Al Sarray v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2023-05-05|Before: Health J

s: Munaf Al Sarray (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Clayton Utz (Applicant) McCullough Robertson Lawyers (Respondent) File Number(s): 2022/00326618 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Civil and Administrative Tribunal Act 2013, the publication and release of the material in those paragraphs marked '[Not for publication]' are not to be published or released to any person other than the respondent or their representative.

What these proceedings are about

These proceedings concern the Commissioner of Police's decision to refuse the applicant's Category AB Firearms licence application on 11 November 2021 and the decision on Internal Review on 4 October 2022 to affirm that decision.

Background

Mr Al Sarray applied for a Category AB firearms licence on 25 July 2020. Mr Al Sarray cited the genuine reason of 'Recreational Hunting / Vermin Control' as the basis for the application and included 'permission to shoot from owner of land' details with his application. Additionally Mr Al Sarray completed the special need for Category B licence on the basis of the calibre of firearm necessary to destroy feral pest animals.
Mr Al Sarray had not previously held a firearms licence. His application was refused on the basis of information held in the Police COPS database concerning two suites of events, one relating to adverse matters involving threats and intimidation towards members of his extended family in the period and the other concerning the intimidation and threatening of a business associate in 2017 at Carlingford in Northern Sydney.
The initial delegate relied upon s 11 (3) (a) of the Firearms Act 1996 concerning Mr Al Sarray not being a fit and proper person to be issued and hold the licence. The delegate also appears to have relied upon s 11(7) concerning whether Mr Al Sarray was a fit and proper person to hold the licence. Whilst these provisions were referred to in the delegate's reasons for decision, no specific finding on these provisions was made. The delegate appears to have determined to refuse the licence application on the basis of the two suites of information referred to at [9] above.
On Internal Review the delegate considered the matters outlined above as well as the result of Court Proceedings from March 2022 in the Land and Environment Court NSW whereby Mr Al Sarray was convicted of knowingly supply false or misleading information regarding waste and fined $135,000.00.
The reviewer agreed with the decision made in the first instance and made the following observation in reaching that conclusion: '…. Concerns have been raised in the context of your alleged behaviour towards others and the related risks should you be authorised to posses and use firearms. Specifically you have been alleged to have made threats to the safety of a family member and another member of the public. I advise there is a potential risk for firearms to be in the possession of someone who displays threatening or intimidatory behaviour. I find it problematic that you were recently convicted of an offence relating to fraud, dishonesty or stealing. I concede the penalty imposed on you by the Court for this offence does not meet the prescribed penalty in the context of a mandatory refusal. Irrespective of this consideration, I believe inference must b derived from such an offence being held so seriously by lawmakers to prevent such offenders form accessing forearms. While this offence may not be a risk to the safety of the public by way of aggression or violence, I am of the view the granting of a licence to you would not withstand public scrutiny. This is due to the fact that firearms licence holders are expected to be trustworthy and act with integrity. In My opinion your lack of honesty and knowingly providing false information indicates your disregard for acting with integrity. Concerns regarding your suitability to hold firearms are therefore not allayed.
The delegate on review gives reasons that public safety demands that a person authorised to have possession and use of a firearm must be a person of trustworthy character. It appears that because of the untruthful matters which caused the charges in respect of the Land and Environment Court outcome, Mr Al Sarray was deemed to be not of a trustworthy character and therefore should not be authorised to possess firearms.
On 1 November 2022 Mr Al Sarray filed an application for Administrative Review with the Tribunal. The application was filed within the 28-day period provided for lodging an administrative review, the applicant having declared that he had received a copy of the Internal Review outcome on the day after the decision was made.

Jurisdiction

The Notice of Refusal was issued under the provisions of the Firearms Act section 11 (7) as referred to on page two of the decision under the heading 'Applicable Law'. Relevantly section 11 provides: 11 General restrictions on issue of licences(cf 1989 Act s 25, APMC 4, 5, 6) (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. (2)... (2A) … (3) A licence must not be issued 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, and (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. (4).. (5).. (6).. (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8)..
The Commissioner was apparently satisfied that Mr Al Sarray had complied with the provisions of s 11 (3) (b) in that a Certificate of Completion of a NSW Firearms Licence (Long Arms) Qualification Course dated 27 June 2020 was attached to the application.
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 first matter listed at s 75 concerns the refusal to issue 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).. (c).. (d).. (e)… (f)… (g)… (Emphasis added)
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.
The Tribunal has jurisdiction under the Firearms Act as noted at [17] above.
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

The parties agree that Mr Ayshan filed his application for Administrative review within time and that the Tribunal has jurisdiction to hear the matter having regard to s 75 of the Firearms Act 1996.

Applicant's written evidence

Exhibit 'A-1'. Application for administrative review attaching Grounds.
Exhibit 'A-2': Affidavit of Munaf Al Sarray affirmed 9 March 2023.
Exhibit 'A-3' Character reference of S M Allam filed 13 March 2023.
Exhibit 'A-4' Character reference M Jebara filed 13 March 2023.
Exhibit 'A-5' Character reference of Y Zhang filed 13 March 2023.
Exhibit 'A-6' Affidavit of G P Pasas sworn 21 April 2023 annexing Medico Legal report Dr Ahmed dated 17 August 2021, and screen shops of text messages between the applicant and business associate between 12 September 2017 and 19 September 2017.

Respondent's written (open) evidence

Exhibit 'R-1' Documents filed under s 58 ADR Act.
Exhibit 'R-2' Linked In platform print out for entry concerning M Al Sarray.

Both parties were legally represented and provided detailed written submissions and made oral submissions at hearing. Mr Al Sarray was subject to cross-examination at hearing. No other witness was required by the parties at hearing.
The Commissioner relied on confidential evidence, which was considered at a further sitting of the Tribunal following the conclusion of the open hearing. At the conclusion of the confidential hearing the Tribunal reconvened an open session where oral submissions were provided.
The existence of confidential evidence and the application to have matters heard in camera were not of themselves confidential, only the contents of the confidential evidence. In this regard both parties made open submissions as to why the material should or should not be received in that manner. The Tribunal notes that on 1 February 2023 the Tribunal differently constituted made orders on the confidential evidence application and application under s 59 of the ADR Act. A request for written reasons was made in accordance with s 62 of the NCAT Act 2013 and on 14 February 2033 the Tribunal provided written reasons (unpublished) in Al Sarray v Commissioner of Police, NSW Police Force. The Tribunal made orders that the application be conducted in the absence of the applicant, his legal representatives and the public (s 49 NCAT Act), that confidential documents as tendered in that hearing were not required to be filed pursuant to s 59 of the ADR Act, and that pursuant to s 64 of the NCAT Act the publication, disclosure and reporting of the confidential evidence and the confidential hearing was prohibited.
Mr Al Sarray had submitted that continuing such an approach on the substantive hearing would amount to a denial of natural justice and procedural fairness.
In these reasons for decision the Tribunal has decided to receive that evidence on a confidential basis. 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).
The Tribunal adopts the open reasons provided to the parties on 14 February 2023 concerning the orders made on 1 February 2023. In addition I make the following observations as to why the continuation of those orders is desirable.
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.
In the case of 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].
Having reviewed those provisions and the evidence, I 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 considerations before me.
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 Al Sarray the licence would be in the public interest. (s 75 (5) Firearms Act).
For those reasons a number of paragraphs that deal with the confidential evidence are marked '[Not for publication]'.

Mr Al Sarray's evidence at hearing

In evidence in chief Mr Al Sarray adopted his affidavit (Exhibit A-2), where he sought to rebut much of the material in the s 58 documents. He said he regretted his listed driving offences and noted that he had never had his licence suspended for offences or demerit point loss. Mr Al Sarray addresses the three COPS events addressing family issues particularly concerning his sister. He noted that no charges or Court matters arose from the allegations and that the Interim Apprehended Violence Order (AVO) was revoked on first return before the Court. He refuted any suggestions that he had threatened his sister, and maintained that he continued to have a good relationship with her. Mr Al Sarray denied that he was Muslim or that he practiced any particular faith.
In respect of matters involving the business associate (Mr Li), Mr Al Sarray deposed that he recalled a matter around an adjudication award in favour of his employer concerning a job and that he was instructed to speak to Mr Li about settling the matter. In the meeting at the shopping centre he said that another large male as talking to Mr Li before him. When later speaking to him Mr Li offered an amount less than what Mr Al Sarray was instructed to accept and so declined the offer. He denied threatening Mr Li.
A further allegation concerning a 2021 collision with another vehicle at Strathfield was also denied by Mr Al Sarray. Despite the vehicle (truck) being registered to him he deposed that the incident involved a contractor driving the vehicle.
In respect of his prosecution by the Environmental Protection Agency (EPA), Mr Al Sarray deposed that the matter concerns offences committed in 2017 for which he plead guilty and was 'very remorseful' for. Mr Al Sarray reiterated his evidence to the Court that he was unaware his actions constituted a crime.
In Cross Examination Mr Al Sarray confirmed that he arrived from Iraq in 2006 and had seen 'terrible things' in his homeland. He confirmed that his parents marriage was somewhat conflicted, and said this was due to cultural factors around tribalism and the use of women in Iraq to resolve family disputes.
Questions were raised around domestic violence in the home and Mr Al Sarray confirmed that violence would be used against women in Iraq. In respect of his sister Mr Al Sarray was asked whether members of his family hit her in Australia because she refused to wear a headscarf. Mr Al Sarray said that his mother wore a headscarf but she had come to Australia earlier in the 1990s. His mother became a Christian and later in 2006-2007 his sister expressed a view that she might become a Christian following an overture from her mother.
Mr Al Sarray was asked about an incident at Petersham TAFE where his sister was allegedly threatened by him. He said that the entire family (10 children) were all at Petersham TAFE learning English. In 2007 his sister moved out of home and then enrolled in a vocational trade course at Ultimo TAFE but attended both the Ultimo and Randwick campuses.
The incident with the sister Mariam occurred in lift. The lift at the Randwick TAFE opened and Mr Al Sarray saw his sister and 'smiled at her'. He said that this occurred in the presence of one or two of his classmates. He denied when put to him that he attended the Randwick Campus only to find and intimidate his sister to get her to come back to the family.
Mr Al Sarray says that the AVO issued against him was mainly against their mother but as he was a male in the same premises then he was also put (listed) on it. Mr Al Sarray said that he was 'just included in it'. However later in his questioning Mr Al Sarray's evidence indicated that the domestic violence allegations were just made up by his sister due to concerns with the family and as a punishment against the mother for leaving her when she was young and the mother was coming and going to Australia.
Mr Al Sarray was asked a series of questions about his relationship and level of contact currently or in the intervening years since the AVO, with his sister Miriam. He said that he has a full time job and works 7:00am to 8:00pm six days per week. He said that as a result of these long hours he is not very social. He said that the last time that he saw Miriam was years ago. It was put to Mr Al Sarray that this evidence was somewhat at odds with the evidence in his affidavit which he had adopted as true and correct. At [14] of Exhibit
In exhibit 'A-2' Mr Al Sarray deposed: I have always ha a good relationship with my sister Mariam and I still have a good relationship with her today.
Mr Al Sarray said that he had lived in Bexley for the last 5-6 years and that his sister Mariam had never been to that home. The same was said for prior residences in Auburn, Marrickville and St Peters. Mr Al Sarray said that he was not sure when he last saw his sister but said that he has communicated with her since March 2008.
Mr Al Sarray's evidence on the issue of the relationship with his sister and frequency and closeness was at times contradictory. It was put to him that he does not have a good relationship with his sister Mariam and that this is because of the family intimidation towards her involving Mr Al Sarray up until 2007. Mr Al Sarray denied this. He said in evidence that he does have a good relationship with Mariam. He said that he could call her and invite her to dinner and that she would come this weekend. He said he could call her now. When asked by the Tribunal why he believed that she would come immediately to dinner the coming weekend if such a call was made noting the lack of prior contact Mr Al Sarray had some difficulty answering. Eventually he suggested that she would come so that she could see the children.
At this stage leave to tender a linked in profile (exhibit 'R-2') was granted without objection on the basis that the extract had been obtained by a solicitor doing a search. It was suggested that based on his limited knowledge of his sister's circumstances that Mr Al Sarray had not had contact since 2012/ 2013. In reply he said that being a busy man 6 days a week with work and having three children he has limited time. He said however that he does not close his family up.
In respect of the matter involving Mr Li that related to a commercial dispute involving Mr Li and Ace Demolition. He said that he was not authorised to accept Mr Li's offer to settle the matter as the percentage was too low. He said that it was a commercial contract dispute of $650,000. and the offer of $60,000. was too low.
In respect of the Land and Environment Court (LEC) matter where he was convicted, Mr Al Sarray said that he was the second in charge in the company. He said that his fine was $135,000.00 and the matter involved the Wolli Creek and Zetland waste removal sites. He confirmed that there was an adverse costs order.
Mr Al Sarray was taken to the Consultant Psychiatrist report annexed to 'A-6'. This report has been prepared for the LEC sentencing proceedings. Mr Al Sarray confirmed that since the assessment on 11 August 2021 he had not met with any psychiatrist or psychologist or had any treatment since then.
In re-examination Mr Al Sarray said that he did not see his brothers hit his sister in Iraq. He said that her was unable to 'scale' or rate the level of physical responses metered out in Iraq. He said that fathers get to act with impunity in respect of disciplining family and in a manner contrary to what is acceptable in Australia. He said that his own children are aged 6 years, 4 and a half years and four and a half months.

Commissioner's evidence

The Commissioner relied upon the material outlined at [21] and the confidential evidence.

Applicant's submissions

Mr Al Sarray relied on written submissions and his Solicitor made oral submissions at the reconvening of the open session after the confidential session. In oral submissions it was submitted that matters from the case of Grant v Commissioner of Police [2020] NSWCATAD 158 at paragraph [20] were applicable to the current matter in respect of how the Tribunal should weigh the confidential evidence. 20. In Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d): "Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal."
Submissions were also made in respect of the character references. Exhibit 'A-3' the author had known Mr Al Sarray since 2008. The author Mr A Sarray's colleague and employer was aware of the current application and the LEC proceedings and outcome.
Similarly with Exhibit 'A-4' the author is a colleague who has made a passing reference to the firearms application and the existence of the LEC proceedings. The reference mainly talks about Mr Al Sarray's help and influence on the author, noting that the LEC conviction does not change anything in the author's opinion
Exhibit 'A-5' is a reference form Mr Al Sarray's spouse and states that her husband has never been violent, threatening or aggressive towards her or their children. The reference is written after receipt of the s 58 documents and addresses the material in those documents including the COPS events. In respect of the sister Mariam, the author says that Mr Al Sarray has a good relationship with her and makes an effort to see her when she is in Australia and still speaks with her.
In respect of the expert report of the Psychiatrist Mr Al Sarray submitted that the report referred at point 2 on page 5 under the heading Treatment Plan that: Mr Al-Sarray has no criminal history or any evidence of any antisocial personality. It is highly unlikely that he will commit any further crime and nor is he any form of risk to himself or others. The risk will; be further reduced if he engages in appropriate psychological treatment.
Mr Al Sarray submitted that the report showed that there was no risk notwithstanding the lack of any treatment. The report makes a diagnosis of Post Traumatic Stress Disorder (PTSD).
In respect of the evidence given during cross-examination around the nature of the relationship with his sister, it was submitted that Mr Al Sarray was trying to do his best and in no way was he trying to embellish his answers to the Tribunal. In respect of the weight to attribute to the COPS Events surrounding the matters concerning his family and sister, Mr Al Sarray submitted that these matters were recorded over 15 years ago in 2007 and that there had been a significant passage of time since. The AVO application was also from 2007 and while it issued in July 2007 it was revoked at Court in October 2007.
In respect of the matter involving Mr Li, Mr Al Sarray submitted that no further Police action was taken beyond making the COPS entry record. There was no further Police investigation and Exhibit A-3 the employer's reference showed that there were no concerns with Mr Al Sarray in a work context.
In respect of the LEC proceedings Mr Al Sarray's representative took the Tribunal through the decision and submitted that [1] of Environmental Protection Authority v Al-Sarray [2022] NSWLEC 31 only referred to two charges concerning providing or supplying false information to another person about waste that he knew to be false or misleading material. It was submitted that at the time Mr Al Sarray did not realise that this action was criminal action. A summary of the behaviour is set out at [5]. 5. The offences relate to the false or misleading supply of weighbridge disposal dockets (WBDDs) by the Defendant in relation to waste (mostly in the form of asbestos) purportedly sourced from 40-50 Arncliffe Street, Wolli Creek (Wolli Creek Site) and 12A and 12B, 105-115 Portman Street, Zetland (Zetland Site), when in fact the waste was sourced from various other sites.
Mr Al Sarray submitted that [34] of the decision shows that there is a lack of evidence of any actual harm arising from his conduct, and that [37] and [38] show a lack of benefit or explanation or the basis of the offending, however Dr Ahmed (Mr Al Sarray's Psychiatrist) does proffer a possible explanation. Reasons for committing the offence and state of mind of the Defendant 37 There is no evidence that Mr Al-Sarray derived any financial advantage, or other advantage, as a consequence of undertaking the offending conduct. 38 Apart from Dr Ahmed's opinion that "It also [sic] plausible that [Mr Al-Sarray], who is very much a survivor through many life stressors from the ravages of war to suffering early deaths of loved ones, felt a heightened sense of obligation and loyalty to his employer and co-workers, something that may have contributed to his actions, actions from which he had little to gain personally" there is no evidence to suggest any reason as to why the offence was committed by Mr Al-Sarray.
Further submissions were made about Mr Al Sarray cooperating with the investigation and pleading guilty on an agreed statement of facts (at [47] and [48]). His prior good character was referred to at [49] in the decision, and the Court observing that reoffending was unlikely at [63]: (3) To protect the community from the offender - there is no evidence before me that the Defendant is likely to reoffend such that imprisonment is required to protect the community from the Defendant; and were all submitted as positive matters going to his character and suitability to be granted the licence.
In summary Mr Al Sarray's representatives characterised the entire prosecution and outcome as an example of a failure to keep records and then a failure to overcome that failure.
Written submissions maintained that the Commissioner's finding on the LEC proceedings could not be maintained by the decision itself. The reference to a decision to grant the licence in the face of the LEC proceedings 'would not withstand public scrutiny' was submitted as an irrelevant consideration being absent for the relevant provisions of the Firearms Act 1996.
Submissions were made as to the protective purpose of s 11 of the Firearm Act rather than any punitive purpose. Because of the Court's observation that Mr Al Sarray was unlikely to reoffend it was submitted that there was minimal risk.
The applicant's traffic record was submitted as modest. The COPS Events (prior to cross examination) were submitted as being of no weight or at best of minimal weight and that the Commissioner's submission on the COPS entries were unfair and exaggerated. Objection was made to such matters being classified as part of Mr Al Sarray's 'criminal history'.
Further submissions were made about the Commissioner raising concerns about Mr Al Sarray's mental health due to the PTSD diagnosis of Dr Ahmed. This it was submitted had only been raised for the first time in the Commissioners substantive submissions and the raising of it now was unfair.

Commissioner's Submissions

The Commissioner made oral submissions at the conclusion of the reconvened open session. The Commissioner referred to Mr Al Sarray's (1) engagement in threatening behaviour, (2) his fraudulent conduct (as demonstrated by the LEC proceedings), and his (3) mental health risk as shown from Dr Ahmed's report confirming a PTSD diagnosis untreated.
In respect of the point (1) the threatening behaviour the Commissioner submitted that the evidence showed in the affidavit that there was a close relationship with the sister Mariam, but when tested in cross examination and the Tribunal's own questions of the applicant, the relationship was shown to be anything but close.
The Commissioner submitted that the sister left the family home where Mr Al Sarray lived because of religious harassment nothing more and nothing less.
In respect of point (2) the fraudulent conduct, the Commissioner submitted that no matter how lightly the applicant's representatives wish to characterise the LEC proceedings Mr Al Sarray engaged in sending 358 false documents. These documents were deliberately doctored.
The Commissioner submitted that Parliament has had regard to offences involving fraud as being significant in respect of the suitability to hold a firearms licence. Rather than receive a conviction and penalty by way of a fine, if Mr Al Sarray had been convicted and issued with a Bond then the Commissioner would have had the basis to issue a mandatory refusal due to the penalty being proscribed.
The Commissioner referred to her written submissions and reference to the case of Meacham v Commissioner of Police [2020] NSWCATAP 107 at [14] of her submissions. At [26] of Meacham the Appeal Panel observed: 26. Referring to those principles and objects the overriding consideration of the maintenance of public safety is to be clearly noted. In the words of the Tribunal in Ward v Commissioner of Police [2000] NSWADT 28, the decision maker must be satisfied that there is virtually no risk to the public. In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33] it was said: "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".
The Commissioner also referred to Mr Al Sarray's lack of insight of his behaviour and the minimising as demonstrated by the findings of Duggan J in the LEC proceedings at [13]. Evidence 13 In addition to the AASOF a Sentencing Assessment Report (SAR) prepared by Corrective Services NSW dated 7 December 2021 was received by the Court into evidence. The salient matters identified in that report were: Attitudes • Mr Al-Sarray minimised his offending by stating that he was merely helping out one company in relation to the quantity of waste they were disposing of, having been attributed to the waste disposal docket (WDD) of another company. • Mr Al-Sarray claimed that at the time of his offending he was not aware that his actions constituted an offence, however, upon reflection he recognises his wrongdoing and attributed his offending to foolish-decision-making and complacency. ... Financial • Mr Al-Sarray stated that he has been experiencing significant financial hardship in 2017 when the offences occurred, which have continued until now. He denied receiving any financial benefit from his offending behaviour/s. Responsivity Insight into impact of offending • Mr Al-Sarray demonstrated no insight into the impact of his offending, evidenced by his statement that his actions did not have any negative impact on the environment or any one person or company other than himself.
In respect of point (3) the mental health issue, the Commissioner submitted that the reference in the report to reducing risk was of concern when the author had not actually articulated what the risk was. The risk to public safety is a paramount consideration in determining whether it is in the public interest for Mr Al Sarray to hold a firearms licence authorising him to possess and use firearms.
The Commissioner referred in open submissions to the evidence in the COPS Entries to the sister being forced into isolation once she arrived in Sydney and not being allowed to have contact with other family members. She told Police that she was afraid of the family members but most afraid of the applicant. In respect of the Randwick TAFE 'lift' incident it was deemed serious enough to have security, a caseworker and Police all called and involved.
The LEC offences were submitted as very serious notwithstanding the fact that the Firearms Regulation only listed 'prescribed offences' as being terms of imprisonment of three months or more (whether suspended or not), a community service order for 100 hours work or a bond. A section 9 Bond under the Crimes (Sentencing Procedure) Act 1999 with no conditions other than to be of good behaviour would have resulted in a mandatory refusal unlike two $135,000.00 fines.
In written submissions in addition to the reference to Meacham references were made to the cases of Constantin v Commissioner of Police, NSW Police Force (GD) [2023] NSWADTAP 16, Ward v Commissioner of Police [2000] NSWADT 28.
The Commissioner in written submissions also referred to the LEC proceedings in respect of the mental health concerns (Point 3 from the oral submissions at the conclusion of the evidence). At [15] of the LEC proceedings the Court observed: 15 In addition, a report was tendered from Dr Tanveer Ahmed, consultant psychiatrist dated 11 August 2021. Dr Ahmed found that Mr Al-Sarray had no formal diagnosed psychiatric history, however, Dr Ahmed formed the following opinion with respect to Mr Al-Sarray's mental condition: Mr Al-Sarray in my opinion does satisfy the criteria for a Posttraumatic Stress Disorder. I believe this is in partial remission but he has had background symptoms for much of his adult life. He has never sought formal treatment. These have surfaced on occasions, particularly when events in Iraq come to the fore in current affairs and news. He gives a clear history of nightmares, flashbacks, irritability and some avoidance behaviours over a long period of time. This has waxed and waned in significance. He gives an especially strong history in the first five years after coming to Australia where he suffered disrupted sleep and wondered if there would be missile attacks. He also had flashbacks and nightmares of dead bodies and smells of bombs and fire. Impressively he has been able to function quite well within these limitations. He has often been quick to temper and says he has sometimes engaged in conflict or accusations which were more to do with his own paranoia. I cannot make a clear link between his symptoms and the crime. He does say his symptoms worsened at a similar time to when the crime occurred because events in Iraq worsened. He said he was much more irritable, was suffering disrupted sleep and appetite, sometimes screaming at his wife and at night [sic]. It is plausible that this affected his judgement, impulse control and organisation which contributed to the charges. It also [sic] plausible that Munaf, who is very much a survivor through many life stressors from the ravages of war to suffering the early deaths of loved ones, felt a heightened sense of obligation and loyalty to his employer and co-workers, something that may have contributed to his actions, actions from which he had little to gain personally.
The Commissioner referred to whether Mr Al Sarray was a fit and proper person to hold the licence (s 11(3) (a) of the Firearms Act), even though no express finding as to fit and proper or public interest was made in the refusal or decision under review.
In the case of Doan v Commissioner of Police, NSW Police Force [2022] NSWCATAD 220 referred to by the Commissioner reference was made to the often cited cases of Australian Broadcasting Tribunal v Bond 1990 CLR 321, and Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28.
Reference was also made to the case of case of Sobey v Commercial Agents Board (1979) 22 SASR 70 with the regularly cited reference that an applicant must show that they are possessed with sufficient moral integrity and rectitude of character to permit them to be safely accredited to the public without further inquiry, as a person to be entrusted with the sort of work which the licence entails.
In written submissions the Commissioner submitted that regardless of whether the Tribunal now thought that Mr Al Sarray was a fit and proper person with the passage of time since the domestic family matters 15 or more years ago, the Tribunal could not be satisfied that the granting of the licence was in the public interest due to the circumstances whereby he had recently been convicted of deliberately providing false or misleading information.
The Commissioner submitted that the mental health PTSD untreated diagnosis, raised concerns about Mr Al Sarray's ability to continuously exercise responsible and safe control over firearms in his possession.
In respect of the public interest argument, reference was made by the Commissioner to the case of Commissioner of Police v Toleafoa [1999] NSWADTAP 9, noting that the public interest is an inherently broad concept, giving the Commissioner or the Tribunal the ability to have regard to a wide range of factors in coming to a decision.
It is now necessary to consider the confidential material tendered at the confidential portion of the hearing on 5 May 2023

CONFIDENTIAL PARAGRAPHS

[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
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Consideration

The decision under review is based upon the notion that Mr Al Sarray having access to firearms would be contrary to the public interest and that he is not a fit and proper person to possess and use firearms. 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.
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
It is well established and understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered.
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. That case refers to Toleafoa cited above by the Commissioner. 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.
I note that Mr Al Sarray's adverse history is not greatly significant. Other than for his LEC prosecution he would have no criminal record. The Interim AVO is a civil matter that was revoked without proceeding to the two year term, and without adverse incident. Whilst his traffic record is not ideal it is not of great significance in weighing against him. It does however carry some weight.
The matter involving Mr Li is a case of a clear conflict in the evidence. Whilst the applicant does have a history of reported intimidatory behaviour the reference to the other man seated and talking wit Mr Li prior to Mr Al Sarray's turn does raise some doubt over which version to believe. As a result that matter receives some weight but not significant weight.
In my view from the open evidence the provision of false or misleading information which brought about the prosecution by the EPA in the Land and Environment Court is the matter of most significance in the open evidence,
However I also found Mr Al Sarray's evidence before the Tribunal somewhat problematic. There was a clear conflict in his evidence concerning his relationship and currency of contact with his sister Mariam which was in my view clearly exposed in cross examination. It was clear that his affidavit evidence on this point was in conflict with his evidence under cross examination. Whilst I accept his other evidence as credible this matter raises some doubts as to the veracity of his evidence concerning the conduct of the family towards Mariam (including the applicant's conduct) in 2007.
As noted above the decision under review does not specifically refer to findings based on public interest and fitness and propriety. However I note that in the administrative review the fact that the Commissioner ran her case on such a basis is permissible. The notion of 'fit and proper' is referred to 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.
This position is consistent with the approach that the cases outlined above have set out concerning 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 licencing regime is designed to protect the public as a primary consideration. It is for this reason that under the Firearms Act access to and use of firearms is not a right but a privilege.
As the Tribunal has previously observed concerning the issue of public interest, the Appeal Panel case of Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 (Lee), provides guidance concerning giving proper consideration of all relevant matters when determining matters as to the public interest. At [24] - [25] of Lee the Appeal Panel observed: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.
As previously observed by the Tribunal 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.
I note that in the case of Livadaru v Commissioner of Police [2008] NSWADT 160 Deputy President Hennessy observed 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. ….
I again note that the underlying principle of the Act concerns public safety.
In applying the discretion for the public benefit, having considered both the open evidence and the confidential evidence I find that there are matters which on an objective test (having regard to the objects of the legislation and cases referred to above) would prevent Mr Al Sarray being granted the licence at this time.
As noted the traffic record goes to public safety. But that is a matter to which I have only given minimal weight.
I place no great weight on the references because they arise in a context whereby close colleagues and family paint a positive picture of Mr Al Sarray. Whilst the referees were not called for cross examination in my view their evidence would not have been sufficiently objective as they were lay witnesses who had an existing relationship with Mr Al Sarray. One referee was in a close and intimate personal relationship with him.
From a broad public interest perspective, notwithstanding the clear unfairness to Mr Al Sarray, I find confidential material which, whilst unfair to Mr Al Sarray, it is of some probative value and must be given some weight notwithstanding that it cannot be tested further in these proceedings. It is clear to the parties that some of that evidence is contained as redacted portions of some of the open evidence. I will say nothing more about the details of the confidential evidence in these open reasons, only that the evidence itself was insufficient to tip the balance so its weight is lesser than it might have been had the Tribunal been able to test that evidence further. In this regard the unfairness to the applicant is somewhat mitigated and I have applied the approach in the case of Grant at [52] above in reaching my position on that evidence.
Notwithstanding the unfairness to an applicant such as Mr Al Sarray, I note by providing in s 75 of the Firearms Act for evidence to be given in camera and not disclosed in reasons, the Parliament was cognisant of the inherent unfairness, but when balancing public safety and the manner in which Police conduct their core business of keeping the community safe, saw fit to provide for this non disclosure provision.
Section 75 (5) of the Firearms Act provides: (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.
I note that in the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal observed that the 'burden' that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed: 56 It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative. 57 Rather, as stated in Webb at [32] when considering the question of public safety: "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".
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, and specifically including the evidence arising from the LEC proceedings, it would not be in the public interest to issue the licence.
As noted above I also place some weight on the evidence concerning the applicant's involvement in the harassment by the family of Mariam in 2007 or thereabouts and accept that inappropriate behaviour occurred of some sort and that the applicant was not entirely candid with the Tribunal in his evidence about his sister.
Having regard to the cases referred to above and the totality of the evidence, in my view it would be contrary to the public interest to issue Mr Al Sarray with a firearms licence at this time and I so find.
As there is no current licence in place the decision will be affirmed with no consequential action arising.

Conclusion

Because of the findings that I have made, it is appropriate to affirm the decision of the Commissioner.
As this is an administrative review matter, it therefore follows that the correct and preferable decision is to affirm the decision of the respondent.
I therefore make the following orders:

Orders 1. The decision to refuse the Applicant's Category AB Firearms Licence application is affirmed. 2. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (NCAT Act), the hearing of the application in the substantive proceedings be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material described in the Confidential Statement. 3. Pursuant to s 64(1)(c) of the NCAT Act, the publication of the Confidential Material and confidential exhibit CR1, or matters contained in the Confidential Material and confidential exhibit CR1 is prohibited. 4. Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the Confidential Material and confidential exhibit CR1, or matters contained in the Confidential Material and confidential exhibit CR1, is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal. 5. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the NCAT Act, the publication and recording of the confidential hearing of these preliminary proceedings, including confidential exhibit CR1 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2023

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Cases Cited (14)