Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Salhab v Department of Fair Trading [2018] NSWCATOD 122 Hearing dates: 05 July 2018 Date of orders: 02 August 2018 Decision date: 02 August 2018 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: (1) The application for review is dismissed. (2) The decision under review is affirmed. Catchwords: MOTOR DEALERS AND REPAIRERS - tradesperson's certificate – criminal convictions – non-disclosure of convictions on application form - fit and proper person Legislation Cited: Evidence Act 1995 NSW Licensing and Registration (Uniform Procedures) Act 2002 Motor Dealers and Repairers Act 2013 Cases Cited: AJO v Director-General of Transport [2012] NSWADT 101 Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Campbell v Director General, Department of Services Technology and Administration [2011] NSWADT 236 Cooper v Commissioner for Fair Trading [2016] NSWCATOD 15 Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 Kerkham v Director General, Department of Fair Trading (2002) NSWADT 61 Lee v Health Care Complaints Commissioner [2012] NSWCA 80 Loye -v- Director General, Department of Transport [2000] NSWADT 145 Pollard v Commonwealth DPP (1992) 28 NSWLR 659 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Category: Principal judgment Parties: Ali Salhab (Applicant) Department of Fair Trading (Respondent) Representation: In person (Applicant) Solicitor: J Coss (Respondent) File Number(s): 2018/00136888 Publication restriction: N/A REASONS FOR DECISION 1. This is an application by Ali Salhab seeking review of a decision by the Commissioner for Fair Trading (the Commissioner) that he not be granted a tradesperson's certificate under the Motor Dealers and Repairers Act 2013 (the Act). This decision was made on 21 December 2017 and affirmed on internal review on14 March 2018. 2. Mr Salhab had applied on 25 October 2017 for a tradesperson's certificate in the class of Motor Mechanic. In the application Mr Salhab did not disclose, as required, that he had been found guilty of any offences in the preceding 10 years. A New South Wales Criminal Police Search obtained by the Commissioner revealed that Mr Salhab had been found guilty of multiple offences between June 2009 and May 2017 under the name "Ali Khalil". 3. The Commissioner refused to grant the tradesperson's certificate on the basis that Mr Salhab is not a fit and proper person to hold a licence. The legislation 1. Sub-section 26(1)(a) of the Act provides that the Commissioner must not grant a tradesperson's certificate to an individual if the Commissioner is satisfied that the person is not a fit and proper person to hold a licence. The evidence before the Tribunal Mr Salhab's criminal history 1. It is not in dispute that Mr Salhab has had the following convictions in the 10 years preceding his application for the licence: * 10 June 2009, drive on road while licence suspended, bond under section 10 for two years. * 1 July 2010, unlicensed for class, fine $500 in court costs * 7 July 2015, two counts of dishonestly obtaining property by deception, community service order 150 hours compensation $33,883 and 1 count of dishonestly obtaining financial advantage by deception, community service order 150 hours * 12 October 2015, convictions confirmed for dishonestly obtaining property by the deception times to and dishonestly obtain financial advantage by deception (Mr Salhab withdrew his District Court appeal) * 7 July 2015, one count of dishonestly obtain property by deception, community service order 150 hours; one count of dishonestly obtain financial advantage by deception, community service order 150 hours, compensation $10,000 * 12 October 2015, one count of dishonestly obtain financial advantage by deception confirmed; one count of dishonestly obtain property by deception confirmed (Mr Salhab withdrew his District Court appeal) * 18 May 2017, drive with low range PCA, first offence, $500 fine and disqualification six months. The application form October 2017 1. Mr Salhab did not disclose on the application form dated 25 October 2017 for the trade certificate that he has a criminal history. In answer to the question "Have you been found guilty, within the preceding 10 years of an offence?", he ticked the "No" box. 2. Mr Salhab did attach a birth certificate to the application which showed that he had changed his name to Allan Khalil in 2011 and Ushar Salhab in 2013. 3. The Respondent obtained a criminal history and on 16 November 2017 sent a notice under section 14 of the Licensing and Registration (Uniform Procedures) Act 2002 asking him for: * an explanation about why he did not disclose the convictions; * a detailed explanation of the circumstances leading to and surrounding the offences; and * references from referees who were aware of his criminal record and who could attest to his character, including at least one recent work-related reference. 1. On 20 November 2017 Mr Salhab responded to the notice. 2. "I'm writing to you in response to your email regarding my application for a tradesperson certificate. Unfortunately, in my own error when I applied for the application I ticked the box to do the criminal check. It was my mistake that I did not continue to read the other boxes because I assumed the first one was the correct criminal check, and only now that I have re-read the application I have seen my error. I did not purposely intend to lie on the application as I genuinely am trying to start a fresh life and acquire this licence for work. I acknowledge my past errors and do hope that they do not hinder my future. 3. There is no excuse for my offences as it was at a point in my life that I wasn't proud of. I had no job with two children to support, stress ended up getting the better of my judgment. I can honestly say now that I deeply regret my actions and have learnt greatly from them. I have found employment with a great company, which I have been employed with for around two years, who are aware of my past. I'm a hard, honest worker and I believe I am a fit person to hold this licence. I would like the opportunity to move forward in my work and also within the company, obtaining my licence will help allow that." 4. Mr Salhab included a reference from his employer and from a friend Mr Elarif Mr Salhab's case 1. Mr Salhab attached the following submission to his application for review. 2. "I am writing this letter to explain the reasons behind my decision to take this application for my licence further and I would like to address the issues and errors which lead to the decision made by fair trading. 3. I previously applied to obtain my mechanics tradesperson licence through Fair Trading, which was declined. After much efforts with Fair Trading I decided to appeal the decision made because I believe it was based on unfair grounds. I have attached all relevant documents along with this letter that I believe helps my case. I would like the Tribunal to see things from a different perspective as I believe that issues from my past should not affect my future. 4. Fair Trading stated that I am not a fit and proper person to hold a mechanical licence although like any other person I have completed all of my studies and received my qualifications at TAFE, completed my apprenticeship and gained all of my certificates for this trade. Even just recently I completed Certificate III in Auto Motive Air Conditioning to help me move forward in my trade. Currently I am employed at Sadek Motors as a mechanic. My work has advised me that I need to obtain my mechanical licence to continue working as it's a legal requirement for them to have licences on the premises as I am the only mechanic on site that doesn't have the licence. I am a father of two children who I need to provide for, to not be able to obtain this licence could affect my job position and the money I make that provides for my family. 5. I am very much aware of the errors in my initial application and also of my history which has affected fair trading's decision on declining my licence. I know that the information on paper paints a certain picture of the man I am, but it is not the case. My work has been aware of my history since day one and still hired me giving me that second chance in life I needed. My work has also provided me with a reference statement on my work ethic, reliability in my work as a tradesperson and their own personal judgement of the person I am. 6. Fair trading's response stated that the reason my licence was declined was due to a few things, one being my application errors of not ticking the correct criminal check box and not listing all of my pervious names. When I first started my application for my licence I went into the service centre and asked for some assistance as I am not the most confident person filling out paperwork. There was a section for me to write my previous name, which I wrote as being Allan Khalil, I mistakenly assumed it was just the previous name I was known as not to list the other names. I was not trying to hide the name changes because along with my application I also provided my birth certificate which has them all listed. Fair Trading stated that a reason they rejected my application was due to not ticking the correct criminal check box, I admit it was an error on the application and when Fair Trading gave me the opportunity to explain, was still declined. At the end of the application where you sign in the declaration it states that any false information in the application could result in a heavy fine or imprisonment which as you know from my history is not something I would want to go through again. I would never knowingly lie on purpose to a government agency and most certainly not when I know that I have a record and every person's record is most defiantly searched. 7. Another reason that Fair Trading stated that I was not a fit and proper person to hold a licence was my record of charges obtained by deception, for which I would like to explain. I was at a low point in my life and started hanging around the wrong people, I had hurt my foot at work which resulted in me losing my job and going through depression because I was struggling to look after my family. 8. Firstly, the charge regarding St George bank, I had taken out a loan and then lost my job, so I struggled to pay back the loan which eventually I could not pay back at all. This has now all been paid back to the bank. The Charge regarding the car, I was working at a mechanic shop and I was given a private job from the panel beaters next door. I completed all repairs required on the vehicle which totaled over $2000. I then contacted the owner and organised a time for him to come and collect the vehicle. The customer never showed up. I contacted him numerous times to come and collect the vehicle as it had been sitting in the shop for over 10 months, with money still owing on it out of my own pocket. After numerous attempts to contact the owner and him not taking my calls I decided to get advice on what could be done about the vehicle and was informed that legally after 6 months of someone not coming to collect the vehicle the mechanic shop could take possession of the car and make what was owed on it. But unknown to my knowledge it was supposed to go through the courts. The vehicle was sold to recover the loss on the repairs. The next I heard of this matter was in court where the owner wanted his car back. The car was returned to the customer in better condition than when he had first brought it in and the buyer's money was also returned, and I was sitting at a loss of $5000. If I had known the correct procedure to collect my money was through the courts this defiantly would have been the way I took to save myself time and more money. The charges regarding the bikes, both bikes were returned to Harley Davidson as was all the money owed on them, as well as having to complete community service. 9. Fair Trading wanted an in-depth reason of the circumstances leading up to my charges, which I provided. I believe they gave me a chance to explain my reasons, but nothing was ever taken into account. I am trying to get my life on track and be a better person and everyone deserves a second chance. I paid back what was owed and done my 150 hours of community service at a church. 10. In the highlighted section in Fair Trading's brief they said I am a known member of the bikie gang the Comancheros. Firstly, I don't believe it is relevant because none of my charges had anything to do with the club nor were they club related issues. Secondly, I no longer have ANY associations with that or any other club for that matter since 2014. 11. I admit that my record does not look the best, but I have done everything I can to become a better man, someone that my children can be proud of and grow up learning from. I never want to go through the experiences and mistakes I have gone through in my life again and have learned greatly from them. I have put that life in my past and I am trying hard to move forward in my life and in my career for my family and myself. 12. I appreciate the time you have taken to read this and hope that it demonstrations the type of person I am now and that I am a fit and proper person to hold a mechanic licence." 13. At the hearing under cross-examination Mr Salhab said that he had obtained the first St George bank loan by fraud - but he had an intention to repay it at the time. He said that that matter had been sorted out by his solicitor. Mr Salhab told the Tribunal that if the hearing were to resume on another day, he would not be able to obtain evidence that the debt had been discharged. Mr Salhab was asked about his application for finance. He said that some of the information in the application was correct, while other parts were not. He agreed that the police had come to the Comancheros' clubhouse to reclaim the bike. 14. Mr Salhab confirmed that he worked for Mr Abraham at 33 Burrows Road. He agreed that he had worked unlicensed. 15. He had been given the job in 2013 of repairing Mr Quach's car by the panel beater next door. He had spent $2000 of his own money on repairing the car. The panel beaters repeatedly told him that they were unable to get in contact with Mr Quach and could not get the money he had spent on repairing Mr Quach's car from him. He denied that Mr Quach had come back repeatedly for his car. Mr Salhab said that they were calling and calling Mr Quach. Others told him he could keep the car to get the money back that he had spent repairing it. He did not deny that he put the registration of the car in his own name. He agreed that the car was worth more than $2000. He had sold the car to his sister-in-law. She was stopped by the police while driving it and he was charged with the offences. He said that Mr Abraham was aware that he had put the car in his own name. He maintained that Mr Quach got the car back in better condition than when it had come to him and that his sister-in-law got her money back. Application form declaration 1. Mr Salhab said that he had provided his birth certificate with all his names on it with the application. When it was put to him that his offences would have been fresh in his memory and that he should have declared them, Mr Salhab said he did not really like to have his past put in front of him repeatedly. Reference of Mr Elarif 1. Mr Salhab had provided an undated reference from Mr Elarif, a family friend to the Respondent. He had told Mr Elarif that his offences had been fraud. He had not given him a full explanation. 2. Mr Salhab stated that none of his charges had anything to do with him being a bikie member. He is no longer a member and he has not been a member for three or four years. The police have been to his home. He said that it had been up to Fraser motorcycles to follow him up. The motorcycle had been returned in better condition than when he had bought it. The alleged debt of $33,000 had been thrown out of court. Evidence of Mr Marouche 1. Mr Sammy Marouche (General manager) of Sadek Motors where Mr Salhab is employed, provided a reference dated 17 November 2017 on Sadek Motor Group letterhead addressed to "To whom it may concern". The reference stated that Mr Salhab had worked for Sadek Motor group in the past and also currently worked by contract. The reference stated: I'm very surprised to know the nature of the offences in his file and have only seen honesty and efficiency throughout the last two years of working with Ali. Ali is a good mechanic with excellent mannerisms and is also well spoken and I have no hesitation when it comes to his customer service. There has never been a time where we have been suspicious of his activities nor his ability throughout his employment with us. I gladly give him a good reference if need be. 1. Mr Marouche provided a second reference dated 4 June 2018 which stated as follows: Ali is a highly skilled and qualified mechanic and has proven his ability. Ali has completed TAFE in automotive and has recently completed TAFE air-conditioning course in automotive. Ali is an efficient worker who is always on time and always works well within a team. We have become reliant on Ali and hope to keep him on board working with us for many years to come. Ali has an excellent understanding of all makes and models and his logic and troubleshooting abilities are second to none. He is valuable to us and we want him to be the best he can be. Ali has had several conversations with me regarding his past and his criminal history. Upon employment with us he did disclose this to us and we are happy that we took a chance and took him on. Ali is a good man and a family man who has put his past in his past. He has voiced to me on several occasions that he feels that the world is against him and that this particular issue is holding him back from growing and becoming a valuable member of the community. It saddens me to say that by you denying him his license may force us to terminate his employment with us as we have become an authorised inspection station for the RMS which means all members of mechanical staff must hold a trade license. To be honest Ali would be a candidate for management had he held a trade license. He has explained to me that upon his application for his license that he asked for help filling out the application at the RMS. I believe this because Ali is a little bit disadvantaged when it comes to filling out paperwork and using technologies. He shows hesitation when asked to read documents or to write reports and does seek help even in our workplace. Ali has been honest with us and I have no hesitation providing Ali with a character reference at any time and wish for him to move forward in life without constantly struggling due to mistakes that he made earlier in life. He now has a wife and two children that rely on his income and he wants to show his son that if you work hard then you can move forward in life and become successful. I hope that I was able to paint you a clear picture of the person that you are denying a license to as you do not know what they are about or what they wish to achieve. I have had the pleasure of meeting this person and hope by this simple document that you can understand that people do change and sometimes do deserve a second chance if not for themselves but for their families. Please consider all of the above as I could not be more genuine when I say that this man deserves to get his trade license. 1. Mr Marouche was cross examined by telephone. He referred to the two letters that he had provided in relation to Mr Salhab. They had been provided by email and therefore were not signed. Mr Salhab had worked for Sadek Motors as a contractor previously - but is now an employee. Mr Marouche could not remember the nature of Mr Salhab's offences. He said at the time of hiring Mr Salhab "the lady in the firm did a background check". They had received the background checks and were happy with them. Mr Marouche said he had discussed them with the owner of the business Mr Sadek. Mr Marouche said he believed that they were offences relating to assault, but he could not really remember. In any event, the owner of the business had been happy to go ahead with employing Mr Salhab. 2. Mr Marouche said he had noted that Mr Salhab had appeared unhappy at a time. He had a discussion with him about it. Mr Salhab had been quite heartfelt about the fact that he could not get ahead because of his past offences. Mr Marouche said he was surprised when told that Mr Salhab had not declared his offences on the application form for the trade certificate. 3. Mr Marouche confirmed that Mr Salhab is quite a bright mechanic and a hard worker. He has no issues with other staff members. He was in line for promotion, but it depended on the outcome of the hearing. Summary of the Respondent's written submissions 1. The Respondent referred to the line of cases concerning fitness and propriety. The assessment of Mr Salhab's fitness and propriety needed to take into account the role of a tradesperson. The Act provides that the Secretary may take into account a conviction within the preceding 10 years for an offence involving fraud or dishonesty. However, the mere fact of a conviction does not necessarily mean that a person is not fit and proper. 2. The Respondent considered the nature of the offences by reference to the fact sheets before the courts. In December 2010 Mr Salhab had made fraudulent applications for finance including using a different name; a Queensland drivers licence and making false claims about his income. 3. In September 2012 Mr Salhab made a finance application again using a different name and provided false wage slips to Capital Finance. 4. During 2012 Mr Salhab was undertaking unlicensed repair work. 5. On 4 September 2012 Mr Salhab made an application to St George for a loan. He submitted false payslips; used an ACT licence and a different name on the application. 6. The 2015 convictions related to fraudulently retaining Mr Quach's car; changing its registration and then on selling the car fraudulently to his sister-in-law. 7. Mr Salhab had engaged in dishonesty with his failure to disclose his convictions preceding his application in October 2017. He was evasive in explaining this failure to disclose and blamed it on those at the registry who assisted him. 8. On this basis Mr Salhab was not fit and proper to hold a tradesperson certificate 9. There was an onus on Mr Salhab to show that he had reformed his character. In this regard, the passing of time was not sufficient. Further, his convictions were still recent, being from 2014 and 2015. His failure to declare his convictions had occurred less than a year ago. 10. The Respondent referred to the matter of Campbell v Director General, Department of Services Technology and Administration [2011] NSWADT 236 in which Judicial Member Montgomery found that the Applicant had deliberately withheld relevant information about her bankruptcy from the Respondent. He stated that "honesty is one of the key elements of fitness". In the circumstances if he were wrong and the applicant did not deliberately withhold the information from the Respondent, it was apparent that she did not have the requisite "knowledge to know what she ought duly to do." 11. The Respondent referred to the matter of Kerkham v Director General, Department of Fair Trading (2002) NSWADT 61 in which Deputy President Hennessy considered what constituted an "offence involving dishonesty." She cited a statement of Abadee J in Pollard v Commonwealth DPP (1992) 28 NSWLR 659 at paragraph 669A and B that; "If a person knows he is making a false statement, that is a form of dishonesty. To do so with reckless disregard as to whether it is true or false appears to me capable of equally being regarded as dishonest. Indeed, someone who is prepared or willing to seek a financial advantage by making this statement without regard to whether such is true or false, without regard to what the true position might be, could well be thought to be acting dishonestly." 1. The Respondent noted that at the time of the convictions of dishonestly obtaining property by deception in 2014, Mr Salhab claimed to have been a member of the Comanchero outlaw motorcycle gang. This in itself showed a lack of fitness. 2. The level of sophistication and organisation of Mr Salhab's frauds showed that he was a sophisticated criminal and would do and say anything to get what he wants. He had shown himself to be adept at falsifying payslips, references and changing his name and obtaining interstate licenses. 3. Further the Respondent submitted that Mr Salhab had not paid the $33,883 compensation to Capital Finance as ordered by the District Court. There was no guarantee that if Mr Salhab were granted a certificate he would not fraudulently use consumers' information in relation to their vehicle's repair for further fraud related activities. This was borne out by his 2015 convictions. 4. Mr Salhab's actions in 2013 and 2014 of registering Mr Quach's car in his own name was a significant breach of trust. He then sought to profit from this by on selling the car to his sister-in-law for $10,000. The Respondent submitted that Mr Salhab had not paid the $10,000 compensation to Mr Quach as ordered by the District Court. 5. Mr Salhab had worked as an unlicensed motor mechanic in 2012. 6. The references did not mention specifics of the offences with which Mr Salhab had been charged or convicted. The Respondent submitted that the only real evidence before the Tribunal in respect of reformation of character was that from Mr Salhab himself. 7. Mr Salhab's hardship in not having a tradesperson certificate as a means of financially providing for his family could not be taken into account in assessing his fitness and propriety. Findings of Fact 1. Mr Salhab's criminal record in the 10 years prior to his application for a tradesperson certificate is not in dispute. 2. Mr Salhab pleaded guilty to charges relating to criminal behaviour in 2010, 2012 and 2013. 3. Mr Salhab's evidence to the Tribunal provided a context for his criminal behaviour as a younger man. He did not deny that he had engaged in criminal behaviour. 4. Mr Salhab did not declare his criminal convictions for the 10 years preceding his application for a tradesperson certificate in October 2017. 5. Mr Salhab undertook motor vehicle repair work without a certificate or licence in 2012. Findings of Fact and Law Fit and proper person - ccriteria in the Act 1. Section 27(1) (a) of the Act sets out criteria for determining whether an applicant is a fit and proper person to hold "a licence" as including: 1. whether the applicant has, in the preceding 10 years, been found guilty of an offence involving fraud or dishonesty (whether in this State or elsewhere), 1. Subsection 27(4) provides: 2. (4) This section does not limit the grounds on which the Secretary may determine that a person is not a fit and proper person to hold a licence. Common law approach to fitness and propriety 1. The expression 'fit and proper' is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases. 2. In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances. 1. It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake. See AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]). 2. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: 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. 1. They went on to say at 388: 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. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails. Considerations for assessing fitness and propriety 1. Similarly to Mr Salhab's circumstances the matter of Grenfell also dealt with an applicant for a tradespersons certificate. See Grenfell v Director General Department of Finance and Services [2013] NSWADT 57. Mr Grenfell had a recent criminal history – not all of which he declared to the regulator in his application. The Tribunal set out some considerations for assessing fitness and propriety in relation to an applicant's past criminal conduct, at [15]: The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgment. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation. 1. The Tribunal analyses Mr Salhab's fitness and propriety by reference to these factors. The nature and seriousness of the original misconduct 1. There is no doubt that the dishonesty offences committed in 2012 and 2013 were serious. This was reflected in the penalties. Further the offences concerning repairs to a client's car in 2013 were committed in the context of undertaking work as a motor mechanic at a time when Mr Salhab was not licensed to undertake this work - the work for which Mr Salhab is now seeking a certificate. 2. It is of great concern that the offences concerning Mr Quach's car occurred at Mr Salhab's workplace. The theft was pre-meditated and calculated. His explanation that he was owed $2000 for the work he had done on the car does not detract from the seriousness of his conduct. The offence was serious, and his actions go to his honesty, reliability and integrity. 3. Mr Salhab was sentenced to 150 hours community service which he has completed. Payment of compensation 1. It is now approximately four years since the most recent of these criminal activities. Mr Salhab has provided an explanation for these matters. Mr Salhab told the Tribunal that his solicitor had sorted out the compensation issue. However, he also said he would be unable at a later hearing to produce proof that the compensation for these matters had been paid. 2. The Tribunal notes that the CAN Master Coversheet in the section 58 papers has an entry on 23 June 2015 relating to the earlier offences from 2010 and 2012, which notes that "compensation resolved". The Tribunal notes that the Fact Sheet before the Court dated 14 April 2015 states that the bikes were returned. 3. The Court orders sheet dated 7 July 2015 relating to "dishonestly obtain property by deception" in December 2010 notes that compensation is due to Capital Finance of $33,883.29. The accompanying CAN describes the value as $20,962.09 4. The Court orders sheet dated 7 July 2015 relating to "dishonestly obtain financial advantage or cause disadvantage by deception" in September 2012 obtaining $21,948.00 from St George Bank has this amount of compensation crossed out. 5. The CAN Mater Coversheet in the section 58 papers has an entry on 23 June 2015 relating to the later offences which states that "compensation must be resolved". The Court Orders sheet dated 7 July 2015 note that $10,000 compensation/reparation was to be paid to Eman Habib whom the Tribunal understands to be Mr Salhab's sister in law who had purchased Mr Quach's car from Mr Salhab. The Fact sheet for these offences notes an intention for Mr Quach's vehicle to be returned to him. 6. The Respondent asserted in its submissions that the compensation amounts were outstanding. Section 140 Evidence Act 1995 NSW 1. Section 140 of the Evidence Act sets out the standard of proof necessary when the Tribunal must satisfy itself of a matter. 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. 1. The court records on the issue of compensation are very confusing and inconclusive as to whether compensation has been paid. Mr Salhab asserted that all compensation had been resolved – but that he would not be able to produce the documents to demonstrate this. In these circumstances the Tribunal cannot be satisfied on the balance of probabilities that the compensation has been paid. Mr Salhab's candour about and explanation of the misconduct 1. Mr Salhab provided context for the dishonesty offences in his evidence. He did not substantially deny having committed the offences. Events since the original misconduct 1. More recently Mr Salhab was convicted of a drive with low range PCA first offence on 18 May 2017 for which she was fined $500 and disqualified from driving for six months. 2. Mr Salhab previously worked as a motor mechanic without a certificate. Mr Salhab has now moved to obtain his trade certificate. His employer has attested to the fact that there have been no crimes of dishonesty committed by Mr Salhab in the workplace for which he seeks the certificate. The impact of the effluxion of time 1. It has been approximately 5 years since Mr Salhab committed the most recent crime of dishonesty in 2013. The mere passage of time since offending is not however sufficient to establish reformation of character. See Lee v Health Care Complaints Commissioner [2012] NSWCA 80. Mr Salhab's present circumstances and reputation: The Tribunal's consideration of the character references 1. Mr Salhab provided 2 character references in support of his application. An undated reference from Mr Omar Elarif stated that he had known Ali to be an honest, reliable, hard worker who is very committed to children and family. It stated that while he was going through his court proceedings Ali showed genuine remorse for his actions. It was a shock to myself that he even had those charges against him. Even though he has been charged, I still continued to trust Ali because I knew it wasn't the norm for him. 2. At the hearing Mr Salhab told the Tribunal that he had told Mr Elarif that he had been charged with fraud. The Tribunal notes that this is, in part, true. Mr Salhab's offences did involve fraud. However, in the absence of further evidence from Mr Elarif, it is impossible for the Tribunal to know Mr Elarif's fully informed view about Mr Salhab's character. 3. The Tribunal has previously given little weight to references that do not state an understanding of the criminal matters that the person had been convicted of. See Loye -v- Director General, Department of Transport [2000] NSWADT 145 at 42 and 44. The Tribunal gives little weight to Mr Elarif's reference. Reference of Mr Marouche 1. Mr Marouche provided Mr Salhab with two written references and was also available by telephone to provide oral evidence to the Tribunal about Mr Salhab. It was clear from Mr Marouche's written and oral evidence that Mr Salhab possesses the knowledge, skills and experience aspect of fitness and propriety for a motor mechanic. 2. Mr Marouche also attested to Mr Salhab's honesty. The written references referred to Mr Salhab's criminal past. At the hearing, Mr Marouche could not recall the exact nature of Mr Salhab's offences and thought that they were for assault. In this respect, there is some difficulty in relying upon Mr Marouche's view of Mr Salhab's rehabilitated integrity - given his previous convictions included fraud which occurred in the workplace. 3. Mr Marouche expressed an understanding that Mr Salhab may have experienced difficulty in filling in forms. At the same time under cross-examination, he expressed surprise that Mr Salhab had failed to declare his criminal offences on the application form. 4. The Tribunal accepts that Sadek Motor group appears to have been made aware of the nature of Mr Salhab's crimes prior to taking him on as an employee. The organisation still took him on as an employee and this must be considered to be a matter in Mr Salhab's favour. The Tribunal also notes Mr Marouche's efforts to assist Mr Salhab to obtain his tradesperson certificate. The Tribunal considers all these matters to be in Mr Salhab's favour. Evidence of Rehabilitation 1. The Tribunal gives some weight to the references provided by Mr Marouche as evidence of Mr Salhab's rehabilitation. The Tribunal gives weight to the fact that Mr Salhab obtained employment at Sadek Motor group and retains it even after the organisation obtained a background check which would have provided an understanding of the nature of his convictions – even if Mr Marouche himself is not aware of them. Failure to declare convictions 1. The Tribunal is concerned however that in October 2017, Mr Salhab did not declare his convictions when applying for his trade person certificate. It is clear from both Mr Salhab's and Mr Marouche's evidence that the fact of these convictions is at the forefront of Mr Salhab's concerns. 2. Mr Salhab's explanation of his failure to declare the convictions in his response to the Respondent on 20 November 2017 is incoherent. "I checked the box to do the criminal check. It was my mistake that I did not continue to read the other boxes because I assumed the first one was the correct criminal check, and only now that I have reread the application I have seen my error. I did not purposely intend to lie on the application as I genuinely am trying to start a fresh life, and acquire this license for work…" 1. At the hearing Mr Salhab said that he was trying to forget that he had these convictions, so he could get on with his life. 2. Mr Marouche told the Tribunal that he was surprised that Mr Salhab had not declared the convictions. 3. The Tribunal considers that the failure to declare the criminal convictions is evidence of dishonesty on Mr Salhab's part. It is also of concern that Mr Salhab was not candid with the regulator of the profession for which he seeks a certificate. Likelihood of reoccurrence of behaviour 1. There is no doubt that, in the past in light of his 2015 convictions, Mr Salhab would not have been considered to be a fit and proper person to hold a tradespersons certificate. At issue is whether the Tribunal is satisfied that Mr Salhab is rehabilitated and is a fit and proper person to hold a licence now. 2. Mr Salhab's behavior in not telling the truth on the application form is a pointer in this regard. I do not accept that Mr Salhab either did not read or misread the question on the application form concerning his past criminal history. The question is very straightforward and simply invites a "Yes" or "No" answer. Mr Salhab may be embarrassed and ashamed of his past history, but that is not a sufficient reason for lying on the form. 3. In the light of Mr Salhab's dishonesty in completing the application form in October 2017, the Tribunal finds that Mr Salhab is not presently fit and proper to hold a tradespersons certificate. 4. Mr Salhab should not be precluded from holding a tradesperson's certificate in the future. In Cooper v Commissioner for Fair Trading [2016] NSWCATOD 15 the Tribunal stated in relation to the applicant that case at [76]: If, after a further period of good behaviour in the community, Mr Cooper were to re-apply, and provide evidence indicating his rehabilitation, such as recent character references and evidence of continued positive involvement in the community, then such an application may be able to be favourably considered. 1. Those comments may also apply to Mr Salhab's situation. In addition, the Tribunal notes that in any future application, Mr Salhab may need to address the issues which caused him to complete the application form dishonestly in October 2017. Decision 1. For the reasons set out above, at the current time, the Tribunal finds that the correct and preferable decision is that the decision of the Commissioner be affirmed. Orders 1. The application for review is dismissed. 2. The Respondent's decision is affirmed. ​ ********** ​ 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: 02 August 2018