Ferkh v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-07-24

Background

On 20 April 2018 the Applicant was granted a Category AB firearms licence. There was no evidence that the Applicant had come to Police attention with respect to improper use or storage of his firearms while he held the licence. His licence was automatically revoked when he was served with the FPO, but, in any event, it has since expired - on 14 June 2023. The Tribunal has no power to re-instate an expired licence.
On 14 October 2021, as a delegate of the Respondent, DCI Walke issued an FPO under s 73(1) of the Act and a weapons prohibition order (WPO) under s 33(1) of the Weapons Prohibition Act 1998 in respect of the Applicant. It was alleged that the Applicant: 1. [had] been identified to be actively supportive of the Terrorist Organisation, Islamic State in Iraq and Syria (IS) 2. [was] an active associate of Joseph Saadieh (Saadieh) - charged with being a member of that organisation 3. [had] demonstrated extreme religious ideology 4. [had] associations with persons that cause concerns
On internal review the following reasons were given for affirming the original decision: 1. The Applicant had associated with a person who is "well known to police and who has been charged with a crime on the highest scale in terms of seriousness" (namely Saadieh, who has been charged with and is currently awaiting trial for knowingly being a member of a terrorist organisation) and is themselves the subject of an FPO; 2. Two recent decisions of the Tribunal indicate that "where an applicant voluntarily associated with persons having significant criminal histories or involvement with criminal organisations and activities, that association may create the danger to public safety with which the Commissioner is concerned and that person may therefore be not fit, in the public interest, to be in possession of a firearm. In those circumstances, a firearms prohibition order may be justified"; and 3. Information available to the Commissioner indicated that the Applicant had "been supportive of the terrorist organisation, IS, including such organisation's extremist material" and had been an associate of Saadieh prior to his arrest.

Evidence relied on by the Respondent

Before me, in summary, the Respondent submitted that the Applicant sought out a friendship with an extremist individual, Saadieh and displayed support for the ideology of IS. That conduct, particularly when considered in the context of the history and operation of IS in Australia and globally, it was submitted, constitutes a risk to public safety. On that basis, the Respondent submitted that it is in the public interest for the FPO to be issued against the Applicant.
The Respondent referred to activities of IS, and also to the Applicant's conduct, and submitted that adverse inferences that can be drawn about him from the evidence.

IS's violent ideology and use of media

DCI Walke, who has been a police officer for 34 years, and is currently the officer-in-charge of the High Risk Terrorist Offenders Unit, provided detailed evidence about IS activities. His evidence was that IS has been a listed terrorist organisation under the Criminal Code 1995 (Cth) since 2005. IS has explicitly called on supporters to carry out attacks in Australia. He referred to a particular issue of Rumiyah, which is a propaganda magazine issued by IS, which called upon readers, and those living in Australia in particular, to kill Australians.
Included in the s 58 documents was a statement dated 22 February 2023 by Dr Charles Lister, who I accept, is an expert in counter-terrorism and IS operations. Dr Lister observed that IS considers that the role of its "global network of male members" includes conducting terror attacks in their home countries; and to disseminate IS propaganda to radicalise and recruit for the IS cause. Dr Lister considered that IS propaganda had a direct impact on the "dramatic" spike in global terror attacks after 2014, due to IS's ongoing calls for supporters to conduct attacks at home. As a result, it was submitted, viewing, possessing and disseminating IS material is a matter of significant concern.

IS's history of inspiring 'Ione wolf' attacks in Australia

In his affidavit, DCI Walke set out the details of 8 prior terror attacks in Australia, inspired by, or committed in, the name of IS between September 2014 and December 2020 - 5 of which resulted in fatalities, 4 of the offenders involved did not have any prior criminal history, and none had prior charges related to terrorism before carrying out their attacks. DCI Walke deposed that in the context of terrorist attacks, it is clear that an individual does not need to have a prior criminal history or involvement in terrorism in order to be recruited or inspired to execute an attack; the violence is generally borne out of a commitment to an ideology and individuals can offend for the first time after having been radicalised.
Therefore, it was submitted, lack of prior criminal history (as is the case in respect of the Applicant) is not necessarily indicative of future risk when it comes to ideologically inspired terrorist attacks. Moreover, IS propaganda is often highly instructive and enables individuals to carry out attacks with little to no assistance from others. As a result, these types of attacks are particularly difficult to predict and intercept.
According to DCI Walke, at present, the Australian Security Intelligence Organisation (ASIO) considers that, if there were a terrorist attack in Australia, it is "most likely" to be conducted by a lone actor or small group. The current National Terrorism Threat Level is, he said, 'Possible'.

Criminal organisations seek out "cleanskins" with access to firearms

DCI Walke deposed that it is advantageous to high-risk groups to have access to a 'cleanskin', particularly if they hold a firearms licence and therefore can legally acquire firearms, as it can facilitate criminal activity without alerting law enforcement. The Respondent submitted that the Applicant would be a desirable target for any criminal group as he has knowledge of the use of firearms and is the former owner of firearms. However, I observe, the same might be said in relation to any 'cleanskin'.

Applicant's association with Saadieh

In the Applicant's Request for Internal Review dated 11 November 2021 he outlined the circumstances of his relationship with Saadieh. He wrote that, at some point in time in his first year of university, he met Saadieh, who was another student. Saadieh was "very nice and humble" with the Applicant, but the Applicant could tell that he had a very gullible nature and was very easily influenced by extremism. The Applicant said he felt sorry for him, and so decided to befriend him and try to bring him away from this extremist mentality, to extinguish this "narrow-minded ignorance" with at least some of the proper mainstream Islamic knowledge.
In his evidence, the Applicant said that Saadieh spoke to him about IS at their "very first" meeting, and that they "had not even had a five-minute conversation" when this occurred. The Applicant told Saadieh that he "should not speak about these things in public" as it was "dangerous" to do so.
The Applicant said he was the president of the Muslim Students' Association (MSA) at the university. His evidence was that in 2018, during an event conducted by the MSA, Saadieh expressed his extremist ideology in public "in an aggressive manner", including in front of non-Muslims. This caused alarm within the MSA. The Applicant said he was advised by the associate chaplain, Ziad Raad, to ban Saadieh from the MSA due to his extremist ideologies and, after an emergency meeting, Saadieh was immediately excluded from all future MSA events.
The Applicant said he wanted Mr Raad to give Saadieh a chance and he would help him in getting rid of this mindset. He said that he and Saadieh would contact each other every now and then and would sometimes eat out together but they were not close. Sometimes he would try to reason with Saadieh to reduce his extremist approach, but this was never central to their interactions which were more based on general life topics. He said that before Saadieh was arrested he could see that Saadieh may have had views supportive of IS, but he did not know that Saadieh had pledged allegiance to IS, as is alleged.
In his evidence before me, for the first time the Applicant stated that he had met with two [named] ASIO officers in 2018 who had questioned him for 1 - 1.5 hours about Saadieh. He said he told them about his leadership position in the MSA and his attempts in the de-radicalisation of Saadieh. The Applicant said that in this meeting he was never advised to disassociate from Saadieh. DCI Walke and Detective Farquharson were apparently unaware of this meeting with ASIO when they investigated the Applicant in the course of issuing him with a FPO. From their evidence Police had not known about the Applicant's leadership position in the MSA and was only aware that he was in Saadieh's circle of friends; they were unaware of the Applicant's role in attempting to de-radicalise Saadieh. Publicly available material, however, such as media reports of Saadieh's arrest, suggested that a number of law enforcement agencies were involved in his apprehension.
The Respondent was critical of the Applicant raising his meeting with ASIO for the first time at the hearing. I observe though that he had originally mentioned in his internal review request, referring only to "law enforcement'. The Respondent was also critical of the Applicant for not producing any records of the meeting. I do not regard the absence of some documentary account of the meeting to be significant - it is unlikely that ASIO officers would have committed anything to paper - if only for the Applicant's own protection.
In his evidence, the Applicant repeatedly maintained that he believed that he had prevented Saadieh from carrying out a terrorist attack. When asked why he did not report these concerns to law enforcement, the Applicant said, firstly, that he did not think that Saadieh was "capable" of carrying out such an attack. Asked why he never communicated with ASIO or Police after that, he reiterated that it was not his role, and he questioned why the Police did not speak to him, nor did ASIO contact him again. The Applicant said that the role of reporting Saadieh to Police was "the prerogative" of Mr Raad, and the Applicant had no reason to do so, as this had already been done.
The Applicant said he considered that he owed Saadieh a "duty of care", given he was President of the MSA at the time Saadieh was banned from events because of his extremist views. In response to my questioning, the Applicant estimated that he was President of the MSA for only about one year, but said he had continued to be involved in other roles within the MSA and in the broader Muslim community after that and continued working to facilitate the de-radicalisation of Saadieh by offering emotional support rather than ostracising him, which could, he said, have potentially made Saadieh develop stronger feelings of hatred and enmity towards non-believers and could have motivated him to attempt an attack.

Evidence of Mr Raad about the Applicant and Saadieh

Mr Raad's evidence was that as part of his role as a Muslim Associate Chaplain of Western Sydney University, he assisted the MSA with event planning, training its executives and workshops and he was often invited to executive meetings. In 2018 he first met the Applicant who was a student at the Parramatta campus and, he said, the Applicant showed great interest in volunteering for the MSA, showing great passion in serving the student body. In Spring semester, the Applicant became the president of the MSA at Parramatta campus.
When, during a MSA event, Saadieh expressed "troublesome views and opinions", Mr Raad met with him and came to the view that Saadieh required professional assistance. He recommended to the MSA executive, including the Applicant as President, that the MSA not allow Saadieh to be a volunteer at events because of his views. The MSA executive accepted his advice and decided to not allow Saadieh to participate in events; some members of the MSA, he said, cut ties with Saadieh completely. He was unconcerned that Saadieh might try to radicalise other students because he was not an influential personality, unless the other students were already like-minded.
Mr Raad said that at around the same time he spoke to the university body, chaplaincy coordinator and student engagement officer about Saadieh as part of his role and duty of care within the university. He also said that sometime in 2018/19 he reported Saadieh to Police.
In his evidence, Mr Raad said that he would meet with Saadieh in an attempt to change his view and in this he had some success, until Saadieh would meet with others and then change back again. He said he told Saadieh that he, Saadieh, required professional assistance but Saadieh then would not engage with him and "blocked" his requests to further speak with him. Mr Raad said he thought another approach was required.
Mr Raad wrote that the Applicant did not share Saadieh's views and that, at his request, the Applicant agreed to meet with Saadieh to assist in guiding him and countering his troublesome views. In his evidence he said he "directed" the MSA to "find out more" so they could work out how to assist Saadieh away from "going deeper" into his extremist views. He said he told the Applicant to paint him, Raad, as "bad cop", as opposed to the Applicant's "good cop". From available transcripts of Saadieh's conversations provided by the Respondent, Saadieh understood, the Applicant had dissuaded Mr Raad from contacting Police. Mr Raad said he was unaware that the Applicant had told Saadieh that he, Raad, was thinking to reporting Saadieh to Police and that the Applicant had told Saadieh that he had dissuaded Mr Raad from doing so. For about a semester, the Applicant would update him on the progress of his discussions with Saadieh.
Mr Raad said his visits to the Parramatta campus reduced in the summer semester due to personal commitments, and he and the Applicant did not keep in touch as much as before. He said the MSA had then become inactive due to COVID and there was no follow-up between him and the Applicant regarding Saadieh. In cross-examination, Mr Raad said he was unaware that the Applicant continued to have contact with Saadieh until the time of his arrest in 2021. Mr Raad also said that some other students were also tasked with facilitating Saadieh's de-radicalisation but had left the MSA due to the pandemic.
Mr Raad "authorised" ongoing contact with Saadieh and suggested that students could be available to engage with Saadieh on campus when "safe" to do so and to raise any concerns. To the extent there was any "operation" (in the Applicant's words) to de-radicalise Mr Saadieh, Mr Raad's involvement was limited, to the 'bad cop' role.

Applicant's response to extremist material

Between 31 April 2021 and 18 June 2021, the Applicant, Bachir Nachabe (Nachabe) and Saadieh participated in a WhatsApp conversation group and detailed transcripts were provided by the Respondent. Saadieh and Nachabe circulated various extremist content in this conversation, some of which appears to have been sourced from IS or IS-affiliated organisations. The Respondent accepted that the Applicant did not respond to all of the extremist content, and that the Applicant himself did not circulate any extremist content. Notwithstanding this, the Respondent submitted that the Tribunal should draw an inference that the Applicant displayed support for IS.
The Respondent relied on the Applicant's response to extremist material on the following occasions: 1. On 28 April 2021, he responded with a love heart symbol to a video circulated by Saadieh which contained lyrics about taking up weapons. DCI Walke deposes that this video (or "nasheed") glamorises and encourages violence with a view to favourable treatment in the afterlife. 2. On 28 May 2021, the Applicant responded with a love heart symbol to a video which appears, according to DCI Walke to be sourced directly from IS, through its media outlet 'Dabiq'. DCI Walke considered the lyrics to suggest that a new generation will be built through the use of weapons, and it is honourable to follow these leaders, who represent excellence, and encourages allegiance to these leaders, whose authenticity arises from the Qur'an. 3. On 1 June 2021, Nachabe circulated a video which included lyrics which DCI Walke deposed would encourage suicide or other attacks given it emphasises "letting go of the world and martyrdom". Dr Lister observed that martyrdom is a significant focus of IS. The Applicant responded to this video with a one-finger symbol and a love heart symbol. In DCI Walke's opinion, the use of the one-finger symbol is common amongst Muslims across the world, however the use of this gesture has increased in significance since the rise of IS and, according to Dr Lister, the gesture is commonly used by IS supporters and fighters, and appears in many IS propaganda videos and images. 4. The Applicant also responded to a video with a one-finger symbol on 4 June 2021. Dr Lister reported that this video was sourced from an extremist organisation which functioned as an "unofficial propaganda outfit dedicated to the translation and dissemination of IS media materials into English". The video refers to instructions provided by Abu Bakr al-Baghdadi, the founding leader of IS. DCI Walke deposed that, in his opinion, the video encourages violence towards those who do not support the ideology espoused by IS, including other Muslims, Christians and Jews.
DCI Walke considered that the Applicant's use of the one finger symbol is indicative of support for IS because the gesture is made in direct response to a video that encourages martyrdom which is a central part of IS ideology.
On the other hand, as the Applicant pointed out, the lyrics of songs by many "rappers" and heavy metal groups are violent and that does not mean those who listen to that form of music agree with those views.
On other occasions, Saadieh and Nachabe appear to have shared material with the Applicant, to which he did not respond. The Respondent submitted that it is relevant that Saadieh and Nachabe felt comfortable sharing this material with the Applicant, as it suggests they presumed the Applicant would be receptive to the material. There was no evidence though that the Applicant solicited such material, or even that he viewed it at all.
There is no evidence that the Applicant had himself disseminated any extremist material.
The Applicant does not deny that he sometimes uses emojis but denies that the use of 1 or 2 emojis without any text suffices to amount to "active support" of the material sent. The Applicant submitted that his use of emoji responses to the extremist material he received is insufficient to establish that he held extremist views and agreed with IS' ideology. In his evidence, the Applicant asserted that he is someone who, when he is truly enthusiastic about something, tends to go into greater detail in his messaging. I accept that his reactions can be consistent with his claimed role of providing emotional support for Saadieh in an attempt to de-radicalise him.
The Respondent submitted that in light of Saadieh's criticism of those who challenge his beliefs, his willingness to share this material with the Applicant gives rise to the inference that the Applicant never sought to deradicalise Saadieh, and that he had never expressed ideological views contrary to Saadieh; and through the use of emojis had expressed ideological views consistent with those of Saadieh. I do not accept that it follows that failure to respond adversely to the material sent to him gives rise to a conclusion that he never sought to deradicalize Saadieh. There was no evidence that the Applicant was affected by any extremist ideology during his association with Saadieh.
I accept that the use of emojis is a common and accepted form of digital engagement. The Respondent conceded that the lack of written responses is therefore not determinative of the Applicant's degree of support.

Observations about the Applicant by Saadieh

In January 2019, Saadieh reportedly spoke about the Applicant in a conversation with a third-party and said the Applicant had told Saadieh that he, the Applicant, had stopped Mr Raad from reporting Saadieh to Police. He regarded the Applicant as "a good brother" and thought the Applicant liked IS and was "on the borderline". DCI Walke interpreted the phrase "on the borderline" to mean that the Applicant is "close to or is considering pledging allegiance to IS".
The material provided by the Respondent suggested that Saadieh had strong views about those he considered did not align with his ideology; eg that he could not be friends with a heretic. He made a number of derogatory comments about Mr Raad when the Applicant informed Saadieh that Mr Raad proposed to report him to Police. The Respondent submitted that if the Applicant had made attempts to challenge Saadieh, it is highly unlikely that Saadieh would consider him a "good brother". On the contrary, in my view - Saadieh is likely to have been very pleased that the Applicant had dissuaded Mr Raad from reporting Saadieh to Police.
For obvious reasons, Saadieh was not called by either party to give evidence. I do not accept that the views expressed by Saadieh are determinative of the Applicant's position, especially in circumstances where the Applicant's evidence was directly to the contrary.

Is the Applicant not fit, in the public interest, to have possession of a firearm?

The Respondent submitted that the evidence demonstrates two real risks: 1. that the Applicant has displayed sympathy for and endorsed IS ideology; and 2. that the Applicant might again seek out or maintain associations with people he knows to harbour extremist views and thereby continue to expose himself to extremist material.
The approach to be taken in relation to the public interest in matters concerning FPOs was considered by SM Walker in Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 (Hamid) at [50]-[57] and was adopted by SM Montgomery in Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79 (Dalziell) at [49]-[50].
In Hamid, it has held that the language, "not fit, in the public interest" is "materially different" from the "fit and proper person" test in the Act's licensing provisions. SM Walker considered that the test with respect to FPOs implies that even though a person may have an unblemished record, public interest considerations may render a person unfit and therefore make it appropriate to issue an FPO against the person. As I discussed recently in Chaaban v Commissioner of Police, NSW Police Force [2023] NSWCATAD 93 (Chaaban), while I agree with this observation, the general licensing provisions also include a consideration of public interest: eg s 11(7) of the Act. In that way, it seems to me, there is little practical difference between the test for a FPO and that for a general licence.
In Hamid SM Walker observed that in the NSW Ombudsman's Review of Police Use of the Firearms Prohibition Order Search Powers (August 2016), the Ombudsman had said that police had informed him that an FPO would generally be made where the authorizing officer formed the view that a person's possession of a firearm or ammunition would compromise public safety, and set out a number of examples of the types of situations that might give rise to the issuing of an FPO. The examples included OMCG membership, persons convicted of armed robbery, murder, conspiracy to murder, serious assault and other serious violence-related matters and persons involved in firearms trafficking. In Hamid none of the listed circumstances applied to the applicant. Although the list of circumstances is not exhaustive, I observe that in this matter, there is similarly no evidence that the Applicant's circumstances are in any way like the examples provided.
When determining what is in the public interest, the Tribunal is to consider whether there is a threat to public safety; see Hamid at [57]. The Respondent submitted, and I agree, that there is likely to be an unacceptable risk to public safety from anyone who has endorsed IS ideology given the dangerous nature of the organisation. While Saadieh's allegiance to IS will shortly be tested to the criminal standard, I accept, on the balance of probabilities that the evidence points to Saadieh being a supporter of the terrorist organisation, IS. Unlike Saadieh, the evidence however, does not satisfy me on balance, as discussed below, that the Applicant endorses the ideology of IS.
As set out in Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, the concept of public interest allows for matters going beyond the applicant's character to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration.
The Respondent submitted that there is a real and appreciable risk that the Applicant might once again foster an association with an extremist, including by taking steps to win their trust and thereby continue to expose himself to extremist ideology which, in turn, gives rise to a risk to public safety. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. Past conduct is a guide to future conduct: Self v Commissioner of Police [2022] NSWCATAD 172. The Respondent claimed that there is insufficient evidence before the Tribunal to be satisfied that the Applicant will not associate with such individuals in the future. I accept that the Applicant disassociated from Saadieh once authorities became publicly involved through the arrest of Saadieh. I accept that the Applicant's past conduct, namely his continued association with Saadieh, was for the underlying purpose, initiated following Mr Zaad's suggestion, and continued up until Saadieh's arrest, was in an attempt to de-radicalise Saadieh.
The Applicant disassociated himself from Saadieh now over 2 years ago. It is noted that in the strict bail conditions imposed on Saadieh, the Applicant is not mentioned as one of the many individuals that Saadieh was ordered to have non-contact with. Consequently, while the Applicant may legally associate with Saadieh, there is no evidence that he has done so, and his evidence is that he does not intend to. I accept that the Applicant has never reassociated with Saadieh since his arrest and that he has no interest in associating with Saadieh or other extremists in the future.
There was no dispute that when the FPO was issued the Applicant's entire property was searched and no extremist material was located. Further, the Applicant had met safe storage and participation of firearms throughout his ownership of firearms during the time he had associated with Saadieh.
I further observe that the Applicant's role as the President of the MSA was unchallenged, neither was his assertion that he is a leader within the Muslim student community. He provided a reference from Bashar Al-Jamal, the Director of Human Appeal Australia, an organisation which, according to its website, strives to support the local Australian community including through its "Aspiring Leaders" program. The Applicant participated in its Aspiring Leaders tour in 2019. He is studying to become a teacher.
The Respondent submitted that notwithstanding the Applicant's leadership position, he chose to engage with Saadieh in his personal capacity and contended this was, at best, a reckless decision. I consider that the evidence supports a finding that the Applicant's continued association with Saadieh was by way of persevering with his goal of deradicalizing Saadieh.
In both Hamid and Dalziell the Tribunal held that the applicant who voluntarily associated with persons having significant criminal histories or involvement with criminal organisations and activities, that association may create the danger to public safety and that person may therefore be not fit, in the public interest, to be in possession of a firearm. In Hamid, although the applicant had never come to the attention of police, the concerns about the related to the applicant's very close association with two men who had significant criminal histories and who themselves had FPOs against them. There was a suggestion that she could be coerced by those persons into storing weapons. In Dalziell, at the time the Commissioner issued the FPO, the applicant was also issued with a pre-emptive consorting notice, which is an official warning that it is an offence to consort with named convicted offenders. The applicant admitted that he was regarded as a senior member of an OMCG for a long period and on numerous occasions had been contacted by the New South Wales Police, including those involved in targeting OMCGs and associated criminal enterprises (Operation Raptor).
In this matter, though, unlike the applicants in Hamid and Dalziell, the Applicant no longer associates with Saadieh. Also, there was no evidence that he had been asked to access his firearms on behalf of Saadieh or others while he held the licence. see Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 1 94, at [90]; see also El Saadi v Commissioner of Police (No 2) [2021] NSWCATAD 336.
The Applicant's case may be distinguished on the facts from Hamid, Dalziell and Chaaban. Unlike in those cases, the Applicant's level of association with criminal elements is so tenuous that, in my view, there is not a real and appreciable risk to public safety if he were to possess firearms.
I accept that the Applicant's reactions to extremist material do not represent support for that ideology, especially given his position in the community. As I have said, in my view it is unlikely that the Applicant may seek out associations with people he knows to harbour extremist views and thereby continue to expose himself to extremist material. I accept that the Applicant is uninterested in associating with such individuals.
The Respondent had initially contended that the Applicant allegedly is "actively supportive" of IS. Later it submitted that the Applicant "endorses" IS ideology. The Applicant, on the other hand, always emphatically maintained his position that he was involved in the community and in a position of leadership, and that his interactions with Saadieh were in an attempt to deradicalize him and that he does not support IS ideology. I also accept that the Applicant did not and does not endorse IS ideology and I consider that his shorthand responses to material circulated to him do not amount to endorsing or displaying sympathy for IS ideology. Further, I do not accept that the Applicant might again seek out or maintain associations with people he knows to harbour extremist views and thereby continue to expose himself to extremist material.
Taking all the available evidence into account and for the reasons given above, I find the Applicant is fit, in the public interest, to possess firearms and that a FPO is therefore unwarranted.

DECISION

The decision under review is set aside.

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: 25 August 2023

Tribunal's approach

Section 63 of the ADR Act provides that in determining an application for review the Tribunal 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 a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34]. The Tribunal is required to base its findings of fact on logically probative material and not on mere suspicion or speculation: Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83].

At a glance

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Legislation Cited (1)

Cases Cited (19)