VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z237/2022	
CATCHWORDS	
Review and Regulation List – Worker Screening Act 2020 (Vic), ss 63(1), 105(1)(d), 107 – Working with Children (WWC) Exclusion issued following reassessment after applicant charged with sexual assault – Applicant subsequently found guilty and sentenced to 18-month community correction order – Whether applicant poses unjustifiable risk to safety of children having regard to mandatory factors – Consideration of reasonable person, any other child-related work and public interest tests – Decision affirmed.	

APPLICANT	Amin Heidarikakolaki	
RESPONDENT	Secretary to the Department of Justice and Community Safety	
WHERE HELD	Melbourne	
BEFORE	R. Tang AM, Acting Senior Member	
HEARING TYPE	Videoconference Hearing	
DATE OF HEARING	10 May 2022	
DATE OF APPLICANT’S FURTHER SUBMISSIONS	17 May 2023	
DATE OF ORDER and reasons	19 May 2023	
CITATION	Heidarikakolaki v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2023] VCAT 566	

Order

The respondent’s decision of 8 March 2022, to issue the applicant with a WWC exclusion, is affirmed.

R. Tang, AM
Acting Senior Member			

APPEARANCES:		
For Applicant 	Mr A Heidarikakolaki, in person	
For Respondent	Mr S Brnovic of Counsel 	

Reasons
1	On 8 March 2022, the Secretary to the Department of Justice and Community Safety (Secretary) issued Mr Amin Heidarikakolaki with a WWC exclusion (Decision) preventing him from working with children, following a reassessment conducted under section 78 of the Worker Screening Act 2020 (Vic) (WS Act).  The reassessment was triggered as a result of Victoria Police notifying the Secretary that Mr Heidarikakolaki had been charged with sexual assault, which is a WWC category B offence.  The charge related to a massage he performed on an adult female client (Client) in October 2020 when he was working as a massage therapist in a shopping centre in the Melbourne central business district. 
2	By application for review dated 5 April 2022 (VCAT Application), Mr Heidarikakolaki sought review of the Decision on the basis that, although he pleaded guilty to the charge of sexual assault, the ‘act was not intentional’.  
3	Mr Heidarikakolaki, an Iranian citizen, came to Australia in 2017 to study a sports science degree.  While it appears that he has been able to complete his degree in the meanwhile, without having a WWC clearance, he says he is unable to be accredited by Exercise and Sports Science Australia without one and this has limited his ability to obtain work in his area of study (e.g. to work as a sports trainer with suburban football clubs).    
4	On 30 May 2022, Mr Heidarikakolaki was convicted of sexual assault and sentenced in the Melbourne Magistrates’ Court to a Community Corrections Order (CCO) for a period of 24 months.  The CCO included conditions that he undergo treatment and rehabilitation ‘to address issues involving violence against women and sex offending’ and preventing him from engaging in ‘massage services or other services which involve the touching of the body of female clients or customers’.  
5	Although Mr Heidarikakolaki lodged an appeal against his sentence on 25 May 2022, he commenced the Sex Offender Treatment Program (SOT Program) with Mr Geoffrey Burrows, a psychologist, in September 2022.  In his most recent report, dated 24 April 2023, Mr Burrows suggests Mr Heidarikakolaki is making ‘good progress consolidating his victim empathy and … express[ing] remorse for his offending behaviour’.  Nevertheless, the report indicates that he would benefit ‘from occasional intervention to further consolidate the progress he’s made with offence-specific treatment’.  In giving evidence before the Tribunal, Mr Burrows said he thought this might require one or two more sessions.  
6	On 3 May 2023, Judge Gamble of the County Court set aside the orders made by the Magistrates’ Court, found Mr Heidarikakolaki guilty of sexual assault (without conviction) and imposed a shorter CCO of 18 months (to be served from May 2023 to November 2024).  However, his Honour maintained the requirement that Mr Heidarikakolaki ‘participate in programs and/or courses that address factors relating to [his] offending behaviour as directed … - Sex Offenders Program’.
7	A significant purpose of, and paramount consideration under, the WS Act is to protect children from sexual and physical harm, which is achieved by the screening of persons who work with or care for children.  Against that background, the WS Act provides that a WWC clearance cannot be granted for a Category B reassessment unless the Secretary (or VCAT on review) is satisfied of four matters, namely that: 
•	the person does not pose an unjustifiable risk to the safety of children; 
•	a reasonable person would allow their child to have contact with the person; 
•	the person would not pose an unjustifiable risk to the safety of children in any child-related work; and
•	it is in the public interest to give the clearance.
8	In all the circumstances, and having regard to analysis of the mandatory criteria that follows, I am not satisfied as to each of those matters at the present time.  As such, I will affirm the Decision. 
Overview of statutory framework
9	A decision by the Secretary to give a WWC exclusion on a WWC category B reassessment is reviewable by VCAT.
10	The WS Act provides that the Tribunal must determine that it is appropriate to refuse to give a WWC clearance unless satisfied that giving the clearance would not pose an unjustifiable risk to the safety of children (Unjustifiable Risk Test), having regard to any matters to which the Secretary must have regard under section 63(1) (Section 63(1) Factors), namely:
•	the nature and gravity of the offence and its relevance to child-related work;
•	the period of time since the offence was committed;
•	whether the person was found guilty or convicted of the offence and the sentence imposed;
•	the ages of the applicant and the victim of the offence;
•	whether the offence has been decriminalised;
•	the applicant’s behaviour since the offending;
•	the likelihood that the applicant poses a future threat to a child; 
•	any information given by the applicant in, or in relation to, the application; and
•	any other relevant matters.
11	In satisfying itself that giving a WWC clearance would not pose an unjustifiable risk to the safety of children, the Tribunal must also be satisfied that:
(a)		a reasonable person would allow their child to have direct contact with the applicant while the applicant was engaged in any type of child-related work (Reasonable Person Test); and 
(b)		the applicant’s engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children (Any Child-Related Work Test). 
12	Further, even if the Tribunal is satisfied that giving a WWC clearance would not pose an unjustifiable risk to the safety of children, it must determine that it is appropriate to refuse to give the clearance unless it is satisfied that it is in the public interest to give the clearance (Public Interest Test).
Does the applicant pose an unjustifiable risk to the safety of children? 
The nature and gravity of the offence and its relevance to child-related work
13	In closing submissions, Mr Brnovic (counsel for the Secretary) contended that this factor ‘weighs heavily against the applicant’. 
14	Mr Heidarikakolaki was found guilty of one charge of sexual assault, being that:
The accused at Melbourne on the 28th of October 2020 did intentionally touch another person, namely [the Client] on her breasts twice and placing his hand inside her underwear and the touching was sexual and [the Client] did not consent to the touching and the accused did not reasonably believe that [the Client] consented to the touching.
15	Any offence involving sexual assault is inherently serious, a matter which Mr Heidarikakolaki apparently now accepts.
16	The seriousness of Mr Heidarikakolaki’s offending is clear given the vulnerable position that the Client was in at the time.  She was naked except for her underwear and was receiving a massage from a male massage therapist in a separated area not visible to others.  
17	In his evidence before the Tribunal – and despite pleading guilty to the charge of sexual assault – Mr Heidarikakolaki maintained that any touching was not sexual, but rather due to him not understanding that it was criminal.  Mr Brnovic contended that no weight could be given to this evidence, as there was no other reason for Mr Heidarikakolaki to touch the Client’s breast or put his hands into her underpants.  In any event, the Tribunal cannot go behind the finding of the County Court that Mr Heidarikakolaki was guilty of the charge, the particulars of which included that ‘the touching was sexual’.
18	Although the Client was an adult, and of similar age to Mr Heidarikakolaki, in the Decision, the Secretary noted that the offending conduct ‘gives rise to concerns regarding [the applicant’s] impulse control, specifically regarding sexual impulses and brings into question their ability to keep others safe from harm, including sexual harm’.  As any child ‘would [also] be vulnerable by virtue of their age’, the Secretary suggested that the offending was relevant to child-related work. 
19	In his oral submissions, Mr Brnovic added that the offending occurred in a work context and involved a significant imbalance of power, as between Mr Heidarikakolaki (as massage therapist) and the Client, with the massage taking place in a private space without supervision.  He contended that this kind of situation could also arise in a child-related work context.
20	Mr Heidarikakolaki has been found guilty of sexual assault, involving exploitation of the opportunity at work to inappropriately touch a female client while performing a massage.  
21	One of the reasons that Mr Heidarikakolaki says he needs a WWC clearance is in order to take up work opportunities with suburban football clubs.  Those clubs are likely to have female players that are not adults, and who may need massages or other treatment in circumstances where they may be partially naked and Mr Heidarikakolaki is unsupervised.  In those circumstance, I accept that the offending is relevant to the child-related work that Mr Heidarikakolaki seeks to undertake (and more generally).
22	This factor weighs strongly against the applicant.
The period of time since the offence was committed
23	It has been more than 30 months since the offence was committed, which Mr Brnovic contends is ‘relatively recent’.  
24	Further, while the Secretary accepts that Mr Heidarikakolaki has not engaged in any further sexual offending during that period, Mr Brnovic went on to observe that:
•	during much of that time, he was dealing with the criminal charges brought against him;
•	he remains subject to the CCO as ordered by the County Court, including supervision by the Secretary and the Court; and
•	he did not commence the SOT Program until September 2022 and remains subject to that program at the current time.
25	Mr Brnovic drew my attention to the decision in QEK v Secretary to the Department of Justice and Community Safety (QEK). In that case, Deputy President Lambrick observed that: 
The relevance of the passage of time lies in ascertaining what has taken place during that time.
It is of course pleasing that QEK has not reoffended. 
I do not, however, consider the passage of three years to be a determinative indicator of what the future will or will not hold. It is a period during which QEK has had pending charges and then been under the close supervision of the Magistrates’ Court. He has further known that this application remained outstanding. It would be extraordinary if he were to have reoffended in these circumstances. 
In this case, the period of time is a promising start. However, for reasons which I shall explore further in due course, I consider more time is needed before any finding could be made that QEK has developed full insight into what led to his conduct and has cemented techniques to ensure there will be no repeat. 
26	Mr Brnovic contends that those statements are equally apt to the present case, and that not enough time has elapsed for rehabilitation to take place and for this factor to weigh in Mr Heidarikakolaki’s favour.
27	While the period of time that has elapsed is not short, I accept that this factor is (of itself) a neutral factor in the assessment.
Whether the person was found guilty or convicted of the offence and the sentence imposed
28	As a result of his successful appeal, Mr Heidarikakolaki was found guilty (without conviction) on one count of sexual assault.
29	While Mr Heidarikakolaki has not received a custodial sentence, he has received a CCO for a significant period (reduced from 24 months to 18 months on appeal).  
30	Relevantly, the terms of the CCO require Mr Heidarikakolaki to participate in the SOT Program, which is ongoing.  Mr Brnovic observes that this was imposed by the County Court despite the most recent report from Mr Burrows indicating that Mr Heidarikakolaki had already received some 20 hours of treatment.   
31	I consider that, notwithstanding the removal of the conviction on appeal, these factors still weigh against Mr Heidarikakolaki.
The ages of the applicant and the victim of the offence
32	Mr Heidarikakolaki was 29 and the Client was 28 at the time of the offence.  
33	While this factor might ordinarily point away from an applicant posing an unjustifiable risk to children, it needs to be considered in conjunction with the preceding discussion as to why the offending is relevant to child-related work.  
34	Considered in that light, I consider that this factor still weighs against Mr Heidarikakolaki.
Whether the offence has been decriminalised
35	Sexual assault remains a criminal offence.  
36	This is a neutral factor in the assessment.
The applicant’s behaviour since the offending
37	As already noted, there is nothing to suggest that Mr Heidarikakolaki has been charged with any further offences since the charges relating to the Client were laid in March 2021. 
38	Further, Mr Heidarikakolaki gave evidence that he has continued to work as a receptionist and a massage therapist (which he says is for regular adult clients only) since he appealed the decision of the Magistrates’ Court of Victoria.  That he has done so, without any other charges or complaints, is to his credit.  
39	Again, however, there was every incentive for Mr Heidarikakolaki to behave over this period given he was appealing his sentence.
40	It is also to his credit that Mr Heidarikakolaki has engaged positively with his treating psychologist and the SOT Program since September 2022.  As already noted, he has made substantial progress in terms of victim empathy and remorse.
41	However, it is concerning that, over time, he has sought to variously contend that: 
•	the Client was lying or making up the account and that he did not touch her breasts (rather, he only touched her upper chest area); 
•	any touching of the Client’s breasts was accidental and, as she failed to raise any concerns, he was unaware that she was concerned; and/or
•	any touching was not sexual in nature.
42	Even in his most recent written submissions, Mr Heidarikakolaki downplays the seriousness of his conduct, when he contends that the ‘period of offending was no more than 5 minutes during a 1 hour and 15 minute massage session’.  This is despite Mr Heidarikakolaki agreeing, in cross-examination, that he had heard the Client’s Victim Impact Statement read out in court, which speaks to the significant emotional impact on her (including anxiety, embarrassment and recurring nightmares).
43	Mr Brnovic suggested that Mr Heidarikakolaki’s differing accounts seek to ‘minimise his own culpability’ and involve a degree of victim blaming (i.e. she could have asked him to stop).  He again pointed to the decision in QEK, where Deputy President Lambrick observed:
Despite these positive factors [relating to the post-offending conduct] in QEK’s favour, I was concerned that minimisation and avoidance permeate QEK’s responses to his conduct. 
Whilst uttering words of remorse, he has demonstrated an ongoing propensity to downplay his wrongdoing and/or attempt to avoid the consequences of his actions. 
44	Mr Brnovic submitted that Mr Heidarikakolaki was ‘yet to clearly show insight and accept responsibility’ for his actions, such that this factor was not favourable to him.
45	As the positive aspects of Mr Heidarikakolaki’s behaviour since 2020 are offset by the concerns as to his level of insight and his failure to take full responsibility for his actions, I regard this as a neutral factor in the assessment.
The likelihood that the applicant poses a future threat to a child
46	As noted in the recent decision of Quigley J, the President of VCAT, in TXD v Secretary to the Department of Justice and Community Safety (TXD), ‘[a]ny chance of this future threat irrespective of its magnitude is relevant’ and ‘rehabilitation, remorse and evidence of changes are important when considering the change of future risk’, as is insight and acceptance of responsibility.  Expert evidence may be relevant.  ‘Ultimately, it is for an Applicant to show that he or she does not pose a risk of harm to children.’
47	There is some limited material in the Tribunal Book to suggest that, at least prior to the SOT Program, Mr Heidarikakolaki represented some risk of re-offending.  Unfortunately, Mr Burrows has ‘not conducted a risk assessment’ and, as such, observed that he ‘cannot comment on [Mr Heidarikakolaki’s] level of risk’ at the present time.  
48	While the most recent psychological assessment suggests Mr Heidarikakolaki has shown empathy for the Client and remorse for his offending, for the reasons already mentioned, it is clear that his insight is still developing, and he is yet to take full responsibility for his actions.  This suggests that he still poses a future threat, noting Deputy President Lambrick’s observation in QEK that:
[a] person who still justifies their own behaviour even after all they have been through by way of rehabilitation may well be prepared to justify further conduct. 
49	It is also relevant that his CCO requires, and the most recent psychological report suggests he will continue to benefit from, further participation in the SOT Program.  It might be inferred that, given he needs to continue with such a program after completing more than 20 sessions, Mr Heidarikakolaki remains at some risk of committing further sexual offending.  
50	For the reasons already discussed, there is some potential for Mr Heidarikakolaki to be exposed to children in the work he wishes to do and, as such, this factor weights strongly against him.
Any information given by the applicant in, or in relation to, the application.
51	Mr Heidarikakolaki has provided references from three family members (his parents and an uncle) who suggest any contact that Mr Heidarikakolaki made with the Client’s breasts was unintentional and out of character.  However, it is noted that each of those family members live in Iran, have not directly observed Mr Heidarikakolaki at work in Australia or interacting with children and appear to have relied on Mr Heidarikakolaki’s explanation of the conduct, rather than appreciating the outcome of the criminal proceedings.  
52	Mr Heidarikakolaki has also provided a reference from his employer and another colleague from the massage shop.  Both references suggest that Mr Heidarikakolaki is a ‘moral person’ and highlight that he has not had any other problems with his massage clients, who are predominantly women.  While those two references are supportive, they do not engage with the finding of guilt or speak to any observations they may have regarding Mr Heidarikakolaki’s rehabilitation.
53	In these circumstances, I agree with Mr Brnovic’s submission that little weight can be given to these references.
54	On the morning of the hearing, Mr Heidarikakolaki submitted a copy of his Bachelor of Sport and Exercise Science degree which was awarded in February 2023, as well as confirmation of his recent enrolment in a Masters of Clinical Research by coursework.
55	Mr Brnovic submits that, as Mr Heidarikakolaki has: 
•	now enrolled in and commenced full time study for his Masters (which does not have any practical component);
•	not produced any job offers; and 
•	experienced visa issues, i.e. as a result of his criminal offending, his visa was cancelled and he is presently on a bridging visa pending an appeal to the Administrative Appeals Tribunal, 
he ‘does not need a WWC clearance’.  Mr Brnovic suggests that, at most, a WWC clearance ‘might be helpful’ to Mr Heidarikakolaki.
56	For his part, Mr Heidarikakolaki submits that his ‘prospects of accreditation in [his] study field which is in Exercise and Sports Science Australia (ESSA) will be improved if [he] can have [a WWC clearance]’.  He also indicates that, as a result of revocation of his WWC clearance, he has ‘not been able to continue the part time work [he] was undertaking with Football Clubs … as a sports trainer for the respective teams’.
57	In oral submissions, Mr Heidarikakolaki also mentioned an opportunity to work as a first aid officer and subsequently submitted evidence of other job opportunities, such as a group coach for a sports camp for children, a one-on-one support to assist children and young people with disabilities, a group exercise instructor at an aquatic and recreation centre and a junior soccer coach (U7 onwards) for a suburban football club.
58	I accept that it is generally in the public interest to let people who have received graduate qualifications to work in the relevant field so that they can apply that knowledge to the benefit of the community.  I also accept that there is a need for Mr Heidarikakolaki to work, even while he studies, given the significant fees payable by international students to study here.  
59	However, in my view, there is insufficient evidence that a WWC clearance is necessary, as opposed to desirable, to enable any of this to occur.  There would not appear to be anything that prevents Mr Heidarikakolaki working as a sports trainer, provided this was limited to an adult football team.  Further, to the extent he needs income to fund his study and living expenses, he continues to work as a receptionist and massage therapist.
60	In his written submissions, Mr Heidarikakolaki also notes that his ‘goal is to work in Australia and [his] longer term goal could be permanent residency in Australian and citizenship’, and that his ‘applications for these will be improved’ if he is granted a WWC clearance.  While I recognise that Australia is an immigrant nation and that, broadly speaking, our immigration policy seeks to provide skilled workers with opportunities to apply for permanent residency, the character of such applicants is relevant.  Indeed, it is well known that even permanent residents can have their visas cancelled if they commit serious offences.  
61	Further, any general public interest in people working needs to be considered in the context of the paramount consideration in the WS Act, namely to protect children from sexual or physical harm.    
62	When examined in this context, I regard the information provided by Mr Heidarikakolaki as being essentially neutral in the overall assessment.  
Any other relevant matters
63	Mr Heidarikakolaki raised one other matter.  The County Court ‘decreased his sentence’ (i.e. to remove the conviction and the condition preventing massage work, as well as reduce the period of the CCO) on the basis that it was ‘too harsh’.  He felt the Secretary’s position, which had not changed since the Decision was given, was somewhat inconsistent with the outcome of his appeal.
64	While I accept that there is some, at least superficial, logic to this point, of course it is important to point out that considerations relevant in the context of a criminal sentencing appeal are not the same as those that apply under the WS Act.  In particular, under the WS Act, the Tribunal must take account of the paramount consideration, namely the protection of children from sexual or other harm.
65	In any event, while there was no conviction recorded, the County Court still felt it necessary to require Mr Heidarikakolaki to continue with the SOT Program.  That is consistent with him continuing to pose some risk of sexual offending and, for the reasons already mentioned, there is an associated threat of harm to children.
Conclusion
66	For the reasons discussed above, it is clear that the majority of the Section 63(1) Factors point against Mr Heidarikakolaki’s being allowed to work with children at this time.  Having regard to those factors, I am not satisfied on the evidence before me that he does not pose an unjustifiable risk to the safety of children.
Would a reasonable person allow their child to have contact with the applicant?
67	As noted in TXD, the Reasonable Person Test is objective, and ‘relies on a reasonable person having knowledge of all the facts and surrounding circumstances’. 
68	Mr Brnovic submitted that a reasonable person would:
•	want to assess Mr Heidarikakolaki’s behaviour over a longer period of time, to ensure that he can resist any temptation to engage in similar conduct to his offending, in the knowledge that he can reapply for a WWC clearance in the future (although, as noted in the Decision, he cannot do so for five years from the date of the WWC exclusion);
•	be ‘very concerned’ about his explanation of his offending, and ‘appalled’ by his attempts to minimise his conduct and engage in victim blaming, despite the time that has elapsed.  As a result, the reasonable person would not trust that he has fully accepted responsibility and be wary of the claim that he has rehabilitated and as to his assurance that similar conduct would not occur again; and
•	still have concerns given that he remains ‘under supervision of the State’.
69	In circumstances where: 
•	Mr Heidarikakolaki has been found guilty of sexually assaulting a massage client in circumstances where the client was in a vulnerable position and there was a significant power imbalance;
•	has shown some remorse for his conduct and empathy with the Client, but is still developing insight and is yet to take full responsibility for his actions; 
•	remains subject to a CCO and is still undergoing the SOT program; and
•	the places where he is likely to work if he is given a WWC clearance may include exposure to children who need a massage or other treatment, which may lead to circumstances where they are alone with the applicant while partially naked,
I am not satisfied that a reasonable person would allow their child to have contact with Mr Heidarikakolaki.
Any Child-Related Work Test
70	Mr Brnovic noted that, in Secretary to the Department of Justice & Regulation v OUX, the Court of Appeal observed that it was ‘difficult to envisage a case where the [Any Child-Related Work Test] will add anything of substance’ to the criteria set out in the Unjustifiable Risk Test.  
71	On that basis, the Secretary contends that the same factors considered for the Unjustifiable Risk Test mean that the Tribunal cannot be satisfied as to this test.
72	I accept that submission. 
Is it in the public interest to grant a WWC Clearance to the applicant?
73	While there are some public interest considerations that are favourable to Mr Heidarikakolaki, in light of the matters discussed at [56]-[61], I am not satisfied that, overall, it is in the public interest to grant a WWC Clearance to Mr Heidarikakolaki.

R. Tang, AM
Acting Senior Member