CITATION: Dhingra v Commissioner of Police, New South Wales Police [2006] NSWADT 7 DIVISION: General Division APPLICANT PARTIES: Sanjeev Kumar Dhingra RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 053213 HEARING DATES: 19/09/05 SUBMISSIONS CLOSED: 10/10/2005 DATE OF DECISION: 01/09/2006 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence MATTER FOR DECISION: Principal matter Migration Act 1958 LEGISLATION CITED : Security Industry Act 1997 Security Industry Regulation 1998 Joyce -v- Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 17 CASES CITED: Joyce -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 17 Winika -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 8 APPLICANT In person REPRESENTATION: RESPONDENT T Venditti, agent ORDERS: The decision to refuse Mr Dhingra's application for a security industry licence is affirmed. REASONS FOR DECISION 1 Mr Dhingra has worked within the security industry for several years. He has previously held a security licence under the Security Industry Act 1997 ("the Act") however that licence expired in December 2004. Mr Dhingra made an application for a new Class 1AC licence however the application was refused because Mr Dhingra has a recorded conviction that the Commissioner's delegate considered relevant to the application. 2 On 31 March 1999, Mr Dhingra was convicted of an offence under section 83G of the then Migration Act 1958 (Cth). The charge against Mr Dhingra outlined in the summons filed on behalf of the Director of Public Prosecutions was as follows: "...between 13 January 1993 and 1 February 1993, at Sydney in the state of New South Wales and elsewhere, did apply for a stay permit on the basis of satisfying a criterion for the permit because of being married to another person, namely Angeline Singh, whereas at the time of the application you did not intend to live permanently with the other person in a genuine and continuing marital relationship... " 3 Mr Dhingra was fined $3000 and sentenced to 15 months imprisonment, to date from 31 March 1999, with a non-parole period of 12 months. Mr Dhingra's appeal on severity was successful and his period of incarceration was reduced to the period of custody that Mr Dhingra had actually served i.e. a term of imprisonment of three months 29 days. 4 The Commissioner's delegate determined that Mr Dhingra's conviction was for an offence which precludes him, on mandatory grounds, from the grant of a security licence. Applicable legislation 5 Section 16(1)(a) of the Act provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law. 6 Clause 11(d) of the Security Industry Regulation 1998 ("the Regulations") indicates that for the purposes of section 16(1)(a) of the Act, the following offence is a prescribed: "(d) An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more." 7 Section 83G of the then Migration Act 1958 has been replaced with section 243. At the time of Mr Dhingra's offence, section 83G provided: "83G(1) A person must not apply for a stay permit on the basis of satisfying a criterion for the permit because of being married to, or being, for the purposes of the regulations, the de facto spouse of, another person if, at the time of the application, the applicant does not intend to live permanently with the other person in a genuine and continuing marital relationship. …" The Commissioner's Case 8 Mr Venditti relies on detailed submissions in which he set out the Commissioner's position. In essence, the Commissioner contends that the offence for which Mr Dhingra was convicted is an offence involving dishonesty. The maximum penalty for the offence was imprisonment for two years and in fact Mr Dhingra was sentenced to a period of imprisonment for more than 3 months. Mr Venditti submits that this offence falls within the scope of clause 11(d) of the Regulations and the Commissioner must therefore refuse to grant Mr Dhingra's licence application. Mr Dhingra's Case 9 Mr Dhingra contends that none of the terms specified in clause 11(d) of the Regulations, namely "fraud, dishonesty or stealing" appear in section 83G of the then Migration Act 1958 and that his conviction is not one that is captured by that provision. 10 He states that he is a person of good repute and provided an employment history, which, he says, includes a number of highly respected companies that would not have employed him if he were dishonest. With respect to the circumstances that gave rise to his conviction Mr Dhingra asserts that he had genuine intentions when he married but that he was a victim of Government policy, which resulted in long-term separation from his wife, and this resulted in the break down of their marriage. 11 Mr Dhingra points to his successful appeal against the sentence originally imposed. He also states that after he was released from prison he was detained by officers of the Department of Immigration & Multicultural & Indigenous Affairs ("DIMIA"). Mr Dhingra successfully challenged his detention by DIMIA and DIMIA was ordered to pay Mr Dhingra's legal costs and also pay him an amount of $20,000 in damages for his false imprisonment. 12 Mr Dhingra states that the consequences of the refusal of his application are severe. He is unable to obtain employment and is suffering hardship. While he concedes that his conviction stands, he argues that the law has been incorrectly interpreted and that he should be granted the licence that he seeks. Findings 13 I agree with Mr Venditti's argument that for an offence to fall within the parameters of clause 11(d) of the Regulations it is not necessary that the terms 'fraud' or 'dishonesty' be an element of the offence for which Mr Dhingra has been convicted. This approach was adopted by the Tribunal's Appeal Panel in Joyce -v- Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 17 at paragraph 11 of the decision. 14 In Winika -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 8 the Tribunal's Deputy President Hennessy stated at paragraph 12: "The words "fraud, dishonesty or stealing" must be interpreted according to their ordinary meaning and the purpose of the Act. " Dishonest" is defined in the Macquarie Dictionary, 3rd edition, as "not honest; disposed to lie, cheat or steal." "Fraud" is defined as "deceit, trickery, sharp practice, or breach of confidence by which it is sought to gain some unfair or dishonest advantage". 15 Deputy President Hennessy also made reference to the Concise Oxford Dictionary in Joyce -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 17 where she stated at paragraph [18]. "Dishonesty" is defined in the Concise Oxford Dictionary (7th edition, Oxford at the Clarendon Press 1982) as "lack of honesty; deceitfulness, fraud." A person would be acting dishonestly or deceitfully where that person fails to disclose to police that goods have come into his or her custody in circumstances where that person has reasonable grounds for suspecting that the goods have been stolen or otherwise unlawfully obtained. The ordinary meaning of dishonesty does not require that the person engage in some positive act. It can include a situation where a person fails to act." 16 The elements of an offence under section 83G(1) of the Migration Act 1958 are: i) A person applied for a stay permit, ii) The application was on the basis of being married to or involved in a defacto relationship with another person, iii) At the time of the application the applicant did not intend to live permanently with the other person in a genuine and continuing marital relationship. 17 I agree with Mr Venditti's argument that the third element of the offence involves an element of "fraud or dishonesty" according to their ordinary meaning. Mr Dhingra applied for permission to enter Australia on a permanent basis relying on his marriage to Ms Singh. As such he held out that he intended to live permanently with her in a genuine and continuing marital relationship. It is apparent from Mr Dhingra's conviction that the Court found that at the time of his application he did not intend to live permanently with Ms Singh in a genuine and continuing marital relationship. This Tribunal cannot go behind that finding. It is also apparent that Mr Dhingra attempted to obtained a benefit, namely, a stay permit, through that dishonesty. 18 I agree with the view expressed by the Deputy President in Winika where she stated at paragraph 13: "...Regardless of exactly how the benefit was obtained, a person who obtains a benefit to which he knows he or she is not entitled is dishonest..." 19 It follows, in my view, that the offence for which Mr Dhingra has been convicted falls within the prescribed offence pursuant to clause 11(d) of the Regulations. It is an offence involving dishonesty. Mr Dhingra was convicted of the offence in 1999 and therefore it is within the period of 10 years before the application for the licence was made. Consequently, pursuant to section 16 (1)(a) of Act, the licence application must be refused. Orders The decision to refuse Mr Dhingra's application for a security industry licence is affirmed. 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.