Moustapha v Commissioner of Police NSW Police Force

[2025] NSWCATAD 279

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Moustapha v Commissioner of Police NSW Police Force [2025] NSWCATAD 279

Hearing dates:

22 August 2025

Date of orders:

14 November 2025

Decision date:

14 November 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

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

Catchwords:

ADMINISTRATIVE LAW - Firearms – objects of legislation – public interest – public safety – fit and proper – associations – confidential evidence

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Artridge v Commissioner of Police NSW Police Force [2021] NSWCATAD 188

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

Cusumano v Commissioner of Police [2001] NSWADT 50

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

Livadaru v Commissioner of Police [2008] NSWADT 160

Masterson v Commissioner of Police New South Wales Police Force [2017] NSWCATAP 205

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

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

Wiltshire v Commissioner of Police [2005] NSWADT 75

Wyong Shire Council – v- Shirt [1980] HCA 12 146 CKLR 40

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Louay Moustapha (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

One Group Legal Solicitors (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/001235088

Publication restriction:

Pursuant to s 64 (1) (b), 64 (1) (c ) and 64 (1) (d) of the Civil and Administrative Tribunal Act 2013, the publication and release of the material in those paragraphs marked ‘[Not for publication]’ – paragraphs [40] – [44] inclusive are not to be published or released to any person other than the respondent or their representative.

Reasons for decision

What these proceedings are about

1. These proceedings concern the Commissioner of Police’s decision to refuse the applicant’s Category AB Firearms licence on 10 April 2024 and the upholding of that decision by way of Internal Review determined on 20 June 2024.

Introduction

2. The applicant in these proceedings is Mr Louay Moustapha (Mr Moustapha). The respondent is the Commissioner of Police NSW Police Force (the Commissioner). The Commissioner’s delegate in dealing with the application for a licence formed the view that it was not in the public interest for Mr Moustapha to hold a Category AB Firearms Licence.

Background

3. Mr Moustapha first applied to be issued with a Category AB Firearms Licence on 28 September 2009. That licence was approved and subsequently reissued every five years in 2014 and 2019 until on 11 December 2023 when the Commissioner’s delegate determined to revoke that licence.

4. The revocation arose in circumstances whereby Police had obtained information concerning a breach of certain requirements and obligations for maintaining a licence. Specifically as the licence was issued for the genuine reasons of recreational hunting – hunting club, Mr Moustapha was required to maintain membership of a relevant hunting club and participation requirements. In November 2023 Police learnt that Mr Moustapha had failed to comply with the minimum participation requirements for 2019/2020, 2020/202, 2021/22 and 2022/2023 membership years.

5. Because of the information received concerning the failure to comply with minimum participation requirements, the delegate determined to revoke Mr Moustapha’s Category AB Firearms Licence on 11 December 2023.

6. It appears that NSW Police undertook an audit of Mr Moustapha’s compliance with the licence requirements including membership of an approved shooting club / association and compliance with attendance requirements at activities organised in that context. Email correspondence between Police and the Club Australian Hunters occurred in late November 2023.

7. The initial decision maker relied on three separate provisions of the Firearms Act 1996 to revoke the licence. The provisions are set out below:

8. Under Genuine Reason for the licence the delegate referred to: s 24 (2) (a) and s 12 (1).

24 Revocation of licence

(1)

.

(2) A licence may be revoked—

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

12 Genuine reasons for having a licence

(1) 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.

9. Under the participation requirements the delegate relied upon s 24 (2) (b) (iii) of the Firearms Act and clause 107 of the Firearms Regulation 2017 and regarding genuine reason clauses 31 and 108 (i) of the Regulation were relied upon.

24 Revocation of licence

(1).

(1A)

.

(2) A licence may be revoked—

(a) …, or

(b) if the licensee—

(i) supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention,

(Emphasis added)

Firearms Regulation 2017

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),

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.

31 Recreational hunting/vermin control—approved hunting clubs

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).

Note—

Participation requirements for club members only apply if membership of the club is the sole ground on which the licensee has established that genuine reason.

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.

10. Ultimately the initial delegate relied upon s 24 (2) (d) of the Firearms Act and Clause 20 of the Firearms Regulation to revoke Mr Moustapha’s licence as set out below.

Firearms Act 1996

24 Revocation of licence

(1A)

.

(2) A licence may be revoked—

(a)

(b)

(i)

(ii)

(c1), or

(d) for any other reason prescribed by the regulations.

(Emphasis added)

Firearms Regulation 2017

20 Revocation of licence—licence not in the public interest

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.

11. The Clauses set out above from the Regulation deals with requirements around compliance with the hunting genuine reason, which was the basis for Mr Moustapha taking up a licence. These matters were referred to in the revocation decision as well as the failure to comply with the nominated genuine reasons.

12. On 24 February 2024 Mr Moustapha applied afresh for a Firearms Licence. In completing the application he referred to the revocation decision where asked whether he had ever had a licence refused, revoked or suspended.

13. On 10 April 2024 the delegate refused Mr Moustapha’s application for a Firearms Licence. The refusal was ostensibly on the same grounds that the revocation was made three months prior. The reviewer noted that not enough time had passed since the earlier revocation to determine that Mr Moustapha was a fit and proper person to hold the licence and holding the licence would in all of the circumstances be in the public interest.

14. Mr Moustapha then sought Internal Review of that refusal decision. In support of his Internal Review request Mr Moustapha requested whether any additional information was required to address the Commissioner’s concerns through his Solicitor.

15. In conducting the Internal Review the delegate set out the history of Mr Moustapha’s firearms licencing and made findings about certain administrative events. Fresh matters raised by Mr Moustapha included an inadvertent oversight in his February 2024 application whereby he failed to alert the Commissioner to the fact that he was eligible for approval of recreational hunting / vermin control genuine reasons as he was a rural land / farm owner since November 2019. Evidence of a Certificate of Title was provided to the Commissioner.

16. In concluding the Internal Review, the delegate considered the evidence supplied by Mr Moustapha, but also identified and raised possible criminal associations between Mr Moustapha and a person currently detained awaiting trial in the United States of America. That person was awaiting trial on offences of: possession with intent to distribute methamphetamine and cocaine, possession of a firearm and drug trafficking.

17. On 20 June 2024, the delegate having taken Mr Moustapha’s information into account concluded that:

In giving further consideration to the information available to me at the time of conducting this review, I deemed it relevant to apply weight to your familial circumstances, noting the information contained within my findings of fact, I am of the view, that even when there is no evidence of a firearm licence applicant having personally engaged in criminal activities, there are real and relevant concerns, in respect to public safety, should a person associate with criminals.

…

I am of the view, when looking at this decision holistically, that it cannot be said that there is virtually no risk to public safety in the context of you having unfettered access to firearms, accordingly the decision to refuse your licence is affirmed.

(Emphasis added)

18. On this basis like the initial decision maker, the delegate on review had revoked the licence on the basis of s 24 (2) (b) (iii) and 24 (2) (d) of the Firearms Act 1996 and cl 20 of the Regulation. That provision provides:

20 Revocation of licence—licence not in the public interest

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. On 26 June 2024 Mr Moustapha lodged his administrative review application with the Tribunal. The Internal Review decision of 20 June 2024 being the matter currently before the Tribunal.

Jurisdiction

20. The Commissioner had revoked Mr Moustapha Firearms Licence application on the basis of cl 20 of the Regulation, which is set out at [18] above.

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

Part 8 Applications to Civil and Administrative Tribunal

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

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

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

(b) a condition imposed by the Commissioner on a licence or permit issued to the person,

(c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),

(d)..

(e)…

(f)…

(g)…

(Emphasis added)

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

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

(a) any relevant factual material,

(b) any applicable written or unwritten law.

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

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

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

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

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

23. The Tribunal has jurisdiction under the Firearms Act as noted at [21] above.

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

Administrative Review by the Tribunal

25. The parties agree that Mr Moustapha filed his application for Administrative Review on 26 June 2024 being six days after receipt of notice of the Internal Review Decision. The application to the Tribunal was clearly within the 28 day period provided to lodge an application for Administrative Review. Therefore the Tribunal has jurisdiction to hear the matter having regard to s 75 of the Firearms Act 1996 and the ADR Act.

Applicant’s written evidence

• Exhibit ‘A-1’. Applicant’s affidavit sworn 11 July 2025 including annexures.

• Exhibit ‘A-2’ Character reference local Member of Parliament 19 August 2025.

• Exhibit ‘A-3’ Character reference Lebanese Community Council NSW Program Coordinator 20 August 2025.

• Exhibit ‘A-4’ Character reference Lebanese Community Council NSW President 21 August 2025.

• Exhibit ‘A-5’ Character reference Secretary Bint Jbeil Association 20 August 2025.

• Exhibit ‘A-6’ Character reference President Kfarsaroun Charity Association 21 August 2025.

• The applicant also relied written submissions and his Solicitor made submissions in reply at hearing.

Respondent’s written evidence

• Exhibit ‘R-1’ Documents filed under s 58 ADR Act (57 pages) filed 23 July 2024.

• Exhibit ‘R-2’ Further documents filed by the respondent (open evidence) 18 pages filed 4 February 2025.

• Exhibit ‘R-3’ Further documents under s 58 ADR Act (pages 58-143 continuing numbering from ‘R-1’) filed: 13 August 2025.

• The commissioner also filed detailed written submissions in August 2025. They also relied on confidential written material which is set out and addressed in the confidential section of these reasons.

26. Both Mr Moustapha and the Commissioner were legally represented. Both sides also made oral submissions at hearing at the conclusion of the open evidence. Mr Moustapha was subject to cross-examination during the open hearing.

27. As noted the Commissioner relied on confidential evidence in the proceedings which was dealt with at the conclusion of the open sessions by way of a confidential session. The existence of confidential evidence was not itself confidential to the applicant and his Solicitor, only the nature and detail of that evidence. This is addressed in further detail below and also in confidential reasons.

Mr Moustapha’s evidence at hearing

28. In evidence in chief Mr Moustapha adopted his Affidavit (Exhibit ‘A-1’) as true and correct.

29. In cross-examination Mr Moustapha was asked about his spouse and in particular any involvement in criminal activity. He stated emphatically that she was not involved in criminal activity. He confirmed the identity of his ex-brother in law who he said that his sister had divorced in 2021 or 2022. He also confirmed that his family was not involved in criminal activities.

Confidential Evidence of the Respondent

30. As noted at [27] above the Commissioner relied upon confidential evidence the existence of which was not confidential. The contents of that evidence were explored during a confidential session whereby the Commissioner’s representative took the Tribunal through the confidential evidence.

31. Section 75 (5) of the Firearms Act provides the following in respect of the receipt of confidential evidence relied upon by the Commissioner:

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

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

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

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

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

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

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

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

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

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

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

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

…

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

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

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

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

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

40. [Not for publication]

41. [Not for publication]

42. [Not for publication]

43. [Not for publication]

44. [Not for publication]

Applicant’s submissions

45. Mr Moustapha’s Solicitor referred to the case of Wyong Shire Council – v- Shirt [1980] HCA 12 146 CKLR 40 at [13-17] when considering categories of risk which as the practical import of the Commissioner’s decisions in respect of whether the licence should be issued.

13. A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone [1951] UKHL 2; (1951) AC 850 , may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. (at p47)

14. In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. (at p48)

15. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors. (at p48)

16. In this case, however, the argument was aimed at the foreseeability of the risk. I need not restate the facts as they have been conveniently set out by Wilson J. It was contended that the jury could not reasonably find that a reasonable man in McPhan's circumstances would have foreseen that the message conveyed by the sign placed in the position in which it was fixed might lead to a risk of injury by inducing an inexperienced water-skier unfamiliar with the area to ski in the water immediately beyond the sign in the mistaken belief that it was deep whereas in fact the depth was only three feet six inches. (at p48)

17. Despite the force of Mr. McHugh's argument I am not persuaded that a finding of breach of duty was beyond the jury's competence. A reasonable man might well have concluded that the sign was ambiguous and that it could be read as an indication that there was a zone of deep water beyond, rather than in front of, the sign. A reasonable man might also have concluded that a water-skier, so reading the sign, might be induced to ski in that zone of water, mistakenly believing it to be deep. The possibility might also have occurred to a reasonable man that it would be unsafe for an inexperienced water-skier to ski in water having a depth of three feet six inches and no more. He might well contemplate the possibility of a skier being projected into the water at a relatively high speed in consequence of a mishap and thereby sustaining injury in striking the bed of the lake. (at p48)

46. Further submissions were made as to whether Mr Moustapha being granted a licence posed a real and appreciable risk to public safety in that the would not be able to maintain continuous safe control of firearms. It was submitted that the risk if any was far-fetched and fanciful. It was also submitted that the Tribunal should take a pragmatic and practical approach to the confidential evidence and contrast that evidence with the uncontested matters in the open evidence such as Mr Moustapha’s affidavit which had been received without objection.

47. It was emphasised that Mr Moustapha had held a firearms licence for 15 years with no infractions, and one breach described as a technical breach which was said to have been self reported. Further submissions were made that it would be unfair to place any weight on the intelligence material that would undoubtedly be contained within the confidential evidence.

48. Reference was also made to the unsupported opinion expressed at page 33 of the s 58 material concerning inferred risk and references in the Commissioner’s submissions (at [67]) to the applicant’s involvement with the criminal conduct of a relative and that by extrapolation he is involved in criminal activity including the importation of illegal firearms. It was submitted that Mr Moustapha is clearly related to his brother but does not associate with him.

49. The conclusions drawn by the Commissioner arising for these purported associations as set out at [69] of the Commissioner’s submissions, that Mr Moustapha could as a result not be trusted to have possession of firearms, was flatly rejected. It was submitted that when persons are scrutinised and no charges arise, then the weight should go the other way in that the facts work in favour of being considered fit and proper to be considered for possession of firearms.

50. It was also submitted that the public interest goes to making the correct decision when there is limited probative evidence as to risk. Mr Moustapha accepted the revocation and did not challenge it. Mr Moustapha’s Solicitor submitted that he is only seeking to have a rifle for use on his rural property in accordance with the stated genuine reason.

Respondent’s submissions

51. The Commissioner submitted that the Tribunal should dismiss Mr Moustapha’s application as he is not a fit and proper person to hold a firearms licence and that it was not in the public interest for him to hold a licence due to his associations with criminals. It was submitted that he is the brother of a person who had signed a Guilty Plea Agreement in the United States.

52. In respect of the submissions that scrutiny with no resulting charges should assist an applicant the Commissioner submitted that to the contrary the evidence goes the other way against the individual. Without expanding on this issue the position appeared to be that if an individual was subject to Police scrutiny, irrespective of whether there was any proven criminality or even a prima facie case, such scrutiny established that an individual was not fit and proper.

53. The Commissioner submitted at hearing that the Tribunal needed to be positively satisfied that Mr Moustapha is a fit and proper person and trustworthy in that he can be entrusted with the responsibility to have access to firearms and comply with the requirements.

54. The Commissioner submitted that Mr Moustapha is not fit and proper because of his failures to comply with the Firearms Act and Regulation in respect of his Club attendance conditions regarding the genuine reason for holding a licence prior to the revocation. The Commissioner also relied on the argument by Mr Moustapha that the breach was purely administrative in nature. The Commissioner submitted that it was not. The third basis relied upon concerned the position that Mr Moustapha is involved in criminal activities due to his associations with his mother, brother and sister.

55. The Commissioner submitted that it was common ground that Mr Moustapha failed to comply with the sport / target shooting requirements. The only matter in dispute relates to hunting vermin under clause 108 subclause 2 of the Regulation.

56. The Commissioner referred to the open evidence at page 12 of Exhibit ‘R-2’ that establishes that an unlawful firearm was sent to Mr Moustapha‘s mother by her son based in the United States, being a family member with criminal antecedents.

57. The Commissioner also raised an issue that there remains a risk as the US based brother could still return to Australia notwithstanding his current incarceration.

58. The Commissioner noted the open evidence that the brother and sister were identified in a car together and that Mr Moustapha did not deny contact with his sister. Exhibit ‘R-3’ at pages 76 and 77 addresses this issue.

59. In respect of the references provided by Mr Moustapha the Commissioner submitted that they were of little value and limited weight because they cannot go to the central question of risk. They submitted that they only address character generally.

60. In a brief reply in the open session Mr Moustapha‘s representative referred to his character generally and noted that all of the ‘association’ matters now complained of and relied upon by the Commissioner, were present during his previous years of unblemished firearm usage without undue inappropriate influence or incident.

Consideration

61. The decision under review is based upon the notion that having access to firearms would be contrary to the public interest.

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

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

63. As has been previously observed, the underlying principle of the Act concerns public safety.

64. In respect of the public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.

65. Section 3 of the Firearms Act 1996 provides:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

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

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

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

. . .

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

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

68. This position is consistent with the notion of applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearms Act access to and use of firearms is not a right but a privilege.

69. In Artridge v Commissioner of Police NSW Police Force [2021] NSWCATAD 188, as Senior Member Ransome observed at [21] – [27] the public interest question is the main task facing the Tribunal in this type of review.

The public interest

21. What is meant by the term “the public interest” has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

“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 Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.”

22. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that:

“The ‘public interest’ allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.”

23. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated:

“There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.”

24. Importantly, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] Deputy President Hennessy said that in terms of public safety:

27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28 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.”

25. That case dealt with whether the applicant was a “fit and proper person” to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] – [134].

26. The question of risk is not, however, to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] – [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]- [64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

27. It has also been stated that the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police [2003] NSWADT 30 at [34]. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25].

70. It has been well established that the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act. However it is conceded that the purpose of the licencing regime is protective not punitive and all endeavours are directed towards maintaining and enhancing public safety.

71. In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would be in the public interest to maintain the refusal of the licence.

72. From a broad public interest perspective, notwithstanding the clear unfairness to Mr Moustapha, I find the confidential material which, whilst unfair to Mr Moustapha, it is of probative value and must be given some weight notwithstanding that it cannot be tested further in these proceedings. That evidence essentially tips the balance against Mr Moustapha combined with the open evidence matters, and in particular the actions of family members in the open evidence and Mr Moustapha’s albeit innocent but understandable relationship with some family members.

73. I accept that the technical breaches which resulted in the revocation might well have enabled the licence to issue on review, had it not been for the open evidence concerning the U.S. Affidavit, and the matters identified at [54] to [58] above. Those matters combined with the confidential evidence create a level of risk that in my view meets the threshold.

74. I do not agree with the Respondent’s reliance on the notion of virtually no risk, as that concept has lessened in the years since the notion was first raised in the former Tribunal in Ward v Commissioner of Police [2000] NSWADT 28.

75. Likewise, Mr Moustapha’s submission that the risk would need to be real and appreciable is made in the absence of the confidential evidence. The relevant matter is in my view set out in the cases of Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] – [66]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]- [64]. The relevant approach could be described from those cases as not to be approached in an absolute or mechanistic way, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety. Whilst Mr Moustapha’s history and character is broadly pro-social, taking into account all of the evidence (including the confidential evidence), in all the circumstances is he a real and appreciable risk to the public as per: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74].

76. In noting that the underlying principles and objects of the Firearms Act are that firearms possession and use is a privilege conditional on the overriding need to ensure public safety, and noting the confidential evidence adduced in the proceedings and the findings already made about that evidence, I find that it is not in the public interest for Mr Moustapha to hold a firearms licence at this time, because of the risk.

77. As a result the appropriate approach will be that the Tribunal affirms the decision.

Conclusion

78. Because of the findings that I have made, it is appropriate to affirm the decision of the Commissioner in refusing Mr Moustapha’s Category AB Firearms Licence application on 10 April 2024 and the upholding of that decision on 20 June 2024.

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

80. I therefore make the following order:

Orders

1. The decision to refuse the Applicant’s Category AB Firearms Licence application 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: 14 November 2025