" .........it is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under s 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.

There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed".[4]

1. The Applicant's insistence that he is innocent of crimes, the decided particulars of which this Tribunal is bound to accept as established facts, necessarily renders him an unreliable witness. It reflects poorly on his credit and his character. This divergence between what the Tribunal is bound to accept and what the Applicant says, has serious implications.

1. For example, the Applicant's credibility as a witness is an important issue. It goes to not only an assessment of his evidence and his character, but also to the difficult task of assessing his risk of further offending.
2. The Applicant did not call any witnesses.

1. The Applicant was born in the Cook Islands in 1987.[5] He is 38 years old. He is a citizen of New Zealand.
2. He grew up with a large family. He had and still has a close relationship with them. As a child, he was primarily cared for by his great aunt.[6] He still has many family members there including his parents, his siblings and their families, his adult daughter and his infant grandson.
3. In 1995, the Applicant's wife, (Ms. ET) was born in the Cook Islands. She is also a citizen of New Zealand.[7]
4. Between 13 January and 25 January 2002, the Applicant visited Australia.[8]
5. Between 26 November and 20 December 2004, the Applicant again visited Australia.[9]
6. Also, in about 2004, the Applicant's then girlfriend gave birth to a girl. He was the child's biological father. The child was taken into his parent's care. They have brought her up. She remains with them on the Cook Islands.[10] She now cares for them and lives with them along with her infant son.
7. The Applicant next arrived in Australia on 5 November 2011.[11] He was 24 years old at the time. He has remained here since then. He was granted the Visa at that time.[12]
8. The Applicant commenced a relationship with Ms. ET in December 2012.[13] Her family strongly objected to this relationship. According to him, when she chose to continue the relationship, they "disowned" her. When she became pregnant with their first child however, there was a reconciliation. This continued until the Applicant was charged with offences against his wife's younger sisters (Victim Child 1 ("VC1") and Victim Child 2 ("VC2"). The Applicant maintains that his wife's family have always disliked their relationship and that this was a motivation for false allegations of sexual offending being made against him.
9. In 2013, the Applicant's daughter Child A was born.[14] She is now 12 years old.
10. In 2014, the Applicant's son Child B was born.[15] He is now 11 years old.
11. Between 31 March and 1 November 2015, the Applicant committed indecency offences.[16]
12. In April 2015, Ms.ET and the Applicant were married.[17]
13. On 23 April 2015, the Applicant appeared in the Southport Magistrates Court charged with several offences of 'stealing by clerks and servants". No convictions were recorded. He was fined $800 and ordered to make restitution in the sum of $274.13.[18] This offending is of no real significance in the circumstances of this case.
14. On 28 September 2015, the Applicant appeared in the Southport Magistrates Court charged with being intoxicated in a public place. No conviction was recorded. He was fined $50.[19] This offending is also of no real significance in the circumstances of this case.
15. In 2015, the Applicant's daughter Child C was born.[20] She is now 10 years old.
16. In 2017, the Applicant's daughter Child D was born.[21] She is now 8 years old.
17. Between 31 March and 30 November 2020, the Applicant committed indecency offences.[22]
18. On 29 March 2021, the Applicant's offending was reported to police.[23] On the same day, Police from Gold Coast CPIU took a video recorded statement from VC1.[24] She disclosed and particularised 2 separate contact offences committed by the Applicant. The Qld Police Court brief states:

"On a date between 1 September 2020 and 30 November 2020, the victim child was sleeping over at the defendant's home.

At about 5:00am in the morning, the victim child, dressed in a grey singlet and rugby shorts was sleeping on a single bed in the second bedroom of the townhouse, the victim child has awoken to the defendant, dressed in an orange Max Steel Work shirt and jean style shorts, pulling her blankets away from her, before rubbing and squeezing the victim child's breasts.

The defendant has then run his hand down the victim child's chest and stomach and legs, pushing the victim child's legs apart, the defendant has then pulled the victim child's shorts down to her ankles, removing the shorts from her left leg them hanging from the victim's right ankle the defendant has then shoved his finger roughly into the victim child's vagina, causing the victim child what she considered ten out of ten pain.

The defendant continued to do this for a minute as the victim child lay there too scared to move.

As he did this the defendant shook the victim child, and putting his face up to the victim child's face, whispering the victim child's name. The victim child stated she could smell the defendant's breath, and his breath was foul like trash.

The defendant has then licked the victim child's vagina for about 30 seconds before leaving the room.

The victim child has heard the defendant walking downstairs. The victim child has then run to the toilet, where she has locked herself in, until she has heard the defendant leave for work.

This occurred around the time the victim child was in grade 3 (approx. 2013) at [redacted]. This was the defendant's home address at the time and was next door to the victim child's family home.

At about midday, the victim child was on a mattress in the loungeroom of the home, the defendant was also on the mattress, as was who was sound asleep.

The defendant was 'fake sleeping' making a fake snoring sound, as he did this, he moved his arm towards the victim child placing his hand inside the victim child's pants, from where he pushed his finger into the victim child's vagina.

The victim child has tried to move away from the defendant, but the defendant has been able stop this by grabbing the top of the victim child's pants.

On Sunday 4 April 2021 the defendant has attended an EROI at Southport Police Station, the defendant has again stated that he had tried to wake up the victim and has denied any sort of indecent dealing with the victim child."[25]

1. On 30 March 2021, Police from Gold Coast CPIU took a video recorded statement from VC 2.[26] She disclosed and particularised 1 contact offence committed by the Applicant.

"During this statement, the victim child has disclosed that around Easter 2015 the victim was at a sleepover at the defendant's home, she was in the main bedroom of the home, on a mattress at the foot of [redacted] and [the Applicant's] bed, where she was watching the movie Planes, her infant nephew [redacted] was also on the mattress. The defendant and [redacted] were on the bed. [Redacted] was asleep.

The defendant has moved towards the foot of the bed, where the victim child was within his reach. The victim child was laying on her side, the defendant has reached the victim child's hips, sliding his hand inside the victim child's pants and rubbing the outside of the victim's vagina, whilst trying to pull the victim child towards him and onto her back.

The defendant then moved his hand to the victim child's right breast, grabbing and squeezing at it before groping the victim's right buttock.

The victim child would try to roll back onto her side and away from the defendant, but the defendant had his hand on her hip, and would stop her from doing so.

The defendant continued to do this for about several minutes, before moving stopping and moving back into bed.

Shortly after, the victim child ran to the bathroom and then next door to her house, where she has jumped into bed with her mother.

The next day the defendant has been confronted by the victim's mother. At this time the defendant has denied the allegation stating that the victim child had been asleep, and sounded like she was having a nightmare, and he had just tried to wake her up.

On Sunday 4 April 2021 the defendant has attended an EROI at Southport Police Station, the defendant has again stated that he had tried to wake up the victim, and has denied any sort of indecent dealing with the victim child."[27]

1. Also, on 30 March the victim's mother, provided a statement to police. She said that she had confronted the Applicant about his conduct. He had denied it, claiming that there was a "ghost in the house" and that he had attempted to wake the victim.[28]
2. Police spoke with the Applicant on 4 April 2021. He denied any wrongdoing.[29]
3. On 19 April 2021, the Applicant attended in court on various charges.[30]
4. A letter dated 18 May 2021, the Qld. Dept. of Child Safety, Youth and Women says that after conducting an assessment, they did not think that the Applicant's children required protection from him.[31] The provenance of this correspondence was the subject of some uncertainty. The Applicant told the Tribunal, that QLD Corrections had told him, that the document was a forgery.[32]
5. I accept that the source of the document was the Applicant's wife, not the Applicant. She in turn says that it was given to her by Child Protection authorities. Unfortunately, the Tribunal does not have either the relevant Child Protection files, or the relevant Parole Board records. This gap in the material available to the Tribunal is unfortunate. It leaves to inference and speculation, what might otherwise have been matters of direct, primary evidence. The Applicant's wife was not called as a witness. All that can be said, is that the provenance of this document is uncertain. Later references in QLD Corrective Services notes, do however suggest that Child Protection authorities have serious concerns about the Applicant, at least as of 2025.[33]
6. This is an important issue, which may impact on the way the Direction is applied. For example, it may raise issues about where the Applicant could live, if he were to be returned to the Australian community. It may also impact on the weight to be given to the best interests of his minor children. This is discussed further below.
7. In 2021, the Applicant's daughter Child E was born.[34] She is now 4 years old.
8. The Crown statement of facts in the Applicant's criminal trial relevantly state:

2. The defendant (born [redacted] 1987) is charged on a single indictment with seven sexual offences alleged to have been committed against two different complainants, twin sisters [VC1] and [VC2] (born [redacted]). The defendant is married to the complainants' sister, [redacted].

3. Counts 1 and 5-7 involve [VC1] and Counts 2-4 involve [VC2].

4. Count l occurred on a date unknown between the 1 January 2013 and the 31 December 2014, when [VC1] was aged 7-9 years. The defendant was aged 25-27 years.

5. Counts 2 to 4 collectively occurred on a date unknown between 31 March 2015 and l November 2015, when [VC2] was aged 9 years. The defendant was aged 27-28 years.

6. Counts 5 to 7 collectively occurred on a date unknown between 31 March 2020 and the 30 November 2020, when [VC1] was aged 14-15 years. The defendant was aged 32-33 years.

7. Counts 1 -4 occurred at the defendant's house in Labrador. At this time, he and his wife resided next door to the complainant children. Counts 5 - 8 occurred at the defendant's house at Arundel.

8. The acts of the defendant which are alleged in respect of each of the counts can be summarised as follows (my emphasis):

[VC1] was lying on a mattress in the loungeroom at the defendant's house with the defendant and her sister, [Applicant's wife]. [Applicant's wife] was asleep, the defendant was lying next to her, and [VC1] was lying next to the defendant.' She had a blanket over her. The defendant was facing [VC1]. He had his eyes closed and was making snoring noises. The defendant moved his arm towards [VC1] and placed his hand inside her shorts. He inserted two fingers into her vagina.

She tried to move away but the defendant grabbed her leg, preventing her from moving away.

Counts 2-4 - Indecent treatment [VC2] of a child under 16, under 12, under care

[VC2] was sleeping at the defendant's house in the main bedroom on a mattress at the foot of the defendant's bed. The defendant's infant son was on the mattress with [VC2]. The defendant moved towards the foot of the bed. [VC2] was falling asleep. She was lying on her side facing away from the bed and towards the TV, when the defendant reached down and pulled her toward him, forcing her on to her back. [VC2] tried to turn away from the defendant, but the defendant was holding her hip, preventing her from moving away. The defendant moved his hand from [VC2]'s hip down inside her pants towards her vagina. His fingers were on her vagina. He rubbed the outside of her vagina, between her 'vaginal lips' with his fingers. (Count 2). He pulled his hand out of her pants. He put his hand underneath her shitt, grabbed and 'squished' her right breast, under her shirt (Count 3). The defendant moved his hand to [VC2]'s buttocks and 'squished' her right buttock, grabbing and groping at it. (Count 4). The defendant's fingers were rough.

Counts 5-7 - Indecent treatment of a child under 16, under care

[VC1] was sleeping at the defendant's house. She slept on a single bed in the children's bedroom. The defendant's four children were also in the room. At about 5am, the defendant entered the room and pulled the blanket off [VC1]. He touched and squeezed her breasts, under her shirt. (Count 5). He slid his hand down her body and pulled her pants down. Her pants were around her ankle. He spread [VC1]'s legs and inserted two fingers into her vagina for about one minute. It was rough, just shoving it in. (Count 6). The defendant licked [VC1]'s vagina for 20-30 seconds. (Count 7) The defendant tried to wake the [VC1], but she stayed still until it was over. He kept touching her, was shaking her, and whispering her name. His face was close to her face.

9. The following similarities can be identified in the complainants' evidence:

(c) Each child was pre-pubescent and of a similar age when the offending commenced, aged between 7 and 9 years.

(d) The offending occurred at the defendant's house.

(e) His relationship to each child was identical - he was their brother-in-law and in a position of trust and authority.

(f) On the respective occasions, the complainants were under his care.

(g) He committed the offending against each complainant in similar circumstances - while they were lying on a mattress, usually in a bedroom.

(h) He committed the offending in a brazen and risk-taking way - in close proximity to other family members, who were sleeping in the same room.

(i) Both complainants complained about the following conduct:

i. The focus on their vaginal area, with touching skin on skin (although he goes further with [VC1] and penetrates her vagina with his fingers).

ii. The focus on their breasts, by touching and squeezing them, skin on skin.

G) When both complainants tried to resist him, he used force to stop them moving away from him.

(k) He first offended against [VC1] when she was aged between 7 and 9 years. He offended against [VC2] when she was aged 9 years. He did not re-offend against [VC2] after she reported it to her parents.

(I) The offending never escalated to penile intercourse.

(m) The offending never involved threats or violence beyond the force used to stop each complainant from moving away from his touch.

10. It is submitted that these circumstances demonstrate that there is a pattern or an underlying unity between the circumstances of the facts relating to these two complainants. While the offending against [VC1] continued to include more significant contact offences that does not dimmish the underlying unity that exists. It demonstrates that the defendant had a sexual interest in female children under the age of 16 years, which commenced when those children were pre-pubescent, in the defendant's home, accessed through his familial relationship and characterised by features identified in paragraph [9] above.

1. The defendant sexually assaulted [VC1] on four occasions, however the complainant can only particularise two occasions.

Count 1-Rape on a date unknown between 1 January 2013 and 31 December 2014

2. On one occasion, when the complainant was 7 or 8 years old and in year three or four, the complainant was at the defendant's house in Labrador. At some stage in the afternoon, the complainant, defendant and [Applicant's wife] were lying on a mattress in the living room. [Applicant's wife] was asleep.

3. The defendant pretended to be asleep, making snoring sounds. As he did this, the defendant moved his arm towards the complainant and placed his hand inside her shorts. The defendant inserted his fingers into the complainant's vagina. He held onto her underwear and shorts. The complainant tried to move away from the defendant, but the defendant grabbed onto her leg, preventing her from moving.

Counts 5-7 - Indecent treatment of a child under 16 & Rape on a date unknown between 31 March and 30 November 2020

4. On another occasion, when the complainant was 14 years old, she slept over at the defendant's home in Arundel. The complainant was asleep on a single bed in one of the bedrooms. The defendant's children were also sleeping in the same room. At around 5am, the defendant entered the bedroom and pulled the blankets off the complainant.

5. The defendant touched and squeezed her breasts (count 5). He slid his hand down her body and pulled her pants down with his hands. Her pants were around her right ankle. The defendant moved the complainant's legs apart. He inserted his fingers into her vagina and the complainant describes it as rough and the defendant 'just shoving it in' (count 6). The complainant was in pain and describes it as 10 out of 10 pain. The defendant inserted his fingers into the complainant's vagina for about one minute. The defendant then licked the complainant's vagina for about 20 or 30 seconds (count 7).

6. During the offending, the defendant whispered her name, told her to wake up, shook her and touched her breasts, in an attempt to wake her up. The complainant was scared to move and pretended to be asleep. She stayed still until the defendant stopped offending against her.

7. The defendant left the room and went downstairs. The complainant ran to the toilet, locking herself inside until she heard the defendant leave for work. While in the toilet, the complainant called a friend, [redacted], and disclosed the offending.

Counts 2 - 4 - Indecent treatment of a child under 16 under 12 on a date unknown between 31 March and I November 2015

8. On one occasion, when the complainant was nine years old and in year five, she slept over at the defendant's house in Labrador. The complainant was sleeping in the main bedroom on a mattress at the foot of the defendant's bed. The defendant's infant son (complainant's nephew) was also on the mattress with the complainant. The defendant and [Applicant's wife] were on the main bed.

9. At some point during the night, the defendant moved towards the foot of the bed, where the complainant was within his reach. The complainant was lying on her side when the defendant reached down. The defendant pulled the complainant towards him and forced her onto her back. The complainant tried to turn away from the defendant, however the defendant was holding her hips, preventing her from moving.

10. The defendant touched the complainant's hips with his hand before sliding his hand inside her pants. He moved his hand towards her vagina and rubbed the outside of the complainant's vagina, on her 'vagina lips', with his fingers (count 2). He pulled his hands out of her pants.

11. The defendant put his hand underneath the complainant's shirt, and grabbed and squeezed the complainant's right breast (count 3). The defendant moved his hand to the complainant's buttocks and groped her right buttock (count 4).

12. For about 10 minutes, the defendant repeatedly moved between touching the complainant's vagina, breasts and buttocks.

13. When the defendant stopped touching the complainant and laid down in his bed to go to sleep, the complainant ran to the toilet before running home.

14. [VC2] told her mother that the defe11dant touched her vagina and buttocks the following day. Her mother encouraged [VC2] to disclose the offending to [Applicant's wife], her older sister and the defendant's partner, which she did.

15. That same day, the defendant barged into the complainant's home and confronted the complainant's mother. The defendant was defensive and denied touching the complainant. He told the complainant's mother, 'there was one night that there was a ghost that came in and the girls saw a ghost. It would have been that ghost that [VC2] saw or felt'. He went further to say that it was a ghost that touched [VC2]. The complainant's mother and father decided it was best for the complainant to let it go, so she could put it behind her.

16. In October 2020 while at school, [VC2] disclosed to [redacted] that the defendant had sexually assaulted her. This was the same friend that [VC1] called while in the bathroom immediately after the offending in counts 5 to 7. [redacted] then told [VC2] about [VC1]'s complaint. On this same day, [VC2] told her mother that the defendant had also sexually assaulted [VC1].

17. In March 2021, [VC1] told a teacher at school about the offending.

18. On 29 March 2021, police received a Child Protection Notification in relation to the complainants.

19. On 4 April 2021, police attended the defendant's home in Arundel. The defendant voluntarily attended Southport Police Station and participated in an interview with police. At the conclusion of the interview, the defendant was arrested and transported to Southport Watchhouse. He was released on bail.

20. In relation to the offending against [VC2], the defendant told police that he woke the complainant up by tapping her on the foot after she was crying in her sleep. He denied sexually assaulting the complainant.

21. [In relation to the offending against [VC1], the defendant told police, 'I don't remember doing such things to her like that, like going down on her, licking her vagina ... Don't remember doing such things because I am not the type of person to do such things '. The defendant did recall on one occasion hearing the complainant talking on the phone at 5am. The defendant denied the offending."[35]

1. On 6 October 2023, the Applicant was sentenced to 3 years and 3 months imprisonment for various offences, in the District Court of Queensland. The sentencing remarks state:

"HIS HONOUR: All right. [the Applicant], you have been convicted by a jury of three counts of indecent treatment of a child under 16 under 12 under care and two counts of indecent treatment of a child under 16 under 12, and one count of rape. These offences involve two complainants, both of whom were your nieces by marriage. One niece, at the time of the commission of the offence is the subject of counts 2, 3, and 4, was eight years of age. The other niece was 14 years of age - sorry, 10 years of age and the other niece was 14 years of age.

The offences occurred in respect of each complainant on two separate occasions. All of the offences involved a significant breach of trust. These two children were in your home at the time. You were entrusted to care for them, and you breached that trust in a significant way. Of course, you were also trusted by their parents as well, to care for these two girls. One of these offences occurred whilst the parents were in Brisbane with a very ill son.

The offending conduct involves you touching these children on the inside of clothing when they were lying on a mattress. It was brazen offending on each of the occasions. There were other persons present, albeit asleep. You demonstrated no remorse whatsoever for your conduct, and of course, you have been convicted of one offence of rape, that being count 6, which is an allegation that has been proved, of digital penetration and I accept the complainant's evidence when she described that that caused her some degree of pain.

No victim impact statements have been placed before the Court, but I readily conclude that this type of offending conduct from a trusted family member would have an adverse impact upon each child although to what degree I am unable to say. Of course, you committed these offences not only in breach of the trust of care that you had, but also in the sanctity of the home environment, albeit not their home, but it - a place that was like a second home to them as I understand the evidence. It is averred that each of the offences is domestic violence offence and I accept that is a correct averment in the circumstances which is in and of itself, in the circumstances of this matter, an aggravating circumstance.

Now, I note that you have shown no remorse. You have taken the matter to trial, which is your lawful right, and you are not to be punished more heavily because you have done that, but equally it means that the leniency that the Court might otherwise consider appropriate by virtue of your remorse and cooperation with the administration of justice is not a consideration of relevance in this matter.

This type of offending conduct, of course, is serious and considerations of general deterrence and, given that you have been convicted of this type of conduct in respect of two different children on two separate occasions, personal deterrence are relevant as is the imposition of a sentence which appropriately recognises public denunciation of such vile behaviour. You have no relevant criminal history and I do not take the criminal history you do have into account. It plays no role in the determination of sentence.

You are a married man. You have five children. The oldest is 10 and you are the sole provider for your family. As I understand it, you have a good employment record. You are currently in employment as a steel fixer somewhere - an area which you have now worked, as I understand it, for some considerable time. You suffer from a heart condition yourself, you tell me. Cardiomyopathy. Which can only be corrected via surgery, and you are currently on a waiting list in that regard. You tell me that you complied with your bail conditions and there is no evidence to the contrary. I note as well that you are not an Australian citizen, coming to Australia in 2010 from the Cook Islands. Which means, of course, that if a sentence in excess of 12 months' imprisonment is imposed, you have exposed yourself to the risk of deportation. This is at the conclusion of the sentence being served.

I have taken all of those matters into account, and I have taken into account the comparable decisions that I have been referred to during the course of submissions in arriving at what I consider to be the appropriate sentence. Quite obviously, count 6 is the most serious of the charges, that being the charge of rape and it seems to me to be appropriate to sentence you for that offence on the basis of the sentence reflecting the full criminality of all of the offences in imposing a sentence reflecting that feature in the most serious of the charges and that is what I will do. You have submitted that I should impose any sentence that does not involve actual imprisonment, but unfortunately for you, given the serious nature of the offending conduct, that is simply not a sentencing option which is appropriately available in a case such as this.

So the order of the Court is that on count 6, you are sentenced to three years, three months' imprisonment. On each of the remaining charges, you are sentenced to two years' imprisonment. Those terms of imprisonment are to be served concurrently. I will set your parole eligibility date after you have served a period of 19 months which makes it the 2nd of May 2025. Each of the offences is declared to be a domestic violence offence.

So you have been sentenced to three years, three months' imprisonment, [the Applicant]. You will not become eligible for parole until the 2nd of May. I appreciate that you are the sole provider for your family, but that is but one consideration and it does not particularly affect, to a great degree, the outcome of this hearing. I have reduced the head sentence a little because of that fact. You will also, of course, as I have indicated, you may be the subject of deportation proceedings but that is a matter for the relevant authorities and not for the Court."[36]

1. The Applicant still maintains his innocence. He has expressed no remorse.[37] His wife also claims that he is innocent. She claims to know this is so, because she was present during each instance, in respect of which, the Applicant was charged and convicted.[38]
2. The Applicant also says that the "allegations" against him were motivated by his wife's parent's animosity towards him.[39]
3. The victims were referred to as the Applicant's "nieces", being the daughters of his wife's youngest sister.[40] A later record from Qld Corrective Services, however, says that they were actually Ms ET's younger sisters.[41] This was confirmed by the Applicant.
4. On 23 November 2023, the Applicant was classified as a high security prisoner.[42]
5. On 30 January 2024, the Visa was cancelled under s 501(3A) of the Act.[43]
6. On 24 April 2025, the Applicant applied for parole.[44]
7. On 2 May 2025, the Applicant became eligible for parole.[45] He told the Tribunal that parole has been refused on three occasions.
8. On 20 May 2025, a QLD Corrective Services note records:

"Email received from Child Safety confirming an assessment was completed in 2021, however, all of child safety assessments are a point in time assessment. Given [the Applicant]'s history is very concerning, child safety would be worried should [the Applicant] reside in the family home, or in another home with other children."[46]

1. On 23 May 2025, QLD Corrective Services records note:

"A collateral check with Child Safety confirmed that an assessment was completed in 2021 and that they hold concerns should [the Applicant] reside in the family home or in another home with other children.

An environment scan of the proposed address revealed that it is 500m from a primary school and childcare centre. It is noted that [the Applicant]'s victim profile is inclusive of primary school aged children however, he has no history of stranger victims.

A collateral check with [the Applicant]'s wife [redacted] confirmed that she is aware of the offences, and she has nil concerns with [the Applicant] residing at the address. She was advised of potential EM and curfew conditions and provided informed consent for [the Applicant] to reside at the address. [the Applicant's wife] advised she has moved and is no longer residing next to the victim children, she further advised that she has no contact with the victim children.

[the Applicant]'s victim profile is intra-familial female children aged between 8 and 14 and his children fit this profile. One of [the Applicant]'s offences occurred next to his wife whilst she was asleep indicating that she is not a deterrent for him. [the Applicant]'s wife maintains that the offences did not occur and therefore does not have a safety plan in place and does not feel she has to act protectively. [the Applicant] has not yet completed GSPP or a targeted sexual offending program therefore his needs remain unaddressed.

The aforementioned information suggests the proposed address is considered a high-risk location for [the Applicant] to reside. He is likely to have unrestricted access to his minor children who are within his victim profile, and further due to the proposed co-resident maintaining denial of the offences occurring and minimising the need to act protectively of her children in [the Applicant]'s presence, it is considered [the Applicant's wife] is unable to act in a protective manner regarding risks posed by [the Applicant]'s contact with their children. This is further supported by concerns expressed by Child Safety should [the Applicant] return to the family home.

The writer enquired about previous child safety involvement and what this looked like for the family and [the Applicant's wife] advised she, [the Applicant] and the children were all interviewed, and she is of the belief that they closed the assessment with nil concerns. [the Applicant's wife] denied any discussions of safety planning and acting protectively for the children during this time. The writer stated that should [the Applicant] be released to the home there will likely be further child safety contact and there is the potential that child safety will assess that the children cannot reside in the same home as [the Applicant]. The writer asked how she would feel about this and [the Applicant's wife] stated that she does not believe this will happen as the offences never occurred and there is nothing to be concerned about."[47]

1. The Applicant told the Tribunal that parole was refused on the most recent occasion because there were child safety concerns about him living with his wife and children. As previously mentioned, the Tribunal did not have access to primary documentation held by Child Protection authorities or the Parole Board. The Tribunal was left to make an assessment based on brief notes in QLD Corrective Services records (see above).[48]
2. On 29 May 2025, an accommodation review conducted by QLD Corrective Services recommended that the Applicant should not be released on parole to accommodation shared with his wife and children. The recommendations state:

"The proposed address is considered a high-risk location for [the Applicant] to reside. He is likely to have unrestricted access to his minor children who are within his victim profile, and further due to the proposed co-resident maintaining denial of the offences occurring and minimising the need to act protectively of her children in [the Applicant]'s presence, it is considered [the Applicant] is unable to act in a protective manner regarding risks posed by [the Applicant]'s contact with their children. This is further supported by concerns expressed by Child Safety should [the Applicant] return to the family home."[49]

1. On 4 July 2025, a QLD Government report on the Applicant's participation in "Getting Started: Preparatory Program for Sexual Offending" states:

"During [the Applicant]'s participation on the Getting Started: Preparatory Program for Sexual Offending (GS: PP), he maintained his innocence with regard to his sexual offending behaviour. Thus, it is considered [the Applicant] accepted no responsibility and demonstrated no insight into his sexual offending behaviour. Further, it is considered he did not demonstrate a commitment to change, nor any willingness to participate in future sexual offending programs.

The following is an overview of [the Applicant]'s sexual offending:

[the Applicant] acknowledged being convicted of sexual offences against his wife's siblings who were eight and 12-year-old female children. Despite acknowledging these convictions, [the Applicant] maintained a stance of innocence, stating he had never engaged with either of the victims sexually. He was observed to be generally resistant to exploring the victim's version of the offending, through which he was seen to maintain his justification that he was not present on the occasions where the sexual offending occurred.

[the Applicant] discussed his wife's family were not supportive of their relationship, and despite his wife's families wishes, they remained together. [the Applicant] perceives this to be the reason the victim's made allegations against him. He further noted his wife was aware of another reason that the offending was alleged, however, stated he was not privy to this reason and did not further investigate this at the time, and could not elaborate on why. When describing the offence period, [the Applicant] disclosed living with his wife and their children, with the victim's often coming over to visit. He reported contact with the victim to be in the presence of his wife and their children, with [the Applicant] denying ever having been alone with the victim. [the Applicant] denied any physical contact with the victim's and reported having general conversations with them, with the nature of the conversations being around the victim's home life, always in the company of [the Applicant]'s wife and children. [the Applicant] lacked insight into how his behaviour towards the victims at the time may have been perceived and was observed to externalise blame to the victims. [the Applicant] further denied engaging in any behaviours that may have been perceived sexually by the victims resulting in his convictions.

[the Applicant] justified his stance of innocence by stating the victim's continued to attend his family home for sleepovers after the sexual offending occurred. He further made attempts to justify his stance by noting the victims did not report the offending immediately after it occurred to adults within the family, and lacked insight into how his role as a trusted adult may have contributed to gaining victim compliance. Due to [the Applicant]'s stance of innocence, he was resistant to exploring more detail of the nature of his sexual offending behaviour or the victim's perspective, which acted as a barrier to him developing insight or engaging meaningfully in the program."[50]

1. On 27 October 2025, the Respondent decided not to revoke the mandatory cancellation of the Visa.[51]
2. The Applicant has a serious heart condition that will probably require major surgery.[52]
3. If the Applicant were to be released into the community, he would like to return to live with his wife and children and to resume work. His present health is such that he could probably not work. His priority would be to undergo major surgery to address his serious heart condition.
4. As previously mentioned, there is at least a live issue as to whether Child Protection authorities and/or the Parole Board would permit him to live with his family.

1. On 6 October 2023, the Applicant was sentenced by District Court of QLD to a term of imprisonment of 3 years and 3 months.[53]
2. The Tribunal finds that the Applicant has a "substantial criminal record" and, therefore he does not pass the character test.
3. This is not disputed by the Applicant.
4. The Tribunal must now consider whether "there is another reason why the original decision should be revoked".

Is there another reason why the original decision should be revoked under section 501CA (4)?

1. In considering whether to the original decision should be revoked, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("the Direction") has application.[54]
2. For the purposes of deciding whether to refuse or cancel a non-citizen's visa or whether or not to revoke the mandatory cancellation of a non-citizen's visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker's application of the considerations identified in Part 2 where relevant to the decision.
3. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, 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.

(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 noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

1. Paragraph 6 of the Direction provides that:

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.

1. Paragraph 7(2) of the Direction requires that protection of the Australian community (Primary Consideration 8.1), is generally to be given greater weight than other primary considerations.
2. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

(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; and > > (5) expectations of the Australian community.

3. Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:

a) Legal consequence of the decision; > > b) extent of impediments if removed; > > c) impact on Australian business interests

4. I note the importance of the Other Considerations being "other" considerations, as opposed to "secondary" considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[55]

"...Direction 65 [now Direction 110] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply."[56]

1. The Applicant's criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.
2. The Applicant's offending is discussed in detail above. It is only the offending for which he was sentenced on 6 October 2023, that has any material bearing on these proceedings.[57]

Primary Consideration 1 - Protection of The Australian Community

1. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
2. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

a) The nature and seriousness of the non-citizen's conduct to date; and > > b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The Nature and Seriousness of the Applicant's Conduct to Date

1. When assessing the nature and seriousness of a non-citizen's criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
2. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
3. The Applicant has been convicted of serious sexual crimes against 2 children. These children were his wife's younger sisters.[58] His conduct involved very serious breaches of trust.
4. I am satisfied that this conduct constitutes both offending of a sexual nature against children and "family violence" as defined.[59]
5. I note also, (though the definition is not necessarily co-extensive with "family violence" for the purposes of the Direction), that each offence was declared by the sentencing judge, to be a "domestic violence offence".
6. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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.

7. The Applicant does not pass the character test.
8. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant's offending.
9. The Applicant came before the sentencing judge with no relevant prior criminal record. His sentence of 3 years and 3 months is, in that context, an indication of the gravity of his offending.
10. I note also that the Applicant has been refused parole on 3 occasions.
11. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the impact of the offending on any victims offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
12. No victim impact statements were placed before the sentencing court, but the sentencing Judge said, "this type of offending conduct from a trusted family member would have an adverse impact upon each child although to what degree I am unable to say."[60]
13. The indirect impact on his own family has been serious due to his incarceration.
14. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen's offending and whether there is any trend of increasing seriousness.
15. The findings of the Court, set out above, indicate that the Applicant's offending was not an isolated instance. It involved "two different children on two separate occasions".[61]
16. The fact that the offending was repeated is, in and of itself, a matter of increasing seriousness, notwithstanding the particulars of the offending on each occasion. The rape offence occurred on the second occasion.
17. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant's repeated offending.
18. As previously mentioned, no victim impact statements were placed before the sentencing court, but the sentencing Judge said, "this type of offending conduct from a trusted family member would have an adverse impact upon each child although to what degree I am unable to say."[62]
19. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
20. The Applicant has maintained his innocence. For the reasons already set out above, the Tribunal is obliged to find that he has lied to the Respondent and to the Tribunal.
21. Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned 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).
22. There is no evidence of this.
23. Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
24. This is not relevant.
25. I do not consider factors (h) and (i) of paragraph 8.1.1(1) of the Direction apply to the Applicant's offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant's visa.

The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

1. Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2. Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, 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; > > 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; and > > > > 1. 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.

Nature of harm should the Applicant engage in further criminal or other serious conduct

1. Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community's tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable (Paragraph 8.1.2(1)).
2. I refer to the highlighted passage above. I am satisfied that the offending of which the Applicant has been convicted, is so serious that even the slightest risk of it being repeated, is unacceptable.

Likelihood of engaging in further criminal or other serious conduct

1. The Applicant has failed to offer any explanation for his offending. Indeed, both he and his wife maintain that he is an innocent man, wrongly accused by members of his wife's family and wrongly convicted.

1. The Tribunal may not, however, look behind the findings of fact made by the court in this case.

1. The Tribunal may not look behind the sentencing remarks of the presiding judge.
2. These must be taken as settled matters. They are certainly not matters for determination by this Tribunal.
3. I refer again to the Full Federal Court's decision in Minister for Immigration and Multicultural Affairs v SRT. [63]
4. In these circumstances, the Applicant comes before the Tribunal without remorse, or any explanation for his offending.
5. The factors that led to his offending are unknown. It is therefore not possible to rationally assess the current and future risk factors, to manage them, or to eliminate them.
6. Sexual predation is always very serious, but this offending is even more abhorrent because the victims were children, family members and in the offender's care.
7. The Applicant has, according to QLD Govt authorities, "accepted no responsibility and demonstrated no insight into his sexual offending behaviour. Further, it is considered he did not demonstrate a commitment to change, nor any willingness to participate in future sexual offending programs undertaken".[64]
8. According to a QLD Corrective Services report dated 21 July 2025, the Applicant "static risk level"[65] was assessed at "below average". It is also noted however, that this tool, "does not measure all relevant risk factors".[66] The observation was also made that:

"Overall [the Applicant] presented as someone who externalises the blame onto others, as evident in his descriptions of his prior offending history where he reported that his friend committed the stealing offences he has been convicted of but he accepted responsibility for these to assist this friend, he reported that he was sitting on the footpath drunk but quiet when he was charged for drunk and disorderly, indicating it was the Police unfairly charging him, and with his recent incident in custody where he was found with a number of tokens belonging to someone else, he was simply holding them for someone else before being able to distribute them to the owners."[67]

1. In these circumstances, the Applicant must present at least moderate risk of reoffending.

1. Primary consideration number one weighs very heavily against revocation of the Applicant's visa cancellation.

(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

(2) This consideration is relevant in circumstances where:

a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

(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:

1. the extent to which the person accepts responsibility for their family violence related conduct;

2. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

3. 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.

1. The threshold question here, is whether the Applicant's offending is "family violence" for the purposes of the Direction.
2. There is no question that the abuse to which the Applicant's victims were subjected, comes within the definition of "violence" in the Direction.[68]
3. The victims in this case were said to be the Applicant's nieces, but the Applicant confirmed that they were in fact they were his wife's youngest sisters.
4. I am satisfied that the victims were "family" for the purposes of the Direction.
5. I am also satisfied that sexual abuse of young children, who were in the Applicant's care, as a trusted adult, is a particularly heinous example of family violence.
6. The offending was repeated, and it included the offence of digital rape.
7. The Applicant has denied all responsibility.
8. He has expressed no remorse.
9. He has not engaged with rehabilitation services.
10. He has done nothing to address the factors, whatever they may be, that contributed to his offending.
11. He told the Tribunal that he did not think that he needed to do any sexual offending courses, but he would do what was required of him.

1. This consideration weighs heavily against revocation of the cancellation of the Applicant's visa.

(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:

a) 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

b) 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. The Applicant is a married man. His wife and his 5 children, Child A, B, C, D and E are Australian residents. His children were born here.
2. The children in the Applicant's life are discussed in more detail in the context of Primary Consideration 4. I refer to that discussion.
3. The Applicant permanently came to Australia as an adult aged 24 years.[69] He did not spend his formative years here.[70]
4. The Applicant has a reasonable employment history, generally working as a steel fixer.[71]
5. The Applicant has a very poor relationship with his wife's family.[72]
6. The Applicant told the Tribunal that he had many relatives living all over Australia, but that he has had no contact with them.
7. If the Applicant were to return to New Zealand / Cook Islands, his wife and children would probably join him there.[73]
8. There is no doubt that if the Respondent's decision was affirmed, it would have a direct adverse impact on his family's emotional, practical and financial wellbeing.[74] They would either be separated from him if they remained here, or be uprooted from Australia, if they left the country with him.

1. This consideration weighs in favour of revocation of the cancellation of the Applicant's visa

Primary Consideration 4: The best interests of minor children in Australia

1. Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
2. Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

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.

3. Child A is the Applicant's eldest minor child. She is 12 years old. She was born in Australia and has lived here all her life. She naturally has a strong connection to Australia.
4. The Applicant has performed a parental role in Child A's life. If he were to return to the community, he would like to continue to do so.
5. The ongoing issue of Child Protection concerns is mentioned above. The most recent evidence on this point, inadequate though it is, suggests that the Parole Board or Child Protection authorities would not allow the Applicant to reside with his wife and children[75]. It is a matter of speculation how long this concern may continue.
6. If the Applicant does not present a direct risk to her safety, it would be in Child A's interests for the Applicant to remain in Australia. He could provide ongoing parental and financial support.
7. If the Applicant were to be returned to New Zealand, Child A could keep in touch with him electronically. She could visit him there, or the family could relocate to New Zealand. If the Applicant obtained work in New Zealand, he could still support Child A financially. This, however, would be a poor alternative from her perspective and it would be highly disruptive.
8. Child B is the Applicant's only son. He is 11 years old. He was born in Australia and has lived here all his life. He naturally has a strong connection to Australia.
9. The Applicant has performed a parental role in Child B's life. If he were to return to the community, he would like to continue to do so.
10. The ongoing issue of Child Protection concerns is mentioned above. The most recent evidence on this point, inadequate though it is, suggests that the Parole Board or Child Protection authorities would not allow the Applicant to reside with his wife and children.[76] It is a matter of speculation how long this concern may continue.
11. If the Applicant does not present a direct risk to his safety, it would be in Child B's interests for the Applicant to remain in Australia. He could provide ongoing parental and financial support.
12. If the Applicant were to be returned to New Zealand, Child B could keep in touch with him electronically. He could visit him there, or the family could relocate to New Zealand. If the Applicant obtained work in New Zealand, he could still support Child B financially. This, however, would be a poor alternative from his perspective and it would be highly disruptive.
13. Child C is the Applicant's daughter. She is 10 years old. She was born in Australia and has lived here all her life. She naturally has a strong connection to Australia.
14. The Applicant has performed a parental role in Child C's life. If he were to return to the community, he would like to continue to do so.
15. The ongoing issue of Child Protection concerns is mentioned above. The most recent evidence on this point, inadequate though it is, suggests that the Parole Board or Child Protection authorities would not allow the Applicant to reside with his wife and children.[77] It is a matter of speculation how long this concern may continue.
16. If the Applicant does not present a direct risk to her safety, it would be in Child C's interests for the Applicant to remain in Australia. He could provide ongoing parental and financial support.
17. If the Applicant were to be returned to New Zealand, Child C could keep in touch with him electronically. She could visit him there, or the family could relocate to New Zealand. If the Applicant obtained work in New Zealand, he could still support Child C financially. This, however, would be a poor alternative from her perspective and it would be highly disruptive.
18. Child D is the Applicant's daughter. She is 8 years old. She was born in Australia and has lived here all her life. She naturally has a strong connection to Australia.
19. The Applicant has performed a parental role in Child D's life. If he were to return to the community, he would like to continue to do so.
20. The ongoing issue of Child Protection concerns is mentioned above. The most recent evidence on this point, inadequate though it is, suggests that the Parole Board or Child Protection authorities would not allow the Applicant to reside with his wife and children[78]. It is a matter of speculation how long this concern may continue.
21. If the Applicant does not present a direct risk to her safety, it would be in Child D's interests for the Applicant to remain in Australia. He could provide ongoing parental and financial support.
22. If the Applicant were to be returned to New Zealand, Child D could keep in touch with him electronically. She could visit him there, or the family could relocate to New Zealand. If the Applicant obtained work in New Zealand, he could still support Child D financially. This, however, would be a poor alternative from her perspective and it would be highly disruptive.
23. Child E is the Applicant's youngest child. She is 4 years old. She was born in Australia and has lived here all her life. She naturally has a strong connection to Australia.
24. The Applicant has performed a parental role in some of Child E's life. If he were to return to the community, he would like to continue to do so.
25. The ongoing issue of Child Protection concerns is mentioned above. The most recent evidence on this point, inadequate though it is, suggests that the Parole Board or Child Protection authorities would not allow the Applicant to reside with his wife and children.[79] It is a matter of speculation how long this concern may continue.
26. If the Applicant does not present a direct risk to her safety, it would be in Child E's interests for the Applicant to remain in Australia. He can provide ongoing parental and financial support.
27. If the Applicant were to be returned to New Zealand, Child E could keep in touch with him electronically. She could visit him there, or the family could relocate to New Zealand. If the Applicant obtained work in New Zealand, he could still support Child E financially. This, however, would be a poor alternative from her perspective and it would be highly disruptive.
28. In relation to his children the Applicant says:

"Describe your relationship with each of your minor child/ren above, including how often you contact/see the child/ren and the role you play in their life

HAVE BEEN A FULL TIME DAD PROVIDING FOR ALL THE CHILDREN NOTED. FINANCIALLY & EMOTIONALLY, I LIVED FULL TIME WITH MY CHILDREN. ONLY TIME I WAS NOT AROUND WHEN I LEAVE FOR WORK. I HAVE A CLOSE RELATIONSHIP WITH EACH OF MY CHILDREN.

(1) [CHILD A] - I AM HER COMFORT WHEN SHE NEEDS TO TALK ABOUT HER FEELINGS + ISSUES.

(2) [CHILD C] - SHE IS MY FIESTY CHILD, CAN BE HOT HEADED SO SHE WOULD COME TO ME FOR REASSURANCE AND UNDERSTANDING.

(3) [CHILD B] - MAMA'S BOY. TEACHING MY SON TO LEARN HOW TO DO OUTSIDE WORK. FIXING THINGS AROUND THE HOUSE.

(4) [CHILD D] - ALWAYS HAVE A SOFT SPORT AS HER MUM AND I ALMOST LOST HER AT BIRTH.

Describe any current impact on your minor children above, and/or any likely impact on them in the event of a negative s501 decision outcome (i.e. a non-revocation or visa cancellation/refusal decision).

AUSTRALIA HAS BEEN THE ONLY COUNTRY THE CHILDREN HAS KNOWN TO BE HOME. AUSTRALIA WILL BE A SAFE COUNTRY FOR THEM TO GAIN MORE IN LIFE, EDUCATIONAL AND IN THE WORK FORCE. IT WILL CAUSE MORE STRESS AND EMOTIONAL DISTRESS UPON THEM. THEY ARE ALSO INNOCENT AMONGST ALL THIS. THE SAFETY AND FEAR OF MY CHILDREN BEING MIXED UP WITH THE WRONG PEOPLE IF SENT TO NZ IS HIGH. MOST OF ALL THEY LOVE AUSTRALIA AND THE LIFE THEY ARE FORTUNATE TO HAVE HERE. I BELIEVE AUSTRALIA HAS MANY PROMISING OPPORTUNITIES FOR THEM TO BE GREAT."[80]

1. The Applicant told QLD Corrective Services on 21 July 2025, that if he were to return to New Zealand/Cook Islands, his wife and children would move there with him.[81]
2. If this were to happen, it would mean that the lives of his children would be seriously disrupted. They were all born in Australia and have never lived elsewhere.
3. On the other hand, they would in these circumstances, not be separated from their father and their family unit would be preserved. They would also have the opportunity to get to know their grandparents and other extended family in the Cook Islands.
4. The Applicant has no relationship with any minor children in his wife's family, including the victims of his offending.
5. If the Applicant were to remain here, it is unclear how much interaction he may be permitted to have with the children, as a result of ongoing child protection concerns.
6. He told the Tribunal that he has no contact with any other children in Australia other than his children.

1. Having regard to all of the above, primary consideration 4 weighs in favour of revocation of the Applicant's visa cancellation

Primary Consideration 5 - The Expectations of The Australian Community

1. In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
2. Paragraph 8.5(2) of the Direction directs that a 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 are 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.

1. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
2. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

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.

3. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant's circumstances or evidence about those expectations. The Tribunal is to be guided by the Government's views as to the expectations of the Australian community, which are to be found in the Direction.[82]

1. Paragraph 8.5 contains a statement of the Government's views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

Analysis - Allocation of Weight to Primary Consideration 5

1. Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
   1. the Applicant's criminal record as set out in Annexure B
   2. the other matters set out above
   3. the gravity of the Applicant's sexual offending against children.
   4. The Applicant's lack of remorse.
   5. The ongoing child protection concerns.

1. Primary consideration 5 weighs heavily against revocation of the cancellation of the Applicant's visa.

1. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.

1. The Applicant has not made any protection claim.
2. I do accept that if the Applicant is not successful in these proceedings, he will remain liable to detention and removal from Australia. This would be an adverse outcome, but one common to all unsuccessful applicants in similar proceedings.
3. This Other Consideration (a) is neutral.

1. Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and > > (c) any social, medical and/or economic support available to that non-citizen in that country.

2. The Applicant is aged 38 years.
3. I accept the evidence before the Tribunal that he has a serious medical condition and that he will require major cardiac surgery.
4. Assuming this to be so, there is no evidence to suggest that suitable medical treatment would not be available to the Applicant in New Zealand.
5. The Applicant says that he would find recovery from any treatment harder without the support of his family. This presupposes that they would not accompany him to New Zealand. He says that he has no supports in New Zealand, as distinct from the Cook Islands. He cannot have the medical treatment that he needs, in the Cook Islands.
6. As previously mentioned however, it seems likely that his family would follow him back to New Zealand / Cook Islands.[83]
7. The Applicant mainly lived in New Zealand/Cook Islands until he was 24. There would be no serious language or cultural barriers preventing his return.
8. There is no evidence to suggest that the Applicant would not be entitled to the same "social, medical and/or economic support available" to any other citizen of New Zealand.
9. The Applicant's older brother and parents still live in the Cook Islands.[84] He also has a biological daughter there, who has been brought up by his parents.[85] She now cares for them and has an infant son of her own.
10. The Applicant has reported having "friends from when he was a child" and having "more than 50 family and friends that he is close to".[86]
11. The Applicant says that he would not be reliant upon his relatives if he returned to the Cook Islands. He has told QLD authorities that he "owns three homes on the Island".[87]
12. Assuming a successful recovery from his surgery, there is no reason to believe that the Applicant's work experience in Australia would not translate to similar employment opportunities in New Zealand.
13. I accept that the Applicant would experience a difficult period of readjustment in returning to New Zealand/ Cook Islands. The immediate future would be focused on his medical treatment. This would be especially difficult for him, in the unlikely event of his family electing to remain in Australia.
14. This consideration (b) weighs in favour of revocation.

1. Paragraph 9.3 of the Direction directs a decision-maker to take into account the following:

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

1. There was no evidence on this topic.
2. This Other Consideration (d) is neutral.

1. It is necessary to weigh up all the primary and other considerations. In doing so I have had regard to all the evidence before the Tribunal. I refer also to the detailed history and discussion set out above.

Primary consideration 1 weighs very heavily against revocation.

Primary consideration 2 weighs heavily against revocation.

Primary consideration 3 weighs in favour of revocation.

Primary consideration 4 weighs in favour of revocation.

Primary consideration 5 weighs heavily against revocation.

Other consideration (b) weighs in favour of revocation.

1. I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations.
2. The Applicant has been convicted of very serious sexual offences against two children. The context of this offending involves a very serious breach of trust. Even a small risk of any repetition is unacceptable.
3. Primary Considerations 1, 2 and 5 weigh heavily against the Applicant for the reasons set out above.
4. The Tribunal is obliged to accept the court findings made in those criminal proceedings. The Tribunal is not a Court of Appeal.
5. The Applicant maintains that he is innocent. He has refused to take any responsibility for his actions. He has expressed no remorse. He has not engaged with rehabilitation services.
6. This means that the Applicant effectively comes before the Tribunal, even if only formally by operation of law, as an unrepentant, serious offender.
7. On the other hand, the Applicant has significant ties to Australia, particularly his wife and children. He has been a husband, father and provider for his family. This factor is however, now clouded somewhat, by ongoing child protection concerns. The impact of him being removed from Australia would be very significant for his immediate family, whether they chose to follow him, or to remain here.
8. If they were to relocate with him, this would be very disruptive, although the family unit could remain together.
9. Primary considerations 3 and 5, as well as Other Consideration (b) weigh in favour of revocation.
10. But for the Applicant's convictions, he has been a contributing member of our community.
11. I am however mindful of the importance of protecting the Australian community.
12. In this case, I am satisfied that the factors weighing against the Applicant, clearly outweigh the factors favouring revocation.
13. I am satisfied that a proper application of the Direction requires the Tribunal to affirm the cancellation of the Applicant's Visa. I find that there is not "another reason" pursuant to s501CA (4)(b)(ii) to revoke the original decision.

I certify that the preceding two hundred and seventeen (217) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

.............................[sgnd]....................................

INDECENT TREATMENT OF CHILDREN UNDER 16 CHILD UNDER 12 YEARS LINEAL DESCENDENT/GUARDIAN/CARER - DOMESTIC VIOLENCE OFFENCE

[4] [1999] FCA 1197.

[22] HB 65, described as his "niece".

[54] On 21 June 2024, the former applicable direction, Direction No. 99 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 110.

[55] [2018] FCA 594.

[58] The Applicant's evidence confirmed that they were in fact her younger sisters.

[59] See discussion below in the context of Primary Consideration 2

[63] [1999] FCA 1197.

[68] See definition of "family violence" sub para (b).

[82] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.