Ayshan v Commissioner of Police, New South Wales Police Force

[2023] NSWCATAD 174

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ayshan v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 174

Hearing dates:

13 March 2023

Date of orders:

4 July 2023

Decision date:

04 July 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

1. Time to lodge the administrative review is extended pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), until 31 January 2022.

2. The decision to refuse the Applicant’s Category AB Firearms Licence application is affirmed.

3. Pursuant to s 49 of the NCAT Act, the hearing of the application in the substantive proceedings be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material described in the Confidential Statement.

4. Pursuant to s 64(1)(c) of the NCAT Act, the publication of the Confidential Material and confidential exhibit CR1, or matters contained in the Confidential Material and confidential exhibit CR1 is prohibited.

5. Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the Confidential Material and confidential exhibit CR1, or matters contained in the Confidential Material and confidential exhibit CR1, is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal.

6. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the NCAT Act, the publication and recording of the confidential hearing of these preliminary proceedings, including confidential exhibit CR1 and any evidence given during the confidential portion of the hearing, is prohibited, and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest – public safety – confidential evidence - unfairness.

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police NSW Police Force [

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

Kassem v Commissioner of Police [2022] NSWCATAD 213

Livadaru v Commissioner of Police [2008] NSWADT 160

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26

State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69,

Tannous v Commissioner of Police [2011] NSWADT 116

Tobororovski v Commissioner of Police [2019] NSWCATAD 192

Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mohammed Khalil Ayshan (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Mainstone Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2022/00028120

Publication restriction:

Pursuant to s 64 (1) (b), 64 (1) (c ) and 64 (1) (d) of the Civil and Administrative Tribunal Act 2013, the publication and release of the material in those paragraphs marked ‘[Not for publication]’ are not to be published or released to any person other than the respondent or their representative.

Reasons for decision

What these proceedings are about

1. These proceedings concern the Commissioner of Police’s decision to refuse the applicant’s Category AB Firearms licence application on 21 September 2021 and the decision on Internal Review on 22 December 2021 to affirm that decision.

Introduction

2. The applicant in these proceedings is Mr Mohammed Khalil Ayshan (Mr Ayshan). The respondent is the Commissioner of Police NSW Police Force (the Commissioner). The Commissioner’s delegate formed the view that it was not in the public interest for Mr Ayshan to hold a Firearms Licence.

3. That decision was based on events involving Mr Ayshan, which raised concerns about domestic violence matters leading to public safety concerns, untruthfulness and poor traffic history. In addition on review by the Tribunal the Commissioner relied upon confidential evidence (the existence of which was not confidential to the parties but the contents were). The totality of these matters call into question matters relating to public safety if Mr Ayshan was to be afforded again with the privilege of firearms use and possession.

4. Having had careful regard to all of these matters, and noting the unfairness to Mr Ayshan in applying weight to evidence and material to which he cannot respond, I find on balance that at present it is not in the public interest for Mr Ayshan to have access to firearms including possession and use of firearms. As a result the decision to refuse Mr Ayshan’s application for a Category AB Firearms Licence will be affirmed.

Background

5. Mr Ayshan was first authorised to use firearms in NSW on 20 December 2009 when he was issued a Category AB Firearms Licence by the Commissioner.

6. On 14 January 2015 a fresh a re-application (renewal) of the Category AB Firearms Licence was lodged by Mr Ayshan and another Category AB Firearms Licence issued for a period of five years.

7. On 28 April 2016 Mr Ayshan was made subject to an Interim Protection Order (IPO) issued in Western Australia, which is equivalent to an Apprehended Violence Order (AVO) in NSW. The IPO was issued for the protection and safety of Mr Ayshan’s ex partner and mother of his child. As a result of that order the Commissioner decided on 9 June 2016 to revoke Mr Ayshan’s Category AB Firearms Licence.

8. On 3 February 2017 Mr Ayshan lodged a fresh application for a Category AB Firearms Licence and on 30 March 2017 the Commissioner’s delegate issued the licence. On 17 May 2019 that licence was subsequently revoked as the Commissioner became aware that Mr Ayshan had provided false and misleading information in his February 2017 application, by failing to declare that he had a firearms licence previously revoked.

9. On 31 May 2019 Mr Ayshan lodged an Internal Review of the decision to revoke the Firearms Licence. That decision was affirmed on Internal Review on 24 March 2020. Mr Ayshan then lodged another application for a Firearms Licence on 8 May 2020 and this application was refused by the Commissioner on 21 September 2021. An Internal Review of that decision was lodged on 11 October 2021 and the initial decision to refuse the licence was affirmed on Internal Review on 22 December 2021. This is the decision under review in these proceedings.

10. In conducting the review the Commissioner identified a number of concerns relating to Mr Ayshan. These were:

• An offence of Drive whilst licence suspended proven at Campbelltown Court on 27 April 2011.

• The issuing of the Interim Protection Order in Western Australia on 28 April 2016.

• Providing false and misleading information on 3 February 2017 in an application for a Category AB Firearms Licence.

• A firearms inspection on 11 August 2015 required changes to firearms storage to comply with regulations to include a safe in a strongroom.

• A failure to provide information verifying compliance with genuine reason / club membership / shooting attendance by Mr Ayshan as detailed in the earlier 20 March 2020 Internal Review statement of reasons.

11. The Commissioner’s delegate afforded weight to the fact that Mr Ayshan had never been convicted of a criminal offence. The delegate noted that in respect of the lack of compliance with club membership and shooting attendance compliance Mr Ayshan had failed to provide information to rebut the Commissioner’s prior finding contrary to earlier indications and assertions that he could.

12. The delegate also noted an apparent failure by Mr Ayshan to surrender his revoked Firearms Licence card to Police despite this being raised in the Statement of Reasons dated 24 March 2020. The delegate formed the view that the licence card appeared to remain in Mr Ayshan’s possession contrary to s 25 (1) of he Firearms Act 1996.

13. The delegate made the following statement at the conclusion of the Internal Review:

The Regulator must have confidence in your future ability to abide by, and uphold the requirements attached to holding a firearms licence. Unfortunately, the information available does not provide that confidence. It is for those reasons I have determined that the refusal of your firearms licence is the correct and preferable decision.

14. On 31 January 2022 Mr Ayshan filed an application for Administrative Review with the Tribunal. The application was filed beyond the 28-day period provided for lodging an administrative review, the applicant having declared that he had received a copy of the Internal Review outcome on the day the decision was made, 22 December 2021. On that basis the application should have been lodged with the Tribunal on or before 19 January 2022.

15. Despite seven listings before the Tribunal prior to the substantive hearing, it appears that the jurisdictional issue (concerning whether the review has been lodged within time) had not been addressed by the parties bringing the defect to the attention of the Tribunal.

Jurisdiction

16. The Notice of Refusal vocation was issued under the provisions of the Firearms Act section 11 (7). Relevantly section 11 provides:

11 General restrictions on issue of licences(cf 1989 Act s 25, APMC 4, 5, 6)

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

(2)...

(2A) …

(3) A licence must not be issued unless—

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and

(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.

(4)..

(5)..

(6)..

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

(8)..

17. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The first matter listed at s 75 concerns the refusal to issue a licence. Relevantly the section provides:

Part 8 Applications to Civil and Administrative Tribunal

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,

(b)..

(c)..

(d)..

(e)…

(f)…

(g)…

(Emphasis added)

18. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

19. The Tribunal has jurisdiction under the Firearms Act as noted at [17] above.

20. As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

21. The parties agree that Mr Ayshan filed his application for Administrative review a short period out of time. The delay was attributed to the Christmas break and the inability of Mr Ayshan to obtain legal advice over that period. As the respondent did not press the short delay and noting that the matter had been prepared by both sides for hearing with an interlocutory hearing taking place on 21 April 2022, the Tribunal of its own motion extended time to lodge the review pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 until 31 January 2022.

What issues do these proceedings raise for determination?

22. On my assessment the issues are as set out by the Commissioners delegate:

• Is it in the public interest for the applicant to hold a licence?

23. This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant’s written evidence

• Exhibit ‘A-1’. Statement of applicant dated 11 June 2022.

• Exhibit ‘A-2’: Further Statement of applicant dated 15 December 2022.

Respondent’s written (open) evidence

• Exhibit ‘R-1’ Documents filed under s 58 ADR Act.

• Exhibit ‘R-2’ Supplementary bundle Commissioner filed 28 April 2022.

• Exhibit ‘R-3’ Further Supplementary s-58 bundle filed by the Commissioner on 13 July 2022.

• Exhibit ‘R-4’ Further Supplementary s-58 bundle filed by the Commissioner on 25 January 2023.

• Exhibit ‘R-6’ Traffic history of applicant.

24. Both parties were legally represented and provided detailed written submissions and made oral submissions at hearing. Mr Ayshan was subject to cross-examination at hearing.

25. The Commissioner relied on confidential evidence which was considered at a further sitting of the Tribunal following the conclusion of the open hearing. At the conclusion of the confidential hearing the Tribunal reconvened a short open session where it was explained to both parties that the Tribunal would need to reserve its decision.

26. The existence of confidential evidence and the application to have matters heard in camera were not of themselves confidential, only the contents of the confidential evidence. In this regard both parties made open submissions as to why the material should or should not be received in that manner. Mr Ayshan submitted that such an approach would amount to a denial of natural justice and procedural fairness. He submitted that he would not have the benefit of rebutting the evidence by other evidence as they do not have evidence of what the evidence is. In response to the Commissioner’s submissions Mr Ayshan submitted that third party confidentiality could be maintained by redacting certain information from that material.

27. In these reasons for decision the Tribunal has decided to receive that evidence on a confidential basis. The Tribunal previously made orders on a s59 ADR Act application hearing on 21 April 2022 to grant confidentiality orders under sections 49 and 64 (1) b) (c ) and (d) of the NCAT Act and s 59 of the ADR Act (in respect of the requirement not to file certain evidence) until further order of the Tribunal.

28. I have decided to continue the orders made under section 49 and 64 of the NCAT Act because having reviewed the material, the evidence suggests that the circumstances of this case are sufficiently special that the making of the orders sought is “desirable” within the meaning of s 64(1).

29. The respondent submitted that the evidence was highly relevant to the proceedings, and the witnesses could be constructively identified.

30. Before making any order the Tribunal must be satisfied that it is appropriate to make the order in the circumstances. The Appeal Panel of the former Tribunal has examined the circumstances where it would be appropriate to make an order.

31. In the case of State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69, the Appeal Panel of the ADT examined the equivalent provisions in the ADR Act at, [50] – [53] and [81] – [82]:

50 Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT Act), three elements of prime importance are the word ‘desirable’, the phrase ‘for any other reason’ and the word ‘may’. These indicate that the purpose (or purposes) to be served by a suppression order may be ‘any … reason’ (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is ‘desirable’ and that the actual making of the order is not mandatory but within the Tribunal’s discretion.

51 There are evident and important differences between a power conferred in these terms and the common law power to prohibit or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4. As set out above at [44], his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of what occurs in the courtroom is only valid if it is ‘really necessary to secure the proper administration of justice in proceedings before it’. In this statement of principle, both the purposes to be served by a suppression order and the criterion for determining whether one may be made are formulated in distinctly narrower terms than in section 75(2) of the ADT Act.

52 In a number of leading authorities dealing with suppression orders at common law, the order sought was (as in the present case) an order preventing the public identification of a person – most commonly a witness – involved in proceedings being heard in open court. Frequently (though not in the present case) the order was sought at or near the commencement of the hearing and, if the application was granted, the order made was that throughout the proceedings the person concerned should be identified by a pseudonym.

53 In such cases, the courts have applied a criterion of ‘necessity’, such as that stated by McHugh JA. They have, however, widened the permitted range of purposes so as to include securing the proper administration of justice generally – i.e., in future proceedings as well as in the proceedings currently being heard.

…

81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

82 In view of Ms Johnson’s submission regarding the criterion stated by the Court of Appeal in Walton v Momot, unreported, 17 April 1997 (BC9708241) (see [37] above), it is appropriate for us to express an opinion on its applicability. In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be ‘special’ or ‘out of the ordinary’ (though a requirement that they be ‘exceptional’ may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition….Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158, [24].

32. Having reviewed those provisions and the evidence, I propose to make the orders as sought, in effect to continue the existing orders and receive and apply (to the extent necessary) weight to the confidential evidence. In my view that evidence makes a clear and strong case for the grant of confidentiality, especially as the evidence appears relevant to the matters that I must consider having regard to the objects of the Firearms Act in respect of the substantive consideration before me.

33. The Tribunal is therefore required to have regard to the confidential evidence (as now received) and when considering it, the Tribunal cannot disclose the details of that evidence when determining whether granting Mr Ayshan the licence would be in the public interest. (s 75 (5) Firearms Act).

34. For those reasons a number of paragraphs that deal with the confidential evidence are marked ‘[Not for publication]’.

Mr Ayshan’s evidence at hearing

35. In evidence in chief Mr Ayshan adopted both his statements. He said that in respect of [13] of Exhibit ‘A-1’ the club is a clay target club not a pistol club. In respect of his change of name from Mohammed Ayshan Khalil on 16 March 2022 to Mohammed Khalil Ayshan he said that there was a cultural reason for changing his name to correct the record.

36. In respect of exhibit ‘A-2’ concerning the Family Violence Restraining Order in WA he said that the order was dismissed and the future hearing dates vacated on the basis of undertakings he made to the Court. Mr Ayshan said that his former wife lives in WA and he lives in NSW.

37. In respect of one speeding fine on his driving / traffic record Mr Ayshan said that he was not the driver, an employee was, but he accepts responsibility for the fine as he allowed the keys of the vehicle to be accessible. He accepted the other matters on his traffic record as being accurate.

38. Under cross examination Mr Ayshan was asked why he did not disclose the Interim Order in the NCAT proceedings. Mr Ayshan said that in respect of the Interim Restraining Order he believed that his older daughter was wanting to see him and her mother sought the order to prevent that outcome. He said he did not have access to the background paperwork for the application.

39. In respect of his Sporting Shooters Association Australia (SSAA) Membership Mr Ayshan said that it expired in January 2010 and that he could not obtain membership records from the Marconi Club. His second SSAA membership was due to expire in January 2018 and so he obtained membership at Marconi in May 2018 and was a member until March 2019.

40. Mr Ayshan said that he was aware of the requirement to notify the Commissioner of cessation of membership. In respect of having firearms stored at his address Mr Ayshan said that he was told by the Firearms Registry that he could keep the firearms at his address but that his Uncle must notify the Registry (Police) and clearly had not.

41. In re-examination Mr Ayshan was asked about the gaps in his shooting club membership periods. Mr Ayshan said that at the time he was in the process of starting his own business and busy. Referring to matters in Exhibit ‘A-1’ Mr Ayshan said that he had written permission for hunting from NSW State Forests at [8]. In respect of the Bank Statements annexed to the Exhibit Mr Ayshan said that they were produced as evidence to show that he had purchased ammunition for shooting and the SSAA and Marconi Club shootings.

Commissioner’s evidence

42. The Commissioner relied upon the material outlined at [23] and the confidential evidence.

Applicant’s submissions

43. Mr Ayshan relied on written submissions and his lawyer made oral submissions at the conclusion of the hearing. In oral submissions it was submitted that he had no prior criminal record. In respect of the AVO’s from WA they had been marked ‘withdrawn / dismissed’ by the Court.

44. In respect of Mr Ayshan’s driving record it was submitted that whilst 16 offences in 17 years of driving was not a good record, it was not sufficient to establish that the record demonstrated any relevant disregard for or inability to comply with the law, especially in the context of abiding by the legislation and regulations relating to firearms use and possession having regard to the need to maintain public safety.

45. It was submitted that Mr Ayshan was an honest and forthright witness and accepted that he provided the wrong answer on his earlier application for a Firearms Licence.

46. In respect of the alleged failure to hand in his licence it was submitted that he was advised by the Firearms Registry to destroy the licence card prior to applying for another one, which he did.

47. In written submissions reference was made to the lack of any charge or breach of the firearms regulations during his period of being licenced. Submissions also addressed Mr Ayshan’s attempts to comply with the genuine reason / club attendance / membership requirements and pointed to the evidence about difficulties encountered with the Marconi Clay Target Club.

48. Submissions were made in respect of the criminal intelligence reports adduced by the Commissioner in the confidential session (Apps subs 22/2/23 at [8]). It was submitted that no weight should be given to that evidence as it was adduced under objection and Mr Ayshan could not test it. The submission being that should the Tribunal afford that material weight, then the weight should be less than that which might have been given to it had it been able to be tested in an open hearing.

49. Mr Ayshan submitted that no inference should be drawn from an apparent failure to disclose the WA proceedings to the Commissioner. He submitted that he had opposed the WA applications from the outset. When that matter was adjourned his legal representative notified the Commissioner and the hearing date of the current matter of 3 August 2022 was vacated. The undertaking to resolve the WA matter is equivalent to a final order and does not invoke any mandatory considerations by the Commissioner under the Firearms Legislation. Mr Ayshan’s only interest in entering WA is to see his daughter. It was submitted that nothing adverse should be inferred by the Tribunal arising from any of those matters.

50. In closing Mr Ayshan submitted that the Tribunal should find that there is virtually no risk to public safety in him being granted a firearms licence.

Commissioner’s Submissions

51. The Commissioner made oral submissions at the conclusion of the open session. The Commissioner referred to Mr Ayshan’s failure to comply with the ‘genuine reason’ provisions concerning firearms use and ownership. References were made to the cases of Kassem v Commissioner of Police [2022] NSWCATAD 213 and Tobororovski v Commissioner of Police [2019] NSWCATAD 192. At [128] – [130] of that case the Tribunal observed that some leniency should be applied to the provisions but not when a significant period of time (5 years), has applied to the default or non compliance.

52. At [128] to [130] of Toborovoski the Tribunal observed:

Contraventions of cll 107 and 108 of the Regulation

128. Clause 107 of the Regulation provides that the holder of a licence issued for msport/target shooting must, during each compliance period of one year, participate in at least four shooting activities of an approved shooting club. Similarly, cl 108 provides that the holder of a licence issued for recreational hunting/vermin control, where club membership is the sole ground supporting the reason, must during each compliance period participate in at least two hunting club events. The public interest requires that all licensees be aware of, and comply with, the legislative requirements: Vella v Commissioner of Police, New South Wales Police Service [2003] NSWADT 91, [4].

129. The applicant has been in breach of the participation requirements in the Regulation since the 2011/2012 reporting period. No explanation for this lapse has been forthcoming. The tribunal has held that the legislation requires strict compliance: Oliver v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 95, [23].

130. Presumably some latitude may be extended where, as here, the regulatory requirement is not directly related to safety. But the admitted total disregard of the requirement over a period of five years in this case is a substantial dereliction that cannot be overlooked. In those circumstances it cannot be in the public interest for the licensee to continue to hold the licence.

53. The Commissioner also submitted that Mr Ayshan was not authorised to participate in clay target shooting.

54. The Commissioner in written submissions relied on the often cited cases of Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16. Reference was also made to the case of Australian Broadcasting Tribunal v Bond 1990 CLR 321.

55. The Commissioner also referred to Mr Ayshan’s history as set out in the open evidence and submitted that his conduct as a whole concerning the contraventions of the Firearms Act and conditions of his licence in respect of club membership and attendance, as well as his traffic history means that the Tribunal cannot reach the conclusion that there is virtually no risk to public safety.

56. It is now necessary to consider the confidential material tendered at the confidential hearing on 3 August 2022

CONFIDENTIAL PARAGRAPHS

57. [NOT FOR PUBLICATION]

58. [NOT FOR PUBLICATION]

59. [NOT FOR PUBLICATION]

60. [NOT FOR PUBLICATION]

61. [NOT FOR PUBLICATION]

62. [NOT FOR PUBLICATION]

63. [NOT FOR PUBLICATION]

64. [NOT FOR PUBLICATION]

65. [NOT FOR PUBLICATION]

66. [NOT FOR PUBLICATION]

67. [NOT FOR PUBLICATION]

68. [NOT FOR PUBLICATION]

69. [NOT FOR PUBLICATION]

70. [NOT FOR PUBLICATION]

71. [NOT FOR PUBLICATION]

END OF CONFIDENTIAL PARAGRAPHS

Consideration

72. The decision under review is based upon the notion that Mr Ayshan having access to firearms would be contrary to the public interest. In respect of the public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.

73. Section 3 of the Firearms Act 1996 provides:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

74. It is well understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered.

75. The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews.

28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is:

. . .

33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.

76. Mr Ayshan’s adverse history is not greatly significant. Whilst his traffic record is poor and questions arise around his firearms membership and record keeping concerning having a genuine reason for needing a firearm, those matters are not solely determinative on the application.

77. In my view from the open evidence the provision of false or misleading information to the regulator in respect of subsequent Firearms Licence applications is the matter of most significance in the open evidence,

78. I note that whilst not the main basis for the decision for review before the Tribunal, the notion of ‘fit and proper’ is referred to the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.

79. This position is consistent with the approach that the cases outlined above have set out concerning applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearm Act access to and use of firearms is not a right but a privilege.

80. The Appeal Panel case of Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 (Lee), provides guidance concerning giving proper consideration of all relevant matters when determining matters as to the public interest. At [24] - [25] of Lee the Appeal Panel observed:

24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

25. In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.

81. In my view the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act.

82. I note that Deputy President Hennessy observed in the case of Livadaru v Commissioner of Police [2008] NSWADT 160 that in reference to the public interest at [54]:

In considering the public interest, regard must be had to the underlying principle of the Act. ….

83. I note that the underlying principle of the Act concerns public safety.

84. In applying the discretion for the public benefit, having considered both the open evidence and the confidential evidence I find that there are matters which on an objective test (having regard to the objects of the legislation and cases referred to above) which would prevent Mr Ayshan being granted the licence.

85. Mr Ayshan’s traffic record works against him due to the image it paints of a person who will disregard the law when necessary. These matters also go to public safety. But that is a matter to which I have only given minimal weight.

86. I place no weight on the inconclusive Western Australian proceedings concerning interim orders against Mr Ayshan. That is because the complainant’s evidence could not be tested, the resolution of those matters is not adverse to Mr Ayshan, and they arose in the context of a Family Court background about which minimal evidence was before the Tribunal, in part because of the nature of the suppression orders in those types of proceedings or for other reasons.

87. In addition I have placed some weight on the history of club membership attendance and compliance but like the traffic history those matters are not sufficient to establish that there is a real and appreciable risk to public safety should Mr Ayshan be granted a licence.

88. From a broad public interest perspective, notwithstanding the clear unfairness to Mr Ayshan, I find confidential material which, whilst unfair to Mr Ayshan, it is of some probative value and must be given some weight notwithstanding that it cannot be tested further in these proceedings. That evidence combined with the open evidence matters, and in particular the provision of false and misleading information on 3 February 2017 in his application for a Category AB Firearms Licence, on my assessment tips the balance against granting the licence, including for the reasons set out in the confidential paragraphs.

89. Notwithstanding the unfairness to an applicant such as Mr Ayshan, I note by providing in s 75 of the Firearms Act for evidence to be given in camera and not disclosed in reasons, the Parliament was cognisant of the inherent unfairness, but when balancing public safety and the manner in which Police conduct their core business of keeping the community safe, saw fit to provide for this non disclosure provision.

90. Section 75 (5) of the Firearms Act provides:

(5) In determining an application for an administrative review of any such decision, the Civil and Administrative Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013)—

(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in section 11 (5A) or 29 (3A), and

(b) in order to prevent the disclosure of any such report or other information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review and the applicant’s representative.

91. In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal observed that the ‘burden’ that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed:

1. It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.

1. Rather, as stated in Webb at [32] when considering the question of public safety:

"In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".

92. In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, and specifically including the confidential evidence, it would not be in the public interest to issue the licence.

93. Having regard to the cases referred to above in my view it would be contrary to the public interest to reissue Mr Ayshan’s firearms licence and I so find.

94. As there is no current licence in place the decision will be affirmed with no consequential action arising.

Conclusion

95. Because of the findings that I have made, it is appropriate to affirm the decision of the Commissioner.

96. As this is an administrative review matter, it therefore follows that the correct and preferable decision is to affirm the decision of the respondent.

97. I therefore make the following orders:

Orders

1. Time to lodge the administrative review is extended pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), until 31 January 2022.

2. The decision to revoke the Applicant’s Category AB Firearms Licence is affirmed.

3. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (NCAT Act), the hearing of the application in the substantive proceedings be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material described in the Confidential Statement.

4. Pursuant to s 64(1)(c) of the NCAT Act, the publication of the Confidential Material and confidential exhibit CR1, or matters contained in the Confidential Material and confidential exhibit CR1 is prohibited.

5. Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the Confidential Material and confidential exhibit CR1, or matters contained in the Confidential Material and confidential exhibit CR1, is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal.

6. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the NCAT Act, the publication and recording of the confidential hearing of these preliminary proceedings, including confidential exhibit CR1 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 04 July 2023