2. The Direction states that concerns relating to the character of an applicant or the nature of offences committed by an applicant are such that refusal may be appropriate where they comprise conduct relevantly including "involvement or reasonably suspected involvement in human trafficking or people smuggling".[61] The Direction provides that the expectations of the Australian community "apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community".[62] The Direction further provides that Primary Consideration 5 "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".[63]
3. I accept the Respondent's submission that "the expectations of the Australian community are to be determined by reference to the Direction itself and not an independent assessment conducted by the Tribunal".[64]
4. The Respondent contended that the Australian community "would expect the decision under review to be affirmed and the Visa Applicant's visa to be refused, given the Visa Applicant's criminal offending involving people smuggling, which is considered to be serious for the purposes of the Direction".[65]
5. The Visa Applicant has not disputed that the criminal conduct for which he was convicted in Hungary would, if committed in Australia, have amounted to criminal offending in Australia. I have found that the Visa Applicant's criminal conduct was significant. I have doubts, for the reasons expressed with regard to Primary Consideration 1, about whether the Visa Applicant has "engaged in serious conduct" in breach of the expectation of the Australian community that non-citizens obey Australian laws while in Australia. I nonetheless accept that the Australian community expects that the Visa Applicant should not be allowed to enter Australia.
6. I have considered the deemed expectations of the Australian community on the basis that the Tribunal may "take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations and adjust the relative weight to be given to each of the primary and other considerations accordingly".[66]
7. The Respondent has submitted that I should give this consideration considerable weight, given that the Visa Applicant's criminal conduct raises "serious character concerns".[67] For the reasons expressed with regard to Primary Consideration 1, I find that the Visa Applicant has rehabilitated his character since his criminal conduct in 2015, that the criminal conduct was an isolated incident and that there is very little risk that he will reoffend in the future. Those considerations go to the relative weight to be attached to each of the primary and other considerations in the Direction.
8. I attach some weight to the issues raised by Primary Consideration 5 in favour of affirming the decision under review.

1. The Visa Applicant did not make written or oral submissions in relation to the considerations in s 9(1) of the Direction.

1. The Respondent submitted that, given that the Visa Applicant has never entered Australia and currently resides in his country of citizenship, there is no evidence to suggest that this consideration is relevant. The Respondent further submitted that affirming the decision under review will cause no change to the Visa Applicant's current circumstances and that, accordingly, this consideration should be afforded neutral weight.
2. I find that the Visa Applicant has not raised international non-refoulement obligations for consideration and the circumstances do not suggest a non-refoulement claim.[68]
3. I accept the Respondent's submissions and attach neutral weight to this consideration.

1. The Respondent has contended that, given that the Visa Applicant has never entered Australia and currently resides in his country of citizenship, this consideration is not relevant and that, accordingly, should be afforded neutral weight.
2. I accept that submission and attach neutral weight to this consideration.

1. The Respondent has contended that, in circumstances where the Visa Applicant has never entered Australia, has never been employed in Australia and has no business interests, this consideration is not relevant and, accordingly, should be afforded neutral weight.
2. I accept that submission and attach neutral weight to this consideration.

1. In relation to the primary consideration in the Direction, I have found:

(a) Primary Consideration 1, relating to protection of the Australian community from criminal or other serious conduct, weighs minimally in favour of affirming the decision under review; > > (b) Primary Consideration 3, relating to the strength, nature and duration of the Visa Applicant's ties to Australia, weighs strongly in favour of setting aside the decision under review; > > (c) Primary Consideration 4, relating to the best interests of minor children in Australia, weighs very strongly in favour of setting aside the decision under review; and > > (d) Primary Consideration 5, relating to the expectations of the Australian community, weighs somewhat in favour of affirming the decision under review.

2. I have attached neutral weight to Primary Consideration 2 and the other considerations.
3. To comply with the Direction, I am required to "bring together the considerations as part of a single evaluation of their relative significance, thereby weighing them all together".[69]
4. As I have noted above, Primary Consideration 1 is to be given greater weight than the other primary considerations.[70] In this case, I have attached minimal weight to Primary Consideration 1 in circumstances where the Visa Applicant's criminal conduct occurred more than ten years ago, constitutes the only criminal conduct in which he has engaged and is unlikely to be repeated. I have also attached weight to the deemed expectation of the Australian community in Primary Consideration 5 that the Visa Applicant's criminal conduct means that he should not be allowed to enter Australia. The weight attached to Primary Consideration 5 is necessarily limited by my findings with regard to Primary Consideration 1.
5. Against those considerations are the strong weight attached to Primary Consideration 3 and the very strong weight attached to Primary Consideration 4 in favour of setting aside the decision under review.
6. I have concluded that, in this case, the protection of the Australian community and the deemed expectation of the Australian community that the Visa Applicant should not be allowed to enter Australia do not outweigh the other primary considerations to which I have attached weight. I base this conclusion on my assessment that the Visa Applicant's criminal conduct is now many years in the past and an isolated example of wrongdoing which I am satisfied is unlikely to be repeated and the evidence in support of the Visa Applicant's ties to Australia and that the best interests of his children will be best served by his residence with them in Australia.
7. For the reasons above, I set aside the decision under review. In substitution for that decision, I decide not to exercise the discretion under s 501(1) of the Act to refuse to grant the Visa Applicant a Partner (Provisional) (Class UF) (Subclass 309) visa.

[1] Migration Act 1958 (Cth) s 501(6)(ba)(i).

[12] HB 114 and 735, para [29]. See also HB 107, 120, 728 and 741.

[15] Applicants' SOFIC, Part 3(4).

[19] Direction No 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024); HB 583-606.

[23] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 (FHHM).

[25] FHHM at [34]; referring to Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[32] (Colvin J).

[26] Applicants' SOFIC, Part 3(1); Respondent's SOFIC, [5](a) and [7]-[11].

[35] See eg Boulton v R (2014) 46 VR 308; [2014] VSCA 342 (Boulton), [111] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA). The Respondent's SOFIC (at [25]) cited Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561, [43] (Senior Member T Tavoularis) to the effect that "sentences involving terms of imprisonment are the last resort in the sentencing hierarchy". That submission is not supported by the paragraph cited. The reference to a principle "that a sentence of imprisonment should only be imposed as a last resort" appears in Bartlett at [36] in a quotation from a Magistrate's sentencing remarks and in relation to acts of violence.

[37] R v Wyley [2009] VSCA 17, [21] (Maxwell P).

[41] Respondent's SOFIC, [26] and [36].

[42] Price v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 301 FCR 484; [2023] FCAFC 171, 500 [72] (Katzmann, O'Bryan and McElwaine JJ). Their Honours were referring to a predecessor of the Direction, relevantly drafted in the same terms.

[43] Citing: Explanatory Memorandum: Anti-People Smuggling and Other Measures Act 2010 (Cth).

[44] Dr K Koser and M McAuliffe, Establishing an Evidence-Base for Future Policy Development on Irregular Migration to Australia, Irregular Migration Research Program Occasional Paper Series 01/2013 (June 2013) (Koser and McAuliffe), [2.2], p 7; Respondent's SOFIC, [30].

[45] Australian Federal Police, People smuggling: Disrupting people smugglers who provide irregular entry to Australia by air and sea, https://www.afp.gov.au/crimes/human-trafficking-and-people-smuggling/people-smuggling; Respondent's SOFIC, [31].

[47] Jaffarie v Director-General of Security (2014) 226 FCR 505; [2014] FCAFC 102, 528 [79] (Flick and Perram JJ).

[48] Koser and McAuliffe, [2.1], pp 4-7.

[52] Re Davis [1947] HCA 53; (1947) 75 CLR 409, 416 (Latham CJ).

[53] See Direction No 110, 8.1.1(1)(a) and (b).

[55] Direction No 110, 8.3(1). The issues in s 8.3(2) of the Direction do not apply to the review of a decision to refuse to grant a visa.

[56] Direction No 110, 8.4(1) and (2).

[61] Direction No 110, 8.5(2)(e). The Respondent did not submit, nor do I find, that the other examples of conduct in s 8.5(2) arise in this case.

[63] Direction No 110, 8.5(4); see Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 280 CLR 265; [2024] HCA 2, 286 [51]-[52].

[64] Respondent's SOFIC, [53]; citing FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185 (FYBR), 472-473 [73]-[75] (Charlesworth J) and 478 [103]-[104] (Stewart J).

[66] RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876, [56] (Horan J).

[69] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [28] (Colvin, Stewart and Jackson JJ).