Nadimi v Queensland Building and Construction Commission
[2017] QCAT 363
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- Unreported Judgment
- Nadimi v Queensland Building and Construction Commission[2017] QCAT 363
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Nadimi v Queensland Building and Construction Commission[2017] QCAT 363
Nadimi v Queensland Building and Construction Commission[2017] QCAT 363
CITATION: | Nadimi v Queensland Building and Construction Commission [2017] QCAT 363 |
PARTIES: | Amanullah Nadimi (Applicant) |
v | |
Queensland Building and Construction Commission (Respondent) | |
APPLICATION NUMBER: | OCR202-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 24 October 2017 |
HEARD AT: | On the papers decision |
DECISION OF: | Member Olding |
DELIVERED ON: | 24 October 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The application to stay the decision to cancel the applicant’s builder’s licence is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether desirable to make a stay order in respect of a decision to cancel a builder’s licence – where application for licence contained inaccurate information regarding applicant’s experience – where Victorian licence granted under mutual recognition provisions cancelled consequent upon cancellation of the Queensland licence – where applicant did not reside or carry on business in Queensland Mutual Recognition Act 1982 (Cth), s 33 Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 48 Queensland Building and Construction Commission Regulation 2003 (Qld), Schedule 2, Part 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), 22 Uysal v Queensland Building and Construction Commission [2016] QCAT 367 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REPRESENTATIVES: | |
APPLICANT: | represented by Lovegrove & Cotton |
RESPONDENT: | represented by Holding Redlich Lawyers |
REASONS FOR DECISION
- [1]The Applicant, Mr Nadimi, has applied to the Tribunal for review of the decision of the Respondent Commission to cancel his low rise builder’s licence and also applied for a stay of that decision.
- [2]I have decided to dismiss the application for a stay. My reasons follow.
Background
- [3]To obtain his builder’s licence, Mr Nadimi was required to demonstrate at least 4 years of relevant experience.[1] His licence application set out his purported experience and on that basis the Commission granted the licence.
- [4]Although he obtained a Queensland building licence, Mr Nadimi does not reside in or carry on his occupation in Queensland. Rather, having obtained the Queensland licence, he relied on mutual recognition provisions to obtain a builder’s licence in Victoria, where his business is carried on.
- [5]Upon subsequent investigation, the Commission found that the account of Mr Nadimi’s experience in his licence application contained a number of inaccuracies and decided to cancel the licence. As a consequence, the Victorian authority cancelled Mr Nadimi’s Victorian licence.[2]
- [6]Mr Nadimi does not deny that his application contained inaccuracies but says they were inadvertent and that a list of his experience he obtained from a former employer contributed to the errors.
Statutory framework
- [7]The Commission “may” cancel a licence if the licence was obtained “on the basis of incorrect information supplied to the commission, whether or not fraud was intended” or “by fraud or other improper means”; or it “becomes aware of the existence of facts that . . . would allow the commission to refuse to issue the licence if it were now being applied for . . . or would have allowed the commission to refuse to issue the licence originally”.[3]
- [8]Mr Nadimi generally does not deny the inaccuracies in his application, but says they were not intentional. Since it is sufficient if the licence was granted on the basis of incorrect information supplied by Mr Nadimi, it is likely that the Commission is correct in determining that the cancellation power was enlivened.
- [9]Whether to exercise the power is a matter of discretion having regard to all relevant circumstances. The issue for determination at the hearing of the application for review will be whether cancellation is the correct and preferable decision.[4]
- [10]The Tribunal may make an order staying the cancellation decision “only if it considers the order is desirable after having regard to the following:
- the interests of any person whose interests may be affected by the making of the order or the order not being made;
- any submissions made to the tribunal by the decision-maker for the reviewable decision;
- the public interest”.[5]
- [11]The Tribunal, in considering stay applications, also takes into account whether there is an arguable case and the balance of convenience.[6]
Consideration
- [12]Declining to make a stay order would clearly affect Mr Nadimi’s interests. There is a serious, immediate impact as a consequence of not being able to carry on his building business because of the cancellation of the Victorian licence consequent upon the cancellation of the Queensland licence. To the extent that he contributes to them financially, family members are likely to also be affected.
- [13]The Commission submits that Mr Nadimi’s prospects of success in the application for review are poor. On the other hand, Mr Nadimi submits that the errors in his application were inadvertent and should not lead to cancellation of his licence. He also says that errors in his application were corrected in a subsequent, unsuccessful application to the Commission for a medium rise class of licence, although the Commission maintains that application also contained inaccuracies.
- [14]It is, of course, impossible to make a detailed assessment of the merits of the application in advance of hearing relevant evidence and submissions. However, some of the acknowledged discrepancies were not insignificant. For example, even without relying on information provided by the Victorian authority for these projects, but simply taking the dates from Mr Nadimi’s two applications:
- (a)Project at 721 Torrita Way – the low rise application stated that Mr Nadimi worked on this project from August 2009 to January 2010 but his application for a medium rise licence stated February 2013 to June 2013;
- (b)Project at 6 David Street – the low rise application stated that Mr Nadimi worked on this project from August 2012 to January 2013 but his application for a medium rise licence stated February 2013 to June 2013
- (a)
- [15]In relation to the 721 Torrita Way project, the application wrongly claimed that Mr Nadimi’s experience commenced over 3 years earlier than, based on his own subsequent statement, it in fact commenced. There were also other inaccuracies, such as incorrect descriptions of works and the wrong builder being listed, in relation to several other projects.
- [16]Based on the material put to the Tribunal to date, including in Mr Nadimi’s submissions regarding the stay, I accept the Commission’s submission that the prospects of the application for review being successful are poor. Mr Nadimi seems to maintain that he should be able to retain a licence to which, based on his actual experience at the time the application was made, he would not have been entitled.
- [17]There is a clear public interest in maintenance of the integrity of the building regulation system in Queensland, in which the licensing regime plays a central role, which must be balanced against the legitimate interests of building contractors.[7] Apart from consumers, properly licensed builders also have an interest in the integrity of the licensing system.
- [18]Here, the application for a licence contained multiple inaccuracies, some of which are not of an insignificant nature and are directly relevant to the qualifying conditions for the licence. Further, Mr Nadimi does not require and never has required a Queensland licence to carry on his business.
- [19]While the consequent cancellation of his Victorian licence will have a substantial, adverse impact on Mr Nadimi, he is able to seek reinstatement of his Victorian licence. The Mutual Recognition Act 1982 (Cth), s 33(2), explicitly empowers the Victorian authority to reinstate the Victorian licence “if it thinks it appropriate in the circumstances”.
- [20]While either process may be expected to take some time, Mr Nadimi could have commenced the process of seeking reinstatement or applied for a Victorian licence immediately upon the Queensland licence being cancelled.
- [21]In those circumstances, it is my view that the balance of convenience favours maintaining the integrity of the Queensland licensing system.
- [22]Accordingly, it is not desirable to make a stay order.
Footnotes
[1] Queensland Building and Construction Commission Regulation 2003 (Qld), Schedule 2, Part 4.
[2] Mutual Recognition Act 1982 (Cth), s 33(1).
[3] Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), s 48.
[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20(1).
[5] QCAT Act, s 22.
[6] See Uysal v Queensland Building and Construction Commission [2016] QCAT 367 at [5] to [8] for further discussion of the principles applicable to stay applications in the context of a review of a decision to cancel a builder’s licence.
[7] The objects of the QBCC Act include to regulate the building industry to ensure the maintenance of proper standards in the industry and to achieve a reasonable balance between the interests of building contractors and consumers: s 3.