R v Yang

[2024] NSWDC 681

District Court

New South Wales

Medium Neutral Citation:

R v Yang [2024] NSWDC 681

Hearing dates:

12 November 2024 & 22 November 2024

Date of orders:

5 December 2024

Decision date:

05 December 2024

Jurisdiction:

Criminal

Before:

R Tupman DCJ

Decision:

In relation to sequences 1 and 3, pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), the offender is released forthwith upon her giving security on recognisance in the sum of $500 to comply with conditions of good behaviour and psychiatric treatment for a period of 2 years: at [105]

In relation to sequence 4, pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), the offender is released forthwith upon her giving security on recognisance in the sum of $500 on the same conditions for a period of 6 months: at [106]

Catchwords:

CRIME — Citizenship and migration offence – Furnishing false and misleading information to a migration official in connection with entry into Australia and application for a visa – Arrival on tourist visa with intention of staying – False personal details provided for both protection visa and citizenship application – Failure to declare relevant matters for both protection visa and citizenship application – Previous denial of protection visa

SENTENCING — Penalties – Recognisance

SENTENCING — Unexplained delay – Stale offences – Offences committed 10-14 years previously

SENTENCING — Subjective considerations on sentence – Childhood hardship – Poverty – Abuse – Arrest and abuse in China for violation of One Child Policy

Legislation Cited:

Australian Citizenship Act 2007 (Cth)

Crimes Act 1914 (Cth)

Criminal Procedure Act 1986 (NSW)

Migration Act 1958 (Cth)

Category:

Sentence

Parties:

Rex (Crown)
Nan Yang (Offender)

Representation:

Ms M Tam (Solicitor for the Commonwealth Director of Public Prosecutions)
Mr W Brewer (Counsel for the Offender)

File Number(s):

2023/00432450

JUDGMENT

1. The offender is before the Court for sentence, following pleas of guilty entered in the Local Court to two offences contrary to s 234(1)(c) of the Migration Act 1958 (Cth), as follows:

1. Sequence 1 is an offence that between about 27 July 2010 and 14 August 2010 at Sydney, she furnished false and misleading documents to a migration agent in connection with her entry or immigration clearance into Australia.

2. Sequence 3 is an offence that between about 30 December 2013 and 15 January 2014, she furnished a false or misleading statement to a migration official in connection with an application for a visa permitting her to remain in Australia.

2. The maximum penalty for each of these offences is a term of imprisonment of 10 years and/or 1000 penalty units.

3. I am also required to sentence the offender for a related offence sent to this Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). It is sequence 4, an offence contrary to s 50(1) of the Australian Citizenship Act 2007 (Cth), that between about 1 January 2018 and 8 June 2018 in Sydney, she made representations which she knew to be false or misleading in a material particular. That offence, which is a purely summary offence, has a maximum penalty of 12 months imprisonment.

4. I note that the two other offences, sequences 1 and 3, are each offences capable of being dealt with in the Local Court where the maximum jurisdictional limit for each of the offences would be 2 years imprisonment.

5. The facts, as amended, are agreed and are before the Court, signed on behalf of the offender. The background to this offending is that the offender’s correct name would appear to be Haiyan Yang, and her correct date of birth would appear to be in March 1973. She was born in Henan Province in the People’s Republic of China. She came to Australia with her then husband, Guoping Chen. It would appear that she initially arrived on a tourist visa with her husband, using the name Nan Yang with a date of birth in March 1966 and using a Chinese passport with those details.

6. Her tourist visa application contained these false details but would otherwise appear to have included some correct and truthful information about the identity of her husband, the date of their marriage and the identity of her parents. She arrived in Australia with her then husband on 13 November 2002, declaring these details on her incoming passenger card and that she was in Australia on business for a year.

7. She had authorised a migration agent in China, as I understand it, to act on her behalf and receive correspondence in relation to her business skills visa application. After arrival in Australia, on 19 November 2022, her husband completed a protection visa application with her as the secondary applicant. In that she declared the same information as appeared on her incoming passenger card, together with some other information, and declared that all of the information was true and accurate.

8. Whilst there is no evidence in the Crown case in relation to the basis of the protection visa application, there is some information provided by the offender to a psychologist, to which I will refer in due course.

9. The offender and her husband were granted bridging visas, pending the outcome of the protection visa application.

10. On 27 March 2003, the Department refused the protection visa. The offender’s husband then appealed to the Refugee Review Tribunal. The tribunal affirmed the departmental decision on 5 March 2004. He then applied for administrative review to the Federal Magistrates Court, as it was then known, and later to the full Court of the Federal Court of Australia. All of those appeals were unsuccessful and the initial decision to reject the protection visa was upheld.

11. Ultimately by 7 May 2008 all avenues of appeal had been exhausted and from that day the bridging visa, which had been in existence pending the final determination of the protection visa application, ceased. From 4 June 2008, the offender was an unlawful resident in Australia. For reasons that are not disclosed in the facts, she was not deported, but in July 2009 presented herself to the Department to obtain a bridging visa for the purpose of departure.

12. She repeated the previous false representations about her name and date of birth. She gave an address at 3/55 Station Road, Auburn. The bridging visa, for departure purposes, was granted and on 29 July 2009 she left Sydney and returned to China.

13. I will, in due course, deal with what then occurred between when she returned to China and ultimately when she returned to Australia on 27 July 2010.

14. I now turn to the facts for the specific offences. First of all, in relation to sequence 1, I accept that on 19 July 2010 the Department received a tourist visa application from the offender, using the name Haiyan Yang and her correct birth date. I accept more probably than not that that is her correct name and correct date of birth. Her application was part of a Chinese tour group application for an eight-day tour in Australia. Her application included her two children, whose details were truthful, including their names and dates of birth. One was her son, born in August 1995 who was five at the time. The other, her daughter, born in January 2001, who was nine. From that time, the offender used the identity, Haiyan Yang and her date of birth in 1973.

15. On 27 July 2010 the offender entered Australia with her two children, providing information on her incoming passenger card that she was coming with her two children for an eight-day holiday. That was false. She absconded with her children from that tour group immediately upon their arrival and applied for a protection visa. She knew that this information about her purpose for entering Australia was false. This false information on her incoming passenger card forms part of the subject matter of sequence 1.

16. On 4 August 2010, the offender applied for a protection visa for herself and two applications for her children and sought bridging visas, pending the determination of their applications. In her protection visa application she provided the same details as on her incoming passenger card. The details about her identity and background are set out in at [30] of the agreed facts and would appear to be accurate. However, in addition, she also declared the matters set out in at [32] of the agreed facts, namely that she had never:

1. Previously applied for a protection visa or made any other type of application to the Department;

2. Held a bridging visa;

3. Been removed, deported or excluded from any country, including Australia;

4. Been known by any other names;

5. Held or used any other passport; and

6. Previously travelled to Australia.

17. All of these declarations were false, and I accept misleading in a material particular, because of the circumstances of her previous visit to Australia and previous attempt to obtain a protection visa with her then husband, which I have outlined earlier in this judgment. These false statements in connection with her protection visa application are the balance of the subject matter of sequence 1. The parties are in agreement that this offence can be dealt with as a rolled-up offence and the offender has pleaded guilty to this charge on that basis.

18. On 27 October 2010 her protection visa application was refused. In March and August 2011, she lodged appeals with the Refugee Review Tribunal and Federal Magistrates’ Court, which were unsuccessful. The Department’s decision to refuse the protection visa was upheld. Her bridging visa ceased on 28 September 2011 when the appeal process ended and thereafter her continued residence in Australia was unlawful. Again, it appears she was not deported at that time and there is no evidence to explain why that did not occur.

19. On 8 January 2013, about 18 months later, the offender lodged a request for ministerial intervention in relation to the refusal of her protection visa application. It is what then followed that forms the subject matter of sequence 3.

20. As part of that request, she lodged a number of bridging visa applications between 1 January 2013 and 3 April 2013. The details of those declarations and associated lodgements are set out at [39] of the agreed facts.

21. In the January bridging visa applications she provided identification information about herself and her children, which was the same as had been declared in her protection visa application and which were accurate. She declared her address at that stage at 3/50 Station Road, Auburn.

22. On 28 March 2013 her request for ministerial intervention was refused and from the end of April 2013 her most recent bridging visa ceased and she became an unlawful resident in Australia. Again, it would appear that she was not deported, and there is no evidence to explain that.

23. On 31 December 2013, that is about nine months later, she applied for another protection visa, using the same identity and details which she had used for her previous protection visa application in her correct name of Haiyan Yang. This application was received by the Department on 14 January 2014, and is, in fact, the subject matter of sequence 3. In that protection application she provided all of the same identification details which had been provided in her first protection visa application made in her correct name, and which appear to have been truthful. She provided her updated address in Hall Street, Auburn, and declared a previous address in Station Street, Auburn, which was the same address she had declared on her original protection visa application. These identity details are set out at [43] of the statement of facts. They appear to be identical to those provided in the protection visa application she initially lodged in the name of Haiyan Yang, which had been refused and had been the subject of an unsuccessful application for ministerial intervention.

24. In that document she also made a number of false declarations, namely, that she had -

1. Never previously applied for a refugee or protection visa;

2. Only ever previously made a visitor visa application;

3. Never been removed, deported or excluded from any country, including Australia;

4. Never been known by any other names;

5. Never used any other passport or travel document; and

6. Not previously travelled to Australia.

25. She declared that information as true and correct, but this was all false in a material particular, and as I have said, is the subject matter of sequence 3.

26. Whilst it is without doubt that these particulars were, in fact, false, and the offender admits that by her plea of guilty to this offence, the fact is that this protection visa application was made in January 2014, using exactly the same identifying details, including the same People’s Republic of China passport which was used in her protection visa application lodged with the Department in August 2010, and which, as I have said, had already been refused ministerial intervention. However apparently this never became apparent to the Department. It is a curious aspect of this case that in some way this never alerted the Department, given that the applications were made only three and a half years apart. In any event that is what occurred, and, clearly, given her history, that part of her new protection visa application was false and misleading.

27. It seems that the Department duly considered the second protection visa application, and on 13 June 2014 it was refused. The offender appealed that refusal to the Refugee Review Tribunal, which overturned the Department’s June 2014 refusal, in circumstances where apparently neither the Department or the Refugee Review Tribunal, nor anyone else, had become or been made aware of the earlier protection visa application made in an identical identity in 2010. The Refugee Review Tribunal granted the offender a protection visa from 4 September 2015 for five years in that identity.

28. The false information, failing to disclose the circumstances of her visit to Australia in another name, is the subject matter of sequence 3.

29. The related offence, sequence 4, then occurred in circumstances where, after the offender was granted a protection visa, she commenced applying for Australian citizenship. On 7 October 2015 she applied for an Australian passport, which was issued to her on 21 October 2015. She used the September 2015 protection visa in support of that application.

30. On about 4 January 2018 the offender made an application for Australian citizenship using her true identity of Haiyan Yang. Her declarations in support of that application form the subject matter of the related offence, contrary to the Australian Citizenship Act 2007.

31. In that application she declared details about her identity, which is set out at [52] of the agreed facts. As for each of the preceding protection visa applications they were truthful, and they also matched the identity details provided in the application for ministerial intervention.

32. She also declared the matters that are referred to at [53] of the agreed facts, which were false, namely, that she -

1. Had never had a different date of birth;

2. Had never been known by other names;

3. Had lived only in China up to July 2010;

4. Did not declare her previous residence in Australia;

5. Had never been removed or deported from any country, including Australia.

33. These declarations were false. The application was received by the Department on 18 January 2018.

34. For reasons that do not appear in the facts, she made another citizen application on 29 May 2018, declaring exactly the same details, which was received by the Department in June. These two applications, which are identical as I understand the facts, are the subject matter of sequence 4, the offence contrary to the Australian Citizenship Act 2007.

35. On 9 July 2020 the offender was granted Australian citizenship on the basis of one or other of these applications containing the false information. She applied for and was granted a second Australian passport as an Australian citizen on 22 July 2020. They then are the relevant facts, as I understand them, in relation to these offences.

36. These are all old offences, and to some extent, certainly sequences 1 and 3, can properly be described as stale offences. It is relevant to consider steps taken to investigate these matters. The facts are relatively silent in relation to this, but I accept from the agreed facts that on 24 July 2009 the Department acquired photographic, biometric data in the name of Nan Yang from a bridging visa application which had been lodged either by or on behalf of the offender, and which was obtained from the biometric page of the offender’s People’s Republic of China travel documents.

37. Between September 2010 and October 2019, the department acquired four separate photographic biometric data documents of the offender in the identity of Haiyan Yang. It seems that there was no connection at that stage made between the two.

38. On 21 April 2021, the Department received two biometric photos from Transport for New South Wales because the offender had applied in May 2005 and October 2007, presumably during her first period of residence in Australia, for a Drivers licence in the name of Nan Yang.

39. Eventually in May and June 2021, the Department conducted a forensic examination of this biometric photographic data comparing them with photos used by the offender in her true identity of Haiyan Yan, which were in the possession of the Department. It was at this stage that the Department formed the view that they were the same person.

40. In July 2021, the offender was invited to attend a record of interview but her legal representatives advised the Department at the time that she would not be doing so. She had every right to adopt that course and to exercise her right to silence and was under no obligation to assist the Department by attending a record of interview.

41. It is not entirely clear on the facts when she was charged in relation to these offences, but I understand it to be sometime towards the end of 2023. However, from June 2021, the Department was on notice that these two identities were more probably than not the same person.

42. Between 12 and 17 January 2023, the offender used her Australian passport obtained in connection with her commission of the offence, sequence 4, to travel to New Zealand and between July and October 2023, she used this passport to travel to China and back again. It would appear that there were no alerts, nor was any action taken at that stage at the Australian border when she returned. She was not charged in relation to these offences until some time after that. There is no explanation for this delay in the evidence, except that apparently there were some steps taken to attempt to serve the offender with a Court Attendance Notice in November 2022 and September 2023 at two different addresses.

43. There is no evidence that the offender was trying to evade service. In fact, she had a solicitor who had been in touch with the Department advising that she would not participate in a record of interview, and no suggestion that that person was not still acting for her and what is more, in fact, in September 2023 when there was an attempt made to serve this Court Attendance Notice, she was in fact in China. That must have been known to the Department because she used her Australian passport to depart in July and apparently return in October 2023.

44. These are Commonwealth offences and as such, the Court must sentence pursuant to Pt 1B of the Crimes Act 1914 (Cth) which sets out the general sentencing principles which are to be applied, including that the sentence imposed for any offence must be of a severity appropriate in all of the circumstances of the offence and the Court must not impose a sentence of imprisonment unless it is the only sentence appropriate in all of the circumstances of the case.

45. The Court must take into account the relevant provisions of s 16A of the Crimes Act 1914 (Cth). That includes an assessment of the nature and circumstances of the offending which I have dealt with when summarising the relevant facts. Each of the two main offences, sequences 1 and 3, is a serious offence as is clear from the maximum penalty imposed by the legislature.

33. Sequence 1 involves two separate occasions on which the offender provided false information, but it is largely the same offending and the fact that it involves two occasions in my view does not increase the objective seriousness. Sequence 3 is in reality, in my view, a continuation of that in relation to her second protection visa application. She did not provide any different details to that which she had falsely provided in relation to her first protection visa application. They are nonetheless both serious. The objective seriousness of these two offences is informed by the following:

1. At least sequence 1 involves more than one occasion within the timeframe in which she provided false information. However, it was always the same information.

2. She did so deliberately. This was not recklessness on her part.

3. The offending lasted over a long period for both of these two main offences, sequences 1 and 3. To an extent, however, this fact is a function of the slow process of immigration appeals in Australia. There is nothing here to indicate that the offender herself was responsible for any of the delays in the applications being determined or the appeals being heard. She used the appeal processes available to her as a matter of law and in fact was ultimately successful in obtaining a protection visa, whether or not on the basis of the material she provided to support her need for protection or some other reason is not known. That material is not before me on this sentence. Nonetheless, of course, she did so whilst providing false information which is the subject matter of the charges. It should be noted that none of the charges before me involves an assertion that any of the information she herself provided about her need for protection, the subject matter of sequences 1 and 3, is asserted to have been false. There is simply no evidence of that nature on this sentence.

4. The Citizenship Act charge also involves more than one false declaration but there is no evidence about why it was necessary for her to lodge the application more than once and in any event, it would appear to be the case that she lodged exactly the same information on two occasions, providing exactly the same false information on both applications. Each is objectively serious for these reasons, but I accept that it is also the case here that the offending was not in any way sophisticated.

47. It is important that the sentences here reflect a degree of general deterrence. There is a need to protect the integrity of the Australian immigration system and to send a strong message to those, who would provide false information in support of an application to come to and remain in Australia, of the serious repercussions, including the possibility of a period of imprisonment where otherwise appropriate.

48. It is, however, in my view, a little difficult in this case to embrace fully the Crown’s submission that part of the consideration of general deterrence is because of the difficulty in detecting offences of this kind. That is, of course, accurate in general terms but in this matter, it appears that the Department had access to biometric data, including the photo showing the same person in two different names since at least 2010 and ought to have been aware in January 2014 that the offender was using exactly the same identity to lodge a second protection visa application that she had used when being refused a protection visa just a few years earlier and refused ministerial intervention.

49. It seems to me it would not have been so difficult to detect these specific offences as it might have been in other cases if a proper investigation had been undertaken. The offending here, in my view, as I have already stated, was not sophisticated and would have enabled an uncovering of these matters had the appropriate investigation been undertaken.

50. Her actions, however, did indicate a strong desire on her part to come to Australia, to remain here and ultimately to become an Australian citizen. That, of course, does not operate as some sort of defence to her offending against these provisions. Her reasons for doing so are relevant in assessing her moral culpability for this offending, which is to be taken into account in addition to an assessment of the objective seriousness of the offending.

51. There is material before me, including the letter of apology from the offender, evidence from her daughter and son, and a psychological report from Dr Hawil which provides the background to her offending. I accept that evidence from those sources as to the circumstances of the offender, which provide insight into her moral culpability.

52. I accept that she is now 51. She was born and raised in a very poor family in Henan province in the People’s Republic of China, and her childhood was marked by extreme hardship. Her family often did not have enough to eat. She was subjected to physical abuse, especially from her mother. She was forced to leave school early so that she could help on the family’s farm. She was married at the age of 19 and I accept that this was at the instigation of her parents so that they could earn a dowry.

53. She gave birth to her daughter shortly afterwards in August 1995, and a few days afterwards was arrested because she did not have the required permit which couples in China, at the time, needed before having a child. She did not know that this was necessary. She was released after a fine was paid. She suffered many years of abuse from her husband and his family following this, and also because her child was not male. The Court can take judicial notice of what was the patriarchal nature of society in China then, and probably still today.

54. She then gave birth to her son in 2001 but was arrested together with her ex-husband because they had violated the one child policy which was strictly enforced in China at the time. She was kept in custody for about a week. She was both verbally and physically abused by officers in custody and deprived of food and water. She was released from custody, ultimately, after a portion of the fine was paid by her in laws. They could not pay the balance of the fine, however, and the fear of being re-arrested was part of the reason why she came to Australia with her ex-husband in 2002.

55. By that stage, she had separated from him, but he approached her and she agreed to go to Australia with him. I accept from what she told the psychologist that the details on the various forms which were lodged were completed by her ex-husband. I accept that they were still in fear of being arrested, but she came to Australia on a tourist visa with the intention of applying for, or perhaps even applying in advance for a business visa, given what was appearing on her incoming passenger card on that occasion.

56. I accept that the migration agent informed her that she was too young to be granted the visa she was seeking, and that is the reason she agreed to travel in the name Nan Yang, with a different date of birth and passport which made her older. None of this is, of course, the subject matter of charges before me, even though, of course, they involve a degree of dishonesty. However, I accept that to a large extent, she engaged in this dishonesty relying on her ex-husband and the advice of a migration agent. It is of note, of course, that except for the name, date of birth, and passport information, other information she had provided at the time was actually correct.

57. I accept that the history she provided about the background to her leaving China at the time were accurate and genuine. The Court can take judicial notice of the fact that the People’s Republic of China at the time did have a one child policy which they enforced strictly, and in some cases, with tragic consequences to women. The Court can also take notice of the fact that life in rural China in the 1970s was difficult, and that it was a patriarchal society. There is no reason why I would reject this history given to Ms Hawil or set out in the letter of apology to the Court.

58. There is no evidence that the offender ever did anything whilst on her first visit to Australia to avoid deportation, and when she ultimately became aware that her last avenue of appeal had been unsuccessful, she obtained the necessary departure bridging visa and left in 2009, returning to China. I accept what she told the psychologist, that correspondence was being received by her migration agent, and that her English was, and still is, limited so that she did not understand that her bridging visa had expired initially.

59. I accept that when she came back to Australia in 2010, she did so because of the fear she had for her children. I accept that when she went back to China, and was reunited with her children, she discovered they were being bullied and mistreated at school by their teachers and classmates. That was especially so in relation to her son, but also her daughter was also being mistreated at school. Her daughter gave evidence on this sentence, which I accept. She has verified that part of the offender’s letter to the Court, in which she set out this history. She said that her brother, the offender’s son, was particularly singled out at school for bullying because he was regarded as illegitimate as a result of the one child policy, and he was referred to as the “black child” by children at school because of the violation of the one child policy that then applied in China.

60. The offender’s daughter also reported that she had been physically abused by her grandmother, the offender’s mother, who had been caring for them whilst their parents were in Australia, and that she would frequently hit her with coat hangers and similar. I accept that when the offender returned to China, she became aware of how her children were living, and that these were the circumstances they were facing in China. I accept from her letter of apology that the offender discovered that her daughter was being bullied at school so badly she was refusing to go. The offender tried to talk to the teachers, but they refused to talk to her. I accept that she saw what was happening to her children as being similar to what had occurred to her in her own childhood and in particular, I accept that part of the letter which she has written to the Court, in which she said the following:

“I felt as if my heart was being stabbed thousands of times. I saw their lives were a painful reflection of my own childhood, and I couldn’t bear to see them endure the same emotional and physical torment I had faced. I decided to bring them to Australia, hoping for a better future where they could grow up with safety, dignity and happiness”

61. That is a translation of the letter that she wrote, which is tendered to the Court.

62. It was with this background that the offender then came to Australia in 2010 in the way that I have set out, and which forms the subject matter of sequence 1. She used her true identity and background, and the true identity of her children, but of course, provided a false reason for coming to Australia, and false details in her subsequent protection visa application, not disclosing her earlier time in Australia. The only evidence about the basis of the earlier protection visa application made together with her ex-husband is contained in her history to the psychologist.

63. She told her that the migration agent in Australia told them to make the application on the basis that they were Falun Gong practitioners, which they were not, and which they told the agent. They went along with that suggestion because of his advice that that would improve their chances of obtaining a protection visa. Whether or not that was the basis on which they were seeking protection is not known and, in fact, the application as I have already said, was ultimately rejected.

64. I have no reason to reject that history given by the offender to the psychologist and the Court is aware of and can take judicial notice of the fact that there has been, over a number of years, considerable work taken to improve the practices of migration agents in Australia who, regrettably, at least in the past have had a poor record in terms of the way in which they have advised those who seek protection in Australia.

65. The offender acknowledged in her letter of apology that she knew that not disclosing her first entry to Australia in a false name was wrong. I infer from a portion of the psychological report that she did so for two reasons. One, was because she had used the false name initially at the direction of the migration agent at the time, but more importantly also, because she feared that if she had not done so, then her and her children would be immediately deported and she could not bear the thought of her children having to return to a situation of being beaten, bullied and abused.

66. This is a very unusual case and these are very unusual background circumstances to dishonest offending of this type. Whilst this is a very tragic background and does not excuse the illegality, it does explain it to an extent and, in my view, reduces her moral culpability. I accept that the offender is genuinely remorseful about having committed these offences. She said so in her own letter of apology and I accept from her daughter’s evidence, the letter she wrote to the Court and the letter that her son wrote to the Court that she has said so to them. She told Ms Havill, the psychologist, these words: “I very regret, I know I’m wrong.”

67. She also pleaded guilty in the Local Court at an early opportunity.

68. Whilst it is a strong Crown case, nonetheless, her pleas of guilty give rise to a significant utilitarian benefit here. It has not been necessary to prove each of the documents and statements which are the subject matter of these offences and, in particular, it has not been necessary to establish by admissible evidence, the circumstances of her first entry to Australia which is the foundation of the offences now before me. Her pleas of guilty also indicate a willingness to facilitate the interests of justice and as I have said, are a further indication of her genuine remorse and contrition.

69. I reject the Crown’s submission made in written submissions here that the offender has not demonstrated real remorse and lacks insight. I have already outlined the evidence in which she has stated her remorse which I accept. As to lack of insight, I do not accept that the fact that she has asserted some of the statements she made were at the suggestion of one or other migration agents involves her shifting the blame.

70. I accept that initially, she went along with her husband and in the circumstances that they then found themselves that was not unusual. Also, she accepted advice about the basis on which they should pursue a protection visa given to them by a migration agent in Australia. That does not involve her minimising her own offending but rather, provides some context and explanation for it.

71. She has squarely admitted that she knew that what she was doing was wrong but did so because of her fears for her children and the desire to make a good life for them. Of course, what she did was illegal and this motive is no defence, but it is a clear recognition by her of her wrongdoing. She is not shifting the blame, and she is genuinely remorseful. Whilst it is not necessary to quantify any discount, if that were required, I indicate that her pleas of guilty are worth a discount of 25%.

72. I do not accept the Crown’s submission that there is a need for specific deterrence in this case. I will deal with that in due course after outlining further details of her subjective case. I turn to that now and that is an assessment of her character, age, antecedents and background as required by s 16A of the Crimes Act 1914 (Cth).

73. As I have said, I accept she is now 51 and that from the time she came to Australia in 2010, she has been using her real name and date of birth. She has no criminal convictions and is entitled to have that taken into account as some evidence of good character. It is of a somewhat limited value in this case, however, in circumstances where she acknowledges having provided false information including using a false identity during her first time in Australia. In all other respects, however, except for these offences and the foundation of dishonesty, she is a person of good character and I accept the assessment of her character by her children in the letters they have written to the Court supported by the oral evidence given by her daughter.

74. Even though the offender eventually achieved her aim of becoming an Australian citizen and achieving what is, no doubt, a better life for herself and her children, her life here in Australia has not been easy. I accept from the letters of the children that she worked very hard in relatively menial jobs in Australia in order to provide for them. That included working nightshifts in a meat packaging factory, then working on the same day as a cleaner. She always provided well for her children and ensured that they received an education. I accept their assessment of her that everything she has done in her life since coming back with them in 2010 has been to give them a better life. She has had a very limited education, herself, and even though she was an above average student, as I have said, she was forced to leave school by her parents after only eight years of schooling in China because her parents could not afford for her to continue. She helped her father on their farm from the age of 15 until she was married off at the age of 19. Her work in Australia has been largely unskilled as a result of her poor education and her limited English.

75. Unfortunately, that unskilled labour led to her suffering a serious work-related injury whilst working in a quilt manufacturing company in December 2016 when she fell down one floor which led to her suffering from a relatively serious back injury involving tears to her lumbar and sacral spine. She has received treatment for that, but it has not resolved her issues and she continues to experience debilitating lower back pain. She has had a number of procedures to try to rectify this problem, but it is not resolved and it is ongoing.

76. It has been the cause of her current serious mental illness, that is, her chronic backpain is the cause of her current and longstanding serious mental illness. In addition to her ongoing physical and medical condition, I accept that since this workplace injury, she has been suffering from anxiety and depression. Her psychological condition has been deteriorating to the extent that in November 2021, she presented to hospital with suicidal ideation in the context of ongoing chronic backpain. She is consulting Dr Michael Hong, psychiatrist. In the period leading up to November 2022, she had been exhibiting psychotic like symptoms but by then, according to that report, it had resolved to a large extent. He did, however, diagnose the offender at that stage with a major depressive disorder as a result of chronic pain. In a later report tendered on this sentence, dated 11 December 2023, Dr Hong diagnosed the offender as suffering from a major depressive disorder with psychotic features. He noted that her psychological health was deteriorating and that she was disclosing intermittent suicidal ideation. She reported some psychotic symptoms of a paranoid type, in addition to suffering increasing back pain. Dr Hong noted in that report that she needed to be properly monitored, preferably in a more controlled environment, because her risks had increased and that it was difficult to assess and treat her safely in the community.

77. She is thus a person who suffers from a serious psychiatric condition which makes her a somewhat lesser vehicle for general deterrence. It would also render any time in custody, if it were necessary for a term of imprisonment to be imposed, to be significantly more onerous than it would for others.

61. She cannot work because of her chronic and debilitating back condition. She has become increasingly withdrawn and I accept the evidence given by her daughter in relation to this. She relies on her daughter to provide care, and she needs treatment possibly in a controlled environment. Her daughter is providing such care as she can, but I accept from the evidence that she gave that she is finding it increasingly difficult to do so given the deterioration in her mother’s health.

62. Community Corrections in the sentence assessment report assesses her as a medium to low risk of reoffending. Ms Hawil assesses her at a low risk of reoffending. I prefer Ms Hawil’s assessment, and it accords with my own assessment that she is a low to negligible risk of reoffending. It has nothing to do with any level of service inventory, but rather on the basis that the only offences she has ever committed are those that are before me for sentence today.

63. Her moral culpability for doing so is reduced somewhat because of the extremely difficult circumstances in which she found herself and her children in China. Apart from these offences she has never committed any other offences. In all respects she has been a hardworking member of the community.

64. She is now 51 and suffers from a major depressive illness with some psychotic symptoms and chronic pain. There is nothing in any of this from which any other assessment could possibly be made other than her risk of reoffending is low or negligible. Any risk she does present however revolves around her ongoing mental and physical health and her prospects of rehabilitation would be assisted if she has access to proper psychiatric treatment, if necessary, in a controlled environment as suggested by Dr Hong and undertakes whatever medical treatment can be offered to alleviate her chronic pain.

65. Her rehabilitation has been ongoing since the last of these offences was committed. That would be improved as I have said if she were to get access to ongoing psychiatric and medical care. At the very least that would decrease her suicidal ideation and hopefully increase her sense of purpose. For all of these reasons, as I have already stated, specific deterrence is not an issue which needs to be addressed here.

66. There has been a delay in these offences coming to court for sentence which is an issue that needs to be addressed. The two major offences sequences 1 and 3 are now old, almost if not definitely, falling into the category of stale offences, the first occurring in 2010 and the second in 2014.

67. In my view, at least from January 2014 the Department ought to have been aware that the second protection visa application was lodged using exactly the same information, all of which was in relation to her identity which was true, but all of which contained the same false information in relation to her first time in Australia.

68. From at least 2010, there was also biometric material which was capable of linking her to the earlier application made with her ex-husband, albeit that might have only been photographs.

69. There is no evidence that during her earlier time in Australia she tried to avoid detection, and I understand from the evidence that she always had a migration agent.

70. For the offences before me, I also accept that she had a migration agent and there is no evidence of her attempting to hide. I accept that from at the very latest 2021 when the offences were in fact detected she has had a solicitor and has not been trying to hide her whereabouts.

71. As I have already said, it is also the case that from the time the Court Attendance Notices were issued, whenever that might have been, and during the time when the Department was trying to serve them, the offender had left and re-entered Australia at least once using her Australian passport, which the Department was aware had been obtained using her citizenship status, which as is the subject matter of sequence 4, had been obtained providing false information.

72. In those circumstances it is appropriate to make a finding, and I do, that there has been delay in bringing these proceedings. That is relevant to the extent that it has enabled the Court to make a finding that the offender has rehabilitated and is virtually no risk of reoffending, given the lack of any form of anti-social or criminal behaviour over this lengthy period, which of course is a circumstance of mitigation that operates in her favour.

73. The sentence of course cannot be reduced just because of the delay in prosecuting these offences or because perhaps that the Court has taken a view that more ought to have been done to investigate them earlier.

74. However the actual delay is as I have outlined it, and whilst there is no specific evidence, it is probable in my view that the offender’s overall mental condition has been rendered far worse in circumstances where these serious charges have been brought as long after the events as they have, in circumstances where she has been dealing with the Department almost constantly since 2010, always using her true identity and in circumstances as I have said where the Department apparently had access to biometric material which led them to discover the offending, but not until 2021.

75. In the meantime, despite this, the offender went through the various appeal processes, the ministerial intervention process, two protection visas and a further protection application which was upheld, more probably than not on its merits and then a successful application for citizenship. She has worked hard, raised two children who are making valuable contributions to the Australian community, including one as a registered nurse and herself caused no harm to the Australian community, only to herself working in a menial job and a series of those menial jobs, as a way to support her family.

76. It seems to me that this delayed prosecution has almost certainly exacerbated her psychiatric condition at least until these proceedings are resolved. On the other hand, however, it has enabled the Court to see her true rehabilitation and prospects. It is thus, to some extent, a double-edged sword and I take it into account in determining her real prospects of rehabilitation and as a circumstance of mitigation.

77. I then turn to what these offences are worth. There are in effect no decisions which could be regarded as comparable decisions for charges brought under this section. There are no appellate decisions on this section. There are apparently some first instance decisions in relation to s 234 but according to the written submissions largely involve migration agents and others taking money to make false declarations to migration officials.

78. The statistics published by the New South Wales Judicial Commission show sentence in this Court for an offence under this section which gave rise to a conditional release pursuant to s 20(1) (a) of the Crimes Act 1914. I have no details about that offence only that that was the outcome and I have said there is one matter only referred to in those statistics.

79. These are serious offences, but the offender’s subjective case here is very strong and should sound in a degree of leniency. The issue for initial determination is whether or not imprisonment is the only sentence appropriate in all of the circumstances. In my view it is not, taking into account not just the objective seriousness but her reduced moral culpability, her current psychiatric and medical condition and her genuine remorse and contrition.

80. The alternative pursuant to the provisions of the Crimes Act1914 as I understand it, is a conditional release order pursuant to s 20(1)(a) and in my view that is the appropriate sentence that should be imposed for each of these three offences.

81. The Citizenship Act offence is the least serious. It is a summary offence only with a maximum penalty of 12 months. It seems to me that sequences 1 and 3 are of equal severity, and they ought be dealt with by the imposition of the same sentence for each of them.

82. For each of sequences 1 and 3 it seems to me that all relevant factors can be satisfied by imposing a conditional release order for a period of 2 years to be concurrent with a conditional release order for the Citizenship Act offence of 6 months.

83. They will, of course, all commence from today and, in my view, ought be concurrent. To a large extent they deal with very much the same episodes of criminality and offending.

84. At the end of this sentence Judgment the DPP solicitor has submitted that S19AC(1) of the Crimes Act 1914 should be considered so that the Court might need to fix a single Recognisance release order. That section does not apply because the sentences to be imposed are Conditional Release Orders pursuant to S20(1)(a) of the Crimes Act 1914 and not terms of imprisonment.

85. I will not be ordering a recognisance release order because, in my view, it is not applicable to the sentences that I have foreshadowed. My understanding is that s 20(1)(a) is a conditional release, similar to what used to be called a deferred sentence bond, s 8 of the relevant NSW legislation, now called a community corrections order. That is, not a term of imprisonment but a conditional release with conviction.

86. For those reasons then, I make the following formal orders:

87. On each of the charges the offender is convicted.

88. For sequences 1 and 3, pursuant to s 20(1)(a) of the Crimes Act 1914 she is released, upon her giving security on recognisance, formally in the sum of $500 to comply with the following conditions:

1. That she will be of good behaviour for a period of two years.

2. That for that period of two years, she will accept psychiatric treatment by Dr Hong or such other psychiatrist as he recommends.

106. For sequence 4, she is also convicted. Pursuant to s 20(1)(a) she is released upon her entering into a recognisance on the same conditions for a period of six months. And for more abundant caution, these three recognisances are concurrent with each other. Also for the benefit of Justice Link, a 25% discount was applied when reaching this sentence.

107. Then she will need to go to the registry to enter into those bonds. I think I’m supposed to explain something to her, but I think that’s what I’ve just been doing. But no doubt Mr Brewer will explain to the offender that they are good behaviour bonds for a period of 2 years and if she breaches them by either not being of good behaviour or not complying with the condition that she continue to seek treatment with Dr Hong, she can be brought before the Court and she can be sentenced in the same way that I could have now sentenced her, which would have included the possibility of a period of imprisonment. I don’t know what will happen to her otherwise, in terms of her citizenship status or immigration status, but that’s not either a matter for me to know or to take into account.

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Decision last updated: 10 July 2025