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Judgment handed down in Secretary, Department of Justice and Regulation v Zhong
17 February 2017
The Court of Appeal today dismissed applications for leave to appeal brought by the Secretary of the Department of Justice and Regulation and the Taxi Services Commission (‘the applicants’). The applications concerned Mr Zhanyu Zhong, who had sought accreditation to drive tourist buses and to receive a Working with Children Check. Mr Zhong had been convicted in 2001 of inciting the murder of his former de facto wife, and had a history of violence towards her. The incitement did not succeed. As a result, Mr Zhong received a negative working with children assessment and he was not accredited by the Taxi Services Commission. He could therefore not drive commercial passenger vehicles. Subsequently, the Victorian Civil and Administrative Tribunal (‘VCAT’) directed that he be accredited under the Transport (Compliance and Miscellaneous) Act 1983 and that he be given a positive assessment notice under the Working with Children Act 2005.
Appeals from VCAT can only be brought on questions of law. The applicants’ grounds of appeal did not contain any questions of law but sought a review of VCAT’s findings of fact. The applicants re-framed their application for leave to appeal at the hearing, claiming that a number of VCAT’s findings were not open on the evidence. They pointed to various issues, such as the applicant’s alleged problems with anger management, and said that VCAT had failed to consider relevant evidence.
The Court found that VCAT’s findings were clearly open on the evidence. VCAT had carefully considered the relevant evidence and all of the factors under the relevant legislation. In particular, VCAT looked to reports from several psychiatric experts and concluded that Mr Zhong did not have a problem with anger management. VCAT also considered the fact that Mr Zhong had not reoffended since his conviction, and considered other evidence including character references. VCAT found that Mr Zhong’s previous offending should be viewed in its context as part of a personal relationship. It had no relevance to his ability to work with children or vulnerable persons. As such, VCAT concluded that Mr Zhong did not pose an unjustifiable safety risk. The applicants’ proposed appeals had no real prospect of success, and the applications for leave to appeal were refused.
NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.