LMRD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Case [2025] ARTA 573

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

  1. 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.

  2. 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.

  3. The Applicant concedes that he does not pass the character test.[3]

    [3] Ibid 282.

  4. 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…

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AGLC
LMRD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 573
Case
[2025] ARTA 573
Decision Date

CaseChat Overview and Summary

The case involves the Applicant, a Chinese citizen born in May 1986, who came to Australia as a student in 2004 and subsequently became a permanent resident in 2012. The Applicant was subject to a mandatory cancellation of his Resident Return visa under section 501(3A) due to failing the character test, largely due to his substantial criminal record involving the attempted illegal export of protected native reptiles. The matter was brought before the Administrative Appeals Tribunal (AAT) to determine whether the original visa cancellation under section 501CA(4) should be revoked.

The legal issues centred on interpreting "serious", "very serious", "harm", and "the Australian Community" within the context of Ministerial Direction No. 110 and whether the original visa cancellation should be revoked. The Tribunal had to assess the weight given to various primary and other considerations outlined in the Direction and determine if the Applicant’s offending was severe enough to warrant visa cancellation despite his contributions to the community and potential difficulties he might face if returned to China.

The Tribunal concluded that the Applicant's offending was very serious, involving premeditated dishonesty and disregard for the law, which is viewed very seriously by the Australian Government and the community. The Tribunal was not satisfied with the Applicant's uncorroborated evidence and found his accounts of his case to be unreliable. While acknowledging his modest contributions and connections in Australia, the Tribunal determined that these were insufficient to outweigh the gravity of his criminal activities. Consequently, the Tribunal upheld the original decision to cancel the Applicant’s visa, finding that protection of the Australian community was paramount and that the Applicant's criminal conduct warranted the cancellation.

The Tribunal affirmed the decision to maintain the mandatory cancellation of the Applicant’s Resident Return visa under section 501(3A).

Orders

Orders of the court

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Background

Background to the litigation

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 that2. 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 that3. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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