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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Abarca Roman and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1802
Case: [2025] ARTA 1802
Decision Date: 16 September 2025

CaseChat Overview and Summary

The Applicant, a Chilean citizen, sought to have his visa cancellation revoked by the Administrative Appeals Tribunal. The Minister for Immigration and Citizenship had previously cancelled his visa under section 501(3A) of the Act due to the Applicant's failure to meet the character test. The Applicant's visa was initially cancelled under section 501CA(4) due to his substantial criminal record, which included incidents of family violence. The Tribunal had to decide whether there were grounds to revoke the original visa cancellation decision. The Tribunal considered Ministerial Direction No. 110, which outlines principles for decision-makers when considering visa refusals, cancellations, or revocations. The Tribunal concluded that the Applicant's conduct, particularly his history of family violence, was of a serious nature and posed a risk to the Australian community. Despite the Applicant's relationship with his daughter, the Tribunal found that this did not sufficiently outweigh the seriousness of his criminal conduct. Therefore, the Tribunal affirmed the original decision to cancel the Applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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; andb)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.