Pan v Chief Executive, Department of Justice and Attorney-General

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pan v Chief Executive, Department of Justice and Attorney-General [2022] QCAT 409

PARTIES:

Ying Yan pan

(applicant)

v

Chief Executive, Department of Justice and Attorney-General

(respondent)

APPLICATION NO/S:

OCR007-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

1 November 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

The application to review a decision filed on 6 January 2022 is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – LICENCES AND REGISTRATION – QUALIFICATIONS – AS TO CHARACTER – where applicant’s application for a real estate agent’s licence was refused – where applicant was convicted in 2018 of an offence involving fraud or dishonesty – whether applicant a ‘suitable person’ to be granted a licence

Property Occupations Act 2014 (Qld), s 34, s 50(2)(a), Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

Kerr v The Queen [2008] NSWCCA 133
Park v The Queen [2021] HCA 37

R v El Masri [2005] NSWCCA 167

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

On 6 January 2022, the applicant filed an application to review a decision of the respondent made on 21 December 2021 to refuse her application for a real estate agent’s licence.
The refusal decision was made pursuant to s 34 of the Property Occupations Act 2014 (Qld) (‘the Act’), on the ground that the applicant was not a suitable person to be granted a licence. As to the requirement that the applicant be a ‘suitable person’, see s 50(2)(a) of the Act. Section 34(1)(b) of the Act provides that an individual is not a suitable person to hold a licence if the individual ‘has been convicted in Queensland or elsewhere, within the preceding 5 years of a serious offence’. The term ‘serious offence’ is defined in Schedule 2 of the Act to mean any of the listed offences ‘punishable by 3 or more years imprisonment’, including ‘an offence involving fraud or dishonesty’.
On 2 February 2018, the applicant was convicted in New South Wales of the offence of ‘Dishonestly obtain financial advantage by deception’, pursuant to s 192E(1)(a) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years’ imprisonment.
At a compulsory conference held on 4 August 2022, directions were issued requiring the parties to file submissions on the question of whether the offence in relation to which the applicant was convicted is a ‘serious offence’ within the meaning of

s 34(1)(b) of the Act.
The respondent submits that the offence in question is a ‘serious offence’ and on 2 September 2022 and again on 19 October 2022 filed applications to dismiss or strike out a proceeding. In submissions filed on 21 October 2022, the applicant submitted that the offence in question is not a ‘serious offence’ because it was dealt with in the Local Court, where the sentencing jurisdiction is limited to two years’ imprisonment.
However, the jurisdictional limit imposed on a lower court does not change the nature of the offence or the maximum penalty that can be imposed. It simply reflects a limitation on the jurisdiction of that court: see Park v The Queen [2021] HCA 37, [23]; Kerr v The Queen[2008] NSWCCA 133, [31]. In R v El Masri [2005] NSWCCA 167 at [30], with reference to a charge under s 59(1) of the Crimes Act 1900 (NSW), the Court stated (case references omitted):
The maximum penalty for an offence under s 59(1) Crimes Act 1900 is imprisonment for five years. When disposed of summarily in the Local Court, the maximum sentence is imprisonment for two years or a fine of 50 penalty units or both: s 268(2)(a) Criminal Procedure Act 1986. These provisions prescribe the jurisdictional limit of the Local Court and not the maximum penalty for any offence triable within that jurisdiction. Magistrates must not regard the jurisdictional limit as some form of maximum sentence reserved for a worst case.
As noted above, the term ‘serious offence’ is defined in Schedule 2 of the Act to mean any of the listed offences punishable by three or more years’ imprisonment. The offence for which the applicant has been convicted is punishable by three or more years’ imprisonment, regardless of any jurisdictional limit imposed on the trial court. In those circumstances, the applicant is deemed by the Act not to be a suitable person to be granted a licence.
Given that there is a mandatory statutory bar to the granting of a licence in the circumstances of the present case, the review proceeding is misconceived or lacking in substance. Accordingly, the application to review a decision filed on 6 January 2022 is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CaseChat Overview and Summary

In the case of Pan v Chief Executive, Department of Justice and Attorney-General, the applicant, Ying Yan Pan, sought a review of the respondent’s decision to refuse her application for a real estate agent’s licence. The refusal was based on the applicant’s conviction in 2018 for an offence involving fraud or dishonesty, which was deemed a ‘serious offence’ under the Property Occupations Act 2014 (Qld). The legal issues before the tribunal included whether the offence for which the applicant was convicted constituted a ‘serious offence’ under the Act and whether the applicant was a ‘suitable person’ to hold a licence, considering her criminal history.

The tribunal examined the definition of a ‘serious offence’ as outlined in Schedule 2 of the Act, which includes offences punishable by three or more years’ imprisonment. The applicant argued that the offence was not serious because it was dealt with in the Local Court, where the sentencing jurisdiction is limited to two years’ imprisonment. However, the tribunal noted that the jurisdictional limit of the Local Court does not alter the nature of the offence or its maximum penalty. Therefore, the offence in question was indeed a ‘serious offence’ as it carried a maximum penalty of more than three years’ imprisonment. Given the mandatory statutory bar to granting a licence in such circumstances, the tribunal found that the applicant was not a suitable person to hold a licence. Consequently, the application for review was dismissed, as it was deemed misconceived or lacking in substance.

The tribunal’s decision hinged on the interpretation of the term ‘serious offence’ and the implications of the applicant’s criminal history. By referencing relevant case law and statutory provisions, the tribunal concluded that the offence for which the applicant was convicted qualified as a ‘serious offence’ under the Act. As such, the applicant did not meet the suitability criteria for a real estate agent’s licence. The tribunal’s reasoning was grounded in the statutory framework and the principles established in previous legal decisions. The dismissal of the review application was a direct consequence of the applicant’s failure to satisfy the suitability requirements, as mandated by the Property Occupations Act 2014.

The final orders of the tribunal dismissed the application to review the decision, affirming the respondent’s refusal to grant the applicant a real estate agent’s licence. The tribunal’s decision underscored the importance of adhering to the statutory criteria for suitability and the consequences of failing to meet those requirements. The outcome was consistent with the legislative intent to ensure that only individuals of good character and proven suitability are granted licences in regulated occupations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established