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Tollo v Chief Executive Officer, Public Safety Business Agency QCATA 13
Tollo v Chief Executive Officer, Public Safety Business Agency  QCATA 13
Chief Executive Officer, Public Safety Business Agency
On the papers
Senior Member Stilgoe OAM
20 January 2016
APPEAL – LEAVE TO APPEAL – BLUE CARD – Where blue card not granted by tribunal – Where appeal on grounds that domestic violence events too long ago and applicant now a different person – Whether blue card should issue to applicant
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCA 456
Pickering v McArthur  QCA 294
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
- Alisha Tollo wants to work as a school crossing supervisor. To do so, he must hold a blue card.
- Mr Tollo applied for a blue card but on 29 April 2014, the Commissioner for Children and Young People advised that he decided to issue a negative notice to Mr Tollo. Mr Tollo would not receive a blue card. Mr Tollo applied to QCAT to review this decision. The tribunal heard the review application on 18 September 2014 and handed down a decision that day. The tribunal confirmed the decision not to issue Mr Tollo with a blue card.
- Mr Tollo filed an application for leave to appeal or appeal. His grounds of appeal were:
- That the decision was based on events that took place 12 – 13 years ago and do not reflect the person Mr Tollo is today – a family man trying to support his family by finding a job;
- The legal system should not prevent people from supporting their family because of actions so long ago, especially when those actions were dealt with so that they may not occur again.
- Mr Tollo says the learned member only focused on the negatives of his past and made no mention of what he has done after the domestic violence breaches to prevent it happening again.
- Mr Tollo says he and his family have had several family meetings discussing their issues, especially focusing the attention of himself and his wife on the children (especially the youngest twins) and any emotional stress they have experienced. Mr Tollo says he and his family attended many immigrant activities and outings and had “at home” counselling and that the learned member did not mention this in her decision, which he feels is unfair. He believes he is being judged by his mistakes, not what he had done afterwards to amend those mistakes.
- Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- The Chief Executive Officer submits that Mr Tollo’s submissions do not disclose any error of fact or law or a mixture of fact and law. The Chief Executive Officer submits that there is no basis for further evidence and that the fresh evidence Mr Tollo wants to produce largely covers the same ground traversed in the original proceedings and considered by the Tribunal at the time.
- The Chief Executive Officer further submits that fresh evidence will only be allowed in an appeal if it could not have reasonably been obtained for the original hearing, is credible and could lead to an opposite result to that produced at the original hearing.
- Mr Tollo had not made an application to produce fresh evidence or to re-open the original hearing. Allowing that he is unrepresented in these proceedings and that English is not his first language, it might reasonable to assume that he was unaware of the need to apply and that he simply put his submissions in, using his own words. The difficulty with that assumption is that Mr Tollo has attended four directions hearings and a compulsory conference at which the appeal tribunal discussed the issue of fresh evidence with him. Further, the appeals tribunal referred Mr Tollo to QPILCH for assistance.
- He has not shown that the evidence he now wants to submit was not available before the previous hearing. He has not shown that the evidence will have an important impact on the result of the case. We have not been able to consider whether the evidence is credible. It should not be admitted.
- Mr Tollo has not raised any new matters in his submissions and the learned member considered the matters he now raises. Having first discussed Mrs Tollo’s evidence (which the learned member found truthful and in which Mrs Tollo said she thought her husband’s behaviour had partially changed), the learned member proceeded to list the protective factors in Mr Tollo’s favour. The learned member nominated Mr Tollo’s commitment to family life and his children; his remaining in the family unit despite conflict and no evidence of domestic violence in the last several years.
- The learned member also addressed the risk factors identified by the Chief Executive Officer. These were: Mr Tollo’s different stories regarding the violent offending; the blame he placed on others including his wife; further violent incidents when the domestic violence order was in place; court ordered counselling Mr Tollo did not attend; Mr Tollo blaming his wife for her alleged self-injuring; and his blaming others including the police officers and interpreter for the court process.
- The learned member expressed concern about Mr Tollo’s insight into the events. She said he accepted wrongdoing in a written statement to the Agency but then made denials at the hearing and failed to acknowledge or accept he must carry some blame for the previous violent events.
- In our view, the learned member did consider Mr Tollo’s actions after the domestic violence breaches, both positive and negative, and concluded that Mr Tollo continued to lack insight into his actions, blaming everyone other than himself for the domestic violence that occurred.
- We accept that Mr Tollo needed to demonstrate responsibility for his previous actions and appreciate the harm he caused to his wife and family and that the transcript shows that Mr Tollo was unable to do this.
- Having weighed up the evidence, the learned member concluded that the decision of the Agency should be confirmed and that the Tribunal was unable to grant Mr Tollo a blue card.
- Having considered the submissions from both parties, the transcript and the oral reasons in this matter, we are not satisfied that leave to appeal should be granted Mr Tollo has not pointed to any error by the tribunal. The evidence can support the tribunal’s findings and we can find no compelling reason to come to a contrary view. Mr Tollo has few prospects that he can obtain substantive relief if a leave to appeal is granted. He raised no new issues in his submissions that were not, in our view, fully ventilated by the learned member at the original hearing.
- The learned member in the original hearing applied the correct principles and her conclusion is not unreasonable.
- The application for leave to appeal or appeal is dismissed.
 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCA 456 at 286.
 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450.
 Pickering v McArthur  QCA 294 at .
 Queensland Public Interest Law Clearing House.
 Transcript page 1-47, lines 30 – 34.
 Transcript page 1-47, lines 34 – 38.
- Published Case Name:
Alisha Tollo v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
Tollo v Chief Executive Officer, Public Safety Business Agency
 QCATA 13
Senior Member Stilgoe, Member Gardiner
20 Jan 2016