Zahab v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-04-23

The NSW Civil and Administrative Tribunal overturned the Police Commissioner's decision to revoke a man's firearms licence because his brother had been convicted of terrorism offences. The Tribunal found that simply having a relative who committed a serious crime does not automatically make it unsafe for someone to hold a gun licence, especially when there was no evidence the licence holder shared his brother's extremist views, his brother was in prison with no access to the firearms, and the licence holder had an otherwise impeccable record. The Tribunal also rejected claims that the man was of 'unsound mind' because he had suffered a workplace accident due to stress and lack of concentration. The Tribunal noted that a fresh application would be needed because the original licence had expired, but indicated that this decision should be considered in any future application.

Background

On 31 March 2015, the Applicant, Tarak Zahab was granted his most recent firearms licence - a category AB licence, which was due to expire on 21 May 2020.

Legislative framework

The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act, relevantly: 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 ... (2) The objects of this Act are, relevantly, as follows: (a) - (c) (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms , (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) ...
Section 24(2)(a) of the Act provides that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Section 11(4)(c) of the Act 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."
Section 24(2)(d) of the Act provides that a licence may also be revoked for any other reason prescribed by the regulations. Clause 20 of the Firearms Regulation 2017 (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.

Evidence

In addition to the s 58 documents (and supplementary material), I had before me written submissions by both parties. The Applicant provided a very detailed statement and statements from his parents, siblings, the wife of his brother Haisem, together with a number of character references.
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. 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]. 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.

CONSIDERATION

The Respondent relied on two bases for its position that the Applicant's licence should be revoked.

Ground 1: Not in the 'Public Interest': s 24(2)(d) of the Act and cl 20 of the Regulation

Applicant's brother, Haisem

Haisem Zahab (Haisem) is the Applicant's eldest brother. On 7 June 2019, Haisem was convicted in the NSW Supreme Court, under s 102.7 of the Criminal Code Act 1995 (Cth), of providing support to a terrorist organisation (ISIS), and was sentenced to 9 years imprisonment commencing on 28 March 2017. While the Respondent did not suggest the Applicant was involved with, supported, or had knowledge of his brother's offending, it nonetheless submitted that the relationship between Haisem and the Applicant is such that it is not in the public interest for the Applicant to continue to hold a licence.
The Respondent submitted that the nature of Haisem's offence should be given significant weight when considering the public interest; the seriousness of the offence is indicated by maximum period of imprisonment, and that Haisem's custodial sentence was 9 years out of the possible 25 years. The Applicant wrote in his statement that he agreed with the decision to incarcerate his brother due to his online illegal activities.
The Applicant wrote that he is 44-years old, and he, his wife and 5 children live "a happy and independent life, free from any interference or influence of family members on both sides". He wrote that he has virtually no association with his extended family. He only associates with his parents and younger siblings, once or twice a fortnight for family gatherings when he can make the trip back to the area in which his relatives reside.
The Applicant said he has never been regarded as a person of interest nor has he been questioned by the authorities in relation to Haisem's activities. He is one of six children; other than Haisem, all his siblings are hard-working law-abiding citizens. There have been no concerns or suspicions about any of them, nor, to his knowledge, have any been questioned by the authorities. Haisem, acted of his own accord, without the knowledge of his family, he wrote, as did the Applicant's parents. They also wrote how the whole family had been 'shaken' by Haisem's activities. His siblings wrote that Haisem's arrest had been a 'great shock' to the family.
Before his arrest, Haisem was living in country NSW, some 350 kms away from where he, the Applicant, lives. According to the Applicant's parents and Haisem's wife, the move occurred in 2012. Haisem's wife wrote that, even before that time Haisem had always lived a 'secluded life' and, since they moved to the country, they had limited interaction with the greater family living in Sydney; she and the children would visit but her husband would usually not.
Haisem, the Applicant said, had no knowledge of where the Applicant's firearms are stored - they are not at the Applicant's home - making it impossible for him to gain access to them. To his knowledge, Haisem has never shown interest in firearms or hunting as a sport, nor has he ever applied for or held a licence. His parents and siblings wrote that none of the family knows where the Applicant stores his firearms.
The Applicant wrote that he found it extremely upsetting that his brother's actions could affect his, the Applicant's, firearms licence, especially given that his brother is behind bars, and has been now for several years. The Applicant submitted that he is constantly having to defend himself and this has taken a financial toll on his family and impacted his livelihood and his professional life as his impeccable character is now questioned by work administrators, work colleagues, club members, acquaintances and friends.
The Applicant submitted to the effect that, in granting his licence, Police had conducted relevant background checks, and no issue had been raised when his initial licence was granted in 2003, nor, more recently, in 2015.
The Applicant works as a contractor in the field of renewable energy. He wrote that he has travelled all over the state, and his workload is quite demanding and consists of providing services to both residential and commercial properties such as factories, businesses and schools. He has also worked on rural properties in country NSW.
He has, he said, always been regarded as a professional, trustworthy and responsible individual. He wrote that the safety of the community and general public, has always been paramount. He wrote that he understands the huge responsibility that comes with a licence and has made every effort to ensure that all safety precautions were followed and regulations adhered to.

Applicant's traffic record

The Respondent submitted that the Applicant has a poor and very lengthy traffic record which indicates a disregard for a regulatory scheme aimed at ensuring public safety. Relevantly, the Applicant has committed 26 driving offences since his driver's licence was issued in 1992, including:

In 1995, the Applicant was disqualified from holding a drivers licence following a conviction for driving in a manner dangerous. The Applicant was subsequently convicted for driving whilst his licence was disqualified.
In 2007 and 2015 the Applicant's Driver Licence was suspended due to the number of demerit points accrued.
In October 2019, the Applicant was issued an unrestricted licence. In the 14 months since, the Applicant has committed three further traffic offences, the most recent of which was on 7 May 2020.

I accept that the Applicant's history of traffic offences shows some disregard for another regulatory scheme which aims at ensuring public safety: see Tannous v Commissioner of Police [2011] NSWAT 116); Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, SM Scahill at [81]. Many of the Applicant's offences however predated the issue of his (successive) licence(s) and hence, should have been known to Police at the time his firearms licence was issued. As the Applicant correctly points out, his traffic infringements did not hinder his firearms licence applications.

"the public interest"

The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The Applicant's genuine reason for holding a licence is for 'recreational hunting/vermin control' and he produced a letter of authority to hunt for vermin on a property in rural NSW (which, incidentally, is some hours' drive from where Haisem lived). The Applicant's siblings describe hunting as the Applicant's "passion". Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include 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 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest.
Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was also a case on the "fit and proper person" test, I observe though that the principle in Ward has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
In Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that, only real and appreciable risk needs to be taken into account and that minimal, fanciful or theoretical risk can be excluded from consideration. I do not agree with the Respondent's concerns.
The Respondent submitted that the Applicant had sought to minimise his relationship with his brother, Haisem. In particular, the Applicant stated their relationship as youngsters was quite distant, and this carried through to their adult life and that they drifted even further apart when Haisem decided to move his family to the country. He described the relationship as "an official one at best with virtually no association" and, due to Haisem's location and personal nature was "virtually non-existent or very distant". (Applicant's emphases).
The Respondent produced records from the Department of Corrective Services which show that, since his brother was taken into custody in March 2017, the Applicant visited him on 12 occasions - 10 at the Metropolitan Remand & Reception Centre at Silverwater and twice at the High-Risk Management Correctional Centre at Goulburn (Supermax). In addition, the Applicant was quoted in a Sydney Morning Herald article relating to Haisem's sentencing as saying he did not believe his brother had been radicalized and, expressed concern that, having disavowed ISIS, his brother was likely to be at risk in Supermax.
The Respondent conceded that, it is not unusual that a family member might support another family member during court proceedings and throughout a period of imprisonment. It was contended though that the Applicant's visits to his brother and the public statements appear "opposite" to the way in which the Applicant sought to categorise his relationship with Haisem. The Respondent submitted that the Applicant has been less than fully frank with the Tribunal in his depiction of their relationship, and observed that, in considering the public interest, the Tribunal may have regard to the candour and frankness of an Applicant: DMC v Commissioner of Police [2018] NSWCATAD 219 at [57] - [60]. However, the evidence from other family members is consistent with the Applicant's evidence of a very limited relationship with Haisem. Haisem, on the evidence, had little to do with the family at all. There was no evidence whatsoever of any history of intimidation, coercion, aggression or violence on Haisem's part towards the Applicant.
According to Haisem's wife, the Applicant has assisted her and her children since his brother's arrest. His brother-in-law wrote of the Applicant having rushed to the aid of his family when Haisem was arrested and provided "the strength and support they needed". I consider the Applicant's attendance upon his brother and his statements reported in the press are consistent with his support of his brother and his family in time of family crisis.
Recently, in Ryan v Commissioner of Police [2021] NSWCATAD 23 I considered the Applicant's domestic circumstances, especially including her partner's criminal history, her own criminal history, and, to a lesser extent, her lengthy traffic infringement record, could not result in a conclusion that there is virtually no risk to public safety. In the present matter, apart from the Applicant's lengthy traffic infringement record, he has no criminal history whatsoever. Relevantly, in Ryan the Applicant's partner, with whom she resided, had a lengthy serious criminal history, including being charged with more serious offences shortly prior to the matter being heard. Here, the Applicant's brother is in gaol, where he will remain for some years, and, in any event, does not know where the Applicant's firearms are stored. Most importantly, there was no evidence whatsoever, that the Applicant shared or even condoned his brother's extremist views.
The Applicant observed that Haisem was held on remand for 2½ years before the decision to suspend, and then revoke, the Applicant's licence was made. If his connection to his brother had been a concern, let alone a "significant concern" as described in the original decision and then labelled an "unacceptable risk" in the internal review, one would expect it would not have taken approximately 2½ years for the Applicant's position in relation to firearms to be flagged.
I do not consider there to be a real and appreciable risk. The Respondent's position relies on a theoretical risk based primarily on the Applicant's visits to his brother and the general family association.

Character references

The Applicant provided a number of character references from family, friends, business associates and other hunters. The Respondent contended, correctly, that in considering character references the Tribunal must approach them with caution if they do not indicate knowledge of an Applicant's past offences or negative history: Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [40]. While the principle is correct, it is difficult to see, how, as the Respondent submitted, the character references are of the type that require caution and should be given little weight. In this matter the Applicant has no relevant "past offences or negative history".
The Applicant was recorded by Ahmed Dannoun, as having been a volunteer in the local community for approximately 8 years and would volunteer weekly to youth group services. Khaled El Hage also wrote of the Applicant's giving motivational talks to 'troubled youth'. One such young person was Ibrahim Tabbah, who considered the Applicant to be a role model. Mohammed Baghdadi wrote of the Applicant providing guidance.
A number of referees who knew him through his hunting activities wrote of his dedication to safety matters, not only in respect of himself, but by those with whom he organized hunting trips.

Conclusion in relation to public interest

In summary the Respondent submitted that I should be satisfied that it is not in the public interest for the Applicant to hold a firearms licence having regard to Applicant's relationship with a person convicted of a terrorism related offence, the Applicant's lack of candour and the Applicant's poor traffic record. I have addressed these contentions above. The Applicant has an unblemished record in relation to firearms and a high reputation in the community and shooting circles.
The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant not to hold the firearms licence.

Ground 2: Exercise continuous and responsible control over firearms: s 24(2)(a) and s 11(4)(c) of the Act

The Applicant contended that the revocation of his licence because of the connection with his brother, had contributed towards an unfortunate turn of events, namely, that on 10 September 2020, due to a lack of concentration because of "the disruptions and stresses which [he had] endured, resulted in a work accident in which he suffered a "life altering fall". He was admitted to hospital for multiple injuries to both legs and underwent 2 difficult surgeries, spending several weeks in hospital, and was confined to a wheelchair for some weeks. During that time, he received the internal review decision which, he said, increased his feelings of depression. He claimed these pressures and unwarranted attacks by the Department had caused his self-esteem and confidence to plummet, affecting his recovery and mental wellbeing. It is his belief, that if it had not been for the random audit/review conducted by the Firearms Registry of all NSW licence holders in his local area, concerns about his licence and the connection to his brother would not have been raised.
The Respondent submitted, and I accept, that the Applicant acknowledged that a lack of concentration caused him to fall from a ladder resulting in a serious workplace injury, and that his mental wellbeing has been affected by stress.
Section 11(4) of the Act requires the Tribunal to determine whether there is "reasonable cause to believe" that the Applicant may not personally exercise continuous and responsible control over firearms because of one of the factors specified. In EEN v Commissioner of Police, NSW Police Force [2020] NSWCATAD 87 at [83] the Tribunal, in considering the term "reasonable cause to believe" referred to Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013, and determined that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the relevant matters set out in s 11(4) of the Act, in forming a view whether the Applicant may not personally exercise continuous and responsible control over his firearm. The Respondent submitted that there were objective grounds supporting a belief that the Applicant may not exercise continuous and responsible control over firearms.
In Fisher v Commissioner of Police [2019] NSWCATAD 239 at [66] Professor Walker, SM referred to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, and wrote that the obligation in s 11(4)(c) to refuse to issue (and, by reason of s 24(2)(a), the discretionary power to revoke) a licence is contingent only on the Commissioner, and hence the Tribunal on review, having "reasonable cause to believe that the person is of unsound mind" and does not require that the information giving rise to the belief be supplied by a health professional. To this, I might add though, that some medical evidence upon which to base a finding would assist a consideration. The Respondent invited the Applicant to provide material which might clarify his mental wellbeing and the circumstances around the fall from the ladder. The Applicant declined to provide any further material; there is no obligation on him to do so.
The Respondent relied on Kotulski v Attard (1981) 1 NSWLR 115 at 118 where (unsound mind was) "meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise will power to control physical acts in accordance with rational judgment".
In Cross v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 26 Senior Member Walker summarised the relevant principles for consideration of the term "unsound mind" as used in s 11(4) of the Act: 43. While the term "unsound mind" is not defined in the Act, the tribunal explained the meaning of the phrase in the context of applying s 11(4)(c) of the Act in Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185: 22 In interpreting the phrase "unsound mind" the ordinary grammatical meaning of the phrase must be applied. "Unsound" is defined in the Macquarie Dictionary, 3rd edition, The Macquarie Library, as "not sound; diseased, as the body or mind."… 44. In Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315, [57], I observed that Sweet's adoption of the standard "incapable of managing his affairs as a reasonable man would do" appears to set a rather high bar, suggesting a mental condition causing a far-reaching extent of mental incapacitation. 45. In Sweet the tribunal went on to say that the term " unsound mind " must be interpreted in light of the Act's overriding principle as set out in s 3(1)(a) of firearms possession and use being conditional on the need to ensure public safety. "To be of 'unsound mind' a person's mental condition must at least have the potential to put public safety at risk if that person has the possession or use of a firearm" (at [26] - [27]).
As it stands, there was no evidence whatsoever that the Applicant has a mental health condition, such evidence as refers to his mental health does not suggest that his condition has the potential to put public safety at risk if he has the possession or use of a firearm, such that he could be regarded as being "of unsound mind": Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185; AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5. Indeed, the Applicant's own position is that the fall from a ladder was due to his lack of concentration. In my view it does not follow that because the Applicant had a work-place accident caused by a lack of concentration that he is of "unsound mind".
One of the principles of the Act, as set out in s 3(1)(a), is to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. The term 'unsound mind' must be interpreted in the context of this principle. The evidence does not support an objective belief that the Applicant's lack of concentration, and general mental wellbeing has the potential to put public safety at risk if he has possession or use of a firearm.
The Respondent submitted that the Applicant's mental and physical health concerns arose following the suspension of his licence. There is no evidence the Applicant had ever misused firearms prior to the suspension. The Respondent submitted that as he has not had access to firearms since the onset of the medical conditions his prior appropriate use of firearms carries less weight. I do not think this is an appropriate observation. When considering future risk, the Tribunal must consider the past conduct of the Applicant as a significant guide: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].

CONCLUSION

The objectives and principles of the Act make it clear that public safety is the primary consideration in any matter and the public interest overrides any private interest that the Applicant may have with respect to the possession and use of firearms for recreation. I have not accepted that the Applicant has been less than fully frank in respect of the categorisation of the relationship he has with his brother who was sentenced for a serious terrorism related offence. I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant not to hold the firearms licence.
I have also not accepted that there is reasonable cause to believe the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant being of unsound mind.
In the circumstances I am satisfied that it is in the public interest for the Applicant to hold a licence and am satisfied that there is virtually no risk, should the Applicant be again given the privilege of a firearms licence. Further, there is no basis to exclude the Applicant from holding a firearms licence on the basis of his being of unsound mind.
I observe that, had the Applicant's firearm licence not been revoked, the licence would, in any event, have expired on 21 May 2020. Neither the Respondent nor the Tribunal has the power to reissue an expired licence: Sawires v Commissioner of Police [2010] NSWADTAP 68 at [12]. The Applicant referred to a press report to the effect that the Minister for Agriculture and Western NSW had announced on 6 May 2020 that all NSW hunters who held a Restricted Licence (R-Licence) had the duration of their licences extended after recreational hunting areas in State Forests were closed to reduce the spread of COVID-19. I accept that this may be the case, but the Applicant does not have a Restricted Licence, and no such extension has been announced by the Minister in relation to AB licences.
The practical effect of this decision is that the Applicant will need to make a fresh application for a firearms licence. The Applicant observed that a fresh application would require him to disclose that he had previously had his firearms licence suspended. He speculated that by answering 'Yes', an application is highly unlikely to be approved. I do not know if this is accurate, but I can understand, given the circumstances of the suspension and revocation, that the Applicant has a genuine concern that this may occur. In any future application by the Applicant for a firearms licence it would be appropriate that the Respondent take into account this decision.

Decision AND ORDER

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 New South Wales Civil and Administrative Tribunal. Registrar 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: 23 April 2021

Outcomeappellant

Disposition:

Decision under review set aside. The revocation of the Applicant's firearms licence was not justified on either public interest or unsound mind grounds. However, the licence had expired on 21 May 2020, so the Tribunal could not reissue it; the Applicant must make a fresh application.

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