Tanbuz v Commissioner for Fair Trading

NCAT Occupational|2023-03-10

REASONS FOR DECISION

This is an application by Mohammad Tanbuz for an administrative review made by the Commissioner for Fair Trading (the Commissioner) refusing an application for the issue of a contractor licence in the category of bricklaying. The decision was made on the basis that Mr Tanbuz is not a fit and proper person to hold the licence.
For the following reasons I have decided to set aside the decision and grant the licence.

Material before the Tribunal

Both parties filed documentary evidence and written submissions with the Tribunal. Mr Tanbuz gave oral evidence at the hearing and the parties made further oral submissions. Two witnesses, Joseph Kahla and Mohammad Allouche, gave evidence at the hearing in support of Mr Tanbuz's application.
Mr Tanbuz relied on: 1. An affidavit of Mohammad Tanbuz sworn on 27 January 2023 (Exhibit A1) 2. A bundle of documents filed on 6 February 2023 (Exhibit A2) 3. Attachments to written submissions filed on 7 March 2023 (Exhibit A3).

Background

On 9 May 2022 Mr Tanbuz applied to the Commissioner for a contractor licence in the category of bricklaying under the Home Building Act 1989. The form required Mr Tanbuz to provide details of any criminal history within the past 10 years. Mr Tanbuz disclosed that he had been sentenced to imprisonment for three and a half years from 2017 to 2021 relating to domestic violence: assault, break enter and malicious damage. He stated that the offences were committed at a time he was under the influence of drugs and alcohol. He also set out his current parole conditions.
Following receipt of the form the Commissioner's delegate conducted a search of NSW Police records which revealed further convictions in the past 10 years which were not disclosed on the form.
Information obtained by the Commissioner shows that Mr Tanbuz has the following convictions:

2014: Common assault; armed with intent to commit an indictable offence;
2016: Destroy or damage property; contravene prohibition/restriction in AVO; stalk/intimidate intend fear physical etc harm
2017: destroy or damage property - 2 counts; assault occasioning actual bodily harm - 2 counts; aggravated break and enter.

In relation to the 2017 convictions, Mr Tanbuz received a prison sentence of seven years with a non-parole period of three and a half years. He is now on parole which expires on 20 October 2024. The conditions of Mr Tanbuz's parole are that he abstains from alcohol, not use a prohibited drug or substance and not contact, communicate with, watch, stalk, harass or intimidate the victim or the victim's family.
Mr Tanbuz also had various driving offences in 2013 and 2014 including driving while suspended and driving while disqualified.
Mr Tanbuz was asked by the Commissioner to provide further information, including an explanation for each of the offences and the circumstances that led to each, reasons why he did not provide information about all offences and information concerning his parole conditions and compliance, including a statement from his parole officer. He completed the "Additional Details Form 3" provided to him and returned it and a letter signed by his parole officer within the timeframe stipulated by the Commissioner.
The Commissioner determined that, considering his criminal history, the nature of the offences and the fact that his parole has not yet expired, Mr Tanbuz was not a fit and proper person to hold a contractor licence. Accordingly, the application was refused under sections 20(1 )(a) and 20(1 A) of the HBA.
Mr Tanbuz subsequently applied for internal review of the decision, the outcome of which was to affirm the decision to refuse to issue the licence. It is that decision which is the subject of this administrative review application.

Relevant law

The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act). Section 83B(1) of the Home Building Act confers jurisdiction on the Tribunal to administratively review a decision to refuse to issue a contractor licence.
In determining an application for administrative review, s 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review (see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 at [25]). In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator (ADR Act, s 63(3)).
Under s 38(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The standard of proof that applies is the civil standard, that is, on the balance of probabilities.

Fit and Proper Person

Section 20(1)(a) of the HBA provides that the Commissioner must reject an application for a contractor licence if the Commissioner is not satisfied that the applicant is a fit and proper person to hold a contractor licence.
Section 20(1A) of the HBA provides that, without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a licence the Commissioner is to consider whether the applicant is of good repute, having regard to character, honesty, and integrity.
The Commissioner submits that Mr Tanbuz is not a fit and proper person to hold a licence given the serious offences he has committed and the fact that, as he is still on parole, has not yet demonstrated his fitness. The Commissioner also submits that Mt Tanbuz's failure to disclose all of his convictions on the application form does not demonstrate that he has attained the requisite fitness and propriety to hold the licence.
The expression 'fit and proper' is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases.
In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said that fitness and propriety involve three things, honesty, knowledge and ability. In Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]). In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; [1990] HCA 33; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184.
In Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 the Tribunal considered the effect of a past criminal record on a person's fitness and propriety and stated at [15]: The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgment. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation.
In Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167 the Tribunal was considering the application by Mr Trombetta for a tradesperson's certificate as a motor mechanic in circumstances where Mr Trombetta had been found guilty in April 2017 of several serious offences. The Tribunal stated that the convictions were relatively recent but noted that there is no necessary period before a person convicted of serious offences can be considered to be a fit and proper person. The Tribunal went on to say: The licensing requirements of the Act are not imposed by way of punishment for those convicted of crimes. They are imposed for the protection of the public.
The Tribunal has on a number of occasions been called upon to address the issue of fitness and propriety where the person is still on parole. In ENK v Commissioner for Fair Trading [2020] NSWCATAD 320 at [47] the Tribunal noted that a person serving under parole, a good behaviour bond or corrections order can be found to be a fit and proper person to carry on an occupation. The Tribunal went on to state, however, that there must be clear and unequivocal evidence to demonstrate their fitness.

Is Mr Tanbuz a fit and proper person to hold a licence as a bricklayer?

The Commissioner makes much of the seriousness of the offences committed by Mr Tanbuz dating back to 2013 by reference to the maximum sentence for each crime. While the seriousness of the crimes cannot be downplayed, I note that the penalties given to Mr Tanbuz were not near the maximum. The early offences involved a fine or bond and in 2016 he was given a suspended sentence. As noted above, the 2017 offences, which were the most serious, resulted in a seven year term of imprisonment with parole after three and a half years. Mr Tanbuz acknowledges the seriousness of his past offending.
There is no doubt that the offences committed by Mr Tanbuz, particularly those in 2017 were violent and, as reflected in his sentence, were serious. Mr Tanbuz notes that he has not committed any further offences but, as stated by the Commissioner, he has been incarcerated and then on parole and in fact remains on parole. The serious of the offences and Mr Tanbuz's history of violence, without anything more, are significant matters which count against a finding that he is a fit and proper person to hold the licence.
The Commissioner submits that, in addition to his history of offending, Mr Tanbuz is not a fit and proper person to hold the licence because he provided false and misleading information on the application form due to his failure to provide a complete disclosure of his criminal offences. Mr Tanbuz denies that he deliberately sought to conceal his prior offences. He states he mistakenly believed that he was required to provide his criminal history for the past five years and that the brief details of those offences he provided were sufficient. He also states that he believed the Commissioner would obtain full details of his offending from other sources.
The Commissioner points out that the application form is very clear in the requirement that any criminal history within the past 10 years must be provided. Mr Tanbuz states that he now knows he made an error and apologises for the fact.
There is no question that Mr Tanbuz did not provide full details of his criminal history on the application form. It is unclear why he may have believed that he was only required to provide his history for the previous five years as the form is clear that a 10 year history is required. I note that he did disclose the most serious offences. When Mr Tanbuz was requested to provide full information, he did so within a matter of days which indicates that he was not intentionally withholding information. I do not consider that this is an overwhelming factor in determining whether Mr Tanbuz has attained the requisite fitness and propriety to hold the licence.
At the hearing the Commissioner questioned Mr Tanbuz about his comments about the 2016 offences where he was asked to provide additional information, including an explanation as to the circumstances which led to the offences. Mr Tanbuz stated on the form that these offences arose out of an incident with his brother where he did not control his emotions and broke his brother's phone. The Commissioner referred to the police facts sheet and pointed out that it was in fact his father's phone that was broken. The Commissioner sought to imply that Mr Tanbuz had therefore lied on the form. When questioned, Mr Tanbuz said that he could not remember the details. I note that the information contained in the facts sheet indicates that the incident originated in an argument between Mr Tanbuz and his brother. I do not consider that in the circumstances any adverse inference about Mr Tanbuz's honesty can be drawn from his answer to the question on the form.
There is a question as to whether it is likely Mr Tanbuz will reoffend or engage in violence. Mr Tanbuz states that he was in his early 20s when the offences were committed and was using a lot of drugs. He was also suffering from anxiety and depression and was in conflict with his family who were very strict whereas he wanted to be like every other kid. Mr Tanbuz and his family arrived in Australia from Palestine in 1993. He states he has learned from his mistakes and is committed to adhering to the law at all times. He states that his past should not be seen as a reflection of the person he is today as he is a changed man with a family looking to build a career in bricklaying. Mr Tanbuz states that his past offences were influenced by his alcohol and drug issues which he has now overcome. He has provided evidence of his completion of various courses since 2019 to assist with his past aggression and drug abuse. He states that prior to going to prison his GP referred him to a therapist and he has learnt through cognitive behavioural therapy to control his behaviour. He is confident he will not reoffend.
In a letter dated 14 June 2022 in response to the request by the Commissioner for further information, Mr Tanbuz's parole officer states that he has complied with all conditions of his parole and had engaged in meaningful intervention to address his offending behaviours. Due to his positive response to supervision, his supervision was suspended on 11 January 2022. This fact indicates that Mr Tanbuz has made considerable progress.
Mr Tanbuz has worked as a bricklayer since 2011 and aspires to eventually start his own bricklaying business and to employ others. He states he has strong community ties and is a valued member of his community through his contribution to charity projects.
Mr Tanbuz has provided references from Mohini Prasad, Mo Dower, Joseph Kahla and Mohammad Allouche.
Ms Prasad is a clinical social worker who states that she has worked with Mr Tanbuz for the last six years and provided him with counselling in relation to anxiety, depression and for adjustment disorder. She states that he has shown remorse and made remarkable changes in his life. Ms Prasad refers to the fact that he is now married and has a child and a stable family life. She states that Mr Tanbuz has learned skills in adapting well to life's stressors and is now a contributing member to the community and has demonstrated commitment to uphold values that enrich his life and that of others. His therapy is ongoing.
Joseph Kahla is the Director of Laserline Brickworks and states that Mr Tanbuz works with him from time to time when needed. He said he would like Mr Tanbuz to be a full-time employee but Mr Tanbuz is loyal to Trowel Hire with whom he primarily works. Mr Kahla is aware of Mr Tanbuz's past but states that Mr Tanbuz has turned his life around and speaks very highly of his work skills and integrity.
Mohammad Allouche, who runs the business Trowel Hire, stated that Mr Tanbuz has worked for him for almost two years. He also speaks highly of Mr Tanbuz's honesty, work ethic and general character. He states he has never witnessed any aggressive or violent behaviour by Mr Tanbuz and was surprised to learn of his past offences. Mr Allouche states that Mr Tanbuz is very remorseful about his past actions.
Mr Allouche and Mr Kahla gave evidence at the hearing in support of Mr Tanbuz. Both were questioned about Mr Tanbuz's earnings as Mr Tanbuz had stated he receives Centrelink benefits to support his family. Neither could say precisely how much Mr Tanbuz earns. The Commissioner sought to cast doubt on whether Mr Tanbuz has disclosed his earnings to Centrelink. Mr Tanbuz stated he has, that his income is variable and that he relies on Centrelink payments to support his family. There is no evidence that contradicts the evidence of Mr Tanbuz and this issue has no bearing on my decision.
Mo Dower states that Mr Tanbuz has worked as a bricklayer in the past for his company, Helix Projects Pty Ltd. He also refers to Mr Tanbuz's technical skills and states he is an honest and reliable person. Mr Dower states he is aware of Mr Tanbuz's convictions for violent offences but believes that he is now a better person and able to control his behaviour.
Mr Tanbuz has also provided a reference from his wife, Elham Boustani, who states that she is aware of Mr Tanbuz's violent past. She refers to Mr Tanbuz's past alcohol and drug abuse and the programs he has undertaken to deal with addiction and anger management. She states he is no longer a violent and angry man.
Mr Tanbuz presented at the hearing as a thoughtful man and spoke candidly about his past and the therapy he has been engaged in. He remains in therapy and the opinion of Ms Prasad, with whom he has worked for some years, about his development carries a good deal of weight. He states that he no longer consumes alcohol or takes drugs and there is nothing in the material before the Tribunal to suggest this statement is untrue, and I accept it. I am satisfied that Mr Tanbuz has indeed engaged in a process of rehabilitation and that he is remorseful and ashamed about his past behaviour and offending.
The references from Mr Tanbuz's current and past employers, all of whom are aware of his offending, are positive and, significantly, each states that they would willingly continue to employ him or employ him in the future. While it is difficult to accord Ms Boustani's reference much weight, her statements are in accordance with those of others who have observed the changes in Mr Tanbuz in recent years.
At issue is whether, as the Commissioner states, insufficient time has passed for the Tribunal to be satisfied that Mr Tanbuz is rehabilitated and is fit and proper to be granted a licence. The Commissioner points out that the offences committed by Mr Tanbuz in 2016 were committed prior to the expiry of his good behaviour bond in relation to the 2014 offences. In the same vein, the 2017 offences occurred not long after the expiry of the bond for the 2016 offences. The Commissioner further points out that Mr Tanbuz remains on parole until 20 October 2024 and is therefore motivated to be of good behaviour. In the Commissioner's submission, insufficient time has passed for Mr Tanbuz to demonstrate that this good behaviour would continue beyond 20 October 2024.
Some six years have passed since Mr Tanbuz's is offending. His offending appears to be associated with a particular period in his life when, as a young adult, drugs and alcohol played a detrimental role. The evidence before me is that he has been actively engaged in rehabilitation. In this context his referees are supportive of him being given an opportunity to move forward.
It is apparent from the evidence that Mr Tanbuz is determined to make a new life for himself. I am satisfied that he is intent on maintaining his sobriety and, while it can never be said that there is no risk he will lapse, I consider that risk to be small. He has the support of his wife and work colleagues. He also states he has reconciled with his family. Mr Tanbuz is still a young man and being able to pursue his chosen career and support his wife and child will also give him the confidence to deal with personal issues.
After considering all the evidence, I am of the view that Mr Tanbuz is a fit and proper person to hold contractor licence in the category of bricklaying. The Commissioner stated at the hearing that there are no questions relating to Mr Tanbuz's qualifications and skills necessary for the licence.

Orders 1. The decision under review is set aside. 2. The decision is made that the licence is granted. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2023

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