VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z764/2020
	
CATCHWORDS	
Review and Regulation List – Estate Agents Act 1980 – review of decision by Business Licensing Authority to refuse applicant permission to be employed as an agent’s representative – application for permission made under section 31C of the Act – history included guilty plea and conviction on charge of dealing with money or other property reasonably suspected of being proceeds of crime worth $100,000 or more, contrary to section 400.9(1) of the Criminal Code 1995 (Cth) – further relevant history included involvement in real estate industry not disclosed to BLA - whether giving permission “is not contrary to the public interest” – decision affirmed. 

APPLICANT	Miten Shah 	
RESPONDENT	Business Licensing Authority	
WHERE HELD	Melbourne	
BEFORE	J Billings, Senior Member	
HEARING TYPE	Hearing via videoconference	
DATE OF HEARING	18 March 2021	
DATE OF ORDER	15 April 2021	
CITATION	Shah v Business Licensing Authority (Review and Regulation) [2021] VCAT 352	

Order
The decision of the respondent made on 15 September 2020, refusing permission to the applicant to be employed as an agent’s representative, is affirmed.

J Billings
Senior Member 

APPEARANCEs:		
For Applicant 	In person	
For Respondent	Ms E Palmer, solicitor 	

Reasons
1	This is an application under section 32(1) of the Estate Agents Act 1980 (the Act) for review of a decision made on 15 September 2020 by the respondent, the Business Licensing Authority (BLA), under section 31C of the Act to refuse permission to the applicant, Mr Shah, to be employed as an agent’s representative.
2	Mr Shah is aged 39 years.  He is married with young children.  He is an Australian citizen who was born in India and came to Australia in 2006.  Mr Shah has qualifications including postgraduate qualifications in Engineering.  He has been employed mainly in the telecommunications industry, but he has not been in regular employment for a year or more.  The COVID-19 health crisis severely disrupted his career, though Mr Shah has been offered employment as an agent’s representative.  
3	Mr Shah applied to the BLA on 16 June 2020 for permission to be employed as an agent’s representative.  The reason he had to apply for permission was that he had been convicted within the last 10 years of a criminal offence involving dishonesty which was punishable by imprisonment for 3 months or more: see sections 16(1)(c) and 31C of the Act.   (On 25 June 2015, Mr Shah pleaded guilty in the Magistrates’ Court of Victoria at Melbourne to one charge of dealing with money or other property reasonably suspected of being proceeds of crime worth $100,000 or more, contrary to section 400.9(1) of the Criminal Code 1995 (Cth).  He was convicted and sentenced to six months’ imprisonment.  The Court ordered under section 20(1)(b) of the Crimes Act 1914 (Cth) that Mr Shah be released forthwith on entering into a recognisance in the sum of $1,000.00 to be of good behaviour for 12 months).
4	The date of the criminal offence was 4 November 2014.  That was the Melbourne Cup public holiday in Melbourne.  Mr Shah flew to Perth with a friend that day.  The friend collected a white shopping bag outside the airport terminal.  The two were arrested at the airport.  Police found $239,550 cash in a box inside the bag.  At the time of the offence Mr Shah was aged 32 years.  
5	The Tribunal Book contains information about the offence provided by Mr Shah and information that the BLA obtained from the Magistrates’ Court and the Commonwealth Director of Public Prosecutions.
6	The Tribunal Book also contains documents relating to Mr Shah’s academic and employment history, and several character references. 
Section 400.9 of the Criminal Code 1995
7	Section 400.9(1) of the Criminal Code 1995 (in Part 10.2 headed “Money laundering”) provides:
A person commits an offence if:
                     (a)  the person deals with money or other property; and
                     (b)  it is reasonable to suspect that the money or property is proceeds of indictable crime; and
                     (c)  at the time of the dealing, the value of the money and other property is $100,000 or more.
Penalty:  Imprisonment for 3 years, or 180 penalty units, or both.

8	Section 400.9(4) provides that absolute liability applies to section 400.9(1)(b) and (c) but section 400.9(5) relevantly provides that the section does not apply if the defendant proves that he or she had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity.
9	Section 400.9(2) relevantly provides that for the purposes of the section it is taken to be reasonable to suspect that money is proceeds of an indictable crime if, for instance, the value of the money involved is, in the opinion of the trier of fact, grossly out of proportion to the defendant’s income and expenditure over a reasonable period within which the conduct occurs.  
The application for permission and subsequent correspondence 
10	Mr Shah disclosed the conviction to the BLA in his application for permission to be employed as an agent’s representative.  He said:
I got stuck in it due to someone.  I had nothing to do with the offence, and I was only accompanying someone as he told me to travel for some work with him and I had no idea of what he was trying to do until I got stuck in it.  
11	The BLA, by letter dated 17 June 2020, wrote to Mr Shah requesting that he provide further information including “a detailed description of the circumstances and events that led to [him] committing [the offence]” (emphasis in original).  
12	Mr Shah responded by letter dated 17 June 2020.  In relation to the offence, he provided a copy of his police record of interview and a letter from the solicitors who acted for him at the time he was sentenced. (I refer to important information in those documents below).  Mr Shah said he “had no intention of doing any crime at all” and that “this single incident was unintentional and if [he had] known about the purpose, [he] would never have done anything like this”.  
13	The BLA, by letter dated 18 June 2020, wrote to Mr Shah again.  The BLA noted that Mr Shah had not provided a detailed description of the circumstances of the offence and asked that he do so.  
14	Mr Shah responded by letter dated the same day.  He said that sometime after 9.30 pm on (Monday) 3 November 2014 he received a call from his friend to say that he was visiting Perth for some work and to ask if Mr Shah would like to join him, leaving in the morning and returning the same day.  The friend booked Mr Shah’s ticket and the next morning they went to Melbourne airport and flew to Perth.  They had return flights that evening.  His friend booked a hire car.  After “getting out from the airport”, Mr Shah said he would pick up the hire car, but his friend said they should let him finish his work first, so Mr Shah accompanied him.  The friend “finished the work where he had to pick some bag” and they came back to the airport to collect the hire car, because Mr Shah wanted to look around Perth.  His friend said his work was done and “if required” they could get an earlier flight back to Melbourne.  Mr Shah agreed because they would still have enough time to see Perth.  When they went to the counter to inquire about available flights, police came and took them for questioning.  Mr Shah said he was completely shocked because he did not understand what was happening, or why.  The two were interviewed separately.  Mr Shah said he was granted bail and he returned to Melbourne that night.  He consulted a lawyer who said that if he wanted to close the matter as soon as possible, the fastest and easiest way would be to accept that he accompanied his friend to collect money.  Mr Shah said that he took the lawyer’s advice.  Mr Shah also said however that he was not happy that he was convicted (rather than being given a bond), and that his legal team actually did not help him.  
15	Mr Shah further stated that he had nothing to do with what had happened but he wanted “to just close this and get out of it”, so he and his wife decided to take this step (of pleading guilty, he said by implication).  He added that “it was unintentional and unknown” and that “[if he] had known the reason, [he] would not have gone ahead nor would [he] have let the other person do anything like this”.  Mr Shah said he just went with the other person and did not expect anything like what happened.   
16	The BLA, by letter dated 17 August 2020, advised Mr Shah that there were serious concerns about granting him permission to be employed as an agent’s representative and, among other things, asked him to provide further information in relation to the circumstances of the offending, noting that to date he had provided little detail about that.  Specifically, the BLA inquired what the plan was between him and his co-accused; what he was to gain as the result of his participation; and what he understood about the source and intended use of the money that the police found.  The BLA noted that it sought the information in the context of Mr Shah pleading guilty to all elements of the offence.  
17	In an undated letter in response, Mr Shah said that he had “no gain from any of this as [he] had no idea about it”.  He said that had he had known about the other person’s intention he would not have visited Perth with him and would have stopped him from doing any of this.  Mr Shah said he pleaded guilty because his lawyer said that would be the easiest and fastest way to get out of it.  He said in effect that he was influenced by the fact that his wife was pregnant at the time and that he had a good job and was happy with his achievements.  Mr Shah said he had no idea about the funds at all.  
18	The BLA wrote to Mr Shah again on 19 August 2020.  The BLA said that the information Mr Shah provided in response to its concerns did not really address its concerns and was in contrast to his solicitors’ letter.  (The solicitors’ letter was dated 31 March 2016, which was about nine months after the court date.  It was addressed to Mr Shah.  The letter noted that counsel appeared at Court on his behalf.  Among other things, the solicitors wrote that Mr Shah explained to police that his friend asked him to go to Perth with him for the day and that Mr Shah agreed without any knowledge of his friend’s intention.  The letter continued: “You only became aware towards the end but did not fully appreciate the criminality”.   The letter described Mr Shah’s guilty plea, with the matter being dealt with summarily in Melbourne, as “a pragmatic course”.  The solicitors also wrote: “The factual basis of the plea was that your co-accused asked you to come to Perth with him and you only became aware of any wrongdoing after your arrival”.  Towards the end of the letter the solicitors wrote: “The court accepted that your involvement was minimal and that your co-accused was the more active participant”).  In the BLA’s letter to Mr Shah, the BLA asserted that “[d]espite becoming aware of what [his] companion was intending to do, [Mr Shah] continued to assist [him]”.  The BLA invited Mr Shah to provide a further response.        
19	In an undated letter in response, Mr Shah said he wanted to contest the charges, but his lawyer advised him to plead guilty.  He said that had he known about the other man’s intent he would not have joined in any such activity.  By implication Mr Shah also suggested that delays in the criminal justice system had contributed to him not having his case reviewed.  
20	The BLA, by letter dated 3 September 2020, requested Mr Shah to comment on whether he had appealed the conviction and to provide evidence of that; and to say how the BLA could be satisfied that Mr Shah would not deal inappropriately with significant cash transactions (in relation to real estate business) that may be the proceeds of crime.
21	Mr Shah provided a response to the BLA dated 3 September 2020. He said that he wanted to engage a lawyer to lodge an appeal because the episode had caused a lot of stress for him and his family.   He said in effect that he would never deal inappropriately with significant cash transactions because he had never acted wrongfully and that it would be contrary to his and his family’s culture and principles.  Mr Shah referred in particular to his academic history and his employment history.  
22	In the BLA’s letter dated 17 June 2020, mentioned earlier, and in other correspondence, the BLA requested Mr Shah to provide information about some separate matters.  The matter that is most important now concerns work that Mr Shah did for a real estate company, Zen Element Property Group Pty Ltd (Zen Element Property), from 3 August 2015 to 31 January 2016: see further below.  
Oral evidence 
23	I heard oral evidence from Mr Shah and the following witnesses who also made written statements on his behalf: Ms Devanshi Shah (Mr Shah’s wife), Mr Nirav Shah (Mr Shah’s cousin), Ms Monika Mehta (a friend), and Mr Rajan Shah (a licenced real estate agent and prospective employer).  (Mr Rajan Shah is not related to Mr Shah).   
24	There were some anomalies in Mr Shah’s evidence to the Tribunal that I will come to.  For the present I merely note a few points.
25	Mr Shah confirmed that he has never appealed the conviction.  
26	Mr Shah maintained that he was an unwitting participant in what took place at Perth airport.
27	Mr Shah and some of the witnesses told me that his co-accused is still known to them, though really only as a member of their community.  Mr Shah said that he has not had contact with him since the episode in Perth.  After they were charged, his friend obtained separate legal representation.  He too pleaded guilty and avoided going to prison.  Mr Shah said that his friend took responsibility and exonerated him.  His friend had no prior convictions and has not had any problems with the police since.  
28	Mr Shah told me that he never learned what the source of the cash was, nor what his friend was intending to do with it.  
29	The witnesses had very limited knowledge about the episode in Perth.   The main point of their evidence was to say that Mr Shah has led a good life and that he would never knowingly join in criminal activity.  The witnesses made particular mention of Mr Shah’s academic achievements and employment history, his care for his family, and his involvement in the community, especially his Jain religious community.   
30	The witnesses also had very limited knowledge about Mr Shah’s previous involvement in the real estate industry.  They did not have specific information about Zen Element Property.  
Section 31C
31	Section 31C of the Act provides that permission can be given to a person to be employed as an agent’s representative in circumstances like Mr Shah’s.  
32	Section 31C(1) provides that the section applies to a person who has, within the last 10 years in Australia or elsewhere, been convicted or had found proven against him or her any offence involving fraud, dishonesty, drug trafficking or violence which was punishable by imprisonment for 3 months or more.  The section enables the person to apply to the BLA for permission to hold an estate agent’s licence or to be employed as an agent’s representative.  (There is no controversy that Mr Shah’s offence is one that involves dishonesty and that it is an offence that is punishable by imprisonment for 3 months or more).
33	Section 31C(3) provides that the BLA may give its permission if it is satisfied that it is not contrary to the public interest for it to do so.
34	Section 31C(5) provides in effect that a person granted permission is eligible to act as an agent’s representative despite the prohibition in section 16(1)(c) of the Act.   
The public interest
35	Section 31C gives the decision-maker discretion to permit a person to be employed as an agent’s representative if satisfied that it is not contrary to the public interest to do so.
36	In East Melbourne Group Inc v Minister for Planning [2008] VSCA 217 at [126], citing Sullivan v Farrer (1989) 168 CLR 210, 216, Warren CJ made these remarks about “the public interest”: 
… The expression ‘in the public interest’ in a statute has been interpreted as importing a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.’
37	The Act guards the public interest by ensuring that real estate agents and agents’ representatives are fit and proper persons.
38	Inglese and anor v Estate Agents Board [1989] VicSC 414 (unreported, Supreme Court of Victoria, Murphy J, 31 August 1989) concerned disqualification of an agent rather than an agent’s representative, but the judgment contains an important statement about the public interest. Murphy J said at p. 22:  
If an estate agent is to be disqualified, the purpose which the Tribunal should have in mind is not the punishment of the individual (though it may appear to be a punishment to him) but the importance of protecting the public and the necessity to maintain standards in the conduct of an estate agent’s business.  
39	In the specific context of s.31C(3) of the Act, in Ruscitti v Business Licensing Authority [1999] VCAT 1981, VCAT said:  
The factors to which this Tribunal has to have regard is not the punishment of the individual but the protection of the public … and the maintenance of standards in the conduct of a profession that is being regulated. It is the degree to which the public interest is served by having or not having the applicant as an agent’s representative.
40	The BLA cited a number of relevant judgments, and VCAT decisions - especially Darragh v Business Licencing Authority [2012] VCAT 1360, Koksal v Business Licencing Authority [2012] VCAT 1694, Long v Business Licencing Authority [2013] VCAT 2047, and Flessas v Business Licencing Authority [2016] VCAT 78.  The BLA’s submissions highlighted this statement by VCAT in Koksal: 
Real estate agents and their representatives carry with them a great requirement that they have the confidence of the public when dealing with them. They go into people’s homes. They are given the keys to those homes and are able to enter those homes when the owners are not present. They represent the owners of the homes in negotiations with prospective purchasers.  It is imperative that the public has confidence in the real estate industry and its members … It is in the public interest for persons employed in the real estate industry to enjoy the confidence of the public … 
41	In Flessas VCAT noted that “the cases make clear [that] the protection of the public and the maintenance of standards, and public confidence in those standards, is at the forefront of the decision” whether to grant permission: at [24].   
42	The cases identify relevant considerations including –
•	The nature and circumstances of the offence (which may bear on the question of the risks and detriment to which members of the public may be exposed by the person being employed as an agent’s representative) 
•	The time that has passed since the offence was committed
•	The person’s insight and remorse 
•	The behaviour of the person since the offence was committed 
Consideration 
43	For me to set aside the BLA’s decision and give Mr Shah permission to be employed as an agent’s representative I would have to be satisfied that it is not contrary to the public interest to do so.
44	For reasons that follow, I am not satisfied that it not contrary to the public interest to give Mr Shah permission to be employed as an agent’s representative. 
45	Mr Shah’s conduct, including his statements to police after he was arrested and his statements to the BLA, and his evidence to the Tribunal, gives rise to a number of concerns.  In summary, the most serious are the following. 
46	Mr Shah was convicted of a serious offence, one that carried a maximum sentence of three years’ imprisonment.  
47	The amount of cash that police discovered when Mr Shah and his co-accused were arrested was substantial.
48	Mr Shah pleaded guilty.  Significantly, Mr Shah was legally represented.  He has criticised the way his legal team handled the matter and said in effect that he wanted to have the conviction overturned, but he confirmed at the Tribunal hearing that he has never appealed.
49	Despite being given a number of opportunities to provide detailed information to the BLA about the circumstances in which the offence occurred, Mr Shah did not ever satisfactorily do that.  His responses to the BLA tended to minimise his culpability.  Mr Shah focussed on what he claimed to be a lack of awareness on his part about what his co-accused was doing at the time, his own good character, and the negative impact the episode had had on him and his family.
50	I do not accept Mr Shah’s assertions to the effect that he was unaware that his friend was engaged in unlawful activity.  The circumstances are extraordinary.  Mr Shah says that he received a call from his friend on the night before the public holiday.  The friend invited him to go to Perth with him the next day, just for the day.  That is a four-hour flight each way.  (I note here that Mr Shah says he suggested to his wife that she accompany him, and that they stay for a couple of nights, but his wife had just come back from overseas and was tired so said that just he should go).  Mr Shah says that he did not ask his friend what his business was in Perth either before they left Melbourne or during the flight.  Soon after the two men arrived in Perth (at 9.45 am, Western Australian time, according to the record of interview), they got into a car driven by a man unknown to Mr Shah.  The man drove them for about five minutes.  When they were getting out of the car Mr Shah saw his friend pick up the shopping bag.  Virtually the next thing to happen was that Mr Shah and his friend approached the airline’s sales counter to see if they could bring their (5.00 pm) return flights forward.  It was at that point that they were arrested.  Within hours they were separately interviewed by police.  
51	It is to be acknowledged that the episode occurred more than six years ago, making it difficult for Mr Shah to remember all the details.  Nevertheless, it is of concern that some of Mr Shah’s statements to the BLA, and some of his evidence to the Tribunal, were at odds with what his own solicitors stated in their letter to him.  Of even greater concern is that some of Mr Shah’s statements to the BLA, and some of his evidence to the Tribunal, conflicted significantly with what he said to police in his interview.
52	The record of interview actually indicates that Mr Shah made false or misleading statements to police.  In particular, he told police at first that after he and his friend arrived at Perth airport he went to the toilet before going outside and seeing his friend with the shopping bag.  Mr Shah said nothing at that point about getting into a car with his friend and seeing his friend pick up the bag.  After police told him, and then repeated to him, that he needed to be truthful because he and his friend had been under surveillance, Mr Shah said that he did not know where or from whom his friend had got the bag.  It was only after that point in the interview that Mr Shah told police about getting into the car with his friend and the driver. 
53	During the hearing, when he was questioned about discrepancies in his statements to police, Mr Shah said that when he was interviewed by police he was under stress.  He insisted that he had been truthful with them and that he had just been responding to their questions.  The record of interview does not support that claim.  His responses to police appear, rather, to indicate a consciousness of guilt and a desire to minimise his involvement. 
54	There were other noteworthy problems with Mr Shah’s evidence.  Mr Shah ultimately confirmed to police that he saw the driver of the car give the shopping bag to his friend.  They asked him what he thought might be in the bag.  He said the bag was a bit heavy, so it was “maybe money definitely”.  He said he didn’t think there would be drugs.  He had earlier told police that he didn’t ask his friend any questions about the bag.  Mr Shah was asked questions about that at the hearing.  He said he thought there was money in the bag because he asked his friend about that when they got out of the car.  He said it was before they were arrested that he asked his friend about that.  Mr Shah then said that he could not remember what his friend told him.  He said that everything happened too quickly.  He said in effect that when police told him that he and his friend had been under surveillance he concluded there must have been cash in the bag.  
55	Mr Shah was also asked at the hearing if he ever carried the shopping bag.  He said that he could not remember.  According to the record of interview, however, Mr Shah told police that his friend gave him the bag to carry when they went back inside the terminal (though he didn’t ask his friend what was in it).  When Mr Shah was invited to tell me why his friend might have handed him the bag, he merely said that his friend might have had a bottle in his hand and asked him to carry the bag briefly.  
56	These matters lead me to consider that even if Mr Shah really did travel to Perth without any knowledge of his friend’s intentions, and without making any inquiry of his friend about that - however improbable that would be - then, consistent with what appears in his solicitors’ letter, Mr Shah became aware of what was happening while the criminal activity was in progress, and that Mr Shah participated in the crime if only in a relatively minor way.
57	The least that can be said about the episode is that Mr Shah displayed very poor judgement, if not indifference to his friend’s conduct.  That itself would cast doubt on his suitability to be employed as an agent’s representative.  The issue of course is not his general suitability but the conviction and the public interest in the context of the conviction.  Mr Shah’s responses to police, and a number of his more recent statements, indicate that there was more to the matter than poor judgement or indifference.  Mr Shah’s responses and statements point to the conclusion that at least to some degree he was involved in the criminal activity.  
58	Had Mr Shah been completely frank and cooperative, and had he generally shown insight and remorse, he would have put himself in a stronger position to say that the Tribunal could now be confident that he can be trusted to handle substantial sums of money on behalf of clients.  Mr Shah however made false or misleading statements to police, and he has not shown adequate, if any real, insight or remorse.     
59	The nature and circumstances of Mr Shah’s offending are relevant to the position that he seeks to hold as an agent’s representative, where he would be acting for clients in substantial financial transactions.   
60	Although several years have passed since the offending, Mr Shah’s lack of insight and remorse, and the lack of evidence of any rehabilitation, mean that I cannot be satisfied that Mr Shah has put his conduct behind him.  
Can VCAT look behind Mr Shah’s conviction? 
61	At this point I mention that the BLA’s submissions addressed the question whether VCAT can look behind a conviction.  The BLA cited EBE v Secretary to the Department of Justice [2014] VCAT 1350 and Elali v Business Licensing Authority [2016] VCAT 18.  (EBE was an application under the recently repealed Working With Children Act 2005 and Elali was an application for review of a decision made by the BLA under section 31C of the Act) .  In Elali VCAT cited EBE and, “in the rare and unusual circumstances of the case”, accepted that the applicant’s guilty plea was not conclusive of his guilt: at [30].  
62	Even if (having regard to the Court of Appeal’s judgment in Secretary to the Department of Justice and Regulation v LLF) it would be permissible to make a similar inquiry in Mr Shah’s case, there is insufficient evidence to enable a finding that his conviction was not a sound and proper one.  I mention here that there are important differences between Mr Shah’s case and Mr Elali’s case.  One in particular is that the police gave evidence about Mr Elali’s good character and the assistance he gave them in related investigations they had.
Other relevant behaviour 
63	Further to what has been mentioned so far, there is behaviour by Mr Shah since November 2014 that I need to consider.  That relates to Mr Shah’s history with Zen Element Property.  Before I turn to that, I mention that in 2013 Mr Shah obtained a Certificate IV in Property Services (Real Estate), as he was interested in exploring opportunities for employment in the real estate industry.  It is reasonably to be expected that the course informed him about the eligibility requirements for employment as an agent or agent’s representative, though Mr Shah had no special memory about that. 
64	When Mr Shah applied in 2020 for permission to be employed as an agent’s representative, he did not include any information about his employment history.  At the hearing, he said – unconvincingly – that the reason was that he was not employed at the time he applied for permission.  
65	When the BLA wrote to Mr Shah on 17 June 2020, it informed him that its records showed that he had worked as an agent’s representative (while disqualified) with Zen Element Property from 15 August 2015 to 31 January 2016.  The BLA asked him why he did not seek permission.  The BLA also asked him to provide a copy of the “Declaration of Eligibility to be Employed as an Agent’s Representative” that he completed and signed before he commenced employment with Zen Element Property.  The BLA also noted that the material submitted by Mr Shah included a National Police Certificate (NPC) dated 23 June 2015.  (The date of the NPC was just days prior to his court appearance and so did not record the conviction).  The BLA asked Mr Shah whether, if that document was the NPC that he gave the employer, he advised the employer about the finding of guilt before he commenced his employment.  The BLA requested Mr Shah to submit to it the police check that he gave the employer if it were one other than the NPC dated 23 June 2015.
66	It does not appear that Mr Shah ever provided any “Declaration of Eligibility to be Employed as an Agent’s Representative” to the BLA.  And his immediate written response to the BLA was silent as to whether he gave the employer the NPC dated 23 June 2015 or some other certificate, and as to whether he informed the employer about the finding of guilt.  Mr Shah’s response was to say, in particular, that he “did not do any work” for Zen Element Property but was just “hired for admin work only, if and when required”.  He said he did not do any “open [for inspection], nor any rental nor any sale” for the company ever.  Mr Shah noted that he had a full-time job (with another employer) at the time.  He said that he had not disclosed the work he did for Zen Element Property to the BLA because he “did not even know that [he] was registered with BLA”.  
67	In his oral evidence, Mr Shah said that he worked for Zen Element Property for an hour or a few hours at a time, and only on weekends.  He said that he spent his time observing, and he performed only minor administrative tasks such as retrieving documents from the printer.  He said that he did not ever deal with cash or electronic funds transfers or contracts of any kind. 
68	Mr Shah confirmed that he gave he gave Zen Element Property the NPC dated 23 June 2015.  He also confirmed that he did not tell the company about his conviction.  He said that he didn’t realise he would have to do that because he was working only casually.  Mr Shah also said that he received “zero dollars” from the company.  
69	Mr Shah did not provide any letter from Zen Element Property or put forward any witness from that company, so there is no evidence from it to support his claim that he was working as a volunteer doing only administrative work, as opposed to being employed as an agent’s representative (even if, possibly, only as a representative in training or on probation with limited responsibilities).  
70	I accept the submission made on behalf of the BLA to the effect that it is most unlikely that Zen Element Property would notify the BLA that Mr Shah was employed as an agent’s representative if that were not the case.  There is no apparent reason for it to do so.  It appears more likely that Mr Shah did not want to mention that employment to the BLA, because he knew that he was disqualified at the time.  But even if I accept Mr Shah’s account (that his role at Zen Property Limited was limited in the way he described it), in giving Zen Element Property the NPC dated 23 June 2015 (whether he did that before or after the date of his conviction), and not informing the employer about his conviction before he commenced working for it, he was not honest with the employer.  
Summary and conclusion 
71	As a result of the conviction that followed his guilty plea, Mr Shah cannot be employed as an agent’s representative without permission.  In considering whether I am satisfied that it is not contrary to the public interest to grant permission, I have had regard to the matters discussed.  Mr Shah’s apparent lack of insight and remorse, and his behaviour since the offence was committed, are especially important factors.  
72	The BLA gave Mr Shah many opportunities to give a complete and frank account of the episode in Perth.  Mr Shah’s responses were vague and in conflict with other evidence.  I accept the submission that Mr Shah has not demonstrated insight or remorse.  (That is, I am satisfied that he did not demonstrate insight or remorse to the police, to the BLA, or to the Tribunal.  On the other hand, precisely what was said by or on behalf of Mr Shah to the Court is not clear.  The remarks by the sentencing Magistrate were not available.  Mr Shah’s solicitors’ letter indicates that the main submission to the Court was that Mr Shah bore less responsibility than his co-accused).    
73	Mr Shah’s essential position is to say that he was an unwitting participant in another person’s crime and that his record, prior to and since the offence, shows him to be of good character.  Supported by his witnesses, he has given evidence of numerous academic qualifications, steady employment prior to the pandemic, and leadership roles in his religious community.
74	Unfortunately for Mr Shah, the COVID-19 health crisis has severely disrupted his career.  Still Mr Shah has not shown that he has reformed as he might have done if (in addition to demonstrating insight and remorse, had he demonstrated that) he had shown continuing employment whether in his field of expertise or in some other responsible position.  
75	The BLA acknowledged that Mr Shah’s family and friends have given him “glowing references”.  Mr Rajan Shah is even prepared to offer Mr Shah employment, notwithstanding the criminal history, because he considers Mr Shah to be of good character, and he believes that Mr Shah was not a knowing participant in his friend’s criminal activity.  Generally speaking, however, the witnesses displayed only the most basic knowledge of the episode that led to Mr Shah’s conviction, and they had no particular knowledge about his dealings with Zen Element Property.  
76	I am not satisfied that the public would have confidence in Mr Shah as an agent’s representative.  I am not satisfied that granting permission to Mr Shah to be employed as an agent’s representative is not contrary to the public interest.    
77	Mr Shah says he deserves a second chance.  It is important to emphasise that the decision to refuse him permission to be employed as an agent’s representative is not to punish him.  Ultimately, it is a decision made in the public interest.  The decision does not prevent Mr Shah from obtaining work in his area of expertise or in some other suitable sector, or from making another application to the BLA for permission to be employed as an agent’s representative in future.   
78	For the reasons I have given, the decision of the respondent made on 15 September 2020, refusing permission to Mr Shah to be employed as an agent’s representative, is affirmed.

J Billings
Senior Member