(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.

1. 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.
2. 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.
3. 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".
4. 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".
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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".
11. 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.
12. 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.
13. 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.
14. 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.
15. The Visa Applicant's offending history is confined to the one incident of offending that occurred on 29 January 2018.
16. 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.
17. The Visa Applicant's offending history is confined to the one incident of offending that occurred on 29 January 2018.
18. 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.
19. There is no evidence that the Visa Applicant has provided false or misleading information to the Department.
20. 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.
21. 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.
22. 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.
23. 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'.
24. 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

1. 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.
2. 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.
3. 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:

1. information and evidence on the risk of the non-citizen re-offending; and
2. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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".
7. 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.
8. 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.

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.

1. 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.

1. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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".
6. 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.
7. 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.

1. 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

1. 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.
2. 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

1. 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.
2. 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.
3. 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.

1. 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.
2. 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."
3. 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).
4. 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".

5. 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.
6. 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."

7. 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.
8. 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.
9. 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.
10. 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.
11. 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.

1. 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.

1. 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.
2. 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.

1. 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.
2. Having regard to the evidence before it, the Tribunal finds that the Visa Applicant does not pass the character test.
3. 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.

4. 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.
5. 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.
6. Accordingly, the Tribunal is satisfied that the refusal of the Visa Applicant's visa should be revoked.

1. The decision under review is set aside and, in substitution, the refusal of the Visa Applicant's visa is revoked.

Mr. C Levingston, Christopher Levingston & Associates

[1] [2004] FCA 774; (2004) 83 ALD 411.

[2] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].