1. On 16 September 2017, Mr Sheikh applied to the Secretary under the WWC Act for a Working with Children Assessment. He had previously held an Assessment Notice but had received a Negative Notice after being charged in 2011 with serious violence offences. The earlier Assessment Notice, Mr Sheikh explained, had been obtained because he needed one if he was sent on placement presumably as part of any course of training.
2. By letter dated 1 November 2017, Mr Sheikh was forwarded an Interim Negative Notice issued on 30 October 2017. The delegate of the Secretary had previously obtained a national criminal history check. This disclosed a criminal history that included two convictions concerning Category B offences under the WWC Act.
3. Mr Sheikh was 27 years of age when, on 27 January 2011, he stabbed a male with whom he had previously had a sexual relationship and threatened to kill this victim's male partner, who was then living with the first victim and had been Mr Sheikh's friend since boyhood.
4. On 26 March 2013, a jury had found Mr Sheikh guilty on one charge of intentionally cause serious injury and a further charge of threat to inflict serious injury.
5. On 12 June 2013, a Judge of the County Court of Victoria sentenced Mr Sheikh to a total effective sentence of 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months.
6. Among the matters taken into account on sentencing was that the offences were deliberate and unprovoked; the stab wounds sustained by the first victim had been life threatening; Mr Sheikh had not accepted responsibility for the offending; there was no expression of remorse; and that at the time he had likely been experiencing intense psychological conflict due in part to his previous experience in his war-torn country of origin (Somalia), adjustment issues in Australia, and more particularly due to sexual-orientation issues when dealing with the relationship between the two victims.
7. Allowing for time already served, Mr Sheikh was released on parole on 8 August 2017. Accordingly, when he applied for a Working with Children Assessment under the WWC Act, whilst 5 years had elapsed since receiving a Negative Notice in 2011, Mr Sheikh was still serving his sentence, albeit on parole, which did not expire until 22 September 2018. The conditions of the parole order included a condition that Mr Sheikh reside at an address in Braybook, Victoria.
8. At hearing, I was satisfied that Mr Sheikh accepted that on 2 November 2017, in response to a telephone enquiry he made to the Working with Children Check Unit, Mr Sheikh had received verbal advice to the effect that: the Interim Negative Notice had been issued; that there was an opportunity to provide a submission on why he should be given an Assessment Notice; that the submission could be accompanied by references and contain whatever information he chose to include; and that he could seek assistance from a lawyer or legal service.
9. I was further satisfied that Mr Sheikh likely received the Interim Negative Notice addressed to his Braybrook address in early November 2017.
10. As it turns out, Mr Sheikh did not respond to the invitation to make a written submission by 5 December 2017. The decision was notified to him by letter dated 6 December 2017 (the Decision). This letter was also addressed to Mr Sheikh's Braybrook address.
11. Among other things, the letter dated 6 December 2017 informed Mr Sheikh that the Secretary had refused his application and had issued him with a Negative Notice which prohibited him from providing child-related services to children.
12. At hearing, I was satisfied that Mr Sheikh received and likely read the letter, the Negative Notice and the reasons for decision at or around the time the Negative Notice was issued. Moreover, I was satisfied that, at the time, Mr Sheikh likely understood that there was a 28 day period within which to apply to review the Decision and further understood that, as had been the case with the Negative Notice received by him in 2011, without review of the Negative Notice issued on 6 December 2017 he was precluded from working with children for a further five years.

The application to extend the time for review of the Negative Notice

1. Under s 26(7) of the WWC Act, an application to VCAT for review of the Decision must be made within 28 days of the date the decision to give a Negative Notice is made.
2. At hearing, Mr Sheikh said he moved from the Braybrook address to his current address in Richmond in about February 2018.
3. On 18 May 2018, Mr Sheikh contacted the Working with Children Check Unit by telephone. I was satisfied that as recorded, Mr Sheikh likely made contact and on this occasion made known that he might appeal the Decision.
4. Nothing further happened until 19 March 2019, when more than 15 months after the making of the Decision, Mr Sheikh made an application to the Tribunal for review. It appears, however, that a copy of the Decision had not, as was required, been attached to this application. The Tribunal's records show that once this omission was remedied the application was formally accepted on 10 April 2019.
5. A Directions Hearing fixed for 23 May 2019 was notified to Mr Sheikh at his email address on 2 May 2019.
6. When Mr Sheikh did not appear on the return date, orders were made requiring Mr Sheikh to notify VCAT by 24 June 2019 whether he still sought to have this application heard and determined. The Deputy President further ordered that Mr Sheikh's application be struck out should he fail to notify the Tribunal within the time specified.
7. By letter dated 27 May 2019, Mr Sheikh informed VCAT that he wished to proceed with his application to review.
8. Following further correspondence with the parties seeking dates on which they would be available to attend for hearing, the application to extend time was refixed for hearing on 11 July 2019.

1. Section 126 does not provide guidance on how the discretion to extend time should be exercised. It is, however, well understood that the purpose of the provision is to enable justice to be done.
2. In this regard, I note that the Federal Court Decision in Hunter Valley Developments Pty Ltd & Others v Minister for Home Affairs and Environment,[1] identified several considerations relevant to the exercise of a Tribunal's discretion that have since been applied by the Tribunal in applications such as this one.[2]
3. The first consideration is whether Mr Sheikh can demonstrate an acceptable explanation for the delay?
4. The application to extend time gave the following reason for the late application:

At the time I received the decision I was going through hardship. I was seeing psychologists for depression and I was (sic) functioning properly. I was also going through significant personal issues and homeless. I did not realise there was a time limit to review the decision.

1. As I understood Mr Sheikh's evidence at hearing, there were several reasons for not seeking a review of the Decision within the 28 day time limit, none of which involved homelessness.
2. To start with, Mr Sheikh indicated that, having commenced parole shortly beforehand, he had applied for an Assessment Notice in his words: "to see what happened," and without expecting that the application would succeed. Mr Sheikh had proceeded, nonetheless, because he does not consider himself a threat to children and he wanted to demonstrate for the Secretary his continuing interest in working with children in the future.
3. Secondly, having been released in the weeks before making his application he had been under great pressure adjusting to life in the community, dealing with ongoing mental health issues and family issues and under pressure to comply with the conditions imposed by reason of the parole order.
4. The letters from Ms Sydenham and Mr Brain essentially confirm a history of ongoing mental health issues involving likely symptoms of depression and post-traumatic stress disorder, the latter likely the result of Mr Sheikh's exposure to significant violence and discrete trauma in Somalia. Their letters emphasise that, whilst Mr Sheikh has made commendable progress and has benefited from counselling to address adjustment, mental health and psychosocial problems and to develop awareness of the consequences of violent offending, the financial strain he is currently under threatens an already strained ability to cope.
5. I have accepted that when he received the Decision, Mr Sheikh was, as claimed, under the pressures described. The likely effect of these pressures appears to have been that Mr Sheikh did not prioritise taking steps either to make submissions about his eligibility to receive an Assessment Notice or to review the Decision before the time limit for applying to review the latter expired in January 2018.
6. However, in May 2018, having by February 2018 relocated to Richmond (he said to live independently for the first time in his life), Mr Sheikh flagged, but did not then act on, a decision to apply to review the Decision. Neither, despite having successfully completed parole in September 2018, did he take any step to investigate and pursue an application for review of the Decision.
7. The evidence establishes a decision by Mr Sheikh not to act rather than any failure on Mr Sheikh's part to comprehend the advice and warnings given in the documentation. This is not to deny the difficulties individuals may face when confronted with the amount and complexity of the documentation that usually accompanies an Interim Negative Notice and a Negative Notice. However, I was satisfied that in this case, Mr Sheikh fully understood that there were time limits.
8. In summary, I was not satisfied that, as such, the explanation given justifies the long delay in applying for a review.
9. The second consideration for the Tribunal is whether it is fair and equitable in the circumstances to extend time?
10. There is nothing arising under this consideration that favours an application that seeks to avoid both the time limit for an application to review to be made and the five-year prohibition for making a further application to the Secretary.
11. Moreover, the Secretary submitted, and I have accepted that, save for frustration of Mr Sheikh's desire to be able to work with children in a voluntary capacity in the future, the evidence had not disclosed any likely prejudice to him in, for example, gaining particular employment.
12. The third consideration is whether Mr Sheikh continued to make the decision-maker aware that he contested the finality of the decision?
13. Mr Sheikh does not benefit from this consideration because, having notified a possible application for review in May 2018, another 9 or 10 months elapsed without any step being taken to make an application.
14. The fourth consideration is whether the Secretary will be prejudiced given the delay?
15. I accept that, as conceded, there will be no prejudice to the Secretary in responding to a review by reason of the delay. The Secretary, nonetheless relied on, and I have accepted, the importance of there being finality in proceedings.
16. The fifth consideration is whether extending time may result in the unsettling of other people or established practices?
17. The Secretary submitted that, where as in this case the delay was significant and the explanation for the delay inadequate, to allow this application to extend time could 'open the floodgates' by creating an expectation that the Tribunal will routinely extend time in similar applications. This submission has been advanced in the past by the Secretary before the Tribunal with some success and, in my view, with good reason.[3]
18. The WWC Act provides some scope for applying for an Assessment Notice before the five year prohibition has expired under a Negative Notice where there has been a relevant change in circumstances.[4] The risk is that a perfunctory approach to the granting of an extension of time would frustrate the clear purpose of section 25 of the WWC Act.
19. The sixth consideration concerns the merits of the substantial application.
20. As was explained to Mr Sheikh at hearing, I have not heard the evidence that may be adduced were his application to review the Decision to proceed at some later date. That said, on the material presented thus far, I have some reservations about Mr Sheikh's ability to satisfy the Tribunal that the Negative Notice should be set aside were the matter to proceed to review.
21. The seventh consideration is of fairness as between the applicant and another person who is otherwise in a like position. There is some overlap between this and the considerations already discussed.
22. This consideration, however, expresses the very reasonable concern that there be consistent decision-making.

1. I have accepted that each of the considerations outlined above apply to this case. However, as my comments have so far shown, the evidence as a whole does not support Mr Sheikh's application to extend time.
2. That said, the findings I have made should not be seen as an attempt to discourage Mr Sheikh from seeking, as he indicated, to better himself and to contribute to the community in the future through volunteer work. His desire to improve himself and use his experiences to help others is commendable. However, the prohibition under the Act is part of a legislative regime designed to protect children, despite any disadvantage Mr Sheikh and others will, or believe they may suffer, by not being free to work as a volunteer with children.

[2] See AED v Secretary to the Department of Justice (Occupational and Business Regulation) [2011] VCAT 2392, FLL v Secretary to the Department of Justice (Occupational and Business Regulation) [2012] VCAT 1876, Merhi v Secretary to the Department of Justice and Regulation (Review and Regulation) [2017] VCAT 785 and Barnard v Secretary to the Department of Justice and Regulation (Review and Regulation) [2017] VCAT 966.

[3] See McGee v Secretary to the Department of Justice [2014] VCAT 1498.