Mohamed Zoubi and Minister for the Environment

[2014] AATA 86

[2014] AATA 86 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1448
Re	Mohamed Zoubi
APPLICANT
And	Minister for the Environment
RESPONDENT

DECISION

Tribunal	Deputy President RP Handley
Date	24 February 2014
Place	Sydney

The decision under review is affirmed.

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Deputy President RP Handley

Catchwords

ENVIRONMENT – Export permit – Gang-gang Cockatoos – Glossy Black Cockatoos – CITES specimen – regulated native specimen – export must be for a non-commercial purpose – purpose of research – no relevant qualifications – decision affirmed

Legislation

Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 303BA, 303CA, 303CC, 303CG, 303DA, 303DD, 303DG, 303FA, 303FC

Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) reg 9A.09

REASONS FOR DECISION

Deputy President RP Handley

1. Mr Zoubi has applied to the Tribunal for a review of a decision of a delegate of the Minister of the Environment to refuse his application for a permit to export two Glossy Black Cockatoos and two Gang-gang Cockatoos.

   Background

2. Mr Zoubi lives in Israel. On 25 January 2012, Mr Zoubi sent an email to the Department of Environment (the Department) requesting information about whether he could export one parrot to be privately owned by him. In an email the following day, he expressed his interest in exporting a Gang-gang Cockatoo as a pet. The Department advised Mr Zoubi that that Gang-gang Cockatoos are not eligible for export as a pet. Mr Zoubi responded with an email dated 9 April 2012 inquiring about the exception for export for exhibition purposes. On 19 April 2012, the Department informed Mr Zoubi that for such an exception to apply, the birds must be used in a public exhibition with cultural, scientific or conservation content. On 12 June 2012, Mr Zoubi applied for a permit to export two Gang-gang Cockatoos and two Glossy Black Cockatoos to Israel for research purposes.

3. Mr Zoubi’s purported research project relates to the study of Black Cockatoos in a captive environment. He states that he intends to study the nature, characteristics and temperament of the Cockatoos through a process of observational research known as ethology.

4. By letter dated 4 October 2012, a delegate of the Minister refused Mr Zoubi’s application of 12 June 2012 on grounds that the delegate was not satisfied that Mr Zoubi had sufficient resources and qualifications to conduct the research. The delegate also pointed to the lack of evidence suggesting that the primary purpose of Mr Zoubi acquiring the Cockatoos was for research.

5. On 8 January 2013, Mr Zoubi made a further application for the export of two Glossy Black Cockatoos and two Gang-gang Cockatoos from the Priam Parrot Breeding (Psittaculture) Centre in Queanbeyan, New South Wales. His second application was accompanied by a letter from the Jerusalem Zoo in which Zoologist Dr Noam Werner stated that the Zoo would provide support for Mr Zoubi’s research. In her decision of 13 March 2013, the delegate of the Minister refused Mr Zoubi’s application. Despite the letter from Jerusalem Zoo, the delegate found that the research would still be conducted by Mr Zoubi, and he did not have sufficient resources and qualifications for such research. As with the previous decision, the delegate was not satisfied that the primary purpose of the export was research.

6. Mr Zoubi applied to the Tribunal for a review of this decision. Pursuant to a direction of the Tribunal, Mr Zoubi provided the Tribunal with additional information on the granting of an import permit by the Israeli authorities, as well as information detailing his experience in working with animals, the qualifications and experience of his research supervisor, Dr Werner, and the nature of the support to be provided by Jerusalem Zoo. In part, this was in response to a list of questions posed by the Department. On 26 July 2013, the Tribunal remitted the matter to the Respondent to consider the additional information provided by Mr Zoubi.

7. In a decision dated 23 August 2013, another delegate of the Minister, having considered the additional information, affirmed the original decision to refuse Mr Zoubi’s application for an export permit. The delegate provided Mr Zoubi with a detailed Statement of Reasons for the decision addressing the relevant legislative criteria.

   RELEVANT LEGISLATION AND ISSUES

8. The Tribunal must determine whether permits should be granted to Mr Zoubi for the export of two Glossy Black Cockatoos (Calyptohynchus lathami) and two Gang-gang Cockatoos (Callocephalon fimbriatum). The granting of export permits is governed by the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). The objects of Part 13A of the Act, ‘International movement of wildlife specimens’, are stated in s 303BA:

   (1) The objects of this Part are as follows:

   (a) to ensure that Australia complies with its obligations under CITES and the Biodiversity Convention;

   (b) to protect wildlife that may be adversely affected by trade;

   (c) to promote the conservation of biodiversity in Australia and other countries;

   (d) to ensure that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecologically sustainable way;

   (e) to promote the humane treatment of wildlife;

   (f) to ensure ethical conduct during any research associated with the utilisation of wildlife;

   (h) to ensure that the precautionary principle is taken into account in making decisions relating to the utilisation of wildlife.

   Note: CITES means the Convention on International Trade in Endangered Species--see section 528.

   (2) In order to achieve its objects, this Part includes special provisions to conserve the biodiversity of Australian native wildlife.

9. Under s 303CC(1) of the EPBC Act, the export of an animal that is a ‘Convention on International Trade in Endangered Species (CITES) specimen’ without a permit is a criminal offence. CITES specimens are listed by the Minister pursuant to s 303CA of the Act. The CITES list established under the Act includes Glossy Black Cockatoos. Mr Zoubi therefore requires a permit to export two Glossy Black Cockatoos pursuant to s 303CC(2). The other exemptions provided for in s 303CC(3) to (6) do not apply in Mr Zoubi’s case.

10. Gang-gang Cockatoos, two of which Mr Zoubi hopes to export, while not currently included on the CITES list established by the Minister, are, like Glossy Black Cockatoos, native to Australia. They both fall within the definition of a ‘regulated native specimen’ under s 303DA of the Act. Export of a regulated native specimen without a permit is a criminal offence. Thus, a permit is required for their export under s 303DD. The exemptions provided for in s 303DD(3) and (4) do not apply in Mr Zoubi’s case.

11. Section 303CG sets out the requirements that must be satisfied before the Minister can issues a permit for the export of a CITES specimen. Subsection 303CG(3) states relevantly:

    (3) The Minister must not issue a permit unless the Minister is satisfied that:

    (a) the action or actions specified in the permit will not be detrimental to, or contribute to trade which is detrimental to:

    (i) the survival of any taxon to which the specimen belongs; or

    (ii) the recovery in nature of any taxon to which the specimen belongs; or

    (iii) any relevant ecosystem (for example, detriment to habitat or biodiversity); and

    …

    (c) if the specimen is a live specimen that belongs to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with; and

    (d) if any restriction or condition is applicable to the specimen under a notation in the list referred to in section 303CA—that restriction or condition has been, or is likely to be, complied with; and

    (e) if the permit authorises the export of a CITES specimen:

    (i) the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA); or
    (ii) the relevant conditions set out in the table in section 303CH have been met; and

    …
    (h) if the permit authorises the export of a CITES specimen that is a regulated native specimen—the conditions set out in subsection 303DG(4) have been met; …

12. The Tribunal, standing in the shoes of the Minister, must be satisfied that each of the requirements in section 303CG(3) are complied with if it is to grant Mr Zoubi’s application for a permit to export two Glossy Black Cockatoos.

13. In the case of regulated native specimens, where a permit has not already been issued under s 303CG, the requirements that must be satisfied before the Minister can issue a permit for the export of such specimens is set out in s 303DG. Subsections 303DG(3) and (4) state relevantly:

    (3) The Minister must not issue a permit authorising the export of a live native mammal, a live native reptile, a live native amphibian or a live native bird unless the Minister is satisfied that the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA).

    (4) The Minister must not issue a permit unless the Minister is satisfied that:

    (a) the export of the specimen will not be detrimental to, or contribute to trade which is detrimental to:

    (i) the survival of any taxon to which the specimen belongs; or

    (ii) any relevant ecosystem (for example, detriment to habitat or biodiversity); and

    (b) if the specimen is a live specimen that belongs to a taxon specified in the regulations—the conditions that, under the regulations, are applicable to the welfare of the specimen have been, or are likely to be, complied with; and

    (c) the specimen was not obtained in contravention of, and the export would not involve the contravention of, any law of the Commonwealth, of a State or of a Territory; and

    (d) if the specimen belongs to an eligible listed threatened species—the export of the specimen is covered by subsection (7) or (8), and the export would not be inconsistent with any recovery plan for that species; and

    (e) if the specimen does not belong to an eligible listed threatened species:

    (i) the proposed export would be an eligible non‑commercial purpose export (within the meaning of section 303FA); or

    (ii) the proposed export would be an eligible commercial purpose export (within the meaning of section 303FJ).

14. Importantly in this case, both s 303CG (CITES specimens) and s 303DG (regulated native specimens) provide that the export must be for a non-commercial purpose. Mr Zoubi applied to export the Cockatoos for the purpose of research. This is an eligible non-commercial purpose under s 303FA. Section 303FC(1) outlines the factors with which the decision maker must be satisfied for an export to be for the purposes of research:

    (1) The export of a specimen is an export for the purposes of research in accordance with this section if:

    (a) the specimen will be used for the purpose of scientific research; and

    (b) the objects of the research are covered by any or all of the following subparagraphs:

    (i) the acquisition of a better understanding, and/or increased knowledge, of a taxon to which the specimen belongs;

    (ii) the conservation of biodiversity;

    (iii) the maintenance and/or improvement of human health; and

    (c) the export is not primarily for commercial purposes; and

    (d) such other conditions (if any) as are specified in the regulations have been, or are likely to be, satisfied.

15. The applicable ‘other conditions’ specified in the regulations are those specified in the Environment Protection and Biodiversity Conservation Regulations 2000 (the EPBC Regulations). Regulation 9A.09 states:

    For paragraphs 303FC(1)(d) and (2)(d) of the Act, the following conditions are specified:

    (a) the research is done by a person or institution that has sufficient resources and qualifications;

    (b) the researcher publishes, or makes available for inspection, the results of the research;

    (c) if asked by the Minister, the researcher gives to the Minister written information about the progress and results of the research;

    (d) during and after the research, the researcher does not allow the specimen, or progeny or products of the specimen, to be used primarily for commercial purposes;

    (e) for research involving a live animal, the animal is held in a way that is known to result in minimal stress and risk of injury to the animal;

    (f) in the case of research in which an animal is killed, the killing is done in a way that is generally accepted to minimise pain and suffering;

    (g) the number of specimens to be imported or exported is appropriate to the needs of the research;

    (h) if possible, the specimen comes from an animal bred in captivity or artificially propagated plant.

16. The principal issue for the Tribunal, which is the subject of the discussion below, is whether the export of the cockatoos is for the purposes of research.

    THE EVIDENCE

17. Mr Zoubi’s initial contact with the Department was on 25 January 2012 when he requested information about whether he could privately export a parrot. In an email the following day, he expressed an interest in exporting a Gang-gang Cockatoo as a pet. The Department advised that such a Cockatoo was not eligible for export as a pet. On 9 April 2012, Mr Zoubi enquired about the export of birds for exhibition purposes. The Department referred him to the relevant information. On 12 June 2012, Mr Zoubi applied for the export permit which is the subject of the current proceedings.

18. Given the correspondence preceding the application for a permit, the Department has expressed concern that scientific research is not Mr Zoubi’s primary objective. Given the limited details provided by Mr Zoubi of his research proposal and of the research methodology he states that he intends to employ in his research, I am not surprised the Department has raised such concerns and questions whether Mr Zoubi is seeking to export the cockatoos for purposes other than research.

19. With regard to s 303FC(1) of the EPBC Act and the factors with which the decision-maker must be satisfied for an export to be for the purposes of research, paragraph (a) requires that the specimen will be used for the purpose of scientific research. As mentioned, Mr Zoubi’s initial contact with the Department inevitably raises questions about the purpose for which he is seeking the export of the birds. Moreover, in his undated ‘Answers’ in response to the Department’s questions, he implicitly identifies himself as a ‘breeder’ working in co-operation with Jerusalem Zoo. A reasonable decision-maker would, in my view, look to further evidence to satisfy him/herself that the concerns raised were not justified.

20. The ‘Abstract of Research’ included with Mr Zoubi’s application received on 8 January 2013 provides little detail of the methodology proposed, relying instead on a number of general statements as to the characteristics of the birds to be studied and methods and principles. In response to the Department’s solicitor’s letter dated 7 June 2013, requesting information on how Mr Zoubi intends to conduct the experiments on the birds, Mr Zoubi responded on 8 July 2013 that:

    The research will be designed in detail only after the import permit will be obtained. However in general I can say that all experiments will include only behavioural observations such as the birds’ ability to solve problems, behavioural changes depending on the whether [sic], food preferences, seasonal effects on social behaviour, behavioural response to enrichment, etc.

    I do not find this a convincing response. In my view, in the context of such an application for the export of native animals, a research proposal should provide an appropriate level of detail. It must also establish that the proposed research is ‘scientific’ in nature. Mr Zoubi was invited to provide additional information but his response was less than satisfactory.

21. The Statement of Reasons for the remittal decision dated 23 August 2013 also questions the relevance of Gang-gang Cockatoos to the proposed research given they are of a different lineage to Glossy Black Cockatoos. In a response received on 23 August 2013, Mr Zoubi states that the classification of Gang-gang Cockatoos is a contentious matter. In its Statement of Facts, Issues and Contentions, at [46], the Department states “the weight of current, peer-reviewed scientific opinion is in favour of the Gang-gang cockatoo being classified with a separate lineage to the black cockatoos”. Thus, the Department contends the proposed research as it relates to Gang-gang Cockatoos cannot achieve the stated object of “researching the ethology … of the black cockatoos”, as stated in the ‘Abstract of Research’ provided by Mr Zoubi with his application for a permit on 8 January 2013. In my view, this is a matter that has not been adequately addressed by Mr Zoubi.

22. With regard to s 303FC(1) subparagraph (b)(i), Mr Zoubi has not established how his proposed research would lead to a better understanding and/or increased knowledge of the two Cockatoos which are the subject of his application. His claim (undated ‘Answers’ in response to the Department’s questions) that “Most of the knowledge about exotic bird husbandry is found among breeders and not among zoos or academic institutions” is not supported by evidence that he has provided or to which he has referred. Mr Zoubi’s research is not directed to conservation (subparagraph (b)(ii)) or to advancing human health (subparagraph (b)(iii)).

23. With regard to regulation 9A.09(a) of the EPBC Regulations, requiring that research be done by a person or institution with sufficient resources or qualifications, Mr Zoubi apparently has no relevant qualifications and no experience of conducting research. He has now established a connection with Dr Werner, Zoologist and General Curator, of Jerusalem Zoo for the purpose of the proposed research, and states that the Zoo will provide scientific guidance during the research. Dr Werner’s curriculum vitae indicates that he is a person with appropriate qualifications and experience to provide such guidance. However, the research itself will be conducted by Mr Zoubi.

24. It is of concern that Mr Zoubi has no relevant background and, while he may have experience of keeping birds and, according to Dr Werner, “is suitably equipped to manage, confine and care for” such birds, I am not satisfied from the information provided by Mr Zoubi that this has extended to anything more than keeping pets. He refers to the flight aviaries he has in which he has accommodated a cockatiel, lovebirds and other birds “which I adopted” (Answers to question 9-13 at G Form which forms part of the application received on 8 January 2013). His experience of parrots is apparently limited to small domestic parrots (Cockatiels and Lovebirds) and there is no evidence of his having experience of keeping larger Australian parrots. An assessment by the Wildlife Trade Assessments section of the Department of the Department found Mr Zoubi was not suitably equipped to manage, confine and care for the birds (required by regulation 9A.05(3)(b)), a relevant matter for consideration in relation to regulation 9A.09(e). 

25. I am not satisfied from a consideration of the documentary evidence and the submissions of the parties that Mr Zoubi has established that the export of the birds is for the purposes of research in accordance with the required specification set out in s 303FC(1) of the EPBC Act. Thus, I cannot be satisfied that the proposed exports are for the eligible non-commercial purpose of research, and s 303CG(3) and s 303DG(3) mandate that, as the decision-maker (standing in the shoes of the Minister for the purposes of this review), I must not issue the export permits sought. Thus, I must affirm the decision under review.

    DECISION

26. The decision under review is affirmed.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley

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Associate

Dated

Date(s) of hearing	29 January 2014 ('On the papers')
Date final submissions received	16 October 2013
Applicant	In person
Solicitors for the Respondent	Sparke Helmore Lawyers