Zahedi v Secretary, Department of Customer Service [2025] NSWCATOD 136;

1. The Respondent relied on written submissions and made oral submissions at the hearing.
2. The Respondent filed the following materials:

(1) Documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act)

(2) Submissions of the Respondent filed 20 May 2025

(3) Further Submissions of the Respondent filed 1 August 2025.

1. The Applicant made oral submissions at the hearing.
2. The Applicant filed the following materials:

(1) Administrative Review Application Form filed 5 February 2025

(2) Bundle of documents filed 14 July 2025

(3) Psychological Report dated 17 July 2025, filed 18 July 2025

(4) Psychological Report dated 24 February 2022, filed 18 July 2025.

1. Prior to the hearing the Applicant did not file any materials other than his Application for Administrative review. The Applicant was self-represented at the hearing. However he was legally represented when he made his application for internal review, and the materials lodged with the Respondent for the internal review formed part of the s 58 bundle before the Tribunal. This includes submissions and affidavit evidence.
2. At the hearing the Tribunal was advised that the Applicant had not seen the Respondent's submissions as the wrong submissions had been sent by the Respondent to the Applicant on 20 May 2025. The Applicant informed the Respondent of the error on the day of the hearing on Monday 30 June 2025, stating that he had only opened the Respondent's email serving the submissions on the afternoon of Friday 27 June 2025. The Tribunal adjourned to allow the Applicant to read the Respondent's submissions.
3. In the interests of fairness, the Tribunal also set a timetable for the Applicant to file any additional submissions and any other material that he wished to rely on following the hearing. The Applicant filed further materials on 14 and 18 July 2025. The Respondent also had the opportunity to make further submissions in reply and did so on 1 August 2025.

1. The Tribunal has jurisdiction to review the Respondent's decision pursuant to s 83B(1) of the Home Building Act. The Tribunal must then decide what the correct and preferable decision is having regard to the material before it: s 63 of the ADR Act.
2. The scheme of the Home Building Act is concerned to provide consumer protection including regulating the issue, suspension and cancellation of various licences in relation to residential building work.
3. Section 19 of the Home Building Act gives the Respondent the power to grant a contractor licence. However under s 20(1)(a) of that Act, the Respondent must refuse an application for a contractor licence if the Respondent is not satisfied that the Applicant is a fit and proper person to hold the licence.
4. Section 20(1A) then provides that in determining whether an applicant is a fit and proper person to hold a licence, the Respondent is to consider whether the person is of good repute, having regard to character, honesty and integrity.

1. The expression 'fit and proper' is a common statutory term and has been considered by the Tribunal and in other jurisdictions in numerous cases. 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: Spasevski v Commissioner for Fair Trading [2017] NSWCATOD 53 at [13].
2. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Chief Justice Mason at 380:

"The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."

"The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

1. There are no objects in the Home Building Act. In Spasevski at [17] the Tribunal stated that:

"Under the licencing regime established by the Act, the Commissioner warrants to the public that, not only has the licenced person the requisite skills, qualifications and knowledge to undertake the work, but that they are also a person in whom the home owner can have confidence."

1. In Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 at [15] the Tribunal said:

"The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgement. 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."

1. Any financial hardship that may be occasioned by the decision is not relevant to the assessment of a person's fitness and propriety: Lal v Director-General, Department of Transport [2001] NSWADT 74 at [47].
2. A person who has been found to be of bad character, and not a fit and proper person to operate in an industry, may redeem him or herself: see Trlin v Commissioner of Fair Trading [2003] NSWADT 222 at paragraph [46] and the cases referred to there.

1. Although not bound by the rules of evidence, the Tribunal must base its decision on 'probative evidence': Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 491-493.
2. The standard of proof applying in this review is the balance of probabilities: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]. There is no onus of proof, as that term is generally understood, in merits review cases: Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 424-425; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40]. The Tribunal must decide what the correct and preferable decision is having regard to any relevant factual material.

1. The Applicant conceded on internal review that his offences are serious. However he submits that in considering whether he is a fit and proper person regard should be had to his conduct post-offence, the extent to which he has redeemed himself, the extent to which he has reformed himself, his character generally as well as the candour with which the Applicant has approached the issue of past misconduct.
2. The Applicant states that at the time of the offending he was in a very bad place in his life and refers to relationship troubles with his wife, and poor mental health. He states that he had injured this wrist and turned to drug use to self-medicate. He began associating with people who were a negative influence and this encouraged him to make a number of poor decisions.
3. The Applicant relies on the fact that his offending was isolated to a period in 2019 and that he has not committed any further offences since. He states that the child abuse material was not solicited but sent on a group chat, he deleted it but it was found on his phone when he was arrested on the drug charges. He submits that the community-based order for this offence indicates it is at the lower end of the spectrum of seriousness. He also submits (on internal review) that the offences do not go to the heart of the vocation of electrician, he was not charged with offences of dishonesty, and there is no nexus between the Applicant's proposed vocation and the offences. Accordingly the Applicant submits that the convictions and behaviour do not go to the very heart of matters of honesty, integrity and reliability of an electrician.
4. The Applicant also stated at the hearing that he is monitored due to the child abuse material offence and would not be permitted to work at schools or other places where children are present under working with children checks.
5. The Applicant states that he has taken a number of positive steps to make amends and rebuild his life. He states that he is truly sorry for his previous mistakes and has paid the price for his decisions. He does not want to let the past mistakes continue to determine his future. He believes he has taken the necessary steps to demonstrate he is a person capable of acting honestly and with the requisite integrity to hold an electrical contractor licence.
6. The Applicant states that he has removed all contact from people he was previously associating with that were a negative influence, he was compliant with his parole conditions and has abstained from illicit drug use. He states that during his period of incarceration and following his release, he engaged with a number of courses and programs to further his rehabilitation.
7. In support of his application for internal review in December 2024, the Applicant filed five Affidavits (one unsworn) from himself, family members, friends and previous business associates who attested to his general good character and reformation. He also provided a letter of support from the Coordinator of the Reintegration Program he attended.
8. In support of his application to the Tribunal, after the hearing the Applicant provided a Psychological Report 2025. The Report was sought specifically in relation to his application to the Tribunal to contest the Respondent's decision not to grant him the licence. The same Psychologist had made an earlier report in 2022 for the purposes of his sentencing.
9. As to the circumstances leading to the offences, the Report states that he had been suffering from significant financial hardship which led to the loss of his family home and vehicles, marital hardship and drug dependency as well as suffering from mental health conditions. The Report notes that the Applicant reports being drug free since 2019, that he was out on bail from 2019-2021 and did not commit further offences during that time and he had no incidents in prison.
10. The Report concludes that the Applicant no longer meets the criteria for the mental health conditions that he was previously diagnosed with but he does meet the criteria for certain other mental health conditions, described as a milder condition which the psychologist believes stems from the current trigger of not being able to get his electrical licence, causing delay to the Applicant's ability to secure his family's financial security. No further psychological intervention was recommended.
11. Following the hearing the Applicant also gave the Tribunal letters of support from family, friends and previous business associates. He also provided a "Response to adverse comments letter" dated 26 August 2024 in support of him being granted parole, and a letter from a case manager from a Drug and Alcohol Network stating that as at 26 November 2024 he attends Drug Health Services on a monthly basis. There is no contemporaneous evidence of the Applicant's attendance.
12. As to why the Applicant did not disclose his criminal offences on his application form, he states that he was overwhelmed when released from custody. He says he has poor eyesight and did not take his reading glasses with him when he attended the office to renew his licence. Upon attending the office, he explained to staff that he was intending to renew his electrical contractor licence and that his eyesight was poor without his glasses. He was informed by staff that rather than completing a renewal application he was required to re-apply for the licence. He says he felt immense pressure, was out of his depth and that he was given a quite extensive form to complete.
13. The Applicant states that he believes the staff sensed that he was overwhelmed and therefore told him that as he had previously held a licence, not all details were needed. Rather, if he completed the form as best as possible and paid the fee, that would be sufficient to obtain the licence. He says he followed the advice and did the same. He believes the combination of feeling overwhelmed, his poor eyesight without glasses and the miscommunication between staff and himself contributed to the error he made on the form in not disclosing his criminal history. He states that he did not intend to mislead the Respondent or lie on the application and points to the fact that he provided information about his criminal history to the Respondent immediately when the Respondent followed up with him.
14. The Applicant also provides submissions outlining the financial and family consequences of not obtaining the licence, and the impact of the Respondent's refusal on his mental health. Previous business associates also attest that they would be willing to give him work if his licence is renewed. The letter from the Coordinator of the Reintegration Program provided in December 2024 supports his application for a licence stating that throughout his time in the program the Applicant has consistently demonstrated a commitment to personal growth and forward-thinking. The coordinator writes that a key focus of his reintegration plan is securing stable employment, particularly within his previous field of electrical work and that the ability to return to his established trade is essential for his success.

1. The Respondent submits that the Applicant's criminal history is serious and would not inspire confidence in homeowners: Spasevski at [17]. While the drug importation offences do not relate directly to the Applicant's employment as an electrician, they are relevant to their reflection on the Applicant's character. The Applicant attributes his criminal history to addiction and associating with people who were a negative influence, but in the Respondent's view, that does not explain in detail how this led him to import millions of dollars worth of drugs, nor how he came to be in possession of child abuse material.
2. In relation to the possession of child abuse material offence, the Respondent submits that this offence does relate to the Applicant's employment in the home building industry. The respondent is concerned about the possibility that children will be present in the homes or locations where the Applicant will perform work if the licence were granted. The Respondent considers those concerns might be mitigated to some extent by a condition prohibiting the Applicant from working at locations where children are present. However the Respondent does not consider that such a condition would fully address those concerns as questions would remain as to its enforcement and scope.
3. The Respondent considers that the Applicant's lack of candour is fatal to his case. In the Respondent's submission, he failed to disclose his criminal history when he applied for the licence and provided a somewhat unconvincing explanation as to why he did not do so. In addition, the Applicant provided an account of his criminal history to the Respondent and the Tribunal that omitted significant relevant matters and only after the hearing, provided a more detailed explanation of his drug use and offending.
4. The Respondent points to inconsistencies between the Applicant's statement filed after the hearing and the evidence in the Psychologist Report 2025. In his statement, the Applicant claims "I have never been bankrupt or [sic] no history of significant financial mismanagement." However the Psychologist Report 2025 states that the Applicant has "long suffered from a number of financial struggles" and had a considerable amount of debt, the Applicant lost the family home and family vehicles and he was almost evicted in 2019, immediately prior to his offending.
5. The Respondent submits that the evidence provided by the Applicant following the hearing should be given less weight, as it could not be tested at hearing. However the Respondent accepts that the Psychologist Report 2025 shows that the Applicant has made at least some progress in his rehabilitation.

1. At the time the Applicant made his original application to the Respondent for the licence he had only recently been released from custody. At the time of his application for internal review, his parole had expired just the day before. The information submitted to the Respondent regarding the Applicant's rehabilitation post release from custody was therefore limited.
2. In these proceedings the Applicant was given a number of opportunities to provide evidence of his rehabilitation. While the Applicant provided letters of support from family, friends and previous business associates, that evidence does not rise above those persons' general impressions. The Tribunal would give greater weight to independent accounts from service providers. However the Applicant did not file evidence from any rehabilitation, drug and alcohol or other rehabilitation services beyond documents dated 2024. As a result the Tribunal does not have sufficient independent current evidence of his conduct since finalising parole in December 2024, on which to conclude that the Applicant is rehabilitated and unlikely to reoffend.
3. The Tribunal is not satisfied that the Applicant has demonstrated at this time, that he is of good repute, having regard to character, honesty and integrity. The Applicant failed to declare his criminal convictions in his application form. Having regard to the other information provided by the Applicant in the form in answer to specific questions, the Tribunal does not accept that the reason why the Applicant did not declare his convictions was because he didn't have his glasses with him. Even if that were the case, it is up to the Applicant to make sure he read and understood the questions asked, and that he answered them truthfully.
4. There are also discrepancies in the Applicant's evidence. While he states in his most recent submission to the Tribunal that he has no history of significant financial mismanagement, the Psychologist Report 2025 draws attention to financial struggles, considerable debt, including the loss of the family home and family vehicles prior to his offending. This information is also contained in the previous Psychologist Report 2022 and brings into question the Applicant's candour.
5. In addition, the Tribunal gives less weight to the Applicant's submissions that he has not reoffended since 2019. Since 2019 the Applicant has been under the supervision of the justice system, including being on bail, incarcerated for over 3 years and on parole. The Tribunal gives weight to the Applicant's conduct since finalising his parole, but considers that while indicating that he has positive goals towards rehabilitation, the Applicant has provided little evidence of his conduct in 2025.
6. The Tribunal gives more weight to the seriousness of the Applicant's offences and his lack of candour. The Tribunal considers that at this time, a homeowner could not have full confidence in the Applicant's honesty and integrity. Given the Tribunal's findings regarding the Applicant's candour, the Tribunal does not consider that granting a conditional licence to be a sufficient mitigation measure at this time.
7. The Tribunal has received submissions from the Applicant on the impact of a decision not to grant the licence. However applying the decision in Lal, any financial hardship that may be occasioned by the decision is not relevant to the assessment of a person's fitness and propriety.
8. The Respondent has drawn attention to other categories of licence that the Applicant may consider applying for, such as a Tradesperson Certificate, or he may reapply for the electrician category at a later time. Any future decision on any category of licence or certificate would be a matter for the Respondent. However the Tribunal notes that any application should be completed fully and honestly and would benefit from being accompanied by contemporary evidence of the Applicant's conduct and rehabilitation since December 2024 from independent sources.

1. The Tribunal considers that the Applicant has not demonstrated, at this time, that he is a fit and proper person to hold a contractor licence. This is because he did not declare his criminal convictions on his application form and he did not inform the Tribunal of his previous financial difficulties. Having regard to these factors and the seriousness of his convictions, the Applicant has not provided sufficient evidence to demonstrate that he is of good repute.

(1) The decision of the Respondent to refuse the contractor licence is affirmed.

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.