Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2025] NSWCATOD 6 Hearing dates: 16 – 19 October 2023, 23 – 26 October 2023, 30 October – 2 November 2023, 9 November 2023, 21 November 2023, 23 November 2023, 5 – 7 December 2023, 13 December 2023, 2 May 2024, 6 May 2024 Date of orders: 21 January 2025 Decision date: 21 January 2025 Jurisdiction: Occupational Division Before: D Dinnen, Senior Member Decision: (1) The Respondent's decision to revoke the Applicant's Master Security Licence is affirmed. (2) The 24 August 2022 stay of the Respondent's decision is lifted 28 days after the date of this decision. Catchwords: ADMINISTRATIVE REVIEW – trades – licensing of particular trades – security industry – master security licence – revocation – suitability to hold master security licence – fit and proper person – public interest – provision of false and misleading records to regulators Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Fines Act 1996 (NSW) Migration Act 1958 (Cth) National Vocational Education and Training Regulator Act 2011 (Cth) Public Health Act 2010 (NSW) Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (NSW) Security Industry Act 1997 (NSW) Security Industry Regulation 2016 (NSW) Standards for Registered Training Organisations (RTOs) 2015 (Cth) Surveillance Devices Act 2007 (NSW) Cases Cited: AJO v Director-General, Department of Transport (NSW) [2012] NSWADT 101 Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Australian Securities and Investments Commission (ASIC) v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Axiotis v Commissioner of Police [2004] NSWADT 112 Bannister v Walton (1993) 30 NSWLR 699 Bercove v Hermes (No 3) (1983) 51 ALR 109 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing Ammunition Pty Ltd v SafeWork NSW (No 2) [2016] NSWSC 988 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Bushell v Repatriation Commission (1992) 175 CLR 408; [1992] HCA 47 Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 Commissioner of Police v EMB [2021] NSWCATAP 63 Commissioner of Police v Fakhouri [2021] NSWCATAP 226 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Damjanovic v York Agencies Pty Ltd [2003] NSWCA 222 Director of Public Prosecutions v Smith [1991] 1 VR 63 DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; [1979] AATA 179 Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16 FRW v Commissioner of Police, NSW Police Force [2023] NSWCATOD 21 Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; [1955] HCA 28 In the application of Roderick Mackay Sutherland and Sule Arnautovic [2014] NSWSC 821 Jeans v Cleary [2006] NSWSC 647 Jones v Dunkel (1959) 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Ling v Pang [2023] NSWCA 112 Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43 McDonald v Director-General of Social Security (1984) 1 FCR 354 Meacham v Commissioner of Police [2020] NSWCATAP 107 Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 Metleg v Commissioner of Police, NSW Police Force [2023] NSWCATAD 17 Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40; [1996] FCA 395 Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163 Mt Gibson Manager Pty Ltd v Deputy Commissioner of Taxation (1997) 81 FCR 335 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 O'Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30 Re Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 Re Houvardas and Tax Agents' Board of New South Wales (1991) 23 ALD 505 Re Kevin and Minister for Capital Territory (1979) 2 ALD 238 Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 Re Russell and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 52 Rejfek v McElroy (1965) 112 CLR 517; [1965] HCA 46 Smith v Commissioner of Police & NSW Fair Trading [2014] NSWCATAD 184 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Soliman v University of Technology, Sydney (2012) 207 FCR 277; [2012] FCAFC 146 STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATOD 166 STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370 Star Training Academy Pty Ltd v Commissioner of Police (NSW) [2023] NSWSC 153 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 Texts Cited: Hon. J.D. Heydon QC, Cross on Evidence, Australian Edition (Looseleaf; LexisNexis) Category: Principal judgment Parties: Star Training Academy Pty Ltd (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: J King (Applicant) Z Heger SC with A Hammond (Respondent) Solicitors: Piper Alderman (Applicant) Maddocks (Respondent) File Number(s): 2022/00249166 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the names of all students referred to during the hearing, in evidence and submissions are anonymised and the disclosure of their names is restricted to the parties to these proceedings. Pursuant to s 64(1)(b) and (c) of the Civil and Administrative Tribunal Act 2013 the publication and reporting of the names of the anonymised individuals referred to in these reasons for decision is prohibited. Note: A Reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION Factual Allegations Allegation 1: the Applicant provided false and misleading records to SafeWork NSW Allegation 2: the Applicant provided false and misleading records to Training Services NSW Allegation 3: the Applicant granted a security qualification to a student who was not competent Allegation 4: the Applicant provided its security industry regulator, SLED, with workbooks which had been altered and thereby misrepresented student records Allegation 5: the Applicant's Nominated Person, Mr Javaid Malik (Mr Malik) engaged in improper and inappropriate conduct towards students enrolled in security courses conducted by the Applicant on at least two occasions Allegation 6: the Applicant engaged in improper conduct towards former employees. Allegation 7: the Applicant did not comply with the Interim Regime established and in force during Supreme Court proceedings Allegation 8: the Applicant failed to follow COVID-19 safety measures Allegation 9: attempt to pay a witness to give false evidence Legal Principles Jurisdiction The SI Act Issues for determination Fitness and propriety The public interest: principles Onus and standard of proof Previous proceedings The Witnesses Javaid Malik Jeremy Charles McNamara Robert Balmer Stephen John Yates Shane Russell Smith John Stoodley Urooj/Sarah Ilyas SLED's letters of support Amna Ilyas Paul Lewis Relevant Factual Findings Allegation 1: the Applicant provided false and misleading records to SafeWork NSW Forgery allegations Who completed and signed the documents, and when? Whether Mr Balmer attended the Applicant's Granville campus on 9 February 2021 That Mr Yates represented himself to the students of Traffic Control Course TTC002816 on 9 February 2021 as Mr Balmer That Mr Yates was sufficiently unqualified to conduct the course that a number of students complained That Mr Balmer did not mark or sign the assessments, the Evidence of Identity and Record of Training or the Certificates of Completion for the students, and each of Mr Malik and Mr Balmer knowingly gave false evidence when they said he did so That on 9 February 2021 Mr Yates completed section 3 of the students' Evidence of Identity and Record of Training in his own name That at around 4pm, Mr Yates forged Mr Balmer's signature on the students' Certificates of Completion in the presence of the students That Mr Malik consciously decided not to inform SafeWork NSW that Mr Yates had conducted the course on 9 February 2021, never instructed his staff to advise SafeWork NSW of this, and rather maintained the position with SafeWork that Mr Balmer had done so That Mr Malik had an intention to mislead SafeWork NSW by the submission of the notification on 16 February 2021, or by deciding not to inform SafeWork that Mr Yates had taken the course That Mr Malik had the intention to mislead SafeWork NSW by forging Mr Balmer's signature on the assessments and the evidence of identity documents Conclusion Allegation 2: the Applicant provided false and misleading records to Training Services NSW Buddeke's investigation and report Paul Lewis Completion of the students' paperwork Receipt of the course materials Conduct of the Raymond Terrace Course Completion of the assessment documentation Payment for the Raymond Terrace Course Findings regarding Paul Lewis' evidence Mr Malik's knowledge Conclusion Allegation 3: the Applicant granted a security qualification to a student who was not competent Allegation 4: the Applicant provided its security industry regulator, SLED, with workbooks which had been altered and thereby misrepresented student records June 2021 documents Background facts Consequences of the conduct Remedial sessions Conclusion Allegation 5: the Applicant's Nominated Person, Mr Javaid Malik (Mr Malik) engaged in improper and inappropriate conduct towards students enrolled in security courses conducted by the Applicant on at least two occasions Ms R Ms S Shane Smith Conclusion Allegation 6: the Applicant engaged in improper conduct towards former employees Visa assistance Sarah's visa Amna's visa Sarah Ilyas: The $8168 debt Repayment Sarah Ilyas: issued qualifications R36 and A55 Mr Malik's contact with Sarah's new employer Breakdown of the relationship Conduct by Mr Malik towards Sarah Ilyas Conduct by Mr Malik towards Amna Ilyas Harassing conduct Conclusion Allegation 7: the Applicant did not comply with the Interim Regime established and in force during Supreme Court proceedings Mr McNamara Conditions Condition 4 Auditors' discretion Pressure placed on trainers Mr McNamara's opinion Audited non-compliances Criminal element SLC053 SLC054 SLC055 SLC056 SLC057 SLC062 SLC069 SLC073 SLC074 Other requirements Conclusion Allegation 8: the Applicant failed to follow COVID-19 safety measures What occurred on 29 July 2020 Condition 8 Conclusion Allegation 9: attempt to pay a witness to give false evidence Attempts to procure Bob Lewis The introduction of the allegation The evidence Findings on the evidence Summation Conclusion Orders REASONS FOR DECISION 1. Star Training Academy Pty Ltd (the Applicant) is the holder of a master security licence numbered 000101318 (Master Security Licence) issued on 17 October 2014 under the Security Industry Act 1997 (NSW) (the SI Act). The Applicant's business includes the delivery of courses and training in relation to the security industry pursuant to s 27A of the SI Act, for which a security licence is a prerequisite. 2. On 24 June 2022, a delegate of the Commissioner of Police, NSW Police Force (the Respondent) made a determination to revoke the Master Security Licence (Revocation Decision). On 19 August 2022, a delegate of the Respondent conducted an internal review of, and affirmed, the Revocation Decision (Internal Review Decision). 3. The Internal Review Decision concluded that it would be contrary to the public interest for the Applicant to continue to hold a Master Security Licence (s 26(1)(d) of the SI Act), and that the Applicant is not a "fit and proper person" to hold a Master Security Licence (s 26(1A) of the SI Act). 4. By application dated 22 August 2022, the Applicant applied to the Tribunal for administrative review of the Internal Review Decision pursuant to ss 9 and 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). 5. On 24 August 2022, by consent, the Tribunal ordered that the Internal Review Decision be stayed until further order. 6. The hearing took place over 21 days during which the following people gave evidence and were cross examined: Javaid Malik (Mr Malik), Jeremy McNamara, Wasim Malik, Robert Balmer, Asif Imran Aslam, Fahim Malik, Juliana Yazbeck, John Leggett, Stephen Yates, John Stoodley, Michael de Marillac, Shane Smith, Sarah Ilyas, Mr A, Stephen Buddeke, Mr K, Mr S, Ms S, Ms H, Sharyn Byrnes, Ms M, Amna Ilyas, Diane Burge, Tony Vulic, Wendy Au and Paul Lewis. I address the evidence before the Tribunal below in more detail. 7. In these reasons for decision, I have anonymised the names of students who gave evidence in the proceedings or were referred to in the parties' evidence and submissions, pursuant to s 64(1)(a) of the CAT Act. I also include as an annexure to these reasons a table identifying each of the exhibits tendered in these proceedings, the date of record, and where they can be located in the 19 court book volumes. Factual Allegations 1. The Respondent relied on nine separate allegations to support its submissions that the Applicant's Master Security Licence should be revoked and its decision therefore affirmed, on the basis of the Applicant and Mr Malik's fitness and propriety, and the public interest. Those allegations were: 1. Allegation 1: the Applicant provided false and misleading records to SafeWork NSW; 2. Allegation 2: the Applicant provided false and misleading records to Training Services NSW; 3. Allegation 3: the Applicant granted a security qualification to a student who was not competent; 4. Allegation 4: the Applicant provided its security industry regulator, Security Licensing and Enforcement Directorate within the NSW Police (SLED), with workbooks which had been altered and thereby misrepresented student records; 5. Allegation 5: the Applicant's Nominated Person, Mr Javaid Malik, engaged in improper and inappropriate conduct towards students enrolled in security courses conducted by the Applicant on at least two occasions; 6. Allegation 6: the Applicant engaged in improper conduct towards former employees; 7. Allegation 7: the Applicant did not comply with the Interim Regime established and in force during Supreme Court proceedings in which it was involved; 8. Allegation 8: the Applicant failed to follow Covid-19 safety measures; and 9. Allegation 9: Mr Malik proposed to Mr Bob Lewis, that he would pay Mr Paul Lewis an amount of money in return for Mr Paul Lewis providing a signed document confirming that he did take the Work Health and Safety Course in Raymond Terrace (Raymond Terrace Course) from September 2016, and that Mr Malik intended that that offer would be communicated to Mr Paul Lewis through Mr Bob Lewis. 1. Allegations 1 through 6 were found to be substantiated by the Respondent and formed the basis for the conclusions reached in the Internal Review Decision. Allegations 7 through 9 were allegations raised by the Respondent following its Internal Review Decision, as additional reasons to support the Tribunal finding that the Applicant and Mr Malik were not fit and proper persons, and that it was not in the public interest for the Applicant to hold a Master Security Licence. 2. The Respondent's allegations were initially particularised in their Outline of Submissions dated 12 April 2023. During the hearing it became necessary for the Tribunal to direct the Respondent to clarify and further particularise the allegations which were being relied upon and pressed. Correspondence between the parties dated 1 to 3 November 2023 regarding the Respondent's particularisation of the allegations against the Applicant was tendered by the Applicant as Exhibit A66, and was relied upon by both parties in that respect. Allegation 1: the Applicant provided false and misleading records to SafeWork NSW 1. The Respondent alleged that the Applicant provided false and misleading records to SafeWork NSW in relation to a Traffic Control Course TTC002816 delivered by the Applicant on 9 February 2021. In opening submissions, the Respondent specified the following in relation to Allegation 1: "50. This issue relates to Traffic Control Course TTC002816 delivered by Star on 9 February 2021. 51. To deliver training and assessment for Traffic Control courses, a person must be approved as a trainer by SafeWork NSW, the responsible regulator (Bundle, p 1046 at [38]). 52. It is accepted at AS [37]-[38] that Traffic Control Course TTC002816 was run by Mr Stephen Yates in circumstances where he was not a trainer approved by SafeWork NSW to deliver the course. While Mr Yates was subsequently approved as a trainer, this did not occur until 19 February 2021. Star's position now is at odds with the position taken by Mr Yates in an interview with SLED, in which he denied running a traffic control course prior to his approval (Bundle p 1268-9, Q293-299; p 1275, Q351-356). 53. Star's paperwork for Traffic Control Course TTC002816, submitted on 16 February 2021, indicated that the training had been delivered by Mr Robert Balmer (replacing Ms Christina Kefalidis at short notice due to illness) (Bundle, p 1368-9). Both Ms Kefalidis and Mr Balmer were trainers approved by SafeWork NSW to deliver the course. 54. Star accepts at AS [39] that the paperwork for Traffic Control Course TTC002816 was false. 55. In essence, Star submits that it has a reasonable explanation for its conduct. Its position is that: a. it was appropriate to have an unqualified trainer in circumstances where Mr Balmer came to work on the day but became unwell and students enrolled in the course had already arrived at the campus (Bundle, p 1337 at [10]); b. Mr Balmer returned to the campus in the afternoon to mark the written assessments and issue the certificates to the students (Bundle, p 1338 at [16]); and c. Mr Malik instructed Star administrative staff to inform SafeWork NSW that Mr Yates had delivered the course, but they failed to do so (Second Malik Affidavit at [35]-[36]; Bundle p 1338 at [17]-[19]). 56. By contrast, Ms Sarah Ilyas's evidence is that: a. a number of students complained about Mr Yates' competence to deliver Traffic Control Course TTC002816, and Mr Malik was forced to offer a monetary incentive to appease them (Bundle, p 1047 at [41]; Sarah Ilyas Affidavit at [51]-[53]); b. she personally observed Mr Malik forging Mr Balmer's signature on paperwork for Traffic Control Course TTC002816 (Bundle, p 1047 at [42]; Sarah Ilyas Affidavit at [54]); c. she had an argument with Mr Malik about his dishonesty in relation to Traffic Control Course TTC002816, and it was the proximate cause of her resignation from Star (Bundle, p 1047 at [43]; Sarah Ilyas Affidavit at [55]); 57. Ms Amna Ilyas's evidence is: a. that Mr Balmer was not present at the Star office on 9 February 2021 (Amna Ilyas Affidavit at [42]); b. consistent with Ms Sarah Ilyas' evidence about students' complaints about Mr Yates' competence (Amna Ilyas Affidavit at [44]-[45]); and c. that Mr Malik did not give her or the other administrative assistant instructions to inform SafeWork NSW that Mr Yates had delivered the course (Amna Ilyas Affidavit at [49])." 1. In A66, Allegation 1 was further particularised as: "6. The Applicant provided false and misleading records to SafeWork NSW when it notified SafeWork NSW on or around 16 February 2021 that Robert Balmer was the trainer for the Traffic Control Course conducted at Star on 9 February 2021: see s 58 Bundle p 1368-9. 7. This was false and misleading in circumstances where Robert Balmer did not in fact deliver the course on 9 February 2021; Stephen Yates did. This information was false and misleading irrespective of whether Robert Balmer marked and signed the assessments. 8. The records were provided to SafeWork NSW by administrative staff. Javaid Malik, knowing that SafeWork NSW had been notified Robert Balmer was the trainer for 9 February 2021 but knowing that Stephen Yates had delivered the training, failed to take steps to notify SafeWork NSW that Stephen Yates had delivered the training with the intention of misleading SafeWork NSW. 9. Mr Malik's intention to mislead SafeWork NSW by the submission of the notification at s 58 Bundle p 1368-9 is further evidenced by the fact that the Applicant also prepared false and misleading records concerning the training on 9 February 2021, namely: 9.1 at least one Statement of Completion (Ms M at Ex R25), which was false and misleading in that it purported to be signed by approved trainer Robert Balmer when in fact it had been signed by Javaid Malik using Robert Balmer's signature or alternatively (with Mr Malik's knowledge) Stephen Yates using Robert Balmer's signature; 9.2 at least two assessments (belonging to Ms M at Ex A32 and another student at Ex JM-1 p 167-175), which were false and misleading in that they: (a) purported to be marked by approved trainer Robert Balmer, when in fact (with Mr Malik's knowledge) they were marked by Stephen Yates; and (b) purported to be signed by approved trainer Robert Balmer when in fact they had been signed by Javaid Malik using Robert Balmer's signature; and 9.3 an evidence of identity document for Ms M (Ex A34) which was false and misleading in that it purported to be signed by Robert Balmer when in fact it had been signed by Javaid Malik using Robert Balmer's signature or alternatively (with Mr Malik's knowledge) Stephen Yates using Robert Balmer's signature. 10. Mr Malik's intention to mislead SafeWork NSW by the submission of the notification at s 58 Bundle p 1368-9 is further evidenced by the fact that Mr Yates (with Mr Malik's knowledge) introduced himself to students on 9 February 2021 as "Bob", thereby impersonating approved trainer Robert Balmer." Allegation 2: the Applicant provided false and misleading records to Training Services NSW 1. In opening submissions, the Respondent specified the following in relation to Allegation 2: "58. This issue concerns an investigation into Star completed by Training Services NSW on 25 October 2020. Training Services NSW oversees the "Smart and Skilled program", which provides government funding for certain vocational training courses. Star was formerly an approved provider of "Smart and Skilled" training. 59. Training Services NSW's investigation report is at pages 500-508 of the Bundle. The author of the report, Mr Stephen Buddeke, has been summoned to give evidence in this proceeding (see Winram Affidavit at [11]-[13]). The attachments to Mr Buddeke's investigation report have been summonsed by Star, and portions will be tendered by the Commissioner in the proceeding. 60. In its investigation, Training Services NSW found that Star had engaged in the following "Events of Default" against its Smart and Skilled Contract (Bundle, p 502, at [1.1]): a. failed to ensure that all information it provided to Training Services NSW (including Training Activity Data) was true, accurate, complete, correct and not misleading in any way; and b. failed to act in good faith and not act in any way that could be seen to be unethical, reckless, illegal or dishonest conduct or do anything that may bring into disrepute or be detrimental to Training Services NSW, Smart and Skilled, or the NSW vocational education training market (separately subsidised and non-subsidised) by fabricating evidence and then using that fabricated data. 61. Training Services NSW found that Star had used fabricated data in relation to a cohort of 10 students enrolled in a Certificate IV in Work Health and Safety to fraudulently received $64,740 in Government subsidies (Bundle, p 502, at [1.6], p 507, at [5.15]-[5.16]). As of 31 May 2022, Training Services NSW was seeking the repayment of subsidies and loadings totalling $105,210.80 from Star (Bundle, p 2173-4). As a result of the investigation, Star is prohibited from applying to be a "Smart and Skilled" training provider until at least November 2023 (three years from the report) (Bundle p 1374-5). 62. Mr Paul Lewis, a formal employee of Star who provided information to Training Services NSW, has provided evidence relevant to this issue in the Lewis Affidavit. His evidence is that: a. though he initially proposed teaching a Certificate IV in Work Health and Safety to a cohort of 10 students in the Raymond Terrace area under the auspices of Star, he never received the manuals, learning guides and books from Star and the course did not proceed; b. in October 2017 he became aware that despite this, the students proposed for the course had received certificates for completing the course; c. Mr Malik repeatedly requested that he sign false assessment and other paperwork for this cohort of students, but he refused; and d. he did not send any invoices to, or receive any payment from, Star in respect of the proposed course. 63. Star's position appears to be that Mr Lewis was solely responsible for any misconduct. 64. Further evidence about this issue is given by Ms Sarah Ilyas. Her evidence is at Bundle pp 1041-2 at [15]-[20] and [17]-[22] of the Sarah Ilyas Affidavit." 1. In A66, Allegation 2 was further particularised as: "12. The records provided to Training Services NSW which are said to be false and misleading relate to the Certificate IV in Work Health and Safety at Raymond Terrace supposedly conducted from September 2016 to October 2017, specifically: 12.1 the Training Activity Data submitted by the Applicant in relation to the 10 students identified at paragraph 4.1.9 of Mr Buddeke's report, in that the data represented that those students were completing, and then had completed, the course when they had not (see Ex SPB-1, Tab 1, Subtabs 8 and 9); and 12.2 the Assessments, transcripts and Certificates submitted by the Applicant for the 10 students (eg Ex SPB-1, Tab 1, Subtab 9), in that they represented that those students had completed the assessments when they had not, that the trainer had marked and signed the assessments when the trainer had not, and that those students had completed the course when they had not. 13. The Commissioner alleges that Mr Malik, knowing that the WHS Course did not take place, nevertheless arranged for the above records to be provided to Training Services NSW or instructed staff at Star to do so. 14. While the Commissioner's Submissions referred to other conduct at paragraph 64, as advised in our letter of 1 November 2023 the Commissioner does not press any allegation that Ms Komal Malik was issued qualifications without doing the assessments, or that Ms Juliana Yazbeck signed fraudulent assessments." Allegation 3: the Applicant granted a security qualification to a student who was not competent 1. In opening submissions, the Respondent specified the following in relation to Allegation 3: "65. This issue concerns a former student of Star, [Mr S]. [Mr S] has been summoned to give evidence at the proceeding (see Winram Affidavit at [9]-[10]). 66. [Mr S] was issued a Certificate II in Security Operations by Star on 15 May 2020 (Bundle pp 357). As a result, [Mr S] was able to apply for and obtain a Security Licence from SLED. Mr Malik paid for [Mr S]'s Security Licence (Bundle pp 352-355). 67. It is a pre-requisite for the Certificate II in Security Operations that students complete an English-language "Language, Literacy and Numeracy Test" (LLN). An enrolment form and LLN purportedly completed by [Mr S] is at pp 4-11 of the Bundle. 68. Following an interview with [Mr S], SLED investigators formed the view that [Mr S]'s English language abilities were not sufficient to pass the LLN, and not sufficient for the Certificate II in Security Operations. A transcript of this interview is at Bundle pp 1092-1154. The transcript highlights [Mr S]'s difficulties. For most of the interview, he was reliant on his son or the interpreter provided by SLED. A second interview, in which [Mr S] exclusively used an interpreter for all but the shortest answers, is at Bundle pp 1185-1207. 69. SLED investigators also obtained copies of [Mr S]'s assessment workbook from the Certificate II in Security Operations. Though [Mr S] had been certified by Star trainer Mr John Stoodley as competent in all modules of the course (which had a pass mark of 100%), many of the answers in the assessment workbook were incorrect. Though he now seeks to resile from this evidence, Mr Stoodley accepted that [Mr S]'s answers were incorrect during an interview with SLED, the transcript of which is at Bundle pp 1208-1232 (see also earlier interview at Bundle pp 1155-1184). See particularly at pp 1219-1221, Q96-98, Q107- 110, Q114-117. 70. Further evidence about this is given by Ms Amna Ilyas at [38]-[41] of the Amna Ilyas Affidavit and [49]-[55] of Annexure B to the Amna Ilyas Affidavit. Ms Sarah Ilyas also had some interaction with [Mr S], and gives evidence that he does not speak good English (see Bundle pp 1045-1046 at [31]-[35] and Sarah Ilyas Affidavit at [41]-[46]); 71. The Affidavit [of Mr H] also contains evidence concerning another student who did not appear to have sufficient English language ability to pass the security training course (Annexure A to the Affidavit of [Mr H] at [48]-[49])." 1. In A66, Allegation 3 was further particularised as: "16. In response to paragraph 13 of Your Letter, as articulated at paragraph 65 of the Commissioner's opening submissions, the Commissioner alleges that your client granted a security qualification to [Mr S], a student who was not competent. 17. The particular basis upon which it is alleged the student was not competent is that [Mr S]'s English language abilities were not sufficient for the Certificate II in Security Operations to be granted. 18. [Mr S]'s difficulties with English are evidenced by: 18.1 the transcripts of [Mr S]'s two interviews with SLED investigators (s 58 Bundle pp 1092-1154 and 1185-1207); 18.2 Ms Amna Ilyas' evidence that [Mr S] did not speak good English ([38]-[41] and [49]-[55] of Annexure B of the Amna llyas' Affidavit); 18.3 Ms Sarah Ilyas' evidence that [Mr S] did not speak good English (s 58 Bundle pp 1045-1046 at [31]-[35] and Sarah Ilyas Affidavit at [41]-[46]). 19. Mr S has also been summonsed to give evidence, which will enable the Tribunal to make its own assessment about his English skills. 20. Further, Mr S's incompetency to pass the Certificate II in Security Operations is demonstrated by the evidence of John Stoodley: 20.1 in his two interviews with SLED investigators (s 58 Bundle pp 1155-1184 and 1208-1232); 20.2 in his evidence in this proceeding, that Mr S should have failed the module 4.1 assessment (T1046-1050 - 26 October 2023); and 20.3 in his evidence in this proceeding, that Mr S should have failed the module 5 assessment (T1123- 1126 - 26 October 2023)." Allegation 4: the Applicant provided its security industry regulator, SLED, with workbooks which had been altered and thereby misrepresented student records 1. In opening submissions, the Respondent specified the following in relation to Allegation 4: "72. This issue concerns tampering with student records by Star before those records were submitted to SLED for audit purposes. The facts relevant to the issue are the subject of detailed evidence from SLED auditor Mr Tony Vulic in the Vulic Affidavit and former SLED auditor Ms Wendy Au in the Au Affidavit, and can be summarised as follows: a. on 8 June 2021, Star electronically submitted a "Trainer Audit Report" to SLED for one of its trainers, Mr Stephen Yates. The report related to Mr Yates' role as trainer for Security Licence Course SLC042, and in particular his role in administering Assessment Tasks 3-6 in Cluster 1 of the SLC, which were conducted on 2-3 June 2021; b. the Trainer Audit Report included copies of extracts from the "Candidate Workbooks" for SLC Cluster 1 for three students enrolled in SLC042, being [Student A], [Student B], and [Student C]; c. there was no note made to indicate that the copies of the Workbook extracts were anything other than true and accurate copies of the original documents; d. the Candidate Workbook extracts included the "Observation Checklists" which were used during practical assessment of the students. The extracted Observation Checklists included red ticks against all of the 19 Assessment Criteria for Assessment Task 3. The students had been assessed as "Satisfactory" for the Assessment Tasks, indicating that they fulfilled all of the 19 Assessment Criteria; e. this was apt to give the impression, and the Tribunal would infer was intended to give the impression, that the original Candidate Workbooks had been assessed and marked with ticks, when in fact (as explained below), as at 8 June 2021 the original Candidate Workbooks had not been marked with ticks; f. on 11 June 2021, Star submitted a further Trainer Audit Report to SLED which contained the SLC Cluster 2 Assessment Tasks 11-14 and Cluster 3 Assessment Tasks 16 to 18. This also included Candidate Workbooks for [Student A], [Student B] and [Student C]. g. five days later, on 16 June 2021, SLED auditors attended Star's Liverpool campus in person to conduct an audit. The auditors requested the original Candidate Workbooks in relation to SLC Clusters 1 to 3 for the 18 students who had been enrolled in SLC042; h. the auditors were provided with Clusters 1 and 2, however, they were told that the Cluster 3 marking had not yet been completed. i. the auditors observed that the Observation Checklists for Clusters 1 and 2 in these Workbooks, for all eighteen students, including [Student A], [Student B], and [Student C], were unmarked (i.e. they were missing ticks) for many assessment criteria, including many of the 19 Assessment Criteria for Assessment Task 3; j. the absence of these ticks in the original Observation Checklists for all eighteen students, including the three students whose Workbooks extracts had been provided on 8 and 11 June 2021, was inconsistent with the extracts provided with Mr Yates' Trainer Audit Reports; k. later on 16 June 2021, Star requested the return of all 18 Candidate Workbooks, saying that this was for assessments and photocopying in relation to other SLC clusters. The auditors returned the Workbooks to Star; l. later again on 16 June 2021, the auditors inspected the Candidate Workbooks again, and noted that the majority of the previously unmarked Observation Checklists for Clusters 1 and 2 had now been completed, including all 19 Assessment Criteria for Assessment Task 3; m. further investigation of the Workbooks for the three students who had copies of their Workbook extracts provided with Mr Yates' Trainer Audit Report on 8 June 2021 revealed that the shape and position of the ticks on the 8 June 2021 extract copies were different to the ticks now in place on the original Workbook documents. 73. As a result, the evidence demonstrates that: a. that the copied extracts of Observation Checklists for three students submitted to SLED on 8 and 11 June 2021 were not "true and correct copies of the original documents"; b. on 16 June 2021, during the course of SLED's audit, Star personnel had altered the Observation Checklists in the Candidate Workbooks by inserting ticks against Assessment Criteria that had not previously been marked; c. as the Candidate Workbooks had not had the Assessment Criteria marked at the time the assessment was performed, or before being marked as "Satisfactory" overall, none of the eighteen students should have been provided with an overall assessment result of "Satisfactory". 74. The Vulic Affidavit exhibits the various versions of student Workbooks which demonstrate the above issues, with Mr Vulic providing detailed observations of the Workbooks at [36] of the Vulic Affidavit. 75. As explained at [61] of the Burge Affidavit "[a] "tick" on a student's assessment workbook indicates that the criterion or question has a satisfactory response or demonstration provided by the student. This is a fundamental requirement of the SLC, and is necessary in order for the RTO to deem a student as competent. The lack of a tick next to a response indicates that the criteria or question has not been addressed and a determination that a student is competent should not be made." 76. In addition, there is further evidence that Star has improperly assessed students by making changes to assessment records or requiring students to "fix" assessments after they had been completed and marked as competent. Evidence of this is given by: a. Sarah Ilyas: (see Bundle pp 1043 at [23]-[24] and Sarah Ilyas Affidavit at [18]-[22]); b. [Mr A], particularly at [15]-[22] of Tab 1 in Exhibit HA-1 to the Affidavit [of Mr A]; c. [Mr K], particularly at [22]-[36] of Tab 1 in Exhibit SK-1 to the Affidavit [of Mr K]; d. [Ms H], particularly at [52]-[63] of Annexure A to the Affidavit [of Mr H]; and e. Amna Ilyas, particularly at [10]-[19] of the Amna Ilyas Affidavit." 1. In A66, Allegation 4 was further particularised as: "22. Star submitted photocopies of the Candidate Workbooks for three students — [Student C], [Student A] and [Student B]— to SLED on 8 and 11 June 2021. By marking the photocopies prior to submission, Stephen Yates represented to SLED: 22.1 that the original Candidate Workbooks had been ticked in the following places when in fact they had not been: "Evidence to be Retained" sections and Observation Checklists in MFI 1 Ex R33 Column 1 rows 1, 3-17, 22-39; 22.2 that Mr Yates had signed off each student as competent for an assessment only after completing all items in the "Evidence to be Retained" sections and the Observation Checklists. In fact, Mr Yates had signed the students off as competent for assessments even though he had not yet ticked them as satisfactory for certain items. By way of singular example, at Ex TV-1 p 40 Mr Yates had signed off on [Student C] as "satisfactory" on 2 June 2021, even though at that time he had not ticked the box for "Contemporaneous notebook entry for incident Completed incident form" and the box for "Evidence of electronic submission" in the "Evidence to be Retained" section at Ex TV-1 p 39, and had not ticked the boxes for items 12, 13 and 14 in the Observation Checklist at Ex Tv-I p 39. This was also non-compliant with cl 9.8(h) of Chapter 9 in the 2020 conditions for Star's approval under s 27A. Other examples are set out in MFI 1 Ex R33. 23. Mr Stephen Yates ticked the photocopies in these places on 8 June 2021, despite knowing that the documents were to be sent to SLED for compliance review purposes. This occurred with the knowledge of Javaid Malik who confirms that he witnessed this occurring. 24. Original Candidate Workbooks were also provided to SLED on 16 June 2021, during the course of SLED's audit. Despite knowing that the audit was on foot that day and that the auditors were reviewing the Candidate Workbooks for Clusters 1 and 2 (T884-892 on 25 October 2023), Stephen Yates inserted ticks in assessments for Clusters 1 and 2. This ticking occurred in the following places: "Evidence to be Retained" sections and Observation Checklists in MFI 1 Ex R33 Column 2 rows 1, 3-17, 22-39. 25. As detailed at paragraph 76 of the Commissioner's Submissions, the Commissioner also states that Star has improperly assessed students by making changes to assessment records or requiring students to "fix" assessments after they had been completed and marked as competent. This occurred in circumstances where it was known or intended that those assessment records were to be submitted to SLED. The Commissioner now only relies on the remedial sessions involving Geoffrey Rudd in August/September 2020, attended by [Mr A] and [Mr K]. Javaid Malik had knowledge of those sessions, of the nature of the changes made to assessment documents, and of the resulting misleading nature of the documents when submitted to SLED." Allegation 5: the Applicant's Nominated Person, Mr Javaid Malik (Mr Malik) engaged in improper and inappropriate conduct towards students enrolled in security courses conducted by the Applicant on at least two occasions 1. In opening submissions, the Respondent specified the following in relation to Allegation 5: "77. This issue relates to allegations that Mr Malik, accepted to be a "close associate" of Star, engaged in in improper and inappropriate conduct towards two female students who were enrolled in security training courses at Star. 78. Both [Ms S] and Ms R provided signed statements to SLED outlining Mr Malik's conduct towards them (at Bundle pp 1071-1091). Though Ms R has subsequently moved permanently to Canada, [Ms S] will be giving evidence to the Tribunal in this proceeding and has provided the Affidavit [of Ms S]. 79. Mr Malik's conduct consisted of calling female students out of class, and inviting them to meet with him alone after hours for additional training and assistance, without which it was suggested that the students would fail the security course. Mr Malik also offered to provide Ms R the answers to a forthcoming assessment if she met him after hours. After [Ms S] visited the Star office with her lawyer to complain about the harassment, Mr Malik paid her compensation. See: Bundle p 1074 at [22]-[28]; Bundle pp 1088-1091 at [7]-[18], [25]-[33]; Affidavit [of Ms S] at [13]-[26]. 80. In addition, Mr Malik cancelled the security qualification of Ms R after she had completed the course and been issued with her certificate, ostensibly because her visa conditions did not permit her to enrol in the course: Bundle p 497. 81. Mr Malik's conduct towards female students is also dealt with in the evidence of Ms Sarah Ilyas and Ms Amna Ilyas, both former employees of Star: a. Sarah Ilyas: see Bundle pp 1043-1044 at [25]-[30] and Sarah Ilyas Affidavit at [36]-[40]); b. Amna Ilyas: see [23]-[37] of the Amna Ilyas Affidavit. 82. The Commissioner notes that separate evidence of troubling conduct towards students by trainer Shane Smith is contained at [9]-[36] of Annexure A to the Affidavit [of Mr H], and at [31]-[33] of the Burge Affidavit." 1. In A66, Allegation 5 was further particularised as: "27. In summary, the Commissioner alleges that Mr Malik engaged in improper and inappropriate conduct towards [Ms S] by calling her out of class one day during a Security Operations course in February 2021; telling her that she was under performing and at risk of not being granted a licence; and inviting her to meet him after hours for further training while standing "very close" to her. [Ms S] found this interaction distressing / uncomfortable. 28. When [Ms S] later met with Mr Malik in the presence of her friend/lawyer Mr Salam and accused Mr Malik of harassment, Mr Malik offered her $400 in compensation for the harassment. This amount was later paid to her friend/lawyer. 29. The Commissioner also alleges that Mr Malik engaged in improper and inappropriate conduct towards Ms R by calling her out of class one day during a Security Operations course in June 2020; offering to give her the answers for an assessment; and inviting her to come to his office at 7pm that night to discuss the answers. Ms R found this interaction distressing / uncomfortable. 30. The Commissioner also alleges that, despite Mr Malik initially permitting Ms R to enrol on the Security Operations course with a bridging visa, after Ms R completed the course Mr Malik decided to cancel her certificate on the basis that she did not have full working rights when she attended the course. This was despite the fact that full working rights are not a legal prerequisite to participating in training; they are only a legal prerequisite to obtaining a security licence under the Security Industry Act 1997 (NSW). Further, this was despite the fact that there was no prohibition on Star enrolling students on bridging visas, despite its inability to enrol students who were on international student visas. 31. The Commissioner also alleges troubling conduct towards students by a trainer, Shane Smith, contained at [9]-[36] of Annexure A to the Affidavit [of Mr H], and at [31]-[33] of the Burge Affidavit." Allegation 6: the Applicant engaged in improper conduct towards former employees. 1. In opening submissions, the Respondent specified the following in relation to Allegation 6: "83. This issue concerns Star and Mr Malik's conduct towards Ms Sarah Ilyas, a former employee of Star. 84. Ms Ilyas worked for Star between August 2017 and February 2021. As referred to in respect of several issues above, she has given detailed evidence concerning her experiences at Star at pp 1039-1070 of the Bundle and in the Sarah Ilyas Affidavit. Ms Ilyas left her employment at Star because she was "sick of trying to cover up all the problems" (Bundle p 1048 at [51]). 85. There is evidence that Star and Mr Malik have engaged in a pattern of retribution towards Ms Sarah Ilyas after she left her employment with Star, including as a result of her cooperation with SLED in their investigations into Star. 86. The retribution has consisted of: a. pursuing Ms Ilyas in 2021 for a debt of approximately $8,000 which Mr Malik lent her in 2017 and which her evidence is that she paid back shortly after it was given (see Bundle pp 1040-1041 at [9]-[12] and 1049-1050 at [57]-[58] and Sarah Ilyas Affidavit at [10]-[16]); b. accusing Ms Ilyas of using Star's systems to fraudulently issue vocational qualifications to herself (Bundle p 1050 at [58]-[60] and Sarah Ilyas Affidavit at [68]-[70]); c. contacting Ms Ilyas' new employer to state that she had been guilty of misconduct during her time at Star (Bundle p 1050-1051 at [62]-[65]; Winram Affidavit at [14]- [15]); d. Mr Malik repeatedly calling Ms Ilyas, sending her threatening text messages and repeatedly checking her social media profiles (Bundle p 1049-1050 at [55]-[56], [61]); and e. Ms Ilyas believes Mr Malik has left threatening messages with her mother in Pakistan (Sarah Ilyas Affidavit at [71]-[72]). 87. There is further evidence that Mr Malik has also taken retributive action against Ms Amna Ilyas, another former employee and Sarah's sister. In particular, Mr Malik has given information to the Department of Immigration to say that Amna did not work for Star, which has impacted her "life and permanency residency status" (Amna Ilyas Affidavit at [57]-[58]). That occurred in the context of Ms Amna Ilyas' cooperation with SLED, and Mr Malik's prior attempts to have Amna alter her evidence to SLED (Amna Ilyas Affidavit at [22])." 1. In A66, Allegation 6 was further particularised as: "33. In summary, the Commissioner alleges that Mr Malik engaged in inappropriate conduct towards Sarah Ilyas by: 33.1 pursuing Ms Ilyas for an alleged debt of approximately $8,000, by sending threatening text messages in May 2021 and a letter in August 2021, despite the fact that he had given her approval to use his credit card for that amount in September 2017 and she had paid it back in cash to Mr Malik shortly thereafter; 33.2 falsely accusing Ms Ilyas of using Star's systems to fraudulently issue vocational qualifications to herself, by a letter dated August 2021, at least in respect of the Certificate IV in Learning and Management; 33.3 contacting Ms Ilyas's new employer to state that she had been guilty of the above alleged misconduct; and 33.4 repeatedly calling Ms Ilyas and sending her threatening text messages in May 2021. 34. The Commissioner alleges that this conduct was done in response to Ms Ilyas's cooperation with SLED, but even if that is not accepted the conduct was nevertheless improper and inappropriate. 35. In summary, the Commissioner alleges that Mr Malik engaged in improper and inappropriate conduct towards Amna llyas by writing a letter to Skilled Migration at Investment NSW on 7 December 2021 claiming that Ms Amna Ilyas had not worked as a Network Engineer at Star, despite the fact that Mr Malik had issued her an offer of employment as a Network Engineer in 2019, had issued payslips to her stating her position as a Network Engineer, and had provided a written reference for her in relation to her work as a Network Engineer. The Commissioner alleges this was also done in response to Ms Amna Ilyas's cooperation with SLED. Mr Malik also asked Ms Ilyas to change her evidence in the statement she had prepared for SLED in March 2021." Allegation 7: the Applicant did not comply with the Interim Regime established and in force during Supreme Court proceedings 1. In opening submissions, the Respondent specified the following in relation to Allegation 7: "88. This issue concerns Star's compliance with the Interim Regime which was in place during the currency of the Supreme Court proceedings. The Interim Regime was originally commenced in the context of the Supreme Court proceeding between Star and the Commissioner. Detailed evidence concerning this issue is given in the Burge Affidavit by Ms Diane Burge, an auditor within SLED. 89. One aspect of the Interim Regime is that Star is required to continue to comply with the Conditions which apply to all training organisations which hold Master Security Licences and approvals pursuant to s 27A of the SI Act. The current form of the Conditions has been in place since July 2021. A copy of these conditions is Tab 2 of Exhibit DB-1 to the Burge Affidavit. 90. A number of the Conditions are particularly relevant: a. Condition 2: This condition requires compliance with a written Code of Conduct. The Code of Conduct does not permit, among other matters: "swearing at students and unnecessary use of offensive language generally" and "derogatory comments about students or comments that could be construed as discriminatory or threatening". b. Condition 3: This condition requires that assessment or instruction in any Security Licence Course cluster must be "in accordance with the SLED regulatory requirements". The "SLED regulatory requirements" are defined to include the "NSWPF SLC documents", which in turn are defined to include the "Assessor Guides" for each cluster within the Security Licence Course. c. Condition 4: This condition requires Star to comply with the VET Quality Framework. The VET Quality Framework is defined in s 3 of the National Vocational Education and Training Regulator Act 2011 (Cth) (NVETR Act) and includes any "Standards for NVR Registered Training Organisations" made pursuant to s 185 of the NVETR Act. The present version of these standards is the Standards for Registered Training Organisations (RTOs) 2015 (Cth) (2015 RTO Standards). d. Condition 7: This condition requires Star to ensure that all Approved Trainers "comply with: these Conditions of Approval, the Code of Conduct in Chapter 2, requirements for Approved Trainers contained in Chapter 5, and SLC delivery requirements in Chapter 9 of this document". e. Condition 9: This condition contains requirements for notifications, requests for approval and communications with SLED. These requirements include seeking approval from SLED for each security licence course 10 business days prior to its commencement, notification to SLED of student enrolments 3 business days prior to course commencement, and notification to SLED of course assessment outcomes within 10 business days of course completion. f. Condition 12: This condition requires a Training and Assessment Session Plan to be submitted to SLED with each request to approve a security licence course (to be submitted 10 business days prior to its commencement in accordance with Condition 9). g. Condition 13: This condition requires all SLED mandated assessments for the security licence course to be conducted by an Approved Trainer in a supervised, face-to-face environment and in accordance with the applicable instructions. 91. The Burge Affidavit sets out the occasions on which SLED has determined that Star failed to comply with the above conditions during the Interim Regime and exhibits the relevant documentation. In particular, it is concerning that Star continues to exhibit non-compliance with the Conditions concerning the proper assessment of student competency." 1. In A66, Allegation 7 was further particularised as: "36. …The Commissioner maintains that the relevant conduct by Star are the instances of non-compliance detailed in Ms Burge's evidence. 37. … the particular provisions of the Interim Regime the Commissioner alleges have been breached remain as outlined in Ms Burge's evidence and summarised at paragraphs 89-90 of the Commissioner's Submissions, consistent with the position expressed in our 1 November Letter. 38. … the persons said to be involved in the non-compliance by your client, and the manner in which it is alleged that they were involved is detailed in the evidence of Ms Burge. The Commissioner also states that Javaid Malik, as the nominated person for Star, is ultimately responsible for any non-compliance." Allegation 8: the Applicant failed to follow COVID-19 safety measures 1. In opening submissions, the Respondent specified the following in relation to Allegation 8: "92. This final issue concerns Star's compliance with mandatory Covid-19 safety measures during the period when such measures applied in NSW. 93. There is evidence that Star did not observe mandatory social distancing requirements, and that Star actively concealed this from the police during inspections. This evidence is from: a. [Mr A], particularly at [7]-[13] of Tab 1 in Exhibit HA-1 to the Affidavit [of Mr A]; and b. [Mr K], particularly at [8]-[13] of Tab 1 in Exhibit SK-1 to the Affidavit [of Mr K]. 94. The Covid-19 safety measures were concerned with ensuring public safety at the time they applied. A disregard for regulatory schemes aimed at ensuring public safety has been considered a relevant matter in determining the grant of firearms licences: Metleg v Commissioner of Police, NSW Police Force [2023] NSWCATAD 17 at [75] and the cases there cited. The Commissioner submits that such matters are equally relevant to the grant of security licences. A disregard for public safety measures goes both to the fitness of Star, and to whether it is in the public interest for Star to hold a security licence." 1. In A66, Allegation 8 was further particularised as: "39. …While the Commissioner does not suggest students were told to "hide" from police during the inspection (rather, they were moved at the police's suggestion), the Commissioner does allege that students returned to the classroom soon after the police left and social distancing requirements were still not observed. … 41. …the Commissioner alleges that the persons involved in the failure to follow Covid-19 safety measures are Mr Javaid Malik, who instructed the students to move upstairs, and the trainer named Javaid (not Javaid Malik) who conducted the First Aid course attended by [Mr A] and [Mr K]. The manner in which they were involved with or responsible for the failure is as outlined in the evidence referred to at [93] of the Commissioner's Submissions. 42. Alternatively, Star failed to provide a safe and comfortable environment for students in the context of Covid-19 safety measures, in breach of Condition 8 of its Conditions of Approval. The manner in which Star failed to provide a safe and comfortable environment for students is as outlined in SLED's Investigation Report on SLC003 at TB pp 620-643." Allegation 9: attempt to pay a witness to give false evidence 1. In A66, Allegation 9 was expressed and particularised as: "43. The Commissioner alleges that on or around 27 September 2023, Mr Malik met with Bob Lewis and proposed that he (Mr Malik) would pay Paul Lewis an amount of money in return for Paul Lewis providing a signed document confirming that he did take the WHS Course in Raymond Terrace from approximately September 2016 until October 2017. Mr Malik asked Bob Lewis to convey that offer to Paul Lewis. 44. Bob Lewis subsequently met with Paul Lewis on 4 October 2023 and conveyed to Paul Lewis that Javaid Malik would pay Paul Lewis money if Paul Lewis wrote a letter saying the training at Raymond Terrace took place. 45. The particulars of this allegation are presently outlined in the Affidavit of Paul Lewis dated 19 October 202[3]. [1] The Commissioner does not ask the Tribunal to conclude that Mr Malik committed a criminal offence. The Commissioner will submit that it is sufficient for the Tribunal to find that this conduct plainly demonstrates Mr Malik's unfitness and impropriety to hold a security licence." Legal Principles Jurisdiction 1. Under s 29(1) of the SI Act, a person may apply to the Tribunal for administrative review under the ADR Act of a decision to revoke a security licence granted to the person. The Tribunal is to decide what the correct and preferable decision is on the material before it: s 63 ADR Act. The SI Act 1. The SI Act provides for the licensing and regulation of persons in the security industry. Section 7 of the SI Act provides that a person must not carry on, or provide persons to carry on, "security activities" without the appropriate security licence. Security activities are defined in s 4 and include matters such as acting as a bodyguard (s 4(1)(a)), acting as a crowd controller (s 4(1)(b)), patrolling, protecting or guarding property (s 4(1)(c)), and also "providing training or instruction in relation to any security activity" (s 4(1)(j)). 2. The SI Act further provides that a person cannot be granted a security licence unless the applicant has "undertaken and completed the training, assessment and instruction that is approved for the class of licence sought by the applicant" (s 15(1)(f)(iii)). Pursuant to s 27A of the SI Act, the Commissioner may approve persons or organisations to provide security training, assessment and instruction, including for the purposes of s 15(1)(f)(iii). I note that s 15 of the SI Act was amended after the institution of these proceedings, with the amendments taking effect on 1 June 2023. Previously, the requirement currently at s 15(1)(f)(iii) was in identical terms at s 15(1)(d) of the Act. 3. In order to provide security training, assessment and instruction, a person must hold both an approval under s 27A, and the relevant class of security licence. That is because "providing training or instruction in relation to any security activity" is itself a security activity under the SI Act (s 4(1)(j)), such that holding an appropriate security licence is a prerequisite to being able to provide any security training. Section 26 of the SI Act deals with the revocation of security licences. It states: 26 Revocation of licence (1) A licence may be revoked-- … (b) if the licensee-- (i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence or the renewal of the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or … (d) for any other reason prescribed by the regulations. (1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused. (2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it. (3) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice. Note : Section 31 requires the licensee to immediately surrender the licence if the licence is revoked. (4) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect. (5) For the purposes of subsection (1A), the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the licensee that-- (a) is relevant to the activities carried on under the class of licence held by the licensee, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the licensee continues to hold the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the licensee continues to hold the licence. (6) The Commissioner is not, under this or any other Act or law, required to give any reasons for revoking a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (5). 1. Relevant to this proceeding, s 26(1A) provides that "[t]he Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused". Section 15(1)(f)(i) requires that "[t]he Commissioner must refuse to grant an application for a licence if … the Commissioner is not satisfied that the applicant is a fit and proper person to hold the class of licence sought by the applicant" and s 15(5) further provides that "reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant": 15 Restrictions on granting licence--general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if-- (a) the applicant is under 18 years of age, or (b) the applicant-- (i) is a registrable person or corresponding registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000, and (ii) has reporting obligations under that Act, or (c) the applicant has supplied information-- (i) in, or in connection with, the application, and (ii) that is, to the applicant's knowledge, false or misleading in a material particular, or (d) the applicant is not an Australian citizen or a permanent Australian resident and does not hold-- (i) a visa for which the applicant has been sponsored by the holder of a master licence, or (ii) a visa for a skilled occupation to which the activities authorised by the proposed licence correspond, or (e) the applicant is prohibited under section 16B from making the application, or (f) the Commissioner is not satisfied that the applicant-- (i) is a fit and proper person to hold the class of licence sought by the applicant, or (ii) has the approved competencies and experience, or (iii) has undertaken and completed the training, assessment and instruction approved for the class of licence sought by the applicant, or (iv) is competent to carry on the security activity to which the proposed licence relates. (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence. (5) Except as provided by the regulations, a reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant or whether the grant of the licence would be contrary to the public interest, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that-- (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence. (7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6). 1. Section 26(1)(d) of the SI Act provides that "a licence may be revoked for any other reason prescribed by the regulations." Clause 25(1) of the Security Industry Regulation 2016 (NSW) (the Regulations) provides that "[f]or the purposes of section 26(1)(d) of the Act, a licence may be revoked if the Commissioner considers that it would be contrary to the public interest for the person to whom it is granted to continue to hold it". Issues for determination 1. In conducting the administrative review pursuant to s 63 of the ADR Act, two issues arise for consideration in these proceedings – the fitness and propriety of the Applicant and Mr Malik, and whether it is contrary to the public interest for the Applicant to continue to hold the Master Security Licence. 2. Revocation of the Master Security Licence is mandatory where the Tribunal finds that either the Applicant or Mr Malik is not a "fit and proper person" within the meaning of s 15(1)(f)(i) of the SI Act, pursuant to s 26(1A) of the SI Act: Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 (Nakad) at [15]. The Tribunal must be positively satisfied that both the Applicant and Mr Malik are "fit and proper persons". 3. Revocation of the Master Security Licence is discretionary where the Tribunal finds that it would be contrary to the public interest for the Applicant to continue to hold the Master Security Licence, pursuant to cl 25(1) of the Regulations and s 26(1)(d) of the SI Act. Fitness and propriety 1. Whether a person is a "fit and proper person" is a question of fact and degree, a "value judgment", "evaluative conclusion", or opinion based on primary facts: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond) at 380, 388; [1990] HCA 33; Nakad at [32]; R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430. 2. What constitutes "fitness" is derived from context: Bond at 380 per Toohey and Gaudron JJ. If the question is the fitness of a company, then the fitness of those controlling it may be imputed to the corporation. In Bond the High Court explained: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. Whether the fitness and propriety of a licensee to hold a commercial licence are sufficiently ascertained by reference to its character or reputation, or must be ascertained by reference to the conduct of its affairs and activities, is a question the answer to which must be found by implication from the provisions of the Broadcasting Act dealing with the grant, renewal and revocation or suspension of a commercial licence and from the activities to be undertaken pursuant to the licence." 1. Mason CJ further stated (at 388) that: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration." 1. The expression "fit and proper person" is designed to "give the widest scope for judgment and indeed rejection": Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 (Hughes) at 156; [1955] HCA 28. It includes considerations of knowledge, ability, and competence, but also moral integrity, rectitude of character and reputation: Hughes at 156-157; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 (Sobey) at 76. The question is not limited to the specific functions or activities enabled by the holding of a licence: Sobey at 76; Commissioner of Police (NSW) v EMB [2021] NSWCATAP 63 (EMB) at [48]. It is, however, to be "gauged in light of the nature and purpose of the activities that the person will undertake": AJO v Director-General, Department of Transport (NSW) [2012] NSWADT 101 at [26]; Hughes at 156-157; Bond at 380. 2. An applicant's honesty and personal integrity is relevant to whether they are a "fit and proper person": Axiotis v Commissioner of Police [2004] NSWADT 112 at [26]; EMB at [49]. A person's character and disposition is relevant because "it provides indication of likely future conduct", and may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question: Bond at 380; Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [58]; Smith v Commissioner of Police & NSW Fair Trading [2014] NSWCATAD 184 at [39]; Melbourne v The Queen (1999) 198 CLR 1 at [33], [62]; [1999] HCA 32. The public interest: principles 1. The expression "public interest" is not defined in the SI Act, but has been discussed in a number of Tribunal decisions. In Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 (Constantin) at [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system." 1. The public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the "public interest" is: "… an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal." 1. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, it was stated at 681: "The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation." 1. In Director of Public Prosecutions v Smith [1991] 1 VR 63 at 75 the Court observed: "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals." 1. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43 at [37], the Administrative Decisions Tribunal Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise her discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act. A discretion to make a decision "in the public interest" is not confined except by the scope and purposes of the legislation itself: DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15], referring to O'Sullivan v Farrer (1989) 168 CLR 210 at 216; [1989] HCA 61, in which Mason CJ, Brennan, Dawson and Gaudron JJ stated: "the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'." 1. The "public interest" includes "concerns in relation to public protection, public safety and public confidence in the administration of the licensing system": Constantin at [33]. The discretion must be exercised to promote the objects of the legislation: see Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]. Onus and standard of proof 1. In merits review cases such as these proceedings, being an application for administrative review made under the ADR Act, where the enabling legislation does not impose an onus of proof, neither party bears an onus of proof: Commissioner of Police v Fakhouri [2021] NSWCATAP 226 at [59]; Nakad at [34]; Meacham v Commissioner of Police [2020] NSWCATAP 107 at [75]; FRW v Commissioner of Police, NSW Police Force [2023] NSWCATOD 21 at [112] (FRW); Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425; [1992] HCA 47; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40]; [2006] HCA 63. 2. The Tribunal must decide what the correct and preferable decision is having regard to any relevant factual material: ADR Act, s 63(1). 3. There may be a "practical onus" arising from the requirement that a decision-maker be satisfied as to particular facts so it can determine the matter: Re Russell and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 52 at [35]. 4. It was previously thought that the applicable standard of proof was that laid down in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw); [1938] HCA 34. The Supreme Court stated in Bronze Wing Ammunition Pty Ltd v SafeWork NSW (No 2) [2016] NSWSC 988, however, that this is not the case (at [77]): "As a matter of logic, if there was no onus of proof cast upon either party, there can have been no standard of proof. If there was no standard of proof, including the civil standard of proof on the balance of possibilities, the principle in Briginshaw (it being a refinement of that standard) had no application to the proceedings before the single member." 1. As held in the appeal to that decision, Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127], his Honour's findings: "…reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT." 1. As discussed in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 (Neat Holdings) at 171: "[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.…" 1. When reviewing a decision of an administrator, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) CAT Act. Although not bound by the rules of evidence, the Tribunal must base its decision on "probative evidence": Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 (Re Pochi) at 491-493. 2. It is well established that in considering an application for review, the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 at 419. There is no presumption that Respondent's decision is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; FRW at [111], [113]. 3. Whether the Applicant's licence should be revoked depends upon adverse findings of provable facts, "and before those findings are made, the decision-maker must be reasonably satisfied of the occurrence or existence of those facts": Re Pochi at 255, citing Rejfek v McElroy (1965) 112 CLR 517 (Refjek) per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ at 519; [1965] HCA 46. The conduct must be proved in fact and not merely suspected to have occurred. Adapting Brennan J's observations in Re Pochi (at 255): "at the end of the day the decision-maker must be persuaded that [revocation] is in the [public interest], and where the consequences of [revocation] are grave, he will not be lightly persuaded". His Honour cited the principles in Briginshaw at 362. In a case such as this, it is essential that the "reasonable satisfaction" of the Tribunal of the Respondent's allegations "should not be produced by inexact proofs, indefinite testimony, or indirect inferences": Briginshaw at 362 per Dixon J. 4. What is necessary is "clear or cogent or strict proof": Neat Holdings at 171 (Mason CJ, Brennan, Deane, Toohey and Gaudron JJ). In this context, "clear and cogent" means proof "such as to induce, on a balance of probabilities, an actual persuasion of the mind as to the existence of the [facts comprising the criminal conduct]": Rejfek at 521 (Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ). Where a fact to be established before the Tribunal calls for a high standard of proof and is "an important one essential to the determination", the fact should be proved by "cogent evidence such as a person exercising common prudence could safely act upon": Re Houvardas and Tax Agents' Board of New South Wales (1991) 23 ALD 505 at 506 [19] (Scott J), citing Bercove v Hermes (No 3) (1983) 51 ALR 109 at 118 (Bowen CJ, Lockhart and Beaumont JJ). 5. Importantly, whilst s 38(2) of the CAT Act provides that the Tribunal is not bound by the rules of evidence, and may inform itself as it thinks fit, it does not provide that the Tribunal is bound not to apply the rules of evidence: Re Kevin and Minister for Capital Territory (1979) 2 ALD 238 at 242. The circumstances of a case may be such that the principle underlying a rule of evidence may offer the clearest guidance to the Tribunal as to the manner in which it should inform itself. The Full Federal Court has expressly held that there "should … be a reluctance to dispense with the rules of evidence where there is a real dispute over a matter which goes to the heart of a case": Soliman v University of Technology, Sydney (2012) 207 FCR 277 at [25] (Marshall, North and Flick JJ); [2012] FCAFC 146. 6. Section 38(2) of the CAT Act is constrained in its application by the general requirements of relevance and the rules of natural justice: Re Pochi at 491-496 (Brennan J); Mt Gibson Manager Pty Ltd v Deputy Commissioner of Taxation (1997) 81 FCR 335 (Mt Gibson) at 343 (French J). It does not require the Tribunal to accept material which, "while strictly relevant, is of little or no probative value": Mt Gibson at 343 (French J). Although the Tribunal is not restricted to evidence that is legally admissible, and the Tribunal may have regard to circumstantial and hearsay evidence, that evidence must be "logically probative": Re Pochi at 493 (Brennan J). The logical weaknesses of a particular instance of hearsay evidence may make it "too insubstantial to persuade the Tribunal of the truth of a serious allegation": Re Pochi at 493 (Brennan J), referring to R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228. Similarly, in a case such as the present, "the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence": Re Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 at 5 (Davies J). Previous proceedings 1. The parties have been the subject of previous proceedings in this Tribunal and in the NSW Supreme Court, which bear some relevance to these proceedings. 2. In matter 2021/00269061 in this Tribunal, the Applicant sought administrative review of the Respondent's decision of 10 September 2021 to revoke the Applicant's approval to provide training, assessment and instruction for various purposes under the SI Act, on the basis that the Applicant had not complied with its conditions of approval. The Applicant also sought a stay pending outcome of the administrative review. In STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATOD 166 the Tribunal dismissed the application for review and application for a stay on the basis that it did not have jurisdiction to review a decision for approvals made pursuant to s 27A of the SI Act. This was a revocation decision in relation to an approval, and the Tribunal could only review a revocation decision made in relation to a licence. 3. The Tribunal's decision was appealed and upheld by the Tribunal's Appeal Panel in STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370. 4. The Applicant brought proceedings in the NSW Supreme Court (2021/00224551), seeking judicial review of the 10 September 2021 revocation decision made by the Respondent. The Supreme Court proceedings were heard on 29-30 March, 8 April and 11 May 2022, but a decision was not made until 28 February 2023. The Court was satisfied that the Respondent's revocation decision denied the Applicant procedural fairness, and quashed the Respondent's decision of 10 September 2021: Star Training Academy Pty Ltd v Commissioner of Police (NSW) [2023] NSWSC 153. 5. In late 2021, the parties agreed on an "interim regime" pending the outcome of the Supreme Court proceedings, whereby the Applicant was permitted to provide security training one course at a time subject to oversight from SLED. I refer to the interim regime in more detail below. 6. Following the conclusion of the hearing of the Supreme Court proceedings, but before the judgment was delivered, the Respondent issued a notice to the Applicant on 24 June 2022, revoking its licence pursuant to s 26(1A) and 26(1)(d) of the SI Act. An internal review decision of 19 August 2022 affirmed that revocation. It is that licence revocation decision which is subject to these proceedings. 7. On 24 August 2022 the Tribunal stayed the operation of the Respondent's Internal Review Decision, by consent. That stay remains in effect pending the outcome of these proceedings. The Witnesses 1. The Applicant's witnesses at hearing were: 1. Javaid Malik (Mr Malik), the owner, director, and CEO of the Applicant; 2. Wasim Malik (Wasim Malik), one of Malik's sons; 3. Fahim Javaid Malik (Fahim Malik), one of Malik's sons; 4. Imran Asif Aslam (Mr Aslam), one of Malik's nephews; 5. Jeremy Charles McNamara (Mr McNamara), an auditor engaged by the Applicant; 6. Robert Balmer (Mr Balmer), a retired training instructor previously engaged by the Applicant; 7. Juliana Janette Yazbeck (Ms Yazbeck), a support worker who obtained qualifications from the Applicant; 8. John Leggett (Mr Leggett), a training instructor engaged by the Applicant 9. Stephen John Yates (Mr Yates), a training instructor engaged by the Applicant; 10. John Carrick Stoodley (Mr Stoodley), a training instructor engaged by the Applicant; 11. Michael de Marillac (Mr de Marillac), a training instructor engaged by the Applicant; 12. Shane Russell Smith (Mr Smith), a training instructor engaged by the Applicant. 1. The Respondent's witnesses were: 1. Urooj Ilyas, also known as Sarah Ilyas (Sarah Ilyas), former employee of the Applicant; 2. Amna Ilyas (Amna Ilyas), former employee of the Applicant; 3. Paul Lewis (Paul Lewis), former training instructor engaged by the Applicant; 4. Stephen Buddeke (Mr Buddeke), investigator for Training Services NSW; 5. Tony Simon Vulic (Mr Vulic), SLED auditor; 6. Wendy Wan Mei Au (Ms Au), SLED auditor; 7. Diane Burge (Ms Burge), Acting Manager, SLED Training Unit; 8. Sharyn Byrnes (Ms Byrnes), Manager of Adjudication at SLED; 9. Mr A, former student of the Applicant; 10. Mr K, former student of the Applicant; 11. Mr S, former student of the Applicant; 12. Ms S, former student of the Applicant; 13. Ms H, former student of the Applicant; 14. Ms M, former student of the Applicant. 1. Where a witness's evidence was not relevant, it has not been further referred to in these reasons for decision. 2. Both the Applicant and Respondent's cases rested significantly on the credit of certain key witnesses. I have included background information relevant to their evidence below. Javaid Malik 1. Mr Malik's evidence was relevant to each of the nine allegations. His oral evidence at hearing took place over five separate days as he was recalled following the cross-examination of other witnesses to respond to statements made by them. The Tribunal therefore had an opportunity to observe him give evidence on a number of separate occasions during the lengthy hearing. 2. I agree with the Respondent's submissions that Mr Malik frequently gave long, discursive and non-responsive answers to simple questions (eg T178.4857-4894, T222.6634-223.6654, T385.840-849), often refused to answer simple "yes" or "no" questions appropriately (eg T401.1522-1555, T408.1843-1858), often sought to repeat his evidence-in-chief orally, even when it was non-responsive (eg T665.5369-5379), and chose to challenge or question his cross-examiner instead of answering the question (T186.5188, T188.5271-5273, T648.4682-4684, T671.5631). I found Mr Malik to be an unsatisfactory and unreliable witness. Consistently, when pressed during cross-examination on an obvious inconsistency between his answers and the documentary evidence, or an inconsistency with previous statements made by him, Mr Malik would begin talking at an increased speed, deflect responsibility to other individuals such as the Applicant's training staff, pose questions to counsel or the Tribunal, and talk in generalisations. 3. These responses were not, as suggested by the Applicant's submissions, merely "reflect[ive] of some idiosyncrasies in Mr Malik's manner of communicating", or explained by the fallibility of human memory, or the fact that English is not Mr Malik's first language. They did not occur in relation to every question or line of questions being posed by the Respondent, but were a specifically observable reaction when the Applicant was being cornered into an admission, or an inconsistency in his evidence was being highlighted by the questioning. My observation was that they indicated where the Tribunal should treat Mr Malik's evidence with caution. Jeremy Charles McNamara 1. Mr McNamara was engaged by the Applicant in June 2021 as its Compliance Consultant for the purposes of the Interim Regime, and he gave evidence primarily relevant to Allegation 7. 2. Mr McNamara's conduct during cross-examination was extraordinary. He was granted leave to attend the hearing by AVL, but after approximately one hour under cross-examination, refused to continue being cross examined because he had "limited availability" and had "other clients to deal with". He blamed this unavailability on the Applicant's legal team, who had arranged his attendance and had (according to him) assured him that his attendance would only be required for one hour, despite information from the Respondent's legal team to the contrary. He left the hearing while still under affirmation and a summons was then issued for his continued attendance in person. I address his evidence in relation to Allegation 7 further below. Robert Balmer 1. Mr Balmer's evidence was relevant generally to the Applicant's conduct and more specifically, to Allegation 1 and the Traffic Control Course which took place at the Applicant's Granville premises on 9 February 2021. 2. Mr Balmer worked for the Applicant between 2015 and 2022, but knew Mr Malik before he started working for the Applicant, and had a social relationship with Mr Malik outside work. As a witness, I found Mr Balmer to be defensive and argumentative, questioning counsel "what's this got to do with anything" and making comments about Mr Malik to the effect of "Geez, you're picking on that bloke". His defensiveness in answering questions and his comments about Mr Malik support the Tribunal accepting the Respondent's submission, that Mr Balmer's motives for lying included both his own reputation, and his longstanding professional and personal relationship with Mr Malik. 3. On disputed factual matters, Mr Balmer was entirely unbelievable as a witness of truth. In cross-examination Mr Balmer identified his signature on various documents and when shown a signature of his name in a distinctly different handwriting, gave new evidence to the effect that both signatures were his. He stated to the Tribunal that he had broken his right arm at school, so had also learned to write with his left hand. That explanation was given without any supporting evidence, and was only provided to the Tribunal by Mr Balmer when he had been cornered in cross-examination with the markedly different signature of his name. I find that explanation entirely implausible in the circumstances. Stephen John Yates 1. Mr Yates' evidence was primarily relevant to Allegation 1 and Allegation 4. He has worked for the Applicant and its predecessors since 2011 and considered Malik his boss, stating: "I wouldn't work for him if I didn't trust him… But he was not a friend. More of a good acquaintance. I wouldn't rely on him in a personal sense. We had a couple of arguments over the years." 1. Mr Yates' own approval to conduct security training was revoked by SLED in June 2021 due to Mr Yates' own non-compliance with the Conditions. In his evidence, Mr Yates continued to disagree with actions taken by SLED, and expressed dissatisfaction about SLED's oversight, describing it as "extreme" and "unrealistic", with "pressure and harassment from auditors". His opinion was that he and Mr Smith had been "targeted" by SLED, which was "Out to get Star", because "if Javaid [Malik] didn't have two trainers, he couldn't do the course, so they targeted me and Shane". 2. Mr Yates was unwilling to make concessions when faced with contrary evidence, either denying the fact, or giving a vague answer such as "I would have" or "I don't remember". When pressed under cross-examination, he exclaimed "I'm not a liar. I get upset when people call me a liar". He gave the Tribunal the impression that at the time of the 9 February 2021 training course, he didn't really pay attention to the detail of his substitution or what had happened from an organisational perspective, and he wasn't concerned at the time that he was not qualified to deliver the training. He had since become aware that it was a problem that he had conducted the training when he was not qualified to do so, and was retrospectively trying to justify or gloss over the details of how that occurred. 3. In his interview with SLED in January 2022, Mr Yates denied running the course on 9 February 2021 at all, denied ever running traffic control courses at Granville, and denied ever running a traffic control course by himself until he received his SafeWork NSW Approval. As discussed below, those denials were entirely false. 4. On the basis of Mr Yates' inability to make appropriate concessions, his defensiveness when pressed on obvious inconsistencies, and his contradictory evidence, the Tribunal considers his evidence with significant caution. Shane Russell Smith 1. Mr Smith's evidence was primarily relevant to Allegation 5 and Allegation 7. He has worked full-time as a trainer for Mr Malik and the Applicant (and its predecessors) since 2009, and has known Mr Malik for more than 20 years, with a close professional relationship that extends to them attending each others' children's birthday parties. 2. Mr Smith's conduct as a trainer was the subject of evidence for the Respondent by a former student, Ms H, and one of SLED's auditors, Ms Burge. He was issued with a number of formal criminal cautions under the Fines Act 1996 (NSW) (Fines Act) and SI Act by SLED in relation to his conduct as a trainer. Under cross-examination he admitted to using offensive language when teaching his classes, verbally berating students, making offensive comments such as "I hope none of you are university graduates. Uni grads are idiots" and mimicking accents. Under cross-examination he expressed that his comments to students were made to "build rapport", acknowledged that he was offensive but explained that the working environment he was training the students for in the security industry was equally robust. He also was firm in his evidence that he had "stopped that" and "cut all that back", demonstrating an awareness and concerted effort to rectify the concerns expressed about his conduct. It appears that despite his offensive language and robust training style he was viewed by the students positively. Other students who gave evidence during the proceedings (Ms S, Mr A), when asked about him under cross-examination, described him as "a really good trainer" and "an excellent trainer", and Ms H agreed that Mr Malik had resolved the concerns she expressed about Mr Smith to him. 3. Mr Smith's competency as a trainer was also put in issue by the Respondent. The course which was the subject of remedial sessions by Mr Rudd (part of Allegation 7), was originally taught by Mr Smith. Under cross-examination he acknowledged his errors and provided context, which was that the courses in issue were newly introduced courses with new assessment requirements and materials. 4. Mr Smith's evidence was frank, open, and plausible. He freely made concessions that his conduct had been inappropriate on specific occasions, but provided reasonable explanations and context for that conduct. The only direct evidence of his inappropriate conduct towards students came from Ms H, who was present in one of his classes for less than two hours and admitted that he "immediately got me offside". I accept his evidence and prefer it where it conflicts with other witness' evidence. John Stoodley 1. Mr Stoodley's evidence was primarily relevant to Allegation 3, Allegation 5 and Allegation 7. He has worked full-time as a trainer for the Applicant since 2015 and has a close professional relationship with Mr Malik. 2. The Respondent submitted that: "Mr Stoodley nevertheless gave generally honest evidence. As detailed below, he made appropriate concessions concerning errors in his marking of student assessments and was candid about the fact that he did not personally supervise [Mr S]'s Language, Literacy and Numeracy (LLN) test." 1. I agree with that submission. Urooj/Sarah Ilyas 1. Sarah Ilyas worked for the Applicant between August 2017 and February 2021. She had a close familial relationship with Mr Malik until 2021, the circumstances of which I discuss further below in the context of Allegation 6. 2. Sarah Ilyas' evidence went to the heart of the Respondent's case in these proceedings. Although her evidence of specific events was only relevant to Allegation 6, Sarah Ilyas' affidavit (R5, R20) evidence canvassed each of the six original allegations against the Applicant and Mr Malik, and SLED's investigation preceding the revocation of the Applicant's licence was instigated by her complaints to SLED. 3. Sarah Ilyas' evidence was self-serving and, at times, entirely implausible and unbelievable. She claimed to have not discussed anything relevant with her sister Amna or their parents, including issues with her visa, her discussions with SLED, or her conflict with Mr Malik. When pressed on vague evidence, under cross-examination, she appeared to make up entire conversations and series of events, previously undisclosed. When giving evidence about her use of Mr Malik's credit card (part of Allegation 6), this included entirely new evidence about how the payment was arranged, phone calls she made, where she kept the cash, and conversations with her lawyer, none of which was supported by any documentary or objective evidence or by any other witness. She admitted to emailing her former solicitor prior to the hearing, in what was clearly an effort to shore up her recollection and evidence about the payment of his fees. 4. The Applicant submitted: "37. During the course of cross-examination in respect of the use of the credit card, Sarah Ilyas gave evidence about additional telephone calls not mentioned in her witness statement or affidavit. When pointed out to her, she said: "I never thought like this case is on me and I have to justify myself on this, so I have to give all the details whatever happened back in 2017, to be really precise". Because Sarah Ilyas admitted that she made claims in the belief it was unnecessary for her to justify them, the Tribunal cannot accept her evidence in contentious areas unless it is inherently probable or corroborated by independent evidence. 38. Her attitude and demeanour in cross-examination were cavalier, defensive, and combative. On occasion, she was deliberately uncooperative in respect of simple questions where she perceived that a cooperative answer might be adverse to her. Her modus operandi was to feign ignorance or to feign memory loss when it suited her to do so." 1. I agree with those submissions. When pressed under cross-examination, Sarah Ilyas would act vague or confused about the question, defer to an explanation of English not being her first language, or not considering something important enough to include in her affidavit evidence. When contrary evidence was put to her recollection, she would refuse to make concessions on even minor points, especially noticeable in circumstances where this would contradict her earlier assertions under cross-examination about not discussing her statement with her sister Amna. This was the case even when she was granted a certificate under s 128 of the Evidence Act 1995 (NSW) with respect to her evidence about not providing the Department with highly incriminating information about her relationship, stating "I wasn't aware I needed to update them about my relationship", an explanation which was entirely implausible in the circumstances of all her previous evidence. 2. Sarah Ilyas deliberately edited documents which were required to be produced by her under summons. The documents produced were demonstrated to be edited selectively by her, and when she was questioned on her editing, she fabricated evidence or said "I don't know" or "I can't remember" and then offered a range of possible explanations including "If I was trying to fit it on one page", and stating "Why would I lie". The evidence demonstrated clearly that the records had been edited specifically to support her falsified version of events in these proceedings, and to deceive a former employer about her qualifications. 3. There was also evidence that she attempted to log into the Applicant's online student record portal, TRUSS, during the hearing of these proceedings (Affidavit evidence from Ali Mir Zulfiqar, Exhibit A65). When this was put to her in cross-examination, she said "Why would I lie? I'm not lying. Maybe. I don't know. I can't recollect. I don't remember". When given proof that she logged in at 5.42pm on 2 November 2023 after the hearing, she stated, "I don't remember. I don't remember that I actually did it or not". When given proof that she tried to log in 4 times on 2 November, she said, "I can't recall". When it was pointed out to her that she received emails to her email address each time she attempted to login, she said, "I don't remember, I have 100,000 unread emails. I can't recall an email from Star. I don't remember". When asked if at any time, between leaving the Applicant's employment in 2021 and that day of cross-examination at the hearing, she had tried to access TRUSS, she said "I don't remember". 4. I do not accept Sarah Ilyas' evidence where it conflicts with any other available evidence. SLED's letters of support 1. The motivation Sarah Ilyas had for providing evidence in these proceedings was two-fold. First, she and Mr Malik had a significant falling-out in 2021, at the time that Mr Malik discovered she had married a different man to the man he believed she was in a relationship with. The significance of that falling out is discussed below in the context of Allegation 6. Second, Sarah Ilyas relied on these proceedings, and her involvement and cooperation with SLED, in relation to her visa application. 2. Amna Ilyas' motivation is similar. Although there was no specific falling out between her and Mr Malik to the same extent as that between her sister and Mr Malik, in December 2021 she was confronted with Mr Malik notifying the Department that she had not, in fact, worked for the Applicant as a Network Engineer. By May 2022 the Department had issued her with a Notice under s 57 of the Migration Act 1958 (Cth) (Migration Act) because of her false statements in relation to her employment by the Applicant. Amna Ilyas also relied on these proceedings, and her involvement and cooperation with SLED, in relation to her subsequent applications for review of the decision to refuse her Skilled visa. 3. Following the Respondent filing its evidence in April 2023, on 2 May 2023 the Applicant caused a summons to be issued on the Respondent (the May Summons). Included in the production of documents and records under the May Summons were communications between Sarah Ilyas and SLED investigators, and Amna Ilyas and SLED investigators, and three "letters of support" provided by SLED to Sarah and Amna Ilyas in relation to these proceedings. 4. That Sarah and Amna Ilyas' motivation revolved around their respective visa statuses and Mr Malik's withdrawal for their support is confirmed by the emails between Sarah Ilyas and Lisa Stockley, the former SLED investigator who commenced the investigation into Mr Malik and the Applicant, which focus on her visa concerns. On 21 April 2022 Lisa Stockley sent an email to Sarah Ilyas in which she stated, among other things: "I am able to assist, should it become necessary, to verify any assistance provided to SLED with your new employer or the Department of Immigration wish to verify any information with SLED regarding Amna's cooperation with SLED's investigation." 1. On 27 July 2022, Sarah Ilyas sent an email to Ms Stockley which stated, in part: "I need a favour from you if you do i will be very thankful. I applied for my Permanent Residency and my lawyer wants to highlight Javaid's case as I can't go Back to Pakistan because of his threats. Can i please get a letter for you to backup this statement please." 1. Ms Stockley replied to Sarah Ilyas' email: "We should be able to provide a letter confirming that you have provided a statement and assistance in SLED's investigation." 1. SLED provided Sarah Ilyas and Amna Ilyas with "letters of support" dated 15 March 2023, 27 March 2023 and 11 April 2023. Whilst the letters of support were not a "criminal justice certificate" within the meaning of s 148 of the Migration Act, they did state: 1. that Sarah and Amna Ilyas have been assisting SLED "in relation to enforcement and regulatory action being taken against" their former employer Star; 2. that Sarah and Amna Ilyas are required to provide evidence at the hearing before the Tribunal in this proceeding; 3. that it would be preferable for Sarah to remain in Australia for the hearing before the Tribunal; 4. the expected dates for the hearing, as they were known at the time; 5. that SLED is concerned about Mr Malik's conduct towards Sarah and Amna; 6. that SLED is grateful that Sarah and Amna have agreed to continue to assist with investigations. 1. The Respondent submitted that the letters of support "go no further than indicating that it would be preferable for both Ms Sarah Ilyas and Ms Amna Ilyas to be able to give evidence at the hearing before this Tribunal in person". I disagree. The letters of support, dated 15 March 2023, 27 March 2023 and 11 April 2023, were provided at the exact time that Sarah Ilyas and Amna Ilyas were drafting their affidavits in these proceedings, which were affirmed on 11 April 2023 and 12 April 2023 respectively. 2. At that time, both Sarah Ilyas and Amna Ilyas' visa and residency statuses were undecided. Both Sarah and Amna Ilyas' solicitors attached the letters of support to their respective visa application reviews and relied heavily on them. 3. Sarah Ilyas' partnership visa was refused by the Department and was subject to review by the Administrative Appeals Tribunal (AAT). Both the 15 March 2023 and 27 March 2023 letters were supplied by Sarah Ilyas' solicitor to the AAT in the context of that review, described as: "Letter of support from NSW Police Force re Ms Ilyas' need to remain in Australia to assist NSW Police Force with their ongoing investigation against an individual and threats of harm against Ms Ilyas by the same individual." 1. The 27 March 2023 letter of support, provided to the AAT, included: "SLED understands that Sarah has an ongoing immigration matter which may result in her having to leave Australia in order to pursue visa options offshore. As previously advised, Sarah will be required to provide evidence in a hearing in the NSW Civil and Administrative Tribunal (NCAT) in relation to a decision to revoke STAR's master security licence. The hearing in NCAT has been listed for seven days from 22-30 June 2023 in person in Sydney. It would therefore be preferable for Sarah to remain in Australia, as there may be difficulties in her being able to assist with the matter and provide evidence if she is required to leave Australia." 1. On 11 April 2023, the AAT affirmed the Department's refusal decision, and declined to refer her case for ministerial intervention under s 351 of the Migration Act. In May 2023, Sarah Ilyas made a request to the Minister for ministerial intervention, providing and relying upon the letters of support from SLED. 2. Amna Ilyas requested a similar letter in support from SLED in the context of her visa application review in the AAT. SLED provided Amna Ilyas with a letter of support dated 11 April 2023, which was sent by Amna Ilyas' solicitor to the AAT on 10 May 2023. The letter of support was stated by her solicitor to support submissions made with respect to Amna Ilyas' application for review of the Department's decision to refuse her Skilled visa application. That decision had been made, in part, because Amna Ilyas had lied to the Department that she was working for the Applicant as a Network Engineer. 3. The letters of support provided by SLED to Sarah and Amna Ilyas provide a clear incentive to both of them to provide affidavit evidence in these proceedings, without which much of the Respondent's allegations could not be maintained. They also provide incentive for both Sarah and Amna Ilyas to maintain the evidence contained in their affidavits and remain involved in the proceedings, especially while their visas remain under review. The incentive provided to both Sarah and Amna Ilyas supports the Tribunal considering their respective evidence with caution. Amna Ilyas 1. Amna Ilyas worked for the Applicant between July 2019 and March 2021, and worked for Mr Malik's son between 2017 and 2019. She had a close familial relationship with Mr Malik until after her resignation from the Applicant in 2021, the circumstances of which I describe below in the context of Allegation 6. 2. Amna Ilyas' affidavit evidence (R10, R19) was largely relevant only to Allegation 6, although she gave some evidence in relation to other aspects of the Respondent's allegations against Mr Malik and the Applicant. Specifically in relation to Allegation 1, Amna Ilyas' evidence contradicted Sarah Ilyas' evidence and was largely corroborative of Mr Malik's. Under cross-examination she conceded that parts of her affidavit were a mistake and it was apparent that she did not take significant care in ensuring the accuracy of her written evidence. 3. Bearing in mind the incentive Amna Ilyas had to provide evidence in the proceedings and support the Respondent's case against Mr Malik, but also taking into account the concessions she made where appropriate, I give her disputed evidence limited weight where it is unsupported by corroborative evidence from other witnesses, or the documentary evidence (where I have accepted that evidence as accurate). Paul Lewis 1. Paul Lewis was a trainer who started working for Mr Malik in 2008. In November 2018 he contacted Training Services NSW using a pseudonym and made allegations against Mr Malik and the Respondent, which form the basis for Allegation 2. His evidence is also the basis for Allegation 9. My findings in relation to his evidence are included in my consideration of those allegations below. Relevant Factual Findings Allegation 1: the Applicant provided false and misleading records to SafeWork NSW 1. Allegation 1 is set out at [11] and [12] above. 2. It was undisputed that: 1. to deliver training and assessment for Traffic Control courses, a person must be approved as a trainer by SafeWork NSW, the responsible regulator; 2. the Applicant's paperwork for Traffic Control Course TTC002816, submitted on 19 January 2021 to SafeWork NSW, indicated that the training on 9 February 2021 was to be delivered by Mr Balmer, instead of Ms Christina Kefalidis; 3. both Ms Kefalidis and Mr Balmer were trainers approved by SafeWork NSW to deliver the course; 4. Traffic Control Course TTC002816 on 9 February 2021 was actually delivered by Mr Yates; 5. Mr Yates was not a trainer approved by SafeWork NSW to deliver the course on 9 February 2021; 6. Mr Yates was subsequently approved as a trainer on 19 February 2021; 7. The Applicant ultimately notified SafeWork NSW in July 2022 that Mr Yates had delivered the course on 9 February 2021. 1. The Respondent alleged: 1. Mr Balmer did not attend the Applicant's Granville campus to deliver Traffic Control Course TTC002816, either at all, or at least at any time after 8am on 9 February 2021; 2. Mr Yates represented himself to the students of Traffic Control Course TTC002816 on 9 February 2021 as Mr Balmer; 3. Mr Yates was sufficiently unqualified to conduct the course that a number of students complained; 4. Mr Balmer did not mark or sign the assessments, the Evidence of Identity and Record of Training or the Certificates of Completion for the students, and each of Mr Malik and Mr Balmer knowingly gave false evidence when they said he did so; 5. between 3 and 4pm on 9 February 2021, Mr Malik forged Mr Balmer's signature on the students' assessments. It is unclear whether Mr Malik or Mr Yates marked the assessments; 6. sometime that day, Mr Yates completed section 3 of the students' Evidence of Identity and Record of Training in his own name, while Mr Malik forged Mr Balmer's signature in section 4; 7. at around 4pm, Mr Yates forged Mr Balmer's signature on the students' Certificates of Completion in the presence of the students. He mistakenly used Ms Kefalidis' trainer number, rather than Mr Balmer's, in circumstances where he had no reason to have a particular memory of either, and had no trainer number of his own; 8. Mr Malik consciously decided not to inform SafeWork NSW that Mr Yates had conducted the course on 9 February 2021, never instructed his staff to advise SafeWork NSW of this, and rather maintained the position with SafeWork that Mr Balmer had done so; 9. Mr Malik had an intention to mislead SafeWork NSW by the submission of the notification on 16 February 2021, or at the very least by deciding not to inform SafeWork that Mr Yates had taken the course; 10. Mr Malik had the intention to mislead SafeWork NSW by forging Mr Balmer's signature on the assessments and the evidence of identity documents. 1. The Applicant claimed that Mr Balmer marked the assessments and issued the certificates for course completion, despite not delivering the course himself. The Applicant also alleged that as at 9 February 2021, although Mr Yates was not yet approved as a trainer by SafeWork NSW: 1. He possessed the qualifications and experience required to become an approved trainer; 2. He had assisted the nominated trainer in running other traffic control courses on multiple occasions; and 3. He was in fact promptly approved as a trainer on 19 February 2021 (following the lodgement of his application on 10 February 2021). 1. The Applicant claimed that Mr Malik instructed his staff to provide SafeWork NSW with details of how Mr Yates assisted in delivering the course on 9 February 2021, but this was not done. The eventual notification to SafeWork NSW in July 2022 resulted in SafeWork NSW issuing a 'default notice', but no further action was taken. 2. Evidence regarding Traffic Control Course TTC002816 on 9 February 2021 was given by Mr Malik, Mr Yates, Mr Balmer, Ms M, Sarah Ilyas and Amna Ilyas. The witness evidence was inconsistent and contradictory. Many of those inconsistences or contradictions were not particularly relevant to the factual findings needed to be made on the evidence, and so I have only addressed those which are relevant. 3. The allegations of forgery made by the Respondent were based, in part, on the handwriting and signatures of the course trainers located in the documentary evidence. The documentary evidence included copies of Ms M's Traffic Controller Training Combined Theory and Assessment Workbook, Evidence of Identity and Record of Training, and Certificate of Completion from the course on 9 February 2021. The identity of who exactly had signed those documents, which were dated 9 February 2021, was disputed. A further Certificate of Completion from the course of 10 March 2021 was accepted by both parties to have been completed, signed and dated by Mr Balmer. 4. Ms M was the only student of the course on 9 February 2021 to give evidence and be cross-examined at the hearing. She gave a statement to SLED on 3 December 2021, which was unfortunately not disclosed to the Applicant until the hearing had commenced. 5. Ms M's evidence was that she was informed upon her arrival at the Applicant's Granville campus around 9am that the trainer was sick and the course might be cancelled. Nevertheless, the course started, and she was taught by a trainer who introduced himself as "Robert", said "You can call me Bob", and who arrived at the Star Granville campus around 10am. The trainer made comments during the course which she found to be inappropriate and sexist towards women, and made her feel uncomfortable. She discussed this with other female students during a break. At the end of the course on 9 February 2021 she lined up with the other students to receive her Statement of Completion and saw him write details on it, sign it and handed it to her. She left the building that day after completing the course at around 4pm. 6. On 10 March 2021 Ms M attended the Applicant's Granville premises again to do another course. She described the trainer: "The trainer seemed to look the same as the trainer on the first course, but looked a bit different, he seemed to of lost weight and his face looked thinner. … I would describe him as tall, male white, about 70 years old, with white hair." 1. Ms M was not cross examined on her recollection of either of the trainers' appearances. Ms M described the trainer's teaching style on 10 March 2021 as "a bit different in comparison" and noted that he did not make any sexual or inappropriate remarks towards women. At the end of the day she lined up with the other students and watched the trainer complete the Statement of Completion and sign it, before it was handed to her. 2. Unlike the other witnesses relevant to this allegation, Ms M had no motivation or reason to support either the Applicant or the Respondent's version of events. She had no interest in the outcome of the proceedings and was not informed at the time of making her statement of the nature of the Applicant's alleged misconduct. At hearing I found her to be an honest, straightforward and thoughtful witness. However, I agree with the Applicant's submission that Ms M's evidence should be treated with caution, for the following reasons. First, because her recollection of the events on 9 February 2021 was initially sought nine months after the event, which is a reasonable delay. Second, because the transcript of her interview with SLED demonstrates much of her evidence was elicited by leading questions. Third, because she accepted under cross-examination that she did not have an entirely independent recollection of the events, and relied on her review of the statement prepared some 2 ½ years earlier. Forgery allegations 1. There were submissions made by both parties about the ability of the Tribunal to make factual findings about handwriting and signatures without expert evidence. 2. The Applicant submitted that an allegation of forgery must be proved by "clear or cogent or strict proof", and: "Ordinarily, where an allegation of forgery is made, it would be expected that expert evidence in respect of handwriting and penmanship would be adduced. That is so in recognition of the fact that the analysis of handwriting is a matter of expertise and that allegations of forgery are of a very serious nature and ought not to be lightly made or found." 1. The Applicant's primary submission was that it was not reasonably open to the Tribunal to make any findings of forgery in the absence of evidence from an expert qualified to express opinions about the handwriting and signatures that are in issue, and that even if it was reasonably open to do so, the Tribunal ought not make those findings in this case in the absence of that expert evidence. The Applicant submitted that it was well within the Respondent's capacity to obtain evidence from a handwriting expert for the purpose of these proceedings, but it had failed to do so. 2. The Respondent submitted that a handwriting expert was not necessary in circumstances where the Tribunal's standard of proof was not the criminal standard, and there were obvious visual differences between the signatures. 3. In In the application of Roderick Mackay Sutherland and Sule Arnautovic [2014] NSWSC 821 at [62]-[67], Kunc J outlined the legal principles involved in considering an allegation of forgery and the question of whether handwriting expert evidence should be obtained or relied upon: "62. The direct methods of proving handwriting (including signatures) are summarised in the Hon. J.D. Heydon QC, Cross on Evidence, Australian Edition (Looseleaf; LexisNexis) at [39095]: The testimonial or hearsay evidence may take one of the following forms: the testimony of the person whose handwriting is to be proved; an admissible hearsay statement of that person; the testimony of someone who saw the document executed (whether the witness be an attesting witness or a bystander); and an admissible hearsay statement by someone other than the person whose handwriting is in question. Nothing need be said with regard to any of these forms of direct evidence except that it is unusually unnecessary, in the first instance, for a witness to the signature to do more than to testify to having seen someone sign in a particular name. The name will, in itself, be sufficient evidence of the identity of the signatory with the person whose handwriting is to be provided, unless there are circumstances calling for investigation, or unless, perhaps, the name is a very common one. 63. The question of the standard of proof where an allegation of forgery is made was most recently considered by Martin J in Groves v Groves [2013] QSC 277: [122] The onus is on Dr Groves to establish that the signatures in question are not hers: Damjanovic v York Agencies Pty Ltd [2003] NSWCA 222. What, then, is the requisite standard? With respect to each of the documents relied upon by the defendants the plaintiff pleads that the signature appearing on the document, which purports to be that of Dr Groves, was not written by Dr Groves. While there is no pleading as to who, on the plaintiff's case, might have written those signatures it is obvious that Dr Groves contends that her signature on those documents was forged. As has been noted above the strong flavour of Dr Groves' evidence was that the "forger" was Mr Groves. But that was not pleaded and Mr O'Shea QC admitted that there was not a sufficient basis to plead that. Nevertheless, it is an allegation of forgery by some unidentified person or persons. As such, it engages the requirement summarised in Jeans v Cleary [2006] NSWSC 647. In that case, it was alleged that the defendant had forged the plaintiff's signature on a personal guarantee. I respectfully agree with what Johnson J said when he dealt with the appropriate standard of proof: "[28] ... the standard of proof to be applied is the civil standard, proof on the balance of probabilities, being qualified having regard to the gravity of the questions to be determined. The test has been said to be whether the issue has been proved to the reasonable satisfaction of the Court, such satisfaction not being produced by inexact proofs, indefinite testimony or indirect inferences: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362; Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 701; Rejfek vMcElroy [1965] HCA 46; (1965) 112 CLR 517 at 521. The Court should be comfortably satisfied on the balance of probabilities before such a finding is made: Bannister v Walton (1993) 30 NSWLR 699 at 711-712. [29] The rationale for this approach was explained in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 (footnotes excluded): 'The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involved criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.'" 64. I respectfully adopt as correct the statement of principles in the preceding paragraph noting only that, for the purposes of these proceedings, the so called "Briginshaw standard" has been supplanted by s 140(2) of the Evidence Act 1995 (NSW): 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. 65. Three other matters are relevant. First, the onus is on the party alleging a forgery to show that the signature was a forgery. The onus is not on the other party to show that the signature was not a forgery: Damjanovic v York Agencies Pty Ltd [2003] NSWCA 222 at [25] per James J; RP Meagher and Beazley JJA agreeing. 66. Second, I respectfully adopt what fell from Holland J in Sumner v Booth [1974] 2 NSWLR 174 at 178, where his Honour made reference to "... the great dangers in the field of handwriting or in the expression of opinions by handwriting experts in acting upon insufficient samples of genuine signatures, including evidence of the date at which those samples came into existence". 67. Third, I respectfully adopt what Johnson J said about the approach to expert handwriting evidence in Jeans v Cleary [2006] NSWSC 647: 155 The handwriting expert evidence forms one part of the body of evidence, both oral and documentary, upon which I must base my findings of fact. It would be erroneous to treat the expert evidence as being, in some way, decisive on its own in a case such as this: Gawne v Gawne (1979) 2 NSWLR 449 at 453A-B, 455-456. In Gawne v Gawne, Glass JA (Reynolds JA agreeing) said at 453A-B: "I am satisfied that his Honour fell into error in his evaluation of the evidence before him. In conceding a dominant role to the expert testimony, he misapprehended the weight of the remaining evidence which, in a cogent way, established the probability that the signatures were genuine, and the improbability that they had been forged. If the opinion evidence of the handwriting experts were put to one side, the whole of the lay evidence made out a strong circumstantial case that the documents of the 9th August, 1968, had in fact been executed by F. C. Gawne." ... 157 As the tribunal of fact, I am entitled to make a comparison between handwriting that is disputed and admitted, although I should pay particular attention and regard to expert testimony on the issue: R v Doney (2001) 126 A Crim R 271 at 280 [61] (Ipp AJA, Hidden and Barr JJ agreeing)." 1. I adopt those statements of principle as correct and relevant to the Tribunal's task in these proceedings. As outlined in Jeans v Cleary [2006] NSWSC 647, I am entitled to make factual findings in relation to the handwriting evidence, in the absence of expert evidence, bearing in mind the serious nature of the allegations of forgery made by the Respondent. 2. Central to the Respondent's evidence in relation to Allegation 1 was that Mr Malik forged Mr Balmer's signatures on documents from the Traffic Control Course of 9 February 2021. This allegation was made initially by Sarah Ilyas in her statement to SLED on 12 October 2021 and her affidavit dated 11 April 2023: "I saw Javaid forging Robert's signature on the Traffic Control Course documents as this was done in reception in front of me." 1. The details of how that forgery was said to have occurred – specifically, the use of carbon paper by Mr Malik to copy Mr Balmer's signature on a number of documents – were not introduced into evidence until Sarah Ilyas' examination in chief at the hearing, and that evidence was led by the Respondent's counsel: "Q. I am going to ask you this, Ms Ilyas, did you or did you not see this document being signed on 9 February? A. He did sign, Javaid. Q. When you say he, you referring to Javaid Malik? A. Yes. … Q. Have you ever seen carbon paper being used at Star Training? A. Yes. Q. Have you ever seen carbon paper with Robert Balmer's signature on it? … Q. Can you describe the carbon paper that you've seen at Star Training? A. So Javaid used carbon paper to replicate Robert Balmer's signature." 1. The evidence that Mr Malik had completed the Statements (Certificates) of Completion and forged Mr Balmer's signature using carbon paper at the reception desk of the Applicant's Granville premises on 9 February 2021 was not included in her witness statement dated 12 October 2021 or her affidavit dated 11 April 2023, and relevant evidence was not led from Ms Amna Ilyas or Ms Darice De Sena, who were also present at the reception desk at various times. 2. Sarah Ilyas' own evidence in relation to the alleged forgery was also inconsistent. In relation to Exhibit A34, which was the Evidence of Identity and Record of Training for [Ms M] dated 9 February 2021, Sarah Ilyas initially claimed that she herself wrote the words beginning with "I, Robert Balmer" on 9 February 2021, and that she saw Mr Malik sign Mr Balmer's name by holding a pen and signing the document, making no mention of carbon paper. Later, as discussed above at 136, she said that Mr Malik used carbon paper to sign Mr Balmer's signature. Still later in her evidence, she said she did not recall seeing Mr Malik sign the evidence of identity document at all ("I don't have the memory for evidence, I can't recall"), and that carbon paper was "used only for assessments". 3. In relation to A32, which was the Traffic Controller Training Combined Theory and Assessment Workbook of [Ms M] dated 9 February 2021, Sarah Ilyas claimed that she saw Mr Malik use carbon paper to sign Mr Balmer's name on all of the assessments. She then said she did not see Mr Malik use carbon paper with Mr Balmer's signature on any other document on 9 February 2021, but later said that Mr Malik had also used carbon paper to sign the evidence of identity document (Exhibit A34). 4. Sarah Ilyas initially claimed that she had not seen carbon paper used to sign Statements of Completion, but later in her evidence claimed that she recalled seeing the Statements of Completion for the course, and recalled seeing Mr Malik sign the Statements of Completion, without using carbon paper. When tested, she said that she was "2000% confident" in her recollection. 5. Present at the reception desk with Sarah Ilyas on 9 February 2021 were her sister Amna Ilyas, and Ms Darice De Sena. Amna Ilyas said that she was at the reception desk on 9 February 2021, and that Ms De Sena was at reception with her "the whole time". In re-examination Amna Ilyas clarified that she had left reception only for a lunch break and perhaps bathroom breaks, but did not otherwise leave the reception desk "for any other reason". In contrast with her sister's evidence, Amna Ilyas said that she never saw any documents being signed at the reception desk. 6. Ms De Sena was issued with a notice under s 39Q(3) of the SI Act by the Respondent to attend Blacktown Police Station to answer questions relating to the applicant, including the traffic control course delivered on 9 February 2021. She was interviewed on 31 January 2022 and said that she was the only administrative assistant present during the morning of 9 February 2021, and Sarah Ilyas did not attend until the afternoon. Ms De Sena said that she saw Mr Yates in the classroom teaching students, and she was not able to remember who completed or signed the certificates. She made no reference to the forgery of any signatures or the use of carbon paper. 7. The Applicant submitted that if Ms De Sena had seen Mr Malik forging signatures with carbon paper in the manner described by Sarah Ilyas, she would have remembered this and would have mentioned it during her interview. This, combined with the Respondent's failure to call Ms De Sena as a witness at the hearing or explain her absence, and Amna Ilyas' evidence, supported the Tribunal drawing an inference that the forgery and use of carbon paper by Mr Malik did not occur. 8. The Respondent accepted that in cross-examination, Sarah Ilyas gave evidence that Mr Malik had also signed the certificates (or Statements of Completion), which contradicted Ms M's evidence. The Respondent submitted that Sarah Ilyas was merely mistaken about this, at least in relation to Ms M's certificate, but that Sarah Ilyas' evidence should otherwise be accepted. 9. I agree with the Applicant's submissions in relation to Sarah Ilyas' evidence. The inconsistencies in Sarah Ilyas' evidence, the fact that the evidence of the use of carbon paper was led by the Respondent during cross-examination and there was no earlier mention of this, the failure of both Amna Ilyas and Ms De Sena to corroborate her allegations of forgery and the use of carbon paper at the reception desk, and the failure of the Respondent to call Ms De Sena to give evidence at hearing, supports the Tribunal rejecting Sarah Ilyas' evidence on this issue entirely. 10. The Applicant submitted that if the Tribunal gave Sarah Ilyas' evidence no weight, there is no evidence at all that Mr Malik signed any documents for the traffic control course on 9 February 2021. I agree. It follows that I am not satisfied of the following facts alleged by the Respondent: 1. That between 3 and 4pm on 9 February 2021, Mr Malik forged Mr Balmer's signature on the students' assessments; 2. That on 9 February 2021 Mr Malik forged Mr Balmer's signature in section 4 of the students' Evidence of Identity and Record of Training documents; Who completed and signed the documents, and when? 1. What remains, however, is the question of who, in fact, completed and signed the documents for the 9 February 2021 Traffic Control Course, and when those documents were signed. 2. In written closing submissions, the Respondent submitted (at [215]): "a. it is plainly apparent that the handwriting and signatures on Ms M's Certificates of Completion from 9 February and 10 March 2021 are different, and that the certificates were completed by different people, though both purport to be signed by Mr Balmer (both R25). It is uncontroversial that Mr Balmer did teach the course on 10 March 2021 and that the certificate from that date was signed by him. The signature on that certificate is also very similar to the signature on Mr Balmer's affidavit in these proceedings, which should be taken as his authentic signature." 1. I agree with the Respondent that the handwriting and signatures on Ms M's Statements of Completion from 9 February 2021 and 10 March 2021 are different. So much is plainly obvious from examining those documents, and I do not need an expert to be satisfied of that fact. 2. The Applicant's submission, based on Mr Balmer's evidence at hearing, was that both documents were completed and signed by Mr Balmer, and that the differences in handwriting and signature are explained by him being ambidextrous. The only evidence that Mr Balmer was ambidextrous was given by him during cross-examination, when presented for the first time with the clearly different sets of handwriting and signatures on the Statements of Completion, both of which purported to have been signed by him. I find his explanation implausible and, given the circumstances, reject that evidence as untruthful. I do not accept that both signatures are his, and therefore find that another individual signed the Statement of Completion dated 9 February 2021. I therefore do not accept the Applicant's submission. 3. I accept that the signature on Ms M's Statement of Completion of 10 March 2021 and on Mr Balmer's affidavit in these proceedings is that of Mr Balmer. This was undisputed. The consequence of these undisputed facts and the implausibility of Mr Balmer's evidence that he is ambidextrous and thereby also completed and signed the 9 February 2021 Statement of Completion, is that someone other than Mr Balmer completed and signed Ms M's Statement of Completion for the course she attended on 9 February 2021. 4. In his email to SafeWork NSW of 27 July 2022, Mr Malik stated: "Mr Yates did not conduct any assessments for this course. The assessments were marked by Mr Balmer." 1. Mr Yates' initial evidence was that Mr Balmer marked the assessments for the 9 February 2021 course in Mr Yates' presence shortly after the course was completed, at either Mr Yates' house or Mr Balmer's house. In oral examination-in-chief, he corrected that evidence to say that the marking would have been done at the Star campus, and that "the girls" – ie, the administrative assistants at the reception desk – had marked the assessments, completed the certificates, and signed them: "… can't remember seeing [Mr Balmer] mark any of the papers at all because the papers were handed in to the girls and then handed back to me with the certificates already completed. … I handed the paperwork in to the girls, roughly 45 minutes later, the assessments were all marked and the certificates had been filled out and signed." 1. Mr Yates said that he did not sign the Statements of Completion, and he handed out Statements that had already been signed. 2. The Applicant submitted that the presence of Ms Kefalidis' training number on Ms M's Statement of Completion demonstrated that Mr Yates did not complete or sign the certificate, because he didn't know Ms Kefalidis' training number. The Applicant submitted that: "…the only reasonable explanation for the presence of Ms Kefalidis' trainer number is that one of the administrative assistants filled out the statements of completion for the course and erroneously identified the wrong trainer number. … Any hypothesis accepted by the Tribunal in relation to the events of 9 February 2021 must be one that accounts for the presence of Ms Kefalidis' trainer number. … Ms M refused to accept the possibility that she might have misremembered seeing Mr Yates fill out the entirety of her statement of completion. When challenged, she said: "I feel quite confident that he filled out this certificate." Her evidence is inconsistent with the glaring probability that an administrative assistant filled out the erroneous trainer number for Ms Kefalidis. Once it is accepted that an administrative assistant filled out Ms Kefalidis' trainer number, it should also be accepted as probable that an administrative assistant filled out all such administrative fields (that is, everything other than the signature). It follows that Ms M's confidence in what she thought she saw Mr Yates fill out on her statement of completion was misplaced." 1. Contrary to the Applicant's submission, Ms M's oral evidence under cross-examination was that she saw the trainer write her name and saw him sign the Statement of Completion, but she could not recall whether she saw him write the name of the course, she was not looking at him the entire time writing everything down, and she was merely guessing he wrote everything on the certificate (Statement of Completion) because the handwriting looked the same throughout. 2. Based on Ms M's evidence, and the circumstances in which she gave her evidence to SLED around 9 months after the incidents she was recalling, I find that she was mistaken in her recollection of seeing Mr Yates write her name and sign her Statement of Completion on 9 February 2021. The only difference described by Ms M between the two trainers who taught her on 9 February 2021 and 10 March 2021 was that the trainer on 10 March 2021 "seemed to of lost weight" and didn't make inappropriate comments. Considering the undisputed evidence that two different people taught those two courses, it appears likely that Ms M's recollection of the two courses and the trainers who conducted them is conflated. I am not satisfied on that basis that she did, in fact, see Mr Yates sign her Statement of Completion on 9 February 2021. 3. Sarah Ilyas said that she had filled out parts of Ms M's documents, and Amna Ilyas admitted during cross-examination that she could not recall whether she or Ms De Sena might have filled in the administrative parts of the Statements of Completion. Given that evidence and the erroneous inclusion of Ms Kefalidis' training number on Ms M's Statement of Completion, I consider it more likely than not that at least part of that document was pre-filled by administrative staff. 4. I am not satisfied that Mr Yates forged Mr Balmer's signature on Ms M's Statement of Completion on 9 February 2021 as "RB". First, I am not satisfied that this constituted a forgery of Mr Balmer's signature because it is so obviously different to Mr Balmer's undisputed signature. I accept that the signature is fraudulent, in that it is purporting to be signed by Mr Balmer in circumstances where I have found that it was not signed by Mr Balmer. However I cannot be satisfied who, in fact, signed the Statement of Completion. 5. I am also not satisfied that all the students' Statements of Completion were signed in this manner, because there are no other Statements of Completion before the Tribunal for the purpose of being satisfied of that aspect of the allegation. Fraud is a serious allegation and the Tribunal would need to be satisfied that the fraud occurred in each instance. It is not appropriate for the Tribunal to infer that the fraud occurred on all students' Statements of Completion on the basis of only one such example, where the evidence from Ms M is that she did not pay attention to what the trainer was doing in relation to the other students' documents. 6. I do not accept, as submitted by the Respondent, that the assessor's writing and signature on Ms M's Traffic Controller Training Combined Theory and Assessment Workbook (A32), and the trainer's declaration in section 4 of Ms M's Evidence of Identity and Record of Training (A34), are so different to the handwriting and signature on Ms M's Statement of Completion dated 10 March 2021 (which is undisputedly Mr Balmer's signature) that another person (other than Mr Balmer) must have completed them. There are some variations between the signatures, but I consider these variations minor, and I am therefore not comfortable making a finding that they were made by someone other than Mr Balmer. An allegation of forgery is serious, and the evidence before the Tribunal is not clear or convincing enough to support such a finding in relation to those records. 7. What is more likely on the evidence before the Tribunal is that Mr Balmer completed and signed the relevant parts of A32 and A34, but did so on a date after 9 February 2021 and after Ms M was given the Statement of Completion. Irrespective, I can remain unsatisfied of the Respondent's forgery allegations without determining what exactly did occur. As referred to above, an allegation of fraud or forgery is serious, and the onus is on the party alleging a forgery to show that the signature was a forgery. The onus is not on the other party to show that the signature was not a forgery: Damjanovic v York Agencies Pty Ltd [2003] NSWCA 222 at [25] per James J; Meagher and Beazley JJA agreeing. Whether Mr Balmer attended the Applicant's Granville campus on 9 February 2021 1. It is undisputed that Mr Yates delivered the course to students on 9 February 2021. He claimed to have not seen Mr Balmer that day at all. 2. Mr Malik's evidence was that Mr Balmer arrived at the Applicant's Granville campus at about 8am. In cross-examination, Mr Malik initially denied seeing Mr Balmer at this time, but said it was his usual practice to arrive around 7.30am to 8am. Mr Malik had a phone conversation with Mr Balmer at around 8:15am in which Mr Balmer indicated that he could not run the course. Mr Malik claimed to have been told by Mr Balmer that he was in a carpark at Granville, and then later claimed that he saw Mr Balmer sitting in his car in the carpark at Granville and spoke to him there. At some point they discussed that Mr Balmer marking the assessments and signing the certificates later that day. 3. In his second affidavit, Mr Malik could not recall whether Mr Balmer returned to the campus that day, but under cross-examination he stated that he saw Mr Balmer at the Applicant's Granville campus at around 4pm, and he was there for the purpose of marking the assessments and signing the certificates. Mr Malik claimed to have bought Mr Balmer a coffee at around 5pm. Mr Malik left the Granville campus at around 5pm, and claimed that the students, Mr Yates and Mr Balmer were all present when he left. 4. Mr Balmer's evidence was that he arrived at the Granville campus at approximately 6 or 6:30am on 9 February 2021. He let himself into the campus, and there was "definitely" no one else present at any time until he went for a coffee across the road at approximately 6:30 or 6:45am. When he went to the coffee shop, he saw Mr Yates was also there. Mr Balmer asked Mr Yates to conduct the traffic course that day, and offered to return in the afternoon to "sign the paperwork and check the paperwork". He did that because he "didn't know" if Mr Yates was "eligible to do that part", but it was his understanding that it was "okay for him to do the course". After speaking to Mr Yates in the coffee shop, Mr Balmer returned home and did not attend the Star campus again that morning. On the way home, Mr Balmer rang Mr Malik at 8:30 or 9am and spoke to him. Mr Balmer returned to the Granville campus the same day when it "was getting on to dark, so 5, 5.30, somewhere around that, 4. I'm not sure". He used his key to let himself in, the campus was empty, and he did not see anyone. The student paperwork was "on each table of the students and I just picked them all up, done the marking and then left it in the office for the girls in the morning". Mr Balmer never saw or spoke to any of the students who did the course that day. He claimed to have signed the certificates (Statements of Completion) when he returned to campus late in the day, but they were not handed out on the day. 5. I do not accept Mr Balmer's evidence that he came to the Applicant's premises in the morning of 9 February 2021 before Steve Yates took his place, and I do not accept his evidence that he again attended the Applicant's premises at night after the course concluded, to fill in the relevant forms and sign the 100 point ID form certificates. I find it unlikely that Mr Balmer was present at the Applicant's Granville campus on 9 February 2021. No one else, other than Mr Malik, gave evidence that they saw him there. Mr Malik's accounts of seeing Mr Balmer on 9 February 2021 were inconsistent and contradictory. On that basis and in the context of my general credibility findings regarding both Mr Malik and Mr Balmer, I reject the submission that Mr Balmer was present at the Applicant's premises or at nearby coffee shops, or in a carpark at Granville at any time on 9 February 2021, and reject the submission that he completed any parts of the Statements of Completion or other documents for the 9 February 2021 Traffic Control Course, on 9 February 2021. 6. I therefore agree with the Respondent's submission that Mr Balmer did not attend the Applicant's Granville Campus on 9 February 2021. That Mr Yates represented himself to the students of Traffic Control Course TTC002816 on 9 February 2021 as Mr Balmer 1. The Respondent's allegation that Mr Yates represented himself to the students of Traffic Control Course TTC002816 on 9 February 2021 as Mr Balmer is based on the evidence of Ms M, who claimed that she was taught by a trainer who introduced himself as "Robert", who asked the students to call him "Bob". 2. Mr Yates denied asking students to call him "Bob". His evidence was that he told the class something along the lines of, "Bob is off sick today and I'm taking his place", and that he wrote his name on the whiteboard as he usually does, as "Steve Yates". 3. Ms M was not asked whether she saw "Steve Yates" on the whiteboard. Ms M's witness statement did not record the actual words used by Mr Yates to introduce himself, only her understanding of what he said, and no evidence of the words was led from her in chief. Under cross-examination Ms M denied he said, "Robert's sick, but you can call me Bob", but accepted he said something like, "You can call me Bob". 4. The Applicant submitted that "You can call me Bob" is a form of words that is consistent with both Mr Yates' account that he wrote "Steve Yates" on the whiteboard and said he was taking Bob's place for the day, and Ms M's account that he asked students to call him Bob. Further, that it was evident that Ms M knew Mr Yates was not the scheduled trainer. 5. As discussed above, I am cautious about accepting Ms M's evidence. There is no other direct evidence from the students who attended the course taught by Mr Yates on 9 February 2021. I am satisfied that Mr Yates told students words to the effect of "You can call me Bob" but I am not satisfied that by doing so, Mr Yates represented himself to students as Mr Balmer. That Mr Yates was sufficiently unqualified to conduct the course that a number of students complained 1. The only evidence that Mr Yates was "sufficiently unqualified to conduct the course that a number of students complained" was from Sarah Ilyas. Sarah Ilyas stated that a number of students complained about Mr Yates' competence, and that Mr Malik was forced to offer a monetary incentive to appease them. 2. There is no corroboration of Sarah Ilyas' evidence. The evidence from Ms M was that some female students complained about the trainer making inappropriate or sexist comments, and the evidence from Ms De Sena, via her interview with SLED on 31 January 2022, was that students actually complained about having a fight with Sarah Ilyas. There was no documentary evidence of any complaints and there was no evidence from any of the students who were claimed to have complained. 3. The undisputed evidence is that Mr Yates was approved as a trainer by SafeWork NSW on 19 February 2021, shortly after he ran the course on 9 February 2021. There is no evidence that he undertook any additional training in the interim, and it is therefore unlikely that his ability or qualifications changed drastically in that time. All that happened was that SafeWork NSW considered his application for approval, and granted that approval. 4. I therefore do not accept that Mr Yates was "sufficiently unqualified to conduct the course" on 9 February 2021, or that "a number of students complained" about his competency. That Mr Balmer did not mark or sign the assessments, the Evidence of Identity and Record of Training or the Certificates of Completion for the students, and each of Mr Malik and Mr Balmer knowingly gave false evidence when they said he did so 1. As discussed above, I am satisfied that Mr Balmer was not at the Applicant's Granville campus on 9 February 2021. I am therefore also satisfied that Mr Balmer and Mr Malik each knowingly gave false evidence when they said he was at the Granville campus on that date, and marked or signed any of the course documents on that date. 2. I am satisfied that Mr Balmer did not complete or sign Ms M's Statement of Completion for the course of 9 February 2021, and I am therefore satisfied that he gave false evidence that he had done so. 3. I am satisfied that Mr Balmer did not mark or sign the assessments, the Evidence of Identity and Record of Training or the Certificates of Completion for the students, at the Applicant's Granville campus on 9 February 2021, because I have found that he was not there on that date. 4. I am not satisfied that Ms M's assessments and Evidence of Identity and Record of Training documents for the course on 9 February 2021 were not marked or signed by Mr Balmer on another date. As discussed above, it is possible that Mr Balmer marked and signed the assessments and signed off on the Evidence of Identity and Record of Training documents for Ms M (and possibly the other students), after the course on 9 February 2021. If this possibility was the case, the fact that he dated those records to 9 February 2021 when they were completed by him on another date demonstrates an intention to mislead SafeWork NSW as to when the assessments and records were completed. That on 9 February 2021 Mr Yates completed section 3 of the students' Evidence of Identity and Record of Training in his own name 1. The Respondent did not identify what evidence it relied upon to demonstrate that "on 9 February 2021 Mr Yates completed section 3 of the students' Evidence of Identity and Record of Training in his own name". 2. Having reviewed section 3 of Ms M's Evidence of Identity and Record of Training document for the course on 9 February 2021, I accept the signature, which reads as "S J Yates", is different to that in section 4, which looks like Mr Balmer's signature. I am not satisfied, however, that because the signature says "S J Yates" that it was, in fact, signed by Mr Yates. This is because Mr Yates said in his evidence that he did not mark the assessments, and did not sign the assessments or the evidence of identity documents. There was no evidence that Mr Yates signed evidence of identity documents in the classroom, or marked or signed assessments in the classroom. Ms M had no recollection of who signed it, or what happened to her assessments after she handed them in. That at around 4pm, Mr Yates forged Mr Balmer's signature on the students' Certificates of Completion in the presence of the students 1. As discussed above, I am not satisfied that Mr Yates forged any signatures, and I am not satisfied that he wrote "RB" on Ms M's Statement (Certificate) of Completion. I have no evidence that he signed other students' Statements of Completion, either with his own name or "RB". That Mr Malik consciously decided not to inform SafeWork NSW that Mr Yates had conducted the course on 9 February 2021, never instructed his staff to advise SafeWork NSW of this, and rather maintained the position with SafeWork that Mr Balmer had done so 1. Mr Malik's evidence was that he gave an instruction to Ms De Sena and Amna Ilyas to inform SafeWork NSW that Mr Yates had delivered the training on 9 February 2021. Amna Ilyas' evidence, which was unchallenged in cross-examination, is that she was never asked to inform SafeWork NSW that Mr Yates had delivered the course. Ms De Sena was not asked about this issue at her interview with SLED and did not otherwise provide any evidence to the Tribunal. 2. I accept that it was not possible for the Applicant to lodge information with SafeWork NSW that named Mr Yates as the nominated trainer until he had been approved as a trainer on 19 February 2021, on the basis of the explanation given by SafeWork NSW to Mr Worrall stating: "Prior to Stephen [Yates] being added to the OLE as an approved trainer for Star Training, the RTO would not have been able to book courses with him as the trainer." 1. It was undisputed that SafeWork NSW were not informed that Mr Yates had conducted the training on 9 February 2021 until July 2022. Mr Malik's evidence was that he only became aware that an oversight had occurred in this respect when he received the Notice to Show Cause of 22 January 2022. He informed SafeWork NSW via email on 27 July 2022. 2. There is no documentary evidence that the Applicant or Mr Malik, on behalf of the Applicant, made any efforts to inform SafeWork NSW that Mr Yates had conducted the 9 February 2021 course, prior to July 2022. To the contrary, the evidence demonstrates that paperwork for the course was submitted by the Applicant to SafeWork NSW on 16 February 2021, and made no mention of the late substitution of Mr Yates. 3. Based on all the evidence I am not satisfied that Mr Malik consciously decided not to inform SafeWork NSW that Mr Yates had conducted the course on 9 February 2021. I am also not satisfied that he never instructed his staff to do so, as there was no evidence from Ms De Sena in relation to this issue and the Respondent did not call her to answer that question for the Tribunal. In circumstances where the Respondent is asking the Tribunal to make an absolute finding that Mr Malik did not instruct his staff, the Respondent should have provided evidence from each staff member as to whether they were or were not so instructed. I agree with the Applicant that a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298) is available to the Tribunal as a result of the Respondent's failure to do so, to the effect that Ms De Sena's evidence may not have assisted the Respondent. Even without that inference, however, I am not satisfied that Mr Malik never instructed his staff to inform SafeWork NSW of the change in instructor. 4. The evidence demonstrates that Mr Malik and the Applicant maintained the position with SafeWork NSW that Mr Balmer had conducted the 9 February 2021 course, until 27 July 2022. The Applicant and Mr Malik had an opportunity between January 2022, when Mr Malik claims he first became aware that the notification had not occurred, and 27 July 2022, to inform SafeWork NSW, and failed to do so. That Mr Malik had an intention to mislead SafeWork NSW by the submission of the notification on 16 February 2021, or by deciding not to inform SafeWork that Mr Yates had taken the course 1. I am not satisfied on the evidence before me that the submission of the notification on 16 February 2021 to SafeWork NSW, which made no mention of the late substitution of Mr Yates, demonstrates an intention by Mr Malik to mislead SafeWork NSW. There is no evidence of Mr Malik's intentions upon which I could make such a finding. That Mr Malik had the intention to mislead SafeWork NSW by forging Mr Balmer's signature on the assessments and the evidence of identity documents 1. As discussed above I have rejected the submission that Mr Malik forged Mr Balmer's signature, so there is no evidence of Mr Malik having any intention to mislead SafeWork NSW. Conclusion 1. Although I am not satisfied on the evidence to make all of the specific findings sought by the Respondent (outlined above at [119]), those specific findings are not essential to the Tribunal finding that Allegation 1 was made out by the Respondent. Allegation 1 was particularised by the Respondent as set out above at [11]-[12]. 2. Based on the evidence before me I find that the Applicant did provide false and misleading records to SafeWork NSW on or around 16 February 2021, that Robert Balmer was the trainer for the Traffic Control Course conducted at Star on 9 February 2021. This was false and misleading in circumstances where Robert Balmer did not, in fact, deliver the course on 9 February 2021. Stephen Yates delivered the course. 3. This information was false and misleading irrespective of whether Robert Balmer marked and signed the assessments, of which I cannot be satisfied. If he did mark those assessments and sign the other course records, however, I find that his dating of those records to 9 February 2021 demonstrates an intention to mislead SafeWork NSW, because they were not marked or completed by him on 9 February 2021. The dating of those records to 9 February 2021 was thereby false and misleading. 4. I find that Mr Malik failed to notify SafeWork NSW that Stephen Yates had delivered the training. However, I am not satisfied that Mr Malik had any intention of misleading SafeWork NSW by not notifying SafeWork NSW of the change in trainer. 5. I find that both Mr Malik and Mr Balmer gave false evidence in relation to Mr Balmer's presence at, nearby or on the Applicant's Granville premises on the day the course was conducted on 9 February 2021. I find that Mr Balmer gave false evidence in relation to completing and signing Ms M's Statement of Completion, dated 9 February 2021, and that he did not complete or sign that document. 6. I find Allegation 1 proven on the evidence before the Tribunal. Allegation 2: the Applicant provided false and misleading records to Training Services NSW 1. Allegation 2 is set out at [13] and [14] above. Allegation 2 concerned a training course for a Certificate IV in Work Health and Safety which the Applicant allegedly conducted for a cohort of 16 students in 2016/2017. Ten of those students supposedly enrolled in, participated in, and completed this course in Raymond Terrace, near Newcastle in NSW, over a period from September 2016 for about 12 months (the Raymond Terrace Course). The Raymond Terrace Course trainer was Paul Lewis. The remaining six students undertook the course at the Applicant's Granville campus with a different trainer. 2. The Applicant was formerly an approved provider of "Smart and Skilled" training and received $64,740 in government subsidies from Training Services NSW's "Smart and Skilled" program for conducting the Raymond Terrace Course. 3. In 2019/2020 Training Services NSW conducted an investigation into the Raymond Terrace Course and found that it did not occur, and that the Applicant had used fabricated data to fraudulently receive the funding grants. Training Services NSW's investigation was prompted by receiving a tip-off from Paul Lewis, who supposedly conducted that training for the Applicant, and who informed Training Services NSW that it had not occurred. 4. Mr Buddeke conducted the investigation for Training Services NSW and prepared a report which found that the Applicant had engaged in the following "Events of Default" against its Smart and Skilled Contract: 1. failed to ensure that all information it provided to Training Services NSW (including Training Activity Data) was true, accurate, complete, correct and not misleading in any way; and 2. failed to act in good faith and not act in any way that could be seen to be unethical, reckless, illegal or dishonest conduct or do anything that may bring into disrepute or be detrimental to Training Services NSW, Smart and Skilled, or the NSW vocational education training market (separately subsidised and non-subsidised) by fabricating evidence and then using that fabricated data. 1. Evidence at the hearing regarding the Raymond Terrace Course was given by Mr Malik, Paul Lewis, and Mr Buddeke. In addition to their evidence, the Respondent relied on the material considered by Mr Buddeke in his investigation, and the investigation report prepared by Mr Buddeke. The Respondent submitted in relation to the investigation report: "The attachments represent the entirely [sic] of the material which was before him as a result of his investigation. As a result, this Tribunal is able to assess the conclusions in that report for itself and draw its own conclusions about the same subject matter." Buddeke's investigation and report 1. Mr Buddeke is the "Leader Provider Management (Appeals and Reconciliation)" at Training Services NSW, which is part of the NSW Department of Education. He was responsible for a Training Services NSW investigation into the Applicant and his evidence was relevant to Allegation 2. 2. Under cross-examination, Mr Buddeke was extremely slow to respond to questions and seemed unable to recall anything independently, or to answer any questions, without taking long pauses and then referring to the documents or other records. He was unable to provide satisfactory answers for why he had not investigated certain lines of inquiry in relation to the Raymond Terrace course, and appeared therefore to have put minimal effort into the conduct of the investigation. 3. The evidence before Mr Buddeke was summarised in section 4 of his investigation report, and included: 1. emails and text messages from Mr Paul Lewis; 2. performance monitoring documentation in relation to the Raymond Terrace Course previously conducted by Training Services NSW; 3. the documentation submitted to Training Services NSW for each of the 10 students, including enrolment applications and assessments; 4. the Applicant's relevant contractual and payment data; 5. records of telephone interviews Mr Buddeke conducted with Mr Paul Lewis and with students from the Raymond Terrace Course cohort (Student 2, Student 8 and Student 9); 6. transcript of a formal interview Mr Buddeke conducted with Student 6, one student from the cohort; and 7. transcript of a formal interview Mr Buddeke conducted with Mr Malik and Mr Dylan Owen, Star's office manager (noting that two other Training Services NSW staff were also present). 1. Paul Lewis, using the pseudonym Dibby De Barlo, emailed the NSW Department of Industry on 1 November 2018 to complain that the Applicant and Mr Malik were fraudulently obtaining Smart and Skilled program funding by purporting to deliver training to students. On 21 December 2018 he revealed to Training Services NSW that his real name was Paul Lewis. Mr Buddeke was tasked with investigating whether the Applicant had engaged in the "events of default" in the 2016 Contract between the Applicant and Training Services NSW, referred to above at [202]. 2. The Applicant submitted that a number of documents, which arose or were said to have arisen in the course of Mr Buddeke's investigation, were not included with the investigation report. Those documents include: 1. records of Mr Buddeke's attempts to contact witnesses; 2. records of Mr Buddeke's fraud report to the NSW Police Force, the event number issued by the NSW Police Force to him, and the Commissioner's records of his report and of the investigative and other steps taken in relation to the alleged fraud; 3. records of Mr Buddeke's emails relevant to the investigation, including attempts to contact witnesses by email; and 4. an alleged email from a student answering questions which were put to her in an email from Mr Buddeke. Neither his questions nor her answers are known. 1. Mr Buddeke's evidence was that he attempted to make contact with a number of students, a number of times, for the purpose of his investigation, but was unsuccessful. There are no records of those attempts. Ultimately he spoke to three students on the phone, and conducted an interview with one student. He interviewed Mr Malik with Dylan Owen, the Applicant's office manager at the time. 2. According to Mr Buddeke's filenotes (Subtab 16-18, Tab 1, SPB-1 to Exhibit R15), he telephoned the three students (Students 2, 8, and 9) on 20 October 2020. Each of the three students "stated that they recalled completing the training", but "could not recall any of the details" or "could not recall the trainer". Each claimed to have completed assessments by hand-writing the answers. 3. The record of interview with Student 6 (Subtab 15, Tab 1, SPB-1 to Exhibit R1) took place on 31 January 2019. Student 6 was a past colleague of Paul Lewis, and had previously arranged training by him for local indigenous students through the local aboriginal corporation. Students 3 and 4 were daughters of Student 6. Student 7 was Student 6's wife, and Student 10 was Student 7's sister. Student 5 was Paul Lewis' sister. 4. Student 6 was shown his student enrolment form, as submitted to Training Services NSW by the Applicant, and denied having completed it or that the signature on that document and other documents was his. He also denied giving anyone permission to sign his name or complete the documents for him. He stated that he had given Paul Lewis the USI (Unique Student Identification) numbers for himself, his wife (Student 7) and daughters (Students 3 and 4), along with copies of their driver's licences and Medicare cards, and then "nothing happened" until he received a certificate in the mail from the Applicant indicating he had completed the course. He had informed Paul Lewis of this at the time, and remained in regular contact with him as he was still trying to arrange for various vocational courses to be run by him for the local aboriginal corporation. 5. Student 6 was shown the documents submitted by the Applicant to have been completed and signed by Students 3, 4, and 7, and he stated that none of the handwriting or signatures on those documents were completed by them. 6. Student 5 was interviewed by the Department of Industry's Smart and Skilled performance monitoring on 7 December 2018 (Exhibit R1 p 92) in relation to the WHS course conducted by the Applicant between 23 September 2016 and 14 September 2017 and claimed "I put my name down but the course didn't go ahead". Student 1 was also interviewed on 28 November 2018 (Exhibit R1 p 96) in relation to the same course. She indicated that her employer, Corrective Services, paid for the course and "it was done through work", couldn't recall getting a certificate but her "employer might have it filed" and recalled "there were a lot" of assessments, including written and demonstration. 7. Mr Buddeke interviewed Mr Malik on 18 July 2019. He suggested to Mr Malik during that interview that all 16 of the students enrolled in the WHS Course for the Certificate IV in 2016 to 2017 did not undergo training and therefore couldn't have been assessed under the qualification. Mr Malik pointed out that 6 of the students were working and had done the training at the Applicant's premises, and the remaining 10 students had undertaken the course at Raymond Terrace. Included in those 6 students who had completed the course at the Applicant's premises were Stephen Yates and Robert Balmer. 8. In relation to the Raymond Terrace Course, in his interview, Mr Malik stated that he relied on the trainer, Paul Lewis: "That's the trainer who done that one, he took all the material from here, the electronic and the copies of them, and he done the training and he came back. He say – he used to tell us that these have – the assessment has been done. I think there a group of Aborigines, [unclear], eight, nine people, whatever, you know?" 1. When it was put to him during the interview that the students from Raymond Terrace did not actually do the assessments or any of the training, and that someone else had completed the assessments for them – Mr Malik said: "I don't know anything about it. No idea what he's talking about…. What we've been told that these guys have done the training and this is the assessment and we – you know - we deliver the assessment, I've looked at one, it was not completed properly, [unclear] they are saying from the background as well, they can't help and stuff like that, so I say okay, that's fine." 1. Mr Malik agreed that he did not have much input or oversight into the students from the Raymond Terrace cohort. 2. In his report Mr Buddeke claimed that: "…the matter was referred to NSW Police and TSNSW stopped further investigation into the matter. …NSW Police continue to have carriage of the matter. However, it would appear from contact with the Police that it is a low priority and they [sic] prospect of criminal charges are low." 1. There was no documentary evidence supporting Mr Buddeke's claim that he had referred the matter to Police or that there had been any consideration by the Respondent of criminal charges. As submitted by the Applicant, the Respondent seems to have relied entirely on Mr Buddeke's investigation and the findings in his report, without testing or checking the veracity of his conclusions themselves. 2. I agree with the Applicant that Mr Buddeke's investigation and report are fundamentally flawed. It is clear from Mr Buddeke's evidence that he was not tasked with investigating the Applicant's conduct as a whole, or even specifically tasked with investigating whether the Applicant had engaged in fraud. His investigation was more limited to the "events of default". 3. Under cross-examination Mr Buddeke admitted that there were no departmental checks or systems in place to ensure that he took certain steps in conducting the investigation. On the occasions he discussed this investigation with his directors, they never suggested any investigative steps to him. 4. Mr Buddeke generally accepted whatever Dibby De Barlo/Paul Lewis told him without testing that information or independent verification. He never asked Paul Lewis any questions about how the enrolment forms and LLN tests came to bear the apparent names, signatures, and handwriting styles of the 10 students who were enrolled in the WHS Course, and for whom Paul Lewis was the designated trainer, and which also bore Paul Lewis's signature. Mr Buddeke did not take file notes of all conversations with Paul Lewis, because he believed Paul Lewis when he had told him that he would submit a statutory declaration containing the matters discussed in those conversations. He also believed Paul Lewis' later excuses for not providing that statutory declaration, because "I don't believe that Paul Lewis had any reason to lie to me". 5. Despite Paul Lewis telling Mr Buddeke that the reason the Raymond Terrace Course didn't go ahead was because he never received the course materials, Mr Buddeke said he could not recall asking Paul Lewis what steps he took to get the course materials and suggested it was not necessary to consider because "He's the trainer and he's telling me the training never took place". Mr Buddeke also did not ask (or could not recall asking) Paul Lewis what happened after the Applicant failed to provide him with resources for the course, or why he could not or did not obtain the resources from the Applicant's online resources portal. Mr Buddeke did not ask Paul Lewis what he did with the personal information he received from Student 6, or how it ended up on the students' enrolment forms. 6. The most glaring problem with the conclusions drawn by Mr Buddeke in his report is that he did not consider, at any time, that Paul Lewis may have been providing him with false or misleading information, or that Paul Lewis could have had any negative motivations in providing information to Training Services NSW. He was entirely influenced by Paul Lewis' claims that the Applicant and Mr Malik had fraudulently arranged for the completion of assessments and course paperwork, and his investigation focussed only on the evidence which would support that conclusion. 7. Mr Buddeke had a significant amount of relevant documentation available to him to conduct his investigation. He had all the 10 students' completed and signed course documentation, assessments and proofs of identity. However, he interviewed only one student out of the ten. That student, Student 6, stated that he provided his personal proof of identification to Paul Lewis, along with that of three other students' (his wife and daughters, Students 3, 4 and 7), but that the completed documents and signatures he was shown during the interview were not in their or his handwriting. Student 6 also stated that the Raymond Terrace course did not go ahead, that he had never been to Granville or the Applicant's campus there, and that he had no contact with the Applicant other than through Paul Lewis. 8. Student 6's evidence provides an investigator with two options: either Student 6 is lying, and he did recognise the handwriting and signatures as that of himself, his wife and daughters; or that Student 6 is being truthful, and someone else completed the documents and signed them without the knowledge of Student 6, his wife or daughters. Mr Buddeke accepted that Student 6 was being truthful. 9. The next question for Mr Buddeke's investigation should have then been: who had fraudulently completed the course documentation and forged the signatures of Student 6, his wife and daughters? Mr Buddeke's inability to consider that Paul Lewis was not being truthful led him to conclude that Mr Malik had done so, or had arranged for it to be done. However, one obvious potential conclusion to an investigator (who did not believe everything Paul Lewis told him) was that Paul Lewis had completed the course documentation and forged the signatures. He had the identity documentation, including drivers' licences containing signatures, of Student 6, his wife and daughters. He had an expectation from Student 6 (and the other students) that he would be submitting the course documentation to the Applicant, and he had Mr Malik's expectation that he was conducting the Raymond Terrace Course on behalf of the Applicant for the 10 students. 10. The Respondent submitted that Mr Buddeke relied on seven "discrete pieces of evidence" to reach his conclusions in his report: 1. Paul Lewis' testimony that the course did not go ahead; 2. Interview with Student 6, who confirmed that the course did not go ahead, that he had not completed or signed the documentation, and that neither had his wife and daughters (Students 3, 4, 7); 3. Student 1 informed Training Services NSW in performance monitoring that the course did not go ahead; 4. Conversations with Students 2, 8, 9 who were unable to recall any details about the course or trainer and claimed to have handwritten the assessments; 5. The assessment evidence showed indications of fabrication, such as identical font and layout, and many identical answers. In one example, 9 of the 10 Raymond Terrace Course students provided identical, or almost entirely identical answers to Activity 1B, and identical answers for Activity 1A; 6. The student signatures on assessments appeared to differ, sometimes significantly, when compared to their driver's licences supplied at the time of enrolment; 7. The Applicant had not complied with its obligations to submit training activity data. Pursuant to its contract with Training Services NSW, the Applicant was required to submit training activity data to Training Services NSW every 28 days. 1. Items 1 to 6 of those pieces of evidence, if accepted, support findings that the Raymond Terrace Course did not take place, and that someone fabricated evidence to fraudulently state that it had. Item 7, if accepted, supports a finding that the Applicant did not comply with its obligations to submit training activity data to Training Services NSW every 28 days. Together, those 7 pieces of evidence do not support Mr Buddeke's conclusions that the Applicant engaged in both of the events of default (as described above at [202]). Whilst I agree that the first event of default would be made out, on the basis that the submission of the fabricated completed course materials and assessments would demonstrate that the Applicant "failed to ensure that all information it provided to Training Services NSW (including Training Activity Data) was true, accurate, complete, correct and not misleading in any way", Mr Buddeke had no evidence, other than Paul Lewis', that the Applicant or Mr Malik had any involvement whatsoever in "fabricating evidence and then using that fabricated data", and no evidence that they had "failed to act in good faith and not act in any way that could be seen to be unethical, reckless, illegal or dishonest conduct, or do anything that may bring into disrepute or be detrimental to Training Services NSW, Smart and Skilled, or the NSW vocational education training market", because there was simply no evidence that Mr Malik or anyone else at the Applicant knew that the course materials were fabricated. 2. In that respect Mr Buddeke relied entirely on the information fed to him by Paul Lewis. For reasons discussed below, I do not accept Paul Lewis' evidence regarding Mr Malik's supposed involvement in the Raymond Terrace Course. 3. In the circumstances, including those discussed at [221]-[228], I give Mr Buddeke's report limited weight. I rely instead on the documentary evidence, including the annexures to his affidavit and the oral evidence at hearing. 4. None of the 10 students provided statements or affidavits in the proceedings, and were not called or summonsed to give evidence by either party. The Respondent resisted an adverse inference from their failure to call any of the 10 students because: "In circumstances where there is compelling evidence, albeit in documentary form, from Student 6 (and him on behalf of his wife and two daughters), Student 5, Student 2, Student 8 and Student 9, there is an evident explanation for not calling the 10 students, and nor can it be supposed that each of those students are in the Commissioner's "camp". The Commissioner notes that Star had equal opportunity to summons any of the witnesses 10 students from the Raymond Terrace Course cohort, but chose not to." 1. I do not agree that the documentary evidence from those students is compelling. There is the record of interview with Student 6, brief file notes of a telephone call by Mr Buddeke with each of Students 2, 8, 9, and a record from Training Services NSW performance monitoring of a telephone call with Student 5. 2. I place no weight on the file notes of Mr Buddeke's conversations with Students 2, 8 or 9. It is impossible to know from the brief account recorded by Mr Buddeke what the students knew or didn't know, or understood, about the questions being asked. The recorded responses are indirect, vague and unspecific. 3. Similarly I place no weight on the record of responses from Students 1 and 5 in the Training Services NSW performance monitoring of students. Contrary to the Applicant's submission, the responses provided by Student 1 do not necessitate finding either that the Raymond Terrace course took place, or that she lied to Training Services NSW. From her responses it is entirely possible that she mixed up her training in another WHS course – one conducted by her employer, the Department of Communities and Justice – with the one she was being questioned about. 4. I place reasonable weight on the records of interview conducted by Mr Buddeke with Student 6 and Mr Malik. These interviews were conducted in 2019, well before the commencement of these proceedings, and before the events precedent to the Supreme Court proceedings, which originated in a Notice to Show Cause issued on the Applicant by the Respondent on 11 August 2021. The responses given by the interviewees in 2019 are therefore less likely to have been influenced by the subject matter of these proceedings. They are also obviously closer in time to the actual events being discussed, than the affidavit or oral evidence in these proceedings. Paul Lewis 1. Despite assuring Mr Buddeke that he would provide him with a statutory declaration outlining the allegations he had made against Mr Malik and the Applicant, Paul Lewis resisted providing any signed statement to Training Services NSW. 2. In Paul Lewis' first affidavit sworn 12 April 2023 (R12) he stated that he started working for Mr Malik in around 2008 as a trainer. In 2016, he proposed to Mr Malik that the Applicant should run a course for a Certificate IV in Work Health and Safety to a cohort of students in the Raymond Terrace area, which he would teach. The cohort of students were people known to Paul Lewis from the indigenous community. Mr Malik agreed. Paul Lewis ultimately enrolled ten students in the Raymond Terrace Course and conducted Language Literacy and Numeracy (LLN) tests for them over the phone. Following this, Paul Lewis heard nothing further from Mr Malik and despite chasing him, never received the course manuals, marking or learning guides or course materials from the Applicant to enable him to conduct the course, so the course did not proceed. Then in October 2017 he became aware that despite this, the students proposed for the course had received certificates for completing the course. Paul Lewis' evidence was that did not send any invoices to the Applicant for the proposed Raymond Terrace Course and did not receive any payments for it, and that in 2019 Mr Malik repeatedly requested that he sign false assessment and other paperwork for this cohort of students, but he refused. 3. Mr Malik responded to Paul Lewis' Affidavit sworn 12 April 2023 by affidavit affirmed 1 June 2023. There, Mr Malik provided the evidence of invoices and payments made by the Applicant to Paul Lewis, via bank account detailed on the invoices. Mr Malik also detailed his account of providing Paul Lewis with the course materials to conduct the Raymond Terrace Course, and his broad oversight of the course via John Leggett and Dylan Owen. 4. In his second affidavit affirmed 19 October 2023 (R29) Paul Lewis addressed Mr Malik's evidence about invoice and payments, which I will consider below. Paul Lewis also alleged that he had met with Bob Lewis in early October 2023, who conveyed to him a request, by Mr Malik, for him to change his evidence in relation to Raymond Terrace Course, in return for the payment of money. This allegation is dealt with in Allegation 9 below. 5. Under cross-examination, Paul Lewis recanted his affidavit evidence in respect of the LLN tests. He claimed instead that he himself had written almost everything on the 10 students' enrolment forms, student declarations, and LLN tests. He claimed that he never conducted the LLN tests with the students, that he wrote all the answers on the LLN tests himself (including the incorrect answers), and he marked and signed all the answers he wrote as correct (including the incorrect answers). His evidence was that he adopted this course following an express discussion with Mr Malik, which was not mentioned in his affidavit evidence. Paul Lewis also claimed to have signed the enrolment forms, the LLN tests and student declarations on behalf of the students, and that the students had authorised him to do this. None of that information had previously been provided to Mr Buddeke, the Respondent, or Training Services NSW. 6. Under re-examination, Paul Lewis changed his evidence to deny having issued the invoices he had previously accepted he issued. He also said that he frequently did not save the invoices he issued, which meant that his electronic records did not represent all the invoices he has ever issued. In relation to the numbering of his invoices, he said: "I just make numbers up as I go". 7. The Applicant submitted that Paul Lewis' evidence about forging student records should be rejected because it would require the Tribunal accepting the following further propositions, which were not reasonably open to the Tribunal: "a) From 2018 to 2023, Paul Lewis chose to conceal that truth from Mr Buddeke, Training Services NSW, the NSW Police Force, Maddocks, this Tribunal in his affidavits, and this Tribunal in his oral evidence in chief correcting his affidavits. b) Although he could and should have given that truth in his evidence in chief, he gave evidence to the opposite instead, for reasons that have not been explained. c) Paul Lewis would not have volunteered that truth to this Tribunal if the applicant had not given him the opportunity to do so during cross-examination. d) Paul Lewis is a master forger, replicating 10 student signatures from driver licences with ease, and constructing 10 different styles of student handwriting which he then handwrote consistently across multiple documents for each student. e) Paul Lewis was seeking to achieve some rational objective by the above, not only by forging the documents in the first place but by concealing those facts until his cross-examination, which was not explained." 1. I disagree with that submission. I do not agree that by finding Paul Lewis forged or fraudulently completed students' paperwork for the Raymond Terrace Course, I therefore need to also find that Paul Lewis was seeking to achieve some rational objective by concealing those facts until his cross-examination. I cannot determine why or what motivation Paul Lewis had for changing his evidence on multiple occasions, but the fact is that he did so. 2. The different versions Paul Lewis provided the Tribunal with are contradictory and cannot all be reconciled. This necessarily impacts on his credibility and makes it difficult to determine which of his allegations (if any) are to be accepted. Looking at each of his relevant claims, either he completed all the students' enrolment forms, student declarations, LLN tests, or he did not; either he received the course materials from Mr Malik and the Applicant to conduct the course, or he did not; either he conducted the Raymond Terrace course, or he did not; either he signed the completed assessment documentation, or he did not; either he invoiced and got paid by the Applicant for the Raymond Terrace course, or he did not. 3. All the Tribunal can do when provided with conflicting versions of events by an individual is to decide whether to accept any of those versions, and explain why. I endeavour to do so below. Completion of the students' paperwork 1. Paul Lewis admitted under cross-examination to completing the students' enrolment forms, student declarations, and LLN tests. He was taken page by page to the students' records and confirmed that he had completed the majority of the handwriting himself, and had signed them. 2. The Applicant submitted that Paul Lewis did not do so, and that the students had completed their own paperwork, as the course had gone ahead. The Respondent submitted that the students had not completed their own paperwork, and the course had not gone ahead, but that Mr Malik had arranged for false and misleading records suggesting otherwise to be provided to Training Services NSW (or instructed staff at the Applicant to do so). 3. The Applicant provided aide memoires collating the handwriting and signatures for each of the 10 students across their enrolment forms, LLN Tests, Smart and Skilled Eligibility Declarations, and Consent forms. The Respondent annexed to their closing written submissions a collation from SPB-1 in Exhibit R12 of every signature by each of the 10 students in their enrolment forms, consent forms, coursework materials, assessments, Smart and Skilled documentation, and LLN tests (Course Materials), including the signature contained on their driver's licence. 4. From my review of those records, I agree with the Respondent that the signatures of each of the 10 students on the Course Materials do not match the signatures on each of their 10 driver's licences. I am comfortably satisfied and convinced of this fact. 5. Despite the Applicant's submissions, I am also comfortably satisfied and convinced of the fact that each of the 10 students did not complete or sign the documents purporting to be their Course Materials. 6. Based on those findings, and based on Paul Lewis' admissions under cross-examination that he had completed the student enrolment forms, student declarations and LLN tests, and Student 6's interview responses in 2019 about how the Raymond Terrace Course was offered by Paul Lewis and how identity documents for himself, his wife and 2 daughters were provided to Paul Lewis by Student 6, I find that Paul Lewis completed the enrolment forms, student declarations, and LLN tests for each of the 10 students of the Raymond Terrace Course and signed them, using the students' names. 7. A finding of forgery is serious, as discussed above, but in contrast to the circumstances of determining the authors of Ms M's Certificates of Completion, here I have each of the 10 students' Course Materials from the Raymond Terrace Course for the purpose of determining whether there was a falsification of those records. I have samples of each of their valid signatures from their driver's licences. I also have an admission by Paul Lewis that he completed the students' enrolment forms, student declarations, and LLN tests and signed them. Contrary to the Applicant's submission, I don't consider him to be a master forger for doing so, because the handwriting is not so markedly different between the students' paperwork, and the signatures bear almost no resemblance to the signatures on the students' driver's licences. Changing pen colour and making his handwriting larger or more constricted seems to be the limitation of Paul Lewis' attempts at those forgeries. 8. If Paul Lewis had not admitted under cross-examination that he had completed the student enrolment forms, student declarations and LLN tests, I would still have found on the evidence before me that the students had not completed those records themselves. I would not, however, be satisfied as to the identity of the person who had completed those records fraudulently. 9. Paul Lewis said that after he submitted the enrolment paperwork to the Applicant, he spoke to all the students and told them they were enrolled, and they were all happy about being enrolled, including Student 6 and his family. I do not accept Paul Lewis' evidence that he was given permission by the students to complete their documents or sign their names for them. Student 6, the only student whose evidence on this issue was before the Tribunal, vehemently denied having done so and stated that he considered this to be fraud. I prefer that evidence to Paul Lewis' inconsistent and contradictory version of events. 10. I also do not accept Paul Lewis' evidence that Mr Malik pressured or induced him to provide the falsified paperwork. On the evidence before me it is likely that Mr Malik did repeatedly contact Paul Lewis to obtain the completed coursework materials and signed student forms from him for the Applicant's records and compliance obligations, but I am not satisfied that these contacts involved any reference to falsified paperwork, or an implication that Paul Lewis should falsely or fraudulently complete the records on behalf of the students. Receipt of the course materials 1. Paul Lewis claimed that he did not end up running the Raymond Terrace Course because the Applicant, and specifically Mr Malik, never provided him with the course materials. 2. Mr Malik claimed that "ten black folders for learner guides, one folder of marking guide, ten assessment folders in addition to ten USBs with the documents for the students" were provided to Paul Lewis. 3. The Applicant did have the course materials available for a trainer to conduct the WHS Course for a Certificate IV at that time, because it is undisputed that there were six additional students enrolled in the course who completed it at the Applicant's Granville campus. On 5 October 2016 the Applicant's business manager, Dylan Owen, emailed Paul Lewis and provided him with a Star Training email address, login to use the AVETARS database (which is the Canberra based skilled vocational administration system), and access to a Trainer account in the Applicant's management system to communicate with students, grade assessments and notify results (A39). 4. I agree with the Applicant's submission that it would not be in Mr Malik's interest to not provide the course materials to Paul Lewis. I do not accept Paul Lewis' evidence that he did not receive the course training materials from Mr Malik or the Applicant. Even if I accepted that Mr Malik had not physically provided the course materials to Paul Lewis, there is no reasonable explanation why he could not have obtained these from the Applicant's online resources portal himself, and there is no reason why he would not have documented proof of having asked Mr Malik for the materials, or complaining that he had not received them, if this was the case. The most logical and likely explanation is, as the Applicant submitted, that Mr Malik had provided the course materials to Paul Lewis, so he had no need to contact him to complain that he did not have them, or to access the online system for copies. Conduct of the Raymond Terrace Course 1. Mr John Leggett, Mr Malik and Paul Lewis each gave evidence about the period from 2016 to 2017, during which the Raymond Terrace Course was supposed to be taking place. 2. In his June 2023 affidavit (A20) Mr Malik stated (for the first time in his evidence) that in about November 2016, he spoke with four students (Student 6, Student 9, Student 2 and Student 10) about the WHS Course, who each generally said the training was going well. Mr Malik asked Mr Leggett to also call Student 6. Mr Leggett spoke with Student 6 who told him to contact Paul Lewis about the course. 3. According to Mr Leggett, he had a discussion with Paul Lewis in the first half of 2017 during which Paul Lewis advised that the course was going "really good" and that he was happy with the training. Under cross-examination, Mr Leggett conceded that he only ever asked Paul Lewis in general terms about how "the course" was going, without mentioning either Work Health and Safety, Raymond Terrace or any other identifying feature. 4. According to Mr Malik, he and other staff of the Applicant again contacted students in August 2017 to obtain feedback, as the course was due for completion. He asked students about the assessments. Mr Malik claims he had a conversation with one of the students in which the student said there was no issue and if further details were needed, to talk to the trainer. 5. The Respondent submitted that Mr Leggett's evidence of having spoken with students of the Raymond Terrace Course was implausible, because this was not mentioned in first affidavit, and it has never been part of his role to supervise other courses being run by the Applicant or to carry out administrative duties. Under cross-examination, Mr Leggett initially suggested that it would "not be unusual" to be asked to get feedback from students on courses he did not teach, but he later conceded that the only occasion on which he claimed to have done so for the Applicant was in relation to the Raymond Terrace Course. He claimed to have made notes of the calls he made. In response to a summons issued by the Respondent, and a specific call at hearing for Mr Leggett's notes, the Applicant had no documents to produce evidencing these telephone calls. On his second day of oral evidence, Mr Leggett indicated that he had only spoken to Student 6, and only briefly. 6. The Respondent also submitted that it was implausible that Mr Malik, as the Applicant's CEO, would personally have made calls to students in circumstances where the Applicant employed multiple administrative assistants, and that each student said the same thing claimed by Mr Malik ("There's no issue. Please talk to our trainer"). The Respondent submitted that Mr Malik's additional evidence in cross-examination that he also asked about how the assessments on the course were going, was an evident attempt to establish more adequate supervision by the Applicant. 7. On the basis of inconsistencies in Mr Malik and Mr Leggett's evidence, and the failure of the Applicant to produce either records pursuant to the summons issued by the Respondent, or Mr Leggett's notes of the alleged telephone conversations with the students, I agree with the Respondent's submissions in relation to the evidence of Mr Malik and Mr Leggett regarding contact with the students of the Raymond Terrace Course. I find that neither Mr Malik nor Mr Leggett made any calls to students in the Raymond Terrace Course cohort while that course was meant to be occurring. I disagree, however, with the Respondent's submission that in Mr Malik's case, that is because he knew the course was not occurring, never having provided the necessary course materials to Paul Lewis. That conclusion does not follow from the evidence before me. The more likely and logical explanation, without making unsupported assumptions about Mr Malik's knowledge, is that Mr Malik simply did not have sufficient oversight of the Raymond Terrace Course. Completion of the assessment documentation 1. Mr Malik initially stated that the assessment documents for the Raymond Terrace Course were delivered to the Applicant's Granville campus by Paul Lewis in around October 2017 (A13 at [14]). Mr Malik and Mr Leggett gave evidence that in October or November 2017, Mr Leggett was asked by Mr Malik to meet with Paul Lewis, and to have him complete some missing assessor signatures in the assessment documentation. Mr Leggett claims that he drove to Wyong in Mr Malik's car, met Paul Lewis at Wyong Train Station, had lunch nearby with him, and they then went to a library near Wyong. Mr Leggett recalled that the documents were in two boxes. After lunch, the boxes of documents were moved from Mr Malik's car to Paul Lewis' car before driving to a building, where Paul Lewis took 20 to 30 minutes to sign the two boxes of documents (A12, [8]). Mr Leggett gave evidence that the building was a "community centre and library together". Mr Leggett drove the signed documents back to the Granville campus. At hearing Mr Leggett stated that did not look at the documents, pay attention to them, or see the words "Work Health and Safety" anywhere on them. 2. Under cross-examination Paul Lewis agreed that he met with Mr Leggett at a café opposite the Wyong train station in October or November 2017. He denied, however, that the meeting was for the purpose of getting him to sign the assessment documents for the Raymond Terrace Course, and claimed Mr Leggett had taken the train from Bankstown to Wyong and back, a trip of roughly two hours each way, for the sole purpose of having lunch with him. Paul Lewis admitted having telephoned Mr Leggett in about March 2023 and agreed that the topic of the training in Raymond Terrace "came up", but denied having discussed "Javaid's court case". 3. The Respondent submitted that Paul Lewis' evidence should be accepted, and that it was objectively improbable Paul Lewis could have completed signing the assessment documentation, which was extracted in Exhibit SPB-1 of R15 and numbered approximately 3000 pages, in the 20 to 30 minutes claimed by Mr Leggett. 4. I do not agree with the Respondent's submission that it would be objectively impossible for Paul Lewis to have signed 3000 pages in the space of 20 to 30 minutes in Wyong, and that demonstrates why this did not occur. That is because there was no need for Paul Lewis to have signed 3000 pages. Although the material comprising the student assessments is roughly 3000 pages, Mr Malik and Mr Leggett's evidence did not suggest that Paul Lewis signed every page of the assessment documentation during his meeting with Mr Leggett, or that his signature was missing from every assessment document. He only completed the missing signatures. Additionally, his signature was only required on approximately 100 pages – the trainer signoff sheet in each unit's workbook, of which there were 10 per student. 5. I do not accept Paul Lewis' evidence that he met with Mr Leggett at Wyong, had lunch with him where the request was made for him to sign the assessment documentation, but that he did not do so. The timing of this meeting in the context of the Raymond Terrace Course's expected completion, and the effort Mr Leggett had to go to for the meeting, makes this seem entirely implausible. 6. I find Paul Lewis' evidence about his interactions with Mr Leggett to be implausible, and prefer Mr Leggett's evidence in relation to the marking of the student assessments. I appreciate that I have previously rejected Mr Leggett's and Mr Malik's evidence in relation to whether they contacted students of the Raymond Terrace Course cohort. These two findings are not contradictory, because there were no documents to support Mr Leggett and Mr Malik's claims in relation to those student contacts, but there are signed pages of documents to support Mr Leggett's (and Mr Malik's) claims in relation to this issue. Those documents are the student assessments which bear Paul Lewis' signature. Payment for the Raymond Terrace Course 1. Initially Paul Lewis denied issuing any invoices or receiving any payments from Mr Malik or the Applicant for the Raymond Terrace Course. 2. In his second affidavit affirmed 19 October 2023 (R29) Paul Lewis addressed Mr Malik's responsive evidence about invoice and payments. He stated that his son Christopher Lewis had assisted him in setting up a business named "Diamond Creek Training" and had opened a bank account in that name. Paul Lewis had issued invoices to the Applicant using his son's bank account details. In response to Mr Malik's affidavit evidence which attached 10 invoices purporting to be issued by Paul Lewis and detailed payments made to him via bank transfer and cash, he denied having issued those invoices and denied having received payments, either in cash or which were made by the Applicant to his son's bank account. He claimed to be unaware that his son received those payments. He stated that he continued to conduct training for the Applicant, despite his claim that he had not been paid for previous work, because "I am passionate about my work". 3. Paul Lewis claimed that there was an agreement with Mr Malik that the Applicant would pay him $1000 for each student in the Raymond Terrace Course, plus the cost of renting the library space where the course was to take place. He understood from discussions with Mr Malik of the roughly $3000 grant provided by the Smart and Skilled Program for each student, that the Applicant would receive $1000 per student and that $1000 per student would be donated to Worimi Local Aboriginal Land Council. Mr Malik disputed that he had agreed to pay for the cost of renting the library space, and his evidence on this issue was contradictory. His re-examination on this issue entirely conflicted with the evidence he had given in his affidavits and cross-examination. Ultimately, however, the question of whether Paul Lewis was adequately remunerated for the Raymond Terrace Course was not in issue. What was in issue was whether he was paid. 4. Under cross-examination Paul Lewis also admitted that he put the account details for a bank account in the name of his son Christopher Lewis on the invoices he issued to Mr Malik and others, because "I thought we'd run the business through that", where the "business" included both Diamond Creek and the training work for which he was invoicing the Applicant from time to time. According to him, his son was fine with his father using his bank account to receive payments for that purpose, and the intention was always that he would give the money to Paul Lewis after it was paid into his account. Despite putting his son's bank account number on the invoices he issued to the Applicant, Paul Lewis claimed that it never occurred to him that the Applicant would make payments to that account. 5. Contrary to his affidavit evidence disputing Mr Malik's evidence of the invoices from and payments made to him, under cross-examination Paul Lewis: 1. Admitted that in 2016 he received payment from the Applicant in the amounts shown on invoices 067, 070, 073, and 078; that those payments were paid in respect of invoices he had issued in those amounts for work he had done; and that the invoices he had issued were those invoices; 2. He denied issuing invoices 063 and 081 for training at Raymond Terrace, but he did agree that he received payments in the amount of those invoices; 3. He denied issuing invoices 0105 and 0123 for training at Raymond Terrace; 4. He agreed that in 2018 he received payment from the Applicant in the amounts shown on invoices 0188 and 0196; that those payments were paid in respect of invoices he had issued in those amounts for work he had done; and that the invoices he had issued were those invoices; 5. The amounts corresponding to the two Raymond Terrace invoices were $1,000 and $4,700. Paul Lewis agreed those amounts were paid to him. He would not agree that they were referable to work for the Raymond Terrace course, but he was not able to identify any other reason why Mr Malik would have paid him those amounts. He maintained his denial of having issued any invoices for the Raymond Terrace course; 6. He accepted that he was mistaken about not having issued two invoices for security training in Canberra in 2018; and 7. He accepted that he had issued the invoices for the Business course in Canberra. 1. Under re-examination, Paul Lewis changed his evidence to deny having issued the invoices he had previously accepted he issued. He also said that he frequently did not save the invoices he issued, which meant that his electronic records did not represent all the invoices he had ever issued. In relation to the numbering of his invoices, he said: "I just make numbers up as I go". 2. Bank statements produced by Westpac under summons confirm that payments were made from the Applicant to a bank account belonging Mr Paul Lewis' son, Christopher Lewis, totalling $10,700, between 24 October 2016 and 21 December 2016. Mr Malik additionally claimed that he paid cash to Paul Lewis: $1,800 on 3 May 2017 and $2,500 on 18 August 2017. 3. The Respondent submitted that there were no cash payments made to Paul Lewis and that the bank transfers were referable to a 9-day Certificate II in Business run by Paul Lewis for the Applicant in Canberra, and 5 days' security training he conducted for the Applicant in the same period. In oral closing submissions the Respondent referred to two 9-day Certificate II in Business Training courses run from October to November 2016, in Nowra and Canberra. The Respondent also submitted that those courses accounted for about $7,000, assuming Paul Lewis's daily rate was about $350 per day, based on some of his invoices. The Respondent attributed the balance of the $10,700 transferred to Paul Lewis (via his son) to his management of the Applicant's ACT office in this time period, which was included his Invoice 0116 dated 10 October 2016. 4. The problem with the Respondent's submission is that Paul Lewis very clearly stated, when questioned under cross-examination, that he considered Mr Malik and the Applicant still owed him nearly $60,000: "KING: The total amount of this invoice is $59,301 is that accurate? WITNESS P LEWIS: Yes, it is. KING: Has that amount been paid? WITNESS P LEWIS: No KING: So is it correct to say that you regard that amount as having been owed since 2017? WITNESS P LEWIS: Yes." 1. The invoice referred to in that exchange was Invoice 0117, annexed by Paul Lewis to his 19 October 2023 Affidavit (R29), which includes the following items for those two courses relied upon by the Respondent: Description Price Unit Disc% Ext. Price Business Development Canberra $2640.00 22 students Cert II Business $58,080.00 (50% agreement) $29,040.00 Business Development Nowra $2640.00 16 Students Cert II Business $42,240.00 (50% agreement) $21,120.00 Business II Training Canberra $350 X 9 days $3150.00 Business II Training Nowra $350 X 9 days $3150.00 White Card Training (NBN) $350 $350.00 First Aid Training (NBN) $350 $350.00 Security Training $350 X 5 days $1750.00 GST $5,891.00 Payment $5000 Payment (Security) $600 $5,600.00 BALANCE DUE: $59,201.00 1. On Paul Lewis' evidence, he was not working in March or April 2017 as "it wasn't a healthy time and I sort of withdrew from work". For about six to eight weeks he "didn't work at all", and gradually returned to work from around June 2017. The Applicant's business records, as annexed to Mr Malik's affidavit of 4 October 2023 (A25), show that Paul Lewis was engaged to deliver training for the Applicant in Canberra between 24 October 2016 and 4 November 2016, and between 14 November 2016 and 25 November 2016 for two Certificate II in Business courses. It is therefore probable that the courses referred to in the Invoice 0117 dated 3 May 2017 were the courses he ran in Canberra and Nowra in October and November 2016, which Paul Lewis claimed remained unpaid. 2. I therefore do not accept the Respondent's submission that the bank transfers made by the Applicant to Paul Lewis totalling $10,700 were for any course other than the Raymond Terrace Course. I do not accept Paul Lewis' evidence that he continued running courses for the Applicant, despite alleging he hadn't been paid for previous courses he ran, because he was "passionate about my work". He was expecting payment for the courses he ran. 3. I also do not accept the Respondent's submission that the invoices provided by Mr Malik as proof that Paul Lewis had, in fact, invoiced the Applicant for the Raymond Terrace Course, were fabricated. This is a serious allegation and is not supported by any evidence. The Respondent submitted as proof that the invoices provided by Mr Malik were sequentially numbered, and that Paul Lewis gave evidence that it was not his practice do so. However, this contradicts the evidence of the invoices attached by Paul Lewis to his affidavit (R29) which are sequentially numbered. Additionally, the Respondent submitted that although the invoices produced by Mr Malik for the Raymond Terrace Course had Paul Lewis' bank account number on them, the corresponding amounts were deposited into his son's bank account. I agree with the Applicant that this does not demonstrate the invoices were fabricated. Findings regarding Paul Lewis' evidence 1. In relation to Paul Lewis' evidence, the Respondent accepted that he had admitted to "some improper conduct", "evidently did not have a firm grasp of the chronology concerning the Raymond Terrace Course", "gave inconsistent evidence" and "made clear to the Tribunal that he could not recall the dates, essentially guessing in order to answer the questions put to him". I reject the Respondent's submission that Paul Lewis' late admissions demonstrate his "candour and commitment to providing honest testimony". 2. Out of the various versions of events provided by Paul Lewis, as outlined above, I prefer his evidence under cross-examination, except where he attempts to blame Mr Malik for his conduct. I accept Paul Lewis' evidence under cross-examination that he himself had written almost everything on the 10 students' enrolment forms, student declarations, and LLN tests, that he never conducted the LLN tests with the students, that he wrote all the answers on the LLN tests himself (including the incorrect answers), and he marked and signed all the answers he wrote as correct (including the incorrect answers), and that he signed the enrolment forms, the LLN tests and student declarations on behalf of the students. 3. On the evidence before me, the most likely and probable explanation for what occurred is that Paul Lewis arranged with Mr Malik to conduct the course, and arranged with the students to enrol them in the course, and then did not conduct the course. He then fabricated the completed course materials, fraudulently completing the assessments and signing the students' signatures, and submitted them to the Applicant. He issued invoices for the work completed and was paid. This is all supported by one version of his own evidence, provided under cross-examination. 4. Paul Lewis first contacted Training Services NSW with his allegations on 1 November 2018. His allegations were focussed on the Applicant and Mr Malik engaging in financial fraud against Training Services NSW "over the past few years" by "signing up students to complete a number of courses, including Certificate IV and Diploma WHS. These students never completed an assessment, let alone sat in a class" and were not limited to the Certificate IV in WHS in which he was engaged. His email of 1 November 2018 stated: "For your information Further to my email earlier outlining FRAUD conducted by Star Training Acrdemy CEO Mr Javaid Malik... currently your staff are contacting students Re: Smart n Skilled Funding run by Star Training, including a conversation one of your staff, Rhonda, had with Mr John Leggett, a 72 year old trainer/assessor employed by Star Training. Mr Leggett as coached by Mr Javaid Malik, said he would call Rhonda back, as he was driving, he doesn't own a car, he told her that he'd had training delivered "mixed mode" had access to computers plus a reference library…..what a joke !! Go out and have a look now and see what the RTO has to offer NOTHING - no library NOTHING - no assessments completed NOTHING - no lectures or classes attended NOTHlNG - except FRAUD - NSW TAX PAYERS $$$ Mr Raymond Lawler Mr Steve Yates Also Star Training employees also completed the NSW SMART N SKILLED funded training But completed no paperwork assessments So you need to physically go and see the paperwork not sit on the phone and call the students Go off your collective arses, earn your pay, and INVESTIGATE THIS Cert IV WHS - Star Training enrolled 10 indigenous students - all keen to do the course - they waited - waited - the trainer tried to get the assessments and learners guides, text books etc but was fobbed off The Certificates where posted out again FRAUD conducted by Mr Javaid Malik no one else $3000 plus per student x 10 = $30,000 plus and he paid Uni students $500 to complete each assessment, these indigenous students can't use that qualification in a resume ... this is fraud .... just on what I know…. how many other students has he put through that the NSW tax payer has funded I've also copied this email to both print and broadcast media Good Luck - but you really need to walk into his Granville office and physically check it out NOW Dibby De Barlo" 1. Putting aside his allegation that "the trainer tried to get the assessments and learners guides, text books etc but was fobbed off", which I have found would not have prevented him from accessing the course materials himself, Paul Lewis' email identifies that his problem with Mr Malik and the Applicant at that time was financial. This was reiterated in his affidavit (R12). He was actively training for the Applicant until mid-September 2018 and was therefore complicit in the fraud he was alleging. He admitted under cross-examination that he had engaged in that fraudulent activity on behalf of the Applicant in relation to the Raymond Terrace Course. 2. Why, then, did Paul Lewis blow the whistle on the Applicant's conduct in November 2018? Why not earlier, when he was supposed to be running the Raymond Terrace Course but was not, or after the students received their Certificates, or at any time between 2016 and 1 November 2018? 3. Paul Lewis' obvious motivation for informing Training Services NSW in November 2018 that the course was not, in fact, conducted, and lying to them that Mr Malik had fraudulently prepared the documentation and submitted it for financial benefit, was disclosed initially in his first affidavit (R12), where he claimed to not have received any payments from the Applicant for the WHS Course, and denied receiving the six amounts totalling $10,700 between 23 October 2016 and 21 December 2016 as detailed in Mr Malik's affidavit (A11). 4. The issue of payments made to Paul Lewis for the Raymond Terrace Course was hotly contested by him at every stage of his evidence. 5. As submitted by the Applicant, the reason why Paul Lewis would complain to Training Services NSW about the Raymond Terrace Course, when he had engaged in improper conduct in relation to that course, lies in an understanding of the pattern of conduct he has engaged in: "You'll recall that when he first went to Training Services NSW he didn't do so in his own name. He was concealing his identity. He complained under the name Dibby de Barlo, referring in the third person to "the trainer", positing all kinds of questions that they might want to ask of the trainer and asserting that the trainer had or had not done certain things and, having initiated that complaint process, which would inevitably place pressure on the applicant and Mr Malik, he put himself in a position where he could demand more money from Mr Malik without, at this stage, implicating himself and, presumably, if he'd been paid out what he thought he was owed that complaint would have been withdrawn or it just would never have gone anywhere. Having initiated that complaint he had that leverage, and we've referred in the submissions to the demands that he made of Mr Malik for money. At that time he said he thought he'd been owed 50k for years. Once Mr Malik refused to pay him any more, once that possibility was closed out, it was only then that he came out as the trainer, Paul Lewis. It was only then that he identified himself and from that point on it was a scorched earth approach. He decided to take down Mr Malik. He obviously doesn't care if he goes down too because he admitted to you in the box to a whole range of improper conduct here that will inevitably reflect adversely on him in his profession as a trainer. So he appears quite happy to take down Mr Malik, even if that means he goes down too." 1. Based on the evidence I have outlined above, I agree with the Applicant's submissions about Paul Lewis. 2. Paul Lewis' conduct in relation to Allegation 9, which I discuss below, further supports this finding. Mr Malik's knowledge 1. As discussed above at [215] to [218] Mr Malik was interviewed by Mr Buddeke on 18 July 2019, and the Respondent's allegation that the Raymond Terrace Course had not gone ahead was put to him by Training Services NSW. Mr Malik claimed ignorance of this. 2. The interview was requested via email sent by Mr Buddeke to the Applicant on 12 July 2019 (A31), in which he alleged: "…in 2016/17 the Provider submitted Training Activity Data for a cohort of 16 students enrolled in BSB41415 – Certificate IV in Work Health and Safety, which generated payment under Smart and Skilled, when the students did not participate in the training or assessments for the qualification." 1. The day before the interview, Mr Malik met with Paul Lewis, at Mr Malik's request, at a service station at Wyong. Paul Lewis' evidence is that Mr Malik pressured him at that meeting to provide false evidence that the Raymond Terrace Course occurred. Mr Malik's evidence is that during that meeting, Paul Lewis confirmed that the training had taken place, and advised Mr Malik that he would provide documentation relating to the training, which took place at the library. 2. Wasim Malik, one of Mr Malik's sons, accompanied his father to the service station meeting. He provided affidavit evidence in relation to that meeting (A15) and was cross-examined at hearing. He claims to have overheard a conversation between Mr Malik and Paul Lewis, which is corroborative of Mr Malik's evidence. 3. Wasim Malik is a businessman who operates a 7-Eleven petrol station (which Amna Ilyas worked at for 2 years prior to commencing her employment with the Applicant) and a franchised Quest Serviced Apartments. He confirmed a close familial relationship with his father, and that he assisted his father and the Applicant on occasion, including by allowing the Applicant to use Quest conference rooms without charge. Although initially denying that he had discussed his evidence with his father, he later conceded that his father had discussed the proceedings with him. 4. I don't accept Wasim Malik's evidence of the conversation he claims to have overheard between his father and Paul Lewis. I consider it implausible that he would remember the detail of that conversation, in circumstances where he admitted during cross-examination that he had no interest in the conversation, did not pay attention to it or care what it was about, and was "on my mobile phone" for the majority of the meeting. Those admissions, coupled with Wasim Malik's relationship with his father and expressed willingness to help him and the Applicant, support the Tribunal giving little weight to his evidence as a whole, and rejecting the evidence of the conversation deposed to in his affidavit. 5. The inconsistencies in Paul Lewis' evidence about the meeting and the alleged conversation he had with Mr Malik are not adequately explained – why he referred to the course participants as "the boys" when the alleged participants were both men and women, why he would reject the offer of money from Mr Malik as "a headache" when he otherwise claimed he was owed money by him. Having made the findings above regarding Paul Lewis and his evidence at [288] to [297], I do not accept his version of events. 6. I prefer Mr Malik's evidence of the meeting and the conversation which took place as this is consistent with what he says in the interview with Mr Buddeke the following day (above at [215] to [218]). 7. The Respondent's submission that the meeting of 18 July 2019 between Paul Lewis and Mr Malik demonstrates Mr Malik's knowledge that the course had not gone ahead, and thus a deliberate effort on the part of the Applicant and Mr Malik to mislead Training Services NSW by the submission of false records, is simply not available on any evidence other than Paul Lewis', which I do not accept. Conclusion 1. The Respondent submitted that the Tribunal should make the following findings on the evidence: 1. the Training Activity Data submitted by the Applicant in relation to the 10 students identified at paragraph 4.1.9 of Mr Buddeke's report was false and misleading, in that the data represented that those students were completing, and then had completed, the course when they had not; 2. the Assessments, transcripts and Certificates submitted by the Applicant for the 10 students were false and misleading, in that they represented: 1. that those students had completed the assessments when they had not; 2. that the trainer had marked and signed the assessments when the trainer had not; and 3. that those students had completed the course when they had not; 1. both the Applicant and Mr Malik were aware that the Raymond Terrace course had not proceeded; 2. Mr Malik, knowing that the Raymond Terrace course did not take place, nevertheless arranged for false and misleading records suggesting otherwise to be provided to Training Services NSW, or instructed staff at the Applicant to do so; and 3. The Applicant improperly received payments from Training Services NSW. 1. The Applicant submitted that the allegation that the Raymond Terrace Course did not take place was an allegation of fraud, and in order to prove that fraud the Respondent had to satisfy the Tribunal of the following: 1. that Paul Lewis did not deliver the Raymond Terrace Course to his 10 students; 2. that on 28 November 2018, during a "performance monitoring interview" separate to Mr Buddeke's investigation, Student 1 lied to the Department of Industry by reporting that she had completed the Raymond Terrace Course, completed "a lot" of assessments, and was given access to "facilities/resources such as library"; 3. either: 1. that in October 2020, Student 2, Student 8, and Student 9 lied to Mr Buddeke about having completed the Raymond Terrace Course, or were so addled in their recollection that they mistakenly agreed with Mr Buddeke that they had completed a WHS Course at Raymond Terrace; or 2. Mr Buddeke lied to this Tribunal about his conversations with those students, and fabricated his file notes of those conversations (with the result that there is no account from those students before the Tribunal); and 1. that neither Paul Lewis nor his 10 students completed and signed any assessments for the Raymond Terrace Course. 1. The Applicant submitted that Mr Buddeke's investigation was unfair and his report, which was relied upon in its entirety by the Respondent, was not reliable. 2. The Applicant submitted that whether or not the Raymond Terrace Course actually took place, Mr Malik believed the course took place. If it did not, in fact, take place, that was not known to Mr Malik. 3. The Applicant submitted that the question of whether or not the Raymond Terrace Course took place was peculiarly within the knowledge of Paul Lewis and the 10 students alleged to have completed the course. In circumstances where the Tribunal should not accept Paul Lewis' evidence, and the Respondent failed to call any of the 10 students as witnesses before the Tribunal, the Tribunal could not be so satisfied. The Applicant submitted: "In circumstances where the Commissioner of the NSW Police Force has accused the applicant of knowingly defrauding the public revenue and the applicant denies knowledge of any fraud, it is for the Commissioner to investigate and prove her allegation, not the accused. Despite the seriousness of that allegation and Mr Buddeke's apparent referral of it as a criminal matter to the NSW Police Force, the Force has never bothered to investigate the allegation, and the Tribunal is left to wonder why the Commissioner would now expect the accused to pick up the slack. To be clear, this is not a case where a formal investigation was conducted and a conclusion reached that any offence could not be proved to the criminal standard (because no records of that have been lodged or produced): this is a case where there was no investigation at all. Instead of doing the police work necessary to prove the allegation herself, the Commissioner chose to ride on Mr Buddeke's frayed coattails, and her case has unravelled with them. There is no reasonable explanation for the absence of Paul Lewis's 10 students. The Tribunal should infer that their evidence about the WHS Course would not have assisted the Commissioner's case. "Any inference" favourable to the applicant that is otherwise open on the evidence can be "more confidently drawn" in their unexplained absence, including the inference that Mr Malik did not know the students had not completed the assessments themselves (if that be the case)." 1. The Respondent's case in relation to Allegation 2 rested entirely on the Tribunal accepting Paul Lewis' evidence, which in turn informed Mr Buddeke's investigation and findings. 2. Based on my consideration of the evidence above, I am satisfied that: 1. the Training Activity Data submitted by the Applicant in relation to the 10 students identified at paragraph 4.1.9 of Mr Buddeke's report was false and misleading, in that the data represented that those students were completing, and then had completed, the course when they had not; 2. the Assessments, transcripts and Certificates submitted by the Applicant for the 10 students were false and misleading, in that they represented: 1. that those students had completed the assessments when they had not; and 2. that those students had completed the course when they had not. 1. I am not satisfied that the Assessments, transcripts and Certificates submitted by the Applicant for the 10 students of the Raymond Terrace Course were false and misleading, in that they represented that the trainer had marked and signed the assessments when the trainer had not. I have found on the evidence that Paul Lewis did mark and sign the assessments. 2. I am not satisfied that both the Applicant and Mr Malik were aware that the Raymond Terrace Course had not proceeded. I am not satisfied that Mr Malik knew that the Raymond Terrace Course did not take place and nevertheless arranged for false and misleading records suggesting otherwise to be provided to Training Services NSW, or instructed staff at the Applicant to do so. 3. I do not consider the evidence before the Tribunal sufficient for determining whether the Applicant improperly received payments from Training Services NSW. Whether the payments received were proper or improper depends on how Training Services NSW administers its funding for the Smart and Skilled Program, which is beyond the scope of these proceedings. Although I do have a copy of the contract between Training Services NSW and the Applicant, and the opinion of Mr Buddeke and the Respondent that the Applicant's conduct breached that contract, I cannot determine on that basis that the Applicant improperly received payments. 4. The Respondent submitted that if the Tribunal accepted Mr Malik's account, the evidence before the Tribunal relevant to Allegation 2 was capable of supporting a finding that the Applicant is not a fit and proper person to hold a Master Security Licence and/or that it is not in the public interest for Applicant to hold such a licence. This was based on the submission that on Mr Malik's own evidence, there was entirely inadequate supervision and oversight by the Applicant and Mr Malik in relation to the Raymond Terrace Course. 5. The Applicant submitted that this submission by the Respondent was "a new case about inadequate supervision of the WHS course", made for the first time in the written closing submissions. 6. I do not consider the allegation of inadequate supervision to be a "new" case being run by the Respondent. It is a submission made in the context of Allegation 2. It was raised by the Respondent, if briefly, in opening submissions, and there were questions put to Mr Malik in cross-examination relevant to that submission. It is open to the Tribunal to find that there was inadequate supervision of the Raymond Terrace Course by the Applicant and Mr Malik, if the evidence supports that finding. 7. Either there was a lack of supervision and oversight of the Raymond Terrace Course and therefore Mr Malik was unaware that the course had actually not been delivered to the students by Paul Lewis as claimed; or Mr Malik was aware and had knowledge that the course had not been completed, and knowingly submitted fraudulent documentation to Training Services NSW. On the evidence before me I find there was, on Mr Malik's own evidence, a lack of supervision and oversight of the Raymond Terrace Course. 8. I am satisfied that Allegation 2 is partially proven on the evidence before the Tribunal. Allegation 3: the Applicant granted a security qualification to a student who was not competent 1. Allegation 3 is set out at [15] and [16] above. 2. Mr S was issued a Certificate II in Security Operations by the Applicant on 15 May 2020. As a result, Mr S was able to apply for and obtain a Security Licence from SLED. 3. It is a pre-requisite for the Certificate II in Security Operations that students complete an English-language "Language, Literacy and Numeracy Test" (LLN). The Respondent alleged that: 1. Mr S had been marked as competent by the Applicant in all modules of the Security Licence Course (SLC) despite incorrect answers in the assessment workbook; 2. Mr S's English language abilities were not sufficient to pass the LLN; 3. Mr S's English language abilities were not sufficient for the Certificate II in Security Operations; and 4. Mr Malik was fully aware that Mr S did not have a sufficient level of English to attempt the SLC. 1. Evidence in relation to Allegation 3 was given by Mr Malik, Mr S, Amna Ilyas and John Stoodley. 2. The Applicant seemed to accept in submissions that Mr S was not sufficiently competent in English to pass the LLN or to pass the security licence course. The fact that the Applicant had passed Mr S as competent was submitted to be the responsibility of the trainer, Mr Stoodley, and was an error unknown to Mr Malik. The Applicant submitted that: "… it would not be reasonable to hold the applicant and its trainers to a standard of perfection, the circumstance that one trainer erred in the assessment of one student in 2020 does not demonstrate anything relevant to the applicant's fitness or propriety to hold a master security licence in 2024." 1. Mr Stoodley admitted at hearing that although there was an LLN test for Mr S (included at A5) signed by Mr Stoodley, it was likely to have been administered by the Applicant's administration staff. This was "improper" according to Mr de Marillac, and according to Mr Smith, the usual practice was for a trainer to supervise, which was not done for Mr S. 2. I agree with the Respondent's submission that evidence of Mr S's English language difficulties was apparent from: 1. His transcripts of interviews with SLED investigators, in which he was mostly reliant on his son or the interpreter to understand the questions and respond to them; 2. The copies of his workbooks from the Certificate II in Security Operations, including when compared to the workbooks completed by his son (see Bundle pp 12-195 and Exhibit R53). Although Mr S had been certified by Mr Stoodley as competent in all modules of the course (which had a pass mark of 100%), many of the answers in the assessment workbook were incorrect; 3. Mr S's oral evidence to this Tribunal, in which he demonstrably struggled to understand questions put to him or to respond in simple English, admitted he didn't understand, and relied heavily on the interpreter when provided. 1. Mr S gave evidence that his English language skills were better when he was undertaking the security licence course in 2020 than at the time of the hearing in 2023, because he spent significant periods of time studying the written material for the course. He claimed to be generally more capable of reading and understanding English than speaking it, and that his brief period of time he spent as a security guard on a construction site required limited dealing with the public. I do not accept this claim in the absence of objective evidence in support. 2. Under cross-examination Mr Stoodley accepted that Mr S should have failed the module 4.1 assessment and module 5 assessments, and should have been required to re-sit the assessments. 3. The Respondent additionally relied on evidence from Amna Ilyas and Sarah Ilyas regarding Mr S's language competency, which I accept, but give little weight to in circumstances where their roles did not involve assessment of student competency. 4. In relation to Mr Malik's knowledge of Mr S's language competency, the evidence is that Mr Malik had a relationship with Mr S which went beyond that of an average student undertaking courses through the Applicant. Mr Malik first met Mr S during the security licence course in 2020. They had a number of conversations during the course, which were likely to have been in Urdu considering they both spoke Urdu fluently, and Mr S admittedly struggled with speaking and understanding English. Mr S consequently did some tailoring for Mr Malik, and Mr Malik paid for his security licence application fee using his credit card. However, none of these interactions demonstrates any knowledge on Mr Malik's part that Mr S was actually so incompetent at speaking English that he should not have passed the LLN test and could not pass the security licence course. Mr Malik was not conducting those assessments. On the evidence before the Tribunal, I am not satisfied that Mr Malik knew that Mr S was not sufficiently competent in spoken English to pass the LLN test or the security licence course. 5. The objective evidence is that Mr S provided some wrong answers in his course workbook for the security licence course, and the course trainer (Mr Stoodley) confirmed that he should have failed at least two of the module assessments. On the evidence before me I consider it far more likely that Mr S was not sufficiently competent in his English language skills in 2020 to pass either the LLN test, if administered appropriately, or the security licence course. He should not have been granted the qualifications which the Applicant awarded him. 6. I accept that the Applicant relied on the trainer to adequately assess a student's competency, but this does not remove the Applicant's responsibilities to ensure its trainers are delivering courses and assessing students at the necessary standard to appropriately award security qualifications. 7. I am therefore satisfied that Allegation 3 is is proven on the evidence before the Tribunal. Allegation 4: the Applicant provided its security industry regulator, SLED, with workbooks which had been altered and thereby misrepresented student records 1. Allegation 4 is set out at [17] and [18] above. 2. On 8 June 2021 the Applicant submitted a Trainer Audit Report to SLED for Mr Yates' role as a trainer for Security Licence Course SLC042, including his assessment of students undertaking that course on 2 and 3 June 2021. A further Trainer Audit Report was submitted on 11 June 2021. On 16 June 2021, SLED auditors conducted reviews of student workbooks at the Applicant's Liverpool campus. 3. In opening submissions, the Respondent alleged that the Applicant "tampered with" the student workbooks submitted for audit and during the audit conducted on 16 June 2021. Specifically: 1. The copied extracts of Workbooks/Observation Checklists for three students submitted to SLED on 8 and 11 June 2021 were not "true and correct copies of the original documents"; 2. Mr Yates did not properly complete the marking of the Workbooks/Observation Checklists before certifying on 2 and 3 June 2021 that students had demonstrated particular competencies/completed certain modules. Instead, it appears that Mr Yates marked photocopies of the Workbooks/Observation Checklists prior to their submission to SLED on 8 and 11 June 2021, to make it appear that marking had been properly completed prior to signing students off for the relevant competencies / modules on 2 and 3 June 2021; 3. On 16 June 2021, during the course of SLED's audit, Mr Yates altered the Observation Checklists in the Candidate Workbooks by inserting ticks against Assessment Criteria that had not previously been marked. Again, the effect of these alterations was to make it appear that marking had been properly completed prior to signing students off for the relevant competencies/modules on 2 and 3 June 2021; 4. Mr Malik instructed Mr Yates to alter the student workbooks and observed Mr Yates doing so. 1. The Respondent alleged that as the Candidate Workbooks had not had the Assessment Criteria marked at the time the assessment was performed, or before being marked as "Satisfactory" overall, none of the eighteen students should have been provided with the overall assessment result of "Satisfactory" for the relevant competencies/modules which they had received from Mr Yates on 2 or 3 June 2021. 2. The Respondent also alleged that the Applicant improperly assessed students by making changes to assessment records or requiring students to "fix" assessments after they had been completed and marked as competent, specifically during "remedial sessions" involving Mr Geoffrey Rudd in August/September 2020, attended by Mr A and Mr K. Specifically: 1. the manner in which the "remedial sessions" with Mr Rudd was conducted was entirely improper. Students were threatened to ensure their attendance, were both coaxed and simply given answers by Mr Rudd, made changes to student assessments which had already been marked and signed off, and made no use of the dedicated re-assessment sections of their workbooks; 2. This occurred in circumstances where it was known or intended that those assessment records were to be submitted to SLED; 3. Mr Malik had knowledge of those sessions, of the nature of the changes made to assessment documents, and of the resulting misleading nature of the documents when submitted to SLED. 1. Allegation 4 was raised by the Respondent as a basis for its decision of 10 September 2021 to revoke the Applicant's approvals under s 27A of the SI Act, which became the subject of proceedings in the NSW Supreme Court: see Star Training Academy Pty Ltd v Commissioner of Police (NSW) [2023] NSWSC 153. The Supreme Court quashed that revocation decision, finding that the allegations of tampering with student records raised in a Notice to Show Cause issued by the Respondent on 11 August 2021, and the finding in the Revocation Decision of 10 September 2021 that the Applicant had been "deliberately unhelpful", resulted in a denial of procedural fairness. These were decisions made on the basis of findings about alleged dishonesty of the Applicant and Mr Malik, which the Court found had not been adequately pleaded or particularised. The Court did not make any factual findings about the allegations themselves. 2. Allegation 4 was particularised by the Respondent as outlined above at [18] as a misrepresentation of student records by the Applicant to SLED. In closing submissions, the Respondent again reverted to referring to the Applicant "tampering" with the student records, language which was strongly resisted by the Applicant. 3. As submitted by the Respondent, there are two parts to Allegation 4. First, that records obtained by SLED during audits of the Applicant between 8 and 16 June 2021 (June 2021 documents) were altered or marked so as to misrepresent to SLED what and how the students' records had been completed by the trainer; and second, that remedial sessions were inappropriately conducted with students in August/September 2020. June 2021 documents 1. The June 2021 documents are the subject of detailed evidence from SLED auditor Mr Vulic and former SLED auditor Ms Au, Ms Burge, Mr Yates, and Mr Malik. Background facts 1. On 8 June 2021, the Applicant electronically submitted a "Trainer Audit Report" to SLED for one of its trainers, Mr Yates. The report related to Mr Yates' role as trainer for Security Licence Course SLC042, and in particular his role in administering Assessment Tasks 3-6 in Cluster 1 of the SLC, which were conducted on 2 and 3 June 2021. 2. The Trainer Audit Report was provided as part of the document compliance monitoring activities which had been imposed on the Applicant by SLED in 2021 by way of an additional Condition on Star's approval, Condition 7A. 3. The Applicant claimed that the relevant assessment paperwork completed by Mr Yates had been reviewed prior to 8 June 2021 by an independent compliance reviewer engaged by the Applicant, Mr Doslea. 4. The Trainer Audit Report included copies of extracts from the "Candidate Workbooks" for SLC Cluster 1 for three students enrolled in SLC042, being Student A, Student B, and Student C (R8, Exhibit TV-1, Tab 3, pp 29-336). There was no note made to indicate that the copies of the Workbook extracts were anything other than true and accurate copies of the original documents. 5. The Candidate Workbook extracts included the "Observation Checklists" which were used during practical assessment of the students. The extracted Observation Checklists included red ticks against all of the 19 Assessment Criteria for Assessment Task 3. The students had been assessed as "Satisfactory" for the Assessment Tasks and signed off with dates on 2 and 3 June 2021, indicating that they fulfilled all of the 19 Assessment Criteria at that time (R8, Exhibit TV-1, Tab 3, pp 38-40, 144-146 and 248-250). 6. On 11 June 2021, Star submitted a further Trainer Audit Report to SLED which contained the SLC Cluster 2 Assessment Tasks 11-14 and Cluster 3 Assessment Tasks 16 to 18. This also included Candidate Workbooks for Student A, Student B and Student C (R8, Exhibit TV-1, Tab 4). 7. On 16 June 2021, SLED auditors attended Star's Liverpool campus in person to conduct an audit. The auditors requested the original Candidate Workbooks in relation to SLC Clusters 1 to 3 for the 18 students who had been enrolled in SLC042. The auditors were provided with Clusters 1 and 2, and were told that the Cluster 3 marking had not yet been completed. 8. The auditors observed that the Observation Checklists for Clusters 1 and 2 in these Workbooks, for all eighteen students, including Student A, Student B, and Student C, were not fully marked (i.e. they were missing ticks) for many assessment criteria, including many of the 19 Assessment Criteria for Assessment Task 3. In particular, ticks were consistently missing in: 1. the "Evidence to be Retained" section – "Contemporaneous notebook entry for incident Completed incident form" and "Evidence of electronic submission of completed incident form (eg email saved to student file)"; and 2. the Observation Checklists – the items relating to making contemporaneous notes, completing incident reports, and the electronic submission of the incident report by students. 1. The absence of these ticks in the original Workbooks/Observation Checklists for all eighteen students, including the three students whose Workbooks extracts had been provided on 8 and 11 June 2021, was inconsistent with the extracts provided with Mr Yates' Trainer Audit Reports. 2. Later on 16 June 2021, the Applicant requested the return of all 18 Candidate Workbooks from the auditors, saying that this was for assessments and photocopying in relation to other, later SLC clusters. The auditors returned the Workbooks. Later that day, the auditors inspected the Candidate Workbooks again, and noted that the majority of the previously unmarked sections/Observation Checklists for Clusters 1 and 2 had now been completed, including all 19 Assessment Criteria for Assessment Task 3. 3. Review of the Workbooks for the three students who had copies of their Workbook extracts provided with Mr Yates' Trainer Audit Report on 8 June 2021 revealed that the shape and position of the ticks on the 8 June 2021 extract copies were different to the ticks now in place on the original Workbook documents. A summary of these differences was compiled by the Respondent (R33). 4. Mr Yates did not properly complete the marking of the Workbooks/Observation Checklists before certifying on 2 and 3 June 2021 that students had demonstrated particular competencies/completed certain modules. Under cross-examination Mr Yates accepted that such conduct would be misleading. 5. Under cross-examination, Mr Malik accepted that one purpose of an audit was to "get an accurate picture of what the records look like at the time that the audit commences" and "assess STAR's compliance with the requirements at that point in time". He accepted that when SLED requests a document, from the time it is known SLED will be examining it, it should not be altered before it is given to SLED. He accepted that by at least 16 June 2021, the marking for clusters 1 and 2 should have been completed. Consequences of the conduct 1. While most of the facts are undisputed, it is the characterisation of those facts as constituting "tampering" with the student records, or making certain representations to the Respondent, which is objected to by the Applicant. 2. The Respondent submitted that the conduct described above at [350] was intended to give the impression that the original Candidate Workbooks had been assessed and marked with ticks on 2 and 3 June 2021, when in fact, as at 8 June 2021 the original Candidate Workbooks had not been marked with ticks. It was undisputed that Mr Yates marked the photocopies of the candidate workbooks prior to submission to SLED, rather than marking the originals. The consequence of this was that when SLED auditors physically inspected the originals, they did not have the same marks as the photocopies which were submitted. 3. In relation to the importance of contemporaneous and accurate marking of the Candidate Workbooks, the Respondent relied on Ms Burge's evidence, who said: "[a] "tick" on a student's assessment workbook indicates that the criterion or question has a satisfactory response or demonstration provided by the student. This is a fundamental requirement of the SLC, and is necessary in order for the RTO to deem a student as competent. The lack of a tick next to a response indicates that the criteria or question has not been addressed and a determination that a student is competent should not be made." 1. I accept the evidence of Ms Burge, Ms Au, and Mr Vulic in relation to the manner in which audits were conducted and their importance to the regulatory regime. 2. The Applicant submitted that Mr Yates' evidence was that he did not realise he marked the photocopies, rather than the originals of the candidate workbooks. The Applicant admitted that Mr Yates should have completed the observation checklists at the time of the assessment, but had signed the students off as competent for assessments, even though he had not yet ticked them as satisfactory for certain items. 3. The Applicant also admitted that on 16 June 2021 Mr Yates had inserted ticks in assessments for clusters 1 and 2, knowing that an audit was being undertaken at that time by SLED auditors and that the auditors were reviewing the candidate workbooks for clusters 1 and 2, and that he should not have done so. The Applicant submitted that, based on Mr Yates' evidence: "he genuinely believed he should correct his records upon realising they were incomplete, and more significantly, the ticks he inserted in the assessments genuinely reflected the students' actual competencies." 1. On the basis of Mr Malik's evidence, the Applicant submitted that Mr Malik did not review the assessments at the time Mr Yates had marked them, did not check the assessment workbooks himself, or know when they were signed by Mr Yates. The Applicant submitted that it was not reasonably open to the Tribunal to find that Mr Malik knew anything about the marking deficiencies, or that he knew what Mr Yates was doing during the audit, or what Mr Yates intended by that conduct. Mr Malik accepted that Mr Yates' conduct was not appropriate and sought to distance himself from it. 2. However, under cross-examination Mr Malik confirmed that on 8 June 2021 he had told Mr Yates "[m]ake sure it's done and everything is completed properly", and agreed that he witnessed Mr Yates marking the photocopied workbooks during the audit on that day. 3. Based on the evidence, I find that: 1. the copied extracts of Workbooks/Observation Checklists for three students submitted to SLED on 8 and 11 June 2021 were not "true and correct copies of the original documents"; 2. as the Candidate Workbooks had not had the Assessment Criteria marked at the time the assessment was performed, or before being marked as "Satisfactory" overall, none of the eighteen students should have been provided with the overall assessment result of "Satisfactory" for the relevant competencies/modules which they had received from Mr Yates on 2 or 3 June 2021; 3. Mr Yates marked photocopies of the Workbooks/Observation Checklists prior to their submission to SLED on 8 and 11 June 2021, to make it appear that marking had been properly completed prior to signing students off for the relevant competencies/modules on 2 and 3 June 2021, knowing that the documents were to be sent to SLED for compliance review purposes; 4. this occurred with the knowledge of Mr Malik who has confirmed that he witnessed Mr Yates marking the photocopies on 8 June 2021; 5. on 16 June 2021, during the course of SLED's audit, Mr Yates altered the Observation Checklists in the Candidate Workbooks by inserting ticks against Assessment Criteria that had not previously been marked. The effect of these alterations was to make it appear that marking had been properly completed prior to signing students off for the relevant competencies/modules on 2 and 3 June 2021. 1. Whilst Mr Malik said to Mr Yates "[m]ake sure it's done and everything is completed properly" on 8 June 2021, I do not find that this constituted an explicit instruction by Mr Malik to alter student workbooks. I find, however, that this statement could reasonably be interpreted by Mr Yates to complete the marking of student workbooks if he identified any deficiencies, notwithstanding that it was improper to do so for assessments which had been marked as satisfactory overall 5 or 6 days previously, and therefore constituted an implicit instruction from Mr Malik. I also find that Mr Malik had knowledge that Mr Yates did this on 8 June 2021, as he admits to observing it. 2. The Applicant emphasised shortly after the events alleged on 8, 11 and 16 June 2021 in respect of Mr Yates, he ceased to deliver security training for the security licence course and has not done so since 30 July 2021. Presumably, this fact is intended to diminish any responsibility the Applicant has in relation to the inappropriate conduct by Mr Yates. 3. The Respondent submitted that while there was insufficient evidence to conclude that Mr Malik was aware on 16 June 2021 that Mr Yates was marking Clusters 1 and 2 during the course of the audit, under cross-examination Mr Malik would not accept that it was inappropriate for Mr Yates to be marking Clusters 1 and 2 during the audit, saying "It's not written anywhere. The trainer can mark any time". The Respondent submitted that: "Ms Burge's evidence makes clear that Star's tampering with the June 2021 documents cannot be dismissed as trivial or administrative in nature. It involved a subversion and a failure to comply with the fundamental requirement of the SLC. Star's repeatedly casual approach to proper documentation and record keeping, and willingness to mislead or deceive regulators (see also Allegations 1 and 2 above) goes directly to its fitness and propriety." 1. I agree with that submission, and that the Applicant's attitude to this basic regulatory process reflects adversely on Mr Malik's fitness and propriety to hold a Master Security Licence. Remedial sessions 1. The Respondent alleged that the Applicant, through Mr Rudd, inappropriately conducted remedial sessions for students in August/September 2020, which were attended by Mr A and Mr K: see [341] above. Evidence at the hearing about the remedial sessions was given by Mr A, Mr K, Amna Ilyas, and Sarah. Mr Rudd passed away in June 2022 and his evidence was limited to his interview with SLED on 14 January 2020 (A68) and a Statement provided to SLED dated 14 January 2021 (A72). 2. Mr Rudd's evidence was that in late September 2020 he was asked by Mr Malik to review the student assessment books for SLC003, which had been conducted by a different trainer, Mr Smith, in August 2020. He reviewed the assessments and identified some insufficient responses from students, which had nevertheless been marked as "correct" by Mr Smith, and the student had been deemed competent and received the qualification. Then, students came to the Applicant's premises, met with Mr Rudd, and he went through their assessments with them, getting them to complete the answers to those questions which he thought were insufficient. He said that he did not give them the answers. He said he did this because Mr Malik had asked him to check their answers, and because they had already been deemed competent and received their qualification. 3. Mr Rudd explained in his statement that the new SLED course included an opportunity for second attempts at questions, whereas the old course did not. 4. Mr A and Mr K's evidence was to the effect that Mr Rudd told them what answers to write down in the assessment books. Under cross-examination they each gave evidence that they knew the answers which they had written down in the remedial sessions with Mr Rudd, without him telling them what to write down. I agree with the Respondent's submission, however, that it is irrelevant whether Mr A or Mr K independently knew the information, and "the point is that Mr Rudd told him what to write when he should not have done so". 5. The additions to student workbooks made during the remedial sessions with Mr Rudd were not recorded in the sections of the workbooks designated for a reassessment of any given assessment. In his statement to SLED, Mr Rudd accepted that Mr Smith should have marked some of the students as incorrect and the students should have undertaken a documented reassessment, which was not done. 6. The Respondent submitted, based on Amna Ilyas' evidence, that students were "threatened" that their certificates would be cancelled if they did not attend for the remedial sessions. The Applicant submitted that Amna Ilyas explained this was just a tactic to make sure students came back, "but it's not like we're actually going to [cancel the qualification]", and was done "in a polite tone". However polite the tone, or unlikely the intention of follow-through, it is clear from both Mr Malik and Amna Ilyas' evidence that the prospect of qualification cancellation was used by the Applicant to make students attend for the remedial sessions, and it is also clear from their evidence that the intention was for the students to "fix up their assessments", not just sign their names where signatures were missing. Otherwise, there would be no reason for them to attend, as they had already been marked as competent and received their qualifications. The students could not have known whether the threat was real or otherwise. This was not, as the Applicant submitted, merely an "administrative consequence" being politely explained to the students. 7. The fact that a new course was introduced in July 2020 may excuse some errors in marking, but does not excuse remedial sessions conducted after a student has already been deemed competent and issued a qualification, for the purpose of altering the student assessment records. 8. I agree with the Respondent's submission that the manner in which the "remedial sessions" with Mr Rudd were conducted was entirely improper. Students were threatened to ensure their attendance, were given information and answers by Mr Rudd to the assessment questions, and were encouraged to make changes to student assessments which had already been marked. The remedial sessions made no use of the dedicated re-assessment sections of the student workbooks. 9. The Applicant submitted that it could not reasonably be found that the remedial sessions were conducted with the knowledge or intention that those records would be provided to SLED, because it was not until 24 September 2020 that SLED issued a request for the relevant assessment records. In circumstances where the evidence before the Tribunal is that SLED were regularly and continuously checking the Applicant's compliance and conducting audits, it is highly likely that the assessment records would be reviewed by SLED at some point, and the Applicant went to the efforts it did to "fix" the assessment records with that in mind. 10. Though Mr Malik accepted that student answers to assessments are "either satisfactory or it isn't", he refused to accept that the failure to document the changes to student answers in the Remedial Sessions as reassessments (rather than the original assessment answers) was not appropriate. 11. It is clear that Mr Malik not only had knowledge that the students were providing additional information and answers in their completed assessment workbooks, but that he instructed Mr Rudd to facilitate this. Mr Rudd states this in his statement to SLED and Mr Malik accepted in cross-examination that he had a conversation with Mr Rudd about the remedial sessions, which accorded with the account Mr Rudd had given to SLED. Mr Malik came in and out of the room when Mr Rudd met with the students for the remedial sessions. Mr Malik had knowledge of those sessions, of the nature of the changes made to assessment documents, and of the resulting misleading nature of the documents when submitted to SLED. Conclusion 1. I have found that the records submitted to SLED during audits of the Applicant between 8 and 16 June 2021 (June 2021 documents) were altered or marked by Mr Yates so as to misrepresent to SLED what and how the students' records had been completed him, and that Mr Malik had knowledge of this in relation to the 8 June 2021 records and implicitly instructed him to do so. I have also found that the remedial sessions were improperly conducted, that Mr Rudd was instructed by Mr Malik to facilitate students changing their records, and that Mr Malik had knowledge of those remedial sessions, of the nature of the changes made to assessment documents, and of the resulting misleading nature of the documents when submitted to SLED. 2. I therefore find that Allegation 4 is proven on the evidence before the Tribunal. Allegation 5: the Applicant's Nominated Person, Mr Javaid Malik (Mr Malik) engaged in improper and inappropriate conduct towards students enrolled in security courses conducted by the Applicant on at least two occasions 1. Allegation 5 is set out at [19] and [20] above. The Respondent alleged that Mr Malik engaged in improper and inappropriate conduct towards two female students who were enrolled in security training courses, being Ms S and Ms R. Specifically: 1. Mr Malik's conduct consisted of calling female students out of class, and inviting them to meet with him alone after hours for additional training and assistance, without which it was suggested that the students would fail the security course; 2. Mr Malik offered to provide Ms R the answers to a forthcoming assessment if she met him after hours; 3. After Ms S visited the Applicant's office with her lawyer to complain about the harassment, Mr Malik paid her compensation; 4. Mr Malik cancelled the security qualification of Ms R after she had completed the course and been issued with her certificate, ostensibly because her visa conditions did not permit her to enrol in the course. Ms R 1. Ms R's evidence is limited to a statement she gave SLED on 2 November 2021, which she signed on 4 November 2021. In her Statement, Ms R alleges that Mr Malik attended an SLC at the Applicant's Granville premises between 20 and 30 June 2020. She completed the LLN test before the SLC started, administered by "one of the office ladies who I know as Sarah". She was asked to show her visa, which was a student visa, and was then told she could not do the course. At that point Mr Malik introduced himself to her and told her she could not do the course on a student visa but could do the course on a bridging visa for the 'TR' (Temporary resident) visa. She sought advice from SLED and was told that she could do the course but could not apply for the Security Licence until she had full working rights under the 'TR' visa. Ms R started the course and on the first day, Mr Malik called her out of class and told her in Urdu that he would assist her in the next day's assessment by giving her the answers, but she would have to come to his office at 7pm that night. This made her uncomfortable and embarrassed. She did not accept his offer and passed the assessment the next day, without his assistance. 2. Between 2 November 2021 and 4 November 2021 there were a number of emails between Ms R and SLED to make corrections to the draft Statement before it was signed. Significantly, Ms R stated on 3 November 2021: "I've one concern that I wouldn't like to appear in court in future." 1. Ms R did not provide an affidavit in these proceedings and declined to assist the Respondent when requested. She relocated to Canada and was not made available to give evidence to the Tribunal. The Respondent submitted that her absence had been satisfactorily explained, and so no adverse inference from her absence should be drawn against the Respondent. 2. The Applicant's evidence was that Mr Stoodley had informed Mr Malik that he was having difficulties with students, particularly Ms R, disturbing the class. On that basis, Mr Malik considered it appropriate to speak to Ms R individually and did so, at the reception desk at the Applicant's Granville premises. Mr Malik denied otherwise speaking to Ms R or suggesting to her that she should come to his office at night to receive the answers to a course assessment. 3. The Applicant submitted that an adverse inference should be drawn from Ms R's failure to provide an affidavit or have her evidence tested at the hearing, because the Respondent was able to facilitate Ms S giving evidence from Canada via audiovisual link, and because the Respondent had also failed to obtain evidence from the persons who Ms R referred to in her statement who could support her allegations, being Beenish Sana and David Ord. 4. In Australian Securities and Investments Commission (ASIC) v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165], the plurality wrote that: "Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led." 1. A Jones v Dunkel inference may be drawn "in appropriate circumstances": Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]. As Kirk JA observed in Ling v Pang [2023] NSWCA 112, it "is not a rule that can be applied formulaically" (at [24]) and the "evaluation of whether it is natural to expect the person to have been called by the party is fact specific" (at [32]). I decline to draw any adverse inference from the Respondent's failure to obtain Ms R's further co-operation to attend the Tribunal to give evidence, or from the Respondent's failure to call Ms Sana or Mr Ord to give evidence. It is entirely unclear what exactly that inference would be, other than "their evidence would not assist the Commissioner's case". If the Tribunal is not provided with sufficient evidence in support of the Respondent's allegations, the result is that the facts alleged may not be found, not that a nebulous "adverse inference" is drawn to undetermined effect. It is a matter for the Respondent to make out the allegations levelled at Mr Malik in relation to Allegation 5. 2. However, based on the inability of the Applicant to cross-examine Ms R, I give her Statement to SLED limited weight. 3. I accept the Respondent's submission that full working rights are not a legal prerequisite to participating in training; they are only a legal prerequisite to obtaining a security licence under the SI Act. I also accept the submission that there was no prohibition on the Applicant enrolling students on bridging visas, despite its inability to enrol students who were on international student visas. Those submissions were not disputed by the Applicant. 4. On Mr Malik's own evidence, he cancelled Ms R's SLC Certificate without a proper basis to do so. After initially permitting her to enrol in the SLC with a bridging visa, recording that she had a bridging visa, instructing the Applicant's office manager after she completed the course to check her visa status, and obtaining confirmation that she had a bridging visa prior to starting her course, Mr Malik cancelled the certificate on the basis that "she did not have full working rights when she attended the course", which was not a requirement. 5. Mr Malik's evidence was that it was his understanding that the Applicant would be in breach of the Australian Skills Quality Authority (ASQA) guidelines and the law if it allowed international students to enrol in its courses. Under cross-examination Mr Malik was unwilling or unable to accept that there was no statutory requirement for him to cancel Ms R's certificate due to her visa status. It may be that Mr Malik was mistaken about those requirements, or, as the Applicant submitted, overly cautious so as to implement an informal policy whereby students without full working rights were not allowed to enrol in the SLC. Mr Stoodley also gave evidence that it was the Applicant's policy that a student could not participate in the SLC unless they had full working rights. 6. The Respondent submitted that the Tribunal should find that Mr Malik cancelled Ms R's certificate "in retribution for her having told others about his advances, and her rejection of them". The only evidence linking Mr Malik's cancellation of Ms R's certificate with her allegation that he had acted improperly towards her was Sarah Ilyas' evidence that, when she spoke with him about Ms R, and told him to leave her alone, he said "I'll show her what I can do". I give Sarah Ilyas' evidence limited weight in the absence of any corroborative evidence. Even without limiting the weight of that statement, however, Sarah Ilyas' evidence is not sufficient to demonstrate that Mr Malik's specific actions in cancelling Ms R's certificate were the consequence to which he was referring. There is insufficient evidence before the Tribunal for me to find that his action in cancelling Ms R's certificate were retributive. 7. I am not satisfied on the evidence before the Tribunal that Mr Malik acted improperly towards Ms R. I am not satisfied on the evidence before me that Mr Malik invited Ms R to his office after hours, or that his cancellation of her course certificate was retributive. Ms S 1. The Respondent alleged that Mr Malik engaged in improper and inappropriate conduct towards Ms S by calling her out of class one day during a Security Operations course in February 2021; telling her that she was under performing and at risk of not being granted a licence; and inviting her to meet him after hours for further training while standing "very close" to her, and that Ms S found this interaction distressing and uncomfortable. 2. Ms S's written evidence consisted of her statement to SLED dated 3 November 2021 and an affidavit dated 12 April 2023 (R11). She was summonsed to give evidence at the hearing and appeared via AVL from Canada, and was cross-examined. 3. Cross-examination of Ms S demonstrated that there were inconsistencies and errors in her SLED witness statement which had been included by SLED when they were drafting the statement, the content of which she could not recall or had no knowledge of, and which she acknowledged had not been corrected by her. She said that she "didn't read it word-by-word but I signed on the date when I told them about the story… I was just reading it fast, quick, quick, not word-by-word". She signed it "on the spot", "They didn't explain it to me". When asked to clarify whether anyone explained to her, at the time she signed her statement, what the purpose of it was, she again said "they didn't explain it to me". Ms S agreed that, prior to signing her witness statement, she did not take time to ensure it was reliable. "I didn't read it word-by-word and it wasn't like one page, it was too much." She agreed that she was "in a rush" and said, "I don't have time for all these things." 4. Ms S was living in a women's refuge at the time she provided SLED with the 2021 statement. By the time Ms S was asked by the Respondent in 2023 to provide an affidavit in these proceedings, she had forgotten that she had provided a witness statement in 2021, which she then re-read to refresh her memory. The affidavit was taken via AVL and she said "they brought me the papers in my home and even then that time I was in rush. I read it through quickly and then I signed it to them." In the circumstances I prefer Ms S's oral evidence at hearing where it contradicts or is inconsistent with her written evidence. 5. In oral evidence at the hearing, under cross-examination, Ms S: 1. was very clear that Mr Malik's conversation with her occurred on the date of her second exam, shortly before the exam occurred; 2. recalled the conversation as Mr Malik telling her words to the effect of "I've got a complaint about you, you're not doing good and because you wear a scarf and the SLED won't like if you don't do the tactics and you know there are a lot of racist people and you should be careful, you should be practising more" and "come to Liverpool office after hours, to do the tactics practice"; 3. was shocked by the conversation because she believed she was actually doing well at the course and had been assisting other students. She was very upset and told "everyone" who was there about the conversation, and was so disturbed that she couldn't pay attention to her exam; 4. when challenged on her account of Mr Malik's words, denied that it was possible she was misremembering, saying "he have, I am very sure about that. He have. I don't get angry for no reason. He had"; 5. confirmed that Mr Malik said words to the effect of "you have my number. You can contact me after hours and come to my office and I will give you the personal training to learn tactics – to teach you the tactics" and affirmed that Mr Malik's offer was clearly for an "after hours" meeting. 1. When questioned in cross-examination about her performance and conduct in the course, Ms S admitted that Mr Stoodley had given her feedback to "be more assertive" but was not willing to admit this was a criticism, and claimed that this feedback was common to other students as well. She appeared defensive regarding any feedback being considered as criticism of her course performance. 2. Mr Stoodley gave evidence that after Ms S returned to the classroom following her discussion with Mr Malik, he may have had a discussion with her in which he provided her encouragement and attempted to convey to her that he had the ultimate say on whether students passed the course, and not Mr Malik. This evidence corroborates Ms S's to the extent that she expressed that Mr Malik had threatened her or implied a threat that he had the ability to fail her. 3. On 8 February 2021, Ms S undertook a written exam for the course which she failed. With respect to Ms S's performance in the course generally, Mr Stoodley formed the view that "at the beginning … she was doing okay and then she got a little bit complacent". On her evidence, the conversation with Mr Malik had taken place just before the exam and had impacted her ability to concentrate. She admitted under cross-examination that she may have failed the exam even if the conversation with Mr Malik hadn't affected her, stating "I'm not saying I would have passed the exam if this thing [the conversation with Javaid] didn't happened". 4. Mr Malik's evidence of the conversation with Ms S was that Mr Stoodley had informed him that some of the female Muslim students in the class were "having difficulties with being shy and participating in the practical role play", so he agreed to speak with them, one of which was Ms S. He had conversations with Ms S and some other students individually. He advised Ms S that she will need to meet the training requirements, including completing the practical role plays, in order to pass the course. Mr Malik's evidence is that he did not stand closely to Ms S but rather stood around two to three metres apart from her during the conversation. Mr Malik denied inviting Ms S to meet him after hours. Mr Malik stated that Ms S failed the assessment the week following their conversation, not the same day. Under cross-examination he accepted that he called three female students out of the class individually, but no male students. 5. The Respondent submitted that Amna Ilyas' affidavit included corroborative evidence of Ms S's account. Amna Ilyas stated that a student named Lena reported to her that Ms S was upset, because Mr Malik told her she needed to see him after class for self-defence techniques. Sarah Ilyas also gave evidence that Amna Ilyas had told her about this. Neither Amna Ilyas nor Sarah Ilyas were challenged on that evidence in cross-examination. However, in circumstances where the evidence is third hand hearsay (at best), I do not give it any weight. 6. Having considered the two competing accounts of the conversation which occurred between Mr Malik and Ms S, I prefer Ms S's account. Despite some inconsistencies in her evidence and her admissions regarding the lack of care taken to review her statement and affidavit, I agree with the Respondent's submission that Ms S was clear, at hearing, on the key elements of her conversation with Mr Malik: that he invited her to meet him after hours, it was implied that she wouldn't get a licence because she wore a headscarf, and that Mr Malik was standing close to her when he said all of this, so that she felt uncomfortable. 7. Ms S and Mr Malik's evidence of what occurred between them following this conversation also differed. Ms S's evidence was that she later met with Mr Malik in the presence of a friend and lawyer, Mr Salam, and accused Mr Malik of harassment. Although in his affidavit Mr Malik denied that Ms S had accused him of inappropriately seeking to meet privately after hours, under cross-examination he accepted that this had occurred. According to the Respondent, Ms S sought a full refund for the course so that she could do it elsewhere, and Mr Malik counter-offered her $400 in compensation for the harassment, said she could do the next course at Star, and swore on the Quran. According to the Applicant, Ms S had wanted to complete the course (after failing an examination) without having to pay the $250 reassessment fee, and there was no mention of a $400 payment in Mr Malik's initial affidavit. In his second affidavit, Mr Malik accepted the objective evidence that $400 had been paid to Mr Salam but explained that amount was intended as a "refund" for the re-enrolment fee, despite knowing (or at the least, not checking) that Ms S had not paid a re-enrolment fee. 8. The Applicant submitted that it was not unreasonable for Mr Malik to have proceeded on the assumed understanding that Ms S had paid a re-enrolment fee for the course she had failed, and "not felt the need to undertake any further checks at that time" before paying her the $400 as a "refund". On the evidence before me, I prefer the Respondent's submitted account as far more likely to have occurred than the Applicant's, for two reasons: first, the amount of $400 was paid to Mr Salam for Ms S, not paid to Ms S directly, which I would have expected to occur if the amount was actually a refund; and second, I consider it unlikely that Mr Malik would issue refunds for courses without first checking that the fee being refunded had actually been paid. 9. Additionally, the fact that Ms S involved Mr Salam as a third party to assist her in communicating with Mr Malik, and negotiating and arranging for compensation to be paid and her reassessment fee waived supports Ms S's version of events. I accept Ms S's evidence as set out at [403] above. I also accept Ms S's evidence that she did not complain of the harassment to the police because "[Mr] Malik had given her compensation, had sworn on the Quran and she had forgiven him". Shane Smith 1. The Respondent submitted that there was evidence before the Tribunal of "troubling conduct towards students by trainer Shane Smith". Much of that evidence was provided by Ms H, a student enrolled in a class which was taught by Mr Smith on 24 May 2021. Ms H complained to Mr Malik about Mr Smith's conduct, and under cross-examination she agreed that Mr Malik resolved her concerns to her satisfaction. 2. Allegation 5 specified that the conduct in question was that of Mr Malik, as the Applicant's Nominated Person. The Respondent has not explained in oral or written submissions how Mr Smith's conduct is relevant to Allegation 5. As submitted by the Applicant, Mr Smith was licensed by the Respondent, and if there was an issue with his conduct impacting on his suitability to hold the license, that should be raised with him by the Respondent directly. As submitted by the Applicant, Mr Smith would remain licensed to conduct training in the same manner under the SI Act, irrespective of which organisation employed him. 3. There is insufficient evidence before the Tribunal to support a finding that Mr Smith's improper conduct is attributable to the Applicant or its Nominated Person, in the particular circumstances of this Allegation. I therefore make no finding in relation to Mr Smith's conduct in the context of Allegation 5. Conclusion 1. The evidence before the Tribunal supports a finding that Mr Malik engaged in inappropriate conduct towards Ms S, as outlined above. There is insufficient evidence, however, for me to find that Mr Malik engaged in the same or similar conduct towards other female students. As discussed above, I am not satisfied on the evidence before the Tribunal that Mr Malik acted improperly towards Ms R. I am not satisfied on the evidence before me that Mr Malik invited Ms R to his office after hours, or that his cancellation of her course certificate was retributive. 2. I therefore find that Allegation 5 is partially proven on the evidence before the Tribunal. Allegation 6: the Applicant engaged in improper conduct towards former employees 1. Allegation 6 is set out at [21] and [22] above. The Respondent alleged that the Applicant and Mr Malik engaged in improper conduct towards former employees, being Sarah Ilyas and Amna Ilyas. Specifically, that Mr Malik: 1. pursued Sarah Ilyas in 2021 for a debt of approximately $8,000 which Mr Malik lent her in 2017, and which she claims to have paid back shortly after it was given; 2. accused Sarah Ilyas of using the Applicant's systems to fraudulently issue vocational qualifications to herself; 3. contacted Sarah Ilyas' new employer to state that she had been guilty of misconduct during her time at the Applicant; 4. repeatedly calling Sarah Ilyas, sending her threatening text messages, repeatedly checking her social media profiles and left threatening messages with her mother in Pakistan; 5. made allegations concerning Ms Amna Ilyas' employment at the Applicant to the Department of Immigration, and Investment NSW, which impacted her "life and permanency residency status". 1. As outlined above at [21] and [22], the Respondent alleged that the improper conduct towards Amna and Sarah Ilyas was retribution for their cooperation with SLED. 2. The Applicant submitted that Mr Malik's accusations towards, and about, Amna and Sarah Ilyas were not false, that he had reasonable grounds for making them, and did not make them as a response to their cooperation with SLED; and that he had not sent threatening messages to Sarah Ilyas or her mother. 3. The Respondent acknowledged in written submissions that the Tribunal's consideration of Allegation 6 would be impacted by the "unsatisfactory aspects" of Sarah Ilyas' evidence to the Tribunal. The Respondent submitted that there was nevertheless sufficient evidence to support the allegations of retribution against Sarah and Amna Ilyas by Mr Malik and the Applicant. 4. Sarah Ilyas worked for the Applicant between August 2017 and February 2021. The circumstances by which her employment with the Applicant ended were disputed. She claimed to have left that employment because she was "sick of trying to cover up all the problems". The Applicant alleged that she was terminated after an altercation with a student. Amna Ilyas worked for the Applicant between July 2019 and her resignation in March 2021. 5. I accept the Respondent's submission that the relationship between Mr Malik and Sarah and Amna Ilyas went beyond the usual relationship between employer and employees. The evidence demonstrated a familial relationship which was grounded in shared culture and ethnicity, which originated many years before either Sarah or Amna Ilyas arrived in Australia, and which continued for years after: 1. in 2017, Mr Malik met Sarah Ilyas' mother when she was visiting from Pakistan, and took her out for dinner a few times with both Sarah Ilyas and Amna Ilyas; 2. Mr Malik described his relationship with Amna and Sarah Ilyas as: "…four years I have become their father, I have provided them all whatever requirement they ask for me." 1. Amna Ilyas worked at the 7-Eleven owned by Mr Malik's son, Wasim Malik, for "a couple of years" from 2017 until 2019; 2. in December 2018, Mr Malik provided a statement in support of Sarah Ilyas' visa application (AR16, pp 276-283). In that statement, he described himself as a "family friend" of Sarah Ilyas for 15 years, who was introduced to Sarah Ilyas by her mother. He stated that Sarah Ilyas and her partner "often come to our place for our festivals and events" (AR16, p 278), and that he had known Sarah Ilyas' partner for 5 years. 3. Mr Malik's son, Fahim Malik, agreed that he had seen Sarah Ilyas at his father's house, including for Ramadan; 4. Wasim Malik provided a reference for Sarah Ilyas' visa application (AR16, p 150), stating that he had known her for over 15 years, having met in Pakistan. At hearing he clarified they had met as teenagers in Pakistan and were "always in contact" after he moved to Australia. They were "very close friends, but become more closer when she came here [Australia]". 5. Wasim Malik said that Sarah Ilyas would sometimes celebrate festivals and events with the Malik family; 6. Wasim Malik allowed Sarah Ilyas to live at the Quest he managed for three months in 2020, when she was going through a hard time; 7. Mr Malik's nephew Asif Aslam also provided a reference for Sarah Ilyas' visa application in September 2017, stating that he saw her and her then-partner often; 8. Mr Malik received voice messages on WhatsApp from Sarah Ilyas' mother in 2021, and accepted under cross-examination that they had each other's phone numbers. Visa assistance 1. Both Sarah and Amna Ilyas had assistance from Mr Malik in relation to their visa applications. Sarah's visa 1. Sarah Ilyas applied for a partner visa via her lawyer, Mr Li, on 14 September 2017. Her partner was named as Mansoor Ali. On 15 September 2017, Sarah Ilyas was granted a bridging visa allowing her to remain in Australia during the processing of her application for a partner visa. Despite it being a condition of her bridging visa that she in engage in "no work", Sarah Ilyas started working for the Applicant in August 2017. 2. Mr Malik provided a statutory declaration in support of Sarah Ilyas' partner visa on 18 December 2018, where he stated that he had known Sarah Ilyas for 15 years and Mansoor Ali for 5 years: "I am family friend of "UROOJ ILYAS" from last 15 years. She was introduced by her mother. I first met Mansoor on a family dinner in 2017. She and him often come to our place for our festivals, and events. UROOJ shared with her mother and she shared with me regarding her relationship with Mansoor Ali. She told me herself as well about her relationship and about their future plans as well. I can clearly see they care for each other and they are constant in contact. Urooj and Mansoor always turn up together on our premises on any family occasion. They recently visited us for Iftar on Ramadan and then on Eid as well. Urooj wasn't feeling well 3 months back he was always there for her and looked after her." 1. When Sarah Ilyas submitted Mr Malik's statutory declaration to the Department, she said: "Please see attached completed Form 888 by my family member Javaid Malik." In the same document, Sarah Ilyas said: "I am going to seek employment in Australia when my visa is granted." Sarah Ilyas' partner visa application was refused on 12 February 2019. She applied to the AAT for review on 20 February 2019, and was granted a Bridging C visa on 11 October 2019, which had no work conditions. 2. Sarah Ilyas' relationship with Mansoor Ali had broken down by October 2020, by which time she had already begun a relationship with Muhammad Hasan. Sarah Ilyas married Muhammad Hasan on 13 March 2021 and had a child with him in October 2021. Sarah Ilyas did not inform the AAT that her relationship with Mansoor Ali, upon whom her partner visa application relied, had broken down, until November 2022. She also did not inform Mr Malik that this relationship with Mansoor Ali had broken down. 3. As discussed below, Mr Malik discovered in May 2021 that Sarah Ilyas had married a different man. Following this discovery, Mr Malik and Sarah Ilyas had the following text exchange on 19 May 2021: "Mr Malik: Congratulations, I found out all your secrets, woe what a liar, cheater whole family, but all good wait for a surprise responses from me, you will see now a different person. Sarah: Be in your limits dont drag my family I respect u but it doesn't mean I stand this behaviour Mr Malik: I see all respect. I will show you my limits now. Just wait with patient. Sarah: Good luck Mr Malik: [screenshot of bank statement with credit card charges of 14 September to 'LMP Immigration Sydney Au' for $1100 and 'Dept. of Immigration Southport Au' for $7068.60 highlighted] You need to pay by this Friday before it's goes to immigration and solicitors, I have just talk to city bank, if I don't get paid by Friday they said they contact with immigration and ask for refund and take further action. Mr Malik: Total amount $8168.60. Star Training Academy. BSB: [redacted] A/c: [redacted] Sarah: Go ahead with further action, as I will take as well. Mr Malik: Great. Mr Malik: An other good news I am going to contact immigration to be part of your case because I have filled 888 forms and I would like to withdraw as well. Mr Malik: Citibank will take care of the payment from now on. Sarah: Hahaha! Go ahead [laughing crying emoji] Case is already refused I don't care Sarah: Do whatever you can!! Good luck Mr Malik: Keep watching Sarah: Hahaha! I am so scared of these threatening messages! Mr Malik: Please don't need to scare.now leave it up to me 9no message from my side anymore, I make sure I do it Sarah: Yes lets see what u can do! Its not Pakistan to threaten someone Mr Malik: Thank you just receive a call from Citibank that fill the form and we recover money from immigration thank you from now on no messages please, I don't talk I will show the result. Enjoy and good luck" 1. The Respondent submitted these messages were threatening and intended to intimidate or distress Sarah Ilyas. I do not accept that Mr Malik's text messages were threatening, in that they were intended to intimidate or distress Sarah Ilyas, or cause her bodily harm. Although Sarah Ilyas identified them as threatening, her responses demonstrated that she was not intimidated or distressed by the messages and, to the contrary, was goading Mr Malik to "do whatever you can!!! Good luck". In the circumstances of their close familial relationship, Mr Malik informing Sarah Ilyas by text of the consequences of her newly-discovered actions do not, in my view, constitute threatening behaviour. Amna's visa 1. Amna Ilyas arrived in Australia from Pakistan in 2017 and applied for a skilled migration visa (Skilled – Nominated (subclass 190)) on 24 June 2021, on the basis that she was qualified to work and had employment with the Applicant as a "Network Engineer". 2. The documentary evidence supporting Amna Ilyas working for the Applicant as a network engineer included: 1. In 2020 Amna Ilyas completed a work placement with the Applicant through "ECA Internships". Mr Malik approved that placement and agreed to her telling ECA Internships that she had worked during that work placement as a 'network engineer'. 2. Prior to commencing employment with the Applicant, Amna Ilyas received a "letter of offer" signed by Mr Malik offering her employment as a "junior computer network and system engineer". The letter stated the offer was "subject to [Amna Ilyas] providing evidence of having gained the qualification" and identified that the offer would lapse if that requirement was not satisfied. 3. Amna Ilyas' pay slips from the Applicant consistently described her position as "Network Engineer" (R41); 4. On 7 October 2020, Mr Malik signed a letter certifying that Amna Ilyas had been employed by the Applicant as a Network Engineer since 1 July 2019, and set out various roles and responsibilities she fulfilled (R42). Under cross-examination Mr Malik accepted that he signed this document and said he was "very happy to represent" in that document that Amna Ilyas had "worked as a network engineer"; 5. On 17 April 2021, Mr Malik signed another letter confirming that Amna Ilyas had been employed by the Applicant as a Network Engineer since 1 July 2019, and set out various roles and responsibilities she fulfilled (AR16, p 999). Under cross-examination Mr Malik denied signing this document, and suggested that the Applicant's administrative staff did so using his electronic signature, without his approval. 1. The Applicant disputed that Amna Ilyas worked as a network engineer, and submitted that the documents which supported this claim had been created by Mr Malik to support her obtaining a qualification. Specifically, Mr Malik's understanding was that Amna Ilyas needed to "complete the work placement to get the IT degree from the college", and he assisted her in doing this. 2. There was evidence before the Tribunal that despite the documents referred to at [432] above, Amna Ilyas did not, in fact, work for the Applicant as a network engineer: 1. In Amna Ilyas' recorded interview with SLED in February 2021, when asked about her job title and job description, Amna Ilyas did not say that she was a network engineer, and she did not identify any duties associated with being a network engineer. This was despite their warning to her that it was an offence to mislead them. Under cross-examination she agreed that she said nothing about being employed as a network engineer to SLED; 2. On 1 June 2021 Amna Ilyas sent an email to Mr Malik requesting that he sign a statutory declaration regarding her work tenure and job roles with the Applicant, which identified her role as "Network Engineer", for the purpose of her visa application. Mr Malik responded on 2 June 2021 advising her that he could not sign the statutory declaration, because she did not work for him as a network engineer; 3. There was no reference to Amna Ilyas working as a network engineer with the Applicant in either her witness statement of November 2021 or her affidavit of April 2023; 4. Amna Ilyas' evidence that she worked as a network engineer was led for the first time in her oral evidence in chief at the hearing, where she said she performed a handful of additional tech-related duties to her administrative assistant duties; 5. Amna Ilyas made submissions to the Department (s 57 Response) which stated: "The Applicant does not dispute that incorrect information has been supplied with her EOI on her visa application by noting that she was employed at [STAR] in the capacity of a 'network engineer'. Rather, the Applicant wishes to correct the record to confirm that her employment with [STAR] was in the role of Administration Assistant." 1. On 1 June 2021 Amna emailed Mr Malik as follows: "Salam, Could you please sign the attached declaration highlighting my work tenure and job roles at Star Training Academy. The job roles are exactly the same as the previous document, but a JP attested declaration has to be submitted as part of documentation. I will request John for JP attestation only once it is signed by you. I cannot thank you enough for all the help you have done for me. I will always be grateful. Regards, Amna" 1. In Mr Malik's reply email to Amna Ilyas of 2 June 2021 he stated: "I have provided you reference pay slips, and only for your future could provide reference if someone called but unfortunately can't sign declaration form. please see below the consequences of signing the declaration. Note 1 A person who intentionally makes a false statement in a statutory declaration is guilty of an offence, the punishment for which is imprisonment for a term of 4 years - see section 11 of the Statutory Declarations Act 1959 Note 2 Chapter 2 of the Criminal Code applies to all offences against the Statutory Declarations Act 1959 – see section 5A of the Statutory Declarations Act 1959 Kind Regards Javaid Malik" 1. The Applicant submitted that while Mr Malik was willing to provide false statements in documents to be used by Amna Ilyas for the purpose of obtaining her qualification, he was unwilling to maintain those false statements when her visa application was in issue, and when doing so could amount to a criminal offence with serious penalties. On balance, I find that explanation likely, especially considering his email of 2 June 2021 which specifically identified that he held that concern. I find the documents at [432] above to be inaccurate and do not accept their contents as the truth of those matters. 2. I find that Amna Ilyas did not work for the Applicant as a network engineer, despite the documents identified above which stated or implied she did. I find that she worked as an administrative assistant and receptionist and occasionally performed a handful of tech-related duties in addition to her administrative assistant duties. Sarah Ilyas: The $8168 debt 1. It was undisputed that on the evening of 14 September 2017 after about 9pm, Sarah Ilyas gave Mr Malik's credit card details to her immigration solicitor for the purpose of charging the card with payment of her visa application fee ($7,068) and her legal fees ($1,100). Her solicitor at that time was Mr Jia (Jack) Li, the principal of LMP Immigration. 2. The factual circumstances of how this came about, whether the debt was repaid, and how the debt was said to be repaid, were disputed. The Respondent submitted that Mr Malik authorised the transactions on his credit card and that Sarah Ilyas paid him back, in cash, shortly after. 3. Sarah Ilyas claimed that on 14 September 2017 Mr Li requested payment of $8000 be made in cash, at his office, that evening. On Sarah Ilyas' account, she called Mr Malik, who encouraged her to use his credit card, because he considered her alternative plan of travelling into the city at night carrying that amount in cash to be too unsafe. She gave Mr Malik's credit card details to Mr Li who attempted to put the transaction through, but the transaction was declined. An authorisation code from Citibank was provided by Fahim Malik, and a second attempt at the transaction was successful. 4. Under cross-examination Sarah Ilyas expanded significantly on the evidence provided in her affidavit, referring to additional conversations with both Mr Li and Mr Malik that evening, which she hadn't previously deposed to in writing. As submitted by the Applicant, when asked what she planned to do with Mr Li's request for cash payment: "…she said: "I thought to catch the train and just go to his office and pay to him." She said she had "cash at home", specifically, "$8,000 in my bag at home". The amount of cash she had at home was "8,000, whatever was the requirement, or 9,000". When asked where she kept that cash at home, she said: "In my handbag." She said she carried her handbag "most of the time". When asked whether she always carried all of that cash with her, she then said "[n]ot $8,000", "[w]hatever was the requirement, like maybe 50, $100, just to be safe". The location in which she kept the rest of the cash then became "side tables, in the drawer". Her plan was "to just empty the drawer of cash into [her] handbag and go to [Mr Li's] office and pay the fee"." 1. Mr Malik denied having any conversation, of any kind, with Sarah Ilyas about the payment for her immigration lawyer or using his credit card for that purpose. He had given her permission to use the credit card for business purposes shortly after she started working at Star in August 2017, and claimed she abused this access by making the large, unauthorised transaction to Mr Li. 2. Fahim Malik, one of Mr Malik's sons, provided an affidavit (A14) addressing Sarah Ilyas' claims that he was involved in this transaction by providing her with an authorisation code. 3. A tax invoice issued by the Department of Immigration and Border Protection on 14 September 2017 (R35) confirms the use of Mr Malik's credit card to pay the visa expenses of the amount alleged. It also records "Auth code 596179". The Respondent submitted: "The natural interpretation of those words is that this is the authorisation code that was issued when that transaction was attempted, and which was successfully supplied in order to complete the transaction. Star has provided no evidence from Citibank, Mr Malik's bank, to contradict that interpretation. Mr Malik's own bankers cannot be said to be within the "camp" of the Commissioner." 1. It is the Respondent which is relying on the evidence of "auth code 596179" on a Department invoice to mean something in particular, to support Sarah Ilyas' account of the transaction requiring an authorisation code, which was allegedly then supplied by Fahim Malik. It would be up to the Respondent to provide the evidence from the Department as to what "auth code 596179" on this invoice meant. It is not up to the Applicant to contradict a factual assertion which has not been supported by objective evidence. I therefore do not accept the Respondent's submission. 2. Sarah Ilyas made a number of statements about electronic transactions and her conduct on the evening of 14 September 2017. She claimed because "I was new in the country, I wasn't sure that I can use someone else's credit card for my things". I find that statement implausible considering she had already been in Australia for more than 6 months by that time, and irrelevant considering she did, in fact, "use someone else's credit card for my things". She claimed to have told Mr Malik that she "didn't know how to do an electronic transfer" from her bank account, and denied having seen an electronic money transfer before 14 September 2017, but agreed under cross-examination that she had previously worked jobs at Smart Money Transfer in Lakemba in July 2017 and Travel Mate Money Exchange in Sydney in February 2017. I find her statements implausible in the circumstances. 3. Under cross-examination she accepted that electronic transfers are "quite simple" but said she didn't try to work out how to do an electronic transfer "[b]ecause I was behind the schedule, as I said already. So there was no time for tried and errors again and again." This contradicts her evidence that she was otherwise going "to just empty the drawer of cash into [her] handbag and go to [Mr Li's] office and pay the fee" and "I thought to catch the train and just go to his office", which would have taken significantly longer than an electronic transfer, even with trial and error. It is also implausible in circumstances where she instead used Mr Malik's credit card – which, on her evidence, she was not sure she was able to use – and contradicts her evidence that she made multiple telephone calls to Mr Malik and her solicitor, that there was a declined transaction attempt, and an authorisation code ostensibly being sent by a fourth party to her solicitor. 4. In response to the Applicant's submissions about Sarah Ilyas' evidence, the Respondent submitted: "Star's submissions are again insensitive to the difficulties a person, newly arrived in Australia, might face in working out how to set up and access internet banking in a short space of time. " 1. I disagree. First, the submissions are not insensitive to "a person, newly arrived in Australia". The Applicant is entitled to test Sarah Ilyas' evidence. She was not giving evidence on behalf of "a person, newly arrived in Australia", but about herself, in particular. Second, the evidence before the Tribunal about Sarah Ilyas was that she arrived in Australia some months previously. There is no reason why, even if she had not previously had any exposure to internet banking or had not previously (prior to her arrival) known how to set up and access internet banking, she could or would not have done this in the months following her arrival. She had also already had a number of jobs requiring knowledge of financial transactions. Third, it relies on an underlying assumption that all people from Pakistan, the country from which Sarah Ilyas had come, did not have regular exposure to, or use of, internet banking. There was no evidence provided by the Respondent to support that assumption, or to demonstrate its applicability to Sarah Ilyas' circumstances. 2. Under cross-examination Sarah Ilyas agreed that she had no contact with Fahim Malik at all during the transaction, that she was still on the telephone with Mr Li at the time the transaction went through, and that "technically" she was only assuming that there was an authorisation code sent to Fahim Malik, and which he approved. 3. Under cross-examination, Fahim Malik appeared genuinely unaware that Sarah Ilyas had involved him in her evidence about the payments made to her via the Applicant's Citibank account, and he denied having received or given her any codes to facilitate that transaction. I accept his evidence. 4. There was no evidence from Mr Li before the Tribunal. His evidence could have corroborated Sarah Ilyas' evidence on: 1. Whether he was expecting her to pay him in cash on 14 September 2017, and when he asked her to do this; 2. Whether she told him after 9pm on 14 September 2017 that she would bring about $8,000 in cash to his CBD office that night; 3. Whether she made the various phone calls to him in the manners she alleged in her written and oral evidence; 4. Whether an authorisation code had been required, and whether this was provided by Fahim Malik. 1. The Applicant submitted that the Tribunal should infer from the Respondent's failure to provide evidence from Mr Li that his evidence on these matters would not have assisted the Respondent's case, and that the following inferences were therefore available: 1. Sarah Ilyas lied about telling Mr Li that she was able and willing to bring about $8,000 in cash to Mr Li's office after 9pm on 14 September 2017 and about telling him that she would in fact do so prior to receiving the telephone call from Mr Malik; and 2. Sarah Ilyas lied about the multiple telephone calls and conversations she says she had with Mr Li on the evening about the use of Mr Malik's credit card to pay for her visa application fee and legal fees. 1. Considering parts of Sarah Ilyas' evidence in relation to the events of the evening of 14 September 2017 were implausible and she gave conflicting accounts to the Tribunal, I agree with the Applicant that it is appropriate to draw the inference that Mr Li's account of what occurred would not assist the Respondent's case, and that "any inference" favourable to the Applicant that is otherwise open on the evidence can be "more confidently drawn" in Mr Li's unexplained absence: Jones v Dunkel at 308 (Kitto J), 312 (Menzies J), 320-321 (Windeyer J); Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 at 61-62 (Black CJ, Burchett and Kiefel JJ). 2. Fahim Malik's evidence was that he had no knowledge of any transaction or authorisation. Sarah admitted that she had not, in fact, spoken to Fahim about the transaction or its authorisation (or at all). Mr Malik's evidence was that none of the conversations alleged by Sarah Ilyas to have occurred with him that night, occurred; that he did not authorise the credit card charges, had no knowledge of them at the time, and was only made aware they had occurred in October 2017 when he discovered the charges of $1,100 and $7,068 to "LMP Immigration Sydney Au" and "Dept. Of Immigration Southport Au" on his credit card statement, asked Sarah Ilyas about them and she said "yes, I used it to pay for my immigration and I will pay you back". 3. Having considered Sarah Ilyas' own conflicting evidence, I prefer Mr Malik and Fahim Malik's evidence to hers. I also agree with the Applicant's submission that it is appropriate to draw the inferences available on the evidence before me, as outlined above at [454]. Repayment 1. Mr Malik denied ever being repaid by Sarah Ilyas for the $8168 she put on his credit card on 14 September 2017. Sarah Ilyas claimed that when Mr Malik returned from Pakistan, she asked him how to repay the money and he told her to pay it in cash. She said: "Javaid came to the Liverpool office at 259 Northumberland Street, Liverpool and I repaid him the full amount in cash $8168. I rounded it up to $8200 as the cash was made up of $100 and $50 notes. It was not in an envelope, I had it in my handbag ready to give it to him. I did not get a receipt from Javaid because I did not think I would need one. After that Javaid never mentioned the payment again and I believed that the loan had been repaid." 1. At hearing, however, Ms Ilyas said she took the cash from the drawer at home, put it in an envelope, put it in her handbag, and took it to the Liverpool campus. She said she and Mr Malik were at the reception desk and she opened her bag and gave him the "[c]ash envelope with eight thousand nine – whatever the amount was, that cash" and handed it to him. She agreed that where her witness statement said "[i]t was not in an envelope", the opposite was the truth. 2. There was no evidence that Sarah Ilyas had repaid the amount owing in cash to Mr Malik at any time, other than her own evidence. 3. Mr Malik's evidence was that he had followed up with Sarah Ilyas about the repayment of the charged amounts a few weeks after their initial conversation, and every three months after that time. On those occasions, Sarah Ilyas made excuses about why she had not paid back the amounts and, ultimately, the amounts were never repaid. There was no evidence of these conversations regarding repayment, other than Mr Malik's own evidence. 4. On 19 May 2021 Mr Malik and Sarah Ilyas had the text exchange quoted above at [429]. On 24 August 2021 Mr Malik wrote on the Applicant's letterhead to Sarah Ilyas, via her email address, making a formal demand for repayment of the $8168.60 within 10 working days. Under cross-examination Sarah Ilyas confirmed that she received Mr Malik's letter in August 2021, that she read it when she received it, and that she never replied to it "[b]ecause it's all false allegation". 5. The Respondent submitted that Sarah Ilyas' evidence that she had repaid the $8168 in cash shortly after borrowing it should be preferred to Mr Malik's evidence that he was never repaid, because it was implausible that Mr Malik would have continued to employ Sarah Ilyas for more than 3 years, provide a statement in support of her visa application in December 2018, hire her sister in 2019, and do nothing to restrict her access to his credit card, if she had not repaid the amount owing. The Respondent also relied on there being no documentary record of Mr Malik requesting repayment at any time prior to May 2021. 6. The Applicant submitted that: "Mr Malik's conduct is understandable in light of the personal or familial relationship between Mr Malik and Sarah Ilyas and, as far as the evidence suggests, Sarah Ilyas did not use the credit card without authorisation again. It is not surprising that Sarah Ilyas continued to have access to the credit card (as it was required for administrative duties). It is also not surprising, in circumstances where Mr Malik and Sarah Ilyas would see each other in person most work days, that he would follow up with her about the payment verbally and in person rather than in writing via text message or email. It is otherwise apparent that Mr Malik gave Sarah Ilyas the benefit of the doubt and retained the belief that she would pay him back the funds." 1. The Applicant pointed out that Sarah Ilyas' response to Mr Malik's text message demanding repayment on 19 May 2021 did not indicate that she had repaid the amount owing. Rather, her response indicates an attitude that she did not intend to repay the money owing. Similarly, she did not reply to the letter of demand of 24 August 2021 stating that she had already repaid the amount claimed to be owing. 2. I agree with the Applicant's submissions that Sarah Ilyas did not repay the amount owing to Mr Malik. I do not accept Mr Malik's evidence, however, that he chased her for repayment every 3 months. On the evidence before the Tribunal I find that Mr Malik did not seriously pursue repayment of the debt owed by Sarah Ilyas to him until their relationship broke down in May 2021. Sarah's failure to deny that she owed him the money claimed, when he first seriously demanded repayment in May 2021 by text, and then again in August 2021 by letter, supports my finding that she had not repaid him the money by that time. Sarah Ilyas: issued qualifications 1. In the Applicant's correspondence to the Respondent of 6 May 2022, the Applicant identified the misconduct it alleged against Sarah Ilyas as the reason for the cessation of her employment, and attached two letters of 24 August 2021. Both letters were signed by Mr Malik, on the Applicant's letterhead, and sent to Sarah Ilyas' email address. The first letter was a demand for repayment of the $8168.60 Sarah had charged to Mr Malik's credit card on 14 September 2017. 2. The second letter was titled "Illegal issuance of Testamurs and Cancellation notification" and alleged that Sarah Ilyas had issued certain qualifications to herself without having completed the requisite training, and the qualifications had therefore been cancelled. The letter demanded that she return the testamurs or provide proof of their destruction within 7 days or "we will pass this matter to the relevant authorities under fraud activities". The qualifications were: 1. BSB609015 Advanced Diploma of Management (Human Resources) issued 17 August 2018 Certificate No. 172-66311 2. BSB50215 Diploma of Business issued 1 April 2020 Certificate No. 1039-69322 3. BSB42015 Certificate IV in Leadership and Management issued 20 December 2017 Certificate No. 1155-66298 4. CHC43115 Certificate IV in Disability issued 18 April 2018 Certificate No. 494-53229 1. There was no response by Sarah Ilyas to either of the 24 August 2021 letters. 2. The Respondent alleged that Mr Malik's conduct in accusing Sarah Ilyas of using the Applicant's systems to fraudulently issue vocational qualifications to herself and sending the letter of 24 August 2021 was improper, and retaliation for her cooperation with SLED. 3. In A66 the Respondent narrowed this allegation to "at least in respect of the Certificate IV in Learning and Management". The Applicant submitted that because the Respondent did not maintain the allegation in relation to the Advanced Diploma of Management (Human Resources), the Certificate IV in Disability, or the Diploma of Business (the other 3 qualifications), the Tribunal should find should find that Sarah Ilyas was not entitled to those qualifications, or at least that "Mr Malik had reasonable grounds for believing as much", and that Sarah Ilyas had lied to the Tribunal and the Respondent about having records of her assessments for those qualifications which could be produced on request, and did so "for ill-intentioned purposes". 4. The Applicant provided extensive evidence supporting the factual basis for the contention that Sarah Ilyas had not completed the requisite training to obtain the other 3 qualifications. In my view there is no need for the Tribunal to make any findings about the allegation in respect of the other 3 qualifications which are not pressed by the Respondent. The allegation as pressed by the Respondent is that Mr Malik engaged in improper conduct towards an employee, Sarah Ilyas, by accusing her of using the Applicant's systems to fraudulently issue herself the vocational qualification of Certificate IV in Leadership and Management, and threatening her in relation to that fraud in the letter of 24 August 2021. 5. Mr Malik's affidavit evidence was that he discovered Sarah Ilyas had issued herself the four qualifications in around March or April 2021, when he was looking at the Applicant's computer system. He sent the letter to her in relation to the cancellation of those qualifications some months later. Under cross-examination Mr Malik accepted that he cancelled the four qualification certificates before making any inquiries of Sarah Ilyas. The Respondent submitted that this demonstrated a lack of due diligence by Mr Malik, which was inappropriate conduct. 6. Mr Malik's evidence was that he personally checked the Applicant's records before cancelling the certificates, and found that there was no record of Ms Sarah Ilyas completing any units for the Advanced Diploma of Management. Mr Malik gave evidence that the Applicant has never provided courses in human resources, had no resources for them, had always had to use a third-party contractor for them, and the Applicant had only ever issued a couple of the Advanced Diploma of Management qualifications, in about 2016, based on recognition of prior learning. 7. The Respondent relied on extracts from the Applicant's records (R36 and A55) which record unit completions for the Advanced Diploma of Management for Sarah Ilyas, whilst acknowledging that those records (A55) indicate she "Did not attend" certain courses. The Respondent submitted that this didn't mean Sarah Ilyas had not completed the units because Sarah Ilyas never claimed she actually attended the classes, but said she studied independently and submitted the assessments to Mr Malik. The Respondent also relied on statements accepted by Mr Malik in cross-examination to the effect that staff at the Applicant were permitted to do training for free from time-to-time, and that Sarah Ilyas completed the SLC on this basis in 2020, and that she had enrolled in the Certificate IV in Leadership and Management in 2017. 8. The Applicant submitted that Sarah Ilyas' TRUSS records for the Advanced Diploma of Management were not "genuine". Based on the Applicant's submissions, I understand the submission that they were not "genuine" to mean that they did not reflect the truth of the matter, that Sarah Ilyas had completed the assessments and relevant units of work and had therefore validly been granted the qualification. The Applicant relied on Mr Malik's evidence about the Applicant's lack of capacity to provide the course, and inconsistencies between the TRUSS records and Sarah Ilyas' evidence which I address below. 9. When cross examined on her entitlement to the qualification Sarah Ilyas did not claim she was given the qualification for recognition of prior learning. Sarah Ilyas agreed she had "no record of [her] assessments for the Advanced Diploma of Management in Human Resources", and "[n]othing in writing at all" about the assessments or the work she claimed to have done for that diploma, "[n]ot even one email". She relied entirely on the TRUSS records to provide proof that she had undertaken any of the units for the course. 10. When asked if she remembered anything from the course, she said: "Yes, a bit, yes, I do. ... About human resources, all about staffing and salaries, the perks the employees they get, yeah, these sorts of things. … Not very deep, yes." 1. I agree with the Applicant's submission that Sarah Ilyas' evidence that she completed the units required for the Advanced Diploma of Management in Human Resources is not credible, for the reasons discussed below. R36 and A55 1. The document marked as exhibit R36 was tendered by the Respondent during the hearing. It is purported to be a screenshot of the Applicant's TRUSS system recording courses and units in which Sarah Ilyas was enrolled. The document marked as exhibit A55 was tendered by the Applicant during the hearing, which purports to show the same thing. The subject titles in the screenshots match the subject titles listed on the Diploma of Advanced Management (Human Resources) issued to Sarah Ilyas, which was tendered as A41. 2. The differing content of A55 and R36 and the circumstances in which they were provided to the Tribunal is relevant, as it bears significantly on the plausibility of Sarah Ilyas' evidence about her qualifications, and her credit generally. 3. Upon the Applicant's request, the Tribunal issued a summons to Sarah Ilyas on 11 October 2023. That summons generally sought documents or records evidencing Sarah Ilyas' participation in the training and assessments necessary to be awarded the disputed qualifications, having regard to the offer she had made in her witness statement in 2021 to produce such records upon request. In response to the summons, Sarah Ilyas produced a bundle of documents, including screenshots of the applicant's TRUSS system. Those screenshots were eventually tendered by the Respondent as R36. 4. During cross-examination of Sarah Ilyas, the Applicant's counsel called for the electronic files of the screenshots which were saved on Sarah Ilyas' personal device. These were subsequently produced, and a printout was tendered by the Applicant as A55. There were significant differences between the screenshots in R36 and A55: 1. the screenshots in A55 were larger in size than the screenshots in R36 and included parts of the screen (and the TRUSS records) that were not shown in the R36 screenshots, such as more information on the right side and bottom of the image, and notations stating "NR – Did not Attend" and "NR – Cancelled" for many course units; 2. one of the screenshots in A55 had a filename of "Screen Shot 2021-09-09 at 1.35.22 pm.png"; and 3. the screenshots in A55 did not contain the red-bolded boxes which appeared in the screenshots in R36. 1. It is apparent on the face of the documents that R36 is an edited version of A55. The nature and effect of those edits was the subject of submissions by both parties. 2. The Applicant submitted, and it was not disputed by the Respondent, that the filename of 'Screen Shot 2021-09-09 at 1.35.22 pm.png' for one of the electronic files was the date on which that screenshot was taken. I accept that submission. 3. The Applicant submitted that Sarah Ilyas had edited the screenshot and specifically cropped out the information on the right to give the impression that she had completed those subjects, when the records variously stated 'NR – Did not Attend' and 'NR – Cancelled', indicating that she had not completed the subjects. When it was pointed out to Sarah Ilyas in cross-examination that the unedited screenshots showed almost all of the units marked with the outcome "did not attend", she said: "Maybe when I took that screenshot it could be I haven't even started doing the assessments. …when I took this big screenshot, I don't remember, maybe I haven't started the course." 1. When it was later put to her that she did not take the screenshots while she worked at the Applicant because, if she had, she would have been troubled to see that some of her units were marked as "Cancelled", she responded by stating: "No because I already got the certificates and it could be a glitch in the system as well. So I didn't take it seriously." 1. In re-examination, Sarah Ilyas said that she gave the edited screenshots to her new employer in response to Mr Malik's allegation to him (which is addressed further below) to: "…explain that, about my record, that I have completed the units, I was enrolled and I have the evidence on the system that I did the course." 1. The Applicant submitted that the "Unit completion" records (in A55) for the 8 units necessary for the Advanced Diploma in Management all recorded completion on "9 Jan 2018" when it was not possible for a student to complete the course in a day, and that Sarah Ilyas had only started working for the Applicant on 4 August 2017, and was enrolled in the system as a student no earlier than 12 September 2017, so it would not have been possible for her to complete the course by 9 January 2018 when the TRUSS system recorded her having completed the subjects. 2. The Applicant submitted that if Sarah's evidence (at [486]) was to be believed, the screenshots were useless as a record of her having done the claimed assessments or courses, because she said they were taken before she had started the courses. She then contradicted her own evidence by claiming that she was not concerned the units were marked as "cancelled" because "I already got the certificates". 3. The Applicant submitted that Sarah Ilyas was "glib and cavalier in her answers" about the edited screenshots, and that she openly admitted that she would choose to withhold evidence in circumstances where she believed she had something to hide, because when she was asked whether she understood that she had a legal obligation to produce the screenshots, she said: "Like if, of course, I could have said I don't have them. …if there was something to hide, I wouldn't have provided this screenshot as evidence today." 1. The Applicant submitted that the Tribunal should find that Sarah Ilyas was just making things up in response to questions on this topic, and the only reason for her to make things up was to conceal the truth about her entitlement to the qualifications. 2. The Respondent submitted that the "Did Not Attend" marking on the A55 version of TRUSS records for Sarah Ilyas meant that she had not done the subjects in person, but had completed them remotely, and that it was open to her to form the view that the edited screenshot she had produced in response to the Applicant's summons was a "record that shows" she undertook assessments for this course. 3. I accept the Applicant's submissions on this issue. Sarah Ilyas' evidence that she completed the subjects marked "did not attend" remotely is implausible and not supported by any objective evidence. The evidence demonstrates clearly that Sarah Ilyas was willing to and did attempt to conceal the truth from the Tribunal by editing screenshots of records she was required to produce under summons, and then making up oral evidence to explain that conduct. When A55 and R36 are compared in the context of Sarah Ilyas' evidence, it is apparent that Sarah Ilyas took the screenshots on or about 9 September 2021 and that she deliberately cropped out the "Did not attend" and "Cancelled" notations. This was done deliberately by Sarah Ilyas to support her claim to both her new employer, and to support her evidence in these proceedings, that she had completed the requirements for the qualification of Diploma of Advanced Management, when she had not done so. Mr Malik's contact with Sarah's new employer 1. After sending Sarah Ilyas the two letters of 24 August 2021, on 27 August 2021 Mr Malik instructed the Applicant's staff to contact Sarah Ilyas' new employer, Paul Rowland, repeating the allegations concerning unauthorised use of his credit card and unauthorised issuance of qualifications to herself. Mr Malik also made further allegations to Paul Rowland in an email of 30 August 2021, that she had submitted fraudulent documentation to Westford University college. 2. The Respondent submitted that Mr Malik had falsely claimed in that correspondence that "this matter has been reported to the relevant authorities" and had falsely stated that this conduct "led to the termination of [Ms Ilyas'] employment". The Respondent submitted that this demonstrated "a desire to make life difficult for Ms Sarah Ilyas" which was retributive. 3. The Applicant submitted that Mr Malik held genuine concerns that Sarah Ilyas used the credit card without permission and failed to pay back those funds, and that she issued false qualifications to herself using the Applicant's system, so he was acting on those genuine concerns when he contacted her new employer. The Applicant conceded that the reference to her misconduct having "led" to her termination "appears to have been a mistake", but submitted that the correspondence was not otherwise misleading in circumstances where Mr Malik had contacted both Sarah Ilyas' lawyer and Citibank (who he considered to be the relevant authorities), and where Sarah Ilyas had provided her false qualifications to Westford University College. 4. I accept the Applicant's submissions. It is clear that Mr Malik held the belief, at the time he contacted Sarah Ilyas' new employer, that she owed him money and had issued herself false qualifications. Mr Malik had an obligation to take seriously and act on any issue regarding qualifications which had not been earned. As submitted by the Applicant: "There is an unfairness in the manner in which the respondent has put this allegation and the manner which it has evolved and continues to evolve over time. Given the position that SLED has taken with respect to Allegations 2 and 3 (in particular) in these proceedings, it is apparent that they would be very concerned by allegations that the applicant's staff had been issued certificates for qualifications which they had not earned." 1. I accept that Mr Malik was reasonably concerned to discover that a former staff member had issued herself with false qualifications, and agree that it was reasonable for him to inform others of this to whom the information would be pertinent, including her new employer. While some of the information imparted by Mr Malik was inaccurate, I do not consider this demonstrates a desire to "make Sarah Ilyas' life difficult". I address the issue of retribution below. Breakdown of the relationship 1. The Respondent submitted that the close relationship between Mr Malik and Amna Ilyas, and Mr Malik and Sarah Ilyas, provided context for why Mr Malik was willing to allow Sarah Ilyas to use his credit card, provide references for immigration purposes, and facilitate Amna Ilyas' work placement with the Applicant as a "network engineer". Conversely, it also was submitted to have provided context for why Mr Malik would have expected a sense of loyalty from Amna and Sarah Ilyas, and explain therefore why his reaction was "hostile" following their cooperation with SLED. I agree their familial relationship is important contextually. I disagree, however, that the evidence supports a finding that Mr Malik's attitude towards Amna and Sarah Ilyas was hostile because of, or as a reaction towards them, following their cooperation with SLED. 2. The evidence demonstrates that Mr Malik's relationship with each of Amna and Sarah Ilyas was positive until around May 2021. This included Mr Malik's assistance and support towards each of their visa applications, the Applicant employing them, and personal and familial interactions in connection with cultural activities and festivals. Conduct by Mr Malik towards Sarah Ilyas 1. As submitted by the Respondent, Mr Malik's "retribution" against Sarah Ilyas consisted of: "a. pursuing Ms Sarah Ilyas in 2021 for a debt of approximately $8,000 which Mr Malik lent her in 2017 and which her evidence is that she paid back shortly after it was given (see Bundle pp 1040-1041 at [9]-[12] and 1049-1050 at [57]-[58] and Sarah Ilyas Affidavit at [10]-[16]); b. accusing Ms Sarah Ilyas of using Star's systems to fraudulently issue vocational qualifications to herself (Bundle p 1050 at [58]-[60] and Sarah Ilyas Affidavit at [68]-[70]); c. contacting Ms Sarah Ilyas' new employer to state that she had been guilty of misconduct during her time at Star (Bundle p 1050-1051 at [62]-[65]; Winram Affidavit at [14]-[15]); and d. Mr Malik repeatedly calling Ms Sarah Ilyas, sending her threatening text messages and repeatedly checking her social media profiles (Bundle p 1049-1050 at [55]-[56], [61]). Further, Ms Sarah Ilyas believes Mr Malik has left threatening messages with her mother in Pakistan (Sarah Ilyas Affidavit at [71]-[72])." 1. I accept the objective evidence that Mr Malik began pursuing Sarah Ilyas for a 2017 debt in May 2021; accused her of using the Applicant's systems to fraudulently issue vocational qualifications to herself; contacting her new employer to state that she was guilty of misconduct whilst employed by the Applicant; and called her and sent her text messages. Whether or not those calls and text messages can be characterised as "threatening" is addressed below. 2. I also do not agree that the objective evidence demonstrates that Mr Malik's actions were "retributive" because of Sarah Ilyas' cooperation with SLED. There is insufficient evidentiary connection between Sarah Ilyas' cooperation with SLED and Mr Malik's actions to draw that inference, or to reach that conclusion. 3. Sarah Ilyas first provided assistance to SLED on 5 May 2020, whilst still employed by the Applicant, when she was interviewed by Ms Sheridan Zhang about some pictures of SLED's Approved Trainer Guide which had been found on a student's mobile phone. Mr Malik was aware of her providing assistance to SLED at that time. She provided a formal statement to SLED around 18 months later, on 12 October 2021. 4. Mr Malik's evidence was that he terminated Sarah Ilyas' employment on 9 February 2021 after she had an altercation with a student. Sarah Ilyas' evidence was that she stopped working for the Applicant in around February 2021 because she was "sick of trying to cover up all the problems at Star". Irrespective of which version is the truth, February 2021 was the end of the professional relationship between Sarah Ilyas, and Mr Malik and the Applicant. Nevertheless, it appears from the evidence before the Tribunal that Sarah Ilyas and Mr Malik's personal relationship was not significantly affected by the end of their professional relationship, until May 2021. 5. Mr Malik's "threatening" text messages to Sarah Ilyas occurred on 19 May 2021, and his letters to her were sent in August 2021. There is no evidence that these messages or letters were sent in connection with, or in retaliation to, Sarah's cooperation with SLED. 6. The Applicant and its staff and students had regular interactions with SLED and other regulators such as Training Services NSW over the years. It was not until 11 August 2021 that SLED issued a Notice to Show Cause to the Applicant, advising that consideration was being given to revoking its approval to provide training, assessment and instruction. There was no reference to allegations of improper conduct towards staff in that initial Notice to Show Cause or the revocation which followed, and there was no reference to either Amna or Sarah Ilyas, or staff cooperation with SLED. Nor was there any reference to either Amna or Sarah Ilyas in the Notice to Show Cause issued on 6 January 2022. 7. In the 6 January 2022 Notice to Show Cause one of the allegations was titled "Improper conduct towards students and employees" but the factual basis for that allegation focussed entirely on students, with no reference to improper conduct towards any employees. In correspondence to the Applicant dated 21 April 2022, the Respondent identified for the first time that a former (unnamed) employee of the Applicant had provided a statement making allegations of misconduct against Mr Malik and the Applicant: "SLED has obtained a statement from a former employee who has stated that she was uncomfortable with her involvement in what she considered questionable business practices. After the cessation of her employment, she claims that she was subjected to harassment and threats by Mr MALIK, such as her new employer being contacted and provided with negative information with regards to her character and qualifications. The former employee further states that she was threatened in relation to money Mr MALIK claimed was owed to him, despite her belief the money had been paid." 1. Although the employee was not named by the Respondent in that correspondence, the Applicant identified from the circumstances alleged that it was Sarah Ilyas. The Applicant responded on 6 May 2022 stating: "If Urooj (Sarah) Ilyas is the "former employee" that the SLED relies on in making this allegation, then STAR confirm that Ms Urooj Ilyas was dismissed for misconduct. The misconduct and the action taken by STAR is set out in the 2 attached letters addressed to Ms Ilyas dated August 24, 2021. No response was provided by Ms Ilyas to that correspondence. The action taken by STAR, was in light of the conduct of Ms Ilyas, appropriate. It was open to Ms Ilyas to dispute the allegations or to make a claim for wrongful dismissal in an appropriate forum. STAR is unaware of any such claim being made by Ms Ilyas in an appropriate forum. STAR otherwise deny that they have improperly dismissed any employee or that Mr Malik has harassed or threatened an employee…" 1. In the reviewable decision of 24 June 2022, the Respondent identified for the first time that the employee statement they had obtained was from Sarah Ilyas. 2. The first documented negative interaction between Mr Malik and Sarah Ilyas occurred more than a year prior, when on 19 May 2021 Mr Malik began text messaging Sarah Ilyas requesting repayment of the money he claimed was owed by her to him. All the other "retributive" actions by Mr Malik alleged by the Respondent occurred after that date, and prior to April 2022. While Mr Malik was aware that Sarah had assisted SLED in May 2020, there is no evidence that he was aware that Sarah was providing a statement for the purpose of making allegations against him or the Applicant. 3. There is no evidence that Mr Malik's knowledge or awareness of her cooperation with SLED shifted so fundamentally in around May 2021 to instigate the change in attitude towards her. Nor is there any evidence that, following Mr Malik becoming aware of Sarah Ilyas' assistance to SLED in April 2022, he engaged in any particular negative conduct towards her. 4. So what changed in May 2021 between Mr Malik and Sarah Ilyas? The evidence demonstrates that it is in May 2021 that Mr Malik first became aware that Sarah Ilyas had recently married Muhammad Hassan. This, in my view, was sufficiently significant to be the impetus of a total breakdown in the relationship between Mr Malik and Sarah Ilyas. Mr Malik had considered himself a father figure to her. Sarah worked at the Applicant for years and had daily interactions with Mr Malik. Mr Malik clearly relied on her in running the day-to-day administrative processes of the Applicant. Mr Malik had lent her a significant sum of money for her visa application and had not seriously pursued its repayment over the years, accepting the explanations she gave him. He had supported her application for a partner visa by providing the Department with a statutory declaration about Sarah's relationship with Mansoor Ali. He trusted her. 5. The Applicant submitted: "Mr Malik was upset because Sarah Ilyas had lied to him, and he exchanged the text messages with her on that basis. At that time, Mr Malik's understanding was that the Form 888 reference that he had provided in respect of Sarah Ilyas' previous relationship was still with the Department for Immigration and he was unsure about the status of her visa applications in respect of that relationship. Mr Malik has said he "was concerned about [himself], that you know, she's married with somebody else and I had given evidence"." 1. Under cross-examination, Mr Malik explained: "Okay. I was surprised to getting married with anybody is nothing I have no objection at all, she… anybody can get married anywhere. My objection was that I have four years, I have become their father, I have provided them all the whatever the requirement they asked from me, I did that and I was hurt. She was telling me different story that I…you know, she's getting married with Mansour Ali and then I later on find out this is a different person and I was hurt. I said, "Why you don't need to tell me" That's all the reason, otherwise I have no problem with to getting married someone if she'd be honest with me. She's you know, she came on that day when she bring the packet of sweets and she told me that, "I'm getting married, I have to get married because I've been told that otherwise I'll leave the country". So I have brought a lot of family friends, known her family from long time. My mum came here, have, you know, dinner with her. So that was the reason that I got so hurt, I said, "Why she didn't told me? Some other staff member is telling me she got married"." 1. Mr Malik's evidence was that he was not concerned with Sarah Ilyas getting married. What upset him was finding out from a third party that she had gotten married, rather than hearing it from her. What upset him even more was finding out she had married a man who was not the man he believed her to be in a relationship with, which was a relationship in which he had supported her. Sarah Ilyas did not tell Mr Malik that she had ended the relationship with Mansoor Ali, when she had ended that relationship. She did not tell him when she started a new relationship with Muhammad Hassan. Mr Malik's personal view of his relationship with Sarah being one of close family, being a "father figure" to her, was shattered by this information. The knowledge that Sarah Ilyas married someone other than Mansoor Ali demonstrated to Mr Malik that she had lied to him for a long period of time – at the very least between October 2020 and May 2021 – and this was a fundamental betrayal of his personal and familial support for her. 2. This shift in attitude is supported by Mr Malik's subsequent actions. He sent angry messages to Sarah Ilyas demanding repayment of the money he lent her, years prior. He threatened to contact the Department and her immigration solicitors regarding her relationship. These actions are directly linked to the reason why his attitude towards Sarah changed, both temporally and in subject. 3. On the basis of the evidence before me I accept the Applicant's submission on this issue. Mr Malik could not have known or formed the view that Sarah Ilyas was "cooperating" with SLED, by making allegations against him to SLED, in 2021. There is therefore no basis upon which the Tribunal could or would find that Mr Malik's conduct in sending Sarah Ilyas the above text messages in May 2021 or the correspondence in August 2021 was "retaliatory" for her cooperation with SLED. 4. I note that Sarah Ilyas' evidence at hearing was that she didn't tell her family members when her relationship with Mansoor Ali broke down. She explained how she was "hiding" the refusal of her partner visa application from her family for years, stating at hearing in October 2023: "I explained to my whole family this year that this happened, actually I was hiding about all the stuff before but I had to tell them and I did this year." 1. Sarah said she told her family 'this year', meaning in 2023: "…how the relationship ended, what were the reasons, why we broke up." 1. It is plausible that prior to April 2023, when the AAT published its decision in relation to her visa application, Sarah Ilyas' family didn't know the status of her visa application, the details of the basis upon which she had applied for the partner visa, or that she hadn't updated her details with the Department or the AAT. Those matters are entirely within the knowledge of a visa applicant and any representative, the Department, and the AAT. However, I find entirely implausible that her family did not know her relationship with Mansoor Ali had ended, especially in the context of her evidence that she and Muhammad Hassan were living together from October 2020, and "things got pretty serious" from December 2020 when they were hanging out with friends and family together, and she referred to him in public as her partner. At the very latest, her family would have been aware that her relationship with Mansoor Ali had broken down by October 2020. 2. Sarah Ilyas' evidence to this Tribunal that her family was unaware that her relationship with Mansoor Ali had broken down served two purposes. First, it provided some explanation or justification for her inaction in notifying the Department and the AAT that the circumstances relevant to her visa application had changed significantly, which was an issue raised in cross-examination as relevant to her credit as a witness. Second, it provided support for the Respondent's allegation that Mr Malik's conduct towards Sarah Ilyas was a reaction to her cooperation with SLED, rather than a reaction to her not telling him that she had ended her relationship with Mansoor Ali and married someone else. I do not accept Sarah Ilyas' evidence on this issue and I do not accept that Mr Malik's conduct towards her was because of her cooperation with SLED. Conduct by Mr Malik towards Amna Ilyas 1. Amna Ilyas' evidence was that she first met Mr Malik in 2017 and began working at the 7-Eleven owned by his son Wasim Malik. She began working as an administrative assistant at the Applicant in around July 2019 and resigned in March 2021. 2. Amna Ilyas's interview by SLED in February 2021 was given with Mr Malik's knowledge and on 21 March 2021, which appears to be following her resignation, they exchanged text messages about the content of the draft statement being prepared by SLED: "Mr Malik: Salam Amna, Mick from SLED rang can please send him witness statement, or forward me I will send him, take care of yourself, if need any help please feel free to call me, everyone miss you Allah Hafiz Amna: Walay Kum Salam, I didn't make any changes to it so I'll send him the same one. Thank you so much for being there. You have done a lot for us and I'll always be thankful. I miss everyone very much as well. If there's anything needed on my part, please contact me :) Mr Malik: Please change the wording where he said you ask the student to do little more then signature, no I have asked student to come do the only signature only. And send to him please Thanks." 1. That draft statement was not ultimately finalised or signed by Amna Ilyas. The tone of the relationship between Mr Malik and Amna in that text exchange, and the email sent on 1 June 2021 (at [435] above) after her employment do not support Amna's later characterisation in her Affidavit of 12 April 2023 that she had resigned from the Applicant's employment because the environment was "toxic", she was unhappy and "could not tolerate the abusive language that Javaid used". I therefore do not accept that evidence. 2. On 7 December 2021 Mr Malik emailed skilled.migration@investment.nsw.gov.au, attaching a letter with the subject line "False document submitted to gain Residency" (Exhibit JM4, pp 120-121). In that letter, Mr Malik alleged that Amna Ilyas had asked him to provide an affidavit verifying that she worked at Star as an IT engineer, when in fact she was employed as a "junior receptionist". He stated that "she never completed work placement as an IT Engineer". He stated that if she had informed the Department of Immigration that she worked as an IT engineer "she should be considered as an unfit and proper person to obtain residency". Investment NSW responded via email on 7 December 2021, providing a link to support "suspicious immigration activity" to the Department of Home Affairs. Mr Malik stated that he clicked that link on 8 December 2021 and submitted the same letter to the Department. His evidence was: "…my decision to contact NSW Business and Skilled Migration had nothing to do with Amna making statements to SLED. My only concern in contacting them and the Department of Home Affairs was to ensure that neither I nor STAR could be accused of providing false information in relation to Amna's permanent residency application." 1. Amna Ilyas provided statements to SLED on 24 February 2021, and 8 November 2021. The statement of 24 February 2021 was never signed by her, and while the statement of 8 November 2021 was signed by her, it was not provided to Mr Malik or the Applicant until it was attached to Amna Ilyas' Affidavit of 12 April 2023. Mr Malik was aware that Amna was cooperating with SLED from February 2021 because he texted with her about the statement SLED had drafted for her. It is significant that Mr Malik was not aware until April 2023 that Amna had given SLED another statement in November 2021 because it is that statement where she makes allegations of misconduct against Mr Malik for the first time. 2. There is no evidence that Mr Malik knew about Amna Ilyas' second witness statement to SLED as at 7 December 2021. The Respondent did not disclose to the Applicant that Amna Ilyas had provided that second statement of 8 November 2021, until the service of her evidence in reply in April 2023. Further, Amna Ilyas' evidence was that she did not tell anyone, including Mr Malik, that she had given a witness statement to SLED, so he could not have known or formed the view that she was "cooperating" with SLED or making allegations against him to SLED in 2021. 3. I do not accept the Respondent's submission that Mr Malik's conduct towards Amna in June 2021, in refusing to give her a statutory declaration for her visa application, was retaliatory for her cooperation with SLED. There is no indication from that email exchange (at [435] and [436] above) that SLED had anything to do with his hesitation in providing something that he believed could be considered a false statutory declaration. Nor do I accept that his conduct in December 2021 in contacting Investment NSW and the Department was retaliatory for her cooperation with SLED. There is no evidence to support a finding that he was aware, at that time, that she had made allegations of misconduct by him to SLED, as were expressed in her November 2021 statement. 4. I accept that Mr Malik's conduct in contacting the Department and Investment NSW in the manner described above would have impacted Amna Ilyas' "life and permanency residency status". However, on the evidence before the Tribunal, I find that impact is entirely of Amna's own making. Mr Malik refused to provide her with a statutory declaration for the Department stating she had been working as a network engineer for the Applicant, on the basis that it would be untruthful. He warned her of the serious consequences in doing so. She nevertheless made an application for a visa containing these claims, and then admitted to the Department in the s 57 Response that the information was "incorrect". Those actions have inevitable consequences, which are not Mr Malik's responsibility. 5. There is therefore no basis upon which the Tribunal could or would find that Mr Malik's conduct in sending the correspondence to the Department or Investment NSW was "retaliatory" for her cooperation with SLED. Harassing conduct 1. The Respondent alleged as part of the improper conduct by Mr Malik towards Sarah Ilyas that he repeatedly called her, sent her threatening text messages, repeatedly checked her social media profiles and left threatening messages with her mother in Pakistan. 2. The Respondent's submissions in relation to this aspect of the allegation included only evidence of the messages outlined (at [429]) above. For the reasons discussed above (at [430]), I do not accept that those text messages were "threatening", in the sense of them intending to cause Sarah to be intimidated or distressed. Nor do I accept that they constitute some form of harassment or improper conduct on Mr Malik's part. Sarah Ilyas owed him money which had not been repaid, and he had a reasonable basis for being concerned that she had provided false information to the Department and other people, which could negatively impact on him because of his previous support on that specific matter. The text message exchange was directly about those issues. 3. Mr Malik accepted that he had called and messaged Sarah Ilyas multiple times in May 2021. He stated that these calls and messages were in relation to her returning the company car and the money she owed him. I accept that evidence in the context of the text messages he sent in May 2021 which reflected similar concerns being expressed by him. 4. There was evidence before the Tribunal demonstrating that Mr Malik had viewed Sarah Ilyas' LinkedIn profile. As her former employer, and as the head of the training organisation by which she had claimed she had obtained qualifications, this is completely normal conduct, and I do not consider this constitutes threatening conduct by Mr Malik. 5. Mr Malik agreed under cross-examination that he had Sarah Ilyas' mother's phone number and had exchanged messages with her in the past on WhatsApp, but he denied making calls to her in Pakistan or leaving threatening messages for her, and there was no evidence from her to that effect. I do not accept that Mr Malik left threatening messages with Sarah Ilyas' mother in Pakistan as there is no objective evidence supporting this. Conclusion 1. For the reasons stated above, I do not find that Mr Malik's conduct towards the Applicant's employees, Sarah Ilyas or Amna Ilyas, was improper or inappropriate. I also do not find that Mr Malik's conduct towards Sarah Ilyas or Amna Ilyas was done in retaliation for their cooperation with SLED. 2. I therefore find that Allegation 6 is not proven on the evidence before the Tribunal. Allegation 7: the Applicant did not comply with the Interim Regime established and in force during Supreme Court proceedings 1. Allegation 7 is set out at [23] and [24] above. In the context of Supreme Court proceedings between the parties, the Interim Regime was in place from 19 November 2021 until 28 February 2023. The Interim Regime required the Applicant to: 1. engage a suitably qualified, independent VET Compliance Consultant, who was to propose a compliance plan for SLED's approval; implement the approved Compliance Plan; and conduct the SLED Pre-Enrolment Assessment for each person seeking to participate in any SLC; 2. limit the personal involvement of Mr Malik in training on the SLC, and his contact with students; 3. conduct only one SLC at a time; and 4. continue to comply with the Conditions (as in force at the relevant time) which apply to all training organisations which hold Master Security Licences and approvals pursuant to s 27A of the SI Act (the Conditions of Approval). 1. There are 22 Conditions of Approval listed for SLED's NSW Security Licence Course. Relevantly, the Conditions of Approval included the following: 1. Condition 2: This condition includes compliance with a written Code of Conduct. The Code of Conduct does not permit, among other matters: "swearing at students and unnecessary use of offensive language generally" and "derogatory comments about students or comments that could be construed as discriminatory or threatening". 2. Condition 3: This condition requires that assessment or instruction in any Security Licence Course cluster must be "in accordance with the SLED regulatory requirements". The "SLED regulatory requirements" are defined to include the "NSWPF SLC documents", which in turn are defined to include the "Assessor Guides" for each cluster within the Security Licence Course. 3. Condition 4: This condition requires compliance with the VET Quality Framework. 4. Condition 7: This condition requires ensurance that all Approved Trainers "comply with: these Conditions of Approval, the Code of Conduct in Chapter 2, requirements for Approved Trainers contained in Chapter 5, and SLC delivery requirements in Chapter 9 of this document". 5. Condition 9: This condition contains requirements for notifications, requests for approval and communications with SLED. These requirements include seeking approval from SLED for each security licence course 10 business days prior to its commencement, notification to SLED of student enrolments 3 business days prior to course commencement, and notification to SLED of course assessment outcomes within 10 business days of course completion. 6. Condition 12: This condition requires a Training and Assessment Session Plan to be submitted to SLED with each request to approve a security licence course (to be submitted 10 business days prior to its commencement in accordance with Condition 9). 7. Condition 13: This condition requires all SLED mandated assessments for the security licence course to be conducted by an Approved Trainer in a supervised, face-to-face environment and in accordance with the instructions provided in the SLC assessor guides for each SLC cluster, and the Conditions of Approval document. 1. Detailed evidence regarding the Applicant's compliance with the Conditions of Approval is given in the Burge Affidavit (R7) by Ms Diane Burge, an auditor within SLED. Relying on the Burge Affidavit, the Respondent alleged that the Applicant persistently failed to comply with multiple aspects of the Conditions of Approval during nine separate SLCs conducted between 6 December 2021 and 20 January 2023. Specifically: 1. SLC053 (site audit): non-compliance with conditions 3, 4, 7 and 13, resulting in the issue of formal caution notices to trainer Shane Smith and to the Applicant. The issuing of a formal caution indicated that SLED considered the relevant conduct amounted to a criminal offence (specifically breach of the SI Act). Also issues of administrative concern in relation to conditions 9 and 12 were noted (at [15]-[17] of the Burge Affidavit); 2. SLC054 (site and desk audit): non-compliance with conditions 3, 4, 7 and 9 resulting in the issue of formal caution notices to trainer John Stoodley and to the Applicant. Also issues of administrative concern in relation to Star's documentation and condition 9 were noted (at [18]-[24] of the Burge Affidavit); 3. SLC055 (site audit): non-compliance with condition 4. Also issues of administrative concern in relation to the Applicant's documentation were noted (at [25]-[27] of the Burge Affidavit); 4. SLC056 (site audit): non-compliance with conditions 3, 7 and 12 (at [28]-[30] of the Burge Affidavit); 5. SLC057 (site audit): non-compliance with condition 2, involving the use of offensive and discriminatory language by trainer Shane Smith (at [31]-[33] of the Burge Affidavit); 6. SLC062 (site audit): non-compliance with conditions 3 and 4 (at [35]-[37] of the Burge Affidavit); 7. SLC069 (site audit): non-compliance with condition 4 (at [42]-[44] of the Burge Affidavit); 8. SLC073 (non-compliance identified without audit): non-compliance with condition 9 (at [46]-[47] of the Burge Affidavit); and 9. SLC074 (desk audit): non-compliance with conditions 3 and 4, resulting in the issue of formal caution notices to trainers Shane Smith and John Stoodley (at [48]-[50] of the Burge Affidavit). 1. The Respondent also alleged that the Compliance Consultant engaged by the Applicant for the purposes of the Interim Regime failed to comply with the requirements agreed to by SLED, and failed to identify the non-compliances identified by SLED. 2. The Applicant submitted that issues of compliance with the Interim Regime were outside the scope of the Tribunal's review, which was not "at large" and which "cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker": Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 (Frugtniet) at [15] (Kiefel CJ, Keane and Nettle JJ), [51] (Bell, Gageler, Gordon and Edelman JJ); [2019] HCA 16. The Applicant submitted that: "The question before the internal reviewer here was whether she was satisfied that the criteria in ss 26(1A) or 26(1)(d) of the Security Industry Act 1997 were made out by reference to s 15(1)(a) of the Act (as then in force) and clause 25(1) of the Security Industry Regulation 2016, in light of particular allegations to which the applicant had then been invited to respond." 1. The Applicant further notes that the internal reviewer expressly excluded the Interim Regime from the scope of her decision: "An approval under s27A of the Act is distinct from a security licence. … holding an appropriate security licence is a prerequisite to being able to provide security training. However, approval pursuant to s27A of the Act is a distinct and additional requirement … As this internal review relates to the revocation of STAR's Master security licence and not the revocation of its approval (issued under s27A of the Act), I … have placed no weight on the matters currently the subject of the Supreme Court proceedings." 1. Whilst I agree with the principles referred to from Frugtniet, I do not agree that this Tribunal's consideration of the Applicant's compliance with the Interim Regime would change the nature of the decision or the question before the original decision-maker. The nature of the decision before the Tribunal and the question before the original decision-maker is whether it would be contrary to the public interest for the Applicant to continue to hold a Master Security Licence (s 26(1)(d) of the SI Act), and whether the Applicant is not a "fit and proper person" to hold a Master Security Licence (s 26(1A) of the SI Act). The only basis upon which it would be inappropriate for the Tribunal to consider the Applicant's compliance with the Interim Regime is where the allegation had not been made and particularised with sufficient time or opportunity for the Applicant to respond. If, for instance, the allegation was made in the course of closing submissions, it would be procedurally unfair for the Tribunal to consider it, because the Applicant would not have had an opportunity in its evidence to deal with the allegation and counter it. That was not the case here. Although the allegation was not raised in the original decision or considered in the internal review decision, as noted above at [9] and [10] the allegation was squarely raised by the Respondent and particularised on request, and was the subject of extensive written evidence, oral cross-examination at hearing, and submissions by both parties. There is therefore no procedural unfairness if the Tribunal considers this allegation. 2. Section 27A of the SI Act authorises the Respondent to impose conditions on an approval under that section. The Interim Regime included a requirement that the Applicant continue to comply with the Conditions of Approval (as in force at the relevant time) which apply to all training organisations which hold Master Security Licences and approvals pursuant to s 27A of the SI Act. 3. The Applicant submitted that s 27A(3) of the SI Act made it a criminal offence to fail to comply with a condition made under s 27A of the SI Act, and that the Respondent had "no power to amend the statute by purporting to impose a condition attended by a different mental element to that prescribed by s 27A(3)". I do not accept that submission. As submitted by the Respondent, it is the conduct engaged in by Applicant that is relevant, not whether or not there has been a contravention of the SI Act, through a non-compliance with a statutory condition, proved to the criminal standard. I am not deciding whether or not the Applicant has contravened the conditions of approval for the purpose of determining whether it is guilty of a criminal offence pursuant to s 27A(3) of the Act. I am determining whether there has been compliance with a condition of approval, for the purpose of determining whether the Applicant is capable or "fit" to hold the licence, which is subject to the same regulator as the approval. If the Applicant is unable to comply with a condition of approval, which is required under the same Act as that which its licence is granted, and regulated by the same regulator, non-compliance with conditions imposed by that regulator bears reasonably on the Applicant's fitness in relation to both approval and licence. 4. The Applicant further submitted that it was not required, as a term of the Interim Regime, to comply with the Conditions of Approval, but rather that a contravention of the Conditions of Approval could result in the termination of the Interim Regime without advance notice. That is technically correct, and despite the contraventions alleged by the Respondent, the Respondent did not terminate the Interim Regime and it remained in force until the Supreme Court delivered its judgment in favour of the Applicant on 28 February 2023. However, I find that it was implied in the terms of the Interim Regime that the Applicant was required to comply with the Conditions of Approval, as it was required to do so irrespective of whether proceedings were before the Supreme Court or otherwise. The Conditions of Approval apply to the Applicant as the holder of a Master Security Licence under the SI Act, as they do to all training organisations which hold Master Security Licences and approvals pursuant to s 27A of the SI Act. 5. The Respondent has asserted in its submissions, but not explained, how the Applicant's non-compliance with the Interim Regime demonstrates that it would not be in the public interest for the Applicant to hold a Master Security Licence, or that it is not a fit and proper person for that purpose. The Interim Regime was imposed (in the context of the Applicant's approval) to demonstrate compliance with the regulatory scheme in place, pursuant to the SI Act and Regulations. It is the same regulatory scheme, between the same regulator and licensee/approval holder, which are under consideration in these proceedings. With reference to the principles described above at [37] to [47], lack of compliance with the Interim Regime demonstrates either a disregard for the conditions put in place, or an inability to comply with the conditions put in place. Both disregard for the Interim Regime and an inability to comply with the Interim Regime impact on the Applicant's fitness and propriety, and put into question whether it is in the public interest for the Applicant to hold a licence under that regulatory scheme. Mr McNamara 1. The Applicant submitted that the non-compliances alleged by the Respondent in relation to the Interim Regime did not distinguish between the conduct of the Applicant and the conduct of others "not party" to the interim regime. By this submission, the Tribunal understands that the Applicant takes exception to the findings of non-compliance made as a result of the conduct of Mr McNamara, the compliance consultant appointed as part of the Interim Regime. 2. I accept that submission. Mr McNamara was engaged by the Applicant as a Compliance Consultant for the purpose of the Interim Regime. The Respondent did not dispute that Mr McNamara was suitably qualified and experienced to be a Compliance Consultant for that purpose. He was not employed by the Applicant and was independent to the Applicant. 3. The Respondent submitted that, on Ms Burge's evidence, Mr McNamara proposed a compliance plan which was approved by SLED. That compliance plan was that Mr McNamara would: 1. review all completed LLN assessments prior to students being recommended for entry to the course (at (ii)); 2. meet with trainers prior to commencement of a course (at (iii)); 3. receive daily reports from trainers during a course (at (iv)); and 4. provide a written report on the compliance activity to Star and SLED after the course ended (at (x)). 1. Mr McNamara's evidence was that there was no overarching agreed compliance plan, but that he would prepare a compliance plan for each course, which would be submitted to and accepted by SLED prior to the course being approved. His understanding was that SLED required the compliance report for the previous course to be submitted before the next course was approved to be commenced. He therefore provided SLED with compliance reports for SLC053, SLC054, SLC055 and SLC056 shortly after those courses occurred. At some point, SLED ceased requesting that compliance reports be provided prior to approving the next course, so from SLC057 onwards, SLED approved courses upon the submission of a compliance plan only, without a compliance report from the previous course. 2. The Respondent submitted that SLED only received written compliance reports from Mr McNamara for the first three SLCs (SLC053, SLC054 and SLC055) during the Interim Regime. There were concerns raised by SLED with Mr McNamara about his approach, during the Interim Regime, to which he was defensive and hostile. Despite Mr McNamara's reports for SLC053 and SLC054 stating that he was satisfied those courses were delivered and assessed with consistency and "in alignment with the SLED Marking Guides, and the requirements of the approved Compliance Plan were met", SLED's own audits identified non-compliances, including non-compliance with conditions 3 and 4, which were sufficiently serious that SLED decided to issue formal caution notices to trainers Shane Smith and John Stoodley, and to the Applicant. The Respondent submitted that Mr McNamara was "incapable, in his role as a consultant, of identifying what SLED considers to be serious non-compliances", took a "generally pro-forma approach in his reports indicating compliance by Star, even while SLED continued to identify non-compliances" and he ultimately accepted under cross-examination that it "may be the case" that his opinions are not "a reliable indication of whether or not STAR is meeting the police's requirements". 3. The Respondent further submitted that Mr McNamara's methodology or approach to the required reporting was insufficient. He produced reports for each course on 9 March 2023 in response to a s 39O notice issued by SLED under the SI Act, but admitted under cross-examination that the reports for courses SLC058 - SLC076, which were "virtually identical" to each other, had been created by him only after receiving the notice from SLED, and were not the contemporaneously recorded reports he was required to prepare as part of his compliance role. 4. I accept the Respondent's submissions that Mr McNamara was entirely deficient in his role as Compliance Consultant for the Applicant under the Interim Regime. His evidence demonstrated that he was consistently unable or unwilling to identify non-compliance by the Applicant, and his own audit practices were deficient. In particular, he failed to comply with the terms of his remit to prepare compliance reports for the Interim Regime at regular intervals. Instead, he created numerous compliance reports after receiving a compulsory notice from SLED for those reports and submitted them as being the contemporaneous reports required by the Interim Regime, rather than disclosing to SLED that only four such reports existed and that the rest had been generated after the request for such documents had been made. 5. As submitted by the Respondent, however, his deficiencies cannot be attributed to the Applicant. 6. The evidence demonstrates that the Applicant did "engage a suitably qualified, independent VET Compliance Consultant, who was to propose a compliance plan for SLED's approval; implement the approved Compliance Plan; and conduct the SLED Pre-Enrolment Assessment for each person seeking to participate in any SLC". The fact that the Compliance Consultant was deficient in the role he undertook does not detract from the Applicant's compliance with that aspect of the Interim Regime. Conditions 1. As outlined above at [542], the Respondent submitted that the Applicant had failed to comply with the relevant conditions of the Interim Regime during 9 separate SLCs conducted between 6 December 2021 and 20 January 2023. There were an additional 7 SLCs which were audited in which no non-compliances were identified by SLED, and an additional 9 SLCs which were not audited. The Respondent relied entirely on the audit reports and associated materials attached to Ms Burge's affidavit. 2. The Respondent chose not to make submissions on each of the separate challenges made by the Applicant to the findings in the audit reports. The Respondent submitted the audit reports, which were prepared by SLED auditors "who specialise in assessing compliance with the conditions", were reliable evidence of the Applicant's non-compliance with the conditions. The Respondent also submitted that the Applicant was ultimately responsible for any non-compliances by a trainer it engaged. 3. The Applicant submitted that the audit reports did not prove non-compliance because: 1. the auditors had discretion whether to make a finding of compliance or non-compliance; 2. the audits placed pressure on the trainers, which impacted their performance; 3. the specific findings in respect of each of the SLCs audited as non-compliant were inaccurate, or the concerns identified had been rectified; and 4. Mr McNamara provided a contrary opinion. Condition 4 1. The audit reports included findings of non-compliance with Condition 4 by Mr Smith and Mr Stoodley for SLC053, SLC054, SLC062 and SLC074. 2. Condition 4 of the Conditions of Approval requires: "The Approved Organisation must comply with the VET Quality Framework." 1. The VET Quality Framework is outlined at Chapter 4 of SLED's NSW Security Licence Course Conditions of Approval as including: "a) The Standards for Registered Training Organisations b) The Australian Qualifications Framework c) The Fit and Proper Person Requirements d) The Financial Viability Risk Assessment Requirements e) The Data Provision Requirements" 1. The Respondent submitted that: "The VET Quality Framework is defined in s 3 of the National Vocational Education and Training Regulator Act 2011 (Cth) (NVETR Act) and includes any "Standards for NVR Registered Training Organisations" made pursuant to s 185 of the NVETR Act. The present version of these standards is the Standards for Registered Training Organisations (RTOs) 2015 (Cth) (2015 RTO Standards)." 1. I accept that submission. Under cross-examination Ms Byrnes agreed that the non-compliances with Condition 4 were concerned with clause 1.8 of the 2015 RTO Standards, which provides: "Assessment 1.8. The RTO implements an assessment system that ensures that assessment (including recognition of prior learning): a) complies with the assessment requirements of the relevant training package or VET accredited course; and b) is conducted in accordance with the Principles of Assessment contained in Table 1.8‑1 and the Rules of Evidence contained in Table 1.8‑2." 1. The Principles of Assessment described in Table 1.8-1 to the 2015 RTO Standards are "Fairness, Flexibility, Validity and Reliability". The Rules of Evidence described in table 1.8-2 to the 2015 RTA Standards are "Validity, Sufficiency, Authenticity, Currency". Ms Burge explained her understanding of clause 1.8 as: "It's STAR's responsibility to ensure that the approved trainers are implementing and conducting assessments consistently and reliably and deeming competence and it's irrespective of the interpretation…" 1. Under cross-examination, Ms Burge explained her understanding that Condition 4 requirements included "reliability", and that if a student had not completed "all of the observation checklist points" in a particular assessment "the outcome of competency is not reliable". In her view, every instance of "non-compliance" by a trainer would demonstrate that the Applicant had failed to comply with the VET Quality Framework. She made no distinction between the assessment system implemented by an RTO, and the individual assessments marked by trainers. 2. I note that the National Vocational Education and Training Regulator Act 2011 (Cth) and the 2015 RTO Standards are Commonwealth instruments, compliance with which is regulated by the Australian Skills Quality Authority (ASQA). SLED has no role in regulating compliance with national VET standards. ASQA separately audited the Applicant's compliance with the national VET standards between June and August 2021 and finalised its report into that audit on 3 September 2021. 3. I place no weight on Ms Burge's evidence or the auditors' findings with respect to Condition 4 of the Applicant's Conditions of Approval on the basis that the question of whether or not the Applicant has complied with the national VET Quality Framework is not an issue for determination in these proceedings. The issue with respect to this allegation is whether or not the Applicant complied with the conditions of the Interim Regime. Auditors' discretion 1. Under cross-examination, Ms Burge was asked whether the SLED auditors had any discretion when observing delivery of SLCs to withhold from making findings of non-compliance, even when non-compliance was observed. She agreed there was such discretion, in limited circumstances where new assessments or new courses had been implemented: "…They've only just been given the assessments, you know, there'll be – they've got to – there's a lot of assessments, there's four clusters, 29 assessments. You know, to be handed that and deliver them, you know, and the interpretations and stuff. So we educate them, help them. There was noncompliances but then we give them the feedback and then we'll come out again a second time, just to check that, you know, they've, you know, changed their approach on it and understanding and yeah. So we'll come out two or three times to help them. …Well I wouldn't say no offence is being committed but it's unreasonable for us to, you know, be recording – it still gets recorded. We still wrote down, it was reported on a report, an audit report, the findings, and then we just, the advice given, but there's no further action on it. … KING: And if that is far, it would be, as I understand it – and correct me if I'm wrong – the position of SLED would be that a criminal offence is committed in those circumstances but no action would be taken? BURGE: Yeah, we were very clear on it. And then, when we did start actually auditing, we told them before we went out that any future audits then will be audited in accordance, like official – made official." 1. Ms Burge was careful to limit this discretion in her evidence to the specific circumstances where the Respondent had introduced new assessments or courses, and was essentially allowing those being audited some "leeway" to be educated on their non-compliances or errors by the regulator, before negative actions would be taken by the regulator. 2. In her affidavit, Ms Burge referred additionally to "administrative issues of concern" in relation to many of the individual audits conducted, which were not specifically identified to the Applicant as non-compliances at the time. I accept that these administrative issues or recording discrepancies occurred, but do not give them any weight in the context of determining whether the Applicant was compliant with the Interim Regime. They were not classified by the auditors or SLED as non-compliances at the time and not notified, and it would be unfair and unreasonable to place any weight on them in the circumstances. Pressure placed on trainers 1. Mr Smith and Mr Stoodley, as the Applicant's trainers, both gave evidence of the effect the pressure of auditing had on them as trainers. Mr Smith stated: "I am aware that I sometimes make mistakes, because nobody is perfect, but the amount of auditing has felt over the top and I feel that it has made my mental health go downhill." 1. Mr Stoodley also gave evidence that repeated "non-compliances" were attributable to the pressure he was under from "consistent auditing". 2. I accept their evidence. Mr McNamara's opinion 1. Mr McNamara's affidavit of 22 November 2022 gave his opinion that the Applicant: "…is delivering the Security Licence Course competently and in accordance with SLED's guidelines… …the quality of training providing by [the Applicant] is satisfactory. I have observed no impropriety and the assessments are conducted with integrity. 1. In his affidavit dated 1 June 2023, Mr McNamara further stated: "I do not have any concerns that students are being deemed competent or certified in courses where they have not achieved the outcomes required or where the trainer has not found them to be competent." 1. Mr McNamara also gave evidence that, in his view, SLED's auditors were: "…over-zealous over things of not great import…it seemed like one rule for [the applicant], because they were under the microscope, and no pressure on other RTOs to bring their facilities up to standard." 1. Under cross-examination Mr McNamara deflected and minimised the Applicant's conduct when asked about their non-compliances, and was unwilling to give an opinion as to whether certain conduct was serious or not, stating "It's a concern. I won't say it's a serious concern". He clearly expressed to the Tribunal that he operated as a Compliance Consultant for the Applicant, not SLED. His responses demonstrated a lack of impartiality and a negative attitude towards SLED as the Applicant's regulator, and its efforts at monitoring and enforcement: "If they're that bad, why don't they just close them down. The auditors were overzealous. They were nitpicking." 1. The Respondent submitted: "…the Tribunal can place no reliance on Mr McNamara's opinions as a supposedly independent expert in vocational education, especially his opinions as to Star's compliance with its Conditions of Approval, save where his opinions are supported by independent, contemporaneous documentary evidence." 1. Given the findings I have made in relation to Mr McNamara's evidence above at [557], I agree, and place no reliance on Mr McNamara's opinion as to the Applicant's compliance with its Conditions of Approval. Audited non-compliances Criminal element 1. The Applicant submitted that because s 27A(3) of the SI Act made a failure to comply with the Conditions of Approval a criminal offence: "Having regard to the wide variety of conditions that might be imposed by the Commissioner on an approval, and the variety of circumstances in which the offence might be committed intentionally or inadvertently, and from time to time or continually, the offence provision cannot reasonably be construed as creating an absolute liability offence. It follows that the mental element for the criminal offence of failing to comply with a condition contrary to s 27A(3) requires, at least, the absence of an honest and reasonable but mistaken belief in a set of facts which if true would mean there was compliance[: Proudman v Dayman (1941) 67 CLR 536]. … Non-compliance with a condition is thus not demonstrated in any particular instance unless honest and reasonable mistake of fact is excluded. A corollary is that an audit feedback report cannot evidence non-compliance with a condition where that mental element has not been considered." 1. The Applicant's submissions criticised the auditors' approach to finding "non-compliances" with the Conditions of Approval in circumstances where the mental element for the criminal offence at s 27A(3) of the SI Act was not considered. The Applicant submitted that Ms Burge's evidence demonstrated that this was occurring: "Ms Burge's evidence made it plain that the Commissioner does not take any rigorous or robust approach to her consideration of such offences, and her enforcement approach erroneously treats a failure to comply with a condition as an offence of absolute liability with no mental element. Although Ms Burge initially said she treated the offence as one that requires the exclusion of honest and reasonable mistakes of fact, she then said "[w]e wouldn't find compliance" where an honest and reasonable mistake appeared to have occurred, demonstrating an enforcement approach consistent only with absolute liability, which to her knowledge is the practice of SLED generally in administering the Act." 1. Based on Ms Burge's evidence under cross-examination on this issue, my review of the audit reports and audit feedback reports and the caution letters issued to the Applicant and the Applicant's trainers (as annexed to Ms Burge's affidavit), I accept this submission. 2. The Respondent submitted: "…it is the conduct engaged in by Star that is relevant, not whether or not there has been a contravention of the SI Act proved to the criminal standard. The status of a requirement as an offence provision does not have the effect that the provision imposing the condition has no other work to do. Outside of the criminal context, non-compliance with a Condition is simply non-compliance; no question of honest and reasonable mistake of fact arises. That is consistent with Ms Burge's evidence about the Commissioner's approach. It is also consistent with the Tribunal's observation that the Tribunal can find non-compliance without criminality." 1. I agree with the Respondent's submission in relation to the findings I need to make in these proceedings, but this does not engage with the Applicant's submission that SLED's auditors appear to be approaching the issue of whether there has been compliance or non-compliance with a Condition of Approval, and issue criminal cautions under the Fines Act, without considering (or appropriately considering) the mental element of the criminal offence. Despite their submission that "it is the conduct engaged in by Star that is relevant, not whether or not there has been a contravention of the SI Act proved to the criminal standard", the Respondent chose to rely on the auditors' opinions, as contained in the audit reports and audit feedback reports, rather than engaging directly in their submissions with the evidence before the Tribunal of the "conduct engaged in by Star", and what actually occurred during the audited courses. SLC053 1. SLC053 ran from 6 to 24 December 2021. Audits were conducted on site by Ms Sheridan Zhang, Ms Diane Brown and Ms Wendy Au on 14 and 17 December 2021. 2. Ms Zhang prepared an audit feedback report on 5 January 2022 which was provided to Mr Malik on 10 January 2022. In that report, Ms Zhang found that, on her observation, the trainer did not comply with Conditions of Approval 3, 4, and 13. This was based on her observation of Assessment Task 12, conducted by Mr Smith. The Audit Feedback Report noted that on 14 December 2021: "Corrective action was taken and implemented at audit, after discussion with SLED auditors regarding – Authority to search persons." 1. I accept that the Applicant had rectified those non-compliances identified by Ms Zhang, during the audit process. Ms Au's evidence under cross-examination was that she had audited SLC053 as "nil noncompliance", according to her official notebook containing notes of that audit. She agreed that she had expected there to be an audit feedback report of her findings, but these were not included in the report prepared by Ms Zhang for SLC053. 2. On 10 January 2022 Ms Zhang, on behalf of the Respondent, issued Mr Smith with an official caution for failing to comply with the Conditions 3, 4, and 13 of the Conditions of Approval in SLC053, as outlined in the audit feedback report: "I officially caution you under s 19A(1) of the Fines Act 1996 for this offence under section 27A(3) of the Act. A record of this official caution will be kept by the NSW Police Force. While I do not propose to take any further action in relation to the offences at this stage, section 19B of the Fines Act 1996 provides that giving an official caution does not affect the power to take further action in the future. You must ensure that you comply with the Act and the Regulation including the condition on your Class 2D licence (refer to Chapter 13 of the Security Licensing & Enforcement Directorate NSW Security Licence Course Conditions of Approval). Failure to comply with your licence conditions is an offence under section 30 of the Act (maximum penalty 100 penalty units or imprisonment for 6 months, or both)." 1. On 10 January 2022 Ms Zhang, on behalf of the Respondent, issued Mr Malik with an official caution for failing to comply with Condition 7 of the Conditions of Approval, based on Mr Smith's non-compliance. SLC054 1. SLC054 ran from 10 January to 28 January 2022 at the Applicant's Granville campus and was audited by Jason Thomas, Sheridan Zhang and Diane Brown on site on 18 January 2022 and 27 January 2022. A desk audit was also conducted. 2. The audits identified non-compliances by trainer, Mr Stoodley, in his delivery of SLC054. Specifically, his failure to play the role of "unauthorised person" and his changes to the set-up of the simulation were contrary to those prescribed in the assessment instructions, constituting a non-compliance with Conditions 3 and 4. Mr Stoodley's evidence was that at the time of this audit he discussed the non-compliances with SLED auditors on-site, took their feedback onboard and "implemented that feedback as part of the ongoing improvement process". The desk audit identified incorrect marking of the observation checklist by Mr Stoodley and a failure by the Applicant to advise of student transfers from SLC054 to SLC055. 3. On 9 February 2022 Mr Stoodley was issued with an official caution for failing to comply with Conditions 3 and 4 of the Conditions of Approval in SLC054. On 10 February Mr Malik was issued with an official caution for failing to comply with Condition 7 of the Conditions of Approval, based on Mr Stoodley's non-compliance. SLC055 1. SLC055 ran from 31 January 2022 to 18 February 2022 and was audited on 17 and 18 February 2022 by Sheridan Zhang, Diane Brown, Jason Thomas and Wendy Au. 2. The audit identified a non-compliance with Condition 4 of the Conditions of Approval, on the basis of an "inconsistent and unrealistic setup of simulated workplace environment due to simulation being conducted within the confines of a single room". According to the audit feedback report prepared by Sheridan Zhang, similar concerns had been raised in other courses conducted by the Applicant. Mr Smith advised the auditors at the time that the assessment was conducted inside the assessment room, due to the flow of people from another classroom. The auditors required a "rectification strategy" to be provided to SLED by 7 March 2022. SLC056 1. SLC056 ran from 21 February 2022 to 11 March 2022 and was audited on site by Diane Brown and Wendy Au on 28 February 2022. The audit identified non-compliance with Condition 3 of the Conditions of Approval on the basis that "Mr Stoodley did not ensure the simulation was conducted in a realistic manner and in accordance with the assessment instructions", primarily due to a failure to provide signage for the simulation. 2. The auditors identified non-compliance with Condition 7 on the basis of Mr Stoodley's failures regarding Condition 3, and Condition 12 because the training and assessment was not delivered in accordance with the submitted session plan. 3. Mr Stoodley gave evidence that he received feedback from SLED auditors regarding the lack of signage in the simulation and since receiving that feedback, he ensured that such signs were displayed. He also gave evidence that while he does his best to stick with the session plan, the courses can sometimes run differently depending on the students. SLC057 1. SLC057 ran from 14 March 2022 to 1 April 2022 and was audited by Jason Thomas and Tony Vulic on 22 and 23 March 2022. The audit identified non-compliance with Condition 2 of the Conditions of Approval on the basis of Mr Smith's failure to comply with the Code of Conduct. 2. The auditors observed Mr Smith making a comment to the effect of "who looks disabled?" when allocating simulation roles, and then swearing at students and unnecessarily using offensive language. 3. Mr Smith accepted that he had engaged in the conduct observed by the auditors and acknowledged it was inappropriate, and was an emotional reaction. He explained the context: "I was pushed over the edge by a student, right. We were in a highly stressful time. We were being highly audited at the time and he was making me look like I couldn't do my job right. …When you have an emotional reaction, you blurt out what comes into your head." 1. Mr Smith's evidence was that his stress levels from auditing at the time were "ruining [his] marriage". SLC062 1. SLC062 ran from 13 June 2022 to 1 July 2022 and was audited by Tony Vulic and Diane Burge on site on 16 June 2022. The audit found non-compliance with Conditions 3 and 4 of the Conditions of Approval on the basis that Mr Smith failed to adequately assess students. Specifically, that during the simulation assessment he initially passed a student who did not keep people away from the "suspicious item", and another student who whispered rather than speaking clearly. 2. Mr Smith's evidence was that he thought his assessments were appropriate because the students maintained situational awareness and performed the roleplay appropriately. 3. The Respondent submitted that, based on Mr Smith's evidence, it appeared the Applicant did not accept that the finding of non-compliance was justified. The Applicant's submissions make clear that Mr Smith did not consider the finding justified, but are otherwise silent on that issue. 4. On 28 June 2022 Mr Smith was issued with an official caution for failing to comply with Conditions 3 and 4 of the Conditions of Approval in SLC062. SLC069 1. SLC069 ran from 26 September 2022 to 7 October 2022 and was audited on site by Sheridan Zhang and Sharon Kafoa on 21 September 2022. The audit found non-compliance with Condition 4 of the Conditions of Approval on the basis that Mr Stoodley had marked 3 students as "satisfactory" when they hadn't completed an escort specified in the simulation. The audit report noted "Corrective action take at time of audit". 2. Mr Stoodley's affidavit evidence was: "Sheridan Zhang (the SLED auditor) and I had a difference in our understanding about how the escort in this role should be completed. I thought that the escort could be completed by the students in parts, because the students swap roles in the role plays. However, Sheridan thought that each student should complete a full escort in one go. After discussing the role play with Sheridan, I arranged for three of the students to complete the entire escort and to be re-assessed on that. In my opinion, the way that some of the role plays and assessment tasks are described in the course material leaves some room for flexibility and interpretation and I thought I was running the role play within the framework. When I run role plays like this, I also draw on the real life experiences that I gained from working 20 years in the security industry." 1. Ms Zhang, it appears, was initially unsure herself whether there was any non-compliance arising from this observation, and contacted Ms Burge to confirm this while undertaking the audit. 2. In a similar vein to the submissions made with respect to SLC062, the Respondent submitted that Mr Stoodley's evidence demonstrated the Applicant "does not accept that there was non-compliance". The Applicant's submissions make clear that Mr Stoodley had a different opinion to the auditor regarding how the assessment should be conducted with reference to the course material, and Ms Burge "indicated that the simulation did not need be conducted in a particular, prescriptive manner and appeared to acknowledge that there is some level of discretion in how a student can demonstrate competency to the trainer", but were silent on the issue of whether the finding of non-compliance was justified. SLC073 1. SLC073 ran from 5 December 2022 to 16 December 2022. Although not audited, SLED recorded a non-compliance of Condition 9 of the Conditions of Approval because the course approval request was submitted later than 10 days before the commencement of the course, on 23 November 2022. The course was nevertheless approved by SLED. SLC074 1. SLC074 ran from 9 January 2023 to 20 January 2023 and was the subject of a desk audit which recorded non-compliance with Conditions 3 and 4 of the Conditions of Approval, on the basis that Mr Smith marked some students' answers to an assessment as "satisfactory" when they did not align with the assessor marking guide, and Mr Stoodley did not record an outcome for one student's response despite marking them as competent overall. 2. Mr Smith and Mr Stoodley conceded mistakes in their marking but did not accept all the findings of non-compliance, specifically where the content of the answers matched the assessor marking guide, but used different wording. Mr Stoodley stated: "ln relation to the above, my understanding is that the SLED Approved Assessor Marking Guide ls a guide and that there is some flexibility for answers to use different words or have a slightly different focus and still be correct. If a student wrote down an answer that was word-for-word what was in the Marking Guide, then there would be a concern that that student was not completing their assessment honestly." 1. Ms Byrnes was cross examined on the particular answers found to be non-compliant by the auditors. She conceded that some of the questions were open to misinterpretation by the students and stated that "feedback that some questions need to be rephrased to be clearer… is implemented as part of a continuous improvement project", and that some answers were open to interpretation. 2. On 9 March 2023 cautions were issued to both Mr Smith and Mr Stoodley for failing to comply with Conditions 3 and 4 of the Conditions of Approval in SLC074. Other requirements 1. There was no submission that the Applicant failed to comply with the Interim Regime requirement that it "limit the personal involvement of Mr Malik in training on the SLC, and his contact with students", and "conduct only one SLC at a time". With respect to these requirements of the Interim Regime, I therefore find that there was no non-compliance. Conclusion 1. I have found that on the basis of the evidence before the Tribunal, the Applicant complied with the Interim Regime requirement to "engage a suitably qualified, independent VET Compliance Consultant, who was to propose a compliance plan for SLED's approval; implement the approved Compliance Plan; and conduct the SLED Pre-Enrolment Assessment for each person seeking to participate in any SLC". That person was Mr McNamara. 2. There were no submissions and no evidence of non-compliance with the Interim Regime requirements for the Applicant to "limit the personal involvement of Mr Malik in training on the SLC, and his contact with students" and "conduct only one SLC at a time". 3. For the reasons discussed above at [557] and [583] I place no weight on Mr McNamara's opinions about the Applicant's compliance with the Conditions of Approval. I accept that both Mr Smith and Mr Stoodley felt pressure from the regular and intensive auditing conducted by the Respondent during the Interim Regime but consider this irrelevant to whether or not the Applicant was compliant with the Interim Regime, and so I give that evidence no weight. 4. The evidence demonstrates that during the Interim Regime, the Applicant delivered 25 Security Licence Courses. Of those 25 courses, SLED audited and found "non-compliances" in 8 courses, found a "non-compliance" in 1 course it did not audit, audited and found no "non-compliances" in 7 courses, and did not audit a further 9 courses. 5. Ms Burge's evidence of the discretion afforded to the auditors, that it was limited to circumstances where a new course was introduced, was not supported by the objective evidence of the audit reports and audit feedback reports. It was also clear from Ms Burge's evidence under cross-examination that the auditors' consideration of the Conditions of Approval essentially treated non-compliance as an offence of strict liability. 6. The evidence given by Ms Au under cross-examination, and the documentary evidence of the audit reports and audit feedback reports, supports a finding that the auditors conducting the audits had discretion in determining whether the manner in which the Applicant's trainers conducted aspects of the particular SLC they observed amounted to a "non-compliance", and also had discretion in determining whether to provide trainers with feedback during the audit, education and training, issue them after the audit with a criminal caution, and determine what penalty should be imposed in relation to that criminal caution. 7. Using SLC053 as an example, based on Ms Au's evidence in the context of the audit feedback report prepared by Ms Zhang, I accept that the audit feedback report for that SLC is not an accurate representation of the auditors' findings. I find that the SLC auditors had a broad discretion to make and record their findings, and that their opinions differed as to whether the Applicant's trainer were "compliant" or "non-compliant" in the activities they observed during the audit. 8. Considering all of the audit reports and audit feedback reports provided to the Tribunal, it appears that a very narrow view was taken by some auditors that any deviation from the detail prescribed in model assessment marking guides, or simulations described in the assessment instructions, constituted a "non-compliance" with the Conditions of Approval for that trainer, and warranted a criminal caution under s 27(3) of the SI Act, and this was supported by Ms Burge's views on compliance. Another auditor observing the same simulation assessment being conducted, or reviewing the same assessment answers, could consider there was no non-compliance at all, which occurred in the audit of SLC053 in contrasting Ms Au and Ms Zhang's observations and findings. Based on the evidence before the Tribunal I consider it likely that another auditor observing the same simulation or reviewing the same assessment answers could decide, based on their own discretion, to give feedback to the trainer during the audit, or some education and training, and while classifying it as a "non-compliance" in their written report, not issue a criminal caution. It appears that the auditor's determination of whether there was a "non-compliance" depended very much on the auditor, and whether the trainer had a history of past findings of non-compliance, which were listed in each audit report observation. 9. In circumstances where the auditors had such broad discretion, and such varying views on their observations, I do not accept the Respondent's submission that the audit reports are reliable evidence of the Applicant's non-compliance with the Conditions of Approval. Each audit report is evidence only of that report's author's opinion of whether the activities they observed, or the documents they reviewed, complied with their understanding of the Conditions of Approval. The extent of their personal understanding of each of the relevant Conditions of Approval, and how they are to be applied to both the individual trainers and the Applicant, is unknown. 10. I also note that although some "non-compliances" were found by auditors in relation to 8 of the courses delivered during the Interim Regime, that is less than one-third of the courses conducted in that period. Another one-third of the courses delivered were audited and found by SLED to have no "non-compliances". I do not accept the submission that because some "non-compliances" with the Conditions of Approval were found by some auditors in a minority of courses audited, the Applicant was thereby non-compliant with the whole of the Interim Regime. 11. In my view there is insufficient evidence before the Tribunal to make a finding that the Applicant did not comply with the Conditions of Approval during the Interim Regime. I am not satisfied that the Applicant did not comply with the Interim Regime. 12. I therefore find that Allegation 7 is not proven on the evidence before the Tribunal. Allegation 8: the Applicant failed to follow COVID-19 safety measures 1. Allegation 8 is set out at [25] and [26] above. The Respondent alleged that during the First Aid Course starting 29 July 2020, the Applicant did not observe mandatory social distancing requirements in breach of COVID-19 safety measures, and that as a result of this incident, the Applicant failed to provide a safe and comfortable environment for students in the context of COVID-19 safety measures, in breach of Condition 8 of its Conditions of Approval. 2. The Respondent submitted that clause 7 of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020, as at 29 July 2020, made under the Public Health Act 2010 (NSW), required occupiers of certain premises, including educational facilities, to have and comply with a COVID-19 Safety Plan. Without expressly submitting what, in fact, were the "mandatory social distancing requirements" and the "COVID-19 safety measures" applicable, the Respondent submitted that Mr Malik accepted that these were that "people had to be 1.5 meters apart; and there could only be one person per four square meters in an area", and that "Mr Malik accepted that students were closer than 1.5 metres". 3. The Applicant submitted that: "Under clause 8(1) of the Public Health Order, the Minister directed that a person who is the occupier of premises must not allow persons on the premises if the size of the premises is insufficient to ensure there is at least 4 square metres of space for each person on the premises. Significantly, that restriction did not apply to particular gatherings, including "a gathering at … [an] educational institution … that is necessary for the normal business of the … institution …"." 1. The Applicant submitted that the First Aid Course was clearly "a gathering" at an "educational institution" that was "necessary for the normal business" of the institution, so the 4 square metre direction was not applicable. Nevertheless, as a matter of good policy or best practice, Mr Malik took steps to assist students in social distancing in the classroom. 2. The Applicant submitted that, in addition to the social distancing requirement relied upon by the Respondent not being applicable, the police officers who attended the premises on 29 July 2020 found no breaches of the COVID-19 guidelines, there were no breaches after the police left the premises, and there was no breach of Condition 8 of the Conditions of Approval. What occurred on 29 July 2020 1. Two police officers attended the Applicant's Granville campus on 29 July 2020, following an anonymous call to Crimestoppers, which was on the computer-aided dispatch (CAD) system as: "***CORONA VIRUS RELATED*****?BREACHING COVID19 GUIDELINES, SO MANY PEOPLE IN 1 SMALL ROOM, NO SOCIAL DISTANCING AA, NFI?**** INFORMATION RX VIA CRIMESTOPPERS ON LINE 29/7/2020 09:35****?" 1. Between 29 July 2020 and 1 August 2020, those police officers made a record of the visit on the CAD system which stated: "BUSINESS SPOKENT TO AND INSPECTED NIL BREACHES IDENTIFIED" 1. Mr Malik's evidence was that at the time, his understanding was that the Applicant was required to comply with a number of restrictions and social distancing requirements due to the Covid-19 pandemic. He arranged for the walls in the classrooms to be removed to make more space and allow the students to spread out. When police attended the Applicant's campus on 29 July 2020, they observed the students participating in a CPR demonstration in the First Aid course and told him that, while the room was big enough and the students sitting at the desk were compliant, they should not be standing close together during the CPR demonstration. Accordingly, Mr Malik arranged for some students to leave the classroom while the CPR demonstration was taking place, and spoke with the trainer to request that the CPR practical demonstration be delivered in small groups. This took place with the knowledge of the attending police officers. 2. The Respondent submitted that Mr Malik instructed students that "Police is here and you guys are too close to each other, please go upstairs, about five, six of them go upstairs and do group by group", but did not explain that the police had suggested some students go temporarily upstairs, and that some of the students "understandably understood that they were being instructed by Mr Malik to hide from the police". The Respondent also submitted that once the police left, students returned to the classroom and social distancing requirements were not observed. 3. The Respondent referred to evidence from Mr A and Mr K, two students who attended the First Aid Course on 29 July 2020. Both provided affidavits in these proceedings and were cross-examined at hearing. Mr A's evidence was that though students tried to maintain some distance it was "not one-and-a-half metres from each other", that when he returned to the classroom the positions of the chairs had been changed "to follow the procedure of the COVID back then", that the seating had been spread out, and that students were given verbal instructions to spread out so that they were socially distanced. Mr K's evidence was that the classroom was arranged in a U-shape, and that the students were spaced out from one another. 4. Another three students, who I will refer to as Mr T, Mr Y and Mr N, provided information to SLED via witness statement, telephone and interview, but did not provide affidavits in these proceedings. In an interview with SLED, Mr T stated: "I think we were following the social distancing. I'm not sure. People were sitting this distance on each table. Yes. But after the police went, we were extra. They were extra careful. Even if we come closer, they told us not to." 1. The Respondent submitted that: "Another student, Mr [N], provided a statement to police (AR16, p 1601) in which he stated that after the police left he "didn't notice any changes" to the classroom, and there were "the same number of people" (AR16, p 1604, [17]). The Commissioner accepts that Mr [N] did not give oral evidence to the Tribunal and so his evidence can only be given limited weight." 1. I give no weight to the information provided to SLED by those students who did not provide affidavits in these proceedings and were not otherwise called to give evidence. 2. The evidence of Mr A and Mr K, and the police CAD records, corroborates Mr Malik's evidence of what occurred on 29 July 2020, which I therefore accept. Condition 8 1. The Respondent submitted that in addition or in the alternative to a finding that the Applicant had failed to follow COVID-19 safety measures, the Applicant: "…failed to provide a safe and comfortable environment for students in the context of Covid-19 safety measures, in breach of Condition 8 of its Conditions of Approval. This breach is outlined in SLED's Investigation Report on SLC003 at AR16 pp 620-643. Causing students to feel that they were being instructed to hide from police cannot be dismissed as trivial." 1. The Applicant submitted that as the First Aid Course was not part of the Security Licence Course, Condition 8 of the Applicant's Conditions of Approval was not relevant. The Applicant relied on the terms of the Conditions of Approval to demonstrate that the First Aid Course was separate to, and not part of, the SLC, and that the "Venue requirements" in Chapter 7 of the Conditions of Approval, stated to have been breached by the Applicant, only applied to the actual SLC course. 2. The Respondent submitted that the First Aid Course was one of the competency requirements for a Security Licence, and a pre-requisite to the four core "clusters" of the SLC. I agree that it was a pre-requisite and competency requirement for undertaking the SLC, but this does not make it part of the SLC. I agree with the Applicant that the First Aid Course was not part of the SLC and was therefore not subject to the same requirements and conditions as the SLC, including Condition 8. 3. SLED's Investigation Report on SLC003 was produced by the Respondent in response to a summons issued in May 2023. The Applicant submitted: "639. …In the context of the First Aid Course, the report asserts that the basis for non-compliance with the condition is that Mr Malik "failed to communicate to students that they were being asked to go upstairs following advice from Police onsite", and "[i]f Mr MALIK had have communicated this, students would not have regarded his actions; and their participation, as adverse". The suggestion in the report seems to be that because some students erroneously thought that Mr Malik's actions (his compliance with police advice) "as adverse", their student environment was not "comfortable", and the students would have felt "comfortable" if only someone had told them that the reason Mr Malik had asked students to go upstairs was because a police officer had asked him to ask students to go upstairs. Or, as refined during cross-examination, the suggestion seems to be that because one student erroneously thought that Mr Malik had told him to hide from police, that student was not "comfortable", and the applicant as an approved organisation had ipso facto breached condition 8. 640. It is now accepted, however, that Mr Malik did not tell any students to hide from police. It is also accepted that he did tell students that police were present when he told them to go upstairs. This appears, again, from the Commissioner's own investigation report: a. "[Mr N], [Mr A], [Mr K] and [Mr T] confirm Mr MALIK told students to go upstairs and wait because Police were onsite." b. "MALIK gave evidence that he directed students to go upstairs as a result of feedback from the two Police Officers who were carrying out a business inspection."" 1. The Respondent did not explicitly engage with the Applicant's submissions on this issue in its written or oral closing submissions, save as to concede that: "Significantly, and unlike each other allegation, the Commissioner accepts that if this were the only matter proved against Star in this proceeding it would not be of sufficient individual seriousness to warrant revocation of Star's master security licence, though that does not mean it would warrant no action." 1. The particular alleged by the Respondent, that the Applicant caused students to feel that they were being instructed to hide from police, was originally expressed in opening submissions by the Respondent as an allegation that Mr Malik had deliberately instructed students to hide from police during the police visit on 29 July 2020. The production under summons of SLED's Investigation Report on SLC003, which supported Mr Malik's version of events that this had not occurred, resulted in the Respondent's withdrawal of that particular. By closing submissions, the Respondent instead relied on its evidence from students about "being instructed to hide" to support submissions about a "comfortable environment for students", whilst acknowledging that the allegation was not sufficient to support a finding that the Applicant was not a fit and proper person. 2. While not "trivial", causing students to feel a certain way is not sufficient evidence that the Applicant is failing to provide a safe and comfortable environment for those students. 3. I agree with the Applicant's submissions that there is insufficient evidence before the Tribunal to make a finding that the Applicant failed to provide a "safe and comfortable environment for students in the context of COVID-19 safety measures". Even if there was such evidence, I agree with the Applicant's submission that compliance with Condition 8 is not relevant. Conclusion 1. I agree with the principles submitted by the Respondent, with reference to Metleg v Commissioner of Police, NSW Police Force [2023] NSWCATAD 17 at [75] (and the cases there cited) that a disregard for regulatory schemes aimed at ensuring public safety is relevant to the grant of security licences, and a disregard for public safety measures goes both to the fitness of the Applicant, and to whether it is in the public interest for Applicant to hold a security licence. However, the evidence in these proceedings in relation to Allegation 8 does not support the Tribunal finding that there has been such a disregard for public safety. 2. I find that the evidence before the Tribunal does not support a finding that the Applicant failed to follow COVID-19 safety measures, or that the Applicant failed to provide a safe and comfortable environment for students in the context of Covid-19 safety measures, or that it was in breach of Condition 8 of its Conditions of Approval. 3. I therefore find that Allegation 8 is not proven on the evidence before the Tribunal. Allegation 9: attempt to pay a witness to give false evidence 1. Allegation 9 is set out at [27] above. The Respondent alleged that Mr Malik made an "improper offer" via an intermediary, Bob Lewis, to pay money to Paul Lewis, in an attempt to get Paul Lewis to provide false evidence to the Tribunal. That false evidence was intended to be to the effect that Paul Lewis conducted the Raymond Terrace Course, which was contrary to Paul Lewis' previous evidence that he had not conducted the Raymond Terrace Course. 2. The Respondent alleged that: 1. on or around 27 September 2023, Mr Malik met with Bob Lewis and proposed that he (Mr Malik) would pay Paul Lewis an amount of money in return for Paul Lewis providing a signed document confirming that he did take the Raymond Terrace Course from approximately September 2016 until October 2017. 2. Mr Malik asked Bob Lewis to convey that offer to Paul Lewis; and 3. Bob Lewis subsequently met with Paul Lewis on 4 October 2023 and conveyed to Paul Lewis that Mr Malik would pay Paul Lewis money if Paul Lewis wrote a letter saying the Raymond Terrace Course took place. 1. Evidence in relation to Allegation 9 was provided by Paul Lewis and Mr Malik, both of whom addressed this allegation in their affidavits and were cross examined at hearing. Both Mr Malik and Paul Lewis provided copies of text messages with Bob Lewis to the Tribunal. Additionally, Paul Lewis produced a video recording of the meeting he had with Bob Lewis, taken covertly (R50), which was the subject of extensive submissions as to admissibility at the hearing. 2. The Respondent provided the Tribunal with evidence of its attempts to serve Bob Lewis with a summons to give evidence in the proceeding. Those attempts were unsuccessful, and Bob Lewis did not actually give any evidence at the hearing. Attempts to procure Bob Lewis 1. The Respondent's solicitors provided the Tribunal with affidavits of their attempts to locate Bob Lewis and serve him with a summons to attend to give evidence at the hearing. According to that evidence, the Respondent's solicitors were unable to obtain a residential or other address for service for Bob Lewis. The Respondent submitted that "all reasonable steps have been taken to find him and secure his attendance but without success" and that, on the basis of read receipts on text messages sent by the Respondent's solicitors, that "Bob Lewis is aware that the proceedings are on foot and that he is required to give evidence, but that he is either unwilling or unable to attend to give evidence". 2. The Applicant submitted that the Tribunal should find that Bob Lewis was "unwilling", rather than "unable" to give evidence, because if he was unable "he probably would have said as much in reply". This submission is based on a factual assumption which is not supported by any evidence, and is irrelevant to an issue for determination. The Applicant further submitted that, in the absence of Bob Lewis giving any evidence or appearing via summons at the hearing, "it would be unfair to give Paul Lewis's evidence relating to Bob Lewis any material weight", because: "Had Bob Lewis attended in response to the summons, and had the Tribunal refused to permit the applicant to cross-examine him, and had the Tribunal gone on to give material weight to Paul Lewis's evidence relating to Bob Lewis, there would have been a denial of procedural fairness from the practical injustice thereby occasioned to the applicant. In the events that occurred, the circumstance that it was Bob Lewis himself who refused to permit the applicant to cross-examine him rather than the Tribunal does not remedy that practical injustice. Procedural fairness "requires the avoidance of" practical injustice." 1. There may be a practical injustice to the Applicant in being unable to cross-examine Bob Lewis, but this is not an injustice which arises from any denial of procedural fairness to the Applicant. I accept the Respondent's evidence of the attempts made to locate Bob Lewis to serve him with a summons to attend to give evidence at the hearing, and the evidence that those attempts were unfruitful. I do not agree that Bob Lewis' absence from the proceedings means that it would be unfair to give weight to Paul Lewis' evidence about their conversations. The introduction of the allegation 1. In Paul Lewis' second affidavit (R29) affirmed 19 October 2023, he provided evidence in response to Mr Malik's affidavit of 4 October 2023 (A25) about invoices and payments, which I have addressed above in relation to Allegation 2, and he also alleged the substance and detail of Allegation 9. 2. The Respondent initially relied entirely on Paul Lewis' account to make Allegation 9 against the Applicant, first raising the matter in correspondence to the Applicant, during the hearing, on 20 October 2023 (R30), and particularising it in correspondence of 3 November 2023 (A66). 3. Once notified of the allegation in the correspondence of 20 October 2023, Mr Malik prepared an affidavit of 23 October 2023 (R29) addressing Paul Lewis' affidavit evidence of Allegation 9. 4. During Mr Malik's cross-examination, on 23 October 2023, the Respondent made an application for summonses to be issued to Bob Lewis and Paul Lewis. It was as a result of that application that the Tribunal was first made aware that Paul Lewis had recorded a conversation with Bob Lewis, which he had recounted in his affidavit of 19 October 2023. Although initially described by the Respondent as an "audio recording", by the following day the Tribunal was informed that this was, in fact, a video recording which was taken without Bob Lewis' knowledge or permission. 5. I directed the parties to provide written submissions on the issue of admissibility of such evidence in the context of s 7 of the Surveillance Devices Act 2007 (NSW) and conducted a voir dire on 7 December 2023, following oral evidence given by Paul Lewis about the circumstances in which the recording was made, and cross-examination on that issue. Following that evidence and extensive oral submissions, over the Applicant's objections, I admitted the video recording as evidence in the proceedings (R50), finding: "In relation to the recording of the conversation between Bob and Paul Lewis I find that the recording was reasonably necessary for the protection of Mr Paul Lewis' lawful interests and therefore did not contravene section 7(1)(b) of the Surveillance Devices Act. To the extent that there is a discretion that then follows in terms of the admissibility of that recording, I am satisfied on balance that the probative value outweighs any unfairness that would result from the Tribunal receiving that recording into evidence." 1. The Applicant ultimately submitted that Paul Lewis' evidence was inherently unreliable and it should therefore be given no weight; and the Tribunal should find that the video recording "had no probative value" because it was "contrived" by Paul Lewis, with or without Bob Lewis' knowledge. The video recording was therefore submitted to be: "…not a safe, fair, or satisfactory basis upon which to make the very serious adverse findings sought by the Commissioner." The evidence 1. I note that Mr Malik's affidavit on this issue was responsive to Paul Lewis', and made prior to both his and the Tribunal's knowledge that the conversation between Paul Lewis and Bob Lewis had been surreptitiously recorded by Paul Lewis. 2. Mr Malik's evidence was that he had contacted Bob Lewis and arranged to meet with him on 27 September 2023 in relation to recruitment of disability support workers for Alliance Rehabilitation Group Pty Ltd, a provider of the National Disability Insurance Scheme, of which Mr Malik was the director. Mr Malik had previous contracting arrangements with Bob Lewis. According to Mr Malik, during the course of that conversation, Bob Lewis asked Mr Malik about the Smart and Skilled program and they discussed Paul Lewis: "JM: I don't do Smart and Skilled anymore, not since 2019 BL: What happened? JM: Paul Lewis did one of the courses and that's the issue I have with Smart and Skilled. He did the training and got paid and now he is saying that he didn't do the training. BL: He got paid? JM: Yes. I've been informed that the money we paid him went to his son's account. BL: I'll speak with him. He does this with everybody. He did the same thing to me. He did the training in Melbourne, he got paid, then he wanted more money. JM: Don't need to discuss this with him because this matter is in the court now. BL: Did Paul provide anything? JM: Yes, he provided a statement and the statement is not even signed." 1. Paul Lewis' evidence in his affidavit affirmed 19 October 2023 (R29) was that he received a call from Bob Lewis on 29 September 2023 and arranged to meet with him on 4 October 2023. They met at Krispy Kreme Auburn on 4 October 2023 at 10.43am. There, Bob said the following to Paul Lewis: "Javaid's legal team have a statement from you that is not signed, and Javaid wants a letter to say that the training at Raymond Terrace was conducted." 1. Paul Lewis claims that Bob Lewis rubbed his fingers together, which indicated to him that: "I would receive money if I provided a letter [to] say that training at Raymond Terrace was conducted." 1. The conversation between Paul Lewis and Bob Lewis continued and was the subject of the video recording admitted as Exhibit R50. It is clear that the video is taken mid-conversation, and therefore does not record the entirety of the conversation between Bob Lewis and Paul Lewis. What is recorded is as follows: "BL: So, I'll send you through that. So that's basically what I'm doing, export/import, a lot of overseas connections. PL: You haven't spoken to Javaid in years. So he just rang you out of the blue? BL: Yeah he said oh can we meet alright, and I said yes, and I said, Javaid, what's it about? And you know the fuckin bullshit. What's it about? I'm a straight shooter, and uh, uh. Paul Lewis. I said I haven't heard from Paul in a while, but I have heard from him, we're mates. Alright, let's meet. So we met, yeah. But he's desperate. Fucking desperate. PL: ah well. So what he wants a letter and basically, he wants a letter and pay me some cash? BL: [nods] PL: fucking clown BL: yeah. But if you. If you're committed to a stat dec or something PL: yeah BL: right? He said his solicitors got. How you come into it, he said his solicitors have got a, SLED must have sent it to him, the solicitor, a statement from you. PL: Oh ok BL: But it's not signed. PL: Oh ok. Righto BL: You didn't sign it. PL: Oh ok BL: So whether its their statement from memory, I don't know, maybe over the phone, but anyway that's, yeah" 1. Later that afternoon, at 1.10pm on 4 October 2023 Paul Lewis and Bob Lewis had the following exchange via text message: "PL: Thanks for the coffee and the catch up mate It's been a few years mate I'll think about the Javaid offer too…. What do you reckon BL: It's up to you, I'll send you the certificate list now. PL: Ok What do u think $$ wise PL: Thanks Bob $40k is good plus a quid on to for you" 1. According to Paul Lewis' affidavit, Bob Lewis called him during that text exchange and they had the following conversation: "BL: Doesn't he owe you for three courses? PL: He hasn't paid me for two courses. I didn't do the course at Raymond Terrace. BL: Just add another one. How much is each course? PL: Ten grand a course BL: Add ten on top. Okay ask for $40,000" 1. Then via Whatsapp, Bob Lewis messaged Mr Malik at 2.17pm on 4 October 2023: "BL: Hi mate. Met with him today. BL: When are you back in Sydney? JM: Will be back 11 October 8 am in office JM: Any update BL: Yes he has made an offer. 30k for previous work and 10k extra, in total 40k. JM: He has been paid for work he done, don't worry what work he done, he done 3 courses he has been paid, All good Thank you BL: [thumbs up emoji]" 1. Bob Lewis and Paul Lewis then had an exchange via Whatsapp between 4.53pm and 5.11pm on 4 October 2023: "PL: Thanks Bob What did you say Javaid sent on what's app? BL: [Forwarded messages: "Any update" "Yes he has made an offer. 30k for previous work and 10k extra, in total 40k." "He has been paid for work he done, don't worry what work he done, he done 3 courses he has been paid, All good Thank you"] PL: Thank u" 1. On 9 October 2023 their conversation continued between 12.52pm and 1.34pm: "PL: Gday Bob Any word from Javaid ? He owes me money from the ACT course plus the Nowra course I didn't invoice him from Raymond terrace as he knows that it didn't go ahead. Check with him on what he needs I think you said a letter that the training went ahead, what else BL: Mate he is back in Sydney this Friday, he will call me in the middle for a meeting in the afternoon, I will see what he thinks and call you. PL: Ok mate" 1. Mr Malik's evidence was that on his arrival back in Sydney he spoke with Bob Lewis on 11 October 2023, "intending to progress the ARG opportunity", but this was delayed because these proceedings had commenced. Then on 20 October 2023 Mr Malik received an email from his solicitors forwarding Paul Lewis' affidavit of 19 October 2023. Mr Malik telephoned Bob Lewis and told him that he was going to give his number to his solicitors because Bob Lewis had been named in Paul Lewis' affidavit. He denied the Respondent's allegation, stating: "I never asked or intended Bob Lewis to talk to Paul Lewis about the course in Raymond Terrace or these proceedings. I never made any offer to pay Paul Lewis any more money. Paul Lewis has been paid everything he was owed. Every time Paul Lewis has demanded more money from me in connection with the course in Raymond Terrace, I have always rejected his demands." Findings on the evidence 1. The Applicant submitted that Paul Lewis contrived his communications with Bob Lewis, to give the false appearance that Mr Malik used Bob Lewis to make a monetary offer to Paul Lewis, in return for Paul Lewis changing his evidence about the Raymond Terrace Course. The Applicant also submitted that the video recording was contrived by Paul Lewis, either with or without Bob Lewis' knowledge, for the same purpose. 2. The timing of the evidence as it was introduced to the Tribunal is significant. On 4 October 2023 (A25) Mr Malik responds to Paul Lewis' April 2023 affidavit (R12), with proof of the payments Mr Malik says he made to Paul Lewis for the Raymond Terrace Course, contrary to Paul's evidence that he did not conduct the course and was not paid. As discussed above in relation to Allegation 2, I have found that Paul Lewis' evidence on that issue was not believable, and Mr Malik's was supported by the documentary evidence which was available. 3. I infer on the basis that Mr Malik's 4 October 2023 affidavit was unlikely to have been taken, drafted, edited, finalised and affirmed by Mr Malik on that date that it was likely in the process of being drafted or finalised at the time that Mr Malik met with Bob Lewis a few days prior, on 27 September 2023. It is also probable, based on it being undisputed between the parties that an unsigned version of R12 was first served on the Applicant, that Mr Malik had not seen a signed version of Paul Lewis' affidavit at that time, or did not recall seeing it. This gives some explanation for Mr Malik's account of his conversation with Bob Lewis on 27 September 2023, where he refers to Paul Lewis' statement being unsigned. This consequently explains Bob Lewis' comments in the video recording about Paul Lewis' unsigned "stat dec". 4. On the basis of the issues I have identified above with reliability and plausibility in relation to both Paul Lewis' and Mr Malik's evidence across these proceedings, I give their accounts of verbal conversations, which are unsupported by corroborative witness evidence or objective documentary evidence, minimal weight. Due to Bob Lewis' absence as a witness, there is no corroborative witness evidence for either Paul Lewis' or Mr Malik's evidence of conversations on this issue. I therefore give the accounts of those conversations minimal weight. 5. Considering the documentary record of text and messages outlined at [675], [677], [678] and [679], I give those messages reasonable weight. They do not provide the whole picture of what was occurring between Mr Malik, Bob Lewis and Paul Lewis, but they do provide objective evidence of those matters therein discussed. The messages support a finding that Paul Lewis had discussed an offer with Bob Lewis, which Bob Lewis had said was from Mr Malik. Paul Lewis says "I'll think about the Javaid offer too…. What do you reckon", and if there was no offer which had been presented by Bob Lewis as being from Mr Malik, it would be reasonable to expect that Bob Lewis' reply would have been to the effect of "what offer?" instead of an implicit acknowledgement of the offer and deferral back to Paul Lewis by stating "It's up to you". The fact that Bob Lewis then says "I'll send you the certificate list now" indicates that the offer was associated to a "certificate list". Although there was no specific submission on what the "certificate list" was referring to, I infer from the context and the Respondent's submissions that this relates to the list of students who were granted certificates for the Raymond Terrace Course. The text exchange then goes on to confirm that a monetary amount is associated with the offer being referred to, with Paul Lewis stating that amount as "40k… plus a quid on top for you". 6. Mr Malik's messages with Bob Lewis then confirm that Bob Lewis is acting as an intermediary between Mr Malik and Paul Lewis. In response to a request for "Any update", Bob Lewis says, "Yes he has made an offer. 30k for previous work and 10k extra, in total 40k." The message exchange indicates that Mr Malik rejects that offer because "he has been paid for work he done". 7. The evidence of the text and WhatsApp messages demonstrates that Bob Lewis was acting as an intermediary between Mr Malik and Paul Lewis, and there was some discussion about an "offer". There is no direct evidence of Mr Malik making any monetary offer to Paul Lewis via Bob Lewis, only of Paul Lewis proposing an amount to Bob Lewis, which Bob Lewis proposed to Mr Malik, which Mr Malik dismissed. 8. The Applicant submitted that Paul Lewis contrived his communications with Bob Lewis and the conversation which was video recorded by him, either with or without Bob Lewis' knowledge. Although both parties made submissions as to whether Bob Lewis was aware of the video recording taking place, I am not sufficiently satisfied on the evidence to find either way. It is, however, clear to me that Paul Lewis raises the topic of Mr Malik with Bob Lewis as a non-sequitur, and then deliberately expresses the allegation verbally so that it is recorded by stating "So what he wants a letter and basically, he wants a letter and pay me some cash?". Bob Lewis' response to that is non-verbal. To that extent, I accept the Applicant's submission that Paul Lewis contrived that part of the conversation with Bob Lewis for the purpose of the video recording. In circumstances where the conversation has been contrived (at least partially) by Paul Lewis and the recording is only an excerpt of a longer conversation, I give the video recording limited weight. In any event, the video recording does little to expand the evidence beyond that provided to the Tribunal from the records of text and WhatsApp messages. 9. I am satisfied that on or around 27 September 2023, Mr Malik met with Bob Lewis and during the course of that conversation they discussed Paul Lewis, the Raymond Terrace Course, and Mr Malik's payment for that course. I am also satisfied that Bob Lewis met Paul Lewis on 4 October 2023 and they discussed Bob's meeting with Mr Malik, with Bob stating that in relation to Paul Lewis, Mr Malik was "desperate", and that Paul Lewis said "So what he wants a letter and basically, he wants a letter and pay me some cash?". 10. The Respondent's allegation that Mr Malik attempted, during these proceedings, to pay a witness to give false evidence to the Tribunal in relation to these proceedings, is extremely serious. Although the criminal standard of proof clearly does not apply to these proceedings, the seriousness of this allegation and its implications for the Applicant would necessarily require the application of a standard of proof well beyond the ordinary civil standard, as is discussed above (at [56] to [59]). The Tribunal's reasonable satisfaction of the facts alleged cannot be produced by "inexact proofs, indefinite testimony, or indirect inferences". In my view, the evidence relied upon by the Respondent to support this allegation is equivalent to the "inexact proofs, indefinite testimony, or indirect references" referred to in Briginshaw at 362 (Dixon J). There is no "clear or cogent or strict proof" "such as to induce, on a balance of probabilities, an actual persuasion of the mind" as to the relevant facts alleged, as expressed in Neat Holdings at 171 and Rejfek at 519. 11. The available evidence does not satisfy me that Mr Malik did, in fact, propose to Bob Lewis that he would pay Paul Lewis an amount of money in return for Paul Lewis providing a signed document confirming that he did take the Raymond Terrace Course from approximately September 2016 until October 2017, or in return for changing his or otherwise giving false evidence to the Tribunal in relation to the Raymond Terrace Course. I am also not satisfied on the available evidence that Mr Malik asked Bob Lewis to convey that offer to Paul Lewis. 12. I am therefore not satisfied that Allegation 9 is proven on the evidence before the Tribunal. Summation 1. I have found Allegation 1 proven. The Applicant did provide false and misleading records to SafeWork NSW on or around 16 February 2021, when it notified SafeWork NSW that Robert Balmer was the trainer for the Traffic Control Course conducted at Star on 9 February 2021. Both Mr Malik and Robert Balmer gave false evidence in relation to this allegation. I am satisfied that Mr Malik had knowledge of the false and misleading records and intentionally submitted them to SafeWork NSW despite that knowledge. 2. I have found Allegation 2 partially proven. The Applicant did provide false and misleading records to Training Services NSW, specifically: 1. the Training Activity Data submitted by the Applicant in relation to the 10 students identified at paragraph 4.1.9 of Mr Buddeke's report was false and misleading, in that the data represented that those students were completing, and then had completed, the course when they had not; 2. the Assessments, transcripts and Certificates submitted by the Applicant for the 10 students were false and misleading, in that they represented: 1. that those students had completed the assessments when they had not; and 2. that those students had completed the course when they had not. 1. I am not satisfied that both the Applicant and Mr Malik had knowledge that those Raymond Terrace Course records were false and misleading and nevertheless arranged for those records to be provided to Training Services NSW. Irrespective of their knowledge, however, both Applicant and Mr Malik are responsible for the lack of supervision and oversight of the Raymond Terrace Course. 2. I have found Allegation 3 proven. The Applicant awarded a security qualification to Mr S, a student who was not competent. 3. I have found Allegation 4 proven. The records submitted to SLED during audits of the Applicant between 8 and 16 June 2021 were altered or marked by Mr Yates so as to misrepresent to SLED what and how the students' records had been completed by him. Mr Malik implicitly instructed Mr Yates to do this in relation to the 8 June 2021 records, and had knowledge that this was done. Remedial sessions were improperly conducted by Mr Rudd, on instruction by Mr Malik, to facilitate students changing their records. Mr Malik had knowledge of those remedial sessions, of the nature of the changes made to assessment documents, and of the resulting misleading nature of the documents when submitted to SLED. 4. I have found Allegation 5 partially proven. Mr Malik engaged in inappropriate conduct towards a student, Ms S. 5. I have found Allegation 6 not proven. I do not find that Mr Malik's conduct towards the Applicant's employees, Sarah Ilyas or Amna Ilyas, was improper or inappropriate. I also do not find that Mr Malik's conduct towards Sarah Ilyas or Amna Ilyas was done in retaliation for their cooperation with SLED. 6. I have found Allegation 7 not proven. I am not satisfied that the Applicant did not comply with the Interim Regime. 7. I have found Allegation 8 not proven. I am not satisfied that the Applicant failed to follow COVID-19 safety measures, or that the Applicant failed to provide a safe and comfortable environment for students in the context of Covid-19 safety measures, or that it was in breach of Condition 8 of its Conditions of Approval. 8. I have found Allegation 9 not proven. I am not satisfied that Mr Malik attempted to pay a witness to give false evidence in these proceedings. Conclusion 1. In considering whether or not the Applicant and Mr Malik are "fit and proper persons", or whether it would be contrary to the public interest for the Applicant to continue to hold a Master Security Licence, with reference to the principles expressed at [35] to [47] above, I have regard only to Allegations 1, 3, and 4, and Allegations 2 and 5 to the extent that they have been proven. 2. The conduct found in relation to Allegation 3, being one occasion whereby a student's competency was assessed incorrectly, is relevant to the Applicant's ability, and therefore its fitness and propriety. The Applicant submitted that Allegation 3 was not capable of justifying the revocation of a master licence: "the allegation concerned a single, isolated instance involving one student. In this respect, the respondent does not allege that the applicant has engaged in a repeated pattern or seriously deficient course of conduct such that would justify the revocation of the licence." 1. The Respondent submitted: "326. … that determining the competence of students by reference to the pre-requisites and requirements of the [Security Licence Course] is a central function of [the Applicant] under its Master Licence. This submission again shows a failure to understand the importance of the regulatory requirements, and Star's adherence to them, in ensuring security guards have the ability to communicate in the course of their employment, and the consequent risk to public safety if they cannot. 327. The circumstances in which Mr S was granted a security licence represent a manifest failure, at the first hurdle, to adequately do that. Contrary to ACS [276], not only was Mr S wrongly permitted to enrol in the SLC, but he was also permitted to undertake and complete that course, was repeatedly marked as competent, and was consequently issued a security licence, all in circumstances where he lacked, and continues to lack, the most basic English language skills necessary for any stage of that process. This is not an allegation that Star failed to meet a "standard of perfection" (contra ACS [276]). Allegation 3 demonstrates both Star and Mr Malik's lack of fitness and propriety, and that lack of public interest in Star holding a Master Licence." 1. I agree that on the evidence before the Tribunal, this was an isolated incident in the context of the hundreds or thousands of students whose competencies were assessed correctly by the Applicant. My finding in relation to Allegation 3 is not sufficient to determine that, in isolation, the Applicant is not a fit and proper person. 2. Similarly, in the circumstances of all the evidence I have considered in these proceedings, Mr Malik's conduct in relation to Allegation 5, being improper conduct towards one student, would not be sufficient for me to determine, in isolation, that Mr Malik was not a fit and proper person to be the Applicant's nominated person. 3. However, Mr Malik's conduct and the Applicant's conduct with respect to each of Allegations 1, 2 and 4 as I have found above, demonstrate a significant lack of honesty, relevant to my assessment of the Applicant's fitness and propriety to hold a Master Security Licence. The conduct I have found that Mr Malik and the Applicant engaged in with respect to Allegations 1, 2, and 4 involve providing SafeWork NSW, Training Services NSW, and SLED, with misleading records in relation to the courses provided by the Applicant. The misleading records included the deliberate falsification of records by the Applicant's trainers, both with and without Mr Malik's knowledge. Where there was no specific knowledge attributable to Mr Malik, this was because of a serious lack of oversight by him. 4. These issues go to the very heart of the Applicant's obligations towards SLED and other regulators, and those obligations are fundamental requirements of the licence in issue. The conduct is not attributable to simple error or a one-off event – it is systemic and occurred over a number of years. 5. The conduct I have found Mr Malik and the Applicant engaged in with respect to Allegations 1, 2 and 4 demonstrate that neither Mr Malik nor the Applicant are fit and proper persons to hold a Master Security Licence under s 15(1)(f)(i) of the SI Act. As I am not satisfied that the Applicant or Mr Malik are fit or proper persons, pursuant to s 26(1A) of the SI Act, the Applicant's licence must be revoked. 6. The Respondent submitted that in addition or in the alternative, it would not be in the public interest for the Applicant to continue holding the Master Security Licence, pursuant to cl 25(1) of the Regulations and s 26(1)(d) of the SI Act. As discussed above, this is a discretionary matter. 7. The Applicant submitted that the Tribunal should impose "a proportionate regulatory response to the particular findings made by the Tribunal", taking into account the Respondent's graduated enforcement policy, involving: "…some combination of the following: warning and monitoring, official cautions, the imposition of appropriately tailored conditions, penalty infringement notices, or another reasonable and proportionate response appropriate to the circumstances of the case." 1. If there was no mandatory revocation for fitness and propriety, and the Tribunal's decision was therefore discretionary, there are a range of considerations to take into account which would include the Respondent's graduated enforcement policy. Additionally, if SLED considered that the contraventions of its regulatory scheme by the Applicant or Mr Malik were explicable, or accidental, or non-deliberate, or able to be rectified by some further education or training, this would be relevant to the exercise of the Tribunal's discretion in favour of the Applicant. However, the Respondent's submissions strongly express the opposite. The Respondent additionally submitted that the Applicant and Mr Malik's lack of insight into their conduct and an ongoing antagonistic attitude towards SLED meant that the Tribunal could have no confidence that the Applicant would comply with regulatory requirements going forward, or that SLED would be able to effectively monitor and detect breaches going forward. 2. Taking into account those submissions, in my view the falsification of records submitted to the Applicant's regulators, for the purpose of misleading those regulators, is determinative of whether and how the Tribunal should exercise its discretion. It is entirely contrary to the public interest for the Applicant to be able to alter records or submit misleading records for the purpose of complying with its obligations under the security industry regulatory scheme, or any other regulatory scheme. It entirely undermines public trust and confidence in the regulatory scheme being enforced, and in the regulator itself. It is not in the public interest for the Applicant to continue to hold a Master Security Licence in those circumstances. 3. The correct and preferable decision is therefore to affirm the Respondent's decision to revoke the Applicant's Master Security Licence. 4. I appreciate the significance that the decision revoking the Applicant's Master Security Licence will have on the Applicant, Mr Malik, and the Applicant's employees and students. On 24 August 2022 the parties consented to the terms of a stay of the Respondent's decision, pending the outcome of these proceedings. It is appropriate for the Tribunal to make an order lifting the stay on the date 28 days after the publication of this decision, in order to give the Applicant and Mr Malik sufficient opportunity to consider the decision and its consequences. 5. Both parties sought the opportunity to be heard on costs and other consequences following the Tribunal's decision. Having made the decision to affirm the Respondent's decision, the Tribunal has no further role to play and there is no further opportunity for the parties to be heard, unless and until either of the parties makes an appropriate application. Annexure to Reasons for Decision (581367, rtf) Orders 1. The Respondent's decision to revoke the Applicant's Master Security Licence is affirmed. 2. The 24 August 2022 stay of the Respondent's decision is lifted 28 days after the date of this decision. ********** Endnote 1. Typographical error in A66 of '2021' which should have stated '2023'. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 January 2025