Brian and Minister for Immigration, and Multicultural Affairs (Migration) - [2025] ARTA 457

Brian and Minister for Immigration, and Multicultural Affairs (Migration) [2025] ARTA 457 (23 April 2025)
Review Applicant:               Roy Brian
Visa Applicant  Aysun Gunes
Respondent:  Minister for Immigration, and Multicultural Affairs
Tribunal Number:                2024/9918

Tribunal:General Member J Cipolla
Place:Sydney
Date:23 April 2025

Decision:The decision under review is set aside, and in substitution, the refusal of the Visa Applicant’s visa is revoked

……………[SGD]……………………
General Member J Cipolla
CATCHWORDS
MIGRATION – refusal of Visa Applicant’s Partner (Provisional)(Class UF visa-not meet character test-substantial criminal record – decision under review is set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411
HZXP v Minister for Immigration and Border Protection [2019] FCAFC 202
Irving v Minister (1996) FCA 663
JYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 3617
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
SECONDARY MATERIALS
Direction No. 110, Visa refusal under section 501(1) failure to meet character test under section 501(6)(a)
STATEMENT OF REASONS
BACKGROUND AND OFFENDING HISTORY

The Visa Applicant applied for a Partner (Provisional) (Class UF) visa on 15 April 2020.
On 17 July 2024, during the processing of the visa application, the Department of Home Affairs (“the Department”) issued the Visa Applicant with a Notice of Intention to Consider Refusal of the Partner Visa application on character grounds, on the basis that the Minister’s delegate (“the delegate”) had formed a view that the Visa Applicant may be a person that does not pass the character test.
It is clear from the evidence before the Tribunal that the Department had concerns about the Visa Applicant’s character during the processing of her partner visa application. This is evidenced by a response that Mr Brian (the Review Applicant) provided to the Department, dated 18 November 2022.
In this response to the Department Mr Brian stated that:
“upon finding out that my wife Aysun Gunes’s file was transferred to the Character Consideration Unit, my wife and I immediately made contact with the Department of Home Affairs through our Solicitor. The Character Consideration Unit responded to our correspondence in a very speedy manner and informed that my wife Aysun Gunes’s Criminal History were of concern to the Department of Home Affairs, in that, she had committed an offence of ‘larceny’ in 2018 and, that, this may lead the Department of Home Affairs assess her as a person who is not of ‘good character’ that is, she is not a ‘fit and proper person’ for grant of a visa. While the Department of Home Affairs having noted its concerns about my wife Aysun Gunes’s Criminal History, it also gave her and I the opportunity to provide respond to their concerns and provide explanations and evidence as to why it should be concluded that my wife is of ‘good character’ and that she is a ‘fit and proper person’ and it is in the public interest for her to be granted with a visa. As an Australian Citizen, I note that Australian Values and Australian people uphold the principle of ‘rule of law’ above and beyond everything. Consequently, a fair, just, and objective assessment of my wife Ms Aysun Gunes’s visa application is considered to be of paramount importance. Consequently, the Department of Home Affairs in assessing my wife’s character would consider all subjective and objective material before it before concluding to a decision”.
In respect of those considerations that the Department should turn its mind to, with respect to its character concerns, the Review Applicant stated that the Visa Applicant is a qualified teacher, however she was not currently working as a teacher. The Review Applicant noted that his wife sought asylum in France in 2020 because of her Kurdish ethnicity and the fear that she had of being the subject of persecution in Turkey, stemming from her involvement in movements and demonstrations advocating for basic human rights for the Kurdish population of Turkey. The Review Applicant stated that his wife whilst in Turkey, attempted to create equal opportunity for all people. The Review Applicant stated that, in the early stages of his relationship, the Visa Applicant disclosed to him that she had committed an offence of larceny in 2018. The Review Applicant stated that his wife’s disclosure of this past offence, exhibited strength of character, and that she was willing to face up to her past faults and to learn from these to avoid repeating the same wrongdoing going forward. The Review Applicant described the Visa Applicant’s larceny offence as a “shameful act of her past.” The Review Applicant noted that at the time of writing to the Department on 18 November 2022, it had been 31 months since the Visa Applicant had lodged her application for a Partner visa, and that this had led to an extensive period of the couple living apart. The Review Applicant stated that he and his wife were planning to have children and that the prolonged delay in the application process, and their extended period of separation was impacting negatively on his wife being able to conceive.
The Visa Applicant responded to the Departments Notice of 17 July 2024 on 18 July 2024 by completing a Personal Circumstances Form (PCF). According to that form, she had entered into a relationship with her husband in late 2018 and subsequently lodged a partner visa application from Paris in April 2020. They were formally married in February 2021. The Visa Applicant stated that she and her husband had been together for over five years and had maintained a dream of building a life together in Australia. The Visa Applicant stated that due to the visa processing delays, her husband was required to travel to France on several occasions to visit her, which placed both a financial and emotional strain on him. The Visa Applicant further submitted that, in the event that her visa was to be refused, her husband’s already fragile mental health would likely deteriorate. He had been diagnosed with a major depressive disorder, generalised anxiety disorder, panic attacks and post-traumatic stress disorder. She attributed the worsening of his condition to their prolonged separation and the persistent uncertainty surrounding her partner visa application.
The Visa Applicant stated that a refusal of her visa would have significant and distressing impacts on her family members, particularly her husband, the Review Applicant. She submitted that the emotional toll of their extended period of separation was having a detrimental impact on both herself and her husband.
With respect to her criminal history, the Visa Applicant acknowledged that she had a criminal record, arising from an act of theft committed in 2018 in Turkey, for which she was sentenced to a term of imprisonment of two years and six months. She stated “I deeply regret my actions, explaining that they occurred during a very problematic period of my life. I experienced significant stress and psychological issues at the time, which impaired my judgement. I emphasise that this was a one-off incident and is not reflective of my true character. I have shown genuine remorse and have since rehabilitated”.
The Visa Applicant further stated that she had not undertaken any formal rehabilitation or counselling courses, but had received psychological treatment and support since relocating to France. She stated that she expressed deep remorse with respect to her offending and provided letters of support from her psychologist, friends and colleagues attesting to both her character and to her rehabilitation efforts.
The Visa Applicant provided a translated copy of a report dated 18 November 2022, prepared by Mrs Sefika Gunes, a clinical psychologist. The report makes reference to the Visa Applicant seeking asylum in France in 2020. The psychologist described the Visa Applicant as responsible and trustworthy and noted that she provided details to Mrs Gunes with respect to her offending and noted that she took a number of objects from a department store without paying for them even though she had €1000 on her person. Mrs Gunes stated that this was the first time something like this had happened in her life, and that she was confused and embarrassed when stopped by a store security guard. The psychologist reported that the Visa Applicant advised her that this incident had created character issues for her and had led to her Partner visa application to Australia being “handicapped” by the existence of the criminal offending history. The report noted that the Visa Applicant had been engaged in individual psychotherapy sessions since 16 April 2021, following a diagnosis of reactive anxiety-depressive pathology. This was attributed to her mistreatment in Turkey and complex familial and social conditions in that country.
The Applicant provided a reference from her current employer in France, Mr Marc Tranin, the Director-Coordinator of the Saint Vincent de Paul School Group in Paris. The reference, dated 8 February 2020, indicated that the Visa Applicant had been employed as an Education Assistant on a part time basis from 1 September 2023. Mr Tranin found the Visa Applicant to be a “punctual, serious, voluntary person and she has never been absent since her recruitment”.
The Visa Applicant provided a character reference from Mrs Eminoglu Cemile, President of the Kurdish Women’s Movement in France, noting that the Visa Applicant worked for the organisation. She described the Visa Applicant as carrying out her duties “with rigor, punctuality, dynamism, motivation, discernment, discipline, and is always appreciated by her colleagues for her qualities of team-work, respect and kindness”.
The Visa Applicant provided a character reference from her brother, Mr Mehmet Faruk Gunes, dated 15 November 2022. In his reference, Mr Gunes stated that he became aware, that after an extensive period of processing of his sisters Partner visa application, her file had been transferred to the Character Consideration Unit due to concerns raised regarding her good character, in light of her 2018 offence of larceny.
Mr Gunes noted that, as the Visa Applicant’s older brother, he had a good understanding of her character. He described his sister as a kind and caring person of integrity. He advised that his sister had undertaken a number of voluntary roles during the course of her life, such as working with the elderly in nursing homes, reading them books, or taking them for walks. Mr Gunes noted that, after his sister committed the offence of larceny in 2018, she had disclosed her wrongdoing to him with alarm and remorse, and that he encouraged his her to get professional and psychological support. Mr Gunes stated that the one offence his sister had committed “should not be held against her the rest of her life and should not be a conclusive factor with respect to the assessment of her character”.
The Visa Applicant provided a character reference from her sister, Ummu Gulsum Gunes, dated 26 November 2022. Ms Gunes confirmed her relationship to the Visa Applicant and stated that the Visa Applicant had been involved in a stealing incident in 2018, which was totally out of character. Ms Gunes noted that after the larceny incident, that her sister lost her positivity and was under a great deal of stress. She also advised that the Visa Applicant was full of remorse for her offending and that this was the only offence that she had committed in her life. Ms Gunes stated that she had never been involved in criminal offending in the past. She submitted that the Department should not impugn her sister on the basis of a single offence that occurred five years earlier, and she described her sister as a kind woman who helps people and has a strong social conscience.
The Visa Applicant provided a character reference from a friend, Sehnaz Verim, dated 17 November 2022. Ms Verim noted that the Visa Applicants offending in 2018 was impulsive stealing without any thinking. She advised that after the offending, the Visa Applicant was extremely sad and very puzzled about the incident because it was out of character. She advised that the Visa Applicant had expressed remorse many times and had engaged in psychological counselling with respect to the offending. Ms Verim submitted that this one criminal offence should not define the character of the Applicant and stated that the Visa Applicant had been patiently waiting for a long period of time to join her husband in Australia and get on with their respective lives. Ms Verim described the Visa Applicant as a very good person who does not hurt anybody and who advocates for people and reaches out to those in need.
The Visa Applicant provided a character reference from her mother, Zeytun Gunes, dated 16 November 2022. Ms Gunes described her daughter as a successful woman who was able to stand on her own two feet and who lives her life without troubling anybody else. She described that her daughter provided both financial and moral support to her siblings throughout the course of their education. She described her daughter as being a joyful and smiling person, and that after the one criminal act where she acted impulsively, she was absolutely shocked with respect to the offending because it was so out of character for her daughter. The Visa Applicant’s mother stated that she believed that people should not be punished for the rest of their lives because of their first mistake, especially when the person shows remorse and has not engaged in repeat offending.
The Review Applicant provided a reference from his employer, Daniel Talbot, dated 19 July 2024, noting the adverse impact the delayed processing of the Visa Applicants visa application was having on the Review Applicant, Mr Brian, and the devastating impact a refusal of the visa would have on him.
The papers include a copy of a report prepared by Ms Sevilay Dogan, a registered psychologist, in respect of Mr Brian, the Review Applicant. The report, written in 2021, notes that the Review Applicant had been referred for an assessment by his general practitioner due to symptoms of depression and anxiety. The report notes that the Review Applicant arrived in Australia in September 2014 and applied for protection on the basis of being a persecuted Kurd from Turkey. The report notes that the Applicant had been engaging with a psychologist intermittently since he arrived in Australia in 2014 for symptoms of post-traumatic stress disorder, depression, and anxiety. The report notes that the Review Applicant first met his wife in 2011 in Turkey, met her again in Thailand in 2018, and that the couple were married in Paris in October 2020. The report notes that the prolonged separation from his wife as a result of the delayed processing of her partner visa application has caused the Review Applicant to suffer from low mood, loneliness and constant worry regarding his wife’s well-being. With respect to current symptomatology, Ms Dogan notes that the Review Applicant was presenting with a major depressive order and a generalised anxiety disorder, along with some symptoms consistent with post-traumatic stress disorder.
The Review Applicant has provided a copy of his last will and testament, which indicates that his wife is the major beneficiary of his entire estate. He has also provided a number of letters of support from friends in Australia, which confirm that he has substantially struggled with the delays in the processing of the Visa Applicants Partner visa application and the toll this has been taking on the Review Applicant’s mental health.
The Review Applicant has also provided a statement of support from Councillor Susai Benjamin from Blacktown City Council, which indicates that he had known the Review Applicant for some time and that the prolonged separation of the Review Applicant from his wife had been “profoundly distressing” and has had a detrimental impact on the Review Applicants finances who has, when able to, travelled to France to spend time with his wife.
The papers contain a certified translation of a document prepared by a Turkish lawyer, Yavuz Osan, dated 14 July 2022. The document makes reference to the fact that the Visa Applicant was sentenced to two years and six months in prison in 2018, and that the execution of the sentence had not been completed. The translation notes that Turkish legislation in 2020, referred to as Act 7242, introduced a regulation on the amnesty of the execution of sentences. The submission notes that the Visa Applicant is entitled to receive the amnesty in the execution of her sentence in accordance with this legislation. The submission notes, however, that the Visa Applicant left Turkey prior to the execution of her sentence. The submission outlines the necessary steps the Visa Applicant would need to undertake to avail herself of the amnesty. In conclusion the submission notes that the Visa Applicant is “a political asylum seeker in France who has been sentenced to 2 years and 6 months in prison and her sentence has not yet been executed and is entitled to benefit from the “amnesty on the execution of the sentence” issued in 2020”.
The papers before the Tribunal contain a response from Kayhan Oncu of Oncu Lawyers, dated 17 July 2024, addressing the Department’s notice of intention to consider refusal of the Visa Applicants visa application on character grounds.
That submission makes reference to the one incident of offending committed by the Visa Applicant in January 2018, which occurred in Istanbul, Turkey at which time she was attending a department store and stole men’s neckties to the value of AUD $160. The Visa Applicant pleaded guilty and was convicted and sentenced in June 2018, receiving a sentence of 2 and a half years imprisonment. The submission notes that a comparable offence, committed by a first offender in Australia who pleaded guilty at the first opportunity, would likely not have attracted such a severe penalty as a term of imprisonment. The submission speculates that one reason that the Visa Applicant may have been sentenced to an extended period of imprisonment for this offence was due to her Kurdish ethnicity and her affiliation with a pro-Kurdish political party in Turkey, given the politicsl context and had been politically active in that country. The submission notes that the Visa Applicant is now a resident of France, having been granted refugee protection in that country. The submission notes that the Visa Applicant in no way intends to downplay her offending and that she “accepts that she committed a crime and has spoken of her shame and embarrassment at her actions in her personal statements. She also states that she does not fully understand why she did it and that it was an impulsive, senseless action which she deeply regrets”.
The submission notes that the Visa Applicant holds a bachelor’s degree and is a qualified high school teacher, having taught at secondary level in Istanbul. Prior to the January 2018 offence, the Applicant had no criminal antecedents, and there is no evidence of any further offending.
With respect to Direction 110, the submission notes that the Visa Applicant would pose no danger to the Australian community, and that her January 2018 offence was a single, isolated mistake.
With respect to the strength, nature, and duration of ties to Australia, the submission notes that the Visa Applicant is married to an Australian citizen sponsor, the Review Applicant, and that they are in a long-term marital relationship. The submission notes that a partner visa application was lodged in April 2020 and remains unresolved due of the character issue. The submission notes that the Review Applicant had travelled to France to spend time with the Visa Applicant, most recently between October 2023 to January 2024. The submission notes that the Visa Applicant became pregnant to the Review Applicant but miscarried in February 2022. The submission notes that the delay in the processing of the partner visa application has had a detrimental effect on the Review Applicant, who is suffering with significant physical and mental health issues. Reference was made to the psychological evidence confirming his psychological condition. The submission also noted that the Review Applicant had been given support under the National Disability Insurance Scheme.

With respect to expectations of the Australian community, the submission notes that the Visa Applicant committed one single offence of larceny in a department store. The submission notes that the available evidence suggests that the offending was completely out of character. Prior to the offending, the Visa Applicant had worked as a high school teacher in Istanbul with no adverse police record and has since worked in France as a teaching assistant without incident. The submission notes that a significant time has elapsed since the offending occurred in January 2018. The submission notes the long-term nature of the Visa Applicant’s relationship with the Review Applicant. The submission notes that the Australian public, with respect to the circumstances of this case would be of the view that the Visa Applicant deserved some degree of leniency and that only a tiny minority of the Australian population would conclude that the Visa Applicant should be refused a partner visa on the basis of the theft of AUD $160 worth of men’s neckties from a department store six years ago.
Delegates Decision
The Tribunal has had regard to the delegates decision record dated 18 November 2024.
With respect to the delegates consideration of the nature and seriousness of the Visa Applicant’s conduct the delegate stated that “I take the view that offences such as shoplifting can be viewed seriously. Such offences deprive businesses of their property, causing them significant financial harm. However, it is society as a whole that ultimately shoulders the financial burden of such crimes. Business owners must increase prices to cover expenses associated with pursuing such crimes through the courts, and with the implementation of anti-theft measures. Taxpayers fund the law enforcement costs associated with dealing with this crime. In addition, individuals that witnessed such crimes can experience psychological harm as a result, particularly if such individuals are employees of the business”.
Of note in the delegate’s decision record is the finding at paragraph 36, that with respect to the Visa Applicant’s offence it was a deliberate act as she had money on her person at the time. However, the delegate concedes that “I accept her actions may have been influenced by her mental health at the time”.
At paragraph 47 of the decision record, the delegate noted that “on balance, I consider there to be a low likelihood that Ms Gunes will reoffend or further engage in serious conduct. Nevertheless, I considered that, should Ms Gunes engage in similar conduct again it may result in psychological and/or financial harm to members of the community.”
APPLICANTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
The Tribunal received a Statement of Facts, Issues and Contentions from the Review Applicant’s representative Mr Christopher Levingston, solicitor, dated 16 December 2024.
The submission makes reference to the delegate’s decision of 18 November 2024 pursuant to the exercise of powers arising under section 501(1) of the Migration Act 1958 (Cth) (“the Act”) with respect to the criminal conduct of the Visa Applicant and her subsequent conviction on 5 June 2018. The submission notes that the offence was theft in a public place for which the Applicant was sentenced to a term of imprisonment of two years and six months’. The submission notes that the Visa Applicants offending behaviour is described by a psychologist as isolated, corroborated by the fact that she had no criminal antecedents in Turkey and an absence of any criminal antecedents since her relocation to France. The submission notes that the Visa Applicant’s crime falls outside the parameters of serious offending as contemplated by Direction 110. The submission notes that the sentence imposed by the court in Turkey was wholly suspended.
With respect to risk to the Australian community, the submission notes that the Visa Applicant’s offending was a one-off and that she has sought to address the criminogenic drivers of her offending behaviour.
The submission notes that the Applicant has been of good behaviour since her conviction, a period in excess of five years.
With respect to the expectations of the Australian community the submission notes that the conduct, although serious, was driven by anxiety and depression. The submission contends having regard to the totality of the relevant facts and circumstances and consideration of those matters, the subject of consideration in Direction 110, that the appropriate course would be for the Tribunal to exercise discretion and revoke the refusal of the Visa Applicants Partner visa.
RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
The Tribunal has duly considered the Respondent’s SFIC dated 10 March 2025 prepared by Ms McNeil, Counsel, for the Minister.
The submission notes that the Visa Applicant did not pass the character test under section 501(6) of the Act on the basis of her “substantial criminal record” and that the respective issue for the Tribunal to determine is whether the Tribunal should exercise the discretion in section 501(1) of the Act to refuse to grant the Visa Applicant the visa.
The submission notes that the Visa Applicant is a 37-year-old citizen of Turkey. The submission notes that on 29 January 2018, the Visa Applicant committed the offence of “theft in a public place” and was convicted of the said offence on 5 June 2018. The Visa Applicant was sentenced to a term of imprisonment for the offence of 2 years and 6 months. The submission notes that “the Applicant has stated that the execution of the sentence imposed on her by the court in Turkey was “postponed”, with the last delay deadline being 28 January 2020”.
The submission makes reference to the inception and development of the relationship between the Visa Applicant and her partner, Mr Brian, an Australian citizen by conferral.
The submission notes that the Visa Applicant applied for protection in France on 2 October 2020 on the basis of her having been engaged in pro-Kurdish activities in Turkey. She was found by the French government to be owed protection obligations and was granted asylum in France on 31 December 2021.
The submission notes that the Visa Applicant does not pass the character test on the basis of her “substantial criminal record”, having been sentenced to a term of imprisonment of 12 months or more (paragraphs 501(6A) and 501(7)(c) of the Act).
The submission notes that the sole issue for the Tribunal to determine is whether to exercise its discretion to revoke the visa refusal, having regard to Direction 110.
With respect to protection of the Australian community, reference is made to the relevant considerations in Direction 110, which requires consideration of the nature and seriousness of the non-citizen’s conduct to date, and the potential impact on the Australian community should the non-citizen commit further offences or engage in other serious conduct. The submission contends that the primary consideration of the protection of the Australian community weighs heavily in favour of refusing the visa application. The submission notes that the Applicant has said that the one incident of offending was driven by psychological disturbance at the time and notes that the psychological evidence used to support this assertion postdates the offending, and hence should not be given weight. The submission contends “there is no independent evidence to support the contention that ‘the criminal conduct of the [Visa Applicant] was an aberration driven by psychological disturbance which has since been remediated by treatment”. The submission also notes that there have been shifting accounts of the circumstances surrounding the offence. The submission notes that in the submission advanced on behalf of the Visa Applicant on 29 July 2024, it was asserted that the items at the Visa Applicant stall were men’s neckties to the value of AUD$160. The submission notes that this assertion is contradicted by the reasons of the court dated 5 June 2018, and the Visa Applicant’s statement of 10 February 2021 which indicates that when the Visa Applicant was searched by the police and that they found stolen items from Zara, Pull and Bear and Stradivarius stores in the Applicant’s possession.
Further to this inconsistency, is another inconsistency where the Applicant told a psychologist that she did not need the items that were stolen as she had €1000 on her at the time and was working as a high school teacher, whereas she is recorded to have told the Turkish court that she did not have any money on her at the time of the offending. The submission notes that “the seriousness of the crime committed by the Visa Applicant should be considered in light of Direction 110, which does not limit the range of conduct that may be considered serious”.
With respect to risk to the Australian community, the Minister notes that the conduct engaged in by the Visa Applicant involved theft from three stores, and that the thefts were only detected after the Visa Applicant attempted to leave the third store, Zara. The submission posits that it is not accurate to describe the Visa Applicant’s criminal conduct as ‘one-off’. The submission notes that the circumstances of the criminal offending were recorded by the Turkish court as being a deliberate act, and that the Visa Applicant failed to return the goods to show remorse for the offending. The submission notes that the Visa Applicant has failed to identify any independent evidence to support the contention that she “has sought to address the criminogenic drivers of the offending”. Further to this, that the Visa Applicant concedes that she hadn’t engaged in rehabilitation or counselling services with respect to the offending. Overall, the Minister contends that the primary consideration of the protection of the Australian community from criminal or other serious conduct should be given significant weight with respect to the refusal of the applicant’s visa.
The submission notes that family violence is not an issue and hence should be given neutral weight.
With respect to the strength, nature and duration of ties to Australia, the submission notes that decision-makers must consider the impact of the decision on the non-citizens immediate family members in Australia who are Australian citizens, Australian permanent residents, or people with the right to remain in Australia indefinitely. The submission notes that the Applicant has never been to Australia, and that the only connection is with her spouse the sponsor, Mr Brian. The submission notes that there is no evidence to indicate that the Visa Applicant has any links to Australia through family members, friends or other persons who are Australian citizens, Australian permanent residents or who have a right to remain in Australia indefinitely.
The submission notes that it appears that the Visa Applicant and the sponsor have only been in the same physical location on very few occasions. In 2019 in Thailand, and in February 2021 in France, at which time the Visa Applicant and the sponsor were married, and again in December 2021 in France. The submission acknowledges the sponsor’s physical and psychological impediments along with the fact that the sponsor receives NDIS funding and concludes that the Minister acknowledges that this factor weighs against refusal of the visa application but only minimally.
With respect to expectations of the Australian community, the submission notes that Direction 110 outlines the Australian community’s expectation, and states that the expectation is that the Australian community expects non-citizens to obey Australian laws, while in Australia. That where a non-citizen has engaged in serious conduct in breach of that expectation or where there is an unacceptable risk that they may do so, the Australian community as a norm, expects the government not to allow the non-citizen to enter and remain in Australia. The Minister’s contention is that this primary consideration with respect to expectations of the Australian community should be given significant weight in favour of the refusal of the Applicant’s visa.
With respect to other considerations, these are dealt with sequentially. With regard to legal consequences of the decision, the submission notes that the Visa Applicant is not in Australia and that Australia’s non-refoulement obligations are not engaged in this matter.
With respect to the extent of impediments if removed, the submission notes that as the Visa Applicant is not in Australia, that this consideration does not arise and should be given neutral weight.
With respect to business interests in Australia being affected the submission notes that there is no evidence to suggest that any Australian business or major project would be compromised by the decision to refuse the visa, and that this consideration should be weighed neutrally.
With respect to the weight that should be given to the considerations in Direction 110 the Minister contends that primary consideration 1 and primary consideration 5 weigh heavily in favour of exercising the discretion to refuse the visa. The submission also posits that these two primary considerations outweigh the other considerations and that the delegate’s decision to refuse to grant the Visa Applicant a partner visa should be affirmed.
REVIEW HEARING
The Tribunal conducted a review hearing on 25 March 2025. The Review Applicant attended the hearing with his representative Mr Christopher Levingston. The Visa Applicant appeared via video conferencing facilities from Paris, France. The Minister was represented by Mr Jonathon Djasmeini from Minter Ellison Solicitors, and Ms Fiona McNeil Counsel from Selbourne Chambers represented the Minister at hearing. The Visa Applicant was assisted by an accredited Turkish interpreter who attended the hearing in person.
At the outset of the review hearing the Tribunal went into considerable detail about the process of merits review, the respective issues in the review, and the prospective outcomes of the review. The Tribunal also advised the parties about how the hearing would be conducted.
Mr Levingston made an opening submission. Mr Levingston noted that this was a case where the Applicant’s and the Respondents were in ‘furious agreement’ with respect to the fact that the Applicant for the visa had a substantial criminal record, which came within the parameters of the character test found in section 501(6) of the Act, in particular section 501(6)(a) which states that the character test is not met if the person has a substantial criminal record as defined by subsection (7). Subsection 501 (7) states that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 2 years or more. The evidence indicated that the Applicant had been sentenced by the relevant court in Turkey with “theft by being left in a place accessible to everyone” on 29 January 2018, which resulted in her being sentenced to two years and six months imprisonment bringing her within the ambit of section 501(7).
Mr Levingston noted that the issue for consideration for the Tribunal would be the exercise of the relevant discretion to refuse the visa or set aside the decision to refuse the visa, and that this discretion is informed by Ministerial Direction 110.
Mr Levingston noted that the focus of the Visa Applicant’s case will be with respect to the characterisation and assessment of the risk of reoffending, and to that extent the Visa Applicant will seek to focus this on the characterisation of risk rather than the characterisation of significant risk. Mr Levingston stated that reference will be made to the case of Godley v Minister for Immigration and Multicultural and Indigenous Affairs[1] referred to in the direction that the evidence of the Visa Applicant would address the relevant facts and circumstances with respect to her conduct leading to her conviction on 5 June 2018.
[1] (2004) 83 ALD 411.
Mr Levingston noted that it was conceded that the relevant criminal conduct was not limited to the sum of €95 as mentioned in the Applicant’s statement, and there was not one item stolen during the offending as previously advised in the Applicant’s statement, that it was in fact four items of which the Applicant was found to be in possession of whilst apprehended by security guards at the shopping centre in Turkey.
Mr Levingston noted that the evidence with respect to the Review Applicant would go towards his relationship with the Visa Applicant.
Mr Levingston noted that that having regard to the totality of relevant factors and circumstances before it, that the Tribunal might be comfortably persuaded to find that the decision made by the Respondent on 20 November 2024 should be set aside, and that the matter should be remitted back to the department for final determination.
Ms McNeil made an opening statement to the Tribunal.
Ms McNeil noted that the Minister had filed a detailed statement of facts, issues, and contentions and that the Minister is reliant on the points raised in the SFIC.
With respect to the weight that the Tribunal should give to the particular considerations under Direction 110 the following considerations applied.
Reference was made to the primary consideration 1, the nature and seriousness of the Visa Applicants offending to date and to the risk posed to the Australian community if the Visa Applicant was to engage in other serious offending or conduct. It was posited that this consideration should weigh heavily in favour of refusing the visa.
With respect to primary consideration 5, expectations of the Australian community, the Minister submits that this consideration should weigh heavily in favour of refusing the visa. Ms McNeil stated that, to the extent that the Visa Applicant invites the Tribunal to look behind the factual matters underpinning the conviction and sentence of the Visa Applicant that this invitation should be rejected. With respect to this Ms McNeil made reference to the case of HZXP V Minister for Immigration and Border Protection [2019] FCAFC 202 (“HZXP”), particularly paragraph 79 of that decision.
The Tribunal notes that HZXP involved a discussion of the authorities and principles relevant to whether the Tribunal may look behind or impugn the conviction or sentence. The Federal Court noted at paragraph 77 that “as a matter of policy, it would be highly undesirable if Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome”.
Ms McNeil noted that whilst the Tribunal’s assessment of the circumstances of the Applicant’s offending will be an important part of its consideration with respect to its exercise of discretion, the essential facts found by a sentencing judge in the course of their deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. She submitted that the Tribunal should not make findings inconsistent with those determinations.
Ms McNeil noted that the Applicant and the Minister also differ as to the weight that each say should be given to primary consideration 3 in Direction 110 concerning the strength nature and duration of the Visa Applicant’s ties to Australia. Ms McNeil stated that based on the material that has been brought to the attention of the Minister, this consideration weighs against refusing to grant the visa but only minimally.
Overall, the Minister contends that the discretion to refuse to grant the visa should be exercised. With respect to the evidence that had been placed before the Tribunal and the various items of documentation placed before the Tribunal, the Minister notes that there are numerous documents purporting to be statements with respect to mental health conditions. They include an assessment of the medical and psychological conditions of the Visa Applicant and the Review Applicant. Ms McNeil noted that Mr Levingston had advised that no reliance would be had with respect to the report of the psychotherapist Ms Sefika Gunes, submitted on behalf of the Applicant. Mr Levingston had further advised that this person would not be called to give evidence at the review hearing and hence Ms McNeil stated that the document provided by this proposed witness along with her report should not be given any weight. Ms McNeil also made reference to the Administrative Review Tribunal Practice Direction 2024, which governs the practice in respect of expert evidence. Ms McNeil posited that the document provided by Sefika Gunes along with other medical and psychological documents included in the bundle of G documents had not been prepared in accordance with the Tribunal’s expert evidence practice direction. Ms McNeil posited that as a consequence the weight that should be given to such material is adversely affected.

Ms McNeil noted that for ‘good order’ the Minister had provided to the Tribunal movement records for the Review Applicant in his original name of Ceylan Mehmet. Ms McNeil suggested that the respondent’s chronology of events located at HB 16-17 should be read together with details in the Review Applicant’s movement history. Ms McNeil noted that the movement records pertaining to Ceylan Mehmet relates to the movement history of the Review Applicant now known as Roy Brian.
Mr Levingston questioned the Visa Applicant. The Visa Applicant gave her name, date of birth in place of birth. The applicant confirmed that she had before her, a statement signed by her, located at G-15, page 75-76, and confirmed that the contents of that document were true and correct. Mr Levingston confirmed that that concluded his evidence in chief.
Ms McNeil asked the Visa Applicant whether she had a copy of the decision of the Turkish court that had been translated and submitted to the Tribunal just prior to the hearing in front of her. Ms McNeil noted that this document appeared in the G documents in an untranslated Turkish version, and that there was now an English translation of that document. Ms McNeil noted that Mr Levingston had stated that the Visa Applicant now accepts that there were four items stolen by her during her offending.
Ms McNeil stated that she wanted to give the Visa Applicant an opportunity to speak for herself with respect to how many items were stolen. Reference was made to a copy of the translation of the court’s findings. Ms McNeil asked the Applicant whether she agreed that the items of clothing stolen included shoes and clothing from three separate shops Zara, Pull and Bear and Stradivarius along with a description of the items. The Applicant confirmed that they were and added at the time of the offending she only remembered taking a neck-tie and that she did not pay attention to what she was taking.
The Tribunal noted that the untranslated court document in Turkish and the translated document made reference to the fact that the goods stolen by the Visa Applicant amounted to 973 Turkish liras. The Tribunal asked the representatives whether they had an idea of what this amount equated to in Australian dollars. The Tribunal was advised that it converted to AUD$40.80.
The Applicant again stated that she could not remember what she took in the shops. The Applicant stated that she can confirm that the items that were raised with her whilst in the police station were the items that she took from the stores in question.
Mr Levingston took evidence from the Review Applicant. The Review Applicant gave his name and date of birth. Mr Levingston noted that the Applicant had provided a statement located at G-24, page 113-115. The Review Applicant confirmed that the signature on the statement was his signature and that the statement provided was true and correct. Mr Levingston stated that the Review Applicant was reliant on his statement, and he had no further questions.
Mr Levingston made closing submissions to the Tribunal. Mr Levingston noted that the Respondent’s opening statement addressed the question in issue before the Tribunal, and that was whether there is another reason why the discretion in Direction 110 should operate in favour of the Visa Applicant, and whether the Tribunal should affirm the decision to refuse the visa.
Mr Levingston stated that the evidence clearly showed that in 2018 the Visa Applicant entered commercial shopping premises in Turkey and was apprehended by security staff with items that were not her property. This event took place on 29 January 2018, and led to her being convicted of the offence of theft in a public place. Mr Levingston stated that the Visa Applicant came into possession of a number of goods whilst attempting to leave the commercial premises. Mr Levingston noted that the Tribunal could inform itself of the objective seriousness of the Visa Applicant’s criminal conduct without seeking to go behind the findings of the Turkish court. Mr Levingston noted that the goods that had been stolen by the Visa Applicant had a value of 973 Turkish Lira. This equated to AUD$40.80. Mr Levingston noted that this did not assist the Tribunal with respect to the objective seriousness of the matter and that he was not seeking to make submissions about the penalty imposed by the Turkish courts in this case which equated to a bond of two and a half years. Mr Levingston conceded that the penalty imposed by the court in Turkey came within the ambit of section 501(6) and (7) of the Migration Act.
Mr Levingston stated that he agreed with Ms McNeil that the issue before the Tribunal was whether there was another reason to revoke the refusal of the Visa Applicants partner visa application with regard to Direction 110.
With respect to primary consideration 1, namely protection of the Australian community and safety of the Australian community, Mr Levingston noted that this required an assessment of risk if the Visa Applicant were to come on-shore. He noted that comments made by Ms McNeil focussed the Tribunal on the relevant considerations. Mr Levingston made reference to Direction 110 at 5.2(1) which states that “Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and or remain in Australia”. Also 5.2(2) which states that the safety of the Australian community is the highest priority of the Australian Government. Mr Levingston also referred to 5.2(8), which notes that the inherent nature of certain conduct such as family violence, is so serious that even strong countervailing considerations may not be sufficient to justify not cancelling or refusing the visa. Mr Levingston noted that family violence did not apply in this case.
With respect to the strength, nature and duration of ties Mr Levingston noted that they were limited. It was noted the Visa Applicant applied for her partner visa on 15 April 2020, and that she had been in a relationship with an Australian citizen (the Review Applicant) for an extended period, and that he travelled to Thailand and France to spend time with her when he was able to.
With respect to expectations of the Australian community, Mr Levingston acknowledged that theft in a public place is serious and referred to Direction 110 at 8.1.1(1) which states that without limiting the range of conduct that may be considered very serious, that the following conduct and crime was deemed to be viewed very seriously and that included crimes of a violent or sexual crimes, crimes of a violent or sexual nature against women and children, acts of family violence regardless of conviction or sentence. Mr Levingston noted that the focus in this part of the direction was focussed on violent criminal offending and also included forced marriage and crimes committed against vulnerable members of the community. Mr Levingston stated that the case in issue concerned one incidence of shoplifting that did not come within the types of offending envisage in 8.1.1. Mr Levingston noted that the penalty imposed was serious in respect of serious criminal behaviour.
Mr Levingston noted that at the time of her arrest and the time that the Visa Applicant appeared before the court she was not legally represented and that she admitted her guilt at first instance which was a broad indicator of her contrition and remorse.
Mr Levingston noted that the Visa Applicant’s statement at G-15 pages 75 and 76, offers some explanation of what drove her to commit this offence. In her statement. she indicated that the offending did not make sense to her. Further her recollection of the offending was referable to the neck ties and that when questioned, she recalled items of clothing and shoes. In her statement, the Visa Applicant expressed being overwhelmed with remorse and embarrassment with respect to her offending and that as a result of her embarrassment, she could not go to a lawyer to seek help.
Mr Levingston confirmed that the Visa Applicant was not reliant on the expert evidence that had been submitted in evidence to the Tribunal as it was not contemporaneous evidence, however, the Visa Applicant at some stage engaged with a psychologist to discuss her behaviour that caused her personal embarrassment.
With respect to Direction 110 Mr Levingston noted the Tribunal must consider the nature and seriousness of the offending behaviour. The Visa Applicants conduct in this case related to a one-off offence the theft of goods from commercial shopping premises. It has not been repeated and was a single isolated incident of offending. The offending occurred in January 2018 and there has been no offending since the isolated incident.
With respect to the risk of the Visa Applicant engaging in further offending, it was noted the Visa Applicant prior to the offending of January 2018 had no criminal antecedents. The offending of theft occurred on one occasion. There has been no repeat offending engaged in by the Visa Applicant since January 2018 a period in excess of 7 years.
It was submitted that the Visa Applicant’s offending of January 2018 although criminal in nature is not of the gravity of offending as contemplated in the Direction. The evidence before the Tribunal was not indicative of a pattern of behaviour. The Tribunal needed to consider the demeanour and credibility of the Visa Applicant and Mr Levingston submitted that the Visa Applicant was credible and a witness of truth.
Mr Levingston submitted that the evidence indicated that the Visa Applicant had enduring moral qualities and that there were no concerns with respect to moral culpability.
Mr Levingston submitted that the totality of the evidence before it indicated that there is no unacceptable risk that the Visa Applicant would engage in further offending and that the Visa Applicant since the offending has taken significant steps to redeem herself.
Ms McNeil advised that the Minister was reliant on its statement of facts, issues, and contentions. Ms McNeil identified that the sole issue before the Tribunal was whether to exercise discretion to revoke the refusal of the Visa Applicant’s partner visa application or to affirm that decision. Ms McNeil submitted that the Visa Applicant did not pass the character test by reason of the fact that she has a substantial criminal record.
With respect to the application of Direction 110, Ms McNeil referred to paragraph 27 of the Respondent’s SFIC, which makes reference to paragraph 8.1(1) of the direction, namely that when considering the protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government, and that decision-makers should have particular regard to the principal, that entering or remaining in Australia is a privilege, and admission to the country should not be made to persons who would cause or threaten harm to individuals or the Australian community.
Ms McNeil noted that with respect to the nature and seriousness of the criminal conduct engaged in by the Visa Applicant, that regard should be had to the principal that entering Australia is a privilege. Ms McNeil conceded that the Applicant’s offending was not violent or of a sexual nature and noted that the descriptors of the nature and seriousness of the conduct in paragraph 8.1.1 does not limit the range of conduct that may be considered very serious.
Ms McNeil posited that it was appropriate to consider the offence of the Visa Applicant, and how this offence was dealt with by the Turkish courts. Ms McNeil noted that irrespective of the fact that the value of the items stolen amounted to 973 Turkish lira or AUD$40.83, that the judgement referenced at HB 317 indicates that the Visa Applicant stole a total of seven pieces of product from three stores in a shopping centre and was finally caught leaving the Zara store, and that “it was necessary to accept that her action remained at the attempt stage”. The judgement also made reference to the high value of the goods stolen, and that the offending ended when the Visa Applicant was detected by in-store security.
Ms McNeil noted that the Applicant had sought to advance that her behaviour was brought on by psychological disturbance. However, she noted that this is not supported in the medical evidence tendered., Ms McNeil noted that the Visa Applicant was no longer reliant on the medical evidence submitted, and that the psychological assessment of the Visa Applicant was taken many years after the offending. She further noted that there was no expert evidence with respect to the criminal activity being caused by psychological disturbance.
Ms McNeil also made reference to the Visa Applicant’s shifting accounts of the circumstances surrounding the offence, stating that she initially stole neckties but later conceded that there were seven different items of clothing and a pair of shoes involved in the theft.
Ms McNeil noted the Direction 110 does not limit the range of conduct deemed to be serious. Ms McNeil noted that the Turkish courts sought to impose a prison sentence of 2 and a half years albeit, that the Visa Applicant was not required to serve prison time and that the sentence was akin to a bond.
With respect to the risk that the Visa Applicant posed to the Australian community, Ms McNeil made reference to the Respondent’s SFIC at paragraph 35. Ms McNeil noted that the Turkish court indicated that the Visa Applicant failed to return the goods. It was not accurate to characterise the Applicant’s criminal conduct as a one-off as it involved thefts from three different stores and that the offence committed by the Visa Applicant was recorded by the Turkish court as being a deliberate act. That the Visa Applicant had failed to provide independent evidence in support of the contention that she has sought to address the criminogenic drivers of her offending. Further, the Visa Applicant conceded that she had not undertaken any forms of rehabilitation or counselling services.
Ms McNeil noted that with respect to the primary consideration pertaining to family violence conduct, there is no indication of any family violence committed by the Visa Applicant and that this consideration should be given neutral weight.
With respect to the strength nature and duration of ties to Australia, that it is clear on the facts that the Visa Applicant has never been to Australia. The evidence indicated that the Visa Applicant’s only strength of ties to Australia are through her Australian citizen husband. It was contended that this consideration should be weighed neutrally against revocation of the refusal.
With respect to best interests of minor children, Ms McNeil noted that this consideration was not relevant and hence should be given neutral weight by the Tribunal.
With respect to expectations of the Australian community, that despite the contentions advanced by the Visa Applicant’s representative with respect to the risk posed by the Visa Applicant, there is a paucity of evidence to address criminogenic conduct.
The Minister contends that the offending and sentence should be given significant weight in favour of the decision to refuse the visa, and that the Tribunal cannot look behind the decision of the Turkish court.
With respect to ‘other reasons’ that as the Applicant is a resident in France, that there are no non-refoulment considerations with respect to the Visa Applicant or indeed removal considerations. There is no evidence of an impact on Australian business interests and hence ‘other reasons’ should be weighed neutrally.
Ms McNeil acknowledged the fact that the Visa Applicant to her credit was candid in informing the sponsor of her offending behaviour.
Ms McNeil contended on behalf of the Minister, significant weight should be given to primary considerations 1 and 5, which weigh heavily in favour of refusing the revocation of the visa application. Ms McNeil contended that primary considerations 2 and 4 should be given neutral weight, and primary consideration 3 with respect to ties to Australia should be given some weight. However these respective primary considerations are outweighed by primary consideration 1 and 5. Ms McNeil posited that the direction to refuse to grant the visa should be exercised and the delegate’s decision should be affirmed.
THE CHARACTER TEST AND DIRECTION 110
The operational effect of subsection 501(6)(a) and 501(7)(c) of the Act, is such that the Tribunal finds that the Applicant has a substantial criminal record, as she has been sentenced to a term of imprisonment of 12 months or more in Turkey. The Applicant in these circumstances does not pass the character test.
To revoke the refusal of the Applicant’s visa under section 501CA(4)(b) of the Act, the Tribunal must be satisfied that there is another reason, considering Direction No 110, to revoke the refusal.
Direction 110 sets out Primary Considerations and Other Considerations. These are addressed under their respective headings below.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR 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, which the Tribunal will now address.
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 Visa Applicant who was born on 1 March 1988 had no criminal antecedents prior to her one act of offending conduct, which occurred on 29 January 2018, at Marmara Park Shopping Centre in Istanbul.
On the day in question, the translated judgement of the Civil Court of First Instance indicates that the Visa Applicant entered the Zara store, and as she was leaving the store, the security alarm went off and the Visa Applicant was found to be in the possession of four items consisting of shoes and clothing belonging to the Zara store, two pieces of clothing belonging to the Pull & Bear store and one piece of clothing belonging to the Stradivarius store. The items were concealed in the Visa Applicant’s bag. It was determined that the alarms with respect to the products had been removed, and that the security alarm was only triggered due to a hidden alarm in the shoes stolen by the Visa Applicant. The court noted that the total value of the goods stolen by the Visa Applicant was 973 Turkish liras. The Visa Applicant is recorded to have stated in her defence before the court that “I accept the accusation. I was not in a good economic situation, I even took the tie even though it was useless for me. It is true that I stole goods from the stores mentioned in the indictment. I regret this. I have no other statements to add. I will compensate for any damages”. The court found that the fact that the Visa Applicant had €1000 in her possession negated her evidence that she was not in a good economic situation, and the court noted that her culpability with respect to the offending was heightened by the fact that she had removed alarms from the items.
The evidence before the Tribunal indicates that in a statement that the Applicant provided to the Character Consideration Unit of the Department, dated 15 November 2022 and located at G-15, page 75 indicates that:
“In 2018, I experienced an incident in a shopping centre which still does not make any sense to me. I had money with me, and I took these things I really did not need at all. Although I was not aware of what I did, I owned up my responsibility and expressed my remorse in the court. It was the worst time of my life, and I could not recover after the experience I had. I was helpless four days because of the feeling of remorse and the embarrassment. Because of the embarrassment I felt for what I did, I could not go to a lawyer to seek legal help”.

The Applicant in her statement to the Character Consideration Unit also said that:
“after the incident, I met Roy O’Brien for the first time who later became my spouse. I explained to him what happened. My spouse evaluated the situation as a mistake I did, and supported me, trusted me and believed sincerely that something like this would never happen again”.
The evidence before the Tribunal indicates that since the incident of 29 January 2018, the Visa Applicant has not engaged in any offending behaviour in excess of seven years.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) 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 reasonable and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[2]
(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.
[2] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
In Turkey, the minimum penalty for the offence committed by the Visa Applicant on 29 January 2018 is 6 years imprisonment. In the Visa Applicant’s case, the court saw fit to impose a penalty of two years and six months in gaol. The evidence indicates that the execution of the sentence imposed on her by the court in Turkey was postponed with what is described as the “last delay deadline being 28 January 2020”. The sentence imposed operated akin to a suspended sentence.
The evidence before the Tribunal indicates that after this ‘last delay’ deadline passed, the Visa Applicant left Turkey in February 2020, and travelled to France. She applied for the partner visa that is the subject of this application on 15 April 2020. She applied to the French authorities for refugee protection on 2 October 2020. On 31 December 2021, the French Government granted the Visa Applicant asylum.
As noted, the Direction states that “the imposition of a custodial term is regarded as the last resort in any reasonable and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending”.
To assist the Tribunal with respect to its task of determining whether there is another reason or reasons for revoking the refusal of the Visa Applicant’s partner visa which includes an “objective assessment of the Applicant’s offending”, recourse has been had by the Tribunal to the Citizenship Procedural Instructions (CPI), namely CPI 15 which deals with assessing character concerns under citizenship. Those instructions provide examples of what is considered to be serious offending, for the purpose of assessing a person’s eligibility for citizenship by conferral. At point 12 of CPI 15 which deals with ‘offences’, reference is made to offences that an Applicant has committed that can be considered serious, examples are crimes of violence such as “murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death; war crimes, crimes against humanity, genocide; crimes against children; drug-trafficking (including importation and supply); people smuggling; fraud (including identity fraud); harassment or stalking; terrorist activity; extortion; illegal pornography, including child pornography; breaches in immigration law, including those that resulted in removal or deportation from Australia or another country; offences incurring prison sentences of 12 months or more”.
CPI 15 provides examples of minor offences which includes shoplifting; some traffic offences that have been included in a criminal record; offences that lead to a finding of guilt but no conviction or sentence.
The Tribunal notes that the category of offending committed by the Applicant on 29 January 2018, does not come within the parameters of what is considered for citizenship character assessment purposes to be a serious offence. The Applicant’s offending is characterised in the CPI 15 as coming within the parameters of a minor offence.
The Tribunal is cognizant of the fact that the CPI 15 makes reference with respect to serious offending to offences that incur a prison sentence of 12 months or more. The Tribunal notes again that the sentence imposed by the Turkish court was a sentence of 2 and a half years duration fully postponed with what is described as the ‘last delay’ deadline being 28 January 2020.
Discussion was had during the course of the review hearing with respect to monetary value of the items stolen from the three stores in question in Australian dollars. The evidence indicated the total value of the items stolen by the Visa Applicant equated to AUD $40.83.
The Tribunal acknowledges this that the legislature in play with respect to the applicant’s offending of January 2018 is Turkish legislation. The Tribunal also accepts that under that legislative regime, the Applicant’s offending led to the imposition of a term of imprisonment of 2 and a half years (albeit delayed). With respect to an assessment of the objective seriousness of the Applicant’s offending of January 2018, had the offending occurred in the Australian jurisdiction, having regard to the fact that the Applicant had no criminal antecedents, this was her first instance of offending behaviour, given the monetary value involved, and given the Applicant’s expression of remorse, that it would be fair to say that the offending would not have led to the imposition of a prison sentence. More likely than not it would have been dealt with by way of fine, and given the lack of antecedents, the expression of remorse and other factors around the offending, it may well have led to no conviction being recorded.
The Tribunal further notes, that CPI 15 at 12.2 with respect to assessing the relative seriousness of the offence, suggests that a decision-maker asked the question “is there a pattern of criminal behaviour?” It notes “a pattern of behaviour, even of repeated minor offences over an extended period, shows a disregard for the law and may support a finding that the applicant is not of good character. Decision-makers should consider whether the offending has become more serious or frequent over time”.
As has been discussed, the Visa Applicant’s offending occurred on one occasion on 29 January 2018., The Visa Applicant in the intervening 7 plus years has not engaged in further offending. The offending with respect to the Visa Applicant appears to be a one-off aberration and it appears to be totally out of character for the Visa Applicant.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the impact of offending on any victims, where this information is available and where an Applicant has been afforded procedural fairness.
There is no evidence before the Tribunal with respect to the impact of the Visa Applicant’s offending behaviour of January 2018 on any victims.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Visa Applicant’s offending history is confined to the one incident of offending that occurred on 29 January 2018.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The Visa Applicant’s offending history is confined to the one incident of offending that occurred on 29 January 2018.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction points to an inquiry as 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 that the Visa Applicant has provided false or misleading information to the Department.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction looks for evidence about 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. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.
There is no evidence that the Visa Applicant has offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction points to an inquiry where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The evidence indicates that the Visa Applicant’s one incidence of offending took place in Turkey on 29 January 2018. Theft from a shop or store is classified as an offence in Australia and normally comes under the umbrella of ‘shoplifting’.
The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, are given minimal weight with respect to the revocation of the refusal of the Visa Applicant’s partner 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 the 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 posed 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; and
(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; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(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.
The evidence before the Tribunal indicates that prior to the Visa Applicant’s offending behaviour of 29 January 2018, the Visa Applicant had no criminal antecedents. The evidence before the Tribunal indicates that the Visa Applicant has tertiary qualifications in education obtained in Turkey and had worked as a high school teacher in Istanbul. The evidence before the Tribunal also indicates that the Visa Applicant had also been actively engaged in community service.
The evidence before the Tribunal indicates that since the offending behaviour of 29 January 2018, the Visa Applicant has not engaged in any further offending over that extended period of time.
In this case the Tribunal finds that ‘time’ is a strong factor in assisting the Tribunal in its determination of whether there is a likelihood of the non-citizen engaging in further criminal or other serious conduct. That evidence indicates that up until January 2018, the Visa Applicant had not engaged in any offending behaviour that brought her within the ambit of the criminal justice system in Turkey. The evidence indicates that since the offending behaviour of January 2018, the Applicant has not engaged in any offending behaviour that has brought her within the ambit of the criminal justice system in Turkey, or indeed the criminal justice system in France, a country in which she was granted asylum in December 2021.
There is no evidence before the Tribunal that indicates that the French authorities harboured character concerns with respect to the Visa Applicant, and this is evidenced by the fact that the Visa Applicant was granted asylum in France on 31 December 2021.
The evidence before the Tribunal indicates that the Visa Applicant when appearing before Turkish courts for sentencing, expressed her remorse with respect to her offending behaviour. The Applicant in her statements, has expressed on a number of occasions, a disbelief in her engaging in such offending and with respect to the offending making ‘no sense’ to her.
The citizenship procedural guidelines at CPI 15 which have been referenced by the Tribunal note at point 14, that officers assessing whether an Applicant is of good character should as a general proposition, weigh the information before them characterising the nature of any offence or behaviour; whether the offence is serious or minor; whether the offence harmed other people; whether there were victims of the offending; whether there is a pattern of behaviour of offending; whether it was a one-off incident; and whether there were extenuating circumstances. The guidelines go on to say that “a decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities”.
Having engaged in a close assessment of the evidence before it, the Tribunal finds based on that evidence, there is no likelihood of the non-citizen engaging in further criminal or other serious conduct.
Consideration of the sub-paragraphs of paragraph 8.1.2 of the Direction in their totality, leads the Tribunal to find that minor weight should be given to the refusal of the Visa Applicant’s visa and that the weight attributed to this consideration has been substantially mitigated by the factors discussed.
Conclusion: Primary Consideration 1
With respect to Primary Consideration 1, minor weight is given to this consideration with respect to the refusal of the Visa Applicant’s partner visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
There is no evidence before the Tribunal that indicates that the Visa Applicant has engaged in family violence, and this consideration is not applicable in this review and hence is given no weight.
Conclusion: Primary Consideration 2
Primary Consideration 2 is not relevant and hence no weight has been apportioned to this consideration.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
The Tribunal must consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature, and duration of any other ties that the non-citizen has to the Australian community.
Sub-paragraph (a) of paragraph 8.3(2) of the Direction directs a decision-maker to have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child. Less weight should be given where the non-citizen began offending soon after arriving in Australia. More weight should be given to time the non-citizen has spent positively to the Australian community.
Sub-paragraph (b) of paragraph 8.3(2) of the Direction directs the decision-maker to consider 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 Visa Applicant has never been to Australia and hence has not spent any time in the country. The Visa Applicant’s husband, the Review Applicant in these proceedings, has been in Australia since 2014. He was found by the Australian Government to be owed protection obligations and he is an Australian citizen by conferral. The Review Applicant has worked as a painter and decorator for Talbot’s Services and has worked for this business as a sub-contractor since 2019 and he is a described in a reference from his employer as demonstrating “exceptional dedication and hard work making invaluable contributions to our team”.
The Visa Applicant in applying for the partner visa in April 2020, did so on the basis that she and her husband intended to make a life for themselves in Australia. The lodgement of the application makes their intention clear, and that is, that the couple would like to lay down the foundation of their married life in Australia. This is where the Review Applicant has lived and worked for the last 10 years and where the evidence suggests is the country in which they would like to raise children in the future. The evidence indicates that the Review Applicant has solid work as a sub-contractor in Australia and is highly regarded by his employer, and hence Australia offers economic stability in that respect.
It is disingenuous to describe the Visa Applicant as having limited ties to Australia as she has one very significant tie to Australia through her Australian citizen husband. The evidence that has been presented with respect to this consideration by the Respondent is that the delegate when assessing the partner visa application, concluded that the couple had only spent time together on “very few occasions”. The Tribunal notes that the Visa Applicant is domiciled in France, the Review Applicant in Australia, and that the costs associated with spending time together given the distance between the two countries is substantial. The evidence indicates that the Review Applicant has spent as much time as possible with his wife in France, and they have also met up in Thailand. However, the partner visa application of April 2020 makes their objective clear as to where they would like to be domiciled.
Conclusion: Primary Consideration 3
In the Tribunals view Primary Consideration 3 weighs strongly in favour of the revocation of the refusal of the of the Visa Applicant’s partner visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
There are no minor children who would be affected by the decision and hence this consideration is irrelevant, and no weight is consequently apportioned to this consideration.
No weight is given to this consideration as there are no minor children who would be affected by the decision and hence this consideration is not relevant.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment of 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.

The Visa Applicant’s only instance of criminal conduct occurred in January 2018 in Turkey. Prior to this offending, the Visa Applicant had no criminal antecedents, and the evidence indicates that she has not committed any offences since that incident which occurred over 7 years ago.
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 where they have engaged in 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.
This consideration makes it clear that “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: an act of family violence; causing a person or another party into a forced marriage; commission of a serious crime against women, children or other vulnerable members of the community; commission of crimes against government representatives or officials; involvement or reasonably suspected involvement in human trafficking or people smuggling or in engagement with war crimes, crimes against humanity or slavery; or worker exploitation.”
The evidence before the Tribunal is clear that the Visa Applicant has not engaged in conduct that raises serious character concerns in the eyes of the Australian community, as outlined in Direction 110, 8.5(2)(a)-(f).
The Tribunal further notes that this consideration states that:
“the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government to not allow such a non-citizen to enter or remain in Australia”.
The Tribunal finds that the conduct engaged in by the Visa Applicant on 29 January 2018 does not constitute “serious conduct” as envisaged by the Direction, for reasons that have been articulated in the body of this decision. With respect to risk, the Tribunal finds that the one incident of offending behaviour on 29 January 2018 was a one-off incident. Given the Visa Applicant’s history and consistent character evidence as attested by various references from her family, friends and colleagues, the conduct appears to be an aberration. This is corroborated by the fact that the Visa Applicant had no criminal antecedents prior to the January 2018 offending and has not engaged in any criminal offending in the intervening 7 plus years since that offence was committed. The Tribunal finds that there is no compelling evidence before it to suggest that the Visa Applicant would pose an unacceptable risk to the Australian community if she was allowed to enter and remain in Australia, given an assessment of her life circumstances.
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) 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 a decision maker is required to have regard to.
As noted the offending incident of January 2018 was the first incidence of offending that had occurred throughout the Visa Applicant’s life. No offending has occurred since that time a period of in excess of 7 years.
The Visa Applicant’s one instance of criminal conduct in January 2018 appears to have been an aberration and not in keeping with her character, which has been established through character references submitted by family, friends and work colleagues, all of whom attest to her sound character traits.
The Visa Applicant’s profile and her criminal offending are not of the kind envisaged or indeed identified by Primary Consideration 5. The Tribunal respects the authority of the Turkish jurisdiction to impose the sentence that their legislature has deemed relevant to impose for this category of offending. However, when viewed through the prism of the Australian judicial system and given the fact that the Visa Applicant is attempting to seek entry to Australia, the Tribunal finds that the sentence imposed by the Turkish jurisdiction is disproportionate to the nature of the offending behaviour. The Tribunal is of the view that, had the same offence been committed by the Visa Applicant in Australia, it is unlikely that the character concerns arising from the Turkish sentence would have been triggered. Accordingly, the Tribunal finds that the character concerns raised as a result of the Turkish court’s sentencing would more likely than not, not have arisen in the Australian content.
On balance, with respect to Primary Consideration 5, the Tribunal gives neutral weight to this consideration with respect to the revocation of the cancellation of the Visa Applicant’s visa. The Visa Applicant’s criminal profile and her criminal offending is not of the kind envisaged by Primary Consideration 5.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
The Visa Applicant resides in France where she was granted asylum by the French Government in December 2021. As a consequence of this fact the Australia’s non-refoulement obligations are not engaged in this matter. In addition to this as the Visa Applicant is not in Australia, removal from Australia does not arise.
There is no evidence before the Tribunal that indicate that Australian business interests would be impacted if the Visa Applicant was not allowed to enter or stay in Australia.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternative conditions that must be satisfied before the Tribunal may revoke the mandatory refusal of the Visa Applicant’s visa: either the Visa Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to Direction 110, to revoke the cancellation.
Having regard to the evidence before it, the Tribunal finds that the Visa Applicant does not pass the character test.
In considering whether there is another reason to make the decision under section 501CA(4) of the Act, to revoke the mandatory visa refusal decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in Direction 110. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 is given minor weight against the revocation of the refusal of the Visa Applicant’s visa, although this consideration is not, in itself, determinative.
(b)Primary Consideration 2 is not relevant and, as such, no weight is given to this consideration.
(c)Primary Consideration 3 weighs strongly in favour of the revocation of the refusal of the Visa Applicant’s visa.
(d)Primary Consideration 4 is not relevant and hence no weight is given to this consideration.
(e)Primary Consideration 5 is given neutral weight in the assessment of whether to revoke of the refusal of the Visa Applicant’s visa.
(f)The ‘Other Considerations’ are not relevant and hence no weight has been given to these considerations.
For the reasons stated, the Tribunal gives minor weight to Primary Consideration 1, which concerns the protection of the Australian community, with respect to the refusal of the Visa Applicant’s visa. No weight is apportioned to Primary Consideration 2, as it is not relevant. Strong weight is given to Primary Consideration 3 with respect to the revocation of the refusal of the Visa Applicant’s visa. No weight is apportioned to Primary Consideration 4 as it is not relevant. Neutral weight is given to Primary Consideration 5 with respect to the refusal of the Visa Applicant’s visa for the reasons articulated. The Tribunal gives no weight to other considerations with respect to the revocation of the refusal of the Visa Applicant’s visa. Having cumulatively considered the Primary Considerations and the Other Considerations, the Tribunal finds that the refusal of the Visa Applicant’s visa should be revoked.
The Tribunal has given careful consideration to all of the Primary Considerations, including those that are given primacy and the weight that should be apportioned to these considerations. The Tribunal has also had regard to the Other Considerations. Having regard to the totality of the evidence, with respect to those considerations, the Tribunal finds that the refusal of the Visa Applicant’s partner visa should be revoked.
Accordingly, the Tribunal is satisfied that the refusal of the Visa Applicant’s visa should be revoked.
DECISION
The decision under review is set aside and, in substitution, the refusal of the Visa Applicant’s visa is revoked.

Date(s) of hearing: 25 March 2025

Solicitors for the Applicant: Mr. C Levingston, Christopher Levingston & Associates

Counsel for the Respondent: Ms F. McNeil

Solicitors for the Respondent: Mr. J Djasmeini, Minter Ellison

Date(s) of hearing:	25 March 2025
Solicitors for the Applicant:	Mr. C Levingston, Christopher Levingston & Associates
Counsel for the Respondent:	Ms F. McNeil
Solicitors for the Respondent:	Mr. J Djasmeini, Minter Ellison