Government's stated concern about allowing a non-citizen who engages in family violence to remain in Australia is proportionate to the seriousness of the family violence engaged in. Subsection 8.2(3) sets out the following factors which must be considered:

(3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant: > > a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness; > > b) the cumulative effect of repeated acts of family violence; > > c) rehabilitation achieved at time of decision since the person's last known act of family violence, including: > > i. the extent to which the person accepts responsibility for their family violence related conduct; > > ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children); > > iii. efforts to address factors which contributed to their conduct; and > > d) Whether the non-citizen has re-offended since being formally warned, or since Otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.

2. The term 'family violence' is given a broad and inclusive meaning in s 4.1(1) of the Direction.
3. The three offences KTTY committed in 2001 were against his daughter, Witness R, and a niece. In the two offences involving his daughter, his actions amount to an assault, well within the broad meaning of 'family violence'. Details of the offence against the niece are not discernible on the available materials.
4. In 2022, KTTY engaged in further violent conduct against Daughter C which is within the 'family violence' definition.
5. There is no trend of increasing seriousness. The nature of the offences in 2001 in respect of Witness R involved indecent treatment, touching his daughter's genitals when she was sleeping. The available evidence does not suggest KTTY engaged in further similar conduct thereafter. KTTY's conduct in 2022 has a very different nature. By his own account he attempted to separate two fighting daughters, the younger of which became disrespectful towards him. KTTY became angry and engaged in physical violence he accepts was inappropriate. On the police report of Daughter C's account, KTTY punched her with a closed fist and hit her with a broom handle.
6. From this distance, it can be seen KTTY's family violence is not frequent. There is no pattern of family violence conduct. Rather the incidents in 2001 have a very different nature than the incident in 2022. While each of the incidents involve some degree of impulsivity, the opportunistic sexual element in his 2001 conduct while intoxicated is substantially different than the impulsive resort to violent conduct against his daughter when enraged and angry in 2022.
7. The cumulative effect of KTTY's family violence conduct on victims is ameliorated by reconciliation and, in respect of the 2001 conduct, by KTTY's engagement in family relationship counselling. I am satisfied KTTY accepts responsibility for his actions, and he has clear insight into the effect of his conduct on each victim. KTTY has attempted to address the factors which contributed to his conduct in 2001, ceasing alcohol use and engaging in psychiatric consultation to address his sexual offending and counselling in respect of family relationships and alcohol use. KTTY has not undertaken any additional measure to address his conduct in 2022. He was not charged with any offence and Daughter C withdrew her complaint, resulting in removal of the domestic violence order.
8. Family violence is an abhorrent scourge which the Australian community has little tolerance for. On the facts of KTTY's case, the level of concern about the seriousness of his family violence conduct is ameliorated by his evident rehabilitation from 2001 and the passage of time. His conduct in 2022 remains largely unaddressed, even though the complaint was withdrawn. I accept KTTY feels remorse and recognises his resort to physical violence was inappropriate and unacceptable.
9. These considerations weigh in favour of cancelling KTTY's Visa.

Strength, nature and duration of ties to Australia

1. The strength, nature and duration of KTTY's ties to Australia must be considered under

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

(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

1. how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

   1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

   2. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

   3. the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. KTTY's immediate family members include his Wife and seven children. His Wife and four of his children are Australian citizens. Three of his children have a right to permanently reside in Australia. In addition, KTTY has eight grandchildren who were all born in Australia.[80] A ninth grandchild is due to be born in January 2026. KTTY has a brother and a sister residing in Australia and two sisters residing in New Zealand. Even though there is no dispute KTTY has an aunt, a cousin and 10 nieces and nephews living in Australia, there is very scant evidence about his relationships with these people.
2. Cancellation of KTTY's Visa is likely to have a substantial impact on all members of his immediate family in Australia. So much is clear on the unchallenged documentary evidence provided by immediate family members.[81]
3. The Wife's evidence is that KTTY is the main financial provider and four of their children are students, three of whom reside in the family home.[82] On her evidence, We need his salary to be able to pay for our mortgage and for our bills and without it we will suffer a lot.[83]
4. The youngest child, Son C, is in Year 7. There is evidence this child is experiencing psychological stress as a result of KTTY being suddenly taken from the family home at 4:00am by police into immigration detention on 19 September 2025.[84] Dr Sophia Amirtharajan, treating general practitioner, diagnosed depressive episode and anxiety following the removal of KTTY by police which caused significant impact to his mental health.[85]
5. Witness R described her very close relationship with KTTY: before my dad was taken away on 19 September I saw him almost every day.[86] Witness R is a secondary school teacher with four young children, expecting a fifth child in January. She explained my dad provides me with a lot of day-to-day support in looking after my kids:

As mentioned, I am very reliant on my dad's support in caring for my children. My dad is the only person who can pick my kids up from school and look after them until I finish work in the afternoons. My dad picks my kids and little brother up from school and takes them home, makes sure they have something to eat and spends quality time with them. My kids love their Papa very much and value the time they spend with him. > > ... [I], my husband and my kids are really struggling without my dad being able to help. > > My kids have been confused about the change in their routine since my dad was taken from his home on 19 September and have been struggling without him. My dad is a very important person in their life and they are suffering with him not being around.[87]

6. Cancellation of KTTY's Visa is likely to have a substantial adverse impact on his immediate family members.
7. KTTY has resided in Australia since 2000. Aside from traffic and incoming passenger card violations, his offences were committed in 2001. Subsequently, he has maintained steady employment and he has been abstinent from alcohol for approximately 15 years. He has been actively involved in pro-social and church-based activities, including supporting new arrivals in Australia. On the letters of support in evidence, he is respected in his neighbourhood and his church.[88] I am satisfied he has made a positive contribution to Australia despite offending against his daughter and niece in 2001. Any reduction in weight as a result of the close temporal proximity of his first arrival and offending is offset by the positive contribution he has made to Australia over subsequent years until cancellation of his Visa in September 2025. In this context, the effluxion of 24 years from the offences which raise the character concern to the cancellation of KTTY's Visa is a significant factor.
8. I am satisfied KTTY has very strong ties to the Australian community through his family members, his employment and social networks, and his church activities.
9. The gravity of the likely impacts on KTTY's immediate family members who are Australian citizens or permanent residents in Australia adds very substantial weight against cancellation of his Visa.

1. Section 8.4 of the Direction requires consideration of the best interests of each minor child affected by the decision and determination whether non-revocation under s 501CA of the Act is, or is not, in their best interests. Matters which must be considered are set out in

(4) In considering the best interests of the child, the following factors must be considered where relevant: > > a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); > > b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; > > c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; > > d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; > > e) whether there are other persons who already fulfil a parental role in relation to the child; > > f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); > > g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; > > h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

2. KTTY identifies nine minor children whose interests are likely to be affected by the decision.[89]
3. KTTY is father to one minor child in his immediate family, Son C, and grandparent to the eight children of his daughters. In each case, he has played and is likely to continue to play an important positive parental and grandparental role with these children. There is simply no evidence his previous offending conduct has had a negative impact on any of the children.
4. In all likelihood, some of KTTY's nieces and nephews might be under 18 years old, but there is very scant information about any such children and where their best interests lie in respect of cancellation of KTTY's Visa.
5. On the evidence of Witness R, the Wife and other family members, I am satisfied cancellation of KTTY's Visa is not in the best interests of KTTY's minor son and his eight grandchildren. As Witness R, Daughter A, and the Wife attest, each of these children rely on KTTY for financial, emotional and practical support, as a father. KTTY's minor son is experiencing psychological stress, depression and anxiety as a result of KTTY being taken into immigration detention. It can be expected this reaction may well intensify should KTTY's Visa not be reinstated and he is removed from Australia.
6. Witness R gave compelling evidence of the adverse impact on her children of KTTY being taken into immigration detention. In part this is attributable to practical matters, involving his role in caring for the children after school while their parents are at work. In other part, this likely relates to the loss of the close, positive relationship each of the children has with their grandfather.
7. On the evidence of the Wife and Witness R, cancellation of KTTY's Visa will likely result in the family being physically separated. KTTY's removal from Australia is likely to intersect and materially change the close relationship he has developed with each of the minor children. This is particularly important for KTTY's minor son, who is 13 years old, and Witness R's children who are 4, 5, 8 and 9 years old. He would no longer be able to collect the children from school and spent time physically interacting with them each day. KTTY would be forced to return to New Zealand, leaving his immediate and other family members in Australia.
8. The Wife and Witness R explained family members have established lives and commitments in Australia, including employment, mortgages, educational courses and other ties which would prevent them from leaving. In such circumstances, at best, KTTY's relationship with the minor children could be conducted remotely, using electronic media and communications technology. This is no substitute for the direct physical contact each child has had with their grandfather, growing up in Australia. As Witness R explained, the minor children are confused by KTTY's absence and they are suffering with him not being around.[90]
9. I am satisfied cancellation of KTTY's Visa is not in the best interests of any of the minor children whose interests are affected.
10. The breaking of strong physical bonds between a child and their parent or grandparent is a very weighty consideration. On the facts of this case, it is a consideration which weighs heavily against cancellation of KTTY's Visa.

1. Consideration of the expectations of the Australian community is guided by s 8.5 of the Direction:

1. 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. 2. In addition, 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. In particular, 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 the following kind:

(a) acts of family violence; or > > (b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage; > > (c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect; > > (d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or > > (e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or > > (f) worker exploitation.

(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

1. While this is not directive of the outcome in any case, the 'norm' and the deemed community expectation expressed is generally adverse to any non-citizen who has breached the expectation they will be law-abiding while in Australia.[91] It is the Government's articulation of Australian community expectations as a whole which must be applied, not what the community might expect in the particular case, about which reasonable minds may differ. Nevertheless, the relevant facts must be considered when evaluating the character concern stemming from the adverse character assessment and the weight it should be given.[92]
2. The key aspect of concern about KTTY's character arises from his sexual offences against children under 12 years old, his daughter and a niece. Judge Forno's disgusting behaviour description reflects the abhorrent nature of such conduct.[93] Deviant sexual interest in children, and the harm caused to child victims of paedophilia, lies at the heart of the concern. While intoxication might explain some degree of disinhibition of impulses, it does not explain KTTY's paedophilic interest in the children he assaulted.
3. There are two factors which reduce the weight of the character concern somewhat. Firstly, even though the basis of KTTY's paedophilic interest remains unexplained, on Mr Watson-Munro's evidence, there is no apparent pattern of paedophilic behaviour. KTTY's sexual offences involving a child occurred within a short span of time in 2001, without any evidence he engaged in similar conduct at any other time. KTTY engaged in counselling and with a psychiatrist to address his sex offending. There are powerful protective factors within his family and in his church which diminish the likelihood of him relapsing into alcohol abuse and committing further child sex offences. There is no evidence of him pursuing paedophilic interests and committing child sex offences in the 24 years which have elapsed from his last offence.
4. Secondly, on Judge Forno's assessment, KTTY's offending is at the lower end of the scale of disgusting behaviour such as this.[94] While the very serious nature of the offending conduct tests the tolerance of the Australian community, the actual offences are not of the most egregious kind. With counselling, evident remorse, real insight, and abstinence from alcohol, KTTY has achieved a level of rehabilitation which is reflected in his reconciliation with Witness R and the pro-social family and church roles he has demonstrated over the last 20 or so years.
5. Other conduct KTTY engaged in, breaching the intensive correction order, failing to disclose his criminal convictions on incoming passenger cards on seven occasions, and engaging in family violence add to the character concern.
6. Considering these matters, I am satisfied the character concern arising from KTTY's serious conduct weighs in favour of cancelling his Visa, but not decisively.

1. The 'other considerations' in s 9 of the Direction are generally to be given less weight than 'primary considerations'.

1. Guidance is given in s 9.1 in respect of the legal consequences of cancellation of KTTY's Visa:

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

2. In this context, consideration must be given to the practical reality for the person in human terms[95] of the legal framework prescribed by the Parliament.
3. On cancellation of KTTY's Visa, his immigration status changed: he was rendered an unlawful non-citizen. He was taken into immigration detention and he is prohibited from applying for any visa other than a protection visa. KTTY has not raised any protection or non-refoulement claims.
4. Affirmation of the cancellation decision will likely result in him being held in immigration detention until he is removed from Australia as soon as reasonably practical thereafter and returned to New Zealand. There is no evidence of the likely duration of KTTY's immigration detention prior to removal. Once removed from Australia, it is highly unlikely KTTY would be permitted to return. In order to do so, he would need to satisfy the Special Return Criteria in s 5001(c) of Schedule 5 to the Migration Regulations 1994 (Cth), which is unlikely.
5. Alternatively, it is possible the Minister could intervene to grant him another visa which allows him to remain in Australia. There is no suggestion this is under consideration.
6. In practical human terms, it is likely KTTY would be physically separated from his Wife, children, grandchildren and other extended family members in Australia should his Visa be cancelled. Once KTTY is removed from Australia, his family members will no longer be able to engage in a physical relationship or to have physical contact with him in Australia.
7. This is the legal consequence of government policy and the legal framework within which the decision is to be made. As Charlesworth J said in Stoneley v Minister for Immigration and Multicultural Affairs[96] the question of whether the applicant should suffer the adverse legal consequences of the cancellation decision was a matter for its own evaluation having regard to the particular facts and circumstances of his case.[97]
8. In the circumstances of KTTY's case, the effluxion of time is a relevant factor. More than 24 years have elapsed since the offending conduct on which he failed to pass the character test. More than 19 years have elapsed since he was convicted of those offences. Five years have passed since he was first notified the Minister was considering cancellation of his Visa. During these periods, KTTY engaged in employment and his ties within his immediate family strengthened substantially, as grandchildren were born and he reconciled with his Wife and daughter. His standing in the community changed through his active engagement in church and congregational activities. The legal consequences of the decision and the physical removal of KTTY will likely pierce the lives of KTTY's family members in Australia with detrimental effect. The adverse impact this is likely to have on them I have already considered and taken into account, and it is not necessary to do so again.[98]
9. This notwithstanding, in the particular circumstances, I am satisfied the legal consequences of cancellation of his Visa so long after the offences which caused him to fail the character test weigh against exercise of the discretion to do so.

1. Any impediments KTTY would face should he be removed from Australia to New Zealand must be considered under s 9.2 of the Direction:

(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: > > a) the non-citizen's age and health; > > b) whether there are substantial language or cultural barriers; and > > c) any social, medical and/or economic support available to them in that country.

2. KTTY is 57 years old. Although he has not resided in New Zealand for 25 years, he resided there prior to 2000. He has siblings in New Zealand with whom he is close. He would experience no significant language or cultural difficulties. He is familiar with life and living in New Zealand, albeit 25 years ago. He would face the difficulty of re-establishing himself in New Zealand at the age of 57 and earning sufficient income to maintain a basic standard of living. In all likelihood, he would adapt after an initial period of adjustment. He has transferable employment skills and experience, including a forklift licence and previous experience working as a forklift driver in Auckland. It is possible KTTY might experience difficulties earning sufficient income to support his family in Australia, as he contends.
3. The greatest impediment he is likely to face if removed to from Australia to New Zealand is physical separation from his family in Australia and the loss of personal, practical involvement in their daily lives. It can be expected KTTY would face emotional and psychological difficulties as a result. On Mr Watson-Munro's evidence, KTTY is suffering escalating symptoms of depression and anxiety, arising from the prospect of being deported.[99]
4. Considering these matters, I am satisfied KTTY would likely experience some impediments if he is removed from Australia to New Zealand.
5. This consideration weighs against cancellation of his Visa.

1. Any impact KTTY's removal from Australia would have on Australian business interests must be considered under s 9.3 of the Direction:

(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.

2. No relevant impacts were raised by either party.
3. This consideration does not weigh for or against exercise of the discretion to cancel KTTY's Visa.

1. Weighing the relevant considerations, the protection of the Australian community is generally to be given more weight than other considerations.
2. The protection consideration weighs in favour of exercising the discretion to cancel KTTY's Visa. The seriousness of his conduct, particularly his indecent treatment of children on three occasions more than 24 years ago, informs the appropriate attribution of weight. The weight is reduced by the low risk he poses after the passage of so many years without further sexual offences which is reinforced by his engagement in rehabilitative counselling, consultations with a psychiatrist and completion of a substance abuse education program in 2003, as well as his abstinence from alcohol for more than 15 years. There are strong protective factors in KTTY's family relationships, including his strong bond with Witness R and her children, and church engagements which reduce the risk of him reoffending and harming members of the Australian community. I accept KTTY's expressions of remorse are real and deeply felt. The strength of this protective factor is not diminished by the passage of time since KTTY engaged in the offending conduct.
3. Primary considerations of family violence and the expectations of the Australian community add weight in support of cancellation of KTTY's Visa.
4. The weight given to the family violence consideration is accentuated by the nature of KTTY's conduct, although this is tempered by the effluxion of time from the initial family violence conduct in 2001. The single further incident in 2022 appears to be an isolated incident which was not part of a pattern of impulsive violent conduct.
5. In the context of the 'norm' and the deemed expectation that non-citizens in Australia should be law-abiding, KTTY's offending conduct is in clear breach. The nature of the character concern arising from his conduct tests the tolerance of the Australian community, although the weight is reduced by the lengthy period since the index offences in 2001. Some weight is added by concerns about KTTY's breach of the intensive correction order, minor traffic infringements and his repeated failure to disclose his criminal convictions when making incoming passenger card declarations.
6. While these primary considerations weigh solidly in favour of cancellation of KTTY's Visa, other primary considerations weigh heavily against doing so. These relate to the strength, nature and duration of KTTY's ties to Australia and the best interests of minor children affected by the decision.
7. KTTY has very strong ties to Australia through his family. His Wife and four of his children are Australian citizens. His eight grandchildren were born in Australia. Since 2000, KTTY and his Wife and children have made a life in Australia, working in employment, attending schools and tertiary studies, attending church, and contributing positively to the Australian community. KTTY's offences in 2001 occurred soon after his arrival in Australia and, in ordinary circumstances, this would reduce the weight given to his ties to Australia. In this case, however, more than 24 years have elapsed during which he has remained in the Australian community. Over this time, he has demonstrated pro-social qualities and his ties to Australia have deepened and strengthened through his family, his neighbourhood and his church. This is demonstrated by his informal 'adoption' of two children (one of whom is an Australian citizen) in circumstances where their parents were unable to care for them. He now has eight grandchildren who were born in Australia, with whom he has close relationships. Witness R, in particular, relies on him for support with her four children. I accept that KTTY has been the main financial provider for his family and all his family members will be adversely impacted by a decision to cancel his Visa. This is a very weighty consideration in the balance.
8. So, too, is the consideration of the best interests of the nine minor children who are affected by the decision. KTTY's youngest son has been psychologically affected by KTTY being taken into immigration detention. The psychological stress is likely to be exacerbated if KTTY is removed from Australia to New Zealand. Witness R and the Wife have given powerful evidence of the likely impact of such an eventuality on KTTY's youngest son and his eight minor grandchildren. Their routines and their close personal bond with their grandfather will be interrupted and stripped of physical interaction. This weighs very heavily in the balance.
9. Other considerations are generally given less weight than primary considerations.
10. The legal consequences of the decision to cancel KTTY's Visa more than 24 years after the offences which led to him failing to pass the character test, on which the discretionary power to cancel his Visa turned, weigh against exercise of the power. In part, this is because the temporal distance between KTTY's index offending in 2001 and the cancellation of his Visa is large. Contextual circumstances relevant to the over-arching protective purpose of the discretionary power and the safety of the Australian community have changed with the passage of time and KTTY's demonstrated pro-social conduct. In practical human terms, the legal consequences of affirming the decision to cancel his Visa include his forced removal from Australia and physical separation from the members of his immediate family, including nine minor children, with no real prospect of returning. In the context of powerful evidence of the adverse impact this is likely to have on all KTTY's immediate family members, which I have already taken into account, the legal consequences of exercising the discretion to cancel KTTY's Visa add weight against doing so in the particular circumstances of his case.
11. KTTY is likely to experience some impediments if he is forced to return to New Zealand. It is probable he would experience some temporary difficulties re-establishing himself in New Zealand after an absence of 25 years, although this would likely be tempered by his two siblings who reside in New Zealand, with whom he is close. The greatest impediment he is likely to face in such circumstances relates to his physical separation from his family and his concern about his ability to earn sufficient income to support them in Australia, including meeting mortgage and other commitments. This adds some weight against exercise of the discretion to cancel his Visa.
12. On balance, weighing all of the considerations, I am satisfied those weighing against exercise of the discretion to cancel KTTY's Visa outweigh those weighing in favour of doing so.
13. Time is a significant factor in the unusual circumstances of this case. Twenty-four years have elapsed from KTTY's offences in 2001. Five years have passed since the first notice KTTY was given in 2020 that cancellation of his Visa was under consideration. KTTY's life and the lives of his family have progressed during these periods and relevant circumstances have changed in ways which bear directly on the protection consideration, particularly in reference to the risk of harm should KTTY engage in further serious conduct and concerns about his character, and more broadly on the protective purpose of s 501(2) of the Act. The strength, nature and duration of KTTY's ties to Australia have changed very substantially: he informally adopted two children (one of whom is now adult) and he is presently grandfather to eight grandchildren with whom he has close bonds and frequent or daily contact. These children were not born when he committed the offences on which he failed to pass the character test.
14. There are no additional matters to consider arising from the materials or the submissions of the parties.
15. In conclusion, the offences KTTY committed in 2001 and the related convictions mean he does not pass the character test on the grounds set out in s 501(6)(e)(i) and (ii) of the Act. The discretion conferred by s 501(2) is enlivened as the two preconditions are met. Weighing the relevant considerations in compliance with the Direction, I am satisfied the considerations weighing in favour of exercising the discretion to cancel KTTY's Visa are outweighed by considerations against doing so.
16. That being so, I am satisfied and find that it is not appropriate to exercise the discretion to cancel KTTY's Visa under s 501(2) of the Act in the particular circumstances. From this it follows, the decision under review must be set aside and a non-cancellation decision substituted in place thereof.

1. The decision of the Minister's delegate on 3 September 2025 is set aside and in substitution thereof, under s 501(2) of the Act, the Tribunal decides not to cancel KTTY's Class TY Subclass 444 visa.

[1] The Tribunal issued orders under s 70 of the Administrative Review Tribunal Act 2024 to protect the identity of Witness R. This requires use of pseudonyms for family members.

[2] Documents relevant to the issue of notice of intention to consider cancellation of KTTY's Visa in 2020 and 2021 were lodged by the Minister during the hearing. These documents are in Exhibit 2.

[26] Exhibit 2, File Note, 20 July 2020.

[44] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 (Makasa), [34]-[40].

[47] [2025] FCA 553.

[50] [1949] HCA 65, per Dixon J, [9]-[10].

[51] [1979] FCA 21.

[54] [2022] FCA 285.

[56] Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50, [126]-[127].

[59] Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, [15].

[60] Exhibit 2, Notice dated 13 June 2020, p1.

[65] VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983, [60].

[68] Minister for Immigration and Citizenship v Obele [2010] FCA 1445, [59].

[69] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, [102].

[91] FYBR v Minister for Home Affairs [2019] FCAFC 185, per Charlesworth J at [75] and Stewart at [89].

[95] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, [9].

[96] [2025] FCA 143.

[98] DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97, [40].