MCLZ and Secretary, Department of Home Affairs

[2023] AATA 157

MCLZ and Secretary, Department of Home Affairs [2023] AATA 157 (3 February 2023)

Division:GENERAL DIVISION

File Number:          2022/8649

Re:MCLZ  

APPLICANT

Secretary, Department of Home AffairsAnd  

RESPONDENT

Decision

Tribunal:Deputy President J Sosso

Date:3 February 2023

Place:Brisbane

The application for review is dismissed pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) as it has no reasonable prospect of success.

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

Deputy President J Sosso

Catchwords

PRACTICE AND PROCEDURE – application for an aviation security identification card – adverse criminal record – whether a spent conviction – no discretion – no reasonable prospect of success – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

AusCheck Act 2007 (Cth)

AusCheck Regulations 2017 (Cth)

Aviation Transport Security Regulations 2005 (Cth)

Crimes Act 1914 (Cth)

Cases

Filsell and Comcare (2009) 109 ALD 198

REASONS FOR DECISION

Deputy President J Sosso

3 February 2023

INTRODUCTION

1. On 20 October 2022, MCLZ (the Applicant) sought a review of a decision of a Delegate of the Secretary, Department of Home Affairs (the Respondent) of the same date that he was not eligible to be issued with an Aviation Security Identification Card (ASIC). This decision was made on the basis that the Applicant had an “adverse criminal record”.

2. The AusCheck Act 2007 (Cth) (the Act) provides a regulatory framework for the conduct of a centralised background checking service by a relevant Department; initially, the Attorney-General’s Department, and now the Department of Home Affairs. The Act provides for the relevant Department to coordinate background criminal and security assessment for applicants for an ASIC or a Maritime Security Identity Card.

3. The centralised background checking service is known as “AusCheck”.

4. Section 3 of the Act provides that its object is:

   “to provide a regulatory framework for coordinating and conducting certain criminal, security and other background checking.”

5. Section 18 of the Act allows for the making of regulations that are necessary or convenient for the carrying out or giving effect to the Act.

6. The AusCheck Regulations 2017 (Cth) (the Regulations) are the relevant subordinate legislation for the purposes of s 18.

7. “AusCheck” is defined to mean that part of the Department that administers the AusCheck scheme – s 4 of the Regulations.

8. Division 2 of Part 2 of the Regulations contains provisions relating to background checks for aviation and maritime security purposes.

9. The Tribunal is granted authority to review decisions of the Respondent pursuant to s 26 of the Regulations. In particular, s 26(c) of the Regulations empowers the Tribunal to review decisions of the Respondent:

   “(c)to advise under Division 5 that an individual has an unfavourable criminal history.”

10. An “unfavourable criminal history” is defined in s 6 of the Regulations to include, inter alia:

    “(a) an adverse criminal record”.

11. An “adverse criminal record”, in turn, is defined by s 4 to include, inter alia:

    “(a)for an individual who is an applicant for, or a holder of, an ASIC – has the meaning given by subregulation 6.01(2) of the ATS Regulations…

12. Subregulation 6.01(2) of the Aviation Transport Security Regulations 2005 (Cth) (the ATS Regulations) defines an “adverse criminal record”, inter alia, as:

    “(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.”

13. Subregulation 6.01(1) of the ATS Regulations defines a “tier 3 offence” as:

    “…an aviation-security-relevant offence mentioned in the table in clause 3 of Schedule 1.”

14. Clause 3 of Schedule 1 sets out 26 offences which are deemed to be tier 3 offences. At least two of the enumerated offences are relevant to this matter, namely:

    “…

    11. An offence relating to firearms, ammunition, weapons or the use of an item as a weapon; and

    …

    18. an offence relating to theft...”

    CONSIDERATION

15. It is not disputed that the Applicant was, on 26 July 1991, convicted in the Melbourne County Court of the offence of armed robbery and sentenced to imprisonment for 4 years and 6 months.

16. At the time of the Applicant’s conviction, he was 21 years of age.

17. In a Statement provided to the Tribunal, the Applicant states that he had a troubled childhood and his conviction involved him using a $5 plastic gun, and not a real firearm. After his conviction, the Applicant states that he raised his two daughters by himself and has had no further convictions. Moreover, the Applicant became a pilot and has operated aircraft both domestically and internationally. He is now a grandfather and states he has led a law-abiding and fruitful life and been a good father and citizen.

18. In addition, the Applicant has provided Statutory Declarations from persons who have known him and attest to his good character. In particular, the Statutory Declarations refer to his devotion to his children, his engagement with his church and his solid employment history.

19. In this matter, the issue to be determined by the Tribunal is one of statutory interpretation and not of character assessment. The Tribunal has no reason to doubt the veracity of the information presented by the Applicant about his life history, but the core issue in this (and similar) matters does not involve a decision-maker forming a view as to the good character (as it now exists) of an applicant.

20. In his Application for Review of Decision, the Applicant gave as his reasons for applying for review the following:

    “I was informed to seek a review by you as my conviction was over 30 years ago.”

21. The term “conviction” is defined by s 6.01(1) of the ATS Regulations to exclude spent convictions:

    “‘conviction’ (of a person for an offence) has the meaning given by subsection 85ZM(1) of the Crimes Act 1914, but does not include:

    (a) a spent conviction (within the meaning given by subsection 85ZM(2) of that Act) if Division 3 of Part VIIC of that Act applies to the person…”

22. Subsection 85ZM(2) of the Crimes Act 1914 (Cth) provides as follows:

    “(2) For the purposes of this Part, a person's conviction of an offence is spent if:

    (a)   the person has been granted a pardon for a reason other than that the person was wrongly convicted of the offence; or

    (b)   the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended.”

23. As the Applicant was convicted and sentenced to imprisonment for a term greater than 30 months, his conviction is not a spent conviction.

24. In the decision of 20 October 2022, the Delegate informed the Applicant that the issuing body would be told not to issue him with an ASIC but the issuing body would not be informed of the details of the Applicant’s offence.

25. Subregulation 13(2) of the Regulations provides that “the Secretary must advise the issuing body whether or not the individual has an unfavourable criminal history”. In short, there is no discretion vested in the Respondent: there is mandatory statutory duty to inform the issuing body whether an applicant has an unfavourable criminal history. That duty is limited to the fact that such a history exists, and does not further require the Secretary to inform the issuing body of the nature of an applicant’s criminal history.

26. Further, s 13(4) of the Regulations provides that if the Respondent advises the issuing body under s 13(2) that an applicant has an unfavourable criminal history, the Respondent must inform the applicant of that advice and the reasons for that advice.

27. The letter of the Delegate of the Respondent of 20 October 2022 fulfilled the Respondent’s obligations pursuant to s 13(4).

28. An applicant, however, may apply, pursuant to s 6.29 of the ATS Regulations, for a discretionary ASIC.

29. The Secretary responsible for the administration of the ATS Regulations may, inter alia, request information about an applicant from the “Secretary AGD”. Presumably, the Secretary would seek information about the nature of an applicant’s criminal history.

30. The Tribunal has been informed that the Applicant, in this matter, has availed himself of this provision and has made an application for a discretionary ASIC.

31. It will be seen that the regulatory scheme is relatively straightforward. An applicant for an ASIC is subject to a background check. Where such a check discloses that an applicant has an “unfavourable criminal history”, which, in this case, constituted an “adverse criminal record”, the Respondent is under a mandatory duty to inform the issuing body of that offence(s) and an ASIC will not issue. An applicant, however, may apply to the issuing body for a discretionary card under s 6.29 of the ATS Regulations. Whether an ASIC is issued is a matter for the issuing body, taking into account the material presented and the provisions of the regulatory scheme.

32. Mr James Millea, on behalf of the Respondent, submitted that the correct or preferable decision is that the application should be dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that it is either “misconceived or lacking in substance” or “has no reasonable prospect of success”.

33. The power to dismiss a review application pursuant to s 42B is one that should be used cautiously – Filsell and Comcare (2009) 109 ALD 198 at [33].

34. It appears to the Tribunal that the relevant provision in the current circumstances is s 42B(1)(b), namely an application which “has no reasonable prospect of success”.

35. In this matter it is clear that the regulatory scheme for background checking has been followed and that there has been no error by the Respondent. Indeed, the Respondent has not been granted any discretion in the matter. The Applicant not only has no “reasonable” prospect of success, but has no possibility of achieving a favourable outcome. Where it is tolerably clear to the Tribunal that a review application has no prospects of success, as in this matter, the correct and preferable course is to dismiss the application pursuant to s 42B(1)(b). This course of action is preferable as it would be futile for the proceedings to continue, would result in the Tribunal’s time being unnecessarily expended on an application doomed to failure and, most importantly, put the Respondent to unnecessary expense and inconvenience. Further, to allow a proceeding which is doomed to fail to continue, would be contrary to the Tribunal’s objective, inter alia, to provide a mechanism of review that is fair, just, economical, informal and quick.

    DECISION

36. The application for review is dismissed pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) as it has no reasonable prospect of success.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

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

Associate

Dated: 3 February 2023

Date of hearing:	18 January 2023
Solicitor for the Respondent:	James Millea Department of Home Affairs