CITATION: Khan v Director General, Ministry of Transport [2004] NSWADT 257 DIVISION: General Division APPLICANT PARTIES: Nazim Khan RESPONDENT Director General, Ministry of Transport FILE NUMBER: 043105 HEARING DATES: 04/08/2004 SUBMISSIONS CLOSED: 08/04/2004 DATE OF DECISION: 11/10/2004 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 : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 CASES CITED: McDonald v Director General of Social Security (1984) 1FCR 354 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 dirver authority held by Mr Khan is set aside. REASONS FOR DECISION Background 1 Mr. Khan has held a Taxi Driver Authority ("the Authority") under the Passenger Transport Act 1990 ("the Act") since 1990. On 16 February 2004 the Ministry of Transport ("the Ministry") issued a Notice to Show Cause to Mr. Khan as to why the Authority should not be cancelled. A Statement of Reasons was provided setting out the basis for the Notice. Those reasons outlined a series of complaints that had been lodged against Mr. Khan. 2 On 3 March 2004 Mr Khan's solicitor wrote to the Ministry in response to the Notice to Show Cause. In his letter Mr Khan's solicitor wrote: "Mr Khan arrived in Australia in 1989 from his home country hoping for a new and better life: He acquired his licence in 1990 and has been a taxi driver ever since. Later he acquired his own vehicle and is now owner and operator of his taxi vehicle. Mr Khan's whole livelihood depends on having his licence as his entire income is derived from the taxi operating business. Mr Khan is currently renting a property and has other living expenses which are met by his income from the operation of his taxi vehicle. To cancel Mr Khan's licence would be extremely prejudicial to Mr Khan's living standards. During the period of 4 June 1998 to 19 January 2000 Mr Khan had his licence cancelled at which point he suffered severe hardship caused by the fact of not being able to conduct his taxi operating business. He was forced at this time to work for Allied Pty Ltd, a courier company, where he was praised on many occasions for his professionalism and geographical knowledge. It was in fact with the positive references obtained from Allied that Mr Khan was able to reapply for his licence which was granted to him on 19 January 2000. … Summary Mr Khan is a 45 year old man who requires his licence to earn a living and to meet his daily expenses, which presently includes a payment of rent for his residency. Cancellation of his licence would impact his present living arrangements by obviously taking away his only source of income. Our client is a person who has suffered some hardship and difficulty in adjusting to the Australian culture and to the Australian way of life. Being a religious Muslim man, Mr Khan often has difficulty dealing with abusive passengers. He has acknowledged that he has this problem and if so required, he will be willing to attend counselling to overcome his difficulty in dealing with clients if he is able to retain his licence. We kindly request that you take into account the above submissions when considering the proposed cancellation of Mr Khan's license." 3 Mr Khan's solicitor included in this reply a response in relation to each of the complaints against Mr. Khan that had been referred to in the reasons provided as the basis for the Notice to Show Cause. 4 On 24 March 2004 a delegate of the Director-General took the decision to cancel Mr. Khan's Driver Authority. The decision was based on several grounds. These included a conviction at the Downing Centre Local Court on 12 June 1997 for Assault Occasioning Actual Bodily Harm for which Mr. Khan was ordered to undertake 75 hours Community Service, and a long history of complaints and other incidents dating back to 1991. 5 On 20 April 2004 Mr. Khan applied to this Tribunal for a review of the Director-General's delegate's decision. The matter came before the Tribunal's Deputy President on 27 April 2004 at which time she made an order staying the decision. That stay remains in place pending the outcome of these proceedings. Nature of proceedings 6 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). 7 These are not adversarial proceedings in which Mr. Khan carries an onus of proof. Mr. Khan, by making the application, triggers a process of merits review by the Tribunal. Mr. Khan 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. Khan 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"). 8 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." 9 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). 10 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 11 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." 12 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 Khan's case 13 Mr Khan appeared at the hearing and was subjected to cross-examination. His case is essentially as set out in written submissions in support of his application to the Tribunal. In part, his submission states: "1. I have done a self-assessment of myself and realised that I have an "allergy" to the 4 letter word which unfortunately is used so loosely in Australia. I have also realised that I cannot change the attitude and vocabulary of the people in the community in Australia or get them to conform to my way of thinking. I acknowledge that vulgar language offends me greatly and makes me angry. I have come to accept the fact that I have to do something to overcome this and adjust to the Australian culture and frequent use of the 4 letter word. Therefore I have taken positive steps to help me resolve this issues. At present I am taking "Remedial Action" by attending therapy sessions with a well qualified Psychologist to help me learn skills that will enable me to cope with abuse and aggression in my work environment. I have been attending therapy sessions with Ms. Locke since the 28th of April on a weekly basis. I feel that I have benefited immensely from these sessions. Since I was granted a stay of decision on 27/04/2004 I have been driving about 12 hours daily and have coped really well with the "ugly and rude" behaviour of my passengers. Also since attending my therapy sessions with Ms. Locke, I have learnt that by responding angrily to my abusive and aggressive passengers only gives them power to carry on the abuse because they probably get a measure of thrill and satisfaction from upsetting me. By remaining calm and collected over the last 2 months since attending therapy, I enjoy my job more, have greater job satisfaction and am a much happier person within myself. Whenever my passengers have sworn at me and abused me over the last 2 months I look at their behaviour as their problem and feel sorry for them carrying on in this manner. I no longer feel that I have to stand up to them to defend myself especially when racial slurs are made at me. I acknowledge that any job in the service industry has a measure of abuse and aggression flung at me because of the society we are living in where such anti-social behaviour has now come to be recognised as normal and acceptable. 2. Any compassionate person would agree that driving a cab is both a dangerous and stressful occupation. Taxi Drivers spend long hours on the road - 12 hours per day for very little remuneration and often get robbed of what little they have earned. We are regularly confronted with violent, drunk, aggressive and abusive passengers. Many taxi drivers have been assaulted and murdered over the years; thus the implementation of the security screens and security cameras but there is nothing to stop these passengers from being aggressive or abusive. Violence, abuse and aggression is on the increase in our society. Even Doctors and Nurses too face abuse and violence whilst trying to help the sick and injured in hospitals but at least they have security staff and Police at their disposal plus support from other staff. In fact the Government has implemented the zero tolerance policy and that those patients displaying anti-social behaviour will not be treated. As Taxi Drivers we operate as a one-man show and are left to our own fate. Sometimes when we leave home to go to work we wonder whether we will see another day or return home to see our loved ones again. Fare paying passengers have the responsibility not to swear or act in an offensive manner. Also by law we taxi drivers have the right not to transport intoxicated passengers or those who are under the influence of any substance. But it is very sad that when we attempt to put these so-called rights into practice, we are abused further and threatened that we will be reported and lose our licence. We taxi drivers have been stripped of all rights. 3. I had 8 complaints made against me over a period of 4 years which amounts to 1 complaint every 6 months. For someone who drives 12 hours a day; 6 days per week I believe that they are very few and far between. None of these complaints have been substantiated by calling for evidence from the complainants, especially when I am being interviewed by the Ministry of Transport. Therefore I have never been given an opportunity to defend myself. Also none of the complainants have indicated that they wish to pursue the matter further after the initial complaint. One therefore wonders about the motive of such complaints as to whether there is an underlying reason eg. Racial Prejudice. Also the decision made by the Ministry of Transport has been based on listening to one side of the story. As a victim, I have suffered frustration, mental anguish and psychological pain to the point of losing my only means of livelihood. I see no justice in this matter. Passengers unhappy with the taxi service can dial up a Department of Transport number to complain. Yet the Taxi Drivers have no such luxury. 4. I sincerely beg you to show me compassion and allow me another opportunity to prove myself. I acknowledge that I had a problem with responding to difficult, abusive and aggressive passengers. I decided that I had to make a conscious decision to change; thus seeking help from a qualified professional. I have seen positive changes in my behaviour. I have also learnt assertive communication skills. I realise that it is a gradual process but I can already see the benefits of the changes that I am making. My only regret is that I did not do a self-assessment sooner into my one and only problem but the principle of "better late than never" gives me some comfort. 5. In my 14 years of driving I have never been involved in fraud, over charging my passengers or taking them for a "ride". I have always been professional in my approach and earned a honest living with a clean conscience. 6. In the 14 years that I have been driving a taxi I have never had any problems with any work that I have been assigned via the radio. If I was really an aggressive and violent person, then this dark side of my personality will be reflected in all aspects of my work. 7. I have had very limited education and have no other skills besides driving a taxi. I am now 46 years old and at this age and with my level of education I will not be able to get a job and will most likely end up in the "dole" queue. I will lose all self worth and self respect. This will be both emotionally and psychologically damaging to my well-being. 8. Since being in Australia I have never ever claimed social security benefits. Coming from a country that has no welfare system in place I have been brought up to work hard and be self-sufficient. 9. I have many commitments - I have a mortgage of almost $343, 000 with monthly repayments of more than $2000. Being the eldest son, I have to provide for my sick and aged parents overseas. They are poor and have no other means of support and are unable to erk out a living. 10. I have sleepless night thinking of what will become of me if I am not given another opportunity. My whole world will collapse. Once again I humbly beg you to give me another opportunity to prove myself and continue to earn an honest living. I sincerely hope that you will allow the principle of "not punishment but rehabilitation" to rule your compassionate heart in making a decision." 14 Mr Khan also included submissions in relation to the complaints against him and submissions in relation to the circumstances that lead to his conviction. In part he submitted: "CRIMINAL CONVICTION - 12-06-1997 The incident in which I was involved happened in 1993. It was a brawl at a community gathering in which 10 people were involved and it was confined to my ethnic community. 6 of those were charged with common purpose assault. I openly told the court about my part in the criminal charge of assault occasioning bodily harm. I came forward to the police and provided evidence to the police that I was at the scene where the brawl broke out and even provided witnesses that I was at the scene but took no part in the bashing. My role in the assault has never been established. Yet I was the only one among all the taxi drivers to receive a suspension notice which was lifted soon after. I was sentenced to 75 hours of community service. Since then all the co-accused and the victims have restored our friendship and have got on with our lives as a group and not as individuals. All of the dispute has been put behind us. I felt great remorse about the offence and regret it to this day. It has now been 11 years and I have never been involved in anything of that nature since. CONCLUSION There are noted to be many inaccuracies in the documentation that is kept in the many pages of my file. One example is that in the matter of 19/12/1995 Departmental files show that there was no investigation by Blacktown Police or reprimand by Premier Cabs in respect to a complaint of sexual harassment. Why is this in my file when it has nothing to do with me? On 5-12-1997 Records show that I was driving a Combined taxi with PIN No T5422. Yet the Department admitted that I was not involved as it was not me who was driving on that occasion. Why is this included in Appendix A? On 14-01-1998 Records indicate in the Appendix A that I was interviewed by Glebe Police Station. This is not true as there was no interview nor is there any evidence of an interview. On 13-01-1998 This allegation was made by Premier Cabs; yet during this time I was driving for Combined Taxis and not Premier Cabs. I had been driving cabs for many years and in a short period of time in 1995-1998 when I was driving for Premier Cabs I had a large number of complaints with several inconsistencies. I was in conflict with the Operations Manager of Premier Cabs namely Mr Ted Robinson. Mr Ted Robinson passed on notices of complaints to the Transport Department. There is reference made in the file about conflicting statements about people making a complaint and the driver was given the benefit of the doubt. I believe Mr. Robinson of Premier Cabs tried to blame me whenever there was a problem. I was one of the only ethnic drivers who was not afraid to speak out against Mr. Robinson and I believe there was some element of racial prejudice. I further believe that I have been the victim of unsubstantiated allegations. As a night driver I have met my fair share of difficult clients. During those early hours of the morning I have to contend with passengers at their worst behaviour due to intoxication or ingestion of other things when all inhibitions are thrown to the wind and every form of abusive language and obscene jesting is carried out. My authority to drive was cancelled in June 1998 because of the above allegations without calling for any of the complainants for cross-examination. I believe that I had been punished without proper justification and without giving me the benefit of the doubt. This chapter of complaints should have come to an end but it seems to keep following me. I had been driving almost 6 to 7 days a week for 12 hours a day for 8 years. I believe that the complaints were only a few and far between given the length and breath of my driving. Also only one side of the story has always been heard and I have not been given an opportunity to defend myself. It is very disheartening and sad to note that the perpetrator is always vindicated and the poor victim is not even heard; let alone be given justice. 15 Mr Khan also relies on a report dated July 23 2004 ("the Locke report") by Ms. Judith Locke, a Clinical Psychologist who Mr Khan has seen on a weekly basis since the 22 April 2004. The Locke report states that Mr Khan had an Impulse Control Disorder, mild depression and mild stress and that he had seen Ms. Locke to assist him to improve the manner in which he dealt with passengers. While it is apparent that Mr Khan commenced the therapy in order to obtain a report for use in these proceedings, Ms. Locke stated that Mr Khan presented as highly motivated to try new approaches to improve the manner in which he deals with customers. He participated appropriately in therapy and appeared to be actively working towards understanding appropriate means of dealing with difficult customers. The report concluded: "In summary, to date Mr Khan has attended 11 cognitive behavioural therapy treatment sessions focussing on anger management. He has shown positive progress in understanding the information presented and reports that he is managing to control his temper in what he describes are difficult situations. I have been very pleased with the manner in which he appears to have taken on the strategies. Mr Khan himself also reports that he is enjoying the experience of driving passengers more than before. I have encouraged Mr Khan to continue to apply the techniques that he has learnt to ensure that he is maintaining the changes that he has reported. Mr Khan has reported that it is his intention to do so." 16 At the time of hearing Mr Khan's therapy was continuing. He stated that he could afford the cost of the therapy so long as he was able to keep working. 17 The Ministry's file contains a number of testimonials provided on Mr Khan's behalf. The testimonials assert that the author has found Mr Khan to be of good character and a gentle and caring person. They suggest that his behaviour that resulted in his assault conviction was against his nature. 18 The submission that Mr Khan presented in support of his own application is that he is a person of good moral character and fit to possess a Taxi Driver Authority. The Director General's case 19 The Ministry's file was put in evidence and the Director General relies on the material contained within that file. The file comprises almost 400 pages of material. The Director General's case is essentially that set out in the reasons provided for the decision that is under review. The reasoning processes that lead to the Director General's decision to cancel Mr Khan's authority is set out in the reasons for decision in the following terms: "The Transport Operations Division has a continuing obligation under the Passenger Transport Act 1990 to ensure only fit and proper persons drive public passenger vehicles. -The fact that you have numerous complaints lodged against you involving violence and aggressive behaviour against passengers, -You were afforded the opportunity to respond to the Ministry's Notice to Show Cause issued on 16 February 2004, however your response did not fully challenge the Ministry's facts, evidence and material against you. Based on the above facts and law it can no longer be attested that you are considered to meet the required standards for authorisation as a public passenger vehicle driver." 20 Mr Wozniak points to the various events that resulted in the decision under review. In particular he referred to the history of complaints and the assault conviction and the subsequent cancellation of Mr Khan's authority. When the authority was reissued it was subject to Mr Khan successfully completing a customer care module. Nevertheless, complaints continued to be raised against Mr Khan's behaviour towards passengers. 21 Mr Wozniak asserted that Mr Khan had been given warning upon warning and he had been sent for retraining twice. After the reinstatement Mr Khan's conduct was satisfactory for a while but then he returned to his former pattern of behaviour. Mr Khan has now conceded that he has a problem and is doing something about it. Nevertheless, there is concern that he will lapse into his old habits. A suspension should be imposed as a reminder to him. Findings and reasons 22 In my view, this matter involves an individual who has suffered from a problem over a long period and allowed that to interfere with the way he carried out his duties as a taxi driver. I did not have the benefit of hearing oral evidence from any of the complainants however it is highly likely that at least some of the complaints were justified. It is clear that Mr Khan has a lengthy complaint record but on the evidence before me I think it is probable that Mr Khan has recognised the causes of the behaviour that has lead to the complaints and is acting to address them. 23 The psychological report provided in relation to his therapy suggests significant progress in the management of that problem. Nevertheless, the Ministry is rightly concerned that Mr Khan might return to his former pattern of behaviour. 24 An authority is issued pursuant to section 33 of the Act. Mr Khan should only hold an authority if he is considered to be of good repute and in all other respects fit and proper to be to be the driver of a taxi-cab. He must also be considered to have sufficient responsibility and aptitude to drive a taxi-cab in accordance with the applicable conditions, law and custom. 25 In the matter of Saadieh v Director-General, Department of Transport [1999] NSWADT 68 the Deputy President of this Tribunal considered a number of factors that are relevant and should be taken into account in determining whether a person is suitably fit to obtain a taxi-driver authority, and in this particular case I think they are relevant to Mr Khan's authority. Those factors are the nature, seriousness, and frequency of any offences for which Mr Khan has been convicted; the nature, seriousness, and frequency of any complaints made against him; Mr Khan's driving record; his reputation in the community; and the likelihood that Mr Khan will re-offend, be the subject of further complaints, or commit further offences. 26 I have taken into account all the evidence before me. The test that is usually applied in deciding whether or not a person is a fit and proper character to hold an authority is that the decision maker is to put themselves as far as possible in the position of a member of the public who might be travelling in a taxi driven by Mr Khan. The relevant question therefore is whether the travelling public, knowing of Mr Khan's record, would object to him holding an authority. 27 In my view it is significant that Mr Khan has accepted responsibility for his actions and has taken steps to address the cause. I draw no negative view from the fact that Mr Khan commenced the therapy with Ms Locke in order to obtain a report for use in these proceedings because I am satisfied that his attitude changed after he had entered the therapy process. It is reasonable to expect that if he continues this approach he is unlikely to re-offend or be the subject of further complaints. The risk, of course, is that Mr Khan will not continue on that path. I would encourage him to continue with his therapy in order to address that risk. 28 In my view, the approach taken by the delegate of the Director-General was justifiable at the time it was taken. The delegate had good cause to be concerned that the objects of the legislation are upheld in the exercise of his discretion. Without the evidence that was available to the Tribunal it is understandable how the delegate formed the view that the authority should be cancelled. Nevertheless, the Tribunal must take into account all the available evidence and that includes evidence that was not available to the delegate. Having weighed the evidence and in particular the information contained in the Locke report (which was not available to the delegate) I am satisfied that the travelling public can be comfortable with Mr Khan as the holder of a driver authority. Accordingly, it is my view that the Director General's decision should be set aside. 29 I note however, that I have formed this view on the basis of the material available at the day of hearing. It may well be that new material has become available since the hearing. If Mr Khan repeats the conduct that lead to the cancellation of his authority he can expect little sympathy. ORDERS The decision of the Director-General, Ministry of Transport to cancel the Taxi driver authority held by Mr. Khan is set aside. 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.