Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force

Consequences of the conduct

1. While most of the facts are undisputed, it is the characterisation of those facts as constituting "tampering" with the student records, or making certain representations to the Respondent, which is objected to by the Applicant.
2. The Respondent submitted that the conduct described above at [350] was intended to give the impression that the original Candidate Workbooks had been assessed and marked with ticks on 2 and 3 June 2021, when in fact, as at 8 June 2021 the original Candidate Workbooks had not been marked with ticks. It was undisputed that Mr Yates marked the photocopies of the candidate workbooks prior to submission to SLED, rather than marking the originals. The consequence of this was that when SLED auditors physically inspected the originals, they did not have the same marks as the photocopies which were submitted.
3. In relation to the importance of contemporaneous and accurate marking of the Candidate Workbooks, the Respondent relied on Ms Burge's evidence, who said: "[a] "tick" on a student's assessment workbook indicates that the criterion or question has a satisfactory response or demonstration provided by the student. This is a fundamental requirement of the SLC, and is necessary in order for the RTO to deem a student as competent. The lack of a tick next to a response indicates that the criteria or question has not been addressed and a determination that a student is competent should not be made."
4. I accept the evidence of Ms Burge, Ms Au, and Mr Vulic in relation to the manner in which audits were conducted and their importance to the regulatory regime.
5. The Applicant submitted that Mr Yates' evidence was that he did not realise he marked the photocopies, rather than the originals of the candidate workbooks. The Applicant admitted that Mr Yates should have completed the observation checklists at the time of the assessment, but had signed the students off as competent for assessments, even though he had not yet ticked them as satisfactory for certain items.
6. The Applicant also admitted that on 16 June 2021 Mr Yates had inserted ticks in assessments for clusters 1 and 2, knowing that an audit was being undertaken at that time by SLED auditors and that the auditors were reviewing the candidate workbooks for clusters 1 and 2, and that he should not have done so. The Applicant submitted that, based on Mr Yates' evidence: "he genuinely believed he should correct his records upon realising they were incomplete, and more significantly, the ticks he inserted in the assessments genuinely reflected the students' actual competencies."
7. On the basis of Mr Malik's evidence, the Applicant submitted that Mr Malik did not review the assessments at the time Mr Yates had marked them, did not check the assessment workbooks himself, or know when they were signed by Mr Yates. The Applicant submitted that it was not reasonably open to the Tribunal to find that Mr Malik knew anything about the marking deficiencies, or that he knew what Mr Yates was doing during the audit, or what Mr Yates intended by that conduct. Mr Malik accepted that Mr Yates' conduct was not appropriate and sought to distance himself from it.
8. However, under cross-examination Mr Malik confirmed that on 8 June 2021 he had told Mr Yates "[m]ake sure it's done and everything is completed properly", and agreed that he witnessed Mr Yates marking the photocopied workbooks during the audit on that day.
9. Based on the evidence, I find that: 1. the copied extracts of Workbooks/Observation Checklists for three students submitted to SLED on 8 and 11 June 2021 were not "true and correct copies of the original documents"; 2. as the Candidate Workbooks had not had the Assessment Criteria marked at the time the assessment was performed, or before being marked as "Satisfactory" overall, none of the eighteen students should have been provided with the overall assessment result of "Satisfactory" for the relevant competencies/modules which they had received from Mr Yates on 2 or 3 June 2021; 3. Mr Yates marked photocopies of the Workbooks/Observation Checklists prior to their submission to SLED on 8 and 11 June 2021, to make it appear that marking had been properly completed prior to signing students off for the relevant competencies/modules on 2 and 3 June 2021, knowing that the documents were to be sent to SLED for compliance review purposes; 4. this occurred with the knowledge of Mr Malik who has confirmed that he witnessed Mr Yates marking the photocopies on 8 June 2021; 5. on 16 June 2021, during the course of SLED's audit, Mr Yates altered the Observation Checklists in the Candidate Workbooks by inserting ticks against Assessment Criteria that had not previously been marked. The effect of these alterations was to make it appear that marking had been properly completed prior to signing students off for the relevant competencies/modules on 2 and 3 June 2021.
10. Whilst Mr Malik said to Mr Yates "[m]ake sure it's done and everything is completed properly" on 8 June 2021, I do not find that this constituted an explicit instruction by Mr Malik to alter student workbooks. I find, however, that this statement could reasonably be interpreted by Mr Yates to complete the marking of student workbooks if he identified any deficiencies, notwithstanding that it was improper to do so for assessments which had been marked as satisfactory overall 5 or 6 days previously, and therefore constituted an implicit instruction from Mr Malik. I also find that Mr Malik had knowledge that Mr Yates did this on 8 June 2021, as he admits to observing it.
11. The Applicant emphasised shortly after the events alleged on 8, 11 and 16 June 2021 in respect of Mr Yates, he ceased to deliver security training for the security licence course and has not done so since 30 July 2021. Presumably, this fact is intended to diminish any responsibility the Applicant has in relation to the inappropriate conduct by Mr Yates.
12. The Respondent submitted that while there was insufficient evidence to conclude that Mr Malik was aware on 16 June 2021 that Mr Yates was marking Clusters 1 and 2 during the course of the audit, under cross-examination Mr Malik would not accept that it was inappropriate for Mr Yates to be marking Clusters 1 and 2 during the audit, saying "It's not written anywhere. The trainer can mark any time". The Respondent submitted that: "Ms Burge's evidence makes clear that Star's tampering with the June 2021 documents cannot be dismissed as trivial or administrative in nature. It involved a subversion and a failure to comply with the fundamental requirement of the SLC. Star's repeatedly casual approach to proper documentation and record keeping, and willingness to mislead or deceive regulators (see also Allegations 1 and 2 above) goes directly to its fitness and propriety."
13. I agree with that submission, and that the Applicant's attitude to this basic regulatory process reflects adversely on Mr Malik's fitness and propriety to hold a Master Security Licence.

Remedial sessions

1. The Respondent alleged that the Applicant, through Mr Rudd, inappropriately conducted remedial sessions for students in August/September 2020, which were attended by Mr A and Mr K: see [341] above. Evidence at the hearing about the remedial sessions was given by Mr A, Mr K, Amna Ilyas, and Sarah. Mr Rudd passed away in June 2022 and his evidence was limited to his interview with SLED on 14 January 2020 (A68) and a Statement provided to SLED dated 14 January 2021 (A72).
2. Mr Rudd's evidence was that in late September 2020 he was asked by Mr Malik to review the student assessment books for SLC003, which had been conducted by a different trainer, Mr Smith, in August 2020. He reviewed the assessments and identified some insufficient responses from students, which had nevertheless been marked as "correct" by Mr Smith, and the student had been deemed competent and received the qualification. Then, students came to the Applicant's premises, met with Mr Rudd, and he went through their assessments with them, getting them to complete the answers to those questions which he thought were insufficient. He said that he did not give them the answers. He said he did this because Mr Malik had asked him to check their answers, and because they had already been deemed competent and received their qualification.
3. Mr Rudd explained in his statement that the new SLED course included an opportunity for second attempts at questions, whereas the old course did not.
4. Mr A and Mr K's evidence was to the effect that Mr Rudd told them what answers to write down in the assessment books. Under cross-examination they each gave evidence that they knew the answers which they had written down in the remedial sessions with Mr Rudd, without him telling them what to write down. I agree with the Respondent's submission, however, that it is irrelevant whether Mr A or Mr K independently knew the information, and "the point is that Mr Rudd told him what to write when he should not have done so".
5. The additions to student workbooks made during the remedial sessions with Mr Rudd were not recorded in the sections of the workbooks designated for a reassessment of any given assessment. In his statement to SLED, Mr Rudd accepted that Mr Smith should have marked some of the students as incorrect and the students should have undertaken a documented reassessment, which was not done.
6. The Respondent submitted, based on Amna Ilyas' evidence, that students were "threatened" that their certificates would be cancelled if they did not attend for the remedial sessions. The Applicant submitted that Amna Ilyas explained this was just a tactic to make sure students came back, "but it's not like we're actually going to [cancel the qualification]", and was done "in a polite tone". However polite the tone, or unlikely the intention of follow-through, it is clear from both Mr Malik and Amna Ilyas' evidence that the prospect of qualification cancellation was used by the Applicant to make students attend for the remedial sessions, and it is also clear from their evidence that the intention was for the students to "fix up their assessments", not just sign their names where signatures were missing. Otherwise, there would be no reason for them to attend, as they had already been marked as competent and received their qualifications. The students could not have known whether the threat was real or otherwise. This was not, as the Applicant submitted, merely an "administrative consequence" being politely explained to the students.
7. The fact that a new course was introduced in July 2020 may excuse some errors in marking, but does not excuse remedial sessions conducted after a student has already been deemed competent and issued a qualification, for the purpose of altering the student assessment records.
8. I agree with the Respondent's submission that the manner in which the "remedial sessions" with Mr Rudd were conducted was entirely improper. Students were threatened to ensure their attendance, were given information and answers by Mr Rudd to the assessment questions, and were encouraged to make changes to student assessments which had already been marked. The remedial sessions made no use of the dedicated re-assessment sections of the student workbooks.
9. The Applicant submitted that it could not reasonably be found that the remedial sessions were conducted with the knowledge or intention that those records would be provided to SLED, because it was not until 24 September 2020 that SLED issued a request for the relevant assessment records. In circumstances where the evidence before the Tribunal is that SLED were regularly and continuously checking the Applicant's compliance and conducting audits, it is highly likely that the assessment records would be reviewed by SLED at some point, and the Applicant went to the efforts it did to "fix" the assessment records with that in mind.
10. Though Mr Malik accepted that student answers to assessments are "either satisfactory or it isn't", he refused to accept that the failure to document the changes to student answers in the Remedial Sessions as reassessments (rather than the original assessment answers) was not appropriate.
11. It is clear that Mr Malik not only had knowledge that the students were providing additional information and answers in their completed assessment workbooks, but that he instructed Mr Rudd to facilitate this. Mr Rudd states this in his statement to SLED and Mr Malik accepted in cross-examination that he had a conversation with Mr Rudd about the remedial sessions, which accorded with the account Mr Rudd had given to SLED. Mr Malik came in and out of the room when Mr Rudd met with the students for the remedial sessions. Mr Malik had knowledge of those sessions, of the nature of the changes made to assessment documents, and of the resulting misleading nature of the documents when submitted to SLED.

Conclusion

1. I have found that the records submitted to SLED during audits of the Applicant between 8 and 16 June 2021 (June 2021 documents) were altered or marked by Mr Yates so as to misrepresent to SLED what and how the students' records had been completed him, and that Mr Malik had knowledge of this in relation to the 8 June 2021 records and implicitly instructed him to do so. I have also found that the remedial sessions were improperly conducted, that Mr Rudd was instructed by Mr Malik to facilitate students changing their records, and that Mr Malik had knowledge of those remedial sessions, of the nature of the changes made to assessment documents, and of the resulting misleading nature of the documents when submitted to SLED.
2. I therefore find that Allegation 4 is proven on the evidence before the Tribunal.

Allegation 5: the Applicant's Nominated Person, Mr Javaid Malik (Mr Malik) engaged in improper and inappropriate conduct towards students enrolled in security courses conducted by the Applicant on at least two occasions

1. Allegation 5 is set out at [19] and [20] above. The Respondent alleged that Mr Malik engaged in improper and inappropriate conduct towards two female students who were enrolled in security training courses, being Ms S and Ms R. Specifically: 1. Mr Malik's conduct consisted of calling female students out of class, and inviting them to meet with him alone after hours for additional training and assistance, without which it was suggested that the students would fail the security course; 2. Mr Malik offered to provide Ms R the answers to a forthcoming assessment if she met him after hours; 3. After Ms S visited the Applicant's office with her lawyer to complain about the harassment, Mr Malik paid her compensation; 4. Mr Malik cancelled the security qualification of Ms R after she had completed the course and been issued with her certificate, ostensibly because her visa conditions did not permit her to enrol in the course.

Ms R

1. Ms R's evidence is limited to a statement she gave SLED on 2 November 2021, which she signed on 4 November 2021. In her Statement, Ms R alleges that Mr Malik attended an SLC at the Applicant's Granville premises between 20 and 30 June 2020. She completed the LLN test before the SLC started, administered by "one of the office ladies who I know as Sarah". She was asked to show her visa, which was a student visa, and was then told she could not do the course. At that point Mr Malik introduced himself to her and told her she could not do the course on a student visa but could do the course on a bridging visa for the 'TR' (Temporary resident) visa. She sought advice from SLED and was told that she could do the course but could not apply for the Security Licence until she had full working rights under the 'TR' visa. Ms R started the course and on the first day, Mr Malik called her out of class and told her in Urdu that he would assist her in the next day's assessment by giving her the answers, but she would have to come to his office at 7pm that night. This made her uncomfortable and embarrassed. She did not accept his offer and passed the assessment the next day, without his assistance.
2. Between 2 November 2021 and 4 November 2021 there were a number of emails between Ms R and SLED to make corrections to the draft Statement before it was signed. Significantly, Ms R stated on 3 November 2021: "I've one concern that I wouldn't like to appear in court in future."
3. Ms R did not provide an affidavit in these proceedings and declined to assist the Respondent when requested. She relocated to Canada and was not made available to give evidence to the Tribunal. The Respondent submitted that her absence had been satisfactorily explained, and so no adverse inference from her absence should be drawn against the Respondent.
4. The Applicant's evidence was that Mr Stoodley had informed Mr Malik that he was having difficulties with students, particularly Ms R, disturbing the class. On that basis, Mr Malik considered it appropriate to speak to Ms R individually and did so, at the reception desk at the Applicant's Granville premises. Mr Malik denied otherwise speaking to Ms R or suggesting to her that she should come to his office at night to receive the answers to a course assessment.
5. The Applicant submitted that an adverse inference should be drawn from Ms R's failure to provide an affidavit or have her evidence tested at the hearing, because the Respondent was able to facilitate Ms S giving evidence from Canada via audiovisual link, and because the Respondent had also failed to obtain evidence from the persons who Ms R referred to in her statement who could support her allegations, being Beenish Sana and David Ord.
6. In Australian Securities and Investments Commission (ASIC) v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165], the plurality wrote that: "Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led."
7. A Jones v Dunkel inference may be drawn "in appropriate circumstances": Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]. As Kirk JA observed in Ling v Pang [2023] NSWCA 112, it "is not a rule that can be applied formulaically" (at [24]) and the "evaluation of whether it is natural to expect the person to have been called by the party is fact specific" (at [32]). I decline to draw any adverse inference from the Respondent's failure to obtain Ms R's further co-operation to attend the Tribunal to give evidence, or from the Respondent's failure to call Ms Sana or Mr Ord to give evidence. It is entirely unclear what exactly that inference would be, other than "their evidence would not assist the Commissioner's case". If the Tribunal is not provided with sufficient evidence in support of the Respondent's allegations, the result is that the facts alleged may not be found, not that a nebulous "adverse inference" is drawn to undetermined effect. It is a matter for the Respondent to make out the allegations levelled at Mr Malik in relation to Allegation 5.
8. However, based on the inability of the Applicant to cross-examine Ms R, I give her Statement to SLED limited weight.
9. I accept the Respondent's submission that full working rights are not a legal prerequisite to participating in training; they are only a legal prerequisite to obtaining a security licence under the SI Act. I also accept the submission that there was no prohibition on the Applicant enrolling students on bridging visas, despite its inability to enrol students who were on international student visas. Those submissions were not disputed by the Applicant.
10. On Mr Malik's own evidence, he cancelled Ms R's SLC Certificate without a proper basis to do so. After initially permitting her to enrol in the SLC with a bridging visa, recording that she had a bridging visa, instructing the Applicant's office manager after she completed the course to check her visa status, and obtaining confirmation that she had a bridging visa prior to starting her course, Mr Malik cancelled the certificate on the basis that "she did not have full working rights when she attended the course", which was not a requirement.
11. Mr Malik's evidence was that it was his understanding that the Applicant would be in breach of the Australian Skills Quality Authority (ASQA) guidelines and the law if it allowed international students to enrol in its courses. Under cross-examination Mr Malik was unwilling or unable to accept that there was no statutory requirement for him to cancel Ms R's certificate due to her visa status. It may be that Mr Malik was mistaken about those requirements, or, as the Applicant submitted, overly cautious so as to implement an informal policy whereby students without full working rights were not allowed to enrol in the SLC. Mr Stoodley also gave evidence that it was the Applicant's policy that a student could not participate in the SLC unless they had full working rights.
12. The Respondent submitted that the Tribunal should find that Mr Malik cancelled Ms R's certificate "in retribution for her having told others about his advances, and her rejection of them". The only evidence linking Mr Malik's cancellation of Ms R's certificate with her allegation that he had acted improperly towards her was Sarah Ilyas' evidence that, when she spoke with him about Ms R, and told him to leave her alone, he said "I'll show her what I can do". I give Sarah Ilyas' evidence limited weight in the absence of any corroborative evidence. Even without limiting the weight of that statement, however, Sarah Ilyas' evidence is not sufficient to demonstrate that Mr Malik's specific actions in cancelling Ms R's certificate were the consequence to which he was referring. There is insufficient evidence before the Tribunal for me to find that his action in cancelling Ms R's certificate were retributive.
13. I am not satisfied on the evidence before the Tribunal that Mr Malik acted improperly towards Ms R. I am not satisfied on the evidence before me that Mr Malik invited Ms R to his office after hours, or that his cancellation of her course certificate was retributive.

Ms S

1. The Respondent alleged that Mr Malik engaged in improper and inappropriate conduct towards Ms S by calling her out of class one day during a Security Operations course in February 2021; telling her that she was under performing and at risk of not being granted a licence; and inviting her to meet him after hours for further training while standing "very close" to her, and that Ms S found this interaction distressing and uncomfortable.
2. Ms S's written evidence consisted of her statement to SLED dated 3 November 2021 and an affidavit dated 12 April 2023 (R11). She was summonsed to give evidence at the hearing and appeared via AVL from Canada, and was cross-examined.
3. Cross-examination of Ms S demonstrated that there were inconsistencies and errors in her SLED witness statement which had been included by SLED when they were drafting the statement, the content of which she could not recall or had no knowledge of, and which she acknowledged had not been corrected by her. She said that she "didn't read it word-by-word but I signed on the date when I told them about the story… I was just reading it fast, quick, quick, not word-by-word". She signed it "on the spot", "They didn't explain it to me". When asked to clarify whether anyone explained to her, at the time she signed her statement, what the purpose of it was, she again said "they didn't explain it to me". Ms S agreed that, prior to signing her witness statement, she did not take time to ensure it was reliable. "I didn't read it word-by-word and it wasn't like one page, it was too much." She agreed that she was "in a rush" and said, "I don't have time for all these things."
4. Ms S was living in a women's refuge at the time she provided SLED with the 2021 statement. By the time Ms S was asked by the Respondent in 2023 to provide an affidavit in these proceedings, she had forgotten that she had provided a witness statement in 2021, which she then re-read to refresh her memory. The affidavit was taken via AVL and she said "they brought me the papers in my home and even then that time I was in rush. I read it through quickly and then I signed it to them." In the circumstances I prefer Ms S's oral evidence at hearing where it contradicts or is inconsistent with her written evidence.
5. In oral evidence at the hearing, under cross-examination, Ms S: 1. was very clear that Mr Malik's conversation with her occurred on the date of her second exam, shortly before the exam occurred; 2. recalled the conversation as Mr Malik telling her words to the effect of "I've got a complaint about you, you're not doing good and because you wear a scarf and the SLED won't like if you don't do the tactics and you know there are a lot of racist people and you should be careful, you should be practising more" and "come to Liverpool office after hours, to do the tactics practice"; 3. was shocked by the conversation because she believed she was actually doing well at the course and had been assisting other students. She was very upset and told "everyone" who was there about the conversation, and was so disturbed that she couldn't pay attention to her exam; 4. when challenged on her account of Mr Malik's words, denied that it was possible she was misremembering, saying "he have, I am very sure about that. He have. I don't get angry for no reason. He had"; 5. confirmed that Mr Malik said words to the effect of "you have my number. You can contact me after hours and come to my office and I will give you the personal training to learn tactics - to teach you the tactics" and affirmed that Mr Malik's offer was clearly for an "after hours" meeting.
6. When questioned in cross-examination about her performance and conduct in the course, Ms S admitted that Mr Stoodley had given her feedback to "be more assertive" but was not willing to admit this was a criticism, and claimed that this feedback was common to other students as well. She appeared defensive regarding any feedback being considered as criticism of her course performance.
7. Mr Stoodley gave evidence that after Ms S returned to the classroom following her discussion with Mr Malik, he may have had a discussion with her in which he provided her encouragement and attempted to convey to her that he had the ultimate say on whether students passed the course, and not Mr Malik. This evidence corroborates Ms S's to the extent that she expressed that Mr Malik had threatened her or implied a threat that he had the ability to fail her.
8. On 8 February 2021, Ms S undertook a written exam for the course which she failed. With respect to Ms S's performance in the course generally, Mr Stoodley formed the view that "at the beginning … she was doing okay and then she got a little bit complacent". On her evidence, the conversation with Mr Malik had taken place just before the exam and had impacted her ability to concentrate. She admitted under cross-examination that she may have failed the exam even if the conversation with Mr Malik hadn't affected her, stating "I'm not saying I would have passed the exam if this thing [the conversation with Javaid] didn't happened".
9. Mr Malik's evidence of the conversation with Ms S was that Mr Stoodley had informed him that some of the female Muslim students in the class were "having difficulties with being shy and participating in the practical role play", so he agreed to speak with them, one of which was Ms S. He had conversations with Ms S and some other students individually. He advised Ms S that she will need to meet the training requirements, including completing the practical role plays, in order to pass the course. Mr Malik's evidence is that he did not stand closely to Ms S but rather stood around two to three metres apart from her during the conversation. Mr Malik denied inviting Ms S to meet him after hours. Mr Malik stated that Ms S failed the assessment the week following their conversation, not the same day. Under cross-examination he accepted that he called three female students out of the class individually, but no male students.
10. The Respondent submitted that Amna Ilyas' affidavit included corroborative evidence of Ms S's account. Amna Ilyas stated that a student named Lena reported to her that Ms S was upset, because Mr Malik told her she needed to see him after class for self-defence techniques. Sarah Ilyas also gave evidence that Amna Ilyas had told her about this. Neither Amna Ilyas nor Sarah Ilyas were challenged on that evidence in cross-examination. However, in circumstances where the evidence is third hand hearsay (at best), I do not give it any weight.
11. Having considered the two competing accounts of the conversation which occurred between Mr Malik and Ms S, I prefer Ms S's account. Despite some inconsistencies in her evidence and her admissions regarding the lack of care taken to review her statement and affidavit, I agree with the Respondent's submission that Ms S was clear, at hearing, on the key elements of her conversation with Mr Malik: that he invited her to meet him after hours, it was implied that she wouldn't get a licence because she wore a headscarf, and that Mr Malik was standing close to her when he said all of this, so that she felt uncomfortable.
12. Ms S and Mr Malik's evidence of what occurred between them following this conversation also differed. Ms S's evidence was that she later met with Mr Malik in the presence of a friend and lawyer, Mr Salam, and accused Mr Malik of harassment. Although in his affidavit Mr Malik denied that Ms S had accused him of inappropriately seeking to meet privately after hours, under cross-examination he accepted that this had occurred. According to the Respondent, Ms S sought a full refund for the course so that she could do it elsewhere, and Mr Malik counter-offered her $400 in compensation for the harassment, said she could do the next course at Star, and swore on the Quran. According to the Applicant, Ms S had wanted to complete the course (after failing an examination) without having to pay the $250 reassessment fee, and there was no mention of a $400 payment in Mr Malik's initial affidavit. In his second affidavit, Mr Malik accepted the objective evidence that $400 had been paid to Mr Salam but explained that amount was intended as a "refund" for the re-enrolment fee, despite knowing (or at the least, not checking) that Ms S had not paid a re-enrolment fee.
13. The Applicant submitted that it was not unreasonable for Mr Malik to have proceeded on the assumed understanding that Ms S had paid a re-enrolment fee for the course she had failed, and "not felt the need to undertake any further checks at that time" before paying her the $400 as a "refund". On the evidence before me, I prefer the Respondent's submitted account as far more likely to have occurred than the Applicant's, for two reasons: first, the amount of $400 was paid to Mr Salam for Ms S, not paid to Ms S directly, which I would have expected to occur if the amount was actually a refund; and second, I consider it unlikely that Mr Malik would issue refunds for courses without first checking that the fee being refunded had actually been paid.
14. Additionally, the fact that Ms S involved Mr Salam as a third party to assist her in communicating with Mr Malik, and negotiating and arranging for compensation to be paid and her reassessment fee waived supports Ms S's version of events. I accept Ms S's evidence as set out at [403] above. I also accept Ms S's evidence that she did not complain of the harassment to the police because "[Mr] Malik had given her compensation, had sworn on the Quran and she had forgiven him".

Shane Smith

1. The Respondent submitted that there was evidence before the Tribunal of "troubling conduct towards students by trainer Shane Smith". Much of that evidence was provided by Ms H, a student enrolled in a class which was taught by Mr Smith on 24 May 2021. Ms H complained to Mr Malik about Mr Smith's conduct, and under cross-examination she agreed that Mr Malik resolved her concerns to her satisfaction.
2. Allegation 5 specified that the conduct in question was that of Mr Malik, as the Applicant's Nominated Person. The Respondent has not explained in oral or written submissions how Mr Smith's conduct is relevant to Allegation 5. As submitted by the Applicant, Mr Smith was licensed by the Respondent, and if there was an issue with his conduct impacting on his suitability to hold the license, that should be raised with him by the Respondent directly. As submitted by the Applicant, Mr Smith would remain licensed to conduct training in the same manner under the SI Act, irrespective of which organisation employed him.
3. There is insufficient evidence before the Tribunal to support a finding that Mr Smith's improper conduct is attributable to the Applicant or its Nominated Person, in the particular circumstances of this Allegation. I therefore make no finding in relation to Mr Smith's conduct in the context of Allegation 5.

Conclusion

1. The evidence before the Tribunal supports a finding that Mr Malik engaged in inappropriate conduct towards Ms S, as outlined above. There is insufficient evidence, however, for me to find that Mr Malik engaged in the same or similar conduct towards other female students. As discussed above, I am not satisfied on the evidence before the Tribunal that Mr Malik acted improperly towards Ms R. I am not satisfied on the evidence before me that Mr Malik invited Ms R to his office after hours, or that his cancellation of her course certificate was retributive.
2. I therefore find that Allegation 5 is partially proven on the evidence before the Tribunal.

Allegation 6: the Applicant engaged in improper conduct towards former employees

1. Allegation 6 is set out at [21] and [22] above. The Respondent alleged that the Applicant and Mr Malik engaged in improper conduct towards former employees, being Sarah Ilyas and Amna Ilyas. Specifically, that Mr Malik: 1. pursued Sarah Ilyas in 2021 for a debt of approximately $8,000 which Mr Malik lent her in 2017, and which she claims to have paid back shortly after it was given; 2. accused Sarah Ilyas of using the Applicant's systems to fraudulently issue vocational qualifications to herself; 3. contacted Sarah Ilyas' new employer to state that she had been guilty of misconduct during her time at the Applicant; 4. repeatedly calling Sarah Ilyas, sending her threatening text messages, repeatedly checking her social media profiles and left threatening messages with her mother in Pakistan; 5. made allegations concerning Ms Amna Ilyas' employment at the Applicant to the Department of Immigration, and Investment NSW, which impacted her "life and permanency residency status".
2. As outlined above at [21] and [22], the Respondent alleged that the improper conduct towards Amna and Sarah Ilyas was retribution for their cooperation with SLED.
3. The Applicant submitted that Mr Malik's accusations towards, and about, Amna and Sarah Ilyas were not false, that he had reasonable grounds for making them, and did not make them as a response to their cooperation with SLED; and that he had not sent threatening messages to Sarah Ilyas or her mother.
4. The Respondent acknowledged in written submissions that the Tribunal's consideration of Allegation 6 would be impacted by the "unsatisfactory aspects" of Sarah Ilyas' evidence to the Tribunal. The Respondent submitted that there was nevertheless sufficient evidence to support the allegations of retribution against Sarah and Amna Ilyas by Mr Malik and the Applicant.
5. Sarah Ilyas worked for the Applicant between August 2017 and February 2021. The circumstances by which her employment with the Applicant ended were disputed. She claimed to have left that employment because she was "sick of trying to cover up all the problems". The Applicant alleged that she was terminated after an altercation with a student. Amna Ilyas worked for the Applicant between July 2019 and her resignation in March 2021.
6. I accept the Respondent's submission that the relationship between Mr Malik and Sarah and Amna Ilyas went beyond the usual relationship between employer and employees. The evidence demonstrated a familial relationship which was grounded in shared culture and ethnicity, which originated many years before either Sarah or Amna Ilyas arrived in Australia, and which continued for years after: 1. in 2017, Mr Malik met Sarah Ilyas' mother when she was visiting from Pakistan, and took her out for dinner a few times with both Sarah Ilyas and Amna Ilyas; 2. Mr Malik described his relationship with Amna and Sarah Ilyas as: "…four years I have become their father, I have provided them all whatever requirement they ask for me." 1. Amna Ilyas worked at the 7-Eleven owned by Mr Malik's son, Wasim Malik, for "a couple of years" from 2017 until 2019; 2. in December 2018, Mr Malik provided a statement in support of Sarah Ilyas' visa application (AR16, pp 276-283). In that statement, he described himself as a "family friend" of Sarah Ilyas for 15 years, who was introduced to Sarah Ilyas by her mother. He stated that Sarah Ilyas and her partner "often come to our place for our festivals and events" (AR16, p 278), and that he had known Sarah Ilyas' partner for 5 years. 3. Mr Malik's son, Fahim Malik, agreed that he had seen Sarah Ilyas at his father's house, including for Ramadan; 4. Wasim Malik provided a reference for Sarah Ilyas' visa application (AR16, p 150), stating that he had known her for over 15 years, having met in Pakistan. At hearing he clarified they had met as teenagers in Pakistan and were "always in contact" after he moved to Australia. They were "very close friends, but become more closer when she came here [Australia]". 5. Wasim Malik said that Sarah Ilyas would sometimes celebrate festivals and events with the Malik family; 6. Wasim Malik allowed Sarah Ilyas to live at the Quest he managed for three months in 2020, when she was going through a hard time; 7. Mr Malik's nephew Asif Aslam also provided a reference for Sarah Ilyas' visa application in September 2017, stating that he saw her and her then-partner often; 8. Mr Malik received voice messages on WhatsApp from Sarah Ilyas' mother in 2021, and accepted under cross-examination that they had each other's phone numbers.

Visa assistance

1. Both Sarah and Amna Ilyas had assistance from Mr Malik in relation to their visa applications.

Sarah's visa

1. Sarah Ilyas applied for a partner visa via her lawyer, Mr Li, on 14 September 2017. Her partner was named as Mansoor Ali. On 15 September 2017, Sarah Ilyas was granted a bridging visa allowing her to remain in Australia during the processing of her application for a partner visa. Despite it being a condition of her bridging visa that she in engage in "no work", Sarah Ilyas started working for the Applicant in August 2017.
2. Mr Malik provided a statutory declaration in support of Sarah Ilyas' partner visa on 18 December 2018, where he stated that he had known Sarah Ilyas for 15 years and Mansoor Ali for 5 years: "I am family friend of "UROOJ ILYAS" from last 15 years. She was introduced by her mother. I first met Mansoor on a family dinner in 2017. She and him often come to our place for our festivals, and events. UROOJ shared with her mother and she shared with me regarding her relationship with Mansoor Ali. She told me herself as well about her relationship and about their future plans as well. I can clearly see they care for each other and they are constant in contact. Urooj and Mansoor always turn up together on our premises on any family occasion. They recently visited us for Iftar on Ramadan and then on Eid as well. Urooj wasn't feeling well 3 months back he was always there for her and looked after her."
3. When Sarah Ilyas submitted Mr Malik's statutory declaration to the Department, she said: "Please see attached completed Form 888 by my family member Javaid Malik." In the same document, Sarah Ilyas said: "I am going to seek employment in Australia when my visa is granted." Sarah Ilyas' partner visa application was refused on 12 February 2019. She applied to the AAT for review on 20 February 2019, and was granted a Bridging C visa on 11 October 2019, which had no work conditions.
4. Sarah Ilyas' relationship with Mansoor Ali had broken down by October 2020, by which time she had already begun a relationship with Muhammad Hasan. Sarah Ilyas married Muhammad Hasan on 13 March 2021 and had a child with him in October 2021. Sarah Ilyas did not inform the AAT that her relationship with Mansoor Ali, upon whom her partner visa application relied, had broken down, until November 2022. She also did not inform Mr Malik that this relationship with Mansoor Ali had broken down.
5. As discussed below, Mr Malik discovered in May 2021 that Sarah Ilyas had married a different man. Following this discovery, Mr Malik and Sarah Ilyas had the following text exchange on 19 May 2021: "Mr Malik: Congratulations, I found out all your secrets, woe what a liar, cheater whole family, but all good wait for a surprise responses from me, you will see now a different person. Sarah: Be in your limits dont drag my family I respect u but it doesn't mean I stand this behaviour Mr Malik: I see all respect. I will show you my limits now. Just wait with patient. Sarah: Good luck Mr Malik: [screenshot of bank statement with credit card charges of 14 September to 'LMP Immigration Sydney Au' for $1100 and 'Dept. of Immigration Southport Au' for $7068.60 highlighted] You need to pay by this Friday before it's goes to immigration and solicitors, I have just talk to city bank, if I don't get paid by Friday they said they contact with immigration and ask for refund and take further action. Mr Malik: Total amount $8168.60. Star Training Academy. BSB: [redacted] A/c: [redacted] Sarah: Go ahead with further action, as I will take as well. Mr Malik: Great. Mr Malik: An other good news I am going to contact immigration to be part of your case because I have filled 888 forms and I would like to withdraw as well. Mr Malik: Citibank will take care of the payment from now on. Sarah: Hahaha! Go ahead [laughing crying emoji] Case is already refused I don't care Sarah: Do whatever you can!! Good luck Mr Malik: Keep watching Sarah: Hahaha! I am so scared of these threatening messages! Mr Malik: Please don't need to scare.now leave it up to me 9no message from my side anymore, I make sure I do it Sarah: Yes lets see what u can do! Its not Pakistan to threaten someone Mr Malik: Thank you just receive a call from Citibank that fill the form and we recover money from immigration thank you from now on no messages please, I don't talk I will show the result. Enjoy and good luck"
6. The Respondent submitted these messages were threatening and intended to intimidate or distress Sarah Ilyas. I do not accept that Mr Malik's text messages were threatening, in that they were intended to intimidate or distress Sarah Ilyas, or cause her bodily harm. Although Sarah Ilyas identified them as threatening, her responses demonstrated that she was not intimidated or distressed by the messages and, to the contrary, was goading Mr Malik to "do whatever you can!!! Good luck". In the circumstances of their close familial relationship, Mr Malik informing Sarah Ilyas by text of the consequences of her newly-discovered actions do not, in my view, constitute threatening behaviour.

Amna's visa

1. Amna Ilyas arrived in Australia from Pakistan in 2017 and applied for a skilled migration visa (Skilled - Nominated (subclass 190)) on 24 June 2021, on the basis that she was qualified to work and had employment with the Applicant as a "Network Engineer".
2. The documentary evidence supporting Amna Ilyas working for the Applicant as a network engineer included: 1. In 2020 Amna Ilyas completed a work placement with the Applicant through "ECA Internships". Mr Malik approved that placement and agreed to her telling ECA Internships that she had worked during that work placement as a 'network engineer'. 2. Prior to commencing employment with the Applicant, Amna Ilyas received a "letter of offer" signed by Mr Malik offering her employment as a "junior computer network and system engineer". The letter stated the offer was "subject to [Amna Ilyas] providing evidence of having gained the qualification" and identified that the offer would lapse if that requirement was not satisfied. 3. Amna Ilyas' pay slips from the Applicant consistently described her position as "Network Engineer" (R41); 4. On 7 October 2020, Mr Malik signed a letter certifying that Amna Ilyas had been employed by the Applicant as a Network Engineer since 1 July 2019, and set out various roles and responsibilities she fulfilled (R42). Under cross-examination Mr Malik accepted that he signed this document and said he was "very happy to represent" in that document that Amna Ilyas had "worked as a network engineer"; 5. On 17 April 2021, Mr Malik signed another letter confirming that Amna Ilyas had been employed by the Applicant as a Network Engineer since 1 July 2019, and set out various roles and responsibilities she fulfilled (AR16, p 999). Under cross-examination Mr Malik denied signing this document, and suggested that the Applicant's administrative staff did so using his electronic signature, without his approval.
3. The Applicant disputed that Amna Ilyas worked as a network engineer, and submitted that the documents which supported this claim had been created by Mr Malik to support her obtaining a qualification. Specifically, Mr Malik's understanding was that Amna Ilyas needed to "complete the work placement to get the IT degree from the college", and he assisted her in doing this.
4. There was evidence before the Tribunal that despite the documents referred to at [432] above, Amna Ilyas did not, in fact, work for the Applicant as a network engineer: 1. In Amna Ilyas' recorded interview with SLED in February 2021, when asked about her job title and job description, Amna Ilyas did not say that she was a network engineer, and she did not identify any duties associated with being a network engineer. This was despite their warning to her that it was an offence to mislead them. Under cross-examination she agreed that she said nothing about being employed as a network engineer to SLED; 2. On 1 June 2021 Amna Ilyas sent an email to Mr Malik requesting that he sign a statutory declaration regarding her work tenure and job roles with the Applicant, which identified her role as "Network Engineer", for the purpose of her visa application. Mr Malik responded on 2 June 2021 advising her that he could not sign the statutory declaration, because she did not work for him as a network engineer; 3. There was no reference to Amna Ilyas working as a network engineer with the Applicant in either her witness statement of November 2021 or her affidavit of April 2023; 4. Amna Ilyas' evidence that she worked as a network engineer was led for the first time in her oral evidence in chief at the hearing, where she said she performed a handful of additional tech-related duties to her administrative assistant duties; 5. Amna Ilyas made submissions to the Department (s 57 Response) which stated: "The Applicant does not dispute that incorrect information has been supplied with her EOI on her visa application by noting that she was employed at [STAR] in the capacity of a 'network engineer'. Rather, the Applicant wishes to correct the record to confirm that her employment with [STAR] was in the role of Administration Assistant."
5. On 1 June 2021 Amna emailed Mr Malik as follows: "Salam, Could you please sign the attached declaration highlighting my work tenure and job roles at Star Training Academy. The job roles are exactly the same as the previous document, but a JP attested declaration has to be submitted as part of documentation. I will request John for JP attestation only once it is signed by you. I cannot thank you enough for all the help you have done for me. I will always be grateful. Regards, Amna"
6. In Mr Malik's reply email to Amna Ilyas of 2 June 2021 he stated: "I have provided you reference pay slips, and only for your future could provide reference if someone called but unfortunately can't sign declaration form. please see below the consequences of signing the declaration. Note 1 A person who intentionally makes a false statement in a statutory declaration is guilty of an offence, the punishment for which is imprisonment for a term of 4 years - see section 11 of the Statutory Declarations Act 1959 Note 2 Chapter 2 of the Criminal Code applies to all offences against the Statutory Declarations Act 1959 - see section 5A of the Statutory Declarations Act 1959 Kind Regards Javaid Malik"
7. The Applicant submitted that while Mr Malik was willing to provide false statements in documents to be used by Amna Ilyas for the purpose of obtaining her qualification, he was unwilling to maintain those false statements when her visa application was in issue, and when doing so could amount to a criminal offence with serious penalties. On balance, I find that explanation likely, especially considering his email of 2 June 2021 which specifically identified that he held that concern. I find the documents at [432] above to be inaccurate and do not accept their contents as the truth of those matters.
8. I find that Amna Ilyas did not work for the Applicant as a network engineer, despite the documents identified above which stated or implied she did. I find that she worked as an administrative assistant and receptionist and occasionally performed a handful of tech-related duties in addition to her administrative assistant duties.

Sarah Ilyas: The $8168 debt

1. It was undisputed that on the evening of 14 September 2017 after about 9pm, Sarah Ilyas gave Mr Malik's credit card details to her immigration solicitor for the purpose of charging the card with payment of her visa application fee ($7,068) and her legal fees ($1,100). Her solicitor at that time was Mr Jia (Jack) Li, the principal of LMP Immigration.
2. The factual circumstances of how this came about, whether the debt was repaid, and how the debt was said to be repaid, were disputed. The Respondent submitted that Mr Malik authorised the transactions on his credit card and that Sarah Ilyas paid him back, in cash, shortly after.
3. Sarah Ilyas claimed that on 14 September 2017 Mr Li requested payment of $8000 be made in cash, at his office, that evening. On Sarah Ilyas' account, she called Mr Malik, who encouraged her to use his credit card, because he considered her alternative plan of travelling into the city at night carrying that amount in cash to be too unsafe. She gave Mr Malik's credit card details to Mr Li who attempted to put the transaction through, but the transaction was declined. An authorisation code from Citibank was provided by Fahim Malik, and a second attempt at the transaction was successful.
4. Under cross-examination Sarah Ilyas expanded significantly on the evidence provided in her affidavit, referring to additional conversations with both Mr Li and Mr Malik that evening, which she hadn't previously deposed to in writing. As submitted by the Applicant, when asked what she planned to do with Mr Li's request for cash payment: "…she said: "I thought to catch the train and just go to his office and pay to him." She said she had "cash at home", specifically, "$8,000 in my bag at home". The amount of cash she had at home was "8,000, whatever was the requirement, or 9,000". When asked where she kept that cash at home, she said: "In my handbag." She said she carried her handbag "most of the time". When asked whether she always carried all of that cash with her, she then said "[n]ot $8,000", "[w]hatever was the requirement, like maybe 50, $100, just to be safe". The location in which she kept the rest of the cash then became "side tables, in the drawer". Her plan was "to just empty the drawer of cash into [her] handbag and go to [Mr Li's] office and pay the fee"."
5. Mr Malik denied having any conversation, of any kind, with Sarah Ilyas about the payment for her immigration lawyer or using his credit card for that purpose. He had given her permission to use the credit card for business purposes shortly after she started working at Star in August 2017, and claimed she abused this access by making the large, unauthorised transaction to Mr Li.
6. Fahim Malik, one of Mr Malik's sons, provided an affidavit (A14) addressing Sarah Ilyas' claims that he was involved in this transaction by providing her with an authorisation code.
7. A tax invoice issued by the Department of Immigration and Border Protection on 14 September 2017 (R35) confirms the use of Mr Malik's credit card to pay the visa expenses of the amount alleged. It also records "Auth code 596179". The Respondent submitted: "The natural interpretation of those words is that this is the authorisation code that was issued when that transaction was attempted, and which was successfully supplied in order to complete the transaction. Star has provided no evidence from Citibank, Mr Malik's bank, to contradict that interpretation. Mr Malik's own bankers cannot be said to be within the "camp" of the Commissioner."
8. It is the Respondent which is relying on the evidence of "auth code 596179" on a Department invoice to mean something in particular, to support Sarah Ilyas' account of the transaction requiring an authorisation code, which was allegedly then supplied by Fahim Malik. It would be up to the Respondent to provide the evidence from the Department as to what "auth code 596179" on this invoice meant. It is not up to the Applicant to contradict a factual assertion which has not been supported by objective evidence. I therefore do not accept the Respondent's submission.
9. Sarah Ilyas made a number of statements about electronic transactions and her conduct on the evening of 14 September 2017. She claimed because "I was new in the country, I wasn't sure that I can use someone else's credit card for my things". I find that statement implausible considering she had already been in Australia for more than 6 months by that time, and irrelevant considering she did, in fact, "use someone else's credit card for my things". She claimed to have told Mr Malik that she "didn't know how to do an electronic transfer" from her bank account, and denied having seen an electronic money transfer before 14 September 2017, but agreed under cross-examination that she had previously worked jobs at Smart Money Transfer in Lakemba in July 2017 and Travel Mate Money Exchange in Sydney in February 2017. I find her statements implausible in the circumstances.
10. Under cross-examination she accepted that electronic transfers are "quite simple" but said she didn't try to work out how to do an electronic transfer "[b]ecause I was behind the schedule, as I said already. So there was no time for tried and errors again and again." This contradicts her evidence that she was otherwise going "to just empty the drawer of cash into [her] handbag and go to [Mr Li's] office and pay the fee" and "I thought to catch the train and just go to his office", which would have taken significantly longer than an electronic transfer, even with trial and error. It is also implausible in circumstances where she instead used Mr Malik's credit card - which, on her evidence, she was not sure she was able to use - and contradicts her evidence that she made multiple telephone calls to Mr Malik and her solicitor, that there was a declined transaction attempt, and an authorisation code ostensibly being sent by a fourth party to her solicitor.
11. In response to the Applicant's submissions about Sarah Ilyas' evidence, the Respondent submitted: "Star's submissions are again insensitive to the difficulties a person, newly arrived in Australia, might face in working out how to set up and access internet banking in a short space of time. "
12. I disagree. First, the submissions are not insensitive to "a person, newly arrived in Australia". The Applicant is entitled to test Sarah Ilyas' evidence. She was not giving evidence on behalf of "a person, newly arrived in Australia", but about herself, in particular. Second, the evidence before the Tribunal about Sarah Ilyas was that she arrived in Australia some months previously. There is no reason why, even if she had not previously had any exposure to internet banking or had not previously (prior to her arrival) known how to set up and access internet banking, she could or would not have done this in the months following her arrival. She had also already had a number of jobs requiring knowledge of financial transactions. Third, it relies on an underlying assumption that all people from Pakistan, the country from which Sarah Ilyas had come, did not have regular exposure to, or use of, internet banking. There was no evidence provided by the Respondent to support that assumption, or to demonstrate its applicability to Sarah Ilyas' circumstances.
13. Under cross-examination Sarah Ilyas agreed that she had no contact with Fahim Malik at all during the transaction, that she was still on the telephone with Mr Li at the time the transaction went through, and that "technically" she was only assuming that there was an authorisation code sent to Fahim Malik, and which he approved.
14. Under cross-examination, Fahim Malik appeared genuinely unaware that Sarah Ilyas had involved him in her evidence about the payments made to her via the Applicant's Citibank account, and he denied having received or given her any codes to facilitate that transaction. I accept his evidence.
15. There was no evidence from Mr Li before the Tribunal. His evidence could have corroborated Sarah Ilyas' evidence on: 1. Whether he was expecting her to pay him in cash on 14 September 2017, and when he asked her to do this; 2. Whether she told him after 9pm on 14 September 2017 that she would bring about $8,000 in cash to his CBD office that night; 3. Whether she made the various phone calls to him in the manners she alleged in her written and oral evidence; 4. Whether an authorisation code had been required, and whether this was provided by Fahim Malik.
16. The Applicant submitted that the Tribunal should infer from the Respondent's failure to provide evidence from Mr Li that his evidence on these matters would not have assisted the Respondent's case, and that the following inferences were therefore available: 1. Sarah Ilyas lied about telling Mr Li that she was able and willing to bring about $8,000 in cash to Mr Li's office after 9pm on 14 September 2017 and about telling him that she would in fact do so prior to receiving the telephone call from Mr Malik; and 2. Sarah Ilyas lied about the multiple telephone calls and conversations she says she had with Mr Li on the evening about the use of Mr Malik's credit card to pay for her visa application fee and legal fees.
17. Considering parts of Sarah Ilyas' evidence in relation to the events of the evening of 14 September 2017 were implausible and she gave conflicting accounts to the Tribunal, I agree with the Applicant that it is appropriate to draw the inference that Mr Li's account of what occurred would not assist the Respondent's case, and that "any inference" favourable to the Applicant that is otherwise open on the evidence can be "more confidently drawn" in Mr Li's unexplained absence: Jones v Dunkel at 308 (Kitto J), 312 (Menzies J), 320-321 (Windeyer J); Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 at 61-62 (Black CJ, Burchett and Kiefel JJ).
18. Fahim Malik's evidence was that he had no knowledge of any transaction or authorisation. Sarah admitted that she had not, in fact, spoken to Fahim about the transaction or its authorisation (or at all). Mr Malik's evidence was that none of the conversations alleged by Sarah Ilyas to have occurred with him that night, occurred; that he did not authorise the credit card charges, had no knowledge of them at the time, and was only made aware they had occurred in October 2017 when he discovered the charges of $1,100 and $7,068 to "LMP Immigration Sydney Au" and "Dept. Of Immigration Southport Au" on his credit card statement, asked Sarah Ilyas about them and she said "yes, I used it to pay for my immigration and I will pay you back".
19. Having considered Sarah Ilyas' own conflicting evidence, I prefer Mr Malik and Fahim Malik's evidence to hers. I also agree with the Applicant's submission that it is appropriate to draw the inferences available on the evidence before me, as outlined above at [454].

Repayment

1. Mr Malik denied ever being repaid by Sarah Ilyas for the $8168 she put on his credit card on 14 September 2017. Sarah Ilyas claimed that when Mr Malik returned from Pakistan, she asked him how to repay the money and he told her to pay it in cash. She said: "Javaid came to the Liverpool office at 259 Northumberland Street, Liverpool and I repaid him the full amount in cash $8168. I rounded it up to $8200 as the cash was made up of $100 and $50 notes. It was not in an envelope, I had it in my handbag ready to give it to him. I did not get a receipt from Javaid because I did not think I would need one. After that Javaid never mentioned the payment again and I believed that the loan had been repaid."
2. At hearing, however, Ms Ilyas said she took the cash from the drawer at home, put it in an envelope, put it in her handbag, and took it to the Liverpool campus. She said she and Mr Malik were at the reception desk and she opened her bag and gave him the "[c]ash envelope with eight thousand nine - whatever the amount was, that cash" and handed it to him. She agreed that where her witness statement said "[i]t was not in an envelope", the opposite was the truth.
3. There was no evidence that Sarah Ilyas had repaid the amount owing in cash to Mr Malik at any time, other than her own evidence.
4. Mr Malik's evidence was that he had followed up with Sarah Ilyas about the repayment of the charged amounts a few weeks after their initial conversation, and every three months after that time. On those occasions, Sarah Ilyas made excuses about why she had not paid back the amounts and, ultimately, the amounts were never repaid. There was no evidence of these conversations regarding repayment, other than Mr Malik's own evidence.
5. On 19 May 2021 Mr Malik and Sarah Ilyas had the text exchange quoted above at [429]. On 24 August 2021 Mr Malik wrote on the Applicant's letterhead to Sarah Ilyas, via her email address, making a formal demand for repayment of the $8168.60 within 10 working days. Under cross-examination Sarah Ilyas confirmed that she received Mr Malik's letter in August 2021, that she read it when she received it, and that she never replied to it "[b]ecause it's all false allegation".
6. The Respondent submitted that Sarah Ilyas' evidence that she had repaid the $8168 in cash shortly after borrowing it should be preferred to Mr Malik's evidence that he was never repaid, because it was implausible that Mr Malik would have continued to employ Sarah Ilyas for more than 3 years, provide a statement in support of her visa application in December 2018, hire her sister in 2019, and do nothing to restrict her access to his credit card, if she had not repaid the amount owing. The Respondent also relied on there being no documentary record of Mr Malik requesting repayment at any time prior to May 2021.
7. The Applicant submitted that: "Mr Malik's conduct is understandable in light of the personal or familial relationship between Mr Malik and Sarah Ilyas and, as far as the evidence suggests, Sarah Ilyas did not use the credit card without authorisation again. It is not surprising that Sarah Ilyas continued to have access to the credit card (as it was required for administrative duties). It is also not surprising, in circumstances where Mr Malik and Sarah Ilyas would see each other in person most work days, that he would follow up with her about the payment verbally and in person rather than in writing via text message or email. It is otherwise apparent that Mr Malik gave Sarah Ilyas the benefit of the doubt and retained the belief that she would pay him back the funds."
8. The Applicant pointed out that Sarah Ilyas' response to Mr Malik's text message demanding repayment on 19 May 2021 did not indicate that she had repaid the amount owing. Rather, her response indicates an attitude that she did not intend to repay the money owing. Similarly, she did not reply to the letter of demand of 24 August 2021 stating that she had already repaid the amount claimed to be owing.
9. I agree with the Applicant's submissions that Sarah Ilyas did not repay the amount owing to Mr Malik. I do not accept Mr Malik's evidence, however, that he chased her for repayment every 3 months. On the evidence before the Tribunal I find that Mr Malik did not seriously pursue repayment of the debt owed by Sarah Ilyas to him until their relationship broke down in May 2021. Sarah's failure to deny that she owed him the money claimed, when he first seriously demanded repayment in May 2021 by text, and then again in August 2021 by letter, supports my finding that she had not repaid him the money by that time.

Sarah Ilyas: issued qualifications

1. In the Applicant's correspondence to the Respondent of 6 May 2022, the Applicant identified the misconduct it alleged against Sarah Ilyas as the reason for the cessation of her employment, and attached two letters of 24 August 2021. Both letters were signed by Mr Malik, on the Applicant's letterhead, and sent to Sarah Ilyas' email address. The first letter was a demand for repayment of the $8168.60 Sarah had charged to Mr Malik's credit card on 14 September 2017.
2. The second letter was titled "Illegal issuance of Testamurs and Cancellation notification" and alleged that Sarah Ilyas had issued certain qualifications to herself without having completed the requisite training, and the qualifications had therefore been cancelled. The letter demanded that she return the testamurs or provide proof of their destruction within 7 days or "we will pass this matter to the relevant authorities under fraud activities". The qualifications were: 1. BSB609015 Advanced Diploma of Management (Human Resources) issued 17 August 2018 Certificate No. 172-66311 2. BSB50215 Diploma of Business issued 1 April 2020 Certificate No. 1039-69322 3. BSB42015 Certificate IV in Leadership and Management issued 20 December 2017 Certificate No. 1155-66298 4. CHC43115 Certificate IV in Disability issued 18 April 2018 Certificate No. 494-53229
3. There was no response by Sarah Ilyas to either of the 24 August 2021 letters.
4. The Respondent alleged that Mr Malik's conduct in accusing Sarah Ilyas of using the Applicant's systems to fraudulently issue vocational qualifications to herself and sending the letter of 24 August 2021 was improper, and retaliation for her cooperation with SLED.
5. In A66 the Respondent narrowed this allegation to "at least in respect of the Certificate IV in Learning and Management". The Applicant submitted that because the Respondent did not maintain the allegation in relation to the Advanced Diploma of Management (Human Resources), the Certificate IV in Disability, or the Diploma of Business (the other 3 qualifications), the Tribunal should find should find that Sarah Ilyas was not entitled to those qualifications, or at least that "Mr Malik had reasonable grounds for believing as much", and that Sarah Ilyas had lied to the Tribunal and the Respondent about having records of her assessments for those qualifications which could be produced on request, and did so "for ill-intentioned purposes".
6. The Applicant provided extensive evidence supporting the factual basis for the contention that Sarah Ilyas had not completed the requisite training to obtain the other 3 qualifications. In my view there is no need for the Tribunal to make any findings about the allegation in respect of the other 3 qualifications which are not pressed by the Respondent. The allegation as pressed by the Respondent is that Mr Malik engaged in improper conduct towards an employee, Sarah Ilyas, by accusing her of using the Applicant's systems to fraudulently issue herself the vocational qualification of Certificate IV in Leadership and Management, and threatening her in relation to that fraud in the letter of 24 August 2021.
7. Mr Malik's affidavit evidence was that he discovered Sarah Ilyas had issued herself the four qualifications in around March or April 2021, when he was looking at the Applicant's computer system. He sent the letter to her in relation to the cancellation of those qualifications some months later. Under cross-examination Mr Malik accepted that he cancelled the four qualification certificates before making any inquiries of Sarah Ilyas. The Respondent submitted that this demonstrated a lack of due diligence by Mr Malik, which was inappropriate conduct.
8. Mr Malik's evidence was that he personally checked the Applicant's records before cancelling the certificates, and found that there was no record of Ms Sarah Ilyas completing any units for the Advanced Diploma of Management. Mr Malik gave evidence that the Applicant has never provided courses in human resources, had no resources for them, had always had to use a third-party contractor for them, and the Applicant had only ever issued a couple of the Advanced Diploma of Management qualifications, in about 2016, based on recognition of prior learning.
9. The Respondent relied on extracts from the Applicant's records (R36 and A55) which record unit completions for the Advanced Diploma of Management for Sarah Ilyas, whilst acknowledging that those records (A55) indicate she "Did not attend" certain courses. The Respondent submitted that this didn't mean Sarah Ilyas had not completed the units because Sarah Ilyas never claimed she actually attended the classes, but said she studied independently and submitted the assessments to Mr Malik. The Respondent also relied on statements accepted by Mr Malik in cross-examination to the effect that staff at the Applicant were permitted to do training for free from time-to-time, and that Sarah Ilyas completed the SLC on this basis in 2020, and that she had enrolled in the Certificate IV in Leadership and Management in 2017.
10. The Applicant submitted that Sarah Ilyas' TRUSS records for the Advanced Diploma of Management were not "genuine". Based on the Applicant's submissions, I understand the submission that they were not "genuine" to mean that they did not reflect the truth of the matter, that Sarah Ilyas had completed the assessments and relevant units of work and had therefore validly been granted the qualification. The Applicant relied on Mr Malik's evidence about the Applicant's lack of capacity to provide the course, and inconsistencies between the TRUSS records and Sarah Ilyas' evidence which I address below.
11. When cross examined on her entitlement to the qualification Sarah Ilyas did not claim she was given the qualification for recognition of prior learning. Sarah Ilyas agreed she had "no record of [her] assessments for the Advanced Diploma of Management in Human Resources", and "[n]othing in writing at all" about the assessments or the work she claimed to have done for that diploma, "[n]ot even one email". She relied entirely on the TRUSS records to provide proof that she had undertaken any of the units for the course.
12. When asked if she remembered anything from the course, she said: "Yes, a bit, yes, I do. ... About human resources, all about staffing and salaries, the perks the employees they get, yeah, these sorts of things. … Not very deep, yes."
13. I agree with the Applicant's submission that Sarah Ilyas' evidence that she completed the units required for the Advanced Diploma of Management in Human Resources is not credible, for the reasons discussed below.

R36 and A55

1. The document marked as exhibit R36 was tendered by the Respondent during the hearing. It is purported to be a screenshot of the Applicant's TRUSS system recording courses and units in which Sarah Ilyas was enrolled. The document marked as exhibit A55 was tendered by the Applicant during the hearing, which purports to show the same thing. The subject titles in the screenshots match the subject titles listed on the Diploma of Advanced Management (Human Resources) issued to Sarah Ilyas, which was tendered as A41.
2. The differing content of A55 and R36 and the circumstances in which they were provided to the Tribunal is relevant, as it bears significantly on the plausibility of Sarah Ilyas' evidence about her qualifications, and her credit generally.
3. Upon the Applicant's request, the Tribunal issued a summons to Sarah Ilyas on 11 October 2023. That summons generally sought documents or records evidencing Sarah Ilyas' participation in the training and assessments necessary to be awarded the disputed qualifications, having regard to the offer she had made in her witness statement in 2021 to produce such records upon request. In response to the summons, Sarah Ilyas produced a bundle of documents, including screenshots of the applicant's TRUSS system. Those screenshots were eventually tendered by the Respondent as R36.
4. During cross-examination of Sarah Ilyas, the Applicant's counsel called for the electronic files of the screenshots which were saved on Sarah Ilyas' personal device. These were subsequently produced, and a printout was tendered by the Applicant as A55. There were significant differences between the screenshots in R36 and A55: 1. the screenshots in A55 were larger in size than the screenshots in R36 and included parts of the screen (and the TRUSS records) that were not shown in the R36 screenshots, such as more information on the right side and bottom of the image, and notations stating "NR - Did not Attend" and "NR - Cancelled" for many course units; 2. one of the screenshots in A55 had a filename of "Screen Shot 2021-09-09 at 1.35.22 pm.png"; and 3. the screenshots in A55 did not contain the red-bolded boxes which appeared in the screenshots in R36.
5. It is apparent on the face of the documents that R36 is an edited version of A55. The nature and effect of those edits was the subject of submissions by both parties.
6. The Applicant submitted, and it was not disputed by the Respondent, that the filename of 'Screen Shot 2021-09-09 at 1.35.22 pm.png' for one of the electronic files was the date on which that screenshot was taken. I accept that submission.
7. The Applicant submitted that Sarah Ilyas had edited the screenshot and specifically cropped out the information on the right to give the impression that she had completed those subjects, when the records variously stated 'NR - Did not Attend' and 'NR - Cancelled', indicating that she had not completed the subjects. When it was pointed out to Sarah Ilyas in cross-examination that the unedited screenshots showed almost all of the units marked with the outcome "did not attend", she said: "Maybe when I took that screenshot it could be I haven't even started doing the assessments. …when I took this big screenshot, I don't remember, maybe I haven't started the course."
8. When it was later put to her that she did not take the screenshots while she worked at the Applicant because, if she had, she would have been troubled to see that some of her units were marked as "Cancelled", she responded by stating: "No because I already got the certificates and it could be a glitch in the system as well. So I didn't take it seriously."
9. In re-examination, Sarah Ilyas said that she gave the edited screenshots to her new employer in response to Mr Malik's allegation to him (which is addressed further below) to: "…explain that, about my record, that I have completed the units, I was enrolled and I have the evidence on the system that I did the course."
10. The Applicant submitted that the "Unit completion" records (in A55) for the 8 units necessary for the Advanced Diploma in Management all recorded completion on "9 Jan 2018" when it was not possible for a student to complete the course in a day, and that Sarah Ilyas had only started working for the Applicant on 4 August 2017, and was enrolled in the system as a student no earlier than 12 September 2017, so it would not have been possible for her to complete the course by 9 January 2018 when the TRUSS system recorded her having completed the subjects.
11. The Applicant submitted that if Sarah's evidence (at [486]) was to be believed, the screenshots were useless as a record of her having done the claimed assessments or courses, because she said they were taken before she had started the courses. She then contradicted her own evidence by claiming that she was not concerned the units were marked as "cancelled" because "I already got the certificates".
12. The Applicant submitted that Sarah Ilyas was "glib and cavalier in her answers" about the edited screenshots, and that she openly admitted that she would choose to withhold evidence in circumstances where she believed she had something to hide, because when she was asked whether she understood that she had a legal obligation to produce the screenshots, she said: "Like if, of course, I could have said I don't have them. …if there was something to hide, I wouldn't have provided this screenshot as evidence today."
13. The Applicant submitted that the Tribunal should find that Sarah Ilyas was just making things up in response to questions on this topic, and the only reason for her to make things up was to conceal the truth about her entitlement to the qualifications.
14. The Respondent submitted that the "Did Not Attend" marking on the A55 version of TRUSS records for Sarah Ilyas meant that she had not done the subjects in person, but had completed them remotely, and that it was open to her to form the view that the edited screenshot she had produced in response to the Applicant's summons was a "record that shows" she undertook assessments for this course.
15. I accept the Applicant's submissions on this issue. Sarah Ilyas' evidence that she completed the subjects marked "did not attend" remotely is implausible and not supported by any objective evidence. The evidence demonstrates clearly that Sarah Ilyas was willing to and did attempt to conceal the truth from the Tribunal by editing screenshots of records she was required to produce under summons, and then making up oral evidence to explain that conduct. When A55 and R36 are compared in the context of Sarah Ilyas' evidence, it is apparent that Sarah Ilyas took the screenshots on or about 9 September 2021 and that she deliberately cropped out the "Did not attend" and "Cancelled" notations. This was done deliberately by Sarah Ilyas to support her claim to both her new employer, and to support her evidence in these proceedings, that she had completed the requirements for the qualification of Diploma of Advanced Management, when she had not done so.

Mr Malik's contact with Sarah's new employer

1. After sending Sarah Ilyas the two letters of 24 August 2021, on 27 August 2021 Mr Malik instructed the Applicant's staff to contact Sarah Ilyas' new employer, Paul Rowland, repeating the allegations concerning unauthorised use of his credit card and unauthorised issuance of qualifications to herself. Mr Malik also made further allegations to Paul Rowland in an email of 30 August 2021, that she had submitted fraudulent documentation to Westford University college.
2. The Respondent submitted that Mr Malik had falsely claimed in that correspondence that "this matter has been reported to the relevant authorities" and had falsely stated that this conduct "led to the termination of [Ms Ilyas'] employment". The Respondent submitted that this demonstrated "a desire to make life difficult for Ms Sarah Ilyas" which was retributive.
3. The Applicant submitted that Mr Malik held genuine concerns that Sarah Ilyas used the credit card without permission and failed to pay back those funds, and that she issued false qualifications to herself using the Applicant's system, so he was acting on those genuine concerns when he contacted her new employer. The Applicant conceded that the reference to her misconduct having "led" to her termination "appears to have been a mistake", but submitted that the correspondence was not otherwise misleading in circumstances where Mr Malik had contacted both Sarah Ilyas' lawyer and Citibank (who he considered to be the relevant authorities), and where Sarah Ilyas had provided her false qualifications to Westford University College.
4. I accept the Applicant's submissions. It is clear that Mr Malik held the belief, at the time he contacted Sarah Ilyas' new employer, that she owed him money and had issued herself false qualifications. Mr Malik had an obligation to take seriously and act on any issue regarding qualifications which had not been earned. As submitted by the Applicant: "There is an unfairness in the manner in which the respondent has put this allegation and the manner which it has evolved and continues to evolve over time. Given the position that SLED has taken with respect to Allegations 2 and 3 (in particular) in these proceedings, it is apparent that they would be very concerned by allegations that the applicant's staff had been issued certificates for qualifications which they had not earned."
5. I accept that Mr Malik was reasonably concerned to discover that a former staff member had issued herself with false qualifications, and agree that it was reasonable for him to inform others of this to whom the information would be pertinent, including her new employer. While some of the information imparted by Mr Malik was inaccurate, I do not consider this demonstrates a desire to "make Sarah Ilyas' life difficult". I address the issue of retribution below.

Breakdown of the relationship

1. The Respondent submitted that the close relationship between Mr Malik and Amna Ilyas, and Mr Malik and Sarah Ilyas, provided context for why Mr Malik was willing to allow Sarah Ilyas to use his credit card, provide references for immigration purposes, and facilitate Amna Ilyas' work placement with the Applicant as a "network engineer". Conversely, it also was submitted to have provided context for why Mr Malik would have expected a sense of loyalty from Amna and Sarah Ilyas, and explain therefore why his reaction was "hostile" following their cooperation with SLED. I agree their familial relationship is important contextually. I disagree, however, that the evidence supports a finding that Mr Malik's attitude towards Amna and Sarah Ilyas was hostile because of, or as a reaction towards them, following their cooperation with SLED.
2. The evidence demonstrates that Mr Malik's relationship with each of Amna and Sarah Ilyas was positive until around May 2021. This included Mr Malik's assistance and support towards each of their visa applications, the Applicant employing them, and personal and familial interactions in connection with cultural activities and festivals.

Conduct by Mr Malik towards Sarah Ilyas

1. As submitted by the Respondent, Mr Malik's "retribution" against Sarah Ilyas consisted of: "a. pursuing Ms Sarah Ilyas in 2021 for a debt of approximately $8,000 which Mr Malik lent her in 2017 and which her evidence is that she paid back shortly after it was given (see Bundle pp 1040-1041 at [9]-[12] and 1049-1050 at [57]-[58] and Sarah Ilyas Affidavit at [10]-[16]); b. accusing Ms Sarah Ilyas of using Star's systems to fraudulently issue vocational qualifications to herself (Bundle p 1050 at [58]-[60] and Sarah Ilyas Affidavit at [68]-[70]); c. contacting Ms Sarah Ilyas' new employer to state that she had been guilty of misconduct during her time at Star (Bundle p 1050-1051 at [62]-[65]; Winram Affidavit at [14]-[15]); and d. Mr Malik repeatedly calling Ms Sarah Ilyas, sending her threatening text messages and repeatedly checking her social media profiles (Bundle p 1049-1050 at [55]-[56], [61]). Further, Ms Sarah Ilyas believes Mr Malik has left threatening messages with her mother in Pakistan (Sarah Ilyas Affidavit at [71]-[72])."
2. I accept the objective evidence that Mr Malik began pursuing Sarah Ilyas for a 2017 debt in May 2021; accused her of using the Applicant's systems to fraudulently issue vocational qualifications to herself; contacting her new employer to state that she was guilty of misconduct whilst employed by the Applicant; and called her and sent her text messages. Whether or not those calls and text messages can be characterised as "threatening" is addressed below.
3. I also do not agree that the objective evidence demonstrates that Mr Malik's actions were "retributive" because of Sarah Ilyas' cooperation with SLED. There is insufficient evidentiary connection between Sarah Ilyas' cooperation with SLED and Mr Malik's actions to draw that inference, or to reach that conclusion.
4. Sarah Ilyas first provided assistance to SLED on 5 May 2020, whilst still employed by the Applicant, when she was interviewed by Ms Sheridan Zhang about some pictures of SLED's Approved Trainer Guide which had been found on a student's mobile phone. Mr Malik was aware of her providing assistance to SLED at that time. She provided a formal statement to SLED around 18 months later, on 12 October 2021.
5. Mr Malik's evidence was that he terminated Sarah Ilyas' employment on 9 February 2021 after she had an altercation with a student. Sarah Ilyas' evidence was that she stopped working for the Applicant in around February 2021 because she was "sick of trying to cover up all the problems at Star". Irrespective of which version is the truth, February 2021 was the end of the professional relationship between Sarah Ilyas, and Mr Malik and the Applicant. Nevertheless, it appears from the evidence before the Tribunal that Sarah Ilyas and Mr Malik's personal relationship was not significantly affected by the end of their professional relationship, until May 2021.
6. Mr Malik's "threatening" text messages to Sarah Ilyas occurred on 19 May 2021, and his letters to her were sent in August 2021. There is no evidence that these messages or letters were sent in connection with, or in retaliation to, Sarah's cooperation with SLED.
7. The Applicant and its staff and students had regular interactions with SLED and other regulators such as Training Services NSW over the years. It was not until 11 August 2021 that SLED issued a Notice to Show Cause to the Applicant, advising that consideration was being given to revoking its approval to provide training, assessment and instruction. There was no reference to allegations of improper conduct towards staff in that initial Notice to Show Cause or the revocation which followed, and there was no reference to either Amna or Sarah Ilyas, or staff cooperation with SLED. Nor was there any reference to either Amna or Sarah Ilyas in the Notice to Show Cause issued on 6 January 2022.
8. In the 6 January 2022 Notice to Show Cause one of the allegations was titled "Improper conduct towards students and employees" but the factual basis for that allegation focussed entirely on students, with no reference to improper conduct towards any employees. In correspondence to the Applicant dated 21 April 2022, the Respondent identified for the first time that a former (unnamed) employee of the Applicant had provided a statement making allegations of misconduct against Mr Malik and the Applicant: "SLED has obtained a statement from a former employee who has stated that she was uncomfortable with her involvement in what she considered questionable business practices. After the cessation of her employment, she claims that she was subjected to harassment and threats by Mr MALIK, such as her new employer being contacted and provided with negative information with regards to her character and qualifications. The former employee further states that she was threatened in relation to money Mr MALIK claimed was owed to him, despite her belief the money had been paid."
9. Although the employee was not named by the Respondent in that correspondence, the Applicant identified from the circumstances alleged that it was Sarah Ilyas. The Applicant responded on 6 May 2022 stating: "If Urooj (Sarah) Ilyas is the "former employee" that the SLED relies on in making this allegation, then STAR confirm that Ms Urooj Ilyas was dismissed for misconduct. The misconduct and the action taken by STAR is set out in the 2 attached letters addressed to Ms Ilyas dated August 24, 2021. No response was provided by Ms Ilyas to that correspondence. The action taken by STAR, was in light of the conduct of Ms Ilyas, appropriate. It was open to Ms Ilyas to dispute the allegations or to make a claim for wrongful dismissal in an appropriate forum. STAR is unaware of any such claim being made by Ms Ilyas in an appropriate forum. STAR otherwise deny that they have improperly dismissed any employee or that Mr Malik has harassed or threatened an employee…"
10. In the reviewable decision of 24 June 2022, the Respondent identified for the first time that the employee statement they had obtained was from Sarah Ilyas.
11. The first documented negative interaction between Mr Malik and Sarah Ilyas occurred more than a year prior, when on 19 May 2021 Mr Malik began text messaging Sarah Ilyas requesting repayment of the money he claimed was owed by her to him. All the other "retributive" actions by Mr Malik alleged by the Respondent occurred after that date, and prior to April 2022. While Mr Malik was aware that Sarah had assisted SLED in May 2020, there is no evidence that he was aware that Sarah was providing a statement for the purpose of making allegations against him or the Applicant.
12. There is no evidence that Mr Malik's knowledge or awareness of her cooperation with SLED shifted so fundamentally in around May 2021 to instigate the change in attitude towards her. Nor is there any evidence that, following Mr Malik becoming aware of Sarah Ilyas' assistance to SLED in April 2022, he engaged in any particular negative conduct towards her.
13. So what changed in May 2021 between Mr Malik and Sarah Ilyas? The evidence demonstrates that it is in May 2021 that Mr Malik first became aware that Sarah Ilyas had recently married Muhammad Hassan. This, in my view, was sufficiently significant to be the impetus of a total breakdown in the relationship between Mr Malik and Sarah Ilyas. Mr Malik had considered himself a father figure to her. Sarah worked at the Applicant for years and had daily interactions with Mr Malik. Mr Malik clearly relied on her in running the day-to-day administrative processes of the Applicant. Mr Malik had lent her a significant sum of money for her visa application and had not seriously pursued its repayment over the years, accepting the explanations she gave him. He had supported her application for a partner visa by providing the Department with a statutory declaration about Sarah's relationship with Mansoor Ali. He trusted her.
14. The Applicant submitted: "Mr Malik was upset because Sarah Ilyas had lied to him, and he exchanged the text messages with her on that basis. At that time, Mr Malik's understanding was that the Form 888 reference that he had provided in respect of Sarah Ilyas' previous relationship was still with the Department for Immigration and he was unsure about the status of her visa applications in respect of that relationship. Mr Malik has said he "was concerned about [himself], that you know, she's married with somebody else and I had given evidence"."
15. Under cross-examination, Mr Malik explained: "Okay. I was surprised to getting married with anybody is nothing I have no objection at all, she… anybody can get married anywhere. My objection was that I have four years, I have become their father, I have provided them all the whatever the requirement they asked from me, I did that and I was hurt. She was telling me different story that I…you know, she's getting married with Mansour Ali and then I later on find out this is a different person and I was hurt. I said, "Why you don't need to tell me" That's all the reason, otherwise I have no problem with to getting married someone if she'd be honest with me. She's you know, she came on that day when she bring the packet of sweets and she told me that, "I'm getting married, I have to get married because I've been told that otherwise I'll leave the country". So I have brought a lot of family friends, known her family from long time. My mum came here, have, you know, dinner with her. So that was the reason that I got so hurt, I said, "Why she didn't told me? Some other staff member is telling me she got married"."
16. Mr Malik's evidence was that he was not concerned with Sarah Ilyas getting married. What upset him was finding out from a third party that she had gotten married, rather than hearing it from her. What upset him even more was finding out she had married a man who was not the man he believed her to be in a relationship with, which was a relationship in which he had supported her. Sarah Ilyas did not tell Mr Malik that she had ended the relationship with Mansoor Ali, when she had ended that relationship. She did not tell him when she started a new relationship with Muhammad Hassan. Mr Malik's personal view of his relationship with Sarah being one of close family, being a "father figure" to her, was shattered by this information. The knowledge that Sarah Ilyas married someone other than Mansoor Ali demonstrated to Mr Malik that she had lied to him for a long period of time - at the very least between October 2020 and May 2021 - and this was a fundamental betrayal of his personal and familial support for her.
17. This shift in attitude is supported by Mr Malik's subsequent actions. He sent angry messages to Sarah Ilyas demanding repayment of the money he lent her, years prior. He threatened to contact the Department and her immigration solicitors regarding her relationship. These actions are directly linked to the reason why his attitude towards Sarah changed, both temporally and in subject.
18. On the basis of the evidence before me I accept the Applicant's submission on this issue. Mr Malik could not have known or formed the view that Sarah Ilyas was "cooperating" with SLED, by making allegations against him to SLED, in 2021. There is therefore no basis upon which the Tribunal could or would find that Mr Malik's conduct in sending Sarah Ilyas the above text messages in May 2021 or the correspondence in August 2021 was "retaliatory" for her cooperation with SLED.
19. I note that Sarah Ilyas' evidence at hearing was that she didn't tell her family members when her relationship with Mansoor Ali broke down. She explained how she was "hiding" the refusal of her partner visa application from her family for years, stating at hearing in October 2023: "I explained to my whole family this year that this happened, actually I was hiding about all the stuff before but I had to tell them and I did this year."
20. Sarah said she told her family 'this year', meaning in 2023: "…how the relationship ended, what were the reasons, why we broke up."
21. It is plausible that prior to April 2023, when the AAT published its decision in relation to her visa application, Sarah Ilyas' family didn't know the status of her visa application, the details of the basis upon which she had applied for the partner visa, or that she hadn't updated her details with the Department or the AAT. Those matters are entirely within the knowledge of a visa applicant and any representative, the Department, and the AAT. However, I find entirely implausible that her family did not know her relationship with Mansoor Ali had ended, especially in the context of her evidence that she and Muhammad Hassan were living together from October 2020, and "things got pretty serious" from December 2020 when they were hanging out with friends and family together, and she referred to him in public as her partner. At the very latest, her family would have been aware that her relationship with Mansoor Ali had broken down by October 2020.
22. Sarah Ilyas' evidence to this Tribunal that her family was unaware that her relationship with Mansoor Ali had broken down served two purposes. First, it provided some explanation or justification for her inaction in notifying the Department and the AAT that the circumstances relevant to her visa application had changed significantly, which was an issue raised in cross-examination as relevant to her credit as a witness. Second, it provided support for the Respondent's allegation that Mr Malik's conduct towards Sarah Ilyas was a reaction to her cooperation with SLED, rather than a reaction to her not telling him that she had ended her relationship with Mansoor Ali and married someone else. I do not accept Sarah Ilyas' evidence on this issue and I do not accept that Mr Malik's conduct towards her was because of her cooperation with SLED.

Conduct by Mr Malik towards Amna Ilyas

1. Amna Ilyas' evidence was that she first met Mr Malik in 2017 and began working at the 7-Eleven owned by his son Wasim Malik. She began working as an administrative assistant at the Applicant in around July 2019 and resigned in March 2021.
2. Amna Ilyas's interview by SLED in February 2021 was given with Mr Malik's knowledge and on 21 March 2021, which appears to be following her resignation, they exchanged text messages about the content of the draft statement being prepared by SLED: "Mr Malik: Salam Amna, Mick from SLED rang can please send him witness statement, or forward me I will send him, take care of yourself, if need any help please feel free to call me, everyone miss you Allah Hafiz Amna: Walay Kum Salam, I didn't make any changes to it so I'll send him the same one. Thank you so much for being there. You have done a lot for us and I'll always be thankful. I miss everyone very much as well. If there's anything needed on my part, please contact me :) Mr Malik: Please change the wording where he said you ask the student to do little more then signature, no I have asked student to come do the only signature only. And send to him please Thanks."
3. That draft statement was not ultimately finalised or signed by Amna Ilyas. The tone of the relationship between Mr Malik and Amna in that text exchange, and the email sent on 1 June 2021 (at [435] above) after her employment do not support Amna's later characterisation in her Affidavit of 12 April 2023 that she had resigned from the Applicant's employment because the environment was "toxic", she was unhappy and "could not tolerate the abusive language that Javaid used". I therefore do not accept that evidence.
4. On 7 December 2021 Mr Malik emailed skilled.migration@investment.nsw.gov.au, attaching a letter with the subject line "False document submitted to gain Residency" (Exhibit JM4, pp 120-121). In that letter, Mr Malik alleged that Amna Ilyas had asked him to provide an affidavit verifying that she worked at Star as an IT engineer, when in fact she was employed as a "junior receptionist". He stated that "she never completed work placement as an IT Engineer". He stated that if she had informed the Department of Immigration that she worked as an IT engineer "she should be considered as an unfit and proper person to obtain residency". Investment NSW responded via email on 7 December 2021, providing a link to support "suspicious immigration activity" to the Department of Home Affairs. Mr Malik stated that he clicked that link on 8 December 2021 and submitted the same letter to the Department. His evidence was: "…my decision to contact NSW Business and Skilled Migration had nothing to do with Amna making statements to SLED. My only concern in contacting them and the Department of Home Affairs was to ensure that neither I nor STAR could be accused of providing false information in relation to Amna's permanent residency application."
5. Amna Ilyas provided statements to SLED on 24 February 2021, and 8 November 2021. The statement of 24 February 2021 was never signed by her, and while the statement of 8 November 2021 was signed by her, it was not provided to Mr Malik or the Applicant until it was attached to Amna Ilyas' Affidavit of 12 April 2023. Mr Malik was aware that Amna was cooperating with SLED from February 2021 because he texted with her about the statement SLED had drafted for her. It is significant that Mr Malik was not aware until April 2023 that Amna had given SLED another statement in November 2021 because it is that statement where she makes allegations of misconduct against Mr Malik for the first time.
6. There is no evidence that Mr Malik knew about Amna Ilyas' second witness statement to SLED as at 7 December 2021. The Respondent did not disclose to the Applicant that Amna Ilyas had provided that second statement of 8 November 2021, until the service of her evidence in reply in April 2023. Further, Amna Ilyas' evidence was that she did not tell anyone, including Mr Malik, that she had given a witness statement to SLED, so he could not have known or formed the view that she was "cooperating" with SLED or making allegations against him to SLED in 2021.
7. I do not accept the Respondent's submission that Mr Malik's conduct towards Amna in June 2021, in refusing to give her a statutory declaration for her visa application, was retaliatory for her cooperation with SLED. There is no indication from that email exchange (at [435] and [436] above) that SLED had anything to do with his hesitation in providing something that he believed could be considered a false statutory declaration. Nor do I accept that his conduct in December 2021 in contacting Investment NSW and the Department was retaliatory for her cooperation with SLED. There is no evidence to support a finding that he was aware, at that time, that she had made allegations of misconduct by him to SLED, as were expressed in her November 2021 statement.
8. I accept that Mr Malik's conduct in contacting the Department and Investment NSW in the manner described above would have impacted Amna Ilyas' "life and permanency residency status". However, on the evidence before the Tribunal, I find that impact is entirely of Amna's own making. Mr Malik refused to provide her with a statutory declaration for the Department stating she had been working as a network engineer for the Applicant, on the basis that it would be untruthful. He warned her of the serious consequences in doing so. She nevertheless made an application for a visa containing these claims, and then admitted to the Department in the s 57 Response that the information was "incorrect". Those actions have inevitable consequences, which are not Mr Malik's responsibility.
9. There is therefore no basis upon which the Tribunal could or would find that Mr Malik's conduct in sending the correspondence to the Department or Investment NSW was "retaliatory" for her cooperation with SLED.

Harassing conduct

1. The Respondent alleged as part of the improper conduct by Mr Malik towards Sarah Ilyas that he repeatedly called her, sent her threatening text messages, repeatedly checked her social media profiles and left threatening messages with her mother in Pakistan.
2. The Respondent's submissions in relation to this aspect of the allegation included only evidence of the messages outlined (at [429]) above. For the reasons discussed above (at [430]), I do not accept that those text messages were "threatening", in the sense of them intending to cause Sarah to be intimidated or distressed. Nor do I accept that they constitute some form of harassment or improper conduct on Mr Malik's part. Sarah Ilyas owed him money which had not been repaid, and he had a reasonable basis for being concerned that she had provided false information to the Department and other people, which could negatively impact on him because of his previous support on that specific matter. The text message exchange was directly about those issues.
3. Mr Malik accepted that he had called and messaged Sarah Ilyas multiple times in May 2021. He stated that these calls and messages were in relation to her returning the company car and the money she owed him. I accept that evidence in the context of the text messages he sent in May 2021 which reflected similar concerns being expressed by him.
4. There was evidence before the Tribunal demonstrating that Mr Malik had viewed Sarah Ilyas' LinkedIn profile. As her former employer, and as the head of the training organisation by which she had claimed she had obtained qualifications, this is completely normal conduct, and I do not consider this constitutes threatening conduct by Mr Malik.
5. Mr Malik agreed under cross-examination that he had Sarah Ilyas' mother's phone number and had exchanged messages with her in the past on WhatsApp, but he denied making calls to her in Pakistan or leaving threatening messages for her, and there was no evidence from her to that effect. I do not accept that Mr Malik left threatening messages with Sarah Ilyas' mother in Pakistan as there is no objective evidence supporting this.

Conclusion

1. For the reasons stated above, I do not find that Mr Malik's conduct towards the Applicant's employees, Sarah Ilyas or Amna Ilyas, was improper or inappropriate. I also do not find that Mr Malik's conduct towards Sarah Ilyas or Amna Ilyas was done in retaliation for their cooperation with SLED.
2. I therefore find that Allegation 6 is not proven on the evidence before the Tribunal.

Allegation 7: the Applicant did not comply with the Interim Regime established and in force during Supreme Court proceedings

1. Allegation 7 is set out at [23] and [24] above. In the context of Supreme Court proceedings between the parties, the Interim Regime was in place from 19 November 2021 until 28 February 2023. The Interim Regime required the Applicant to: 1. engage a suitably qualified, independent VET Compliance Consultant, who was to propose a compliance plan for SLED's approval; implement the approved Compliance Plan; and conduct the SLED Pre-Enrolment Assessment for each person seeking to participate in any SLC; 2. limit the personal involvement of Mr Malik in training on the SLC, and his contact with students; 3. conduct only one SLC at a time; and 4. continue to comply with the Conditions (as in force at the relevant time) which apply to all training organisations which hold Master Security Licences and approvals pursuant to s 27A of the SI Act (the Conditions of Approval).
2. There are 22 Conditions of Approval listed for SLED's NSW Security Licence Course. Relevantly, the Conditions of Approval included the following: 1. Condition 2: This condition includes compliance with a written Code of Conduct. The Code of Conduct does not permit, among other matters: "swearing at students and unnecessary use of offensive language generally" and "derogatory comments about students or comments that could be construed as discriminatory or threatening". 2. Condition 3: This condition requires that assessment or instruction in any Security Licence Course cluster must be "in accordance with the SLED regulatory requirements". The "SLED regulatory requirements" are defined to include the "NSWPF SLC documents", which in turn are defined to include the "Assessor Guides" for each cluster within the Security Licence Course. 3. Condition 4: This condition requires compliance with the VET Quality Framework. 4. Condition 7: This condition requires ensurance that all Approved Trainers "comply with: these Conditions of Approval, the Code of Conduct in Chapter 2, requirements for Approved Trainers contained in Chapter 5, and SLC delivery requirements in Chapter 9 of this document". 5. Condition 9: This condition contains requirements for notifications, requests for approval and communications with SLED. These requirements include seeking approval from SLED for each security licence course 10 business days prior to its commencement, notification to SLED of student enrolments 3 business days prior to course commencement, and notification to SLED of course assessment outcomes within 10 business days of course completion. 6. Condition 12: This condition requires a Training and Assessment Session Plan to be submitted to SLED with each request to approve a security licence course (to be submitted 10 business days prior to its commencement in accordance with Condition 9). 7. Condition 13: This condition requires all SLED mandated assessments for the security licence course to be conducted by an Approved Trainer in a supervised, face-to-face environment and in accordance with the instructions provided in the SLC assessor guides for each SLC cluster, and the Conditions of Approval document.
3. Detailed evidence regarding the Applicant's compliance with the Conditions of Approval is given in the Burge Affidavit (R7) by Ms Diane Burge, an auditor within SLED. Relying on the Burge Affidavit, the Respondent alleged that the Applicant persistently failed to comply with multiple aspects of the Conditions of Approval during nine separate SLCs conducted between 6 December 2021 and 20 January 2023. Specifically: 1. SLC053 (site audit): non-compliance with conditions 3, 4, 7 and 13, resulting in the issue of formal caution notices to trainer Shane Smith and to the Applicant. The issuing of a formal caution indicated that SLED considered the relevant conduct amounted to a criminal offence (specifically breach of the SI Act). Also issues of administrative concern in relation to conditions 9 and 12 were noted (at [15]-[17] of the Burge Affidavit); 2. SLC054 (site and desk audit): non-compliance with conditions 3, 4, 7 and 9 resulting in the issue of formal caution notices to trainer John Stoodley and to the Applicant. Also issues of administrative concern in relation to Star's documentation and condition 9 were noted (at [18]-[24] of the Burge Affidavit); 3. SLC055 (site audit): non-compliance with condition 4. Also issues of administrative concern in relation to the Applicant's documentation were noted (at [25]-[27] of the Burge Affidavit); 4. SLC056 (site audit): non-compliance with conditions 3, 7 and 12 (at [28]-[30] of the Burge Affidavit); 5. SLC057 (site audit): non-compliance with condition 2, involving the use of offensive and discriminatory language by trainer Shane Smith (at [31]-[33] of the Burge Affidavit); 6. SLC062 (site audit): non-compliance with conditions 3 and 4 (at [35]-[37] of the Burge Affidavit); 7. SLC069 (site audit): non-compliance with condition 4 (at [42]-[44] of the Burge Affidavit); 8. SLC073 (non-compliance identified without audit): non-compliance with condition 9 (at [46]-[47] of the Burge Affidavit); and 9. SLC074 (desk audit): non-compliance with conditions 3 and 4, resulting in the issue of formal caution notices to trainers Shane Smith and John Stoodley (at [48]-[50] of the Burge Affidavit).
4. The Respondent also alleged that the Compliance Consultant engaged by the Applicant for the purposes of the Interim Regime failed to comply with the requirements agreed to by SLED, and failed to identify the non-compliances identified by SLED.
5. The Applicant submitted that issues of compliance with the Interim Regime were outside the scope of the Tribunal's review, which was not "at large" and which "cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker": Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 (Frugtniet) at [15] (Kiefel CJ, Keane and Nettle JJ), [51] (Bell, Gageler, Gordon and Edelman JJ); [2019] HCA 16. The Applicant submitted that: "The question before the internal reviewer here was whether she was satisfied that the criteria in ss 26(1A) or 26(1)(d) of the Security Industry Act 1997 were made out by reference to s 15(1)(a) of the Act (as then in force) and clause 25(1) of the Security Industry Regulation 2016, in light of particular allegations to which the applicant had then been invited to respond."
6. The Applicant further notes that the internal reviewer expressly excluded the Interim Regime from the scope of her decision: "An approval under s27A of the Act is distinct from a security licence. … holding an appropriate security licence is a prerequisite to being able to provide security training. However, approval pursuant to s27A of the Act is a distinct and additional requirement … As this internal review relates to the revocation of STAR's Master security licence and not the revocation of its approval (issued under s27A of the Act), I … have placed no weight on the matters currently the subject of the Supreme Court proceedings."
7. Whilst I agree with the principles referred to from Frugtniet, I do not agree that this Tribunal's consideration of the Applicant's compliance with the Interim Regime would change the nature of the decision or the question before the original decision-maker. The nature of the decision before the Tribunal and the question before the original decision-maker is whether it would be contrary to the public interest for the Applicant to continue to hold a Master Security Licence (s 26(1)(d) of the SI Act), and whether the Applicant is not a "fit and proper person" to hold a Master Security Licence (s 26(1A) of the SI Act). The only basis upon which it would be inappropriate for the Tribunal to consider the Applicant's compliance with the Interim Regime is where the allegation had not been made and particularised with sufficient time or opportunity for the Applicant to respond. If, for instance, the allegation was made in the course of closing submissions, it would be procedurally unfair for the Tribunal to consider it, because the Applicant would not have had an opportunity in its evidence to deal with the allegation and counter it. That was not the case here. Although the allegation was not raised in the original decision or considered in the internal review decision, as noted above at [9] and [10] the allegation was squarely raised by the Respondent and particularised on request, and was the subject of extensive written evidence, oral cross-examination at hearing, and submissions by both parties. There is therefore no procedural unfairness if the Tribunal considers this allegation.
8. Section 27A of the SI Act authorises the Respondent to impose conditions on an approval under that section. The Interim Regime included a requirement that the Applicant continue to comply with the Conditions of Approval (as in force at the relevant time) which apply to all training organisations which hold Master Security Licences and approvals pursuant to s 27A of the SI Act.
9. The Applicant submitted that s 27A(3) of the SI Act made it a criminal offence to fail to comply with a condition made under s 27A of the SI Act, and that the Respondent had "no power to amend the statute by purporting to impose a condition attended by a different mental element to that prescribed by s 27A(3)". I do not accept that submission. As submitted by the Respondent, it is the conduct engaged in by Applicant that is relevant, not whether or not there has been a contravention of the SI Act, through a non-compliance with a statutory condition, proved to the criminal standard. I am not deciding whether or not the Applicant has contravened the conditions of approval for the purpose of determining whether it is guilty of a criminal offence pursuant to s 27A(3) of the Act. I am determining whether there has been compliance with a condition of approval, for the purpose of determining whether the Applicant is capable or "fit" to hold the licence, which is subject to the same regulator as the approval. If the Applicant is unable to comply with a condition of approval, which is required under the same Act as that which its licence is granted, and regulated by the same regulator, non-compliance with conditions imposed by that regulator bears reasonably on the Applicant's fitness in relation to both approval and licence.
10. The Applicant further submitted that it was not required, as a term of the Interim Regime, to comply with the Conditions of Approval, but rather that a contravention of the Conditions of Approval could result in the termination of the Interim Regime without advance notice. That is technically correct, and despite the contraventions alleged by the Respondent, the Respondent did not terminate the Interim Regime and it remained in force until the Supreme Court delivered its judgment in favour of the Applicant on 28 February 2023. However, I find that it was implied in the terms of the Interim Regime that the Applicant was required to comply with the Conditions of Approval, as it was required to do so irrespective of whether proceedings were before the Supreme Court or otherwise. The Conditions of Approval apply to the Applicant as the holder of a Master Security Licence under the SI Act, as they do to all training organisations which hold Master Security Licences and approvals pursuant to s 27A of the SI Act.
11. The Respondent has asserted in its submissions, but not explained, how the Applicant's non-compliance with the Interim Regime demonstrates that it would not be in the public interest for the Applicant to hold a Master Security Licence, or that it is not a fit and proper person for that purpose. The Interim Regime was imposed (in the context of the Applicant's approval) to demonstrate compliance with the regulatory scheme in place, pursuant to the SI Act and Regulations. It is the same regulatory scheme, between the same regulator and licensee/approval holder, which are under consideration in these proceedings. With reference to the principles described above at [37] to [47], lack of compliance with the Interim Regime demonstrates either a disregard for the conditions put in place, or an inability to comply with the conditions put in place. Both disregard for the Interim Regime and an inability to comply with the Interim Regime impact on the Applicant's fitness and propriety, and put into question whether it is in the public interest for the Applicant to hold a licence under that regulatory scheme.

Mr McNamara

1. The Applicant submitted that the non-compliances alleged by the Respondent in relation to the Interim Regime did not distinguish between the conduct of the Applicant and the conduct of others "not party" to the interim regime. By this submission, the Tribunal understands that the Applicant takes exception to the findings of non-compliance made as a result of the conduct of Mr McNamara, the compliance consultant appointed as part of the Interim Regime.
2. I accept that submission. Mr McNamara was engaged by the Applicant as a Compliance Consultant for the purpose of the Interim Regime. The Respondent did not dispute that Mr McNamara was suitably qualified and experienced to be a Compliance Consultant for that purpose. He was not employed by the Applicant and was independent to the Applicant.
3. The Respondent submitted that, on Ms Burge's evidence, Mr McNamara proposed a compliance plan which was approved by SLED. That compliance plan was that Mr McNamara would: 1. review all completed LLN assessments prior to students being recommended for entry to the course (at (ii)); 2. meet with trainers prior to commencement of a course (at (iii)); 3. receive daily reports from trainers during a course (at (iv)); and 4. provide a written report on the compliance activity to Star and SLED after the course ended (at (x)).
4. Mr McNamara's evidence was that there was no overarching agreed compliance plan, but that he would prepare a compliance plan for each course, which would be submitted to and accepted by SLED prior to the course being approved. His understanding was that SLED required the compliance report for the previous course to be submitted before the next course was approved to be commenced. He therefore provided SLED with compliance reports for SLC053, SLC054, SLC055 and SLC056 shortly after those courses occurred. At some point, SLED ceased requesting that compliance reports be provided prior to approving the next course, so from SLC057 onwards, SLED approved courses upon the submission of a compliance plan only, without a compliance report from the previous course.
5. The Respondent submitted that SLED only received written compliance reports from Mr McNamara for the first three SLCs (SLC053, SLC054 and SLC055) during the Interim Regime. There were concerns raised by SLED with Mr McNamara about his approach, during the Interim Regime, to which he was defensive and hostile. Despite Mr McNamara's reports for SLC053 and SLC054 stating that he was satisfied those courses were delivered and assessed with consistency and "in alignment with the SLED Marking Guides, and the requirements of the approved Compliance Plan were met", SLED's own audits identified non-compliances, including non-compliance with conditions 3 and 4, which were sufficiently serious that SLED decided to issue formal caution notices to trainers Shane Smith and John Stoodley, and to the Applicant. The Respondent submitted that Mr McNamara was "incapable, in his role as a consultant, of identifying what SLED considers to be serious non-compliances", took a "generally pro-forma approach in his reports indicating compliance by Star, even while SLED continued to identify non-compliances" and he ultimately accepted under cross-examination that it "may be the case" that his opinions are not "a reliable indication of whether or not STAR is meeting the police's requirements".
6. The Respondent further submitted that Mr McNamara's methodology or approach to the required reporting was insufficient. He produced reports for each course on 9 March 2023 in response to a s 39O notice issued by SLED under the SI Act, but admitted under cross-examination that the reports for courses SLC058 - SLC076, which were "virtually identical" to each other, had been created by him only after receiving the notice from SLED, and were not the contemporaneously recorded reports he was required to prepare as part of his compliance role.
7. I accept the Respondent's submissions that Mr McNamara was entirely deficient in his role as Compliance Consultant for the Applicant under the Interim Regime. His evidence demonstrated that he was consistently unable or unwilling to identify non-compliance by the Applicant, and his own audit practices were deficient. In particular, he failed to comply with the terms of his remit to prepare compliance reports for the Interim Regime at regular intervals. Instead, he created numerous compliance reports after receiving a compulsory notice from SLED for those reports and submitted them as being the contemporaneous reports required by the Interim Regime, rather than disclosing to SLED that only four such reports existed and that the rest had been generated after the request for such documents had been made.
8. As submitted by the Respondent, however, his deficiencies cannot be attributed to the Applicant.
9. The evidence demonstrates that the Applicant did "engage a suitably qualified, independent VET Compliance Consultant, who was to propose a compliance plan for SLED's approval; implement the approved Compliance Plan; and conduct the SLED Pre-Enrolment Assessment for each person seeking to participate in any SLC". The fact that the Compliance Consultant was deficient in the role he undertook does not detract from the Applicant's compliance with that aspect of the Interim Regime.

Conditions

1. As outlined above at [542], the Respondent submitted that the Applicant had failed to comply with the relevant conditions of the Interim Regime during 9 separate SLCs conducted between 6 December 2021 and 20 January 2023. There were an additional 7 SLCs which were audited in which no non-compliances were identified by SLED, and an additional 9 SLCs which were not audited. The Respondent relied entirely on the audit reports and associated materials attached to Ms Burge's affidavit.
2. The Respondent chose not to make submissions on each of the separate challenges made by the Applicant to the findings in the audit reports. The Respondent submitted the audit reports, which were prepared by SLED auditors "who specialise in assessing compliance with the conditions", were reliable evidence of the Applicant's non-compliance with the conditions. The Respondent also submitted that the Applicant was ultimately responsible for any non-compliances by a trainer it engaged.
3. The Applicant submitted that the audit reports did not prove non-compliance because: 1. the auditors had discretion whether to make a finding of compliance or non-compliance; 2. the audits placed pressure on the trainers, which impacted their performance; 3. the specific findings in respect of each of the SLCs audited as non-compliant were inaccurate, or the concerns identified had been rectified; and 4. Mr McNamara provided a contrary opinion.

Condition 4

1. The audit reports included findings of non-compliance with Condition 4 by Mr Smith and Mr Stoodley for SLC053, SLC054, SLC062 and SLC074.
2. Condition 4 of the Conditions of Approval requires: "The Approved Organisation must comply with the VET Quality Framework."
3. The VET Quality Framework is outlined at Chapter 4 of SLED's NSW Security Licence Course Conditions of Approval as including: "a) The Standards for Registered Training Organisations b) The Australian Qualifications Framework c) The Fit and Proper Person Requirements d) The Financial Viability Risk Assessment Requirements e) The Data Provision Requirements"
4. The Respondent submitted that: "The VET Quality Framework is defined in s 3 of the National Vocational Education and Training Regulator Act 2011 (Cth) (NVETR Act) and includes any "Standards for NVR Registered Training Organisations" made pursuant to s 185 of the NVETR Act. The present version of these standards is the Standards for Registered Training Organisations (RTOs) 2015 (Cth) (2015 RTO Standards)."
5. I accept that submission. Under cross-examination Ms Byrnes agreed that the non-compliances with Condition 4 were concerned with clause 1.8 of the 2015 RTO Standards, which provides: "Assessment 1.8. The RTO implements an assessment system that ensures that assessment (including recognition of prior learning): a) complies with the assessment requirements of the relevant training package or VET accredited course; and b) is conducted in accordance with the Principles of Assessment contained in Table 1.8‑1 and the Rules of Evidence contained in Table 1.8‑2."
6. The Principles of Assessment described in Table 1.8-1 to the 2015 RTO Standards are "Fairness, Flexibility, Validity and Reliability". The Rules of Evidence described in table 1.8-2 to the 2015 RTA Standards are "Validity, Sufficiency, Authenticity, Currency". Ms Burge explained her understanding of clause 1.8 as: "It's STAR's responsibility to ensure that the approved trainers are implementing and conducting assessments consistently and reliably and deeming competence and it's irrespective of the interpretation…"
7. Under cross-examination, Ms Burge explained her understanding that Condition 4 requirements included "reliability", and that if a student had not completed "all of the observation checklist points" in a particular assessment "the outcome of competency is not reliable". In her view, every instance of "non-compliance" by a trainer would demonstrate that the Applicant had failed to comply with the VET Quality Framework. She made no distinction between the assessment system implemented by an RTO, and the individual assessments marked by trainers.
8. I note that the National Vocational Education and Training Regulator Act 2011 (Cth) and the 2015 RTO Standards are Commonwealth instruments, compliance with which is regulated by the Australian Skills Quality Authority (ASQA). SLED has no role in regulating compliance with national VET standards. ASQA separately audited the Applicant's compliance with the national VET standards between June and August 2021 and finalised its report into that audit on 3 September 2021.
9. I place no weight on Ms Burge's evidence or the auditors' findings with respect to Condition 4 of the Applicant's Conditions of Approval on the basis that the question of whether or not the Applicant has complied with the national VET Quality Framework is not an issue for determination in these proceedings. The issue with respect to this allegation is whether or not the Applicant complied with the conditions of the Interim Regime.

Auditors' discretion

1. Under cross-examination, Ms Burge was asked whether the SLED auditors had any discretion when observing delivery of SLCs to withhold from making findings of non-compliance, even when non-compliance was observed. She agreed there was such discretion, in limited circumstances where new assessments or new courses had been implemented: "…They've only just been given the assessments, you know, there'll be - they've got to - there's a lot of assessments, there's four clusters, 29 assessments. You know, to be handed that and deliver them, you know, and the interpretations and stuff. So we educate them, help them. There was noncompliances but then we give them the feedback and then we'll come out again a second time, just to check that, you know, they've, you know, changed their approach on it and understanding and yeah. So we'll come out two or three times to help them. …Well I wouldn't say no offence is being committed but it's unreasonable for us to, you know, be recording - it still gets recorded. We still wrote down, it was reported on a report, an audit report, the findings, and then we just, the advice given, but there's no further action on it. … KING: And if that is far, it would be, as I understand it - and correct me if I'm wrong - the position of SLED would be that a criminal offence is committed in those circumstances but no action would be taken? BURGE: Yeah, we were very clear on it. And then, when we did start actually auditing, we told them before we went out that any future audits then will be audited in accordance, like official - made official."
2. Ms Burge was careful to limit this discretion in her evidence to the specific circumstances where the Respondent had introduced new assessments or courses, and was essentially allowing those being audited some "leeway" to be educated on their non-compliances or errors by the regulator, before negative actions would be taken by the regulator.
3. In her affidavit, Ms Burge referred additionally to "administrative issues of concern" in relation to many of the individual audits conducted, which were not specifically identified to the Applicant as non-compliances at the time. I accept that these administrative issues or recording discrepancies occurred, but do not give them any weight in the context of determining whether the Applicant was compliant with the Interim Regime. They were not classified by the auditors or SLED as non-compliances at the time and not notified, and it would be unfair and unreasonable to place any weight on them in the circumstances.

Pressure placed on trainers

1. Mr Smith and Mr Stoodley, as the Applicant's trainers, both gave evidence of the effect the pressure of auditing had on them as trainers. Mr Smith stated: "I am aware that I sometimes make mistakes, because nobody is perfect, but the amount of auditing has felt over the top and I feel that it has made my mental health go downhill."
2. Mr Stoodley also gave evidence that repeated "non-compliances" were attributable to the pressure he was under from "consistent auditing".
3. I accept their evidence.

Mr McNamara's opinion

1. Mr McNamara's affidavit of 22 November 2022 gave his opinion that the Applicant: "…is delivering the Security Licence Course competently and in accordance with SLED's guidelines… …the quality of training providing by [the Applicant] is satisfactory. I have observed no impropriety and the assessments are conducted with integrity.
2. In his affidavit dated 1 June 2023, Mr McNamara further stated: "I do not have any concerns that students are being deemed competent or certified in courses where they have not achieved the outcomes required or where the trainer has not found them to be competent."
3. Mr McNamara also gave evidence that, in his view, SLED's auditors were: "…over-zealous over things of not great import…it seemed like one rule for [the applicant], because they were under the microscope, and no pressure on other RTOs to bring their facilities up to standard."
4. Under cross-examination Mr McNamara deflected and minimised the Applicant's conduct when asked about their non-compliances, and was unwilling to give an opinion as to whether certain conduct was serious or not, stating "It's a concern. I won't say it's a serious concern". He clearly expressed to the Tribunal that he operated as a Compliance Consultant for the Applicant, not SLED. His responses demonstrated a lack of impartiality and a negative attitude towards SLED as the Applicant's regulator, and its efforts at monitoring and enforcement: "If they're that bad, why don't they just close them down. The auditors were overzealous. They were nitpicking."
5. The Respondent submitted: "…the Tribunal can place no reliance on Mr McNamara's opinions as a supposedly independent expert in vocational education, especially his opinions as to Star's compliance with its Conditions of Approval, save where his opinions are supported by independent, contemporaneous documentary evidence."
6. Given the findings I have made in relation to Mr McNamara's evidence above at [557], I agree, and place no reliance on Mr McNamara's opinion as to the Applicant's compliance with its Conditions of Approval.

Criminal element

1. The Applicant submitted that because s 27A(3) of the SI Act made a failure to comply with the Conditions of Approval a criminal offence: "Having regard to the wide variety of conditions that might be imposed by the Commissioner on an approval, and the variety of circumstances in which the offence might be committed intentionally or inadvertently, and from time to time or continually, the offence provision cannot reasonably be construed as creating an absolute liability offence. It follows that the mental element for the criminal offence of failing to comply with a condition contrary to s 27A(3) requires, at least, the absence of an honest and reasonable but mistaken belief in a set of facts which if true would mean there was compliance[: Proudman v Dayman (1941) 67 CLR 536]. … Non-compliance with a condition is thus not demonstrated in any particular instance unless honest and reasonable mistake of fact is excluded. A corollary is that an audit feedback report cannot evidence non-compliance with a condition where that mental element has not been considered."
2. The Applicant's submissions criticised the auditors' approach to finding "non-compliances" with the Conditions of Approval in circumstances where the mental element for the criminal offence at s 27A(3) of the SI Act was not considered. The Applicant submitted that Ms Burge's evidence demonstrated that this was occurring: "Ms Burge's evidence made it plain that the Commissioner does not take any rigorous or robust approach to her consideration of such offences, and her enforcement approach erroneously treats a failure to comply with a condition as an offence of absolute liability with no mental element. Although Ms Burge initially said she treated the offence as one that requires the exclusion of honest and reasonable mistakes of fact, she then said "[w]e wouldn't find compliance" where an honest and reasonable mistake appeared to have occurred, demonstrating an enforcement approach consistent only with absolute liability, which to her knowledge is the practice of SLED generally in administering the Act."
3. Based on Ms Burge's evidence under cross-examination on this issue, my review of the audit reports and audit feedback reports and the caution letters issued to the Applicant and the Applicant's trainers (as annexed to Ms Burge's affidavit), I accept this submission.
4. The Respondent submitted: "…it is the conduct engaged in by Star that is relevant, not whether or not there has been a contravention of the SI Act proved to the criminal standard. The status of a requirement as an offence provision does not have the effect that the provision imposing the condition has no other work to do. Outside of the criminal context, non-compliance with a Condition is simply non-compliance; no question of honest and reasonable mistake of fact arises. That is consistent with Ms Burge's evidence about the Commissioner's approach. It is also consistent with the Tribunal's observation that the Tribunal can find non-compliance without criminality."
5. I agree with the Respondent's submission in relation to the findings I need to make in these proceedings, but this does not engage with the Applicant's submission that SLED's auditors appear to be approaching the issue of whether there has been compliance or non-compliance with a Condition of Approval, and issue criminal cautions under the Fines Act, without considering (or appropriately considering) the mental element of the criminal offence. Despite their submission that "it is the conduct engaged in by Star that is relevant, not whether or not there has been a contravention of the SI Act proved to the criminal standard", the Respondent chose to rely on the auditors' opinions, as contained in the audit reports and audit feedback reports, rather than engaging directly in their submissions with the evidence before the Tribunal of the "conduct engaged in by Star", and what actually occurred during the audited courses.

SLC053

1. SLC053 ran from 6 to 24 December 2021. Audits were conducted on site by Ms Sheridan Zhang, Ms Diane Brown and Ms Wendy Au on 14 and 17 December 2021.
2. Ms Zhang prepared an audit feedback report on 5 January 2022 which was provided to Mr Malik on 10 January 2022. In that report, Ms Zhang found that, on her observation, the trainer did not comply with Conditions of Approval 3, 4, and 13. This was based on her observation of Assessment Task 12, conducted by Mr Smith. The Audit Feedback Report noted that on 14 December 2021: "Corrective action was taken and implemented at audit, after discussion with SLED auditors regarding - Authority to search persons."
3. I accept that the Applicant had rectified those non-compliances identified by Ms Zhang, during the audit process. Ms Au's evidence under cross-examination was that she had audited SLC053 as "nil noncompliance", according to her official notebook containing notes of that audit. She agreed that she had expected there to be an audit feedback report of her findings, but these were not included in the report prepared by Ms Zhang for SLC053.
4. On 10 January 2022 Ms Zhang, on behalf of the Respondent, issued Mr Smith with an official caution for failing to comply with the Conditions 3, 4, and 13 of the Conditions of Approval in SLC053, as outlined in the audit feedback report: "I officially caution you under s 19A(1) of the Fines Act 1996 for this offence under section 27A(3) of the Act. A record of this official caution will be kept by the NSW Police Force. While I do not propose to take any further action in relation to the offences at this stage, section 19B of the Fines Act 1996 provides that giving an official caution does not affect the power to take further action in the future. You must ensure that you comply with the Act and the Regulation including the condition on your Class 2D licence (refer to Chapter 13 of the Security Licensing & Enforcement Directorate NSW Security Licence Course Conditions of Approval). Failure to comply with your licence conditions is an offence under section 30 of the Act (maximum penalty 100 penalty units or imprisonment for 6 months, or both)."
5. On 10 January 2022 Ms Zhang, on behalf of the Respondent, issued Mr Malik with an official caution for failing to comply with Condition 7 of the Conditions of Approval, based on Mr Smith's non-compliance.

SLC054

1. SLC054 ran from 10 January to 28 January 2022 at the Applicant's Granville campus and was audited by Jason Thomas, Sheridan Zhang and Diane Brown on site on 18 January 2022 and 27 January 2022. A desk audit was also conducted.
2. The audits identified non-compliances by trainer, Mr Stoodley, in his delivery of SLC054. Specifically, his failure to play the role of "unauthorised person" and his changes to the set-up of the simulation were contrary to those prescribed in the assessment instructions, constituting a non-compliance with Conditions 3 and 4. Mr Stoodley's evidence was that at the time of this audit he discussed the non-compliances with SLED auditors on-site, took their feedback onboard and "implemented that feedback as part of the ongoing improvement process". The desk audit identified incorrect marking of the observation checklist by Mr Stoodley and a failure by the Applicant to advise of student transfers from SLC054 to SLC055.
3. On 9 February 2022 Mr Stoodley was issued with an official caution for failing to comply with Conditions 3 and 4 of the Conditions of Approval in SLC054. On 10 February Mr Malik was issued with an official caution for failing to comply with Condition 7 of the Conditions of Approval, based on Mr Stoodley's non-compliance.

SLC055

1. SLC055 ran from 31 January 2022 to 18 February 2022 and was audited on 17 and 18 February 2022 by Sheridan Zhang, Diane Brown, Jason Thomas and Wendy Au.
2. The audit identified a non-compliance with Condition 4 of the Conditions of Approval, on the basis of an "inconsistent and unrealistic setup of simulated workplace environment due to simulation being conducted within the confines of a single room". According to the audit feedback report prepared by Sheridan Zhang, similar concerns had been raised in other courses conducted by the Applicant. Mr Smith advised the auditors at the time that the assessment was conducted inside the assessment room, due to the flow of people from another classroom. The auditors required a "rectification strategy" to be provided to SLED by 7 March 2022.

SLC056

1. SLC056 ran from 21 February 2022 to 11 March 2022 and was audited on site by Diane Brown and Wendy Au on 28 February 2022. The audit identified non-compliance with Condition 3 of the Conditions of Approval on the basis that "Mr Stoodley did not ensure the simulation was conducted in a realistic manner and in accordance with the assessment instructions", primarily due to a failure to provide signage for the simulation.
2. The auditors identified non-compliance with Condition 7 on the basis of Mr Stoodley's failures regarding Condition 3, and Condition 12 because the training and assessment was not delivered in accordance with the submitted session plan.
3. Mr Stoodley gave evidence that he received feedback from SLED auditors regarding the lack of signage in the simulation and since receiving that feedback, he ensured that such signs were displayed. He also gave evidence that while he does his best to stick with the session plan, the courses can sometimes run differently depending on the students.

SLC057

1. SLC057 ran from 14 March 2022 to 1 April 2022 and was audited by Jason Thomas and Tony Vulic on 22 and 23 March 2022. The audit identified non-compliance with Condition 2 of the Conditions of Approval on the basis of Mr Smith's failure to comply with the Code of Conduct.
2. The auditors observed Mr Smith making a comment to the effect of "who looks disabled?" when allocating simulation roles, and then swearing at students and unnecessarily using offensive language.
3. Mr Smith accepted that he had engaged in the conduct observed by the auditors and acknowledged it was inappropriate, and was an emotional reaction. He explained the context: "I was pushed over the edge by a student, right. We were in a highly stressful time. We were being highly audited at the time and he was making me look like I couldn't do my job right. …When you have an emotional reaction, you blurt out what comes into your head."
4. Mr Smith's evidence was that his stress levels from auditing at the time were "ruining [his] marriage".

SLC062

1. SLC062 ran from 13 June 2022 to 1 July 2022 and was audited by Tony Vulic and Diane Burge on site on 16 June 2022. The audit found non-compliance with Conditions 3 and 4 of the Conditions of Approval on the basis that Mr Smith failed to adequately assess students. Specifically, that during the simulation assessment he initially passed a student who did not keep people away from the "suspicious item", and another student who whispered rather than speaking clearly.
2. Mr Smith's evidence was that he thought his assessments were appropriate because the students maintained situational awareness and performed the roleplay appropriately.
3. The Respondent submitted that, based on Mr Smith's evidence, it appeared the Applicant did not accept that the finding of non-compliance was justified. The Applicant's submissions make clear that Mr Smith did not consider the finding justified, but are otherwise silent on that issue.
4. On 28 June 2022 Mr Smith was issued with an official caution for failing to comply with Conditions 3 and 4 of the Conditions of Approval in SLC062.

SLC069

1. SLC069 ran from 26 September 2022 to 7 October 2022 and was audited on site by Sheridan Zhang and Sharon Kafoa on 21 September 2022. The audit found non-compliance with Condition 4 of the Conditions of Approval on the basis that Mr Stoodley had marked 3 students as "satisfactory" when they hadn't completed an escort specified in the simulation. The audit report noted "Corrective action take at time of audit".
2. Mr Stoodley's affidavit evidence was: "Sheridan Zhang (the SLED auditor) and I had a difference in our understanding about how the escort in this role should be completed. I thought that the escort could be completed by the students in parts, because the students swap roles in the role plays. However, Sheridan thought that each student should complete a full escort in one go. After discussing the role play with Sheridan, I arranged for three of the students to complete the entire escort and to be re-assessed on that. In my opinion, the way that some of the role plays and assessment tasks are described in the course material leaves some room for flexibility and interpretation and I thought I was running the role play within the framework. When I run role plays like this, I also draw on the real life experiences that I gained from working 20 years in the security industry."
3. Ms Zhang, it appears, was initially unsure herself whether there was any non-compliance arising from this observation, and contacted Ms Burge to confirm this while undertaking the audit.
4. In a similar vein to the submissions made with respect to SLC062, the Respondent submitted that Mr Stoodley's evidence demonstrated the Applicant "does not accept that there was non-compliance". The Applicant's submissions make clear that Mr Stoodley had a different opinion to the auditor regarding how the assessment should be conducted with reference to the course material, and Ms Burge "indicated that the simulation did not need be conducted in a particular, prescriptive manner and appeared to acknowledge that there is some level of discretion in how a student can demonstrate competency to the trainer", but were silent on the issue of whether the finding of non-compliance was justified.

SLC073

1. SLC073 ran from 5 December 2022 to 16 December 2022. Although not audited, SLED recorded a non-compliance of Condition 9 of the Conditions of Approval because the course approval request was submitted later than 10 days before the commencement of the course, on 23 November 2022. The course was nevertheless approved by SLED.

SLC074

1. SLC074 ran from 9 January 2023 to 20 January 2023 and was the subject of a desk audit which recorded non-compliance with Conditions 3 and 4 of the Conditions of Approval, on the basis that Mr Smith marked some students' answers to an assessment as "satisfactory" when they did not align with the assessor marking guide, and Mr Stoodley did not record an outcome for one student's response despite marking them as competent overall.
2. Mr Smith and Mr Stoodley conceded mistakes in their marking but did not accept all the findings of non-compliance, specifically where the content of the answers matched the assessor marking guide, but used different wording. Mr Stoodley stated: "ln relation to the above, my understanding is that the SLED Approved Assessor Marking Guide ls a guide and that there is some flexibility for answers to use different words or have a slightly different focus and still be correct. If a student wrote down an answer that was word-for-word what was in the Marking Guide, then there would be a concern that that student was not completing their assessment honestly."
3. Ms Byrnes was cross examined on the particular answers found to be non-compliant by the auditors. She conceded that some of the questions were open to misinterpretation by the students and stated that "feedback that some questions need to be rephrased to be clearer… is implemented as part of a continuous improvement project", and that some answers were open to interpretation.
4. On 9 March 2023 cautions were issued to both Mr Smith and Mr Stoodley for failing to comply with Conditions 3 and 4 of the Conditions of Approval in SLC074.

Other requirements

1. There was no submission that the Applicant failed to comply with the Interim Regime requirement that it "limit the personal involvement of Mr Malik in training on the SLC, and his contact with students", and "conduct only one SLC at a time". With respect to these requirements of the Interim Regime, I therefore find that there was no non-compliance.

Conclusion

1. I have found that on the basis of the evidence before the Tribunal, the Applicant complied with the Interim Regime requirement to "engage a suitably qualified, independent VET Compliance Consultant, who was to propose a compliance plan for SLED's approval; implement the approved Compliance Plan; and conduct the SLED Pre-Enrolment Assessment for each person seeking to participate in any SLC". That person was Mr McNamara.
2. There were no submissions and no evidence of non-compliance with the Interim Regime requirements for the Applicant to "limit the personal involvement of Mr Malik in training on the SLC, and his contact with students" and "conduct only one SLC at a time".
3. For the reasons discussed above at [557] and [583] I place no weight on Mr McNamara's opinions about the Applicant's compliance with the Conditions of Approval. I accept that both Mr Smith and Mr Stoodley felt pressure from the regular and intensive auditing conducted by the Respondent during the Interim Regime but consider this irrelevant to whether or not the Applicant was compliant with the Interim Regime, and so I give that evidence no weight.
4. The evidence demonstrates that during the Interim Regime, the Applicant delivered 25 Security Licence Courses. Of those 25 courses, SLED audited and found "non-compliances" in 8 courses, found a "non-compliance" in 1 course it did not audit, audited and found no "non-compliances" in 7 courses, and did not audit a further 9 courses.
5. Ms Burge's evidence of the discretion afforded to the auditors, that it was limited to circumstances where a new course was introduced, was not supported by the objective evidence of the audit reports and audit feedback reports. It was also clear from Ms Burge's evidence under cross-examination that the auditors' consideration of the Conditions of Approval essentially treated non-compliance as an offence of strict liability.
6. The evidence given by Ms Au under cross-examination, and the documentary evidence of the audit reports and audit feedback reports, supports a finding that the auditors conducting the audits had discretion in determining whether the manner in which the Applicant's trainers conducted aspects of the particular SLC they observed amounted to a "non-compliance", and also had discretion in determining whether to provide trainers with feedback during the audit, education and training, issue them after the audit with a criminal caution, and determine what penalty should be imposed in relation to that criminal caution.
7. Using SLC053 as an example, based on Ms Au's evidence in the context of the audit feedback report prepared by Ms Zhang, I accept that the audit feedback report for that SLC is not an accurate representation of the auditors' findings. I find that the SLC auditors had a broad discretion to make and record their findings, and that their opinions differed as to whether the Applicant's trainer were "compliant" or "non-compliant" in the activities they observed during the audit.
8. Considering all of the audit reports and audit feedback reports provided to the Tribunal, it appears that a very narrow view was taken by some auditors that any deviation from the detail prescribed in model assessment marking guides, or simulations described in the assessment instructions, constituted a "non-compliance" with the Conditions of Approval for that trainer, and warranted a criminal caution under s 27(3) of the SI Act, and this was supported by Ms Burge's views on compliance. Another auditor observing the same simulation assessment being conducted, or reviewing the same assessment answers, could consider there was no non-compliance at all, which occurred in the audit of SLC053 in contrasting Ms Au and Ms Zhang's observations and findings. Based on the evidence before the Tribunal I consider it likely that another auditor observing the same simulation or reviewing the same assessment answers could decide, based on their own discretion, to give feedback to the trainer during the audit, or some education and training, and while classifying it as a "non-compliance" in their written report, not issue a criminal caution. It appears that the auditor's determination of whether there was a "non-compliance" depended very much on the auditor, and whether the trainer had a history of past findings of non-compliance, which were listed in each audit report observation.
9. In circumstances where the auditors had such broad discretion, and such varying views on their observations, I do not accept the Respondent's submission that the audit reports are reliable evidence of the Applicant's non-compliance with the Conditions of Approval. Each audit report is evidence only of that report's author's opinion of whether the activities they observed, or the documents they reviewed, complied with their understanding of the Conditions of Approval. The extent of their personal understanding of each of the relevant Conditions of Approval, and how they are to be applied to both the individual trainers and the Applicant, is unknown.
10. I also note that although some "non-compliances" were found by auditors in relation to 8 of the courses delivered during the Interim Regime, that is less than one-third of the courses conducted in that period. Another one-third of the courses delivered were audited and found by SLED to have no "non-compliances". I do not accept the submission that because some "non-compliances" with the Conditions of Approval were found by some auditors in a minority of courses audited, the Applicant was thereby non-compliant with the whole of the Interim Regime.
11. In my view there is insufficient evidence before the Tribunal to make a finding that the Applicant did not comply with the Conditions of Approval during the Interim Regime. I am not satisfied that the Applicant did not comply with the Interim Regime.
12. I therefore find that Allegation 7 is not proven on the evidence before the Tribunal.

Allegation 8: the Applicant failed to follow COVID-19 safety measures

1. Allegation 8 is set out at [25] and [26] above. The Respondent alleged that during the First Aid Course starting 29 July 2020, the Applicant did not observe mandatory social distancing requirements in breach of COVID-19 safety measures, and that as a result of this incident, the Applicant failed to provide a safe and comfortable environment for students in the context of COVID-19 safety measures, in breach of Condition 8 of its Conditions of Approval.
2. The Respondent submitted that clause 7 of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020, as at 29 July 2020, made under the Public Health Act 2010 (NSW), required occupiers of certain premises, including educational facilities, to have and comply with a COVID-19 Safety Plan. Without expressly submitting what, in fact, were the "mandatory social distancing requirements" and the "COVID-19 safety measures" applicable, the Respondent submitted that Mr Malik accepted that these were that "people had to be 1.5 meters apart; and there could only be one person per four square meters in an area", and that "Mr Malik accepted that students were closer than 1.5 metres".
3. The Applicant submitted that: "Under clause 8(1) of the Public Health Order, the Minister directed that a person who is the occupier of premises must not allow persons on the premises if the size of the premises is insufficient to ensure there is at least 4 square metres of space for each person on the premises. Significantly, that restriction did not apply to particular gatherings, including "a gathering at … [an] educational institution … that is necessary for the normal business of the … institution …"."
4. The Applicant submitted that the First Aid Course was clearly "a gathering" at an "educational institution" that was "necessary for the normal business" of the institution, so the 4 square metre direction was not applicable. Nevertheless, as a matter of good policy or best practice, Mr Malik took steps to assist students in social distancing in the classroom.
5. The Applicant submitted that, in addition to the social distancing requirement relied upon by the Respondent not being applicable, the police officers who attended the premises on 29 July 2020 found no breaches of the COVID-19 guidelines, there were no breaches after the police left the premises, and there was no breach of Condition 8 of the Conditions of Approval.

What occurred on 29 July 2020

1. Two police officers attended the Applicant's Granville campus on 29 July 2020, following an anonymous call to Crimestoppers, which was on the computer-aided dispatch (CAD) system as: "CORONA VIRUS RELATED**?BREACHING COVID19 GUIDELINES, SO MANY PEOPLE IN 1 SMALL ROOM, NO SOCIAL DISTANCING AA, NFI?**** INFORMATION RX VIA CRIMESTOPPERS ON LINE 29/7/2020 09:35****?"
2. Between 29 July 2020 and 1 August 2020, those police officers made a record of the visit on the CAD system which stated: "BUSINESS SPOKENT TO AND INSPECTED NIL BREACHES IDENTIFIED"
3. Mr Malik's evidence was that at the time, his understanding was that the Applicant was required to comply with a number of restrictions and social distancing requirements due to the Covid-19 pandemic. He arranged for the walls in the classrooms to be removed to make more space and allow the students to spread out. When police attended the Applicant's campus on 29 July 2020, they observed the students participating in a CPR demonstration in the First Aid course and told him that, while the room was big enough and the students sitting at the desk were compliant, they should not be standing close together during the CPR demonstration. Accordingly, Mr Malik arranged for some students to leave the classroom while the CPR demonstration was taking place, and spoke with the trainer to request that the CPR practical demonstration be delivered in small groups. This took place with the knowledge of the attending police officers.
4. The Respondent submitted that Mr Malik instructed students that "Police is here and you guys are too close to each other, please go upstairs, about five, six of them go upstairs and do group by group", but did not explain that the police had suggested some students go temporarily upstairs, and that some of the students "understandably understood that they were being instructed by Mr Malik to hide from the police". The Respondent also submitted that once the police left, students returned to the classroom and social distancing requirements were not observed.
5. The Respondent referred to evidence from Mr A and Mr K, two students who attended the First Aid Course on 29 July 2020. Both provided affidavits in these proceedings and were cross-examined at hearing. Mr A's evidence was that though students tried to maintain some distance it was "not one-and-a-half metres from each other", that when he returned to the classroom the positions of the chairs had been changed "to follow the procedure of the COVID back then", that the seating had been spread out, and that students were given verbal instructions to spread out so that they were socially distanced. Mr K's evidence was that the classroom was arranged in a U-shape, and that the students were spaced out from one another.
6. Another three students, who I will refer to as Mr T, Mr Y and Mr N, provided information to SLED via witness statement, telephone and interview, but did not provide affidavits in these proceedings. In an interview with SLED, Mr T stated: "I think we were following the social distancing. I'm not sure. People were sitting this distance on each table. Yes. But after the police went, we were extra. They were extra careful. Even if we come closer, they told us not to."
7. The Respondent submitted that: "Another student, Mr [N], provided a statement to police (AR16, p 1601) in which he stated that after the police left he "didn't notice any changes" to the classroom, and there were "the same number of people" (AR16, p 1604, [17]). The Commissioner accepts that Mr [N] did not give oral evidence to the Tribunal and so his evidence can only be given limited weight."
8. I give no weight to the information provided to SLED by those students who did not provide affidavits in these proceedings and were not otherwise called to give evidence.
9. The evidence of Mr A and Mr K, and the police CAD records, corroborates Mr Malik's evidence of what occurred on 29 July 2020, which I therefore accept.

Condition 8

1. The Respondent submitted that in addition or in the alternative to a finding that the Applicant had failed to follow COVID-19 safety measures, the Applicant: "…failed to provide a safe and comfortable environment for students in the context of Covid-19 safety measures, in breach of Condition 8 of its Conditions of Approval. This breach is outlined in SLED's Investigation Report on SLC003 at AR16 pp 620-643. Causing students to feel that they were being instructed to hide from police cannot be dismissed as trivial."
2. The Applicant submitted that as the First Aid Course was not part of the Security Licence Course, Condition 8 of the Applicant's Conditions of Approval was not relevant. The Applicant relied on the terms of the Conditions of Approval to demonstrate that the First Aid Course was separate to, and not part of, the SLC, and that the "Venue requirements" in Chapter 7 of the Conditions of Approval, stated to have been breached by the Applicant, only applied to the actual SLC course.
3. The Respondent submitted that the First Aid Course was one of the competency requirements for a Security Licence, and a pre-requisite to the four core "clusters" of the SLC. I agree that it was a pre-requisite and competency requirement for undertaking the SLC, but this does not make it part of the SLC. I agree with the Applicant that the First Aid Course was not part of the SLC and was therefore not subject to the same requirements and conditions as the SLC, including Condition 8.
4. SLED's Investigation Report on SLC003 was produced by the Respondent in response to a summons issued in May 2023. The Applicant submitted: "639. …In the context of the First Aid Course, the report asserts that the basis for non-compliance with the condition is that Mr Malik "failed to communicate to students that they were being asked to go upstairs following advice from Police onsite", and "[i]f Mr MALIK had have communicated this, students would not have regarded his actions; and their participation, as adverse". The suggestion in the report seems to be that because some students erroneously thought that Mr Malik's actions (his compliance with police advice) "as adverse", their student environment was not "comfortable", and the students would have felt "comfortable" if only someone had told them that the reason Mr Malik had asked students to go upstairs was because a police officer had asked him to ask students to go upstairs. Or, as refined during cross-examination, the suggestion seems to be that because one student erroneously thought that Mr Malik had told him to hide from police, that student was not "comfortable", and the applicant as an approved organisation had ipso facto breached condition 8. 640. It is now accepted, however, that Mr Malik did not tell any students to hide from police. It is also accepted that he did tell students that police were present when he told them to go upstairs. This appears, again, from the Commissioner's own investigation report: a. "[Mr N], [Mr A], [Mr K] and [Mr T] confirm Mr MALIK told students to go upstairs and wait because Police were onsite." b. "MALIK gave evidence that he directed students to go upstairs as a result of feedback from the two Police Officers who were carrying out a business inspection.""
5. The Respondent did not explicitly engage with the Applicant's submissions on this issue in its written or oral closing submissions, save as to concede that: "Significantly, and unlike each other allegation, the Commissioner accepts that if this were the only matter proved against Star in this proceeding it would not be of sufficient individual seriousness to warrant revocation of Star's master security licence, though that does not mean it would warrant no action."
6. The particular alleged by the Respondent, that the Applicant caused students to feel that they were being instructed to hide from police, was originally expressed in opening submissions by the Respondent as an allegation that Mr Malik had deliberately instructed students to hide from police during the police visit on 29 July 2020. The production under summons of SLED's Investigation Report on SLC003, which supported Mr Malik's version of events that this had not occurred, resulted in the Respondent's withdrawal of that particular. By closing submissions, the Respondent instead relied on its evidence from students about "being instructed to hide" to support submissions about a "comfortable environment for students", whilst acknowledging that the allegation was not sufficient to support a finding that the Applicant was not a fit and proper person.
7. While not "trivial", causing students to feel a certain way is not sufficient evidence that the Applicant is failing to provide a safe and comfortable environment for those students.
8. I agree with the Applicant's submissions that there is insufficient evidence before the Tribunal to make a finding that the Applicant failed to provide a "safe and comfortable environment for students in the context of COVID-19 safety measures". Even if there was such evidence, I agree with the Applicant's submission that compliance with Condition 8 is not relevant.

Conclusion

1. I agree with the principles submitted by the Respondent, with reference to Metleg v Commissioner of Police, NSW Police Force [2023] NSWCATAD 17 at [75] (and the cases there cited) that a disregard for regulatory schemes aimed at ensuring public safety is relevant to the grant of security licences, and a disregard for public safety measures goes both to the fitness of the Applicant, and to whether it is in the public interest for Applicant to hold a security licence. However, the evidence in these proceedings in relation to Allegation 8 does not support the Tribunal finding that there has been such a disregard for public safety.
2. I find that the evidence before the Tribunal does not support a finding that the Applicant failed to follow COVID-19 safety measures, or that the Applicant failed to provide a safe and comfortable environment for students in the context of Covid-19 safety measures, or that it was in breach of Condition 8 of its Conditions of Approval.
3. I therefore find that Allegation 8 is not proven on the evidence before the Tribunal.

Allegation 9: attempt to pay a witness to give false evidence

1. Allegation 9 is set out at [27] above. The Respondent alleged that Mr Malik made an "improper offer" via an intermediary, Bob Lewis, to pay money to Paul Lewis, in an attempt to get Paul Lewis to provide false evidence to the Tribunal. That false evidence was intended to be to the effect that Paul Lewis conducted the Raymond Terrace Course, which was contrary to Paul Lewis' previous evidence that he had not conducted the Raymond Terrace Course.
2. The Respondent alleged that: 1. on or around 27 September 2023, Mr Malik met with Bob Lewis and proposed that he (Mr Malik) would pay Paul Lewis an amount of money in return for Paul Lewis providing a signed document confirming that he did take the Raymond Terrace Course from approximately September 2016 until October 2017. 2. Mr Malik asked Bob Lewis to convey that offer to Paul Lewis; and 3. Bob Lewis subsequently met with Paul Lewis on 4 October 2023 and conveyed to Paul Lewis that Mr Malik would pay Paul Lewis money if Paul Lewis wrote a letter saying the Raymond Terrace Course took place.
3. Evidence in relation to Allegation 9 was provided by Paul Lewis and Mr Malik, both of whom addressed this allegation in their affidavits and were cross examined at hearing. Both Mr Malik and Paul Lewis provided copies of text messages with Bob Lewis to the Tribunal. Additionally, Paul Lewis produced a video recording of the meeting he had with Bob Lewis, taken covertly (R50), which was the subject of extensive submissions as to admissibility at the hearing.
4. The Respondent provided the Tribunal with evidence of its attempts to serve Bob Lewis with a summons to give evidence in the proceeding. Those attempts were unsuccessful, and Bob Lewis did not actually give any evidence at the hearing.

Attempts to procure Bob Lewis

1. The Respondent's solicitors provided the Tribunal with affidavits of their attempts to locate Bob Lewis and serve him with a summons to attend to give evidence at the hearing. According to that evidence, the Respondent's solicitors were unable to obtain a residential or other address for service for Bob Lewis. The Respondent submitted that "all reasonable steps have been taken to find him and secure his attendance but without success" and that, on the basis of read receipts on text messages sent by the Respondent's solicitors, that "Bob Lewis is aware that the proceedings are on foot and that he is required to give evidence, but that he is either unwilling or unable to attend to give evidence".
2. The Applicant submitted that the Tribunal should find that Bob Lewis was "unwilling", rather than "unable" to give evidence, because if he was unable "he probably would have said as much in reply". This submission is based on a factual assumption which is not supported by any evidence, and is irrelevant to an issue for determination. The Applicant further submitted that, in the absence of Bob Lewis giving any evidence or appearing via summons at the hearing, "it would be unfair to give Paul Lewis's evidence relating to Bob Lewis any material weight", because: "Had Bob Lewis attended in response to the summons, and had the Tribunal refused to permit the applicant to cross-examine him, and had the Tribunal gone on to give material weight to Paul Lewis's evidence relating to Bob Lewis, there would have been a denial of procedural fairness from the practical injustice thereby occasioned to the applicant. In the events that occurred, the circumstance that it was Bob Lewis himself who refused to permit the applicant to cross-examine him rather than the Tribunal does not remedy that practical injustice. Procedural fairness "requires the avoidance of" practical injustice."
3. There may be a practical injustice to the Applicant in being unable to cross-examine Bob Lewis, but this is not an injustice which arises from any denial of procedural fairness to the Applicant. I accept the Respondent's evidence of the attempts made to locate Bob Lewis to serve him with a summons to attend to give evidence at the hearing, and the evidence that those attempts were unfruitful. I do not agree that Bob Lewis' absence from the proceedings means that it would be unfair to give weight to Paul Lewis' evidence about their conversations.

The introduction of the allegation

1. In Paul Lewis' second affidavit (R29) affirmed 19 October 2023, he provided evidence in response to Mr Malik's affidavit of 4 October 2023 (A25) about invoices and payments, which I have addressed above in relation to Allegation 2, and he also alleged the substance and detail of Allegation 9.
2. The Respondent initially relied entirely on Paul Lewis' account to make Allegation 9 against the Applicant, first raising the matter in correspondence to the Applicant, during the hearing, on 20 October 2023 (R30), and particularising it in correspondence of 3 November 2023 (A66).
3. Once notified of the allegation in the correspondence of 20 October 2023, Mr Malik prepared an affidavit of 23 October 2023 (R29) addressing Paul Lewis' affidavit evidence of Allegation 9.
4. During Mr Malik's cross-examination, on 23 October 2023, the Respondent made an application for summonses to be issued to Bob Lewis and Paul Lewis. It was as a result of that application that the Tribunal was first made aware that Paul Lewis had recorded a conversation with Bob Lewis, which he had recounted in his affidavit of 19 October 2023. Although initially described by the Respondent as an "audio recording", by the following day the Tribunal was informed that this was, in fact, a video recording which was taken without Bob Lewis' knowledge or permission.
5. I directed the parties to provide written submissions on the issue of admissibility of such evidence in the context of s 7 of the Surveillance Devices Act 2007 (NSW) and conducted a voir dire on 7 December 2023, following oral evidence given by Paul Lewis about the circumstances in which the recording was made, and cross-examination on that issue. Following that evidence and extensive oral submissions, over the Applicant's objections, I admitted the video recording as evidence in the proceedings (R50), finding: "In relation to the recording of the conversation between Bob and Paul Lewis I find that the recording was reasonably necessary for the protection of Mr Paul Lewis' lawful interests and therefore did not contravene section 7(1)(b) of the Surveillance Devices Act. To the extent that there is a discretion that then follows in terms of the admissibility of that recording, I am satisfied on balance that the probative value outweighs any unfairness that would result from the Tribunal receiving that recording into evidence."
6. The Applicant ultimately submitted that Paul Lewis' evidence was inherently unreliable and it should therefore be given no weight; and the Tribunal should find that the video recording "had no probative value" because it was "contrived" by Paul Lewis, with or without Bob Lewis' knowledge. The video recording was therefore submitted to be: "…not a safe, fair, or satisfactory basis upon which to make the very serious adverse findings sought by the Commissioner."

The evidence

1. I note that Mr Malik's affidavit on this issue was responsive to Paul Lewis', and made prior to both his and the Tribunal's knowledge that the conversation between Paul Lewis and Bob Lewis had been surreptitiously recorded by Paul Lewis.
2. Mr Malik's evidence was that he had contacted Bob Lewis and arranged to meet with him on 27 September 2023 in relation to recruitment of disability support workers for Alliance Rehabilitation Group Pty Ltd, a provider of the National Disability Insurance Scheme, of which Mr Malik was the director. Mr Malik had previous contracting arrangements with Bob Lewis. According to Mr Malik, during the course of that conversation, Bob Lewis asked Mr Malik about the Smart and Skilled program and they discussed Paul Lewis: "JM: I don't do Smart and Skilled anymore, not since 2019 BL: What happened? JM: Paul Lewis did one of the courses and that's the issue I have with Smart and Skilled. He did the training and got paid and now he is saying that he didn't do the training. BL: He got paid? JM: Yes. I've been informed that the money we paid him went to his son's account. BL: I'll speak with him. He does this with everybody. He did the same thing to me. He did the training in Melbourne, he got paid, then he wanted more money. JM: Don't need to discuss this with him because this matter is in the court now. BL: Did Paul provide anything? JM: Yes, he provided a statement and the statement is not even signed."
3. Paul Lewis' evidence in his affidavit affirmed 19 October 2023 (R29) was that he received a call from Bob Lewis on 29 September 2023 and arranged to meet with him on 4 October 2023. They met at Krispy Kreme Auburn on 4 October 2023 at 10.43am. There, Bob said the following to Paul Lewis: "Javaid's legal team have a statement from you that is not signed, and Javaid wants a letter to say that the training at Raymond Terrace was conducted."
4. Paul Lewis claims that Bob Lewis rubbed his fingers together, which indicated to him that: "I would receive money if I provided a letter [to] say that training at Raymond Terrace was conducted."
5. The conversation between Paul Lewis and Bob Lewis continued and was the subject of the video recording admitted as Exhibit R50. It is clear that the video is taken mid-conversation, and therefore does not record the entirety of the conversation between Bob Lewis and Paul Lewis. What is recorded is as follows: "BL: So, I'll send you through that. So that's basically what I'm doing, export/import, a lot of overseas connections. PL: You haven't spoken to Javaid in years. So he just rang you out of the blue? BL: Yeah he said oh can we meet alright, and I said yes, and I said, Javaid, what's it about? And you know the fuckin bullshit. What's it about? I'm a straight shooter, and uh, uh. Paul Lewis. I said I haven't heard from Paul in a while, but I have heard from him, we're mates. Alright, let's meet. So we met, yeah. But he's desperate. Fucking desperate. PL: ah well. So what he wants a letter and basically, he wants a letter and pay me some cash? BL: [nods] PL: fucking clown BL: yeah. But if you. If you're committed to a stat dec or something PL: yeah BL: right? He said his solicitors got. How you come into it, he said his solicitors have got a, SLED must have sent it to him, the solicitor, a statement from you. PL: Oh ok BL: But it's not signed. PL: Oh ok. Righto BL: You didn't sign it. PL: Oh ok BL: So whether its their statement from memory, I don't know, maybe over the phone, but anyway that's, yeah"
6. Later that afternoon, at 1.10pm on 4 October 2023 Paul Lewis and Bob Lewis had the following exchange via text message: "PL: Thanks for the coffee and the catch up mate It's been a few years mate I'll think about the Javaid offer too…. What do you reckon BL: It's up to you, I'll send you the certificate list now. PL: Ok What do u think $$ wise PL: Thanks Bob $40k is good plus a quid on to for you"
7. According to Paul Lewis' affidavit, Bob Lewis called him during that text exchange and they had the following conversation: "BL: Doesn't he owe you for three courses? PL: He hasn't paid me for two courses. I didn't do the course at Raymond Terrace. BL: Just add another one. How much is each course? PL: Ten grand a course BL: Add ten on top. Okay ask for $40,000"
8. Then via Whatsapp, Bob Lewis messaged Mr Malik at 2.17pm on 4 October 2023: "BL: Hi mate. Met with him today. BL: When are you back in Sydney? JM: Will be back 11 October 8 am in office JM: Any update BL: Yes he has made an offer. 30k for previous work and 10k extra, in total 40k. JM: He has been paid for work he done, don't worry what work he done, he done 3 courses he has been paid, All good Thank you BL: [thumbs up emoji]"
9. Bob Lewis and Paul Lewis then had an exchange via Whatsapp between 4.53pm and 5.11pm on 4 October 2023: "PL: Thanks Bob What did you say Javaid sent on what's app? BL: [Forwarded messages: "Any update" "Yes he has made an offer. 30k for previous work and 10k extra, in total 40k." "He has been paid for work he done, don't worry what work he done, he done 3 courses he has been paid, All good Thank you"] PL: Thank u"
10. On 9 October 2023 their conversation continued between 12.52pm and 1.34pm: "PL: Gday Bob Any word from Javaid ? He owes me money from the ACT course plus the Nowra course I didn't invoice him from Raymond terrace as he knows that it didn't go ahead. Check with him on what he needs I think you said a letter that the training went ahead, what else BL: Mate he is back in Sydney this Friday, he will call me in the middle for a meeting in the afternoon, I will see what he thinks and call you. PL: Ok mate"
11. Mr Malik's evidence was that on his arrival back in Sydney he spoke with Bob Lewis on 11 October 2023, "intending to progress the ARG opportunity", but this was delayed because these proceedings had commenced. Then on 20 October 2023 Mr Malik received an email from his solicitors forwarding Paul Lewis' affidavit of 19 October 2023. Mr Malik telephoned Bob Lewis and told him that he was going to give his number to his solicitors because Bob Lewis had been named in Paul Lewis' affidavit. He denied the Respondent's allegation, stating: "I never asked or intended Bob Lewis to talk to Paul Lewis about the course in Raymond Terrace or these proceedings. I never made any offer to pay Paul Lewis any more money. Paul Lewis has been paid everything he was owed. Every time Paul Lewis has demanded more money from me in connection with the course in Raymond Terrace, I have always rejected his demands."

Findings on the evidence

1. The Applicant submitted that Paul Lewis contrived his communications with Bob Lewis, to give the false appearance that Mr Malik used Bob Lewis to make a monetary offer to Paul Lewis, in return for Paul Lewis changing his evidence about the Raymond Terrace Course. The Applicant also submitted that the video recording was contrived by Paul Lewis, either with or without Bob Lewis' knowledge, for the same purpose.
2. The timing of the evidence as it was introduced to the Tribunal is significant. On 4 October 2023 (A25) Mr Malik responds to Paul Lewis' April 2023 affidavit (R12), with proof of the payments Mr Malik says he made to Paul Lewis for the Raymond Terrace Course, contrary to Paul's evidence that he did not conduct the course and was not paid. As discussed above in relation to Allegation 2, I have found that Paul Lewis' evidence on that issue was not believable, and Mr Malik's was supported by the documentary evidence which was available.
3. I infer on the basis that Mr Malik's 4 October 2023 affidavit was unlikely to have been taken, drafted, edited, finalised and affirmed by Mr Malik on that date that it was likely in the process of being drafted or finalised at the time that Mr Malik met with Bob Lewis a few days prior, on 27 September 2023. It is also probable, based on it being undisputed between the parties that an unsigned version of R12 was first served on the Applicant, that Mr Malik had not seen a signed version of Paul Lewis' affidavit at that time, or did not recall seeing it. This gives some explanation for Mr Malik's account of his conversation with Bob Lewis on 27 September 2023, where he refers to Paul Lewis' statement being unsigned. This consequently explains Bob Lewis' comments in the video recording about Paul Lewis' unsigned "stat dec".
4. On the basis of the issues I have identified above with reliability and plausibility in relation to both Paul Lewis' and Mr Malik's evidence across these proceedings, I give their accounts of verbal conversations, which are unsupported by corroborative witness evidence or objective documentary evidence, minimal weight. Due to Bob Lewis' absence as a witness, there is no corroborative witness evidence for either Paul Lewis' or Mr Malik's evidence of conversations on this issue. I therefore give the accounts of those conversations minimal weight.
5. Considering the documentary record of text and messages outlined at [675], [677], [678] and [679], I give those messages reasonable weight. They do not provide the whole picture of what was occurring between Mr Malik, Bob Lewis and Paul Lewis, but they do provide objective evidence of those matters therein discussed. The messages support a finding that Paul Lewis had discussed an offer with Bob Lewis, which Bob Lewis had said was from Mr Malik. Paul Lewis says "I'll think about the Javaid offer too…. What do you reckon", and if there was no offer which had been presented by Bob Lewis as being from Mr Malik, it would be reasonable to expect that Bob Lewis' reply would have been to the effect of "what offer?" instead of an implicit acknowledgement of the offer and deferral back to Paul Lewis by stating "It's up to you". The fact that Bob Lewis then says "I'll send you the certificate list now" indicates that the offer was associated to a "certificate list". Although there was no specific submission on what the "certificate list" was referring to, I infer from the context and the Respondent's submissions that this relates to the list of students who were granted certificates for the Raymond Terrace Course. The text exchange then goes on to confirm that a monetary amount is associated with the offer being referred to, with Paul Lewis stating that amount as "40k… plus a quid on top for you".
6. Mr Malik's messages with Bob Lewis then confirm that Bob Lewis is acting as an intermediary between Mr Malik and Paul Lewis. In response to a request for "Any update", Bob Lewis says, "Yes he has made an offer. 30k for previous work and 10k extra, in total 40k." The message exchange indicates that Mr Malik rejects that offer because "he has been paid for work he done".
7. The evidence of the text and WhatsApp messages demonstrates that Bob Lewis was acting as an intermediary between Mr Malik and Paul Lewis, and there was some discussion about an "offer". There is no direct evidence of Mr Malik making any monetary offer to Paul Lewis via Bob Lewis, only of Paul Lewis proposing an amount to Bob Lewis, which Bob Lewis proposed to Mr Malik, which Mr Malik dismissed.
8. The Applicant submitted that Paul Lewis contrived his communications with Bob Lewis and the conversation which was video recorded by him, either with or without Bob Lewis' knowledge. Although both parties made submissions as to whether Bob Lewis was aware of the video recording taking place, I am not sufficiently satisfied on the evidence to find either way. It is, however, clear to me that Paul Lewis raises the topic of Mr Malik with Bob Lewis as a non-sequitur, and then deliberately expresses the allegation verbally so that it is recorded by stating "So what he wants a letter and basically, he wants a letter and pay me some cash?". Bob Lewis' response to that is non-verbal. To that extent, I accept the Applicant's submission that Paul Lewis contrived that part of the conversation with Bob Lewis for the purpose of the video recording. In circumstances where the conversation has been contrived (at least partially) by Paul Lewis and the recording is only an excerpt of a longer conversation, I give the video recording limited weight. In any event, the video recording does little to expand the evidence beyond that provided to the Tribunal from the records of text and WhatsApp messages.
9. I am satisfied that on or around 27 September 2023, Mr Malik met with Bob Lewis and during the course of that conversation they discussed Paul Lewis, the Raymond Terrace Course, and Mr Malik's payment for that course. I am also satisfied that Bob Lewis met Paul Lewis on 4 October 2023 and they discussed Bob's meeting with Mr Malik, with Bob stating that in relation to Paul Lewis, Mr Malik was "desperate", and that Paul Lewis said "So what he wants a letter and basically, he wants a letter and pay me some cash?".
10. The Respondent's allegation that Mr Malik attempted, during these proceedings, to pay a witness to give false evidence to the Tribunal in relation to these proceedings, is extremely serious. Although the criminal standard of proof clearly does not apply to these proceedings, the seriousness of this allegation and its implications for the Applicant would necessarily require the application of a standard of proof well beyond the ordinary civil standard, as is discussed above (at [56] to [59]). The Tribunal's reasonable satisfaction of the facts alleged cannot be produced by "inexact proofs, indefinite testimony, or indirect inferences". In my view, the evidence relied upon by the Respondent to support this allegation is equivalent to the "inexact proofs, indefinite testimony, or indirect references" referred to in Briginshaw at 362 (Dixon J). There is no "clear or cogent or strict proof" "such as to induce, on a balance of probabilities, an actual persuasion of the mind" as to the relevant facts alleged, as expressed in Neat Holdings at 171 and Rejfek at 519.
11. The available evidence does not satisfy me that Mr Malik did, in fact, propose to Bob Lewis that he would pay Paul Lewis an amount of money in return for Paul Lewis providing a signed document confirming that he did take the Raymond Terrace Course from approximately September 2016 until October 2017, or in return for changing his or otherwise giving false evidence to the Tribunal in relation to the Raymond Terrace Course. I am also not satisfied on the available evidence that Mr Malik asked Bob Lewis to convey that offer to Paul Lewis.
12. I am therefore not satisfied that Allegation 9 is proven on the evidence before the Tribunal.

Summation

1. I have found Allegation 1 proven. The Applicant did provide false and misleading records to SafeWork NSW on or around 16 February 2021, when it notified SafeWork NSW that Robert Balmer was the trainer for the Traffic Control Course conducted at Star on 9 February 2021. Both Mr Malik and Robert Balmer gave false evidence in relation to this allegation. I am satisfied that Mr Malik had knowledge of the false and misleading records and intentionally submitted them to SafeWork NSW despite that knowledge.
2. I have found Allegation 2 partially proven. The Applicant did provide false and misleading records to Training Services NSW, specifically: 1. the Training Activity Data submitted by the Applicant in relation to the 10 students identified at paragraph 4.1.9 of Mr Buddeke's report was false and misleading, in that the data represented that those students were completing, and then had completed, the course when they had not; 2. the Assessments, transcripts and Certificates submitted by the Applicant for the 10 students were false and misleading, in that they represented: 1. that those students had completed the assessments when they had not; and 2. that those students had completed the course when they had not.
3. I am not satisfied that both the Applicant and Mr Malik had knowledge that those Raymond Terrace Course records were false and misleading and nevertheless arranged for those records to be provided to Training Services NSW. Irrespective of their knowledge, however, both Applicant and Mr Malik are responsible for the lack of supervision and oversight of the Raymond Terrace Course.
4. I have found Allegation 3 proven. The Applicant awarded a security qualification to Mr S, a student who was not competent.
5. I have found Allegation 4 proven. The records submitted to SLED during audits of the Applicant between 8 and 16 June 2021 were altered or marked by Mr Yates so as to misrepresent to SLED what and how the students' records had been completed by him. Mr Malik implicitly instructed Mr Yates to do this in relation to the 8 June 2021 records, and had knowledge that this was done. Remedial sessions were improperly conducted by Mr Rudd, on instruction by Mr Malik, to facilitate students changing their records. Mr Malik had knowledge of those remedial sessions, of the nature of the changes made to assessment documents, and of the resulting misleading nature of the documents when submitted to SLED.
6. I have found Allegation 5 partially proven. Mr Malik engaged in inappropriate conduct towards a student, Ms S.
7. I have found Allegation 6 not proven. I do not find that Mr Malik's conduct towards the Applicant's employees, Sarah Ilyas or Amna Ilyas, was improper or inappropriate. I also do not find that Mr Malik's conduct towards Sarah Ilyas or Amna Ilyas was done in retaliation for their cooperation with SLED.
8. I have found Allegation 7 not proven. I am not satisfied that the Applicant did not comply with the Interim Regime.
9. I have found Allegation 8 not proven. I am not satisfied that the Applicant failed to follow COVID-19 safety measures, or that the Applicant failed to provide a safe and comfortable environment for students in the context of Covid-19 safety measures, or that it was in breach of Condition 8 of its Conditions of Approval.
10. I have found Allegation 9 not proven. I am not satisfied that Mr Malik attempted to pay a witness to give false evidence in these proceedings.

Conclusion

1. In considering whether or not the Applicant and Mr Malik are "fit and proper persons", or whether it would be contrary to the public interest for the Applicant to continue to hold a Master Security Licence, with reference to the principles expressed at [35] to [47] above, I have regard only to Allegations 1, 3, and 4, and Allegations 2 and 5 to the extent that they have been proven.
2. The conduct found in relation to Allegation 3, being one occasion whereby a student's competency was assessed incorrectly, is relevant to the Applicant's ability, and therefore its fitness and propriety. The Applicant submitted that Allegation 3 was not capable of justifying the revocation of a master licence: "the allegation concerned a single, isolated instance involving one student. In this respect, the respondent does not allege that the applicant has engaged in a repeated pattern or seriously deficient course of conduct such that would justify the revocation of the licence."
3. The Respondent submitted: "326. … that determining the competence of students by reference to the pre-requisites and requirements of the [Security Licence Course] is a central function of [the Applicant] under its Master Licence. This submission again shows a failure to understand the importance of the regulatory requirements, and Star's adherence to them, in ensuring security guards have the ability to communicate in the course of their employment, and the consequent risk to public safety if they cannot. 327. The circumstances in which Mr S was granted a security licence represent a manifest failure, at the first hurdle, to adequately do that. Contrary to ACS [276], not only was Mr S wrongly permitted to enrol in the SLC, but he was also permitted to undertake and complete that course, was repeatedly marked as competent, and was consequently issued a security licence, all in circumstances where he lacked, and continues to lack, the most basic English language skills necessary for any stage of that process. This is not an allegation that Star failed to meet a "standard of perfection" (contra ACS [276]). Allegation 3 demonstrates both Star and Mr Malik's lack of fitness and propriety, and that lack of public interest in Star holding a Master Licence."
4. I agree that on the evidence before the Tribunal, this was an isolated incident in the context of the hundreds or thousands of students whose competencies were assessed correctly by the Applicant. My finding in relation to Allegation 3 is not sufficient to determine that, in isolation, the Applicant is not a fit and proper person.
5. Similarly, in the circumstances of all the evidence I have considered in these proceedings, Mr Malik's conduct in relation to Allegation 5, being improper conduct towards one student, would not be sufficient for me to determine, in isolation, that Mr Malik was not a fit and proper person to be the Applicant's nominated person.
6. However, Mr Malik's conduct and the Applicant's conduct with respect to each of Allegations 1, 2 and 4 as I have found above, demonstrate a significant lack of honesty, relevant to my assessment of the Applicant's fitness and propriety to hold a Master Security Licence. The conduct I have found that Mr Malik and the Applicant engaged in with respect to Allegations 1, 2, and 4 involve providing SafeWork NSW, Training Services NSW, and SLED, with misleading records in relation to the courses provided by the Applicant. The misleading records included the deliberate falsification of records by the Applicant's trainers, both with and without Mr Malik's knowledge. Where there was no specific knowledge attributable to Mr Malik, this was because of a serious lack of oversight by him.
7. These issues go to the very heart of the Applicant's obligations towards SLED and other regulators, and those obligations are fundamental requirements of the licence in issue. The conduct is not attributable to simple error or a one-off event - it is systemic and occurred over a number of years.
8. The conduct I have found Mr Malik and the Applicant engaged in with respect to Allegations 1, 2 and 4 demonstrate that neither Mr Malik nor the Applicant are fit and proper persons to hold a Master Security Licence under s 15(1)(f)(i) of the SI Act. As I am not satisfied that the Applicant or Mr Malik are fit or proper persons, pursuant to s 26(1A) of the SI Act, the Applicant's licence must be revoked.
9. The Respondent submitted that in addition or in the alternative, it would not be in the public interest for the Applicant to continue holding the Master Security Licence, pursuant to cl 25(1) of the Regulations and s 26(1)(d) of the SI Act. As discussed above, this is a discretionary matter.
10. The Applicant submitted that the Tribunal should impose "a proportionate regulatory response to the particular findings made by the Tribunal", taking into account the Respondent's graduated enforcement policy, involving: "…some combination of the following: warning and monitoring, official cautions, the imposition of appropriately tailored conditions, penalty infringement notices, or another reasonable and proportionate response appropriate to the circumstances of the case."
11. If there was no mandatory revocation for fitness and propriety, and the Tribunal's decision was therefore discretionary, there are a range of considerations to take into account which would include the Respondent's graduated enforcement policy. Additionally, if SLED considered that the contraventions of its regulatory scheme by the Applicant or Mr Malik were explicable, or accidental, or non-deliberate, or able to be rectified by some further education or training, this would be relevant to the exercise of the Tribunal's discretion in favour of the Applicant. However, the Respondent's submissions strongly express the opposite. The Respondent additionally submitted that the Applicant and Mr Malik's lack of insight into their conduct and an ongoing antagonistic attitude towards SLED meant that the Tribunal could have no confidence that the Applicant would comply with regulatory requirements going forward, or that SLED would be able to effectively monitor and detect breaches going forward.
12. Taking into account those submissions, in my view the falsification of records submitted to the Applicant's regulators, for the purpose of misleading those regulators, is determinative of whether and how the Tribunal should exercise its discretion. It is entirely contrary to the public interest for the Applicant to be able to alter records or submit misleading records for the purpose of complying with its obligations under the security industry regulatory scheme, or any other regulatory scheme. It entirely undermines public trust and confidence in the regulatory scheme being enforced, and in the regulator itself. It is not in the public interest for the Applicant to continue to hold a Master Security Licence in those circumstances.
13. The correct and preferable decision is therefore to affirm the Respondent's decision to revoke the Applicant's Master Security Licence.
14. I appreciate the significance that the decision revoking the Applicant's Master Security Licence will have on the Applicant, Mr Malik, and the Applicant's employees and students. On 24 August 2022 the parties consented to the terms of a stay of the Respondent's decision, pending the outcome of these proceedings. It is appropriate for the Tribunal to make an order lifting the stay on the date 28 days after the publication of this decision, in order to give the Applicant and Mr Malik sufficient opportunity to consider the decision and its consequences.
15. Both parties sought the opportunity to be heard on costs and other consequences following the Tribunal's decision. Having made the decision to affirm the Respondent's decision, the Tribunal has no further role to play and there is no further opportunity for the parties to be heard, unless and until either of the parties makes an appropriate application. Annexure to Reasons for Decision (581367, rtf)

Orders 1. The Respondent's decision to revoke the Applicant's Master Security Licence is affirmed. 2. The 24 August 2022 stay of the Respondent's decision is lifted 28 days after the date of this decision.

Endnote

1. Typographical error in A66 of '2021' which should have stated '2023'. 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: 21 January 2025