Abarca Roman and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1802

Abarca Roman and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1802 (16 September 2025)
Administrative Review Tribunal
Applicant/s: Hector Jose Abarca Roman
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2025/4212

Tribunal:Senior Member Hon J Rau SC
Place:Adelaide
Date:16 September 2025

Corrigendum
Date of Corrigendum: 16 September 2025

Pursuant to section 114 of the Administrative Review Tribunal Act 2024, the following alteration is made to the decision:

Delete paragraph 191.

..............[SGND]...............
Senior Member J Rau SC
Applicant:Hector Jose Abarca Roman
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4212

Tribunal:Senior Member Hon J Rau SC
Place:Adelaide
Date:16 September 2025
Decision:The Tribunal affirms the decision under review.

..................[SGND]...................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – cancellation of a Partner( Provisional) (Class UF) visa under section 501(3A) – the Applicant does not pass the character test – the Applicant has substantial criminal record – whether the original visa cancelation under section 501CA(4) should be revoked – consideration of Ministerial Direction No. 110 – decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
SECONDARY MATERIAL
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024).
REASONS FOR DECISION
Senior Member Hon J Rau SC
16 September 2025
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 30 June 2025,[1] not to revoke the mandatory cancellation of his Partner (Class BS) (Subclass 801) visa (“the Visa”). The Visa was cancelled on 12 February 2024 under section 501(3A) on the basis that he did not pass the character test.[2]
[1] Hearing Book (“HB”), 223-248.
[2] Ibid.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more.[3] The Applicant fails the character test on account of his conviction on 22 January 2024 of various family violence offences and the sentence of 13 months imprisonment.[4]
[3] Migration Act 1958 (Cth), section 501(6)(a) and 501(7)(c).
[4] Ibid.
The Applicant concedes that he does not pass the character test.
The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to section 501CA(4)(b)(ii) of the Act.
The hearing was held on 8 and 9 September 2025. The Applicant was represented by Marta Mamarot of South West Migration & Legal Services and the Respondent was represented by Anthony Westenberg of Sparke Helmore Lawyers.
The Applicant gave evidence by Teams from Villawood Detention Centre. He was assisted by a Spanish interpreter for most of the time, although he was able to respond adequately in English, to some questions. He generally gave his evidence in a direct and concise manner.
I formed the view however, that there were some aspects of the Applicant’s evidence that were unreliable. For example, he stated that he met his first partner, Ms AP, in June of 2020.[5] Police records state that the relationship began in May 2019.[6] The Applicant’s daughter, Child A, was born in February 2021. He told the Tribunal that she was a full-term baby. She must have been conceived in about May of 2020. The Applicant also told the Tribunal that Ms AP had already had a miscarriage before that[7] and that they had waited about 6 months after that, before Child A was conceived. This suggests that the first pregnancy began by no later than November of 2019.
[5] HB 14 at [12].
[6] HB 188.
[7] HB 14 at [12].
This timeline is inconsistent with the Applicant’s stated timeline. It is inconsistent with his unsolicited statement to the Tribunal, that he did not rush into a relationship, as soon as he arrived in Australia.
The evidence suggests that within months of his arrival in Australia on 22 January 2019, the Applicant had not only started an intimate relationship with Ms AP, but that he had fathered the first, of what were ultimately to be 4 children, with two different women, over the next 4 years. It seems that Child A is the only surviving child.
Generally, however, the Applicant did not seek to trivialise his past conduct or to evade responsibility.
He blamed his past “immaturity” for much of his conduct. It must be remembered that during the entire relevant period, he was over 30 years old. His explanation seems odd in this context.
Overall, the Applicant’s evidence needs to be treated with caution.
The Applicant called his mother Ms ER. She gave evidence by phone with the assistance of a Spanish interpreter. She and her husband are in Australia on a visitors’ visa and they have been for some time. They will return to Chile on 16 October 2025. She gave evidence primarily about the Applicant’s relationship with Child A. I accept her evidence of his ongoing connection to Child A.
The Applicant did not call Mr Watson-Munro or his former partner Ms AP, notwithstanding the Respondent’s request for them to be called.
In the case of Mr Watson-Munro, he was apparently on leave and unavailable. He provided a late report dated 1 September 2025.[8] I accept that the late provision of this report, and the Applicant’s failure to produce Mr Watson-Munro for cross-examination, denied the Respondent an opportunity to test his evidence. I give it weight accordingly.
[8] HB 28-44.
Ms AP not being called meant that the Tribunal only had the benefit of her various short statements in evidence before it.[9] It would have helped the Tribunal to have heard from her, as Child A’s custodial parent, about her daughter’s relationship with her father. I accept at face value however, her brief statements of support, as far as they go.
[9] HB 24, 298 and 306.
The Applicant offered to call a member of his church and his father. The Respondent did not require either of them to be cross-examined and they were not called as a result. Their statements are in evidence.
In summary, the Applicant’s case primarily revolves around his relationship with his daughter, Child A, who is 5 years old. He wants to be an ongoing physical presence in her life, albeit as a non-custodial parent. He says that this will not be possible if he is removed from Australia. Child A is the Applicant’s primary anchor in the Australian community.
Background Facts
The Applicant is a 36-year-old Chilean citizen born on [redacted] February 1989.[10]
[10] HB 346.
On 22 January 2019, the Applicant arrived in Australia.[11] He was almost 30. He says that he came with the intention to study English. He had no family or friends here at that time. He has remained here since then.[12]
[11] Ibid.
[12] HB 13 at [7].
As previously discussed, contrary to his evidence, it is apparent that the Applicant wasted no time in forming an intimate relationship with Ms AP, probably by about May of 2019.[13] She already had two daughters from a previous relationship. Within months, she was pregnant. She lost or miscarried this first baby within a few months.
[13] HB 188.
As previously observed, I do not accept the Applicant’s claim that the relationship began in about June of 2020.[14] Ms AP sponsored the Applicant to get the Visa. He initially obtained a Bridging Visa.[15]
[14] HB 14 at [11].
[15] HB 15 at [15].
On 3 January 2020, a NSW police fact sheet states:
“In the evening of Friday the 3rd of January 2020, the victim and the accused were residing at [address]. The victim and the accused have engaged in an argument relating to the victim's use of Social Media. The argument has continued with both parties insulting one another specifically with commentary that is known to upset one another.
The victim and the accused have decided to sleep separately. victim in the lounge room, leaving the accused to sleep on his own. The accused has exited the bedroom and approached the victim in the lounge room. Another exchange has occurred, although the content is not known, resulting in the victim and the accused swapping sleep locations.
The victim has continued to message the accused. The accused has replied. This continues for a brief period of time before the accused makes the decision to approach the bedroom to speak to the victim. The accused enters the room and sits on the bed placing his phone on the sheets. The accused and the victim engage in another argument, neither party saying anything of substance, both having the intent to end the arguing. The victim tells the accused that she is going to contact the accused's Mother because she knew this would instigate a reaction. The accused has grabbed the victim's phone in order to stop the exchange. The argument continues into the kitchen / entrance area. The argument has become a physical struggle. The accused stopping the victim from leaving in the middle of the night in an emotional rage, and the victim being unreasonable to the accused who is telling her to calm down. The conflict in opinion has resulted in a stubborn reaction where the victim pushes the accused, the accused pushes the victim, the victim tears the shirt of the accused, the accused grabs the victim in an embrace, the victim pushing against the accused, the accused pushing the victim onto the floor. The victim has attempted to get passed the accused and manages to get out of the location.
The accused stops the victim by grabbing her, another struggle ensues and the victim has fallen to the floor. The victim starts kicking the accused from the ground, where the accused has grabbed the victim's legs and pulled her back into the unit. The victim stands up after a brief struggle and grabs a knife in the kitchen. The accused approached the victim and grabbed her on the wrists. The victim pulled away causing a small superficial cut to the accused's finger. The victim has realised her actions and put the knife down. The accused has disengaged and exited toward the balcony to have a cigarette. The victim sees the opportunity and exits the premises. The accused goes after the victim. The victim who was hysterical and the accused who is upset have both engaged in a further argument and a back and forward push on the unit fire stairs. The victim has pulled away from the accused and the accused has let go, resulting in the victim falling to the floor. The victim has reached up and punched the accused in the Testicles. The accused has kicked the victim in the left and then the right thigh. The victim has stopped being aggressive realising there is a legitimate threat and backed off her aggression. The accused has pulled himself away in order to calm down. The victim continues down the stairs and across the road. The accused after a few minutes, continues after the victim.
The victim threatened to go to the Police. The accused agreed and stated they should both go. Neither party went to the Police and instead both parties returned home to the unit. The victim has asked the accused to use his phone. The accused has granted the victim permission to use his phone. The victims uncle was contacted and asked to attend the location to assist in defusing the situation. The intention was for the accused to leave the location and stay with the victims uncle.”[16]
[16] HB 264-265.
On 4 January 2020, a NSW police fact sheet states:
“The accused left the location. After a brief separation from the incident, the accused returned to the location at approximately 9:00am on Saturday the 4th of January 2020. The accused wanted to speak to the victim as they had both calmed after the conflict. The victim did not want to speak as she was getting ready for work. The victim has collected her belongings and left the location. The accused stayed at the location with the victims daughter. The victim returned in the afternoon. The accused and the victim did not talk. The accused was on the balcony having a cigarette. During this cigarette, the victim left the location with her daughter and went to her mothers address.”[17]
[17] Ibid.
A NSW Police record of 5 January 2020 states:
“About 3:30pm on Sunday the 5th of January 2020, the accused has arrived at the address of the victims mother. The accused and the victim were calm and communicated about the incident although both disagreed. The sister of the victim agreed that there was no arguments or even raised voices.
The accused did no leave the location when asked as to why the victim has contacted Police.
The victim made a disclosure about bruises on her outer forearms. The bruises indicated that the victim had her arms up at one point in the conflict. Police explored this resulting in the above information being obtained.
Both the accused and the victim were placed under arrest, cautioned and conveyed back to Bankstown Police Station where they were each interviewed in relation to the incident. The accused and the victim have both provided conflicting versions about the incident as to where defining a clear aggressor is almost impossible. Between the temperamental nature of the victim and the inability for the accused to just disengage an argument has resulted in a significant conflict in which Police are unable to determine who is the offender in the circumstances.
The matter has been referred to the Domestic Violence Liaison Team for follow-up.
In the interim, Police have applied for an Apprehended Violence Order preventing the accused from contacting the victim until the matter is in front of the court. The decision as to whom is the accused was purely based on the accused attending the mothers address uninvited at a volatile time in the relationship.
Police have significant fears that neither party has the ability to control their own contributing behaviour which could be potentially catastrophic and life threatening.
The accused and the victim have been clear with Police that neither wanted Police intervention and under the circumstances will most likely oppose any legal process taken against either party.”[18]
[18] HB 188-189.
In about May of 2020, Ms AP fell pregnant for a second time.
On 9 February 2021, the Applicant’s daughter with Ms AP, Child A, was born.[19]
[19] HB 275.
In 2022, the Applicant’s parents visited from Chile.[20]
[20] HB 15 at [19].
On 22 March 2022, the Applicant received a 2-year conditional release without conviction arising from family violence offences. He was to undertake anger management counselling or psychological counselling, and to obtain a mental health plan.[21]
[21] HB 265-266.
On 20 May 2022, the Applicant’s relationship with Ms AP ended. According to her statements in evidence, she does, however, want the Applicant’s ongoing financial support and for him to remain a part of Child A’s life here in Australia.[22] He has maintained connection with Child A.[23]
[22] HB 298.
[23] HB 18 at [37]-[41].
Unfortunately, Ms AP was not called to provide more detail about the Applicant’s relationship with Child A, or their likely ongoing access/ parenting arrangements. The Applicant told the Tribunal that Ms AP has a new partner now.
The Applicant sought psychological counselling after this relationship ended.[24]
[24] HB 15 at [21].
The Applicant discussed his history of family violence against Ms AP with NSW Corrections officers in the following terms:
“Questioned about history of domestic violence offending (prior to [VR]). Confirmed that the offences in 2020 related to his previous relationship/marraige with [AP]. Described this as a "toxic relationship" by indicating that they had both been charged with the same DV offences at that time. Decided that the arguments were too frequent between them and it was impacting ( Child A) so had requested a divorce. State that they are now co-parenting and try to support one another in the best interest of their daughter.
Throughout discussion around present and past domestic violence offending, Hector denied any physical assaults against his intimate partners and reported that verbal arguments would often occur frequently which led to his relationships deteriorating. He did not identify any specific cause behind these arguments, appeared he was unable or unwilling to provide further detail behind these interactions. Advised Hector that if he were to be subject to a supervision period, there would be future conversations around his reactions to these situations, how to de-escalate conflict and remove himself from the situation safely.”[25]
[25] HB 72.
In about May or June of 2023, the Applicant met Ms VR. They lived together for a few months until December 2023.[26] A lot happened during that brief period.
[26] HB 17 at [28]-[31].
The Applicant accepted that it was a mistake to commence a new relationship with Ms VR so quickly after his separation from Ms AP. He conceded that his counsellor advised against it at the time. He went ahead anyway.
On 9 August 2023, a NSW police fact sheet states:
“OFFENCE 1: MALICIOUS DAMAGE Around 8:30pm on Wednesday the 9th of August 2023, the victim has returned home, upon retuning the victim immediately noticed that a bag she had packed to leave the apartment was now opened. The bag was locked closed with a padlock; the victim noticed that the padlock had been broken open by the accused and the contents thrown around the room. The Accused stated that he had opened the bag as he believed that the clothes inside belonged to him.
OFFENCE 2: COMMON ASSAULT
An argument over this has occurred and the victim went into the main bedroom to collect more of her belonging, the accused again pleaded with the victim to stop texting the accused's mother, the victim ignored the accused, and the accused attempted to exit the bedroom, but the victim did not allow his to leave the room. The accused then with two hands to grabbed the victim by her upper arms and push her backwards resulting in the victim falling backwards onto the bed. This action caused the victim to fear for her safety, so she got back up and went back into the spare bedroom to continue packing her belongings. The accused followed the victim into the spare bedroom and the pair continued to argue.
OFFENCE 3: COMMON ASSAULT Whilst in the bedroom the accused believed that the victim was still and continuing texting his mother, so he took the phone out of the Victim's hands, placed the phone into his pocket and left the room. The victim followed the accused into the lounge-room and attempted to get her phone back, as she did so the accused used two hands to push her backwards away from him, this action caused the victim to fall backwards onto the couch. The victim was fearful for her safety, so she contacted a friend who contacted 000.
A short time later, Police arrived at the location. Police activated Body Worn Video Cameras (BWV) to which they were met by the accused. Police went inside the dwelling where they located the victim who was visibly upset and shaking in fear.
Police still wearing Body Worn Video (BWV) have placed the accused under arrest and conveyed him to Cabramatta Police Station where he was introduced to the custody manager and read his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002. The accused was asked if he would like to participate in an Electronically recorded interview to which he agreed, [redacted] was conducted, during this interview the accused made admissions to the malicious damage but denied the accusations of assault….”[27]
[27] HB 75-76.

On 10 August 2023, the police sought an AVO to protect Ms VR.[28] A NSW police fact sheet states:
“On the 10th of August 2023, police applied for and were granted an Apprehended Domestic Violence order (ADVO) listing the accused as the defendant and the victim as the person in need of protection (PINOP). The ADVO includes the following conditions: I. You must not do any of the following to protected people, or anyone she has/had a domestic relationship with: A) assault or threaten her B) stalk, harass or intimidate her, and C) intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of protected people 2. You must not approach protected people or contact her in any way, unless the contact is through a lawyer.
Around 3:00am on Thursday the 10th of August 2023, after being explained the conditions, the accused was released from Cabramatta custody and returned to his residential address by police. About 3: 13am shortly after the accused was released from police custody, he began to message the victim via whatsapp. The accused continued to message the victim over the next 24-hour period, with the last text message received about 1:00am Friday the 11th of August 2023. The accused sent about 197 text messages and seven (7) phone calls within that time-frame. All of these text messages and phone calls were unanswered by the victim. There was nothing threatening towards the victim in these text messages.
Within these text messages the accused stated words to the effect of "When they ask if I have spoken to you, say no because if you do, they will lock me up and then [redacted] and [redacted] would have to visit me in gaol. They will not look through your phone, they only ask you, just say no.'' The entire conversation was written in Spanish and translated via interpreter.
On Friday the 11th of august 2023, the victim attended Redfern police station where she provided police a Domestic Violence Evidence in Chief (DVEC) statement in relation to the most recent matter.
About 1400 on Friday 18th August 2023, police attended the home address of the accused, being [redacted]. The accused was placed under arrest and cautioned. While making their way to the police vehicle parked outside, the accused asked police, "is this because I text her?"
The Accused was conveyed to Fairfield Police Station where he was introduced to the Custody Manager and explained his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 with the assistance of a Spanish telephone interpreter, as there were no in-person interpreters available.
The accused was offered the opportunity to participate in an electronically recorded interview of suspected persons (ERISP), to which he declined.
The accused is now charged with the matter before the court.”[29]
[28] HB 17 at [32]-[34].
[29] HB 84-85.
The Applicant was unable to explain this frenetic behaviour, other than to say that he was immature at the time.
A NSW Police record of 17 August 2023 states:
“The accused and victim have been in an intimate relationship for approximately three months and have recently separated. As a result of their relationship, they do not have any children together however the accused has one child from a previous relationship. On Wednesday the 9th of August 2023, the Victim contacted Police and reported a domestic violence incident. That same evening the Accused was arrested, interviewed and charged in relation to the allegations, [redacted] relates. The Accused was explained and had served upon him an Apprehended Domestic Violence Order. The Accused was also granted conditional bail with a Victim Protection condition which is, to abide by any enforceable ADVO listing [VR] as the PINOP. On the 10th of August 2023, Police applied for an Apprehended Domestic Violence order on behalf of the Victim naming the Accused as the Defendant. The ADVO enlisted strict non-contact conditions including the following: 1. You must not do any of the following to protected people, or anyone she has/had a domestic relationship with: A) assault or threaten her B) stalk, harass or intimidate her, and C) intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of protected people 2. You must not approach protected people or contact her in any way, unless the contact is through a lawyer. Around 3:00am on Thursday the 10th of August 2023, after being explained the conditions, the accused was released from Cabramatta custody and returned to his residential address by police. About 3:13am shortly after the accused was released from police custody, he began to message the victim via whatsapp. The accused continued to message the victim over the next 24-hour period, with the last text message received about 1:00am Friday the 11th of August 2023. Within these text messages the accused stated words to the effect of "When they ask if I have spoken to you, say "no" because if you do, they will lock me up and then [redacted] and [redacted] would have to visit me in gaol. They will not look through your phone, they only ask you, just say "no". the entire conversation was written in Spanish and translated via interpreter. As a result of the messages, the Accused has breached his ADVO and his bail conditions by not abiding his ADVO conditions. On Friday the 11tho of august 2023, the victim attended Redfern police station to provide a Domestic Violence Evidence in Chief statement (DVEC) for the previous offence. While providing the statement, the victim disclosed the breach to police. Police obtained a second DVEC outlining this breach and obtained numerous photos capturing the conversation between the accused and the victim. About xxxxxxxxxxxxxxxxxxxxx23, police attended xxxxxxxxxxxxxxxxxxxx where the Accused was cautioned and arrested. ……….”[30]
[30] HB 182-183.
In about September 2023, Ms VR fell pregnant to the Applicant. She had an abortion.[31] The Applicant told the Tribunal that they had plans to have a baby and that he was unhappy about her decision to terminate the pregnancy. He tried to prevent it.
[31] HB 106.
A NSW Police record of 25 September 2023 states:
“Police attended and activated their BWV, and could not raise anyone at the address. Police raised the neighbour from [redacted address] Who stated that she saw the VIC and POI in [redacted address] whereby the VIC was upset as she was pregnant and she did not know what to do. We asked her to describe the female and she knew the female was the blonde girlfriend of the POI ‘[redacted]’ (VIC middle name), and knew that the POI had a previous wife and that the POI's name was Hector. Police made attempts to call VIC on PH: [redacted number] with nil answer, message left. Police made attempts to contact POI on last recorded PH with nil answer. Police made sent a CAD JOB to VIC's prev recorded [redacted suburb] Address, which is on narrative 2. About 1515 the same day, the VIC has returned the OIC phone call. OIC notes, in previous dealing with VIC that she is NESB, with limited English due to Spanish being her first language (in contrast to South Sydney narrative stating VIC is 'belligerent'). VIC stated that she has not been in contact with POI since August, and that she was no residing at [redacted address]. VIC believes that the POI's ex partner is now jealous that she is pregnant with POI's child and is trying to get him in trouble. OIC has dealt with VIC and POI previously around August during original event leading to the ADVO and at that time VIC was not pregnant, for WIT to know this she must have seen the VIC at residence recently. However, VIC was adamant that she was ever at the residence stating it was a 'lie'. Police returned at 1600 and again could not raise anyone however, noted CCTV which covers the garage entrance and the main entrance, which would verify whether or not VIC has been attending [redacted] residence.”[32]
[32] HB 180.
A NSW Corrections report of 9 October 2023 assessed the Applicant as being a “low risk” of reoffending.[33]
[33] HB 150.
On 16 October 2023, the Applicant was again in court as a result of the various family violence offences set out above. He was sentenced to a Community Corrections Order for 24 months from 16 October 2023 to 15 October 2025.[34]
[34] HB 251-252.
On 25 to 26 November 2023, the Applicant contravened an AVO for the protection of Ms VR.[35]
[35] HB 88.
At around the same time, in November 2023, Ms VR again fell pregnant.[36]
[36] HB 106.
On this occasion the Applicant told the Tribunal that he wanted Ms VR to have an abortion, but she refused.
On 25 November 2023, a NSW police fact sheet states:
“About 9pm on Saturday 25 November 2023, the accused and the victim travelled into the Sydney City CBD. Throughout the evening, the accused and victim argued regarding the victim wanting to go home and the accused refusing to let her go home.
About midnight, the accused and victim were inside the accused's vehicle in the vicinity of Circular Quay SYDNEY NSW 2000. The accused was sitting in the driver's seat and the victim was sitting in the passengers at when the victim attempted to leave the accused's vehicle. The accused grabbed the victim by her forearm and bag and forcefully pulled her back into the vehicle. This caused the victim to feel immediate pain to her forearm.
During the morning on Saturday 2 December 2023, the accused and victim were inside their residence at [redacted]. The accused has engaged in a verbal argument with the victim regarding nothing in particular. The accused told the victim to leave the residence, the victim immediately left.
About an hour later, the accused contacted the victim via phone requesting she return as he had changed his mind. The victim refused to return to the residence.
The accused attempted to phone the victim and message her on Whatsapp. The victim did not respond. The accused's behaviour began to escalate and he threatened the victim that if she did not abort the pregnancy on Monday 4 December 2023 the accused would share intimate images of the victim with her father.
The victim blocked the accused on Whatsapp. The accused sent an unreasonable amount of emails to the victim and phoned her from an unknown number an excessive number of times.”[37]
[37] HB 106-107.
On 5 December 2023, the Applicant used a mobile phone to harass Ms VR by distributing an intimate image of her to her father.[38] The Applicant was not satisfied with her refusal to have an abortion, so he sought to manipulate her father in Colombia, into persuading her to do so. He also refused to cooperate, which angered the Applicant.
[38] HB 90, 92, 103.
On 5 December 2023, a NSW police fact sheet states the details:
“About 12pm on Tuesday 5 December 2023, the accused sent the victim’s father an intimate image of her via Whatsapp. The accused elected the setting "Photo set to view once". The intimate image contained the victim without clothing, lying on her side with her face in the vicinity of the accused's genital area.
A short time later, the victim's father opened the image and immediately contacted the victim informing her of the image he had received.
The accused sent the victim further emails stating that if she did not contact him and proceed with the abortion he would send further images.
About 6pm on Tuesday 5 December 2023, the victim attended Day Street Police Station to report the incident.
The accused has breached the apprehended domestic violence order, listing him as the defendant, by assaulting, harassing and threatening the victim.
Police have applied for a provisional apprehended domestic violence order for further protection of the victim.”[39]
[39] HB 107.
The Applicant acknowledges that this was wrong.[40]
[40] HB 18 at [36].
The Applicant was unable, however, to explain to the Tribunal why he had the seemingly bizarre idea to send such an image to Ms VR’s father. He said that he was upset by her fathers’ response to his request to intervene in their conversation about Ms VR having an abortion. How he could possibly have thought that this action would assist his cause, is a mystery.
A NSW Police record of 5 December 2023 states:
“The accused in the matter is Hector ABARCA-ROMAN. The victim in the matter is [VR]. The accused and victim have been in an off and on again intimate relationship since approximately May 2023. The accused and victim have previously resided together at [redacted]. An apprehended domestic violence order is currently enforceable listing the victim as the PINOP and the accused as the defendant. The apprehended domestic violence order was originally applied for by police in August 2023. The current conditions in the apprehended domestic violence order are: 1. You must not do any of the following to <<protected people>>, or anyone <<she/he/they>> <<has/have>> a domestic relationship with: A) assault or threaten <<her/him/them>>, B) stalk, harass or intimidate <<her/him/them>>, and C) intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of <<protected people>> Around September 2023, the victim fell pregnant by the accused. The victim aborted the pregnancy. During November 2023, the victim fell pregnant again by the accused and late November became aware she was pregnant. About 9pm on Saturday 25 November 2023, the accused and the victim travelled into the Sydney City CBD. Throughout the evening, the accused and victim argued regarding the victim wanting to go home and the accused refusing to let her go home. About midnight, the accused and victim were inside the accused's vehicle in the vicinity of Circular Quay SYDNEY NSW 2000. The accused was sitting in the driver's seat and the victim was sitting in the passenger seat when the victim attempted to leave the accused's vehicle. The accused grabbed the victim by her forearm and bag and forcefully pulled her back into the vehicle. This caused the victim to feel immediate pain to her forearm. During the morning on Saturday 2 December 2023, the accused and victim were inside their residence at [redacted]. The accused has engaged in a verbal argument with the victim regarding nothing in particular. The accused told the victim to leave the residence, the victim immediately left. About an hour later, the accused contacted the victim via phone requesting she return as he had changed his mind. The victim refused to return to the residence. The accused attempted to phone the victim and message her on Whatsapp. The victim did not respond. The accused's behaviour began to escalate and he threatened the victim that if she did not abort the pregnancy on Monday 4 December 2023 the accused would share intimate images of the victim with her father. The victim blocked the accused on Whatsapp. The accused sent an unreasonable amount of emails to the victim and phoned her from an unknown number an excessive number of times. About 12pm on Tuesday 5 December 2023, the accused sent the victim's father an intimate image of her via Whatsapp. The accused elected the setting "Photo set to view once". The intimate image contained the victim without clothing, lying on her side with her face in the vicinity of the accused's genital area. A short time later, the victim's father opened the image and immediately contacted the victim informing her of the image he had received. The accused sent the victim further emails stating that if she did not contact him and proceed with the abortion he would send further images. About 6pm on Tuesday 5 December 2023, the victim attended Day Street Police Station to report the incident. The accused has breached the apprehended domestic violence order, listing him as the defendant, by assaulting, harassing and threatening the victim. Police have applied for a provisional apprehended domestic violence order for further protection of the victim. About ___ on ___ __ December 2023, police attended __________. Police introduced themselves in accordance with Law Enforcement (Powers and Responsibilities) Act 2002. The accused was placed under arrest and cautioned in accordance with the Evidence Act 1995. The accused was conveyed to ____ Police Station, where he was introduced to the custody manager and informed of his Part 9 rights. The accused was offered the opportunity to be interviewed which he ______. The accused made _____ admissions. The accused is now charged and the matter is before the court.”[41]
[41] HB 174-175.
The Applicant discussed this with NSW Corrections officers in the following terms:
“Prior to the message offences occurring, Hector reported that Vivianna and himself had an argument because he had taken his daughter Amelia (from his first relationship) out and Vivianna had been making comments similar to What child would you love more? And had started to be rude to Amelia. He had directed/ kicked her out of the unit, feeling defensive of his relationship with Amelia and said he would always put his daughter first and choose her over Vivianna.
Hector stated that Vivianna had made him anxious speaking of the abortion of their child when leaving his unit. He had initially been messaging her to not terminate the pregnancy, however was frustrated and then said to abort the child, not wanting to have another 'failed' family unit. Would send messages such as: Don't leave me like that. What are you going to do? OK do it. Reported feeling very confused and anxious during that time. When challenged if he said the statement written in the Police facts (threat) he confirmed he had said that, however had many messages before that asking her not to abort the pregnancy.
Vivianna's father then messaged him on Whatsapp and started the argument. Hector stated he understood why her father was angry at him, however her father made a comment that Hector could not even give his daughter a good home. So Hector, becoming angry, sent an intimate photo of his daughter to him. Stated that the photo was not sent as a threat to Vivianna but as a response to the father's comment about his own daughter. Minimised that he had pixellated the image so you could not see any of her intimate parts. Although acknowledged that he should not have done this as it was not the right thing to do.”[42]
[42] HB 135.
On 6 December 2023, the Applicant was arrested.[43]
[43] HB 104.
In January 2024, the Applicant’s parents returned to Chile.[44]
[44] HB 16 at [22], HB 107.
On 5 January 2024, the Applicant was taken into custody.[45]
[45] HB 251.
A NSW Corrections report of 19 January 2024 assessed the Applicant as being a “low/medium risk” of reoffending.[46] He had reoffended since the last risk assessment of “low risk”, on 9 October 2023 (above).
[46] HB 156.
On 22 January 2024, the Applicant was again in court as a result of family violence offences. He was sentenced to an aggregate of 12 months imprisonment from 5 January 2024 for those offences, with a 5 month non-parole period.[47]
[47] HB 250-251, 253-262.
On 12 February 2024, the Visa was mandatorily cancelled under section 501(3A) of the Act.[48]
[48] HB 234, 347-353.
On 24 February, the Applicant made representations seeking revocation of the Visa cancellation.[49]
[49] HB 234.
On 4 June 2024, the Applicant became eligible for parole. He was taken into immigration detention.
On 24 June 2024, the Applicant provided a statement in the following terms:
“My name is Hector Jose Abarca Roman. I am writing to you to kindly request that you consider my case. I want to tell you, with much respect and honesty, how this whole experience has been and why I find myself in this situation today.
I was born in Venezuela but grew up in Chile. South America is a culture with both very good and very bad aspects. However, I grew up with good parents; my siblings and I were raised in The Church of Jesus Christ of Latter-day Saints, also known as the 'Mormons'. We understand very well the importance of family and know how to distinguish between right and wrong. But we are all human, and sometimes life teaches us in different ways.
I decided to come to Australia in 2019, five years ago. I came to study and to have a personal and spiritual experience. In Chile, I never had any problems with the law or even been to a police station. I simply tried to be a good son and work honestly. I completed all my studies; I attended university and then focused on working because the reality in South America is different. There is a lack of opportunity, inequality, and mental health issues abound in the streets.
I saved all my earnings and came here because I needed to grow as a person and spiritually. I was exhausted, and there were many social aspects I didn't like. Upon arriving here, I won't say it was easy, but I was happy and fulfilling a dream. My parents were proud of me, and I thought, 'This is a good place to start my family.' Australia is a very good country, despite my situation; both the judges and the police did the right thing and gave me opportunities, but due to immaturity and recklessness, I ended up here.
Here, I met the mother of my daughter; she already had two girls. We fell in love with the idea of creating a family. I wanted to be a father to her daughters and her partner. We applied for a partner visa, and later I obtained my residency. Problems arose later due to insecurities and crises in our lives. There was violence from both sides, stemming from fears and insecurities. She is a very good mother, but I believe we all have our internal struggles. One day, we had a strong argument and decided together to call the police because we both needed help. We both faced the same charges; it was a sad process. Eventually, we decided to keep fighting, and then our little one arrived.
[Child A], my daughter, taught me what true love really is. I always wanted a girl, and we enjoyed a beautiful pregnancy with [AP] and the girls. Many photos and moments with this family we were creating. But I think our mistake was trying to fix the relationship with a baby. Later, I was able to invite my parents to Australia for one year, to see them after three years and for them to meet their granddaughter.
Arguments with [AP] continued but without violence, and the love between us was already very weak. With the support of my parents and for the good of everyone, I had to make the most difficult decision of my life, which was to end my relationship and stop seeing my little one every day. I was never prepared for something like this, and that decision caused a very deep wound in me; I feel like I had never experienced such great pain. But my comfort is knowing that I did it for my daughter because I never wanted a bad home for her or for her to grow up watching her parents argue. After this, I fell into a deep depression and anxiety. I started therapy with a psychologist because I cried almost every day missing my daughter dearly. Being without friends or family support took a toll on me. I focused solely on work and trying to be well for my daughter. I've never had issues with alcohol, drugs, or working illegally; I've always tried to live a simple, honest life, and creating a family has always been my priority. I owe these values to my parents and how they raised me.
After my separation, I focused on my parents being with me and my daughter, and on caring for my job. After a year, they returned to Chile, leaving a void and sorrow within me. I met another girl and tried to give us another chance without healing my pain first. Of course, it was destined to fail again. Now, it was me filled with fears and insecurities.
My desire to give my daughter a home, a family, and a good example, and my fear of failing again, led to occasional arguments. She is a student eager to stay in Australia. I told her my entire story and my plans for me and my daughter, and she agreed to build something together. But over time, I noticed things I didn't like. I don't think she fully understood my pain, frustration, and love for my daughter. Our last argument was because I took my daughter to see Santa Claus, and she got upset because I was more focused on my daughter than on her. It was my weekend with my daughter, and she was willing to argue in front of her.
At that moment, I decided I didn't want her with us anymore and asked her to leave my apartment. Then her father started sending me messages; I tried to speak to him amicably, but he told me that I couldn't provide a home for my own daughter. It was then that I made the mistake and foolishness of sending a sexual image.
An officer called me on the phone. I finished work and went to the police station. Before being arrested, I applied for my parents' visa so they could spend Christmas with me and my daughter. I was arrested on December 7th, and my parents arrived two weeks later.
All of this has been a powerful experience in my life and a great lesson. As a Christian, I know that God always tries to help us become better people; I know that life is full of trials and difficulties. I spent 6 months in jail and now in a detention center, places full of sadness and confusion.
I can see people who understand why they are here and others who do not. There are also drugs, and there are those who seek refuge in them. But I know very well who I am; I know I made bad decisions, that I was immature and unconscious. I also know that the cause of this has been my frustrations in trying to be a source of pride for my parents and an example for my daughter, and not knowing how to control that pain that turns into anger towards myself.
I have had enough time to reflect on many things. And I realize that there are no perfect parents or children; I must forgive myself and forgive others as well.
Honestly, everyone who knows me knows that I am not a bad person or someone who tries to harm others. I know I was in jail, but I know very well that I don't belong in that place.”[50]
[50] HB 290-292.

An IHMS record of 7 August 2024 states:
“Hector spoke about the DV charges. Reported first charge was with his former partner where there was a cross AVO against both. Hector stated he had good behaviour order for same, and it was around that time he had decided to leave the relationship. Reported 6 months later ;he got into a new relationship, thinking that it will help him move on from his previous relationship. However, Hector reflected that this wasn't a good idea because he's now realized that he hadn't dealt with the issues from his previous relationship. Stated him and his current partner got into an argument that escalated and police was called. Stated he was charged with assault (stated he pushed her out of the way to leave the room), ;and this paired with the previous DV charge, was sentenced to 6 months jail and permanent residency got cancelled. ;
Hector reported he's had plenty of time to reflect on both situations. Acknowledged his part in the situations and took full responsibility.
Expressed a lot of remorse for his actions. Stated he is working on himself so it doesn't happen again. I discussed Taking Responsibility (Men's Behavioural Change Program) through Relationships Australia NSW. Informed him it's an intensive program involving casework and an 18-week group program. Encouraged him to look into the program and give them a call; Hector was receptive of same .
Hector spoke about current stressors:
- doesn't have access to his bank account because he changed his mobile number. Needs to go to a branch to get it sorted. Have put in multiple requests with Serco/Welfare but haven't gotten any response. Anxious about this because apparently he's received warning letters from water/electricity that if he doesn't pay his bills they will cease the services. Stressed because his parents are living in his unit and needs this sorted asap.
- parents want to extend their stay in Australia to support Hector while he's here . His parents are elderly and rely on Hector to complete the paperwork.
- have started smoking cigarettes again. Doesn't like it. Used to smoke but stopped when his daughter was born. Have restarted since he's arrived here.
- ongoing feelings of anxiousness and stress when thinking about his situation
on the bright side, stated his daughter visited this week and she was well. Was happy to see her and his parents .
We discussed:
Reviewed his sleep hygiene. Reported he implemented the strategies and it' been working. Got 7 hours of sleep last night. Went stress management strategies. Reminded him of his coping strategies. Spoke about the locus of control/here and now focus.
Encouraged him to continue with his routine.
Offered to refer him to D&A counselling for smoking cessation. He said he wanted to try to quit on his own and will let me know in next session.”[51]
[51] HB 312.
An IHMS record of 22 August 2024 states:
“Hector reported he was able to go to the bank last week and get his account sorted. Was able to pay his outstanding bills. Also stated his parents spoke to the Church and they've agreed to financially support Hector by paying some of his rent. Feeling appreciative and relieved.
Stated his main stressor now is:
1. extending his parent's visa ; stated he's spoken to an immigration lawyer and is planning on lodging the application for them
2. immigration matters; reported he's spoken to his SRO who advised he may be in immigration detention "for a long time". Worried about this. Stated he's heard from other detainees usually average wait time for revocation is around 6-8 months. Been here for 3 months, hoping he'll hear something in the next 3-4 months. Stated his main goal is to be with his daughter and parents, and work to provide for his family. Hector reported nil issues with sleep. Been following sleep hygiene and it's working. Continues to engage in routine (attends gym, plays soccer, socializes with others) .
Hector reported he's reduced his cigarette intake. Has a smoke after his meal , that way he has appetite to eat.
Positive feedback ;was given around his healthy coping strategies and his effort to make positive changes .
Hector and I also spoke about domestic violence. Hector stated he's spent a lot of time since his incarceration to reflect on how he got here.
Expressed remorse for his actions and reported he takes responsibility for it. Stated he's been thinking a lot about the source of his frustrations so that he can address it. Brief exploration of his emotions was done, however, we agreed to go more in depth in next session.
[52] HB 314.
Reported he contacted Relationships Australia NSW regarding the Men's Behavioural Change Program. Was given a form, will complete and return.”[52]
On 11 November 2024, the Applicant provided a statement in the following terms:
“To Whom It May Concern:
My name is Hector Jose Abarca Roman. I am writing to kindly ask that you consider my case. I want to respectfully and honestly share with you my experience and explain why I find myself in this situation today.
I was born in Venezuela, but I grew up in Chile. Life in South America is difficult and challenging. However, I was raised by good parents, and my siblings and I grew up in The Church of Jesus Christ of Latter-day Saints, also known as the "Mormon" church. We understand very well the importance of family, and I am well aware of the difference between right and wrong. But we are human, and sometimes life teaches us in ways that are different for each of us.
In 2019, I decided to come to Australia, five years ago now. I came to study and to have personal experience that would help me grow spiritually.
In Chile, I never had any trouble with the law, I was never in a police station. I just focused on trying to be a good young man, a good person, to work honestly, and to be a good son. I completed all my studies, went to university, and then focused on working. The lack of opportunity is great, and inequality and corruption are widespread in the country.
I gathered all my savings, left my parents' house, and came to live my dream in this beautiful country. When I arrived, I wouldn't say it was easy, but I was happy and fulfilling my goals. My parents were proud and happy for me. As soon as I arrived here, I realized that the cultural change was huge, everything worked as it should. The people were polite and respectful. I was very happy and motivated. I was very responsible with my studies and my work in construction. I realized this is a good place to build my family and live peacefully. Australia is a great country, and I feel that both the judges and the police did the right thing. They gave me opportunities, and it was because of immaturity, unconsciousness, and emotional instability that I ended up in my current situation.
In my second year as a student, I met the mother of my daughter, [AP]. She already had two daughters from a previous relationship. At first, everything went well, we fell deeply in love, and we were also very eager to form the family we both wanted. I wanted to be a father to her daughters, and it was beautiful when I realized that being a stepfather was a noble and wonderful task for those girls. I took the responsibility very seriously and supported the girls in personal matters, at school, and as a partner, I always tried to make [AP] happy.
Soon after, we applied for the partner visa, and issues of insecurities and crises in our relationship began to arise. We started arguing more frequently, and I personally feel that love, disrespect, and the fear of failing as a family were not a good combination for us. Because with each argument, that love weakened more and more, creating deep wounds for both of us. This led to moments of violence from both sides, born out of pain and internal fears.
One day we had a strong argument and decided to call the police together, as we both needed urgent help. It was no longer just words but physical aggression. Living through these kinds of situations is something I wouldn't wish on anyone. They are very strong traumas. I've never been someone who enjoys others' suffering; quite the opposite, I consider myself an emotionally empathetic person. That's why, after these crises, I felt terrible, and I [AP] Alison felt the same way. You start to question your values and yourself as a person. You think you've failed your parents, your children, and yourself. I went to my mother-in-law's house at the time, spoke to everyone, and to [AP] as well. We didn't know what to do, so we called the police, seeking help for both of us.
The police arrived, took our statements, and I don't think either of us ever expected it to escalate to the point where we were both detained together at the police station. We were both charged with the same offenses. I remember it was a sad process to see ourselves in that place.
Over time, we decided to continue our relationship. We went before a judge and requested their permission. After this, we decided to have a child, our precious little one. I think we thought that something as beautiful as a baby could help us both heal those wounds. I always wanted a girl, and we lived the pregnancy in a very lovely way with [AP] and the girls.
When [Child A] was born, I understood what true love is. I believe there are different kinds of love in life, but the love for children is something hard to explain and transcends what we usually think of as love. So many photos and moments with this family we were creating. But I think our mistake was trying to fix our relationship in this way. Although, if you ask me, I can't regret having my daughter.
But I regret not being able to save our family. Later, I was able to invite my parents to Australia for a year, to see them after three years and to meet their granddaughter.
The arguments between [AP] and me continued, and the love was very weak, filled with disappointment from both sides. There was a lot of confusion. But what I am sure of is that we were both tired, and we couldn't risk hurting the girls and our baby anymore. With the support of my parents and for everyone's well-being, I had to make the hardest decision of my life: to end the relationship. I mentioned earlier that [AP] also fought until the end, because when I made this decision, I could see the sadness in her eyes as well. This hurt me deeply because I never wanted to hurt her or fail her either, but I knew I did it for the good of everyone.
Not seeing my little girl every day was something I was never prepared for, and that decision left a deep wound in me. I feel like I have never experienced such a great pain in my life. But my comfort, as I said, is that I knew I never wanted a bad home for her, nor for her to grow up seeing her parents argue. Now, I can also see things I didn't see clearly before. I understand [AP] more, her life, her pains, and her struggles, since she has not had an easy life since childhood. But we were both very irresponsible.
[AP] is an excellent mother and partner, and I am sure she fought until the end for our family, just like me. To this day, she has supported me throughout this process, along with my parents. My parents and (AP) have a very good relationship, and they care for my daughter without any problems. This makes me very happy and optimistic, because I know we both want happiness for our daughter, and having a good relationship between us is essential. I will always be grateful for, respect, and love her because she is the mother of my daughter and for everything we went through, but I also believe that we all have our internal struggles, and we didn't know how to solve or heal them at the time.
After my separation, I fell into severe depression and anxiety. I started treatment with a psychologist because I cried almost every day for my daughter and missed her so much. I felt ashamed to see her sometimes because I felt like a bad father, and I couldn't bear having to say goodbye to her. It might sound selfish, but if someone hasn't been through that, it's very hard to understand. Seeing her face not understanding why I wasn’t going with her was incredibly painful. I also felt like I had failed everyone, that I had failed as a man, a father, and a son. Being without friends or family and without any support, I also feel worsened my situation. I only focused on continuing to work and trying to be okay for my daughter when I was with her. I have never had problems with alcohol, drugs, or illegal work. I have always tried to do things right and live a simple and honest life. Building my family has always been a dream for me. I owe this to my parents and the upbringing they gave me.
After my separation, I only focused on making sure my parents and daughter were well, and on taking care of my job. A few months later, they returned to Chile.
When they left, I felt an immense void, but I kept fighting with those pains inside me, and that's when I met another girl. I tried to give myself another chance, but without realizing I wasn't yet ready. Deep down, I just wanted to give my daughter a home and a good example, and with that, another opportunity to continue my life and alleviate some of the pain.
I met [VR], a girl who came from Colombia also seeking her dreams, and we started dating. She had been here for months as a student, and we fell in love. I tried to help her in every way I could. But with the problems I now carried, and the emotional baggage, I wasn't able to maintain this relationship, and she too couldn't understand me. I don’t blame her or anyone. It was just a series of unfortunate events. Not much time passed, and we thought we were the perfect couple—there was love, affection, and dreams to fulfill.
But the arguments began, and I couldn’t believe I was in another unstable relationship. We had only been together for six months, and I found myself again caught between a deep desire to heal, be happy, and the reality of my situation. This time, although there were no physical aggressions, there were anger and very immature actions from both of us, which I don't justify at all.
[VR] and I were in love, but I think she didn’t fully understand my pain and what I was going through. But, as I said before, it is not her fault that I was emotionally unstable. It wasn’t her responsibility to understand or heal me.
As I mentioned earlier, life teaches us in ways we don’t always understand immediately, but as we suffer and go through different tests, we begin to learn. With time, maturity, and the right perspective on what it means to live, we can understand many things.
Now I can see that [VR] simply went through the same thing I once went through. At the same time, I understand the mother of my daughter much more. And I understand myself better too.
I was in prison for 6 months and another 5 months in the detention centre where I am now. It has been 10 months of deep reflection.
I know I made mistakes, that I was immature and irresponsible, that I didn't know how to deal with my emotions. But I firmly believe that going through these things teaches us to become better people if we learn to love and forgive others and ourselves. This has been a very hard process, and I won’t deny it. I missed Christmas with my parents and my daughter because before I was arrested, I had bought tickets for my parents to visit me again and meet their granddaughter. I missed my daughter’s birthday, something I will always remember. I had to see my parents suffer because of me and go through a situation I never thought I’d be in. I believe I paid justly for my mistakes. However, I feel and believe that taking away the opportunity and right for my daughter to grow up with the love of her father and grandparents, and denying me the right and blessing to watch her grow, care for, love, and educate her, is too cruel and unfair for both of us and the whole family.
Just as I feel this has been a tough experience, I also feel thankful for having gone through it, because today I am at peace. I feel that I have healed and understood many things. I have matured, and I feel supported and equipped with the tools to move forward.
During all this time here in the centre, I’ve heard many complain and blame others for their situations, blaming the way the laws are written, and not understanding in depth why they are in their situations, just like me. On the other hand, I thank this experience, because I feel it has helped me grow as a person.
I feel that my purpose has been fulfilled over the past almost 6 years when I started this search for my path, without knowing how it was meant to come together. I’ve taken this time very seriously, as a pause in my life to reflect and understand many things. To understand myself better, to love myself more, to forgive myself, and to forgive my mistakes. I’ve reinforced my values and principles, the love for my family, and the truth of my faith in God and His gospel.
During this time, I have continued receiving psychological support and have taken courses that have helped me heal and understand the situation I went through. Despite being in difficult places, I have stayed away from any kind of problems or distractions that would not help me with my goal of leaving here as a better person. For me, for my daughter, for my family, and for the community.
Finally, I also want to thank all the organizations and their people for their actions and criteria. I am very happy that my daughter has the opportunity to grow up in a safe country that will protect her and give her the opportunity to be a happy girl, young woman, and woman, and I will be there to support her in whatever she decides to do with her future. That is my wish as a father.
I kindly ask you to give me the opportunity to move forward, to be with my family and daughter, to return to my job, which I also miss, and to be able to use this experience to contribute to society and those around me.
I know very well what kind of person I am and where I come from. I have always been truthful. I have also been honest throughout this process, with the police, psychologists, courts, my family, and now I am honest with you. The difference is that after going through all of this, I am much more aware of my mistakes and why I ended up in this situation. I ask now that you and the professionals reviewing my case truly understand a little bit of what I have tried to explain, because I know it is difficult to understand my situation unless someone has experienced it as I have. I am aware of that as well, and that is why I make this request to you.
I also know that my daughter means everything to me. She is the most important thing in my life, and I can't imagine my life without her. It hurts me to think that she may lose her father. Just as it hurts me every week when she visits me and says she wants to go to the park or that she wants me to come back home. All I can say is that I love her, that I think of her every day, and that her dad is working but will come back soon. She is only 3 years old, and I am missing precious moments with her.
My truth:
[video link redacted]
Thank you for your consideration.”[53]
[53] HB 293-297.
A NSW Police record dated 17 June 2025 states that Ms AP reported further historic instances of family violence:
“In the month of June 2025 the vic was informed that the PN was being deported and the pn was appealing the deportation. As a result of this the vic attended Fairfield Police station to report historic offences. The vic attended Fairfield Police station and stated on an unknown day in September 2021 the PN slapped the vic to the back of the head in their residence in [redacted]. The vic stated he has slapped her other times but she could not remember when or where they occurred or the circumstances around them. Nil injuries were sustained or witnesses avialable. Police questioned why the vic did not report the prev assaults where she stated she did not want to spilt up and she thought he had changed and would not do it again. The vic also stated they separated at the end of 2021. In Jan 2024 the PN received a custodial sentence for 12 months for a unrelated matter and was released from jail in Jan 2025 and has since been in Immigration in Villawood. The PN has had regular contact with the vic during this times with nil offences committed. Police at this stage do not have sufficient grounds to charge or even apply for an avo due to the length of time since the offences have been alleged to occur which there is no other evidence available to prove the offences. The vic has also stated the pn has had regular contact with the vic for over 12 months with no offences occurring. Police spoke to the mobile supervisor and agreed that due to the above information police do not have grounds to apply for an avo or proceed criminally. The vic was advised and understood and was happy for a record to be made only.”[54]
[54] HB 173.

Ms AP was not called, so it was not possible to ask her anything about these other reported instances of family violence.
On 30 June 2025, the Respondent decided not to revoke the Visa cancellation.[55]
[55] HB 223-248.
On 29 August 2025, Ms AP prepared a brief Statutory Declaration in these terms:
“I, [AP] of [redacted], make the following declaration under the Statutory Declarations Act 1959:
1.I am the biological mother of [Child A]. Hector and I are no longer in a relationship.
2.have had no personal contact with him for the past two years, and I am focused on my own peace and healing. However, I support Hector remaining in Australia so that he can be part of our daughter’s life.
3.I believe it is in my daughter’s best interests for her father to remain in Australia rather than be deported. If he were deported, [Child A] would not be able to see him in person.”[56]
[56] HB 24.
On 1 September 2025, Mr Watson-Munro a psychologist, prepared a report which relevantly states:
“Mr Abarca Roman describes a complex clinical and developmental history, characterised by longstanding symptoms of depression and anxiety, which have been compounded by him now facing an uncertain future in Australia. On a more positive note, there is no history of illicit drug use or alcohol abuse in this case. Additionally, I note that Mr Abarca Roman has undertaken some psychotherapy, inclusive of 10 sessions of treatment commencing in May 2023, in addition to 15 sessions of treatment with a therapist at the Villawood Immigration Detention Centre. He has now undertaken a total of 25 therapy sessions, which has been of considerable benefit to him in terms of better understanding his prior offending conduct, in addition to serving as a protective factor referable to reducing the risk of reoffending. Further, I note that Mr Abarca Roman has undertaken an Anger Management Program in October 2024, an Anxiety Therapy Program in November 2024, in addition to a Domestic Violence Awareness Program and a Depression Management Program dated 6 September and 29 October 2024.
Arising from these dynamics, coupled to his maturation with the effluxion of time, I believe that the risk of him reoffending is now trending from Moderate to Low.
…
Social History:
Mr Abarca Roman stated that he arrived in Australia on a Student Visa. He intended to study English and Business, and to this end, attended the [redacted college] in [redacted] Street in Sydney. During this period, he had various jobs in the construction building, working with marble installations, employment as a carpenter’s assistant, in addition to demolition work.
He extended his Student Visa for a further 12 months, with him then establishing a relationship with a 34 year old woman. The couple share a 4 year old daughter and in addition, his partner had two daughters from a previous relationship. Mr Abarca Roman stated that he continues to have contact with his daughter on a fortnightly basis. He reported that the relationship ended because of domestic violence and in fact, the parties had separated prior to the birth of his child. Mr Abarca Roman described the period of separation harrowing adding “I didn’t want my daughter to grow up in that situation… we both needed help… we were both violent”.
He obtained a work visa, which enabled him to be employed full-time, with him then securing employment with [redacted employer], where he remained for two years and [redacted employer] for two years.
Mr Abarca Roman stated that he has not worked for a number of years now. He has been lodged at the Villawood Immigration Detention Centre for about 14 months and prior to that was incarcerated for six months referable to domestic violence matters and him evidently having an image of his girlfriend which he had on threatened to distribute on his telephone.
…
Psychometric Assessment:
No formal psychometric testing was undertaken on this occasion, arising from cultural and language nuances. I note however in the documentation, that Mr Abarca Roman whilst not formally diagnosed with anxiety and stress, his psychotherapist notes that these symptoms were present at the time of her involvement with him. Attendant to this, the treatment modality recommended is appropriate. Additionally, I note that Mr Abarca Roman undertook a depression management program on 29 October 2024.
…
Opinion:
I will address this according to the issues raised in your covering letter of instruction.
1.Does Mr Abarca Roman present with any diagnosed or suspected mental health conditions?
Mr Abarca Roman is currently suffering features of an Anxiety Disorder and a Depressive Disorder. I note that he has previously been treated by Ms Maria Teresa Cajias Fernandez and whilst not making a formal diagnosis, nonetheless has. provided a Treatment Plan referable to his symptomatology concerning those conditions. This involves Cognitive Behaviour Therapy (CBT). Additionally, beyond the 10 sessions he has undertaken in the community. Mr Abarca Roman has undertaken a further 15 sessions of psychotherapy whilst in immigration detention. When assessed he was not suffering any major psychiatric disturbance and indeed was well oriented in time place and person and fully co-operative in terms of my questioning of him.
…
4.In my opinion, what is the likelihood that Mr Abarca Roman may engage in future criminal conduct or other serious behaviour?
Mr Abarca Roman has matured, has expressed remorse for his past conduct and of significance, has undertaken significant therapy to address the underlying dynamics surrounding his offending conduct. There is no further tension between him and his child’s mother and he is keen to continue with treatment in the Australian community, if he is permitted to remain here. Additionally, he is motivated to secure employment. This dynamic has been further galvanised by his anxiety regarding his potential return to Chile. He has lived in Australia since the age of 29 years and by his account has no emotional or cultural connection with that country nor indeed his country of origin, Venezuela. My optimism regarding his future prognosis is further enhanced by an absence of illicit drug use in the past. Arising from these considerations, I believe that the risk of him engaging in future criminal conduct or other serious behaviour is now trending from Moderate to Low.
…
7. What, if any, significant psychological or practical impediments would Mr Abarca Roman face if removed and returned to Chile?
Mr Abarca Roman will face considerable obstacles if he is returned to Chile. By his account, his employment prospects would be minimal and he would have limited opportunity to engage in further treatment. Additionally, he will be separated from his child and this inevitably will have a devastating impact upon his morale. He has clearly benefited from treatment but further work is required in this regard. Should Mr Abarca Roman be required to return to Chile, there will be a recrudescence of his symptoms, which will be amplified by his geographical and logistical separation from his child.”[57]
[57] HB 28-37.
Unfortunately, as previously mentioned, Mr Watson-Munro was not called. The Respondent and the Tribunal had no opportunity to test his evidence.
The Applicant has provided various character references and letters of support.[58]
[58] E.g. See HB 298-309.
The Applicant has completed various courses to manage his behaviour.[59]
[59] HB 321-324.
The Applicant has extensive ties to Chile, including all his immediate family.
The Applicant told the Tribunal that he has no idea what became of Ms VR’s second pregnancy.
The Applicant claims no connection to any child in Australia, other than Child A.
Aside from Child A, the Applicant has few close connections to people permanently resident in Australia.
If the Applicant were to be released into the community, he wants to get work and to continue seeing Child A every second weekend. He says that he will get treatment but has no concrete plans to do so.
The Applicant has a significant criminal history. A copy of his record of convictions is annexed hereto and marked “B”.[60]
LEGISLATIVE FRAMEWORK
[60] HB 249-252.
Does the Applicant Pass the Character Test?
As previously mentioned, the Tribunal has found that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must 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)?
In considering whether to the original decision should be revoked, the Tribunal is bound by section 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.[61]
[61] 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.
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.
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.
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.
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.
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.
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
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:[62]
“…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.”[63]
[62] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
[63] Ibid [23].
OFFENDING HISTORY
The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.
The Applicant’s family violence commenced in January 2020, if not earlier. This is set out in detail above.
In the following consideration of the Direction, I have had regard to all of the material and oral evidence before the Tribunal. Much of this is set out above. It will not therefore, be repeated in detail below.
Primary Consideration 1 – Protection of The Australian Community
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.
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
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.
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.
The Applicant has engaged in repeated acts of family violence against two intimate partners, during the relatively short time that he has been in Australia. These are set out in detail above.
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.
The Applicant does not pass the character test.
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.
The Applicant has been sentenced to a custodial term of 12 months having been already afforded the benefit of community-based supervision in the past. The fact that he breached his conditional liberty restrictions and an AVO has resulted in him being imprisoned. This is indicative of the gravity and the persistence of his offending.
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;

The Applicant has victimised two former intimate partners. Neither of them now has any desire to be with him, although Ms AP does continue to engage with him for the purely utilitarian purpose of managing fortnightly access to Child A. Ms AP did not give evidence in support of the Applicant, but she did provide some brief statements as set out above.
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.
The Applicant has been a repeat offender for most of the short time that he has been in Australia.
His offending has become more serious over time. This was accepted by his counsel.
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.
The cumulative effect of the Applicant’s offending has been very serious for Ms AP, her children and Ms VR.
The Applicant has wasted community resources in the criminal justice and immigration detention systems.
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.
There is no evidence of this.
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).
There is no evidence of this.
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.
There is no evidence of this.
I do not consider factors (g), (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
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.
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
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
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)).
The Applicant has demonstrated a propensity to engage in family violence with two successive intimate partners, in the space of only a few years.
His conduct has included physical assault, threats and coercion. The details are set out above.
This conduct is very serious, and the community would have little tolerance for it being repeated.
The Applicant’s conduct in sending intimate images of Ms VR to her father, was also particularly bizarre.
Likelihood of engaging in further criminal or other serious conduct
Mr Watson-Munro has assessed the risk of the Applicant reoffending as “trending from moderate to low”. He places some store on his past immaturity.
I accept that he has had some counselling and has done some rehabilitation courses as set out in Mr Watson-Monro’s report.
It might be asked, how a man who was immature at 30-34 years of age might be expected to have materially matured now that he is 36 years of age? The Tribunal could not ask Mr Watson-Munro this and other questions.
In the circumstances, the Applicant’s persistent record of family violence against two consecutive intimate partners, in the space of only a few years, suggests that the risk of him doing so again with a future intimate partner, is at least moderate, if not higher.
His assurances that he has now matured, have yet to be tested in the community.
He has no concrete plans for further treatment, if released into the community.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs heavily against revocation of the Applicant’s Visa cancellation.
Primary Consideration 2: Family Violence
Paragraph 8.2 of the Direction provides:
(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:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The particulars of the Applicant’s family violence offending against two successive intimate partners is set out in detail above.
The Applicant has disregarded conditions of conditional liberty and AVOs.
The Applicant says that he has accepted responsibility for his actions, but the practical impact of this remains untested, as does the impact of any rehabilitation or treatment that he has had.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs heavily against revocation of the cancellation of the Applicant’s Visa.
Primary Consideration 3: Ties to Australia
Paragraph 8.3 of the Direction provides:
(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:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.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.
The Applicant came to Australia as an adult aged almost 30. He is now 36. He has only been here since 2019.
The Applicant’s offending began soon after his arrival and it continued up to the time of his incarceration.
His contribution to the Australian community has been overwhelmingly negative. He has victimised successive intimate partners and consumed public resources in the criminal justice system.
He has been employed for a period between 2021 and 2024 as a truck driver.[64]
[64] HB 286.
The Applicant has produced some letters of support from people normally resident in Australia, but his case is overwhelmingly based on a single anchor in Australia, being his daughter, Child A. This connection is discussed in more detail in the context of Primary Consideration 4.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs moderately in favour of revocation of the cancellation of the Applicant’s Visa.
Primary Consideration 4: The best interests of minor children in Australia
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.
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.
The only relevant child in Australia is the Applicant’s daughter, Child A.
The Applicant’s counsel confirmed that this was so when she was asked directly by the Tribunal whether the Applicant relied on any other relationship with a child.
Ms AP’s daughters were explicitly not relied upon in this context. The eldest is in any event an adult now.
The children otherwise referred to in the Applicant’s statement of personal circumstances as “nieces” do not live in Australia.[65] They were also explicitly not relied upon.
[65] HB 283.
In relation to Child A the Applicant says:
“I Hector have an Australian born daughter [Child A] she have 3yrs [redacted date of birth] with [AP] Australian
I would be able to support my daughter and my partner financially and well being in Australia (co-parent)
I also have a current relationship with another child on the way. So I have more responsibilities here in Australia. I have regular contact with [AP]
This my first time in custody. I know what I do is wrong and I have more understanding for Australian culture and laws. I wish to be close to my daughter and next child as a family.”[66]
[66] HB 275, 282.
The Applicant is not, and has not been, Child A’s custodial parent. He accepts that he never will be.
His only ongoing connection with Child A has been fortnightly access. This was suspended altogether during his period in prison from January to June 2024. He has only had visits, usually arranged and facilitated by his visiting parents, since he has been in immigration detention.
The Applicant’s access to Child A is entirely subject, in the absence of court orders, to the ongoing good will and cooperation of Ms AP. The Applicant told the Tribunal that she is now in a new relationship.
Ms AP was not called as a witness, so many questions about her future intentions regarding the Applicant’s access to Child A, remain unanswered.
The Applicant’s mother told the Tribunal that his relationship with Child A was close.
I accept that if the Applicant were to remain in Australia, he could, subject to Ms AP’s cooperation, continue to have personal contact with Child A on a fortnightly basis. I accept that it would be beneficial for Child A to maintain a personal relationship with her father. If he was employed, he could resume making child support payments. He has not made any of these since he was taken into custody in January 2024.
If the Applicant were to be deported, he could still maintain contact with Child A electronically and if he was employed, he could continue to support her financially.
I accept that distance, permission from Ms AP and expense, would probably render any visit by Child A to Chile, very unlikely during her minority.
The Applicant suggested at one stage that he may now have another child (with Ms VR), but this seems not to be the case. In any event, he told the Tribunal he has no idea whether her second pregnancy was terminated, or not.
Conclusion: Primary Consideration 4
Having regard to all of the above, Primary Consideration 4 weighs moderately in favour of revocation of the Applicant’s Visa cancellation.
Primary Consideration 5 – The Expectations of The Australian Community
The relevant paragraphs in the Direction
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.
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.
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.
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.
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.[67]
[67] 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.

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
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
a.the Applicant’s criminal record as set out in Annexure B
b.the other matters set out above
c.the Applicant’s record of family violence
Conclusion: Primary Consideration 5
Primary Consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s Visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) legal consequence of the decision:
There is no protection claim in this case.
I accept that if the Applicant is not successful in these proceedings, he will be liable for continuing detention, pending removal from Australia. This would be an adverse outcome, but one common to all unsuccessful applicants in similar proceedings.
This Other Consideration (a) is neutral.
(b) Extent of Impediments if Removed
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.
The Applicant’s physical health is good.
He is aged 36.
There are no substantial language or cultural barriers involved in the Applicant returning to Chile.
The Applicant has an extensive, if not his entire family, network in Chile.[68]
[68] HB 285.
The Applicant could reside with his parents, at least initially while he got himself reestablished.
The Applicant accepts that he has skills and experience that would make him employable in Chile.
I accept that the Applicant may suffer mental health issues resulting from being separated from Child A, and readjusting to life back in Chile.
This Other Consideration (b) weighs at best slightly in favour of revocation.
(c) Impact on Australian business interests
There was no evidence and no submissions on this topic, so this consideration is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary Consideration 1 weighs heavily against revocation.
Primary Consideration 2 weighs heavily against revocation.
Primary Consideration 3 weighs moderately in favour of revocation.
Primary Consideration 4 weighs moderately in favour of revocation.
Primary Consideration 5 weighs heavily against revocation
Other Consideration (a) is neutral.
Other Consideration (b) weighs slightly in favour of revocation.
Other Consideration (c) is neutral.
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.
I note that paragraph 8.1.1(1) of the Direction states that crimes of a sexual nature against a child are viewed very seriously by the Australian Government and the Australian community.
Primary Considerations 1,2 and 5 each weigh very heavily against revocation.
Primary Considerations 3 and 4, plus Other Consideration (b) weigh moderately in favour of revocation, but they are greatly outweighed by the contrary three Primary Considerations.
The Applicant’s only substantial anchor in Australia is Child A. This relationship, although real and ongoing, is far removed from that of a custodial parent. It weighs in his favour, but only moderately so, especially in the context of his repeated offending against two intimate partners, in the course of only a few years.
I am not satisfied that there is “another reason” pursuant to section 501CA (4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is affirmed.

I certify that the preceding 195 (one hundred and ninety five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

...........................[SGND]...........................
Associate

Dated: 16 September 2025

Date of hearing: 8 and 9 September 2025

Advocate for the Applicant:

Marta Mamarot, South West Migration & Legal Services

Advocate for the Respondent:
Anthony Westernberg, Sparke Helmore Lawyers

ANNEXURE A – LIST OF EXHIBITS

Exhibit no.

Lodged by

Document

1

Respondent

Hearing Bundle (“HB”)

ANNEXURE B – APPLICANT’S OFFENDING HISTORY

Court

Court Date

Offence

Court Result

FAIRFIELD LOCAL COURT

22/01/2024

Common assault (DV)-T2

IMPRISONMENT (AGGREGATE): 12 MONTHS

FAIRFIELD LOCAL COURT

22/01/2024

Common assault (DV)-T2

IMPRISONMENT (AGGREGATE): 12 MONTHS

FAIRFIELD LOCAL COURT

22/01/2024

Destroy or damage property (DV)

IMPRISONMENT (AGGREGATE): 12 MONTHS

FAIRFIELD LOCAL COURT

22/01/2024

Contravene prohibition/restriction in AVO (Domestic)

IMPRISONMENT (AGGREGATE): 12 MONTHS

FAIRFIELD LOCAL COURT

22/01/2024

Use carriage service to menace/harass/offend

IMPRISONMENT (AGGREGATE): 3 MONTHS

FAIRFIELD LOCAL COURT

22/01/2024

Common assault (DV)-T2

IMPRISONMENT (AGGREGATE): 12 MONTHS

FAIRFIELD LOCAL COURT

22/01/2024

Contravene prohibition/restriction in AVO (Domestic)

IMPRISONMENT (AGGREGATE): 12 MONTHS

FAIRFIELD LOCAL COURT

22/01/2024

Threaten to distribute intimate image w/o consent (DV) -T2

IMPRISONMENT (AGGREGATE): 12 MONTHS

FAIRFIELD LOCAL COURT

22/01/2024

Assault occasioning actual bodily harm (DV)-T2

COMMUNITY CORRECTION ORDER: 12 MONTHS

FAIRFIELD LOCAL COURT

16/10/2023

Common assault (DV)-T2

COMMUNITY CORRECTION ORDER: 24 MONTHS

FAIRFIELD LOCAL COURT

16/10/2023

Destroy or damage property (DV)

COMMUNITY CORRECTION ORDER: 24 MONTHS

FAIRFIELD LOCAL COURT

16/10/2023

Common assault (DV)-T2

COMMUNITY CORRECTION ORDER: 24 MONTHS

FAIRFIELD LOCAL COURT

16/10/2023

Contravene prohibition/restriction in AVO (Domestic)

COMMUNITY CORRECTION ORDER: 24 MONTHS

FAIRFIELD LOCAL COURT

22/03/2022

Assault occasioning actual bodily harm (DV)-T2

CONDITIONAL RELEASE W/O CONVICTION: 2 YEARS

Date of hearing:	8 and 9 September 2025
Advocate for the Applicant:	Marta Mamarot, South West Migration & Legal Services
Advocate for the Respondent:	Anthony Westernberg, Sparke Helmore Lawyers

Exhibit no.	Lodged by	Document
1	Respondent	Hearing Bundle (“HB”)

Court	Court Date	Offence	Court Result
FAIRFIELD LOCAL COURT	22/01/2024	Common assault (DV)-T2	IMPRISONMENT (AGGREGATE): 12 MONTHS
FAIRFIELD LOCAL COURT	22/01/2024	Common assault (DV)-T2	IMPRISONMENT (AGGREGATE): 12 MONTHS
FAIRFIELD LOCAL COURT	22/01/2024	Destroy or damage property (DV)	IMPRISONMENT (AGGREGATE): 12 MONTHS
FAIRFIELD LOCAL COURT	22/01/2024	Contravene prohibition/restriction in AVO (Domestic)	IMPRISONMENT (AGGREGATE): 12 MONTHS
FAIRFIELD LOCAL COURT	22/01/2024	Use carriage service to menace/harass/offend	IMPRISONMENT (AGGREGATE): 3 MONTHS
FAIRFIELD LOCAL COURT	22/01/2024	Common assault (DV)-T2	IMPRISONMENT (AGGREGATE): 12 MONTHS
FAIRFIELD LOCAL COURT	22/01/2024	Contravene prohibition/restriction in AVO (Domestic)	IMPRISONMENT (AGGREGATE): 12 MONTHS
FAIRFIELD LOCAL COURT	22/01/2024	Threaten to distribute intimate image w/o consent (DV) -T2	IMPRISONMENT (AGGREGATE): 12 MONTHS
FAIRFIELD LOCAL COURT	22/01/2024	Assault occasioning actual bodily harm (DV)-T2	COMMUNITY CORRECTION ORDER: 12 MONTHS
FAIRFIELD LOCAL COURT	16/10/2023	Common assault (DV)-T2	COMMUNITY CORRECTION ORDER: 24 MONTHS
FAIRFIELD LOCAL COURT	16/10/2023	Destroy or damage property (DV)	COMMUNITY CORRECTION ORDER: 24 MONTHS
FAIRFIELD LOCAL COURT	16/10/2023	Common assault (DV)-T2	COMMUNITY CORRECTION ORDER: 24 MONTHS
FAIRFIELD LOCAL COURT	16/10/2023	Contravene prohibition/restriction in AVO (Domestic)	COMMUNITY CORRECTION ORDER: 24 MONTHS
FAIRFIELD LOCAL COURT	22/03/2022	Assault occasioning actual bodily harm (DV)-T2	CONDITIONAL RELEASE W/O CONVICTION: 2 YEARS