Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bashir v Transport for NSW [2023] NSWCATOD 18 Hearing dates: 15 June 2022 Date of orders: 27 February 2023 Decision date: 27 February 2023 Jurisdiction: Occupational Division Before: S Montgomery, Senior Member Decision: 1. The decision under review is set aside. 2. The decision is made that the application for a bus driver authority is granted. Catchwords: ADMINISTRATIVE LAW – licensing – passenger transport – bus driver authority – criminal record – repute – fit and proper person. Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Passenger Transport Act 1990 Passenger Transport (General) Regulation 2017 Cases Cited: Armani v Director-General, Department of Transport [1999] NSWADT 20 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 Honyandari v Transport for New South Wales [2021] NSWCATOD 117 Keane v Roads and Maritime Services [2015] NSWCATAD 114, [53] McDonald v Director-General of Social Security (1984) 1 FCR 354 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320 Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 Texts Cited: Nil Category: Principal judgment Parties: Kumar Bashir (Applicant) Transport for NSW (Respondent) Representation: Solicitors: Applicant (Self-represented) Transport for NSW (Respondent) File Number(s): 2022/00101184 Publication restriction: Nil Reasons for Decision Introduction 1. This is an application by Mr Kumar Bashir ("the Applicant") for review of a decision by Transport for NSW ("the Respondent" or "TfNSW") to refuse Mr Bashir's application for a bus driver authority under the Passenger Transport Act 1990 ("PT Act"). The decision to refuse the licence application was primarily based on view that, because of the Applicant's criminal record, the Respondent could not attest that the Applicant is a fit and proper person or a person of good repute for the purposes of the PT Act. 2. In the reasons for the decision, a delegated officer of the Respondent stated This assessment of your repute, fitness and propriety is taken from the perspective of the public, and determined objectively by TfNSW on the basis of the facts listed above and in light of the role that you are seeking to undertake. Your recent criminal offences reflect negatively on your moral integrity and character and has led TfNSW to conclude that you cannot be safely entrusted with the responsibilities to drive a bus or to safely convey public passengers. On receipt of your application, criminal and traffic history checks were obtained where it was identified that on 18 October 2018, you were convicted for the offences of 'Dishonestly obtain financial advantage by deception - T1 (3 counts)', resulting in 3 year 1 month imprisonment commencing 17 July 2019 concluding 16 August 2022 non-parole period 1 year 3 months commencing 17 July 2019 concluding 16 October 2020, 'Deal with identity info to commit etc indictable offence -T1 (3 counts) resulting in the matter taken into account on Form V and 'Dishonestly obtain financial advantage etc by deception - T1 (attempt to commit offence under this act)', resulting in 1 year 9 month imprisonment commencing 18 October 2018 concluding 17 July 2020 at Downing Centre District Local Court. These recent convictions are of serious concern to TfNSW. Community confidence in public transportation demands that drivers behave appropriately at all times, allowing the public to have full confidence in their safety and wellbeing. These offences demonstrate a pattern of dishonesty which reflects poorly on your character and reputation within the community. These offences cast doubt that you are a 'fit and proper person' or a person of 'good repute' for the purposes of the Passenger Transport Act 1990 and 2014. TfNSW notes that you were recently imposed with an imprisonment of 3 years and 1 month commencing 17 July 2019 concluding 16 August 2022 with non-parole period of 1 year and 3 months commencing 17 July 2019 concluding 16 October 2020. The fact that you were imposed with a 3 year and 1 month imprisonment reflects the seriousness of the offences. TfNSW is guided by the time imposed by the courts to determine whether you can demonstrate a change in your unacceptable behaviour and attest to your fitness and propriety and has determined that not enough time has lapsed since your offence to demonstrate a change in your unacceptable behaviour. In addition, in the last 5 years, you were infringed for the offence of 'Exceed speed limit' and 'Not stop at red arrow' offences. These traffic offences also cast doubt that you possess sufficient responsibility and aptitude to convey public passengers safely, in accordance with the law and custom of NSW. In view of your recent criminal history, a current parole period which does not expire until 16 August 2022, TfNSW cannot attest that you are a fit and proper person or a person of good repute for the purposes of the Passenger Transport Act 1990 and 2014. Based on the above facts and law, the determination has been made to refuse your application for a bus driver authority. 1. The decision to refuse the application was affirmed on a similar basis and the Applicant has applied to the Tribunal for external review of that decision. Relevant Legislation 1. The objects of the PT Act 1990 set out in section 4 include: (e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services 1. Section 12 of the PT Act relevantly provides: 12 Criteria and procedure (1) Having regard to the purpose of an authority, TfNSW may grant authorities to persons applying for them. (2) Applicants must meet any criteria set forth in the regulations and must satisfy TfNSW as to any matter TfNSW considers relevant. (3) Procedures for the purposes of this section may be settled by TfNSW, subject to any provision in that behalf made by the regulations. 1. Section 11 of the PT Act provides: 11 Authorities (1) A person who drives a public passenger vehicle (other than a ferry) is guilty of an offence unless the person is the holder of an appropriate authority under this Division. Maximum penalty: 100 penalty units. (2) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated, and (ii) in accordance with law and custom. (3) The regulations may create categories or grades of authority. 1. Section 52 of the PT Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act"). 2. 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 then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent, and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28]-[30], [34]. 3. Section 11(2) of the PT Act provides that an authority can only be granted if it is possible to "attest" that the person is "of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle". 4. In Honyandari v Transport for New South Wales [2021] NSWCATOD 117, Senior Member Walker considered a number of authorities that are relevant to the issues in this matter from paragraph [39] of his decision. 5. The issue in this application is whether the Respondent (and therefore this Tribunal) is able to attest that the Applicant is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. 6. An authority can be granted only if it is possible to attest that the Applicant is "of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle". As the Appeal Panel noted in Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at paragraph [12]: The first point to note is the use of the word 'attest'. The primary meaning of this word is 'to bear witness to; certify; declare to be correct, true or genuine; declare to the truth of, in words or writing: especially in an official capacity' (Macquarie Dictionary, 4th ed. 2005). The Parliament, in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust. While this is true of all licensing, the word gives special emphasis to it in the present context. 1. In Farquharson v Director General, Department of Transport [1999] NSWADT 53 the Tribunal's President stated at paragraph [27]: The concepts of "good repute" and "fit and proper character" involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J). 1. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Waddell J stated at 393 said: "A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession". 1. In Honyandari v Transport for New South Wales Senior Member Walker stated: 43. A history of convictions does not itself constitute prima facie evidence of bad repute. It does, however, create a presumption that the person has, among those who know of that history, a bad reputation. It places the onus on the person to establish his or her good reputation ... The difference may be a subtle one, but it is to be given effect to. Whether community members know about the less savoury aspects of the person's past is relevant: "Whether the person's criminal history is known in the community will be a factor in assessing what weight to give to the evidence of repute …. It does not, however, appear to be conclusive. 44. Evidence of a person's repute comes from people who can say what a "specific group of people" think of the person. A person may hold a position in the community from which it is reasonable to infer that the person is well regarded: at [32]. 45. Having a criminal record is not necessarily an absolute and permanent bar to a finding that an applicant is of good repute and a fit and proper person to hold an authority. In Armani v Director-General, Department of Transport [1999] NSWADT 20, the tribunal when setting aside a refusal of a taxicab authority stressed the need for a balancing of the positive and negative aspects of the applicant's record, including evidence of contrition and of a determination to make a new start. 46. In Saadieh [v Director-General, Department of Transport [1999] NSWADT 68], Hennessy DP pointed out that "being a 'fit and proper person' includes being of 'good repute'" (at [12]). At [17] her Honour listed five factors to be considered on the question of suitability in such cases: * The nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; * The nature, seriousness and frequency of any complaints made against the applicant; * The applicant's driving record; * The applicant's reputation in the community; and * The likelihood that the applicant will reoffend, be the subject of further complaints or commit further traffic offences. 47. The tribunal then added (at [18]), "In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers". 48. Also relevant, as was stated in Keane v Roads and Maritime Services [2015] NSWCATAD 114, [53] where a refusal was set aside, is whether the offences related to taxi (or, by analogy, bus) driving and whether they involved any sexual misconduct: see also Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320, [14]. On the other hand the court in the latter case noted that conduct not occurring in the course of the respondent's professional activities could, if sustained over a long period, show a systematic non-compliance with legal and civic obligations. The application to strike the practitioner off the roll was, however, dismissed. 1. The approach taken in Saadieh has been followed in numerous cases before this Tribunal and the former Administrative Decisions Tribunal. The Respondent's case 1. As noted, the Respondent points to the Applicant's criminal history and traffic offences. 2. It is not in dispute that in 2018 the Applicant was convicted of a number of serious fraud offences. He was convicted by the District Court of two offences of 'Dishonestly obtain financial advantage by deception' and one further count of 'attempting' to commit this offence. The offences occurred in 2015. 3. The Applicant was sentenced to a term of imprisonment of 3 years and 1 month commencing 17 July 2019 and concluding 16 August 2022. The non-parole period was 1 year and 3 months, concluding on 16 October 2020. 4. The Applicant was further sentenced to a term of imprisonment of 1 year and 11 months commencing on 18 October 2018 and concluding on 17 September 2020. 5. On the 'attempt' offence the Applicant was sentenced to a term of imprisonment of 1 year and 9 months commencing on 18 October 2018 and concluding on 17 July 2020. 6. Additionally, when sentencing the Applicant for these offences the Court considered three offences of 'Deal with identity information to commit an indictable offence' and a further offence of 'Dishonestly obtain financial advantage by deception'. 7. The Respondent submits that these offences carry significant weight on the question of whether the Applicant is of good repute and is fit and proper in all other respects. They are 'dishonesty' offences and are directly related to the moral integrity and trustworthiness of the Applicant. The Respondent further submits that the objective seriousness of these offences was significantly high, as is reflected in the penalty imposed by the court. 8. The Respondent contends that the Tribunal can take the length of the sentence into consideration in assessing the fitness and propriety of the Applicant. 9. At the time of hearing the Applicant was still on parole. The main purpose of parole is to allow offenders to have a period of structured supervision on release from prison to reduce their risk of reoffending and protect community safety. That period has now expired. There is no suggestion that the Applicant failed to satisfy any conditions of his parole. 10. The Respondent also points to Penalty Notices for the offences of 'exceed speed limit by not more than 10 km/h and 'not stop at red arrow'. Both offences occurred in the past 5 years. The Respondent submits that the Applicant failed to declare the 'not stop at red arrow' offence and that the failure to declare the offence is a matter relevant to the Applicant's honesty and trustworthiness. However, it conceded that the Applicant's overall driving history of the Applicant does not demonstrate a persistent disregard of the road rules. Respondent's Submissions 1. The Respondent submits that offences involving dishonesty such as the fraud convictions of the Applicant are relevant to the determination of a person's fitness. The Tribunal must take into consideration the nature of the offence and the interests of the public in ensuring that people who are issued with a bus driver authority are able to comply with prescribed standards. 2. The Respondent submits that, by virtue of the fraud convictions, the Applicant is not possessed of sufficient moral integrity and rectitude of character to permit him to be safely accredited to the public. The evidence of conviction for a criminal offence creates a presumption that the person has a bad reputation and places an onus on the person to establish a good reputation. 3. The Respondent submits that the mere passage of time is not sufficient to prove reformation. The Tribunal cannot make a value judgement without a full and frank disclosure of the entirety of the matters that form part of the Applicant's criminal record such that there is a demonstration of understanding and recognition of the wrongdoing. The only explanation to be found in the Applicant's written submissions is: "Though my actions could have been avoided by seeking help from relatives during a very difficult time, our family house was about to be repossessed, my wife was not able to work due to health and daughter was in the process of seeking full time occupation, under those hard circumstances I followed instructions of a finance broker and signed documents which I knew was false and fraud" 1. Initially the Applicant was charged with a total of 41 fraud related offences. Those 41 charges were reduced to 31 to be heard on indictment in the District Court. The Respondent submits that a total of 41 charges is a significantly high number, and the Applicant did not readily acknowledge that fact with any clarity in the hearing. The Tribunal could not be satisfied that the Applicant has been completely candid in his responses. 2. The Respondent submits that the Applicant played a major role in each of the acts of deception. He received a total of $147,000. The Applicant's explanation of his level of involvement in the offences was not consistent with this. 3. The Respondent submits that there has been, at all times, a down-playing of the role that the Applicant played in this fraud, and such a position is not consistent with the significant term of imprisonment and parole period. 4. The Respondent submits that the entire course of conduct seriously affects the Applicant's good repute. 5. Furthermore, the Respondent submits that the Applicant's character references do not cure the question of whether the Applicant is of good repute and in all other respects a fit and proper person. The authors do not attest to a full knowledge of the seriousness of the Applicant's conduct and whether he has truly reformed. The Respondent submits, that the Tribunal could not find there is evidence of reformation of character. 6. The Tribunal must consider the perception of the travelling public as relevant to the concept of good repute. The holder of a bus driver authority will be working in a regulated industry and the requirement to be honest and candid with the Regulator is a crucial aspect of this. 7. The question for the Tribunal is whether it can be assured and whether it can attest that the Applicant is now of good repute and in all other respects a fit and proper person - particularly in terms of honesty. 8. Accordingly, the Respondent submits that the correct and preferrable decision is for the Tribunal to affirm the Respondent's decision to refuse the Applicant's application for a bus driver authority. The Applicant's case 1. The Applicant attended the hearing and gave evidence. He also provided written submissions and a number of references in support of his case. 2. He does not dispute that he has been convicted of fraud offences. He also indicated that he has accepted responsibility for those offences. However, he pointed out that whilst the record shows different offences, they all related to one event. He does not accept that the offences demonstrate a pattern of dishonesty. He also noted that it was his first and only offence. 3. The Applicant's evidence is that each of his referees is aware of the fact that he was convicted of fraud offences. 4. In regard to the offences, he stated: I was charged with offences in 2015, since then I have been living with remorse and repentance which had a significant impact not only on me but most importantly on my family. I have no words to express my regret and hurt. Though my actions could have been avoided by seeking help from relatives during a very difficult time, our family house was about to be repossessed, my wife was not able to work due to health and daughter was in the process of seeking full time occupation. Under those hard circumstances I followed instructions of a finance broker and signed documents which I knew was false and fraud. I did not seek help and ended up in jail and carried all the consequences and pain. I learned a lesson in a harsh way and looking forward to leading a reputable and honest life among community and friends and committed to living an honest and law-abiding future. 1. He maintains that he has served his sentences and has been rehabilitated. He also accepted responsibility for the traffic offences. However, he noted that the speeding offence was for travelling at only 4km over the speed limit. He also noted that the 'not stopped at red arrow' infringement occurred on 05 September 2017, not 2018. 2. In regard to the question of his rehabilitation he stated: While considering my appeal please take into consideration that I am rehabilitated and ready to serve community, 7 years of suffering has given me different direction in life which is to be honest and truthful to everyone in community and be committed to doing everything within the law. I have never been in trouble with the law except in this situation. I have also proven to corrective services that I am honest, reliable and dependable and committed. I have completed several courses as part of my rehabilitation while I was in detention. I have attached those achievements; also note, I am currently doing supply chain management course. I was employed as kitchen clerk to perform the daily duties within the correctional centre and the officer had full confidence and trust in me to carry out normal duties with minimal supervision. … I made a mistake, and it is unacceptable. I was humiliated by my actions and family was put in a shameful and difficult situation which I regret and sorry and wish it hadn't happened. … I have accepted my unacceptable behaviour and I am remorseful and rehabilitated. I am regretful and sorry for my irresponsible actions and assure you that I will be a person of good behaviour and a great asset to any employer. 1. In support of his application, he further noted: * his parole period finished on 16 August 2022. He contends that enough time has been spent to show that he is rehabilitated and ready to serve the community. * He has suffered embarrassment and shame from 2015 when he was charged. Seven years is a long time for one to accept responsibility and be rehabilitated. He is remorseful and repentant for his actions. * Transport for NSW officials took information on face value and passed a judgment on the assumption that he will be a bad repute and not a fit and proper person. * He contends that his criminal record does not justify the decision, as this was concluded without assessing the time lapsed and other relevant documents such as work readiness report, qualifications that he attained, his previous occupations in management level and the fact that he was classified as low risk offender and therefore he was not supervised. * He was issued with a working with children clearance as he is not considered as a threat to society. * He does not see any risk in his driving a bus as he does not see the relevance of fraud to driving a bus. * It is not an inherent requirement to have no criminal conviction to drive a bus. * He contends that he is a person with responsibility and a person of remorse and repentant. He is not a threat to society and he is a person with education who can contribute value to the community. Discussion 1. The Tribunal must balance the seriousness of the Applicant's fraud offences against any evidence of contrition and reformation of character. The Applicant must demonstrate an understanding and recognition of his wrongdoing. The Administrative Decisions Tribunal summarised the approach to be adopted in Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 at paragraph [15]: The issue of whether a person is fit and proper in the light of past criminal conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation. 1. As noted above, the decision in Saadieh set out a number of factors that need to be considered in determining a person's suitability and fitness to obtain a taxi authority. These factors are not exhaustive and are equally applicable to an application for a bus driver authority. 2. In regard to the Saadieh factors, there can be no dispute that the fraud offences are serious in nature. The penalty that was imposed places this beyond doubt. However, I accept that the convictions relate to a single event. The sentence was served without issue and there is no suggestion that the Applicant has committed any other criminal offences. There are no complaints made against the Applicant. It appears that with the exception of the fraud offences and minor traffic infringements, the Applicant has an unblemished record. 3. In my view, the Applicant's driving record is not such that it should prevent him from holding the authority that he is seeking. I do not think that the failure to notify of the 'not stopped at red arrow' infringement was intended to mislead the Respondent. I do not think that this failure is likely to be repeated. 4. Similarly, I do not think that his failure to identify the 41 different charges was intended to mislead. It is apparent that he regarded the offences as all relating to the one event and he has accepted responsibility for his conduct. 5. The Applicant's references suggest that his reputation in the community is positive. I am satisfied that the authors of the references that have been provided are aware of the Applicant's convictions and the sentence that he served, and they nevertheless hold him in high regard. 6. On the material that is before me, I have formed the view that the likelihood that the Applicant will re-offend is low. 7. I am satisfied that sufficient time has passed since his offences were committed to allow me to attest that the Applicant is of good repute and otherwise fit and proper to drive a bus. 8. That being the case, the correct and preferable decision is to set aside the Respondent's decision to refuse the Applicant's application for a bus driver authority. In its place, the decision is made that the application is granted. Order 1. The decision under review is set aside. 2. The decision is made that the application is granted. ********** 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: 27 February 2023