Saeki and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1407 | Case summary

Saeki and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1407 | Case summary | Zoe

[58]

The sentencing court's acceptance that Mr Saeki had an honest belief of consensual interaction of a sexual nature, but it was not reasonable, is of note. These remarks, in accepting Mr Saeki's plea of guilty, appear to engage with section 348A and section 24 of the Queensland Criminal Code Act 1899 (the Criminal Code). In that regard, section 348A of the Criminal Code makes special provision for mistake of fact in relation to consent, thereby augmenting the provisions of section 24 of the Criminal Code for the purposes of identifying whether a person held an honest and reasonable but mistaken belief in the existence of consent as is relevant to the offences of sexual assault and rape. It is apparent that the court found that Mr Saeki's presumptive arrogance and the victim's subordination to him during the conduct and her role as an employee explains why Mr Saeki's belief that there was consent was both mistaken and unreasonable.
Further information about the circumstances of the offending can be found in the Statement of Facts.[20] This document was sourced from a response to a Tribunal summons issued to the District Court of Queensland, and so I infer it was the statement of facts upon which the sentencing judge passed sentence. By way of general background, the statement explains that the victim was employed at the Japanese restaurant operated by Mr Saeki and his wife. The statement acknowledges that in Japanese culture, Mr Saeki was in a position of power over the victim, who felt as though she could not disagree with him, and Mr Saeki would regularly tell the victim that was the case.
The occasions of the sexual assaults in the statement are as reflected in the sentencing remarks, with examples of the victim pretending to be asleep, Mr Saeki regularly hugging and kissing the victim while she was at work. In respect of the rape, the circumstances involved Mr Saeki asking the victim "can I insert" and proceeding despite the victim pretending to be asleep and giving no answer.
In his written submissions, Mr Saeki expresses acceptance of responsibility for his wrongdoing. In a 'statement of apology'[21] (to the Administrative Review Tribunal) Mr Saeki recognises that at the time of his offending the victim was only 18, and he violated her trust, dignity and safety. He says he recognises now that she had only recently arrived in Australia and may have been reaching out in vulnerability, hoping for kindness and support and it was at that moment he committed a terrible act.
In a written statement to the Department,[22] Mr Saeki acknowledges he has committed offences of a serious nature.
However, in setting out a chronology of his relationship with the victim, relevant to understanding the circumstances of the offending and its seriousness, Mr Saeki described an incident where he says the victim had told him of her concern about the size of her breasts, and he had offered to massage them, and the victim had agreed. Under cross-examination, Mr Saeki had said that his initial response to the victim's comment had been a joke, but he had then given in to sexual desire.
Mr Saeki further describes circumstances which were appropriately characterised under cross examination as suggesting that the victim to be a sexualised person, who had written and published a porn novel or cartoon inspired from [their] real sexual contacts. The purpose of conveying these alleged circumstances in a written statement to the Department is difficult to decipher. The details were not put forward specifically suggesting that the nature of the relationship was such that the seriousness was lessened, but perhaps from the overall context that is what was intended to have been conveyed.
The document of which these accounts form a part was properly a focus of cross examination. Another aspect of the document is Mr Saeki's account of how he disclosed his conduct to his wife in the presence of the victim at a meeting, at which time he apologised to both, and the victim shortly thereafter ceased working for the couple. That account however is not consistent with Mrs Saeki's account of the meeting as set out in a statement to Police,[23] or her evidence as to how she came to learn of the offending as she stated in her evidence to the Tribunal. The inconsistency was tested and confirmed. Mr Saeki's attempt to explain the inconsistency was unconvincing in my view.
For the purposes of understanding the seriousness of the offending, I place no weight on Mr Saeki's account of the relationship as conveyed in that document. The respondent submitted that I should reject the account because it was implausible, but I cannot form a view as to the inherent plausibility of the account that was put forward simply by reference to its contents. Instead, I place no weight on the account because it is not corroborated by any other source of information and is contradicted in the respect described. In many respects however I recognise that it is somewhat immaterial, certainly as to the existence of the offending and the convictions, but perhaps also to the seriousness of the overall circumstances of the offending.
I have formed my view as to the nature and seriousness of the offending primarily from the sentencing remarks, and the statement of facts, and having had regard to the Australian Government's view and the Australian community's view is that sexual offending against women is very serious regardless of the sentence imposed.
I must have regard to the sentence imposed by the courts for crimes, with the exception (relevantly) of crimes of a sexual nature against women. Although I do have regard to the Australian Government and the Australian Community's view that such crimes are very serious regardless of the sentence imposed, I note however that I am not prevented by the Direction in having regard to the sentence imposed. The sentencing judge in Mr Saeki's case specifically explained why he had decided to suspend Mr Saeki's sentence, doing so because he believed Mr Saeki was no significant risk and while nonetheless mentioning that Mr Saeki was being sentenced for serious conduct, reflective of a maximum penalty for rape of life in jail. I have had regard to the sentencing judge's remarks in this regard and the sentencing judge's willingness to suspend the sentence after 18 months had been served. I consider these remarks and this approach relevant in understanding the seriousness of the offending, notwithstanding that the Directions provide the sentence imposed by the court is not a matter I must have regard to in the context of a crime of a sexual nature against women.
I have information before me as to the impact of the offending on the victim. In the victim impact statement.[24] I have taken the entirety of the statement into account but do not reproduce details about the victim's background as it may tend to identify her. She says that she thought Mr Saeki was someone she could trust, but she no longer trusts people. She said she felt dirty, scared and alone. She now sees a psychologist once a week to cope with strong feelings of sadness. She also has anxiety. She is unable to get close to other men and has flashbacks. I am satisfied that Mr Saeki was afforded procedural fairness in addressing this information which was in the hearing bundle, and indeed note the content of his apology (albeit addressed to the Tribunal) that engages with these matters.
An issue arose in the course of the proceedings as to whether Mr Saeki had paid compensation, or was willing to pay compensation, to the victim. Proceedings of some nature were commenced in the Queensland Human Rights Commission of which I have only evidence that the file has been closed without proceeding. Mr Saeki was unwilling to discuss those proceedings as he believed he may be bound by confidentiality provisions. Mrs Saeki said that no compensation had been paid. Mr Saeki referred to a workers compensation payment, but there is no further evidence in that regard. On the basis of Mrs Saeki's evidence, I find that no financial compensation has been paid to the victim by Mr Saeki, but I hesitate to draw an adverse inference in this regard given the proceedings in the Human Rights Commission were initiated and have concluded in circumstances that are unknown to me.
I have taken into account the frequency of Mr Saeki's offending and the cumulative effect of repeat offending. In this regard, I note the course of offending occurred over the course of nearly two years. The sentencing judge observed it to be repeated conduct. It cannot be said therefore that the offending was isolated or one-off. I also note, as did the sentencing judge, that Mr Saeki otherwise has no criminal history or 'incursions into the law.'[25] I accept the respondent's submission that the course of offending shows a trend of increasing seriousness in that the count of rape was preceded by a number of counts of sexual assault occurring over the previous years, but I also recognise that the offending ceased from April 2019, a number of years before the matter was reported to Police. In this regard, the trend of increasing seriousness that can be seen in the counts leading to convictions, but it then stops abruptly.
There is no evidence that Mr Saeki has provided false or misleading information to the Department, has been previously warned of the consequences of further offending on his migration status (there is no previous offending in that regard), and I note the offending was committed in Australia.
Having regard to all the matters provided for in cl.8.1.1 of the Direction, I view the offending as serious, relying in that regard on the finding of the sentencing judge that Mr Saeki had an honest belief of consent, albeit an unreasonable one formed through presumptive arrogance.
My view that the offending should be described as 'serious' rather than 'very serious' further recognises that the offending behaviour, insofar as it would amount to sexual assault or rape, appears to have stopped when the unwanted nature of the behaviour was clearly conveyed. In this regard, I note the last conviction pertains to an event in March 2019, and the victim did not leave the employment until February 2022, although I do note the statement of facts indicates Mr Saeki would hug the victim daily until February 2022.
The offending was not violent, in the sense of causing physical injury, and the sentencing judge does not otherwise point to any circumstances of aggravation other than those that form the basis for concluding that the honest belief in consent was not reasonable. My view that the offending should be described as serious rather than very serious simply recognises that there is scope for sexual offending against women to have varying degrees of seriousness, and that it is an error of law to conclude that simply because it is a sexual offence against a woman that it is 'accordingly' very serious.
With those observations in mind however, I consider the offending to be serious in every sense of that phrase. In particular, I have taken into account the vulnerabilities of the victim and the impact of the offending on her. I also take into account that although the sentencing judge considered it appropriate to suspend the sentence after 18 months, the sentencing judge further observed that the offending was sufficiently serious that a period of time in prison was to be served.

[68]

The sentencing judge's reference to accepting the opinion that there is no indication that Mr Saeki is likely to reoffend is a reference to the report of Dr Richardson of 21 August 2023.[30] I note that on 30 July 2025 Mr Saeki communicated with Dr Richardson requesting her to give evidence in the proceedings, notwithstanding the question of having any expert witness available had been raised at the telephone directions hearing on 23 June 2025. Dr Richardson had responded to advise she was unavailable on the dates of the hearing and in any event did not believe she could provide any further information other than which was set out in her report.
I have taken into account the respondent's criticisms of the expert evidence, noting that there is some difficulty in identifying precisely what was considered to be the factors that led to the offending. Mr Saeki himself has identified a problem with pornography at the time, and a sense that there was a lack of attention from his wife, and stress, as the causative factors for the offending, but these factors are not expressly identified as such by the expert report. The respondent submits that it would follow therefore that if the causes of the offending haven't been identified, it is difficult to be confident that they have been addressed. While that is so, Mr Saeki's self-identification of potential causative factors does tend to show a degree of insightfulness on his part, consistent with his expressions of remorse.
I note the assessment was one-off and via Skype. The sources of information documented to be available to Dr Richardson were limited to the indictment and the statement of facts. Dr Richardson's assessment appears to carry a proviso that cultural issues may have influenced Mr Saeki's behaviour at the time of offending, she had no experience in Japanese culture and it was difficult for her to determine whether cultural issues impacted at the time of offending or at interview.
Dr Richardson noted that Mr Saeki had been diagnosed by a GP with major depressive disorder, was taking medication and was engaged in therapy. Dr Richardson appears to have administered a number of psychometric assessments, which provided no evidence of psychopathic or antisocial tendencies, and were consistent with Mr Saeki's reported difficulties in his relationship with his wife at the time having manifested in abhorrent behaviour for which he was regretful and produced significant distress in his current situation.
Dr Richardson confirmed the diagnosis for major depressive disorder, and concluded with respect to his forensic profile that there was no indication that Mr Saeki was likely to reoffend, particularly if he continued his therapeutic interventions. Dr Richardson noted Mr Saeki's expressions of remorse and speculates that his behaviour may have been driven by cultural norms and a lack of understanding of Australian social mores. Dr Richardson recommended that Mr Saeki not be sentenced to a term of imprisonment as it would negatively impact his therapy.
Having regard to Dr Richardson's expressed caution about her level of knowledge of Japanese culture, and also my own ignorance in that regard, I do not place any weight on Dr Richardson's speculation that Mr Saeki's behaviour was driven by Japanese cultural norms. I have no basis to assume that Mr Saeki's behaviour would fall within a norm of behaviour in Japan or would in any sense be less criminal. Similarly, and for completeness, in the course of his submissions Mr Saeki made a number of references to his belief that the law in Japan had changed recently so that laws around consent approached similarity to those in Australia. Those remarks are not supported by any evidence as to Japanese law, and I place no weight on those remarks.
I do however accept, as did the sentencing judge, that Mr Saeki's psychological profile points away from any risk of repeat offending. The factors leading to Mr Saeki's offending appear to have been situational, with the consequences for the offending both practically and psychologically operating as significant deterrence for future offending, best described by the sentencing judge as "lessons, very hard lessons, have been learnt".
Turning to Mr Saeki's rehabilitative activities, Mr Saeki initially declined to be placed on a waitlist for a sexual offending program on 18 October 2023.[31] In cross examination, Mr Saeki explained that he had done this because participating in the program would require him to be transferred from Logan Glen to another facility some distance from Cairns where he would not be near to family support. He also said he had heard prisoners had been harmed at the other prison and did not wish to go there. On 11 December 2023 Mr Saeki lodged a form expressing that he had changed his mind in that regard as his visa circumstances had changed.[32] In this way it appears that Mr Saeki recognised that not participating in that rehabilitative program may be viewed adversely in his request to have the decision to cancel his visa revoked. Rather than drawing an adverse inference from Mr Saeki's initial withdrawal from the waitlist for a sexual offenders program in the circumstances he has recounted, I have focussed on what he has done.
Mr Saeki has participated in a number of individual interventions by a psychologist, referred to as 'OIU Individual Intervention Referral', having been given approval to participate in 10 such sessions on 18 September 2024.[33] Prison records show that the treatment in this regard has not been completed, with the course results being marked as 'incomplete' on 14 October 2024.[34] In cross examination, Mr Saeki said he did not know the circumstances in which his participation in this programme ceased. He believes he completed the program, and he was promised a report summarising his successful engagement in the course that this has not been provided, and he has been ignored when trying to follow it up. No summary or report from this rehabilitative program has been returned under the summons issued to the Department of Corrections.
Prison records also contain the results of a Static-99R Assessment conducted on 11 October 2023 concluding Mr Saeki was in the 'low' risk category, with a score of '1' (the lowest score possible).[35] Another actuarial report, the RoR-PV administered on 20 September 2023 arrived at similar conclusions.[36] Neither of these reports provide particularly compelling evidence given the superficial and actuarial nature of the assessment, but they do support that Mr Saeki represents a low risk of reoffending.
Ultimately, I am satisfied to conclude on all the evidence available that Mr Saeki presents a low risk of reoffending. This was the view adopted by the sentencing judge in accepting the opinion offered by the psychologist, notwithstanding the limitations identified about the psychologists report. Furthermore, although I have limited information about Mr Saeki's participation in the OIU Individual Intervention program, or the circumstances in which his participation ceased, given Mr Saeki was already assessed as a low risk at the time of sentencing, I consider that the participation in that program could have only assisted him and further reduced any likelihood of reoffending, particularly as it appears from course content materials that Mr Saeki has provided that a focus of the programme was on notions of consent. In his submissions, Mr Saeki was keen to recount what he had learned about notions of consent from his engagement with the program.
I consider on balance that the evidence that is available regarding psychological assessment and profiles, and engagement in rehabilitative programs supports a conclusion that Mr Saeki's risk of reoffending is low, indeed so low that it may be safely disregarded when considering the protection of the Australian community.
Finally I note other aspects of the evidence that tends to support the conclusion that Mr Saeki's risk of reoffending is low. I note that Mr Saeki pleaded guilty to the offending and appears to have engaged appropriately with the justice system in relation to the process leading to his convictions. I note that Mr Saeki has expressed remorse, indeed intense remorse, in a way that was accepted by the sentencing judge as genuine. My impression is also that the expressions of remorse Mr Saeki has made in the context of his evidence to the Tribunal were genuine.
Having given consideration to the nature and seriousness of Mr Saeki's conduct to date, which I have assessed as serious, and the risk to the Australian community should Mr Saeki commit further offences or engage in other serious conduct, which I have assessed as low on the basis of the low likelihood that Mr Saeki will commit similar offences in the future, I return to the primary consideration of the protection of the Australian community.
I note the principle set out at 5.2(8) of the Directions. While I find the offending to be serious, it is not of a nature where strong countervailing considerations will be insufficient to justify revoking the decision to cancel the visa. Notwithstanding that Mr Saeki's offending is serious, I consider he presents a low risk to the community, and the weight to be attached to the need to protect the community from harm from criminal activity or other serious conduct is reduced accordingly. However, despite those observations, the consideration of protecting the Australian community weighs against revoking the decision to cancel the visa, and in my view substantially so in the overall evaluative task I am undertaking.

[77]

Mrs Saeki is a citizen of Japan and a permanent resident of Australia. She continues to reside in the family home in Cairns.
Mrs Saeki and Mr Saeki met in 1998 and have been together since 2002. They married in 2003 and moved to Australia together.[37] Their son was born in Australia in 2013, and they opened their restaurant together in Cairns in April 2014, closing it in December 2022 after Mr Saeki's arrest.[38]
Mr Saeki says Mrs Saeki is currently working as much as possible to make end meet in his absence, and she is struggling without him.[39]
In her statement,[40] Mrs Saeki says that Mr Saeki has sincerely apologised to her, and she and her son had hoped he would return home in February 2025. Mrs Saeki describes her household as being under immense strain. She says that if Mr Saeki does not return home she will be unable to keep up with mortgage repayments and other household expenditure. Mrs Saeki says that her family has built its life in Australia.
In her oral evidence to the Tribunal, Mrs Saeki confirmed that her parents live in Japan and she maintains contact with them, and the family would stay with them on their regular visits to Japan. Her mother has dementia, and she is worried about her father. She also has a brother who lives in Japan. In relation to what would happen if Mr Saeki's visa remained cancelled and he was required to leave Australia, Mrs Saeki said she would not return to live in Japan. She justified this answer by explaining that it would have an adverse impact on her son, who was born and has been raised in Australia. She said that she is concerned about his education in Japan as although he can speak Japanese, he cannot write in Japanese.
Mrs Saeki was cross examined on a document setting out financial details in the running of the household. It was a very unusual document in that it purported to run an account of the amount of money Mr Saeki owed her for such things as the care she provided for their son and day to day household expenditure. In explaining the purpose of the document, Ms Saeki said it was prepared for the purpose of the matter that had come before the Queensland Human Rights Commission.[41] In response to my questions, Ms Saeki explained that she didn't actually expect Mr Saeki to repay her for money spent raising their son or running the household, and they share all expenses as couples do. The document does however establish that Mr Saeki and Mrs Saeki have established a home, and I accept that Mrs Saeki is currently struggling to make ends meet financially in circumstances where Mr Saeki is not earning an income.
Mrs Saeki confirmed that she intends to continue in her marriage to Mr Saeki and she has forgiven him. Much of her evidence engaged with concern for her son, and it was clear that she is motivated to protecting and restoring her family unit in Australia. When asked what other sources of social support she had in Australia, Ms Saeki mentioned she had friends but had not told them about this matter, and was lonely. When asked if it would make any difference for her marriage if Mr Saeki was required to return to Japan, Mrs Saeki said she would remain married to him either way. When asked if she would travel to see Mr Saeki, Mrs Saeki said she is only thinking about Mr Saeki coming home. When it was put to her in cross examination that her family could stay together if she and her son relocated to Japan, and she would also be closer to her parents, Mrs Saeki restated her concerns about the impact this would have on her son's schooling and the difficulty he would face because he cannot read or write in Japanese. She did not want to force him into a different environment. Indeed, I noticed much of the questioning exploring the impact of the decision on Mrs Saeki was redirected in her answers to the impact on her son. It was clear to me that this was Mrs Saeki's primary concern.
Mrs Saeki did not want to discuss the circumstances of the offending, the victim or how she came to learn of the offending. She said the topic caused her panic attacks. When pressed however, Mrs Saeki said she learned of the offending only after Mr Saeki's arrest, and her evidence differed from Mr Saeki's account where he had described a meeting between himself, the victim and Mrs Saeki where the offending was revealed and apologies offered.
In light of Mrs Saeki's evidence, and despite submissions from the respondent emphasising that returning to Japan to keep the family unit united may not necessarily involve significant hardship, I am satisfied that if I do not revoke the visa cancellation decision, Mrs Saeki would remain in Australia with her son separated from Mr Saeki. I accept this will cause significant emotional and financial difficulties that will be ameliorated only to a limited extent by the capacity to travel to Japan for visits.
I accept that the impact of a decision to refuse to revoke the decision to cancel the visa would have a highly adverse impact on Mrs Saeki.
Mr Saeki migrated to Australia as an adult, so it cannot be said that he arrived in Australia as a young child. However, Mr Saeki has resided in Australia for a very substantial time, and during that time contributed positively to the Australian community through employment and establishing a successful business that employed many people during its period of operation. I have had regard to Mr Saeki's letter of 3 July 2025,[42] describing the success of his restaurant, the awards it had won and describing how many people it had employed over the years.
The respondent submits that the positive weight that may be attached to Mr Saeki's contribution to the Australian community through operating his business should be diminished given it was through the business that Mr Saeki came into contact with the victim. While there is force in that observation, I have nonetheless concluded that Mr Saeki has spent a substantial amount of time contributing positively to the Australian community. I have taken into account the evidence Mr Saeki has provided regarding his business' sponsorship of community events.[43]
As observed by the respondent in submissions, outside his immediate family, there is otherwise very limited evidence of support from friends, associates or the wider community I have had regard to a statement of Ms [B],[44] a customer and acquaintance of the family. Ms [B] is concerned about the impact of any visa cancellation on Mr Saeki's son and the family unit as a whole. In replying to this submission, Mr Saeki explained that most of the people in the community he dealt with were suppliers and business people. His crime and conviction had been reported in the local press, and he assumed those people would not want to provide letters of support.
Another written statement from a Mr [T] was provided.[45] The document is untranslated from Japanese, but the interpreter read and interpreted it. Mr Saeki said he had met Mr [T], a Jehovah's Witness, many years ago when working as a bus driver in Tasmania. The statement was religious in nature and did not engage with this consideration.
In conclusion as to the strength nature and duration of Mr Saeki's ties to Australia, I consider that his immediate family members, and in particular his spouse will be very adversely impacted by a decision not to revoke the decision to cancel his visa. I accept that Mr Saeki has resided in Australia for a very long time, and through his employment and business his other ties to Australia are substantial, albeit no doubt his standing in the community now diminished. Nonetheless, I take into account the evidence of his long-term positive contribution to the community.
I consider that the strength, nature and duration of Mr Saeki's ties to Australia weigh somewhat in favour of revoking the decision to cancel his visa, and the impact on Mrs Saeki heavily so.

[79]

Paragraph 8.4 of Direction No 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made.
Mr Saeki's son Child A's interests will be affected by the decision. He is an Australian citizen who has resided in Australia his entire life, attending primary school in Cairns. Mr Saeki did not identify any other minor children who will be affected by the decision.
Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include:[46]
- the nature and duration of the relationship between the child and the non-citizen, noting 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;
- 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;
- 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;
- 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;
- whether there are other persons who already fulfil a parental role in relation to the child;
- any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
- 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; and
- evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
I am satisfied that Mr Saeki and Child A's relationship is parental in nature and close. Both Mr Saeki and Mrs Saeki described a close and intact family unit with both parents closely involved in raising Child A. Mr Saeki said that he and Mrs Saeki had decided that it was undesirable for Child A to visit him in prison, but he has maintained contact via video calls, although Child A is shy during these calls.
Although I accept that Mr Saeki's imprisonment and subsequent immigration detention has generated a long period of physical absence, it is in the context of what has previously been a close, engaged and continuing parental relationship. Mr Saeki described in some detail the outdoor activities he and his son enjoyed together prior to his incarceration.
I consider that given that background to the relationship, and the concern expressed by both Mr Saeki and Mrs Saeki to preserve the family, I consider that Mr Saeki is likely to provide a positive parental role in the future. Mrs Saeki has said that she has forgiven Mr Saeki and intends to preserve her marriage. Child A is currently 11 years old. I consider that Mr Saeki is likely to play a positive parental role in the future during Child A's formative adolescent years.
I have no evidence addressing any particular impact of Mr Saeki's offending on Child A beyond the impact of Mr Saeki's imprisonment. In this regard, it is clear from emails and correspondence sent by Child A to his father in prison that Child A misses his father, and looks forward to his return.[47]
I infer that the likely effect of separation from Mr Saeki would be profoundly adverse, even taking into account the ability of Child A and Mr Saeki to maintain contact electronically and by regular visits of Child A to Japan. While that capacity to maintain contact ameliorates the adverse effect, I am conscious that the relationship between Mr Saeki and Child A is a close parental one, and Child A is relatively young. I note Mr Saeki's evidence that Child A has been disinclined to communicate effectively over video calls while he has been in prison on account of shyness. Ultimately I conclude that the likely effect of physical separation will be profoundly adverse on what is otherwise a very positive and close parental relationship.
I have also reflected on the submissions advanced by the respondent suggesting that in circumstances where the extended family is resident in Japan, Child A and Mrs Saeki have regularly visited Japan and where Child A is fluent in spoken Japanese, the hardships that would be faced in the family relocating to Japan may not be so great. I cannot contradict the observations of the Respondent in that regard, other than perhaps accepting that adjustment from the Australian education system to the Japanese education system in circumstances of undeveloped literacy in written Japanese would be difficult (albeit not insurmountable). However, Mrs Saeki's clear evidence was that this would not happen, and she was committed to raising Child A in Australia, even if it meant separation from Mr Saeki. I accept that her intentions in that regard were genuinely expressed, and I consider I must reflect on the impact of any decision not to revoke the cancellation of the visa in that context.
I accept that Mrs Saeki also fulfills a parental role in respect of Child A and would continue to do so regardless of the decision I reach. It was however clear in Mrs Saeki's evidence that she is somewhat isolated and had relied on Mr Saeki previously in that regard.
It is clear enough from examining correspondence authored by Child A to his father to infer that his views are consistent with the decision to cancel the visa being revoked. I give weight to those views, and accept that Child A desires for his parents and family to be reunited in Australia.
There is no evidence that Child A has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by Mr Saeki, or has otherwise been abused or neglected by him in any way, whether physically, sexually or mentally. There is no evidence the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. I note Mrs Saeki had described Child A as a strong child in that regard.
I find that Child A's best interests are served by revoking the decision to cancel Mr Saeki's visa so as to permit Mr Saeki to remain in Australia with Child A. Child A's best interests in this regard weigh very heavily in favour of revoking the decision to cancel Mr Saeki's visa in the overall evaluative task I am undertaking.

[80]

The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction No 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Direction No 110 notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen's visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)-(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered 'very seriously' or 'serious'.
Paragraph 8.5(3) of Direction No 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the 'norm' expressed in para 8.5(1), which refers to the 'unacceptable risk' of conduct being engaged in. This makes it clear that a 'measureable [sic] risk' of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached.
Mr Saeki has engaged in conduct identified in paragraphs 8.5(2)(c) by virtue of his convictions in that he has engaged in conduct amounting to the commission of serious sexual crime against a woman.
I find the Australian community would expect that Mr Saeki's visa would remain cancelled on the basis of the expressed norms provided for in the Direction. I consider that the expectation of the Australian community weighs against revocation in the overall evaluative task I am undertaking.

[83]

The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.[48]
While this consideration in Direction No 110 refers to non-refoulement obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant's visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
- Unlawful status;
- The likelihood of becoming subject to detention and/or removal;[49]
- Refusal of other visa applications and cancellation of other visas;[50]
- A prohibition on applying for other visas;[51] and
- Periods of exclusion and special return criteria may apply.[52]
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[53] Under section 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under section 198 of the Act.
If the cancellation of the visa is not revoked Mr Saeki will continue to be detained under section 189 of the Act for the purpose of effecting removal and will be removed from Australia to Japan as soon as practicable under section 198 of the Act.
As his country of nationality is Japan and there is no evidence of any practical difficulty in effecting removal to Japan, I am satisfied that the legal consequences of a decision not to revoke the visa cancellation is that Mr Saeki will be promptly removed to Japan.
Section 501E of the Act operates to very substantially restrict Mr Saeki's ability to apply for another visa while in the migration zone. Furthermore, certain visas (indeed most classes of visa) are subject to special return criteria 5001(c) which provides for 'permanent' exclusion if a visa has previously been cancelled under section 501 of the Act and there has been no revocation under section 501CA, although special return criteria cease to apply if the Minister acts personally to grant a permanent visa to a person whose visa was cancelled under section 501 of the Act.
In Rano v Minister for Home Affairs, Minister for Cyber Security,[54] the Court concluded that the applicant's indefinite exclusion from travel to, entry and (or) remaining in Australia was a legal consequence of a decision to cancel his visa...and [a]ccordingly was a consideration the Minister was bound to take into account (at [14]). However, the Court in Rano recognised that the outcome was an obvious outcome and was plainly intended from the overall statutory scheme. It was not necessary to expressly mention it because it looms large and forms part of the implicit, if not explicit, assumption and backdrop against which all considerations are to be evaluated[55].
As the practical operation of these provisions are a legal consequence of a decision not to revoke a visa cancellation, and in any event, I record for completeness that I am acutely aware of them and take them into account.
Mr Saeki has not raised any suggestion that any non-refoulement or protection obligations may be engaged in respect of him or his circumstances.

[86]

Mr Saeki is 50 years of age, and has been diagnosed with a major depressive illness. He explained in his evidence however that he has ceased to take the medication prescribed for that condition. From the context of the medical evidence of the diagnosis of that condition, the condition appears to be reactive of his circumstances and situational. There is otherwise no evidence of any chronic or acute medical conditions that may amount to an impediment if removed.
I infer that removal to Japan, with the consequential separation from him wife and son, is likely to amount to a stressor that could deepen the symptoms of the major depressive disorder that has been diagnosed. I accept that this consequent would amount to an impediment to removal to Japan, but I consider that the impact would be amenable to treatment, having regard to Japan's advanced healthcare system. There is nothing in the evidence to suggest that Mr Saeki would be unable to access mental health treatment and therapy in Japan should he need it. Nonetheless, I accept that removal as a psycho-emotional shock for a person diagnosed with a major depressive illness amounts to an impediment, at least in the short term, that may impact on him establishing himself in Japan. As to whether it would produce an impediment in maintaining basic living standards, I will take into account the evidence of social support below.
There are no substantial language or cultural barriers. Mr Saeki migrated to Australia in his 30s, having been educated in, lived and worked in Japan up until that time. There is also evidence of somewhat regular return visits to Japan during the period of Mr Saeki's residence in Australia.
As to social support, Mr Saeki's parents and parents-in-law reside in Japan, and have previously demonstrated a willingness to offer support and assistance to Mr Saeki. His parents, for example, extended financial support to Mr Saeki in establishing his business, although Mr Saeki gave evidence that recently his mother has asked for that support to be returned. The evidence in this regard was not so clear as to justify a finding that Mr Saeki is estranged from his parents, and I am not satisfied that he is estranged. I am satisfied that he would be able to access some degree of support from his parents in Japan should he require it in order to maintain basic living standards.
Similarly, in relation to his parents in law, I note that he and Mrs Saeki have typically stayed with his parents in law on visits to Japan. Given Mrs Saeki's expressed commitment to the marriage despite what has happened, I am satisfied that Mr Saeki would be able to access a degree of social support from his parents-in-law to maintain basic living standards should he require it.
In any event, Mr Saeki has provided a copy of his Curriculum Vitae which demonstrates that he was engaged in occupations in Japan requiring technical qualifications in electrical engineering.[56] He has previously held a license as an electrician in Japan, and in his evidence said that he was planning to be apprenticed to an electrician in Australia if his visa cancellation were revoked. It should also be remembered that Mr Saeki established and operated a successful restaurant business in Australia for many years, and is fluent in English and Japanese. In reflecting on Mr Saeki's skills and qualifications, there is no good reasons to suspect that in the medium to long term he would not be able to support himself in Japan through his own work.
In any event, I also consider that Mr Saeki would be able to access medical and economic support in Japan in the context of what is generally available to citizens of Japan in Japan.
In this way, I consider that the extent of impediments if removed are limited to the inevitable psycho-emotional shock of removal and separation from his family in Australia on Mr Saeki who has an existing diagnosis of major depressive illness.
This consideration weighs in favour of revoking the decision to cancel the visa, but carries minimal weight in my view.

Saeki and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1407 (12 August 2025)

At a glance

Court

Decision date

Source

Judgment (111 paragraphs)

Saeki and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1407 (12 August 2025)

Legislation Cited (2)

Cases Cited (1)