Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27

CITATION: Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 PARTIES: Commissioner for Children and Young People and Child Guardian (Appellant) v Mr Nikhil Ram (Respondent) APPLICATION NUMBER: APL231-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott Member Browne DELIVERED ON: 24 February 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Appeal on ground one is allowed. 2. Appeal on ground two is dismissed. 3. The decision of the Tribunal is set aside and the following decision is substituted: a. The decision of the Commissioner for Children and Young People and Child Guardian dated 1 August 2012 to issue a negative notice to Nikhil Ram is confirmed. CATCHWORDS: APPEAL – CHILDRENS MATTERS – BLUE CARD – „EXCEPTIONAL CASE‟ – where the Commission issued a negative notice – where respondent sought a review of the Commission‟s decision – where the Tribunal found that no exceptional case exists and set aside the Commission‟s decision and directed that a positive notice issue – where the Commissioner appealed on a question of law – whether grounds for appeal APPEAL – CHILDRENS MATTERS – BLUE -- 1 of 11 -- 2 CARD – „EXCEPTIONAL CASE‟ – where the Commission issued a negative notice – where respondent sought a review of the Commission‟s decision – where the Tribunal found that no exceptional case exists and set aside the Commission‟s decision and directed that a positive notice issue – where the Commissioner appealed on a question of law – whether grounds for appeal APPEAL – CHILDRENS MATTERS – BLUE CARD – power to grant relief – where Appeal Tribunal set aside the Tribunal‟s decision Commission for Children and Young People and Child Guardian Act 2000, ss 5, 225, 226 Queensland Civil and Administrative Tribunal Act 2009, ss 3, 146 Commissioner for Children and Young People and Child Guardian v AX [2012] QCATA 248, cited Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, cited Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, cited House v R [1936] HCA 40, cited Kent v Wilson (2000) VSC 98, cited Racing Queensland Limited v Dixon [2013] QCATA 172, cited Ram v Commissioner for Children and Young People and Child Guardian [2013] (Unreported, Queensland Civil and Administrative Tribunal, Member Quinlivan, 15 February 2013), cited APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Mr Ram requires a blue card to enable him to undertake a student placement necessary for the completion of his pharmacy studies. He made an application for a blue card to the Commissioner for Children and Young People and Child Guardian in March 2012 under the category „health, counselling and support services‟. -- 2 of 11 -- 3 [2] The relevant Act governing the issuing of a blue card, the Commission for Children and Child Young People and Child Guardian Act 2000 (the Commission Act) requires any person employed or carrying on particular business, as prescribed under the Act, to „undergo screening‟.1 This may include, for example, the Commissioner obtaining information about a person applying for a blue card, from the Queensland Police Service (QPS). [3] There are no restrictions that can be placed on a blue card upon a positive notice being issued by the Commissioner. That means the holder of a blue card may engage in any type of employment or business activity that requires a blue card. [4] The information received from the QPS identified that Mr Ram has a history of criminal offending including a conviction for a serious offence on 16 November 2009 for robbery in company/used personal violence. Mr Ram also has offences for wilful destruction, burglary and stealing in 2007. There are 4 counts of drug offences and possessing utensils and pipes in 2008 and 2010. There is also a number of charges that did not proceed or lead to a conviction relating to 2 counts of assault occasioning bodily harm in 2008 and 2011, deprivation of liberty – unlawful detain/confine in 2008 and unlawful use of a motor vehicle in 2008. [5] The Commissioner must issue a negative notice to a person who has a serious offence. A positive notice must be issued, however, if the Commissioner is satisfied that „it is an exceptional case in which it would not harm the best interests of children‟ to issue a positive notice.2 [6] The Commissioner, at first instance, refused Mr Ram‟s application for a blue card, having issued a negative notice on 1 August 2012. [7] Mr Ram exercised his review rights under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the matter proceeded to a hearing before the Tribunal on 15 February 2013. [8] The Tribunal, on review, has the same powers as the Commissioner under the Commission Act in considering whether an exceptional case exists. The Tribunal must arrive at the correct and preferable decision by way of a „fresh hearing on the merits‟.3 That means the Tribunal must consider the material that was before the Commissioner at the time it made its decision and any new material presented by Mr Ram at the hearing including, for example, evidence from his treating psychologist and lay witnesses. [9] The Tribunal determined that the decision of the Commissioner to issue a negative notice be set aside and a positive notice be issued to Mr Ram. The Tribunal‟s written reasons for the decision were received by the Commissioner on 6 May 2013. 1 Commission for Children and Young People and Child Guardian Act 2000 (Qld) s 154. 2 Ibid s 225. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20. -- 3 of 11 -- 4 [10] The Commissioner filed an appeal against the Tribunal‟s decision on 3 June 2013. The Tribunal‟s decision has been stayed until the appeal is concluded.4 Grounds of Appeal [11] The Commissioner raises two grounds in the appeal that the Tribunal‟s decision contains error of law: a) By failing to apply the relevant test prescribed under s 225 of the Commission Act. In particular the Tribunal misdirected itself as to whether Mr Ram presented an „unacceptable risk‟ (to children) in determining whether an „exceptional case‟ exists. b) By misdirecting itself as to whether Mr Ram‟s employment activity was a relevant consideration in exercising the discretion under s 225 of the Commission Act. [12] The Appeal Tribunal has the power under the QCAT Act to grant relief if satisfied that there has been error in the Tribunal‟s decision on a question of law, mixed fact and law, or fact.5 Leave to appeal must first be obtained for questions of mixed fact and law, or fact.6 [13] In an earlier decision of the Appeal Tribunal, Racing Queensland Limited v Dixon,7 the Deputy President considered whether an appeal that raises a question of law should proceed without leave. The Deputy President stated: Provided that the question raised by the relevant appeal ground is properly framed as a question of law then the appeal on that ground may proceed before the Appeal Tribunal as of right. Leave is not required.8 [14] In the present matter the Commissioner identifies errors of law in the Tribunal‟s misapplication of s 225 of the Commission Act in addressing whether Mr Ram presented an „unacceptable risk‟. The Commissioner also raises a question of law as to the Tribunal‟s „irrelevant or extraneous‟ consideration of Mr Ram‟s proposed employment activity in exercising its discretion under the Commission Act. [15] The grounds of appeal clearly raise questions of law that have led to an error in the Tribunal‟s reasoning and decision made. Leave is therefore not required. Ground One: Misapplication of s 225 of the Commission Act - ‘unacceptable risk’ [16] Section 225 of the Commission Act does not define the meaning of an „exceptional case‟. It involves an exercise of discretion in determining whether „it would not harm the best interests of children for the Commissioner to issue a positive notice‟. 4 See Order dated 16 July 2013. 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 146, 147. 6 Ibid s 142. 7 [2013] QCATA 172. 8 Ibid at [9]. -- 4 of 11 -- 5 [17] The notion of an unacceptable risk is not a factor identified in s 226 of the Commission Act relevant to the exercise of discretion to determine whether there are exceptional circumstances. [18] The Appeal Tribunal in Children and Young People and Child Guardian v FGC9 determined that the approach taken in the family law jurisdiction to consider whether the evidence establishes an „unacceptable risk‟ to children is not supported by the wording in the Commission Act. The President of the Appeal Tribunal, in endorsing the findings made by Philippides J in Maher‟s case, stated: …[we] are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation.10 [19] In the present case, the Tribunal has identified a number of risks and concerns relevant to the issuing of a blue card but has determined that those risks are not „unacceptable‟ and that Mr Ram‟s circumstances are such that he would not be an „unacceptable risk‟ to children: The learned member stated: The Tribunal has concluded that although there are a number of risks and concerns attaching to Mr Ram holding a blue card, those risks are not unacceptable. In light of the evidence available at the hearing and from the written material the Tribunal does not consider that the applicant‟s circumstances would place him at an unacceptable risk to children…11 [20] The approach taken by the Tribunal in identifying potential risk and protective factors may be relevant considerations in determining whether there are exceptional circumstances. The factors identified by the Tribunal must, however, be considered in the context of the „criterion specified by the [Commission Act] and its satisfaction that the criterion has been met’.12 [21] In this matter the Tribunal has fallen into error in considering whether Mr Ram is an unacceptable risk effectively thereby laying down a rule or test upon which the Tribunal has then followed contrary to the „criterion‟ set out under the Commission Act and the findings made by the Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher.13 Philippides J stated: „It would be unwise to lay down any general rule‟. [22] The Tribunal‟s error in applying the notion of „unacceptable risk‟ has resulted in an error in the final decision made in determining that the Commission‟s decision to issue a negative notice be set aside and a blue 9 [2011] QCATA 291. 10 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [33]. 11 Ram v Commissioner for Children and Young People and Child Guardian [2013] QCAT 215 at [91]. 12 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [28]. 13 Ibid. -- 5 of 11 -- 6 card be issued to Mr Ram. The appeal in relation to ground one is allowed. Ground Two: Relevant Considerations in Determining an ‘Exceptional Case’ – Employment Activities [23] Section 226 of the Commission Act mandates specific factors to which the Tribunal must have regard when deciding if there is an exceptional case. However that section is not expressed as containing an exhaustive list of factors to be taken into account when the Tribunal considers what is an exceptional case. The Tribunal when deciding whether an exceptional case exists under s 225 has a broad discretion, on review, to have regard to a wide range of factors including Mr Ram‟s offending behaviour, its relevance to employment that involves or may involve children and any relevant change in circumstances in the life and functioning of this applicant for a blue card. These factors must of course be considered in the context of the Commission Act that mandates the protection of children‟s rights, interests and wellbeing as being paramount and not in isolation of those essential issues. [24] It is also true that the Commission Act does not mandate that the Tribunal, on review, must consider the transferability of a blue card as being a relevant factor in determining whether there is an „exceptional case‟ for the purposes of s 225. However that factor is relevant to consideration of the issue in s225(2) that the decision maker must be satisfied that it would not harm the best interests of children for a positive notice to be issued. Issuing a positive notice means that the holder of a blue card may engage in any type of employment or business activity. Such a person could change employment or activity from one with a low incidence of involvement with children to one with a high level and intimate level of contact with children. Mr Ram‟s current employment and his likely future employment based on his studies are relevant factors to place into context for both the potential and current risks and protective factors identified in this case. [25] In the present case the Tribunal had identified potential risk and protective factors and considered the nature of Mr Ram‟s employment to make a finding that Mr Ram would be a „minimal risk‟ to children.14 The learned member stated: There is no doubt that Mr Ram is a highly motivated young man who has approached his rehabilitation with considerable determination and is now focused on completing his studies and obtaining employment in his chosen field. There appears to be minimal risk to children in this respect.15 [26] The Tribunal has not fallen into error by taking into consideration Mr Ram‟s proposed employment activities in the context of protective factors identified and the nature of any proposed contact Mr Ram may have with children as a result of his proposed employment or business activity. The 14 Ram v Commissioner for Children and Young People and Child Guardian [2013] QCAT 215 at [90]. 15 Ibid at [90]. -- 6 of 11 -- 7 Tribunal has, however, fallen into error in determining whether Mr Ram would pose an „unacceptable risk‟ to children having contact with him. The learned member stated: In considering whether Mr Ram‟s case is exceptional the Tribunal has considered whether the applicant would pose an unacceptable risk to children if he were granted a Blue card. The Tribunal has considered the risk that could be posed to children from coming into contact with Mr Ram.16 [27] The Tribunal‟s error in considering whether there is an „unacceptable risk‟ to children has been addressed by the Appeal Tribunal in relation to ground one of the appeal. The Commissioner‟s contention in ground two of the appeal that it was an error for the Tribunal to consider Mr Ram‟s proposed employment or business activities is otherwise rejected. The appeal on ground two is dismissed. Power to Grant Relief on Grounds of Appeal [28] The Appeal Tribunal has found that the Tribunal fell into error in determining whether there was an unacceptable risk to children based on Mr Ram‟s circumstances and that this was contrary to the criteria specified in the Commission Act. [29] In allowing the appeal the Appeal Tribunal has the power to set aside the Tribunal‟s decision and substitute its own decision or to send the matter back to the Tribunal for rehearing by the Tribunal with or without hearing of additional evidence.17 [30] The manner in which an appeal against the exercise of discretion may proceed was considered by the Appeal Tribunal in AX v Commissioner for Children and Young People and Child Guardian (No 2).18 The Appeal Tribunal, in AX‟s case, was assisted by the relevant principles set out in House v R:19 The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must be appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. 16 Ibid at [88]. 17 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146. 18 [2012] QCATA 248 at [16]. 19 [1936] HCA 40. -- 7 of 11 -- 8 [31] The Commissioner submits that the Tribunal‟s decision be set aside and the matter be remitted to the Tribunal with a different constituted Tribunal for reconsideration. The latter course would result in a rehearing of the matter and Mr Ram would be able to adduce fresh evidence in relation to the review. [32] The Commissioner, in its grounds of appeal, does not identify any error in the Tribunal‟s findings as they relate to the evidence that was before it on review. Here the Tribunal has acted upon a „wrong principle‟ in giving consideration to whether there is an unacceptable risk to children in exercising its discretion under the Commission Act. There is no error in the Tribunals findings in relation to the evidence; in particular the Tribunal‟s approach in identifying the potential risk factors and protective factors in determining whether an exceptional case exists. [33] The Appeal Tribunal is satisfied that in keeping with the objects of the QCAT Act to determine matters in a way that is fair, just, accessible and quick, it is appropriate in this case, in circumstances where the Tribunal on review has acted upon a wrong principle, to set aside the Tribunal‟s decision and substitute its own decision. [34] In substituting its own decision, the Appeal Tribunal has considered the findings made by the Tribunal on review relating to Mr Ram‟s convictions and charges. The Tribunal‟s findings were made in the context of the charges relating to Mr Ram‟s criminal history. The Tribunal has correctly set out details of Mr Ram‟s criminal history and the charges that did not proceed or lead to conviction.20 The charges include drug offences and offending relating to burglary and stealing and assault. [35] The Appeal Tribunal accepts the cogency of the factual findings made by the Tribunal on review and will, unless specifically negated in these reasons, adopt those factual findings in its own decision as to whether or not an exceptional case exists to issue a blue card to Mr Ram. [36] The Tribunal on review made findings about Mr Ram‟s criminal activities that took place during a period „characterised‟ by the Tribunal as taking place during „ongoing use of marijuana as demonstrated in [Mr Ram’s] criminal history’. The learned member stated: The date of 21 February 2011 would appear to be a significant date in [Mr Ram‟s] life. His life history as revealed in various documents presented to the Tribunal would indicate a very troubled childhood following his family‟s move from India to New Zealand and subsequently to Australia. This period was characterised by an ongoing use of marijuana as demonstrated in his criminal history. The Tribunal also takes into account the other offences for which Mr Ram was charged or dealt with. They cover a range of criminal activities that on any interpretation could show a considerable disregard for the law.21 [37] The Tribunal on review was satisfied that there were events that occurred that Mr Ram continued to deny. The Tribunal on review was not prepared 20 Ram v Commissioner for Children and Young People and Child Guardian [2013] QCAT 215 at [17] and [18]. 21 Ibid at [71]. -- 8 of 11 -- 9 to accept the evidence of Mr Ram as being wholly credible. The learned member stated: …The Tribunal has considered these charges and is satisfied, on the balance of probabilities, that at the time of his offending, [Mr Ram‟s] behaviour was chaotic and inappropriate. Further, it is likely that there were events that occurred involving [Mr Ram] that he continues to deny.22 [38] The Tribunal on review considered the psychological evidence relied upon by Mr Ram in which Mr Ram‟s psychologist made findings, amongst others, about his change in lifestyle relevant to „rehabilitation‟. The learned member stated that the evidence was „helpful to its deliberations‟.23 [39] However rehabilitation from a previous proclivity of engaging in offending behaviour is only one aspect of the protective factors that would be necessary to be established in this case before a blue card should be issued. Remorse and insight are other aspects. The psychologist was satisfied that Mr Ram had shown remorse. However the psychologist merely stated that Mr Ram had said he was aware of the impact of his crimes on society. Nothing more was put forward about the presence of insight as to how such violent and chaotic behaviour would impact on vulnerable people including children. [40] The Tribunal on review made a further reference to „concerns‟ about Mr Ram‟s evidence given at the hearing. The learned member stated: However the Tribunal still has serious concerns that Mr Ram was less than fully frank in his evidence. He continued to minimise the impact of his behaviour on his victims. It has only been slightly more than 2 years since he last appeared in court.24 [41] In view of the reservations expressed by the Tribunal on review about Mr Ram‟s credibility, the Appeal Tribunal considers that it would be unsafe to make a finding that Mr Ram has developed insight about the impact of his unlawful and violent behaviour on those persons who were the subject of his behaviour. Similarly the Appeal Tribunal is not able to reach a finding that Mr Ram would have insight into the impact that such behaviour would have on vulnerable persons in need of protection. [42] The Tribunal on review made findings about Mr Ram‟s change in circumstances since the offending behaviour referred to as a „subsequent turnaround’ following his last appearance in court;.25 The objective changes in lifestyle are clear: returning to education via TAFE and university, taking up of exercise and healthy eating choices, re- engagement with his family. However the evidence about the other changes is largely self reported by Mr Ram: ceasing drugs in February 2011 and distancing himself from prior associates who had had a negative influence on him. 22 Ibid at [67], [68]. 23 Ibid at [82]. 24 Ibid at [87]. 25 Ibid at [89]. -- 9 of 11 -- 10 [43] There is evidence that Mr Ram tested positive during a random drug test in April 2011 while he was on parole. Although Mr Ram gave an explanation for this positive result, it is evidence that raises doubts about his credibility. Evidence from the psychologist was that Mr Ram reported that he had been drug and alcohol free for a year (as at January 2013). That is a relatively short period of time and is not consistent with Mr Ram‟s other evidence on this issue that he had last taken drugs in February 2011. The Appeal Tribunal is not persuaded, due to the lack of objective evidence and the short period of time since his last offending, that Mr Ram‟s turnabout is as complete as is claimed by him. [44] The Tribunal on review made a finding that Mr Ram has had only limited contact with children and that Mr Ram is aware that such contact with children „needs to be in appropriate circumstances‟26 It is acknowledged that Mr Ram‟s circumstances to date have not occasioned much interaction with children and as a result he has no history of appropriate or indeed inappropriate behaviour towards children. However he does have a history of criminal and violent behaviour towards others in the community when affected by substances and in association with persons applying negative influence on him. It is relevant to the exercise of discretion for the Tribunal to consider both the negative and positive factors that arise from Mr Ram‟s history. [45] The inferences reasonably able to be drawn from the evidence as to Mr Ram‟s likely behaviour around children are limited. At best, the finding made by the Tribunal on review that Mr Ram is aware that his contact with children needs to be appropriate is open on the evidence and reasonable to make. This finding adds to the protective factors that are considered in conjunction with the existing risk factors. However, it is not by itself determinative of the question that the Tribunal has to answer. [46] The question is not whether Mr Ram should be allowed to continue with his pharmacy studies. The question is whether this is an exceptional case in which it would not harm the best interests of children to issue a positive notice. The legislation has placed a barrier to persons with a conviction for a serious offence from working with children. The offence of robbery in company/used personal violence has been categorised in the Commission Act as a serious offence despite not intrinsically being an offence against children. The proper inference to draw from the Commission Act must be that it would harm the best interests of children for persons with convictions for that offence to work with children unless it is an exceptional case. This is in keeping with the objects of the Commission Act to „promote and protect the rights, interests and wellbeing of children in Queensland‟.27 [47] The Appeal Tribunal cannot be satisfied that, based on a consideration of Mr Ram‟s circumstances as set out in these reasons, involving both the risks and the protective factors, that there were exceptional circumstances for the purposes of exercising discretion under s 225 of the Commission Act. Mr Ram has made changes in his life but changes that amount to 26 Ibid at [86]. 27 Commission for Children and Young People and Child Guardian Act 2000 (Qld) s 5. -- 10 of 11 -- 11 him living his life in a law abiding manner as society expects. He has not shown he has insight into how his past violence and disregard for legal restrictions on his choice of conduct might affect his dealings with others, particularly vulnerable people. Mr Ram‟s evidence is put no higher than he is now functioning in the community at a level expected of a person of his stage and age in life. These changes do not take Mr Ram‟s circumstances outside of what is otherwise the “ordinary course”.28 His case is not exceptional. [48] The Appeal Tribunal determines that the appropriate order is to set aside the Tribunal‟s decision and to confirm the decision made by the Commissioner for Children and Young People and Child Guardian to issue a negative notice to Mr Ram. 28 Kent v Wilson (2000) VSC 98 at [22]. -- 11 of 11 --