VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
review and regulation LIST	
vcat reference No. Z492/2020	
CATCHWORDS	
Private Security Act 2004 (Vic), section 25 – application for a security licence refused by Chief Commissioner’s delegate – application for review of decision – whether it would not be in the public interest to grant a licence – whether the applicant is not a fit and proper person to hold a licence – whether the applicant is unsuitable to hold a licence given conviction of offence under the Customs Act 1901 (Cth) of importing tier 2 goods (child pornography).	

APPLICANT	Mohammed Abdul Karim	
RESPONDENT	Chief Commissioner of Police 	
WHERE HELD	Melbourne	
BEFORE	A Dea, Senior Member	
HEARING TYPE	Hearing by video conference 	
DATE OF HEARING	22 February 2021 	
DATE OF ORDER and reasons 	11 March 2021	
CITATION	Abdul Karim v Chief Commissioner of Police (Review and Regulation) [2021] VCAT 203	
Orders
1	The proper respondent is the Chief Commissioner of Police.  The Principal Registrar is directed to amend the register accordingly.
2	Under section 51(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal orders that the respondent’s decision made on 25 May 2020 under section 25(1) of the Private Security Act 2004 (Vic) to refuse to grant the applicant a private security individual operator licence is affirmed.

A Dea
Senior Member			
APPEARANCES:		
For Applicant	Ms G Ozougwu, solicitor	
For Respondent	Mr W Jones, solicitor	

Reasons
1	In December 2009, Mr Mohammed Abdul Karim was granted a private security licence to work as a crowd controller and unarmed security guard (Security Licence).  He undertook that work, without incident, until July 2018.
2	In July 2018, Mr Abdul Karim went overseas to visit family.  When he arrived back in Australia on 28 July 2018, his baggage was inspected by Australian Border Force (ABF).  Mr Abdul Karim was found to be in possession of three mobile phones, two of which contained child exploitation material (CEM), in the form of three videos and one image.
3	While one of those (an iPhone) was Mr Abdul Karim’s usual personal phone, the other two (a Samsung and a Blackberry) were said to have belonged to a former housemate.  Although those two phones were not his, Mr Abdul Karim had used them from time to time, with the Samsung being used with a local sim card and number while overseas.
4	Mr Abdul Karim was interviewed by ABF members at the airport and was later charged with offences under the Customs Act 1901 (Cth) (Customs Act).  On 5 October 2018, Mr Abdul Karim pleaded guilty to and was convicted of importing tier 2 goods contrary to the Customs Act, namely child pornography.  He was sentenced to a Community Corrections Order, required to undertake treatment and rehabilitation and placed on the Sex Offenders Register for eight years.
5	Mr Abdul Karim cooperated with the ABF and police.  He made concessions in the interview at the airport and was honest about knowing the material on the phones and admitting he had been told to delete it more than once but had failed to do so.  He has completed the sentencing requirements and has reported to police as required by his Sex Offender Register status.
6	Mr Abdul Karim has consistently said the CEM was sent to his iPhone by someone else and that he did not seek it.  He has said the CEM on the Samsung was already there when it came into his possession.  Mr Abdul Karim explained he had intended to delete the video/s well before they were discovered by the ABF.  On one occasion, he planned to do so but was called on to urgently assist to send money overseas for his aunt’s medical care and forgot.  On two other occasions he intended to delete them but had forgotten to do so or had been unable to find the videos/image amongst his many other videos and photographs.
7	When police forensically examined the iPhone and Samsung (after the airport interview), they found Mr Abdul Karim had forwarded two of the videos to others.  He had also saved an image on the Samsung soon before arriving back in Australia.  
8	In November 2018, the Chief Commissioner of Police (Chief Commissioner) notified Mr Abdul Karim his Security Licence was suspended with immediate effect and that an inquiry into his suitability to continue to hold that Security Licence would be held.  After completing that inquiry and having regard to submissions from Mr Abdul Karim’s then solicitor, on 8 February 2019, Mr Abdul Karim was notified by the Chief Commissioner that his Security Licence had been cancelled.  
9	On 13 January 2020, Mr Abdul Karim applied to again be licenced.  After having regard to the criminal convictions, Mr Abdul Karim’s written submissions, character references and medical reports, on 25 May 2020, the Chief Commissioner’s delegate decided to refuse Mr Abdul Karim’s application.  
10	Mr Abdul Karim then applied to the Tribunal for review of the Chief Commissioner’s 25 May 2020 refusal decision.   
11	Under section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), my role is to make a fresh decision on Mr Abdul Karim’s application for a Security Licence exercising all of the functions of the Chief Commissioner.  I have the power to affirm or vary the decision or to set aside the decision and either substitute a fresh decision or remit the matter for re-consideration.
12	After considering the material contained in the parties’ joint Tribunal Book (including written submissions), hearing Mr Abdul Karim’s evidence, that of one of his referees and that of the Chief Commissioner’s delegate, and the parties’ oral submissions, I decided to affirm the Chief Commissioner’s decision to refuse a Security Licence.  While some evidence was favourable to Mr Abdul Karim, I have concluded that he does not meet the relevant probity requirements to hold a Security Licence and that it is not in the public interest for him to be licensed.
13	In these reasons, I first set out the relevant law and then summarise the evidence I considered when applying that law.
The applicable law
Private Security Act 2004 (Vic)
14	Decisions about private security licenses of the kind in issue are made under the Private Security Act 2004 (Vic) (the Act).
15	Relevant to this case, section 15 gives the Chief Commissioner power to grant a range of licences to people, including to act as a crowd controller or an unarmed security guard.  
16	Section 25 of the Act sets out the circumstances in which the Chief Commissioner must refuse to grant a licence.  Relevant here, section 25 says:
(1)  	The Chief Commissioner must not grant a private security individual operator licence if — 
(a)  	he or she is satisfied that the granting of the licence is not in the public interest; or 
(b) 	he or she is not satisfied that the applicant meets the probity requirements set out in subsection (2) 
(c) 	he or she is not satisfied that the applicant meets the competency requirements set out in subsection (3). 
(2)  	For the purposes of subsection (1)(b) the probity requirements are that the person — 
 	(a)  	is fit and proper; and 
. . . 
(e)  	is not a person in relation to whom — 
(i) 	not more than 10 years have expired since that person was convicted of any offence that in the opinion of the Chief Commissioner would render the person unsuitable to hold a private security licence;
			. . . 
17	For completeness I record there was no issue about Mr Abdul Karim meeting the competency requirements which are set out in section 25(3) and I noted he had successfully completed a range of courses relevant to a Security Licence.
18	Section 31(2) of the Act empowers the Chief Commissioner to impose a condition that a licence holder only carry on certain activities.  That was relevant here, because Mr Abdul Karim only wished to work in over-18 venues and was willing to have such a condition placed on his Security Licence. 
19	As noted earlier, when a review application is before the Tribunal, it is open to exercise all the powers of the Chief Commissioner. 
20	Given the way section 25 is framed, I was not required to be satisfied that Mr Abdul Karim was a fit and proper person or suitable or that it was in the public interest to grant a licence, but rather that those preconditions were not met.  As a consequence, Mr Abdul Karim carried no burden to prove those matters.  Equally, in an application of this kind, the original decision maker does not carry a burden to prove that the original decision was correct.  The parties were able to produce whatever evidence and make whatever submissions they wished and I was required to decide whether I had reached the required state of satisfaction, giving appropriate weight to the available material.
21	The time at which I was required to assess whether Mr Abdul Karim should be granted a licence was at the time of the hearing before me, not as at the time he was charged or convicted of the CEM related offences.  I was able to take into account what has happened since then and also the evidence about other relevant matters. 
22	The parties made very helpful submissions about the meaning to be applied to the public interest test and the probity requirements referred to in section 25(1)(a) and (b).  They included reference to a number of cases which have discussed aspects of those tests in the context of the Act.
23	I start with the probity requirements contained in section 25(2)(a) and 25(2)(e) of the Act.  
The probity requirements 
24	The meaning of the words ‘fit and proper’ contained in section 25(2)(a) of the Act was not in dispute.
25	The test for whether a person is fit and proper does not carry defined criteria but allows for a wide range of matters to be considered.  It includes not only whether a person has the necessary honesty, knowledge and ability, but also whether the person is possessed of sufficient moral integrity and rectitude of character to permit him to be accredited to the public as a person to be trusted.
26	The decision maker needs to make a value judgment and in so doing must make an assessment of the seriousness or otherwise of the particular conduct for evaluation. The same approach is to be applied to weighing matters in favour of the person. 
27	The test must be applied in the context of what the person will be authorised to do if the relevant permission is given.  The Act is not preoccupied with general character aspects, except to the extent those may be directly relevant to the purposes of the particular statute to discharge the responsibilities applicable to a particular licence.  
28	Accordingly, regard is to be had to the purposes and objectives of the relevant legislation and the particular responsibilities and powers the licence confers.  
29	The relevant part of section 1 of the Act says:
The purposes of this Act are - 
(a) 	to provide for the licensing and registration of certain participants in the private security industry; and
(b) 	to otherwise regulate the private security industry for the purposes of ensuring public safety and peace;
. . . 
30	The licence Mr Abdul Karim seeks would entitle him to work in a number of roles including as a crowd controller and a security guard.  The definition of ‘crowd controller’ shows that such a person is employed or retained principally to maintain order at any public place by doing all of any of the following: screening entry, monitoring or controlling behaviour, removing any person or otherwise maintaining order.  A security guard is a person who is expected to protect, guard or watch over property.  
31	Accordingly, Mr Abdul Karim’s capacity and temperament to undertake those tasks competently and in an appropriate manner is relevant.  
32	As licence holders are called on to ensure patrons adhere to venue requirements and the law and are often required to cooperate with police, their respect for and personal compliance with the law is paramount.  At times, licence holders are required to interact physically with others and so they must be able to be relied on to do so respectfully and careful not to cause harm or interfere with personal autonomy.  They are also sometimes required to protect the property of others – so they must be trustworthy and honest in their dealings with such property.  High levels of personal integrity and trustworthiness are essential.
33	The probity requirement in section 25(2)(e) raises a similar but distinct question.  That question arises where the applicant was convicted of an offence in the previous 10 years which, in the opinion of the Chief Commissioner (and the Tribunal on review), renders the person ‘unsuitable’ to hold a security licence.  The term ‘unsuitable’ is not defined.  As I understand it, the focus in section 25(2)(e) is on the offence itself rather than the wider enquiry into character required under section 25(2)(a).  Having said that, in circumstances where Mr Abdul Karim was convicted of importing CEM, it is appropriate to consider matters such as integrity, respect for the law and, most importantly, other persons. 
The public interest test
34	The public interest test in section 25(1)(a) of the Act is an objective one and is determined having regard to considerations which are relevant to the type of licence which is the subject of the enquiry.  Regard is to be had to the purposes and objectives of the Act as set out earlier. 
35	The term ‘in the public interest’ in section 25(1)(a) of the Act is of broad import.  Making an assessment of whether granting a licence is not in the public interest involves a discretionary value judgment.  That judgment can be informed by a wide range of matters.  That range can only be confined by the subject matter, scope and purpose of the statute in question.  The type of licence in question will determine the weight to be given to certain factors.
36	In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY, the Victorian Court of Appeal concluded that considering whether a grant of a licence is in the public interest should not be informed by a concern about adverse media comment or a concern about uninformed public sentiment.   
37	Also relevant to this test is the interest in encouraging people to be ‘worthy citizens and people of good fame and reputation’, including by their participation in the workforce.  
Senior Sergeant Pinner’s evidence 
38	Senior Sergeant Pinner was the delegate of the Chief Commissioner who made the May 2020 refusal decision.  He made a statement and gave evidence at the hearing.
39	Since 2014, Senior Sergeant Pinner has been stationed with the Licensing & Regulation Division of Victoria Police (LRD).  LRD is responsible for licensing decisions under the Act.
40	When making his decision on Mr Abdul Karim’s application, Senior Sergeant Pinner considered the ABF records, the criminal convictions and outcomes, the character references Mr Abdul Karim supplied, medical reports and Mr Abdul Karim’s submissions.  
41	He had regard to the nature of the offending and the roles security guards and crowd controllers play.  He noted in his statement that those roles include having control over members of the public and private property and that they require a basic level of honesty, integrity and trustworthiness.  He concluded that the criminal offences and the fact Mr Abdul Karim told the ABF that he had not disseminated the videos in question indicated he did not hold the required qualities.
42	In his oral evidence before me, Senior Sergeant Pinner referred to the offences as some of the most serious there are.  He expressed particular concern that Mr Abdul Karim had been proven to have saved material onto one of the phones and so the material being found on that device was not accidental.  He also noted Mr Abdul Karim had viewed and retained the CEM. 
43	Senior Sergeant Pinner stated that he did not believe Mr Abdul Karim ought to be licensed because he may pose a risk to the community and children in particular.  He referred to security guards working in shopping centres and other locations where they are seen as someone to be trusted and someone an adult or child might go to for help.
44	Senior Sergeant Pinner stated he had worked on CEM related matters in the past and was aware that it was often the case that offenders did not tell those around them of their offending.  He referred to those offenders keeping a ‘deep dark secret’.  He made that comment in the context of Mr Abdul Karim’s character references, none of which made plain that the referee was aware of the prior offending or why the reference was required.
45	In cross-examination, Senior Sergeant Pinner confirmed he was aware that Mr Abdul Karim had been in Australia for around 25 years and had no other criminal offending.  He was also aware Mr Abdul Karim had worked as nightclub bouncer for many years.
46	He was asked about the conditions the Chief Commissioner can impose on Security Licences and whether a condition could be applied such that Mr Abdul Karim would only be able to work at over-18 venues and events.  Senior Sergeant Pinner agreed such a condition could be imposed but stated that Victoria Police’s systems do not allow LRD to keep track of the around 300,000 people licensed under the Act or to know where they all worked.  He explained that meant such conditions were difficult to enforce and so LRD depended on the honesty of licence holders to comply.  He expressed concern that Mr Abdul Karim had not acted honestly in the context of the criminal offences and so LRD could not have faith in him complying with a condition of the kind proposed.
47	Senior Sergeant Pinner agreed that the criminal penalty imposed on Mr Abdul Karim was at the lower end but said that did not mean the offences were not serious and were not at the higher end of assessment when it came to considering suitability under the Act.  He referred to a person on the street and suggested they would not be confident that a person who had looked at and shared CEM would be regarded as someone to be trusted and to comply with the law.
Mr Evans Hammond’s evidence
48	Mr Evans Hammond is a former employer and friend of Mr Abdul Karim.  He owns and operates a security company.  He supplied a suitability reference to accompany Mr Abdul Karim’s Security Licence application in January 2020.
49	He agreed to give evidence at the hearing despite only being asked to do so on the day.  While he had not been able to prepare and did not have access to records of employment, he gave careful and measured evidence. 
50	Mr Hammond stated he has known Mr Abdul Karim for around 20 years – first as a member of the community and then as a casual employee.  He knows Mr Abdul Karim’s step children.
51	Mr Hammond stated that, when Mr Abdul Karim told him about the criminal charges he was shocked and surprised.  He had seen his friend with his own children and others and, as I understood it, did not believe he presented a risk.  He said he told Mr Abdul Karim he should have deleted the CEM and that they were bad.  When Mr Abdul Karim told him he had sent videos to others, Mr Hammond said he was shocked.  He again told Mr Abdul Karim he should not have done that.
52	Mr Hammond was aware the videos had been sent to Mr Abdul Karim via WhatsApp and, as I understood it, he or perhaps others he knew had also received CEM via that medium.  He referred to needing to delete it straight away and advising Mr Abdul Karim to be careful.
53	Despite all of that, Mr Hammond said he would employ Mr Abdul Karim again because he had known him well for so long and believed he did not present a risk to anyone, referring to past work environments where children had been present. He considered Mr Abdul Karim to be an honest and good employee.
54	There were some questions about when Mr Abdul Karim had last worked for Mr Hammond, given in his suitability reference Mr Hammond had referred to them discussing a ‘job’ around Christmas in 2019.  The initial impression given was that Mr Abdul Karim may have worked after his Security Licence had been suspended in late 2018.  As Mr Hammond had not checked his records before joining the hearing and could not do so on the spot, the question was not resolved.  Having said that, Mr Hammond had been aware Mr Abdul Karim’s licence was suspended and stated he would not risk his own licence by employing an unlicensed person.
Medical reports
55	Mr Abdul Karim relied on two reports prepared by Dr Ashraf Saddik dated 20 April 2019 and 14 April 2020.  
56	The reports summarised Mr Abdul Karim’s background and referred to the events which led to the criminal charges.  The reports stated Mr Abdul Karim had consulted with Dr Saddik for assessment and formulation of a mental health plan over five visits.  Dr Saddik did not diagnose a depressive disorder or any anxiety.  He was said to have a stable personality, and no personality disorder but stress arising from multiple events including losing his job as a security guard. 
57	The reports only mention one WhatsApp message containing CEM and do not mention the fact that Mr Abdul Karim had sent videos to two other people or that at least one CEM image was saved onto a phone shortly before Mr Abdul Karim arrived back in Australia in July 2018.  The one message mentioned was said to have been sent to express sadness at the ‘drop in ethics in recent years among African kids’.  It is not entirely clear to me whether that phrase was intended to suggest the children depicted were to blame for their abuse or whether it referred to the maker’s ethics.
58	Mr Abdul Karim is described as having expressed great remorse for not taking appropriate actions at the time.  Dr Saddik stated he believed his patient posed ‘a remote risk of offending since it was purely a lack of awareness of the laws and also he was not primary source rather he was a recipient of [the message]’.
59	In the 14 April 2020 report, Dr Saddik said he had completed the suitability reference to accompany Mr Abdul Karim’s application for a Security Licence and added that Mr Abdul Karim was fully aware of his responsibilities and abided by the laws for security guards.  His opinion was that Mr Abdul Karim did not impose any risk to himself or the public.  He repeated the above comments as to Mr Abdul Karim’s risk of reoffending.
60	In fairness to Dr Saddik, I anticipate that the shortcomings in the reports as to details of the offending were the result of Mr Abdul Karim’s failure to disclose rather than any error or inaccuracy in the reports prepared by Dr Saddik. 
Mr Abdul Karim’s circumstances and evidence 
61	Mr Abdul Karim has lived in Australia for around 25 years and he is now around 51 years of age.  He arrived as a refugee from Liberia when he was 23.  He had step children from his first marriage living with him for some years.  Mr Abdul Karim has worked within the refugee and African community in Melbourne.  He supplied many very positive character references.   
62	Mr Abdul Karim worked in the security industry from 2009 without incident.  He provided references from employers which were positive about his attitudes and suitability for the work.  
63	As mentioned earlier, Mr Abdul Karim pleaded guilty to the charges.  He has complied with the court outcomes and remains on the Sex Offenders Register.  
64	Mr Abdul Karim has no other criminal convictions or findings of guilt and there was no evidence he has been violent in any context in the past.
65	When interviewed by the ABF, Mr Abdul Karim agreed that he either owned the phones or had them in his possession.  He conceded that the first time he received CEM he had been told he should delete it and had intended to do so.  
66	Mr Abdul Karim said that, at the time he was taken to be interviewed by the ABF, he was offered an interpreter, but he declined because he could understand and speak English well, even though it was his second language.  In his evidence he referred to a number of ABF officers questioning him and I understood that at the time he found that confusing and perhaps overwhelming.  
67	In cross-examination at the hearing before me, he conceded he had not told the ABF officers he had sent CEM to others. 
68	The above matters are in Mr Abdul Karim’s favour.  I accept he has been a trusted and capable employee in the past.  I accept he is well regarded in his community, as evidenced by the many references from community members.  It is in Mr Abdul Karim’s favour that he informed Mr Hammond (and it seems many others) about his criminal charges and conviction.  I accept that he told Mr Hammond not only about the charges and conviction but also that he had sent CEM to others.  That indicates a welcome degree of honesty.  It is also in his favour that he made a number of concessions when first interviewed by the ABF.
69	However, there was other evidence that led to significant concerns in my mind.  To explain those it is necessary to detail further evidence about the phones and what further forensic examination of the three phones revealed.
70	As mentioned, the ABF further examined the iPhone and Samsung.  Mr Abdul Karim had been in possession of the iPhone for some years and the Samsung since April 2018.  
71	Mr Abdul Karim’s evidence about how the Samsung came into his possession was as follows.  The original owner was a housemate.  After he moved out, Mr Abdul Karim came home to find the housemate collecting a package that had been delivered to the home even though the housemate no longer lived there.  It seemed there was an argument and a tousle as Mr Abdul Karim was concerned the parcel contained something illegal or suspect.  Somehow the housemate’s jacket came off and was left behind.  The Samsung was in the pocket and, thereafter, Mr Abdul Karim used it when overseas, purchasing a local sim card.
72	The iPhone contained Videos 1, 2 and 3.  
73	Videos 1 and 2 contain child pornography.  Video 3 is said to show a child aged between 2 and 5 being physically abused by an adult female, including being kicked in the head and thrown to the ground.  The material was all classified as CEM.
74	Videos 1 and 2 were received via a WhatsApp message on 1 February 2018.  They were both were saved in multiple places on Mr Abdul Karim’s personal iPhone.  
75	On 2 February 2018, Videos 1 and 2 were sent to one of Mr Abdul Karim’s contacts.  In his evidence before me, Mr Abdul Karim was asked about his dealings with Video 1 only.  He stated he sent it to a long time male friend and mentor in order to express upset at what was happening in the world and particularly to African children.  That friend told Mr Abdul Karim to delete the message immediately and told him it was illegal and dangerous to have on his phone.  The mentor friend told Mr Abdul Karim to make sure others did not send that kind of material to him again.
76	No explanation was given about why Video 2 was sent to that same mentor friend.
77	On 10 May 2018, Videos 1 and 2 were sent to another one of Mr Abdul Karim’s contacts.  At the hearing, again speaking only of Video 1, Mr Abdul Karim said that recipient was a female friend.  He said Video 1 was in a group of about 10 images/videos and he was sending her the others and Video 1 was included.  When his female friend contacted him about it around a month later, he was again told he should delete Video 1.  He said he went through his phone but could not find it to delete.
78	No specific explanation was given about why Video 2 was sent to that same female friend.
79	Videos 1, 2 and 3 were also found on the Samsung.
80	Image 4 is child pornography.  It was saved to the Samsung on 13 July 2018.  That was while Mr Abdul Karim was overseas.
81	On the question of deletion of the CEM, Mr Abdul Karim stated at the hearing that, on around 2 February 2018 when told by his mentor friend to delete Video 1, he forgot to do so.  He explained that, at that time, his aunty was in hospital in Ghana and soon after the conversation with the mentor friend, he received a call asking that he quickly go and deposit funds for an operation for his aunty.  He rushed off and forgot about Video 1.
82	He was asked why he did not delete the content after his female friend told him to do so in May 2018.  He then explained that he had searched to find Video 1 on his iPhone but could not locate it – he referred to having so many WhatsApp groups and so many contacts.  He was apparently searching for it but could not find either Video 1 or the person who sent it to him.
83	No explanation was offered as to why Videos 2 and 3 were not deleted from his iPhone or why Videos 1, 2 and 3 were not deleted from the Samsung.
84	As to Image 4, at the hearing during cross-examination, Mr Abdul Karim said it was on the Samsung already when he started using it in around April 2018 and he deleted it then.  When he was referred to the ABF finding that it had been saved on the Samsung on 13 July 2018 when he was overseas, he said he looked at the phone at the airport, saw Image 4 and deleted it.  He said there was a delay in that being processed.  It was suggested by him that was common on Google.  No evidence about that deletion process was provided but the delay was said to explain why Image 4 was on the phone when the ABF questioned him soon after.  
85	On 25 November 2018, Mr Abdul Karim wrote to LRD about the proposal to cancel his licence.  He referred to child pornography being sent to his phone (presumably the iPhone) to show how children were being treated.  He said he had forgotten to delete it.  No reference was made to the multiple items of CEM on that phone or the others or the fact he had forwarded CEM to others.
86	Mr Abdul Karim gave evidence that, after being convicted, he had told others not to send CEM to him in future and he also said he knew he should delete it if received.
Applicant’s submissions on application of the fit and proper and public interest tests
87	In reply written submissions, Mr Abdul Karim’s solicitor referred to the meaning to be applied to the term ‘fit and proper’ in similar terms to that discussed above.  She also referred to a guide used by the New Zealand Electrical Workers Registration Board making decisions about whether an applicant is fit and proper.  I accept those can be relevant considerations, including how a member of the public who had dealings with the applicant would view their offending and the matter more generally.
88	The submissions contended that additional considerations are mitigating factors such as whether the conduct in question:
•	Was regarded as relevant to exercising duties required for the registration, licence, authorisation, certification (or equivalent);
•	Occurred some time ago;
•	Was a one-off incident, and not recidivist;
•	Was of low-level severity; and
•	Culminated in a prolonged change in professional disposition, such that the evidence pointed to the fact that the person had learnt, changed, improved and was on the overwhelming balance of probabilities unlikely to further offend.
89	In respect of the public interest test, the applicant’s solicitor submitted that, unlike a case such as TLP v Chief Commissioner of Police, Mr Abdul Karim did not have a serious and long criminal history and in fact had no other criminal history in his 25 years in Australia.  The submissions then said:
His offending was that he passed an obscene message he received on his phone through a group WhatsApp.  Any member of the public hearing what applicant did will not be concerned that applicant is a private security operator, he did not commit murder, he did not steal or take someone’s property, or even assault a child or adult sexually.
. . . 
We submit that having regard to the circumstances of the offence. It is in the public interest that applicant’s criminal history, his error of judgement or omission, his [motive] in transferring the video he received to someone else, the tribunal should find that applicant is a fit and proper person to be granted a private security licence and that applicant is competent and meets probity requirement and consequently revoke the cancelation of applicant’s Private Security Individual Operator licence accordingly …
Decision
90	I am satisfied it is not in the public interest for Mr Abdul Karim to be granted a Security Licence and that he does not meet the probity requirements in section 25 of the Act.
91	The reasons for making those findings are interrelated and overlapping.  I start with the probity requirements.
92	Mr Abdul Karim’s evidence was that he was aware the CEM was on his iPhone from February 2018 and ought to be deleted.  Despite that, he did not delete the material even after being encouraged to do so by a respected mentor and later by a female friend.  I found his explanations for not doing so most unsatisfactory.  
93	While urgent calls on his time might have affected him acting on 2 February 2018, that cannot explain why he did not delete the CEM later if in fact he intended to do so.  
94	I could not understand how, on the one hand, he could locate Videos 1 and 2 so as to forward them to others, but could not find them shortly thereafter so as to delete them.  There was no explanation about how or why he saved Image 4 onto the Samsung in mid-July 2018 in circumstances where he says he knew such images were illegal and ought to be deleted and he was soon to return to Australia.
95	Importantly, the explanations given at the hearing did not include what was said in the interview with the ABF.  At that interview, Mr Abdul Karim stated that the CEM (perhaps referring only to Video 1) was sent to him and he was told to view it once and to then delete it.  He also told the ABF he was sent the CEM with a message which said ‘How fucked up is this?’, apparently referring to the content itself rather than as a comment about the treatment of the children depicted.  The content of the ABF interview indicates Mr Abdul Karim was aware at the time the CEM was received that it was legally problematic and risky to possess and so he should delete it immediately.  
96	Those circumstances reduce my confidence the evidence given before me was complete and given with the honesty to be expected of a fit and proper person. 
97	Mr Abdul Karim said he forwarded the images to his mentor to illustrate the harm being done to children.  How sharing such exploitative material could be an appropriate means to make that point eludes me.  I have some difficulty accepting it is a truthful explanation. 
98	The explanation for why the CEM was found in July 2018 seemed to arise in part from Mr Abdul Karim being a member of many large WhatsApp groups and having many contacts.  His evidence and that of Mr Hammond seemed to suggest that it is not unusual for CEM to be circulated in those groups and that, to avoid receiving it, it is necessary to tell others not to send it or make sure it is deleted.  
99	That is very troubling evidence and suggestive of an extreme desensitisation of group members to disgusting and abhorrent content.
100	In my view, a fit and proper person who is expected to adhere to the law and respect all people would have deleted such material immediately (even if they were busy) and, if they could not locate it readily, terminate their membership of the relevant WhatsApp group.  
101	In my view, a fit and proper person would not have saved CEM in multiple places on their devices and sent it to others for any reason.  
102	Mr Abdul Karim contended that he was not a risk to children and Mr Hammond and Dr Saddik said the same.  As noted earlier, Mr Abdul Karim sought a Security Licence limited by conditions so that it would be plain he would not work with children.  
103	In my view, that application was misconceived.  
104	I acknowledge there was no suggestion Mr Abdul Karim had made or otherwise participated in the creation of the CEM or had harmed a child in the past and so was a risk in that sense.  However, it seemed to me that over-18 nightclubs and the like might well provide a venue for further receipt, viewing and circulation of CEM given the well documented presence of excessive amounts of alcohol (and sometimes illicit drugs) and the apparent widespread sharing of that content.  The issue was not the kinds of venues at which Mr Abdul Karim might work.  
105	My concern was that Mr Abdul Karim had not demonstrated an appreciation of the seriousness of the offending and his related conduct and nor had he demonstrated the expected honesty and integrity when giving evidence about those matters. 
106	I agree with the Chief Commissioner’s submission that, including through the written submissions, he had minimised the nature and seriousness of the conviction.  I also accept the submission that the fact Mr Abdul Karim has been placed on the Sex Offenders Register shows the presiding Magistrate regarded the offending as very serious.
107	What Mr Abdul Karim’s evidence, his submissions and the proposal that he be granted a Security Licence subject to a condition failed to engage with is that any participation in the use or circulation of CEM presents a risk to children, most acutely those who are abused to create it.  
108	Further, the seriousness of that offending and related conduct has not been reflected in the case put to the Tribunal.  I cannot accept the written submissions to the effect that Mr Abdul Karim merely passed on an ‘obscene message he received on his phone through a group WhatsApp’, that he made an ‘error of judgement or omission’ and that any member of the public made aware of the conviction would not be concerned about him holding a Security Licence because he did not commit murder, or steal property, or ‘even assault a child or adult sexually.’   
109	While I consider it unlikely Mr Abdul Karim will offend in this way again given the serious repercussions for him to date, I am not satisfied he has understood and accepted the offending and related conduct was serious in nature.  He appears to consider himself unlucky to have received the material and not deleted it in a timely fashion, rather than appreciating his actions were contrary to law and societal expectations as to respect for and protection of children.  
110	For all those reasons, I am not satisfied Mr Abdul Karim is fit and proper to hold a Security Licence.  
111	For the same reasons, and in particular given he does not appear to appreciate the nature of the offending of which he was convicted, Mr Abdul Karim is rendered unsuitable to hold a Security Licence.   
112	As a consequence, I am not satisfied Mr Abdul Karim meets the section 25 probity requirements.
113	As to the public interest, I adopt Senior Sergeant Pinner’s expression of the test – would a person on the street be satisfied that a person who has possessed, viewed and shared CEM be appropriate to be granted a Security Licence?  
114	Taking into account the nature and seriousness of the conduct and my concerns about the honesty and reliability of the evidence given, I am satisfied the answer would be in the negative.  
115	I accept Mr Abdul Karim would personally benefit from a return to private security work and I also accept there is a general public interest in him being employed and financially independent.  
116	However, having regard to the matters discussed, I am not satisfied that the granting of a Security Licence is in the wider public interest. 
117	For those reasons, the Chief Commissioner’s refusal decision has been affirmed.

A Dea
Senior Member