Parvin v Commissioner for Fair Trading

[2005] NSWADT 34

CITATION:	Parvin v Commissioner for Fair Trading [2005] NSWADT 34
DIVISION:	General Division
PARTIES:	APPLICANT Omid Jafarzadeh Parvin RESPONDENT Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER:	043067 & 043361
HEARING DATES:	25/11/2004
SUBMISSIONS CLOSED:	11/25/2004
DATE OF DECISION:	02/22/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Property, Stock and Business Agents Act - Real Estate Agent - grant of authority - Real Estate Agent - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Property, Stock and Business Agents Act 2002
CASES CITED:
REPRESENTATION:	APPLICANT A Street SC RESPONDENT K Grant, Legal Officer
ORDERS:	1. Application dismissed; 2. Decision that applicant is not a fit and proper person set aside; 3. Decision that applicant is a disqualified person affirmed

1 The applicant, Mr Parvin, has applied for review of two decisions made by the Commissioner for Fair Trading. The Commissioner has refused his applications for two authorities - a certificate as a real estate salesperson and a licence as a real estate agent. To engage lawfully in the activities of real estate salesperson or real estate agent, a person is required by the Property, Stock and Business Agents Act 2002 to hold the relevant authority.

2 The Commissioner found that Mr Parvin was not eligible to be granted either authority as he did not satisfy two of the requirements of s 14(1) – (b) and (d):

‘ 14 Eligibility for licence or certificate of registration

(1) A natural person is eligible to hold a licence only if the Director-General is satisfied that the person: …

(b) is a fit and proper person to hold a licence and each person with whom the person is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and …

(d) is not a disqualified person, …’.

3 As to ground (d), the provision relied on in this case is s 16(1)(a), which provides:

‘ 16 Disqualified persons

(1) A person is a disqualified person for the purposes of this Act if the person:

(a) has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Director-General has determined under subsection (2) that the offence should be ignored, …’.

4 The Commissioner relied on the same material in reaching the separate conclusions that Mr Parvin was a disqualified person and not a fit and proper person.

5 Mr Parvin, who is now 28 years old, came to Australia as a refugee at the age of 19 in 1995. He had fled from Iran where abuses were being practised against members of the religious minority to which he belonged, the Bahá’í Faith. He was granted refugee status by the United Nations after he escaped to Turkey. Australia accepted him, and he is now an Australian citizen. Since arriving in Australia he has worked in the construction industry and the real estate industry. By 1998 he had gained experience and undertaken courses sufficient to qualify him to hold a certificate as a real estate salesperson. He has held a certificate for three periods of time in the years since 1998 being October 1998 to July 1999, May to November of 2000 and January 2002 to January 2003.

6 The matters of concern in relation to Mr Parvin’s present eligibility belong to the period 1999-2002. Mr Parvin obtained a driver’s licence (probationary) in January 1999, and then proceeded over the next three years to flout the road law of the State. In October 2002 he was declared an ‘habitual offender’, and has been disqualified from holding a driver’s licence until 2008. His behaviour over this period gave rise to convictions for offences of dishonesty under road law.

7 What started out as quite minor breaches of the law in 1999 (parking violations) escalated over time to driving while unlicensed and the very serious offence of producing someone else’s licence (his brother’s) to police when stopped in circumstances where he did not possess a licence. Ultimately he received a sentence of a custodial kind, i.e. home detention.

8 His more recent criminal history is as follows:

Court Date: 04 July 2001

Local Court: Parramatta

Offence: Susp driver – failed to appear Parramatta Local Court (10/2/2000) (First Instance Warrant – 33813577)

Penalty: Fine $600 costs – Court $56 disqualification: 2 years (EECO 4)

Court Date: 4 July 2001

Local Court: Parramatta

Offence: State false name – failed to appear Parramatta LC 10/2/2000 (First Instance Warrant – 33813585)

Penalty: Fine $20

Court Date: 04 July 2001

Local Court: Parramatta

Offence: (1) Drive on road while suspended; (2) Driver/rider state false name or address

Penalty: (1) Fine: $1000 Court costs $56 disqualification: 2 years (EECO 4); (2) Fine $20

Court Date: 31 August 2001

Local Court: Balmain

Offence: Drive on road while suspended

Penalty: Fine: $400. Court costs $58 Disqualification: 12 months commencing 31/10/2001

Court Date: 27 March 2003

Local Court: Parramatta

Offence: Driver/rider state false name or address

Penalty: Fine: $400 Court cost $59

Court Date: 27 March 2003

Local Court: Parramatta

Offence: Possess licence obtained/renewed by dishonest means

Penalty: Fine: $300

Court Date: 29 May 2003

Local Court: Parramatta

Offence: Drive while disqualified

Penalty: Home detention: 12 months commencing 28/05/2003 non parole period: 9 months. Court costs $59 severity appeal with stay lodged

Court Date: 12 September 2003

Local Court: Parramatta District Court

Offence: Drive while disqualified

Penalty: Conviction confirmed: in lieu home detention: 6 months commencing 28/05/2003 disqualification: concluding 04/07/2008 (DC 372629) Court case reference number 03/22/0503

9 It is only two years since this history of anti-social, increasingly serious criminal conduct including four offences involving dishonesty ended.

10 In my view it is plain that it is far too soon again to entrust Mr Parvin with a licence to operate in the real estate industry. I reach this conclusion despite the strong case put on Mr Parvin’s behalf by Mr Street SC seeking to demonstrate Mr Parvin’s present good character and fitness.

11 I have had regard to the impressive evidence given by his (domestic) partner, Ms Reid. She is also his employer in a real estate business that she has recently acquired. There was evidence given in support of Mr Parvin by the licence holder of the business owned by Ms Reid, Mr Sykes. Mr Sykes has been a licensed real estate agent since 1973. While his evidence was strongly supportive of what he sees as the commitment and efforts now being made by Mr Parvin, its strength must be qualified to some degree by the fact that Mr Sykes is, in effect, an employee of Ms Reid. Ms Reid’s evidence must be discounted to take account of her closeness to Mr Parvin and her understandably strong desire to see him lead, in future, a life which does not encounter the law in such serious ways.

12 Ms Reid was convincing in her evidence as to what she expected from Mr Parvin in future both as an employer and in their personal relationship. There can be little doubt that were Mr Parvin to misbehave in future in the way he has in the past that would bring to an end his relationship with Ms Reid on both the domestic and work fronts.

13 I accept the evidence that Mr Parvin now meets his need for independent travel by using public transport or taxis. I acknowledge, as the Commissioner contends, that his capacity to operate in the real estate market is significantly impeded by his lack of access to a car. On the other hand, there is some force in the reply by Mr Parvin that this is not such a problem while his sphere of activity remains the Balmain property market, a compact densely populated area of Sydney.

14 I am prepared to accept the evidence of remorse for his actions that Mr Parvin displayed in the course of the hearing. On the other hand he did not at any stage, though given several opportunities, give any sensible explanation as to what led him to behave in the increasingly odd way that he did during the four years that gave rise to such a bad history.

15 I acknowledge that Mr Parvin has continued to study hard to satisfy all the requirements for the grant of a real estate agent’s licence; and has done well in those studies. He is near the end of his course. He and Ms Reid are both on the verge of completing the educational requirements. Ms Reid indicated that she saw herself as eventually being the licensed agent in charge of her business (taking over from Mr Sykes) and wanted to have Mr Parvin also involved as an agent, or, at least, as a licensed salesperson.

16 Mr Street hinted at an explanation for Mr Parvin’s recent misdemeanours – the disruptions in his life involved in the death of his mother (from natural causes) when he was three, his escape from Iran, the turmoil of the refugee camp and his isolation from immediate family in his early years in Australia. Mr Street considered that the subsequent arrival of Mr Parvin’s brother and the more recent arrival of his father and (step)mother in Perth had brought greater stability into his life, as had his relationship with Ms Reid. He also pointed to his good work with the Bahá’í community of Sydney, for which there were supporting testimonials. Mr Parvin referred to the anger and disappointment expressed to him by his father (who had once held senior professional positions in Iran) over his son’s conduct. Mr Parvin referred to the violations of the standards of his religion that his conduct had involved. But there was no independent material, from say a psychologist or counsellor, developing these explanations for Mr Parvin’s behaviours.

17 As noted, the Commissioner has refused Mr Parvin re-entry to the real estate profession on two grounds: that he is not a fit and proper person to hold a licence and that he has a conviction for an offence involving dishonesty which was recorded in the last 10 years and the Commissioner has not determined that this offence should be ignored.

18 On the basis of the strong testimonial evidence presented, I am satisfied that, despite his recent bad record, Mr Parvin can now be regarded as a fit and proper person to hold a licence or certificate. On the other hand I agree with the Commissioner that the other ground for refusal remains relevant; and his offences should not, at this point, be ignored. Mr Parvin has committed serious offences involving dishonesty, albeit unconnected with real estate work. The question of his trustworthiness and his integrity is involved.

19 In my view it would be reasonable for the Commissioner to consider allowing Mr Parvin to re-enter the profession if he remains free of conviction, in particular free of any conviction involving dishonesty, for a period that approximately equals the length of his adverse record. In my view he should not be permitted to resume as a licensed person any earlier than January 2007.

Order

1. Application dismissed.

2. Decision that applicant is not a fit and proper person set aside.

3. Decision that applicant is a disqualified person affirmed.