Kwok and Minister for Immigration and Border Protection (Migration)

Kwok and Minister for Immigration and Border Protection (Migration) [2017] AATA 1521 (21 September 2017)
Division:GENERAL DIVISION
File Number(s): 2016/2992
Re:Kit Ling Irene Kwok
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:The Hon. Justice Stevenson
Date:21 September 2017
Place:Sydney

The Tribunal decides:
1.to set aside the decision of the delegate of the Minister for Immigration and Border Protection, made on 11 May 2016, whereby Ms Shik Yee Fong was refused a subclass 155 Return (Residence) (Class BB) visa and
2.although Ms Fong has not satisfied the Tribunal that she passes the character test, the Tribunal does not exercise its discretion pursuant to subsection 501(1) of the Migration Act to refuse the application of Ms Fong for a Return (Residence) (Class BB) visa.
.................................[sgd]....................................

The Hon. Justice Stevenson
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – return visa – failure to pass the character test – primary and secondary considerations – protection of the Australian community – expectations of the Australian community – impact on family members – Tribunal finds that the conduct of the applicant was serious but that there is a low to minimal risk of harm to individuals, groups or institutions in the Australian community – visa refusal would be contrary to the best interests of the young grandchildren – the expectations of the Australian community do not require a visa refusal – visa refusal would have an adverse impact on the applicant’s children – decision set aside
LEGISLATION
Migration Act 1958 (Cth) s 501
SECONDARY MATERIALS
Direction No. 65 Migration Act 1958 - Direction under section 499
REASONS FOR DECISION
The Hon. Justice Stevenson
21 September 2017
THE PROCEEDINGS

These proceedings consist of an application for review of a decision made on 11 May 2016 by a delegate of the Minister for Immigration and Border Protection, whereby Ms Shik Yee Fong ("Ms Fong") was refused a Return (Residence) (Class BB) visa ("the visa"). The decision of the delegate was expressed as follows:
"Ms Fong has not satisfied me that he (sic) passes the character test. I have decided to exercise my discretion under section 501(1) of the Act to refuse her application for a visa. I hereby refuse her application for a Return (Residence) (Class BB) visa. My reasons for this decision are set out in the attached Statement of Reasons."
On 2 June 2016, a daughter of Ms Fong, Ms Kit Ling Irene Kwok ("Ms Irene Kwok"), applied for a review of the decision of the delegate. This application for review came before me on 5 April 2017.
BACKGROUND
Ms Fong, who is 61 years of age, was born on 3 February 1956 in a small fishing village near Hong Kong. She lived in this village, in conditions of poverty, until approximately 1966 or 1967. She then moved to the city of Hong Kong and obtained employment. She worked during the day and undertook studies at night.
In 1971, Ms Fong obtained a job as a messenger with a stockbroker, Mr Kwok Yuen Hang, and his son Mr Kwok Wood-Yan. On 23 June 1976, she married Mr Kwok Wood-Yan ("Mr Kwok"). They have three children:
·Kit Ling (Irene) Kwok born on 22 January 1977 (aged 40)
·Ho Yin (Frankie) Kwok born on 11 September 1980 (aged 36)
·Kit Chi (Gigi) Kwok born on 11 May 1982 (aged 35).
In December 1990, Mr Kwok Yuen Hang retired and Mr Kwok acquired the stockbroking firm. Ms Fong was fully occupied with the care of the three children until the early 1990s, when she returned to work in the firm. The stockbroking firm became known as Tai Fat Securities when acquired by Mr Kwok in December 1990.
In March 1993, Ms Fong and Mr Kwok purchased an apartment in Sydney, which was occupied by their children until its sale. Ms Irene Kwok came to Australia in 1994 and undertook tertiary studies. Mr Frankie Kwok moved to Australia in 1995 and attended high school and later a university. Ms Gigi Kwok completed high school in Hong Kong and came to Australia to attend university in 1999.
In the late 1990s, Mr Kwok was granted a sub-class 127 Business Owner Visa and established a stockbroking firm known as Tiffit Securities (Australia) Pty Ltd ("Tiffit Securities") in Melbourne. Ms Fong was granted a visa which enabled her to travel to Australia as a member of the family unit of Mr Kwok. She made numerous short trips to Australia pursuant to this visa in 1997, 1998, 1999, 2000 and 2001.
In 2001, Ms Fong and Mr Kwok incorporated the firm Tai Fat Securities and changed its name to Tiffit Securities (Hong Kong) Limited ("Tiffit"). They were the directors and "responsible officers" of this company, which was required to hold liquid capital of several million Hong Kong dollars at all times.
On 17 February 2002, Ms Fong departed Australia for Hong Kong on a sub-class 155 Return (Residence) Visa. She travelled to Australia pursuant to this visa in 2002, 2003, 2004, 2005 and 2006.
In 2002, Tiffit was placed in liquidation, after having incurred losses in each year of its operation. Mr Kwok then unsuccessfully attempted to establish another business in Australia.
In 2003, a number of residents of Hong Kong became infected with severe acute respiratory syndrome ("the SARS virus"). Ms Fong maintained that the SARS virus resulted in "a devastating effect" on the economy of Hong Kong and "greatly affected Tiffit".
In various witness statements and statutory declarations in these proceedings, reference was made to the impact of the global financial crisis on Tiffit, rather than the SARS virus. For whichever of these two causes, there seems to be no doubt that the financial fortunes of Tiffit suffered a serious decline. It seems that the company experienced difficulty in maintaining its required minimum liquid capital level of HK$3,000,000.
Tiffit closed down in June/July 2006, following which the Hong Kong Securities and Futures Commission commenced an investigation into its financial affairs. Mr Kwok was arrested in Hong Kong on 15 August 2006 and charged with money laundering, which involved a sum of approximately HK$19,000,000. On 29 August 2007, he pleaded guilty and was sentenced to a term of imprisonment of three years and four months.
Ms Fong left Hong Kong on 17 June 2006 and travelled to Sydney. At all relevant times, she has maintained that she departed Hong Kong in order to attend an appointment with a medical specialist in Sydney and not because she knew that criminal charges were about to be laid against her by local authorities.
In October 2007, a warrant was issued in Hong Kong for the arrest of Ms Fong, on charges of theft and fraud. She was arrested in Sydney in August 2011 and consented to extradition to Hong Kong on 6 December 2011. Ms Fong returned to Hong Kong on 1 June 2012, after having been detained in a prison in Sydney for several months.
On 29 January 2013, Ms Fong pleaded guilty to 26 charges of theft and fraud. According to the reasons for sentence of Judge Remedios, the theft charges related to her actions in stealing shares which were the property of clients of Tiffit between October 2005 and July 2006. The fraud charge concerned the creation of false records, in her capacity as a director of Tiffit.
Judge Remedios summarised the criminal activities of Ms Fong as follows:
"In a nutshell, you were selling your clients' shares behind their backs and depositing the money that was sold for the shares into your husband's account. You would then have shown in the company's books of accounts the fact that the share transactions were all completed (purchased and/or sold) and monies deposited or withdrawn by the client when in fact they were not.
After the client shares were sold and money deposited into your husband's account, further shares were purchased purportedly by the clients when in fact they were not."
In the course of his reasons for sentence Judge Remedios said:
"Mr Lau (counsel for the Ms Fong) has said explained (sic) the commission of these offences by you was because your husband has told you to commit these offences in order to try and save the company. You foolishly did as you were told, for the sake of the family and the company and committed the wrongdoings."
His Honour said further:
"What is clear to me is Mr Lau has submitted, you did not commit these crimes because of any greed or for the advancement of an extravagant lifestyle."
Judge Remedios sentenced Ms Fong to a term of imprisonment of three years and four months, which was reduced to two years and six months to take into account the period of her incarceration in Australia. After her release from prison in Hong Kong, Ms Fong moved into the apartment of her sister Ms Suet Lan (Polly) Fong. She sleeps on a sofa chair in the lounge room each night and receives financial support from her children in Australia on a regular basis. Ms Fong undertakes volunteer work at a hospital.
Ms Fong maintained that she separated from her husband in 2003, after she discovered that he was involved in an extramarital affair. She contended that "our personal relationship ceased and we maintained our relationship for work purposes". It seems clear that Ms Fong did not resume cohabitation with Mr Kwok upon her release from prison in January 2014.
CONSIDERATION
The first issue is whether the applicant passes the "character test" for the purposes of section 501 of the Migration Act1958 (Cth). Section 501(6)(a) relevantly provides as follows:
"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)) …"
Section 501(7) relevantly provides as follows:
"c) the person has been sentenced to a term of imprisonment of 12 months or more"
As noted above, the applicant was sentenced to a term of imprisonment of three years and four months in Hong Kong. There is thus no issue that the applicant does not pass the character test for the purposes of section 501.
The question for determination thus is whether the discretion enlivened pursuant to section 501(1) should be exercised in favour of the applicant. Section 501(1) provides as follows:
"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."
This discretion is to be exercised in compliance with Ministerial Direction No. 65 ("the Direction"). This Direction sets out its principles as follows:
"6.3 Principles
(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 Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused."
The Direction sets out three primary and four additional considerations which must, where relevant, be taken into account in the exercise of the discretion pursuant by section 501. Clause 11 sets out the Primary considerations as follows:
"11. Primary considerations – visa applicants
(1)In deciding whether to refuse a non-citizen's visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian Community."
Clause 12 sets out the "Other considerations" as follows:
"12. Other considerations – visa applicants
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Impact on family members;
c)Impact on victims;
d)Impact on Australian business interests".
Primary consideration 1: Protection of the Australian community from criminal and other serious conduct
Clause 11.1 provides as follows:
"(1)When considering protection of the Australian community,
decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen's conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct."
Clause 11.1.1 provides assistance with the assessment of "the nature and seriousness of the conduct" of the applicant. Relevantly, for present purposes, this clause provides as follows:
"a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
…
d)The principle that any conduct that forms the basis for a finding that a
non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
…
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia."
On behalf of the applicant, it was conceded that "the offences committed ten years ago … were undoubtedly serious and involved a huge magnitude of breach of trust". It cannot be said that Ms Fong's role in the offences was peripheral; she and her husband "were in this together" (HKSAR v Fong Shik Yee DCC 931/2012: sentencing remarks of Judge Remedios).
On the other hand, Judge Remedios stated in his reasons for sentence: "Foolishly you did as you were told, for the sake of the family and the company". The sentencing judge said further:
"Your drive to commit these crimes was really to keep the business afloat. You received no personal gain. All the money from the sale of these shares, as can be seen, I believe, from the previous case of Judge Browne’s and I believe in this prosecution's case, went into your husband's account.
What is clear to me as Mr Lau has submitted, you did not commit these crimes because of any greed or for the advancement of an extravagant lifestyle.
You accept that you had committed grave wrongdoings by breaching your fiduciary duties both to your clients and your staff and ignored the industry's regulatory compliance, running the risk of losing all their money. You accept that you had engineered your own downfall."
The applicant committed her offences more than ten years ago and has since been involved in no criminal conduct. I accept that she acted at the behest of her husband but, as appears from the sentencing remarks, she assumed responsibility for her actions during the criminal proceedings.
Ms Fong displayed good behaviour during her incarceration in both Australia and Hong Kong. Records of the New South Wales Department of Corrective Services contain numerous favourable comments in relation to the applicant by prison officers. For example, on 25 May 2012, a staff member wrote:
"Shik is a very good worker and works well above normal accepted standards. She is very, quiet, politeful and respectful."
A document dated 8 August 2016 from a delegate of the Commissioner of Correctional Services in Hong Kong read as follows:
"This is to certify Ms Fong Shik-yee [HKID: D 159547(5)] served a term of imprisonment in Hong Kong from 4.6.2012 to 29.1.2014 and no discipline and punishment record was found during the period."
Since her release from prison, the applicant has carried out volunteer work in a hospital. She stated she:
"[is] working as a volunteer to help the elders in a community centre which is a subsidiary of Queen Mary Hospital."
The legal representative of the Minister pointed to actions taken against the applicant by the Securities and Futures Commission of Hong Kong prior to the offences which resulted in her imprisonment. A document apparently issued by the Securities and Futures Commission of Hong Kong (respondent's bundle, page 21) indicated the following:
·Mr Kwok was reprimanded publicly and Ms Fong's registration was suspended in 2001
·Mr Kwok and Ms Fong were prosecuted for breaches of the Securities and Futures Commission Ordinance in 2003
·Tiffit Securities was reprimanded and Mr Kwok and Ms Fong suspended for one week in 2004
·A Mareva injunction was issued against Mr Kwok and Ms Fong in August 2006
·Ms Fong was banned for life in 2007.
All of these activities were carried out by Ms Fong in conjunction with her former husband Mr Kwok. In my view, it is more probable than not, that Ms Fong acted under the influence of Mr Kwok on these occasions. I have referred above to the sentencing remarks of Judge Remedios, which addressed this dynamic between Ms Fong and Mr Kwok. I am of the opinion that these historical matters do not materially increase the risk that Ms Fong may reoffend, if she is successful in these proceedings.
It seems to me to be practically impossible that the applicant would ever be in a position in Australia to commit offences similar to those which resulted in her incarceration. She would never be granted the licences necessary to enable her to carry out any activities akin to share broking or stock dealing.

The applicant is now 61 years of age and has not engaged in any form of criminal activity for approximately eleven years. There was no suggestion that she intends to engage in any form of employment in Australia. She proposes to assist with the care of her young grandchildren and thus enable her family members to continue with their successful careers.
Each of the applicant's three children has forged a successful life in Australia. They have all obtained tertiary qualifications and established successful careers. They have formed stable family units and purchased homes in Sydney.
The applicant's children have provided financial support to her in Hong Kong, while she awaits the outcome of these proceedings. They all gave evidence to the effect that they will continue to provide her with support in Australia. I am of the view that the applicant would be integrated into a close, cohesive and supportive family unit in Sydney. It seems to me that the applicant's children will act as a very positive influence on her and that their support will militate against any risk of re-offence on her part.
For these reasons, I am satisfied that Ms Fong represents a low to minimal risk of harm to individuals, groups or institutions in the Australian community.
Primary consideration 2: Best interests of minor children in Australia affected by the decision
Clause 11.2.1. of the Direction provides as follows:
"Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child."
The applicant has two grandchildren who are aged four years and almost one year respectively. Their mothers have taken the applicant's grandchildren to visit her in Hong Kong. Ms Gigi Kwok and her infant daughter were with the applicant at the time of the hearing in April 2017, having arrived in Hong Kong in November 2016.
I am prepared to accept that the best interests of the applicant's grandchildren would be promoted by her presence in their lives on a much closer and more regular basis. I accept that she is a loving grandmother who holds a genuine wish for much greater involvement in their care, welfare and development.
Primary consideration 3 – Expectations of the Australian Community
Clause 11.3 of the Direction provides as follows:
"(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the
non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal 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 a visa. Decision-makers should have due regard to the Government's views in this respect."
The applicant has expressed remorse for her criminal activity and I accept that she is genuine in expressing these sentiments. I take into account the exemplary life which she has led since her release from prison and during her incarceration.
In my view, the Australian community might reasonably be expected to acknowledge a genuine statement of remorse on the part of the applicant, in the context of her visa application. She has served her term of imprisonment, while displaying good behaviour, and adopted an exemplary lifestyle since her release from incarceration.
I do not minimise the seriousness of the applicant's conduct but I have regard to her remorse and to the circumstances in which she committed the offences. There was no suggestion whatsoever in the evidence of any conduct, which might attract criticism, on the part of the applicant since her release from prison over three years ago.
For these reasons, I am not satisfied that the expectations of the Australian community require the refusal of a visa to the applicant.
Other considerations
Clause 12 of the Direction provides for the other considerations which must be taken into account in the exercise of the discretion enlivened by section 501(1). I have set out these considerations above in my reasons.
The only relevant matter here is "the impact on family members". All of the applicant's children are very keen to be reunited with her and they offer her support and care as she enters her senior years. They have all described the emotional pain which they feel, in the current circumstances of separation from their mother.
CONCLUSION
Accordingly, I am satisfied that the conduct of the applicant was serious but that she represents a low to minimal risk of harm to individuals, groups or institutions in the Australian community. I have accepted that a visa refusal would be contrary to the best interests of the young grandchildren of the applicant. I am satisfied that the expectations of the Australian community do not require a visa refusal. I have accepted that a visa refusal would have an adverse impact upon the applicant's children.
For all of these reasons, I will set aside the decision of the delegate of the Minister made on 11 May 2016. I will substitute a decision not to exercise discretion pursuant to subsection 501(1) to refuse the application of Ms Fong for a subclass 155 Return (Residence) (Class BB) visa.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon.

..................................[sgd]...................................
Associate
Dated: 21 September 2017

Date of hearing: 5 April 2017

Counsel for the Applicant: Mr N Poynder

Advocate for the Applicant: Mr E Luk, Palmerton Pty Ltd

Solicitors for the Respondent: Ms L Buchanan, Australian Government Solicitor

[2017] AATA 1521

21 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies

Date of hearing:	5 April 2017
Counsel for the Applicant:	Mr N Poynder
Advocate for the Applicant:	Mr E Luk, Palmerton Pty Ltd
Solicitors for the Respondent:	Ms L Buchanan, Australian Government Solicitor