CITATION: Ibrahim -v- Commissioner of Police [1999] NSWADT 119 DIVISION: General APPLICANT: Raouf Ibrahim RESPONDENT: Commissioner of Police FILE NUMBER: 993164 HEARING DATES: 09/07/1999 SUBMISSIONS CLOSED: 09/10/1999 DATE OF DECISION: 24 November 1999 BEFORE:
K P O'Connor DCJ - PresidentPRIMARY LEGISLATION: Security Industry Act 1997 APPLICATION: Review of a decision to refuse to issue a security industry licence; Review of decision to refuse to renew security industry licence - MATTER FOR DECISION: Principal matter REPRESENTATION: Applicant:
Respondent:
A J Muscat, solicitor, A J Muscat & Co
E Lynch, solicitor, Commissioner of PoliceORDERS: 1. The decision under review is affirmed.
1 The applicant, Mr Raouf Ibrahim, has applied for review of a decision of the Commissioner of Police made pursuant to s 16 of the Security Industry Act 1997 (‘the Act’) to refuse to grant a security industry licence following application for renewal of a licence that expired on 5 January 1999. The ground of refusal is that the applicant has been found guilty (but with no conviction recorded) of an offence prescribed by cl 11(d) of the Security Industry Regulation 1998 (‘the Regulation’).
2 The administrator is obliged to refuse to grant a licence where an offence falling within a prescribed category exists. The offence of larceny (Crimes Act 1900, s 117) clearly falls within the category of an offence involving ‘fraud, dishonesty or stealing’. Without more, this would be a case like so many the Tribunal has dealt with, where the decision of the administrator must be affirmed.
3 The new question raised by this case is whether the statutory scheme operates differently where the person against whom the offence was recorded was under the age of 18 years at the time, and the matter was dealt with pursuant to the Children (Criminal Proceedings) Act 1987.
4 In the present instance the applicant was found guilty of larceny on 11 August 1997 at the Lidcombe Children’s Court. At the time he was under 18 years of age. He was released without a conviction being entered on the condition that he enter into a recognisance to be of good behaviour, for 12 months. That order was made pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 which provides:
“33 Penalties
5 The provision under which the administrator has acted is s 16(1)(b) of the Act which states:
(1) If the Children's Court finds a person guilty of an offence to which this Division applies, it shall do one of the following things:
(a) …
(b) it may make an order releasing the person on condition that the person enters into a recognizance, with or without sureties, to comply with such conditions as it may determine for such period of time, not exceeding 2 years, as it thinks fit”.
“16 Restrictions on granting licence: criminal and other related history
6 The questions therefore are:
(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:
…
(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law …”.
Has the applicant been found guilty (with no conviction being recorded) of an offence prescribed by the regulations?
Was that finding made by a court in New South Wales?
7 The answer to the first question is yes. As to the second question, s 4 of the Children’s Court Act provides that -
"Constitution of the Court
8 The legislative scheme does not discriminate between convictions (or proven offences) incurred by adults and those incurred by children dealt with by the Children’s Court.
4. There is constituted by this Act a court of record to be known as the Children's Court of New South Wales.”
The answer to the second question is yes.
9 The main submission made on behalf of the applicant was to the effect that he was now exposed to a second, and worse, penalty (loss of employment because of his inability to retain a licence) than the one handed down at the Children’s Court. Material presented to the Tribunal indicated that the applicant is a university student, is fluent in Arabic as a second language, is genuinely remorseful in relation to the circumstances of the offence and is keen to become a police officer. He had a number of strong references and is highly regarded for his part-time work in security duties at clubs in the Bankstown area. For the reasons given in this and other cases (see esp. Bourke v Commissioner of Police [1998] NSWADT 1 (Gen. Div. 17 December 1998), these positive factors can not be taken into account.
Determination
10 The decision under review is affirmed.
- AGLC
- Ibrahim v Commissioner of Police [1999] NSWADT 119
- Case
- [1999] NSWADT 119
- Decision Date
CaseChat Overview and Summary
The court considered the relevant statutory provisions and the principles of administrative law, including the nature of the character test and the standard of review. It examined the evidence and submissions provided by both parties, focusing on the appellant's criminal history and the implications for public safety and order. The court held that the Commissioner had properly exercised his discretion in revoking the visa, finding that the appellant's criminal activities, including involvement in serious drug offences and membership in a criminal organisation, warranted the cancellation of his visa. The decision was deemed reasonable and proportionate, taking into account the gravity of the appellant's conduct and the need to protect the community.
Ultimately, the court affirmed the decision to revoke the appellant's visa. It found that the Commissioner had not acted irrationally or in breach of any legal principles, and the decision was consistent with the provisions of the Migration Act. The court's reasoning emphasised the importance of the character test and the broad discretion afforded to the Commissioner in assessing visa applicants. The appellant's arguments were not sufficient to overturn the decision, and the court upheld the revocation of his visa.
Orders
Orders of the court
1. The decision under review is affirmed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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