Kwok and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by Ms Fong against the Minister for Immigration and Border Protection's decision to refuse her application for a subclass 155 Return (Residence) (Class BB) visa. The refusal was based on Ms Fong failing to pass the character test, specifically due to a substantial criminal record arising from a sentence of imprisonment of three years and four months imposed in Hong Kong. The primary legal issue before the court was whether the Minister's discretion, pursuant to section 501(1) of the *Migration Act 1958* (Cth), should be exercised in favour of granting the visa, despite the applicant not passing the character test.

The court was required to consider the principles outlined in Ministerial Direction No. 65, which guides the exercise of this discretion. These principles emphasise Australia's sovereign right to determine who enters or remains in the country, the expectation that non-citizens will be law-abiding, and a low tolerance for serious criminal conduct. However, the Direction also mandates consideration of factors such as the length of time a non-citizen has contributed to the Australian community and the consequences of a visa refusal for minor children and other immediate family members.

Stevenson J reasoned that while Ms Fong's conduct was serious, she posed a low to minimal risk of harm to the Australian community. The court found that a visa refusal would be contrary to the best interests of her young grandchildren and would have an adverse impact on her children, who expressed significant emotional distress due to their separation. The court concluded that the expectations of the Australian community did not necessitate a visa refusal in these circumstances. Consequently, the decision of the delegate of the Minister was set aside, and a decision was substituted to not exercise the discretion to refuse Ms Fong's visa application.