LMRD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2025] ARTA 573
•14 May 2025
LMRD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 573 (14 May 2025)
Applicant:LMRD
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2023/5965
Tribunal:Senior Member Hon J Rau SC
Place:Adelaide
Date:14/05/2025
Decision:The Tribunal affirms the decision under review.
...................[SGND]..........................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Resident Return (Class BB) (Subclass 155) visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – consideration of “ serious”, “very serious”, “harm” and “the Australian Community” in the context of Direction 110 - whether the original visa cancelation under section 501CA(4) should be revoked – consideration of Ministerial Direction No. 110 – decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
Legislation Act 2003 (Cth)
Acts Interpretation Act 1901 (Cth)
Crimes Act 1914 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
CKL21 v Minister for Home Affairs (2022) 293 FCR 121
FYBR v Minister for Home Affairs [2019] FCA 50
FYBR v Minister for Home Affairs [2019] FCAFC 185
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Plaintiff M! 2021 v Minister for Home Affairs (2022) 275 CLR 582
Qui v The Queen (2022) 373 FLR 183
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024).
REASONS FOR DECISION
Senior Member Hon J Rau SC
14 May 2025
INTRODUCTION
The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (‘the Respondent’) made under section 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’) on 10 August 2023,[1] not to revoke the mandatory cancellation of his Resident Return (Class BB) (Subclass155) visa (‘the Visa’). His visa was cancelled on 22 June 2021 under section 501(3A), on the basis that he did not pass the character test.
[1] Exhibit 3: Hearing Bundle, 21-42.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of being convicted of export offences on 18 May 2021 and being sentenced to an aggregate of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 3 months.[2]
[2] Ibid 44-45.
The Applicant concedes that he does not pass the character test.[3]
[3] Ibid 282.
The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The Tribunal sat in Adelaide on 7 and 8 April 2025 and conducted the hearing via MS Teams Video. The Applicant gave evidence from the Melbourne Registry. The Applicant was represented by Mr Daniel Farinha of Eleven Wentworth and the Respondent was represented by Mr Matthew Sheedy of Sparke Helmore. They also attended by MS Teams from the Melbourne Registry.
The Applicant generally provided direct, succinct and relevant answers to questions. He did not seek to excuse or trivialise his offending.
Applicant’s evidence to the Tribunal, however, differs materially from many of his past statements. The subject matter of these earlier inconsistent statements has included, the nature of his offending, the extent and context of his expressions of remorse, the nature and extent of his gambling history, his relationship with Ms HZ and the nature and extent of any connection that he may have had with Chinese “loan sharks”. This is explored in more detail below.
The Respondent submitted that the Tribunal should not accept the Applicant’s evidence in relation to many aspects of this case. The Respondent explicitly raised the question of the Applicant’s overall credibility. The Respondent’s submissions focused primarily on the Applicant’s claims regarding “loan sharks” in China. The question of the Applicant’s credibility on this and other topics is relevant in both a general and a specific sense.
The Applicant’s general credibility, if impugned, goes to all aspects of his case and importantly, to the difficult task of assessing the risk that he may present to the community, should his visa be restored to him. It may influence the weight to be given to his assurances that he will not reoffend.
Specifically, the question of whether his evidence is reliable goes directly to aspects of Primary and Other Considerations. His claims regarding “loan sharks” in China for example, if accepted, may engage Other Consideration (a). If they are not accepted, the weight, if any, to be given to this Other Consideration may be substantially diminished. This is also discussed in more detail below.
The Applicant raised some important issues, regarding the proper interpretation of Direction 110. This included what is meant by “serious” or “very serious” conduct, the meaning of “the Australian Community” and “harm”, and how this should be applied to the facts in this case. This emerged in various contexts, for example in the application of Primary Considerations 1, 3 and 5. This is discussed further below.
After listening to counsel, the Tribunal gave the parties an opportunity to make further written submissions, should they choose to do so, on these topics. Both parties took this opportunity and filed further submissions. I have considered and had regard to those further submissions.
The Applicant called Mr Watson-Monroe, psychologist. He has provided 2 reports. They were before the Tribunal.[4] He gave evidence by phone. His evidence and his reports were helpful. His opinion was however informed by what he was told by the Applicant.
[4] Ibid 352-371; Exhibit 4: Applicant’s Tender Bundle 2, 56-72.
Importantly the Applicant did not call Ms HZ.
The Applicant has presented his case in such a way as to place considerable reliance upon his ongoing connection with Ms HZ. He said in his personal circumstances form completed on 16 July 2021, that he hoped to marry Ms HZ, if he were to be returned to the Australian community. He described her as his de facto partner.[5] In his SOFIC filed on 15 September 2023, the Applicant described his relationship with Ms. HZ as “stable and loving”.[6] Ms. HZ provided a statutory declaration dated 7 March 2025 in which she said “I am worried that he may not be able to marry me and stay in Australia”.[7] In other materials, he was less effusive, suggesting that they were just friends.
[5] Exhibit 3: Hearing Bundle, 82, 86.
[6] Ibid 288 at [40].
[7] Ibid 634 at [15].
When he was asked by the Tribunal why he did not call Ms HZ to give evidence, he said “I was following instructions”. His counsel added that no notice was given to the Applicant, by the Respondent, requiring Ms HZ to be called as a witness.
I note that an almost identical exchange occurred during the earlier proceedings before the AAT on 23 October 2023. On that occasion, it seems that Ms HZ may even have been in the immediate vicinity during the hearing, but she was still not called.[8]
[8] Ibid 479- 480.
It is not for the Respondent to determine who the Applicant should or should not call. This is the Applicant’s case. It is for the Applicant to call such evidence as he may consider appropriate to best present his case.
The Applicant portrays Ms HZ as an important connection and support, should he be returned to the community. On any version of the Applicant’s story, Ms HZ, is at least an important connection to Australia, if not the important connection.
It would have assisted the Tribunal to have been able to hear directly from Ms HZ, in her own words.
It would have assisted the Tribunal to have had the opportunity to ask her questions about her current relationship with the Applicant and their plans, if any. In her absence, the Tribunal has been denied the opportunity to explore the nature of this relationship, beyond the written materials purportedly prepared by her, and the Applicant’s evidence.
It is not necessary for the Tribunal to go so far as to infer that her evidence, if she had been called, would not have assisted the Applicant’s case. However, the Applicant has failed to produce an important witness. She may have greatly assisted the Tribunal. He has not given any adequate explanation for this omission.
This has not assisted the Applicant.
For reasons set out in more detail below, the Tribunal is not satisfied that the Applicant’s evidence, in the absence of independent corroboration, is reliable. This is yet another reason why the Applicant’s failure to call Ms HZ, was unhelpful. To the extent that character witnesses and experts have simply relied on his account of events to form a view, their view may have unreliable foundations.
Background Facts
The Applicant was born in China in May 1986. He is a Chinese citizen.[9]
[9] Ibid 83.
The Applicant came to Australia 17 January 2004 as a student.[10] He was nearly 18 years old at the time. He finished High School in Australia.[11]
[10] Ibid 156.
[11] Ibid 619.
Since that time, he has departed from Australia and returned on many occasions. The last return was on 25 May 2018.[12]
[12] Ibid 153-6.
Between 2004 and 2012, the Applicant completed various courses including Business Management and Cookery at North Sydney TAFE.[13]
[13] Ibid 99, 119-126.
In 2012, the Applicant became a permanent resident.[14] He opened an aquarium and pet shop business.[15] He also worked as a casual employee at a pet shop owned by a friend.[16]
[14] Ibid 147.
[15] Ibid 620.
[16] Ibid 100, 132-133.
The Applicant says that his father, who was a school principal in China until his retirement in 2018, would send him about $50,000 US per year to help with his living expenses.[17]
[17] Ibid 620.
Between 16 May 2017 and 4 July 2018, the Applicant committed various offences related to the attempted illegal export of protected native reptiles.[18]
[18] Ibid 47.
Between June 2016 and May 2017, the Applicant received into his Bank of China Account the sum of $121,461 from a person whose name was very similar to the name of the intended recipient of a postal package containing reptiles.[19]
[19] Ibid 48.
The Applicant told the Tribunal that this money came from a member of his “father’s network” in China and that it was for living expenses. It was sent on behalf of his father.
The original indictment, dated 10 June 2020, contained 3 counts. The last one regarding this money, did not form a part of the eventual guilty plea:
“1. On 16 May 2017 at West Ryde in the State of New South Wales did attempt to export regulated native specimens, namely five Eastern Blue-tongue lizards, three Shingleback lizards, three Smooth knob-tailed geckos, and nine Eastern Pilbara spiny-tailed skinks.
Contrary to subsection 11.1(1) of the Criminal Code (Cth) and subsection 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Law Part Code: 41445 and 45090 [Generic Law Part Modifier Code:48]
And the said Director of Public Prosecutions further charges that
2. On 4 July 2018 at Sydney in the State of New South Wales did attempt to export regulated native specimens, namely two Blue-tongue lizards and one Shingleback lizard.
Contrary to subsection 11.1(1) of the Criminal Code (Cth) and subsection 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) Law Part Code: 41445 and 45090 [Generic Law Part Modifier Code:48]
And the said Director of Public Prosecutions further charges that
3. Between 16 June 2014 and 6 February 2018 at Sydney in the State of New South Wales and elsewhere did deal with money or other property, and it is reasonable to suspect the money or properly is the proceeds of crime, and at the time of dealing the money or property was $100,000 or more.
Contrary to subsection 400.9(1) of the Criminal Code (Cth)
Law Part Code: 71324.”[20]
[20] Ibid 216.
In relation to this money, the Applicant told the AAT on 23 October 2023:
“The statement of agreed facts says that you received into your Bank of China account over $121,000 between June 2016 and May 2017. That's correct, isn't it?---Yes, that’s correct.
Can you tell the tribunal what that money was for? Why did you receive such an amount of money?---it is for my living expenses and for all the costs that I have in Australia and to improve my business here as well and to live a better life here, because l do need this money to send from China for (indistinct), and because its - because I have a plan to bring up the business a bit more because obviously I need to pull off some investment and also I have really expensive life to go on with it and l have to pay the bill and I have to maintain a relationship with [redacted], my ex-partner. And then I have asked the persons in China to send me the money that which 1 did need it for my living expenses and cost. And this is not my convictions - I had not been charged for that $ I00,000.
Who was sending you this money?---A friend of mine was in China which I know him for more than IO years.
You say it was for your living expenses?---Yes, correct. And also for the investment for my business as well because I had a local business open in West Ryde, because I just went to put some, like, a new investment owner to make some new fish tank as well.
You said before that you weren't convicted. I think you said that - sorry, I’ll withdraw that. So you were charged with 'deal with money suspected proceeds of crime'. That's right?---No. No.
No, no, you were charged with it, but you were not convicted of that offence. That's correct, isn't it?---Yes. That's on the sentencing remarks, I believe.
Yes. So you were charged, but you were not convicted?---Yes.
Sorry, I saw from the sentencing remarks that you, after discussions with the prosecution, pleaded guilty to two of the three charges?---I had listened to my - I had Listened to the advice from my previous legal representative (indistinct) barrister.
Yes?---Because it is my first and last time for this, like, offending because I do not how these criminal proceeding work because I was rely on my legal representative at the at point of time, and, yes, I had listened to his advice.
I see. ls it the case that you agreed to plead guilty to the two charges?---Yes.
The export charges?---Yes, correct.
ln return for the prosecution dropping the third charge? So not pursuing the third charge?---Yes.
So the police didn't seize the money from you. You got to keep that 121,000 you received from your friend?---Yes, because I had received this amount of money from, like, a few different transaction within, like, a one year's time. I didn't receive a whole bunch of money in one go - - -
Yes, so - - -?--- - - - because I need this money in, like, a separate time and separate point because I spending this money in a regular basis. I did not get this money in one go. Because I have to build a step by step, I have to spend th.is money, see my daily expenses. You don't spend all your money in one go. It’s not going to work out.
But you didn’t have to give it back to anyone. You kept - - -?---No, no, no, no. This is my money. It's my own money which I had already explained it to the Australian community and to pay everything that I need to pay and to all the investment that l make.”[21]
[21] Ibid 447-8.
Between 14 and 18 February 2018, the Applicant travelled to China.[22] He told the Tribunal that he borrowed $50,000 from associates of his father, to repay gambling debts incurred by his then girlfriend. He said that she owed money to unknown people in Australia.
[22] Ibid 153.
The Applicant said that he did not ask his father for this money because he had already been given $50,000. The Applicant told the Tribunal that he approached members of his father’s “network”. He met them at a dinner. He did not know their first names. They were close to his father, but he claimed not to know the nature of their relationship, other than that they were commercial customers of his father’s school.
He said that they gave him the equivalent of $50,000 AU in Chinese cash currency. He changed this to $AU in China. He did this via a bank, using another person’s account, but he could not remember this person’s name. In relation to this he said in a statutory declaration:
“26. By the end of 2017, my gambling had got worse and I was also taking on debts for my then-girlfriend’s gambling. I got into serious financial trouble and needed to money to pay back her debts, which had gone up to about $50,000. I went back to China in early 2018 to see if I could borrow money from people in my father’s network.
27. Through my father’s network, I had previously met someone who I called Mr [redacted name] and his associate, who I called Mr [redacted name], at a restaurant where government officials were also invited. I do not know Mr [redacted name] and Mr [redacted name]’s first names. They lived in Shantou near Guangzhou. I asked to borrow $50,000 in total and Mr [redacted name] said I could pay him back with 10% interest per quarter. I went back to China in May 2018 and paid back $55,000, but Mr [redacted name] told me the interest had compounded to higher and demanded an amount that he showed to me on a calculator which was about $300,000. There was no way that I could pay that much. After this, I broke up with my girlfriend.”[23]
[23] Ibid 622 at [26]-[27].
Between 17 and 25 May 2018, the Applicant again travelled to China.[24] He told the Tribunal that he repaid the $50,000 borrowed in February, plus $5,000 in interest. It was somewhat unclear exactly how this substantial loan was able to be repaid in just 3 months.
[24] Ibid.
The Applicant said in his statement of 3 March 2025, that there was still $300,000 in interest owed.[25]
[25] Ibid at [27].
The Applicant said in his statement to Mr Watson-Monroe in September and October of 2023 that his continued travel to China was prevented by COVID restrictions prior to his imprisonment.[26] There was no mention at that time, of any other reason for not traveling to China.
[26] Ibid 355.
The Applicant told the Tribunal that he had had no contact with the “loan sharks” since 2018. When pressed on this issue, the Applicant said that he had raised this problem with his father, who had told him that “he would handle the issue”. The Applicant said that he “did not know if he (his father) sorted it out.”
The Applicant conceded that maybe his father had fixed the issue, but he had not asked him, and he did not know how to.
He claimed that his father said to him in early 2024, that if anyone asks him for money in China, he should tell his father immediately.
The Applicant denied fabricating the “loan shark” claim.
On 8 August 2018, a search warrant was executed by police on the Applicant’s business address and a residential address.[27]
[27] Ibid 51-52.
On 9 August 2018 the Applicant was interviewed by investigators. The sentencing judge later found that information he provided at that interview, was false.[28] The Applicant was charged with export related offences.[29]
[28] Ibid 52-3.
[29] Ibid 147.
In about January 2021, the Applicant met Ms HZ. At the time she was a student. She was aged 20 and he was aged 34.
In about late February or early March of 2021, the Applicant says that he commenced an intimate relationship with HZ.[30]
[30] Ibid 127-8, 147, 86
On 8 March 2021, a statement of agreed facts was prepared for the NSW District Court. In this the Applicant admitted amongst other things, to being “the principal offender, for a financial gain”.[31]
[31] Ibid 217-222.
On 16 March 2021, the Applicant first saw psychologist Dr Jiang.[32]
[32] Ibid 144.
On 20 April 2021, a NSW Department of Corrective Services case note states:
“problem gambling...$1,000 to $2000
$10,000 to $20,000 per month for 3-4 months
prior, $200 - $300 per day for 3/4 yrs
…
Financial,
earnings $2k of $3k after tax
has no loans[33] or credit cards
continues to gamble, $500-$600 per week...addicted
No history of AOD
Mental Health,
as noted above, in therapy for gambling addiction and depression and anxiety
Priorities,
Freedom...no satisfaction
Goal, own apartment, married
changes, stop gambling...bard bad behaviour...everything upright…need to check everything
CSO, given CSO medical form to address mental health, no physical incapacities
nominated Wed, then Fri, can even do weekends
business is by appointment only, not open to public
Intervention plan,
identified gambling, goal <$300 per week spend
engage in social activities such as exercise, camping, fishing, and therapy
Identified Smuggling, open every package,
identified loneliness / mental health, goal to settle down in a relationship, follow treatment plan[33] This is inconsistent with the “loan shark” claims.
psychologist Dr Jiang”[34]
[34] Exhibit 3: Hearing Bundle, 193-4.
On 11 May 2021, psychologist Dr. Yan Jiang prepared a report concerning the Applicant. This report relevantly stated:
“[The Applicant’s] Gambling History
[The Applicant] reports he first exposed to gambling in 2013, encouraged by his girlfriend back then. Between 2013 and 2015, he went to the casino for fun occasionally, usually on festivals or same important days.
From 2016; [The Applicant] reports he began to lose control of gambling, to escape from his stress. Me was also holding the hope that he could win money to improve his financial status. During lire worst, time, [The Applicant] indicates he would lose all money in his bank accounts on one occasion. Although he kept losing money and attempted to cut off gambling, [The Applicant] reports he could not stop.
[The Applicant] indicates he began to experience financial hardship in 2016. He sometimes had to borrow money from friends to pay bills.[35]
[35] This is a different and unelaborated account. None of the Applicant’s friends mention having lent him money to pay his bills.
[The Applicant]’s Offences
[The Applicant] reports he was contacted and invested by the Department of Environment and Energy in August 2018, in relation to his involvement in sending two parcels to Hong Kong in May 2017 and July 2018, respectively. [The Applicant] reports live reptiles were found in the parcels, and lie was charged with ‘attempting to export regulated native specimens without permit/exception.
[The Applicant] indicates he sent the parcels on behalf of two friends/customers to earn a commission or tips. Additionally, he explains he could not refuse to do the favour because he did not want to offend his customers as he relied on them to do business.[36]
…[The Applicant] also recognises his problematic gambling is the primary reason for his financial stress, which in turn contributed to his offence.[37] Since he was charged in 2013, be has been attempting to manage his gambling. [The Applicant] indicates he has significantly reduced the frequency of his participation and the amount of money he spends each time. He also acknowledges it is- challenging for him to completely stop gambling without external support.[38] [The Applicant] is seeking a solution in this area in the future."[39]
[36] This is untrue.
[37] This is inconsistent with his later claims.
[38] Although he talks about gambling and debts, there is no mention of “loan sharks”.
[39] Exhibit 3: Hearing Bundle, 273-279.
A sentencing Assessment report dated 14 May 2021 states that the Applicant “took responsibility for the offences” and that he presented a “low risk of reoffending according to the Level of Service Inventory- Revised LSI-R)”.[40]
[40] Ibid 202-3.
On 18 May 2021, the Applicant was sentenced by Judge Hanley SC in the Paramatta District Court for offences related to the attempted export of regulated native reptiles. His Honour said in his sentencing remarks:
“HIS HONOUR: [The Applicant] appears for sentence today in relation to two offences. Both are contrary to 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth) in conjunction with 11.1(1) of the Criminal Code (Commonwealth). Each offence alleges he attempted to export regulated native specimens, respectively on 16 May 2017 and on 4 July 2018. The particulars in relation to the specimens differ. The maximum penalty is ten years imprisonment or a financial penalty of $210,000.
The offences took place between 16 May 2017 and 4 July 2018. The offender has spent no time in custody. I will take into account the maximum penalties. They indicate the seriousness with which this type of offending is regarded by the community and the legislature and provide guidance in determining an appropriate sentence. I will also take into account my assessment of the objective seriousness of the offending behaviour, together with any factors particular to the offender.
The nature and circumstances of the offence
The facts in the Crown bundle, exhibit A, set out the relevant matters that identify the nature and circumstances of the offending behaviour. The offender operated a small business at Small Point Aquarium in West Ryde. Significantly, he was also the holder of an R2 category reptile keeper’s licence, which allowed him to keep basic and advanced reptiles. The offences relate to the attempted export of a total of 23 regulated native reptiles via the postal system with two packages sent on the dates I have indicated above, directed to recipients in Hong Kong.
It is the Crown's case and it is accepted he was a principal in the export for financial gain and he had imported the regulated native reptiles found within these packages into New South Wales from interstate under his New South Wales reptile keepers licence. Between June 2016 and May 2017 he had also received into his Bank of China account the sum of $121,461 from a person the Crown says had a name almost identical to the name of the recipient of the second package. The Crown has set out in [7] the reptiles of the regulated native specimens subject to the export regulations. They included eastern blue tongued lizard, shingleback lizards, smooth knob tailed geckos and Eastern Pilbara spiny tailed skink. At no time was the offender the holder of any permit or licence under Federal or State legislation that allowed him to export from Australia any of the regulated native specimens.
Between 13 July 2015 and 14 May 2018 the offender had imported a number of reptiles from interstate, Queensland, Western Australia and South Australia, pursuant to import permits issued by the National Parks and Wildlife Service, and held licences to import the blue tongued lizards, shingleback lizards, on the days set out in [10]. I do not intend to identify them any further. It is an agreed fact the specimens located in the intercepted packages were imported by the offender into New South Wales for the purpose of international sale.
Count 1: Attempt to export regulated native specimen on 16 May 2017
At 11.17am on 16 May 2017 the offender attended the West Ryde Post Office, lodged and paid cash to send an Express Mail Service international package addressed to Mr [redacted text] at an address in Hong Kong. The sender was listed as Mr [redacted text] of [redacted address]. I am satisfied that was a false name provided by the offender. The customs declaration stated the packages were boxes of clothing to the value of $100.
On 17 May the package was intercepted by Australian Border Force officers who deconstructed the package and found an assortment of 20 live lizards, three large Sistema package containers which had been cable tied through small holes in the plastic. Reptiles were packaged within calico bags inside these large containers. The items were seized. The animals were examined by [redacted text], supervisor of the Herpetofauna Department at the Taronga Zoo, and he identified the specimens as (a) five eastern blue tongued lizards, (b) three shingleback lizards, (c) three smooth knob tailed geckos, (4) nine Eastern Pilbara spiny tailed skinks. Each specimen is a regulated native specimen and defined as regulated native specimens under s 303DA of the EP and BC Act. The offender did not hold any permits or exemptions to export the specimens.
There are photographs attached to the Crown bundle which set out in considerable detail the nature of the specimens and the manner in which they were packaged. The specimens seized were also assessed by Dr Weller, a senior veterinarian of the National Zoo and Aquarium, who found in relation to all of the reptiles (a) that the reptiles should not be without water for more than 24 hours, so there was a failure to provide proper and sufficient water, and (b) the reptiles were not otherwise transported appropriately, which would have caused pain, suffering and possible death: (i) the parcels were not labelled as live animals and fragile, so they would have been not treated as such; the animals could have been killed if the parcels were thrown around or crushed; (ii) post is a transportation in areas of an aeroplane that do not have adequate climate control or oxygenation and therefore would cause the animals to suffer cold, stress and hypoxia. Dr Weller also noted (iii) that two of the lizards had poor body condition and each was moderately underweight. She considered there had been a failure to properly provide sufficient food to the animals in the fortnight before shipment; and, (iv) the albino blue tongued lizard had a spinal deformity due to either traumatic injury or calcium deficiency which warranted further veterinary treatment.
Count 2: Attempt to export regulated native specimens on 4 July 2018
At about 10.20am on 4 July 2018 the offender attended the Royal Exchange Post Office at Pitt Street in Sydney, where CCTV identified him lodging and paying cash for EMS international package addressed to [redacted text] at an address in Hong Kong. The sender was listed as Mr [redacted text], room [redacted address]. Again, I accept this was a false name provided by the offender. His declaration to customs recorded the contents as being toys to the value of $58.
The package was intercepted and deconstructed by Border Force officers, who located three live lizards, contained one large Sistema brand plastic container, surrounded by shredded newspaper. Inside the plastic container there were three small calico bags and some shredded newspaper. The calico bags were tied with cable ties and rubber bands and there were a number of small holes cut in the bag.
Again Dr Weller examined the photographs of the specimens and identified the reptiles as (a) two blue tongued lizards and one shingleback lizard. Each was native specimens defined and regulated as such under the EPBC Act. The defendant did not hold any permit to export them. Photographs demonstrated to Dr Weller made similar findings for these reptiles as set out in her findings in respect to the other reptiles in the first importation attempt.
A search warrant was executed by police on 8 August 2018 at the offender’s address in West Ryde and a residential address in Denistone, where he had been staying. At the business, investigators located a single native tortoise. At the residence, they confirmed with the owners that he did not stay at the residence, but kept a room. Police located a Sistema plastic container with holes cut in the lid, similar in appearance to those found in the intercepted packages. They also located a number of reference books relating to caring for reptiles and a number of enclosures normally used for reptiles, filled with sand, rock and branches. On 9 August 2018, the offender participated in a record of interview with Department of Environmental investigators, during which he made some admissions and self-serving statements. In relation to his employment and income, he stated he earned $100 to $200 at his Eastwood aquarium on a casual weekend basis. He owned and managed the aquarium business known as Small Point Aquarium and Pets since December 2012 and it opened by appointment only; the business had broken even only for the first one or two years and has slowly increased its revenue, with profits now covering his living expenses. He stated the business was his main source of income and the only other sources of income were from his father, [redacted text], and through casual employment with Eastwood Aquarium.
He said he was aware it was illegal to export native wildlife from Australia. He agreed he had purchased 260 native specimens from other licence holders as a hobby between 2014 and 2018, and that stock had either died or escaped. He has only reported some of the incidents in accordance with the Native Animal Keepers R1 and R2 licence conditions. In relation to the posting of parcels overseas, he agreed in relation to count 1 he posted the parcel for his friend [redacted text] in exchange for $200. He said (redacted text) drove him to the post office and watched him walk in to post the parcel. He said he had asked [redacted text] if the parcel contained anything dangerous and was informed, "No".
In relation to the second charge, he agreed he posted the parcel on behalf of the "fat guy", whose name he could not remember. The offender said this person walked into his shop and offered him five grand in cash to post the parcel. He said he was not aware of what was in the parcels and he did not make any inquiry. I reject those submissions as being truthful and am satisfied they were false. The information provided by the offender to investigators in relation to his income, the fate of the reptiles he imported into New South Wales and his knowledge of and role in the attempted exports was false; that is an agreed fact pursuant to para 30.
OBJECTIVE SERIOUSNESS OF THE OFFENCES
Considering and assessing the objective seriousness of the offending behaviour, the Crown submits they fall at the midrange or above the objective seriousness for such offences. The Crown submitted it is agreed, as set out in the agreed facts, it is not in dispute the offender was engaged in the attempted exports as a principal offender and the offences were committed for financial gain. In that respect I do not accept the financial gain was that nominated by him in his record of interview and I note in the agreed facts that those statements are accepted as false.
The offending involved a considerable degree of premeditation and planning and I accept the submission they were each carried out with a callous disregard for the welfare and humane treatment of the specimens involved. In addition, it strikes at the heart of the regime introduced by the Commonwealth Parliament to protect Australian and international wildlife. The EPBC Act is set up with certain objects to protect the environment, promote the conservation of biodiversity and assist in cooperation, implementation of Australia's international environment responsibilities. It relevantly deals with the international movement of wildlife specimens. Those particulars are set out in s 303BA(1) of the Act.
…In assessing the nature and circumstances of the offence and the objective seriousness, I adopt those factors that are set out in [26] of the Crown submissions, in that those factors identify, with some clarity, the relevant factors to be taken into account in this assessment. The offender's role and degree of sophistication, I am satisfied, included a considerable amount of premeditation, organising and planning, as set out in [27] of the Crown submissions.
The offender attempted to export a total number of 23 live native specimens and utilised his R2 licence to transfer them from interstate into his possession. I accept he did so, at least in relation to these specimens, for the purpose of international exportation and sale, and he prepared them for export, by using the Sistema plastic container with cut holes in the lids. I note also there were enclosures for other reptiles found in his possession.
The specimens were concealed in packages with false names to disguise
the purpose of the consignment. They used false consigner details to conceal his identity and falsely declared the contents of the packages to avoid detection. They were lodged by him personally at the various post
offices. They were addressed to different persons and addresses in Hong
Kong. He had packed the specimens in the manner described as set out in the photographs that are attached to the facts. He had done so in an attempt to avoid detection if the outer packaging of the consignment was opened.I am satisfied he gave false information to the police in relation to his income, the fate of the reptiles he imported into New South Wales and his knowledge of and role in the attempted exports, and that is an agreed fact. In providing false information concerning the exports he was attempting to minimise his role in the offences and financial gain he derived from it. He was aware it was illegal to export the specimens.
He played a principal role in the attempted export of the native specimens and I am satisfied on the material before me he had an expectation of receiving some considerable financial benefit. There is a large amount of money he received between June and May, 2016 and 17, from a person who has a similar name to the second addressee of the package. I note it is an agreed fact he received that amount.
…
Irrespective, in view of the values of the animals and the fact that is set out in the attached statement of Murray Fisher at tab 12 that the global value in wildlife crime is between A$5 and 29 billion, and provides reference to the value of these specimens, I am satisfied any payment that would have been received for his participation in the offence would have been significant, particularly in light of the income he claimed he received from his casual employment and the operation of his own business.In addition, I take into account the fact the animals were kept in such a condition there was a degree of cruelty with the possibility of them suffering pain, suffering and death as a result of the manner in which they were packaged. That was verified by their poor body condition, the fact there was no water or food available for them for the journey and the fact they would have been transported in an aeroplane without appropriate ventilation and climate control. In that regard, I accept the Crown submission that part of the objective seriousness of the offence is that the offender appeared to be callously indifferent to the risks, the safety and welfare of the native specimens being packaged in that way, and the potential for the harm was significant.
I take into account the number of specimens, 23 in total; 20 in relation to the first count and three in respect of the second and they comprised those lizards and skinks as identified in my earlier recitation of the facts. I accept the Crowns submission the offending behaviour in relation to both offences, distinguishable only by the number of specimens to be exported, does fall within the midrange of objective seriousness for offences of this kind.
Any injury, loss or damage resulting from the offences
I note there is a concession no actual harm was done to the environment,
because the lizards were intercepted before being exported. I note there was no real question they were threatened by extinction or otherwise. However, I do note there is a possibility of them suffering considerably, to the point that they may have expired as a result of the manner in which they were sought to be exported, and that some of the specimen demonstrated lack of proper care and possible injury in relation to one.
…
I cannot accept in the circumstances of that history that the plea was entered at an early time within the criminal justice process. It occurred at a late time and shortly before the trial.
…
I note that in the Sentencing Assessment Report, exhibit B, the author notes under the headings "Attitudes" and "Insights" respectively, "[The Applicant] took responsibility for the offences and accepted he had broken the law and made the biggest mistake of his life. He claimed he had inadvertently processed his client's orders and accepted it was his responsibility to check the work". I reject that statement as being truthful. In relation to his insight, the report notes he appeared to understand the responsibilities of pet shop owner, the nature and impact of his behaviour on wildlife and community expectations.Whilst I accept there appears to be some statements of his that indicate
some contrition, I am satisfied it is to be given little weight in the sentencing process. It has not been tested and has been expressed in terms, one of which I found to be false in relation to explaining his participation in the offence. I note in that regard, his statements to the police, rather than being in cooperation, set out a series of lies in which he attempted to avoid prosecution or at least diffuse the extent of his involvement in the offence.
…
He informed the psychologist he had a gambling addiction that had been encouraged by a girlfriend he was going out with in 2013, and that by 2016 it was out of control.
…
The offender advised the psychologist and the author of the Sentencing Assessment Report he has mitigated his gambling but still continues to gamble. There is no evidence before me he is addressing this addiction in any specific way, nor does it form any part of the so called plan as devised by the psychologist to address and rehabilitate him. This omission seems somewhat extraordinary, in view of the fact it is said to be a catalyst for this offending, and it may well have explained why someone would be involved in seeking to obtain large quantities of money to service and fuel such an addiction. There is no suggestion by the psychologist he should attend organisations such as Gambling Anonymous or their affiliates in various religious organisations throughout New South Wales, which are well known to the courts and, one would have expected, to most psychologists and psychiatrists.
…
I have considerable doubts in relation to whether he is suffering from the degree of depression or gambling addiction he claims in relation to that condition being a possible catalyst underlying his participation in this offending behaviour. The report is limited in that regard and also the fact there has been no capacity to test any of the statements made in it.
…
In relation to his gambling, as I have indicated already, I am not satisfied that can be properly addressed by reducing his participation, particularly if it was so significant in relation to the commission of the offences. There is no evidence before me he is taking any steps to address it in a positive fashion by seeking counselling or attending programs such as Gamblers Anonymous.Mr Moran, on his behalf, submits he has demonstrated willingness to rehabilitate by constantly participating in counselling and being cooperative throughout the sessions and engaging in self-reflection on his offences. He claims the offender has learnt a hard lesson and will not commit similar offences in the future. He refers to the psychologist's statement "Given his remorse and willingness to take action to improve himself, it is my opinion that [The Applicant] is unlikely to commit similar offences in the future".
I accept the Sentencing Assessment Report identifies him as a low risk of
reoffending. He calls upon his prior good character, the fact that he is relatively young and has good prospects within Australia and has demonstrated a willingness to participate voluntarily in community activities. On that basis I am prepared to make a positive finding he has good prospects of rehabilitation and will not reoffend in the future as significant mitigating factors.”[41][41] Exhibit 3: Hearing Bundle, 47-67.
I note that the Applicant’s legal representatives apparently did not make any plea in mitigation, based on the Applicant’s purported outstanding debt to Chinese “loan sharks”. It may presumably have been in the Applicant’s interests to have drawn this matter to the Court’s attention at this time, in the context of explaining his financial circumstances.
I also note that the support of Ms HZ was not mentioned by Hanley J. SC. In his sentencing remarks, although other friends/associates were mentioned by name.[42]
[42] Ibid 62.
On 3 June 2021, the Applicant lodged a Notice of Intention to Appeal in the NSW Court of Criminal Appeal.[43] He eventually abandoned this appeal.
[43] Ibid 109-111.
On 22 June 2021, the Visa was mandatorily cancelled pursuant to s501(3A) of the Act. The Applicant requested a revocation of the cancellation.[44]
[44] Ibid 417, 157-161.
His then lawyers assisted him with the revocation request documentation. This makes no mention of any issue concerning “loan sharks”, if the Applicant were to return to China.[45]
[45] Ibid 71-108.
On 19 July 2021, psychologist Dr Jiang prepared a report concerning the Applicant. This report relevantly stated:
“[The Applicant] initially accessed psychological services in March 2021, for mental health assessment and treatment, in the context of his court case and other life stressors. [The Applicant] attended five sessions between 16/03/2021 and 04/05/2021. The treatment was discontinued because [the Applicant] has been incarcerated since middle May 2021.
…
Psychometric Testing Result[The Applicant] was assessed on 16/03/2021 using the 21-item Depression, Anxiety and Stress Scale (DASS21), a standard quantitative assessment tool to measure the severity of three related states of depression, anxiety and stress, relative to the population.
[The Applicant’s] scores on the three DASS21 scales were the following:
• Depression: 13/21 (Severe)
• Anxiety: 16/21 (Extremely Severe)
• Stress: 14/21 (Severe)[The Applicant’s] result of ‘Severe’ for the DASS 21 scale of Depression and Stress and ‘Extremely Severe’ for the scale of Anxiety indicates that he was experiencing severe levels of depression and stress and an extremely severe level of anxiety, above the mean for the population. The testing result was consistent with his verbal report, suggesting he was experiencing mixed depression and anxiety, at a severe level.
TREATMENT PLAN AND [THE APPLICANT’S] TREATMENT PROGRESS
The primary treatment plan aimed to help improve [the Applicant’s] symptoms of depression and anxiety, using a cognitive-behavioural therapy-based modality. Treatment would look at:
• Psychoeducation about symptoms;
• Building resilience to stress. This included self-care activities, developing healthy coping strategies, and seeking social and family support;
• Cognitive techniques to identify and manage unhelpful thoughts that lead to his depression and anxiety[The Applicant] was a consistent and active participant during the process of treatment. In March 2021, he entered a new relationship, which also helped improve his mental health. [The Applicant] reported gaining some level of improvement in his mood and anxiety in May 2021.
Unfortunately, he did not complete the planned treatment because of his incarceration.
RE-ASSESSMENT ON 16/07/2021
[The Applicant] indicated his mental health deteriorated after he was detained. He has experienced sleep disturbances, feeling depressed and hopeless and feeling overwhelmed. [The Applicant] denied having suicidal ideation because he has a responsibility for his elderly father and partner but indicated he was close to a ‘breakdown’. [The Applicant’s] speech was interrupted by his sobbing a few times during the interview.
[The Applicant] reported he had requested to access psychological treatment, which, however, had not been facilitated after one and half months. He had to double the dosage of his medication (anti-depressants) to prevent a mental breakdown.
[The Applicant] was re-administered DASS 21 on 16/07/2021, and his scores are the following:
• Depression: 17/21 (extremely severe)
• Anxiety: 19/21 (extremely severe)
• Stress: 20/21 (extremely severe)[The Applicant’s] DASS 21 results indicate he is currently experiencing extremely severe levels of depression, anxiety and stress, above the mean for the population.
…Mental Health History – After August 2018
[The Applicant] reports his mental state deteriorated after he was investigated and charged. His anxiety accumulated with time, and he was also experiencing mixed feelings, including guilt, remorse, regret, and a sense of hopelessness. In March 2021, he was unable to cope with his distress by himself and began to seek psychological support.[The Applicant’s] mental health slightly improved between March and May 2021, with appropriate treatment (psychological treatment and medications) and support from his partner.
Mental Health History – After being Incarcerated in May 2021
At our most recent appointment on 16/07/2021, [The Applicant] reported his mental health further deteriorated due to various factors, including the discontinuation of psychological treatment, incarceration, living separately from his partner, the cancellation of his permanent visa and anxiety about his future.
His DASS 21 result on 16/07/201 suggests he is currently experiencing extremely several levels of depression, anxiety and stress. Compared to his presentations in March and May 2021, his mental health has been worsened.
DIAGNOSIS AND ANALYSIS
When considered as a whole, [The Applicant’s] DASS21 results, his description of his current symptoms of psychological distress, and his description of his current stressors and mental health history, are associated with a diagnosis of an Adjustment Disorder, with mixed anxiety
and depressed mood, according to the Diagnostic and Statistical Manual of Mental Disorders-5 (DSM-5) classification.An Adjustment Disorder is characterised by the presence of significant symptoms of psychological distress and loss of function, triggered by a change in the environment or the presence of external stressors.
[The Applicant] experienced various significant life stressors between 2013 and 2018. These include unsuccessful relationships, problematic gambling, financial hardship and unmet life prospects in Australia. While the accumulated stress may predispose his psychological condition, stress
caused by his court case seemed to exceed his capacity to cope and triggered the onset of his psychological symptoms in late 2018. His distress was exacerbated by ongoing stress associated with his legal proceedings, uncertainty about his future and lack of consistent support.While [The Applicant] is unclear whether he was suffering from a psychological disorder during 2013 and 2018, he realises he was under significant stress and developed some unhelpful beliefs towards relationships and life (helplessness and hopelessness). This, together with the financial stress, could have contributed to [The Applicant’s] offences. From [The Applicant’s] report, other factors that led to his offence include the need to maintain a good relationship with customers and the inability to set an appropriate boundary with them.
It is clear [the Applicant’s] psychological distress was recently exacerbated by the incarceration and cancellation of his permanent visa.
[THE APPLICANT’S] SELF-REFLECTIONS ON HIS OFFENCE
[The Applicant] reports he has been preoccupied with anxiety since he was investigated and charged, particularly after he was incarcerated.
[The Applicant] recognises his problematic gambling is one of the reasons for his financial stress, which in turn contributed to his offence. He has significantly reduced the frequency of his participation after he was charged. Since he met his partner in early 2021, he has not engaged in gambling at all. He expresses a willingness to engage with a gambling service (e.g., The University of Sydney Brain and Mind Centre) after he is released to prevent a relapse.
[The Applicant] further reflects on how his behaviour might have adversely affected the animals. [The Applicant] reports he set up the business because he loves animals. However, his behaviours have put the animals’ lives at risk and also pose a potential impact on the ecosystem.
[The Applicant] expressed his remorse on several occasions. He reports he now realises the negative impact caused by his wrong decisions and behaviours on himself, animals and the public resources. [The Applicant] reports he is the only child of his parents. By coming to Australia, he was expecting a good life and a bright future, and his father invested a significant amount of money in his education. He feels guilty to let him down.
FUTURE RECOMMENDATIONS
It is recommended that [The Applicant] continue to participate in psychological treatment regularly in the future to improve his mental health.Predictably, [The Applicant] will encounter various difficulties and stressors if he returns to China and lives there. These would include difficulty securing appropriate employment, separating from his partner, lack of Medicare and social security support, lack of local connections, financial difficulties, and difficulties accessing appropriate treatment for his mental condition. These factors are likely to exacerbate his current mental condition and lead to more profound symptoms and loss of functioning.”[46]
[46] Ibid 144-152.
The Applicant was directly asked by his lawyers about his concerns regarding returning to China. The passage above makes no mention of “loan sharks” as being a concern if he were to return to China.
The Applicant told the Tribunal that he also didn’t mention the “loan sharks” to psychologist Dr Yan Jiang in 2021[47] was because they were only talking “about mental health at the time”. He agreed that he did not discuss it with Mr Watson-Monroe either.[48]
[47] Ibid 144-152.
[48] Ibid 478.
The Applicant was asked about this 2021 application in cross-examination. He said that the reason he had not mentioned the “loan sharks” when he instructed his then lawyers to prepare a detailed request a revocation of his visa cancellation, in July 2021[49], was because he “didn’t’ get a chance to mention it”.
[49] Ibid 98-108.
Also on 19 July 2021, the Applicant’s close friend, SZ, prepared a statutory declaration in support of the Applicant. He does not mention anything concerning the Applicant’s relationship with his children.[50] He does not mention anything about lending the Applicant money. I note, as set out above, that the Applicant told the psychologist Dr Jiang in May 2021, that he had to borrow money from friends.
[50] Ibid 134-136.
Also on 19 July 2021, a friend of the Applicant, SN, prepared a statement in support of the Applicant.[51]
[51] Ibid 132-3.
On 1 November 2021, a NSW Department of Corrective Services case note states:
“Offence Related: CPEO not eligible. [The Applicant] denied any drug or alcohol concerns with recreational gambling reported. [The Applicant] comprehensively explained his offence denying his involvement in smuggling animals. [The Applicant] believes he has held a licence to hold reptiles since arriving in Australia as he has always been fascinated by the wildlife. [The Applicant] stated his 'pet' shop was a place to expand his hobby. In addition to this [The Applicant] reported as a 'service' to people who could not post parcels themselves through Australia Post such as elderly or those who worked long hours he would post for them for a small fee. When questioned if he considered it risky by forwarding sealed parcels, [The Applicant] stated he 'trusted' people. [The Applicant] mentioned he has lodged an appeal for conviction and sentence with the Supreme Court believing both conditions to be unfair and the sentence length excessive. [The Applicant] has some concerns over his future prospects, reporting he has a partner [redacted] whom he had hoped to marry this year. Should he remain in Australia [The Applicant] has plans for a future with [redacted]. [The Applicant] mentioned should he be deported he will 'start again' in life wherever that may be.”[52]
[52] Ibid 192.
I note that there was no mention of being in fear of returning to China or “loan sharks” in this record. This account of his offending is untrue.
On 17 November 2022, a NSW Department of Corrective Services case note states:
“[The Applicant] denies the offences. He said that aside from his pet shop business ([redacted text]) which he ran from 2012 to when he entered custody, he would also run a parcel delivery service. He said someone paid him some money to take a package to the post office and this is what had reptiles in it. He said he did not know and that it was just a coincidence that he worked with reptiles that someone got him to post some illegally.
He argued that he had a track record of legally buying and selling reptiles so why would he do it illegally? He said his business was doing well; he was making enough money to cover living and business costs and to save.
He said the second offence was almost identical? a different person also got him to post reptiles unbeknownst to him. Again, he claimed it was a coincidence that he had reptile experience and some relative stranger had him post reptiles.
WE discussed what his plans would be if he was unsuccessful in both his criminal and visa cancellation appeals. He said he would go to back to his hometown Guang Zhou where his father is (his mother passed away many years ago). He said he would try and secure his own accommodation as he has savings. He also said he has applied for C3 and is hopeful of getting works release. I indicated it may be difficult given his immigration status, but worth trying as any progression is good for SPA.”[53]
[53] Ibid 195.
I note again that there was no mention of being in fear of returning to China or “loan sharks” in this record. In fact, the Applicant said that he would return to his hometown in China if he were removed. Again, the Applicant was denying his offending, notwithstanding his plea of guilty in May 2021.
On 2 March 2023, a NSW Dept of Corrective Services case note states:
“PARRCC review completed with result of 1S- [the Applicant] requires interviews 3-monthly, PARRCC & case plan reviews 6-monthly.
No significant changes since time of last PARRCC assessment.. [the Applicant] states he is not at risk of harm to self or others currently. He stated he is currently prescribed medication for anxiety/depression (20mg) and has recently submitted a JH request for a medication review to determine if this medication is the most appropriate for him.
He reported he is under stress currently but is managing it with his medication and his mood management skills that he learnt while in Mannus C.C. Discussed that he would like to speak to a psychologist, but this is not urgent (CMO confirmed active psychology service line).[The Applicant] discussed his relationship with ex-partner and stated he wished to correct referring to his close friend/ex-partner as his current partner to his CCO and stated that a close friend is a more accurate description of their current relationship. [The Applicant] also discussed his visa cancellation and his lack of contact from his immigration appeal legal rep, stating that he has had no contact since June 2022. He showed CMO letter acknowledging his lodgement of a complaint regarding this lack of contact with the Office of the NSW Legal Services Commissioner. He stated that he has also lodged a complaint regarding his legal services during his sentencing as he does not feel he was treated justly.
CMO and [the Applicant] discussed his recent application for C3, which he was recommended for but not approved. [The Applicant] stated that he is planning on writing a letter to the PRLC detailing why he would like to gain his C3 and that he would be satisfied with gaining his C3 without approval for ELP.
[The Applicant] is currently working in the S5 laundry and stated he has recently been made leading hand on the PM shift and is enjoying this focus. He is CPEO program ineligible.”[54][54] Ibid 197.
I note that the Applicant here refers to Ms. HZ as a close friend, not a partner.
On 6 March 2023, a NSW Department of Corrective Services case note states:
“I went through the draft report to clarify and expand on some matters. He advised:
- He would describe his current relationship status as `complicated? as a result of his incarceration. [the Applicant’s partner] remains supportive of him and he is hopeful of sorting things out if he is released to the community.
- He denies he has or had a gambling addiction. I referred to the reference in the JSRs to the opinion of the psychologist that said as much and he said he explained to her his gambling habits and she must have put that. He said he did it for recreational purposes and denied it was problematic.
- He reiterated he did not know what was in the packages. He downplayed the $120,000 deposit, stating it was from a different person than the second package was addressed to and that it was his money used for living expenses. Those expenses were for general running of the business and he was in a relationship at the time with a woman of expensive taste. He claimed the money was all legal and his proof of that forms part of his appeal process.
- He is willing to engage in interventions both in custody and in the community.
- He has had depression for many years, believing it started when his mother passed away. It has been exacerbated due to his incarceration and legal trouble.- In relation to post release plans, he is hopeful of winning his appeal and be permitted to continue with his pet shop business. Failing that, he can rely on his cookery qualifications (Cert IV in Cookery, Hospitality management, marketing diploma). He said he has many options, but if he had to return to China, he was not sure what he would do as most of his education has been in Australia.”[55][55] Ibid 198.
I note again that there was no mention of being in fear of returning to China or “loan sharks” in this record. He also gives a different account of his gambling history here, to the one he gave to Dr Jiang in May 2021.
On 24 March 2023, a NSW Department of Corrective Services case note states:
“[The Applicant’s partner] stated that she will not be living with [the Applicant] when he is release but confirmed that she has been covering for his rent whilst he is in prison. She further stated that their relationship is "complicated" and not sure but will probably resume after he comes out from gaol.
In relation to intervention that [the Applicant] would benefit from, she stated he will probably benefit from gambling/financial counselling.”[56][56] Ibid 199.
A NSW Justice Pre-Release Report dated 13 April 2023 states;
“Attitudes
[The Applicant’s] attitude towards the offence is poor. Despite his guilty plea, conviction and the evidence against him, he continues to deny knowing reptiles were contained in the packages he claims he mailed on behalf of others. He reported he was provided poor legal advice and that the evidence against him is coincidental.[57][57] This is yet another denial of his offending.
[The Applicant] is recorded as admitting he made ‘a mistake’ at various stages since his arrest, but when clarification of this admission was sought, he claimed his mistake was not checking what was contained in the packages he mailed for what could be termed a small administrative fee.
Financial
Despite his claim of the aforementioned small administrative fee, the facts outline that he received a deposit of $121,461 ‘from a person with a name almost identical to the name of the recipient of the second package’. [The Applicant] maintains this was a different person and those funds were legal and were for his living expenses.Gambling
The sentencing remarks refer to a psychologist report (unavailable to Community Corrections) which details [the Applicant’s] admission that he possessed a gambling addiction around the time of the offences. When discussing the matter in preparation for this report, however, [the Applicant] denied ever having a gambling addiction and thought that the psychologist must have opined he did after [the Applicant] described his recreational gambling habit.[58][58] This is again inconsistent with his report to Dr Jiang in May 2021.
As he continued to deny the offence, [the Applicant] would not entertain a discussion exploring whether his gambling contributed to his offences in order to recoup debts or fund his habit.
Attitude to victim
The sentencing remarks described [the Applicant’s] actions as callous and with disregard for the welfare and humane treatment of the specimens involved. Further, his conduct strikes at the heart of the regime introduced by the Commonwealth Parliament to protect Australian and international wildlife. By continuing to deny the offences, [the Applicant] demonstrated ongoing poor regard for the welfare of the animals and the environment.Post release activities
Should he be permitted to remain in Australia, [the Applicant] has indicated he intends on returning to employment. If the relevant regulatory body will not permit him to work with animals again, he advised he will utilise his cookery qualifications and obtain some work in that field. He also reported that he is hopeful he can repair his relationship once the barrier of incarceration is removed.[The Applicant] would not be drawn on his plans should he be required to return to China.
Supervision level
[The Applicant] has been assessed at a low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).Overall assessment
Through his ongoing denial of his offences, [the Applicant] has demonstrated no insight into his offending behaviour. He is currently liable for detention and/or deportation, but has indicated he is appealing that decision. Should he be permitted to re-enter the community, a detailed post-release plan has been developed, including access to counselling services, to assist [the Applicant] in examining and addressing his conduct; something his current custodial program ineligibility inhibits him from doing.”[59][59] Exhibit 3: Hearing Bundle, 204-210.
There is no protection finding in this case.
The Applicant first made a protection claim on or about 16 September 2023, just before the AAT proceedings in October 2023.
The Applicant has not applied for a Protection Visa.
The Issue of “loan sharks” is dealt with in some detail above.
On the Applicant’s current evidence to the Tribunal, he does not know whether he owes money to “loan sharks”. His father told him that he would sort it out.
Put at its highest, his current evidence, if accepted at face value, is that he may have an issue with “loan sharks”, but he doesn’t know.
Even if I was satisfied that the Applicant was a reliable witness, which I am not, this is not a sufficient evidentiary basis for me to be satisfied that the Applicant is owed protection obligations. It is not even enough to warrant me deferring any such consideration.
More importantly however, for the reasons set out above, I am not satisfied that the Applicant is a reliable witness.
I am not satisfied that he has in fact ever borrowed money from “loan sharks” in China.
I do not accept his claims that he genuinely harbours any well-founded fear that he would be harmed by them, if he returned to China.
In my view, based on the Applicant’s own conduct and statements between May 2018 and 16 September 2023, this claim is a most likely recent concoction, for the purpose of bolstering his claim, initially in the AAT.
I do accept that if the Applicant is not successful in these proceedings, he will be liable for detention and removal from Australia. This would be an adverse outcome, but one common to all unsuccessful applicants in similar proceedings.
Overall, this Other Consideration (a) weighs at best slightly in favour of revocation.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
I note the Applicant’s submissions contained in his SOFIC filed on 16 September 2023.[132]
[132] Ibid 298-300.
The Applicant is aged 38.
He spent his formative years until he was aged almost 18 in China.
There are no substantial language or cultural barriers, although there would no doubt be a period of readjustment required.
The Applicant has skills that would be of use in China, although his Australian qualifications may not be recognised. He may be disadvantaged to some degree by his status as a “deportee”. He would have the support of his father, although he is apparently now in prison. He has other contacts in China, who have told him about his father’s situation.
He is generally in good physical health, but the materials before the Tribunal (set out above) suggest various possible mental health issues. These include an adjustment disorder, depression, anxiety and a claimed gambling problem. I accept that there may be less access to suitable treatment in China than in Australia, but there is no compelling evidence that the Applicant would be in a substantially worse position than any other Chinese citizen.
A return to China may aggravate any mental health condition.
The Applicant has limited support networks in China. This is especially so if indeed his father has been recently imprisoned.
This consideration (b) weighs in favour of revocation.
(c) Impact on Australian business interests
Paragraph 9.3 of the Direction directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has previously claimed that this Other Consideration is engaged.[133]
[133] Ibid 106.
He now makes no such claim. In any event, there is no evidence to support it.
This Other Consideration (c) is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs heavily against revocation.
Primary consideration 2 is neutral.
Primary consideration 3 weighs slightly in favour of revocation.
Primary consideration 4 weighs at best slightly in favour of revocation.
Primary consideration 5 weighs heavily against revocation.
Other consideration (a) weighs slightly in favour of revocation.
Other consideration (b) weighs in favour of revocation.
Other consideration (c) is neutral.[134]
[134] Find in the above paragraphs.
I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations.
I note that paragraph 8.1.1(1) of the Direction states that crimes of a sexual nature against a child are viewed very seriously by the Australian Government and the Australian community.
The Applicant has committed very serious offences. The fact that the Respondent cannot point to an individual victim or victims does not change the gravity of his offending. This is especially so in the application of Primary Consideration 5.
The Applicant’s offending must not be looked at in an artificially narrow way. It is not just a crime against animals. It was a serious, premeditated crime of dishonesty, committed in wilful disregard of the law, for financial gain.
The community’s tolerance of the risk of any crime so characterised being committed, is very low.
The Applicant has given various accounts of aspects of his case over the last few years. This is discussed at length above. His evidence has continued to evolve, even during the interval between the AAT hearing in October 2023 and this hearing. I am not satisfied that the Applicant’s uncorroborated evidence can be relied upon. The “loan shark” claims are a good example.
I am not satisfied that any assurance given by the Applicant about his future conduct can be relied upon.
I do accept that the Applicant has made some modest contribution to the Australian community. I accept that he has formed connections here, although I do not accept his uncorroborated claims about the deep nature of these connections.
I accept that if the Applicant were to return to China, he would experience a difficult period of readjustment. This may adversely affect his mental health. I accept that he may have limited supports there, notwithstanding his father’s “network”. His father is apparently now in prison and unable to directly assist him.
Primary Considerations 1 and 5 weigh very heavily against the Applicant. Primary Considerations 3 and 4 weigh slightly in favour of revocation. I am not satisfied that there is any substance to the Applicant’s major claim under Other Consideration (a), it otherwise favours him at best slightly. I accept that Other Consideration (b) is in the Applicant’s favour.
Overall, the factors weighing in favour of revocation are significantly outweighed by Primary Considerations 1 and 5.
In my view, there is therefore not “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding two hundred and eighty five (285) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.............................[SGND].................................
Associate
Dated: 14 May 2025
Date of hearing: 7 and 8 April 2025 Advocate for the Applicant:
Mr Daniel Farinha (Eleven Wentworth)
Advocate for the Respondent: Mr Matthew Sheedy (Sparke Helmore) ANNEXURE A – LIST OF EXHIBITS
Exhibit no.
Lodged by
Document
1
Applicant
Applicant’s Statement of Facts, Issues and Contentions (03/03/2025)
2
Respondent
Remitted Respondent’s Statement of Facts, Issues and Contentions (24/03/2025)
3
Respondent
Hearing Bundle
4
Applicant
Applicant’s Tender Bundle 2 (02/04/2025)
5
Respondent
Respondent’s Further Submissions (24/04/2025)
6
Applicant
Applicant’s Further Submissions (06/05/2025)
ANNEXURE B – APPLICANT’S OFFENDING HISTORY
Court
Court Date
Offence
Court Result
NSW Parramatta District Court
18/05/2021
CTH – EXPORTS OF REGULATED NATIVE SPECIMENS
CONVICTED AND SENTENCED 2 YEARS, 6 MONTHS
NSW Parramatta District Court
18/05/2021
CTH – EXPORTS OF REGULATED NATIVE SPECIMENS
CONVICTED AND SENTENCED 1 YEAR, 9 MONTHS
0
8
0