Saad v Commissioner of Police

Reasons for decision

1. The applicant Mr George Saad applied to this tribunal on 10 February 2022 for review of a decision made by the respondent Commissioner on 30 December 2021 to revoke the applicant's category AB firearms licence. The grounds for the revocation included that the applicant had not held club membership since 2011 and had failed to comply for the requirements of his club membership, such that his genuine reason for applying for and maintaining a category AB licence was no longer valid.
2. The revocation letter also stated that by certifying that he could produce evidence of his genuine reason for re-applying for his licence in both 2014 and 2019, when he did not hold a current club membership, he had provided false and misleading information to the respondent in contravention of s 70 of the Firearms Act.
3. The licence was issued to the applicant on 24 April 2009 for "sport/target shooting" and "recreational hunting/vermin control", in both cases as a member of a club. The licence was suspended for one day on 29 March 2011, apparently in error. It was reissued by way of renewal on 18 June 2014 and again on 18 June 2019, but was suspended on 20 December 2021 and revoked on 30 December 2021. The applicant applied for an internal review of the revocation decision on 26 January 2022. The internal review has not, to date, been finalized.
4. Submitted with the original 2009 application was a written confirmation that the applicant was a member of the Hellenic Outdoor Sporting Association Inc. with a target shooting club approval and hunting club approval, for the period of 2 October 2008 to 31 December 2009.
5. The delegate revoked the licence on 30 December 2021 for two reasons, (1) that the applicant had no genuine reason for continuing to hold the licence and (2) that by certifying that he could produce evidence of a genuine reason for reapplying for a licence in 2014 and 2019 when he did not in fact hold a current club membership, the applicant had provided false and misleading information in breach of s 70 of the Act.

Applicable legislation

1. Firearms licence revocation is covered relevantly by s 24(2) of the Firearms Act: 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 - (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (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 (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations.
2. Clause 20 of the regulation provides that "The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence".
3. Section 12(1) of the Act debars the Commissioner from issuing a licence "unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm". The genuine reasons relevant in this case are sport/target shooting and recreational hunting/vermin control. The evidentiary requirements for those reasons include that the applicant be a member of a shooting or hunting club respectively which is approved by the Commissioner in accordance with the regulations.
4. Clauses 29 and 31 of the Firearms Regulation 2017 require a licensee who is a member of a shooting or hunting club to satisfy applicable participation requirements, those requirements being set out in part 10 of the Regulation. Relevantly they include that members of shooting clubs must participate in at least four shooting activities, and members of hunting clubs must participate in at least two hunting club events, during each consecutive 12-month period. Clause 15 requires a licensee to inform the Commissioner within 14 days after becoming aware that he or she no longer has a genuine reason for possession or using a firearm under the authority of a licence, if they can no longer establish a genuine reason.
5. The applicant's essential position was that the only question before the tribunal was whether his failure to delete sport/target shooting from his genuine reason in his applications justified affirming the revocation decision. While that is partly the case, there are actually several issues that need to be considered: 1. whether the applicant misled the Commissioner with untrue and incorrect information in his re-applications in 2014 and 2019; 2. whether the applicant complied with the mandatory participation requirements; 3. whether the applicant has a genuine reason for holding the licence; 4. whether there had been any other contraventions of the Act; and 5. whether it would be contrary to the public interest for the applicant to continue to hold a licence.

The evidence

1. The respondent called no oral evidence but relied on the documentary material, including the s 58 documents (exhibits R1 and R2). The applicant gave oral evidence.

Mr George Saad, applicant

1. The applicant tendered a written statement dated 5 May 2022 (exhibit A1) in which he stated that he first obtained a firearms licence in 2009 for the purposes of sport/target shooting and recreational hunting/vermin control and had held it until it was suspended in 2021, with the exception of one day in 2011. His safe storage address was always at *** Waterloo Road, Greenacre.
2. He had not come to adverse police attention for any firearm related matter in that time. The reason for the suspension and subsequent revocation was not deleting sport/target shooting from his genuine reasons.
3. The applicant pointed out that on page 40 of the s 58 documents there was a reference to a firearm under a bed and also ammunition stored with firearms. That was clearly a typographical error, as those facts related to his father Antoun, as was apparent from the context.
4. In relation to the 2011 incident, it was an unsubstantiated and false report by two people that he had threatened them. Police had interviewed him at the time, and he had denied the allegation. Clearly the police believed his version, as no AVO was ever implemented. There was also a reference to a charge of affray, but that charge was withdrawn before hearing. The matter arose as a result of a fight at a club where he was a bystander, and plainly the matter was a case of misidentification.
5. His internal review request outlined the issue of his failure to remove sport/target shooting from his firearms licence, and he had learned a very valuable lesson from that exercise and could indicate that he would not make the same mistake again. The review request also attached authorizations to hunt on private property and references from the relevant landowners. He had subsequently purchased some land himself, and if he recovers his firearms licence he would seek to add "primary production" as a genuine reason. He believes that he poses no threat to the public if his firearms licence is returned.
6. In oral evidence at the hearing, Mr Saad reiterated those points, adding that he had purchased 1000 acres of land at Crookwell, where he was running sheep and cattle. He would seek to hold a licence based on the ground of primary production.
7. Cross-examined by Mr Zoppo on behalf of the respondent in relation to some fines in Bankstown Local Court on 20 February 2003 for failing to display an "L" plate, not carrying his licence, not being accompanied by a driver and stating a false name or address, the applicant said he had of his own motion gone to the police to give his correct name and address and that he had been "young and stupid" at the time.

Respondent's submissions

1. The respondent relied on written submissions filed on 3 June 2022 which, after setting out the background to the case and the applicable law, advanced four grounds for affirming licence revocation.
2. The first was that the applicant had misled the Commissioner with untrue and incorrect information in his renewal applications of 27 March 2014 and 8 April 2019 in that he did not provide written confirmation of club membership. He had, however, on both occasions answered "no" to the question "Have you in NSW or elsewhere… had a firearms licence or permit suspended?" That was untrue, as the Firearms Registry's records indicated that the applicant's licence was in fact suspended on 29 March 2011 for one day (exhibit R1, p 3).
3. There was also evidence that he had not held a Hellenic shooting club membership since the club switched to computer records in 2012 and the only evidence that he ever was a member of the club was the letter dated 3 March 2009 (exhibit R1, p 56), and as at 12 February 2022, he was not a current member (id., 73). The applicant had thus repeatedly misled the Commissioner in that regard, and had offered no explanation for so doing. Kogias v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 297, [114] stressed the importance of applicants providing true and correct information. It was therefore not in the public interest for the applicant to continue to hold a licence: Todorovski v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 192, [130].
4. The respondent's second ground was that the applicant had failed to comply with the mandatory participation requirements for his licence since at least 2012. In particular, the Hellenic Outdoor club had no records or reports of the applicant ever participating in the mandatory activities required by cll 107 and 108 of the Regulation.
5. Thirdly, the applicant had shown no genuine reason for holding a licence. He had submitted a letter from Mr Stephen Raheb dated 28 January 2022 stating that he and the applicant had been going to "various shooting properties" since 2008, at least 3-5 times a year and the applicant had been a regular vermin shooter on Mr Raheb's property since 2016, although he does not expressly state that the applicant has had authority to shoot, and if so when.
6. The applicant had also tendered a letter from Mr Peter Noujaim dated 27 January 2022 stating that the applicant had had permission to shoot on his property since 2009 and made a practice of attending the property at least 5 times a year. The recent dates of those letters suggested that the applicant did not, and perhaps could not, produce any prior written proof of permission from either landowner to satisfy the requirement for proof of permission in writing, which is specifically required by the Table to s 12 and cl 30(1)(a) of the Regulation.

Approach

1. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). An internal review was applied for and duly determined (ADR Act s 55(3)). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
3. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless 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. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
4. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and 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]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.

Misleading the Commissioner with untrue and incorrect information

1. The first specific contravention on which the respondent relies is that in his 2014 and 2019 renewal applications, he did not provide written confirmation of club membership, but had certified that he could produce evidence of his genuine reason.
2. In his original 2009 licence application, the applicant had cited as his genuine reasons sport/target shooting and recreational hunting/vermin control (exhibit R1, p 49). For the sport/target shooting category he had nominated Hellenic Outdoor Sporting Association as his principal club membership. As he was a member of that organization at the time, that was true.
3. When he made his 2014 and 2019 applications, however, he was no longer a member of Hellenic. In his 2014 application, the form set out as his genuine reasons sport/ target shooting and recreational hunting/ vermin control, stating that "The details printed below reflect your current licence according to our records. If you wish to delete a category or genuine reason, strike out what you wish to delete on the printed list below" (exhibit R1, p 57). Although he was no longer a club member, he failed to delete the sport/target shooting category from the form. In oral evidence he admitted that omission and said it was a mistake on his part.
4. As he was no longer a club member, he could only retain his licence for the reason of recreational hunting/vermin control. By s 12(1), the applicant could not receive a licence unless the Commissioner was satisfied that he had a genuine reason. A genuine reason exists if the applicant "is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason" (s 12(4)(b)). The Table to s 12 states that to obtain a licence for the reason of recreational hunting/vermin control, the applicant must, relevantly, "produce proof of permission given by the owner or occupier of rural land…." (Para (b)).
5. The applicant did not produce any such proof until he tendered the letters from Mr Raheb dated 28 January 2022 and from Mr Noujaim dated 27 January 2022. That, the respondent submitted, gives rise to an inference that the applicant did not have the necessary permission until January 2022 or thereabouts. The applicant's position was that he was at all relevant times able to produce evidence of such permission and would have done so if asked, thereby satisfying s 12(4)(b) as he was literally "able to produce" the necessary evidence.

Participation requirements

1. The respondent's second ground was that the applicant had failed to comply with mandatory participation requirements. Clauses 29 and 31 of the regulation require a licensee who is a member of a shooting or hunting club to satisfy applicable participation requirements, as set out in part 10 of the Regulation They include that members of shooting clubs must participate in at least four shooting activities, and members of hunting clubs must participate in at least two hunting club events during each consecutive 12-month period. The Hellenic club, however, had no record of the applicant ever participating in the mandatory activities required by cll 107 and 108.
2. The applicant admits non-compliance in that regard and states that it arose because he failed to remove the sport/target category from his licence. He says that he has learned a valuable lesson about the need to follow the regulatory requirements. He submits that while he did neglect his club participation requirements, he did satisfy the requirements for recreational hunting/vermin control as he had permission from two rural land owners to shoot on their land.
3. That is not quite correct, however, as in the genuine reason form for his 2009 original application, he completed the club membership section, not the permission from rural land owner section (exhibit R1, p 54). Further, if seeking to rely on the latter, he would presumably have been required by the Table to produce the proof at the time of the application, not ex post facto. The respondent's second ground is thus made out, and I so find.

Genuine reason

1. The respondent's third ground is that the applicant could not satisfy the evidentiary requirement for recreational hunting/vermin control as a genuine reason as required by s 12(4)(b) and therefore could not be said to have a genuine reason to possess or use a firearm on that basis. When he applied in 2009, he did not rely on the permission of a rural land owner but only on being a member of an approved hunting club. At no stage did he inform the Commissioner that he had evidence in the nature of permission from a rural land owner to support his genuine reason, nor did he supply any written proof of permission until he made the internal review application. The permission letters from Messrs Raheb and Noujaim, being of recent date, suggested that the applicant did not and perhaps could not produce any prior written proof of permission as required by the s 12 Table and cl 30(1)(a) at the time of the application.
2. As was indicated above, the evidence shows that the applicant did in fact have the permission of the two rural property owners at the requisite times, but he did not provide proof of that fact at the time of his 2009 application or when he subsequently decided to base his genuine reason on property owner permission. Consequently, while he did in substance have a genuine reason based on recreational hunting/vermin control, he failed to comply with the regulatory requirements for establishing that reason. Consequently, the respondent's third ground is made out, as the applicant did not meet the documentation requirements for that genuine reason.

Other possible contraventions

1. The respondent's fourth ground is that the applicant appeared to have admitted to further contraventions of the Act, first, because in his internal review application he had tendered the letter from Mr Raheb which stated that he and the applicant had "been going to various shooting properties since 2008", whereas the licence was issued only on 24 April 2009. The letter did not say or imply that the applicant had actually been doing any shooting before that date, and his unchallenged explanation was that he participated only as a helper, such as by holding the spotlight for the shooters. That point is therefore not made out on the preponderance of probabilities.
2. The second part of this ground was that the internal review letter, in seeking to derive support from Artridge at [73], appeared to be admitting to the same contravention as in that case, which was use of firearms for a purpose for which he was not approved. The respondent acknowledged that the passage might have been the result of inadvertence, and that appears to be the case, as there is nothing else in the evidence pointing to such unauthorized use. That submission therefore also fails.

The public interest

1. The respondent also placed general reliance on the proposition that it was not in the public interest for the applicant to continue to hold a licence.
2. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
3. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
4. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
5. Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66] 66].
6. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "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". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].

Orders 1. Decision under review set aside. 2. A category AB firearms licence is to be reissued 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: 21 June 2022