Dhungana v NSW Police

[2008] NSWADT 218

CITATION:	Dhungana v NSW Police [2008] NSWADT 218
DIVISION:	General Division
PARTIES:	APPLICANT Bharat Prasad Dhungana RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	083149
HEARING DATES:	11 and 16 July 2008
SUBMISSIONS CLOSED:	16 July 2008
DATE OF DECISION:	8 August 2008
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Security industry licence - revocation/refusal of licence
LEGISLATION CITED:	Security Industry Act 1997 Security Industry Regulation 2007 Administrative Decisions Tribunal Act 1997
CASES CITED:	Joyce v Commissioner of Police, NSW Police [2000] NSWADT 17 Joyce v Commissioner of Police, NSW Police [2000] NSWADTAP 17 Testoni v Commissioner of Police, NSW Police [2003] NSWADT 29 Dhingra v Commissioner of Police, NSW Police [2006] NSWADT 7 Winika v Commissioner of Police, NSW Police [2001] NSWADT 8 Bourke v NSW Commissioner of Police [1998] NSWADT 1
REPRESENTATION:	In person S Sheather
ORDERS:	The decisions under review are affirmed

1 This is an application by Bharat Dhungana for the review of decisions of the Commissioner of Police made under the Security Industry Act 1997 (‘the SI Act’) to refuse to issue Mr Dhungana with a Master Licence and to revoke Mr Dhungana’s Class 1ABCEG 2B licence on the ground that he has been convicted of an offence involving fraud or dishonesty.

Background

2 Mr Dhungana is aged 46. He was born in Nepal, migrated to Australia and became an Australian citizen on 27 June 1984. He has been a ‘NAATI’ (National Accreditation Authority for Translators and Interpreters Ltd) recognised interpreter and translator in the English and Nepalese languages since 28 August 1998 and 18 July 2000 respectively.

3 On 5 April 2006, Mr Dhungana was issued with a Class 1ABC licence under the SI Act. This was converted to a Class 1ABCEG 2B licence on 13 December 2007, with an expiry date of 1 June 2011. On 29 January 2008, Mr Dhungana applied for an ‘Individual Master Licence’ under the SI Act. In the application, he stated that on 8 June 2006 he had been found guilty of the offence of “Providing immigration assistance by assisting in filling forms”.

4 On 8 June 2006, Mr Dhungana was convicted of four offences at the Downing Centre Local Court:

(1) “Receive fee for immigration assistance when not registered” pursuant to s 281(1) of the Migration Act 1958 (Cth)

(2) & (3) Two counts of “Possession of a visa not granted to the person” pursuant to s 236(2) of the Migration Act 1958 (Cth)

(4) “Possession of passport issued to someone else” pursuant to s 9A(1)(d) of the Passports Act 1938 (Cth)

5 Mr Dhungana was convicted of the offences without passing sentence, pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), on his entering into a $500 three year good behaviour bond and on his making reparation of $3,200 in respect of the first offence.

6 On 25 February 2008, Mr Dhungana’s application for a Master Licence was refused and, on 3 March 2008, a delegate of the Commissioner revoked Mr Dhungana’s Class 1ABCEG 2B security licence, both decisions being made on the ground that Mr Dhungana has been found guilty of an offence involving fraud or dishonesty.

7 On 20 March 2008, Mr Dhungana sought an internal review of these decisions. On 16 April 2008, after an internal review, the decisions were affirmed. On 7 May 2008, Mr Dhungana applied to the Tribunal for a review of this decision.

8 At the hearing on 11 July 2008, Mr Sheather, for the Commissioner, sought an adjournment to enable the production of further evidence from the Office of the Commonwealth Director of Public Prosecutions. On being satisfied by Mr Sheather that he had previously taken reasonable steps to obtain this evidence, I agreed to an adjournment until 16 July 2008, when the hearing was concluded.

The Relevant Legislation

9 Section 16(1) of the SI Act provides relevantly:

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or

(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or ...

10 Section 26(1A) states that the Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by the Act to be refused.

11 Clause 18(1)(d) of the Security Industry Regulation 2007(‘the SI Regulation’) states relevantly:

(1) Prescribed offences: section 16(1) (a) and (b) For the purposes of section 16(1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:
(a) ...

(b) ...

(c) ...

(d) An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more.

...

12 Section 15(1)(a) of the SI Act provides that the Commissioner must refuse to grant a licence if satisfied that the applicant “is not a fit and proper person to hold the class of licence sought”. Section 15(3) states: “The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest.”

13 Pursuant to section 29(1) of the SI Act, a person may apply to the Tribunal for a review of a decision to refuse or revoke a licence.

The Commissioner’s evidence and submissions

14 Mr Sheather said the Commissioner did not become aware of Mr Dhungana’s convictions until he applied for a Master Licence because Mr Dhungana was convicted without passing sentence and the convictions did not appear on his NSW record. Mr Sheather submitted that the offences of which Mr Dhungana was convicted, which carried a maximum penalty of 10 years imprisonment and/or a fine of $1,000, involved fraud and dishonesty, so that revocation of Mr Dhungana’s licence and refusal of a Master Licence was mandatory. Mr Sheather referred to the relevant case law, which is discussed below.

15 Mr Sheather provided the Tribunal with a copy of the Court Attendance Notices outlining the criminal charges facing Mr Dhungana in 2006, a copy of the Fact Sheet outlining the allegations relied upon to support the charges, and a copy of the transcript of Magistrate Dare’s findings at the conclusion of the Local Court hearing.

16 In addition, Mr Sheather provided the Tribunal with confidential material, namely the affidavit sworn by a police officer to support the warrant to search Mr Dhungana’s premises executed on 4 December 2003. Following a short closed hearing in which I heard confidential submissions from Mr Sheather in the absence of Mr Dhungana, and on being satisfied that it was desirable to do so by reason of the confidential nature of the content of the affidavit, I made an order pursuant to s 75(2) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) prohibiting disclosure or publication of the contents of the affidavit to any person. I did, however, inform Mr Dhungana that an affidavit to support the issue of the search warrant had been provided to me in confidence by the Commissioner.

17 Mr Sheather referred to Magistrate Dare’s comments concerning two principal prosecution witnesses, whom the Magistrate found “to be persons whose word I am prepared to accept”. By contrast, the Magistrate said of Mr Dhungana’s version of the events in question that it “strains the bounds of credulity. It gathers together a mixture of fact and what I take to be fiction, to come up with a plausible but misleading story”. The Magistrate found that Mr Dhungana, who was not a registered migration agent, provided migration assistance to Mrs Vikila for which he sought and obtained payment. Mr Dhungana knowingly had in his possession visas belonging to Mrs Vikila and her adoptive daughter, Eileen Kauyaca, in contravention of the Migration Act 1958 (Cth), and also the Australian passport of Mrs Vikila’s husband, Mr Dujmovic, in contravention of the Passports Act 1938 (Cth).

18 Mr Sheather submitted that Mr Dhungana’s actions amounted to fraudulent and dishonest behaviour. The Magistrate was not prepared to accept Mr Dhungana’s evidence about his dealings in the matter and found the charges proved beyond reasonable doubt. If the Tribunal agrees that Mr Dhungana’s actions amounted to fraudulent and dishonest behaviour, revocation/refusal are mandatory.

19 Mr Sheather said the Commissioner also now relies on the further, more general grounds that Mr Dhungana is not a fit and proper person to hold the licences and that it is not in the public interest for him to hold such licences. Mr Sheather submitted that having been convicted of four Commonwealth offences, Mr Dhungana should not be considered a fit and proper person to hold such licences. Mr Dhungana was not honest in his dealings with Mrs Vikila and Mr Dujmovic and took advantage of them. A person holding such SI Act licences needs to be trustworthy and, in particular, upright and honest in his dealings with the public. Moreover, the Police with whom he would have dealings need to have faith in him. The community would not be convinced that Mr Dhungana is such a person.

20 In relation to the public interest, Mr Sheather noted that the interests of the whole community must be considered. Mr Dhungana’s convictions relate to his dealings with members of the public. Mr Sheather submitted that the Tribunal should not be satisfied that Mr Dhungana would act in an honest and ethical way as a security guard, and it was not, therefore, in the public interest that he hold the licences.

21 Mr Sheather provided confidential written submissions concerned with the Tribunal having regard to the contents of the confidential affidavit in making its findings in relation to whether Mr Dhungana is a fit and proper person to hold the Security Industry licences and whether it is contrary to the public interest for him to do so.

Mr Dhungana’s evidence and submissions

22 Mr Dhungana submitted that there was no fraud or dishonesty involved in the offences of which he was convicted. He did not pretend to be something other than what he is, and did not knowingly try to gain an advantage for himself in the actions that were the subject of the court proceedings. He always tries to act in a righteous way.

23 Mr Dhungana spoke of his education at St Andrews Cathedral School and his service for a period of seven years in the University of Sydney Army Reserve. He has an Associate Diploma in Travel and Tourism and a Certificate IV in Business (Small Business Management). He spoke of his work as an interpreter and translator for a range of agencies, including the Community Relations Commission and Health Languages Services, for both of which he has had police checks. He is also still employed as a casual interpreter and translator by the Department of Immigration and Citizenship. Mr Dhungana said the Australian College of Languages has recently appointed him to a casual position as a liaison officer for up to 6,000 Bhutanese whom Australia has agreed to accept as refugees.

24 Mr Dhungana said he wants to clear his name and establish that he is a fit and proper person to hold a Security Industry licence. While the reason for his holding a Master Licence no longer exists, in so far as the opportunity to take on a security contract previously offered to him has now passed, he still wants to undertake work in the Security Industry and seeks the return of his licences and the issue of a Master Licence. In the past, he has never violated the SI Act or SI Regulation while undertaking such work.

25 With his Application for an Individual Master Licence, Mr Dhungana provided a copy of his Certificate of Membership of the Institute of Security Executives Inc, of his professional indemnity insurance, of his Australian Business Number registration, and two references attesting to his being honest and reliable and a fit and proper person to hold a Master Licence. Mr Dhungana said that although not referred to in their references, his referees are aware of his convictions and available to give evidence by phone.

Discussion

(1) Were the Commissioner’s decisions mandated?

26 As stated above, the prescribed offences referred to in cl 18(1)(d) of the SI Regulation include offences “involving fraud, dishonesty or stealing” in respect of which the penalty is imprisonment for three months or more. There is no question that the offences of which Mr Dhungana was found guilty carried sentences exceeding three months imprisonment. The relevant question, therefore, is whether at least one of those offences involved fraud, dishonesty or stealing.

27 As noted by Deputy President Hennessy in Joyce v Commissioner of Police, NSW Police [2000] NSWADT 17, at paragraph 10, the use of the word ‘involving’ in cl 18(1)(d) appears to have been deliberate. As the Appeal Panel agreed in its decision on the appeal in that matter (Joyce v Commissioner of Police, NSW Police [2000] NSWADTAP 17, at paragraph 11), there is no need for fraud, dishonesty or stealing to be a legal requirement of an offence for the offence to involve such characteristics. It is sufficient that there is a finding of fraud, dishonesty or stealing in the ordinary sense of the words. (See also Testoni v Commissioner of Police, NSW Police [2003] NSWADT 29; Dhingra v Commissioner of Police, NSW Police [2006] NSWADT 7.)

28 Turning to the offences of which Mr Dhungana was convicted, did those offences ‘involve’, relevantly, fraud or dishonesty? As Deputy President Hennessy noted in Winika v Commissioner of Police, NSW Police [2001] NSWADT 8, at paragraph 12, “[t]he words ‘fraud, dishonesty or stealing’ must be interpreted according to their ordinary meaning and the purposes of the Act.” I note, in particular, that ‘dishonesty’ is defined in the Macquarie Concise Dictionary (3rd edition) as: “1. Lack of honesty; a disposition to lie, cheat or steal. 2. A dishonest act, such as fraud or theft.” In the Concise Oxford Dictionary (7th edition), ‘dishonesty’ is defined as “lack of honesty; deceitfulness, fraud”.

29 I also note that the Tribunal is only able to satisfy itself as to the objective facts on which the Commissioner relied: Bourke v NSW Commissioner of Police [1998] NSWADT 1, at page 5; reaffirmed in Joyce v Commissioner of Police, NSW Police [2000] NSWADTAP 17, at paragraph 28. Essentially, the Tribunal cannot go behind the conviction and question the facts found by the court that were material to its conclusion.

30 On 8 June 2006, Mr Dhungana was convicted of four offences by Magistrate Dare in the Downing Centre Local Court. The first offence, that of receiving a fee for migration assistance, contrary to s 281(1) of the Migration Act 1958 (Cth), was in relation to migration assistance he provided to Mrs Vikila between 1 June 2000 and 30 September 2001. The second and third offences were those of “possession of a visa not granted to the person” without reasonable excuse, on 4 December 2003, contrary to s 236(2) of the Migration Act. The fourth offence was that of possessing a passport not issued to him without reasonable excuse, on 4 December 2003, contrary to s 9A(1) of the Passports Act 1938 in force at the time.

31 As Mr Sheather has pointed out, the Magistrate said of Mr Dhungana’s version of the events in question that it “strains the bounds of credulity. It gathers together a mixture of fact and what I take to be fiction, to come up with a plausible but misleading story” (transcript page 14). By contrast, the Magistrate formed the view that Mrs Vikila and Mr Dujmovic were “doing their best to be truthful, honest and reliable even if not always accurate” (transcript page 14). He found “nothing inherently implausible in what either had to say” (transcript page 15).

32 In my view, it is clear from the Magistrate’s findings that he considered Mr Dhungana’s version of events to involve lying and, therefore, dishonesty. It is also implicit in the Magistrate’s discussion of the facts (transcript page 3) that, in relation to the first of the four charges, he considered, at the very least, that Mr Dhungana had mislead Mrs Vikila into paying him a fee for immigration assistance to which he was not entitled. The Magistrate’s findings on these matters are obviously material to the convictions, including as to the absence of any reasonable excuse which could have absolved Mr Dhungana from the second, third and fourth charges. I note that Mr Dhungana denies any fraud or dishonesty. However, for the reasons stated above, the Tribunal may not look behind the Magistrate’s findings on material questions of fact.

33 In my view, the Magistrate’s implicit findings of dishonesty colour the offences of which Mr Dhungana was convicted as, in broad terms, ones involving dishonesty. Thus, pursuant to the provisions of the SI Act set out above (ss 16(1) and 26(1A) of the SI Act and cl 18(1)(d) of the SI Regulation), the Commissioner was subject to a mandatory requirement that he refuse Mr Dhungana’s application for a Master Licence and revoke his Class 1ABCEG 2B licence.

(2) Fit and proper person, the public interest?

34 At the adjourned hearing, and without prior notice, the Commissioner sought to rely on further grounds for the refusal/revocation of the licences: that Mr Dhungana is not a fit and proper person to hold such licences and that it would be contrary to the public interest for him to do so. The relevant provisions of the SI Act, ss 15(1)(a) and 15(3), are referred to above.

35 In the light of my finding that the Commissioner was subject to a mandatory requirement that he refuse Mr Dhungana’s application for a Master Licence and revoke his Class 1ABCEG 2B licence, it is not necessary to me to decide whether the refusal/revocation of the licences was also justified on the grounds that Mr Dhungana is not a fit and proper person to hold such licences and/or that it would be contrary to the public interest for him to do so.

36 Moreover, in my view, it would be unfair to decide these issues in circumstances where, prior to the adjourned hearing, Mr Dhungana was unaware that these grounds would also be relied upon by the Commissioner to justify his decisions and so did not have a proper opportunity to provide further evidence and submissions. I note that the Commissioner’s confidential written submissions were in relation to these issues, about which I make no findings.

Decision

37 The decisions under review are affirmed.