Abdullah v Commissioner for Consumer Affairs - [2008] SADC 106

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
ABDULLAH v COMMISSIONER FOR CONSUMER AFFAIRS
[2008] SADC 106
Judgment of Her Honour Judge Trenorden
29 August 2008
ADMINISTRATIVE LAW
PROFESSIONS AND TRADES - BUILDERS - SOUTH AUSTRALIA
Appeal against refusal of a building work contractor's licence by the Commissioner for Consumer Affairs - Whether the appellant is a fit and proper person to hold a licence.
HELD: Appeal allowed. Decision of the Commissioner overturned.
District Court Act 1991; Building Work Contractors Act 1995, referred to.

ABDULLAH v COMMISSIONER FOR CONSUMER AFFAIRS
[2008] SADC 106
THE COURT DELIVERED THE FOLLOWING JUDGMENT:

The appellant, Mr Adel Abdullah, applied for a building work contractor’s licence and building work supervisor’s registration under the Building Work Contractors Act 1995 (the Act), which was received by the Commissioner for Consumer Affairs (the Commissioner) on 16 July 2007. On 4 January 2008, the Commissioner wrote to Mr Abdullah advising him that his application for a licence had been refused as he had failed to meet with the requirements of s 9 of the Act. Mr Abdullah was informed that he was entitled to a supervisor’s registration and also to have “general repairs” endorsed on his supervisor’s registration which would mean that he could be employed as a supervisor but not permitted to contract for work. Mr Abdullah appealed against the decision refusing to grant him a licence.
Nature of Appeal
An applicant may appeal to the District Court against a decision of the Commissioner refusing the application for a licence: s 10(1) of the Act. The appeal was instituted within one month of the making of the decision by the Commissioner, as required by subsection 10(2) of the Act. Section 3(1) of the Act provides that the term “District Court” when used in the Act means “the Administrative and Disciplinary Division of the District Court”.
Division 2 of Part 6 of the District Court Act 1991 establishes the Administrative and Disciplinary Division of the District Court and sets out provisions in relation thereto. Section 42E addresses the conduct of an appeal, as follows:
42E—Conduct of appeal
(1)     The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)     The Court, on an appeal—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)     The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
The court’s powers on appeal are set out in s 42F, as follows:
42F—Decision on appeal
The Court may, on an appeal—
(a)affirm the decision appealed against;
(b)rescind the decision and substitute a decision that the Court considers appropriate;
(c)remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
Background to the Appeal
The Commissioner’s reasons for decision were attached to the letter, dated 4 January 2008, informing Mr Abdullah that his application for a licence had been refused. Those reasons are set out below:
REASONS FOR DECISION
I refer to the application by Adel Abdullah for a contractor’s licence under the Building Work Contractors Act1995 (“the Act”) for work that may be contracted for under the authority of the licence for ‘Additions, alterations & renovations and General repairs’
Section 9 of the Act provides:
“Entitlement to be licensed
9. (1) A natural person is entitled to be granted a licence if the person –
…
(f) is a fit and proper person to be the holder of a licence.
On the question of fitness and propriety, Mr Abdullah’s National Police Clearance Certificate indicates that he has offences from November 2001. Specific concern is raised with the following offence:
—[here, a reference was made to offences in 2001]
After a comprehensive assessment of all information provided it has been determined that by virtue of Section 9(1)(f), the applicant is not entitled to be granted a licence.
The application for a contractor’s licence is refused.
Thus, it appears that the Commissioner concluded that Mr Abdullah was not a fit and proper person to hold a licence because he was found guilty of offences of dishonesty on 16 November 2001. The decision was made on 4 January 2008. That decision is the subject of this appeal.
The Court was provided with a comprehensive affidavit of Tony John Charles Mangion, sworn 6 March 2008. Mr Mangion is the Manager of the Business and Occupational Services Branch within the Office of Business and Consumer Affairs and responsible for the processing of applications for contractor’s licences or registrations under the various occupational licensing Acts including the Building Work Contractors Act. He is a delegate of the Commissioner for the purpose of determining licence applications.
Mr Mangion set out the general procedures undertaken by officers of the Office of Business and Consumer Affairs when a person applies for a licence.
The general procedure is for the applicant to be asked a series of standardised questions, either during a personal interview or over the telephone, that relate to the specific eligibility criteria for the licence sought. The licensing officer enters the applicant’s answers into a computer database and an application form, comprised of those questions and the answers provided, is generated and posted to the applicant. This becomes the application form and is to be verified by the applicant. In Mr Abdullah’s case, the application form revealed that he had been convicted of criminal offences.
On 16 July 2007, Mr Abdullah lodged his application, comprising the application form as it had been sent to him with the addition of his signature, together with documentation which included the following:
·        Financial details for Mr Abdullah.
·        Statement of building and construction experience.
·        National Police Clearance Certificate (NPCC).
·        Recommendations from past employers (2).
·        Extract from Identity Document – Certificate of Translation.
·        Statutory Declaration by Mr Abdullah.
·       Masters Builders Association Statement of Attainment in Undertake Financial Planning.
·       Certified copy of passport and driver’s licence.
·       Character references (3).
·       Masters Builders Association Statement of Attainment in Establish Business and Legal Requirements.
·        Resume of Mr Abdullah.
The NPCC identified the same offences as had been identified in the application document signed by Mr Abdullah.
On 25 October 2007, the Commissioner, in accordance with the usual course in such cases, wrote to Mr Abdullah inviting him to provide a statutory declaration “explaining the offences listed within the NPCC and any other additional circumstances or factors he wished the Commissioner to take into account when assessing his application for a licence”.
A statutory declaration by Mr Abdullah, made on 7 November 2007, was duly provided to the Commissioner.
On 13 December 2007, the Commissioner wrote to Mr Abdullah requesting that he clarify, in writing, the name of his wife to whom he had referred in his statutory declaration dated 7 November 2007. The appellant responded with a statutory declaration providing the information requested, made on 18 December 2007.
A licensing officer then assessed Mr Abdullah’s application for a contractor’s licence. In a memo to the manager, Licensing Operations dated 19 December 2007, the licensing officer recommended that the application be refused. The inference to be drawn from the memorandum by the licensing officer, is that Mr Abdullah was considered not to be a fit and proper person to hold a contractor’s licence. The reason adduced was that in the context of his history, it appeared that Mr Abdullah “may have again been dishonest”. The basis of the officer’s conclusion was the apparent inconsistency between the statements contained in the statutory declarations of Mr Abdullah, dated 7 November 2007 and 18 December 2007, and the 2001 court records obtained by the Commissioner in relation to Mr Abdullah’s offences.
The recommendation of the licensing officer, or perhaps a decision based on her recommendation by the manager of Licensing Operations, was reviewed by the licensing supervisor on 21 December 2007. The licensing supervisor agreed with the recommendation of the licensing officer, apparently on the basis that Mr Abdullah had been convicted within the last 10 years of a particular kind of offence.
On 31 December 2007, the manager of the Business and Occupational Services Branch approved the recommendation of the licensing supervisor and declared that he did not consider Mr Abdullah to be a fit and proper person for the purposes of granting a building work contractor’s licence under the Act. On or about 4 January 2008, a letter was sent to the appellant on behalf of the Commissioner for Consumer Affairs, advising Mr Abdullah that his licence application had been refused as he had failed to meet the requirements of s 9 of the Act. The letter enclosed the Commissioner’s reasons for decision. The Reasons For Decision, dated 4 January 2008 advised that there was a specific concern with the offence [sic] for which Mr Abdullah was found guilty on 16 November 2001. The reasons continued that:
After a comprehensive assessment of all information provided, it has been determined that by virtue of section 9(1)(f), the applicant is not entitled to be granted a licence.
The application for a contractor’s licence is refused.
Meanwhile, on 31 August 2007 and continuing on 17 September and 17 October 2007, Mr Abdullah had been interviewed by an officer within the Office for Consumer and Business Affairs with respect to his supervision and technical skills. The Supervision and Technical Assessment Report, by the technical officer, indicated that Mr Abdullah satisfied the eligibility criteria for registration as a building work supervisor, limited to general repairs. There is no issue with Mr Abdullah’s technical competence to hold a supervisor’s licence limited to general repairs.
The Appellant’s Evidence
Mr Abdullah, who conducted his own case, elected to give evidence, which course was not opposed, and to which the Court consented. He was cross-examined.
Mr Abdullah arrived in Australia from Iraq in October 2000. He is of Kurdish origin, and speaks Kurdish, Arabic and some English. He initially lived in Sydney with his wife and children.
He explained the circumstances around the offences of dishonesty committed in 2001. When he ascertained that the police were interested in speaking to him, or his version of events, he attended at the police station and admitted his guilt. He subsequently was charged with offences, pleaded guilty and was convicted. Mr Abdullah claims he “repaid” the money (being a fine and compensation) within a 6 month period, although he had been given five years to pay.
Mr Abdullah claims the offences were committed because he needed money urgently, as he was under some pressure to send money to Iraq to pay for an operation for his sick father. He applied for credit but had been unable to obtain credit from a financial institution, being a recent arrival in Australia. He took advantage, unwisely and unlawfully of something that had been erroneously delivered into his letterbox.
Mr Abdullah claimed to have worked hard since his conviction in 2001 and not been in any trouble. There is one exception, being convictions in 2006 arising out of a domestic dispute, the details of which were not the concern of the Commissioner and are not relevant for this Court.
Mr Abdullah moved to Adelaide from Sydney in 2007. His family remained in Sydney, but he is hopeful that they will join him here. On the advice of a friend, Mr Abdullah went to the Australian Refugee Association Job Network or Job Seekers Network (the ARA Job Network), to get help looking for work and in particular to apply for a building contractor’s licence. Mr Abdullah speaks some English but can not read much, if any, of the language. A person named Vin “an Aussie” helped him at the ARA Job Network. Mr Abdullah gave Vin the application and the NPCC (as it had been sent to him by the Commissioner). As the NPCC lists both the 2001 offences, described above, and the 2006 offences arriving out of the domestic dispute, Mr Abdullah was asked by Vin, and told him, about both sets of offences. He included in his account other allegations made against him arising out of his domestic situation. Vin then wrote down the explanation for the offences.
Some of the statements are incorrect. Mr Abdullah’s response to the fact of incorrect statements having been made concerning the offences listed on the NPCC was that Vin must have confused what he had been told by Mr Adbullah, when writing it down, and Mr Abdullah was unable to check the accuracy of what had been written down by Vin, because of his inability to read the English language.
On 25 October 2007, the Commissioner for Consumer Affairs asked Mr Abdullah, by letter, to provide by way of a statutory declaration, a detailed explanation for each offence listed on the NPCC and any other additional circumstances or factors in relation to each offence that Mr Abdullah wished the Commissioner to take into account.
Whenever Mr Abdullah received documentation from the Commissioner, he took the documents to the receptionist at the ARA Job Network and asked her or him to explain what was required. He says he cannot read English but recognises dates and numbers.
Mr Abdullah said in evidence that in the earlier application document that Vin had written for him, he recognised the dates as being the dates of the convictions recorded against him, so he photocopied that part of the statement and incorporated it into the statutory declaration newly required by the Commissioner. On the advice of a friend who told him on the telephone in Kurdish what to write, including how to spell some words, Mr Abdullah added beneath the explanation in Vin’s handwriting that he had photocopied onto the page, the following:
Since then I have been a very good citizen and hard working family man and supportive to my Family and I promise never to do any thing wrong.
I would be very grateful if you can help me with my licensing matter so I can start work as soon as possible. Thanks.
Regards
Adel Abdullah 6/11/07
Findings on the Evidence
I accept Mr Abdullah’s story as it explained the discrepancy between the explanation of the offences provided by way of statutory declaration, and fact, as being more likely than not. He spoke through an Arabic interpreter in the course of the hearing, and explained early in the hearing that he understands what is said in English but finds it easier to express himself in either Arabic or Kurdish. He chose to have an Arabic interpreter for reasons that were explained by him.
I accept, on the balance of probabilities, that the following are the relevant facts:
·       Mr Abdullah pleaded guilty to, and was convicted of offences of dishonesty on 15 November 2001.
·       Other allegations of dishonesty had been made against Mr Abdullah to the NSW Police arising out of his domestic situation. These were subsequently withdrawn.
·       Mr Abdullah’s understanding of written English is limited.
·       Mr Abdullah arrived in Adelaide in February 2007 and on or about 7 May 2007 began the process of applying for a building contractor’s licence.
·       Mr Abdullah sought assistance to understand documents from the Commissioner and from the ARA, including its Job Network, to complete the application documents prior to 16 July 2007.
·       Mr Abdullah explained to “Vin” at the ARA Job Network, the circumstances relating to the two sets of offences listed on the NPCC, and the allegation that had been made to Police but later withdrawn. Vin assisted him with the application for a building contractor’s licence.
·       In writing down an explanation of the offences, Vin confused the details and attributed both sets of offences to Mr Abdullah’s personal domestic difficulties, when this explanation in fact related only to the 2006 offences, and the allegation that although made to Police, had been withdrawn.
·       When subsequently asked, by letter dated 25 October 2007, to provide further information in statutory declaration form in relation to the offences listed on the NPCC, Mr Abdullah, having recalled that Vin had previously written down the explanations for him, photocopied the relevant portion of the earlier statement onto a sheet of paper to form part of the statutory declaration by reference to the dates he could identify in the earlier document. Thus, the error in the initial description of the circumstances surrounding the 2001 offences was perpetuated.
I have come to the conclusion in the last dot point on the bases of two reasons. First, the last sentence of the affidavit of the statutory declaration made on 7 December 2007 and the appending of Mr Abdullah’s signature together with the date of 6 November 2007 indicates that he could not have read the statutory declaration form and so did not understand precisely what was required. In fact, Mr Abdullah made the declaration before an appropriate person on the day after he had inserted the sentences by his hand and signed and dated the page. The addition in a statutory declaration of the words, “I will be very grateful if you can help me with my licensing matter so I can start work as soon as possible. Thanks. Regards Adel Abdullah 6/11/07”, by itself suggests a lack of understanding of what was required.
Secondly, by letter dated 13 December 2007, the Commissioner asked Mr Abdullah, in relation to his application for building work contractor’s licence, to “please clarify in writing the name of your wife/ex-wife referred to in your Statutory Declaration”. In response to this letter, Mr Abdullah made a further statutory declaration, on the 18 December 2007, stating his wife’s name and date of birth and included the date on which they were married. The fact that he was entirely forthright in his prompt response suggests that he was not trying to hide anything or mislead the Commissioner.
It is unfortunate that Mr Abdullah was not interviewed in person by an officer, on behalf of the Commissioner, having regard to his apparently limited facility with the written English language. If this had happened, in the same way that Mr Abdullah’s technical abilities were assessed through the interview process, by officers on behalf of the Commissioner, the problems that have led to a refusal by the Commissioner to grant a licence and this appeal, might never have arisen. If a comprehensive understanding of written English is not a pre-requisite for a building work contractor’s licence, then it is difficult to understand why the Commissioner’s procedures to determine an application for licence are primarily conducted in writing.
In the final analysis, I do not accept that Mr Abdullah was intentionally dishonest in the written explanations of the circumstances surrounding the offences listed on the NPCC. I accept, on the balance of probabilities, that he did not understand precisely what had been written down for him by another person following his oral explanation of the circumstances of the offences, to that person. His mistake was to accept, without translation, what was on the written paper and to send it to the Commissioner trusting that it reflected his explanation of the circumstances in relation to each group of offences.

It is clear that in terms of his work, Mr Abdullah is highly regarded. A number of references, particularly complimentary of his work and person, were provided by him with his application, and these were also part of the application documents provided to the Court as exhibits to Mr Mangion’s affidavit. In addition, there is no doubt as to his technical ability.
Conclusions
I am satisfied that Mr Abdullah is a fit and proper person to hold a licence.
The District Court Act 1991, provides that in matters such as this, the Court must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons: s 42E.
I have come to the conclusion that the Commissioner was in error in concluding that Mr Abdullah was not a fit and proper person to hold a licence. Of course, I have had the benefit of hearing from Mr Abdullah orally, rather than relying merely on the written documents, in particular the statutory declarations that he provided to the Commissioner in response to the Commissioner’s requests.
Given that I have concluded that Mr Abdullah did not intend to deceive the Commissioner in his statutory declarations and thus was not intentionally dishonest, the basis for the Commissioner’s finding that he was not a fit and proper person falls away. That is the cogent reason for departing from the Commissioner’s decision.
There being no other barrier to a licence being granted to Mr Abdullah, the appeal should be allowed and the decision of the Commissioner overturned.
I will hear the parties as to the final orders to be made.