Dhungana v NSW Police [2008] NSWADT 218

CITATION: Dhungana v NSW Police [2008] NSWADT 218

DIVISION: General Division

APPLICANT Bharat Prasad Dhungana PARTIES: RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 083149

HEARING DATES: 11 and 16 July 2008

SUBMISSIONS CLOSED: 16 July 2008

DATE OF DECISION: 8 August 2008

BEFORE: Handley R - Deputy President

CATCHWORDS: Security industry licence - revocation/refusal of licence

Security Industry Act 1997 LEGISLATION CITED : Security Industry Regulation 2007 Administrative Decisions Tribunal Act 1997

Joyce v Commissioner of Police, NSW Police [2000] NSWADT 17 Joyce v Commissioner of Police, NSW Police [2000] NSWADTAP 17 CASES CITED: Testoni v Commissioner of Police, NSW Police [2003] NSWADT 29 Dhingra v Commissioner of Police, NSW Police [2006] NSWADT 7 Winika v Commissioner of Police, NSW Police [2001] NSWADT 8 Bourke v NSW Commissioner of Police [1998] NSWADT 1

In person REPRESENTATION: S Sheather

ORDERS: The decisions under review are affirmed

REASONS FOR DECISION 1 This is an application by Bharat Dhungana for the review of decisions of the Commissioner of Police made under the Security Industry Act 1997 ('the SI Act') to refuse to issue Mr Dhungana with a Master Licence and to revoke Mr Dhungana's Class 1ABCEG 2B licence on the ground that he has been convicted of an offence involving fraud or dishonesty. Background 2 Mr Dhungana is aged 46. He was born in Nepal, migrated to Australia and became an Australian citizen on 27 June 1984. He has been a 'NAATI' (National Accreditation Authority for Translators and Interpreters Ltd) recognised interpreter and translator in the English and Nepalese languages since 28 August 1998 and 18 July 2000 respectively. 3 On 5 April 2006, Mr Dhungana was issued with a Class 1ABC licence under the SI Act. This was converted to a Class 1ABCEG 2B licence on 13 December 2007, with an expiry date of 1 June 2011. On 29 January 2008, Mr Dhungana applied for an 'Individual Master Licence' under the SI Act. In the application, he stated that on 8 June 2006 he had been found guilty of the offence of "Providing immigration assistance by assisting in filling forms". 4 On 8 June 2006, Mr Dhungana was convicted of four offences at the Downing Centre Local Court: (1) "Receive fee for immigration assistance when not registered" pursuant to s 281(1) of the Migration Act 1958 (Cth) (2) & (3) Two counts of "Possession of a visa not granted to the person" pursuant to s 236(2) of the Migration Act 1958 (Cth) (4) "Possession of passport issued to someone else" pursuant to s 9A(1)(d) of the Passports Act 1938 (Cth) 5 Mr Dhungana was convicted of the offences without passing sentence, pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), on his entering into a $500 three year good behaviour bond and on his making reparation of $3,200 in respect of the first offence. 6 On 25 February 2008, Mr Dhungana's application for a Master Licence was refused and, on 3 March 2008, a delegate of the Commissioner revoked Mr Dhungana's Class 1ABCEG 2B security licence, both decisions being made on the ground that Mr Dhungana has been found guilty of an offence involving fraud or dishonesty. 7 On 20 March 2008, Mr Dhungana sought an internal review of these decisions. On 16 April 2008, after an internal review, the decisions were affirmed. On 7 May 2008, Mr Dhungana applied to the Tribunal for a review of this decision. 8 At the hearing on 11 July 2008, Mr Sheather, for the Commissioner, sought an adjournment to enable the production of further evidence from the Office of the Commonwealth Director of Public Prosecutions. On being satisfied by Mr Sheather that he had previously taken reasonable steps to obtain this evidence, I agreed to an adjournment until 16 July 2008, when the hearing was concluded. The Relevant Legislation 9 Section 16(1) of the SI Act provides relevantly: (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) 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 in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or (b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or ... 10 Section 26(1A) states that 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 the Act to be refused. 11 Clause 18(1)(d) of the Security Industry Regulation 2007('the SI Regulation') states relevantly: (1) Prescribed offences: section 16(1) (a) and (b) For the purposes of section 16(1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: (a) ... (b) ... (c) ... (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. ...