Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387
Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65
Source
Original judgment source is linked above.
Catchwords
Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Grenfell v Director-General, Department of Finance and Services [2013] NSWADT 57
McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 35
Murray v Combat Sports Authority of New South Wales and Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 18
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Re T and Department of Youth and Community Services (1980) 1 NSWLR 392
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Judgment (8 paragraphs)
[1]
reasons for decision
The applicant Mr Batu Demirel applied to this tribunal on 23 August 2023 for review of a decision by the respondent Combat Sports Authority of New South Wales (CSA) on 2 August 2023 to refuse his application for registration as a combatant in the class of amateur mixed martial arts (MMA) (exhibit R1, pp 24 - 25).
He had sought registration under the Combat Sports Act 2013 (CR Act) on 30 April 2023 (id., pp 1 - 2). Pursuant to a request by CSA, the Commissioner of Police had supplied to the authority under s 94(1) of the CR Act particulars of the applicant's criminal history (id., 34 - 36). At Waverley Local Court on 14 March 2023, the applicant had been convicted of supplying a prohibited drug, indictable and commercial quantity, under s 25(1) of the Drug Misuse and Trafficking Act 1985 and of dealing with property the proceeds of crime to a value of less than $100,000 within the meaning of s 193C(2) of the Crimes Act 1900. The registration application was refused on the ground of the criminal information disclosure from the Commissioner.
In the course of a patrol in an area of Bondi known for being the scene of drug transactions on 17 December 2022, police stopped the applicant's car and conducted a search of it, in the course of which they located the applicant's telephone, which was continuously receiving messages from an application known as "Wickr", which was commonly used for dial-a-dealer communications. They also found $750 cash in the glovebox.
Police conducted a strip search of the applicant, locating a large sandwich bag containing 12 clear resealable bags containing white powder, weighing a total of 8 g, which proved to be cocaine.
After entering guilty pleas, the applicant was convicted of the two offences and sentenced to two community release orders (CROs) under s 9(1)(a) of the Crimes (Sentencing Procedure) Act 1999. On the proceeds of crime charge, his CRO commenced on 14 March 2023 and expired on 13 December 2023. The CRO relating to his drug supply conviction is still in force, having commenced on 13 March 2023 and concluding on 13 June 2024.
In his letter of apology dated 29 January 2023 addressed to Waverley Local Court (exhibit R3, p 14), he accepted full responsibility for his transgressions and assured the court that it would never happen again. He explained that he financially supports his mother and brother, who have various health problems and that his car registration and his mother's car registration had been due at the same time as rent and other expenses, and his work was ending for 3 or 4 weeks during which time he would not be paid. In desperation his circumstances had led him to sell drugs for the first time, which was out of character, as he had never consumed drugs because of a heart condition from which he suffers (heart scarring).
In his sentencing remarks, Hudson LCM described the applicant as being at the entry level of the drug operation and as a vulnerable person: "Why is he vulnerable, because he is a person who is even now 19 years of age. He is a person [who] since a young age, has been caring for his mother. He does not know his father, so through those formative years where he would have had a male figure in his life who was more protective of him and more guiding to him, he has not been able to do that" (exhibit R3, p 26).
As the decision was made on the basis of a criminal information disclosure about the applicant, the tribunal made orders on 3 October 2023 joining the Commissioner of Police as a party to these proceedings in accordance with s 78(4)(a) of the CS Act. No internal review was required: s 78(6). The matter came on for hearing on 9 February 2024.
[2]
Applicable legislation
The CS Act regulates the conduct of professional and amateur combat sports in New South Wales. Its objects are set out in s 3 as follows:
1. to promote the health and safety of combat sport contestants,
2. to promote the integrity of combat sport contests,
3. to regulate combat sport contests on a harm minimization basis,
4. to promote the development of the combat sport industry.
A "combat sport" is any sport, martial art or activity (other than one excluded by the regulations) in which the primary object of each contestant in a contest, display or exhibition of that sport, art or activity is to strike, kick, hit, grapple with, throw or punch one or more of the contestants: s 4(1). Section 9 prohibits a person from engaging in a combat sport contest as a combatant unless registered as a combatant of the registration class applicable to that contest.
Section 10(1) provides that the authority may determine the registration classes of competence for the purposes of registration as a combatant under the Act. The authority is also required, however, to determine separate registration classes for combatants for combat sport contests, for different styles of combat sport, and professional combat sport contests and amateur sport contests for each style: s 10(3).
Section 11 permits a person to make an application to be registered as a "combatant" of a specified registration class. "Combatant" is defined in s 4(1) to mean a person who engages or proposes to engage as a contestant in a combat sports contest. The determination of such applications is covered by s 13. Section 13(1) stipulates that the authority may register an applicant if satisfied of the five criteria set out in (a) to (e). The second criterion is s 13(1)(b), "that the applicant is a fit and proper person to be registered as a combatant of that class".
This section also provides that the authority must refuse to register an applicant as a combatant in a specified registration class if it is of the opinion that it is not in the interests of the health or safety of the person to grant the registration or in any other circumstances prescribed by the regulations for the purposes of that section (s 13(2)(c), (d).
The authority must refuse to register an applicant as a combatant of a specified registration class if it is not satisfied of the matters listed in s 13(1). Consequently the combined effect of ss 13(1) and s 13(2) is that CSA, and on review the tribunal, must be positively satisfied that an applicant is a fit and proper person to be registered as a combatant of that class before the power to register a combatant can be exercised.
[3]
The evidence
The respondents did not adduce oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1) and on cross-examination of the applicant.
The applicant had not lodged a witness statement, although required to do so by Ransome SM's directions of 3 October 2023, nor did he apply for an extension of time to do so. The respondents nevertheless consented to his giving oral evidence at the hearing.
In his evidence he said his arrest in December 2022 was not recent, but two years ago. He knew of many participants who had served actual jail time but were nevertheless granted registration under the Act. He had pleaded guilty in court. He suffered from a heart condition, but it was only scarring that would not hurt him if he engaged in MMA. The cardio exercise would in fact be beneficial. It was caffeine that presented the main risk to him.
His drug charge had been his first offence, committed when he was trying to help his family. It had been a one-off offence while he was a teenager. His behaviour while on the CRO had been good. His brother was engaged in MMA and he found that engaging in it helped to keep him away from the drugs milieu. His oldest brother was a police officer and the fact that he had a sibling on those charges almost caused him to lose his job. It would be wrong to pull a person away from his dreams. He had been compelled to decline some fixtures because of not having registration, but could engage in jujitsu, which did not require "Blue Book" registration. He did not mind waiting until the CRO expired in July.
Cross-examined by Ms Murray on behalf of the respondents, he explained that the Blue Book was the required medical records for MMA participants, as that involved kicking, elbowing, blows with knees, only eye poking and biting being excluded. Jujitsu did not require a Blue Book.
On 17 December 2022 police had stopped him after he had pulled up in his Lexus to allow a man to get in and had sold cocaine to him. He had told police that the man was a friend of a friend. He had denied having cash or drugs on him, but had drugs concealed in the crotch of his pants. He had told police he had obtained the $750 they found from an ATM, but $500 was for the cocaine sale. He also had the Wickr application on his telephone. He admitted that all his answers to the police had been lies. He had told them he had been earning $1400 per week as an upholsterer.
[4]
Applicant's submissions
The applicant had not filed any written submissions but made oral submissions at the hearing. He contended that his position was different from that of the applicants in Fisher, Tukel and Murray, as he was in a different position from that of a person who had been a member of an outlaw motorcycle gang (OMCG) as in Tukel. Again, the applicant in Murray had reoffended, whereas he had not. He had been 18 or 19 at the time and had lied to police because of immaturity. He has now created a new path in life and leads a healthier lifestyle, and runs every day.
[5]
Approach
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the authority's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act 2013 (CAT Act) (s 30) and the CS Act, which provides that a person may apply to the tribunal for an administrative review of "a decision under section 13 to refuse to register the person as a combatant of a specified registration class": s 77(1)(b). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the act is to be administered generally is provided in the underlying objects of the legislation set out in s 3(1) of the Act, which are:
1. to promote the health and safety of combat sports contestants,
2. to promote the integrity of combat sport contests,
3. to regulate combat sport contests on a harm minimisation basis,
4. to promote the development of the combat sport industry.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
[6]
Fit and proper person
The first ground on which the respondent contends that the registration refusal should be affirmed is that the applicant is not a fit and proper person to be registered as a combatant of that class within the meaning of s 13(1)(b) of the CS Act and must be refused registration pursuant to s 13(2)(a).
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose 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…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained 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, or 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.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
[7]
Whether in the interests of the applicant's health and safety
Section 13(2)(c) of the CS Act provides that the authority (and on review this tribunal) must refuse to register an applicant as a combatant of a specified registration class if "it is of the opinion that it is not in the interests of the health or safety of the person to grant the registration". The authority also relies on this provision in support of the refusal decision.
The legislative requirements for combat sports contain many indications of the CS Act's overarching concern with the health and safety risks to participants. An application for registration as a combatant must be accompanied by a recent certificate of fitness from a medical practitioner and by a current serological clearance (s 11(2)(e)-(d)). It is a condition of registration that a combatant undergo an annual medical check, provide an updated certificate of fitness provided by a medical practitioner within 1 month of an annual check and ensure that his or her medical record book is updated by a medical practitioner following every contest (CS Regulation 2013, cl 7(a),(b) and (e)). It is an offence for a combatant to engage in a contest or sparring if a medical practitioner has certified that the combatant is not medically fit to engage in it and a promoter will also commit an offence if he or she were to permit that to occur (ss 50(1) and 51(1)).
Similarly, it is an offence for a promoter to fail to ensure that a medical practitioner is present at and after a contest, that each combatant is complying with any requirements relating to the wearing or use of protective clothing or equipment and to fail to inform the authority in writing that a combatant has been admitted to hospital within 48 hours of a contest (ss 52-54). A medical examiner must conduct pre-and post-contest examinations of all combatants (ss 57-59 and part 9 of the Regulation). The authority has power to direct a combatant to submit to a medical examination by a specified practitioner and a combatant is prohibited from engaging in a combat sport contest or sparring unless the direction has been complied with (s 61).
These and similar provisions show the importance that the registration scheme attaches to the protection of an applicant's health and safety. In this case the applicant himself outlined the seriousness of his heart condition in his letter of apology to the Local Court: "With all that weight on my shoulders & already having a heart problem/heart scarring I was very stressed due to the fact that work was ending for 3 - 4 weeks & I'd have no pay during those weeks" (exhibit R3, p 14). When explaining why the court should be satisfied that he would not reoffend, he stated that, "I do not & have never consumed drugs in my 19 years of my life due to my heart conditions" (ibid.). His sentencing assessment report records his statement that "he has never used illicit substances and has only consumed alcohol once in his life due to physical health conditions" (id., 17). In his oral evidence the applicant freely admitted suffering from the heart condition described.
[8]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 February 2024
Parties
Applicant/Plaintiff:
Demirel
Respondent/Defendant:
Combat Sports Authority of New South Wales and Commissioner of Police, New South Wales Police Force
The issues in this review application are thus:
1. Whether the applicant is a fit and proper person to be registered as a combatant of the relevant class,
2. whether it is not in the interests of the health or safety of the applicant to grant the registration;
3. whether there are any other applicable circumstances prescribed by the regulations for the purposes of s 13, and
4. whether the discretionary power in s 13(3) should be exercised.
Despite what he had written in his apology letter, he had recently bought his car and had obtained new rims at a cost of $1400. His police officer brother had told him to avoid drugs and if he had known of his plan that day, he would have talked him out of it. His brother had been like a father to him. His job with the police force had been affected by the charges, as he had been investigated because of his family link to the applicant. He had been sent home and told not to discuss the case until it was over, otherwise he could lose his job.
He had seen Dr Thillainayagam Sivaseelan (exhibit R1, p 9) on 28 April 2023 in connexion with his certificate of fitness, which was the first time he had sought to obtain a certificate from a doctor. Dr Sivaseelan was a new GP for him, and he had not told him anything. In particular, he had not mentioned his prior heart events. His pre-sentence assessment report dated 6 March 2023 had described his heart condition (exhibit R3, pp 16 - 17) and it had also been mentioned in his apology letter of 29 January 2023 (id., 14).
His heart condition represented a risk only if he was using alcohol or drugs, and not as a result of exercise. Sport put him at no greater risk. He had not told the doctor about his heart condition and did not know if he knew. The doctor had not expressed any concerns about sports. Asked if he thought the doctor would have raised the matter if he had known, the witness then replied that he thought he knew and the doctor had not asked about it. His conduct had not been misleading, as he had not given any false information. When it was put to him that failing to tell the doctor about his heart condition contravened the legislation, he then replied that the doctor knew about it. He must have known as his heart problem was one of the grounds for CSA's refusal of registration.
The applicant also relied on a character reference from Mr Robbie Furner, operations manager of Zenith Interiors Pty Ltd, the applicant's current employer (exhibit R3, p 15). Its contents are outlined later in these reasons.
The Appeal Panel explained the relevance of the CS Act's objects to the "fit and proper person" test in Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387, [116] - [117]:
116 [I]n the context of the CS Act, we, must be satisfied on the material before the Tribunal, that the applicant has the requisite knowledge of the duties and responsibilities of a registered participant (combatant) in amateur combat sports contests, but that he also is possessed with sufficient moral integrity and rectitude of character as to permit him to be safely registered to the public as a person to be entrusted as a participant (combatant) in such contests (see Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 per Walters J).
117 Without being exhaustive, where there is accepted 'improper conduct' or, as in this case, serious criminal conduct, in order to be satisfied that the applicant is a 'fit and proper person' regard should be had to what that conduct indicates as to:
(1) The ability of the applicant to engage in combat sports in accordance with its rules which involve issues of:
(a) Harm minimisation in regulating the use of physical force in the combat sport in question;
(b) The health and safety of combat sport contestants more broadly; and
(c) Honesty and integrity in following the relevant laws and rules of the combat sport in question.
(2) Whether the general community or public can have confidence that the above will occur; and
(3) Whether registration of the applicant will bring the industry as a whole into disrepute or is otherwise incompatible with the general objects of the CS Act as expressed in s 3(d) to promote combat sports in New South Wales.
The Appeal Panel also pointed out that the fit and proper person test does not involve the weighing or consideration of private interests, it being irrelevant to consider any benefits that might accrue to an applicant, or hardship that might be occasioned, as a result of a decision to register or not register: [66], [80] - [81].
In this application the respondent's case on fitness and propriety is essentially that the tribunal could not be satisfied that the applicant is a fit and proper person to be registered as a combatant because of the two convictions recorded against him on 13 March 2023 (exhibit R1, pp 35 - 36). The police fact sheet for the offences (id., 39 - 43) describes how plainclothes police on 17 December 2023 were conducting patrols around the main streets of Bondi, in an area well known to police for the supply and procurement of prohibited drugs, namely cocaine.
Police held intelligence relating to "dial-a-dealer" drug supply arrangements whereby the customer arranges to purchase prohibited drugs from the supplier through a series of telephone messages. A meeting-place would be agreed and the exchange of drugs for money would commonly take place, either outside or inside the supplier's vehicle or at the residential address of the buyer.
At about 10:10 pm on 17 December police observed the applicant's Lexus stop, as it happened, directly in front of an unmarked police car. A man crossed the street and entered the passenger side of the applicant's car, which then turned into a nearby lane, followed by two unmarked police cars. The other man then left the car and the Lexus moved off before being stopped by police. While they were searching the vehicle, police located the applicant's mobile telephone which was continuously receiving messages from the mobile application 'Wickr', which is commonly used for dial-a-dealer communications. Following the vehicle search and a strip search in the circumstances described above, police found $750 cash in the glovebox and a large sandwich bag containing 12 small clear resealable bags containing white powder which later proved to be cocaine. The total weight was found to be 8 grams.
After being cautioned, the applicant made admissions, stating that he needed the money as "I just registered my car", that it was his first supply of the night and he had not taken part in any supplies in the past. He then said the passenger, who police by then knew had been the buyer in the drug transaction, was unaware of what was occurring, and he had just asked him to go for a drive with him. The applicant was then arrested and charged, and on conviction was sentenced to the two CROs, the one relating to drug supply being still in force until June 2024.
Criminal convictions plainly constitute "improper conduct" and can provide the basis for finding that an individual has "a bad reputation" (Re T and Director of Youth and Community Services [1980] 1 NSWLR 392, 402). In Grenfell v Director-General, Department of Finance and Services [2013] NSWADT 57, the Administrative Decisions Tribunal considered the assessment of criminality in relation to fitness and propriety:
The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgment. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time and the applicant's present circumstances and reputation (at [15]).
The tribunal in Murray v Combat Sports Authority of New South Wales and Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 18 recently affirmed the authority's decision to refuse registration to an applicant in view of his 2022 conviction for supplying an indictable and commercial quantity of prohibited drug and dealing with property the proceeds of crime to a value of less than $100,000, for which he was sentenced to an intensive correction order for of 15 months.
The tribunal concluded that:
Despite Mr Murray's genuine efforts to engage in rehabilitation and his clear wish to put that period of his life behind him, I am satisfied that the seriousness and recency of the 2022 offending and the weight I have given to the matters in favour of Mr Murray leads me to a finding that Mr Murray does not at this point in time, possess sufficient moral integrity and rectitude of character that he should be registered as a combatant (at [125]).
Murray also provided guidance on the application of the fitness and propriety test in relation to drug offences, given the statutory object of promoting the development of the industry as set out in s 3(d) of the Act. Rogers SM explained:
One of the public policy purposes which drives the regulation of the combat sports industry is to control and remove drugs in sport, including supply of drugs by athletes irrespective of whether this occurs outside of competition.
Another aspect is the removal of criminal elements from the industry. I agree with the comments of the Tribunal in Tukel v Combat Sports Authority [2023] NSWCATAD 180 at [108] that "the prevention of the involvement of criminal elements in the combat sports industry is a key focus of the Combat Sports Act."
Drug dealing cannot be condoned or seen to be condoned by the Authority or any peak body. Part of promoting the development of the industry includes promoting a culture that upholds anti-doping rules and policies, including where these rules and policies extend beyond conduct occurring at contests.
To interpret 'fit and proper person' to allow registration of a combatant who has recent convictions for the offences committed in the present case would undermine public confidence in the combat sports industry, the importance of anti-doping programs in combat sports and the importance of promoting a culture that is committed to clean sport and compliance with applicable laws, rules and codes that apply to the industry. This in turn would impact on the reputation of the combat sports industry and whether new competitors or spectators would be attracted to [the] industry (at [140] - [143]).
Also lending weight to the anti-drug policy is the authority's Anti-Doping Policy statement of 2 June 2015 (id., 59 - 60) and its Code of Conduct under which combatants agree to "Comply with the laws and regulations that govern the combat sport and martial art form including: a. Alcohol, drugs and anti-doping laws and regulations" (id., 61) and its expressed commitment to the 2021 World Anti-Doping Code (id., 62 - 261).
The applicant's two recent criminal convictions weigh against his case on the issue of fitness and propriety, especially as they involve drug dealing, which is an important public policy focus in the regulation of sport, and combat sports in particular. As Murray pointed out, to allow registration of a combatant with recent drug offences would run counter to efforts to remove drugs from sport and to prevent the involvement of criminal elements, besides undermining public confidence in the industry and anti-doping programs, while impacting on the reputation of the combat sports industry and whether new competitors and spectators would be attracted to it.
As against that, the applicant submitted that his circumstances were different and distinguishable from those in the refusal cases relied on by the respondents. The applicant in Tukel v Combat Sports Authority [2023] NSWCATAD 180, unlike himself, had been a member of the Comancheros outlaw motorcycle gang (OMCG). Indeed, he had been less than candid about his involvement in the OMCG, and that he was vice president from 2013 to 2014 and had held a role as president. The applicant in Murray had been a repeat drug offender and addict, whereas he had not and had committed no violations of his CRO orders. It could also be added that the applicant in Fisher had been convicted of an offence involving serious sexual violence, whereas Mr Demirel has no history of violence, of sexual misconduct or of threatening behaviour.
The applicant also relied on a character reference (exhibit R3, p 15) in which Mr Robbie Furner, operations manager of Zenith Interiors Pty Ltd wrote that he was aware of the charges that the applicant had faced and noted that he had expressed deep remorse for his actions, such that Mr Furner honestly believed that it was completely out of character for him to be caught up in that situation. He has known the applicant for about a year as his employer and direct manager, and in which the applicant has been an integral team member as part of their manufacturing division. Having been a strong member of their team, he had developed into a positive role model for his team members. He consistently arrived on time and completed his work to a very high standard and acted as a calming influence on his team members.
He often sought to "up skill" himself by volunteering to learn new tasks and taking on challenging and varied types of roles. His initiative, consistency and willingness to help others were highly commendable and as such Mr Furner regarded him as an essential part of their production team. Since starting with Zenith, he had proved himself to be very responsible, honest, hard-working and punctual, and always works overtime when available. His work ethic is one to be proud of and he had developed very strong positive relationships with his team members. Mr Furner believed that if Batu continued to show his strong commitment, work ethic and willingness to keep learning, he would eventually advance into a more senior role should the opportunity present itself in the future.
The applicant has repeatedly expressed sincere remorse for his "idiotic criminal behaviour", including in his apology letter of 29 January 2023 (id., 14). While the respondent contended that there was no evidence of rehabilitation, Mr Furner's letter can be viewed as some evidence of progress in that direction. It is, however, the only character reference the applicant has produced. I accept, nevertheless, the applicant's assurances that he has changed his lifestyle and is now committed to a stable and healthy mode of living.
The fact remains, however, that his convictions involved some of the very kinds of drug-related conduct that the regulatory scheme is intended to combat. They are also quite recent. The applicant submitted that they had occurred when he was a teenager and in effect were a matter of history. But it is less than a year since his convictions were recorded and his arrest date was only 14 months ago. He is still serving the sentence imposed under the CRO for drug dealing, and as the Appeal Panel noted in Fisher, the fact that an applicant is still on parole or subject to other sentence conditions is a relevant consideration (at [125]).
There is also the matter of the manner in which he obtained the certificate of fitness dated 28 April 2023 (exhibit R1, p 8) from Dr Sivaseelan. He had not previously consulted the doctor and did not tell him about his cardiac condition involving scarring of the heart. In connexion with his application he had accepted the terms of the declaration, acknowledgement and consent form which acknowledged inter alia that "I… understand that it is an offence to provide false or misleading information in relation to a certificate of fitness, serological clearance certificate or other medical examination report provided under the Act" (id., 12).
In his oral evidence he denied that he had contravened that agreement, stating that he had not provided any false information. In the circumstances, however, failing to inform a medical practitioner, in the course of a consultation specifically for the grant of a certificate of fitness, about a heart condition with which presumably he had previously been diagnosed, could be viewed as misleading. He also equivocated about whether the doctor might in fact have been aware of his complaint, although he admitted he had not mentioned it.
The applicant submitted that persons should not be prevented from pursuing their dreams and pointed out that he had been compelled to decline invitations to participate in events because of not possessing the requisite registration. But as the Appeal Panel explained in Fisher, "The fit and proper person test is, fundamentally, directed to the character and reputation of the applicant. Whether or not the applicant would receive benefits to his mental health and rehabilitation from competing in amateur boxing cannot be relevant to that test" (at [82]).
The applicant is a man aged 20 in regular employment as an upholsterer whose only encounters with the criminal law are those previously mentioned. He has no record of violence or threatened violence, nor any history of drug or alcohol abuse or of any mental health problems. It is not suggested that he has any links with OMCGs or other criminal organizations. He is employed full-time under an operations manager who is more than pleased with his performance, attitudes and continuing development.
It is not enough, however, to be currently of good behaviour. Also relevant is an applicant's past conduct, which can be an indicator of possible future behaviour. All relevant evidence must be considered before a finding of fitness and propriety can be made. As the Appeal Panel explained in Fisher, "Together, ss 13(1)(b) and13(2) operate such that the Authority (and the Tribunal, when standing in the shoes of the Authority in an administrative review) must be positively satisfied that an applicant is a fit and proper person to be registered as a combatant of that class before the power to register a combatant can be exercised" (at [24]).
The evidence before the tribunal is insufficient to justify such a state of positive satisfaction. His drug-related offences are both serious and recent and, in particular, he is still serving the sentence under the CRO for the drug-dealing conviction. In Fisher, the fact that the applicant was still on parole was considered relevant (id., [125]).
His character reference from Zenith Industries is supportive, but it is the only one and there is no other evidence of rehabilitation other than his own assurances. There is also the matter of the doubts about the manner in which he obtained his medical certificate of fitness. On the evidence available at present it is not possible for the tribunal to reach a positive conclusion that the applicant is a fit and proper person to be registered as a combatant of the Amateur MMA class, and I so find.
It is not disputed that MMA is a high-intensity sport involving burst exertion. Combat sports' violent nature is made clear from the definition of "combat sport" in s 3, which defines it as including sport where the intention "is to strike, kick, hit, grapple with, throw or punch one or more other contestants". Such is the high intensity nature of the sport that MMA contests involve a maximum of three 3-minute rounds, with one-minute breaks between each round. The existence of a heart condition so serious as to prevent the applicant from being able to consume any alcohol leads to a real concern about his ability safely to compete in violent high-intensity sport involving burst exertion.
As has been pointed out above, the applicant was granted a medical certificate of fitness by Dr Sivaseelan on 28 April 2023 (exhibit R1, p 8). The applicant's oral evidence makes it clear, though, that he had not informed the doctor about his long-standing heart condition and he equivocated about whether the doctor might have been aware of it. It seems most unlikely that a medical practitioner would have issued a fitness certificate to a person to engage in such an intense and violent form of exertion without investigating further the person's heart condition if he or she had been aware of it.
Given the unchallenged evidence that the applicant suffers from a heart condition and the fact that there is no expert evidence from a medical practitioner who had been fully informed of its existence that it would nevertheless not be contrary to his health and safety interests to engage in MMA sparring and contests, the tribunal is bound to conclude that it would not be in the interests of his health and safety for him to be registered as a combatant at this stage, and I so find. Effect must be given to the legislation's overriding concern with participant health and safety.
The authority submitted that if the tribunal did not accept the authority's submissions on fitness and propriety and health and safety concerns, it should exercise the residual discretion in ss 13(2) and (3) to decline to register the applicant on other grounds. In view of the conclusions I have reached above on the principal issues, it is not necessary to proceed further and exercise the discretion against registration. On the basis of all the evidence I conclude that the refusal decision must be affirmed.