Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Khallouq v Commissioner for NSW Fair Trading [2014] NSWCATOD 137 Hearing dates: 10 November 2014 Decision date: 20 November 2014 Jurisdiction: Occupational Division Before: J Kelly, Senior Member Decision: I set aside the decision of the delegate dated 3 July 2014 affirming the administrator's decision made on 23 May 2014 to refuse to grant the applicant a motor vehicle tradesperson's certificate in the class of automotive electrician and substitute in its place the decision to grant the applicant a tradesperson's certificate in the class of automotive electrician. Catchwords: Motor Vehicle Repairer - tradesperson's certificate - fit person - refusal Legislation Cited: Motor Vehicles Repairs Act 1980 Cases Cited: Ourdi v R [2009] NSWCCA 46 Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA Category: Principal judgment Parties: Rachid Khallouq (Applicant) Commissioner for NSW Fair Trading (Respondent) Representation: Vidler & Associates (Applicant) W Maynard (Respondent) File Number(s): 1420262 reasons for decisioN The decision under review 1The applicant, Rachid Khallouq, seeks the review of the delegate's decision made on 3 July 2014 affirming the administrator's decision made on 23 May 2014 to refuse his application for a tradesperson's certificate in the class of automotive electrician under the Motor Vehicle Repairs Act 1980 (the Act). The issue in the case 2The issue in this case is whether I am satisfied that the applicant is a fit person to hold a tradesperson's certificate, as required by s 24(3)(a) of the Act. Background 3The applicant did not disclose in his 23 August 2013 application five convictions entered on 7 December 2007 at Sydney District Court. He was sentenced to 7 years imprisonment on each charge commencing on 15 August 2007 and concluding on 14 August 2014 with a non-parole period of 3 years commencing on 15 August 2007 and concluding on 14 August 2010. All the charges arose on one night. The applicant appealed on severity. The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on 3 March 2009. 4The applicant was charged with those offences as Rachid Ourdi. He told the Tribunal that he changed his name in 2002. The Tribunal accepts that is so and that the police charged him in his previous name because he had a criminal record in that name for offences committed from 1997 to 1999. 5The application form included a question that required the above information about his 2007 convictions to be provided. The applicant signed a declaration on the form that the information contained in the application form was true and correct. It was not. 6On 23 May 2014 the administrator refused the application because the applicant had failed to disclose the convictions and had declared that the information in the application was true and correct and was therefore not a fit person to be the holder of a tradesperson's certificate. 7On 18 June 2014 the applicant's solicitor wrote to the respondent requesting an internal review of the decision to refuse the application. She made the following points. The applicant was charged in 2005 with the offences and was committed to trial in April 2006. He was in the community on bail for three years before the matters went to trial and there were no breaches of bail during that period. He was not charged with any offences before the offences listed in the Notice of Refusal, which all occurred on the one day. He was released from custody in August 2011. He has never breached a condition of his parole and has never been charged with any further offences. It has been nine years since he committed the offences. There have been no other problems. "... the interests of the public would not be jeopardised by the applicant gaining his automotive licence". 8The applicant's solicitor stated that the applicant has paid his debt to society and has a wife and two children to support. He arrived alone in Australia with a "torture/trauma" history and post traumatic stress diagnosis. He was not literate in his own language or English, had no family and no support system. 9The applicant's solicitor also stated that the applicant instructed that he answered "no" rather than "yes" to the question regarding offences because of his fear of being rejected when he had hoped that the difficult part of his life was behind him. 'He understands that part of being a "fit" person means that all questions are answered to the best of his ability and knowledge. He is very remorseful about what has happened.' 10The delegate wrote in his Statement of Reasons dated 3 July 2014, that the applicant had multiple convictions from October 1997 to September 1999 for offences that the delegate considered involved dishonesty. "These convictions were not raised in the notice of refusal dated 23 May 2014 as they were more than 10 years old". This finding was in response to the assertion made by the applicant's solicitor that the applicant had not been charged with any offences before 2005. The hearing 11At the hearing, I was assisted by the solicitors for both the applicant and the respondent. The applicant's solicitor provided written and oral submissions, a statutory declaration from the applicant sworn on 7 November 2014, a report dated 26 November 2012 from the Probation and Parole Service regarding the applicant, a reference from the daughter of the applicant's solicitor dated 4 November 2014, a psychologist's report dated 27 November 2007 and another copy of the letter dated 16 June 2014 from the applicant's solicitor, which is included in the s 58 documents. 12The respondent's solicitor made oral submissions. The applicant's failure to disclose criminal convictions 13That the applicant did not disclose his 2007 convictions in his application is a very serious matter. They were serious offences with serious consequences for the applicant and his family. 14His reason for not disclosing the convictions is central to my determination. In his statutory declaration sworn on 7 November 2014, the applicant said that he did not know why he answered the question about criminal convictions by ticking the "no" rather than the "yes" box, "other than having the idea that because of my conviction I would be rejected anyway. I cannot explain my feeling other than one of deep shame for the conviction itself and for the behaviour which led me to break the law". 15At the end of the statutory declaration, the applicant stated: "Answering incorrectly on the form was a return to a time in my life when I never expected anything good to happen to me and I always expected the worst in any situation. I have truly learnt that in answering questions in a form it is important to be honest whatever the consequences." 16That evidence is very troubling. It indicates that the applicant deliberately answered the question by ticking "no". 17At the hearing, I asked the applicant some questions, as did both solicitors. The applicant said that has had one year of schooling, which was in Australia. He started working as an auto electrician in 2000. He had tried to obtain his qualification at TAFE before he went to prison but his English was not good enough. He was awarded his Certificate III in Automotive Electrical Technology in 3 July 2013 after 18 months' study. He did not think filling out the application form was important. It was just to get a licence. He did not read that part on the form that said that the respondent would conduct criminal record checks about him and he just ticked the "no" boxes on the form. He did not read the warning about a penalty for making false or misleading statements. He did not read the question asking about his criminal convictions. 18The applicant has been working for the one employer for about two and a half years since he got out of prison in 2011 until a month or so ago when he received a letter from the respondent that stated he cannot work. He has to read manuals about machines for his work. The manuals include diagrams, but there is much written English that he has to understand. 19The respondent's solicitor put to the applicant that he had stated in his statutory declaration that he did not know why he had answered the question about criminal convictions by ticking no, other than having the idea that if he had answered the other way it would have been rejected anyway, and that he did understand the question and was worried what would happen if he ticked the "yes". The applicant said he just ticked "no" to all of them. 20The respondent's solicitor submitted that the applicant's claim to have not read the question and just ticked "no" was inconsistent with what he had said in his statutory declaration and what the applicant's solicitor had stated in her letter of 16 June 2014, referred to above. I agree. 21He also pointed out that the applicant's evidence at the hearing was more helpful to his case than what the applicant and his solicitor had previously claimed was his position. I agree. 22The question is whether the applicant deliberately changed his evidence to increase his chance of success at the hearing, or whether what he said was true. 23I tried unsuccessfully to draw to the applicant's attention to the inconsistency between his evidence that he did not read the document and just ticked "no" and the claim that he did not know why he had answered it as he did except that he was ashamed and if he had answered the other way, the application would have been rejected anyway, which showed that he deliberately concealed the convictions. 24I am not satisfied that the applicant deliberately ticked "no" to the question about convictions to conceal them. I have come to that conclusion for the following reasons. 25I was concerned whether the applicant's instructions referred to in the letter of 16 June 2014 and the language in the statutory declaration accurately reflected his views. Both documents were prepared by the applicant's solicitor. She took the applicant into her home about three months after he arrived as a stowaway in Australia in 1996 aged 14 or 15. She is like a mother to him, even answering for him when I asked him a question at the hearing. I accept that she disclosed her relationship to the applicant at the directions hearing. I am not suggesting any inappropriate conduct on her part. She is very articulate and has an excellent command of English. The applicant is not very articulate in English and does not have an excellent command of the language. The applicant's solicitor said that his English is trade focussed. When asking the applicant questions at the hearing, she asked leading questions, until I asked her not to do so. She has an intimate knowledge of the applicant's circumstances before coming to Australia from the Western Sahara via the Netherlands, and since he has been in Australia. She is very supportive and protective of him. 26The applicant said at the hearing that he did not think filling out the application form was important. One reason for his response may be that he knowingly said that to support his claim that he had not read it before answering the questions to lessen his culpability. Another maybe that he assumed that the application was a formality and he would be issued the tradesperson's certificate, having obtained his Certificate III after considerable effort. That assumption is consistent with not bothering to read the form. 27If the applicant had read the application form, he would have known that the respondent would conduct a criminal record check which would have revealed his 2007 convictions. If he knew that, it would have been very foolish and risky to answer the question as he did. 28Taking those matters into account, I find that his evidence at the hearing was true. The applicant did not bother to read the application form in detail. He did not think it was important. He just ticked all the boxes "no". I find that he assumed that applying for the certificate was a formality because he had acquired his Certificate III. 29In making that finding, I have taken into account his statutory declaration and the letter stating his instructions which indicated that he had deliberately answered "no". However, for the reasons indicated above, the Tribunal does not accept that those documents accurately reflect what happened when he filled out the application form. 30Not reading forms when filling them out is unwise. However, it does not disclose dishonesty. In my opinion, it is not conduct that supports a finding that the applicant is not a fit person to hold a tradesperson' certificate. The 2007 convictions 31The next matter to consider is the applicant's 2007 convictions. The Court of Criminal Appeal decision, Ourdi v R [2009] NSWCCA 46, was included in the s 58 documents. The offences involved stealing from five home units within a 22-storey residential tower block. The applicant gained access to the home units by climbing up the outside of the building. 32One aspect of the appeal was the applicant's gambling addiction. He lost money gambling on poker machines and committed crimes to obtain money. The legal principle is that addiction does not operate to mitigate the offence. The Court held that the applicant did not fall into an exception to that principle [paragraph 45]. 33The Court commented that the applicant's crimes were not impulsive, but involved careful observation and planning, and were executed skilfully, with a clear head "as he scaled a 22-storey tower block" [paragraph 45]. 34In my opinion, the applicant's convictions are relevant to my determination whether he is a fit person to hold a tradesperson's certificate. I did not understand the applicant's solicitor to argue otherwise. 35The solicitor for the respondent argued that the lapse of time alone is not sufficient to show that there has been reformation of character. He referred to the decision of McColl JA in Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325, and the cases referred to at paragraphs 35 to 41. 36The Tribunal accepts the proposition the applicant's solicitor put. It accepts that clear proof is necessary that there has been reformation of character. 37In this case, I find that the evidence demonstrates that there has been reformation of character in this case. The applicant has undertaken courses in English and to stop gambling. He has stopped gambling. He has completed his Certificate III, which involved commitment and discipline, including travelling some distance to attend TAFE. He has been working and supporting his wife and two children. His wife has the same cultural and linguistic background as the applicant and has supported him. He is good at his job and enjoys working. I accept the submission made by the applicant's solicitor that having the responsibility of a wife and children has facilitated his reformation. An officer of the Probation and Parole Service recommended on 26 November 2012 that the applicant be allowed to travel to Morocco with his wife and two children, then aged seven and six months, to visit his wife's ill father, 16 months into his parole. The officer commented that the applicant appeared "to be successfully pursuing lawful community life". The applicant is involved in the community playing soccer. Conclusion 38For those reasons, I find that the applicant is a fit person to hold a tradesperson's certificate, as required by s 24(3)(a) of the Act. Decision 39I set aside the decision of the delegate dated 3 July 2014 affirming the administrator's decision made on 23 May 2014 to refuse to grant the applicant a motor vehicle tradesperson's certificate in the class of automotive electrician and substitute in its place the decision to grant the applicant a tradesperson's certificate in the class of automotive electrician under the Act. ********** 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: 20 November 2014