Tseng and Department of Immigration and Multicultural Affairs
[2001] AATA 519
•12 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 519
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1998/866
GENERAL ADMINISTRATIVE DIVISION )
Re CHIU-YUN TSENG
Applicant
And DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal The Hon. C. R. Wright Q.C., (Deputy President)
Date12 June 2001
PlaceMelbourne
Decision The decision under review is affirmed.
[The Hon C R Wright QC]
Deputy President
CATCHWORDS
Immigration – citizen of Taiwan – visa refusal – whether applicant of "good character" – allegation of fraud charges in Taiwan - whether discretion should be exercised.
Migration Act 1958 – s.501
Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719
Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321
REASONS FOR DECISION
12 June 2001 The Hon. C. R. Wright Q.C., (Deputy President)
The applicant Chiu Yun Tseng also known as "Cloudie" lives with her husband Gary Chen at Doncaster East in Victoria. The couple have one child Corrie aged 15 who resides with them. Why the applicant goes by the name of "Tseng" while her husband is known as "Chen" was not explained.
The applicant was born in Taiwan on 9 April 1964 and is a citizen of that country. She arrived in Australia in April 1994 in company with her husband and daughter. Her husband had a business visa and the applicant accompanied him as his spouse.
On 17 January 1995 Mr. Chen was granted a visa in the specialist (414) visa sub-class to take up employment with Board Distributors International Pty Ltd at Rushcutters Bay, New South Wales as marketing manager. The period during which the visa was effective expired on 3 August 1996, and it is claimed by the respondent that the visa was subject to condition No. 9216.
On 25 July 1996, Mr. Chen applied for a business (temporary) visa sub-class TB in the executive (413) visa sub-class. On the visa application form 147, signed and dated 17 July 1996, Mr. Chen stated that his current employer was Board Distributors International Pty Ltd at Rushcutters Bay and that he had been employed in marketing over the last two years.
The visa application was based on sponsorship for Mr. Chen to work as marketing director for Centronics International Pty. Ltd, 35 Grenville Road, Mount Waverley, Victoria for a period of 2 years from 3 August 1996.
Cloudie was included as a secondary applicant in her husband's application. His visa application was refused on the ground that he did not meet all the criteria. He applied for a review of that decision by the Migration Review Tribunal. The application for review was subsequently transferred to the Migration Review Tribunal and is still pending.
On 9 June 2000, Mr. Chen applied for a sub-class 129 visa. That application has not been determined. The present applicant is not named as an applicant in that application.
It is common ground that all applicants who are included in a single visa application must pass the relevant character tests prescribed by the Migration Act 1958 ("the Act").If one member of the family group fails to pass that character test, the whole family group can apparently be excluded.
A delegate of the Minister decided on 4 September 1998 that the applicant Cloudie should be refused a visa as she did not pass the character test under s.501 of the Act. It is common ground that the legislation to be applied was that in force before the 1998 amendments were enacted. The applicant seeks in these proceedings to set aside the finding that she is not of good character made by the Minister's delegate. She and her husband are currently directors of a thriving electronics company, Centronics Pty Ltd., which has a claimed turnover of $35 million per year and employs 20 people. This is a wholly owned family company, which, it is claimed, requires the personal control and direction of Mr. Gary Chen as managing director. The applicant is also a director and works part-time at the company, playing an important role in managing the financial affairs of the business. I shall return to these matters later.
Foundations for the adverse findings against the applicant in respect of the character test are to be found in her business dealings in Taiwan before she came to Australia in 1994. In 1988 the applicant established a retail clothing business in Taiwan, selling women fashion garments. She was the sole proprietor of the business, and claims that she paid for all stock for the shop on a C.O.D. basis during the first year of operation. Thereafter she paid on 30 or 45 days credit and would normally pay by cheque. Over a period of about 3 years, the business gradually improved and she opened a second shop nearby. She had a substantial number of suppliers, but by 1994 the business had developed cash flow problems. She had difficulty paying two of her principle suppliers Chaio and Huang. She wrote cheques in payment of debts owed to these two persons, but the cheques were dishonoured. She claimed she subsequently paid Huang all that she owed him, but whilst she was in Holland with her husband there was trouble with the cheque payable to Chaio as a debt that she (Cloudie) was expecting to be repaid to her was not paid into her bank account as promised and Chaio's cheque was dishonoured as a consequence. Chaio entered her store during her absence and repossessed some of the goods. On her return to Taiwan to settle the matter with Ms Chaio, the applicant said she issued an IOU which she believed she would be able to honour, but in fact she didn't pay the debt on the due date as promised.
At about the same time problems developed in respect of a Hui in which the applicant was involved. The applicant had been involved in a number of these business arrangements which are common place in Taiwan. A Hui consists of a group of individuals who come together for the purpose of borrowing money. Each individual puts a pre-determined amount of money into a pool each month over a set period of months. Usually the number of months is equal to the number of people in the group so that for a group of 12 people the period would be for 12 months. A different person borrows the pool of money each month by submitting a tender price to the organiser. The person tendering the highest price procures the money pool and thereafter repays to the pool during future months an amount of money consisting of the original pre-determined contribution, plus a part payment representing interest upon the borrowed funds.
The applicant organised a number of these groups and was also a member of other groups. She used the money from these Hui organisations to assist her in financing her clothing business. She claims that a member of one of the groups, a person by the name of Lui Su Chi absconded with the money from the pool of one of the groups and fled to China, and as a result the members of the group, including the applicant lost their money. She claims that she lost $50,000 (Australian) in this way. She claims that this loss badly affected her capacity to maintain a cash flow in her business and pay her creditors. She also says that members of the group blamed her for the loss and wanted her to pay them the money that they had lost. She claims that as a means of enforcing their claims against her, they complained to the police that the applicant had cheated them of their money and then absconded to Australia. The applicant denies this proposition, saying that she had always intended to repay monies due to her suppliers and other creditors, but to the present time she has been unable to do so. She says that she came to Australia because one of husband's customers owed him a lot of money and it was expected that a personal visit to this country would enable him to recover it from that debtor. Her husband was running a separate business in which she had no involvement a that time. The applicant said that at the time she came to Australia money was owed to her from another Hui, and she requested her father to recover these funds on her behalf while she was absent from Taiwan and pay them to her creditors. She has not returned to Taiwan since coming to Australia in 1994.
In July 1994 an arrest warrant was issued for her arrest in Taiwan in relation to criminal charges for fraud and breach of trust under the Taiwanese criminal law article 339. The applicant has been aware of this arrest warrant for a number of years, but denies that she has committed any of the crimes alleged and says that she is not guilty of fraud.
The respondent Minister puts his case in support of the challenged decision now under review on several alternate bases. First it is submitted that a finding should be made on the balance of probabilities that the applicant is not of good character by reason of "the way she dealt with the Hui people and her suppliers in incurring debts". Secondly, or alternatively it is submitted that she is not of good character by reason of her incurring substantial debts and leaving Taiwan with those debts unpaid. Finally, and alternatively it is submitted that once she found out that criminal charges were pending against her, she failed to respond. The nature of the expected response was not particularised by the respondent at first, but it was inherent in the way the case was presented that it was contended that she should have returned to Taiwan to face trial for her alleged criminal activity.
The criminal activity alleged is in substance as follows:
(a)That she issued a cheque for the sum of NTD$1,300,000.00 to her clothing suppliers in Taiwan knowing that the same would be dishonoured.
(b)Defrauding a group of investors in the Hui of the sum of NTD$500,000.00.
The Taiwanese authorities have actively been seeking the applicant's return to Taiwan, but no extradition proceedings have been instituted as there is no extradition treaty between Taiwan and Australia.
The provisions of s.501 of the Act cannot be used to effect a "disguised extradition" (see Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719) particularly, of course, in respect of a country with which Australia has not extradition agreement. It is also clear that where alleged criminal conduct in another country for which an individual has been neither prosecuted nor convicted is relied upon to found an allegation of bad character, either there must be strong evidence to justify a finding that the crime was committed by that person (see Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463 @ 469) or there must be a finding that a refusal to return to that country and face trial has been motivated by consciousness of guilt (see Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321).
The respondent tendered no evidence at the hearing with a view to establishing that the applicant was in fact guilty of the criminal conduct alleged against her in Taiwan, but a statement by Mr. Shin Shung Huang (Exhibit R2) was tendered which established that he was employed as an investigator with the Ministry of Justice and Investigations, that complaints had been made to him in 1994 by a group of people concerning the monies owed by the applicant, that he had obtained a warrant from the court in respect of those allegations and that he is still actively involved in pursuing the matter with a view to bringing the applicant to trial on those charges.
The applicant's Taiwanese passport has been cancelled by the Taiwanese Ministry for Foreign Affairs.
The applicant says that she came to Australia on her husband's suggestion as she was severely stressed by her financial affairs and she wanted a holiday. They originally intended staying for only a short period. She said that at the time she came to Australia she did not know that there was any investigation against her and it is only since coming to this country that she has been aware that a warrant has been issued.
There are two substantial pieces of evidence which tend to prove that the allegations against her by the Taiwanese authorities may have some substance. In the first place there is a letter which she admittedly wrote to the prosecutor's office at the Hsin Chu District Court in Taiwan on 20 March 1995 seeking clemency for her conduct. The full text of that letter is set out below:
"Honour Justice,
My name is Tseng Chiu-Yun. I was in fashion business for many years, but because of the failure of some other investments and because of bad debts by friends, I lost a lot of money. Under the pressure of harsh competition in the fashion industry and encountered with cash flow problems, my health suffered. In fact, I fainted on several occasions. Moreover, my suppliers showed no sympathy towards my miserable situation, retrieved all their goods and I was left deeply in a hapless, financial problem. As a result of all these and with my husband working overseas, it was impossible for me to stay in Taiwan. If I continued to live in Taiwan, my family would have broken up and my children would have suffered terribly.
During my stay overseas, I got in touch with my creditors in the hope that they will be able to give me a chance to pay off some of my debts. I intended to repay my loans and even asked someone to help me collect from those who owed me, but my creditors did not want to listen to me. Instead, they took the case to court and sued me for fraud. As for the charges that I used other person's name illegally to get a loan, I must admit that I was desperate and had no choice but to do so to obtain the money and to avoid causing panic among members of my loan group. My lack of legal common sense made the situation worse for me. If I truly wanted to commit fraud, why did I want to repay my debts before I left the country?
I am living overseas at the moment. Life here is very harsh and I depend on a meagre salary to survive. My resident status not clear. I do not have sufficient money to purchase a return ticket to Taiwan. I am not in good terms with my relatives either, and therefore, cannot expect them to lend me money. Nevertheless, I hope your Honour understands my situation. I promise that, as soon as, my financial situation improves, I will return to Taiwan and settle the problem."The most telling part of that letter appears to be the fourth sentence in the second paragraph where she says "As for the charges that I used other person's name illegally to get a loan, I must admit that I was desperate and had no choice but to do so ..". When this matter was examined during her sojourn in the witness box at the hearing, it became clear that this is a reference to her fraudulently tendering for the Hui pool in the name of another member of the Hui thereby obtaining control of the pool funds for that month. She said that the member whose name she had forged on the tender became aware of what she had done and condoned her conduct, but I find this exceedingly hard to believe. She explained her writing the letter set out above in the following terms.
"In about March 1995 I got a call from my sister-in-law. She was with a police officer or an investigator. He told me that if I sent a letter admitting to wrong doing that they would close the case and that would be the end of the matter. I had not any dealing with the police before this. I thought it was the best way to get out of the situation. The officer dictated what I should put in the letter. I agreed to send the letter because I thought this would end the charges." (See para. 18, Exhibit R1)
I do not accept this as a truthful explanation. I am satisfied that the letter, taken with the applicant's concessions during her evidence, amount to a clear acknowledgment that she gained substantial funds to which she was not entitled by forging another Hui member's name to a tender a document for Hui funds, and that as a consequence she obtained access to those funds. This is clearly criminal conduct whether committed in Taiwan or Australia.
The second document of some significance in relation to the present issues is a Reconciliation Agreement (see T document 248). As to this document the applicant proffered the following explanation:
"I also thought that it best that I pay my creditors. I arranged for them to be paid by giving some jewellery and sending some money. A document was prepared in Taiwan which set out the agreement to pay money to the creditors. I did not draw up the agreement called Reconciliation Agreement. I have not signed the agreement, I believe it was written to reflect the charges in the warrant." (Exhibit R1, paragraph 20)
The applicant said pursuant to the agreement she parted with some jewellery and expected, in consequence that criminal proceedings and any civil proceedings pending against her would be withdrawn.
The Reconciliation Agreement is in the following terms:
"This reconciliation agreement has been achieved by Chen Suan-hong, Yao Hsiu-yong, Chen Wan-yu, Luo K'ui-ying, Chen Hsiu-mei, Hsie Shu-fen, Hsie Shu-hui, Luo Bi-yun, Luo Jun-chian (the first party), and Tseng Chiu-yun (the second party) with regard to the second party's fraud and deception of the first party through establishing an association of mutual aid and the forgery of documents. Both parties have agreed to reconciliate, for which the conditions have been negotiated and settled upon as follows:
1.The second party is willing to pay the first party one million and five hundred thousand New Taiwan Dollars (NT$). The form of payment will be as follows:
1.The second party will hand over to the first party eight pieces of jewellery (as detailed in the attached document) of the same value as NT$ one million and five hundred thousand, guaranteed by a certificate of jewellery guarantee.
2.The first party will withdraw its criminal prosecution and civil lawsuit against the second party.
3.Aside from the above the two parties have no claims against each other.
4.There are four copies of this reconciliation agreement. The two parties and the witness will each keep one copy as evidence, with the remaining copy to be submitted to the criminal court of Taiwan's Hsin-ch'u Local Court for filing and reference purposes."
Annexed to the Reconciliation Agreement (T document 250) there is a certificate of jewellery guarantee.
It is not possible to resolve the question whether or not the applicant personally signed this agreement, although the translation contains in the formal parts of the document, 2 entries of significance. The first suggests that the document has two stamps, the first of which reads "Chen Shu-uan" and stamp 2 reads "Tseng Chiu-yun". Furthermore, at the bottom of the translated document is the following notation:
"(Stamped. Stamp reads 'This is to certify that this deed has been signed or stamped by the persons involved, concerned, and the witness themselves only after being made in the presence of the above-mentioned persons, and being read out in total by the witness that resulted in no dispute whatsoever."
If the reconciliation agreement was acknowledged by the applicant, it would seem to me to constitute a clear admission (in the absence of disclaimer) that the respondent had committed fraud, deception and forgery. If the applicant merely regarded herself as paying off a civil debt incurred without criminal conduct on her part, it is unlikely that she would have executed a document of this kind or have effected a settlement of the kind described within it. However no firm conclusion can be drawn about this. She claims not have executed the document and no convincing evidence has been given that she did so. The applicant says that a meeting of her creditors took place at her house in Taiwan and that her interests were represented by her sister-in-law. She said her sister-in-law signed the document on her behalf, but apparently without making her aware of the actual contents of it.
The applicant denies that she brought any money with her to Australia and said that she and her husband lived in rented premises in Sydney for a substantial period of time after they arrived in this country.
During the course of examination, the applicant conceded that she had not repaid her suppliers up to the present time, but she did "I can make settlement this week or next week". This evidence was given on 26 April 2001. She said that her father had repaid some money for her in 1994. She said that when she left Taiwan she owed about one million new Taiwanese dollars (50,000 Australian dollars) to various Hui's of which she was member. She has always thought it best to go back to Taiwan to sort matters out, but has not done so to the present time. She said that one of her creditors had sent 3 or 4 "bad guys" to scare her family in Taiwan so that she would repay monies due to her creditors. She said she was fearful if she returned to Taiwan her daughter would be kidnapped and that they had already tried to kidnap her sister. She said, she herself, is owed approximately two million Taiwanese dollars, but the debtors who owe her this money have declined to pay her father on her behalf and say they will only pay her if she returns to Taiwan.
I have carefully considered the applicant's evidence and that of her husband. I find her story unconvincing and implausible. I am left in little doubt that when she came to Australia she did so for the predominant motive of avoiding the claims of her creditors. I do not accept her explanation of the letter 20 March 1995, which in my opinion contains a clear admission by her of criminal conduct in relation to her financial affairs. I do not accept that she has made any significant payment to any creditor since leaving Taiwan in 1994, and I doubt that she has any intention of doing so in the immediate future. In my opinion the material I have referred to provides sufficient basis for making a finding that she is a person not of good character within the meaning of s.501 of the Act and I so find. However consideration must be given to whether or not a discretion should be exercised in her favour to grant a visa, notwithstanding this adverse character assessment.
It was conceded by counsel for the respondent that at the time the Minister's delegate made the determination which is the subject matter of this review the law cast the onus of proof of absence of good character on the Minister, and that the same rule applies for the purposes of the present proceedings.
Counsel for the applicant submitted that in accordance with the rule in Briginshaw v Briginshaw, a high standard of proof was required before I could be satisfied that the applicant had committed serious offences in Taiwan. I agree with this submission and have applied the requirements of the rule in Briginshaw v Briginshaw in reaching the conclusions which I have stated above.
No evidentiary value has been accorded to the statements made by the applicant's creditors to the Taiwanese police except to establish that complaints as yet unresolved have been made to the Taiwanese authorities. In my opinion, none of those statements taken alone or collectively, and accepted at face value, could, of itself, provide sufficient evidence of the applicant's guilt of the offences charged.
The applicant has now been residing in Australia for over 7 years. She is actively engaged in her husband's successful business. A number of her friends, neighbours and employees of Centronics Pty Ltd were called to give evidence as to her character. Mr. Nicholas Emerton, a veterinary surgeon, who was a neighbour of Mr and Mrs Chen for a period of 3 years, spoke of a close neighbourly relationship between their family and his, he said "She is probably one of the kindest and most generous people I have met". He said "She is always smiling and kind, I have never heard her utter a negative word, they are very hardworking people, they are dedicated to their work, even over the weekend. As to their daughter, Cloudie is doing an admirable job." In cross-examination, Mr. Emerton conceded that he had never been in a business relationship with the applicant and had never lent her money.
Mr. Craig Galbraith-Evans, was also a neighbour of the Chen for about 3 years when they were residing at Mt. Waverley. He said that he and his wife often went to their place for meals and that the applicant seemed to him to be a very honest person. She was always very welcoming and was loving and caring towards Corrie, her daughter. Notwithstanding his awareness of the fraud allegations in Taiwan, he still holds the applicant in high regard. He too conceded in cross-examination that he had never lent her money or had any business dealings with her.
Mr. Bruce Clark has lived with the Chen family for a number of years. He described the applicant as "one of the most wonderful people in the world". He was aware of the nature of Hui's and had lived in Taiwan over a period of time. He said he had been involved in 3 Hui's with Cloudie, and he had no trouble and he was always paid out by her. He too was aware of the charges against the applicant in Taiwan, but said the knowledge of those charges did not change his opinion of her character. He said he never had occasion to question her honesty, although he had never lent her a substantial amount of money himself.
Lisa Leong, a Centronics employee for over 4 years and an Australian citizen told me that the applicant works 5 days per week at the company premises between the hours of 10 am and 5 pm. She helps with sales and pays the bills. She is a signatory to company accounts and cheques. Ms Leong said "She is very honest, she tells us what to do, we have become friends. She is very nice, honest and friendly person". Ms Leong and the applicant's family have a social relationship at weekends. Ms Leong is also aware of the warrant outstanding in Taiwan, but that does not alter her opinion of the applicant.
John Ni, sales manager of Centronics expressed similar views. He described the applicant as a lovely friendly lady and said "Everyone in the office loves her". He has had no personal financial dealings with the applicant.
The applicant's husband gave evidence that he and the applicant were married in 1985 and that for several years after their marriage they conducted separate businesses in separate cities in Taiwan. He said in 1994 he was granted a short stay visa by the Immigration Department as he wanted to come to Australia to collect some debts from a dealer. The company known as ECI at Bondi Junction in Sydney and operated by a Mr. Waugh owed him $111,000.00 Australian dollars. Of this debt only $10,000 had been paid to Mr. Chen before he left Taiwan. He said that his business in Taiwan was not running smoothly at the time and he regarded his visit to Australia to try and collect the balance of the monies as a good opportunity for his wife Cloudie to come with him to see the country. He said "I was planning to stay a couple of weeks we bought the return tickets to go back to Taiwan. I brought only a couple of thousand dollars with me and when I arrived Waugh gave me $5,000 only." He said he knew of another electronics dealer BDI Pty Ltd. run by Peter Radnai and he decided while in Australia to apply for a working visa so that he could be employed by BDI while he waited for payment by Mr. Waugh. Initially he worked for BDI and later travelled to Melbourne where he became involved with Centronics Pty. Ltd. At that time Centronics was a small computer, hardware and software company. The applicant says he purchased 20% of the shares in Centronics for which he paid $12,000. The turnover of the company was then below $2,000 per month. By 1996 the turnover of the company had increased to about $500,000 per month, and Mr. Chen said he was then employed full-time in running the company. He subsequently bought out the founder, Mr. Lee, and his wife became a director with him in 1996.
Centronics sells "Nearly everything in computers". He said that the company has over 120 suppliers in Australia, and he also imports parts manufactured by his brother in China. The company sells to the Victorian government, and in particular to schools. He also supplies shops and corporate dealers. The company has grown over the years and he is now working 10 hours per day and employing around 20 people. The company financial statements were tendered in evidence as Exhibit A1. Centronics carries stock of between 2 and 3 million dollars most of the time. Mr. Chen is involved in buying and selling for the company and is generally in charge of the business. He said the business could not be conducted without the involvement of his wife and himself. He said he couldn't trust a manager, "we send out over $200,000 worth of cheques per day". He also expressed doubt whether major suppliers would continue supporting the company unless he had personal contact with them. He claims that Centronics is one of the biggest sellers of major brands in Australia and he said if the company were to close down it would affect not only dealers, but also retailers. He says the company can afford to give credit to over 200 dealers and does so.
Mr. Chen said that in 2000 he had returned to Taiwan for about a week and he had also been there in 1996. On the earlier occasion he went to visit his father and whilst there he said "A few guys came in with a gun, 2 came into my house to kidnap me, I tried to explain that I was not responsible for Cloudie's debt. They said they were paid by members of Cloudie's Hui and they had got to do their job. That incident caused me to be afraid." He said that when coming to Australia he was unaware of the extent of his wife's indebtedness and although he had wanted her to return to sort matters out once he found out what had been going on, he was afraid that it was now too dangerous for her to go back. Although he did add "I think that she will go back after this case".
I find it surprising that if, as the applicant claims, all Hui members have been repaid by her the "bad guys", allegedly engaged by disgruntled Hui members are still oppressing members of her family in an effort to make her disgorge further funds. As I have already said, I find the stories as to the circumstances in which the family came to live in Australia completely unconvincing, and although Mr. Chen may have been owed money by Mr. Waugh or his company, I am far from convinced that that was the principle purpose for their coming to Australia.
I am quite satisfied that they fled to this country in an effort to avoid harassment by Mrs. Chen's many creditors and to avoid the prospect of criminal prosecution against her.
It was argued strongly by the applicant's counsel that she has now lived a blameless life in Australia for over 7 years. She is a good mother and her family, and in particular her daughter, have now settled into the Australian way of life. Her husband has established a very successful business and she contributes significantly to its success. The company employs a substantial number of people and contributes significantly to the Australian economy.
She is spoken of highly by former neighbours and company employees. I have no doubt that all such witnesses spoke the truth when expressing their opinions of the applicant. There was no suggestion that the applicant has been guilty of reprehensible financial conduct whilst living in Australia. These are all matters to be taken into account in determining whether or not to exercise my discretion in the applicant's favour. The applicant's husband claimed that he would not abandon his wife if she were obliged to return to Taiwan and would return with her if no other choice were available to him. This would mean a virtual abandonment of his company. He stated that the nature of Centronics made it a very difficult company to sell because of fierce competition in this area.
It was submitted that if Mrs. Chen is obliged to return to Taiwan it will mean that the whole family will return with her.
The applicant advised that although Taiwanese law apparently allowed for a penalty of up to 5 years imprisonment in respect of the crimes for which a warrant had been issued against her, she had been advised that the likelihood was that she would receive a non-custodial sentence. If there is any substance to this proposition, it seems to me unlikely that Centronics will suffer the demise forecast by Mr. Chen in his evidence if he returns to Taiwan with his wife. It must also be remembered that his own visa is currently under question and that that issue has not yet been resolved.
The evidence strongly suggests that the applicant owes considerable sums of money, both to individuals and companies in Taiwan, and that she engaged in criminal conduct in the process of incurring at least part of that indebtedness.
However the ultimate question is not whether she should be returned to Taiwan to face trial in respect of her alleged offences, but rather whether she, as a long-term Australian resident, currently represents a threat to the Australian community. I have found this a difficult question to resolve. Criminal propensities are not necessarily lost by the effluxion of time and to practice criminal deception, opportunities must exist for such conduct to be pursued. As an employee of the family company it is unlikely that the applicant has had any real opportunity to engage in false pretences or fraudulent conduct. However if she decides to resume business activities on her own account, it seems to me that a strong potential exists for her to engage in fraudulent or deceptive practices. This must be a matter of significant concern.
On the whole I am not persuaded that it is appropriate to exercise my discretion in the applicant's favour and consequently I affirm the decision now under review.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. C. R. Wright Q.C., (Deputy President)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 26 and 27 April 2001
Date of Decision 12 June 2001
Counsel for the Applicant Mr R Niall
Solicitor for the Applicant Erskine Rodan & Associate
Counsel for the Respondent Mr A Chand
Solicitor for the Respondent Litigation Branch, DIMA
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