Munoz Merino v Commissioner for Fair Trading

NCAT Occupational|2019-05-16

REASONS FOR DECISION

Mr Ezequiel Ignacio Munoz Merino applied to the Tribunal on 8 February 2019 for administrative review under the Administrative Decisions Review Act 1997 (the ADR Act) of the decision of the Commissioner for Fair Trading (Fair Trading) dated 21 January 2019 to refuse to grant his application for a tattooist licence under the Tattoo Parlours Act 2012 (the TP Act).
As required by s 14(b) of the TP Act, Fair Trading had referred the application to the Commissioner of Police NSW Police Force (the Commissioner) for an investigation and determination as to whether the applicant was a fit and proper person to be granted a licence, or whether it would be contrary to the public interest for the licence to be granted. The Commissioner made a security determination under s 19(1) of the TP Act that the applicant is not a fit and proper person to be granted the licence because of his criminal history, and that it would be contrary to the public interest for Mr Munoz Merino to be granted the licence because of his criminal history (the adverse security determination). Having made an adverse security determination, the Commissioner is, by operation of s 27(3)(a) of the TP Act, a party to these proceedings.
The Commissioner also advised pursuant to s 36(1) of the TP Act that Mr Munoz Merino is disqualified from holding a licence, permit or other authority under the Security Industry Act 1997, the Commercial Agents and Private Inquiry Agents Act 2004, the Weapons Prohibition Act 1998, and the Firearms Act 1996, by reason of: 1. his conviction on 28 June 2018 of an offence against s 93T(1) of the Crimes Act 1900, in respect of which he was sentenced to 15 months imprisonment suspended on entering a s 12 bond for 15 months; and 2. the finding of guilt (with no conviction recorded) on 4 August 2014 of an offence against s 7(1) of the Weapons Prohibition Act 1998, with a good behaviour bond of 4 months.

The Review

A person whose application for a licence under the TP Act has been refused may apply to the Tribunal for administrative review of that decision: s 27(1). No internal review of the decision is available: s 27(5).
Where a licence application has been forwarded to the Commissioner by Fair Trading under s 14 of the TP Act for investigation and determination as to whether an applicant is a fit and proper person to be granted the licence, and whether it would be contrary to the public interest for the licence to be granted, and the Commissioner has made an adverse security determination about the applicant, Fair Trading must refuse to grant the licence: s 16(3)(c) TP Act.
On review, the Tribunal is not prevented from determining whether the correct and preferable decision regarding the application was made, merely because of the adverse security determination of the Commissioner: s 27(3)(c). The Tribunal's task it to determine the correct and preferable decision on the basis of the material before it: s 63 ADR Act.
The issues for the Tribunal are, therefore, whether Mr Munoz Merino is a fit and proper person to be granted the licence and whether it would be contrary to the public interest for the licence to be granted.

Tribunal hearing

The adverse security determination prepared by the Commissioner pursuant to s 19(2) of the TP Act is in evidence (ex R1). No redactions were made to that document. The respondent also relied on documents provided under s 58 of the ADR Act, including the application for the licence (ex R3). The respondent provided in reply documents obtained from Burwood Local Court under summons (ex R2).
Mr Munoz Merino relied on references from Detective Senior Constable Michael Mahony (ex A1), and Steven Carter, manager of Ink Parlour Tattoos and Piercings, South Granville (ex A2). Mr Munoz Merino provided a statement (ex A3), and gave oral evidence at the hearing.
The hearing was listed for 10 May 2019. It was adjourned on that occasion as Mr Munoz Merino had not read the documents provided by the respondents in reply (ex R2), which had been filed at the Tribunal on 3 May 2019. English is not Mr Munoz Merino's first language, and while a copy of the documents (138 pages) was provided it was apparent that he would be disadvantaged if the hearing proceeded before he had read the documents.
The hearing proceeded on the adjourned date 16 May 2019. The Tribunal was assisted by an interpreter in the Spanish language.

Background

At the time of his application for the tattooist licence on 10 August 2018 Mr Munoz Merino was aged 24. He was born in Chile in 1994, came to Australia at the age of 9, returning to Chile for his teenage years, and coming back to Australia in 2011-1012. Mr Munoz Merino married on 13 September 2017 and his daughter was born on 13 May 2018.

Respondents' evidence

The respondent's documents disclose the following history of criminal proceedings against Mr Munoz Merino: 1. 28 June 2018 Burwood Local Court: convicted of offence under s 93T Crimes Act 1900 "Participate criminal group contribute criminal activity": sentence 15 months imprisonment, suspended on s 12 bond of 15 months (the 2018 conviction); and 2. 4 August 2015 Burwood Local Court: "possess or use prohibited weapon", finding of guilt with no conviction recorded, s 10 bond for 4 months (the 2015 criminal proceedings).
In addition to the documents relating to the 2015 and 2018 criminal proceedings, the Commissioner's adverse security determination (ex R1, tab H) includes printouts of Facebook postings dated 19 May, 29 May, 7 June and 7 July 2017 by "Ezzie Munoz", for tattooist work at the address at which Mr Munoz Merino resided.

The 2018 conviction

A Statement of Agreed Facts signed by Mr Munoz Merino and his solicitor dated 28 June 2018(ex R2, tab HI) states that Strike Force Brilliant was a New South Wales State Crime Command investigation into a South American organised crime syndicate which had committed numerous theft offences across Sydney, the proceeds of which were sent to Chile. Between 17 August to 17 September 2017 Mr Munoz Merino assisted four men who were charged with serious indictable offences including theft and proceeds of crime, three of whom had pleaded guilty. The steps taken by Mr Munoz Merino to assist the four men during their stay in Sydney were: 1. Organising accommodation for the men and extending that accommodation: Mr Munoz Merino was living in premises in Ashfield, a two storey dwelling with five rooms (the premises); on being contacted by Christian Vasquez Zamora he arranged with Miguel Angel Garcia Vasquez (to whom he was paying rent) for the four men to occupy one of the rooms in the share house for three weeks after their arrival on 17 August 2017, extended for one week with use of another room; 1. Attempting to dispose of stolen jewellery by attempting to find a jeweller: On 31 August 2017 Mr Vasquez Zamora asked Mr Munoz Merino to help with selling jewellery stolen on 28 August 2017, estimated value $500,000. Mr Munoz Merino sent text messages to Mr Garcia Vasquez asking if he knew a jeweller advising him he wanted to sell a lot of jewellery (the attempt to assist in the disposal of the jewellery was unsuccessful); 1. Driving the men to Australia Post Ashfield and helping them send stolen property to Chile: On 4 September 2017 the four men each obtained a large postage box, which they packed at the premises with an unknown amount of stolen jewellery hidden among other items including other proceeds of crime obtained from other offences. Mr Munoz Merino drove each of the men to Australia Post at Ashfield, assisting the men to carry the boxes to the counter and to label and address the boxes, which were sent to Chile; 1. Purchasing mobile phone credit for one of the men; and 2. Disposing of property left by the men after they made urgent arrangements to flee Australia.
One of the men was arrested on 14 September 2017, and the other three were arrested at the airport on 16 September 2017. A search warrant was executed at the premises on 27 September 2017, and a number of items seized, including two pieces of jewellery located on Mr Munoz Merino's bedside table; Opal cards used by members of the group, located in Mr Munoz Merino's bedroom; and a backpack left behind by the four men.
Following the search warrant Mr Munoz Merino voluntarily attended Burwood Police Station and was interviewed. At a second interview on 5 January 2018 as a protected suspect (volunteer not under arrest) (ex R2, tab HI) he stated he was performing the tasks at the request of Vasquez Zamora, and provided further information about the other offenders that assisted the police with their inquiries. Mr Munoz Merino stated that Lara Pizarro told him that the four men were in Australia "working", which he took to mean to rob people. He stated that he did not have possession of the jewellery at any stage, and that he tried to find a buyer after being offered a cut of the sale. He admitted to driving the men to Australia Post and assisting them to send their parcels to Chile. He assisted the men by driving them to the train station, purchasing phone credit on their behalf, and he cleaned up after the men as they made a quick attempt to flee the country. He disposed of property they had left including clothing and shoes, kept some items for himself, and sold other items including a mattress. He borrowed $600 from Lara Pizarro as a short term loan to pay for his wedding, the money being paid back by Vasquez Zamora. He was given petrol money, and money for the phone credit he purchased. The two pieces of stolen jewellery found on his bedside table were given to him by Lara Pizarro as a wedding present.
The NSW Police Force Criminal History records (ex R2, tab A) record that a charge of "knowingly deal with proceeds of crime" was withdrawn on 23 May 2018, and in relation to the charge "participate criminal group contribute criminal activity" Mr Munoz Merino pleaded guilty and was sentenced to 15 months imprisonment suspended on entering into a s 12 bond to be of good behaviour for 15 months, to 27 September 2019.

The 2015 criminal proceedings

The Facts Sheet for the 2015 criminal proceedings is in evidence (ex R1 tab G). In summary, Mr Munoz Merino was stopped on 2 December 2014 while entering Liverpool Railway Station and asked for evidence of his concession train ticket. In response to a question by the drug dog handler he stated that he had smoked cannabis the night before and had a capsule in which it was stored in his bag. A search of the bag disclosed a hand grinder with cannabis residue and a capsule holder containing residue, and a butterfly knife. Mr Munoz Merino participated in a notebook interview at the scene and told police he had forgotten the knife was there, and had put it in there on Saturday; he used the knife to cut stencils for his friend's sleeve.
The NSW Police Force Criminal History records (ex R2, tab A) state that Mr Munoz Merino was convicted and fined $850 for the offence of "possess or use a prohibited weapon without permit". An appeal against sentence was upheld, resulting in a s10 bond for four months.

Mr Munoz Merino's evidence

In his application for review Mr Munoz Merino stated that he has been working in the tattoo industry for over five years, and wants to continue working in it since it is his passion. He wants to make tattoos his career as he is a responsible family man who wants to provide a better future for his daughter and wife. He has been offered countless jobs in tattoo shops but has had to decline them since he does not have a licence.
In a statement (ex A3) Mr Munoz Merino states that he knows he has a criminal record from 2014 when he was caught with a small knife left in his bag from the previous day while he was doing a tattoo session on a friend. There was never an intention to use it as a weapon. On the later charge in 2018, he relies on the letter from Detective Senior Constable Mahony. He is completely aware of the bad decisions he has made and regrets every one of them, from trusting the wrong people who he thought were his friends. Since he had his daughter things have changed for him. He wants his daughter and family to feel proud of him for following his dream, and is asking for a second chance to demonstrate he can make better options for his life and future.
In oral evidence Mr Munoz Merino confirmed the information recorded in the Facts Sheet for the 2015 proceedings. He no longer smokes cannabis and has never sold it. He did the tattoo for his friend, not a whole sleeve just the top part of his arm. He has been practising and making tattoos for five years, in Chile and Australia, for his wife and friends. He did do tattoos for money in 2017, about 3 or 4 tattoos in three months. He did not know it was illegal to charge to do a tattoo other than in a shop, and thought that if he worked in a shop he needed to have a licence. He stopped work as a tattooist in July 2017 when he was told it was illegal, and has worked as a painter. Then the second charge happened, which took a year. It took him a while to apply for a licence because the police warned him he would have to wait until the end of the court case before he could apply, and he also needed some money to apply.
In relation to the 2018 charge Mr Munoz Merino said that some things in the Agreed Facts were out of context, however he agreed that he had purchased telephone credit for $10 and had driven the men to the post office. He suspected the men were doing bad things but it was not confirmed to him that they were stealing jewellery. He was not aware the jewellery was taken to the house. He was asked if he knew a jeweller. He was offered money but was not paid. He agreed that he had said to Garcia Vasquez that it was a large amount of jewellery, but he never saw the jewellery. It was put to him that he must have suspected the jewellery was stolen; Mr Munoz Merino said he had suspicions it must be something bad. He did not want to get involved. He was given $15 for petrol. He had his suspicions about the men. They were older, and he was ordered about. Vasquez Zamora treated him as if he was an older brother. He did not know the men and met them when they moved in.
Mr Munoz Merino said that he had helped the police voluntarily, and he wanted to co-operate. He gave information because he thought that is what he had to do. In response to the proposition that he hoped he would get better treatment Mr Munoz Merino said "I suppose, yes". It was after the search warrant that he knew the items were stolen, and Detective Senior Constable Mahony asked him if he wanted to testify. He did not think he would be in trouble because he did not know he was involved in something illegal. Asked why he did not say in August 2017 he would not help the men, Mr Munoz Merino said that he was only asked as a favour to drive them to the post office. After the men left he cleaned the room and got rid of rubbish so the room could be rented again, and he only kept a small knife, the Opal card, mattresses which he sold to a friend, two pieces of jewellery and a backpack. He is not in contact with any of the men.
Mr Munoz Merino said that Steve Carter has offered him a job. He has told him about his situation.

Respondents' submissions

The respondents submit that the decision under review should be affirmed on the basis that the applicant is not a fit and proper person to be granted the licence, it would be contrary to the public interest for the licence to be granted, and the applicant has been disqualified from holding a licence under other legislation.
The respondents submit that Mr Munoz Merino's conduct demonstrates that he is not a fit and proper person to hold a tattooist licence, on three grounds.
First, his recent criminal history shows a disregard for the law and the safety of others. He has engaged in recent, serious and organised offending including assisting others to commit indictable armed theft (break and enter) offences. Although he was convicted of a single offence he willingly and repeatedly participated in and contributed to criminal activity carried out by a South American organised crime syndicate committing sophisticated theft offences across Sydney in 2017. He took numerous steps to assist the offenders while they committed 22 theft offences involving $700,000 worth of stolen jewellery and cash, including dealing with the proceeds of crime. His conduct in arranging accommodation, attempting to sell stolen jewellery, driving the men to the post office, purchasing mobile phone credit and disposing of property left behind demonstrates repeated and ongoing assistance to the group. Further while he did not commit the thefts, he made admissions to police that he had already formed the belief that the men were in Australia to rob people. His criminal associations alone are grounds for finding against fitness and propriety. In oral submissions the respondents submit that Mr Munoz Merino has not been completely forthright in his evidence to the Tribunal, and ultimately accepted that he knew the jewellery was stolen after questioning.
The respondents submit that the 2015 weapons offence and Mr Munoz Merino's admission that he was smoking cannabis should be taken into account, accepting that less weight should be given to that than the later charges: while he was still young at that time, it was not so long ago.
Secondly, Mr Munoz Merino has failed to discharge his onus to demonstrate that he has been rehabilitated. He has not demonstrated that he has learned from his recent and serious criminal conduct and reformed his behaviour, having particular regard to the limited time since the offending, the lack of genuine expressions of self-awareness, and lack of any steps to rehabilitate. He has failed to provide a satisfactory explanation as to why his past criminal behaviour will not reoccur or why he has become a changed person. It is not sufficient for him simply to assert he is a changed man, and he needs to show some insight into his past conduct and its effect on the community. The character reference from Mr Carter is of little value. Mr Munoz Merino's assistance to police after arrest does not demonstrate remorse, and he only became an informer on arrest and when aware of the position he was in, and it was more likely self interest not insight than motivated his assistance to police. Mr Munoz Merino remains on a good behaviour bond expiring 28 September 2019 which suggests insufficient time has passed to enable him to demonstrate true remorse.
Thirdly, Mr Munoz Merino has demonstrated a disregard for the tattoo licensing regime. It may be inferred he has been working as a tattooist since at least 2014 and for reward since at least 2017, without a licence, based on his statement that in December 2014 he had the knife because he used it to cut a stencil for a friend's tattoo, the email address registered to a social media profile featuring tattoos and describing fee structures, the Facts Sheet for the most recent offence recording that he had been casually working as a painter as well as an unlicensed tattoo artist, and the statement in the review application that he has been working in the tattoo industry for over 5 years.
The respondents submit that it would be contrary to the public interest to grant a licence, based on the contention that Mr Munoz Merino is not a fit and proper person. Even if he were a fit and proper person it would not follow that it is in the public interest to grant him a licence. The legislation is designed not only to protect members of the public from harm but to reserve public confidence in the industry. Mr Munoz Merino's private interests including obtaining access to a reliable income stream receive no weight in consideration of the public interest. Given Mr Munoz Merino's recent serious criminal history and associations with a criminal group it would undermine public confidence in the licensing regime if he were granted a licence; a member of the public knowing of his record and association would object to him being their tattoo artist; and his disregard for licensing laws suggests he may not diligently comply with the conditions of a licence.
The respondents submit that Mr Munoz Merino's disqualification under the Security Industry Act 1997, the Commercial Agents and Private Inquiry Agents Act 2004, the Weapons Prohibition Act 1998, and the Firearms Act 1996 shows the seriousness with which his behaviour is viewed, and provides a further basis for refusing the licence and feeds into the public interest assessment.

Applicant's submissions

Mr Munoz Merino submits that he knows he made a mistake, and he trusted someone he thought was a friend. He can say that since his daughter was born he would do what is right. He wants to do the right thing by society, to work and pay taxes and not be reliant on Centrelink. The work he enjoys is tattooing, and he wants to do it professionally and legally. He is good at what he does and wants to look after his family, and to contribute to the country. That is why he stopped charging for tattoos, so he could do the right thing.

Relevant legislation

Mr Munoz Merino requires a licence in order to be able to perform any body art tattooing procedure for fee or reward: s 7(1) TP Act. His application under s 11 was referred to the Commissioner under s 14 of the TP Act. Section 16 provides the matters on which the Commissioner is to report: (1) If an application for a licence is referred to the Commissioner for investigation under section 14, the Commissioner is to inquire into and determine, and report to the Secretary on, any one or more of the following: (a) whether the applicant is a fit and proper person to be granted the licence, (a1) whether a close associate of the applicant is a fit and proper person, (b) whether it would be contrary to the public interest for the licence to be granted.
Under s 16(3)(c) the Secretary must refuse to grant a licence if an adverse security determination has been made: 16 Decision of Secretary in relation to licence applications (1) The Secretary may, after considering an application for a licence or for the renewal of a licence and the determination of the Commissioner under section 19 on the application, grant or renew the licence or refuse to grant or renew the licence. … (3) The Secretary must not grant or renew a licence if: (a) the Secretary is satisfied that the application for the licence or for the renewal of the licence was not duly made, or (b) the applicant is a controlled member of a declared organisation, or Note. Controlled members are prohibited from applying for licences - see section 27 of the Crimes (Criminal Organisations Control) Act 2012. (c) an adverse security determination has been made by the Commissioner about the applicant. … (5) The regulations may also provide mandatory or discretionary grounds for refusing the granting or renewal of a licence.
An "adverse security determination" is defined in s 3(1) to mean: adverse security determination made by the Commissioner means: (a) in relation to an applicant for a licence - a determination of the Commissioner that is reported to the Secretary under this Act on any one or more of the following: (i) that the applicant is not a fit and proper person to be granted a licence, (ii) that a close associate of the applicant is not a fit and proper person, (iii) that it would be contrary to the public interest for the applicant to be granted a licence, or …
Clause 13(2) of the Tattoo Parlours Regulation 2013 provides for the purposes of s 16(5): 13 Additional grounds for refusing to grant licences (1) Grounds for refusing operator licence applications For the purposes of section 16 (5) of the Act, the Secretary may refuse to grant an operator licence if satisfied of the existence of any of the following grounds: … (c) the applicant is disqualified from holding a licence, permit or other authority under legislation administered by a relevant Minister, …
Based on the report by the Commissioner Mr Munoz Merino is disqualified from holding a licence, permit or other authority under the Security Industry Act 1997, the Commercial Agents and Private Inquiry Agents Act 2004, the Weapons Prohibition Act 1998, and the Firearms Act 1996.
As noted above, by operation of s 27(3)(c) of the TP Act the Tribunal has a discretion, which is not available to Fair Trading, to grant a licence to Mr Munoz Merino, notwithstanding the making of an adverse security determination by the Commissioner. In determining whether he is a fit and proper person to be granted a licence and whether it is in the public interest for him to be granted a licence, the Tribunal is required to take into account the adverse security determination and give it due weight: Smith v Commissioner of Police NSW Police Force and NSW Fair Trading [2014] NSWCATAD 184; Birch v Commissioner for Fair Trading and Commissioner of Police [2017] NSWCATAD 166.

Whether the applicant is a fit and proper person to be granted a licence

The principles relevant to determining whether the applicant is a fit and proper person are well established.
In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very 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 ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.
What is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]).
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: 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, 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.
Their Honours went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
In Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 at [19-20] in the context of the TP Act, Senior Member Montgomery stated: [19] …There is no "Principles and Objects" section within the Act. The Tribunal can look at Hansard and the Minister's speech to ascertain the purpose of the Act - the mischief that the statute was designed to cure. In his second reading speech on the introduction of the Bill to Parliament, the Minister for Police and Emergency Services Mr Gallacher noted that the Act was introduced in response to gang crime in NSW. It aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry. It was anticipated that removing bikies from the tattoo industry will reduce the reasons for rival gangs to fight turf wars, because these businesses will no longer be symbols of a gang's territory… [20] While the second reading speech focused on the involvement of outlaw motorcycle gangs in the tattoo industry, it is clear from the Act that the broader intention is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct.
In Nguyen v Department of Fair Trading [2019] NSWCATAD 71 Senior Member Walker said: 55. In the context of the TP Act, unfitness can be indicated by criminal convictions, criminal associations, habitual recidivism, formal or informal links with OMCGs, failure to implement proper tattooing practices and general disregard for the law. Relevant in this case are Hennessy DP's comments in Saadieh v Director-General, Department of Transport [1999] NSWADT 68, [17]. In the context of a taxi licence, the Tribunal identified factors relevant to fitness and propriety as including: • the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; • the applicant's reputation in the community; and • the likelihood that the applicant will reoffend, be the subject of further complaints or commit further offences.
The respondents' case that Mr Munoz Merino is not a fit and proper person rests on his criminal history, and disregard for the licensing regime.
The background to the criminal proceedings against him in 2015 and 2018 was not in dispute. Mr Munoz Merino was taken in his evidence to the detail in the Statement of Agreed Facts of 28 June 2018, and the Facts Sheet for 4 August 2015, and agreed with what was recorded in those documents. Accordingly, the Tribunal accepts those documents as a record of Mr Munoz Merino's involvement in the 2017 events, and the circumstances that led to his charge in 2014 with possession of the knife.
In relation to the 2015 criminal proceeding, the Tribunal accepts Mr Munoz Merino's evidence, which has remained consistent, as to why he had the knife in his possession in December 2014. He was not charged with any offence relating to his admitted cannabis use. Having regard to the length of time, and the explanation as to why he had the knife in his possession, and given his age at the time, the Tribunal is satisfied that the s 10 bond imposed in 2015 would not preclude a finding that Mr Munoz Merino could now be regarded as a fit and proper person to hold a licence.
Mr Munoz Merino's 2018 conviction and bond are more serious, and more recent. The Court Attendance Notice for the 2018 proceedings (ex R2, Burwood Local Court file tab B) states as details of the offence for which he was charged that between 17 August to 17 September 2017 he "did know that Mario Andres Santibanez Contreras, Cristian Andres Carvajal Alvarado, Ubaldo Enrique Lara Pizarro and Nicolas Josue Lara Silva, were part of a criminal group, and knew, or ought reasonably to have known, that his participation in that group contributed to the occurrence of criminal activity".
There is no suggestion that the applicant was involved in the thefts carried out by the South American organised crime group. However, based on his evidence the Tribunal is satisfied that he had suspicions that the group was involved in criminal activities, and is satisfied that he was aware at least from the time he was asked to try and locate a jeweller that there was a substantial quantity of jewellery involved. Either he was naïve or chose to ignore his suspicions.
The statement by Detective Senior Constable Mahony of the Robbery & Serious Crime Squad, who was the officer in charge of Strike Force Brilliant (ex A1), supports the applicant's evidence that he did the tasks undertaken on behalf of the two other Chilean born permanent residents who were using him for their errands. Detective Senior Constable Mahony confirms that the information Mr Munoz Merino provided to police regarding the circumstances of his involvement in 2017 provided enough evidence to enable police to lay charges against one of the men, and continues: Ezequiel's actions substantiated a criminal offence; however, it could be said that his trust in the Australian-Chilean community was abused by the other two men, who requested that he undertake those tasks. When Ezequiel realised his position, he did everything he could to assist police while investigating the other men.
Mr Munoz Merino pleaded guilty to the charge. The four men he assisted received significant penalties, being terms of imprisonment between 3 years and 4 years 4 months (ex R2, tabs A, B, C, D). The maximum penalty for the offence to which he pleaded guilty was five years imprisonment. While the evidence before the Tribunal does not include sentencing remarks, as the respondents accept, the court must have regarded the offence to which the applicant pleaded guilty as at the lower end of the scale of seriousness.
The bond imposed on the applicant remains in force until 28 September 2019. In Lloyd v Director General, Department of Transport [2001] NSWADT 201, Senior Member Montgomery said: 50 The Courts have set a guide that is available to the Tribunal to assist it in assessing whether the time that has elapsed since the offences is sufficient. That guide is the good behaviour bond. As noted above, the bond remains in force until 10 August 2002. 51 In circumstances where there is no history of repeated offences, the bond may not be a sufficient guide to what is a reasonable time to elapse between the committing of offences and the granting of an authority. This was the case in Rasheed and for that reason Rasheed should not be adopted as an authority in this matter.
The reference by Detective Senior Constable Mahony provides the context behind the charge that led to the 2018 conviction. It is in Mr Munoz Merino's favour that he assisted the police in the Strike Force Brilliant investigation. That assistance was voluntary, albeit prompted by the search on 27 September 2017 of the premises where he was living and where the men had stayed. The Tribunal accepts, as confirmed by Detective Senior Constable Mahony, that Mr Munoz Merino's involvement in assisting the men was at the request of Mr Vasquez Zamora, a person he described in oral evidence as treating him as if he were an older brother. While recognising those factors, the Tribunal acknowledges that the offence was serious, and the events and the conviction relatively recent. Mr Munoz Merino is still subject to a good behaviour bond. That does not of itself preclude a finding that Mr Munoz Merino is now a fit and proper person to hold a licence: it is relevant that the bond was unconditional, and that there is no evidence of any repeated offences; and the bond will end in a matter of weeks.
Mr Munoz Merino's evidence to the Tribunal was open and candid. It is apparent from that evidence, and the Tribunal finds, that Mr Munoz Merino is determined to make a new life for himself and his family. He has an offer of employment from Mr Carter. Mr Carter speaks highly of Mr Munoz Merino's attitude, and willingness to do well and that he has had no affiliation with any criminal organisations. However it is not clear whether Mr Carter is aware of the extent of Mr Munoz Merino's criminal record, and on that basis his reference has to be given less weight. The character references provided in 2018 (ex R2, tabs JK, L, M) from Mr Munoz Merino's sister and two friends speak highly of him, noting the change since he became a father, and that he is focused on working to build a career.
Mr Munoz Merino accepted in his oral evidence that he had engaged in tattooing for payment without holding a licence in 2017, acknowledging that this was a breach of the legislation. There is no evidence to counter Mr Munoz Merino's oral evidence that he stopped charging for tattoos in July 2017, or that other than for the period in May to July 2017 Mr Munoz Merino has worked as a tattooist for payment. Mr Carter confirms that Mr Munoz Merino has been helping in his shop without being able to tattoo. In that context, the Tribunal does not conclude that his conduct demonstrates such a disregard for the tattoo licensing regime that Mr Munoz Merino should not be considered to be a fit and proper person to hold a licence.
One of the respondents' concerns is whether there is sufficient evidence of Mr Munoz Merino's rehabilitation, submitting that there has not been enough time to establish that, and that it is not enough for him to say that he now has a child. The Tribunal accepts Mr Munoz Merino's evidence that things have changed since he had his daughter, and that he wants to demonstrate to his family and himself that he can make better options for himself and his future. In support of that expressed determination to change his life, there is no evidence that he has had no contact with any of the men since their arrests, and no evidence of any further breaches of the law, including while he has been on the bond imposed in June 2018. There is no evidence of links with OMCGs or other criminal groups, and no history of violence. He has been candid in his dealings with the police and the Tribunal.
On the basis of all the evidence the Tribunal is satisfied that the applicant is a fit and proper person to hold a tattooist licence.

The Public Interest

In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, concerning the operation of the security industry licensing scheme, the Appeal Panel said: 25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. The appellant [i.e. the Commissioner for Police] appears to have adopted a similar view in formulating its reasons. Its argument, in effect, is that if its objections fail on character grounds, the matters as to character combined with the nature of the activity proposed to be engaged in are, at least in the case of the Class 1C licence application, sufficient to justify refusal in the public interest.
That approach was adopted in relation to the tattooist licensing regime in Stiles v Commissioner for Fair Trading & Anor [2017] NSWCATAP 44.
In Smith v Commissioner of Police and Commissioner for Fair Trading [2014] NSWCATAD 184 at [42]-[47] Senior Member Montgomery set out the authorities in which the concept of the public interest has been considered. Senior Member Montgomery summarised the relevant principles in Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218: 12. The Tribunal may affirm the decision if it would be contrary to the public interest for the Applicant to be granted the licence. In Smith at paragraphs [42] - [47] I referred to a number of authorities that have considered the concept of the "public interest". It is clear from those authorities that it is designed to give the broader interests of the community priority over private interests. Those authorities indicate that: (a) The 'public interest' is a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. (b) The 'public interest' is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. (c) An applicant's personal interests in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry. (d) The "public interest" allows for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. 13. Public confidence in the scheme and regulatory requirements under the Act is a public interest consideration. In the Second Reading Speech, Mr Roberts stated that the public interest test under the Act "is designed to address the criminal matters currently surrounding the industry, such as ... personal violence". The scheme has as one its objectives the exclusion of persons with criminal tendencies from the tattooing industry, with a view to protecting public safety.
As acknowledged by Senior Member Walker in Birch v Commissioner for Fair Trading and Commissioner of Police [2017] NSWCATAD 166, referring to Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33], legislation such as the TP Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and other orders serve the public interest by establishing a regulatory structure for an industry that not only protects the public from harm, but also helps to preserve public confidence in that industry and its members by signalling that those whose activities or facilities do not meet the required standards will not be permitted to operate in the industry. Senior Member Walker went on to say: 81. That objective must implicitly be one of the purposes of this legislative scheme and is relevant to the interpretation of its provisions. As the tribunal pointed out in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 in the context of taxicab licensing, decision-makers must so far as possible place themselves in the position of a member of the public who might use the applicant's services and ask whether that member of the public, knowing of the applicant's record, would object to the applicant as the driver of the taxi.
A finding that a person is not a fit and proper person to hold the licence in question would normally also mean that it would be contrary to the public interest to allow the person to hold the licence: Stiles at [34]. However, the Tribunal is satisfied that Mr Munoz Merino is a fit and proper person, and the question is therefore whether there are other public interest grounds that would justify refusal.
The main object of the legislation, as evidenced in the parliamentary debates (ex R 1, tabs A, B, C and D) is to rid the tattoo industry of OMCG influence and infiltration by other criminal elements. The Tribunal is satisfied that Mr Munoz Merino has had no association with any OMCG, and that his association with the South American organised crime group in 2017 was in response to the request from a friend that he assist the men. The offence for which Mr Munoz Merino was convicted in 2018 was not related to his work as a tattooist. The Tribunal finds that it was committed in circumstances where he was asked by a person he trusted to assist the other men, and where he was not directly involved in the thefts. There is no evidence that he has had any contact with any of the men since then. Detective Senior Constable Mahony confirms that he assisted the police in providing information. The earlier weapons offence did not involve any violence. While Mr Munoz Merino did carry out tattooing for payment in 2017, there is no evidence that he has done so since July 2017.
It is well settled that an applicant's private interests, in Mr Munoz Merino's case, in securing work as a tattooist, receive no weight in consideration of the public interest or whether a person can be considered a fit and proper person to hold a licence: Austin at [72]-[73]. However, matters affecting an individual can have a wider public interest relevance, as a factor in ongoing rehabilitation: Nguyen at [80]. As was the case in Nguyen, the evidence suggests that enabling Mr Munoz Merino to work as a tattooist would assist that process, as he is not qualified or equipped for any other kind of work.
When all those circumstances are considered in context, the Tribunal is satisfied that to grant Mr Munoz Merino a tattooist licence would be unlikely to undermine public confidence in the tattooist licencing regime, or that a member of the public, knowing of his record, would object to his being their tattooist. On his evidence Mr Munoz Merino ceased carrying out tattoos for payment when he became aware he required a licence to do so; and that does not indicate that he may not comply with the conditions of any tattooist licence.
The Tribunal is not satisfied that there are public interest considerations that should prevent Mr Munoz Merino from obtaining a tattooist licence.

Disqualifications

As noted above, the convictions mean that Mr Munoz Merino is disqualified from holding the licences referred to in [3] above, and that is a basis on which the grant of a tattooist licence may be refused under s 16(5) of the TP Act.
As noted by Senior Member Walker in Ting v Department of Fair Trading [2017] NSWCATAD 304 at [77], the disqualification shows the seriousness with which the past behaviour is viewed. For the reasons above the Tribunal is satisfied that Mr Munoz Merino can be considered to be a fit and proper person to hold a licence, and on that basis, having regard to all the circumstances the disqualification would not be a reason to refuse the licence.

Conclusion

The Tribunal is satisfied that Mr Munoz Merino is a fit and proper person to hold a tattooist licence and that it would not be contrary to the public interest for a licence to be granted to him.

Orders

The orders of the Tribunal are: 1. The decision under review is set aside; 2. The decision is made that the tattooist licence be granted.

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: 04 September 2019

At a glance

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Judgment (17 paragraphs)

Parties

Cases Cited (10)

Cited By (1)