Azis v Ministry of Transport [2004] NSWADT 91

CITATION: Azis v Ministry of Transport [2004] NSWADT 91 DIVISION: General Division APPLICANT Asril Azis PARTIES: RESPONDENT Director General, Ministry of Transport

FILE NUMBER: 033320 HEARING DATES: 05/12/2003 SUBMISSIONS CLOSED: 01/30/2004 DATE OF DECISION: 05/13/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 CASES CITED: Maythisathit v Registrar of Motor Vehicles (1996) ACT 165 McDonald v Director General of Social Security (1984) 1 FCR 354 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: The decision of the Director General, Ministry of Transport to cancel the Taxi driver authority held by Mr Azis is set aside.

REASONS FOR DECISION Background 1 Mr. Asril Azis held taxi-cab driver authority number AK4817 ("the authority") under the Passenger Transport Act 1990 ("the Act"). By a Notice of Decision dated 10 October 2003 a delegate of the Director-General of the Ministry of Transport ("the Director-General") advised Mr Azis that the Ministry of Transport ("the Ministry") had determined to cancel his authority to drive taxi-cabs in New South Wales. On 6 November 2003 Mr Azis made an application for an Internal Review of the decision. The Ministry's decision to cancel the authority was affirmed by the Internal Review. 2 Mr. Azis was notified of the Internal Review decision by letter dated 10 November 2003. The reasons for the decision to cancel Mr. Azis's authority were set out in the statement of reasons attached to that notice. Those reasons stated: " The Department of Transport has a continuing obligation and commitment under the Passenger Transport Act 1990, to ensure only persons of good repute who are considered to be fit and proper, have sufficient responsibility and aptitude, hold an authority to drive a public passenger vehicle. I have very carefully considered all the material relied upon to cancel your authority to drive taxi-cabs. I have also very carefully considered your application for an Internal Review and the contents of your letter dated 6 November 2003. However, I find the nature and circumstances of the actions resulting in your criminal convictions to be of such a serious nature that a reasonable member of the travelling public would not be comfortable travelling alone in a taxi driven by you if they were aware of your convictions. A taxi driver can be placed in a confrontational situation while carrying out his/her required duties and is expected to manage these situations without resorting to violence. Your convictions demonstrate that you may have a tendency towards violence rather than the ability to avoid such situations. The Facts Sheet provided by the NSW Police Service shows that you actually chased the victim prior to striking him on the head from behind and leaving him unconscious. These are not the actions of a responsible person. I cannot attest that you are fit and proper and have sufficient responsibility to hold an authority to drive taxis." 3 Mr Azis applied to the Tribunal for a review of the Director-General's decision. Nature of proceedings 4 The issue for this Tribunal is: what is the correct and preferable decision? The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 5 These are not adversarial proceedings in which Mr. Azis carries an onus of proof. Mr. Azis, by making the application, triggers a process of merits review by the Tribunal. Mr. Azis does not take on the responsibility of having to prove a case, nor does he cause the Director General to have to prove a case. Mr. Azis and the Director General are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 6 Section 63(1) of the ADT Act provides: "63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. 2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.(3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." 7 The Tribunal makes its own decision in place of the Director General's, and there is no presumption that the decision of the Director General is correct: (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357). 8 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities: (McDonald at 357). Applicable Legislation 9 The Act sets out the applicable law. Division 5 in Part 4 of the Act makes provision for authorisation to drive taxi-cabs. Section 33 of the Act provides: "33 Authorities (1) The Director-General may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver". (2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units. (3) 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 taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom." 10 Section 33F of the Act states: "33F Variation, suspension or cancellation of authority Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person's authority under this Division." Mr Azis's case 11 Mr Azis appeared at the hearing and gave evidence in support of his application. His evidence is that two events occurred in October 1999 and November 1999 and lead to his finding that he was guilty of Assault Occasioning Actual Bodily Harm, and a conviction for Malicious Wounding. His case is essentially that with the exception of those two events he has had an unblemished record as a taxi driver extending some 25 years. 12 Mr Azis's case is reasonably summarised in the letter he forwarded to the Ministry in support of his application for an Internal Review. In that letter he stated: "I think it is really unfair dismissal or cancellation The reasons are: I have been serving the public as fully pledge taxi-cab driver for the last 25 years and in my opinion I have been an exemplary and well behave taxi-cab driver during the periods of 1-21 years of driving the public. With the exception in the year 1999, I think in the month of October I have made a mistake in my judgement of the situation which occurred on Friday afternoon which is I was not proud of. And in the later month in the difference circumstances and on the same Friday afternoon situation I have struck the nearly similar situation but this time I thought I would let the authority handled the situation but to my surprised I was going to be charged for picking up the intoxicated clients instead, in this sense I was given the wrong advice by the police officer and one thing lead to the other I had made such a bad judgement that night. I think I have paid the penalty of my conduct dearly with the 250 hours of a community service and very expensive a barrister fee and sometimes in and out of the court. I have felt so remorse what I have done that year in my professional duty as a taxi-cab driver, I know the consequences of what I have done is the cancellation of the only source of income and it is my live hood as well. I do not have any other skill to do other thing else and with my age approaching 51, I do not know if I could teach myself to learn a new skill and it would be difficult to get an employment with my not so young age. As I have tried to ring up several company for an employment but I kept getting one rejection to the other in the last 3 weeks. I have been driving a taxi-cab up till the cancellation of my Authority after those 2 incidents. It has been 4 years now I have tried doing to be the very best, the well spoken, well mannered and one of the proudest cabbie of the taxi-cab industry. If I could rewind the time I would dearly love to have not made those mistakes during my professional years as a fully pledge taxi-cab driver ... With my experiences and expertise in the taxi -cab industry I would never let anyone down and I guarantee I will always be wearing my proud to be a Sydney cabbie in my heart if I was given another chance." 13 Mr Azis conceded that the offences were serious and says that he does not condone violence. However, he says that he has no natural tendency or propensity towards violence. He said that he considers that passengers are the most important people in the industry and that his usual course of conduct is to treat them as such. He said that his 1999 conduct was out of character. 14 Several testimonials were put in evidence in support of Mr Azis. The testimonials assert that the author has found Mr Azis to be of high integrity and good repute, honest, hardworking, reliable and trustworthy with a professional courteous approach to his work. Mr Azis submitted that he is of good repute and that he has demonstrated that he is a fit and proper person to be the driver of a taxi-cab. 15 With respect to the issue of his failure to bring his offences to the attention of the Ministry, Mr Azis stated that the matters had been before the Courts for the past two years and that he had acted on advice from his legal representative. He was advised that he did not need to bring the matter to the Ministry's attention because the case was still pending. He said that he had renewed his authority in January 2001 and had disclosed his conviction at that time. He said that he expected at that time that his authority would be cancelled but it was renewed. In response to the relevant question on the application form dated 11 January 2002 he has clearly responded "Yes" indicating that he had been convicted of a criminal offence. The Director General's Case 16 The Director General's case is essentially as set out in the reasons for decision referred to above. The Ministry's file relating to the authority was put in evidence. In particular, the Director General relies on the Downing Centre Local Court record, which shows that on 27 March 2000 Mr Azis was found guilty of Assault Occasioning Actual Bodily Harm, and on the Burwood Local Court record, which shows that on 9 August 2002 Mr Azis was convicted of Malicious Wounding. The Director General relies on the documents contained within the file as evidence of Mr Azis's conduct that lead to his conviction. 17 The transcript from the Parramatta District Court hearing on 25 October 2002 was also put in evidence. That transcript recounts the findings of fact made by Judge Nield in dismissing Mr Azis's appeal from the Burwood Local Court conviction and confirming a 250 hours Community Service Order. 18 Mr Wozniak argued that the purpose of an authority is to attest that the authorised person is considered to be of good repute and in all other respects fit and proper to be the driver of a taxi-cab. He asserts that Mr Azis's proven offence record indicates that he is not a person of good repute and in all other respects a fit and proper person to drive a taxi-cab. The Director-General's concern is the protection of the public not the punitive consequences of a cancellation. 19 Mr Wozniak submitted that Mr Azis's offences are directly related to his work as a taxi driver. He submitted that the Director-General is unable to attest that Mr Azis is of good repute and in all other respects fit and proper to be in charge of a taxi-cab and therefore the correct and preferable decision is to cancel his authority. 20 Mr Wozniak further submitted that Mr Azis failed to notify the Ministry of his proven offences as required under the Taxi Driver Authorisation Standards. He argued that this is evidence that he is unable operate in accordance with the conditions under which the taxi-cab service concerned is operated and in accordance with law and custom. Findings and reasons 21 I have considered all the evidence and submissions presented on behalf of each party. 22 An authority is issued pursuant to section 33 of the Act. Pursuant to section 33(3) of the Act, Mr Azis should only be accredited for the purpose of carrying on taxi-cab services if he is considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service. If Mr Azis is of good repute then it must also be considered that "in all other respects", i.e. in all respects other than his reputation, he is a fit and proper person to be responsible for the operation of a taxi-cab service. The testimonials are relevant for this purpose. 23 Whether a person is of good repute is an issue related to but different from whether a person is fit and proper for a particular purpose. Being considered to be of good repute is a threshold issue within section 33(3) of the Act. If Mr Azis is not of good repute there is no need to consider whether he is a fit and proper person to be responsible for the operation of a taxi-cab service. 24 Mr. Azis does not fail to be of good repute simply because of the Court's findings that he has committed offences. An assessment of repute is a matter for the Tribunal, weighing all the evidence. All the circumstances of the case must be taken into account in assessing a person's suitability to retain an authority: Saadieh v Director-General, Department of Transport [1999] NSWADT 68. 25 Repute is what others think. 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: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at page 393. 26 Whether a person's history is known in the community will be a factor in assessing what weight to give to the evidence of repute. A positive estimation in spite of knowledge of a blemished history would ordinarily weigh in favour of the person. A witness's opinion of Mr. Azis may be accepted as evidence of his repute, although the weight to be given to that evidence will depend on the circumstances in which the witness formed the opinion. 27 I accept the testimonials given on Mr Azis's behalf. On the basis of those testimonials I am satisfied that Mr Azis is considered to be of good repute. 28 The issue remaining in this case is therefore whether, in the light of his offences and the responsibilities and expectations of an authorised person, Mr Azis is nevertheless in all other respects a fit and proper person to be the driver of a taxi-cab. Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration." 29 In Saadieh the Tribunal's Deputy President set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors were: 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 re-offend, be the subject of further complaints or commit further traffic offences. 30 The Deputy President also noted in that case that 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. 31 In my view, these factors are equally applicable to the consideration in the present matter of whether Mr Azis is fit and proper to continue to be the driver of a taxi-cab. 32 Various Tribunal decisions have applied the test in respect of a person being of fit and proper character to hold a driver's authority defined and applied by the President of the ACT Administrative Appeals Tribunal in the matter of Maythisathit v Registrar of Motor Vehicles (1996) ACT 165. In that particular case, the test was stated to be: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi". 33 In the present circumstances that test can appropriately be applied with the relevant member of the public travelling in the taxi driven by Mr. Azis. The relevant question is therefore whether the travelling public, knowing of Mr. Azis's record, would object to Mr. Azis as the driver of a taxi-cab? 34 The nature and seriousness of Mr. Azis's 1999 offences are beyond question. I consider that the offences are irreconcilable with the role of a driver of a taxi-cab. In my view Mr. Azis's conduct has demonstrated little regard for the law or the standards applicable to a taxi driver. Notwithstanding that view, the two offences appear to have occurred within a short time of each other and it seems to me that those offences appear to be out of character. 35 Had this matter been heard at the time of the offences, the seriousness of these offences would have made it inescapable that the authority should be withdrawn. In my view, it is also significant that Mr. Azis did not bring the fact that there was a finding that he was guilty of Assault Occasioning Actual Bodily Harm to the Director General's attention. It is no excuse to say that he disclosed the finding of guilt when he renewed his authority some two years later. This ignores the clear obligation on an authorised driver to bring matters of this kind to the Director General's attention. Mr. Azis should have been aware of this obligation. 36 Nevertheless, it is necessary that I balance all the relevant factors in determining whether Mr. Azis should be able to retain his authority. I note that the offences occurred over four years ago and there has been no repetition of this conduct. I also note that Mr. Azis's Community Service Order has been satisfied. I am satisfied that Mr Azis has accepted responsibility for his actions and I am also satisfied that Mr. Azis has shown genuine remorse. Applying the Saadieh test to Mr Azis's situation, it is my view that it is unlikely that Mr. Azis will re-offend or be the subject of further complaints. Having weighed the evidence, I am satisfied that sufficient time has passed for the travelling public to be comfortable with Mr. Azis as the driver of a taxi-cab service. Accordingly, it is my view that the Director General's decision should be set aside. ORDERS The decision of the Director-General, Ministry of Transport to cancel the Taxi driver authority held by Mr. Azis is set aside.