Donovan and Secretary, Department of Home Affairs
[2025] ARTA 803
•11 June 2025
Donovan and Secretary, Department of Home Affairs [2025] ARTA 803 (11 June 2025)
Applicant/s: James Donovan, also known as Nicholas James Donovan and Raj Bineshwar
Respondent: Secretary, Department of Home Affairs
Tribunal Number: 2024/3729
Tribunal:Senior Member M Harrowell
Place:Sydney
Date:11 June 2025
Decision:The decision under review is varied by deleting the conditions concerning obtaining a psychiatrist report and providing a copy of that report to the respondent.
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Senior Member M HarrowellCatchwords
AVIATION SECURITY – Aviation Transport Security Act 2004 – adverse criminal record – relevant considerations in granting permission to issue an Aviation Security Identification Card under cl 6.29 of the Aviation Transport Security Regulations 2005– whether risk of unlawful interference with aviation– power to impose conditions – appropriateness of condition requiring psychiatric report –The decision under review is varied by deleting the conditions concerning obtaining a psychiatrist report and providing a copy of that report to the respondent.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (repealed)
Administrative Review Tribunal Act 2024 (Cth)
Aviation Transport Security Act 2004 (Cth)
Aviation Transport Security Regulations 2005 (Cth)
Maritime Transport and Offshore Facilities Security Act 2003 (Cth)
Maritime Transport and Offshore Facilities Security Regulations 2003 (Cth)Cases
Ahmad and Secretary, Department of Home Affairs [2022] AATA 4779
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; 76 ALJR 828
Maksimovic and Secretary, Department of Infrastructure and Regional Development [2014] AATA 96
Townley and Secretary, Department of Infrastructure and Regional Development [2016] AATA 311Travers and Secretary, Department of Transport and Regional Services [2007] AATA 1797
Statement of Reasons
INTRODUCTION
By application dated 24 February 2024 (2024 ASIC application), the applicant sought approval from the respondent to be issued with a ‘Job Ready’ ASIC under clause 6.29 of the Aviation Transport Security Regulations 2005 (Cth) (Regulations).
An “ASIC” is an Airport Security Identification Card, necessary to access regulated areas at airports across Australia.
On 18 April 2024, a delegate of the respondent made a decision “to approve the issue of a ‘Job Ready’ ASIC” subject to conditions (April decision). Those conditions (Conditions) were:
The ASIC may only be issued to you having complied with the following conditions:
·That prior to any ASIC being issued to the applicant, you must provide a report from a Psychiatrist, registered by the Royal Australian and New Zealand College of Psychiatrists (RANZCP), stating that taking into account of the ACIC criminal history report dated 16 January 2024 and 2 x court transcripts a transcript of proceedings for The Queen v Nicholas James Donovan, dated 5 March 2015 (attached hereto) that the applicant will not pose a risk or threat to the safety of people, property or the unlawful interference with the security of the aviation industry, if they are issued an ASIC.·
· You will provide the above-mentioned document, referred to herein to the Secretary of the Department of Home Affairs:
…
On or about 19 April 2024 the applicant sought internal review (internal review application) by the respondent of the April decision as permitted by clause 8.01A of the Regulations. In that application, the applicant sought removal of the Conditions. However, the respondent did not notify the applicant of the respondent’s decision about the internal review application within the 30 day period prescribed by the Regulations. Consequently, pursuant to clause 8.01B of the Regulations, the application for reconsideration was taken to be refused (Refusal decision).
Although the respondent did not make any decision within the required time, it had, before the 30 day period expired, been preparing a draft statement of reasons purporting to confirm the April decision.
Pursuant to clause 8.02(3) of the Regulations, on 30 May 2024 the applicant applied to the Administrative Appeals Tribunal (Tribunal application) for review of the Refusal decision. At that time, the application was made to the former Administrative Appeal Tribunal under the Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act).
Following repeal of the AAT Act and the enactment of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), this Tribunal was authorised to determine the Tribunal application.
These reasons relate to that determination.
LEGISLATIVE BACKGROUND
It is convenient to first set out the legislative framework applicable to the issue of an ASIC in order to understand how these proceedings came about.
ASICs may be issued by an “issuing body” under clause 6.28 of the Regulations. This clause provides:
6.28 ASICs—issue
(1) Subject to subregulations (3), (4), (4A) and (4D) and regulations 6.29, 6.31 and 6.35, an issuing body may issue an ASIC to a person only if:
(a) the person has an operational need for an ASIC; and
(b) the issuing body is satisfied of the person’s identity, after verifying the person’s identity in accordance with regulation 6.27AB; and
(c) the issuing body is satisfied that the person is not an unlawful non-citizen; and
(d) the issuing body has received a notice from the Secretary AGD stating that:
(i) the Secretary AGD has conducted an assessment under the AusCheck scheme to decide if the person has an adverse criminal record; and
(ii) based on the criminal history, the person does not have an adverse criminal record; and
(e) the issuing body has been notified in writing that a security assessment of the person has been made, and:
(i) the assessment was not adverse; or
(ii) if the assessment was qualified—the issuing body has received a notice from the Secretary that an ASIC may be issued because the person is not a threat to aviation security; and
(ea) the issuing body has been notified in writing by the Secretary that the Department has not been given an adverse criminal intelligence assessment that indicates the person issuing the assessment reasonably believes that preventing the person proposed to be issued an ASIC from holding an ASIC is necessary or desirable to prevent the use of aviation in connection with serious crime; and
(f) the person is not disqualified under regulation 6.48 from holding an ASIC.
Clause 6.01 defines an issuing body as follows:
issuing body means a person or agency:
(a) that is authorised to issue ASICs; or
(b) that is a transitional issuing body.
Relevant to the present dispute, the person to whom it is proposed to issue an ASIC under clause 6.28:
(a)must have an “operational need”; and
(b)must not have an “adverse criminal record”.
Operational need is defined in clause 6.01(1) of the Regulations.
An adverse criminal record is defined in clause 6.01(2) as follows:
(2) A person has an adverse criminal record if the person:
(a) has been convicted of a tier 1 offence or a tier 2 offence; or
(b) has been convicted of, and sentenced to imprisonment for, a tier 3 offence.
Schedule 1 of the Regulations sets out what are tier 1, tier 2 and tier 3 offences which, collectively, are defined as aviation-security-relevant offences. In the present case, the relevant offence was an assault causing grievous bodily harm, a tier 3 offence of which the applicant was convicted on 5 March 2015.
Where an applicant for an ASIC has an adverse criminal record, permission is required from the respondent before an ASIC can be issued. An application for permission is made under clause 6.29 of the Regulations which provides:
6.29 ASICs—application to Secretary if person has adverse criminal record or is disqualified
(1) An issuing body or a person may apply to the Secretary, in writing, for permission for an ASIC to be issued to the person if:
(a) the person is not eligible to be issued an ASIC because he or she:
(i) has an adverse criminal record; or
(ii) is disqualified under regulation 6.48 from holding an ASIC; and
(b) the only other reason (if any) the person is not eligible is that the person does not have an operational need for an ASIC; and
(c) the person has not been convicted of a tier 1 offence.
Note: If the person does not have an operational need for an ASIC, an ASIC must not be issued until the person has an operational need (see subregulation (7)).
Where such an application is made, the Secretary may request further information in respect of the application. Thereafter, as provided in clause 6.29(3)(a) of the Regulations, the Secretary must approve or refuse to approve the issuing of an ASIC.
In deciding whether to approve or refuse an application involving a person who has an adverse criminal record, clause 6.29(5) of the Regulations provides:
(5) Before approving or refusing to approve the issue of the ASIC to a person who is not eligible to be issued an ASIC only because the person’s adverse criminal record prevents him or her being issued with an ASIC, the Secretary must consider:
(a) the nature of the offence the person was convicted of; 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.
If the Secretary determines to give approval, such approval may be subject to conditions: Regulation clause 6.29(7).
Where approval is given under clause 6.29, but the person in question does not then have an operational need for an ASIC, the ASIC must not be issued until that person has an operational need for an ASIC: Regulation clause 6.29(7).
The Regulations are made under the Aviation Transport Security Act 2004 (Cth) (Act). The purposes of the Act are set out in sections 3 and 4, the main purpose being to “safeguard against unlawful interference with aviation”: Act s 3(1).
Unlawful interference with aviation is defined in s 10 of the Act as follows:
10 Meaning of unlawful interference with aviation
(1) Any of the following done, or attempted to be done, without lawful authority is an unlawful interference with aviation:
(a) taking control of an aircraft by force, or threat of force, or any other form of intimidation or by any trick or false pretence;
(b) destroying an aircraft that is in service;
(c) causing damage to an aircraft that is in service that puts the safety of the aircraft, or any person on board or outside the aircraft, at risk; (d) doing anything on board an aircraft that is in service that puts the safety of the aircraft, or any person on board or outside the aircraft, at risk;
(e) placing, or causing to be placed, on board an aircraft that is in service anything that puts the safety of the aircraft, or any person on board or outside the aircraft, at risk;
(f) putting the safety of aircraft at risk by interfering with, damaging or destroying air navigation facilities;
(g) putting the safety of an aircraft at risk by communicating false or misleading information;
(h) committing an act at an airport, or causing any interference or damage, that puts the safe operation of the airport, or the safety of any person at the airport, at risk.
(2) However, unlawful interference with aviation does not include lawful advocacy, protest, dissent or industrial action that does not result in, or contribute to, an action of a kind mentioned in paragraphs (1)(a) to (h).
THE DEPARTMENT DECISIONS
As noted above, a delegate of the Secretary initially made the April decision. Thereafter, the request for internal review of the April decision was taken to be refused because the request for internal review was not completed in the specified time.
However, a draft decision had been prepared in about May 2024 (May decision) which was sent to the applicant by email dated 22 May 2024: TB 153-183. That draft decision reflected a view that the April decision should be affirmed.
In the April decision, the following findings were made in respect of the matters which are required to be considered pursuant to clause 6.29(5) of the Regulations.
As to his conviction and any subsequent criminal conduct:
(a)the grievous bodily harm offence is a “security-relevant offence (SRO) in accordance with Tier 3 Item 3 of Schedule 1 of the Regulations”; [1]
(b)the applicant was convicted and sentenced to a term of 3 years imprisonment which was to be suspended after serving 12 months. The applicant was released from prison on 22 February 2016, time spent in custody in 2012, prior to his conviction, counting towards the 12 month served;
(c)after being release from prison, the applicant has not been convicted of any further disclosable offences;
(d)the applicant was not required to attend counselling and no other conditions were attached to his sentence or release from prison.
[1] TB 24 para 4.1.1.8
As to his subsequent employment and conduct generally:
(a)the applicant previously held a “job ready ASIC”. This certificate is found at TB 113 and was issued on 1 April 2022 (2022 job ready ASIC) with the “Background Check Expiry” being 29 February 2024.
(b)The applicant stated he gained employment at Canberra and Goulburn airports, working there from about April 2022 until March 2023 when he suffered health issues. However, there was conflicting information concerning commencement date and the date of resignation. Reference was made in the April decision to a character reference provided by a Mr Paul (TB 241) indicating the applicant commenced work with the company known as “Corporate Air” from 2021. [2] Of the applicant’s claim, the April decision states the claim of working for 12 months is “in contradiction to the character reference provided by Mr Paul, AMO manager, Corporate Air, Link Airways”. [3]
(c)The applicant refused to provide an updated resume when requested to do so. However, the April decision does indicate that further information concerning employment history was provided, the applicant referring the Department to a resume he provided in 2022.[4]
(d)The applicant has suffered health issues both before and after the 2022 job ready ASIC was issued.
(e)The “applicant threatened the Delegate with legal action if they make enquiries with the former employer Corporate Air due to wages dispute”, the applicant asserting he had been working “in Goulburn most of the times” and “also worked in Brisbane Airport and Canberra Airport on Engineering Trainee duties”.[5]
[2] TB 26 paragraph 4.1.4.6
[3] TB 26 paragraph 4.1.4.8
[4] TB 26 paragraph 4.1.4.11
[5] TB 27 paragraph 4.1.4.14
As to the date when he ceased employment, I note (as recorded below) the applicant’s resignation from Corporate Air in fact took effect on 16 February 2023.
In respect of “Anything else relevant the Secretary knows about”:
(a)the applicant held an “unconditional discretionary ASIC” in 2022 (2022 ASIC). The decision on 1 April 2022 to give permission under clause 6.29 for the issue of the ASIC, including the findings in respect of clause 6.29(5) of the Regulations is found at TB233-238.
(b)The applicant returned the ASIC on 13 July 2023 to Veritas Engineering (Veritas), being the same day Veritas requested cancellation. The 2022 ASIC was cancelled on this day.
(c)The applicant “was well aware of the need to return their ASIC due to no operational need but failed to do so within one month of their resignation”. [6]
(d)Three character references provided by the applicant were all favourable to him and constitute observations of the applicant in “professional settings”.
(e)Requests for additional information including a recent criminal history check, clarification on the applicant’s employment history (including a current resume), clarification on the applicant’s study qualification and information relating to job roles the applicant intends to reply for, were met with a response that the Delegate was harassing the applicant and making unreasonable demands. This was despite the fact that the same information had been provided by the applicant in respect of the 2022 job ready ASIC.
(f)Responses from the applicant to requests from the Delegate included threats to commence proceedings and aggressive and demeaning comments about the Delegate. Reference is also made to correspondence sent by the applicant to Ministers and others, and some of the responses.
[6] TB 28 paragraph 4.1.6.1.1.5
The April decision concludes: [7]
[7] TB 36-7
5.2 The Act and Regulations operate to safeguard against unlawful interference with aviation facilities and prevent the use of aviation facilities in connection with serious crime. An ASIC can facilitate unmonitored access to security sensitive areas of Australian airports and provides the opportunity for the holder to commit unlawful interference or the undertaking of serious crime. This can be directly through their own actions, or indirectly by using their access to facilities and information to aid others in these activities.
5.3 I have taken into consideration the length of time since the applicant’s SRO and the fact that the applicant has not reoffended in the last eight years since their release from prison; however, I must place greater weight on the seriousness of the offence which was violent in nature and was described by Judge Rafter SC as being ‘somewhat calculated’ and containing ‘an element of vigilantism’. I remain cognisant of the fact that the assault was of such a serious nature that the victim required hospitalisation and surgery. I therefore must express some concerns about the safety of other employees within aviation facilities and whether the applicant will treat fellow employees with the appropriate respect and consideration. Judge Rafter SC does highlight the applicant ‘taunted and goaded’ the victim. The behaviour is still apparent in the applicant’s written and verbal responses towards the Secretary’s Delegates.
5.4 My concerns regarding the applicant’s disrespect for the law and their aggressive temperament are further exacerbated by their responses to the Delegate, which I note were often hostile and degrading in nature. The applicant referred to the Delegate as a ‘pathetic useless bully’ and frequently claimed the Delegate was harassing them and was ‘incompetent’.
5.5 Furthermore, the applicant made outwardly hostile threats to the Delegate and the Minister and stated that they were seeking legal action and had submitted harassment claims with the ‘AAT’ and ‘Human Rights Commission’. The applicant also made threats of legal action about future enquires with their past employer Corporate Air.
5.6 Notwithstanding my above raised concerns, I have also considered the positive character references that the applicant has provided in support of their application and the fact that the applicant has held a previous discretionary ASIC.
5.7 I note that the applicant held there previous ASIC without incident until they requested the cancellation of the card due to health reasons. This is also a matter of concern noting that the applicant had diminished responsibility due to a pre-existing psychiatric condition related to the loss of employment with an airline employer and this became exacerbated throughout their neighbour dispute and assault upon the victim. During this application, the applicant has made repeated claims about their health and resignation from their past airline employer due to health reasons.
5.8 I further take into consideration the fact that although the applicant resigned from their position with Corporate Air in February 2023 they did not return their ASIC to their Issuing Body until five months later in July 2023. This is in breach of the regulations as applicant commits an offence if the card holder does not return the ASIC within one month of having no operational need.
5.9 I acknowledge the applicant’s extensive work history within the aviation industry and efforts made to expand upon their industry-relevant knowledge and skills within the aviation industry.
5.10 Given the serious nature of the applicant’s SRO which involves violence and aggressive behaviour, including the facts of diminished responsibility of having a pre-existing psychiatric conditions, the outwardly hostile demeanour to the Delegate (a government employee) which were also ‘taunts’ and ‘goading’, raises serious concerns to the welfare of law enforcement and aviation transport inspectors if the applicant was issued an ASIC. The applicant has openly identified health issues which have caused them to resign from their last employment and mental health was accepted by Judge Rafter SC as playing a factor in the applicant’s actions. Furthermore, the applicant did breach regulations by not returning their ASIC within one month of the card being cancelled, raises further concerns regarding their suitability to hold an ASIC and compliance with conditions of an ASIC. Those entrusted with an ASIC must have a respect for, and willingness to uphold, the law.
5.11 Notwithstanding these factors, as a result of my review, today I decided to approve the issue of a ‘Job Ready’ status to the applicant with conditions.
5.12 The ASIC may only be issued to the applicant having complied with the following conditions:
·That prior to any ASIC being issued to the applicant, you must provide a report from a Psychiatrist, registered by the Royal Australian and New Zealand College of Psychiatrists (RANZCP), stating that taking into account of the ACIC criminal history report dated 16 January 2024 and 2 x court transcripts a transcript of proceedings for The Queen v Nicholas James Donovan, dated 5 March 2015 (attached hereto) that the applicant will not pose a risk or threat to the safety of people, property or the unlawful interference with the security of the aviation industry, if they are issued an ASIC.
·The Applicant will provide the above-mentioned document, referred to herein to the Secretary of the Department of Home Affairs:
…
As noted above, the Refusal decision was as a result of the application for reconsideration by internal review not being dealt finalised within the 30 day prescribed period. However, the delegate of the Secretary, Farouk Yay-Director, made a statement to the AAT for the purposes of section 37 of the AAT Act.[8] That statement was dated 24 June 2024 and, in effect, adopted the April decision and the May reasons. The May reasons state in section 5: [9]
[8] TB 87 and following, particularly at parapraph 19 (TB 92)
[9] TB 181
5 Conclusions and Decision
5.1 In making my decision I have considered:
5.1.1 the Act and Regulations and in particular the requirement of regulation 6.29; and
5.1.2 all the documentation provided to me (and cited under section 2 above).
5.2 The Act and Regulations operate to safeguard against unlawful interference with aviation facilities and prevent the use of aviation facilities in connection with serious crime. An ASIC can facilitate unmonitored access to security sensitive areas of Australian airports and provides the opportunity for the holder to commit unlawful interference or the undertaking of serious crime. This can be directly through their own actions, or indirectly by using their access to facilities and information to aid others in these activities.
5.3 I agree with the previous Delegates decision on the seriousness of the offence which was violent in nature and was described by Judge Rafter SC as being ‘somewhat calculated’ and containing ‘an element of vigilantism’. Notwithstanding the serious nature of the applicant’s offence, I have considered the length of time since the applicant’s security-relevant conviction and the positive character references the applicant has provided in support of their application. Furthermore, I acknowledge the applicant’s extensive work history within the aviation industry and efforts made to expand upon their industry-relevant knowledge and skills within the aviation industry.
5.4 Irrespective of the abovementioned factors, I have also taken into consideration the applicant’s written and verbal correspondence towards the Delegate and other Departmental officers who have been involved in the assessment process of the applicant’s 6.29 application submitted on 24 February 2024. In particular, I refer to the applicant’s on going email correspondence. I note that the correspondence recorded by the applicant whereby they refer to a potential ‘breach of their Human Rights’ and descriptive feedback of departmental officers as ‘incompetent staff’.
5.5 I agree with the previous Delegate’s decision when referring to their concerns regarding the safety of other employees within the aviation facilities and whether the applicant will treat fellow colleagues with the appropriate respect and consideration. According to the transcript in sentencing the applicant for their offence, Judge Rafter SC also made reference to the applicant’s pre-existing psychiatric condition (existing prior to their SRO and as a result of workers compensation claim against Mac Air aviation) and highlights that the ongoing dispute with their neighbours ‘exacerbated their psychiatric condition’.
5.6 I agree with the previous Delegate who outlined that the applicant ‘openly identified health issues’ which have caused them to resign from their last employment and that ‘mental health’ was accepted by Judge Rafter SC as a diminishing factor in the applicant’s violent actions and culpability. Furthermore, the applicant did breach regulations by not returning their ASIC within one month of the card being cancelled, raises further concerns regarding their suitability to hold an ASIC and compliance with conditions of an ASIC if these were to be further imposed.
5.7 The applicant’s continued correspondence towards the Delegate and representatives within the Department demonstrate aggressive and combative behaviours towards Commonwealth Government Officials.
5.8 Those entrusted with an ASIC must have a respect for, and willingness to uphold, the law. The safety and welfare of aviation employees, members of the public and law enforcement is paramount.
5.9 Notwithstanding these factors, as a result of my review today, I hereby affirm the decision made under regulation 6.29 on 18 April 2024 and approve the issue of a ‘Job Ready Status’ to the applicant subject to conditions as imposed by the Delegate on 18 April 2024.
HEARING AND EVIDENCE
The proceedings were heard on 20 May 2025.
The applicant appeared in person and represented himself. Mr Millea, a solicitor from the Department of Home Affairs, appeared by video for the respondent.
Documentary evidence in the proceedings consisted of the following:
·Documents provided by the respondent in accordance with s 37 of the AAT Act[10] (Tribunal Bundle/TB). In this case it is the supplementary bundle (which had documents additional to the original bundle) to which reference will be made in these reasons.
·Exhibit A – applicant’s bundle of documents handed up without objection at the hearing (applicant’s bundle/AB).
·Exhibit B – Letter from Queensland police service dated 28 January 2011.
[10] The equivalent requirement in the ART Act is s 23.
Oral evidence was provided by the applicant who was cross examined by Mr Millea.
The parties made oral submissions in support of their respective positions. In addition, pursuant to directions previously made, the respondent relied on its statement of facts and contentions dated 29 October 2024 (Respondent’s written submissions/RS).
During the course of the hearing, the applicant also provided to the Tribunal a further report concerning his personal circumstances. He was asked whether he wished to rely on that document and, if so, was informed that it needed to be provided to the respondent’s representative. It was explained that the Tribunal’s role was to make the correct or preferable decision and that he was not prevented from seeking to provide new evidence. Whether or not that would have an impact on the hearing being completed and/or could be relied upon would depend on any response from the respondent once its representative had had an opportunity to consider the material. The applicant was advised that if he decided not to rely on the document, despite having shown and it to the Tribunal, it would not be considered as part of the Tribunal making its determination.
Ultimately, the applicant decided not to rely on the document and it was returned to him without any copies been retained by the Tribunal.
Finally, during the hearing the Tribunal explained to the applicant that it was open to the Tribunal to refuse permission under clause 6.29 if not satisfied and ASIC should be issued to him. This was so notwithstanding the earlier decisions to grant permission on conditions.
Ultimately, the respondent’s representative made a submission that permission under clause 6.29 should be refused.
Agreed facts
Some matters are agreed between the parties. These can be summarised as follows.
The applicant is 62 years old. He has variously been known as James Donovan, Nicholas James Donovan and Raj Bineshwar.
Prior to 2015, the applicant worked in the aviation industry in various countries including the USA and Fiji. This included work as a pilot and operations manager: TB 242-3.
The applicant was convicted of a tier 3 offence on 5 March 2015. The record of conviction and sentence imposed by the District Court of Queensland is found in TB 184-5 (document T 14). A transcript of the sentencing hearing (T 15 – hearing transcript) and the decision on sentencing (T 16 – sentencing remarks) is found at TB 186-228.
The conviction for grievous bodily harm is the only criminal conviction of the applicant.
Prior to the 2024 ASIC application, the applicant had worked in the aviation industry in Australia and had held ASICs for this purpose. At RS [70]-[72] (footnotes omitted), the respondent summarised the applicant’s recent work history in the following terms:
69. The applicant has previously held:
(1) A Job Ready Certificate was issued by Veritas Engineering, dated 1 April 2022 (T4.2).
(2) An unconditional discretionary ASIC on 1 April 2022 with a 2 year validity period, following an application under regulation 6.29 (T4.1).
70. The applicant previously stated that he worked at Canberra and Goulburn airports between April 2022 and March 2023 and for various airlines in Townsville (2002 to 2007) and Guam (2001 to 2014).
71. The respondent understands that the applicant is not currently employed and is receiving Centrelink benefits.
72. In relation to the applicant’s previous held ASIC:
(1) The applicant previously held an ASIC which was approved on 1 April 2022. On that occasion the delegate considered that offence that led to the 2015 conviction was isolated in time and scope. The respondent no longer holds that view.
(2) The applicant officially resigned from his role as an audit apprentice with Corporate Air on 16 February 2023 and thereafter did not have an operational need to hold an ASIC (T25).
(3) The applicant returned his card to Veritas Engineering on 13 July 2023, the same day he requested the card cancellation (T38).
(4) The card was cancelled on 13 July 2023, at the applicant’s request under r.6.27(2) (T38).
(5) (The applicant failed to return his ASIC within 1 month of his resignation (after which the applicant no longer had an operational need for the ASIC) in breach of r.6.45(1)(iv) of the Regulations (T38). The applicant resigned in February 2023, returning the ASIC in July 2023 some 5 months after resigning. The excuse given by the applicant is: “I would have saved myself from paying for a new card”. [11]
[11] T 1 page 45 at [5.8]
I note the applicant did not agree with the statement at RS 72(5). He said the ASIC was returned in July 2023. While he resigned from is then position on 16 February 2023 (see TB 244), he was intending to commence employment with Qantas and therefore he says he was not obliged to return the ASIC one month after his resignation on 16 February. Thereafter, he says, due to suffering a heart attack in June 2023 and following advice from his cardiologist, he withdrew from taking up a new position and returned his ASIC.
There is no evidence that, while on regulated sites for which an ASIC is required, that the applicant has acted in a manner that might constitute unlawful interference with aviation as defined in s 10 of the Act, including by “committing an act at an airport, or causing any interference or damage, that puts the safe operation of the airport, or the safety of any person at the airport, at risk: see Act s 10(1)(f).
Oral evidence of the applicant
The applicant gave oral evidence concerning a number of matters including:
(a)the return of the ASIC which he previously held (as outlined above);
(b)that he had previously suffered from depression but was not presently being treated for this condition, reference being made to a Patient Health Summary from Dr Hughes dated 23 July 2024 found at AB 21;
(c)the circumstances surrounding various communications he had with the Department concerning his application and the entitlement of the Department to make enquiries of his employers in relation to his health and criminal history;
(d)errors the applicant says the Department had acknowledged in considering his application as recorded in the letter from the Departmental officer, Mr Smith dated 12 April 2024: TB 49-50. As discussed at the hearing, the matters identified in the letter did not relate to the health of or risk of violence by the applicant.
In cross examination, the applicant accepted that an ASIC should not be issued to someone the Tribunal found to be violent, unpredictable or volatile.
The applicant generally accepted as correct the matters recorded at RS [60]. There, the respondent’s submissions stated:
60. The Tribunal is also referred to the transcript at T16 page 226. The court after hearing the evidence accepted that:
·Preceding the confrontation that led to the conviction, the victim heard the applicant yelling words to the effect the victim was a paedophile;
·The victim was abused by the applicant and taunted by the applicant and his children;
·The applicant produced a machete hidden behind his back
·The applicant’s conduct was calculated and there was an element of vigilantism;
·The applicant at the time had a psychiatric condition
·The applicant was described as a violent offender
·Had it not been for the applicant’s psychiatric condition, the applicant would have been sentenced to 4 years imprisonment
·The victim suffered a very severe injury. The victim was hospitalised requiring surgery, requiring a plate to be inserted in the victim’s skull
·The victim’s lifestyle and employment has been affected. The victim suffered a psychiatric injury and he was unable to return to work due to post traumatic stress disorder and has suffered financially. There is no evidence that the applicant has offered or paid any compensation to the victim or apologised to the victim.
However, he denied calling the victim a paedophile and disagreed with the comment concerning vigilantism. In his evidence, the applicant referred to conduct of the victim, who was his neighbour, comments made by the victim about his children and the finding by the Queensland Civil and Administrative Tribunal that the applicant’s wife had been racially vilified by the victim. An extract of the reasons of QCAT is found that AB 11-12.
Also, while accepting that hiding machete when approaching the victim may indicate some element of planning in committing a violent offence, the applicant did not agree with the finding that he hid a machete behind his back.
My impression of this evidence is that the applicant sought to excuse some of his conduct in respect of his attack on the victim because he was reacting to conduct of the victim both at the time of the attack and prior to that time.
In making this observation, I note when asked whether he thought the sentence imposed by the District Court was fair, the applicant said he pleaded guilty. He also indicated that he had been required “by law” to pay $14,000 compensation to the victim in respect of injuries the victim sustained and had made that payment.
When asked whether he was uncooperative or hostile with staff of the department he said “no, never”. Rather, he said that the repeated questioning by one of the Department’s officers, amounted to harassment and bullying.
The applicant was shown his email dated 14 April 2024 (TB 353-4), particularly the fourth paragraph on page 2 of that document, where the applicant stated:
You are a shameless people, bunch of cowards, hiding behind legislation and bullying and harassing people to satisfy your retardation that working for Home Affairs make you some kind of James Bond and you can exercise your stupid power. Rapist, repeated drug offenders have no problem obtaining the ASIC card. I have held Australia wide ASIC card for many years before I was sentenced or charged and had not a single issue, after serving my sentence, I held a ASIC card and not a single issue, and now your incompetent racist, hide behind legislation and denying me from earning a honest living.
While accepting this was not a normal response, the applicant said that he felt bullied.
The applicant was then shown another response contained in his email to the Department dated 21 March 2024 (TB 264). In that email, the applicant said:
Please be advised that you are not fooling anyone.
I wrote to the minister of your incompetence and bullying and now you find getting offensive is best way to defend yourself by picking every little thing.
You should be ashamed of yourself.
The reason you have job ready card and discretionary card is for people like me.
I will provide all I can, meanwhile I have filed a report with Human Rights Commission and they have accepted my complaint.
I have also filed a complaint with AAT, of your unreasonable demands.
I am talking to my lawyer and looking at my options to take the minister and secretary to court.
You playing power to punish me is disgusting act if (sic) a coward. I am not going suffer because of your incompetence. Till yesterday you did not much about job ready card.
The Applicant accepted that he understood that the Departmental officer may himself have felt intimidated but said this was the same reaction he had in response to what had happened to him in dealing with the Department.
When asked whether he had a “short fuse”, the applicant said no and that he was being asked irrelevant questions.
The applicant was also asked about providing any medical evidence concerning any mental health issues which might alleviate the need for any condition to be imposed of a type thought necessary by the respondent’s delegate in making the April decision. The applicant said that where he lived made it difficult getting any report and that such reports were expensive.
As to his reference in recent emails concerning his application to the Department about having a disability, he said this was his heart condition, not any mental health issue.
SUBMISSIONS
The parties’ submissions are found in both the written material and in oral submissions made at the hearing.
In addition, at the end of the hearing, the applicant was given leave to file a response to the Respondent’s written submissions. He did so in the document entitled “Applicant’s Response to Statements of Facts and Contentions by the Respondent”.
The respondent provided submissions in reply (respondent's reply submissions).
It is convenient to deal with the respondent’s position first.
Respondent’s submissions
The respondent submitted that the application under clause 6.29 of the Regulations should be refused. Alternatively, the decision of the Secretary should be affirmed.
This position was summarised in the respondent’s written submissions as follows:[12]
94. The respondent contends that the applicant’s behaviour leading to the offence that resulted in the 2015 offence, his behaviour towards the NSW police wherein he made unsubstantiated claims of being “corrupt” and “racist” and his more recent communications with the respondent demonstrate a disturbing display of volatility and aggressive behaviour towards others.
95. The Tribunal should not be satisfied that the applicant does not constitute a threat to the security of aviation transport, considering the matters the Tribunal must take into account under r.6.29(5).
96. The applicant is not a reasonable candidate for a discretionary ASIC, taking into account the nature of the offence the applicant has been convicted of and all the other relevant matters the Tribunal must take into account.
97. In the alternative, the respondent contends that the Tribunal may only be satisfied that the applicant does not pose a threat to aviation security if he complies with the conditions and a Psychiatrist provides a report to that effect.
98. The correct or preferable decision is to affirm the respondent’s decision to approve the issue of an ASIC to the applicant with the proposed condition and in the alternative, that the approval for the issue of an ASIC to the applicant be refused.
[12] RS [94]-[98]
Referring to the decision of the AAT in Maksimovic and Secretary, Department of Infrastructure and Regional Development[13] (Maksimovic), the respondent says that ASICs “are integral to the security of the aviation industry”, namely to “safeguard against unlawful interference with aviation”. In this regard the Tribunal in Maksimovic said: [14]
In seeking to safeguard aviation against this risk so far as possible it is important that ASIC’s not be issued to persons engaged in, or likely to engage in, criminal activity.
[13] [2014] AATA 96
[14] [2014] AATA 96 at [48]
Also relevant, the respondent submitted, was the heightened global awareness of security in airports and in the aviation industry. [15]
[15] RS [39] referring to Travers and Secretary, Department of Transport and Regional Services [2007] AATA 1797 (Travers) at [11]
The respondent submitted that the test to be applied is that set out in Ahmad and Secretary, Department of Home Affairs[16] (Ahmad). There the Tribunal said:
55. Under these circumstances, the Tribunal cannot conclude that he is not a threat to the security of maritime transport or an offshore facility.
[16] [2022] AATA 4779 at [55]
In the context of s 10(1)(f) of the Act and assessment to be made, the respondent referred to the decision of the AAT in Townley and Secretary, Department of Infrastructure and Regional Development[17] (Townley), stating “the Tribunal took into account both ‘threats of violence’ and the ‘behaviour of the applicant towards Departmental officers’”.[18]
[17] [2016] AATA 311
[18] RS 42
Townley was a case concerning an application to issue a Maritime Security identification Card (MSIC) under the relevant legislation which was refused by the AAT.
Townley, the respondent submitted, involved “only physical damage … to a victim’s front gate. This is in contrast to the injuries suffered by the victim to the applicant’s offending” in the present proceedings before the Tribunal.[19]
[19] RS 42
Of the conviction for grievous bodily harm, the respondent submitted “the circumstances of the offence involved a neighbourhood dispute over a three-year period with at least 3 instances of violent confrontation between the applicant and his neighbour, ultimately accumulating to the offence for which the applicant was convicted in 2015”.[20] Having referred to various parts of the transcript of the sentencing hearing and evidence given in connection therewith, the respondent continued:[21]
59 The transcript also shows an insight into the applicant’s behaviour when his complaints are not resolved to his satisfaction in that the applicant was prepared to level charges against NSW police, suggesting the police were corrupt and behaved in a racist manner of racism which the prosecution (Mr ROBSON) said were unsubstantiated.
[20] RS 57
[21] RS 59
Then, at RS [63], the respondent said:
While both the background of ongoing conflict between the applicant and his neighbour and the applicant’s pre-existing psychiatric or psychological condition were considered mitigating factors by the court in the circumstances to the offending, the respondent contends that the role of the Tribunal is to consider whether the applicant should be approved to be issued an ASIC and should only consider mitigating factors to the offence leading to the 2015 conviction in the context of whether the applicant’s character, as demonstrated by his behaviour, demonstrates that the applicant is an unacceptable risk to the safety and secure operation of airports and to the safety of persons at airports.
Of the applicant’s communications with the respondent, the respondent makes the following submissions:
(a)The applicant never expresses remorse or regret concerning the conviction for grievous bodily harm. Rather he seeks to misrepresent the facts of the offence and minimise the seriousness of the offence. In this regard reference is made between email from the applicant to the respondent dated 8 March 2024[22]. Whether a reflection of memory or an attempt to mislead the Minister, the respondent says the applicant’s version of facts concerning his offending “is totally at odds with the facts of the offending, as found by the court”[23] .
(b)Threats of legal action against the Department and its officers were made in order to have the Department desist from requesting information; [24]
(c)The respondent is concerned “that the applicant is fixated on one particular Departmental officer who the applicant alleges is ‘out there for revenge’”. This, the respondent says, is “of particular concern in the context of his behaviour towards his neighbour leading to the 2015 offence.[25]
(d)Having regard to the content of his communications, the respondent “contends that due to the applicant’s history of mental health issues and propensity to be hostile and aggressive, there is a reasonable concern about the applicant’s emotional and social vulnerability in the aviation environment”.[26]
(e)In short, the applicant’s conduct “suggests a long term pattern of aggressive behaviour towards officials by the applicant when frustrated”.[27]
[22] TB 356
[23] RS 77
[24] RS 87
[25] RS 88
[26] RS 90
[27] RS 91
In oral submissions, when asked by the Tribunal about the respondent granting permission in 2022 in connection with an earlier application for an ASIC, the respondent said it no longer held a view that the conduct of the applicant in relation to the conviction was an isolated issue. Rather, his interaction with staff and with the Police shows a pattern of behaviour, the delegate determining the present application taking the view that there was doubt about the applicant and therefore a psychiatrist report should be obtained as a condition of approval.
Reference was then made to the purpose of the legislation and the wide definition of unlawful interference, the respondent submitting that the Tribunal should refuse the application.
In making these submissions, the respondent again referred to the decisions of Ahmad and Townley and the need of the Department to reassess an applicant and their suitability for approval each time an application is made.
Applicant’s submissions
In the Tribunal application under the heading “Why do you claim the decision is wrong?” the applicant states: [28]
The decision and reason for decision are not based on facts. Decision has been made by a delegate, not incorrect frame of mind, driven by anger and revenge after I wrote to Minister about delegates incompetence, harassment and bullying. Some of the delegates mistakes have been admitted by his supervisor in writing and I have evidence for others.
The condition attached to the decision is unfair, not workable and abuse of process, abuse of legislation and display of power. The review of the decision was denied to me by the delegate and secretary of Home Affairs.
Reasons for condition is based on false assumption, outside context, selective information to suit delegate, lies, discrimination and abuse of Australian Human Rights Act where I have been put on trial and judgement delivered by delegate for a single crime for which I have already served my sentence, 8 years ago.
[28] TB 9
In oral submissions, the applicant explained that he has worked in the aviation industry for most of his life and has never breached any security requirements. He previously had an ASIC approved without conditions.
He accepts that if there is a risk of violence or conduct of a type contemplated by s 10 of the Act, that would be a basis for refusing an ASIC. However, he submits he did not make any threats of violence in communications with the Department in relation to the current application and does not pose any risk of a type contemplated by the Act.
The applicant submitted that his position was different to that considered by the AAT in cases such as Townley. His conduct in his dealings with the Department were not a basis to reach a conclusion there was a relevant risk. He had served his sentence following conviction for grievous bodily harm and had not engaged in any other criminal conduct. In short, there was no conduct that would disqualify him from being issued with an ASIC or that would justify the imposition of a condition.
He said that his current medical issues were not psychologically based, referring to the medical summary which I have identified above.
ANALYSIS AND DECISION
There is no dispute the applicant was convicted of a tier 3 offence as defined by the Regulations and was sentenced to a term of imprisonment and, therefore, he has an adverse criminal record for the purpose of the Regulations. Consequently, an ASIC may only be issued to him where permission has been granted by the respondent.
In these circumstances, the Secretary has power to give permission for the issue of an ASIC under clause 6.29 of the Regulations. It is the power to grant or refuse permission to a person with an adverse criminal record, who without such permission could not be issued with an ASIC.
I accept the respondent’s submission that the power “must be exercised in accordance with the language by which it is conferred and to achieve the purposes for which the power has been granted”. [29]
[29] Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; 76 ALJR 828
Clause 6.29(5) of the Regulations, set out above, operates as a precondition to approving or refusing to approve permission. It requires the Secretary (or this Tribunal on review) to consider both the offending (in this case a Tier 3 offence), the conduct and employment history of an applicant and anything else relevant that is known to the decision maker.
Consistent with the purpose of safeguarding against unlawful interference with aviation, as defined in s 10 of the Act, in determining an application and exercising the power conferred, regard may be had to any facts that might tend to show the likelihood an applicant has or will engage in conduct which constitutes unlawful interference with aviation. As such, they are relevant considerations.
In the present case, the respondent contends that the conviction for grievous bodily harm, the dealings of the applicant with his neighbours and the police concerning events surrounding the offence and his communications with the Department in connection with the present application demonstrate there is a risk of the applicant committing an act of a type set out in s 10(1)(f) of the Act, namely:
(h) committing an act at an airport, or causing any interference or damage, that puts the safe operation of the airport, or the safety of any person at the airport, at risk.
The respondent says that the approach in Ahmad and Townley is to be adopted in assessing an application.
In Townley, the AAT had to consider whether the person applying for a MSIC “constitutes a threat to the security of maritime transport or an offshore facility” for the purposes of the Maritime Transport and Offshore Facilities Security Regulations 2003 (Cth) (Maritime Regulations).[30] The factors to be considered are in similar terms to those found in clause 6.29 of the Regulations.
[30] clause 6.08F(5)
Clause 6.29 does not, by its terms, require the Secretary to determine whether an applicant “constitutes a threat”. Rather, what is to be assessed is the likelihood of committing an act that could give rise to the identified risk having regard to the adverse criminal record and the matters identified in clause 6.29(5).
On one view, under the Regulations, the threshold for determining whether a person may commit an act that might put at risk the safe operation of an airport or the safety of those at an airport is a lower threshold than whether that person constitutes a threat to security of people or property under the Maritime Regulations. Although, as can be seen in Townley at [76], the Maritime Transport and Offshore Facilities Security Act 2003 (Cth) also uses the expression “unlawful interference” which was in similar terms to that defined in s 10(1) of the Act.
Whether or not that is correct, it is both appropriate and relevant to assess conduct of an applicant on a continuing basis from when the event giving rise to the adverse criminal record occurred to the date of the application as well as the applicant’s antecedents insofar as that might cast light upon the risk being assessed and its likelihood of occurrence in the future. In addition, the personal circumstances of an applicant may be relevant. Matters to be considered may include an applicant’s history of criminal conduct, facts that might show a propensity to engage in such conduct and facts (such as medical history) that might explain such conduct and its likelihood of recurrence.
In determining the present case, the respondent has, in effect, submitted that the past and continuing conduct of the applicant manifests a relevant risk which warrants refusing his application. The respondent says the applicant’s conduct demonstrates a more substantial risk than that of Mr Townley. As such, on a comparative basis, the Tribunal should decide to refuse to grant permission under clause 6.29 for the issue of an ASIC.
In Townley, the AAT said: [31]
[31] [2016] AATA 311 at [75]-[81]
75. As the Tribunal finds that Mr Townley has “an adverse criminal record” by virtue of being convicted and sentenced in relation to a “maritime-security-relevant offence,” the Tribunal must now consider whether Mr Townley constitutes “a threat to the security of maritime transport or an offshore facility” having regard to the mandatory considerations contained in regulation 6.08F(5) of the Regulations outlined above.
76. In relation to the expression “a threat to the security of maritime transport or an offshore facility”, the Tribunal notes the analysis of that term undertaken by Delegate Pauline Sullivan dated 14 August 2015 (T1 at page 14) as follows:
6.2 A threat to the security of maritime transport or an offshore facility is not defined in the MTOFSA or MTOFSR and therefore has its ordinary or natural meaning.
6.3 In accordance with the Macquarie Dictionary (6th Edition), threat as far as is relevant, means “an indication of probable evil to come; something that gives an indication of causing evil or harm”. Security, as far as relevant, means “(1) freedom from danger, risk etc.; safety; and (2) protection from or measures taken against espionage, theft, infiltration, sabotage, or the like”.
6.4 Referring to the MTOFSA, I note that under Section 11, paragraph (l)(a), the meaning of unlawful interference with maritime transport or offshore facilities includes “committing an act, or causing any interference or damage, that puts the safe operation of a port, or the safety of any person or property at the port, at risk”.
77. Against this background, the Tribunal finds that Mr Townley should not be granted an MSIC as he constitutes a threat to the security of maritime transport or an offshore facility. The 2005 offences for which Mr Townley received a suspended sentence are, as noted by the sentencing judge (the Chief Judge of the District Court), very serious. The justice system simply cannot function as it should if potential witnesses are threatened with violence and intimidated into not providing evidence in court proceedings.
78. While Mr Townley has only one maritime related offence and while this offence occurred 11 years ago, the Tribunal notes that there are other, also quite serious criminal offences recorded in 2012, an extensive criminal record overall, and a pattern of extraordinarily aggressive and threatening behaviour by Mr Townley directed at government employees and others.
79. Further, while Mr Townley claims to have undergone some sort of anger management training, there is no evidence before the Tribunal that this has had any impact on an extensive pattern of aggressive behaviour frequently demonstrated when Mr Townley is frustrated or does not get what he believes he is entitled to.
80. Mr Townley has endured considerable hardship throughout his life. The result is that he does not trust authority figures and often feels unable to express himself in ways that are not aggressive and/or emotive. This has resulted in an extensive criminal record of the sort that will, undoubtedly, make employment opportunities harder to come by.
81. While the Tribunal has considerable sympathy for Mr Townley, the Tribunal takes particular note of the importance of safeguarding maritime security in Australia. The Tribunal is satisfied on the balance of probabilities that Mr Townley does pose a threat to this security. Maritime facilities in this country simply cannot function safely and efficiently if persons with a criminal background and volatile temperament of the sort displayed here are granted an MSIC. Accordingly, Mr Townley cannot be granted an MSIC.
As will be apparent from these statements, the criminal conduct of Mr Townley was more extensive than that of the present applicant.
In this regard, I do not accept the respondent’s characterisation of Mr Townley’s conduct as relating to “only physical damage … to a victim’s front gate”. [32] As set out in Townley at [33] and following, the incident with Mr Townley concerning the front gate occurred in much broader circumstances, including, where Mr Townley had made a threat to kill another person and had damaged other property.
[32] RS 42
Further, as noted in Townley at [80] above, in relation to the aggressive nature of Mr Townley and his inability to manage his emotions, the Tribunal concluded that his conduct has “resulted in an extensive criminal record of the sort that will, undoubtedly, make employment opportunities harder to come by.” Some of that conduct occurred while exercising access rights using his MSIC.
In any event, comparison with other decisions, other than in identifying relevant considerations and principles to be applied, provides limited assistance in determining whether permission should be granted in a particular case.
As outlined above, there is competing evidence concerning matters relevant to assessing the application in question. This evidence goes to both whether permission should be granted and whether conditions should be imposed.
For the purposes of deciding this application, as noted above, I must consider the factors in clause 6.29(5)(a)-(e) of the Regulations. Clause 6.29(5)(d) is not relevant as the sentence imposed in connection with the tier 3 offence was not wholly suspended.
In respect of those matters, I make the following findings.
On 5 March 2015, the applicant was convicted of an offence of grievous bodily harm The offence occurred on 5 December 2012, more than 12 years ago.
The applicant was sentence in the District Court of Queensland to a period of 3 years imprisonment, of which 2 years was suspended. In addition, the District Court imposed an operational period of 3 years in respect of that part of the sentence that was suspended. That required the applicant “not commit another offence punishable by imprisonment during the operational period … if [he is] to avoid being dealt with for the suspended sentence”.[33]
[33] TB 228 transcript line 38
In accordance with the sentence imposed by the District Court, the applicant served a total of 1 year in prison (which included a period of time when he was in custody prior to being convicted). He was release in 2016, approximately 8 years ago.
In sentencing the applicant, the District Court was told by Counsel for the applicant of the applicant suffering from post-traumatic stress disorder and a major depressive disorder[34]. The District Court accepted the applicant suffered depression, originally occasioned by the closure of the airline where the applicant previously worked and exacerbated by his dispute with his neighbour. [35]
[34] TB 202 transcript line 11 and following
[35] TB 227 transcript line 23 following
The maximum sentence for this type of offence was 14 years. It is evident from the sentencing remarks and the sentence imposed that the District Court determined this offence was not at the top end of the range for severity and that there were mitigating circumstances being the health issues referred to in the previous paragraph. That is not to diminish the extreme nature of the crime or in any way to excuse the applicant.
The applicant made reparations of approximately $14,000 to his neighbour, the victim of the assault. In this regard the victim had suffered substantial injuries as a result of being struck with a machete by the applicant. These events, including injuries suffered, are recorded in in the transcript of the sentencing hearing in the District Court.[36]
[36] TB 186 and following
The parties did not draw to my attention any evidence that might suggest there was any physical confrontations with the applicant’s neighbours after the applicant was released from prison or any further criminal offending after this time. There was no evidence to suggest any other conviction for serious crime.
Around the time of the offence, there had been ongoing disputes between the applicant, his wife and their neighbours. These disputes included proceedings in QCAT brought by the applicant’s wife against the neighbour concerning allegations of racial vilification. Some of these allegations QCAT found to be made out on the evidence before it in a decision made 1 September 2015.[37] This provides some context but not an excuse for the applicant’s crime.
[37] part of Exhibit A
Prior to his conviction, there were also disputes between the applicant, his wife and Queensland Police concerning allegations of misconduct by the Police. Exhibit B records part of the response from the Police.
Since his release from prison, the applicant has dealt with various medical conditions including suffering a heart attack in February 2022.[38] He also gave evidence that his wife had passed away. There is no medical evidence of any continuing depressive illness of the type identified to the District Court identified in the evidence before the Tribunal.
[38] Exhibit A – Patient Health Summary page 21
The applicant is now age 62. He has worked in the aviation industry in Australia and overseas since about 1980. His employment in the aviation industry overseas is recorded in his curriculum vitae.[39] As noted above, he has worked in Australia for a company called Corporate Air. There is no evidence that he has mis-conducted himself in any relevant way while working in the aviation industry.
[39] TB 242-3 document T 24
The applicant has provided a number of references, two of which (relating to work in Australia) are included in the Tribunal Bundle at TB 240-1. These are dated 25 January 2022 and 20 February 2023. References concerning his work in the aviation industry overseas are included as part of Exhibit A at page 35 and following.
All these references speak in positive terms of the applicant, variously describing him as
(a)a person carrying out his duties “in a professional and safe manner” and who is “honest and hard-working”;[40]
(b)having “a positive attitude”;[41] and
(c)“a trusted member of the team maintaining Saab 340 and Metro 23 aircraft”.[42]
[40] Exhibit A page 35
[41] TB 240
[42] TB 241
As noted above, the applicant was issued with an ASIC following permission of the respondent in 2022.
In the respondent’s reply submission, the respondent says of this matter:[43]
13. As noted in paragraph 72(1) the respondent’s facts and contentions the respondent no longer holds the view that the applicant’s character as shown by the 2015 conviction is an “isolated” event. The respondent submits that the 2015 conviction is an extreme event that demonstrates the applicant’s character.
[43] respondent's reply submissions paragraph 13
Consequently, adopting what was said in Ahmad,[44] the respondent submits “that the Tribunal cannot conclude that the applicant is not a threat to aviation transport and … that the public interest in the security of the aviation transport must prevail over the applicant’s individual difficulties.[45]
[44] Ahmad at [55]-[56]
[45] respondent's reply submissions paragraph 26
There is no evidence from his former employer, or those with whom he worked or came in contact with while working at any airport in the period 2021-2023 to suggest that the applicant committed any act at an airport or caused any interference or damage that put at risk the safe operation of the airport or the safety of any person at the airport at which he worked. Nor is there evidence the applicant did so earlier in his career.
There is evidence of intemperate communications with officers of the respondent concerning the present application. These communications demonstrate both frustration of the applicant in his dealings with the Department and the failure of the applicant to deal with requests made in connection with the decision-making process both respectfully and appropriately. Some of this conduct may be characterised as intimidation.
The applicant’s poor conduct in dealing with officers of the Department should not be condoned.
However, on the evidence provided to me and in the absence of any direct evidence from witnesses in the Department, I am not satisfied this conduct of the applicant was illegal, threatened violence or gives rise to circumstances that might establish a risk the applicant might unlawfully interfere with aviation as that expression is used in s 10 of the Act.
Considering the evidence as a whole, I am not satisfied that the application should be refused. While the applicant engaged in serious criminal conduct for which he was convicted in 2015 and served a custodial sentence, his conduct while working in the aviation industry, particularly in the last 3 years, reflects a person who carries out his duties in a responsible and safe manner and who has been a trusted member of a team of people responsible for maintaining aircraft. On the material before me, his work in the aviation industry indicates a commitment to diligence and safety in performing various roles as a maintainer and operator of aircraft.
The communications with the Department, while inappropriate and unhelpful in assisting the Department to process his application, are not such to establish a risk of the type identified in s 10 of the Act or that the security of airports and people at airports would be at risk if the applicant were issued with an ASIC.
Further, in the absence of current medical evidence concerning the applicant’s mental health, I am not persuaded there is any ongoing stress disorder or depression of the type referred to in the District Court proceedings which the applicant suffers. The evidence of current medical conditions to which I have referred above does not support a contrary conclusion. In these circumstances, the condition proposed by the respondent concerning obtaining a psychiatrist report does not seem necessary, particularly as directed towards mental health issues said to have arisen nearly 10 years ago or more.
The final matter to deal with concerns the return of the ASIC issued in 2022.
Clause 6.45 of the Regulations provides:
6.45 Return of red ASICs, grey ASICs, VICs and TACs that have expired etc.
(1) A person commits an offence if:
(a) the person is the holder of a red ASIC or a grey ASIC; and (b) the holder does not return the ASIC to the issuing body within 1 month after:
…
(iv) the holder no longer has an operational need to enter the relevant secure area.
Penalty: 10 penalty units
Operational need is defined as follows:
operational need means:
(a) a requirement for frequent access to all or part of a secure area of an airport where persons are required to display an ASIC, for either of the following purposes:
(i) the operation of the airport or an aircraft;
(ii) the purpose of a person’s occupation or business; or
(b) a requirement under the Act, these Regulations or another instrument made under the Act to properly display a valid ASIC at all times; or
In my opinion, the operational need of the applicant in connection with the 2022 ASIC ceased upon his resignation from his employment with Corporate Air. As noted above, the resignation occurred on 16 February 2023. At that point in time, the applicant was obliged to return the ASIC within one month from his resignation.
The applicant said he did not return the ASIC he had been issued in 2022 because he was intending to commence employment with Qantas and was therefore not required to return the 2022 ASIC. He also says that, upon suffering a heart attack and following advice from his cardiologist, he withdrew from taking this new position and returned his 2022 ASIC to the issuing body, Veritas.
The view formed by the applicant as to his obligations was incorrect.
There is no evidence to suggest he had employment with Qantas or otherwise that he had a continuing operational need immediately upon resigning from Corporate Air. Consequently, the period in which the 2022 ASIC was to be returned was one month from 16 February 2023.
In making these observations, I note that the 2022 ASIC was returned by the applicant of his own volition. There is no suggestion that, between when he resigned and when he returned the 2022 ASIC, he failed to comply with any request in connection with its return. Nor is there any suggestion that the ASIC was improperly used to gain access to regulated areas of any airport.
In the circumstances, failure to return the 2022 ASIC within the one month does not lead me to conclude that the present application should be refused.
DECISION
Having considered the matters in clause 6.29(5) and material submitted by the parties to the Tribunal, I have concluded that permission should be granted for the issue of an ASIC to the applicant and that the conditions imposed by the respondent should be removed.
Accordingly, I make the following decision:
The decision under review is varied by deleting the conditions concerning obtaining a psychiatrist report and providing a copy of that report to the respondent.
Date(s) of hearing: 20 May 2025 Applicant: Self-Represented Solicitors for the Respondent: Mr James Millea (Appearing) – Security, Disputes and Operations Law Branch Legal
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