1. The Applicant was born in China in May 1986. He is a Chinese citizen.[9]
2. 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]
3. Since that time, he has departed from Australia and returned on many occasions. The last return was on 25 May 2018.[12]
4. Between 2004 and 2012, the Applicant completed various courses including Business Management and Cookery at North Sydney TAFE.[13]
5. 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]
6. 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]
7. Between 16 May 2017 and 4 July 2018, the Applicant committed various offences related to the attempted illegal export of protected native reptiles.[18]
8. 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]
9. 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.
10. 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)

1. 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.

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]

1. 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.
2. 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.
3. 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]

1. 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.
2. The Applicant said in his statement of 3 March 2025, that there was still $300,000 in interest owed.[25]
3. 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.
4. 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."
5. The Applicant conceded that maybe his father had fixed the issue, but he had not asked him, and he did not know how to.
6. 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.
7. The Applicant denied fabricating the "loan shark" claim.
8. On 8 August 2018, a search warrant was executed by police on the Applicant's business address and a residential address.[27]
9. 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]
10. 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.
11. In about late February or early March of 2021, the Applicant says that he commenced an intimate relationship with HZ.[30]
12. 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]
13. On 16 March 2021, the Applicant first saw psychologist Dr Jiang.[32]
14. On 20 April 2021, a NSW Department of Corrective Services case note states:

continues to gamble, $500-$600 per week...addicted

as noted above, in therapy for gambling addiction and depression and anxiety

changes, stop gambling...bard bad behaviour...everything upright...need to check everything

CSO, given CSO medical form to address mental health, no physical incapacities

business is by appointment only, not open to public

**_identified gambling, goal (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

1. Paragraph 6 of the Direction provides that:

Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

1. Paragraph 7(2) of the Direction requires that protection of the Australian community (Primary Consideration 8.1), is generally to be given greater weight than other primary considerations.
2. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia:

(4) the best interests of minor children in Australia; and

(5) expectations of the Australian community.

1. Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:

a) Legal consequence of the decision; > > b) extent of impediments if removed; > > c) impact on Australian business interests

2. I note the importance of the Other Considerations being "other" considerations, as opposed to "secondary" considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[92]

"...Direction 65 [now Direction 110] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply."[93]

1. The Applicant's criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.
2. The Applicant's offending is discussed in detail above.

Primary Consideration 1 - Protection of The Australian Community

1. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
2. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

a) The nature and seriousness of the non-citizen's conduct to date; and > > b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The Nature and Seriousness of the Applicant's Conduct to Date

1. When assessing the nature and seriousness of a non-citizen's criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
2. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
3. The Applicant's counsel submitted that if the Applicant were being sentenced today, his sentence would have been substantially less than it was, due to recent authorities regarding the proper weight to be allocated to deterrents. This may or may not be so, but the Tribunal is obliged to take the sentencing Judge's relevant findings and determination of penalty at face value. The Tribunal cannot engage in speculation regarding what might have been, in different circumstances. The Applicant entered a late plea of guilty in respect of 2 of an original 3 counts. He lodged an appeal, but that did not proceed.
4. The Applicant's counsel made various submissions concerning the appropriate way in which the Tribunal should interpret the various references in the Direction, to "the Australian Community".
5. For example, the Applicant's counsel submitted that the Applicant's offending did not cause "harm the Australian Community".[94] The Applicant's counsel said that no member of the "Australian Community", however that expression may be defined, was "harmed" by the Applicant's offending.
6. The question of what is meant by "harm" is an interesting one. The Applicant's counsel urged the Tribunal to take a rather narrow view of "harm". The Applicant's counsel said that as no member of the community was directly harmed by the Applicant's offending, it was therefore, not "very serious" or even perhaps "serious" offending, for the purposes of the Direction.
7. If the Applicant's submissions are correct, the same might possibly be argued in the case of an Australian child sex offender, convicted in an Australian Court, of offending which occurred overseas. It may conceivably be argued in the context of any environmental legislation (as here) where no specific harm to anyone is established. It may likewise possibly be argued in the context of offences against public property, or even in the context of taxation related offences. The same may possibly be argued in respect of any number of crimes against corporations or the state, as distinct from crimes against individuals.
8. The Australian community, however composed, has both individual and collective interests. Some at least of these interests are formally expressed in the criminal laws made by the Australian States and the Commonwealth.
9. The Applicant argued that "the "criminality" of conduct and the consequences imposed by the criminal law for the conduct cannot be decisive in assessing seriousness under the direction".[95]
10. In my view, when the Tribunal is assessing whether offending is "serious" or "very serious", it must have regard to the intention of the relevant legislature.
11. In the case of criminal statutes, parliaments determine and express the relative gravity of offences, by reference to amongst other things, the maximum proscribed penalty. Such a penalty may range from a small expiation notice to life imprisonment. In this instance, the Commonwealth Parliament has set a maximum penalty of 10 years imprisonment or a financial penalty of $210,000.[96]
12. This is objectively towards the very serious end of the maximum penalty spectrum. I also note the sentencing remarks, set out above, on the topic of the serious nature of the Applicant's offending.
13. I also note that the same Commonwealth Parliament, requires a mandatory cancellation of any visa, if the visa holder is convicted of an offence resulting in a sentence of imprisonment of 12 months or more.[97] The Applicant was sentenced to 3 years and 6 months imprisonment.
14. In my view, it is therefore appropriate to regard the Applicant's offending as "very serious".
15. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed; > > (ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; > > (iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c)); > > (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.

16. The Applicant does not pass the character test.
17. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant's offending.
18. The Applicant was sentenced, as a first offender to 3 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months.[98] This indicates the gravity of his offending.
19. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the impact of the offending on any victims offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
20. The animals involved in the offences were not seriously harmed, but this was only because the parcels were intercepted before they left Australia. The plan involved little concern for their welfare as evidenced for example, by the nature of the transit containers and the lack of water. There was "a degree of cruelty".[99]
21. I accept however, that there were no human "victims".
22. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen's offending and whether there is any trend of increasing seriousness.
23. The Applicant was initially charged with 3 and eventually pleaded guilty to 2 separate offences, occurring on 16 May 2017 and 4 July 2018. There is no evidence to suggest whether but for his apprehension, he either may, or may not have continued to offend.
24. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant's repeated offending.
25. The cumulative effect of the Applicant's offending is very serious. He pleaded guilty to 2 separate offences. Such offending feeds an illicit market in protected species that is both cruel and contrary to internationally accepted norms.
26. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
27. The Respondent could not point to any examples of this conduct.
28. Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
29. There is no evidence of this.
30. Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
31. There is no evidence of this.
32. I do not consider factors (d), (g), (h) and (i) of paragraph 8.1.1(1) of the Direction apply to the Applicant's offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant's visa.

The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

1. Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2. Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; > > b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

(i) information and evidence on the risk of the non-citizen re-offending; and > > (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and > > 1. where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Nature of harm should the Applicant engage in further criminal or other serious conduct

1. Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community's tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable (Paragraph 8.1.2(1)).[1]
2. The harm that may occur if the Applicant were to reoffend is "informed by the nature of his offending to date".
3. In a very narrow sense, the Applicant has been charged with, and pleaded guilty to, 2 offences involving protected wildlife. Reference was made by the sentencing judge, to elements of animal cruelty in this offending. This was supported by expert evidence from Dr Weller.[100] It is unacceptable that this should occur again.
4. The Applicant's says in mitigation that his "offending did not involve violence, physical or mental harm to individuals... did not result in the death or permanent harm of the animals or involve violence or intended abuse toward them".[101]
5. This submission demonstrates either a lack of insight, or a callous disregard for the welfare of the animals concerned. It was good fortune, in the form of a timely intervention by customs officers, not any steps taken by the Applicant, that possibly prevented serious harm coming to the animals. As Judge Hanley SC observed, "[t]he 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".[102]
6. At a broader level, the Applicant's offending demonstrates a preparedness to engage in unlawful, premeditated, deceptive, and even cruel conduct, for personal financial gain.

Likelihood of engaging in further criminal or other serious conduct

1. The Applicant has committed very serious offences for personal financial gain.
2. The fact that this has in the past been confined to the offences of which he has been convicted, may speak as much to the happenstance of detection or opportunity, as it does to any inclination to act dishonestly. In other words, a lack of other convictions, is not, in and of itself, positive evidence of general good character
3. He has lied about his offending.[103]
4. The Applicant urged the Tribunal to take a rather narrow view of the Applicant's offending.
5. If the Applicant's offending is narrowly characterised, for example, as offending regarding the attempted export of protected lizards or wildlife, the risk of him trying to do this again, may indeed be small. He may lack the opportunity in the future, for example.
6. If, however, the Applicant's offending is characterised more broadly as knowingly committing a serious or very serious, premeditated crime of dishonesty, for financial gain, the risk assessment may be quite different.
7. The Applicant has given evidence that he has been financially supported by his father and his father's "network" since he first came to Australia. If indeed his father has now recently been imprisoned in China, that support may be at an end. This alone may place the Applicant in a more vulnerable financial position than he was, prior to his imprisonment.
8. The Applicant has given different accounts of his guilty conduct ranging from posting parcels for others, to his more recent admission of his actual offending.
9. If his claims about his involvement with criminal "loan sharks" were to be accepted, he has engaged with dangerous criminals and to become indebted to them. According to him, he may continue to owe them money, although he resiled from this claim somewhat in his evidence. This may also be a risk factor for further offending. The fact that the "loan sharks" are apparently in China, does not exclude the possibility of them having compatriots in Australia, or bringing pressure to bear on the Applicant, by threatening his father, or others in China.
10. No mention of owing money to "loan sharks", was put in mitigation to Judge Hanley SC in his sentencing hearing on 18 May 2021.
11. No such concern was raised with Dr Jiang in her report of 19 July 2021. On the specific topic of returning to China, the report states:

"[THE APPLICANT'S] CONCERNS ABOUT HIS VISA STATUS

[The Applicant's] permanent visa has been cancelled as a result of his offences. [The Applicant] reports it is the primary exacerbator for his mental health. [The Applicant] explains he has a weak connection with China. He left China at the age of 17 and has no friends there. His mother and the uncle he was close to both passed away. His father is his only connection there.

[The Applicant] also believes his life would be tough if he returns to China, for the following reasons:

• [The Applicant] came to Australia at the age of 17 and has spent his whole adulthood here. He has adjusted to living and working in Australia and has gradually developed his local connections. China has developed and changed rapidly in the past 20 years, [The Applicant] does not believe he can fit in.

• [The Applicant] completed his tertiary education in Australia. His highest qualification diploma is not recognised in China. If he returns to China, it would be difficult to find a proper job with a stable income due to a lack of recognised qualifications, no local work experience and poor social network. [The Applicant] further discloses his father spent most of his savings on [The Applicant's]'s education in Australia and is currently living on his retirement payment. He will soon require financial support from [The Applicant] instead of supporting him.

• [The Applicant] does not have medicare and social welfare in China. He will likely have financial difficulties accessing psychological treatment. In addition, psychology and treatment for mental health issues are underdeveloped in China compared to western countries and stigma about mental health is still profound in China. This is also likely to cause significant disadvantages to [The Applicant's]'s employment, life and recovery.

In comparison, [The Applicant] reports he has developed strong connections in Sydney. As a business owner, he is an active community member in his local council area. He has also developed deep relationships with several individuals. One is his homestay landlord that [The Applicant] calls her'aunt'. [The Applicant] reports the aunt is caring and warm to him. They have been in touch for many years. He still visited her regularly before he was detained. [The Applicant] also has a close friend who runs an aquarium shop in Eastwood, NSW. Their friendship has lasted for many years, and they treat each other like a brother. For example, [The Applicant] would help look after the friend's store when he has other commitments.

[The Applicant] admits he felt pessimistic about relationships due to his unsuccessful experience until he met his current partner in early 2021. They have developed a deep level of understanding and trust and entered a committed relationship in March 2021. [The Applicant] reports his partner knows about his situation and chooses to stay in the relationship and support him. This made him feel blessed and also guilty. For the first time in many years, [The Applicant] reports he has found a purpose and hope for his life and future. They planned to get married and have a family, which, however, was interrupted by his incarceration."[104]

1. On 19 July 2021, lawyers acting for the Applicant made submissions on his behalf, seeking the revocation of the mandatory cancellation of the Visa. These submissions make no mention of "loan sharks" but do raise other issues that may cause him difficulties if he returned to China.[105]
2. No such concern was raised with Mr Watson-Monroe in his report of 11 October 2023. On the specific topic of returning to China, the report states "....a weak connection to China is noted, in the context of leaving China at the age of 17 and him having no close friends there...".[106]
3. The "loan shark" claims are first made in the Applicant's statement of 16 September 2023.[107] This corresponds with the filing of his SOFIC on the preceding day, in the lead up to his hearing in the AAT on 23 October 2023.[108]
4. If these claims are untrue, the Applicant has lied to the AAT and to this Tribunal in an attempt to bolster his case for revocation of his visa cancellation
5. Based on his current evidence, he now doesn't even know if the "loan sharks" are after him at all. This is not what he told the AAT in October 2023.[109]
6. I am not satisfied that the Applicant's claims regarding "loan sharks" have any substance.
7. If the Applicant's claims about his gambling history are true, it is far from clear that he has rehabilitated himself sufficiently to be able to manage, unsupervised in the community. He has done many courses, but the effect of these is unknown.
8. Further problem gambling would inevitably lead to financial pressures that may induce the Applicant to reoffend.
9. If these gambling claims are untrue, the Applicant has again lied to the Respondent and the Tribunal. I note that his past statements regarding his gambling history have ranged from a denial that he has a problem, to participation in gambling related rehabilitation programmes.
10. I note that Judge Hanley SC, commented on the lack of any objective supporting evidence for his claims of a gambling addiction and that "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 his offending behaviour".[110]
11. The Applicant's evidence to the AAT on this topic was inconsistent with his other statements.[111]
12. The Applicant has undertaken some courses and had counselling.[112]
13. He did not seek any gambling assistance between being interviewed by investigators on 9 August 2018 and the eve of his trial. It is reasonable to infer that this initial interaction was initiated by him, for the specific purpose of making submissions to the sentencing judge. It was not the spontaneous act of a person who has come to realise that he needs help.
14. The Applicant's relationship with Ms. HZ, is difficult to weigh as a possible protective factor.
15. His claims regarding his relationship with Ms. HZ are in my view, unreliable. She was not called as a witness. Her most recent statement raises the possibility of an underlying transactional basis for their relationship. She was not available to explain this.

"15. We used to talk the way that normal couples talk, but over time we have gradually become more like friends as we are not sure whether he can get his visa back. The legal process has taken so long. I am graduating soon and want to get my permanent residency here**. I am worried that he may not be able to give me what he promised because he might not be able to marry me and stay in Australia**. I don't like long-distance relationships because I want to see the person next to me often. I feel powerless."[113]

1. I am not satisfied that this relationship has any enduring quality, consistent with the Applicant's sometimes rather extravagant claims of devotion.[114]
2. For the reasons set out above, the Applicant's uncorroborated claims carry little weight.
3. I note the reports of Mr Watson Monroe and Dr Jiang. These reports are naturally based largely on what the Applicant has said. I note for example that Mr Watson-Monroe places some weight on the Applicant's support in his relationship with Ms. HZ.[115] The actual facts are, as observed above, unlikely to be as represented to Mr Watson-Monroe.
4. Everything turns on the Applicant's credibility when he claims that he will not reoffend. He says:

42. In my time in prison and immigration, I have tried to understand the problems that led me to think the way I did and to straighten myself out. My main focus has been dealing with my mental health and gambling addiction. I understand that, if I don't make the change myself, no one will be able to help me. At times, I have tried to downplay what I did. I feel so bad for doing that because I was not being honest to myself and lying to other people.

43. I had my first session with a psychologist, Dr Jiang, in March 2021, and I had a few more appointments with her after then before I went to prison. When I went into prison, I felt depressed, anxious and scared and I couldn't concentrate or sleep properly. I had a telephone conference with Dr Jiang in July 2021, when I was at Mannus, because of how I was feeling at that point.

44. I also saw the psychologist at Mannus and booked in for group sessions on mood management each week and for one-on-one sessions each month. In the group sessions, I and a few other prisoners talked about dealing with our mental health difficulties and strategies for living in an environment like prison, redirecting our thinking and coping with urges and cravings. I shared my experience of gambling, and other prisoners shared their experiences of alcohol and drugs.

45. While I was in Villawood, I was seeing a mental health nurse, psychologist or psychiatrist every fortnight. Since I have been in Melbourne, I have been seeing a psychologist on a weekly basis.

46. Since I have been in immigration detention, I have also participated in the SMART Recovery program.

47. From 25 August 2023 to 31 January 2025, I attended 153 online sessions of that program. Each session runs for 90 minutes. On Wednesdays, Ronan facilitates and, during the check-in time, he engages with each person in the group. On Fridays, Libby, who is a gambling counsellor, leads a gambling focused session. She presents slides and shares research, and we discuss gambling-related experiences, strategies and behavioural patterns. Through these sessions, I have learned strategies to prevent myself from going to a pub or casino. On Saturdays, Krista discusses the broader recovery journey and allows participants to bring up relevant topics. Anyone can contribute at any time.

48. From 7 September 2023 to 24 October 2024, while I was at Villawood, I also attended 31 in-person sessions held once every two weeks. After being relocated to Melbourne Immigration Detention Centre on 30 October 2024, I immediately joined the SMART Recovery group here. I have attended four sessions, but no attendance certificates were provided for these four sessions and unfortunately no further sessions have taken place since late November 2024.

49. In March 2024, I voluntarily enrolled in a lifetime self-exclusion with Betstop - the National Self-Exclusion Register and a four-year self-exclusion program with Clubs NSW.

50. I have also completed about 20 courses through Universal, an online training platform. These include courses on "Understanding Addictions", "Depression Management", "Stress Management", "Meditation", "Creating and Managing a Non-Profit Organisation", "Operations Management", "Anxiety Therapy" and "Decision Making Skills".

51. I truly believe I am not a risk to the community."[116]

1. I do not accept that the Applicant is a reliable witness.
2. I assess the Applicant as presenting at least a moderate risk of reoffending. In saying this I am speaking of offending in the broader sense of engaging in fraudulent or deceptive conduct, for financial gain. I accept that the Applicant is less likley to have an opportunity to engage in identical offences to those committed in the past, at least for the foreseeable future.
3. Any resumption of gambling by the Applicant would significantly elevate his risk of reoffending.

1. Primary consideration number one weighs heavily against revocation of the Applicant's visa cancellation.

(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
2. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. The Applicant came to Australia when he was almost 18 years old. His formative years were spent in China, not Australia.
2. The Applicant has studied here and has engaged in some paid employment.[117]
3. The Applicant has made some friends and has other connections in Australia. Some statements of support are before the Tribunal.[118]
4. The Applicant says:

20. I had many friends at the time that I was running my business. Most of my friends shared an interest in fresh water and saltwater aquariums, including fresh water and marine fish, tropical and cold species, and corals.

21. I met [S] in 2012 when I first went to his shop in Eastwood while exploring how other people run aquarium shops in the area. I just went to see if I could learn anything from him but we lived so close that we became close friends. While I was working for him, I would see him almost daily. I would go to his house very often, including for Christmas and Easter dinner, family events for his kids, Chinese New Year and other festivals. I would spend time with his son, [redacted name], who I have known pretty much from the day he was born. I am like a friend or uncle to him. We would do things like playing some soccer at the back of the shop. Sean is a good swimmer and has got to the championship for swimming at his school, which is one of the things I have missed out on while being in detention.

22. I met [RZ] through [S]. He was a regular customer at [S]'s shop, and over time we became good friends. He runs a logistics company in Sydney. He would call me to help him look after his tank. I would get a taxi to his house and fix the tank for him. He would sometimes invite me for dinner, and we would go to local events with his family. I would see his children, [redacted name] and [redacted name], at parties, and he would take them to my shop to visit me and see what I have in my shop.

23. I met [JW] back in about early 2013 at his place in Meadowbank. I was there to buy crystal shrimp, the kind you keep in aquariums. I had found him through Facebook while looking for people selling them. We became friends. When I opened my own shop and needed to find a source for tropical fish and freshwater species, he told me that he had a wholesale company, which I used. He would also come visit me in West Ryde and we would go to Korean barbecue near my shop.

24. I met [SZ], who was the [redacted] of Ryde, through social interactions. He first came as a customer to my shop, and we became acquainted because of his involvement in organising events in the Eastwood and Ryde area. I would often go to his office or house and help him with the setup for events like Chinese New Year celebrations, Easter shows, and firework displays. He and his family would occasionally visit my shop as well, just to say hello and see the fish I have in my store. We were close. He would often stop by my shop for a quick chat.

28. I met HZ at the start of 2021 at a group meeting of friends. We soon became boyfriend and girlfriend and started seeing each other on a daily basis. Two or three months later, we were actually living together. As I only had one bedroom with my homestay family, we moved into a place in Meadowbank. I would go back to Denistone to see my homestay family and look after my pets (lizards, snake and turtle).

29. I fell in love with HZ. After a very long time, I felt that I had found the right girl for me. I believe she can become the best support for my life, that she can look after me and I can look after her.

30. Soon after we became boyfriend and girlfriend, I told HZ that I had been charged. She just told me to listen to my lawyer and find the best solution to hopefully not go to jail. I felt so grateful that she had decided to stay with me because I know some people would just get scared and walk away.

52. If am allowed to stay in Australia, I understand that the Department may offer me a package to live in a hotel for a little while and I will try get a job as soon as I can and live in a rented place around Ryde. If I need to, I would ask [S] or [RZ] to live with them for a bit of time.

53. I am confident that I will be able to find a job because I have already put in my resume since September 2023 through an online app, Job Seekers, and have been contacted about jobs in cooking. I don't want to go back to working with animals, especially reptiles, because I don't want to have contact with breeders and associate with any criminal network again. I would rather cut them off.

54. I also want to go back to volunteer work in the area where I live in the near future.

55. I would also like to go back and see my homestay mother, [redacted name]. Her husband has now passed away. I would like to say sorry to her for not being able to pay the rent after I was set into prison and for not being able to move my stuff out more quickly.

56. I have tried to hold onto the relationship with HZ to now because I really love her and know she cares about me as well. If I am released, after I have found a place to live, I would like to see her for brunch and a chat. There are so many things I want to discuss with her. After a few unsuccessful relationships in my past, I finally found her, and no matter what the challenges are, I don't want to give up our relationship.

57. I feel a guilty about all the other people I have involved in my criminal and revocation process. I want to see them all and apologise for not seeing them for so many years and thank them for their support. I want to be able to help my friends like they have helped me in the past few years."[119]

1. He says that he has done voluntary community work.[120]
2. His employment record does not correspond with his apparent financial dealings. For example, some of his reported gambling expenses are inconsistent with his disclosed legitimate income. He explains this by pointing to his ongoing external support by his father.
3. Overall, his positive contribution to the Australian community has been at best modest.
4. The Applicant met Ms. HZ in early 2021 and they commenced living together on about 1 March 2021.[121]
5. They were living together for about 11 weeks before the Applicant was imprisoned. He has not returned to the community.
6. The Applicant's connection to Ms. HZ was apparently not mentioned in sentencing submissions made to Judge Hanley SC on 18 May 2021.[122]
7. Since his incarceration however, their relationship has apparently developed to the point where he says in his statement of 16 September 2023:

14.I wish to provide detailed evidence concerning the significant and enduring relationship I share with HZ. Our relationship has faced various challenges due to my physical absence from the Australian community during my time in both prison and immigration detention.

15.I believe it is essential to highlight the emotional struggles [HZ] has endured because of my absence and the profound impact that my potential deportation would have on her.

16.[HZ] and I have been in a committed and loving relationship for a significant period. Our connection has grown stronger over the years, and we have supported each other through various ups and downs.

17.Despite the hardships we have faced, [HZ]'s unwavering support and love have been a constant source of strength for me.

18.Throughout my time in both prison and immigration detention, [HZ] has remained by my side as a devoted and supportive partner. Her emotional support, encouragement, and commitment to our relationship have been invaluable. She has demonstrated exceptional strength and resilience while dealing with the challenges of having a loved one detained.

19.[HZ] has experienced significant emotional struggles because of my physical absence from the Australian community. The separation and uncertainty surrounding my situation have taken a toll on her emotional well-being. Her love and dedication to me have come at a personal cost, and I am deeply grateful for her unwavering commitment.

20.At present, [HZ] and I maintain our connection through telephone calls, text messages, and video calls. These interactions are a lifeline for both of us, allowing us to bridge the physical gap that separates us. Despite our efforts to stay connected, we both deeply miss each other and long for the day when we can be together again.

21.If I were to be deported from Australia, the emotional consequences for [HZ] would be devastating. She would be heartbroken by the separation and the uncertainty of when, or if, we would be reunited. The impact on her emotional well-being and mental health would be profound, and it is a scenario we both dread.

22.The relationship I share with [HZ] is characterised by deep love, commitment, and support. Her emotional struggles during my absence from the Australian community and the profound impact my potential deportation would have on her cannot be overstated. I hope that this evidence helps convey the depth of our connection and the emotional consequences we face if we are forced apart."[123]

1. There is confusing evidence about the nature of the Applicant's personal and financial relationship with Ms. HZ.[124]
2. I do not accept that the Applicant's relationship with Ms. HZ is as he claims it to be. I do not accept that this relationship, if it were to continue in whatever form, would be an enduring intimate one.
3. Ms. HZ is only a temporary visa holder.[125] She is a Chinese national. She is not an Australian citizen, Australian permanent resident, or a person who has a right to remain in Australia indefinitely.
4. The Applicant's links to "the Australian Community" and what weight, if any, his connection to Ms. HZ should be given, as she holds only a temporary student visa was raised by the Respondent. This is an interesting issue.
5. There is a broad spectrum of people who may constitute the "Australian Community" at any given moment in time. At one end of the spectrum there are citizens. At the other there are prohibited non-citizens, either hiding in the community, or in detention. There are many shades of connection in between, from permanent resident visa holders to travellers on tourist visas.
6. Ms. HZ has a student visa. Unless things change, this visa will expire soon, and she will have to return to China. She may of course apply for another visa. Her statement suggests that she may well do this. If she does, that visa may or may not be granted. It is not for the Tribunal however, to speculate on what she may do in the future and what decision may ultimately be made if she applies for another visa. As things presently stand, she has only a temporary visa. She is, like the Applicant, a Chinese national.
7. As previously mentioned, Ms. HZ was not called.
8. I accept that the Applicant has some ongoing connection to Ms. HZ, but I am not satisfied that this connection is as deep and enduring as the Applicant has variously claimed. In any event, she may not remain in our community for much longer. Overall, this connection carries little weight.
9. The Applicant has a connection with his former "homestay mother".[126]
10. The Applicant says that he has developed a connection with various minor children. This is dealt with in more detail below.[127]This connection is limited.

1. This consideration weighs slightly in favour of revocation of the cancellation of the Applicant's visa

Primary Consideration 4: The best interests of minor children in Australia

1. Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
2. Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); > > b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; > > c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; > > d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; > > e) whether there are other persons who already fulfil a parental role in relation to the child; > > f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); > > g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; > > h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

3. The Applicant has no children.
4. He has listed 5 minor children of some friends in his materials.[128]
5. He says that his relationship is like that of "an uncle".
6. He has never performed a parental role and there is no suggestion that if he were returned to the community, he would do so.
7. In his SOFIC he states:

"57. The following minor children in Australia would be impacted by a decision not to revoke the mandatory cancellation decision:

58.The applicant has an established and significant relationship with at least five minor children in Australia, akin to that of an uncle. This relationship is characterised by the applicant's close ties with both the children and their parents.

59.The applicant has been an integral part of the lives of these five minor children, fulfilling the role of an uncle. This designation is not merely a formality but reflects the genuine emotional connection and care the applicant has for these children.

60.The applicant maintains a remarkably close and ongoing relationship with the parents of the minor children. This relationship extends beyond mere acquaintance and is marked by mutual trust, respect, and support.

61.Over the years, the applicant has consistently provided emotional support to the minor children. This support has encompassed times of emotional distress, challenges at school, and other personal difficulties faced by the children.

62.The applicant regards these five minor children as part of his own extended family. The bond they share goes beyond blood relations, and the applicant considers their wellbeing and happiness a personal responsibility.

63.It is evident from the applicant's actions and statements that he would go to great lengths to ensure the welfare and happiness of these children. His commitment to their happiness and well-being is unwavering.

64.In conclusion, the evidence presented underscores the meaningful relationship that the applicant shares with at least five minor children in Australia. This relationship is characterised by the applicant's uncle-like role, close ties with the children and their parents, historical emotional support, and a profound commitment to their wellbeing.

65.The children's strong emotional connection to the applicant further substantiates the importance of his presence in their lives and the adverse consequences they would face if he were to be deported from Australia.

66.This primary consideration weighs in favour of revocation of the mandatory cancellation decision. It is open to the Tribunal to give considerable weight to this primary consideration given the number of minor children in Australia, the length of time as to when all children will reach the age of majority and the long-standing nature of the relationship between the applicant and the children."[129]

1. I accept that if the Applicant were to remain in Australia and not to reoffend, he may be an occasional positive presence in the lives of these children.

1. They have managed without him in the community since 2021, without any clear adverse consequences.

1. This relationship could be maintained electronically if he were to be removed.

1. Having regard to all of the above, primary consideration 4 weighs at best slightly in favour of revocation of the Applicant's visa cancellation

Primary Consideration 5 - The Expectations of The Australian Community

1. In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
2. Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a) acts of family violence; or

(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f) worker exploitation.

1. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
2. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

3. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant's circumstances or evidence about those expectations. The Tribunal is to be guided by the Government's views as to the expectations of the Australian community, which are to be found in the Direction.[130]

1. Paragraph 8.5 contains a statement of the Government's views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

Analysis - Allocation of Weight to Primary Consideration 5

1. Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
   1. the Applicant's criminal record as set out in Annexure B.
   2. the other matters set out above.
   3. the gravity of the Applicant's offending against the community, as discussed in some detail in the context of Primary Consideration1.

1. Primary consideration 5 weighs heavily against revocation of the cancellation of the Applicant's visa.

1. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.

1. Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.

(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope ofthe obligations that Australia is committed to implementing.

(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

Non-citizens covered by a protection finding:

1. Paragraph 9.1.1 of the Direction directs a decision-maker to take into account the following:

(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.

(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.

(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.

Non-citizens not covered by a protection finding

1. Paragraph 9.1.2 of the Direction directs a decision-maker to take into account the following:

(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.

(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.

(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

1. There is no protection finding in this case.
2. The Applicant first made a protection claim on or about 16 September 2023, just before the AAT proceedings in October 2023.
3. The Applicant has not applied for a Protection Visa.
4. The Issue of "loan sharks" is dealt with in some detail above.
5. 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.
6. 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.
7. 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.
8. More importantly however, for the reasons set out above, I am not satisfied that the Applicant is a reliable witness.
9. I am not satisfied that he has in fact ever borrowed money from "loan sharks" in China.
10. 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.
11. 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.
12. 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.
13. Overall, this Other Consideration (a) weighs at best slightly in favour of revocation.

1. 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.

2. I note the Applicant's submissions contained in his SOFIC filed on 16 September 2023.[131]
3. The Applicant is aged 38.
4. He spent his formative years until he was aged almost 18 in China.
5. There are no substantial language or cultural barriers, although there would no doubt be a period of readjustment required.
6. 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.
7. 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.
8. A return to China may aggravate any mental health condition.
9. The Applicant has limited support networks in China. This is especially so if indeed his father has been recently imprisoned.
10. This consideration (b) weighs in favour of revocation.

1. 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.

1. The Applicant has previously claimed that this Other Consideration is engaged.[132]
2. He now makes no such claim. In any event, there is no evidence to support it.
3. This Other Consideration (c) is neutral.

1. It is necessary to weigh up all of the primary and other considerations.
2. Primary consideration 1 weighs heavily against revocation.
3. Primary consideration 2 is neutral.
4. Primary consideration 3 weighs slightly in favour of revocation.
5. Primary consideration 4 weighs at best slightly in favour of revocation.
6. Primary consideration 5 weighs heavily against revocation.
7. Other consideration (a) weighs slightly in favour of revocation.
8. Other consideration (b) weighs in favour of revocation.
9. Other consideration (c) is neutral.[133]
10. 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.
11. 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.
12. 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.
13. 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.
14. The community's tolerance of the risk of any crime so characterised being committed, is very low.
15. 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.
16. I am not satisfied that any assurance given by the Applicant about his future conduct can be relied upon.
17. 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.
18. 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.
19. 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.
20. Overall, the factors weighing in favour of revocation are significantly outweighed by Primary Considerations 1 and 5.
21. In my view, there is therefore not "another reason" pursuant to s501CA (4)(b)(ii) to revoke the original decision.

1. 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].................................

Applicant's Statement of Facts, Issues and Contentions (03/03/2025)

Remitted Respondent's Statement of Facts, Issues and Contentions (24_/03/2025_)

[4] Ibid 352-371; Exhibit 4: Applicant's Tender Bundle 2, 56-72.

[33] This is inconsistent with the "loan shark" claims.

[35] This is a different and unelaborated account. None of the Applicant's friends mention having lent him money to pay his bills.

[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.

[57] This is yet another denial of his offending.

[58] This is again inconsistent with his report to Dr Jiang in May 2021.

[59] Exhibit 3: Hearing Bundle, 204-210.

[63] This submission is contrary to his assertions that he did not have a gambling problem.

[64] This submission is contrary to his assertions that he did not have a gambling problem.

[65] This submission seems contrary to his assertions about the relationship.

[66] Exhibit 3: Hearing Bundle, 280-302.

[70] This is a very different account to the one he has given more recently. Ie. Borrowing to cover a former girlfriend's gambling debts.

[71] Exhibit 3: Hearing Bundle, 469-470.

[86] For example: "Smart Recovery" at ibid 339-342, 381-398, 640-851.

[87] See expert reports of Dr Jiang and Mr Watson-Monroe at ibid 853-946.

[88] Exhibit 3: Hearing Bundle, 626-7 at [52]-[57].

[91] On 21 June 2024, the former applicable direction, Direction No. 99 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 110.

[92] [2018] FCA 594.

[95] Exhibit 6: Applicant's Further Submissions (6 May 2025), [6].

[97] See Section 501(3A), 501(6)(a) and 501(7)(c) of the Act.

[99] Ibid, see Judge's remarks at 53-57.

[100] Exhibit 3: Hearing Bundle, 241-246.

[112] Ibid 626, 640-851; Exhibit 4: Applicant's Tender Bundle 2, 1.

[113] Exhibit 3: Hearing Bundle, 634 at [15].

[115] Exhibit 4: Applicant's Tender Bundle 2, 64 at [5].

[116] Exhibit 3: Hearing Bundle, 625-627 at [42]-[51].

[117] Exhibit 3: Hearing Bundle, 334-5.

[119] Ibid 621-627 at [20]-[24], [28]-[30], [52]-[57].

[130] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.