Appeal Panel CITATION: Director General, Department of Transport -v- Rasheed (GD) [2000] NSWADTAP 16 APPELLANT Director General, Department of Transport PARTIES: RESPONDENT Haroon Rasheed FILE NUMBER: 009006 HEARING DATES: 02/06/2000 SUBMISSIONS CLOSED: 06/02/2000 DATE OF DECISION: 09/05/2000 Principal matter DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Britton A - Judicial Member; Mapperson K - Member CATCHWORDS: no question of law identified - relevant/irrelevant considerations - unreasonableness MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 993202 DATE OF DECISION UNDER APPEAL: 01/11/2000 LEGISLATION CITED : Passenger Transport Act 1990 Rasheed v Director General, Department of Transport [2000] NSWADT 5 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165 Farquharson v Director General, Department of Transport [1999] NSWADT 53 CASES CITED: Saadieh v Director General, Department of Transport [1999] NSWADT 68 Lloyd v Director General, Department of Transport [1999] NSWADT 101 R v A & B [1999] NSWADTAP 2 Woodside & anor v Director General, Department of Community Services [2000] NSWADTAP 8 Re T and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Burton v Anderson (Court of Appeal, Kirby P, Priestley, Handley JJA) unreported, CA 40030/92, 28 October 1994 APPELLANT REPRESENTATION: W Barry, barrister RESPONDENT S McAnulty, barrister ORDERS: The decision under appeal is affirmed. Reasons for Decision 1 This is an appeal from a decision made in the General Division of the Tribunal (Mr P Skinner, Judicial Member) which set aside the decision of the administrator, the Director General, Department of Transport: see Rasheed v Director General, Department of Transport [2000] NSWADT 5. 2 The administrator now appeals against that decision. The respondent to the appeal is a taxi driver, Mr Haroon Rasheed. For convenience the appellant will be referred to as the administrator in these reasons; and the respondent will be referred to as Mr Rasheed. 3 In August 1999 the administrator's delegate decided that Mr Rasheed's application to renew an authority to drive taxi cabs be refused. That decision was affirmed on internal review on 17 September 1999. Mr Rasheed applied for review by the Tribunal. By decision dated 11 January 2000, the Tribunal set aside the administrator's decision and made in substitution the decision that an authority to drive taxi cabs be granted. 4 To be successful an appeal must identify an error or errors of law of such significance that it is appropriate for the Appeal Panel to set aside the primary decision of the Tribunal. The Appeal Panel's role is considerably narrower than that of the primary Tribunal which, in the present context, was engaged in the task of external merits review of an administrator's decision. 5 In this case the administrator had refused to renew Mr Rasheed's authority because of a serious conviction in relation to a number of offences of dishonesty which he had incurred without the administrator's knowledge in 1997. In restoring Mr Rasheed's authority and setting aside the administrator's decision, the Tribunal reached a conclusion which was atypical of a number of decisions during 1999 in the Tribunal where decisions of the Tribunal had affirmed decisions of the administrator based on a recent serious conviction. 6 The administrator's ground of appeal, as ultimately pressed, is that the Tribunal failed to assess or failed to assess properly the nature, seriousness and frequency of the criminal offences for which Mr Rasheed had been arrested, convicted and sentenced. 7 To assist understanding of the alleged error of law relied upon by the administrator in this case, a short outline of the basis for the administrator's original decision and the reasoning process of the Tribunal follows. 8 In January 1997 Mr Rasheed was convicted on a plea of guilty in relation to four charges of 'make false instrument' contrary to s 300(1) of the Crimes Act 1900 and three charges of 'obtain benefit by deception' contrary to s 178BA of the Crimes Act. The scheme in which he was involved with two other persons involved obtaining false birth certificates and false employment references so as to establish identities for the purpose of obtaining loans or goods. Mr Rasheed used these false identities to obtain a loan of $4000 from the St George Bank on 16 September 1996, a loan of $5400 from the National Australia Bank on 16 October 1996 and finally on 14 November 1996 to obtain a video camera valued at $995 by having a line of credit established by the retailer after supplying a false identity. Mr Rasheed had migrated to Australia in 1990 from Pakistan and became an Australian citizen in October 1996. He was employed as a taxi driver at the time of the offences. 9 For these seven serious offences of dishonesty, the Local Court sentenced Mr Rasheed to 12 months' imprisonment. The convictions were confirmed on appeal by the District Court (Judge Craigie) but the sentence imposed on Mr Rasheed was varied to periodic detention together with entry into recognizances to be of good behaviour for 3 years and to repay the remaining balance of compensation assessed at $5400. 10 At the time of the proceedings before the Tribunal (October 1999) Mr Rasheed had progressed satisfactorily in effecting repayments, having repaid $4000 of the $5400 ordered to be paid. There was one breach in the making of payments. An explanation was considered by the District Court (Judge Williams), accepted as satisfactory and it was ordered that no further action be taken. The recognizances expired on 19 May 2000. 11 It was not until his application for renewal dated 8 May 1999 that Mr Rasheed revealed to the administrator the existence of the convictions. So for approximately two years he continued to drive taxis in circumstances where had the convictions been known he would almost certainly have had the authority revoked. 12 Following receipt of the application in which he disclosed the existence of the convictions, the administrator's delegate wrote asking him to show cause as to why he should not be refused an authority because of the conviction. 13 The main factors to which the delegate gave weight in his original decision, and which were found to be justified by another officer of the administrator on internal review were: + the convictions may mean that Mr Rasheed's reputation in the community is not sufficiently good; + Mr Rasheed's behaviour was dishonest may mean that he could not be trusted with the property or money of passengers; + Mr Rasheed's behaviour was deceptive in not disclosing the charges or the later convictions to the Department immediately; the fact of being placed on a three year bond in 1997 that was breached in 1998; + the behaviour of which Mr Rasheed was convicted showed that he might not have sufficient responsibility to drive taxis in accordance with law and custom. 14 The decision on internal review noted that it had taken account the short written representations of Mr Rasheed in which he drew attention to the positive comments of his parole officer. 15 As noted, the Tribunal set aside the decision and substituted a decision to grant the authority. 16 The Tribunal said at [8] and [9]of its reasons for decision: 'All of the charges arose from a course of dealing by the applicant with two friends and co-offenders with whom he shared a flat at the relevant times. He was sentenced in the Local Court to 12 months imprisonment, with a minimum term of 9 months and an additional term of 3 months, and ordered to pay compensation. He appealed against the sentence to the District Court. On 20 May 1997 His Honour Judge Craigie of that court confirmed the conviction but varied the sentence to 12 months periodic detention and imposed a good behaviour bond upon the applicant, one condition of which related to his continuing to make compensation payments as ordered. …'. 17 The provisions relating to the grant, refusal and revocation of taxi driver authorities have been reviewed in a number of decisions of the Tribunal: see the decisions cited at [22] of the decision under review. 18 The relevant statutory provisions are contained in Div 2 of Part 2 of the Passenger Transport Act, ss 11-14. The administrator's exercise of discretion is essentially governed by s 12 which provides: '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.' 19 The Tribunal posed the issue for it to consider at [20] as 'whether considering his conviction, and failure immediately to disclose same to the Department, the applicant should be granted an authority attesting the matters set out in s 11(2) of the Act.' 20 The Tribunal referred to several published decisions of other members of the Tribunal where applications for review of decisions adverse to applicants for authorities issued under the Act had been made by the administrator. It noted that in almost all cases the applications for review had been unsuccessful with the decision under review affirmed. 21 It also referred to the well-known statement as to the proper understanding of 'good repute' made by Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 and an approach to the question of 'fitness and character' in the case of taxi drivers propounded in the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165, cited with approval by the President when sitting at first instance in Farquharson v Director General, Department of Transport [1999] NSWADT 53 at [37]. 22 Weighing various factors the Tribunal concluded that Mr Rasheed should not be prevented from having his licence back. The Tribunal summarised the factors which it took into account at [29] as follows: + the applicant's criminal record; + the facts of the offence as accepted by the parole officer who prepared the pre-sentence report, in turn accepted by the sentencing judge, + that he was influenced into committing the crime by others and that was a function of his lack of sophistication; + what was accepted by those persons and upon which I also heard sworn evidence which I accept that he expressed and felt genuine remorse; + his full cooperation with the police; + and what he has done to rehabilitate himself and repay the proceeds of the crimes.' 23 In regard to the issue of Mr Rasheed's failure to disclose the conviction at the first opportunity to the administrator, the Tribunal concluded that it was not convinced that his omission was dishonest in the sense that he could be said to have been fully aware of his obligations in that regard and consciously decided to ignore them: see [31]. The Tribunal was also impressed by Mr Rasheed as a 'candid witness' who was 'genuinely contrite for his one conviction': [32]. The Tribunal also had regard to very positive testimonials (which including one, as mentioned, from his parole officer and from the leader of a Church voluntary work team and a priest for whom he had undertaken work as well as several operators who had employed him). 24 On its face the Tribunal approached its task of ascertaining what was the 'correct and preferable decision' in the circumstances through a rational process of weighing a range of relevant factors including the sworn evidence of Mr Rasheed. The Tribunal had the opportunity to observe and receive evidence from Mr Rasheed. 25 In its notice of appeal the administrator formulated the issue that was said to give rise to an error of law as being 'the director does not accept that a person can satisfy the requirements under the Passenger Transport Act whilst being subject to a recognizance pursuant to Section 558 of the Crimes Act 1900'. The administrator also sought leave to extend the appeal to the merits stating that '[t]he criminal antecedents of the applicant should preclude him from holding a driving authority under the Passenger Transport Act.' 26 Neither of these formulations present a question of law. Fixed, immutable rules can have no place in a scheme of decision-making based on discretionary considerations going to fitness of character and public repute. 27 This point, it would seem, was acknowledged in the preparation of the appeal for hearing. Subsequently the administrator filed amended grounds of appeal, with the appeal on a question of law being expressed as follows: 'The Appellant submits that the Judicial Member failed to assess or assess properly the nature, seriousness and frequency of the criminal offences for which the Respondent, Haroon Rasheed, had been arrested, convicted and sentenced. Saadieh v Director General, Department of Transport [1999] NSWADT 68 and Lloyd v Director General, Department of Transport [1999] NSWADT 101.' 28 The cases cited in the amended ground of appeal are examples of Tribunal decisions affirming the administrator's decision. The cases are both mentioned in the list of decisions given at [22] of the decision under review. The amended grounds of appeal then list seven grounds going to the merits. 29 It is clear that an error of law of significance must be identified before a Tribunal decision can be set aside. The relevant principles have been discussed in a number of Appeal Panel decisions: see, for example, R v A & B [1999] NSWADTAP 2; and Woodside & anor v Director General, Department of Community Services [2000] NSWADTAP 8 at [39] to [81]. It is only when a decision is set aside that any consideration can be given to the question of an extension of the appeal to the merits, a course of action which an Appeal Panel should only embark on with caution. Decisions affected by error of law should ordinarily be remitted to the relevant Division of the Tribunal for rehearing de novo. 30 In its written and oral submissions the administrator essentially seeks to re-agitate aspects of the factual material placed before the Tribunal at the primary level. Detailed extracts from the police fact sheets relating to each of the seven charges are provided. An extract from the sentencing remarks of his Honour Judge Craigies is provided. Aspects of the driver's history and his complaint record are referred to. 31 The submissions then recite as the 'applicable law' the decision of Waddell J in Re T, cited above, and refers to the observations of other members of the Tribunal in the cases of Saadieh and Lloyd, all of which as previously noted were cited by the Tribunal in its reasons. It is plain that the Tribunal took account of the applicable law as it emerges from the leading cases such as Re T and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] per Mason J and examined the way in which this law had been applied by the Tribunal in decisions during 1999. 32 In written submissions for Mr Rasheed, countervailing factual material was referred to. These submissions referred to aspects of his Honour Judge Craigie's comments that were favourable to Mr Rasheed. Material in mitigation in relation to the driver history were provided. 33 At hearing Mr Barry of counsel appeared for the administrator and Mr McAnulty of counsel for Mr Rasheed. 34 Mr Barry criticised the decision for collapsing the criminal history of Mr Rasheed down to 'one conviction' when in fact there were seven convictions, four as to one category of offence (make false instrument) and three as to another category of offence (obtain benefit by deception). He submitted that the Tribunal failed to take into account, or give weight to, the circumstances or nature of the charges. 35 He referred to [36] of the decision and submitted that the member never made any assessment whatsoever of these matters. That paragraph of the decision refers to the fact that the applicant remained subject to a recognizance that was due to expire on 20 May 2000, as follows: 'Finally, it was submitted to me by Mr Wozniak for the respondent that the fact that the applicant will remain under a bond until 20 May 2000 prevents a finding under s 11(2) of the Act that he is 'of good repute.' I do not accept this. The sentence for the conviction cannot be looked at separately, not can it elevate the facts of the offence into something more serious. It is the offence itself, confirmed as it is by the conviction, that must be assessed under s 11(2).' 36 Mr Barry then referred to the nature of the conduct given rise to the convictions, and the length of time over which Mr Rasheed was involved in the scheme (from 28 August 1996 to 14 November 1996). He submitted that the only reference to the criminal history was in [8] to [10] of the decision and it did not go into adequate detail as to the nature of the conduct given rise to the offences. He also submitted that there was insufficient weight given to Mr Rasheed's alleged lack of candour with the authorities in relation to his omission in not disclosing at the first opportunity the fact of his convictions. 37 He submits that the Tribunal fundamentally misconceived the position in para [30] of its reasons for decision when it distinguished the factual circumstances here from the Tribunal decision in Lloyd, previously cited, when it said that this was a case involving 'one isolated conviction for dishonesty.' 38 The error of law, Mr Barry said in closing, was that the Tribunal failed to give due regard to the nature, seriousness and frequency of the conduct that gave rise to the administrator's adverse decision. 39 In reply Mr McAnulty for Mr Rasheed noted that there was voluminous file material relating to Mr Rasheed's history and the circumstances of the convictions before the Tribunal. He acknowledged that the reference in [30] to an 'isolated conviction' was unfortunate, but that this comment needs to be read as part of the decision as a whole where the Tribunal recognised that there were a series of charges. The comment in [30] is better understood, he submitted, as a reference to 'conduct' that was isolated. Basically Mr McAnulty submitted that it is clear that the Tribunal took relevant factors into account, and no error of law is revealed. 40 The function of the Appeal Panel is analogous to that of a court of appeal in the ordinary judicial system. The question of law as formulated by the administrator is that the Tribunal failed to assess or to properly assess the 'nature, frequency and seriousness' of the applicant's criminal conduct. As the Appeal Panel understands, the submission put by the administrator is that the Tribunal failed to have regard to a relevant consideration or that its decision was manifestly unreasonable. 41 The task before the Appeal Panel in this case is perhaps best captured in the following passage from de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th ed 1995 at para 25-023 in a chapter dealing with administrative appeals and judicial review as it applies to immigration decisions in the United Kingdom: 'The court will, of course, generally defer on the assessment of facts to the person or body whom Parliament has entrusted with decision-making powers. However, as with other administrative decision-making, the authorities must confine themselves to relevant facts, take account of all relevant considerations and not come to an irrational decision. Decisions which have been affected by a misunderstanding of the facts have also been quashed. This last category refers to straightforward mistakes and does not extend to cases where the facts have been in dispute and the subject of conflicting evidence or submissions.' 42 The finality of decision-making in the Tribunal would be undermined if the Appeal Panel were to entertain appeals which seek in essence to re-agitate the fact-finding and discretion-exercising process involving in ascertaining what is the 'correct and preferable decision' in the circumstances. It is not the function of the Appeal Panel to substitute its view for that of the primary Tribunal merely because it may disagree, even strongly disagree, with the balance that was struck in relation to the competing discretionary considerations. As has often been pointed out by courts of appeal, the appellate tier does not have the benefit of hearing sworn evidence and making direct assessments of witnesses. 43 In referring in its submissions to the outcome of other passenger transport licensing cases heard in the Tribunal, we understand the administrator to be pressing the need for consistency. Clearly administrative decision-making ought to be characterised by consistency in approach and outcome, after as full an examination as is possible of the specific circumstances of each case. Equally the Tribunal should seek to be consistent in its approach without detracting from the need to take account of the factual differences which will always exist as between any two cases. 44 Often the situation will arise where the process undertaken by the Tribunal in response to an application for review leads to a fuller examination of the relevant material than was undertaken by the administrator. That difference may in itself contribute to a difference in result. But occasionally cases will be presented which have about them circumstances which make it appropriate for discretion to be exercised in a way which is different from an apparent pattern. 45 In this case the administrator made its decision primarily by means of a file review and the application of strict rules of policy, with the only representations heard from Mr Rasheed being those which he submitted in writing. It gave greater weight, than the Tribunal on review, to the fact and the circumstances of the convictions and their non-disclosure for 2 years. 46 It is apparent from the reasons of the Tribunal that it considered that in the evidence presented to it there were significant exculpatory factors surrounding the convictions. Moreover it considered Mr Rasheed's history over the intervening two and half years to be material. It is clear that an intervening history of good conduct ought to be taken into account: Burton v Anderson (Court of Appeal, Kirby P, Priestley, Handley JJA) unreported, CA 40030/92, 28 October 1994. 47 The Tribunal had the benefit of direct evidence from Mr Rasheed. It also scrutinised closely the comments of the District Court at appeal leading to a less severe sentence. The Tribunal attached considerably more weight to the positive comments of his parole officer. 48 While the use of the singular 'conviction' and the reference to 'one conviction' in describing the criminal record of Mr Rasheed was wrong (and the decision was defective to that extent), we are satisfied reading the reasons as a whole, and having regard to the material presented at hearing, that the Tribunal properly understood that there were seven charges each of which gave rise to convictions covering several events over a period of approximately three months. In essence the Tribunal saw this case as an exceptional one, which because of its particular facts fell outside the pattern of thinking adopted by the Tribunal on a number of other occasions. The term 'isolated' was used, we consider, to convey that the period of criminal conduct stood in isolation. 49 There is, we consider, no error of law identified. Consequently there is no basis for going on to consider the application to extend the appeal to the merits. 50 The decision under appeal is affirmed. 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.