Rozen v Queensland Police Service Weapons Licensing Branch - [2013] QCAT 3

CITATION:

Rozen v Queensland Police Service Weapons Licensing Branch [2013] QCAT 003

PARTIES:	Yariv Rozen
v
Queensland Police Service Weapons Licensing Branch

APPLICATION NUMBER:

GAR192-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

13 August 2012

HEARD AT:

Brisbane

DECISION OF:

Paul Favell, Member

DELIVERED ON:

3 January 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

The application is dismissed.

CATCHWORDS:

Review application – whether fit and proper person to hold a licence – whether in public interest – whether a reason to hold licence

Weapons Act 1990, s 10

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Yariv Rozen

RESPONDENT:

Queensland Police Service represented by Sergeant Clayton Bradford

REASONS FOR DECISION

On 24 April 2012, the applicant, Mr Yariv Rozen, was issued a notice from the respondent, revoking the applicant’s Security Licence (Guard) Licence Number 61014591.
The reasons for revocation include that the Authorised Officer did not consider the applicant to be a resident of Queensland, and not a fit and proper person to hold a licence pursuant to the Weapons Act 1990.
The applicant contends that his licence was unfairly revoked. The applicant says he applied for the licence on the basis of mutual recognition laws between Queensland and New South Wales. The applicant contends that it was a necessary prerequisite to have an address in each State. The applicant contends that he is still a resident of Queensland, which he says was confirmed by Officer Robert Rafferty on 1 May 2012 when he visited the applicant’s landlord.
The applicant submits that his move to Queensland was necessary for employment reasons, although he is currently employed by Strong’s Security in Sydney with the hope of being relocated to Townsville in future. The applicant’s family is located in NSW.
The respondent contends that the applicant no longer has a reason under s 11 of the Weapons Act 1990 for possession of a weapon as he contends that the applicant is no longer a resident of Queensland.
Further, the respondent revoked the licence on the grounds that the licence was obtained through fraud or deception. To support that contention, the respondent refers to a number of incidents which place the applicant at his NSW address of 90B Onslow Street, Rose Bay, NSW. The respondent refers to disturbances between the applicant and his neighbours on 13 September 2011 and 16 October 2011. The respondent also refers to an interim Apprehended Violence Order issued on 24 October 2011 which lists the applicant at the aforementioned address.
The respondent points to the applicant’s domestic flights to support his contention that the applicant is not a resident of Queensland.
The respondent also contends that it is not in the “public interest” for the applicant to hold the subject licence as the applicant is not a fit and proper person.
The respondent refers to the decisions of DPP v Smith [1991] 1 VR 51, 63; Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657; Baronski v Commissioner of NSW Police [2003] NSW ADT 182 and Australian Broadcasting Tribunal v Bond and Others (1990) 94 ALR as to what constitutes the “public interest”.
The applicant rejects the respondent’s assertion that it is not in the public interest for the applicant to hold a firearms licence. The applicant points to his past firearms experience, overseas security job experience, Army training and community service as proof of his character.
Clayton Charles Bradford, Acting Senior Sergeant of Police of the Queensland Police Service was the authorised officer of the Weapons Licensing Branch who was the decision maker. The decision was made on 24 April 2011 and the applicant received it on 9 May 2011.
Section 29 of the Weapons Act 1990 allows an authorised officer by a revocation notice given to a licencee to revoke the licencee’s licence if the authorised office is satisfied of any of the following things –
a) “the licence has been obtained through fraud or deception; …
d) the licencee is no longer a fit and proper person to hold a licence;
e) the licencee no longer has a reason mentioned in s 11 to possess a weapon.”
Section 11 sets out reasons for the possession of a weapon as
a)    “Sports or target shooting;
b)    Recreational shooting;
c)    An occupational requirements including an occupational requirement for rural purposes;
d)    Collection by a collector of weapons; or
e)    Another reason prescribed under regulation.”
Section 142 of the Weapons Act 1990 allows a person aggrieved by a decision revoking or suspending a licence permit approval or other authority to apply to QCAT for a review of the decision.
The reasons for the revocation of the security licence (guard) was given in an information notice by C C Bradford. He said that part of the reasons were that under s 29 of the Weapons Act 1990 he was satisfied that the applicant was no longer a fit and proper person to hold the licence. He was satisfied that the applicant no longer had a reason mentioned in s 11 of the Weapons Act 1990 for possession of a weapon because he was no longer a resident of Queensland. He is also satisfied that the Weapons Act 1990 licence held by him was obtained through fraud or deception. He was also satisfied on reasonable grounds that the applicant may no longer be a fit and proper person to hold a licence due to it not being in the public interest. The information note noted that in the application, the applicant indicated he was a permanent resident of Queensland and that his address was 4A Dianne Parade, Kalanga. He had indicated that he had resided at that address for six months prior to the application. He had said that prior to living at Dianne Parade he had resided as 3/7 Aubrey Street, Surfers Paradise.
The applicant had bookings made for flights between Sydney and Brisbane, noted a residential address of 90B Onslow Street, Rose Bay NSW. A check of ASIC records revealed that the applicant was a director of ZENYA Group Pty Ltd of 127 Avoca Street, Ranwood NSW. That group has two vehicles registered at 90B Onslow Street, Rose Bay NSW. On 29 March 2012 the applicant made application for a NSW Weapons Licence for armed security guard and in that application he stated that he was a permanent resident of NSW at 90B Onslow Street Rose Bay and signed a statutory declaration to that effect.
The authorised officer formed the view that the applicant no longer had a genuine reason to hold a licence in Queensland as he is no longer a resident of Queensland.
Section 10B of the Weapons Act 1990 requires an authorised officer, in deciding or considering the revocation of a licence in deciding whether a person is or is no longer a fit and proper person to hold a licence, to consider whether a person has stated anything in or in connection with the application for a licence or an application for the renewal of a licence, which was false or misleading in a material particular to the public interest.
Sections 3 and 4 of the Weapons Act 1990 provide for the principles and object of the Act. In applying the public interest test, the authorised officer must consider the interests of the whole of the community.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33, Toohey and Gaudron JJ said with respect to the meaning of “fit and proper person” the following:
“the expression “fit and proper person”, standing alone, carries know precise meaning. It takes it meaning from its context, from the activities from which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the questions may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it would not occur, or whether the general community can have confidence that it will not occur. The list is not exhaustive but it does indicate that in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that the person is not fit and proper to undertake the activities in question.”
The decision maker noted the various decisions concerning “fit and proper” and said:
“I am satisfied that improper conduct has occurred and I am not satisfied that the general community could have confidence that it would not reoccur. I am satisfied that you have obtained a licence by fraud or deception and that you were not, and continue to be, ineligible for a licence in Queensland pursuant to the Weapons Act 1990. Due to these factors I cannot be satisfied that it is in the public interest for you to hold a firearms licence.”
The Tribunal when reviewing a decision such as this does so by way of fresh hearing on the merits in accordance with s 20 of the Queensland Civil and Administrative Tribunal Act 2009. That means that the Tribunal is not limited to the material which is put before the original decision maker but may rely on material which is put before it during the course of the application.
In the application for review, the applicant said:
“I’m a resident of Queensland. I live at 4A Dianne Parade, Kalanga, Queensland. I lease that property. During the period in which I was waiting for my licence application to be approved I worked in Sydney NSW. Whilst there I stayed with my wife and children at the home in 90B Onslow Street Rose Bay Sydney. I do not live there permanently. I am a person of good character and am a fit and proper person to hold a licence. I served three and half years in the Israeli defence forces as an elite paratroop officer. In 2005 I worked with the Royal Thai Army in the tsunami relief operation in Southern Thailand. I am an Australian citizen.”
He supported his application with a statement attached to it and gave evidence during the hearing.
As to his residential address, he asserts that he is a resident of Queensland at 4A Dianne Parade, Kalanga. To support that he produced a copy of a St George Visa card with a covering letter mailed to that address. He stays in NSW, he says, partly because he is a father of two children and during the ten week waiting period for a licence he received a job offer in NSW in the hospitality industry and accepted to provide income to support his children. He said that he had been experiencing difficulties with his wife and because of that he moved to Queensland for a new start and to try a new career in a familiar industry, that being security. He says the plan was to see how it went and relocate the family to Queensland eventually. He says that he had been contacted Mr Scott Brown, the proprietor of Strongs Security Services, who suggested that he might be able to give him an armed guard position in Townsville with Bruce Rory Campbell, a proprietor of Direct Action Australia and then offered him a full time position in NSW Crown Solicitors Office. He said that the latter was to occur effective from 1 June 2012. He produced a certificate of military discharge from the Israeli defence forces showing, he says, that he is a person of good character.
During the hearing he supported his application with a number of references which were all to effect that he was a fit and proper person.
Section 10 of the Weapons Act 1990 places limitations on the issuing of licences. A licence may be issued to an individual only if the person possesses certain qualities including being a fit and proper person to hold the licence, having a reason mentioned in s 11 to possess a weapon or category of weapon and resides only in Queensland. The later requirement of Queensland residency does not apply to a person who resides in a State adjoining Queensland who satisfies an authorised officer that he has a genuine reason for possessing a weapon for which a licence is required under the Act, and is not disqualified from obtaining a similar licence from an adjoining State.
As part of the material provided by the respondent was an electoral enrolment confirmation updated on 4 April 2012 which showed the applicant enrolled in the electorate of Wentworth, with his enrolled address as 90B Onslow Street Rose Bay NSW.
The applicant gave evidence. Part of the evidence was concerning his residency in Queensland. He now lives in New South Wales and he has relinquished the Kalanga address. He contended that he had a number of residences and contended that he legitimately lived at the address he provided at Queensland. During the course of the hearing, however, I was uncertain as to his knowledge of the description of the building in which he is said have resided. In my view the evidence concerning his residency was unsatisfactory.
On 2 April 2012 the applicant made an application for the issue of a Class 1A (unarmed guard), 1B (bodyguard), 1C (crowd/venue controller) and 1F (armed guard) security licence under the Security Industry Act 1997 (NSW). The application was made under the Mutual Recognition Act 1992. As a result of that application, inquiries were made by Queensland Police concerning his Queensland licence. In that application he gave his residential address as 90B Onslow Street Rose Bay and declared that to be so on 29.03.12 in the application.
I note an AVO order issued between 4.10.11. It was revoked. The circumstances of that order were partly explained in a document dated 29 June 2012 from NSW Police Operational Information Agency.
I note that the applicant holds a Class 4A (unarmed guard) licence and a Class 4C (crowd controller) licence until 30 July 2013.
I note that on a drivers licence application dated 8 November 2011 the applicant has listed his residential address as 4A Dianne Parade, Kalanga. On his application for a licence under the Weapons Act 1990 he gave that address as his contact details and a previous address as 3/7 Aubrey Street, Surfers Paradise QLD 4217. That address also appears on his application for a security provider licence dated 9 August 2012.
From all the material before me I am not satisfied that the applicant is not a fit and proper person.
I am not satisfied that he obtained a weapons licence through fraud.
I am satisfied however that he does not currently reside in Queensland and further that he doesn’t have a reason mentioned in section 11 to possess a weapon or category of weapon.
For that reason, the respondent’s decision is confirmed and the application is dismissed.