Omerdic and Registrar of Ministers of Religion Victoria - [2022] AATA 1765

Omerdic and Registrar of Ministers of Religion Victoria [2022] AATA 1765 (16 June 2022)
Division:GENERAL DIVISION
File Number: 2021/3730
Re:Ibrahim Omerdic
APPLICANT

AndRegistrar of Ministers of Religion Victoria
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:16 June 2022
Place:Melbourne

The Tribunal affirms the decision under review.
.....................[SGD]...................................................
Senior Member C. J. Furnell
Catchwords
PROFESSIONAL QUALIFICATIONS – authorised marriage celebrant – register of ministers of religion – applicant’s name removed from register – applicant found guilty of having solemnised a marriage when he had reason to believe there was a legal impediment to the marriage – consideration of applicant’s character, honesty and integrity – applicant not a fit and proper person to solemnise marriages – decision under review affirmed
Legislation
Acts Interpretation Act 1901 (Cth)
Marriage Act 1961 (Cth)
Working with Children Act 2005 (Vic)
Cases
Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350
Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138
Australian Broadcasting Tribunal v Bond (1990) 21 ALD 1
Batson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1660
BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91
Beckett and Tax Practitioner’s Board [2018] AATA 1860
Brice and Comcare (Compensation) [2018] AATA 3463
Clyne v New South Wales Bar Association (1960) 104 CLR 186
Davies v Australian Securities Commission (1995) 38 ALD 273
Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Fuad and Telstra Corp Ltd (2004) 39 AAR 496
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155
GJ Brown and Tax Practitioners Board [2016] AATA 740
Hasan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2457
Holloway v McFeeters (1956) 94 CLR 470
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration & Border Protection [2019] FCAFC 202
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56
MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Ali (2000) 62 ALD 673
Mouflih v Minister for Home Affairs [2019] FCA 1744
Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200
Omerdic v Angland [2018] VSC 174
Omerdic v Angland [2018] VSCA 320
Omerdic v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2019] VCAT 1555
R v Olbrich (1999) 199 CLR 270
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Siipola-Fortunaso and Registrar of Marriage Celebrants [2004] AATA 946
Stasos v Tax Agents’ Board of NSW (1990) 21 ATR 974
Tait and Secretary, Department of Family and Community Services [2003] AATA 413
The Law Society of SA v Rodda [2002] SASC 274
Williams and Registrar of Marriage Celebrants [2009] AATA 525
Secondary Materials
LexisNexis, Halsbury’s Laws of Australia (online)
REASONS FOR DECISION
Senior Member C. J. Furnell
16 June 2022

Under the Marriage Act 1961 (the Act), as a general rule, marriages in Australia must be solemnised by, or in the presence of, an authorised celebrant.[1]
[1] Act, s 41.
There are a number of categories of authorised celebrant. One such category comprises ministers of religion registered under a particular Subdivision of the Act.[2]
[2] Act, s 5(1), definition of “authorised celebrant”.
On 3 June 2021, the applicant ceased to be so registered. The respondent had removed the applicant’s name from a register of ministers of religion ordinarily resident in Victoria entitled to registration under the relevant Subdivision (the register).
The applicant applied to the Tribunal for review of the respondent’s decision to remove the applicant’s name from the register.[3]
[3] T31, p.120.
I have decided to affirm that decision. Removal of the applicant’s name from the register was mandatory. This is because, for the reasons which follow, I am satisfied that the applicant is not a fit and proper person to solemnise marriages (that is, I am satisfied that what I refer to later as the (d)(iii) ground for removal is made out).
REGISTRATION AS MINISTER OF RELIGION
A registrar of ministers of religion for a state or territory is required to keep a register of ministers of religion who are ordinarily resident in the state or territory and entitled to registration under Subdivision A of Division 1 of Part IV of the Act.[4]
[4] Act, s 27(4).
A person is entitled to be so registered if, amongst other things, the person is a minister of religion of a recognised denomination and the person is nominated for registration by that denomination.[5]
[5] Act, s 29.
A person whose name is entered on a register of ministers of religion is an authorised celebrant.[6]
[6] Act, s 5, definition of “authorised celebrant”.
An authorised celebrant occupies an office of importance under the Act. As already mentioned, it is generally the case that a marriage in Australia must be solemnised by or in the presence of an authorised celebrant.[7]
[7] Act, s 41.
In comments which I consider to be equally applicable to ministers of religion who are authorised celebrants, DP Hotop in Williams[8] characterised the office held by marriage celebrants (a category of authorised celebrant) as being:
“…an important public office which entails significant legal obligations and responsibilities for persons holding that office. Furthermore, a marriage celebrant is authorised by the Act to perform a function which is of fundamental importance to the stability and wellbeing of Australian society. Namely, the solemnisation of marriage whereby individuals enter in a solemn and binding relationship involving important legal and social consequences for them.”
[8] Williams and Registrar of Marriage Celebrants [2009] AATA 525 at [36].
Under s 33(1) of the Act, a person’s name must be removed from a register of ministers of religion if the relevant registrar is satisfied of any one or more of certain matters.
For instance, a person’s name must be so removed if the registrar is satisfied that the person:
(a)“has been guilty of such contraventions of this Act or the regulations as to show him or her not to be a fit and proper person to be registered under this Subdivision”[9] (the (d)(i) ground); or
(b)“is not a fit and proper person to solemnise marriages”[10] (the (d)(iii) ground).
[9] Act, s 33(1)(d)(i).
[10] Act, s 33(1)(d)(iii).
ASPECTS OF FACTUAL BACKGROUND TO REMOVAL OF APPLICANT’S NAME FROM REGISTER
Prior to 2017, the applicant’s name had been entered on the register and he had solemnised many marriages as an authorised celebrant.
On 10 January 2017, the respondent removed the applicant’s name from the register at the request of the Australian Federation of Islamic Councils.[11]
[11] T6, p.54 (letter of 5 January 2017).
On 21 June 2017, the applicant was convicted in the Victorian Magistrates Court of an offence under s 100 of the Act. He was found to have solemnised a marriage on 29 September 2016 when he had reason to believe that there was a legal impediment to the marriage. He was sentenced to a term of imprisonment of two months.[12]
[12] Act, s 100; T3, p.51. The applicant was released on giving a recognisance of $2500 and on condition that he be of good behaviour for 24 months: T14, p.63.
Some details as to the circumstances of the applicant’s offending are outlined later. For present purposes, however, I simply mention that the marriage said to have been solemnised by the applicant involved a groom (Mr S) aged 34 and a bride (Ms C) aged less than 18 who was said by the applicant to be then attending year 10 at school.[13]
[13] Hearing transcript, p.18; p.23.
On 13 April 2018, an appeal from that conviction was dismissed by Keogh J in the Victorian Supreme Court.[14] Amongst other things, His Honour rejected a proposition that it was not reasonably open to the Magistrate to have found that the applicant intended to solemnise a marriage when he conducted a particular ceremony involving Ms C and Mr S.
[14] T1, pp.12-32; Omerdic v Angland [2018] VSC 174 (VSC).
On 4 December 2018, leave to appeal Keogh J’s decision was denied by the Victorian Court of Appeal,[15] in part because the applicant was not considered to have a reasonable prospect of successfully establishing that His Honour had erred in rejecting that proposition.
[15] T2, pp.33-50; Omerdic v Angland [2018] VSCA 320 (VSCA).
On 7 October 2019, Mr M Dwyer, a deputy president of the Victorian Civil and Administrative Tribunal (DP Dwyer), decided to affirm a decision to give the applicant a negative notice under the Working with Children Act 2005 (Vic).[16]
[16] Omerdic v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2019] VCAT 1555 (the VCAT decision).
On 27 January 2021, the Australian Federation of Islamic Councils nominated the applicant for inclusion in the register.[17]
[17] T15, p.64.
On 23 February 2021, the applicant’s name was included in the register.[18]
[18] T16, p.66.
On 7 April 2021, the respondent provided a defective notice of intention to remove the applicant’s name from the register in reliance on both the (d)(i) ground and the (d)(iii) ground.[19]
[19] T21, p.84.
On 20 April 2021, lawyers for the applicant made representations on his behalf as to why his name should not be removed from the register.[20]
[20] T23, pp.88-94.
On 27 April 2021, the respondent provided a revised notice of intention to remove the applicant’s name from the register.[21] Again, the respondent sought to rely on both the (d)(i) ground and the (d)(iii) ground.[22]
[21] Neither party contended that the respondent was precluded from issuing a second notice of intention. Unlike the legislation considered in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91, the obligation to serve a notice of intention is not expressed in terms suggestive of a legislative intention contrary to s 33 of the Acts Interpretation Act 1901, a section which requires that a provision conferring a power be interpreted as authorising the power it confers to be exercised and re-exercised from time to time.
[22] T25, p.104.
On 3 June 2021, as mentioned earlier, the respondent decided to remove the applicant’s name from the register.[23]
[23] T29, p.116.
In making that decision, the respondent relied only upon the (d)(i) ground. In its notice of the decision, the respondent stated that “I have decided to remove you on the grounds set out in section 33(1)(d)(i) for such contraventions of the Marriage Act as to show you not to be a fit and proper person to be registered as a Minister of Religion.”
PRELIMINARY ISSUES AS TO SCOPE OF REVIEW
Before proceeding further, I will address two preliminary issues affecting the scope of the Tribunal’s review in this matter.
The first issue concerns the question of whether, in undertaking that review, the Tribunal is confined to consideration of the (d)(i) ground only or whether it can also consider the (d)(iii) ground.
The second preliminary issue concerns the extent to which the Tribunal can consider submissions made, and evidence adduced, by the applicant directed to impugning findings made in the context of his conviction and sentencing in June 2017.
As identified earlier, the decision the subject of review was made in reliance on the (d)(i) ground. In reviewing that decision, however, I find that I am not confined to that ground and that I can also consider the (d)(iii) ground.
This is so despite what was said by Rares J in CPJ16.[24] In that decision, His Honour considered a refusal to grant a visa because of a failure to satisfy the relevant delegate that the applicant in that matter had passed the character test provided for in a particular provision of the Migration Act 1958. The Tribunal, on review, refused an application to include in the review consideration of the issue of whether the applicant did not pass the character test under another provision of that Act. According to His Honour, the Tribunal was right to do so. This was because:
… the Tribunal’s task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the delegate’s findings and reasons, so that the character of the review can be shaped by that consideration.[25]
[24] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 (CPJ16).
[25] CPJ16 at [66]. See also CPJ16 at [68] where His Honour stated that “… because the failure of the applicant to satisfy the delegate about the criterion in s 501(6)(d)(i) was the ground of his decision in the exercise of the power under s 501(1), that ground confined the issues on the review.”
Applying that description of the Tribunal’s task to this proceeding, it might have been said that, as shaped by the respondent’s decision of 3 June 2021, the only issue before the Tribunal concerns the applicability of the (d)(i) ground. As is apparent from the conclusion I expressed earlier, however, I do not accept that the issues before the Tribunal are so confined.
First, the Tribunal’s role is to review decisions, not reasons for decisions.[26] As Logan J recently said in Batson,[27] “…[o]verarchingly, the Tribunal’s task was to review the delegate’s decision. In that task, it was unconstrained by the view reached by the delegate. The Tribunal was required to make its own assessment based on the material before it.”
[26] Austin v Secretary, Department of Family and Community Services (1999) 92 FCR 138 at [25]; Tait and Secretary, Department of Family and Community Services [2003] AATA 413.
[27] Batson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1660 at [11].
Second and relatedly, confining the role of the Tribunal on review of a decision by reference to grounds relied upon by the decision-maker appears inconsistent with the role of the Tribunal as described by the High Court in Makasa.[28] There, that role was said to be:
“‘to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision maker for the purpose of making the decision under review’. The function of the AAT, in other words, is ‘to do over again’ that which was done by the primary decision maker.”
[28] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 (Frugtniet) at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi) at 315 [100].
In doing over again that which was done by the respondent, the Tribunal is not only vested with the powers and functions of the respondent[29] but is also subject to the obligations and constraints which bound the respondent. The Tribunal is required to act “…in accordance with the law as it applied to…” the respondent,[30] subject to the same constraints as applied to the respondent.[31] In reviewing a decision, the considerations of relevance to the Tribunal standing in the shoes of the decision-maker are determined by the “question raised by the statute for consideration”[32] or the “question raised by statute for decision”.[33]
[29] Frugtniet at [14], [15] and [51].
[30] Frugtniet at [14]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [134] per Kiefel J (as Her Honour then was).
[31] Western Australian International Education Marketing Group and Australian Trade Commission [2003] AATA 1267. See also Frugtniet at [14].
[32] Frugtniet at [15].
[33] Frugtniet at [51], noting that the Tribunal “…has no jurisdiction to make a decision on the material before it taking into account a consideration which could not have been taken into account by the primary decision-maker in making the decision under review…”: Frugtniet at [53] per Bell, Gageler, Gordon and Edelman JJ.
Here, the question raised by the Act for consideration or decision is whether the Tribunal (standing in the respondent’s shoes) is satisfied that any one or more of the grounds identified in the respondent’s notice of intention to remove the applicant’s name from the register apply in relation to the applicant (noting that the Tribunal, being subject to the same constraints as the respondent, is precluded from relying on grounds other than those mentioned in that notice of intention[34]). As noted earlier, that notice of intention expressly raised the (d)(iii) ground as a matter the subject of consideration, as well as the (d)(i) ground.
[34] Act, s 33(2), under which the respondent is precluded from removing a name from the register of ministers of religion in reliance on a ground in s 33(1)(d) without first having given notice of its intention to do so in reliance on that ground and considered representations in response to the notice.
Thirdly, while the respondent would appear to have ultimately chosen not to rely on the (d)(iii) ground (given no reference to it in the respondent’s decision of 3 June 2021), the issue concerning the applicability of that ground was before the respondent. As an issue before the respondent, it was an issue which the respondent was able to address, consistent with the constraints binding upon the respondent. As such, it is an issue which the Tribunal now has jurisdiction to address.[35]
[35] As in compensation matters, the Tribunal may acquire jurisdiction with respect to matters before the relevant decision-maker. See Fuad and Telstra Corp Ltd (2004) 39 AAR 496; Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33 at [26]; Brice and Comcare (Compensation) [2018] AATA 3463 at [68] where it was said that matters before a decision maker are matters before the Tribunal whether or not “…they were squarely dealt with or dealt with in any way in the reconsideration decision (or the anterior determination)”.
I turn now to the second preliminary issue concerning the extent to which the Tribunal can consider submissions made and evidence adduced by the applicant directed at impugning findings made in the context of his conviction and sentencing in June 2017.
While he did not explicitly state that he was innocent of the charge of which he had been convicted, much of what was said by the applicant, or on his behalf in connection with this proceeding, reflected a challenge to the validity of that conviction.
In particular, the applicant continued to challenge the mental element of the conviction. As will soon be seen, his submissions and evidence were in large part directed to supporting a submission to the effect that that he did not intend to solemnise a marriage between Ms C and Mr S.
At the commencement of the hearing of this proceeding, I informed the parties of how I intended to approach this issue.

I said that I considered I was able to entertain evidence and submissions that challenged findings underlying the applicant’s conviction and sentence if the conviction or sentence (as applicable) did not constitute a foundation for the Tribunal’s jurisdiction.[36] A heavy burden would need to be met, however, before such a finding would be rejected or a contrary finding made,[37] noting that a conviction and sentence are probative of the factual findings on which they are based.[38] Hence, to arrive at a contrary factual finding, the material before me supportive of the contrary finding would need to be of a significance sufficient to outweigh the probative value of the finding inherent in the conviction or sentence.[39]
[36] HZCP v Minister for Immigration & Border Protection [2019] FCAFC 202 at [77] and the discussion of that case in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [72].
[37] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 per Bromberg J at first instance at [78] cited in Minister for Home Affairs v Sharma [2019] FCA 597 at [20]. See also R v Olbrich (1999) 199 CLR 270 at [1], where it is said that, in passing sentence, “…the judge's conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important.”
[38] Minister for Immigration & Multicultural Affairs v Ali (2000) 62 ALD 673 at [41] where it is said that “it seems to me to be clear beyond argument that the administrative decision maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based.”
[39] Minister for Immigration & Multicultural Affairs v Ali (2000) 62 ALD 673 at [41] where it is noted that a conviction or sentencing is probative of the findings on which it is based.
These propositions are reflected in comments of Branson J in Ali.[40] Her Honour considered that, as a consequence of certain policy considerations, the legislation under consideration by her (the Migration Act 1958):
“…should be construed as requiring a decision-maker under…[the section of the Migration Act of concern] to treat a conviction and sentence… as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted…”
[40] Minister for Immigration & Multicultural Affairs v Ali (2000) 62 ALD 673 at [43].
As I see it, the Act should be construed in a like manner. The policy considerations to which Her Honour referred are ones which the legislature would have intended apply in administering the Act.[41]
[41] Those policy considerations are ones requiring recognition “that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences” and which seek to limit “inconsistency between decisions of the criminal courts and those of tribunals”: Minister for Immigration & Multicultural Affairs v Ali (2000) 62 ALD 673 at [43]. As to that first consideration, see also HZCP v Minister for Immigration & Border Protection [2019] FCAFC 202 at [77] where McKerracher J observed that “It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function… The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.”
The parties were invited to make submissions as to the Tribunal’s intended approach. Being unrepresented, the applicant understandably did not do so. The respondent endorsed the Tribunal’s intended approach.
In application of that approach, the respondent contended that the applicant’s conviction was foundational with respect to the Tribunal’s jurisdiction in considering the (d)(i) ground. As such, when considering that ground, it was not (so the respondent contended) open to the Tribunal to entertain material that impugned findings which underlie that conviction. Such material could be entertained, however, when considering the (d)(iii) ground.
Insofar as it relates to the (d)(i) ground, I do not need to come to a concluded view in relation to this contention. As indicated earlier, I have affirmed the decision the subject of review in reliance on the (d)(iii) ground and, in so doing, have entertained evidence and submissions that sought to impugn findings underlying the applicant’s conviction and sentence. Ultimately, however, this did not serve to advance the applicant’s position. That evidence and those submissions did not come close to overcoming the strong prima facie presumption in favour of the validity of those findings.
FIT AND PROPER PERSON
A consideration of each of the (d)(i) and (d)(iii) grounds in the circumstances requires an assessment to be made of whether the applicant is not a fit and proper person; in the case of the (d)(i) ground, to be registered under the subdivision of the Act dealing with registration of ministers of religion or, in the case of the (d)(iii) ground, to solemnise marriages.
The “fit and proper person” expression has been considered in a number of cases.
In the frequently cited decision of Hughes,[42] it was said that the “very purpose” of the expression is:
“…to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it.’” [43]
[42] Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 (Hughes) at 156, a decision made in the context of licences to use vehicles in interstate trade.
[43] Hughes at 156-157, cited with apparent approval in Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350 at [23].
Kiefel J (as Her Honour then was) in Shi[44] echoed Hughes in saying that “[t]he expression “fit and proper” is one traditionally used with reference to an office or vocation, “fit” being referable to a person’s honesty, knowledge and ability.”
[44] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [148].
Toohey and Gaudron JJ in Bond[45] stated that the question of whether a person is fit and proper can be assessed by reference to the person’s character or reputation.[46] It is, their Honours said, one that calls for a value judgment^:[47]
“In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.”
[45] Australian Broadcasting Tribunal v Bond (1990) 21 ALD 1 (Bond) at 40.
[46] Bond at 42.
[47] Bond at 46.
Where used in relation to a particular office or occupation, the content of the fit and proper person expression will vary.[48] Thus, according to Hill J in Davies:[49]
“…the characteristics required to show fitness as a tax agent were expressed by Davies J in Re Su and Tax Agents’ Board of South Australia (1982) 13 ATR 192; 82 ATC 4284 at 4286 as requiring that person to be… a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently.”
[48] Stasos v Tax Agents’ Board of NSW (1990) 21 ATR 974 at 985, where it is said that what constitutes someone as fit and proper to “…occupy a particular office or pursue a particular vocation will vary having regard to the office or vocation under consideration.”
[49] Davies v Australian Securities Commission (1995) 38 ALD 273 (Davies) at 282–3 per Hill J.
Hence, the context in which the expression is employed is of particular relevance. As was said in Maritime Union of Australia v Fair Work Commission,[50] the “… phrase a ‘fit and proper person’ is used in many different statutory contexts…But the correct ambit in which that phrase operates is always to be determined by reference to the specific statutory context in which it is employed.”
[50] Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 at [17].
In a similar vein, in Bond,[51] Toohey and Gaudron JJ said that:
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[51] Bond at 40, cited with approval in Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 at [17].
While the content of the expression is coloured by the context in which it is employed, however, this does not mean that broader considerations have no role to play. Hence, it is not inappropriate to have regard to the general integrity of the person concerned[52] or, put another way, the person’s honesty[53] or character.[54]
[52] Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 at [21]. See also Davies per Hill J.
[53] As put in Hughes and Shi.
[54] As put in Bond.
This is consistent with the approach of DP Hotop in Williams.[55] There, it was said that “significant matters to be considered…, in determining whether a person is a fit and proper person to hold the office of marriage celebrant under the Act include the character and integrity of that person.”
[55] Williams and Registrar of Marriage Celebrants [2009] AATA 525 at [36].
I turn now to identify aspects of the applicant’s conduct of relevance to the assessment required when considering application of the (d)(iii) ground and, in particular, to an assessment of the applicant’s character, honesty and integrity.
CONDUCT IN SEPTEMBER 2016
As mentioned earlier, the applicant’s conviction and sentencing in June 2017 relate to events on 29 September 2016. On that date, the applicant conducted a ceremony[56] involving Ms C and Mr S. The applicant was then the Imam of the Bosnia and Herzegovina Islamic Centre in Noble Park (the Centre) and was authorised under the Act to solemnise marriages.
[56] When reference is made in these reasons to the ceremony of 29 September 2016, the intent is to encapsulate what then occurred, be it a ceremony or a service (noting the applicant’s evidence that a nikah is a religious service, not a ceremony): see Hearing transcript, p.27.
When he conducted the ceremony, the applicant was aware that Ms C was not of marriageable age.[57] Official documentation is said to suggest that she would then have been aged 14.[58] The applicant says he thought she was then around 17 albeit that he accepted that she could have been 15.[59] In any case, the applicant then thought her to be “very young”.[60]
[57] T1, p.13 (VSC) [2]; T2, p.34 (VSCA) [4].
[58] VCAT decision [42].
[59] Transcript of police record of interview with the applicant on 25 October 2016 (police interview transcript), p.56. This acceptance that she could have been 15 seems difficult to reconcile with the applicant’s evidence before the Tribunal that he asked Ms C how old she was and her response was “around 17”: Hearing transcript, p.22. Before DP Dwyer, the applicant apparently stated that he thought Ms C to be aged 16: VCAT decision [41].
[60] Transcript of a translation into English of a video recording (ceremony transcript), p.6.
The ceremony was attended by Ms C, Mr S, two male witnesses and Ms C’s mother. Apparently unbeknown to the applicant at the time, part of it was recorded on a mobile phone owned by Mr S.[61] The ceremony transcript before the Tribunal is of the audio of that recording (and includes some translation into English).
[61] T1, p.14 (VSC) [6]; T2, p.36 (VSCA) [14].
The video of the recording (which was not before the Tribunal) is said to show a number of people in the applicant’s office at the Centre, with the applicant dressed in robes.[62]
[62] T2, p.37 (VSCA) [15].
Early in the ceremony, the applicant asked Mr S whether he had “anything for her” and then noted that he had “given it to her”, the “it” apparently being gold valued at $1480.[63]
[63] Ceremony transcript, pp.3-5.
The applicant then said: “You've given it to her, so I write here given already.”
I interpose to mention that the police seized a number of documents from the Centre. They included a document headed “Certificate of Islamic Marriage” the form of which the applicant had confirmed was provided by the Imams Board[64] (the “marriage certificate”). It certified that Mr S and Ms C had “been united in an Islamic marriage” by the applicant. It was signed by Ms C, as bride; Mr S, as bridegroom; the applicant, as officiating imam; and two people characterised as witnesses.[65] It notes that the “mahr” offered by the bridegroom is “gold ($1480) given”.
[64] T2, p.39 (VSCA) [19].
[65] T2, p.36 (VSCA) [11].
Once the issue of the “mahr” had been addressed, discussion at the ceremony turned to the marriage certificate.
The applicant said he would not give Mr S or Ms C the certificate now, “just in case”. Mr S then requested a copy of it but the applicant refused; “… because she's very young I can't give you certificate.”[66] Later, he stated that “because of my security I can't give you this.”[67] He did say, however, that he would give Ms C the certificate if she needed it later, once she had turned 18.
[66] Ceremony transcript, p.6. Later, at p.7, the applicant states “And because - because she's - she's young I can't give you this.”
[67] Ceremony transcript, p.8.
The applicant was then asked what would happen if “DHS people come”. The applicant asked who this was. He was told “child protection.” The applicant’s advice, should this occur, was to simply say “I love him”. The applicant was then asked “…when they ask you you said that we all did nikah?” The applicant said no, “Just say, ‘We had a prayer,’” advice he subsequently repeated.[68]
[68] Ceremony transcript, p.9.
It would seem the applicant’s refusal to let Mr S and Ms C have the marriage certificate or a copy of it was of concern to Ms C. She queried why they were doing a “nikah” if the marriage certificate could not be shown.
After an interruption, the applicant proceeded to make statements consistent with a characterisation of the ceremony being undertaken as a marriage.
He explained to those present: “marriage in Islam is not only a means of enjoyment. It is as the Holy Koran stresses a strong bond and a challenging commitment…”.
To Mr S, the applicant said “as a husband you have a - to have to remember the way you treat your wife, …[Ms C]… you have a duty to support your wife, … [Ms C], and provide her with food, clothing, home…”.[69]
[69] Ceremony transcript, pp.15-6.
To Ms C, the applicant said “…you have a duty to obey your husband in whatever does not involve this witness to Allah, so this is in general. So whatever Allah is happy with something do it. If not Allah is not happy with something don't do it. So this is general. You have the rights to express your views and make suggestions in all matters…”.[70]
[70] Ceremony transcript, p.16.
Later, the applicant stated:[71]
“The girl - the girl and bride of the marriage… will live together as a husband and wife…” …
“Now, brothers, witnesses, we are about to listen to the groom and bride giving themselves to each other…”.
[71] Ceremony transcript, p.17.
Later still, the applicant asked:[72]
Mr S, “will you take… [Ms C] to be your wife to live together according to Islam?”
Ms C, “will you take… [Mr S] to be your husband to live together according to Islam law?”
[72] Ceremony transcript, p.20.
COMMENTS ON SEPTEMBER 2016 CONDUCT
As previously mentioned, as a result of what transpired on 29 September 2016, the applicant was convicted of an offence of having solemnised a marriage when there was reason to believe there was a legal impediment to that marriage, the legal impediment being that Ms C was not of marriageable age. Not only was Ms C not of marriageable age but, as is apparent from the ceremony transcript, the applicant then knew her to not be of marriageable age.
As mentioned earlier, the meaning to be given to the ‘fit and proper person’ expression is coloured by the statutory context in which it is employed. In this case, we are considering a statutory context which accords some significance to the requirement that parties to a marriage be of marriageable age. As pointed out by the Respondent, the marriage of minors is strictly regulated under the Act. Such a marriage is prohibited unless the minor is at least 16 and, even then, can only be authorised if, amongst other things, the circumstances are considered by a Judge or Magistrate to be exceptional and unusual.[73] Absent such authorisation, a person will only be of marriageable age if he or she is at least 18.[74] A marriage to a person not of marriageable age is void.[75]A person convicted of the offence of going through a form of ceremony of marriage with a person not of marriageable age faces a penalty of up to five years’ imprisonment.[76]
[73] Act, s 12(2).
[74] Act, s 11.
[75] Act, s 23B(1)(e).
[76] Act, s 95.
Given the significance accorded by the Act to the requirement that parties to a marriage be of marriageable age, the solemnisation by the applicant of a marriage where that requirement was not met was a serious failure. While I do not express a concluded view on the matter (given my reliance on the (d)(iii) ground), it is a failure which of itself might be sufficient to show the applicant “not to be a fit and proper person to be registered under” the Act.
The seriousness of the applicant’s failure to observe the marriageable age requirements of the Act are seen in its consequences. As DP Dwyer observed, the applicant was “…facilitating a 34-year-old man to have sexual access to…” a minor (a minor who the applicant thought to be “very young”) and, as such, was “…a facilitator of sexual harm to a child.”[77]
[77] VCAT decision [44].
Moreover, the circumstances of the applicant’s failure are such as to suggest that, quite apart from the 29 September 2016 ceremony, the applicant may not have been scrupulously observing the requirements of the Act.[78] Such a suggestion is reinforced when regard is had to the other requirements of the Act which the applicant failed to observe in the context of that ceremony.[79] Additionally, aspects of the applicant’s evidence might be taken to suggest that he may have been involved in solemnising marriages of parties not of marriageable age before 29 September 2016. In this regard, I note the applicant’s evidence before the Tribunal to the effect that, as a result of him having been convicted, couples now go to Indonesia for nikahs.[80] I also note that, when asked by the police how many marriages he had done in the last year under Islamic law, the applicant’s response was:
“…just recognise like this - this way, maybe a Few… All - all - all people like to be recognised and to be registered. Maybe just a few students…”.[81]
[78] See Siipola-Fortunaso and Registrar of Marriage Celebrants [2004] AATA 946 in which SM McCabe (as he then was) affirmed a decision not to register a person as a marriage celebrant on the basis that she was not a fit and proper person, having placed an inaccurate advertisement to the effect that she was then a marriage celebrant. At [34], it was said that what she did in placing that advertisement “… on its own would be enough to suggest …[she] might not scrupulously observe the legal formalities associated with the role, or communicate the seriousness of the obligations to the parties.”
[79] Indeed, as outlined by the applicant in his appeal before Keogh J, the solemnisation of the marriage of Ms C to Mr S occurred in the context of a failure to observe a number of requirements of the Act, including requirements relating to notice of intention to marry, registration, an Australian certificate of marriage and provision of identification as to age: see T1, p.28 (VSC) [44].
[80] Hearing transcript, p.49.
[81] Police interview transcript, p.74.

Any suggestion that the applicant was involved in solemnising marriages of parties not of marriageable age prior to 29 September 2016 is, however, merely conjecture and is not something on which the applicant had an opportunity to be heard. I attribute no weight to it. Instead, my decision in this matter is based on the applicant’s conduct on and after 29 September 2016, being conduct which I consider raises serious issues as to his character, honesty and integrity.
CONDUCT WHEN INTERVIEWED BY POLICE IN OCTOBER 2016
In October 2016, the applicant was interviewed by Victorian police. The police transcript is a record of that interview. A charitable characterisation of the applicant’s approach to that interview is that he was less than candid.
The police transcript is in three parts:
“…answers given by the applicant when he was unaware that the informant had obtained the Certificate of Islamic Marriage and an audiovisual recording of the ceremony; answers given after the applicant became aware that the informant had obtained the Certificate of Islamic Marriage but not the audiovisual recording; and answers given once the applicant had been shown the audiovisual recording.”[82]
[82] T2, p.37 (VSCA) [18].
In the first part of the transcript, when the applicant was unaware the police had the ceremony transcript and a copy of the marriage certificate, the applicant made a number of assertions concerning the ceremony that took place on 29 September 2016. Many of those assertions are factually incorrect. Moreover, as will soon become apparent, several of those assertions are inconsistent with statements made by the applicant to the Tribunal.
The applicant stated that he had been approached a few days before the ceremony by Mr S, asking to see the applicant. The applicant said his response to this request was to say "O.K. but you see me whenever you like. So I'm busy now. So that's all. I went my job, he went - he went his job so - and in a few days later he just brought a group with him and he find me after prayer.”[83]
[83] Police interview transcript, p.2.
The group which Mr S was said by the applicant to have brought with him on 29 September 2016 comprised three men, a girl and an older woman.[84] The applicant said he did not ask for the names of anyone in the group,[85] and that he did not know who the older woman was (and, indeed, when interviewed by the police in October 2016, still did not know who she was).[86]
[84] Police interview transcript, p.9.
[85] Police interview transcript, p.3.
[86] Police interview transcript, p.50.
The applicant said that when the group of five attended his office, Mr S explained that he loved a girl and wanted to be with her. At Mr S’s request, the applicant “…made a prayer”. The applicant described the prayer as one “… to love each other, God to save them, to help them, to secure them.”.[87] He stated that it was a “Prayer for wellbeing. I think, like, prayer for myself, prayer for my kids”,[88] a traditional prayer which he did every day.[89]
[87] Police interview transcript, p.3.
[88] Police interview transcript, p.12.
[89] Police interview transcript, p.13.
This prayer was, the applicant stated, the only thing he read to the group.[90] According to the applicant, no mention was made to him of marriage: “They not mentioning about marriage about anything, any relationship, they just love each other.”[91] The applicant subsequently repeated that Mr S made no mention of marriage.
[90] Police interview transcript, p.13.
[91] Police interview transcript, p.3.
I digress simply to note that the applicant’s statement to the police that he simply made a prayer is consistent with the advice he gave Ms C as to what she should say should she be subsequently approached by “child protection”.
Back to the police transcript, the applicant explained that he was able to conduct a marriage recognised by the government and one simply recognised by Sharia law, with the latter one subsequently described by the applicant as a “nikah”. He said both types of marriage involved the same ceremony.[92] In the latter type of marriage (i.e., a nikah), in order to provide some proof of marriage, the couple would be given an Imams Board marriage certificate. While not the certificate required under Australian law, the Imams Board certificate was said by the applicant to be “still official -official through view of Islam, because they -they submit it to each other…they have witnesses, they make agreement, they give to each other dowry,” which the applicant later clarified as something usually given by the groom.[93]
[92] Police interview transcript, p.22.
[93] Police interview transcript, p.24.
The applicant asserted he would never let people sign an Imams Board marriage certificate without first asking for documentation or a statutory declaration showing their age.[94] The applicant went on to state that he did not ask Ms C or Mr S for such documentation because “they didn’t mention marriage” [95] and that he had no records or paperwork concerning what had taken place between Ms C and Mr S.[96]
[94] Police interview transcript, pp.30-1.
[95] Police interview transcript, p.32. Once shown the marriage certificate, the applicant then said he could not remember whether Ms C provided identification: Police interview transcript, p.49.
[96] Police interview transcript, p.33.
The applicant then explained that before marrying a couple he would ask:
“You like to be registered or just nikah?" ‘Nikah’ means marriage that Sharia asks to be witnesses there, groom and bride, physical attending there, no telephone conversation, to be there physical, and to be dowry agreement between them. They going to look after each other and - or answer my question and then they make prayer, and they know what is this, marriage. Is not only relationship, not only relationship, not only engagement, it's marriage. Mean them lawful to have for intimacy.”[97]
[97] Police interview transcript, p.42. The applicant had earlier stated that in Islam, intimacy is not lawful before, but is lawful after, marriage: Police interview transcript, p.28.
The applicant stated that, when undertaking official work, he would wear robes but on 29 September 2016 he “had casual clothing on that day for sure”.[98] As mentioned earlier, the video of part of the ceremony presided over by the applicant on that day is said to show him wearing robes.
[98] Police interview transcript, p.59.
The process adopted by the applicant when he performed marriage ceremonies was described by him. Once the certificate is signed, he said he would outline the responsibilities of a wife and husband.
The applicant subsequently recognised he had adopted that process in the context of the 29 September 2016 ceremony. In particular, after the applicant was shown the video recording of part of the ceremony, he accepted that he had read from two documents, one entitled “Dear Groom, Bride, Brothers, Sister, Ladies and Gentlemen” and the other entitled “Duties and Rights of a Wife”.[99]
[99] Police interview transcript, pp.64-5.
Once presented with that recording, the applicant’s position was, in effect, that Ms C and Mr S had not been married because she had not provided the applicant with identification. Otherwise, according to the applicant, there was no difference between the ceremony he conducted for Ms C and Mr S and the ceremony he would conduct when presiding over a marriage.[100]
[100] Police interview transcript, pp.66-7.
The applicant also accepted that Ms C and Mr S would have thought that they were married,[101] that what had occurred “looked like” a marriage[102] and that Ms C and Mr S left the ceremony believing they were husband and wife; “they thought…they are married.”[103]
[101] Police interview transcript, p.68.
[102] Police interview transcript, p.72.
[103] Police interview transcript, p.68.
COMMENTS ON POLICE INTERVIEW
As Keogh J noted in the context of the applicant’s appeal against his June 2017 conviction, when regard is had to what the applicant said in his police interview, it was open to the Magistrate “…to conclude that Mr Omerdic’s credit was significantly impugned.”[104]
[104] T1, p.31 (VSC) [51].
As is apparent from what has just been said, there are a large number of inconsistencies and inaccuracies in the applicant’s answers to police. In the initial part of the interview, when the applicant was unaware that the police had a recording of at least part of the 29 September 2016 ceremony and a copy of the marriage certificate, much of what was said by the applicant about that ceremony diverged materially from what is apparent from the ceremony transcript.
As outlined by Keogh J:
“[t]hese inconsistencies include Mr Omerdic saying the ceremony was ‘short and sharp’, and lasted around five minutes. The video recording lasted 12 minutes and the ceremony was not completed when it stopped. Early in the record of interview Mr Omerdic said on a number of occasions there had been no mention of marriage, and that he only performed a prayer for wellbeing. However, marriage was not only mentioned, but was clearly part of the ceremony performed. When confronted with the video recording Mr Omerdic accepted what he said was the text of marriage and his usual procedure. Mr Omerdic said that he was wearing casual clothes, yet the video recording demonstrated this was not so. Mr Omerdic said nothing was written down or recorded, yet the Certificate was completed, signed by the parties, and signed by Mr Omerdic as officiating Imam. Mr Omerdic said that he did not read out the responsibilities of the bride and groom… In fact Mr Omerdic read the parties their rights and obligations as husband and wife.”[105]
[105] T1, p.31 (VSC) [50].
Additionally, the applicant’s initial statement to police that he always required parties to show identification before having them sign an Imams Board certificate of marriage is clearly incorrect, assuming that (as asserted by the applicant) he did not obtain identification from, at least, Ms C.
On behalf of the applicant, it was submitted that at the time of the police interview he was reeling from the shock of the police having raided his office and that he may not have explained himself clearly.[106] I do not accept that submission. Shock and a lack of clarity do not serve to explain the inconsistencies and inaccuracies outlined.
[106] T23, p.90.
Along with the serious failure constituted by the applicant’s conduct in September 2016, these inconsistences and inaccuracies do not speak well of the applicant’s character, honesty and integrity. The impression they leave is reinforced when regard is had to certain statements made by or on behalf of the applicant since being interviewed by police in October 2016. As will soon be seen, I find a number of those statements to be implausible.
APPLICANT’S SUBMISSIONS TO THE TRIBUNAL AND EVIDENCE AT TRIBUNAL HEARING[107]
[107] At the hearing, the Applicant was self-represented. He gave some oral evidence with the assistance of a Bosnian interpreter, and some oral evidence in English.
Before the Tribunal, the applicant gave evidence to the effect that he did not intend to solemnise a marriage between Ms C and Mr S. His intention was simply to make a prayer that would make it culturally acceptable for Mr S to accompany Ms C in public.[108] According to the applicant, the ceremony he performed did not have any of the characteristics of a marriage ceremony and he “didn't have intention what's so ever to marry this young lady or any other parties under marriageable age.”[109]
[108] This was repeated on a number of occasions at the hearing of this proceeding and in material lodged prior to the hearing. For example, see Hearing transcript, pp.19-20. The applicant stated “They just said a prayer to give the minimal freedom to be together on the street”: Hearing transcript. p.48. See also the applicant’s email to the respondent of 4 March 2021 at T18, p.70 in which it is said that “Because of prayer in September 2016 i read for girl who was at the time under 18 y o. police charge me due to girl who slept with a guy who should be her guardian to school but not husband . I didn mean , i didnt want , i didnt have intention to marry this GIRL to her guardian to school i apologise of misunderstanding of police , media and community.” At Hearing transcript, p.51, the Applicant said: “This prayer was to give them minimum freedom to be together, to be seen together, maybe hold hands together.”
[109] T26, pp.107-8 (email of 16 May 2021) See also application for review at T31, p.125: “Once I performed a prayer to young lady who was under marrigable age by damands of here mother , but I didnt have intention to marry young lady to guy who suposed to be her guidiance to school and back home afternoon . The young lady claimed to her mother that She wanted to sleep with a guy because She is Married to him. The mother didn agree. The police believed to young lady because She claimed that She is married . The guy never said that He is marry to this girl. I never ever wanted to marry underage girls or boys. I never ever have intention and I will never have to perform a marriage act to underage girls or boys.”
I reject the applicant’s evidence in this respect.
The applicant’s conviction in 2017 reflects a finding that he did intend to solemnise a marriage between Ms C and Mr S. As noted by Keogh J, the “…conclusion of guilt necessarily involved a finding by inference that when Mr Omerdic performed the ceremony he intended to solemnise a marriage…”.[110]
[110] T1, pp.29-30 (VSC) [48]. This analysis was implicitly endorsed in the Court of Appeal: T2, 48 (VSCA) [51].
As stated earlier, I might have been prepared to depart from that finding should the material before me have warranted it. That material does not, however, warrant such a departure. To the contrary, that material is strongly supportive of the finding implicit in the applicant’s conviction that he intended to solemnise a marriage. In this regard, I mention, in particular:
(a) The repeated references in the ceremony transcript to Ms C and Mr S being married, to Ms C as the wife, and to Mr S as the husband.
(b) As revealed in the ceremony transcript, the fact that the applicant read to Ms C and Mr S the text he used for marriages.[111]
(c)The applicant’s concession in a submission lodged on his behalf with the Tribunal that, in the context of that ceremony, he had recited the traditional Islamic marriage vows.[112]
(d)The completion of the marriage certificate by the applicant, Ms C, Mr S and certain witnesses which, amongst other things, states that Ms C and Mr S had “been united in an Islamic marriage”.
(e)The applicant’s acceptance, when interviewed by the police, that there was no difference between the ceremony he conducted for Ms C and Mr S and the ceremony he would conduct when presiding over a marriage
(f)The applicant’s acknowledgment that what had occurred “looked like” a marriage[113] and that what occurred “looks like a wedding ceremony.”[114]
(g)The applicant’s acknowledgment that Ms C and Mr S would have left the ceremony of 29 September 2016 thinking “…they are married.”[115]
[111] Hearing transcript, p.19.
[112] T23, p.90.
[113] Police interview transcript, p.72.
[114] Hearing transcript, pp.44-5.
[115] Police interview transcript, p.68.
The applicant’s explanation for using the text he used for weddings when presiding at the 29 September 2016 ceremony was that he “…didn't have another script. I use this text as a general one, because I couldn't find anything more appropriate for that situation there.”[116]
[116] Hearing transcript, p.44.
That explanation is implausible. The applicant was an Imam who had been leading prayers for almost 30 years and who, it was submitted, had said prayers for people nearly every day in that period. In this circumstance, I reject the suggestion that, when “making a prayer for minimal freedom,”[117] the only words the applicant could come up with reflected the script he employed for marriages.
[117] See paragraph 136 of these Reasons.
I also reject the proposition that the script he employed for marriages was the one he used generally. Indeed, when interviewed by the police, the applicant was able to describe a possible alternative prayer, being a “Prayer for wellbeing. I think, like, prayer for myself, prayer for my kids,” a traditional prayer which the applicant claimed to be one he said every day.[118]
[118] Police interview transcript, p.12.
Similarly, the applicant’s explanation for him having signed, and for having procured the various participants in the September 2016 ceremony to sign, the marriage certificate is implausible.
As to the certificate, the applicant said it was “…made specially for myself, for my evidence, because as I mentioned earlier, I have many cases they come to me all the time, and sometimes I can't remember. So it was specifically for my reference.”[119]
[119] Hearing transcript, p.46.
It is accepted that a person in the applicant’s position in 2016, interacting with many people, might wish to keep records of those interactions as an aide memoire. The applicant is an educated man, however. Why he simply could not have written a note to himself outlining his interaction with Ms C and Mr S on 29 September 2016 is unclear. Instead, he chose to have all those present at the ceremony he then conducted sign a document which:
(a)on the applicant’s evidence, did not accurately record what transpired, given that it purported to certify that Mr S and Ms C had been united in an Islamic marriage, and described Ms C as the bride and Mr S as the bridegroom; and
(b)he described to police as “… official -official through view of Islam…”.[120]
[120] Police interview transcript, p.24.
Moreover, as is apparent from the ceremony transcript (and as the applicant subsequently made clear in response to questions posed of him during the course of the hearing), the marriage certificate was not simply for the applicant’s reference. It was to be handed over to Ms C if she asked for it after turning 18.
The creation of an official document which the applicant had all parties to the September 2016 ceremony sign which (according to the applicant) failed to record accurately what had then taken place, and which the applicant was prepared to give to Ms C once she turned 18, is not explained by a desire of the applicant for reference materials as an aide memoire.
At the hearing of this proceeding, the applicant was asked why he did not simply write a note to himself if all he wished to do was record the fact that he had conducted a ceremony involving Ms C and Mr S. The applicant’s response to this was that the only form he had was the Islamic certificate of marriage form so he “took what I have on my table”.[121] When asked why he needed any particular form, the applicant’s response was, initially, unintelligible,[122] then it was that he felt remorse and then he said that, while the document was for his reference, he would give it to Ms C and Mr S if they were to ask him for it, later on. Left unexplained was why Ms C or Mr S would later request a document (or, indeed, why the applicant would provide a document) that, on the applicant’s evidence, did not accurately record what had occurred.
[121] Hearing transcript, p.46.
[122] Hearing transcript, p.46: “I made the trouble. I made the confusion. Me and the proceedings. So I did this, I made the trouble really. I didn't mean. It's going, going up, it's going to be (indistinct), or - so I made - I made, really, (indistinct) things. It's not - I can't…”
Later, when questioned as to why he had refused to provide a copy of the marriage certificate to Ms C and Mr S, the applicant sought to downplay the significance of the certificate. He said “This is not certificate. This is - well, you can name it anyhow you want, but it is not certificate… This is nothing.”[123] This is in stark contrast to the position the applicant took when interviewed by police. As mentioned earlier, then he described an Imams Board certificate of marriage as “…official - official through view of Islam.” Indeed, the applicant then viewed such a certificate to be of such significance that he asserted to the police (obviously incorrectly) that he would never let people sign one without first asking for documentation or a statutory declaration showing their age.
[123] Hearing transcript, p.49.

According to the applicant, his intention simply to make a prayer to make it culturally acceptable for Mr S to accompany Ms C in public reflected a plan he had made with Ms C’s mother. Reference was made to this alleged plan when asked in cross examination whether he thought his conviction in 2017 was fair.[124] He had, so he said, conducted the ceremony between Ms C and Mr S at the request of Ms C’s mother. The mother wanted the applicant to make a prayer so that it would be acceptable for Mr S to accompany Ms C to school and back, Ms C then being a schoolgirl in year 10. According to the applicant, “…what happened in September in 2016, the mother with three children was asking me and crying to save her daughter or for going out at - at night and doing bad things”.[125] The mother had approached the applicant and asked "Can you help me to - to save my daughter? She went outside - out - out in the middle of night".[126]
[124] Hearing transcript, p.23.
[125] Hearing transcript, p.18.
[126] Hearing transcript, p.23.
I reject this evidence of the applicant for the reasons given when rejecting his evidence as to intention. Moreover, the proposition that the applicant was, on 29 September 2016, simply giving effect to a plan he had made with Ms C’s mother, at the request of Ms C’s mother, is made more implausible in light of the applicant’s statements to the police in October 2016. No mention of such a plan was made to the police. Further, it is difficult to understand when such a plan could have been conceived. The applicant told the police that it was Mr S who arranged to meet with the applicant on 29 September 2016 and that he did not then know the mother and still did not know her at the time of the police interview in October 2016.
Moreover, it seems unlikely that the alleged plan was in place before the September 2016 ceremony. Consistent with what he told police, the applicant’s evidence before the Tribunal is that he had not prepared for the ceremony because he did not know what “they” were going to ask for.[127]
[127] Hearing transcript, p.50.
In denying his intention to solemnise a marriage in September 2016, the applicant gave evidence to the effect that he did not intend to conduct a “nikah”.[128] It will be recalled that the applicant had described a nikah to the police as a marriage under Sharia law; “…‘Nikah’ means marriage … not only relationship, not only engagement, it’s marriage. Mean them lawful to have for intimacy.”[129]
[128] See, for example, Hearing transcript at p.24: “I didn't have in mind to do Nikah to this girl or to this guy.” At p.27 of the Hearing transcript, he said “I never had an idea that I will perform a Nikāḥ.” At p.53: “I never wanted to perform real Nikah.”
[129] Police interview transcript, p.42.
When asked why he and his lawyers had characterised what had occurred as a nikah (a matter to which I will return), the applicant stated that they had done so only because he had been found by the Courts to have performed a nikah.[130] It was, he said, only after a Court had concluded that what had occurred was a nikah that the applicant characterised it as a nikah.[131]
[130] Hearing transcript, pp.28-30.
[131] Hearing transcript, p.37. At p.43, the applicant stated: “My intentions wasn't to do Nikah. I just wanted to give the minimal freedom to that, let's call them couple, to go out together. For him to accompany her to go to the school, to go to the shopping, to visit her friends. And the mother and I agreed, we didn't have intention to do Nikah, but somehow the girl misinterpreted that, and it turned out to Nikah. And then, the court concluded it was Nikah, so that's why we use that term.” At p.51, the applicant stated that “It was a prayer “…to give them minimum freedom to be together, to be seen together, maybe hold hands together… It's only this, not Nikah.” At p.24, he stated “I had to accept that it was Nikah, because the court concluded that.” At pp.64-5, he said “…I have to accept that Nikah was used as a term and the Court thought it was Nikah and that's the problem here.”
I reject this evidence.
Persons present on 29 September 2016 considered that the ceremony then undertaken was a nikah.[132] The applicant and others signed a certificate of Islamic marriage (the marriage certificate). In the course of the proceeding before the Magistrates Court in June 2017, the applicant claimed that he had conducted a “nikah.”[133] In particulars provided in support of his grounds of appeal before the Victorian Supreme Court on the applicant’s behalf, it was contended that the “evidence demonstrated that the Appellant’s conduct merely related to the performance of a religious blessing or Nikah.”[134] In the decision on that appeal it was noted that the applicant had said that he had conducted a nikah.[135] In submissions made before the Victorian Court of Appeal on behalf of the applicant he was said to have conducted a nikah.[136] In a statement accompanying his 2019 application to the Victorian Civil and Administrative Tribunal, and at the hearing before DP Dwyer, the applicant submitted that he had conducted a nikah.[137] In submissions made on the applicant’s behalf prior to the hearing of this proceeding, it was stated that Ms C’s mother had asked that the applicant conduct a nikah.[138] In those submissions, what had occurred was characterised as a nikah, albeit informal.[139] In an email in May 2021, the applicant said that he had performed a nikah.[140] In an undated submission to the Tribunal, the applicant commenced by stating that he felt remorse for conducting a nikah.
[132] The applicant was asked “why are we doing a nikah” if the marriage certificate cannot be disclosed: ceremony transcript p.10.
[133] T2, p.34 (VSCA) [4].
[134] T1, p.21 (VSC) [23].
[135] T1, p.28.
[136] T2, p.47 (VSCA) [49]
[137] VCAT decision [35]-[44].
[138] T23, p.89 (letter of 20 April 2021 from JK Lawyers) (the “lawyers’ submission”). I note that the applicant said at the hearing of this proceeding that the mother “didn't want me to do Nikāḥ”: Hearing transcript, p.28.
[139] T23.
[140] T26, 107; T27, 110 (emails from the applicant of 16 May 2021 and 10 June 2021).
The applicant’s suggestion that the 29 September 2016 ceremony had only been characterised as a nikah because that is what the courts had found is ahistorical. As just indicated, it was the applicant who had contended before three Victorian courts (as well as before VCAT) that it was a nikah.
Moreover, while maintaining that he had not conducted a nikah, the applicant contended, somewhat inconsistently, that his conviction had a negative impact on the conduct of Islamic marriages in Australia. In particular, he stated that his case had a big impact on imams. It was said to mean that presiding over a marriage in accordance with Islamic law was risky: “No one of imams performing Nikah now, because they risk. They risk. They're going to be catched(sic) like I burned my fingers… So if people are going to have Nikah, they going to Indonesia…”.[141] According to the applicant, a “…hundred of young couples who wanted to marry in Australia, they cancel and they went to another countries to-to do that.”[142]
[141] Hearing transcript, p.49.
[142] Hearing transcript, p.19.
Having conducted a nikah on 29 September 2016 (as the applicant had, until the hearing of this proceeding, consistently contended), the applicant had conducted a ceremony that he considered made it lawful from a religious perspective for there to be sexual relations between the groom and bride party to the ceremony. In the case of Ms C and Mr S, this meant that the applicant intended to conduct a ceremony which would make it acceptable from a religious perspective for there to be sexual relations between a girl not of marriageable age (a girl who the applicant thought to be very young) and a man then aged 34.
In the course of this proceeding, however, the applicant denied any intention to permit or facilitate conjugal relations between Ms C and Mr S. He stated that, as he understood it, Ms C and Mr S would not live together as man and wife. He had, so he said, been assured by Ms C and Ms C’s mother that Mr S would not live with Ms C until Ms C had turned 18. The applicant stated that they had sworn “…by Almighty God and they put hands on the Holy Book they won't sleep together till she reach 18 or finish year 12.”[143]
[143] Hearing transcript, p.21.
I reject this evidence of the applicant. It is not corroborated and is inconsistent with a number of other statements made by and on behalf of the applicant.
When conducting the ceremony and as mentioned earlier, the applicant expressly stated that the “… girl - the girl and bride of the marriage… will live together as a husband and wife.” There is no suggestion in the ceremony transcript that an oath of the type claimed by the applicant to have been made by Ms C and Mr S was sworn. Moreover, on the applicant’s evidence, it is difficult to see how Mr S could have sworn such an oath given the applicant’s claim that Mr S left the ceremony after nine minutes[144] (noting that the recording on which the ceremony transcript is based runs for about 12 minutes) or why such an oath would have been made if the applicant was only “making a prayer” so that it would be acceptable for Mr S to accompany Ms C to school and back.
[144] Hearing transcript, p. 45. At pp.18 and 24 of the Hearing transcript, the applicant asserts that Mr S left before completion of the prayer which took no longer than 12 minutes.
When interviewed by the police, the applicant conceded that both Ms C and Mr S would have thought that they were married as a result of the ceremony he conducted. That concession was repeated in 2019 before DP Dwyer[145] and was coupled with an acknowledgement by the applicant that the ceremony he conducted was one which made “…it lawful under Sharia law for sexual intimacy to take place, and that the ceremony would be construed by the couple (and particularly by the man) as giving them permission to be intimate.”[146] The applicant was said to then have known that the ceremony he conducted “…would likely lead to intimacy. He accepted that the ceremony could be construed as giving C and S permission to be sexually intimate, but he considered it to be their choice and not something that he could control. In the eyes of Islam, once a girl reaches puberty and has had her first period, Mr Omerdic considers that she is able to be married under Sharia law, and that this is common in other countries.”[147]
[145] Before DP Dwyer, the applicant apparently accepted that “… in the eyes of C and S, they believed they were being married.”: VCAT decision [37].
[146] VCAT decision [44].
[147] VCAT decision [37].
That acceptance by the applicant that the ceremony of 29 September 2016 was one which rendered it permissible from a religious perspective for intimacy to take place between Ms C and Mr S is reflected in submissions made on behalf of the applicant prior to the hearing of this proceeding. In particular, on the applicant’s behalf, it was submitted that the ceremony the applicant conducted was “to make it lawful under Sharia law for intimacy to take place.”[148] While at the hearing of this proceeding the applicant resiled from that statement, I note that he had, in an email of May 2021, confirmed the accuracy of the submission in which the statement was made.[149]
[148] T23, p.90 (lawyers’ submissions).
[149] T26, p.107. In the email, the applicant said that: “My JK lawyers team explained in details about event in September 2016 while I performed a prayer - nikah, , kind of commitment between parties… I do not want to waste your time in repeating the same. The letter tells about the truth about event.”
Hence, I am satisfied that, when solemnising the marriage of Ms C and Mr S, the applicant was alive to the real risk that they would engage in sexual relations, uncaring or reckless as to the possibility that he was, as put by DP Dwyer, facilitating a sexual offence.
In support of his contention that he merely said a prayer to make it acceptable for Ms C and Mr S to be seen together in public, the applicant stated that Mr S understood that what occurred was not a marriage.[150]
[150] Hearing transcript, p.53: “young man who was involved in this never considered himself as a married man”.
I do not accept that evidence. When asked whether there was anything before the Tribunal which would corroborate his assertion that Mr S had denied that there had been a marriage, the applicant’s response was to suggest that this was well-known and that “… the young man never actually agreed in front of police that he was married.”[151] According to DP Dwyer, however, Mr S had admitted to having been party to a formal marriage ceremony, an admission apparently made when Mr S pleaded guilty to an offence involved in his having married a person not of marriageable age.[152] Moreover, as mentioned earlier, the applicant acknowledged that both Ms C and Mr S would have thought themselves to be married as a result of the ceremony he conducted.
[151] Hearing transcript, p.24.
[152] VCAT decision [25].
COMMENT ON THE APPLICANT’S SUBMISSIONS AND EVIDENCE
Various aspects of the applicant’s evidence before the Tribunal are encapsulated in the following statement:
“My intentions wasn't to do Nikah. I just wanted to give the minimal freedom to that, let's call them couple, to go out together. For him to accompany her to go to the school, to go to the shopping, to visit her friends. And the mother and I agreed, we didn't have intention to do Nikah, but somehow the girl misinterpreted that, and it turned out to Nikah. And then, the court concluded it was Nikah, so that's why we use that term.”[153]
[153] Hearing transcript, p.43. See also Hearing transcript at p.48: “I didn't mean to make Nikah. Court made it is Nikah”; Hearing transcript at p.48: “They just said a prayer to give the minimal freedom to be together on the street”; and Hearing transcript at p.24 “I had to accept that it was Nikah, because the court concluded that.”
As is apparent from what has already been said, I have rejected each aspect of that evidence. Indeed, I have rejected or not accepted much of the applicant’s evidence before the Tribunal. He continues to recount a version of what transpired which is irreconcilable with what is patent from the ceremony transcript and police interview and with findings made on his conviction in June 2017 and considered twice by the Victorian Supreme Court on appeal.
As with his statements when interviewed by the police in 2016, the applicant’s evidence before the Tribunal was riddled with what I consider to be inaccuracies and inconsistencies. Again, this does not speak well of the applicant’s character, honesty and integrity.
EXPERIENCE AND REFERENCES
According to his lawyers, the applicant “…has proven himself to be a fit and proper person during his 30 years of service to the community as a Marriage Celebrant and Religious Minister, and 20 years as a justice of the Peace.”[154]
[154] T23, p.94 (lawyers’ submission).
I accept that the applicant has had substantial experience in solemnising marriages. He has been an authorised celebrant since 1987[155] and has, he says, presided over more than 1000 marriages.[156]
[155] Registry of Births, Deaths and Marriages letter of 18 June 1987 attached to the lawyers’ submission. See, however, Births Deaths and Marriages record of initial entry into the register (itemised in a List of Documents Relied Upon by the respondent) which appears to suggest that the applicant was first entered on the register in 1992.
[156] T31, p.125.
Such experience weighs in favour of a finding that he is a fit and proper person to solemnise marriages. It suggests that he has the knowledge and ability to undertake the office of an authorised celebrant appropriately and effectively. In another respect, however, the experience of the applicant weighs against such a finding. It suggests that his conduct on 29 September 2016 was not a reflection of any naivety but, rather, of a preparedness to solemnise a marriage knowing he should not do so.
Quite apart from his specific experience in solemnising marriages, it is put on the applicant’s behalf that he ought to be considered a fit and proper person by reason of his various contributions to the community.
It is clear that being an authorised celebrant is not the only role the applicant has had in the community. According to the applicant, he had been active in the community for over three decades, as a community leader, funeral director, marriage celebrant and justice of the peace.[157] I accept that he has made long-term and substantive contributions to both his religious[158] and the broader community.
[157] T34, p.137 (undated statement of applicant).
[158] T10, p.58 (character statement of the Grand Mufti Emeritus of the Islamic Community in Bosnia-Herzegovina).
The applicant was appointed a justice of the peace in September 1994.[159] In 2001, a Victorian Government certificate of appreciation was awarded to him in recognition of his voluntary service to the community. In 2009, the applicant was awarded a certificate in recognition of his contribution to the Noble Park centenary celebrations. In 2010, a certificate of participation was presented to the applicant in recognition of his valuable contribution and assistance to members of the Dandenong Police Station and the public. In 2013, he was presented with a certificate of appreciation signed by the mayor of Greater Dandenong “for reputable and exemplary service to the City of Greater Dandenong community and its residents.”[160]
[159] See certificate attached to lawyers’ submission of 20 April 2021.
[160] See attachments to lawyers’ submission of 20 April 2021.
In the circumstances, the applicant’s community contributions are consistent with, but not significantly probative of, a finding that he is now a fit and proper person to solemnise marriages. So too is the recognition the applicant received for his community contributions (and his having been appointed a justice of the peace), given the reputational aspect to the fit and proper person expression.
The applicant’s contributions to the community and the consequent enhancement to his reputation, while admirable, do not of themselves have much of significance to say as to whether he is fit and proper to solemnise marriages in a context where the issues of concern revolve around matters to do with honesty and integrity, coupled with a serious failure to observe the Act.
Of potentially greater relevance when considering such matters are third-party references.
In this regard, there are a number of third-party references in the material before the Tribunal that together present a positive picture of the applicant’s character, as does the evidence of a witness called by the applicant, Mr Habibullah. Moreover, and consistently with his character being considered to be appropriate for one undertaking the role of an authorised celebrant, the applicant submits that he has the support of his religious community.[161]
[161] T23, p.92 (lawyers’ submission).
As for the third-party references, the applicant is said to have played an active role in an inter-faith network[162] and undertaken duties as a justice of the peace diligently and, apparently, honestly.[163] He is described by certain members of his community,[164] as well as by family members,[165] as kind, devoted and supportive. He is said to be gentle and humble and to be the most popular spiritual leader in Melbourne,[166] one who is well-liked.[167] In his oral evidence, Mr Habibullah described the applicant in like terms.
[162] T4, p.52.
[163] T5, p.53.
[164] T8, p.56; T12, p.61; T13, p.62. In the latter reference, the president of the Afghan Islamic Centre & Omar-Farooq Mosque spoke of the applicant’s high moral and ethical values.
[165] T9, p.57; T11, p.60. In the latter reference, the applicant’s son speaks of the applicant’s integrity and honesty.
[166] Reference from Sead Sahbegovic of 14 October 2021.
[167] Reference from Saleem Habibullah of 17 October 2021, expressed to be given by Mr Habibullah and on behalf of six others.

I do not attribute significant probative value to these references or that evidence.
Where doubts as to a person’s character are to be considered in proceedings, the probative value of a reference submitted or evidence as to character adduced in the context of those proceedings is significantly impaired by an absence of evident awareness of the conduct that engendered those doubts.[168] That is the case in relation to the third-party references lodged in these proceedings and Mr Habibullah’s evidence.
[168] As expressed by a policy applicable in the context of considering applications for citizenship by conferral, “Decision makers should give very little weight to references which do not acknowledge the offence or incident”-see Hasan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2457 at [22].
The references reveal little, if any, awareness of the applicant’s conduct of concern. Most pre-date the applicant’s conviction and sentencing in July 2017. Even in the case of the two references provided after that conviction and sentencing, no awareness of that conduct is evident. None of them reveal any awareness of the reasons, apparent before the Tribunal, for doubting the veracity of many of the statements made by the applicant concerning what occurred on 29 September 2016.
As for Mr Habibullah’s evidence, he said people had taken advantage of the applicant’s goodwill. He characterised what had occurred in September 2016 as “…very disappointing…that people had done something very inappropriate to somebody like you… [but] at least I knew that one day, you know, the truth will come out and you will be vindicated.”[169]
[169] Hearing transcript, p.11.
How Mr Habibullah came to that view of the events of September 2016 is unclear. He freely acknowledged that he did not know what, in fact, had occurred to result in the applicant’s conviction in June 2017. When told that it was an essential part of the case against the applicant that he knew the bride was not 18, Mr Habibullah’s response was that “…if he knew exactly she was under 18 and still went ahead and do it, well, it's a bit difficult for me to support him,”[170] albeit that he later suggested that the applicant should in any event be given a second chance.[171]
[170] Hearing transcript, p.14.
[171] Hearing transcript, p.15.
In terms of having the support of his religious community, I do not accept that this weighs materially in favour of the applicant. His name was removed from the register in 2017 at the request of the Australian Federation of Islamic Councils.[172] No character evidence from the Bosnian Islamic Society, the Board of Imams or the Islamic Council of Victoria was forthcoming in this proceeding, despite DP Dwyer in the context of the 2019 VCAT proceeding commenting on the potential significance of such evidence.[173]
[172] T6, p.54.
[173] VCAT decision [86].
It is true that, in January 2021, the Australian Federation of Islamic Councils nominated the applicant for inclusion in the register.[174] Any Federation support for the applicant that might be inferred by reason of that nomination, however, is, at best, fragile. This is because the reasons proffered by the Federation for that nomination reflect a misunderstanding. Those reasons are outlined in an email to the respondent on 4 March 2021.[175] In it the Federation appeared to accept the applicant’s expression of “profound remorse” and his statements to the effect that he had not intended that the individuals concerned engage in conjugal relations. Indeed, the Federation was told by the applicant that “I didn mean , i didnt want , i didnt have intention to marry this GIRL to her guardian to school.”[176] In accepting those statements of the applicant and, apparently, accepting his statement that he had no intention of marrying the couple concerned, the Federation would not have had the advantage of access to the material before the Tribunal. As will soon be made clear, I believe it to be apparent from that material that the applicant is not profoundly remorseful. Nor, as mentioned earlier, do I accept that the applicant had no expectation that Ms C and Mr S would live together as man and wife or that he did not intend to solemnise a marriage between Ms C and Mr S.
[174] T15.
[175] T18, p.69.
[176] T18, p.70.
PUBLIC INTEREST
I find that removal of the applicant’s name from the register is consistent with the purpose underlying the provisions of the Act requiring removal of a person’s name from the register when satisfied that either the (d)(i) ground or (d)(iii) applies in relation to the person. That purpose is not to punish the person concerned. Rather, it is directed to protection of the public.[177]
[177] Re Siilpola-Fortunaso and the Registrar of Marriage Celebrants (2004) 84 ALD 150 where, at [20], it is said that the “test is not to be to be used to punish the applicant for past errors” rather, it is “intended to protect the public from the risks flowing from having inappropriate people doing an important job.” As SM Cotter stated in GJ Brown and Tax Practitioners Board [2016] AATA 740 at [92], “the purpose of the termination of registration provisions of the Act is not to punish the relevant tax agent but to protect the public.” Similarly, in a different but analogous context it was said that although “…it is sometimes referred to as 'the penalty of disbarment', it must be emphasized that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege.": Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-2.
Without seeking to detract from the fundamental importance of character, honesty and integrity to an assessment of whether the applicant is a fit and proper person,[178] protection of the public involves several considerations.
[178] See Beckett and Tax Practitioner’s Board [2018] AATA 1860 at [44] where, in the context of tax agent registration provisions, SM Taylor SC stated that a consideration of the recidivism risk “…should not detract from the relevance of both fame and character in the fitness assessment” so that “satisfaction about a person’s honesty is fundamental to a determination that they are fit and proper…”.
One such consideration relates to the risk of recidivism, in this case, protecting the public from the risk of the applicant again contravening the Act by, in particular, solemnising marriages of persons not of marriageable age.
On the material before me, I assess that risk as being not insignificant.
I arrive at that assessment despite the applicant having stated that he will in future “carefully follow” the law.[179] He said that he “…won’t conduct the marriage of minor, but I ll send them to local Court to examine their willingness to marry and get approval. I assure you that I will prove myself as a competent marriage celebrant and arrange marriages following legal requirements.”[180]
[179] T26, p.108.
[180] The Applicant’s undated statement addressed to the Tribunal.
I do not attribute significant weight to the applicant’s assurances in this regard. In relation to the matters before the Tribunal, the applicant has made a number of statements that are inaccurate and inconsistent. Like DP Dwyer, I am not prepared to take the applicant “on trust,” given his “…continuing lack of insight and remorse into his wrongdoing…”.[181]
[181] VCAT decision [106].
Despite the applicant saying that he had made a grave mistake and that he was remorseful,[182] I am not satisfied that the applicant has any real insight into the wrongness of the conduct concerned or genuine remorse for it. Absent satisfaction as to these matters, it is difficult to see why, on the material before it, the Tribunal should be of the view that there has been a relevant change in circumstances such as to render insignificant the risk of the past repeating itself. While perhaps putting it too strongly, there is nevertheless substance to the proposition that “[i]f a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that… he has established himself as a different man.”[183] As was said in Guo,[184] “…what has occurred in the past is likely to be the most reliable guide as to what will happen in the future”.
[182] T26, p.108; undated statement of the applicant addressed to the Tribunal.
[183] Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461.
[184] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575. See also Mouflih v Minister for Home Affairs [2019] FCA 1744 at [55] and Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 at [36].
I do not accept the applicant’s expressions of remorse as genuine, at least insofar as they were intended to suggest that he was remorseful for having contravened the Act and, in effect, facilitating sexual relations between a minor and a man of 34.
The applicant does not consider that what he did was of any seriousness. On his behalf, it is said that he did not harm anyone and has paid a “big price” for a “minor” charge.[185] Moreover, the applicant accepts little, if any, personal responsibility for what occurred. This is reflected in his endeavours to downplay or re-characterise the events of September 2016, while at the same time blaming others for the consequences of those events.
[185] T23, p.93.
The applicant’s expressions of remorse before the Tribunal follow on from his failure in 2019 to succeed in proceedings instituted before the Victorian Civil and Administrative Tribunal. In large part, that failure was a result of a perceived lack of insight and remorse on his behalf.[186] Instead of remorse for his offending, the applicant was said to have then given the impression that he was a victim,[187] “more concerned about the impact of the events of September 2016 on himself rather than the child victim.”[188] Rather than accept responsibility for what had occurred, others were to blame.[189] He had “been made an example of” by way of decisions against him which were “unfair, unjust and harsh.”[190] The applicant considered that “he had done nothing wrong.”[191] What he had done was put “‘God’s law’ above any law of earth” and that, “from an Islamic perspective, what he had done was lawful.” He was said to have considered that “…once a girl had reached puberty, she was of marriageable age and could be given in marriage… He reiterated that this was considered acceptable under Sharia law and in other countries.”[192]
[186] VCAT decision [56]; [62]; [70]; [74]; [89]; [91]; [98]; [106].
[187] VCAT decision [70].
[188] VCAT decision [89].
[189] VCAT decision [89].
[190] VCAT decision [69].
[191] VCAT decision [45]-[68].
[192] VCAT decision [71].
The views which the applicant is so said to have held in the context of the 2019 proceedings before the Victorian Civil and Administrative Tribunal are, in large part, reflected in statements made by him or on his behalf in these proceedings.
In particular, a number of such statements were made which, quite apart from challenging findings concerning his intention to solemnise a marriage, challenge the appropriateness of him having been charged with and convicted of an offence for his role in the events of September 2016 and of the marriageable age requirements in the Act.
For instance, at the hearing of this proceeding, the applicant said that:
(a)the laws of Australia made it very risky for Imams to conduct a marriage in accordance with Islamic rules and that, in a democracy, there was “the right of religious community to get married, the sons and the daughters according to the religious rules and the standards and beliefs. It would be perfect if there's no danger for Islamic leaders to perform their duties according to the Islamic rules.”[193]
(b)his conviction in 2017 had a profound adverse impact on the Islamic community. According to the applicant, “…myself and the rest of Islamic society. We are shocked and hurt, and that just performing as the Islamic - according to the Islamic service, that it could cause so, so many troubles, so - so much pain and even losing licence and the rights to work… A hundred of young couples who wanted to marry in Australia, they cancel and they went to another countries to - to do that.”[194]
[193] Hearing transcript, p.18.
[194] Hearing transcript, p.19.
In submissions made prior to the hearing, it is said on the applicant’s behalf that “his involvement in the ‘nikah’ was an act of service in the Muslim community...”, one which “did not cause harm to any person…”.[195] He is said to be “…in disbelief as to how an act of community service in performing a religious ceremony could cause him to lose his livelihood, his reputation and everything he has worked for.”[196] His performance of a prayer had, the applicant stated, caused him to “loose a job and Court conviction.”[197]
[195] T23, p.93.
[196] T23, p.93.
[197] T26, p.107.
As with his statements to the Tribunal that he simply made a prayer to make it religiously appropriate for Mr S to accompany Ms C in public, in suggesting that the predicament in which he found himself was the result of him conducting a marriage in accordance with Islamic rules, performing an Islamic or community service or simply performing a prayer, the applicant seeks to downplay or re-characterise his role in having solemnised a marriage involving a “very young” girl.
As is clear from the material before me (including the ceremony transcript and marriage certificate), the applicant did more than merely conduct a marriage or perform an Islamic or community service. He solemnised a marriage knowing that the bride was not of marriageable age. He did so, I infer, knowing that it was wrong or at least illegal, noting:
(a)His refusal to let Mr S or Ms C have a copy of the marriage certificate “… because she's very young…” and “because of my security”.
(b)His preparedness to provide a copy of the marriage certificate only when Ms C had turned 18.
(c)His advice to Ms C that, if approached by “child protection,” to state that a prayer had been said, rather than admit to a nikah.
(d)The patently incorrect initial statements he made to police:
(i)denying that there had been any reference to marriage in the context of the ceremony he presided over on 29 September 2016;
(ii)denying that there was any record of, or paperwork concerning, that ceremony; and
(iii)to the effect that the only thing he did in the course of that ceremony was recite a prayer of wellbeing.
Consistent with his refusal to accept any significant responsibility for the consequences of his having solemnised a marriage involving a “very young” girl, the applicant seeks to place blame elsewhere for the consequences of his having done so.
Before the Tribunal, the applicant suggested that Ms C was at fault. She had turned a prayer into a marriage.[198] Later, rather than simply Ms C being at fault, the applicant sought to place blame on both Ms C and Mr S. When asked whether he accepted that both Ms C and Mr S believed themselves to be married he responded “No, I not accept, …They misused me…They misused me. They used me…”.[199] He later repeated that response. He said “they” took from the ceremony he had conducted a meaning that they were married and that they could, as a result, be sexually intimate, a meaning he had not intended. He said “I didn't mean to give them freedom. They took it by themselves… They misused me. They used me really as a power to say in front of public here: we are married…I accept that, they used me. They used frankly my power.”[200] Still later the applicant stated “They're going to misuse me. They used me already in public way. So they going to use this, that, everything. They made - they recorded without my knowledge. They used me, but you ignore that… They used me a lot. So you think how much I have been - I have been through this.”[201]
[198] Hearing transcript, p.19.
[199] Hearing transcript, p.38.
[200] Hearing transcript, p.39.
[201] Hearing transcript, pp.49-50.
Others said by the applicant to be at fault include those members of the judiciary involved in convicting him in 2017 and rejecting his appeals.
Their fault is outlined, in particular, in submissions made to the Tribunal on the applicant’s behalf by his then solicitors and which the applicant asserted “tells about the truth about event.”[202]
[202] T26, p.107.
Their fault is suggested to arise in two respects.
First, there was said to be no direct evidence that the nikah ceremony was completed (noting that the ceremony transcript stops after 12 minutes) so that the applicant was convicted, and his appeals were refused, in reliance, in part, on facts found based on inference. It seems to be suggested that his conviction was thereby rendered unsound as his offence was not proven but inferred (a suggestion which reflects a failure to recognise that establishing facts through a process of inference is a standard aspect of the judicial process[203]).
[203] T23, p.90 (lawyers’ submission). This reflects a failure to recognise the appropriateness of establishing facts through a process of inference: Holloway v McFeeters (1956) 94 CLR 470 at 480; Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 168 (Mason J); Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [91]; Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [123]-[124].
Second, it is contended that the applicant’s conviction was, in part, due to the relevant members of the judiciary being influenced by then prevailing Islamophobia.[204]
[204] In this respect, the lawyers’ submissions might be said to smack of contempt. See LexisNexis, Halsbury’s Laws of Australia (online at 3 June 2022) 105 Contempt, ‘(H) Interference with the Administration of Justice as a Continuing Process’ [105-227].
It is said that during “…this period of Islamophobia, Imam Omerdic had to convince the court of his innocence. It was not surprising that it was challenging and impossible in the circumstances…”, with “…pressure being placed on the court for Imam Omerdic to be convicted.”[205] On his behalf, the applicant was said to be:
“…of the view that inaccurate and sensationalised media coverage in a climate of Islamophobia have attributed to inferences made by the Court that Imam Omerdic was guilty…It was impossible to convince the Court at the time not to infer that Imam Omerdic was guilty in the absence of direct evidence when news of terrorist attacks caused by radical Islamic extremists made headlines around the world every day, supplemented by biased opinions that were disparaging of Muslims and the Islamic faith.”[206]
[205] T23, p.91 (lawyers’ submission).
[206] T23, p.93.
In emails that the applicant sent in May and June 2021, he stated that the “Court decision influenced by world Islamofobia.”.[207] At the hearing of this proceeding, when discussing the relevance of Islamophobia, the applicant said that “I'm sure that maybe that barrister was right and if I was Indian or Chinese maybe this wouldn't happen to me.”[208]
[207] T26, p.108; T27, p.110.
[208] Hearing transcript, p.65.
Others at fault, according to submissions made on behalf of the applicant, were those charged with prosecuting him who may have “…failed to fully understand cultural and religious issues of certain ethnic groups”.[209]
[209] T23, p.91.
The upshot was that in submissions made on his behalf and which the applicant endorsed, the crux of the matter is said to be that:
“…Imam Omerdic who was earnestly serving the Islamic community with the best of intentions as an Imam according to Shariah Laws found himself being charged and convicted for an offence which was not proven but inferred, fuelled by Islamophobia and false accusations by the media as a propagator of forced marriages of children.”[210]
The result, so it is said, is that the applicant “has paid a big price for a minor charge made against him.”[211]
[210] T23, p.92 (emphasis in original).
[211] T23, p.93.

This is not a submission of a person who accepts responsibility for the consequences of his having solemnised a marriage involving a “very young” girl, or of a person who has insight into or remorse for his having contravened the Act and, in effect, facilitated sexual relations between a minor and a man of 34.
The applicant may regret what occurred but, as I see it, that regret is for the consequences for him of his offending rather than remorse for that offending. On his behalf, it is said that the applicant has “suffered tremendously” while he was earnestly serving the community with the best of intentions.[212] He is said to have “…lost his livelihood and suffered years of financial and emotional strain following the court matter.”[213] As mentioned before, he is said to be in disbelief as to how “an act of community service” could have resulted in him losing everything he has worked for, having paid a “big price” for a “minor charge”.
[212] T23, p.92.
[213] T23, p.93.
The fact that the applicant perceives that he has paid a big price for having contravened the Act suggests that he would be reluctant to again do so, should he be allowed to remain on the register. I accept that this operates in mitigation of the risk of recidivism. As I see it, however, it would only operate in this fashion in circumstances where the applicant considers there to be a risk of any contravention of the Act being discovered. It does not ameliorate risk where there is confidence of non-disclosure.
Given that I have found the risk of recidivism to be not insignificant, removal of the applicant’s name from the register would, as I see it, be consistent with the public protection purpose underlying the relevant provisions of the Act.
As mentioned before, however, protection of the public goes beyond simply a consideration of the risk of recidivism. In the context of a number of professions and statutory offices, protection of the public has been considered to include protection of the standing of the particular profession or office in the eyes of the public.[214]
[214] See for instance, G J Brown & Co Pty Ltd and Tax Practitioners Board [2016] AATA 740 at [82] and The Law Society of SA v Rodda [2002] SASC 274 at [29].
This aspect of protection of the public is also supportive of removal of the applicant’s name from the register. He solemnised a marriage knowing that the bride was not of marriageable age and knowing that it was wrong or at least illegal to do so. He has subsequently made a number of inaccurate, inconsistent and implausible statements about what transpired. In these circumstances, as I see it, the community’s confidence in the important public office occupied by authorised celebrants would likely be impaired were the applicant’s name to remain on the register.
CONCLUSION
In 2017, the applicant was convicted of an offence under the Act. He had, in September 2016, solemnised a marriage between a female minor and a man aged 34. The applicant then knew that the female minor was not of marriageable age. In fact, he then thought her to be “very young”. Apparently, she was a high school student attending year 10.
Statements made by and on behalf of the applicant since his offending and before the Tribunal in explanation of the relevant circumstances have been incorrect, inconsistent and implausible.
The applicant is not (or, at least, is not to any significant extent) remorseful or accepting of responsibility for what he did. He considers that he did little harm and seems to be of the view that his conviction was procured by a flawed judicial process influenced by Islamophobia and ignorance of cultural issues.
In these circumstances and despite his experience, community contributions and the comments of various referees, I am satisfied that the applicant is not a fit and proper person to solemnise marriages.
The decision under review is affirmed.

I certify that the preceding 194 (one hundred and ninety-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

..................[SGD]......................................................
Associate
Dated: 16 June 2022

Date of hearing: 8 February 2022

Applicant: Self-represented

Counsel for the Respondent: Mr Liam Brown

Solicitors for the Respondent: Victorian Government Solicitor's Office

Date of hearing:	8 February 2022
Applicant:	Self-represented
Counsel for the Respondent:	Mr Liam Brown
Solicitors for the Respondent:	Victorian Government Solicitor's Office