Metleg v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 17

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Metleg v Commissioner of Police, NSW Police Force [2023] NSWCATAD 17

Hearing dates:

21 March 2022

Date of orders:

18 January 2023

Decision date:

18 January 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

1. The decision under review is affirmed.

2. The publication and disclosure to the Applicant of evidence read or tendered by the Respondent on a confidential basis and in his absence is restricted to the Respondent and her legal representatives only, pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW).

3. Pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW), the transcript and recording of that part of the hearing in these proceedings that took place in the absence of the Applicant and his representatives and the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

4. Pursuant to s 49 of the Civil and Administrative Tribunal Act, 2013 (NSW), the transcript and recording of the balance of the hearing on 21 March 2022 is not to be published or released to the public.

Catchwords:

ADMINISTRATIVE REVIEW – firearms licence – revocation – whether applicant fit and proper person – whether in the public interest to continue to hold a licence – whether risk to public safety

Legislation Cited:

Firearms Act 1996 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Administrative Decisions Review Act 1997 (NSW)

Cases Cited:

AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5

Austin v Commissioner of Fair Trading [2016] NSWCATAP 179

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 61 IR 455

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police [2013] NSWATAP 16

Cruickshank v Commissioner of Police [2022] NSWCATAD 115

Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50

Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134

El-Ashrafi v Commissioner of Police, NSW Police Force [2017] NSWCATAD 103

Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43

Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28

Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273

Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145

Laing v Commissioner of Police New South Wales Police Force [2017] NSWCATAD 315

Madziala v Commissioner of Police, NSW Police Force [2021] NSWCATAD 269

Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276

McDonald v Director-General of Social Security (1984) 1 FCR 354, 357

Metleg v Commissioner of Police [2021] NSWCATAD 358

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137

Tannous v Commissioner of Police [2011] NSWADT 116

Tolley v Commissioner of Police, NSW Police Service [2006] NSWADT 149

Ward v Commissioner of Police [2000] NSWADT 28

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Mustafa Metleg (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
C Nowlan (Applicant)
A Mykkelvedt (Respondent)

Solicitors:
Skaf Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2021/00208284

Publication restriction:

The publication and disclosure to the Applicant of evidence read or tendered by the Respondent on a confidential basis and in his absence is restricted to the Respondent and her legal representatives only, pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW)

Pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW), the transcript and recording of that part of the hearing in these proceedings that took place in the absence of the Applicant and his representatives and the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

Pursuant to s 49 of the Civil and Administrative Tribunal Act, 2013 (NSW), the transcript and recording of the balance of the hearing on 21 March 2022 is not to be published or released to the public.

REASONS FOR DECISION

Introduction

1. On 12 December 2020, the Commissioner refused to grant the Applicant, Mr Metleg, a Category A and B firearms licence. The Commissioner’s stated reasons for that decision were that the Applicant was not a fit and proper person to be granted a licence and that the issue of a firearms licence to the Applicant would be contrary to the public interest.

2. Mr Metleg sought an internal review of the decision but having received no response, his request for an internal review was deemed to have been finalised on 10 February 2021.

3. On 21 July 2021, Mr Metleg commenced the present application in the Tribunal.

4. For the reasons set out below, the Tribunal has determined that the correct and preferable decision, in this case, is that the Commissioner’s decision should be affirmed, the consequence being that Mr Metleg will not be granted a firearms licence.

Issues

5. The principal questions to be determined in this case are whether, in the context of the considerations required to be made pursuant to the Firearms Act 1996 (NSW), s 11(3)(a) and s 11(7), Mr Metleg:

1. is a fit and proper person to hold a firearms licence and can be trusted to have possession of firearms without danger to the public safety;

and whether

2. the grant of such a licence would be against the public interest for some other reason.

6. Additionally, the Commissioner submitted that the Tribunal needed to have regard to the following issues:

1. Whether Mr Metleg had a genuine reason for possessing and using firearms in circumstances where his stated genuine reason was recreational hunting/vermin control, and his only evidence to support that genuine reason was his now-expired membership of the Sporting Shooters’ Association.

2. Whether the Tribunal can be satisfied that Mr Metleg has satisfied the safe storage requirements set out in the Firearms Act, Part 4. This issue arises on the Commissioner’s contention that, because of his relationship with his brothers, Mr Metleg has not taken all reasonable steps to ensure that his firearms do not come into the possession of unauthorised persons. Related to this is the question of whether there was reasonable cause to believe that Mr Metleg may not personally exercise continuous and responsible control over the firearms because of his way of living or domestic circumstances – this arises in particular on the basis of his past and continuing relationship with two of his brothers. If the Tribunal had reasonable cause to accept the Commissioner’s contention, then, pursuant to the Firearms Act, s 11(4), the Tribunal could not permit a firearms licence to be issued. This additional issue is addressed in respect of the principal issues to be determined as described in paragraph 5 above.

Preliminary Issue – Confidential Evidence and Private Hearings

7. At the hearing of this matter, I made orders pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 49, to allow the hearing to take place in the absence of the public and, in respect of the confidential evidence and submissions of the Commissioner, for part of the hearing to take place in private in the absence of the applicant and his representatives.

8. I further made orders pursuant to the Civil and Administrative Tribunal Act, s 64(1)(c) and s 64(1)(d), restricting the publication or disclosure to the applicant of evidence adduced by the Commissioner on a confidential basis.

9. The Commissioner has previously made a successful application pursuant to the Administrative Decisions Review Act 1997 (NSW), s 59 concerning the lodgement of documents; Metleg v Commissioner of Police [2021] NSWCATAD 358.

10. Having regard to the confidential nature of the evidence to be relied upon by the Commissioner at the hearing on 21 March 2022, the nature of some of the evidence given under cross-examination by Mr Metleg and his consent to the making of those orders, the Tribunal was satisfied that it was desirable that the whole of the hearing be conducted in the absence of the public. In fact, the hearing was conducted by audio-visual link and no member of the public attended. In aid of the Tribunal’s orders that the hearing take place in private, I have made orders that access to the transcript of the hearing be restricted to the parties.

11. I further ordered that part of the hearing be conducted in the absence of Mr Metleg and his representatives (Private Hearing). Those orders were again made on the basis that the Tribunal was satisfied that the confidential nature of the evidence to be presented would require such an order and noting the consent of the applicant to the making of those orders. I have made further orders to the effect that publication and disclosure of the confidential material tendered by the Commissioner, which I describe in detail below, be restricted and the subject of non-publication orders.

Legal Context

12. A person may apply to this Tribunal for administrative review of the Commissioner’s decision to revoke a firearms licence pursuant to the Firearms Act, s 75(1)(c) and the Administrative Decisions Review Act, s 9.

13. In conducting the review, the Tribunal must consider the correct and preferable decision regarding the material before it, including the facts and applicable law; Administrative Decisions Review Act, s 63. The proceedings are not adversarial in nature, there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354, 357. There is no burden or onus of proof on either party: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34].

14. The possession and use of firearms in New South Wales is regulated by the Firearms Act, the underlying principles of which are set out in s 3(1) and include:

(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, …

15. The Tribunal, in determining applications such as these, is required to exercise the statutory discretion in a manner that promotes the principles of the Firearms Act; Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [23].

16. In Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134 at [46], the Tribunal considered, having regard to the underlying principles of the Firearms Act, s 3(1), that the primary consideration in relation to public interest must be public safety. An applicant’s interest in obtaining or retaining a firearms licence is subordinate to that consideration; Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.

17. A person must not possess or use a firearm unless authorised by permit or licence; Firearms Act, s 7A.

18. The Firearms Act, s 11(3) requires that the Commissioner (and now the Tribunal) must not issue a licence 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, …

19. Further, the Commissioner’s decision referred to the discretionary provision of Firearms Act, s 11(7) that provides:

Despite any other provisions 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.

Fit and Proper Person, Without Danger to Public Safety

20. Pursuant to the Firearms Act, s 11(3), the Commissioner is required to be satisfied that an applicant for a firearms licence is a fit and proper person and can be trusted to have possession of firearms without danger to public safety. If the requisite level of satisfaction is not reached, the Commissioner (and hence the Tribunal) must not allow a licence to be issued.

21. The term “fit and proper person” carries no precise meaning, a determination of whether an applicant is a fit and proper person must be determined by reference to the activities the person has or will be engaged in and whether any improper conduct has occurred or is likely to occur; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ; Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28.

22. Determination of whether a person is “fit and proper” is a subjective exercise on the part of the decision-maker. In Bond at 388, Toohey and Gaudron JJ further stated that:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

23. These statements have been considered at some length in numerous decisions of the Tribunal, most significantly the Appeal Panel’s decision in Austin v Commissioner of Fair Trading [2016] NSWCATAP 179 at [58], albeit in the context of an applicant with a criminal history seeking at tattooist licence.

24. Consistent with Bond, in matters concerning firearms licencing, the Tribunal has had regard to the activities the applicant will be engaging in when considering the question of whether an applicant is a fit and proper person and the context of the relevant legislative regime Bond per Mason CJ at 348 which the Tribunal in Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22] expressly adopted in considering the provisions of the Firearms Act, s 11(3).

25. What arises from the authorities is that the determination of whether an applicant is a fit and proper person is not merely an assessment of an applicant’s character but also an assessment of their conduct, likely future conduct, community confidence that improper conduct will not occur, and knowledge of the duties and responsibilities of the licence holder; Austin at [58].

26. As noted in the Tribunal’s decision in Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 at [6], the firearms licensing regime is concerned with protecting the public, not punishing individuals. The firearms licensing regime is concerned with identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum; Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Such consideration is not limited to an assessment of the particular characteristics of an applicant, but instead requires consideration of the contextual risks to the public if the applicant were to be granted a firearms licence.

27. In Ward v Commissioner of Police [2000] NSWADT 28 at [28], the predecessor to this Tribunal stated:

The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.’

28. The views expressed in Ward have been adopted in numerous decisions of this Tribunal. Such test cannot be applied mechanistically lest it gives rise to an insurmountable burden upon applicants for firearms licences; Martin at [66].

29. Rather, as the Applicant submits, careful consideration of the evidence before the Tribunal is required where only real and appreciable risks should be taken into account; Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Cruickshank v Commissioner of Police [2022] NSWCATAD 115 [13] – [20]. In the course of such consideration, the text of the provision is prime and should not be substituted for gloss or interpretation; AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 at [7].

30. The Commissioner, in submissions, also referred the Tribunal to the decision in Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43, and the observations of the Tribunal at [60] that

… it is well known that criminal organizations often seek to make use of persons who have no criminal record in the furtherance of their criminal activities.

Public Interest

31. As noted above, the Firearms Act, s 11(7) provides that the Commissioner (and hence the Tribunal) may refuse to issue a licence if it considers that the issue of such a licence would be contrary to the public interest.

32. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the 'public interest' was an inherently broad concept providing the decision maker with the ability to consider matters where character was either not relevant, or where the objection to character would not be sufficient, alone, to warrant refusal or revocation of a firearms licence. The appeal panel expressed similar consideration regarding the breadth of the term public interest in Constantin v Commissioner of Police [2013] NSWATAP 16.

33. The Appeal Panel’s statements in Toleafoa and Constantin reflect the statement in Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 61 IR 455 at 479-480 per Wilcox CJ and Keely J with whom Moore J agreed, to which both parties refer in submissions that:

The purpose of the reference to ‘‘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 Commission’s consideration. The effect of the reference is to amplify the ‘‘scope and purpose’’ of the legislation.

34. The discretion allowed under the relevant provisions of the Firearms Act must be exercised to promote the objects of the firearms legislation; Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [13]; Petas at [35].

35. Consideration of what is the ‘public interest’ is confined to the subject matter, scope and purpose of the legislation; Laing v Commissioner of Police New South Wales Police Force [2017] NSWCATAD 315 at [31], citing O’Sullivan v Farrer (1989) 168 CLR 210, [13]. In this case, the Commissioner submits that regard should be had, in addition to the text, to the context of the “strict controls” imposed by the Firearms Act in considering whether the public interest is served by granting a firearms licence. I do not agree with that submission as far as it seeks to impose a fetter on the matters to which the Tribunal should have regard in considering the public interest since each of the controls identified is in aid of the objects of the firearms legislation.

36. I respectfully agree with the Commissioner’s submission that public interest considerations are extremely broad and may encompass considerations of public protection, safety and confidence in the administration of firearms licencing, indeed, these are matters expressly identified in Constantin at [33].

37. As to public safety, an applicant's behaviour, history and record is not the only relevant consideration in determining the public interest considerations under the Firearms Act; the behaviour and history of persons associated with an applicant are also relevant; in Tolley v Commissioner of Police, NSW Police Service [2006] NSWADT 149 at [31] after considering the application of the principles enunciated in Ward;

… Given the breadth of the Commissioner’s discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.

Genuine Reasons

38. The Firearms Act, Division 2 provides a licensing scheme for the possession and use of various firearms.

39. Prior to 13 July 2017, when it was revoked, Mr Metleg held a licence authorising him to possess and use firearms listed in categories A and B for reasons of recreational hunting/vermin control, such reasons being defined as “genuine reasons” for the purposes of the Firearms Act, s 12 and the table in that section.

40. At hearing, the Respondent contended that Mr Metleg’s membership of the Sporting Shooters’ Association, being the principal basis upon which he asserted his genuine reason for possession of firearms was for recreational hunting, had expired and, therefore, he was not capable of establishing that he had a genuine reason to possess firearms.

41. Mr Metleg explained that, since his licence had been revoked, he has not renewed his membership with the Sporting Shooters’ Association as there seemed little point in doing so. He later produced evidence that he had re-established his membership in anticipation of being successful in the current proceedings.

42. I consider Mr Metleg’s evidence that he had owned firearms for years and that, when he held a licence, he had used those firearms to undertake recreational hunting, as being sufficient to establish that he had a genuine reason for wanting to possess firearms. I accept, too, his explanation of the practicalities of not maintaining his membership with the Sporting Shooters’ Association.

Evidence

The applicant’s evidence

43. Mr Metleg relied on the following evidential materials:

1. A written statement made by Mr Metleg in which he declares that;

1. he is the owner of four firearms that are presently being held for him by a friend,

2. he has no criminal history,

3. two of his brothers, who, without intending any disrespect, I will refer to by their first names as Ali and Mohamed, have criminal histories, including in respect of firearms offences,

4. he has distanced himself from those siblings as much as possible over concerns that his brothers’ activities would impact his employment, he also changed his name for that reason,

5. he held a driver’s licence from the Australian Capital Territory because of his employment which required that he live in Canberra on a part-time basis,

6. he was not involved in a fraudulent cheque sent to his solicitor by a friend overseas as a gift in the purchase of a new home. As soon as he became aware of a problem, Mr Metleg says he arranged payment by other means,

7. he sent some text messages to family and friends about PCR tests for COVID-19 however, these were sent as pranks – Mr Metleg refers to them as “joke texts” that were not intended to be serious. He states he spoke to each recipient and apologised for any offence caused.

2. Six written character references supporting his suitability to obtain a firearms licence. Two of those references are from Mr Metleg’s family, particularly his father and his sister, who is a solicitor. The remaining four references are from people in the community who have known Mr Metleg for at least ten years. In addition to the very positive statements about Mr Metleg, each character reference comments on how unlike Mr Metleg is from his brothers Ali and Mohamed.

44. Mr Metleg also gave oral evidence and was cross-examined by counsel for the Commissioner at the hearing.

The respondent’s evidence

45. The Commissioner relied on the following non-confidential materials:

1. Three bundles of documents that were filed respectively on 25 August 2021, 1 September 2021 and 11 February 2022, pursuant to the ADR Act, s 58 (s 58 Bundles).

2. Two affidavits of Detective Chief Inspector Brian O’Donoghue. The first affidavit of DCI O’Donoghue and its exhibits were not confidential and were tendered at the hearing in the applicant’s presence.

46. Part of the hearing was conducted in private pursuant to the Civil and Administrative Tribunal Act, s 49 (Private Hearing). In the course of the Private Hearing:

1. The second affidavit of DCI O’Donoghue, together with its exhibits, was confidential and was received by the Tribunal in the Private Hearing in the absence of the applicant and is the subject of non-publication orders. Having regard to the material contained in the confidential evidence given by DCI O’Donoghue, I do not propose detailing the contents of that material in open reasons.

2. A confidential affidavit of Superintendent John Watson that is the subject of orders for confidentiality and non-disclosure made by the Tribunal on 2 December 2021 in Metleg v Commissioner of Police [2021] NSWCATAD 358. Once again, having regard to the material contained in the confidential evidence given by Superintendent Watson, I do not propose detailing the contents of that material in open reasons.

Material Facts

47. The following facts were not in dispute between the parties

1. Mr Metleg has no criminal convictions.

2. Mr Metleg held a Category A and B firearms licence between about 2002 and 2016. In that period, Mr Metleg used the name Michael Powers and, his firearms licence was issued to him under that name. In the Commissioner’s materials, some vague aspersions are cast made about Mr Metleg’s use of a different name. In my view, nothing turns on this fact.

3. While in the period between 2002 and 2016, Mr Metleg’s firearms licence was suspended twice, firstly in relation to his use of an alias and secondly in relation to charges arising from allegations of domestic violence against a former partner (where the charges were subsequently dismissed).

4. Mr Metleg is one of five siblings. Two of his brothers, Ali and Mohamed, have convictions for various serious criminal offences, including offences relating to car-rebirthing, drug offences, and firearms importation offences.

5. Ali has repeatedly applied, unsuccessfully, for a firearms licence. Those applications were made by Ali in 2010, 2014 and 2017.

6. On 8 April 2016, a Firearms Prohibition Order (FPO) was made against Mr Metleg’s brother Mohamed. According to the Commissioner’s documents, the FPO was served on Mohamed on about 18 July 2016. Mohamed was also the subject of an apprehended violence order made in 2020 that expired in October 2022.

7. On 24 February 2016, the Commissioner suspended Mr Metleg’s firearms licence, and on 13 July 2017, revoked that licence pursuant to Firearms Act 1996 (NSW), s 11(5A). No reason was required to be provided.

8. Mr Metleg applied for a new Category A and B firearms licence on 1 July 2019. On 12 December 2020, the Commissioner notified Mr Metleg that his application had been refused.

48. There are two areas of significant contention between the parties:

1. The level of contact Mr Metleg had with his brothers, Ali and Mohamed and whether Mr Metleg has been involved in the unlawful conduct of his brothers; and

2. Mr Metleg’s own compliance with various laws.

Association with the Applicant’s Brothers

49. The Commissioner asserts that Mr Metleg has not, in fact, distanced himself from his brothers Ali and Mohamed. Several examples given by the Commissioner to demonstrate a close level of involvement between Mr Metleg and his brothers concern activities that took place several years ago. I do not consider that material to be of particular assistance in determining the issues raised in these proceedings. It is trite to note that people and relationships change over time, particularly when children grow up, leave their family home and establish their own adult lives.

50. However, interactions from about 2016 onwards, when Mr Metleg’s firearms licence was revoked, are relevant, and the Tribunal has given considerable weight to that material.

51. Mr Metleg’s written and oral evidence was to the effect that, from about 2012, when the family home had been raided by police, he had tried as far as possible to distance himself from his brothers, Ali and Mohamed. He described his contact with Ali and Mohamed as being “very minimal”. In the course of his oral evidence Mr Metleg candidly and properly told the Tribunal that while he attempted to distance himself from his brothers, he also had continued to have contact with them so as not to cause offence or disputes within his family. Mr Metleg’s evidence produced the following examples of contact with Ali and Mohamed:

1. Mr Metleg gave evidence that he visits his elderly father with the grandchildren every couple of days. Mr Metleg stated that his brothers Ali and Mohamed were occasionally at his father’s house during these visits.

2. Mr Metleg attended his nephew’s wedding in about September or October 2021. Mohamed was also at the wedding and Mr Metleg had greeted him. Mr Metleg explained that his greeting was a common courtesy performed in front of his father and the other wedding guests, with the implication being that to have failed to acknowledge his brother would have been rude or disrespectful or a source of pain for his father.

3. Mr Metleg had attended a barbeque function where Mohamed was also present about three weeks before the wedding.

4. About a week before the hearing of his application before the Tribunal, Mr Metleg had attended the wedding of Ali’s daughter and had spoken to Ali while attending the wedding event.

5. Mr Metleg also gave evidence that he was in contact with Ali’s son, who, he volunteered, had a firearms licence. Ali’s son was, in fact, one of the recipients of a text message which is discussed below.

52. While I accept that Mr Metleg has tried to navigate the difficult path between distancing himself from Ali and Mohamed while not creating disharmony in the family in the course of his personal interactions, his evidence establishes that he has been unsuccessful given the various interactions outlined above.

53. The Commissioner also tendered evidence concerning three companies in which Mr Metleg and his brother Ali were associated. In particular:

1. Mr Metleg is listed as a director and a 50% shareholder in a company called Network Food Group Pty Ltd. Mr Metleg’s brother Ali is the other director and 50 % shareholder. According to the company search contained in the non-confidential exhibit of DCI O’Donoghue, the company remains registered and has certain charges registered on the PPSR in respect of a motor vehicle. In cross-examination, Mr Metleg stated that the company was a vehicle by which he intended to operate a business making and selling organic beverages, the business was not sustainable, and he wanted to sell it to anyone who would take it off his hands. Mr Metleg said he was supposed to have been removed as a director of this company when Ali took over in early 2018 and that he has spoken with his other brother, Omar, who is an accountant, about this. As well as the currency of the relationship of co-directors and co-shareholders, the date of appointment of Mr Metleg and his brother Ali is significant. Mr Metleg was appointed to this company from incorporation in 2016. In 2018, Ali was appointed as a director. I do not accept Mr Metleg’s evidence that the sale was a mere business transaction in which he sold his interest to his brother without any direct contact. The company records show that Mr Metleg remains a director and 50% shareholder with his brother Ali. There was no outright sale. Accordingly, I find that Mr Metleg has continued a business relationship with his brother Ali via their joint involvement in this company.

2. Mr Metleg is listed as a former director and sole shareholder of a company called Sefton Mini Mart Pty Ltd. Mr Metleg ceased to be a director and shareholder on 10 March 2018, the same day as his brother Ali was appointed as director and shareholder of that company. In cross-examination, Mr Metleg said the company operated a convenience store in Sefton (a suburb in NSW), and he had purchased it from a seller on a website called Gumtree. Mr Metleg said the business was not profitable, he had been misled by the previous owner’s representations about turnover from the store operations. Mr Metleg said he had run at a loss and he had lost his purchase money. Mr Metleg’s evidence was that he sold the business to his brother Ali for about $1,000 as Mr Metleg could not run the shop profitably. Mr Metleg gave evidence that he had originally purchased the business for $40,000 and had not received payment from Ali for the much-reduced sale price. Mr Metleg insisted that his other brother, who is an accountant, had arranged everything concerning the sale. The sale of this business to Ali is roughly contemporaneous with Ali’s entry as a director and shareholder in Network Food Group Pty Ltd. No explanation was provided about the timing of this transaction relative to the other sale, nor was there any explanation as to why this company needed to be sold to Ali and not, for example, another purchaser. Mr Metleg’s evidence that Ali remains indebted to him for the 2018 purchase price suggests continued commercial involvement with his brother. Accordingly, I find that Mr Metleg remains associated with his brother Ali in commerce arising from the company known as Sefton Mini Mart Pty Ltd.

3. Lastly, Mr Metleg is listed as a former director and sole shareholder of a company called Nevvada Group Pty Ltd. As with Sefton Mini-Mart Pty Ltd, Mr Metleg ceased to be a director and shareholder on 10 March 2018, the same day that his brother Ali was appointed as director and shareholder. In cross-examination, Mr Metleg explained that this company had no value or ongoing customers but that his brother Ali purchased it because he wanted to maintain it. In 2019, Nevvada Group Pty Ltd was deregistered. Aside from his transfer of the business to Ali, Mr Metleg does not appear to have any ongoing involvement with that company from March 2018 onwards. While there is no ongoing relationship between Mr Metleg and Ali in respect of this company, the sale of the company to his brother in 2018 – some six years after he says he distanced himself from both Ali and Mohamed – together with the association via the other two companies, suggests that there was a continuation of a commercial relationship between Mr Metleg and his brother Ali.

Text Messages About COVID-19 Tests

54. In support of her contention that Mr Metleg’s own compliance with regulatory regimes was not sufficient so as to support a finding that he was not a fit and proper person, the Commissioner tendered evidence concerning about six text messages sent by Mr Metleg to various recipients on about 27 or 28 July 2021 from an account calling itself “Austec Medical Laboratories”. The precise messages sent were not in evidence before the Tribunal, but it appears from Mr Metleg’s statement, and the Commissioner’s COPS record, that the messages referred to PCR testing on 27 July 2021 and communicated either positive or negative results to the recipients, principally concerning PCR testing for the COVID-19 virus. It was Mr Metleg’s evidence that one message communicated a positive result for the HIV or AIDS virus, which he says demonstrates that these messages were sent to friends and family as a practical joke.

55. The recipients of messages where a positive result was sent include Mr Metleg’s brother Ali and Mr Metleg’s father. The recipients of messages where a negative result was sent included Mr Metleg’s brother Omar and two other people who were identified as employees of Mr Metleg’s shopfitting and construction company.

56. The Commissioner placed significance on the date on which the messages were sent, as it was during the period when Greater Sydney was subject to stay-at-home orders associated with the COVID-19 pandemic, and there were particular restrictions on residents from several local government areas in Western Sydney. The Tribunal was assisted by the Commissioner’s further short supplementary submissions concerning the various iterations and amendments to the relevant Public Health Orders, the effect of which appears to have been that workers residing in the designated local government areas were only allowed to leave those areas if they were authorised workers with a negative PCR test no more than 72 hours old.

57. The Commissioner contends that Mr Metleg, in sending the text messages, took elaborate steps to ensure that the employees of his company were involved in fraudulent activity. I do not agree that the conduct extends as far as a fraud in the ordinary sense. However, I accept the Commissioner’s submission that the text messages were sent in order to circumvent the lockdown and testing requirements in place at that time and that this action was in breach of the relevant Public Health Orders.

58. Mr Metleg admits to sending all of these messages. He does not explain why, if it was merely a practical joke, he considered it necessary to make use of an online SMS platform and a fictional entity called “Austec Medical Laboratories” to send messages to his employees and family. He provides no explanation as to why some messages refer to a negative result and others to a positive test. He does not account for the timing of when the messages were sent. More seriously, he does not explain why one of the family recipients was his brother Ali. This required explanation, given his assertions of having distanced himself as much as possible from Ali since 2012.

59. Having regard to the material before the Tribunal, I have concluded that it is likely that the messages sent by Mr Metleg to the employees were sent for the purpose of circumventing the lockdown restrictions that were then in place. The other messages, sent to Mr Metleg’s family members may well have been intended as some kind of joke, but the brevity and dismissiveness of Mr Metleg’s evidence on this point do not allow me to draw a firm conclusion about the messages sent to family members. The attempt to circumvent the public health restrictions suggests a willingness, on the part of Mr Metleg, to bend or work around regulations for the protection of public safety where those rules are not convenient and is relevant to whether he is a fit and proper person to hold a firearms licence.

60. On the basis of the above evidence, I have concluded that Mr Metleg has, in fact, maintained contact with both his brothers – more so with his elder brother Ali. His own evidence made clear that Ali and Mohamed know that Mr Metleg regularly visits their father and Mr Metleg has a continuing commercial association with Ali via the Network Food Group Pty Ltd. Further, the fact that Mr Metleg sent one of the text messages in July 2021 to his brother Ali strongly suggests that their relationship was sufficiently close to withstand a so-called “practical joke”. The evidence demonstrates, and I so find, that Mr Metleg has not been able to distance himself from either Ali or Mohamed. To the contrary, he appears to enjoy an ongoing association with his brothers (Ali in particular) that is not the remote, distanced interaction he asserted in his written evidence.

Failure to Surrender Firearms

61. In his written evidence, Mr Metleg stated that his four firearms are presently being held for him “by a friend”. In the letter of suspension of firearms licence dated 23 February 2016 and in the Notice of Suspension dated 28 April 2017, Mr Metleg was directed by the Commissioner to surrender his firearms to police. Indeed, it is an offence for a person to not immediately surrender a firearm in those circumstances; Firearms Act, s 25(1).

62. Mr Metleg was advised in both pieces of correspondence of the penalties for failure to surrender. He gives evidence of having surrendered his firearms to police immediately after his licence was temporarily suspended in 2009 yet Mr Metleg is silent as to whether or not he surrendered in firearms in 2016 or 2017, and his evidence at the hearing is that a friend holds the firearms for him.

63. The Commissioner made no submissions about this issue. The Tribunal cannot make any findings about how it is that Mr Metleg, a person with a revoked firearms licence, is able to state that his firearms are being stored by a friend and not in the safe custody of police or a designated place of storage. If it were the case that Mr Metleg failed to comply with the direction to surrender his firearms to police, this would have been another factor mitigating against Mr Metleg’s application. As the evidence presently stands, however, it has not been taken into account, and Mr Metleg is given the benefit of an assumption that the holding of his firearms by a friend has been authorised by the Commissioner.

Material Facts From the Confidential Evidence Given in the Private Hearing

64. [NOT FOR PUBLICATION]

65. [NOT FOR PUBLICATION]

66. [NOT FOR PUBLICATION]

67. Had it been necessary, much of the material presented in the Private Hearing would have justified the decision to affirm the Commissioner’s original decision. I have not, however, found it necessary to rely solely on that material in order to arrive at my decision that the Commissioner’s decision should be affirmed.

Consideration

Genuine Reason

68. Prior to 13 July 2017, when it was revoked, Mr Metleg held a licence authorising him to possess and use firearms listed in categories A and B for reasons of recreational hunting/vermin control, such reasons being defined as “genuine reasons” for the purposes of the Firearms Act, s 12 and the table in that section.

69. At the hearing, the Commissioner contended that Mr Metleg’s membership of the Sporting Shooters’ Association, which was the principal basis upon which he asserted that his genuine reason for possession of firearms for recreational hunting, had expired and therefore, he was not capable of establishing that he had a genuine reason to possess firearms.

70. Mr Metleg explained that, since his licence had been revoked, he has not renewed his membership with the Sporting Shooters’ Association as there seemed little point in doing so. He later produced evidence that he had re-established his membership in anticipation of being successful in the current proceedings.

71. I consider Mr Metleg’s evidence that he had owned firearms for years and that, when he held a licence, he had used those firearms to undertake recreational hunting, as being sufficient to establish that he had a genuine reason for wanting to possess firearms. I accept, too, his explanation of the practicalities of not maintaining his membership with the Sporting Shooters’ Association.

Fit and Proper Person

72. As I have found above, Mr Metleg continues to associate with his brothers, Ali and Mohamed. He properly concedes that both Ali and Mohamed have criminal convictions for serious offences, including offences connected with the illegal sale and distribution of firearms. Their criminal history was his stated reason for distancing himself from Ali and Mohamed. As the authorities referred to at paragraph 26 above, consideration of whether an applicant is a fit and proper person is not limited to an assessment of their particular characteristics but requires consideration of the contextual risks to the public if the applicant were to be granted a firearms licence.

73. [NOT FOR PUBLICATION]

74. Mr Metleg’s continued association with his brothers is a significant factor in my conclusion that he is not a fit and proper person to hold a firearms licence. I cannot be satisfied, having regard to the facts establishing a continued association with his brothers, that Mr Metleg is a fit and proper person to possess firearms without danger to public safety. Further, I cannot be satisfied, having regard to the material facts that his continuing to hold a firearms licence would present virtually no risk to public safety: Ward. In those circumstances, the Commissioner’s original conclusion was correct; Mr Metleg must not be issued with a firearms licence.

75. I conclude that Mr Metleg’s sent text messages some of which were intended to circumvent the Public Health Orders in place at the time. The Public Health Orders were concerned with ensuring public safety and thus have a similar regulatory intent as the firearms legislation and regulations. A disregard for regulatory schemes aimed at ensuring public safety has been considered a relevant matter in determining the grant of firearms licences; Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273; Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145, El-Ashrafi v Commissioner of Police, NSW Police Force [2017] NSWCATAD 103; Madziala v Commissioner of Police, NSW Police Force [2021] NSWCATAD 269; and Tannous v Commissioner of Police [2011] NSWADT 116. In those circumstances, having regard to the likely intention behind the text messages, the Tribunal cannot be satisfied as to Mr Metleg’s future conduct with respect to compliance with laws and regulations concerning responsible firearm use and ownership.

Public Interest - Safety

76. As noted above, public interest considerations are broad and encompass considerations of public protection and safety; Constantin at [33].

77. In this case, having regard to the established fact that Mr Metleg continues to be associated with his brothers Ali and Mohamed, I am not satisfied that if Mr Metleg’s firearms licence was to be restored, and his possession of firearms authorised, such possession would not present a real risk to public safety.

78. As the Commissioner has submitted, there is a real risk, having regard to the types of offences Ali and Mohamed have been convicted of, that they may make use of any licence granted to Mr Metleg for the furtherance of criminal acts.

79. I also agree with the Commissioner’s contention that Mr Metleg’s familial association alone creates a risk that he might be pressured by Ali or Mohamed into providing them access to firearms or ammunition or that his store of firearms might be accessed by them without his consent.

80. I cannot be satisfied, given his continued association with them, that his brothers will not attempt to access Mr Metleg’s firearms if they are stored at his residence, even without his permission. I note he made no proposal for any other place of storage – his evidence instead was that he had passed every safe storage inspection “with flying colours”.

81. It would not, therefore, be in the public interest to allow Mr Metleg to continue to hold a firearms licence or to possess, store or use firearms.

Conclusion

82. I make the following conclusions:

1. One of the underlying principles of the Firearms Act, is to confirm that firearm possession and use is a privilege conditional on the overriding need to ensure public safety (s 3(1)(a)). I have had regard to this underlying principle when considering the requisite level of satisfaction under the Firearms Act, s 11(3)(a) and the exercise the statutory discretion provided under the Firearms Act, s 11(7).

2. Having regard to the material facts and considerations set out above, I am not satisfied that Mr Metleg is a fit and proper person and can be trusted to have possession of firearms without danger to public safety, nor am I satisfied, having regard in particular to his continued association with family members who have extensive criminal histories involving firearms, that Mr Metleg will be able to meet the safety and storage requirements providing in Part 4 of the Firearms Act.

3. In the factual circumstances of this application and having regard to the objectives and principles as set out in the Firearms Act, s 3, I am satisfied that the correct and preferable decision was that Mr Metleg should not be granted a firearms licence pursuant to the Firearms Act.

Orders

83. I make the following orders:

1. The decision under review is affirmed.

2. The publication and disclosure to the Applicant of evidence read or tendered by the Respondent on a confidential basis and in his absence is restricted to the Respondent and her legal representatives only, pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW).

3. Pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW), the transcript and recording of that part of the hearing in these proceedings that took place in the absence of the Applicant and his representatives and the contents of all paragraphs in these Reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the Applicant or the public.

4. Pursuant to s 49 of the Civil and Administrative Tribunal Act, 2013 (NSW), the transcript and recording of the balance of the hearing on 21 March 2022 is not to be published or released to the public.

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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: 18 January 2023