Victorian Civil and Administrative Tribunal|2023-05-19|Before: Tang AM

For the reasons discussed above, it is clear that the majority of the Section 63(1) Factors point against Mr Heidarikakolaki's being allowed to work with children at this time. Having regard to those factors, I am not satisfied on the evidence before me that he does not pose an unjustifiable risk to the safety of children.

Would a reasonable person allow their child to have contact with the applicant?

As noted in TXD,[38] the Reasonable Person Test is objective, and 'relies on a reasonable person having knowledge of all the facts and surrounding circumstances'.

I am not satisfied that a reasonable person would allow their child to have contact with Mr Heidarikakolaki.

Mr Brnovic noted that, in Secretary to the Department of Justice & Regulation v OUX,[41] the Court of Appeal observed that it was 'difficult to envisage a case where the [Any Child-Related Work Test] will add anything of substance' to the criteria set out in the Unjustifiable Risk Test.[42]
On that basis, the Secretary contends that the same factors considered for the Unjustifiable Risk Test mean that the Tribunal cannot be satisfied as to this test.
I accept that submission.

Is it in the public interest to grant a WWC Clearance to the applicant?

While there are some public interest considerations that are favourable to Mr Heidarikakolaki, in light of the matters discussed at [56]-[61], I am not satisfied that, overall, it is in the public interest to grant a WWC Clearance to Mr Heidarikakolaki.

[1] Mr Heidarikakolaki was charged with three counts of sexual assault on 3 March 2021. They were subsequently 'rolled up' into one consolidated charge.

[3] Certified Extract of the Magistrates' Court orders dated 30 May 2022: Tribunal Book (TB), 120.

[4] Letter from Mr Geoffrey Burrows to Nelson Brown Legal dated 24 April 2023: TB, 276-277 [8] and [9].

[11] Charge - Sheet and Summons: TB, 203 (the emphasis reflects hand-written amendments made by consent on 17 February 2022).

[12] Submissions against cancellation of Working with children check dated 9 May 2023 (Applicant's Submissions) [3(a)].

[17] Applicant's answers to respondent's questions dated 12 September 2021: TB, 24-34.

[18] Applicant's answers to respondent's questions dated 12 January 2022: TB, 60-73.

[26] 'Low risk' per Brief Pre-Sentence Assessment dated 4 April 2022 (TB, 162) and 'Medium/High' risk per Forensic Intervention Services Screening Outcome and Recommendations dated 2 June 2022 (TB, 169).

[34] Submissions against cancellation of Working with children check dated 17 May 2023 (filed with in accordance with leave granted by the Tribunal's orders dated 10 May 2023).

[35] There is evidence of the cost of the Masters degree included in the confirmation of Mr Heidarikakolaki's enrolment, which is in the tens of thousands of dollars.

[37] See, for example, 'Australian visa changes for 2023-24: What we know so far' (available at https://www.sbs.com.au/news/article/australian-visa-changes-for-2023-2024/8oypo0xui).

[40] Citing Walker v Secretary to the Department of Justice and Community Safety [2022] VCAT 411 [129].

Heidarikakolaki v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2023] VCAT 566 (19 May 2023)

Heidarikakolaki v Secretary to the Department of Justice and Community Safety

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Judgment (25 paragraphs)

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Heidarikakolaki v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2023] VCAT 566 (19 May 2023)