Chan and Minister for Immigration and Multicultural Affairs
[2001] AATA 487
•1 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 487
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/325
GENERAL ADMINISTRATIVE DIVISION )
Re WAI KUEN CHAN
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis, QC, Deputy President
Date1 June 2001
PlaceSydney
Decision The decision under review is set aside. The Tribunal remits the matter to the Respondent and directs that the Applicant meets the requirements of the character test under section 501 of the Act.
[sgd ] R N J Purvis
Deputy President
CATCHWORDS
IMMIGRATION – temporary business entry sub-class 457 visa – character test – whether relevant association exists between the Applicant and her ex-husband – whether issue of Applicant's ex-husband having been or currently involved in criminal conduct is relevant – whether the Tribunal's discretion to cancel the Applicant's visa is relevant
Migration Act 1958 – ss499, 501
Minister's Direction No 17
REASONS FOR DECISION
The Hon R N J Purvis, QC, Deputy President
the application
This is an application made by Ms Wai Kuen Chan ("the Applicant") seeking review by the Tribunal of a decision of a delegate of the Minister for Immigration and Multicultural affairs ("the Respondent") made on 26 February 2001, cancelling the Applicant's class UC (temporary business entry) sub class 457 visa. The Respondent was not satisfied that the Applicant passed the character test pursuant to section 501(6) of the Migration Act 1958 ("the Act").
In the reasons for the decision, the delegate under the heading "Assessment of whether the Applicant meets the character test", inter alia stated (G11):
"In considering whether the applicant has satisfied me that she passes the character test, I must be satisfied than an association exists between Ms Chan and her ex- husband, and also I must have a reasonable suspicion that her ex husband is associated with a group or organisation that is, or has been, involved in criminal activity
…
I find that an association continues to exist between Ms Chan on the basis of her ongoing business interests having been established as a result of her separation settlement. Additionally, I consider that in order for me to be satisfied that an association exists, I do not have to be convinced that ongoing, regular social or business contact is occurring, or that Ms Chan is reliant on Mr Wong for financial support. The fact that Ms Chan and Mr Wong were close from 1987 until at least 1999, the fact that they continue to have joint responsibility for their three children and that Ms Chan received a substantial settlement from Mr Wong and that Mr Wong was a co-director of Golden Win International until February 2000, when considered all together, establish that an association exists between the two".
I have considered the protected information and attachments A and B which lead me to reasonably suspect that the organisation Mr Wong is associated with is involved in criminal activity.
I also have considered the criminal conviction Mr Wong had in 1978 for being a member of a Triad society.
Owing to the significance of Ms Chan's association with Mr Wong, and the nature of the information held in the attachments, Ms Chan has failed to satisfy me that she passes the character test under section 501(6)(b) of the Act".
The issues that arise for determination in this application are:
(a)Whether there is or has been a relevant association between the Applicant and her ex husband Mr Wong Kam Fei.
(b)If the answer to (a) is in the affirmative whether, the Tribunal reasonably suspects that Mr Wong has been or is involved in criminal conduct.
(c)If the answers to (a) and (b) above are both in the affirmative and the applicant thereby does not satisfy the character test, whether the Tribunal should or should not exercise its discretion to cancel the Applicant's visa.
the hearing
At the hearing of the application the Applicant was represented by Mr Poynder, of counsel and the Respondent was represented by Mr Zac Chami, an officer of the Australian Government Solicitor.
There was tendered in evidence written material lodged by the Respondent pursuant to section 501G of the Act marked G1-G28. The parties tendered documents, which were admitted and marked accordingly. Such documents are:
Exhibit No Description Date
A Statement of Joseph Robert Rodigari and Annexures (in blue folder) 30 April 2001
B Photocopy of envelope with various date stamps (2 pages)
C Photocopy of envelope with registered mail sticker/barcode (2 pages)
D Statement of Ms Chan and Annexures (in blue folder) 30 April 2001
E Minister's Direction no 17
Oral evidence, in addition to their affidavit material, was given by Mr Joseph Rodigari, a migration agent, and by the Applicant, upon which they were each cross-examined.
As already noted the delegate in the reasons for decision considered protected information. On behalf of the Respondent, it was stated in material placed before the Tribunal that:
"…
Section 503A Protected Information
11 Protected information was received by an authorised Migration Officer from a gazetted agency on the condition that it be treated as confidential. Unless the Minister declares in writing that the disclosure of the protected information to a specified Commonwealth officer, Court or Tribunal is not prevented, then that information cannot be divulged or communicated, see section 503(A)(1) section 503(A)(3) of the Act.
12 Before the Minister is entitled to make a declaration under section 503A(3) the Minister must consult the gazetted agency from which the information originated. Despite the Respondent's best efforts the gazetted agency from which the information originated has strongly opposed the disclosure of the protected information. If the Minister were nevertheless to make that declaration then this would seriously compromise the Department being able to obtain protected information from the gazetted agency involved, and probably others in the future. For this reason the Minister is not willing to risk not being able to obtain relevant protected information in all future cases, for the sake of this case alone.
13 The purpose and importance of section 503A of the Act is set out in Minister Ruddock's second reading speech to Parliament on 30 October 1997 in which he said:"Criminal intelligence and related information is critical to assessing the criminal background or associations of non citizen visa applicants and visa holders. At present it is difficult for my Department to use such information in making character decisions because its disclosure might be threatened. Australian and international law enforcement agencies are reluctant to provide sensitive information unless they are sure that both the information and its sources can be protected. Greater protection for such material would compliment broader national and international strategies to counter transnational crime and the activities of those associated with it".
14 The Minister's Delegate considered the protected information relating to Mr Wong and, on that basis, reasonably suspected that the organisation with which Mr Wong is associated is involved in criminal activity".
The "protected information" was not itself tendered before the Tribunal, however the Tribunal is to be mindful of the "reasonable" suspicion maintained by the delegate.
relevant statutory provisions and directionThe provisions of section 501 of the Act relevant to this application are:
"…
501(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
(2) Minister may cancel a visa that has been granted to a person if:(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
…
(6) For the purposes of this section, a person does not pass the "character test" if:
(a)the person has a substantial criminal record (as defined by subsection 7); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c)having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct; the person is not of good character; or(d)in the event the person were allowed to enter or to remain in Australia there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment or in any other way.
Otherwise the person passes the "character test".
Pursuant to Section 499 of the Act, the Minister has issued directions, Direction No 17 being relevant to this application. Paragraph 1.5 of Direction No 17, referrable to "association" within the meaning of section 501(6)(b) of the Act, provides:
"The meaning of "association" for the purposes of the Character Test encompasses a very wide range of relationships including having an "alliance" or a "link" or "connection" with a person, a group or an organised body that is involved in criminal activities. "Association" does not require actual membership of a group or an organised body that is involved in criminal activities. In establishing criminal association, the decision-maker may have regard to the following:
(a)the degree and frequency of association the non- citizen had or has with the individual group or organisation;
(b)the duration of the association; and
(c)the nature of the association."
visa cancellation
The Applicant is the former wife of Mr Wong Kam Fai. On 17 October 1997 they were each granted a four year sub class 457 visa. The visa of Mr Wong was cancelled on 12 October 1999 on account of the protected information coming to the attention of the Respondent. By virtue of the Applicant's alleged "association" with her ex husband, she was considered to have failed to satisfy the character test and her visa was also cancelled.
chronology of relevant eventsIn brief, a chronology of relevant events in this matter is as follows:
1956, 20 January Mr Wong born in China
1967, 25 August Applicant born in Hong Kong
1978, 2 February Mr Wong found to be a member of triad society. No conviction, bound over for two years
1978, 3 April Mr Wong convicted of assault, criminal damage and resisting arrest, and sentenced to concurrent terms of three months imprisonment
1980, 12 May Mr Wong convicted for gambling, fined $300.00
1981, 23 November Mr Wong convicted for fighting in a public place, fined $500.00
Applicant commences association with Mr Wong
1990, 24 December Applicant gives birth to her first child
1991, 11 November Applicant marries Mr Wong
1992, 31 March Applicant gives birth to her second child
1993, 2 November Applicant gives birth to her third child
Applicant, Mr Wong and the children visit Sydney
Applicant, Mr Wong and the children visit Sydney
1997,17 October Applicant and Mr Wong, with the children, enter Australia on tourist visas and are granted subclass 457 business visas
1998, 8 January Applicant, Mr Wong and children enter Australia, Applicant and children take up residence at Hurstville
1998, 28 July Golden Win International Pty Limited incorporated with the Applicant and Mr Wong as sole share holders
1998, September Golden Win International Pty Limited enters into joint venture with Golden Stone Australia Pty Limited for purpose of developing real estate. Issued capital in Golden Win International Pty Limited increased to 100 shares, the joint venturer holding one half of such issued shares
1999, 12 October Cancellation of Mr Wong's visa
2000, 8 February Mr Wong resigns as a director of, and transfers his shareholding in, Golden Win International Pty Limited to the Applicant
2000, 25 July Marriage of Applicant and Mr Wong dissolved by Family Court of Australia
2000, October Notice of resignation of Mr Wong as a director of Golden Win International Pty Limited lodged with ASIC
2000, 6 November Applicant given notice of intention to cancel her visa
2001, 2 January Australian Consulate General in Hong Kong receives protected information under section 503A of the Act relating to Mr Wong
2001, 22 February Applicant's visa cancelled
relevant association
Under section 501 of the Act the Minister, and hence the Tribunal, may cancel the Applicant's visa if it reasonably suspects that the Applicant does not pass the character test, namely that she is a person who has or has had an association with her ex husband Mr Wong, whom the Tribunal reasonably suspects has been, or is involved in, criminal conduct.
The significant word in the above prerequisites, in the present application, is "association" and the meaning to be ascribed to this word, is germane to a decision in this matter.
The relevant statutory provision (section 501(6)) and the Minister's Direction No 17, para 1.5, have been set forth earlier in these reasons.
The Macquarie Essential Dictionary defines association as being:
"1. An organisation of people with a common purpose 2. The act of associating 3. Companionship or partnership 4. Connection or combination 5. The connection of ideas in thought……"
The word "association" in the present context encompasses persons associated, connected or combined with a common purpose, or having a community of ideas, where one of the associates is reasonably suspected of having been, or being, involved in criminal conduct. The reasonably believed association, connection, combination, community of ideas of the one must then have a nexus with the reasonably believed involvement of the other, in criminal conduct. It is necessary for there to be a reasonable belief in the existence of the nexus. This in the context of section 501(6) of the Act.
The Applicant gave evidence upon which she was cross-examined with the aid of an interpreter. She answered the questions put to her in an open and honest manner, did not prevaricate and even when it was apparent that an answer might not assist her position, (eg. being met by Mr Wong in December 2000 at Hong Kong airport and when questioned about the signature of Mr Wong on a resignation as a director under date 8 February 2000), did not hesitate in her consideration of the question and the giving of her answer. The Tribunal accepts the Applicant as a witness of truth.
The Applicant said that she first met Mr Wong in Hong Kong in 1987, she was then working in a restaurant and he was a customer. Friendship began and matured and they began living together in 1990, married in November 1991 and have had three children from this association. However, shortly after the birth of the third child and in early 1994, difficulties were encountered in the marriage. Mr Wong began spending time away from his wife reportedly on his business activities in Macau. Even though the marriage relationship was strained and the parties became distant, Mr Wong remained a good provider and father to the children (Exhibit D, para 3). The Applicant did not work following the marriage, Mr Wong deriving income from his business in Macau and restaurants in Hong Kong.
The Applicant has a brother and his family living in Sydney. In 1996 and 1997 the Applicant, Mr Wong and the children visited Sydney. She says that she was (Exhibit D, paragraphs 5 and 6)
"…
most impressed with the place and as my older brother and his family had already migrated from Hong Kong, I decided that we should also settle her. I felt that Australia offered a better future for our family as moving here would be an opportunity to give some new life to my marriage and also provide better educational opportunities for the children. Mr Wong agreed and on 12 June 1997 we all returned to Sydney with the intention of applying for Independent Executive (subclass 457) visas for the purpose of establishing a business that would eventually enable us to apply for permanent residency …On 17 October 1997 Mr Wong, the children and I re-entered Australia on tourist visas and we were all granted our subclass 457 visas on that day…"
The Applicant and her family returned to Australia on 8 January 1998 and took up residence at Narwee and later Hurstville.
It had been the original intent of the parties for a cotton garment manufacturing business to be established in Australia. After examining the possibilities, the Applicant and Mr Wong decided to invest their money in a property development involving the construction of a block of 14 apartments at Riverwood. On 28 July 1998 Golden Win International Pty Ltd was incorporated. In September 1998 a joint venture agreement with another company, Golden Stone Australia Pty Ltd., was put in place, the joint venturer holding a one half interest in the enterprise. The Applicant and Mr Wong invested $370.000 in Golden Win International Pty Ltd for the purpose of the joint venture. There is no evidence to show that any of the money invested in the Golden Win International Pty Ltd for the purpose of the joint venture came other than from the bona fide business activities of Mr Wong.
The construction of the apartment block began in late 1998 or early 1999. The Applicant was personally involved in the development to a much greater extent than Mr Wong. It was her role to select building materials (bricks, tiles, bathroom and kitchen fittings and colour schemes for the paintwork) and she regularly attended management meetings, keeping herself informed on the development and protecting her interests. She worked from an office in Hurstville and from the flat in which she and the children were living. Mr Wong had "very little at all to do with the development" (Exhibit D, para 12). He was rarely in Australia during this time and when he was here he would say, "it's your business, you look after it".
According to the Applicant, the relationship between she and Mr Wong did not improve after she came to the Australia and by about June 1998 she regarded herself as separated from Mr Wong. He made several trips to Australia usually during the school holidays, and in order to see the children. On such occasions the Applicant said "he stayed in a spare bedroom and we did not live together as husband and wife".
The Applicant says that after about June 1998 she was not aware of the activities of Mr Wong in Hong Kong and did not know where he lived, her only means of contacting him being by means of a mobile telephone or through mutual friends. Telephone contact was maintained purely for the sake of the children.
The Applicant says that she last saw Mr Wong in Australia during the period 6 July to 2 August 1999 when he was in the country to visit the children.
It was in December 1999 that the Applicant became aware of Mr Wong being refused entry into Australia at Sydney Airport "because there was a problem with his visa" and she later heard from friends in Hong Kong "that he might have been refused entry on character grounds". In early 2000, the Applicant initiated divorce proceedings from Mr Wong. The divorce was not contested and it was accompanied by a property settlement agreed between the parties whereby "in order to provide for me and the maintenance of the children he would resign from Golden Win and let me keep all the money we had invested, plus all profits". It is from these monies that the Applicant has maintained herself and the children since that time. As already mentioned, on the 8 February 2000 Mr Wong resigned as a director of the company and transferred his interest in it to Ms Chan.
It was suggested on behalf of the Respondent at the hearing, that the date 8 February 2000 was not the actual date of Mr Wong's resignation and the transfer of his share interest. The Tribunal is not satisfied that an event the like of that described took place on a date other than 8 February 2000. It is true that Mr Wong was then in Hong Kong, but there was evidence of an acquaintance taking documents to Hong Kong and having Mr Wong sign them in that place. The Tribunal does not draw an inference unfavourable to the Applicant in relation to this event. It is satisfied that in early 2000 not only were the parties in the process of a divorce but they also resolved to their property interests.
The building activities were completed in July 2000, all units being sold by September of that year.
By August 2000 the Applicant considered her matrimonial position and her properties position to be secure and sought advise from Mr Rodigari, a migration agent, in relation to an application being made by her for permanent residence. It was consequent on the involvement of Mr Rodigari and inquiries that he caused to be made, that the Applicant first became aware of Mr Wong's criminal convictions. She said that up until that time she had no idea that he had a criminal record.
Since August 1999 the Applicant has had minimal contact with Mr Wong. The only time she has spoken to him by telephone being when the children have asked her to call him, or when he has telephoned from Hong Kong or elsewhere to speak with the children. The only time she has seen him since August 1999 was when she visited Hong Kong in December 2000. She briefly saw him on occasions when he called to pick up and return the children. She does not know where he lives nor does she know of his personal circumstances. She currently has no personal or financial relationship with Mr Wong and apart from when he contacts the children "he has no place in my life" (Exhibit D, paragraph 28). She says that she is now "more determined than ever about wanting to continue to live and raise my children in Sydney". The children have been attending Penshurst Public School and according to her are all doing well, especially the eldest daughter.
As has earlier been indicated the word "association" in the context of the Act embraces a connection, combination, community of ideas, all having a nexus with reasonably believed involvement of another person in criminal conduct. It was submitted on behalf of the Applicant that "association" could not be taken to encompass just "any association". Section 501(6)(b), is directed at persons who are themselves not of good character by reason of their association with criminal persons or groups. It was concluded that there must be "maintaining of the association in the knowledge of the associate's criminal conduct, or knowingly taking a benefit from the proceeds of the associates criminal activity which makes the association "non innocent" and thereby bringing the person within the provision". The Tribunal concurs with this submission but would not regard it as being conclusive.
It was further submitted that a person who is married to one "reasonably suspected" of being involved in criminal conduct, but "who can establish as a fact that she has no knowledge of that person's conduct, will not come within the terms of the provision because that person's association will be "innocent association". Whilst this may be the position in some circumstances, likewise it is not conclusive. There may well be a marriage relationship, which is an "association" of the kind envisaged by the section. Each case must depend upon its own facts. Absence of knowledge may not be sufficient if there is a continuing association of a relevant kind, enabling the one to more effectively carry on criminal activities. However, an association by way of "family ties" is not of itself sufficient to ground the relevant association.
It is noted and was drawn to the attention of the Tribunal, by counsel appearing on behalf of the Applicant, that during the course of deliberations by the Senate Legal and Constitutional Legislation Committee and during hearings on the "Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1997 on 13 February 1998, the following interchange took place:
"Senator Bartlett – is it correct that the legislation brings in a greater ability to judge someone's character through their associates? It covers the membership of terrorist groups but does it extend to links with family members and other groups that are not necessarily unlawful?
Mr Salomon – no. I do not think it does that. The Bill does not change the fact that a person may be judged to be of bad character on being a member of an organisation or an associate of an organisation. I do not think that necessarily means that a family member is damned by the family members association with that organisation."It was contended that in the present instance, the Applicant's association with Mr Wong has not been, and is not, of the kind contemplated by the legislation.
On behalf of the Respondent, it was submitted that a relevant association exists by virtue of:
· The Applicant's her ex-husbands marriage continuing from November 1991 until its dissolution in July 2000;
three children resulting from the relationship;
the Applicant and her ex-husband living under the same roof as recently as late 1998 and early 1999. The Tribunal accepts the evidence of the Applicant that there was not a resumption of cohabitation.
the application for a subclass 457 visa being joint;
the initial ownership of shares in Golden Win International Pty Ltd;
the joint venture agreement and the investment of monies derived from Mr Wong's business;
the transfer by Mr Wong of his interest in Golden Win International Pty Ltd to the Applicant as part of the divorce settlement and the Applicant using monies so provided;
a continuing financial link between the Applicant and Mr Wong by reason of the divorce settlement;
contact between them by telephone and face to face in Hong Kong in association with Mr Wong spending time with the children.
It was submitted on the basis of the above facts that, if a person has family ties to a person who is connected to a group or organisation that is involved in criminal activities, then the person having the family tie will not pass the character test. It is the opinion of the Tribunal that this is not a correct statement of the law. The existence or otherwise of the association will depend upon the particular circumstances of each case and whether or not the connection, combination, community of ideas, common purpose directly, or indirectly, results in establishing a criminal association.
The Tribunal is satisfied in the present matter that the Applicant is not one who may reasonably be suspected of not passing the character test. The Tribunal is not satisfied that the Applicant has or has had a relevant association with her ex-husband Mr Wong, who may reasonably be suspected of having been, or being, involved in criminal conduct.
the decision under reviewIn the decision under review the delegate inter alia stated (G11):
"…
In her statutory declaration of 23 November 2000 Ms Chan has stated "At the time of our separation Wong agreeing (sic) to provide for my and the children's future by transferring to me all interests he held in Golden Win International Pty Ltd…which was first registered on 28 July 1998. This resulted in me receiving AUD$ 370,000. I invested this money in a joint venture agreement with Golden Stone Australia Pty Ltd for the purpose of property development activities. Last year my income from this business was AUD$ 78,000".
…However, I consider that this statement demonstrates that Ms Chan has profited from her relationship with Mr Wong. I regard as highly significant that Ms Chan has used money from this financial settlement to establish a business enterprise.
The significance of this is that it establishes the importance of Ms Chan's relationship with Mr Wong in the context of the businesses she operates currently. It is possible Ms Chan would not have been able to establish her business and invest money in a joint venture with Golden Stone Australia Pty Ltd and draw profit from that investment without the capital outlay provided by Mr Wong. This fact establishes an association between the financial position of Ms Chan and all activities engaged in by Mr Wong.
Therefore, I find that an association continues to exist between Ms Chan [and Mr Wong] on the basis of her ongoing business interests having been established as a result of her separation settlement. Additionally I consider in order for me to be satisfied that an association exists, I do not have to be convinced that ongoing, regular social or business contact is occurring, or that Ms Chan is reliant on Mr Wong for financial support. The fact that Ms Chan and Mr Wong were close from 1987 until at least 1999, the fact that they continue to have joint responsibility for their three children and that Ms Chan received a substantial settlement from Mr Wong and that Mr Wong was a co-director of Golden Win International Pty Ltd until February 2000, when considered all together, established that an association exists between the two.
…In making this consideration, I regard as most significant the fact that Ms Chan has been able to establish a business due to the association, an association, which by her own admission has lasted since 1987…"The Tribunal does not agree with some of the conclusions expressed by the delegate. The property presently held by the Applicant and the interest she has in the company are at least as to half thereof, consequent upon the divorce settlement. The settlement terminated, as was its intent, financial relations between the Applicant and Mr Wong. The Tribunal does not attach significance to the fact of the settlement entitlement of the Applicant remaining in a business enterprise. Nor does the Tribunal agree that there is a relevant relationship with Mr Wong in the context of the business presently operated by the Applicant. The fact that the investment she now has was partly consequential on the divorce settlement, as well as money that she herself had saved, does not establish an involvement between the Applicant and Mr Wong in "all activities engaged in by Mr Wong". The Tribunal is not satisfied that there is a continuing association between the Applicant and Mr Wong "on the basis of her ongoing business interests having been established as a result of her separation settlement". Nor is the Tribunal satisfied that the continuing joint responsibility for the three children establishes a relevant association.
reasonable suspicion as to mr wong having been or being involved in criminal conductThe Tribunal being satisfied that the relevant association has not been established, it is not required to find further as to the reasonableness of the suspicion of involvement of Mr Wong in criminal conduct.
However, considering the extent of the evidence and the time of the hearing devoted to this aspect, the following should be said.
The evidentiary material bearing upon the relevant involvement of Mr Wong is comprised of his criminal record and the receipt of protected information.
Records held by the Hong Kong police force show:
Date Offence Result
2 February 1978 Being a member of a triad society Bound over $250 for 2 years (Case No SK/1479/78) (No conviction recorded)
3 April 1978 A. Assault occasioning actual bodily harm (S.39) B. Criminal Damage C. Resisting arrest under offences against the person ordinance Cap 212 3 months imprisonment 3 months imprisonment, Concurrent to A 3 months imprisonment, Concurrent to A-B (Case No. SK/2034/78)
12 May 1980 Gambling in a gambling establishment Fined $300 (Case No. SK/9065/80)
23 November 1981 Fighting in a public place Fined $500 (Case No. SK/17038/81)
According to the delegate (G11):
"I have considered the protected information at attachments A and B, which lead me to reasonably suspect that the organisation Mr Wong is associated with is involved in criminal activities…
Triads are secret societies and are declared unlawful under the Hong Kong Societies Ordinance of 1949. Triads are heavily involved in illegal activities; these are varied, and include such serious offences as drug trafficking, organising illegal gambling and money laundering. The nature of Triad membership does not, however, necessarily mean that a member is involved in criminal activities every day or that they are active members for the rest of their lives. In many instances, a member may not be called upon to perform a service for many years but membership can be re-activated later, whether resident in Hong Kong or elsewhere. The type of service can vary widely from opening a bank account to more direct involvement in criminal activity."The Tribunal is mindful of the guidance on the application of the reasonable suspicion threshold set out in Migration Series Instruction 254, the character requirement, visa refusal and cancellation under section 501, paragraph 4.6.3
"the reasonable suspicion test is met if the decision makers suspicions are aroused by the evidence available to him/her, the suspicion is an honestly held suspicion and reasonable in the circumstances".
Whilst the term "criminal conduct" is not defined for the purposes of section 501(6)(b), the Minister's Direction No 17 allows various matters to be considered. This includes the nature, severity and frequency of the offence, and the time when the offence or offences were committed; the non-citizen's record since the offences were committed, including evidence of recidivism, pattern of similar offences or pattern of continued or blatant disregard or contempt for the law; this together with the existence of protected information.
On the basis of the material before it the Tribunal would be satisfied as to the reasonableness of the suspicion of Mr Wong having been, or being, involved in criminal conduct.
decisionIn view of the finding as to the Applicant's character, the discretionary aspects do not arise for consideration.
The Tribunal is satisfied that the Applicant does pass the character test. The Applicant does not have, and has not had, an association with her ex-husband Mr Wong in the relevant sense.
For the reasons here in before set forth, the decision under review is set aside. The Tribunal remits the matter to the Respondent and directs that the Applicant meets the requirements of the character test under section 501 of the Act.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, QC, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 21 May 2001
Date of Decision 1 June 2001
Solicitor for the Applicant Nicholas Poynder
Solicitor for the Respondent Zac Chami
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