FEDERAL COURT OF AUSTRALIA

XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115 Appeal from: XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 14

File number: NSD 206 of 2025 Judgment of: WHEELAHAN, STEWART AND NEEDHAM JJ

Date of judgment: 19 September 2025

The appellant, a Sri Lankan citizen holding a Safe Haven Enterprise Visa (SHEV), had his visa cancelled by the Minister under s 501BA(2) of the Migration Act 1958 (Cth) following a conviction for a child sexual offence. Although the Administrative Appeals Tribunal had earlier revoked the cancellation, the Minister personally set aside that decision, citing national interest grounds.

The appellant challenged the Minister’s decision, arguing it was legally unreasonable, illogical, or irrational—particularly because he could not be removed from Australia due to non-refoulement/extradition obligations and would remain in the community.

The Full Court (Wheelahan, Stewart and Needham JJ) dismissed the appeal, holding:

• The Minister’s satisfaction that cancellation was in the national interest was a valid jurisdictional fact, even though removal was not practicable.
• The Minister provided intelligible justification: the seriousness of the offence, risk of reoffending (even if low), and community expectations that non-citizens who commit serious crimes should not hold visas.
• The Minister acknowledged the appellant would remain in the community and would likely be issued a Bridging Visa R (BVR) with conditions tailored to mitigate risk (e.g., curfews, monitoring, restrictions on contact with minors).
• The Court rejected the argument that cancellation lacked protective effect merely because removal was not imminent. The cancellation rendered the appellant liable to removal and subject to stricter visa conditions.
• The Minister’s reasoning did not offend logic or legal standards for administrative decision-making. The threshold for establishing jurisdictional error was not met.

The Court also distinguished the High Court’s recent decision in Plaintiff S22/2025, finding it did not undermine the Minister’s reasoning in this case.

Core Legal Principles

1. Ministerial Power under s 501BA(2) of the Migration Act

• This provision allows the Minister to personally set aside a decision by the Administrative Appeals Tribunal to revoke a visa cancellation.
• Two jurisdictional facts must be satisfied:
  • The person does not pass the character test (e.g. conviction for child sexual offences under s 501(6)(e)).
  • Cancellation is in the national interest.

2. 2. Nature of the “National Interest”

The “national interest” is a broad and evaluative concept, largely political in nature.

It includes considerations such as:

• Protection of the Australian community.
• Community expectations regarding non-citizens who commit serious crimes.
• The symbolic and legal consequences of visa cancellation.

The Minister’s satisfaction must be formed reasonably and in accordance with legal standards, but courts give wide latitude to the Minister’s evaluative judgment.

3. Legal Unreasonableness and Jurisdictional Error

• A decision may be challenged if it is legally unreasonable, illogical, or irrational.
• However, the threshold is high: the reasoning must “completely offend logical thinking” or lack any intelligible justification.
• The Court found the Minister’s reasoning—emphasising community protection and expectations—even in the absence of actual removal, was intelligible and lawful.

4. Impact of Non-Refoulement/Extradition Obligations

• Due to protection findings, the appellant could not be removed to Sri Lanka.
• The Minister acknowledged this, but the Court held that cancellation still served a lawful purpose: rendering the person liable to removal and subject to stricter visa conditions (e.g. Bridging Visa R with curfews, monitoring, and restrictions).

5. Distinction from Plaintiff S22/2025

• The Court distinguished this case from Plaintiff S22, where the Minister’s reasoning lacked clarity on how cancellation protected the community.

In XKTK, the Minister clearly considered giving a visa with safety conditions, which made the decision understandable.

My work experience at F & G has been nothing but eye-opening in these past few days. Being quite indecisive surrounding what I wanted to pursue in the future, I first entered this workplace with many doubts as this would be the week that determined whether I would take Law in the future. On top of it all, I was exposed to the stereotype that lawyers are often stern and scary people – Cher’s dad from Clueless anyone?

However, I was taken by surprise when I entered the firm from the very first day. Everyone, especially Julia, Ankita and Ketharan, greeted me very warmly and was always approachable whenever I had a doubt about the tasks I was assigned. Furthermore, Mittu would constantly check in with me every now and then, making sure I was settling in well and was comfortable.

Throughout the week, I undertook several activities such as writing articles on topics that interested me, as well as creating scripts and social media posts to accompany them, scanning and destroying old files, sending client emails, and other small errands. Although they were only minor roles, they allowed me to gain a deeper understanding of what was necessary for the smooth handling of cases from start to finish.

On top of it all, I was lucky enough to hear client calls and look through certain matters from time to time on an online platform known as Smokeball, which proved to be extremely interesting and subsequently increased my interest in pursuing law in the future.

Overall, I believe that my work experience at F & G was highly valuable as it showed me how law could be put into practice in the real world. I am truly grateful to have been presented with this opportunity and would recommend anyone who’s looking to pursue law or even interested in legal matters to undertake their work experience here.

Siri (Work Experience Student – 15.9.25-19.9.25)

The processes of separation and divorce can often be touch emotionally, with  nowadays a lot of our lives being documented online. From Instagram stories and Facebook status updates to TikTok videos and direct messages, what you upload onto the internet has the potential to be admissible in court.

In Australia, the Family Law Act 1975 (Cth) obliges courts to take into account all the available evidence when making a decision regarding property settlement, parenting and spousal maintenance. That goes for social media post as well.

So Can Social Media be Evidence?

Yes. Courts throughout Australia have received and accepted social media posts, photos, and messages as evidence in family law proceedings. Examples include:

• Posts on reckless expenditure or gambling, applicable in property disputes.
• Images or posts proving drug or alcohol abuse, relevant in parenting cases.
• Intimidatory messages/posts are used to demonstrate family violence or intimidation.

Even things you believe or perceive as “private” may be screenshotted, subpoenaed, or posted if they are relevant to the case.

Common Issues that are Raised Online

• Badmouthing and ex-partner online: This can be raised as evidence of hostility, particularly in parenting disputes.
• Deleting accounts or posts – these practices can be perceived as attempt to hide evidence.
• Sharing Children’s photo’s or details publicly: Such incidences can raise questions about judgement or safeguarding.

Practical Tips

• Think before you post: Assume anything you share on the internet has the ability to show up in front of a judge due to the public nature of the internet.
• Avoid discussing a Case online: Never post about any ongoing proceedings.
• Get Legal Advice: If your concerned about posts made by yourself or your ex-partner, make sure you seek legal advice as soon as possible.

Conclusion

Australian Family Law has the ability to take into account social media in proceedings. This could be a challenging ordeal for many. So if you have any legal enquiries on this topic don’t be afraid to contact us.

Within the evolving 21st century, technology infiltrates human lives. From aiding in basic necessities such as reminders to help bridging the justice gap, technology is often perceived as helpful and revolutionary in improving processes.

However, a darker aspect that is often overlooked is the capacity for technology to facilitate abuse and violence. Coercive control has become more common place as a result of various technological advancements, such as deepfakes and hacking.

But what does coercive control look like? And why is our justice system failing to grapple and manage the implications and consequences of it on victims?

What does tech-based coercive control look like?

Coercive control is understood as patterns of abusive behavior which focus on the deprivation of a person’s independence and autonomy. Often, this dynamic is observed under family and domestic violence situations, where a dominating presence restricts and monitors another person’s actions meticulously.

However, unlike physical coercive control, technology facilitated coercive control is more subtle and targeted- to the extent in which the victim may not realise that they are coerced or controlled. Some signs of tech-facilitated coercive control include:

• Making repeated abusive, threatening or unwanted messages or calls.
• Restricting access to Wi-Fi, email, banking service or another telecommunication.
• Using cameras or recording devices to spy on the victim.

With the advent and widespread use of social media, technology-based coercive control has shifted subtly in how it looks. Some other signs of tech-facilitated coercive control include:

• Creating harmful, fake posts about victims
• Making, sharing, or threatening to share intimate images or videos of victims without the victim’s permission to control, blackmail or humiliate the victim.
• Tracking the victim’s social media usage or location.
• Restricting who the victim follows or messages.

Changes to the Privacy Act 1988 introduced a statutory tort for serious privacy invasions as of 10 June 2025- in which the misuse of information such as fake social media posts and images may be addressed in courts. This change may provide an avenue for victims to pursue justice for technology-facilitated coercive control. However, there is a gap in the justice system addressing these issues.

Issue with the justice system in handling tech-based coercive control.

A report by the Australian Institute of Criminology in October 2024 reported significant barriers in accessing the justice system. Key barriers that were identified:

• A lack of understanding of Technology-facilitated Coercive Control amongst first responders such as police and emergency responders
• Inconsistent and poor police response such as victim-blaming and inaction in reducing the harms and risks
• A focus on individual incidents rather than tracking patterns
• Lack of access within services to technological capability

These barriers often limit victims in recognising and accessing help- thus placing psychological distress upon them, requiring long-term recovery that is currently not provided by the justice system. This often creates more complex issues as illustrated by the report, where physical and financial abuse become commonplace in such situations. As a result, there is a call for greater support and awareness in the elements of technology-based coercive control.

What can you do?

If you think you or someone you know might be experiencing technology-based coercive control, here are steps to take:

• Contact a confidential support service:
  1. Please contact:
     • 1800RESPECT
       • 1800 737 732 (available 24/7)
       • 1800respect.org.au
     • eSafety Commissioner
       • https://www.esafety.gov.au/report/what-you-can-report-to-esafety
       • You can report the most serious online abuse and harmful content to eSafety. The eSafety website also has detailed information on tech-facilitated coercive control and on how to create an online safety plan.
     • Men’s Referral Service
       • 1800 943 539
       • mrs.org.au
     • Kids Help Line
       • https://kidshelpline.com.au/
       • 1800 55 1800

Australia wide free 24/7, confidential and private counselling service specifically for children and young people aged 5 to 25 years.

• Gather evidence:
  1. Save, screenshot, record, take photos and backup any evidence of the abuse. Have multiple copies available in different locations and track a timeline of events. This will help you if you wish to pursue charge against the person.

• Contact directory services.
  1. Technology-based coercive control is a vague, undefined area, where it has been recognised as an area where some victims do not recognise that they are subjected to such abuse. If you are doubtful as to whether you require help, there are services which explore your situation in confidential and non-responsive places. These services can be found at women-based services in universities, counselling at schools or these services:
     1. FULLSTOP AUSTRALIA:
        • https://fullstop.org.au/
        • info@fullstop.org.au
        • 180038557
     2.  Knowmore
        • https://knowmore.org.au/
        • 1800 605 762

Remember – in an emergency, always call 000 for urgent help.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

Introduction

Over the past decade, the world and in particular Australians have turned to digital investments such as cryptocurrencies and non-fungible tokens (NFT). While these investments can be lucrative to individuals, they raise new and complex issues when relationships break down. Australian family law requires all assets which includes digital assets to be disclosed and considered during a property settlement.

Under the Family Law Act 1975 (Cth), the Court assesses the total asset pool of the parties. This includes traditional property such as homes or cars as well as emerging classes of digital property.

What are Digital Assets?

Digital assets are:

• Property: This means they are treated as capable of ownership, value and transfer.
• Part of the Asset Pool: They must be disclosed and included in the calculation of net assets.
• Subject to Division: The same principles applied to bank accounts or shares are applied to digital assets.

Challenges in Valuing Digital Assets

Although treated the same as other assets they present unique difficulties such as:

1. Volatility – The value of Bitcoin can fluctuate dramatically within days and as a result courts require expert evidence or a valuate at a specific point in time.
2. Proof of Ownership – Digital assets tend to be stored in digital wallets and a lot of these are concealed which tend to raise complexities and issues in terms of non-disclosure or asset hiding.
3. Tracing Transactions – Digital assets have the unique ability to be transferred to other accounts very quickly, in some cases, instantly. This could make it hard to track such assets.

Consequences of non-disclosure

Any individual who fails to disclose any digital assets risks significant penalties. In extreme cases, hiding digital assets can even amount to criminal conduct, such as fraud or contempt of court.

What Should Parties Do?

For those going through a separation or divorce, there are a few considerations such as:

• Full Disclosure – Both parties must disclose all digital assets such as crypto holdings, wallets and NFTs.
• Legal Advice - Engage with family lawyers like us to get experienced advice on how to navigate the disclosure and division of digital assets.

Conclusion

In Australia, Cryptocurrencies and NFTs are considered property under Australian Family Law. They must be disclosed, valued and divided within a property settlement just like traditional assets.

Cryptocurrencies are becoming increasingly popular and utilised all over the world and especially in Australia. It has become something that can be purchased or transacted in a click of a button and in just a few seconds. With large amounts of businesses and individuals becoming involved in this space it is ever important for everyone to know and understand the legal obligations of using cryptocurrencies. In Australia cryptocurrencies are not recognised as legal tender but rather a form of property or investment asset.  Hence, they are subject to Capital Gains Tax when sold or exchanged, just like taxes paid when a share is bought or sold.

Regulatory Frameworks

1. ASIC
   ASIC has a large influence in regulating and enforcing cryptocurrency legislation. They mainly attend businesses that provide cryptocurrency services, specifically in relation to businesses that facilitate crypto transactions and have ICO’s or initial coin offerings.
2. Australian Transaction Reports and Analysis Centre (AUSTRAC)

AUSTRAC is more focused on any criminal activity that is conducted though the use of cryptocurrencies. It enforces legislation in regard to issues such as Anti-Money laundering and Counter-Terrorism Financing laws.

Cryptocurrency Mining Laws

Aside from transacting cryptocurrencies, crypto mining has also become prevalent within society and so has more legal questions in relation to this. It is legal to mine crypto in Australia, however miners must recognise and be aware of tax, electricity and environmental legislation.

Future for Cryptocurrency Regulation

In mid-2025 ASIC will publish an updated INFO 225 sheet which will provide substantial information and clarification on how financial services laws will apply to financial assets. This will be supported by Digital Asset Platform (DAP) licensing framework which would essentially make crypto exchanges obliged to the same legislation and supervision as traditional financial entities. As seen the Australian government is acknowledging the increasing prevalence of Cryptocurrencies and are addressing the rising legal issues to predominantly ensure that consumers are kept safe and free from potential fraudulent activities.

Conclusion

Australian crypto regulations put a strong emphasis on legal compatibility on platforms to ensure they provide safe practices. This in turn has ensured consumer safety and these future plans will continue to make the entire cryptocurrency environment even safer.

Allegations of family violence can significantly impact parenting matters before the Family Court. When these allegations arise, they are not just background details — they become central to the Court’s decision about what is in the best interests of the child.

Under the Family Law Act 1975, one of the primary considerations in parenting matters is the need to protect children from physical or psychological harm caused by abuse, neglect or exposure to family violence. In fact, the Court must give greater weight to this factor than to the benefit of a child having a relationship with both parents.

What Is Considered As Family Violence?

Family violence is not limited to physical harm. It includes coercive and controlling behaviour, verbal abuse, emotional manipulation, financial control, and exposing children to conflict. For example, a child who regularly witnesses shouting matches, threats, or aggression between their parents is considered to be exposed to family violence.

How Are Allegations Handled?

Once legal proceedings are underway, and family violence is raised, the Court may:

• Appoint an Independent Children’s Lawyer (ICL) to represent the child’s best interests.
• Order a Family Report or psychological assessment.
• Place interim parenting arrangements that limit or supervise time with a parent.
• Use Notice of Risk or Section 60I certificates to trigger additional protection.

The party making the allegation should provide as much evidence as possible, including:

• Police reports
• Intervention orders (AVOs/DVOs)
• Medical records
• Witness statements
• Text messages, emails or recordings (where legally obtained)

Ultimately, the Court’s guiding principle is whether the other party/the child’s safety and emotional wellbeing is at stake. Parenting arrangements will be made to minimize harm, which may include supervised contact, changes to time arrangements, or, in some cases, no contact at all.

Spousal maintenance is when one party to a marriage ('Spouse A') must pay financial support to the other spouse ('Spouse B'), who is unable to adequately support themselves financially. These maintenance payments may exist during and after the relationship, meaning that you don't need to be divorced or separated in order to apply for spousal maintenance.

A spouse is defined as a party to a current or former marriage, and can include de facto relationships, in which case spousal maintenance is called 'de facto maintenance.' Other than different time periods for when an application for de facto maintenance has to be lodged, there are no other significant differences.

Under the Family Law Act, Spouse A is required to financially maintain Spouse B if the latter is unable to support themselves for one of the following reasons:

1. Spouse B is taking care of a child of the relationship who is under the age of 18 years old
2. Spouse B's age or physical or mental incapacity prevents them from obtaining a suitable job
3. Any other adequate reason

To determine how much spousal maintenance should be paid by Spouse A, the Court will consider 2 key factors:

1. The needs of Spouse B
2. The capacity of Spouse A to pay maintenance

In their assessment, the Court will also take into account circumstances such as age, income, property owned, whether the marriage affected Spouse B's ability to earn income, and whether any children under the age of 18, or adult children with a disability, will be living with Spouse A or B. The Court will ultimately decide whether spousal maintenance should be paid at all, and if so, how much.

However, Spouse B is not entitled to spousal maintenance if they marry another person, unless the Court orders otherwise. If Spouse B start a new de facto relationship, the Court may take into account the financial circumstances in the new relationship when considering whether Spouse B can support themselves adequately.

Although you are not required to be represented by a lawyer or seek legal advice, family law can be complex. Obtaining legal advice will help you better under your legal rights and obligations.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.

In an ever-changing world the use of AI is having a significant impact on our everyday lives. The hot topic on the agenda today is:

Should the paths of legal proceedings and AI use be allowed to cross?

In our modern day more and more lawyers are beginning to rely on artificial intelligence to prepare their submissions and evidence to court. But this tool has raised concerns amongst the court, due to issues surrounding the quality and accuracy of these submissions from artificial intelligence.  This is evidently shown through the defamation case which Dr Natasha Lakaev cited, Hewitt v Omari (2015).

But in reality, this case did not exist. In his judgment, Justice Blow stated the cause of this error was most likely due to generative AI. This mistake from AI was caused by a phenomenon called ‘hallucinations’. These hallucinations occur when generative AI perceives pattens or objects that are non-existent, therefore creating outputs that are inaccurate or nonsensical.

This isn’t the only case where AI was misused. In another case, a legal agent at the Queensland Administrative Tribunal had submitted 600 pages of repetitive, rambling, and nonsensical material which the court had suspected to be the use of artificial intelligence.

With the lack of laws and guidelines surrounding the use of generative AI in legal proceedings, this issue has emerged as a spark of debate and discussion in court systems.

If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.