1. Under s 501(1) of the Act, the Minister has the discretion to refuse grant of a visa to a person if the person does not satisfy the Minister they satisfy the character test. A person does not pass the character test if they have a substantial criminal record (s 501(6)(a)). This is defined, relevantly, as including a sentence of imprisonment of 12 months or more (s 501(7)(c)).
2. Exercise of the discretion is to be informed by the principles and considerations set out in Ministerial Direction No. 110 ('the Direction'). The Direction's Principles provide the framework for decision-making under the Direction [5.2]:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

1. The specified Primary Considerations are [8]:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia;

(5) expectations of the Australian community.

1. The specified other considerations include, but are not limited to [9]:

a) legal consequences of the decision; > > b) extent of impediments if removed; > > c) impact on Australian business interests.

2. The Direction provides that the primary consideration of protection of the Australian community is generally to be given greater weight than the other primary considerations, and these should generally be given greater weight than other considerations [7(2)]. One or more primary considerations may outweigh other primary considerations [7(3)].

1. The first issue that arises is whether Ms NRFD fails the character test. There is no dispute in this matter that her prior conviction causes her to fail this test. I have considered the material supporting this, being a translation of the decision of a Turkish criminal court, dated 28 February 2018 (G4).
2. Accordingly, it is necessary now to consider whether the discretion to refuse grant of the visa should be exercised, having considered the guidance provided in the Direction.

1. Ms NRFD was prosecuted 'for the crime of making propaganda for an armed terrorist organization in accordance with article 7/2 (1st and 2nd sentence) of the anti-terror law numbered 3713 and article 43/1 of the Turkish Penal Code numbered 5237' (G4, 30). This arose from material on her personal Twitter account between February 2016 and January 2017. Various phrases and images are identified in the court decision in respect of eight separate twitter posts (G4, 30 and 34-35). The posts are said to have identified the PKK, used the words of its founder, used images of members of the PKK, and referred to the first armed action taken by the organisation on 15 August 1984. Also included in two posts were symbols of the YPG and YPJ organisations, and the image of a member of the YPJ.[2]
2. The prosecutor appears to have argued that the posts amounted to legitimising and praising participation in violence and terrorist acts (G4, 31). When first questioned, Ms NRFD claimed that the posts were not hers, and her account was used by an unknown person (G4, 32). She claimed to never have had an affiliation with a terrorist organisation, not to have participated in any action or demonstration, and not to have provided material or moral support. During a preliminary proceeding, Ms NRFD apparently acknowledged making the posts, but said they were made due to her psychological condition. At the final hearing, Ms NRFD is said to have acknowledged that non-violent posts belonged to her but, as stated on previous occasions, her account had been taken over by another person (G4, 33-34).
3. The court described the PKK as an armed organisation within the scope of art. 314 of the Turkish Penal Code, and took account of jurisprudence to the effect that it is a terrorist organisation trying to violently separate from state sovereignty (G4, 35-36). The court further described the YPG and YPJ as Syrian counterparts to the PKK, which serve the same purpose. The court noted that the constitutional right to freedom of expression is subject to an exception in the case of speech promoting violence (G4, 37).
4. In finding Ms NRFD guilty, the court appears to have initially set the penalty at the lower end of the sentencing limit (G4, 40). It considered various factors, including the use of media for purposes of propaganda, the making of multiple posts in a short space of time, Ms NRFD's respectful attitude, her lack of criminal record, her remorse and 'personality traits' (G4, 40-41). The penalty, including its suspension for five years, was also reached taking into account 'the fact that no material damage has occurred to the people and the public due to the crime committed, [and] that our court has obtained a positive conscience that she will not commit a crime again in the future and observed regret in the face of the accused, and the acceptance of the accused'. The court announced that the matter would be dismissed should Ms NRFD comply with probation (G4, 42), and, as noted, Ms NRFD presently has no criminal record in Turkey (G3).
5. In a statement dated 31 May 2025 (ABSS/1), Ms NRFD states, in summary:

(a) that she was arrested at her workplace in October 2017 for 'retweeting' Twitter posts concerning the treatment of the Kurdish people in Turkey, with no additional commentary in the posts [4]; > > (b) her actions were a deeply personal and emotional expression of grief and frustration due to her Kurdish identity, and was not a political act [6]; > > (c) she shared the posts as an expression of solidarity with the Kurdish people and not to incite or provoke [8]; > > (d) she is a peaceful, law-abiding person who believes in justice and equality, and she is not a political activist [11]; and > > (e) she has not since posted on social media and is committed to a peaceful and responsible life [15].

6. In her supplementary statement (Exhibit A1), Ms NRFD adds further [6]:

(a) she did not make the tweets dated 3 March 2016 (Annex A) and August 2016 (Annex D); > > (b) the flag depicted in the tweet dated 4 March 2016 is not that of the PKK but in fact an Iraqi Kurdish flag (Annex B); > > (c) she cannot recall making the retweets dated 12 March 2016 (Annex C) and 15 August 2016 (Annex E); and > > (d) she does recall making the tweets dated 21 September 2016 (Annex F), 5 October 2016 (Annex G), and 21 January 2017 (Annex H) and in her recollection it depicts her friend who had recently disappeared.

7. In her evidence at the hearing Ms NRFD stated that she had faced discrimination in Turkey due to her Kurdish identity. I understood her to also say that when she became a human resources manager in a hotel she faced further discrimination. Ms NRFD reiterated that she would not incite violence and is not a member of any organisation.
8. It was put to Ms NRFD in cross-examination that she deliberately failed to disclose the contents of the tweets until submitting her supplementary statement. She maintained that she had not considered the matter since her prosecution and she was recently asked to look for the material and had managed to locate it. When asked how it could be that another person made tweets from her account, Ms NRFD stated that it may have been due to jealousy and that fact that she shared a desk and computer. It was put to her that there was one day between the first two posts, one of which she denied making. Ms NRFD responded that she did not notice that the other post had been made. She stated further that a colleague had warned her prior to her arrest that she should 'watch out' and I understood her to rely on this as part of her explanation about the unknown tweets.
9. Cross-examination continued as to the ownership of the tweets and the implication that Ms NRFD supported violence. She maintained the distinction she had drawn between various tweets, and denied the specific proposition that she had chosen to deny only the most problematic tweets. During a more thorough review of the individual tweets, Ms NRFD stated the YPJ was trying to stop kidnappings and slavery and the person identified in a related tweet protected women from discrimination. Ms NRFD later stated that she identified with these issues as a woman.
10. I summarise some relevant context to the offending from the DFAT Country Information Report, dated 9 October 2018 (ABCI/3):

(a) the insurgency led by the PKK killed an estimated 40,000 people between 1984 and a 2013 ceasefire, which collapsed leading to resumption of security operations [2.3]; > > (b) Turkish laws on terrorism have been criticised as including a vague definition of both terrorism and terrorist offender [2.50]; > > (c) by the end of September 2018, the resumed conflict had caused the deaths of over 4,000 and clashes continued through late 2017 and early 2018 [2,52]; > > (d) Turkish forces and Syrian rebel allies conducted operations in Syria in early 2018 including against the YPG, considered a PKK-aligned terrorist organisation [2.53]; > > (e) a State of Emergency was declared following the attempted coup in mid-2016, and included extensive powers leading to a crackdown including legal proceedings against over 44,000 people 'on a variety of terrorism charges, including for being ... members of the PKK, and other organisations' [2.55]; > > (f) some Turkish citizens associate all Kurds with the PKK, and a range of assimilationist policies particularly affect the Kurdish population, are deeply resented, and fuel the long running conflict with the PKK [3.3]-[3.4]; > > (g) the government response to the 2016 coup significantly affected the rights and freedoms of Kurds, and these citizens, particularly in the area of the conflict, face 'a high risk of violence and discrimination' [3.5]-[3.6]; > > (h) the state of emergency powers were used to target a wide range of Kurdish individuals accused of supporting the PKK, although Kurds in Western Turkey are not necessarily subject to the same level of risk as others [3.7]-[3.8]; and > > (i) 'pro-Kurdish activists who made comments on social media that authorities found offensive were now likely to be identified as PKK supporters and faced much harsher punishments than in the past: instead of one to two months in prison, activists now faced years' long charges on broad terror offences ...' [3.47].

11. The more recent DFAT Country Information report (ABCI/4; Exhibit R1) includes the following update [2.4]:

In March 2025, the PKK (designated a terrorist organisation by Türkiye, Australia, the United States and the European Union among others) declared a unilateral ceasefire following a call from its imprisoned leader, Abdullah Ocalan, for it to disarm and dissolve. In May 2025, the PKK announced it would disband, formally ending one of the world's longest-running conflicts. The full implications of this development for Türkiye and the broader region were unknown at the time of writing.

12. The Applicant also provided relevant material concerning the Australian government's position on the PKK, and I summarise from an oddly generic 'national security' website not clearly attributed to any particular agency (ABCI/1).[3]

(a) the Australian government first listed the PKK as a terrorist organisation in December 2005, and it was relisted on six subsequent occasions, most recently in August 2021; > > (b) the organisation was listed pursuant to Division 102 of the Criminal Code Act 1995 (Cth) (the Criminal Code) and is described as 'an ideologically motivated violent extremist organisation'; > > (c) the PKK maintains links with other Kurdish violent extremist organisations such as the YPG, and the Turkish government does not distinguish between them; and > > (d) 'the Kurdistan Worker's Party does not currently pose a direct threat to Australian interests' and one Australian has been charged with being a member of the PKK (Renis Lelikan) and was subject to a three-year Community Correction Order.[4]

13. The Criminal Code Act 1995 (Cth) ('Criminal Code') provides in Subdivision HA for 'Offences relating to use of carriage service for violent extremist material'. Such material is defined as to include material that 'supports or facilitates serious violence' (s 474.45A(1)(a)(iii)). Serious violence is defined in terms of acts essentially forming the definition of terrorist acts (such as causing serious harm, property damage, or death) (s 474.45A(2); s 100). An objective test is provided, including being that a reasonable person would consider in all the circumstances, the material 'is intended to directly or indirectly advance a political, religious or ideological cause' (s 474.45A(1)(b)).

1. It was submitted for the Applicant that Ms NRFD had not committed any crime in Australia, and there was no risk arising from activity in Australia relating to the Kurdish community. Further, one tweet related to an organisation - the YPG - that is not a listed terrorist organisation here. It was also contended that consideration must be given to the wider context of the listing of the PKK as a terrorist organisation in Australia. This includes the expert evidence given in R v Lelikan (No. 5), at [71], that status and nature of the activities of the PKK is highly contested at international law.
2. Written submissions also address the following matters (ASFIC [19]):

(a) the Turkish court made no finding of violent motive on Ms NRFD's behalf, and found no material damage had occurred; > > (b) as a general proposition, support for terrorism is serious but the PKK has not sought to cause harm in Australia, and the organisation is seen by Kurds as a symbol of their desire for greater recognition; > > (c) Ms NRFD's conviction occurred at a period of heightened political attention in respect of the Kurdish people; > > (d) Ms NRFD voluntarily disclosed her conviction; and > > (e) some doubt arises as to whether her conduct amounts to criminal conduct in Australia, or would result in a similar sentence of imprisonment.

3. Given the authoritatively documented acts of violence committed by the PKK, it remains a matter of concern that Ms NRFD expressed her support.
4. The Respondent submitted that this matter does not concern geopolitical issues, but rather is about the question of whether the conviction for publishing support for a terrorist organisation is unacceptable, such as to trigger the exercise of the discretion. It was contended that focus should be placed upon Ms NRFD's actions in the context of armed insurrection and the killing of civilians by the PKK. The evidence given by both the Applicant and Ms NRFD about the importance of freedom of speech should also be looked at in the context of the court's decision, which took this into account.
5. Additionally, it was contended that Ms NRFD's evidence about the tweets was unsatisfactory and lacked credibility. Similar contentions were considered by the court, and it was submitted that for Ms NRFD to persist with them reflects badly upon her, given the status of the PKK as a listed terrorist organisation in Australia.
6. Written submissions elaborate upon the matters set out above (see RSFIC [24]-[25]). It is noted, further, that the actual import of recent reports of the PKK disbanding is a matter of speculation [26]-[28].
7. Ms NRFD's conduct should be considered as inherently very serious under the Direction, particularly as the PKK is a listed organisation in Australia [29]. The conduct 'could well' qualify as an Australian offence [30]. It is also submitted that were the conduct to be repeated, it would be inherently disruptive to the Australian Turkish community, and the risk should be seen as unacceptable [34]-[35].
8. Ms NRFD's conduct does not fall explicitly within the types of conduct in the Direction defined as very serious, or serious [8.1.1(1) a) and b)], however the Direction does not purport to restrict these categories. The evidence about the exact nature of the social media posts is somewhat mixed, and the images provided of them in the Applicant's material is of poor quality. I accept that there is a relatively good description in English translation in the Turkish court decision. That said, my reading of the material indicates that there is no explicitly violent imagery or language involved, and the Applicant appears to be correct to assert that the PKK flag is not involved, as claimed, and that at least two of the posts make no direct reference to the PKK. On balance, however, I consider it reasonable to find that posting material generally in support of a group considered to be a terrorist organisation, through its violent armed action, should be understood as serious conduct.
9. The sentence imposed by the Turkish court was a relatively substantial period of imprisonment, and it considered Ms NRFD's repeat behaviour [8.1.1(1) c) and e)]. Equally, the court appears to have considered important mitigating factors and - critically - suspended the sentence. No submissions were made as to the status in Australian law of a spent international conviction, but I consider this to be relevant. I also give due weight to the description of the crackdown in the DFAT Country Report and the imposition of harsher than usual penalties for support on social media of the PKK.
10. I consider that some, limited, weight should be given to the fact that the conduct could be classified as an offence in Australia under the Criminal Code, albeit it is unclear what the threshold for 'violent extremist material' might actually be [8.1.1(1) i)]. I also consider it relevant to take some notice of the Australian criminal proceedings that have been cited. The headnote to R v Lelikan describes the prosecution in that matter as arising from the Respondent's passive but sympathetic and informal membership of the PKK during which he spent time with an armed wing of the organisation. While he had been charged and sentenced in absentia overseas because of his association with the PKK, the principal features of his membership were supporting the organisation's struggle in writings as a chronicler.
11. I summarise very briefly from the judgement of Chief Justice Bathurst:

(a) The nature of the organisation's past activities and potential future activities are relevant to determining the objective seriousness of the offending, and the PKK has operated in a relatively confined geographic location 'and does not at present present a direct threat to this country' [123]; > > (b) the PKK 'as a matter of fact, neither advocates nor engages in the indiscriminate killing of civilians', noting however that Australia has classified it as a terrorist organisation [124]; and > > (c) the sentencing judge had taken account of the Respondent's renunciation of violence and correctly stated that continuing 'to support the PKK's objectives (no doubt in common with many other Kurdish people) did not lead to the conclusion that he was either of bad character or had any dangerous propensity' [144].

12. This is a highly selective summary, and I accept that the Court of Criminal Appeal (per Bathurst CJ) accepted numerous grounds of appeal against the penalty imposed by the sentencing judge. However, I consider the citations above to indicate that some nuance is required when seeking to understand the significance, in Australia, of an espoused affiliation to the Kurdish struggle and the PKK in particular.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

1. I summarise some additional matters raised in Ms NRFD's principal statement (ABSS/1):

(a) she has a lifelong interest in community service and social justice, including provision of assistance following an earthquake in 2023 [13]-[14]; > > (b) she poses no risk to the Australian community, has taken every step to lead a law-abiding life, and is well-educated, hardworking and committed to contributing to Australian society [24]-[25]; and > > (c) she nominates examples of positive contributions to family and community, identifies her plans to undertake further study and commence a family with Mr Herki [26]-[27].

2. In his statement (ABSS/2), Mr Herki he sets out his extensive contribution in a range of leadership roles in the Australian Kurdish community, including representing it at the 2018 parliamentary review of the listing of the PKK as a terrorist organisation [4]-[7]. Mr Herki states that he first connected with Ms NRFD on social media in late 2016 and they bonded over their shared cultural values, then meeting in person in February 2017 [8]-[10]. Mr Herki states that since the prosecution she has focused on rebuilding her life, and is respected by family, friends and the community [20]-[21]. He considers her prosecution as a form of discrimination, noting Ms NRFD has since lived in compliance with the law, and is no threat to the Australian community [29].
3. In her statement (ABSS/4), Ms Cavdar states that she has known Ms NRFD for 10 years and considers that she would never incite hatred or violence.
4. Ms NRFD confirmed in her evidence her desire to have a family with her partner, and reiterated that living in Australia appears to be their only option and that this is the subject of her conversations with Mr Herki. When asked about her approach to politics, Ms NRFD stated that she keeps her distance.
5. In cross-examination, Ms NRFD restated that she did not believe the posts she acknowledged making had been in support of violence.
6. In his evidence, Mr Herki expanded upon his statement describing the range of cultural and diplomatic activities he undertakes in the Kurdish community. He too stated that his relationship with Ms NRFD revolves around their personal lives and does not involve political discussions. This was in part to protect Ms NRFD from danger. Mr Herki stated that he believed there was a general sense of surveillance and harassment of the Kurdish community in Australia.
7. In cross-examination, Mr Herki was asked about the status of the PKK as a terrorist organisation. I understood him to accept that it was identified as such, but also to refer to its ideology as protecting the Kurdish people, and that terrorism had been committed 'by both sides.' In further questioning he appeared to state that he did not consider it a terrorist organisation but accepted that violence against civilians constitutes terrorism. Mr Herki added that he and the Kurdish community had advocated against the continued listing of the PKK as a terrorist organisation by the Australian government.
8. Consistent with his statement, Mr Herki stated that he considered Ms NRFD's prosecution a grave injustice, and he believed her explanations about the posts. I inquired further about his understanding of the prosecution, and Mr Herki explained that everything about the PKK is criminalised.
9. In a final passage of evidence, Mr Herki explained his close and regular liaisons with Australian security agencies, on behalf of the Kurdish community. He stated that he was scheduled to meet them later that day in relation to a planned community event.
10. Mr Herki also stated that it was his understanding that the PKK had indeed been dissolved and that this was acknowledged among political actors in Turkey and discussions had been held about prisoner release.

1. The Applicant stressed that Ms NRFD continues to deny involvement with some of the tweets. Regardless, it was contended that she does not pose a risk to the Australian community. In support, it was noted that the Turkish court found that Ms NRFD was unlikely to reoffend. It was also submitted that all witnesses accept that targeting civilians is a form of terrorist activity and that, while the PKK is a listed terrorist organisation in Australia, the evidence indicates it has legitimate political aims. In relation to the question of risk of future harm, Ms NRFD has provided positive character references, describes herself as a peaceful person and has avoided social media (ASFIC [21]-[24]).
2. The Respondent contended that Ms NRFD appears not to fully accept the nature and extent of her conduct, and that Mr Herki has expressed a sense of injustice at the conviction. Together these factors increase the risk to the Australian community [36]-[38]. Finally, given their intention to permanently settle in Australia under the visa, and the 'fact of [Ms NRFD's] unresolved remorse', the risk of harm is increased [40].
3. The Direction requires me to have regard to the Government's view that the Australian community's tolerance for future harm reduces as the seriousness of the potential harm increases; some conduct may be considered unacceptable) [8.1.2(1)]. I must have regard to the nature of the harm that may arise and the likelihood of it arising, as informed by evidence of rehabilitation, and whether the risk is affected by the duration of the visa [8.1.2(2)].
4. The factors that complicated the consideration of the nature and seriousness of the conduct also raise challenges under this part of this primary consideration. Put simply, it is necessary to determine the seriousness of a potential harm that has not previously arisen in Australia, and the risk that it may be repeated. It is clear the relevant conduct (albeit consisting of several instances of social media posting) equates in effect to a one-off offence. It is also clear that the offending took place in a particular social and political context. It is arguable that the context has substantially changed following the disbandment of the PKK.
5. Despite these factors, it remains possible to make an assessment. This is so if only because of the Australian legal context, which includes the proscription of the PKK, at least one criminal prosecution for a person associating themselves with the organisation, and the elements of the Criminal Code set out above. Accordingly, I find that there is a potential for harm to the Australian community from the promotion of a listed terrorist organisation on social media. However, the level of harm must be understood - and I consider tempered -in the context of material already set out. This includes the relatively moderate penalty arising in R v Lelikan, and the associated judicial pronouncements about the limited risk posed by the PKK and support for the organisation to the Australian community.
6. I consider the evidence overall, including the findings of the Turkish court, as indicating there is an extremely limited chance overall of the conduct being repeated. A substantial part of the Respondent's approach to this issue appears to rest upon casting doubt as to Mr Herki's attitude to the PKK. Some of this is undercut by the matters I addressed immediately above, particularly those arising in R v Lelikan. That is, I am not troubled by what might be seen as ambiguity arising from Mr Herki's evidence in respect of the nature of the PKK. Mr Herkis himself is clearly highly conscious of the proper boundaries of community activism in Australia.
7. Perhaps more importantly, I consider Ms NRFD's evidence and attitude to be more pertinent. She has expressed remorse, and the prosecution appears to have had a real impact upon her. In the context of my findings about the relative seriousness of Ms NRFD's conduct, I am not troubled by her apparent equivocation about the origins and ownership of the various posts.
8. Ms NRFD's relationship with Mr Herki, in any event, appears to be decidedly emotionally meaningful, and I have not seen any evidence to suggest that the couple have the potential to be agitators or activists for the PKK. I accept on its face, further, the findings of the Turkish court as to the risk of reoffending.

1. Overall, it is contended for the Applicant this primary consideration weighs neutrally or, at worst, only to a very minor degree in favour of exercise of the discretion. The Respondent submits that this consideration weighs heavily against granting the visa.
2. I have found that Ms NRFD's conduct should be understood as serious. I have also found that there are critical contextual elements to the conduct that mitigate this seriousness. I have also found that there is an extremely limited chance of the conduct being repeated. Overall, this risk is acceptable.
3. I find therefore that this primary consideration weighs only slightly in favour of the exercise of the discretion.

1. The circumstances of this matter do not engage this consideration and therefore it weighs neutrally.

The strength, nature and duration of ties to Australia

1. The Direction provides that consideration must be given to the impact of the decision upon the non-citizen's family members in Australia, where they are citizens or otherwise have the right to permanently reside here [8.3(1)].
2. In his statement, Mr Herki states that if the visa is refused, he may be forced to leave Australia. This would mean trying to find a suitable third country to live in with Ms NRFD (ABSS/2 [24]). It would also mean him giving up his employment and engagement with the Kurdish community in Australia. The Applicant describes such an outcome as 'significantly detrimental' to him. He explains the need to meet in third countries by reason of his fear of persecution in Turkey because of his outspoken Kurdish activism [26]. Mr Herki describes his community engagement in his statement at [4]-[7].
3. The Applicant also states that he is deferring surgery as he wishes wait until he has Ms NRFD by his side [22]. He also states that the couple are deferring their plans to have children until they can be together [28]. In his evidence at the hearing, Mr Herki stated his belief that even Australian citizen advocates for the Kurdish people could be at risk in Turkey.
4. The Applicant contends that the DFAT Country Information Report supports Mr Herki's position that he may be at risk if the couple travels to Turkey (ASFIC [34]). It is submitted that, given the various matters raised by Mr Herki as being affected by the decision, this consideration weighs very strongly against exercise of the discretion to refuse [37].
5. The Respondent acknowledges that refusal would affect Mr Herki, being resident in Australia and given the couple's intention to reside here together (RSFIC [46]). However, it is contended the consideration only weighs somewhat in the Applicant's favour, and not so decisively as to outweigh the other considerations [47].
6. As noted above, an important issue in this matter is the impact of the apparent disbandment of the PKK in Turkey. While I raised with the parties in closing submissions the significance of this fact for Mr Herki's decision-making about his place of residence, I do not understand it to have been put in evidence. Accordingly, despite there being a speculative element to the consequences of exercise of the discretion for Mr Herki, I must give some adequate weight to the Applicant's written and oral evidence.
7. It is evident from the circumstances of this matter overall that the couple's preference is to live together in Australia and that this would permit them to commence normal family life together. Accordingly, I find that this consideration weighs moderately heavily against exercise of the discretion to refuse the visa.

Best interests of minor children in Australia affected by the decision

1. The circumstances of this matter do not engage this consideration, and it therefore weighs neutrally.

1. The Direction here expresses in a normative manner the expectation highlighted in the Principles, being that non-citizens are expected to obey Australian laws [8.5(1)]. Where there is an unacceptable risk that they may break Australian law, the Australian community expects the Government not to permit them to enter Australia.
2. Further, visa refusal may be appropriate simply because of the nature of character concerns that arise [8.5(2)]. The Direction notes 'in particular' certain kinds of character concerns or offences may trigger the expectation. This expectation may apply regardless of whether the non-citizen causes a measurable risk of harm [8.5(3)].
3. The Applicant submits that though Ms NRFD has not been found to breach Australian law, there is no risk she will do so in future, and her conduct does not trigger the expectation identified in the Direction (ASFIC [39]-[40]). It is further submitted her conduct does not fall within the kinds of serous conduct specified at paragraph 8.5(2) of the Direction. Accordingly, it is contended that this consideration does not weigh in favour of exercise of the discretion.
4. The Respondent submits that the expectation applies on the basis of the nature of Ms NRFD's conviction for publicly supporting a listed terrorist organisation (RSFIC [55]), consistent with paragraph 8.5(2) of the Direction.
5. I accept that Ms NRFD's past conduct does not fall within the matters specified in paragraph 8.5(2), but I do not read this part of the Direction as limiting consideration to those matters. However, from my consideration of her conduct above, I do not consider that it raises 'serous' character concerns.
6. Moreover, as I have found, any risk that Ms NRFD poses to the Australian community from criminal conduct in the future is so low as to be entirely acceptable. For this reason, I find that this consideration weighs only slightly in favour of exercise of the discretion to refuse.

1. This other consideration is directed at the consequences under the Act of a decision upon the non-citizen in question. Attention is to be paid to whether a protection finding has been made and the possibility that there may be obligations not to put a non-citizen at risk of harm in their country of origin.
2. The Applicant's submissions on this consideration are primarily directed at the consequences of a decision for Mr Herki (ASFIC [42]-[45]). The Respondent, I consider correctly, contends that Ms NRFD as the visa applicant is offshore and has no protection claims to make (RSFIC [55]). It is further contended that Mr Herki's interests are best addressed under the primary consideration strength, nature and duration of ties to Australia [56].
3. The Respondent does acknowledge the Applicant's submission (ASFIC [44]) that it is unlikely that Ms NRFD would be successful in a future visa application should she be denied on this occasion (RSFIC [57]).
4. On this basis, I find that some limited weight should be afforded this other consideration against the exercise of the discretion.

1. The Applicant's written submissions refer to and repeat matters raised in respect of previous primary and other considerations (ASFIC [46]). It is therefore contended that the extent of those impediments are very significant and weigh heavily against exercise of the discretion to refuse the visa. At the hearing I understood the Applicant did not continue to pursue this submission. The Respondent contends that this other consideration is not engaged.
2. In circumstances where the Direction here refers to any impediments a non-citizen may face if removed from Australia, I consider that this other consideration is not engaged, and therefore weighs neutrally.

1. The Direction identifies here a general case, being that the impact of the decision upon Australian business interests be only generally given weight when the decision would significantly compromise the delivery of a major project or important service [9.3(1)].
2. In brief I note that written and oral evidence indicates that Ms NRFD has qualifications and work experience in human resource management and that Mr Herki has worked as a software engineer in a variety of sectors in Australia for over 10 years.
3. The Applicant submits that Mr Herki himself is engaged in work that falls within a skills shortage list established by the Government, and that Ms NRFD herself works in a field that is subject of a skills shortage in Victoria (ASFIC [48]-[49]). Accordingly, it is contended this consideration weighs significantly against exercise of the discretion by way of refusal of the visa.
4. The Respondent submits that Ms NRFD is not employed in Australia and therefore the decision cannot have any impact upon a major project or important service (RSFIC [59]). Equally, the Applicant's own employment does not fall within the category of major project, and it is also contended that the Applicant's submission is predicated on an unrealised assumption about Mr Herki ceasing his local employment. At the hearing, the Respondent contended that, due to the speculative basis of any employment decisions to be made by Mr Herki, this other consideration weigh no more than marginally in favour of exercising the discretion in favour of granting the visa.
5. At the hearing the Applicant correctly identified Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 as a relevant authority on this other consideration. This decision in effect simply draws attention to the fact that the Direction identifies the general case, and therefore does not exclude consideration of other business scenarios.
6. The Applicant noted in submissions Mr Herki's oral and written evidence to the effect that refusal of grant of a visa to Ms NRFD may result in a decision by him to depart Australia. This is consistent with Mr Herki's statement and his oral evidence to the effect that he could find it difficult to find employment overseas in the IT industry.
7. While the material before me does not meet the general case stated in the Direction, I agree with the Respondent that this factor only merits limited weight against the exercise of the discretion. This is due to the speculative nature of any impact that refusal may have upon Mr Herki's employment, and the relatively generic nature of Ms NRFD's skills and experience.

1. Of the primary considerations, I have found that protection of the Australian community and expectations of the Australian community weigh slightly in favour of exercise of the discretion, and that strength, nature and duration of ties to Australia weighs moderately heavily against exercise of the discretion. The other primary considerations weigh neutrally.
2. Of the other considerations, I have found that legal consequences of the decision and impact on Australian business interests weigh to a limited extent against exercise of the discretion, and the extent of impediments if removed weighs neutrally.
3. Ms NRFD's conduct occurred eight years ago and in a very different, and quite particular, social and political context. I therefore do not consider the ongoing listing in Australia of the PKK as a terrorist organisation to be in any way determinative of this matter.
4. Her conduct was treated with some moderation by the Turkish court. It is also questionable how it might square with current Australian criminal law. Furthermore, there are authoritative judicial observations about the limited significance in Australia of 'mere' support for the PKK. What is more, there are clear indications that organisation has moved on from its separatist agenda.
5. Accordingly, I find that greater weight should be given to those factors that weigh against exercise of the discretion, than those which I have found weigh in its favour.

1. For the reasons given above, the Tribunal sets aside the decision under review and substitutes it with the decision that the discretion to refuse Ms NRFD's visa should not be exercised.

[1] The previous spelling Turkey is also used at times in these reasons.

[2] I note these are references to, respectively, male and female-led Syrian Kurdish militias. See generally the Wikipedia entries for the YPG and YPJ.

[4] See: R v Lelikan (No. 5) [2019] NSWSC 494; R v Lelikan [2019] NSWCCA 316.