Behjan v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-09-18|Before: Walters J

espondent) Representation: Applicant (Self-Represented) Crown Solicitor (Respondent) File Number(s): 2023/00445945 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 other than to the Tribunal and Respondent publication or broadcast of: (a) the contents of the confidential material provided by the Respondent is prohibited; and (b) any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 17 September 2024, including all recordings, whether written, electronic or aural of that hearing is prohibited.

Introduction

The Applicant held a Category AB firearms licence from 2008 until the Respondent revoked the licence in September 2023.
The Respondent revoked the Applicant's licence application because the Respondent was not satisfied it was in the public interest for the Applicant to hold a licence.
The Applicant seeks review of the decision to revoke his firearms licence.

Confidential material

The Tribunal was also provided with material on a confidential basis (the confidential material) by the Respondent.
The Tribunal made orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) prohibiting publication, broadcast or disclosure of the confidential material or any part of a closed hearing. A closed hearing was held on 18 September 2024 following the open hearing.

Applicant's case

The Applicant contends he should be granted a firearms licence because he is no risk to public safety, that he has no involvement with criminal activities or organised crime and he regrets his non-compliance with the conditions of his firearms licence, which would not occur again should his licence be restored.
The Applicant submits the Tribunal could consider imposing conditions on the licence, requiring the Applicant to undergo refresher training on his obligations under the firearms licensing scheme and mandating the Applicant not have contact with his associates of concern.

Respondent's case

The Respondent contends the correct and preferable decision is to affirm the revocation because of the Applicant's history of non-compliance with the conditions of his firearms licence; the Applicant has not demonstrated a continued genuine reason to hold a licence; and the Applicant is an associate of criminals who have links to organised crime. The Respondent relies on four grounds under the Firearms Act 1996 (the Firearms Act): 1. the Applicant contravened the conditions of his licence (s 24(2)(b)(iii)); 2. the Applicant no longer holds genuine reasons for holding a licence (ss 24(2)(a) and 12) 3. the Applicant is not a fit and proper person to hold a licence (ss 24(2)(c)); and 4. the issue of a licence would be contrary to the public interest (ss 24(2)(d) and cl 20 of the Firearms Regulation 2017).

Jurisdiction

The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the ADR Act. Section 75 of the Firearms Act provides that applications may be made to the Tribunal for administrative review of a decision to revoke a firearms licence. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.
The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17]. The standard of proof applying in this review is the balance of probabilities. These is no burden or onus of proof on either party: see Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34]. The standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89]-[91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10]-[12]. However, they provide guidance for the Tribunal's exercise of jurisdiction, especially in relation to any character issues for consideration in this review.

Relevant Legislation

The underlying principles of the Firearms Act are set out in s 3 and include: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms…
Section 11 of the Firearms Act allows the Respondent to issue or refuse a firearms licence application relevantly providing: (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 … (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.
Section 12 of the Firearms Act requires the Respondent to be satisfied an applicant has a genuine reason for possessing or using a firearm before licence can be issued.
Section 24(2) of the Firearms Act relevantly provides: (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 (b) if the licensee - … (iii) contravenes any condition of the licence, or … (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (d) for any other reason prescribed by the regulations.
Clause 20 of the Firearms Regulation 2017 (the Firearms Regulation) provides the Respondent may revoke a licence if satisfied it is not in the public interest for a licensee to continue to hold a licence.
The Firearms Regulation also relevantly requires licence holders to participate in a certain number of events every compliance period, which is relevantly defined as a 12 month period, except between April 2020 and April 2022 when the relevant compliance period was extended to 24 months, as follows: 29 Sport/target shooting A licence that is issued for the genuine reason of sport/target shooting is subject to the following conditions (in addition to any other conditions to which the licence is subject) - (a) the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members), (b) the licence does not authorise the use of a firearm except at a shooting range approved under Part 8. … 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 … 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. 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.
The regulations in force before 2017 required similar attendance at events and activities and applied to the Applicant from the time he was granted a licence in 2008: see cl 27(1), 96(1)(b), 29(1) and 96(1)(c) of the Firearms Regulation 2006.
As a result, the Applicant was required to attend four target shooting activities and two hunting club events every 12 months, except between April 2020 and April 2022 when the relevant compliance period was extended to 24 instead of 12 months: see the now repealed Sch 2 to the Firearms Regulation.

Applicant's history

The Applicant has no criminal history apart from some minor traffic offences.

Firearms licensing history

The Applicant was first granted a Category AB firearms licence in August 2008 for the genuine reasons of long range target shooting and for hunting as a member of a club. The licence was renewed in August 2013, August 2018 and September 2023.
The Applicant has not ever informed the firearms registry of any change in those genuine reasons and in his 2023 renewal application certified there was no change to his genuine reasons for holding a firearms licence.
A few days after the September 2023 renewal, the Respondent revoked the Applicant's firearms licence and seized the Applicant's firearms which were stored at another person's premises.
The reasons given for the revocation of the Applicant's licence was that the Respondent had information the Applicant had a "close association with members of an Outlaw Motor Cycle Gang… and persons who have criminal holdings" citing s 24(2)(d) of the Firearms Act and cl 20 of the Firearms Regulation.
The Applicant denies any connection or links to outlaw motorcycle gangs and/or criminals.

Events and activity compliance

The Applicant complied with the activity and event requirements of his firearms licence in a single 12 month compliance period between August 2008 and the September 2023 revocation. The Applicant attended the required number of two hunting events in three compliance periods, namely 2017/2018, 2016/2017, and 2010/2011; and the required number of four shooting activities only in the 2016/2017 compliance period.
The Applicant's evidence is that he relied on notices from the firearms registry which he mistakenly believed exempted him from the activities and events requirements of his licence from 2019, as well as conversations he had with people from the Silverdale shooting range.
The Applicant's evidence is also that the St Mary's shooting facility was not suitable for the long arm firearms he was licensed for, although it was a facility he had previously attended, and that from 2019 the Silverdale facility was closed for extended periods of time due to public health orders, floods and fires and other natural disasters.
Even before the covid-19 pandemic, the Applicant had only been compliant regarding activities and events requirements in one compliance period over the decade he had held a licence, therefore the Applicant's lack of compliance with the requirements of his licence is not insignificant and occurred over an extended period of time.

Observed associations

At 10.30pm on a Saturday in August 2020 the Applicant was a passenger in a car. The car was observed pulling out of a side street with speed and was stopped. The driver, the Applicant's acquaintance is known to police, has an extensive criminal history and is subject to a firearms prohibition order. The evidence of an expert officer of the Respondent is that the Applicant's acquaintance is an associate of senior members of an outlaw motorcycle gang.
In December 2019 the Applicant attended a function where his acquaintance and others, including two other people were in attendance. The two other people have extensive criminal histories and one is also subject to a firearms prohibition order.
At 1.15am on a Sunday in March 2023 the Applicant was a passenger in a car observed by police to be driving laps of Kings Cross. The car was stopped and searched. Other people in the car were the Applicant's acquaintance and the two other people described above. The Applicant's evidence is that he was in the car because he was getting a lift home.
The Applicant's evidence is that the three people observed with him in cars and at a function were known to him from childhood and he was not aware, until after his firearms licence was revoked, of their criminal histories, nor that two were subject to firearms prohibition orders, nor that one had spent three years in prison.
The Applicant's evidence is he has worked occasionally with his acquaintance as both of them are involved in the construction business. The Applicant is a builder and his acquaintance, who is a developer, uses the Applicant's expertise to check work on occasion.

Letters of reference

The Applicant provided character references who all speak to the Applicant's good character from: 1. an employee of 18 months; 2. a representative of the Master Builders Association who has known the Applicant since February 2023 because the Applicant is a host employer for apprentices; 3. an accountant who has known the Applicant for 10 years in a professional capacity; and 4. a business acquaintance of seven years.

Non-compliance with requirements and continued genuine reasons

As set out at [28]-[31] above, the Applicant was required to attend events and activities as a licence holder and failed to do so within many compliance periods, in breach of the conditions of the licence. The Tribunal is therefore satisfied the Applicant has contravened the conditions of his firearms licence: see s 24(2)(b)(iii) of the Firearms Act.
Further, on the material before it, particularly the Applicant's continued non-compliance with the events and activities requirements of his licence, the Tribunal cannot be satisfied the Applicant continues to hold a genuine reason to hold a firearms licence, namely the target/sporting shoot and hunting/vermin control reasons the Applicant listed when he first applied for a licence and continued to renew his licence on the basis of, noting the Applicant has not ever notified of any other genuine reason to hold a firearms licence: see ss 24(2)(a) and 12 of the Firearms Act.

Is the Applicant a fit and proper person to hold a licence?

The expression 'fit and proper' has often been considered by this Tribunal and in other jurisdictions. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at pp 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.
Further, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the question was whether the holder of a commercial broadcasting licence under the Broadcasting Act 1942 (Cth) continued to be a "fit and proper person" to be the holder of such a licence. Toohey and Gaudron JJ discussed the meaning of the expression 'fit and proper person' (at p 380): The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in 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 question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will 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 a person is not fit and proper to undertake the activities in question.
Their Honours went on to say (at p 388): The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."
Mason CJ (with whom Brennan and Deane JJ agreed) stated that the concept "fit and proper person" should not be construed narrowly and stated at (pp 348-349): Some indication of the breadth of the content of the concept may also be gathered from the fact that it is a purpose of the Act to ensure that commercial broadcasting is conducted in the interest of the public. A commercial broadcasting licence is a valuable privilege which confers on the licensee a capacity to influence public opinion and public values. For this reason, if for no other, a licensee has a responsibility to exercise the power conferred by the licence with due regard to proper standards of conduct and a responsibility not to abuse the privilege it enjoys.
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said (at p 76): In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
Whether an applicant is a fit and proper person to hold to licence is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184; is to be determined by reference to 'the activities in issue': Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]; and gauged in 'light of the nature and purpose' of those activities: AJO v Director-General of Transport [2012] NSWADT 101 at [26].
For firearms licences, the Tribunal is required to form "a positive state of satisfaction" that an applicant is a fit and proper person who can be trusted to possess firearms without danger to public safety or to the peace: Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45] and (at [19]) the Tribunal noted: The statutory regime under the Act is protective, not punitive. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.
The Applicant has contravened the conditions of his firearms licence over an extended period of time and therefore has not complied with the strict requirements of the firearms licensing scheme. The evidence of the Applicant is that he has not taken any steps, aside from participation in these proceedings to inform himself of the requirements of the firearms licensing scheme which does not weigh in his favour.
The Tribunal must consider the past conduct of the applicant as a significant guide: see Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]; and is to look at the Applicant's conduct as a whole, including potential future conduct with past conduct of the Applicant being a significant guide in assessing likely future conduct: see Ford v Commissioner of Police [2022] NSWCATAD 87 at [59].
Therefore in all the circumstances and on the material before the Tribunal, the Tribunal cannot be satisfied the Applicant is a fit and proper person under s 24(2)(c) of the Firearms Act who can be trusted to possess firearms without danger to public safety because the Tribunal cannot be satisfied the Applicant will comply with the strict requirements of the firearms licensing scheme.

Is it in the public interest for the Applicant to hold a licence?

Under the Firearms Act, public safety is the primary consideration: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134. The interest of an applicant in obtaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at [69].
In Ward v Commissioner of Police [2000] NSWADT 28 Deputy President Hennessy said (at [27] - [28]): …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. 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.
In addressing the assessment of risk an applicant is not required to prove a near-absolute negative, instead the assessment is to occur in a "nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety": see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 where the Tribunal discussed Ward and other authorities (at [64] - [66]).
The term public interest is not defined in the Firearms Act. In Constantin v Commissioner of Police [2013] NSWADTAP 16 the Appeal Panel stated (at [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.
The public interest considerations in s 11(7) of the Firearms Act can also include an applicant's fitness or character that are mentioned separately in s 11(3)(a), see Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 (at [93]): Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a).
Therefore the matters considered at [47]-[49] above are also relevant to the consideration of public interest and weigh against the Applicant in this review.
The Applicant submits he was never warned or given notice of the event and activity requirements of his licence, referring to warnings given to drivers approaching their limit of demerit points, and that to withhold a licence from him on this ground would be punitive and inappropriate punishment. The Tribunal cannot accept the submissions of the Applicant on this issue. The Applicant's non-compliance demonstrates his lack of regard for the strict requirements of the firearms licensing scheme, a scheme which is not analogous to driver's licence demerits points in this respect.
It is not the responsibility of the regulator to put a firearms licence holder on notice of the requirements of the licence. Instead, the public interest requires that all licensees be aware of, and comply with, the legislative requirements: see Cook v Commissioner of Police, New South Wales Police Service [2003] NSWADT 30 at [34]. Responsibilities applying to firearms licence holders are serious and licence holders must both understand and comprehend the guidelines and laws that govern them and must act in accordance with them: see Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at [25].
A further consideration beyond non-compliance in this review is that the Tribunal cannot be satisfied the Applicant would not pose a risk to public safety if he was granted a firearms licence because of his observed association with people with extensive criminal histories, two of whom are subject to firearms prohibition orders and for one of whom the relevant association is also professional.
Therefore, in all the circumstances and on the material before the Tribunal, the Tribunal cannot be satisfied it is in the public interest for the Applicant to continue to hold a firearms licence: see cl 20 of the Firearms Regulation.

Consideration of conditions

The Tribunal has considered whether the imposition of conditions on the Applicant's firearms licence regarding non-association and education, as suggested by the Applicant, would alleviate any of the concerns regarding public safety and the public interest considered in these proceedings. The discretion to impose conditions is broad should be exercised in a way that promotes the principles and objects of the Firearms Act: see Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149. However, the Tribunal must first be satisfied that a licence should be issued before it considers whether the imposition of conditions is appropriate: Edlington v Commissioner of Police, NSW Police Force [2019] NSWCATAD 58.
The Tribunal accepts the Respondent's submissions that the Applicant's continued non-compliance with the activities and events requirements of his licence are such that the Tribunal cannot be satisfied further conditions would be complied with. Further, the Tribunal is not satisfied the public interest concerns identified in this review can be resolved by imposing the proposed conditions.

Conclusion

The Tribunal has found: 1. It is satisfied the Applicant contravened the conditions of his licence; 2. It is not satisfied the Applicant continues to hold genuine reasons for holding a licence; 3. It is not satisfied the Applicant is a fit and proper person to hold a licence; and 4. It is not satisfied it is in the public interest for the Applicant to continue to hold a firearms licence.
It follows that the correct and preferable decision is to affirm the decision of the Respondent to revoke the Applicant's firearms licence.

Order 1. The decision under review is affirmed. 2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 other than to the Tribunal and Respondent publication or broadcast of: 1. the contents of the confidential material provided by the Respondent is prohibited; and 2. any part of the evidence given before the Tribunal and submissions made to the Tribunal at the confidential hearing on 18 September 2024, including all recordings, whether written, electronic or aural of that hearing is prohibited.

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: 08 October 2024

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (19)