DATE OF WRITTEN reasons (including extension oftime)

Ahmed v Victoria Police (Occupational and Business Regulation) [2012] VCAT 1043

1. The decision under review is affirmed, for the reasons given orally at the hearing.

1. Pursuant to section 126(2) of the VCAT Act 1998, the time for applying for written reasons for decision is extended to 18 May 2012.

1. Mr Ahmed was licensed as a security guard and crowd controller under the Private Security Act 2004 ("the Act"). Following a disciplinary inquiry conducted by a delegate of the Chief Commissioner of Police, Mr Ahmed's licence was cancelled. He appealed to this Tribunal about that cancellation.
2. On 26 April 2012, I heard his appeal and affirmed the decision of the Chief Commissioner, giving oral reasons for decision. On 18 May 2012, Mr Ahmed requested in writing that the Tribunal provide written reasons for the decision. This was outside the time limit of 14 days set by section 117(2) of the VCAT Act 1998 and Mr Ahmed sought an extension of the time limit for making such an application. Given that the application was only marginally past the time limit, his application for extension of time is granted (pursuant to the tribunal's powers under section 126(2) of the VCAT Act 1998) and the written reasons for decision appear below.
3. These reasons are based on my notes rather than on the recording of the hearing, so will not be in exactly the same words as used at the hearing.

1. On 9 June 2011, Mr Ahmed applied to Victoria Police for a Private Security Individual Operator licence for the activities of security guard and crowd control. He was issued with a licence, under the Private Security Act 2004 ("the Act").
2. On 8 August 2011, Mr Ahmed attended at the St Kilda police station and spoke with Sergeant Wursthorn. The sergeant was concerned about what Mr Ahmed said, so he phoned the Alfred hospital and arranged for the attendance of a "CAT team" (Crisis assessment and treatment team).
3. On 6 September 2011, Victoria Police Licensing and Regulation Division wrote to Mr Ahmed advising him that a disciplinary inquiry was being held in relation to his licence. The letter set out the grounds for holding the inquiry, namely that the respondent believed that if Mr Ahmed were to apply for a licence at that time he would be refused under section 25(1)(a) and (b) and section 25(2)(a) of the Act. The letter referred to Mr Ahmed's attendance at St Kilda police station and said that the CAT team believed he might have an undiagnosed psychosis. The letter invited him to make written submissions.
4. According to the respondent's section 49 statement (that is the statement required under section 49 of the VCAT Act 1998), Mr Ahmed attended the Licensing and Regulation Division of Victoria Police in person to discuss the letter of 6 September 2011. The sergeant who took part in this meeting recorded it and provided the recording with the section 49 statement, which included some excerpts from the conversation, although there was no transcript. All this material was on the tribunal file. There was no other evidence about this conversation and in the circumstances, I did not rely on the reports of it, as Mr Ahmed was not asked about it and there was sufficient evidence for me to make a decision without referring to those reports.
5. Mr Ahmed also supplied the Licensing and Regulation Division with a letter from a medical practitioner, dated 24 September 2011. It said only: "Seied Ahmed is a patient of this clinic. He is fit to carry out security duties." It mentioned no assessments or examinations conducted by the doctor and did not say how he had come to this conclusion.
6. On 21 November, the Chief Commissioner's delegate wrote to Mr Ahmed notifying him that his licence was cancelled as a result of the inquiry.

(a) to provide for the licensing and registration of certain participants in the private security industry; and

(b) to otherwise regulate the private security industry for the purposes of ensuring public safety and peace;..."

"If the Chief Commissioner is satisfied that there are grounds for believing that-

(a) the holder of a private security licence, if that holder applied for a new licence, would be refused such a licence, .........

the Chief Commissioner may hold an inquiry into the matter.".

1. Section 52 requires the Chief Commissioner to inform the licence-holder of the grounds for holding an inquiry.
2. Section 25 of the Act relevantly provides:

"(1) The Chief Commissioner must not grant a private security individual operator licence if-

(a) he or she is satisfied that the granting of the licence is not in the public interest; or

(b) he or she is not satisfied that the applicant meets the probity requirements set out in subsection (2); or .......

(2) For the purposes of subsection (1)(b) the probity requirements are that the person-

1. VCAT, in reviewing the decision of the Chief Commissioner, stands in the place of the Commissioner and must take in to account all the material available to it, just as the Chief Commissioner does under section 56. That section relevantly provides:

"If, after considering all the material available to the Chief Commissioner during a disciplinary inquiry, the Chief Commissioner is of the opinion that a ground set out under section 52(1)(b) has been established in relation to a private security licence, the Chief Commissioner may decide to do any one or more of the following-

1. The issue for the tribunal to consider then was whether a licence should be granted to the applicant now, applying section 25 of the Act. In considering that issue, the tribunal must take into account all the material available to it. Applying section 25 of the Act, the tribunal must not grant the licence if satisfied that the granting of the licence is not in the public interest or if not satisfied that the applicant meets the probity requirements, including being a fit and proper person.
2. I agreed with the respondent's submissions that in undertaking this task the tribunal should consider the nature of the industry and should also consider the protection of public safety and peace - which is set out as one of the purposes of the Act in section 1(b).

1. Early in the hearing and from memory I think more than once, I informed Mr Ahmed that I considered the material on the file indicated that he was suffering from hallucinations and that while I was not a doctor I was aware that hallucinations are usually caused by some mental illness or psychological imbalance.
2. I asked Mr Ahmed whether he wanted me to adjourn the hearing so that he could obtain a report from someone qualified to assess his mental health (such as a psychiatrist) and to provide a report for the tribunal explaining what was wrong and whether or not Mr Ahmed needed treatment for the hallucinations he appeared to be suffering. I explained that the tribunal was unlikely to decide he should have a licence as a security guard or crowd controller while he suffered undiagnosed and untreated hallucinations. Mr Ahmed said he wished to proceed with the hearing and did not wish to have any assessment. I had no power to compel him to undergo an assessment.
3. Sergeant Wursthorn had provided a statement dated 19 April 2012. He attended the hearing and was cross-examined. Mr Ahmed disagreed with the statement to some extent. He said that he had never used some of the words reported and had visited the police station merely to seek advice. Otherwise Mr Ahmed did not did not contest the evidence.
4. Sergeant Wursthorn's evidence included the following statements about Mr Ahmed's visit to the police station on 8 August 2011:
   • Mr Ahmed said that he had come to the police station to seek assistance because he believed that some people were using artificial intelligence to manipulate him
   • Mr Ahmed said that he did not know who these people were because they were not showing their faces
   • He said these unknown persons were trying to manipulate him to "commit a felony, to scream, to hit someone"
   • He also stated that the persons were causing him a "pain in the back, toothache and making him sleepless"
   • Mr Ahmed clarified when questioned by Sergeant Wursthorn that he was perfectly in control and "clever enough or in control enough to see through their manipulations and that he had never hurt anyone and would never hurt anyone"
   • As the sergeant was concerned that Mr Ahmed may have been suffering an undiagnosed mental illness he called the Alfred hospital who sent a CAT team
   • The CAT team members later told him after seeing Mr Ahmed that they believed he was suffering a mental illness but he was not a risk to himself or others and they would organise some follow up
   • The CAT team members also said they were not qualified to diagnose any mental illness although they did consider Mr Ahmed was suffering from such an illness
5. Mr Ahmed did not contest this evidence except to say that he had not spoken of hurting anyone.
6. Mr Ahmed himself provided the other evidence which was before me. On March 6 2012, he filed a seven page submission and attachments with the tribunal. He had not provided a copy of this to the respondent. Ultimately, it was not important that the respondent had no opportunity to consider this material before the hearing, since I formed the view that it supported the respondent's position.
7. I read out some of Mr Ahmed's written material to the parties and asked Mr Ahmed whether he considered that what he had written was a true account of events in which he had been involved. He said that it was. It was at this point that I offered Mr Ahmed the opportunity of an adjournment so that he could obtain some medical evidence in support of his position. I stood the matter down for him to consider this. He refused the offer of an adjournment and said he did not want to undergo any assessment of his mental health.
8. The material filed by Mr Ahmed described difficulties he had experienced going back to 1974, two years after he arrived in Australia. It included the following statements:
   • During 1974, he realized "someone or a party was indirectly intervening and deteriorating my life and relationship"
   • "during 1976 because of wrong has been done against me and the feeling of too much stress...I visited university's conselor(sic) and asked for a health and leave certificate. ...later on I found that he cast me according to his mythology and labelled me for somebody I am not"
   • "a person...organized a musician band call 'The Police' or "The Sting' (who is also the singer of the band) and then this senior Psychology student declared that he is in love with me; at the meantime he organized a coalition team of Australians and immigrants mainly Sicilians, Iranians and Armenians for arranging an extensive probe and research about my background, meantime I was also introduced to music corporation at worldwide level"
   • "by 1979 I realized that my flat and my car both were begged(sic)"
   • "During 1984...in Adelaide this coalition party started to use psychoanalysis and covertly using psychedelic drugs by adding to my food (icecream and coffee)
   • "During the month of September 1986 this coalition team through covert operation murdered my sister in Kabul Afghanistan"
   • "Since 1986 until now 2012, over two dozens of my family members are being murdered and skinned for the purpose of mapping my DNA and finding out whether any of my family member possesses Neon light..."
   • "On December 2004, I was given a chemical with the Hamburger I bought at Carl's Jr Berger shop Long Beach University of Southern California. The next morning I awoke up and noticed pimples all over my body. Went to nearest hospital, ...when I took the prescription to the pharmacist, the pharmacist said what is it for I said for my pimples she said this is not for pimples this for mental and psychological issues"
   • "I also would like to mention that while I was living in California covertly my body has been polluted by magnetic-bio-chemical elements (which I could feel it in my spinal cord and in my blood vessel) for reading my subconscious and monitoring my thoughts. I have reported several times to Australian consulate about their atrocities"

1. These statements led me to form the view that the applicant was suffering from hallucinations or delusions. Some of the things he related as having happened to him could not be a true reflection of what actually happened to him. Mr Ahmed clearly believed he was being victimised and harassed over a long period. Some of the things he said suggested that people in contact with him in the past had decided he suffered from mental or psychological problems. This was also the view of the CAT team called by Sergeant Wursthorn. Even without that evidence, Mr Ahmed's own written statement to the Tribunal was sufficient evidence in my view that the Chief Commissioner's decision was correct.
2. While the tribunal is not qualified to diagnose a mental illness, I could not ignore that the applicant believed that events had occurred which could not possibly have occurred. If I had been provided with a medical report indicating that Mr Ahmed's delusions or hallucinations were under control or were being treated and would diminish, I would have considered it, but Mr Ahmed made it very clear he would not voluntarily undergo any assessment.
3. Mr Ahmed agreed that he had not yet worked as a security guard or crowd controller in Victoria. He had however obtained a qualification (a certificate 11 in security operations) which was attached to his licence application. Mr Ahmed was unable to produce any character references about past reliable behaviour in the security industry. However, there was nothing to contradict his own evidence that he has never hurt anyone.
4. Even accepting that Mr Ahmed has never hurt anyone, he was convinced that he continued to be victimised and harassed and that violence had been done to members of his family by the forces pursuing him. His report of these matters was not credible. I formed the view that he suffers hallucinations and that his refusal to seek any diagnosis or treatment indicated a lack of insight into his own state of mind.
5. Even without any expert evidence about the effect of these hallucinations, it was reasonable to form the view as I did that there was a real risk he would be unreliable in a situation involving interaction with people who are agitated or aggressive or who require calm management. These, as the respondent submitted, are the situations likely to arise for a person working as a crowd controller or security guard. These activities concern public peace and safety, so that must be a primary consideration.
6. For these reasons, I was not satisfied that the applicant was a fit and proper person to hold the licence he sought. Since being a fit and proper person is one of the probity requirements in section 25(2), I was therefore not satisfied that Mr Ahmed met the probity requirements. This was not a reflection on his honesty or fitness in any other way. It referred only to the hallucinations I have described and the risk they would affect his judgment in dealing with other people in the situations likely to arise for a crowd controller or security guard. Accordingly, section 25(1) (b) (which requires a person seeking a licence to meet the probity requirements) applied so that I had no power to grant the licence he sought.
7. Section 25 (1) (a) also applied. It prohibits the granting of a licence if the Chief Commissioner (in this case the tribunal) is satisfied that granting the licence is not in the public interest.
8. There is a public interest, in my view, in people who have qualified to perform a function being able to have a job which involves that function, particularly when there is a need for workers in that particular industry. It is arguable that there is a need for people to perform the function of security guard and crowd controller.
9. There is also a public interest in people being able to continue in their employment where possible. Generally, people should be left free to pursue their chosen professions; otherwise their efforts in obtaining qualifications go to waste.
10. There is also a public interest however in carrying out the objectives of the Act, which include public peace and safety.
11. It is not conducive to public peace and safety to give a security guard licence to a person who suffers delusions involving persecution. Even taking in to account that there is no evidence Mr Ahmed has ever harmed any other person, it is in my view not in the public interest to trust him with authority in situations involving interaction with agitated and possibly aggressive persons and where calm control is required.
12. If his symptoms were diagnosed and treated, or even if a qualified practitioner could give evidence that the hallucinations do not affect Mr Ahmed's work, it might well be different, but as it is, I am satisfied it would not be in the public interest to licence Mr Ahmed as a security guard or crowd controller.

1. For these reasons the order was made affirming the decision under review.