Ahmad and Secretary, Department of Home Affairs

[2022] AATA 4779

Ahmad and Secretary, Department of Home Affairs [2022] AATA 4779 (7 December 2022)

Division:GENERAL DIVISION

File Number(s): 2022/2970

Re:Chady Ahmad

APPLICANT

AndSecretary, Department of Home Affairs

RESPONDENT

Decision

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:7 December 2022

Date of written reasons:        1 February 2023

Place:Sydney

The Tribunal affirms the decision made on 6 February 2022 by a delegate of the Respondent refusing to grant a Maritime Security Identification Pass (MSIC) to the Applicant.

...................................[SGD].....................................

Emeritus Professor P A Fairall, Senior Member

Catchwords

MARITIME SECURITY – Maritime Security Identification Card (MSIC) – decision to refuse issue – threat to maritime security – MISC required for work on maritime and offshore facilities – extensive criminal record – Applicant currently serving sentence – Applicant vulnerability to exploitation – Decision under review affirmed

Legislation

Maritime Transport and Offshore Facilities Security Act 2003 (Cth)
Transport Security Amendment (Serious Crime) Act 2021 (Cth)
Maritime Transport and Offshore Facilities Security Regulations 2003 (Cth)
Transport Security Legislation Amendment (Serious Crime) Regulations 2021 (Cth)

written REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

1 February 2023

INTRODUCTION

1. A person seeking entry to maritime ports in Australia is required to display a Maritime Security Identification Card (MSIC).[1] In general, one is not authorised to enter a maritime security zone unless holding and displaying an MSIC or having an escort with an MSIC.

   [1] Regulation 6.07 of the Maritime Transport and Offshore Facilities Security Regulations2003 (‘Maritime Regulations’) provides that a person commits an offence if (a) he or she is in a maritime security zone; and (b) he or she fails to properly display a valid blue MSIC or valid temporary MSIC.

2. Mr Ahmad (the Applicant) is employed as a truck driver. In the course of his employment, he is required to make deliveries to and from various maritime exclusion zones. He is also the owner-operator of a small fleet of trucks, which he uses to transport goods to and from the port.

3. He was granted an MSIC on two previous occasions, in 2018 and 2019, despite having a criminal record and serving a period of imprisonment for offences committed in 2016. The delegate on each occasion considered that he was reformed.

4. On 26 October 2021, he applied to the Secretary (the Respondent) under r 6.08F of the Maritime Regulations for a ‘discretionary’ MSIC, which may be issued to a person with an adverse criminal record where the Secretary is satisfied that an applicant is not a threat to maritime security.

5. On 6 February 2022, a delegate of the Respondent refused to issue an MSIC to the Applicant. The decision was made under the Maritime Regulations, as amended by the Transport Security Legislation Amendment (Serious Crime) Regulations 2021, which had recently come into effect. The purpose of the amending legislation was to strengthen the security of Australia’s maritime and aviation transport industries and mitigate the impact of serious crime.[2]

   [2] Transport Security Amendment (Serious Crime) Act 2021 (Cth).

6. On 9 April 2022, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) to reconsider the matter.[3] 

   [3] T1, 6.

7. Under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), applications for review must be made within 28 days of receiving notice of the decision. The Respondent’s failure to make a decision within the prescribed period is deemed to constitute the making of a decision at the expiration of that period. The Respondent is therefore taken to have made a decision not to vary the original decision 30 days after the original decision was made, that is, on 6 March 2022. Understandably, the Applicant did not and could not have applied to the Tribunal until after the expiry of the 30 day period. Neither party raised the need for an extension of time, but in any event, and out of an abundance of caution, I would have no hesitation under these circumstances in granting an extension of time to 9 April 2022, should such be necessary.

8. The application was heard by videoconference on 7 December 2022. The Applicant was represented by Mr J.Semaan, of Chidiac Legal Bankstown. The Respondent was represented by Mr J Millea, a solicitor employed by the Department of Home Affairs.

9. After taking evidence and hearing submissions from the parties, the decision of the delegate dated 6 February 2022 was affirmed. The decision was delivered orally. I expressed doubt as to whether the Applicant was fully rehabilitated. I said that he had some way to go. The fact that he was still under a community corrections sentence was a significant impediment. In my view, the Applicant was vulnerable to exploitations by criminal elements, given his track record and financial circumstances.

10. On 4 January 2023, the Respondent sought written reasons. The following are my expanded written reasons.

    LEGISLATIVE BACKGROUND

11. Australia is a signatory to various international agreements seeking to minimise the risk of unlawful interference with aviation and maritime transport, and offshore natural resource facilities. The Maritime Security Act,[4] Aviation Security Act,[5] and associated regulations,[6] implement these agreements. The regulatory framework for conducting background checks, known as AusCheck, is provided by specific legislation,[7] enabling regulations to be made for each of the relevant Acts.[8]

    [4] Maritime Transport and Offshore Facilities Security Act 2003 (Cth) (‘Maritime Security Act’).

    [5] Aviation Transport Security Act 2004 (Cth) (‘Aviation Security Act’). 

    [6] Maritime Regulations; Aviation Transport Security Regulations 2005(‘Aviation Regulations’).

    [7] AusCheck Act 2007 (Cth) (‘AusCheck Act’); AusCheck Regulations 2017 (‘AusCheck Regulations’).

    [8] AusCheck Act, subsection 18(1); Aviation Act, subsection 133(1); Maritime Act, subsection 209(1).

12. The legislative scheme was amended in 2021 to strengthen provisions relating to serious crime.[9] The related regulations were amended to establish new eligibility criteria for those with an adverse criminal record needing an MSIC or the related aviation security identification card (ASIC).[10] Although not directly relevant to these proceedings, I note that further amendments were made in 2022, to permit criminal intelligence assessment in background checks.[11] This appears to be the first matter before the Tribunal under the refreshed Maritime Regulations.[12]

    [9] Transport Security Amendment (Serious Crime) Act 2021 (Cth) (‘Serious Crime Act’)

    [10]Transport Security Legislation Amendment (Serious Crime) Regulations 2021 (F2021L01145); see 2021 Explanatory Statement, Transport Security Legislation Amendment (Serious Crime) Regulations 2022 (F2022L00517; see 2022 Explanatory Statement See email dated 4 January 2023 from Respondent’s representative requesting written reasons.

The MSIC Scheme is established by Division 6.1A of the Maritime Regulations made under the Maritime Security Act. Regulation 6.07B provides definitions for Division 6.1A, including the key concept of a ‘maritime-security-relevant offence’ (MSRO), which is defined by reference to certain specified offences against Australian or foreign law included in a Table of offences in Schedule 1.

Regulation 6.07B(3) provides that a person has an adverse criminal record (ACR) if the person has been convicted of a Tier 1 offence or a Tier 2 offence; or has been convicted of and sentenced to imprisonment for a Tier 3 offence. Broadly speaking, Tier 1 offences include terrorism, treason, espionage and the like; Tier 2 offences include offences against aviation or maritime transport; and Tier 3 offences including serious generic offences against the person, sexual offences, property offences, dishonesty offences and so on.

A person sentenced to imprisonment for any of the listed offences will, by definition, have an ACR. Special approval requirements then apply. A MSIC cannot be issued to a person convicted of a Tier 1 offence, but otherwise, a person with an ACR and an operational need may receive a MSIC, if the Secretary determines that the person is not a threat to the security of maritime transport or an offshore facility. Factors such as the nature of the offence, length of the term of imprisonment imposed, and anything else that is relevant, may be considered by the Secretary.[13] 

[13] Maritime Regulations, sub-regulation 6.08F(5).

CRIMINAL RECORD

The nationally coordinated criminal history check undertaken on the Applicant discloses multiple offences relating to the theft of motor vehicles or their parts, tampering with vehicle identification numbers (VIN), and convictions for assault and the supply of prohibited drugs.[14] In 2016, he was sentenced to a period of 18 months imprisonment and in 2022, he was sentenced to 12 months imprisonment to be served by way of home detention. His record is dealt with in detail below.

[14] T10, 97-100.

EVIDENCE

The parties filed the following material:

·Applicant’s Statement of Facts Issued and Contentions (ASFIC), dated 17 August 2022;

·Evidence Bundle, filed 17 August 2022;

·Advice of Court result, filed 27 May 2022;

·Respondent’s Statement of Facts, Issues and Contention (RSFIC), dated 26 October 2022; and

·Document relevant to the decision (T-Documents), filed 22 June 2022 (141 pages).

The Tribunal heard from the Applicant and one character witness, Mr Adrian Azzopardi, his current employment supervisor.

The Applicant

The Applicant provided a detailed written statement.[15] He stated that his previous MSIC had expired in November 2021.[16] He had held a valid MSIC for almost 2 years.

[15] Evidence Bundle, T1, 1-61.

[16] Ibid, T1, 4.

The Applicant needed a MSIC so that he could continue working for Swift Transport (‘Swift’). He needed to be able to make deliveries to the port and was experiencing financial detriment because he did not have a MSIC.

He had recently established his own trucking business and to that end had purchased three trucks and two utility vehicles. He employed four or five other drivers.[17] He wanted to work independently and hoped to receive surplus work from Swift. He said that it was important that he personally held a valid MSIC. He described his need as follows:

‘It’s a big need for me, because my - sometimes my drivers don’t turn up to work.  I have to either jump on the truck and do the work they do or duties they do, which I can’t do.  That’s why I’m employing drivers, paying top dollar for them to - running my business to make me better income.  And I can succeed in like trying to pay my debts, my bills, and take some money home for my family’.[18]

[17] Transcript of proceedings, 7 December 2022, 14.

[18] Ibid.

In oral evidence, he did not dispute the information contained in his criminal record sheet. He admitted to the 2016 offences for which he was sentenced to 18 months imprisonment.

He referred to the 11 charges of dishonesty that were laid on 20 August 2021, and subsequently withdrawn in March 2022. They related to dishonest dealing with motor vehicles, including theft and vehicle tampering. The charges were withdrawn, and he pleaded guilty to a separate charge of obtaining financial advantage by deception. He maintained his innocence on the withdrawn charges.[19] He was sentenced to a 12 months community correction for the fraud offence.

[19] See T12, 108 for correspondence between his solicitor and the DPP.

At the time of the hearing, he was serving a 12 months community corrections order for the financial deception offence.

He agreed that a charge of assault and two counts of intimidating the police were laid against him on 9 May 2021. He said that these charges were subsequently withdrawn, however this cannot be verified in the materials before the Tribunal. The Respondent’s representative did not rely on these charges. I have not taken them into account in this assessment.

Ms Aboulhaf, Applicant’s wife

Ms Aboulhaf provided a witness statement dated 22 August 2022, in which she describes her relationship history with the Applicant and the impact of his incarceration in 2015.[20] They were estranged as a result of his incarceration but reconnected when he was released in September 2016. They have since formed a union and now have a family of four children. She is expecting her fifth child. The Applicant provided financial support for her child.

[20] Evidence Bundle, T2, 62-64.

She described the financial difficulties she encountered when the Applicant was incarcerated. She praised the Applicant’s commitment to supporting his family and explained how his income had dropped as a result of losing his MSIC.

Mr Azzopardi, Transport Manager, Swift Transport

Mr Azzopardi is the transport manager for Swift. He provided a witness statement dated 12 August 2022.[21]

[21] Ibid, T3, 65-68.

He has been employed by Swift for 13 years with responsibility for managing a team of nine members, including the Applicant. He said that it was important for all persons driving for Swift to have a valid MSIC. This applied equally to the Applicant. Without a MSIC, he could not enter the maritime security zone and was therefore significantly limited in the driving work he could do for Swift. He thought that the Applicant was losing up to $1200 per week.

Mr Azzopardi was aware that the Applicant had set up his own business and was supportive of his business model. In evidence he said:

‘He’s been loyal for us and we’d like to be loyal back to him.  Like I said, he’s been a great employee the last five, six years without an issue.  I understand he did have a previous criminal record, but it didn’t prevent him receiving an MSIC card prior.  So I didn’t think it would have been an issue at all’.[22]

[22] Transcript of proceedings, 7 December 2022, 5.

He was aware of the Applicant’s criminal history. He had never taken any issue with his past criminal history because the Applicant had demonstrated that he had changed. He was trustworthy and reliable. He was not a threat to national security and the company would never engage people who could pose such a risk. However, during cross-examination, it was apparent that Mr Azzopardi did not have an accurate understanding of the Applicant’s criminal record. He was, for example, unaware of the nature of the Applicant’s most recent fraud conviction.[23]

[23] Transcript of proceedings, 7 December 2022, 7.

CONSIDERATION

The Tribunal is required to consider the matter afresh and is not bound by the reasons given by the original decision-maker. It was not in dispute that the Applicant has an ACR. He was sentenced 12 months imprisonment for the 2020 deception offence, to be served by way of home detention, and therefore has an ACR.[24]

[24] See Schedule 1, Item 19, Tier 3.

OPERATIONAL NEED FOR MSIC

Does the Applicant have an operational need for an MSIC in his current employment? He is a qualified mechanic and forklift driver and has a truck drivers’ licence.

I accept the evidence of his manager, Mr Azzopardi, that the lack of an MSIC creates a significant hurdle for employment in his chosen field. Some alternative roles with Swift have been found, but it is not unlikely that the lack of a MSIC will have a significant impact on his employment with Swift. There is nothing to suggest that the Applicant’s need for an MSIC in his present role is trivial or unreasonable.

With regard to his own business, it is difficult for the Tribunal to assess whether the business is non-viable unless the Applicant personally has access to the ports. There was some discussion about this during the hearing. The Applicant said that it was not always possible to recruit drivers with MSICs, and he needed to be able to stand in if a driver was unable to work a particular shift. I accept that this is a reasonable explanation. However, I note that he established the business and purchased the trucks knowing that he did not have and might not be eligible to receive a MSIC.

On balance, I accept that the Applicant has an operational need for a MSIC, whether as an employee or as an independent operator. This matter is not disposed of on the basis that he has no operational need.

I turn to consider the question of whether the Applicant is a threat to the security of maritime transport or an offshore facility. Sub-regulation 6.08F(5) of the Maritime Regulations provides:

(5)Before approving or refusing to approve the issue of the MSIC to a person who is not eligible to be issued an MSIC only because the person's criminal record prevents him or her being issued with an MSIC, the Secretary must decide whether the person constitutes a threat to the security of maritime transport or an offshore facility by considering:

(a)the nature of the offence the person was convicted of; and

(ab) if the person was convicted of the offence before becoming the holder of an MSIC; and

(b)the length of the term of imprisonment imposed on him or her; and

(c)if he or she has served the term, or part of the term--how long it is, and his or her conduct and employment history, since he or she did so; and

(d)if the whole of the sentence was suspended--how long the sentence is, and his or her conduct and employment history, since the sentence was imposed; and

(e)anything else relevant that the Secretary knows about.

THE RELEVANT SUB-REGULATION 6.08F FACTORS

(a)  The nature of the offence the person was convicted of

I refer to the RSFIC.

11.The applicant’s criminal history information shows that the applicant was convicted of the following security-relevant offences (SROs) (T10):

Date Offence Sentence

·14 July 2016 Steal motor vehicle Imprisonment: 18 Months Commencing 01/01/2016 Concluding 30/06/2017

·14 July 2016 Steal motor vehicle Imprisonment: 18 Months Commencing 01/01/2016 Concluding 30/06/2017

·14 July 2016 Steal motor vehicle Imprisonment: 18 Months Commencing 01/01/2016 Concluding 30/06/2017

·14 July 2016 Steal motor vehicle Imprisonment: 18 Months Commencing 01/01/2016 Concluding 30/06/2017

·25 May 2016 Steal motor vehicle Imprisonment: 18 Months Commencing 01/01/2016 Concluding 30/06/2017

·14 April 2016 Knowingly possess identity plate not on correct vehicle Imprisonment: 18 Months Commencing 12/06/2015 Concluding 11/12/2016

·14 April 2016 Dishonestly possess interfered with unique identifier Imprisonment: 18 Months Commencing 12/06/2015 Concluding 11/12/2016

·14 April 2016 Goods in personal custody suspected being stolen (not m/v) Imprisonment: 6 Months Commencing 12/06/2015 Concluding 11/12/2015

·14 April 2016 Goods suspected stolen in/on premises (m/v) Imprisonment: 6 Months Commencing 12/06/2015 Concluding 11/12/2015

·14 April 2016 Knowingly possess identity plate not on correct vehicle Imprisonment: 18 Months Commencing 12/06/2015 Concluding 11/12/2016

·14 April 2016 Dishonestly possess interfered with unique identifier Imprisonment: 18 Months Commencing 12/06/2015 Concluding 11/12/2016 T2 26

·14 April 2016 Goods suspected stolen in/on premises (m/v) Imprisonment: 6 Months Commencing 12/06/2015 Concluding 11/12/2015

·14 April 2016 Dishonestly possess interfered with unique identifier Imprisonment: 18 Months Commencing 12/06/2015 Concluding 11/12/2016

·14 April 2016 Dishonestly interfere/copy unique identifier Imprisonment:18 Months Commencing 12/06/2015 Concluding 11/12/2016

·14 April 2016 Dishonestly possess interfered with unique identifier Imprisonment: 18 Months Commencing 12/06/2015 Concluding 11/12/2016

·14 April 2016 Dishonestly possess interfered with unique identifier Imprisonment: 18 Months Commencing 12/06/2015 Concluding 11/12/2016 14 April 2016 Goods in personal custody suspected being stolen (m/v) Imprisonment: 6 Months Commencing 12/06/2015 Concluding 11/12/2015

·30 September 2010 Supply prohibited drugs on an ongoing basis Periodic Detention: 27 months Commencing 08/10/2010 Concluding 07/01/2013

12.According to the document cited at T20, the applicant’s 14 July 2016 convictions were the result of the applicant stealing two trucks and two excavators.

13.According to the document cited at T20, the applicant declares their 25 May 2016 offence was the result of the applicant stealing a vehicle to sell for parts to pay for their upcoming wedding.

14.These convictions were not classified as security-relevant in accordance with Schedule 1 of the Regulations prior to 23 August 2021. However, the offences were added to Schedule 1 on 23 August 2021 and are now SROs. 

15.According to the document cited at T7.6, the applicant’s 14 April 2016 convictions were the result of the applicant altering odometers and rebirthing a number of stolen vehicles.

16.According to the document cited at T20, the applicant’s 30 September 2010 convictions was the result of supplying illicit drugs to an undercover police officer. The applicant claims to have committed this offence for financial gain because they were unemployed at the time.

17.These offences are SROs in accordance with Items 3.14, 3.18 and 3.19 of Schedule 1 of the Regulations.

1. On 2 March 2022, the Applicant pleaded guilty to dishonestly obtaining a financial advantage by deception, an offence punishable with a maximum of 10 years imprisonment.[25] The amount thus obtained was $33,000. On 28 July 2022, he was sentenced to imprisonment for 12 months to be served by ‘home detention’. He was serving this sentence and wearing an ankle bracelet when he appeared by videoconference before the Tribunal.

   [25] Crimes Act 1900 (NSW). section 192E(1)(b):

   192E Fraud (1) A person who, by any deception, dishonestly— … (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty—Imprisonment for 10 years.

   (ab) If the person was convicted of the offence before becoming the holder of an MSIC

2. At the time of his most recent offending, the Applicant was the holder of a MSIC. I note however that most of his offending occurred before he became the holder of a MSIC.

3. On 16 November 2018, the Applicant was granted a MSIC, subject to expiration no later than 30 June 2019. The delegate identified several MSRO, including drug supply (2010), possession of vehicle ID plates (2016), and dishonest interference with unique motor vehicle identifiers. The delegate noted that two and a half years had elapsed since the most recent offending, and that the Applicant had undertaken and completed various rehabilitation programs, including EQUIPS Foundation, drug and alcohol, and anger management programs since his 2016 convictions. The delegate concluded:

   ‘Despite the serious nature of the applicant’s maritime-security-relevant offences, given the time elapsed since his most recent convictions and his efforts to rehabilitate, I have decided to approve the issue of an MSIC to the applicant on the condition that the expiry date not exceed 30 June 2019’. [26]

   [26] T19, 135.

4. The MSIC was reissued on 26 November 2019.[27] The Respondent took into account previous information provided by the Applicant and that he had not reoffended.

   ‘Given the length of time since the applicant’s maritime-security-relevant convictions and that their previous MSIC was held without incident, I do not consider that the applicant constitutes a threat to the security of maritime transport or offshore facilities. I have therefore decided to approve the issue of an MSIC to Mr Ahmad’.[28]

   [27] T18, 130.

   [28] T18, 130.

5. The Respondent argued that in making the decision on 6 February 2022[29] (as well as the later decision of 7 April 2022),[30] it had the benefit of the court transcripts[31] in relation to the first 2016 dishonesty offences.

   [29] T5, 56-64.

   [30] T8, 89-95.

   [31] T7.6, 77-84.

6. The Respondent contends the court transcripts show much greater culpability of the Applicant in the commission of the first 2016 dishonesty offences than disclosed in the Applicant’s Statutory Declaration on which it had relied to make the first two decisions to issue the MSICs to the Applicant.[32]

   [32] T20, 136.

7. Since the Respondent’s last decision to approve the issue of a MSIC, the Applicant has committed a further offence involving dishonesty (2020 dishonesty offence) which is a maritime-relevant-security offence.

   (b)  The length of the term of imprisonment imposed on him or her

8. In 2016, the Applicant was sentenced to 18 months imprisonment, with a non-parole period of 15 months and released on parole on 30 September 2016.[33] There is a gap in his offending between 2016 and 2020.

   [33] T5, 62.

9. The Applicant is currently serving 12 months home detention for his most recent 2020 dishonesty offence. The gist of the offence was that a vehicle was sold on the basis that it was a higher specification model that it was. The buyer paid substantially more than the vehicle was worth and is out of pocket. The Applicant did not consider that he was under any obligation to compensate the victim for his loss.

   (e) anything else relevant that the Secretary knows about

10. Neither the Maritime Security Act nor the Maritime Regulations posit a requirement of good character as such. However, there is much to be said for the view that a person who is not of good character should not hold a MSIC or a ASIC. Certainly, the Applicant would be hard-pressed to satisfy a requirement of good character at the present time.

11. Although it is not specifically ruled out by the Maritime Regulations, it must be an exceptional case to justify the grant of a MSIC to a person who is currently serving a sentence of imprisonment for a Tier 2 or 3 offence. Of course, a person convicted of a Tier 1 offence is not entitled to receive a MSIC at all. I cannot see that there are exceptional circumstances of need in the circumstances of the present case.

12. I find the Applicant’s most recent offending very disturbing. It was not in dispute that he deceived the victim to part with $33,000 for a ‘rebadged’ motor vehicle and that this car has been impounded by the police. The Applicant has made no offer to reimburse the victim, nor did he consider that he had any obligation to do so. He appeared unrepentant for the deception. The Tribunal was distinctly unimpressed by the suggestions that the purchaser may have recourse to remedies such as the Criminal Compensation scheme or civil litigation. The attitude of the Applicant to this offence does not cast him in a positive light.

13. The crime-free period required for expungement of a conviction in New South Wales is 10 years.[34] As noted by the Respondent, none of the Applicant’s convictions are spent. The Applicant’s most recent conviction will not be spent until 2 March 2032.

    [34] Criminal Records Act1991 (NSW), section 9.

14. In deciding the against the application on 6 February 2022, the delegate stated:

    ‘The applicant’s criminal convictions from 2007 to 2016 indicate a pattern of behaviour demonstrating a clear disrespect for the law. I am concerned that this attitude could lead to the direct or indirect facilitation of unlawful interference, or the use of the applicant’s access to facilitate serious crime.

    The applicant’s extensive offending relied upon the complicity of other actors and a degree of organisation and coordination. This behaviour indicates a significant risk for the applicant playing the role of a trusted insider’.[35]

    [35] T5, 63.

15. I agree with the delegate.

16. The reference to the ‘complicity of other actors’ and ‘a degree of organisation’ is important. In my view, a decisive factor relates to the Applicant’s vulnerability to exploitation. He is the sole breadwinner for a growing family, with four children and one on the way. He has set up a business and carries a heavy debt burden. He has a very poor criminal record and is currently serving out his most recent sentence for fraud. Within this context, his past associations are highly relevant. He has engaged in organised criminal behaviour requiring connections with other criminals associated with stealing and rebirthing motor vehicles. In my view, he is highly susceptible to exploitation by organised criminal elements operating within the ports.

17. Under these circumstances, the Tribunal cannot conclude that he is not a threat to the security of maritime transport or an offshore facility.

18. This decision is not taken lightly, as the burden of being the sole breadwinner for his family is recognised by the Tribunal. No decision that tranches on a person’s chosen field of employment is ever taken lightly. Some comfort may be taken from the fact that the Applicant possesses transferable skills, for example, as a mechanic and a forklift driver, and from his overall work ethic. Nor is it clear that the lack of an MSIC will be the death of his fledgling trucking business. He may be able to reorient the business away from the ports. But the public interest in the security of the maritime transport industry must prevail over these individual difficulties, which are largely self-inflicted.

    CONCLUSION

19. For the above reasons, I affirm the decision under review, being the decision of the delegate dated 6 February 2022 to refuse to grant a MSIC to the Applicant.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member.

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Associate

Dated: 1 February 2023

Date(s) of hearing:	7 December 2022
Solicitors for the Applicant:	J. Semaan, Chidiac Legal
Solicitors for the Respondent:	J. Millea, Secretary, Department of Home Affairs