Elrich v Commissioner of Police

[2022] NSWCATAD 78

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Elrich v Commissioner of Police [2022] NSWCATAD 78

Hearing dates:

21 September 2021

Date of orders:

9 March 2022

Decision date:

09 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW –revocation of licence – family association - firearms licence conditions – traffic record –public interest.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657

Commissioner of Police [2011] NSWADT 116

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16

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

Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

Kassem v Commissioner of Police [2021] NSWCATAD 213

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117

Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

Nepotu v Commissioner of Police, NSW Police Force [2020] NSWCATAD 101

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Todorovski v Commissioner of Police [2019] NSWCATAD 192

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

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

Category:

Principal judgment

Parties:

Abdallah Elrich (Applicant)
Commissioner of Police (Respondent)

Representation:

Counsel:
B Searson (Applicant)

Solicitors:
T&S Law Firm (Applicant)
Maddocks (Respondent)

File Number(s):

2021/00155424

Publication restriction:

Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, the content of the material that was filed by the Respondent on a confidential basis is not to be disclosed without further order of the Tribunal.
Those paragraphs of these reasons identified as “NOT FOR PUBLICATION” are not to be released, other than to the Respondent, without further order of the Tribunal.
No record of the confidential sessions is to be disclosed, other than to the Respondent, without further order of the Tribunal.

Reasons for Decision

Introduction

1. This is an application for review of a decision by a delegate of the Commissioner of Police (“the Respondent” or “the Commissioner”) under the Firearms Act 1996 (“the Act”). The Applicant, Mr Abdallah Elrich, has held a Category ABH firearms licence for some years for the genuine reasons of sport/target shooting and recreational hunting/vermin control. His most recent firearms licence was issued in October 2020 and was due to expire in October 2025. However, a delegate of the Commissioner determined to revoke the licence in March 2021.

2. The Applicant’s licence was revoked due to concerns regarding his domestic circumstances and as it was deemed to be no longer in the public interest for him to hold a licence.

General chronology

3. In his affidavit of 26 July 2021 the Applicant provided a chronology of events related to the Applicant’s firearms licence. This chronology is not in dispute.

21/02/2003      Applicant’s brother, Ali Elrich, passed away.

25/08/2005   Respondent issue Applicant with firearms licence no. 409141063 - Category AB (Rifles and shotgun).   

1. Respondent renews Applicant’s firearms licence.   

20/10/2015      Respondent renews Applicant’s firearms licence,   

31 July 2017   Applicant joins Castle Hill RSL Pistol Club and remains an active member until 31 October 2021.

31/10/2018   Applicant lodged application to add Category H (pistols), following completion of “Pistol Firearms Safety Training (PPL) Course”.

11/01/2019   Respondent upgrades Applicant’s firearms licence ABH licence.

01/05/2020      NOTICE OF SUSPENSION

Respondent issue Applicant with a suspension notice and seize Applicant’s firearms. Notice states the grounds for suspension “Not in public interest”.

20/10/2020      Applicant’s firearms licence expired while in suspension.

2 - 5/11/2020   Firearms Registry advise Applicant to lodge a new application online, stating further that “matters that led to your licence being suspended will be considered when your application is reviewed'

05/11/2020   Applicant applies for a new firearms licence online on advice from the Firearms Registry.

04/12/2020      Applicant is issued with a new firearms licence.

Constable Smith of Auburn PAC informs Applicant by email that he may collect his seized firearms from Auburn Police Station on 8 December 2020.

08/03/2021      NOTICE OF REVOCATION

Applicant issued with notice of revocation of firearms licence.

05/04/2021   Applicant files for interval review for revocation of firearms licence.

17/05/2021      Respondent determines interview review.

31/05/2021      Applicant files for administrative review with NCAT.

4. It is not in dispute that the Applicant does not have a criminal record. However a number of the Applicant’s extended family are well known to police for serious criminal history. The Applicant’s brother Ali was murdered in 2003 and some of the Applicant’s other siblings have been convicted of firearms offences. Until recently, the Applicant has lived at the same address as that recorded by the Respondent for the Applicant’s siblings who have a history of firearms offences, and offences relating to robbery with a weapon, assault and intimidation.

5. The Respondent’s decision to revoke the Applicant’s licence was affirmed on internal review and the Applicant has applied to the Tribunal for external review.

Traffic Record

6. The Applicant has a long history of traffic offences which extends from shortly after he was issued with an unrestricted drivers licence in June 2010. In the period between August 2011 and May 2021 his record shows:

24-06-2010       unrestricted licence issued (Class C)

18-08-2011      disobey left turn /right turn / no turns sign at intersection

02-09-2011    fine default suspension of unrestricted (Class C). Suspension to commence on 16-09-2011.

19-09-2011       decision of 16-09-2011 lifted.

18-12-2011   exceed speed limit by not more than 10 km/h whilst driving a motor vehicle (camera detected).

19-04-2012       demerit points courtesy letter sent.

29-05-2012    fine default suspension of unrestricted (Class C). Suspension to commence on 13-06-2012.

19-06-2012       decision of 13-06-2012 lifted.

19-06-2012       demerit points courtesy letter sent.

19-12-2012    fine default suspension of unrestricted (Class C). Suspension to commence on 08-01-2013.

11-01-2013        decision of 08-01-2013 lifted.

05-06-2013    exceed speed limit by not more than 10 km/h whilst driving a motor vehicle (camera detected) (school zone).

29-10-2013       demerit points courtesy letter sent.

14-01-2014    fine default suspension of unrestricted (Class C). Suspension to commence on 29-01-2014.

5-02-2014       decision of 29-01-2014 lifted.

16-07-2014    fine default suspension of unrestricted (Class C). Suspension to commence on 30-07-2014.

28-07-2014       drive across dividing lines to perform a U-turn.

13-08-2014       decision of 30-07-2014 lifted.

16-10-2014       demerit points courtesy letter sent.

22-10-2014    fine default suspension of unrestricted (Class C). Suspension to commence on 05-11-2014.

14-11-2014       decision of 05-11-2014 lifted.

15-11-2014       demerit points courtesy letter sent.

13-01-2015    fine default suspension of unrestricted (Class C). Suspension to commence on 28-01-2015.

21-01-2015    exceed speed limit by not more than 10 km/h whilst driving a motor vehicle.

29-01-2015       decision of 28-01-2015 lifted.

11-05-2015       not stop at red arrow.

19-05-2015    fine default suspension of unrestricted (Class C). Suspension to commence on 02-06-2015.

04-06-2015       decision of 02-06-2015 lifted.

06-08-2015       demerit points warning letter sent.

02-08-2016    drive/tow vehicle with insecure or overhanging load or load causing instability.

25-10-2016       demerit points warning letter sent.

03-12-2016    fine default suspension of unrestricted (Class C). Suspension to commence on 16-12-2016.

17-12-2016        decision of 16-12-2016 lifted.

03-01-2017       demerit points warning letter sent.

25-07-2017       stand vehicle in disabled parking space without authority.

06-09-2017    fine default suspension of unrestricted (Class C). Suspension to commence on 20-09-2017.

21-09-2017        decision of 20-09-2017 lifted.

21-09-2017       demerit points warning letter sent.

14-11-2017       demerit points warning letter sent.

03-12-2017    exceed speed limit by not more than 10 km/h whilst driving a motor vehicle (camera detected).

04-02-2018    fine default suspension of unrestricted (Class C). Suspension to commence on 28-02-2018.

06-03-2018        decision of 28-02-2018 lifted.

06-03-2018       demerit points courtesy letter sent.

14-03-2018       demerit points warning letter sent.

10-08-2018    fine default suspension of unrestricted (Class C). To commence on 24-08-2018.

25-08-2018        decision of 24-08-2018 lifted.

25-08-2018       demerit points courtesy letter sent.

01-12-2018    exceed speed limit by not more than 10 km/h whilst driving a motor vehicle (camera detected).

20-12-2020    exceed speed limit by more than 10 km/h but not more than 20 km/h whilst driving a motor vehicle.

05-02-2021    exceed speed limit by not more than 10 km/h whilst driving a motor vehicle (camera detected).

22-04-2021    fine default suspension of unrestricted (Class C). To commence on 06-05-2021.

11-05-2021        decision of 06-05-2021 lifted.

Applicable legislation

7. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal’s jurisdiction includes review of decisions by the Commissioner to revoke a firearms licence.

8. This application is made under section 75 of the Act and the ADR Act.

9. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.

10. The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:

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

   (c)   to facilitate a national approach to the control of firearms.

   11. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance in how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:

[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...

12. Section 24(2)(a) of the Act provides that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.

13. Section 7A(2)(b) of the Act provides:

7A    Offence of unauthorised possession or use of firearms generally

...

1. … a person who is the holder of a licence is guilty of an offence under this section if the person—

   …

   (b)   contravenes any condition of the licence.

   14. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest.

   15. Section 24(2)(d) of the Act provides that a licence may also be revoked for any other reason prescribed by the regulations.

   16. Relevantly, section 12 provides:

2. Genuine reasons for having a licence

3. The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

...

1. Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant—

   (a)   states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and

   (b)   is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.

Table

Reason: sport/target shooting

The applicant must be a current member of a shooting club approved by the Commissioner in accordance with the regulations, and which conducts competitions or activities requiring the use of the firearm for which the licence is sought.

Reason: recreational hunting/vermin control

The applicant must—

(a)   be the owner or occupier of rural land, or

(b)   produce proof of permission given by the owner or occupier of rural land, or by an officer or employee of the National Parks and Wildlife Service, the Department of Industry or other authority prescribed by the regulations, to shoot on rural land, or

(b1) produce proof of permission given by a land manager within the meaning of the Forestry Act 2012 to shoot on land in respect of which the land manager is authorised to exercise functions as land manager under that Act, or

(c)   be a current member of a hunting club approved by the Commissioner in accordance with the regulations.

The regulations may provide for the manner and form in which any such permission is to be given, the extent to which it operates, and how it is to be produced as evidence by the applicant. A person does not, so long as the person is authorised to give permission to shoot on land referred to in paragraph (b) or (b1), incur any liability merely because the person gives the applicant permission to shoot on the land concerned.

...

17. Section 19(1) of the Act provides:

1. Conditions of licence

2. A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

...

18. Clause 20 of the Firearms Regulation 2017 (“the Regulation”) provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

19. Clause 29 of the Regulation provides that a licence that is issued for the genuine reason of sport/target shooting is subject to additional conditions, the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members).

20. Clause 29 of the Regulation provides that:

29 Sport/target shooting

A licence that is issued for the genuine reason of sport/target shooting is subject to the following conditions (in addition to any other conditions to which the licence is subject)—

(a) the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members),

(b)   the licence does not authorise the use of a firearm except at a shooting range approved under Part 8 or under the authority conferred by clause 33 (Licences and permits extend to authorise sighting in, patterning and related activities).

21. Clause 107 of the Regulation provides that the holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.

22. Clauses 105 and 017 in Part 10 of the Regulation provide that:

Part 10 Participation requirements for club members

105 Definitions

In this Part—

approved club for a particular category of licence means an approved shooting club (including an approved pistol club), approved hunting club or approved collectors’ society or club of which the holder of a licence of that category is required to be a member under this Part.

competitive shooting match means a shooting activity in which scores are kept and results recorded.

compliance period for an approved club means each consecutive 12-month period that starts on the day of the year that the club has determined to be the start of its compliance period for the purposes of participation by club members.

participation in a shooting activity includes, in the case of a competitive shooting match, officiating at such a match.

shooting activity of an approved club means the following—

(a)   a shooting activity that is conducted by the club at the club’s shooting range, including a competitive shooting match, shooting training and target practice at the club’s shooting range,

(b)   firearms safety training conducted by the club at the club’s shooting range,

(c)   a competitive shooting match held at a shooting range other than the club’s shooting range where the match is endorsed by the club (including such a match that is conducted outside NSW or outside Australia).

...

107 Participation requirements for sport/target shooters (other than pistol shooters)

The holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.

23. Clause 111 of the Regulation concerns membership of more than one approved club. It provides:

111 Membership of more than one approved club

1. If the holder of a licence who is required under this Part to be a member of an approved club of a particular category is a member of more than one approved club of that category, the following provisions apply—

   (a)   the licensee must nominate a principal club of that category of which the licensee is a member and with which the licensee will mainly be involved,

   (b)   the licensee must notify the Commissioner of the nominated principal club in writing or in such other manner as may be approved,

   (c)   if the licensee participates in any compliance activity of a club of that category that is not the licensee’s nominated principal club of that category—the licensee must notify the nominated principal club in writing of the details of any such activity within each compliance period of the nominated principal club,

   (d)   compliance activity is required only during a compliance period of the nominated principal club.

2. In this clause, compliance activity means an activity in which a person participates for the purposes of compliance with a requirement of this Part.

   24. Clause 31 of the Regulation provides that a licence that is issued for the genuine reason of recreational hunting/vermin control is subject to the condition that the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members).

   25. Clause 108 of the Regulation provides:

108 Participation requirements for member of approved hunting club

1. The holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events.

2. This clause applies only where membership of an approved hunting club is the sole ground on which the licensee has established the genuine reason of recreational hunting/vermin control.

3. In this clause—

hunting club event means any event approved by any approved hunting club (whether or not a club of which the licensee is a member) involving hunting, shooting or firearms safety training.

26. The Tribunal’s function in relation to applications before it is set out in section 63 of the ADR Act:

1. Determination of administrative review by Tribunal

2. 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.

3. 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.

4. 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.

   27. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether or not it is contrary to the public interest for the Applicant to hold a licence under the Act.

   28. The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party.

   29. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].

   30. The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act. Accordingly, the objects and purposes of the Act are relevant.

The Public Interest

31. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

"25 The "public interest“ is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."

32. The 'public interest' allows 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

33. “Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

34. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum.

35. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP 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. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

36. 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: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

The material before the Tribunal

37. The Respondent relies on a bundle of documents filed under section 58 of the ADR Act, material filed on a confidential basis that has not been provided to the Applicant and written submissions. Ms Norquay, the Respondent’s solicitor also made oral submissions at the hearing.

38. The Applicant relies on his own affidavit evidence, an affidavit provided by his wife, a written character reference provided on his behalf by Azzam Khalil Mesto and correspondence from the Club Secretary of Hellenic Australian Hunting & Target Shooting Club. The Applicant’s counsel provided written and oral submissions.

39. I note that the Applicant’s character is not in issues in this matter.

The Respondent’s case

40. The Respondent relies on the grounds that the Applicant failed to satisfy the participation requirements for the licence and public interest considerations which arise because of the Applicant’s family associations and his traffic record.

Failure to comply with conditions on the licence

41. The Respondent contends that the Applicant failed to meet the participation requirements and relies on correspondence from the Castle Hill RSL Club Pistol Club, indicating that the Applicant had only attended competition shoots on a limited number of occasions. The Respondent notes that the Hellenic-Australian Hunting & Target Shooting Club indicating that the Applicant did not appear in its membership history. The Applicant conceded that his membership of the Hellenic club expired in 2005.

42. As noted above, the Regulation imposes participation requirements on the holder of a licence issued for the genuine reason of sport/target shooting. The Respondent submits that these conditions are fundamental and relevant to the Applicant’s genuine reasons for holding a category ABH firearms licence. It is an object of the Act that each person who possesses or uses a firearm under the authority of a licence proves a genuine reason for possessing or using the firearm, and the relevant conditions are an essential part of maintaining that genuine reason. The Respondent contends that the Applicant has contravened section 7A of the Act by failing to comply with this condition of his licence.

43. The Respondent also contends that prior to September 2021, the Applicant failed to provide evidence of permission to shoot on rural land to support his genuine reason of recreational hunting/vermin control as required by the Act. The Respondent accepts that that Applicant has now obtained that permission but submits that the Applicant had failed to comply with that condition for 15 years.

44. In Todorovski v Commissioner of Police [2019] NSWCATAD 192 the Tribunal noted at paragraphs [129] - [130:

1. 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].

2. 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.

   45. Todorovski v Commissioner of Police has been followed in a number of other matters in the Tribunal. See for example Kassem v Commissioner of Police [2021] NSWCATAD 213 from paragraph [53]; Nepotu v Commissioner of Police, NSW Police Force [2020] NSWCATAD 101 at paragraphs [40] - [42] where the Tribunal stated:

3. When applying for a firearms licence an applicant must demonstrate a 'genuine reason' in support of their application. The Applicant signed a declaration confirming that she understood her obligations under the firearms legislation, undertaking she would participate in target shooting and recreational shooting at her nominated club. The Applicant was granted her firearms licence on the basis of this undertaking.

4. It is trite to say that holders of firearms licences must understand and comprehend the requirements of the Act and the Regulation, and must also act in accordance with them.

5. The Applicant however has failed to maintain her genuine reason for her firearms licence as she has failed to meet her annual obligations under the Regulation, as set out in clauses 107-108. Furthermore, she had not done so for a number of years. The Applicant has shown an ongoing disregard for the legislative requirements and the strict controls around firearms licence, which is a substantial dereliction which cannot be overlooked: Todororovski v The Commissioner of Police [2019] NSWCATAD 192 at [130].

The Applicant’s family associations

46. In relation to the Applicant’s family, the Respondent contends that the Applicant maintains a close relationship with family members who have significant criminal histories. The Respondent concedes that the Applicant was issued a firearms licence, notwithstanding his sibling’s criminal history, however it is submitted that:

1. the Applicant’s brothers’ have continued to come to the attention of Police after the Applicant was issued with a firearms licence, and are the subject of confidential intelligence reports;

2. the Applicant’s brother Bassam, was convicted and imprisoned as a result of his firearms offences, and was subject to a number of charges in 2013, resulting in a conviction for “stalk/intimidate intend fear physical etc harm”.

47. The Respondent contends that the Applicant maintains a close relationship with his siblings, with some of them previously occupying the family home on the same property where the Applicant resided with his own family.

48. [NOT FOR PUBLICATION]

49. [NOT FOR PUBLICATION]

50. [NOT FOR PUBLICATION]

51. [NOT FOR PUBLICATION]

52. [NOT FOR PUBLICATION]

53. The Respondent contends that there is a public safety risk should the Applicant be permitted to continue to possess and use firearms when he maintains a close relationship with those siblings who have a history of serious firearms offences and other criminal matters.

The Applicant’s traffic record

54. The Applicant’s traffic record over the past ten years is set out above. The Respondent notes that the history includes:

1. Numerous incidents of exceeding the speed limit;

2. disobey traffic lights;

3. disobey no stopping sign (school zone);

4. drive using hand held mobile phone;

5. disobey left turn/right turn/no turns sign at intersection;

6. drive across diving lines to perform a U-turn;

7. not stop at red arrow;

8. drive/tow vehicle with insecure or overhanging load or load causing instability;

9. stand vehicle in disabled parking space without authority;

55. As a result of these offences, the Applicant has received 16 fine default suspensions.

56. The Respondent referred to the matter of Tannous v Commissioner of Police [2011] NSWADT 116 in which Judicial Member Huntsman stated at paragraph [37]:

I consider that the Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety (in particular, the breaches of the requirement that drivers of motor vehicles be licensed, which is aimed at ensuring that drivers of vehicles observe traffic safety laws and are safe and competent) indicates a disregard for a regulatory scheme aimed at ensuring public safety.

57. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, Senior Member Scahill noted at paragraph [76]:

The Applicant’s traffic history shows a disregard for public safety and his own safety as he repeated traffic offences.

58. At paragraph [81] she followed the reasoning from Tannous v Commissioner of Police and stated:

The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. ...

59. In the present matter the Respondent submitted that the Applicant’s extensive history of traffic infringements demonstrate a disregard for public safety and his own safety, as well as a disregard for a regulatory scheme aimed at ensuring public safety. It argues that this conduct causes concern for the Applicant’s ability to comply with regulations under the firearms licensing regime.

The Applicant’s case

60. The Applicant gave evidence in regard to the issues raised by the Respondent.

Compliance with the conditions on his licence.

61. In his affidavit of 17 September 2021 the Applicant stated that he undertook all his pistol shoots at the Castle Hill RSL Club Pistol Club Auburn Range and air pistol/rifle shoots at Castle Hill Range. He referred to a conversation that he had with the Club Secretary of the Castle Hill RSL Club Pistol Club who told him that she did not have access to the attendance sheets for Auburn Range for 2019 and 2020. Those records are held at the Auburn Range and it was closed due to the Covid lockdown. He noted that the records provided to the Respondent by the Castle Hill RSL Club Pistol Club do not include any dates for events at the Auburn Range for 2019 and onward.

62. The Applicant stated:

I can clearly recall that I attended at least 3 shooting events in 2019 at Auburn Range, not including the air pistol shoot that I also did at Castle Hill Range on 26 October 2019. I also recall that I attended at least 1 shooting event in 2020 at Auburn Range, between February and May 2020 (prior to the Police suspending my firearms licence).

63. He stated that he has a video recording taken at a competition shoot at Auburn Range on 13 October 2019. He noted that the 13 October 2019 attendance has not been included in the list provided to the Firearms Register.

64. The Applicant further stated that he has no other record or way of confirming the exact dates of his attendances at the Auburn Range.

65. Mr Searson submitted that if the club’s records are kept by volunteers, the volunteer who was making the attendance records may not have understood the ramifications of not recording an attendance.

66. Mr Searson further submitted that the Tribunal could conclude that the Applicant has not done enough shoots but would not be able to be satisfied how many shoots the Applicant attended. He accepts that the requirement to take part in shoots is to maintain skills and to not present a danger.

67. The Applicant also gave evidence that in April 2017 he had suffered a back injury which prevented him from completing all of his obligations. He provided a medical certificate to the Castle Hill Club RSL Pistol Club and it was regarded as a reasonable excuse for failing to attend the required number of shooting events. A copy of the certificate is in evidence. The Applicant stated:

Since my back injury on 27 April 2017, I have undergone extensive physiotherapy, completing a total of 55 sessions with my therapist. My last consultation was at the end of 2020. ...

Since that time, I have managed to completely wean off all my prescribed pain medication that I was previously taking for my back injury. I have progressed from having had to be wheelchair bound for a period of time, to then needing the assistance of a walking stick, to now being completely mobile and active.

I now regularly undertake physical activities and exercise, including daily power walks and light weight training about 4 days a week.

68. He said that he was never advised by anybody from the Pistol Club or the Firearms Registry that it was an issue in regard to his licence conditions.

69. In regard to his compliance with the minimum attendance requirements for his category AB licence for recreational hunting, he stated that he was a member of the Hellenic Outdoor Sporting Association but the membership expired in December 2005. He stated that he was under the impression that he was not required to participate in any hunting club events unless he was a member of a hunting club. That is why he didn’t extend his club membership.

70. He stated that prior to his back injury he would go on recreational hunting trips at rural farms up to about half a dozen times a year. After his back injury he was in no condition to partake in hunting trips, and so he decided to join a pistol club for recreational target shooting.

71. The Applicant has since acquired a letter of authority to shoot on rural land.

72. He said that if his firearms licence is reinstated, he would ensure full compliance with the licence conditions including compliance with all minimum attendance requirements on the licence.

The Applicant’s family associations

73. In relation to his family associations the Applicant explained that he lived with his wife and children in a granny flat behind the family residence from 2004 to March 2021. His firearms and ammunition were stored in safe units inside the granny flat until they were seized on the suspension of his firearms licence.

74. The Applicant’s wife, Suzan Mohamad El Kheir, provided an affidavit in which she confirmed this arrangement. She stated that the granny-flat was flooded following heavy rainfall in March 2021. This caused extensive damage to their furniture and other household belongings. Consequently, they needed to find a new place to live and they moved to their current residence.

75. The Applicant’s father was residing in the primary dwelling until his death in 2021. The Applicant stated that no other sibling, or relative, or associate was residing in either dwelling. In relation to the occupation of the primary dwelling the Applicant stated:

Due to my father’s health deteriorating from 2013, frequently in and out hospital admissions, he was medically advised not to be left on his own at home. So my siblings and I began taking turns in the care of my father on a full-time basis.

My brother Bassam would be with my father on Monday and Friday nights, Belal would take Tuesdays and Wednesdays, and I would take Thursdays, Saturdays and Sundays. My other brother Youssef and sister Fatima would assist in visiting during the day time throughout the week.

My father passed away recently on 30 June 2021.

Leading up to 1 May 2020 when Police suspended my firearms licence, I was aware that my brother Bassam had changed his mailing address to 46 Cardigan Street. However, he continued to reside at his current Fairfield East address ...

Using the family home as a mailing address was not uncommon amongst my other siblings, as I would regularly find mail addressed to my siblings over the years, and I would pass them on accordingly.

76. As noted, the Applicant’s brother Ali was killed in 2003. The Applicant stated that he has never been approached or questioned by Police to assist with information regarding Ali’s death.

77. The Applicant acknowledged his siblings’ criminal history but stated that he does not have any criminal convictions, nor has he ever been charged with a criminal offence.

78. Mr Searson submitted that there is no evidence to show that the Applicant has associated with any of his siblings since he moved from the granny flat behind the family residence.

The Applicant’s traffic record

79. The Applicant’s traffic record over the past ten years is set out above. The Applicant does not dispute the accuracy of the record. However, he stated that the infringements mainly relate to offences for exceeding the speed limit between 10km/h to 20km/h, or otherwise relating to parking and traffic-light infringements.

80. He acknowledged that his record also has a recurring history of fine default suspensions issued by Revenue NSW for failing to pay fines. He said that this would occur during times on which he was undergoing financial hardship. He said that apart from the suspensions for failing to pay fines he has never had his drivers licence suspended for exceeding his demerit points, nor has he had his licence disqualified by Court Order.

Consideration

81. As has been noted above, there are three main issues that arise for consideration.

82. There can be no doubt that several of the Applicant’s siblings have criminal convictions and are otherwise the subject of police intelligence reports. However, the Applicant has provided a plausible explanation for how he shared a common mailing address. On the evidence before me I am satisfied that the Applicant did not reside at the same address as any of his siblings in recent years. The Applicant has explained the care that he and his siblings provided for his father who was residing in the primary dwelling until his death. I have no other basis on which I could conclude that the Applicant has maintained a close relationship with his siblings in recent years.

83. In the circumstances I am not satisfied that there is more than a minimal risk to the public as a result of the Applicant’s association with his siblings should he hold a firearms licence and possess firearms.

84. I note the Applicant’s extensive traffic record. I agree with the Respondent that traffic laws and regulations are aimed at ensuring public safety. However, in my view it is significant that the infringements have not resulted in a demerits point suspension. I also accept that the Applicant has no convictions for driving offences. However, the fact that the Applicant has downplayed the significance of exceeding the speed limit and traffic-light infringements is a cause for concern.

85. The Respondent has correctly identified cases in which an applicant’s traffic record demonstrated a disregard for a regulatory scheme aimed at ensuring public safety and lead to the view that it was not in the public interest for them to hold a firearms licence. However, I do not consider that to be a reasonable conclusion in this case.

86. In the circumstances I am not satisfied that the Applicant’s traffic record indicates that there is more than a minimal risk to the public should he hold a firearms licence and possess firearms.

87. I do not hold the same view in regard to the Applicant’s failure to satisfy the conditions on his licence. On the evidence before me I am satisfied that he did not meet the obligations imposed on him as the holder of a firearms licence. The failure is more pronounced in regard to his obligation to provide evidence of permission to shoot on rural land. In my view, his failure to meet these requirements indicates a lack of understanding of his obligations.

88. As note above, in considering the public interest, the interest of the Applicant must give way to the interest of the public and in particular, the safety of the public. It is necessary to identify the possible risks to the public, and then make decisions that are consistent with the need to reduce any risks to a minimum.

89. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms. In order to achieve that objective it is essential that the holder of a firearms licence has a clear understanding of their obligations.

90. In order to be eligible to obtain a firearms licence the Applicant must proves a genuine reason for possessing or using the firearms. In order to continue as a licence holder, the Applicant was required to maintain that genuine reason. The Applicant failed to maintain his club membership from December 2005. Prior to September 2021, he failed to provide evidence of permission to shoot on rural land to support his genuine reason of recreational hunting/vermin control. He has been in breach of the participation requirements since 2005.

91. The Applicant has indicated that he misunderstood his obligations in regard to hunting. He has failed to meet his obligations and he had not done so for a number of years. As was noted in Nepotu v Commissioner of Police holders of firearms licences must understand and comprehend the requirements of the Act and the Regulation. They must also act in accordance with them. I cannot be satisfied that there is virtually no risk to the public if the Applicant does not understand his obligations as a licence holder. In my view this is not a minimal, fanciful or theoretical risk. However, it is an issue that can be addressed. If he takes steps to address these concerns, the Commissioner may well form a different view should he reapply for a firearms licence.

92. In the circumstances it is my view that it is not in the public interest for the Applicant to hold a licence until such time as he can satisfy the commissioner that he understands the requirements of the Act and the Regulation. It follows that the decision under review should be affirmed.

Order

1. The decision under review is affirmed

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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: 09 March 2022