Cong v Commissioner of Police

[2022] NSWCATAD 233

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Cong v Commissioner of Police [2022] NSWCATAD 233

Hearing dates:

27 June 2022

Date of orders:

13 July 2022

Decision date:

13 July 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The application for an extension of time is refused.

Catchwords:

EXTENSION OF TIME APPLICATION – substantive matter considered in course of extension of time application - licensing – firearms

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

Bailey v Commissioner of Police, NSW Police Force [2022] NSWCATAD 214

CFA v Department of Family and Community Services [2016] NSWCATAD 32

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657Cramp & Cramp v Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

Cramp & Cramp v Commissioner of Police, NSW Police Force [2022] NSWCATAD 189

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Jones v Dunkel (1959) 101 CLR 98

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31

Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Texts Cited:

nil

Category:

Procedural rulings

Parties:

Benliang Cong (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Applicant: Longton Legal (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/00065760

Publication restriction:

nil

REASONS FOR DECISION

Background

1. On 4 August 2020 the Applicant, Beniang Cong applied for a Category AB firearms licence. On 12 July 2021 the Respondent decided to refuse the application, on the basis that the Commissioner had reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances, and because the Commissioner considered that issuing a firearms licence would be contrary to the public interest.

2. The Applicant claimed to have received the refusal letter only 3 weeks before 31 August 2021, when he sought Internal Review of the Respondent’s decision. When no internal review decision was notified to the Applicant within 21 days (22 September 2021), pursuant to s 53(9)(b) of the Administrative Decisions Review Act 1997 (ADR Act), the Applicant’s internal review application is taken to have been finalised. It was not until 7 March 2022, that the Applicant sought review by this Tribunal.

3. In the ordinary course, the Tribunal would deal with the Extension of Time application by way of interlocutory proceedings, and only if the Extension of Time were granted, would the matter proceed to a substantive hearing. The parties agreed that the Tribunal could hear the evidence in the substantive matter and, in the making the decision, first determine the interlocutory matter, and, if the Extension of Time were granted, proceed to determine the substantive matter.

Relevant legislation: extension of time

4. Section 40 of the Civil and Administrative Tribunal Act 2013 (CAT Act) provides that an application to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules. Rule 24 of the Procedural Rules provides, relevantly:

…

(3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made--

(a) … or

(b) in any other case--by the end of the default application period.

(4) The "default application period"for the purposes of subrule (3)(b) is--

(a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997 --the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act, or

…

5. Section 41 of the CAT Act provides that the Tribunal may extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

Relevant legislation: substantive matter

6. The Firearms Act 1996, in setting out restrictions on the issue of licences, provides, in s 11, relevantly:

...

(4) ... a licence must not be issued if the Commissioner has reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of:

(a) the applicant's way of living or domestic circumstances, or

…

(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.

...

Evidence

7. The Applicant provided affidavits dated 1 March 2022, 12 May 2022 and 22 June 2022 (first, second, and third affidavits respectively). With the assistance of an interpreter, when he considered necessary, the Applicant gave evidence and was cross examined. He also provided an affidavit by Soung Mi Lee, his wife, dated 12 May 2022. Ms Lee was required for cross examination but she was not made available.

8. The Respondent provided material in accordance with s 58 of the ADR Act.

CONSIDERATION

9. Pursuant to s 40 of the CAT Act, and r 24 of the Civil and Administrative Tribunal Rules 2014 , the default application period ended on 19 October 2021. The Application for Review filed in the Tribunal on 7 March 2022, is thereby nearly 20 weeks out of time. The Applicant seeks an extension of time pursuant to s 41 of the CAT Act in relation to his review application; the Respondent opposed the granting of the extension of time.

10. The Respondent referred me to the recent case of Cramp & Cramp v Commissioner of Police, NSW Police Force [2022] NSWCATAD 189 (Cramp) where Dinnen SM refused the applicants' applications for extensions of time to file their late applications for administrative review.

11. In CFA v Department of Family and Community Services [2016] NSWCATAD 32 Dr Lucy SM, having referred to Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and CFZ v Department of Education [2015] NSWCATAD 231 (CFZ) at [29], conveniently summarised the effect of those cases:

29. Whilst it is important to remember that the Tribunal has a broad discretion concerning the grant of an extension of time, the cases referred to above establish that the following factors are relevant:

(1) The length of the delay

(2) The reason for the delay

(3) The applicant’s prospects of success

(4) Any prejudice suffered by the respondent

(5) Public interest considerations

(6) Timeliness or delay in antecedent administrative processes

(7) Whether strict compliance with the rules will work an injustice upon the applicant.

12. I turned to consider each of these in turn.

The length of the delay

13. By virtue of s 40 of the CAT Act and r 24 of the Procedural Rules, the default application period for the Applicant to make his application to the Tribunal ended on 19 October 2021. The Applicant in fact lodged his application on 7 March 2022, nearly 20 weeks late.

14. In other cases, even much shorter periods of delay have not been excused for purposes of extension requests. For example in CFZ 62 days was described as “a significant delay”. In Cramp the Senior Member considered 16 weeks to be an unreasonable delay.

15. Twenty weeks is not an insubstantial delay. The length of the delay is a factor weighing strongly against a grant of an extension of time.

16. I observe that s 36 of the CAT Act provides that guiding principle for the Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

The reason for the delay

17. The Respondent submitted that there are no compelling reasons why the Tribunal should allow the late application.

18. In the Applicant’s first affidavit the majority of his reasons for the delay stem from the impacts of the COVID-19 pandemic. In contrast, in his third affidavit the Applicant provided a further explanation for the delay in filing the application. He wrote that he had submitted his application for Internal Review on 31 August 2020, without the benefit of legal advice. His understanding was that his submission would be considered, and he would receive a decision. He did not know how long this process would take. He had never been involved in “this sort of thing” so had no expectation about how long he might have to wait. It did not seem unreasonable to him to expect that a response might take some time, even months.

19. I accept that COVID-19 pandemic caused disruption to the Applicant’s life, however, we were all affected. The original decision specifically invited his attention to the availability of an internal review which needed to be lodged within 28 days, and I observe that the Applicant was able to comply with that timeframe, pandemic notwithstanding.

20. I accept that the Applicant, being unrepresented at the time and a novice in making a firearms application, may have had an imperfect knowledge of the internal review procedure. There was no evidence that he had received an acknowledgment of his internal review request, but the Respondent did not deny that it had been received. I accept that, being unfamiliar with the review process, the Applicant, perhaps naively, just assumed he would be notified when there was a decision to his internal review application. There was no evidence that at any time he enquired as to the progress of his internal review application.

21. The Applicant further wrote that he was unaware that a time limit applied for bringing an application for review when he had not received a decision or outcome on his request for internal review. Although he had received no response to his internal review request, it was not until about 24 January 2022, that he first sought some advice from a lawyer.

22. He said it was only some time after making that contact that he was told about the time limit on seeking review by the Tribunal. Before me the Applicant said that he had asked his lawyer what was going on because he wanted to lodge an appeal.

23. Once he found out about the time limit, he wrote in his third affidavit, he did his best to ensure that his ”material” was put together and filed reasonably quickly. He did not specify when he had found out about the time limit. He said he had “asked around”. In contrast, in his first affidavit of he wrote that it took him about 5 months to acquire the “necessary documents from the NSW Police” to be satisfied that an application for a merits review by the Tribunal was an appropriate endeavour. He was asked in cross examination about the documents which he had sought given that his application for review was accompanied only by a copy of the original refusal decision and his first affidavit. The Applicant was unable to answer the question. His assertion that he was “gathering documents which took 5 months”, may suggest that he became aware of the time limit at some time before he consulted the lawyer. I observe that the only “documents” lodged by the Applicant with his Application for Review were the original decision and his first affidavit, which had no annexures. The only additional external material was a copy of the provisional ADVO dated 20 March 2016 and this was annexed to the Applicant’s 3rd affidavit. I do not accept his contention that the delay was occasioned by the failure of the Police to provide documents. The first step he took to address his outstanding application, it appears, was consulting a lawyer on 24 January 2022, that is, nearly 5 months after he lodged the internal review application.

24. Further, there was no explanation, however, as to the delay between consulting the lawyer on 24 January 2022 and the lodgement of the application for review on 7 March 2022, 6 weeks later.

25. Overall, I consider the explanation for the delay to be less than satisfactory.

The Applicant’s prospects of success

26. In Gad v Commissioner of Police, NSW Police Force [2022] NSWCATAD 226 (Gad) at [ 46] Dr Lucy SM recently said:

46. It is not the role of the Tribunal, when deciding an application for an extension of time to make a finding as to whether the applicant is likely to be successful in the proceedings. The test of whether an applicant has a fairly arguable case is designed to avoid such speculation. …

27. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22(4)] however, the Appeal Panel of the Tribunal held that “it may be appropriate to go further into the merits [of an appeal] if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable.”

28. The Respondent relied on an incident on 20 March 2016. A 000 call was received at 11:55 am from the Applicant’s wife. The report of the message recorded:

INFT (informant) SAID HUSBAND TRIED TO KILL INFT SCISSORS - SHE IS PREGANT (sic) - CALL TERMINATED WITHOUT COMPLETE LOC CONFIRMATION - ON CALL BACK NESB M (non English speaking male) ANSWERED AND SAID HE WAS ARGUING WITH HIS WIFE - WIFE TOOK OVER AND WAS CRYING - SHE SAID EVERYTHING IS OK AND THEN TERMINATED CALL AGAIN.

29. From the COPS Report, Police attended the high rise building where the Applicant and his wife lived and used the intercom for apartment 311. They allegedly spoke to the Applicant and others and requested access to level 33 (sic) to talk. The person Police spoke to said he did not know Ms Lee, and said that only 3 men lived at the apartment. The building manager was contacted. Police allegedly spoke with the Applicant. They also spoke with Ms Lee on her phone and requested that she attend the lobby. She reportedly said she was not in the building but at a café, and would return in 5 minutes. She was observed to exit the residential lifts of the building when she came to the lobby. Ms Lee told Police the argument was over her sore back from heavy lifting and that the argument was now over. She was reportedly vague about the incident and denied the Applicant had ever produced a pair of scissors as she had said in her 000 call. The Applicant also attended the lobby and denied the use of scissors and threatening Ms Lee in any way. He expressed concern about how an AVO might affect his employment and his visa.

30. Attending Police formed the view that the Applicant was “hiding evidence”, and that neither he nor his wife were telling the truth.

31. In his internal review application the Applicant wrote that Police had rung the wrong doorbell (suggesting 321 and not 311) and talked to the wrong person; ie not him.

32. In his second affidavit the Applicant admitted that he and his wife had an argument on the night of 20 March 2016 (although Police recorded the events as occurring at about 11.50 am). The Applicant noted that his apartment is 311, on Level 31 whereas the COPS event refers to apartment 331, which is on Level 33. He said he did not receive an intercom call from Police and did not speak to Police until he attended the lobby.

33. In his third affidavit the Applicant admitted there was an argument with his wife but he denied threatening her or that he had been “trying to kill her”; he had said nothing to her about scissors. He admitted that his wife had said she would call Police because of the argument. He thought she could have been joking. He was not in the room when she called the Police. There was no intercom call or discussion with Police before his wife received a call on her mobile. He did not hear her say anything about being at a café. She told him Police wanted to see them both in the lobby and they went down in the lift together.

34. Before me the Applicant said he could not recall what the argument was about; it was over “many small things”. She may have asked for a massage for her back and he refused. As to whether his wife was distressed before she made the call to 000 he said that she was very angry and upset, and that she had been angry for about an hour. She had never previously called the Police when they had argued and he did not expect that she would do so on this occasion; he thought she was bluffing. He denied that he was in the room when she made the 000 call.

35. As to who had spoken to Police on the 000 callback in which the male of NESB, was recorded as having said that he had and argument with his wife. He said he did not know who had said that, and denied that it was him; he did not pick up any call from the Police. He said he and his wife were the only ones there, although later said there was another person in another room, but he did not hear anything as he was resting and would not have been aware of the argument.

36. Before me the Applicant denied that he had told his wife what to tell the attending Police or that he had pressured her. In her affidavit Ms Lee wrote that when she and her husband went to the lobby she had told Police that there had been an argument which had now concluded.

37. Although Ms Lee expressed no concerns for her safety, a provisional AVO was made against the Applicant. The report of domestic violence did not result in any charges against the Applicant. On 23 March 2016 the Applicant and his wife attended Downing Centre Local Court, were separated, and when Ms Lee returned she told him they could leave. As a result, the provisional AVO was eventually withdrawn.

38. It is difficult to be clear as to what occurred when Police attended the premises, There was some confusion as to what unit was contacted by Police on arrival and to whom they spoke; Police formed a view that the Applicant was “hiding evidence” although this seems to have been premised on their having spoken by intercom to a person they believed to be the Applicant.

39. While these inaccuracies are unfortunate, and attending Police were not called before me by either party to clarify what had occurred from their perspective, it remains that the 000 recording clearly sets out what Ms Lee had said when she first telephoned. When she was phoned back it appears that the Applicant answered the phone, although, in his evidence, he denied it was him. Because the Applicant and his wife arrived in the lobby together, I find it is more likely than not that the Applicant was with his wife when she received the 000 callback and that it was he who answered the phone.

40. I accept that the only available contemporaneous evidence is, essentially the 000 call. However, when Ms Lee got on the line on the callback she did not retract what she had alleged, only stating that “everything is OK”. I find the evidence of the original call and her failure to deny her allegations in the callback to be very persuasive evidence of Ms Lee’s state of alarm at the time she originally sought Police assistance. Importantly, in her affidavit she did not deny the facts of the argument which gave rise to the 000 call, namely that the Applicant had tried to kill her with scissors.

41. As discussed above, Ms Lee’s attendance was requested for the purposes of cross examination, but she was not produced. In his evidence, in the context of whether he had pressured his wife in relation to what she told attending Police, he said that “she can do and say anything she wants”. While Jones v Dunkel (1959) 101 CLR 98 does not apply in proceedings in this Tribunal, a failure to lead evidence necessarily impacts on the case that is presented to the Tribunal; the absence of Ms Lee’s evidence leaves a major gap in the Applicant’s case, especially in circumstances where I have reservations as to his account and also his explanation for the delay in filing the Application for Review.

29. The Respondent submitted that victims of domestic violence do not always pursue proceedings because of fear of repercussions. For that reason, it was submitted, the Tribunal should approach the Applicant’s affidavits, and in particular the affidavit of the Applicant’s wife, with scepticism. The fact that domestic violence matters do not give rise to any proven charges is immaterial in the context of firearms licensing decisions: see Hariri v Commissioner of Police [2022] NSWCATAD 5 at [60], citing Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCAT 31 at [62]-[64]. In Grenfell v Commissioner of Police [2021] NSWCATAD 124 (Grenfell), the Tribunal concluded that it was not in the public interest for the Applicant to hold a firearms licence in circumstances where the Applicant was subject to a provisional AVO that was withdrawn. Recently, in Bailey v Commissioner of Police, NSW Police Force [2022] NSWCATAD 214 (Bailey) [42] I observed that while I generally agreed with the principle in Grenfell,  in that case, the applicant had a history of alleged domestic violence incidents and allegations have been made against him by three former long term partners and that the applicant’s circumstances in Bailey were very different.

30. Still, domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence. I cannot be reasonably satisfied that the Applicant did not engage in threats of violence against his wife in March 2016: per Joseph.

31. I accept the Applicant’s evidence that he has a good job, and he and his wife are now in a stable relationship, although it would have been helpful, as I have said to have that confirmed by his wife before me, and not just in her affidavit. They have their own home and have a small child. While this may address concerns as to their current domestic circumstances the public interest in him having a firearms licence needs to be considered.

Public interest (firearms licence)

45. The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 11(7) of the Act. The term is not expressly defined in the Act. “Public interest” is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual: Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25].

46. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].

47. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

48. The Applicant said that he seeks a firearms licence for the purposes of sport/target shooting and recreational hunting/vermin control. He does not require a firearms in accordance with rural property management; shooting is a hobby, it appears.

49. Private interests however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. As I have observed many times, these matters include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].

50. Having regard to my findings in relation to the alleged domestic violence incident and that the Applicant’s interest is having a firearms licence is as a hobby only, it is unlikely that it would be in the public interest for a licence to be issued to the Applicant at this time.

51. As I have found the explanation for the delay to be less than satisfactory, and adopting the approach in Jackson, I do not find that the Applicant’s case has substantial merit.

Any prejudice suffered by the Respondent

52. The Respondent submitted that it would suffer prejudice as a result of a decision by this Tribunal extending the time of unreasonably late applications for review in circumstances where the Respondent is opposing the extension of time. I accept that it is desirable that the Respondent has certainty in relation to its decision, however, I do not think this factor, in the present matter has much weight. The Respondent would not otherwise be disadvantaged by having the matter reviewed.

Public interest considerations

53. Public interest considerations support a time limitation on applications for administrative review in order to achieve the Tribunal's objectives, pursuant to the guiding principle contained in s 36 of the CAT Act of facilitating the just, quick and cheap resolution of the real issues in the proceedings.

Whether strict compliance with the rules will work an injustice upon the Applicant.

54. It remains open to the Applicant to re-apply for a firearms licence, so I do not consider that refusal will work an injustice upon the Applicant.

Conclusion

55. Taking the relevant factors together, I do not consider that the Tribunal’s discretion in s 41 of the CAT Act should be exercised in the Applicant’s favour.

56. Having decided not to grant the extension of time, it was unnecessary for me to come to a final view in the substantive matter.

DECISION

57. The application for an extension of time is refused.

**********

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: 13 July 2022