BQL15 v Minister for Immigration and Border Protection

[2]BQL15 v Minister for Immigration and Border Protection | Case summary | Zoe

[15]

(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.

(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 non-citizen'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 noncitizen does not pose a measurable risk of causing physical harm to the Australian community.

[29]

The Applicant was convicted and sentenced on 6 December 2024 for one count of assault occasioning bodily harm.[36] That conviction related to the Applicant assaulting his son (whom I will identify as HH) on 25 February 2024. At the time of the assault, HH was almost 12 years old and was at the Applicant's house on a weekend.[37] The mother of HH, whom I will identify as KH, separated from the Applicant when HH was 2 years old. KH has an 8-year-old daughter, whom I will identify as AH, from a subsequent relationship.
The Applicant stated in a statutory declaration made on 25 June 2025 that HH "accidentally made a mess" when getting a glass of water and refused to clean up. The Applicant stated that he grabbed HH "to stop him" and that HH "reacted by grabbing [the Applicant] back and digging his nails into [him]". The Applicant stated that he then "smacked" HH, who "picked up a charging cord and hit [the Applicant] with it", later trying to pick up a broom.[38] The Applicant stated that he then placed HH on the couch and "slapped him again repeatedly". The Applicant stated that he realised he had "gone too far" and gave HH an ice pack for the "marks on his face".[39]
After she collected HH from the Applicant's house, KH reported to the Queensland Police Service that HH had "bruising on his body" which appeared to have been "caused by a hand and possibly an object".[40] KH mother reported to the Queensland Police Service that the Applicant had told her that HH "got it playing with other children".[41]
The Applicant denied at the hearing that he told KH that HH had received his injuries playing with other children. KH's statement that the Applicant had told her that was recorded in a police report made shortly after the assault on HH[42] and it was not submitted that she had any reason to lie about what the Applicant had said to her. The Applicant gave evidence that he told KH that he had "smacked" HH at the time when she picked him up. KH did not give evidence at the hearing. I accept the Applicant's evidence that he told KH at the time she collected HH that he had assaulted their son.
In the sentencing remarks,[43] the Magistrate noted that:

[31]

Having regard to the Magistrate's summary of the injuries to HH and the photographic evidence of those injuries, I find that it must have been evident to KH that the Applicant had done more than "smack" their son. I do not accept that she believed that HH had received the injuries described above while playing with other children.
During the hearing, the Applicant gave evidence that, on the day on which he assaulted HH, he was living with Ms Hughes and her children. Ms Hughes is the mother of two children born prior to her relationship with the Applicant, a 12-year-old girl whom I will identify as SH and a 9-year-old boy whom I will identify as DH. Ms Hughes gave evidence that, when he was at home with her children, the Applicant had responsibilities related to their care, whether or not Ms Hughes was also at home at the time.
The Applicant gave evidence that he smoked cannabis while Ms Hughes and her children were at home on the day he assaulted HH. After he had done so, KH called the Applicant and asked him to care for HH, even though he was not scheduled to do so on that day. Ms Hughes went out for the day with SH and DH and the Applicant therefore had sole care of HH when he arrived at the Applicant's property.
The Applicant gave evidence that, after HH refused to clean up the spilled water, HH first made physical contact with the Applicant. That evidence was not consistent with the evidence of Ms Hughes that the Applicant told her that evening that he had first made physical contact with HH. Ms Hughes had previously stated, in a statutory declaration made on 25 June 2025, that the Applicant had shared few details of the assault with her when she returned to their home.[44]
The Applicant gave evidence that he agreed to care for HH notwithstanding that he was "going through a lot" at the time and that he was "not in the right frame of mind" to care for HH, having just become unemployed. He agreed to care for HH notwithstanding having taken drugs during the morning.
I find that the Applicant was aware that HH needed medical attention following the assault. The bruising to HH was extensive and his eye was bleeding.[45] The Applicant gave evidence that, after his assault on HH, he gave HH an ice pack for the "swelling" but did not seek medical treatment for HH because he was "scared" of being arrested. The Respondent submitted, and I accept, that in doing so the Applicant placed his own interests ahead of those of his son.
The Applicant gave evidence that he has not had contact with HH or AH since the assault and that KH responded to the Applicant by text when he "reached out to" her to say that he was no longer allowed to contact them.
I do not consider that the issue of whether the Applicant first made physical contact with HH is crucial to determining the nature and seriousness of the Applicant's assault on HH. That question is answered adequately by the undisputed facts, which are as follows. The Applicant assaulted HH because he was angry that HH refused to clean up water that he had spilled. The Applicant struck HH multiple times. The Applicant's assault on HH caused significant injuries. It was an act of significant violence perpetrated by the Applicant, an adult man, against his own child, an autistic 12-year-old boy who had been left in the Applicant's care.
I accept the Respondent's submission that the Applicant's assault of HH must be viewed as very serious on the basis that it was a violent crime,[46] an act of family violence against a child[47] and that the court imposed a sentence of 12 months' imprisonment.[48]

[42]

In Hartwig v Hack, Kiefel J held that the Administrative Appeals Tribunal (AAT) was entitled to take account of the fact of a conviction because the relevant State legislation[61] was "concerned that there be no record of a conviction", whereas s 85ZR(2) of the Crimes Act 1914 (Cth) "envisages a state legislation provision which removes or disregards the conviction altogether".[62] Thornton and Lesianawai both distinguished Hartwig v Hack, whose outcome relied on the definition of "conviction" in the applicable legislation to include "a finding of guilt, or the acceptance of a plea of guilty, by a court".[63] The applicable legislative schemes in Thornton and Lesianawai did not include such an expansive definition of "conviction",[64] with the consequence that s 85ZR(2)(b) of the Crimes Act 1914 (Cth) applied and consideration of offending in respect of which the respective applicants were deemed never to have been convicted amounted to irrelevant considerations.[65]
The Respondent did not make written submissions about the legislative scheme under which a conviction was not recorded in relation to the Applicant's offending set out at paragraph [62] above. However, it appears that the discretion not to record a conviction against the Applicant was exercised under Penalties and Sentences Act 1992 (Qld) s 12(1) and that there is therefore no basis to distinguish Hartwig v Hack, as the High Court did in both Thornton and Lesianawai.[66]
I accept the Respondent's submission that I may have regard to the Applicant's previous offending in respect of which no conviction was recorded. I do so for the limited purpose of finding that the Applicant was engaged in conduct which included the possession of drugs in 2013. I otherwise attach little weight to those convictions.
The Respondent submitted that eight of the offences committed by the Applicant in New Zealand were committed while he was still a minor, although they were dealt with by the Wellington District Court on 16 December 2002, which was shortly after the Applicant's 18th birthday.[67] The Respondent submitted, both in writing in the SOFIC and orally at the hearing, that, although there is no record that convictions were not recorded in respect of those offences, it would be open to me in light of the Australian authorities considered above not to have regard to offences committed prior to the Applicant's 18th birthday. I accept that submission and have taken no regard of the offences of which the Applicant was convicted in the Wellington District Court on 16 December 2002.
The Respondent contended in the SOFIC that the Applicant's criminal offending of which I have taken regard reflects a frequent pattern of committing offences which are of a like nature[68] and that they should be considered to be serious when considered cumulatively.[69] At the hearing, the Respondent further submitted that the Applicant's criminal offending has increased in violence over time to the extent that it has most recently included the assault of a 12-year-old child.
It is significant that the Applicant has been convicted on multiple occasions for breaching probation and community service orders and failing to honour undertakings to appear before a court. The Respondent submitted, and I accept, that those convictions indicate a lack of respect on the Applicant's part for the law and his obligation to comply with legal conditions imposed on him.
The Applicant was not convicted of any offence for over four years between being paroled on 13 December 2019 and being taken into custody for the assault on HH which occurred on 25 February 2024. Nonetheless, I find that his criminal offending has been frequent since his 18th birthday and that there is a trend of increasing seriousness to that offending, such that the Applicant's two most recent convictions were for his most violent offending.[70] I also find that cumulative effect of the Applicant's offending has contributed to its seriousness.[71]

[50]

The Respondent contended that further offences of a similar nature committed by the Applicant would cause significant harm and that the Applicant there is an "ongoing (moderate to high) risk" of the Applicant reoffending, given his "offending history, the longstanding issues which appear to have contributed to his offending and the lack of evidence of having meaningfully addressed those issues."[74]
The Applicant stated, both in writing and in his oral evidence, that there is a low level of risk that he will offend in the future[75] and that he has taken numerous rehabilitation programs.[76] During the hearing, the Applicant gave evidence that he completed 14 courses within the space of a week in May 2025 after he was paroled for the assault on HH and was placed in immigration detention. The Applicant gave evidence that he was motivated to take courses in order to learn parenting skills and to control his anger.
The Applicant gave evidence that the courses were all relatively short, although he sometimes took multiple hours to complete them, and that he completed them one after another. The Applicant's evidence indicated that he understood and benefited from some of the courses. For example, he described in some detail the issues raised in the Positive Parenting Techniques course. However, he demonstrated minimal understanding of the material covered by the Autism 101 course and could only say that autism is a "spectrum". He was unable to provide detailed evidence of how the course developed his skills in "dealing with autistic kids".
The Applicant and Ms Hughes each gave evidence that DH has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and that they are in the process of obtaining a diagnosis of autism. Ms Hughes described DH as having "big emotions which become big physical problems" for those around him and that, at the "low" points of his condition, he "can be harmful" to himself or Ms Hughes.
The Applicant gave evidence that HH "plays up when he is angry" and that there is more involved in caring for him than for his "normal" nieces and nephews. The Applicant gave evidence that DH "shows [the Applicant] more respect" than HH and that DH is "more likely to lash out" at his mother or sister than the Applicant, to whom he listens. The Applicant gave evidence that he is "used to taking care of DH" and that, by contrast, he only cared for HH at weekends. The Applicant gave evidence that he is able to calm DH down.
The Applicant has expressed remorse for assaulting HH.[77] However, his oral evidence did not fully alleviate concerns that he might reoffend in a similar way. While the Applicant has no current contact with HH (or with KH or AH) and may have no or extremely limited sole parental care of him in the future, I find that he will have parental responsibilities in regard to DH in the future. The Applicant's evidence of his remorse for assaulting HH was tempered by evidence that he has a limited understanding of autism in children and how to care for children with autism. His evidence that HH was "aggressive" and that it is easier to manage DH's behaviour because he shows the Applicant "more respect" than HH is concerning in that it places focus on the behaviour of children affected by autism rather than on the Applicant in supporting the contention that the Applicant will not reoffend. The Applicant did not give evidence that indicates that he has considered the possibility that DH will not always show him "respect" as he grows, particularly in light of Ms Hughes' evidence that DH reacts in a physical, and sometimes dangerous, way to "big emotions".
The Respondent submitted that, although the Applicant has lived with Ms Hughes since 2020 when DH was about 4 years old and has been in an exclusive relationship with her since about 2022, the Applicant has not had a normal relationship with DH during his time in gaol and immigration detention. The Respondent submitted that the Applicant's assault of HH responded to behaviour to which HH's autism was directly relevant and that, particularly given DH's propensity to act out physically and the Applicant's limited understanding of dealing with autism in children, there is a risk that the Applicant may commit a further offence in relation to DH similar to his assault on HH. The Respondent submitted that the Applicant has a history of violent conduct, including domestic violence against KH.[78] I accept those submissions.
In assessing the risk that the Applicant may pose to the Australian community, I have considered the nature of the harm that may be caused to DH if the Applicant engages in conduct similar to his assault on HH. I find that that harm would be significant in nature.
The Applicant completed courses in detention relating to drugs and alcohol. The Respondent contended that there is insufficient evidence before me as to whether the courses taken by the Applicant were tailored to his circumstances or whether they are likely to assist the Applicant materially in his stated intention to end his long history of criminal offending.
The Applicant gave evidence that he took courses which sought to explain why he was addicted to drugs and alcohol and the negative physical effects that they can have. Those courses were of brief duration and the applicant's history of drug use is lengthy; he gave evidence at the hearing that he started using alcohol and cannabis at the age of 13 and that his drug use became "heavier" after he arrived in Australia in 2005. The Respondent submitted, and I accept, that while the Applicant has not used drugs or alcohol while in gaol or immigration detention, his sobriety has not been tested while he is at liberty and subject to the kinds of stressors which have seen him use drugs or alcohol in the past.
Of particular concern is the evidence that the Applicant used cannabis on the morning of his assault on HH and was under its influence at the time of that assault. While the Applicant gave evidence, and I accept, that he used the cannabis begore KH asked him to care for HH, he agreed to do so notwithstanding the fact that he was affected by drugs. It is also significant that the Applicant used cannabis while SH and DH were at home with him. Ms Hughes gave evidence that the Applicant sometimes uses drugs, for example "after a stressful week", but that he does not do so "around kids". I do not accept the latter statement, since both the Applicant and Ms Hughes gave evidence that the Applicant used cannabis at least once when SH and DH were at home in the unit that they share. Moreover, Ms Hughes gave evidence, and I accept, that the Applicant always had parental responsibilities when he was at home with children, regardless of whether Ms Hughes was also at home.
I find on the basis of Ms Hughes' evidence that she was aware that the Applicant previously used drugs while at home, including while SH and DH were there, and that she was comfortable with the Applicant doing so as a method of managing stress.
It is a common factor in the Applicant's three convictions for violent offences - namely, the 2003 indecent assault, the 2017 assault and the assault on HH - that he has been affected by drugs or alcohol at the time of his criminal offending. While the Applicant and Ms Hughes both gave evidence of an intention to seek counselling for the Applicant, including in relation to drug and alcohol use, upon his release from immigration detention, I find that few concrete steps have been taken towards making the necessary arrangements for that counselling. I also accept Ms Hughes' evidence that the Applicant would only be able to have a limited number of sessions with the psychologist she and her children see.
The Applicant gave evidence that he has enjoyed "feeling fresh" from not using drugs or alcohol while in gaol or immigration detention. When asked about his plans to continue in that vein upon his release, the Applicant gave evidence that he would "go out and get help to quit". I do not accept on the basis of the evidence before me that the Applicant has plans which go beyond a mere intention to get help to quit using drugs or alcohol upon his release.
I do not accept that the courses that the Applicant took in May 2025 sufficiently mitigate the risk that he will use drugs or alcohol if he were released into the Australian community. I find on that basis, having regard to his history of offending, that there is a substantial risk that the Applicant will engage in further criminal or other serious conduct if released into the Australian community. I find that there is minimal evidence that the Applicant has rehabilitated in relation to his use of drugs and alcohol by the time of this decision, especially since he has spent no time in the community since his conviction for the assault of HH during which such rehabilitation might have been tested.
The Applicant has stated that his previous offending was influenced by circumstances including "periods of homelessness" after separating from KH[79] and poor mental health.[80] That evidence is consistent with the Applicant's oral evidence at the hearing that his assault on HH came at a time when he was "not in the right place to deal with" HH after having just lost his job. The Respondent contended that there is insufficient evidence before me as to whether the Applicant's socio-economic situation would be ameliorated if he were released into the community, given its contribution to his previous offending.
The Applicant and Ms Hughes both gave evidence that the Applicant's socio-economic circumstances will be relatively stable if he is released into the community. They gave evidence that Ms Hughes has an interest in a cleaning business and that the Applicant would be able to take on cleaning jobs, leaving Ms Hughes a greater capacity to earn money as a traffic controller, including on night shifts. The Applicant is also a qualified forklift driver with extensive experience working in warehouses. The Applicant and Ms Hughes both expressed confidence that the Applicant will find work in a warehouse without undue difficulty but no evidence was submitted to the Tribunal which indicates that the Applicant has made inquiries about such work or has received job offers. I do not accept that he has.
Ms Hughes gave evidence that she will support the Applicant if he is released into the Australian community, although she expects that the Applicant will assist with parental responsibilities in regard to SH and DH and that he will also find work even if Ms Hughes remains the primary "breadwinner". I accept that evidence and find that the Applicant's socio-economic circumstances will be relatively stable if he is released into the community.
I find that there is some risk that, if the Applicant is faced with adverse circumstances in the future, he might again engage in criminal or other serious conduct. For reasons set out above, I do not accept that the Applicant has yet received a level of psychological care that adequately mitigates that risk. However, given the finding above, I attach little weight to that risk as an indicator that it is likely that the Applicant will engage in further criminal or other serious conduct if released into the Australian community.
I consider that the likelihood of the Applicant engaging in further criminal or other serious conduct is substantial. I find on the basis of the evidence considered above that there is a considerable risk that the Applicant will re-offend, either in a similar way to his assault on HH or otherwise under the influence of drugs or alcohol. I do not accept that there is sufficient evidence of the Applicant's rehabilitation at the time of this decision to mitigate that risk adequately, particularly given that he has not spent time in the community since his most recent offence.
I find that the risk of the potential harm if the Applicant were to re-offend in a similar way to his assault of HH is serious. I note 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".[81] Given that there is a substantial likelihood that the Applicant will engage in further violent conduct, including possibly against a child, I find that the risk of him re-offending is extremely serious.

[59]

In the response to the visa cancellation decision, submissions were made to the Department of Home Affairs on 26 June 2025 on the Applicant's behalf.[92] Those submissions state that the Applicant "has committed only a single offence constituting family violence" and that this should be "regarded as an isolated incident rather than indicative of an ongoing pattern of behaviour". I accept that the assault on HH is the only criminal offence constituting family violence of which the Applicant has been convicted. However, the Respondent submitted that I should also have regard to the Applicant's history of domestic violence during his relationship with KH.[93]
The evidence before the Tribunal is that the Applicant's relationship with KH was turbulent and that he was the victim of domestic violence on at least one occasion.[94] While I regard any occurrence of domestic violence as serious, there is little evidence before me about the Applicant's history of domestic violence during his relationship with KH. That relationship ended over ten years ago and there is no suggestion that the Applicant has engaged in domestic violence in his relationship with Ms Hughes. I give the Applicant's history of domestic violence little weight in considering Primary Consideration 2.
I do not accept that the Applicant's engagement in family violence has been frequent, that there is a trend of increasing seriousness to that conduct or that the Applicant has engaged in repeated acts of family violence which have had a cumulative effect.[95] Rather, I find that the Applicant's assault on HH was an isolated incident. He has not re-offended since his assault on HH[96] but, given that he has not been at liberty during that time, I attach no weight to that fact.
However, for reasons given above, I have found that there is a risk that the Applicant will re-offend in a similar way in the future, especially given the similarities between the symptoms affecting HH and DH. That finding is significant to Primary Consideration 2 because the Respondent has submitted that the Applicant's attempts at rehabilitation since his assault on HH have been inadequate.[97] I have found above that the courses taken by the Applicant in May 2025 were brief and accept that they did not specifically respond to the Applicant's circumstances or history of offending. The Applicant has not engaged with a psychologist for a significant time since his assault on HH but has indicated that he intends to do so after his release into the community. I find that the Applicant's efforts to address the factors which contributed to his family violence conduct have not been sufficient for me to find that the Applicant has yet achieved rehabilitation.[98]
The Applicant's evidence indicated that, while he accepted responsibility for his assault on HH, he did not do so without reservation.[99] The Applicant gave evidence that HH was "aggressive" and that he did not "show respect" to the Applicant. The Applicant, an adult, hit HH multiple times to the head and body, causing significant injuries. That assault cannot be justified to any extent by the behaviour of HH which preceded it. I do not accept on the basis of the Applicant's oral evidence that he understands fully the impact of his violent assault on HH, who was then under the age of 12.[100]
The factors considered above are relevant to a consideration of the seriousness of the family violence in which the Applicant engaged by assaulting HH. It is also relevant that I have found in relation to Primary Consideration 1 that there is a risk that the Applicant will re-offend in the future. That risk exists in part because the factors which contributed to the Applicant's assault of HH have not been addressed completely. Even taking into account that the Applicant has only once engaged in family violence, his assault on HH was conduct of significant violence and is part of a pattern of violent offending. I find that the family violence in which the Applicant has engaged was conduct that must be considered to be serious.
For the reasons above, I find that Primary Consideration 2 weighs heavily against the revocation of the visa cancellation decision.

[60]

In considering the strength, nature and duration of the Applicant's ties to Australia, I have considered the impact of the decision on the Applicant'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.[101]
The Applicant is the biological father of HH, who is now 13 years old. KH has an 8-year-old daughter, AH. The Applicant has stated that he does not know the identity of AH's father. The Applicant has stated that he saw HH and AH, whose mother has custody of them, between one and five times a month before his most recent arrest but that he has not seen them since.[102] The Applicant gave oral evidence that KH has told him that he is not to contact her, HH or AH. The Applicant's evidence did not indicate conclusively whether or when he will again have contact with HH. I find that it is likely that the Applicant will have little contact with HH if he is released into the Australian community. I find that the Applicant will not have contact with AH other than in conjunction with HH.
The Applicant started living with Ms Hughes as her housemate in 2020. She described their relationship as "intimately exclusive since 2022".[103] Although the Applicant has previously dated the start of their "romantic relationship" to 2023,[104] his oral evidence dated the start of that relationship to 2022. Ms Hughes gave evidence that she and the Applicant had a "long courtship" and I accept that the exact date on which they became a couple may be hard to identify. I find that the Applicant has been in an intimately exclusive relationship with Ms Hughes since 2022.
The Applicant has stated that SH and DH do not know where he is because Ms Hughes has elected not to tell them.[105] Ms Hughes gave evidence at the hearing that SH has discovered the Applicant's circumstances but that DH has not and that she does not plan to talk to them about the Applicant's most recent period of incarceration until they are old enough and if they ask. The Applicant gave evidence that, although SH and DH have not visited him in immigration detention, he has spoken to them regularly by phone since his parole in April 2025. I accept that evidence.
The Applicant has identified four children - HH, SH, DH and AH - who would be affected by a decision not to revoke the visa cancellation decision.[106] Because they are minors, I have considered the impact of the decision on them to a greater degree when considering the best interests of minor children affected by the decision under Primary Consideration 4.
I find that a decision to revoke the visa cancellation decision would have an impact on the Applicant's immediate family members in Australia, being people with a right to remain indefinitely in Australia.[107]
I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community,[108] having regard to the length of his residence and the strength, duration and nature of any family or social links with people who have an indefinite right to remain in Australia, including Australian citizens and permanent residents.
The Applicant has resided in Australia since he was 20 years old, which is more than half his life. His parents and sisters reside in New Zealand.[109] He has extended family members in Australia but considerably more in New Zealand.[110] His offending did not begin until some years after his arrival[111] and he has contributed positively to the Australian community for some of his time residing here.[112]
I have taken consideration of character references, from Ms Hughes' father[113] and a friend of the Applicant,[114] which were submitted to the court during the proceedings relating to his assault on HH. I find that those letters provide an indication of the strength, duration and nature of the Applicant's family and social links to people resident in Australia.[115]
I find that Primary Consideration 3 weighs in favour of revoking the visa cancellation decision.

[64]

HH is the Applicant's only biological child. The Respondent submitted that, in considering HH's best interests, I must consider whether the Applicant will play a positive parental role in HH's life in the period of a little more than four years until he turns 18 and the effect of any court orders relating to parental access and care arrangements.[120] While there is no evidence before me about parental access and care arrangements relating to HH, I accept the Applicant's evidence that KH has told him that he is not allowed to contact her or her children. In effect, the Applicant has given evidence that he will not have access to either HH or AH if he is released into the community, regardless of whether that outcome is the result of a court order. There is no evidence before me that being separated from the Applicant would affect HH if the Applicant were removed to New Zealand. Given the fact that they have not been in contact for nearly two years,[121] I do not accept that it would have any immediate effect on HH if the Applicant were removed to New Zealand.
As considered above, there is undisputed evidence that HH has been subjected to family violence perpetrated by the Applicant and that HH has suffered physical trauma arising from the Applicant's assault.[122] It is also likely that HH has suffered or experienced emotional trauma arising from the Applicant's conduct,[123] an inference supported by the fact that HH has not had contact with the Applicant since the assault in February 2024. In the absence of direct evidence, I give the latter consideration little weight.
The Applicant has given evidence that he will need to rebuild his relationship with HH. In that regard, he attached significance to the fact that KH recently allowed the Applicant's sister to visit HH during a visit to Australia. The Applicant's sister sent photographs of HH taken at that meeting to the Applicant.
The Respondent submitted that the extent of the Applicant's past criminal offending moderates the extent to which he will play a positive parental role in relation to the minor children in the future. It is relevant to the interests of all four minor children that, with the exception of his conviction for assaulting HH, the Applicant was last convicted on 13 December 2019 for offences committed no later than 30 November 2018.[124]
In assessing the best interests of HH, the most relevant of the Applicant's criminal offences is his assault on HH. That assault was violent, included multiple blows to the body and head of HH and resulted in significant injuries to HH. The evidence before me is that the Applicant has had no contact with HH since that assault and that, while he hopes for a relationship with HH in the future, his violent and criminal conduct means that he does not have one now. The Applicant's past conduct has had a negative impact on HH.[125]
HH did not give evidence before the Tribunal and, for that reason, his views about whether and how his best interests would be affected by a decision not to revoke the visa cancellation decision are unknown.[126] Given HH's age and the fact that he is autistic, I do not infer from his lack of contact with the Applicant any view that his interests would be better served by the Applicant being removed to New Zealand.
Notwithstanding the Applicant's assault on HH, he is HH's biological father. He has expressed hope that he and HH will one day have a relationship and has given evidence, supported by the evidence of Ms Hughes, that he intends to work with a psychologist upon his release into the community in order to improve his chances of having such a relationship.
I conclude that it is in the best interests of HH for the visa cancellation decision to be revoked. However, given the nature and consequences of the Applicant's criminal assault on HH, I attach only limited weight to that conclusion.

[65]

The Applicant has known SH for fewer than 6 years, having started living with Ms Hughes in 2020. Although the Applicant was not in an exclusive relationship with Ms Hughes until 2022, there is some evidence that he cared for SH and DH before that time. I accept that the Applicant has had a parental relationship with SH and DH for a significant part of their lives and that, even during his time in immigration detention, he has maintained regular contact with them by telephone.[127]
I have taken account of the Applicant's evidence that SH sometimes calls him without Ms Hughes facilitating that contact. While there is no direct evidence about her views,[128] I infer from her steps to maintain contact with the Applicant that she considers such contact to be in her best interests. Notwithstanding his previous criminal offending, I find that it is likely that the Applicant will continue to play a positive parental role in SH's life in the future.[129]
The Applicant's prior conduct has only impacted SH to the extent that his conviction for assaulting HH has meant that he has spent most of the last two years apart from her. I have found above that there is a substantial likelihood that the Applicant will in the future commit criminal or other serious conduct similar to his assault on HH, particularly given the symptoms which DH displays of acting out physically when affected by "big emotions". It does not necessarily follow from finding that there is a substantial likelihood that the Applicant will re-offend in relation to assessing the risk that he poses to the community[130] that it is likely that the Applicant will engage in conduct in the future which will have a negative impact on either DH or SH.[131] The nature of any future violent conduct by the Applicant means that the possibility of such conduct carries significant risk and would, if it occurred, have a serious negative impact on both DH and SH.
Ms Hughes gave evidence that she and the Applicant are essentially husband and wife and that, if he is removed to New Zealand, she and her children will move to New Zealand with him. Ms Hughes gave evidence that she is a citizen of New Zealand, having moved to Australia in 2002. She is not an Australian citizen. While most of Ms Hughes' family live in Australia, she gave evidence that she has family in New Zealand with whom she maintains contact. I find that, if the visa cancellation decision is not revoked, Ms Hughes and her children will move to New Zealand and continue to live with the Applicant. I find it unlikely that SH and DH will be separated from the Applicant and that therefore their best interests will not be adversely affected by such a separation.[132]
There is no suggestion that SH or DH have been subjected or exposed to family violence committed by the Applicant or that they have been abused or neglected by him.[133] There is no suggestion that SH or DH have suffered or experienced physical or emotional trauma as a result of the Applicant's conduct, except to the extent that it has caused them to be apart from him.[134] I have considered the risk that SH and DH might in the future be subjected to family violence by the Applicant above.
I conclude that it is in the best interests of SH for the visa cancellation decision to be revoked.

[80]

The Applicant has previously submitted that he would face significant obstacles to re-establishing his life in New Zealand, having departed so long ago. He submitted that his integration into Australian society means that he would "face considerable social, cultural and economic disruption if returned" to New Zealand. He submitted that he "lacks a support network that could assist with housing, employment or access to medical services".[155]
The Applicant gave evidence at the hearing that he does not maintain regular contact with his family in New Zealand. Nonetheless, the Applicant's parents and sisters live there and the Applicant has had recent contact from his sister who visited HH late in 2025. It is also highly relevant that Ms Hughes has stated that she would move back to New Zealand if the Applicant were returned there. I do not accept on the evidence before me that the Applicant would lack support to re-establish himself in New Zealand or maintain basic living standards for the reason that he lacks sufficient support.
The Respondent submitted that the Applicant will not face a language barrier in New Zealand, given that he speaks English. The Applicant did not claim that he will face cultural barriers and, given the similarities between Australia and New Zealand, the Respondent submitted that he will not. The Respondent submitted that the Applicant would have access to the same social, medical and economic support that is available to all citizens of New Zealand and which is of equivalent quality to the comparable support available in Australia.[156] I accept those submissions.
The Applicant grew up in New Zealand and left as an adult. He is 41 years old and there is no suggestion that he has health problems that would prevent him from working. The Respondent submitted, and I accept, that the Applicant will have access to mental health services in New Zealand which are adequate to his needs. I accept that the Applicant will have access to support in New Zealand, most notably from Ms Hughes but possibly also from his family.
I find that this consideration weighs in favour of revoking the visa cancellation decision. I attach only a small amount of weight to it.

[84]

I have attached a small amount of weight in favour of revoking the visa cancellation decision to the considerations relating to the legal consequences of the decision and the extent of the impediments to the Applicant if he is removed from Australia.
I have attached neutral weight to the consideration relating to any impact on Australian business interests.
To comply with the Direction, I am required to "bring together the considerations as part of a single evaluation of their relative significance, thereby weighing them all together".[159]
As I have noted above, Primary Consideration 1 is to be given greater weight than the other primary considerations.[160] In this case, I have attached a large amount of weight to Primary Consideration 1 in circumstances where the Applicant's criminal offending included acts of significant violence, including family violence against the Applicant's child and sexual violence against a woman. I have also attached weight to the deemed expectation of the Australian community in Primary Consideration 5 that the Applicant's criminal conduct means that he should not be allowed to remain in Australia. Primary Consideration 2 relates specifically to family violence and I have attached a large amount of weight to the Applicant's assault on his son.
Against those considerations are the weight attached to Primary Consideration 3 and Primary Consideration 4 in favour of revoking the visa cancellation decision.
I have concluded that, in this case, the protection of the Australian community, the concerns about allowing non-citizens who engage in family violence to remain in Australia and the deemed expectation of the Australian community that the Applicant should not be allowed to remain in Australia outweigh the other primary and other considerations to which I have attached weight. In reaching this conclusion, I have relied to a very large degree on the violence of the Applicant's previous criminal conduct and the fact that it has most recently been directed against his son who was in the Applicant's sole care at the time.
For the reasons above, I conclude that there is not another reason to revoke the cancellation of the Applicant's visa. I therefore affirm the decision under review.

At a glance

Court

Decision date

Source

Judgment (123 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (22)

Holmes and Minister for Immigration and Citizenship (Migration) [2026] ARTA 35 (14 January 2026)