Ebrahimi v Ministry of Transport [2008] NSWADT 336

CITATION: Ebrahimi v Ministry of Transport [2008] NSWADT 336

DIVISION: General Division

APPLICANT Homayoon Ebrahimi PARTIES: RESPONDENT Ministry of Transport

FILE NUMBER: 083335

HEARING DATES: 4 December 2008

SUBMISSIONS CLOSED: 4 December 2008

DATE OF DECISION: 16 December 2008

BEFORE: Handley R - Deputy President

CATCHWORDS: Passenger Transport Act – private hire vehicle operator - suspension of accreditation

Passenger Transport (Taxi-Cab Services) Regulation 2001 LEGISLATION CITED : Passenger Transport Act 1990 Passenger Transport Regulations 1990

APPLICANT N Massiha, solicitor REPRESENTATION: RESPONDENT A Wozniak, solicitor

ORDERS: The decision under review, that of the Director General of the Ministry of Transport dated 21 October 2008 suspending Mr Ebrahimi's accreditation as a private hire vehicle operator, is affirmed.

REASONS FOR DECISION 1 This matter involves an application by Homayoon Ebrahimi for a review of a decision of the Director General of the Ministry of Transport ('the Ministry') to suspend Mr Ebrahimi's accreditation as a private hire vehicle operator (accreditation no 30084). Background 2 Mr Ebrahimi is aged either 29 or 31. I note he has used two dates of births in his applications to the Ministry: 5 July 1977 and 5 July 1979. On 24 December 1999, he was convicted of common assault in Burwood Local Court and fined $150 with costs. On 23 October 2007, at Blacktown Local Court, he was convicted both of "destroy or damage property" for which he was fined $800 and of common assault in respect of which he was placed on a good behaviour bond for two years. 3 On 1 October 1999, Mr Ebrahimi was granted a taxi driver authority. On 30 August 2001, he was granted accreditation as a taxi service operator. By letter dated 17 July 2008, he was granted an authority to drive a private hire vehicle. His two prior convictions for assault were noted and he was warned these were a matter of concern to the Ministry and would be taken into account in determining any future action against the authority. On 9 October 2008, he was granted accreditation as a private hire vehicle operator. 4 On 14 October 2008, Mr Ebrahimi was involved in an incident with two Ministry of Transport Compliance Officers and another hire car operator at the Qantas arrivals terminal at Sydney Domestic Airport. The Officers alleged that in the course of an argument, Mr Ebrahimi assaulted them and sought to intimidate them and the hire car operator. The hire car operator alleged that Mr Ebrahimi threatened him again on the following day. Mr Ebrahimi was subsequently charged by police with assaulting a Ministry of Transport Compliance Officer, with intimidating that Officer, and with two counts of intimidating the hire car operator. 5 On 21 October 2008, the Ministry suspended both Mr Ebrahimi's authority to drive a private hire vehicle and his accreditation as a private hire vehicle operator. On 29 October 2008, Mr Ebrahimi's solicitors requested an internal review of the decision to suspend his "authority to drive a public passenger vehicle" dated 21 October 2008. On 7 November 2008, that decision was affirmed after an internal review. 6 On 17 November 2008, Mr Ebrahimi's solicitors applied to the Tribunal for a review of the decision of 21 October 2008 to suspend his accreditation as a private hire vehicle operator and for an urgent stay of that decision. At a hearing before Judicial Member Montgomery on 21 November 2008, the Judicial Member decided to exercise the power of the Tribunal under section 55(2)(c) of the Administrative Decisions Tribunal Act 1997 to deal with the application in the absence of an internal review, but he refused the application for a stay, preferring to list the matter for hearing on 4 December 2008. The Relevant Legislation 7 The relevant provisions of the Passenger Transport Act 1990 ('the Act') are as follows: 38 Accreditation (1) The Director-General may accredit persons for the purpose of carrying on private hire vehicle services, subject to and in accordance with this Division. A person accredited under this Division is referred to in this Part as an "accredited private hire vehicle operator". (2) The purpose of accreditation under this Division is to attest: (a) that the accredited person is (or, in the case of an accredited person that is a corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a private hire vehicle service, and (b) that the accredited person has demonstrated the capacity to meet and continue to meet the appropriate requirements with respect to: (i) financial viability, and (ii) safety of drivers, passengers and the public, and (iii) vehicle maintenance, to the degree and in the manner required in respect of services of the kind specified in the accreditation. (3) The appropriate requirements are such requirements as may be prescribed by the regulations. 38E Variation, suspension or cancellation of accreditation (1) Having regard to the purpose of accreditation under this Division, the Director-General may at any time vary, suspend or cancel any person's accreditation under this Division. (2) The accreditation of a corporation is automatically cancelled when there is no designated director or manager. Mr Ebrahimi's Evidence 8 Mr Ebrahimi said he is married and living in Parramatta. He is a mechanic and electrician by trade. He first obtained a taxi driver authority nearly 10 years ago and held accreditation as a taxi operator for four or five years. He then opened a mechanical workshop but the premises were destroyed in a fire in October 2007 and he has not yet received payment from his insurance company. He therefore obtained an authority to drive private hire vehicles and, more recently, accreditation as a private hire vehicle operator. 9 On the evening of 14 October 2008, Mr Ebrahimi was going to collect a passenger from Sydney Domestic Airport when he was called by a friend, who asked for his help because his phone had run out credit. Mr Ebrahimi denies the version of events alleged by the Ministry's Compliance Officers and has pleaded not guilty to the charges laid against him. The matter is due for mention in court on 9 January 2009. 10 Mr Ebrahimi acknowledged that he had been convicted of assault in 1999 – he said this arose out of an argument with his girlfriend – and 2007. He said that no other charges were laid against him during this period and he has never had any complaints laid against him by customers, colleagues or the Ministry. He said he has learned his lesson and will walk away from arguments in the future. He will do anything to keep his licence. He would be prepared to undertake an anger management program if asked to do so in order to become a better person, but he denied he is a violent person. 11 Currently, his family are supporting him financially but they cannot afford to do so anymore. Because of loss of income, he is currently unable to make the payments due on his mortgage. He is under a lot of stress because of the loss of his mechanical repair business and his having to continue to deal with the insurance company over his claim in respect of the fire. 12 In cross-examination, Mr Ebrahimi was shown the Taxi Driver Authorisation Declaration that he signed on 1 October 1999 stating that he would comply with the relevant Acts and Regulations governing the driving and operation of taxis. He was asked why he did not report his assault conviction dated 24 December 1999 to the Ministry [as required by clause 36 of the Passenger Transport (Taxi-cab Services) Regulation 2001, in effect at that time]. He said the Ministry had never asked him to do so. He said he considers himself an honest person. 13 Mr Ebrahimi was also asked why in his application for accreditation as a private hire vehicle operator, signed on 9 October 2008, he ticked 'No' to the question, "Are there any charges pending against you, for any criminal offences or have you been found guilty or convicted by a court in NSW or elsewhere of any criminal offence in the last five (5) years?" Mr Wozniak pointed out to Mr Ebrahimi that in the declaration signed on page 7 of the form, Mr Ebrahimi had declared that he had "listed all details of charges pending, convictions or proven offences against me ... for any criminal /civil or traffic offences". Mr Ebrahimi said that he attended the offices of the Ministry when he was completing the form and asked about the sort of offences that he was required to disclose. He was told it was offences like fraud, rape etc that the Ministry were concerned about and that, in any event, a criminal record check would be undertaken. He formed the view that a conviction for assault was unimportant and need not be disclosed. He said there was a misunderstanding. Mr Ebrahimi's Submissions 14 Ms Massiha, for Mr Ebrahimi, referred to the factors identified by Deputy President Hennessy in Saadieh v Director General, Department of Transport [1999] NSWADT 68, at [17] to [18], as relevant in determining a person's suitability and fitness to obtain a taxi driver authority. Ms Massiha noted that no charges were laid against Mr Ebrahimi between 1999 and 2007, no complaints have been made against him, and, while he has committed various traffic offences, because he has worked as taxi driver and is frequently driving, it is almost inevitable that he will inadvertently commit some offences. 15 Ms Massiha said Mr Ebrahimi now realises that assault is a serious matter and that he should have ticked the 'No' box on the application for accreditation he signed on 9 October 2008. However, he was under a lot of stress at the time. He has pleaded not guilty to the charges laid later in October 2008. 16 Ms Massiha produced a number of character references for Mr Ebrahimi attesting to his good reputation in the community, and which, she said, show he is highly regarded. He also has the support of his family. The likelihood of his being involved in further incidents is very small, and Mr Ebrahimi has said that he is prepared to undertake an anger management program to prevent any such problem arising again. The Ministry's Submissions 17 Mr Wozniak, for the Ministry, noted that the references provided for Mr Ebrahimi do not indicate whether those giving the references were aware of the charges he is facing. They should, therefore, be accorded little weight. Mr Ebrahimi's reputation needs to be balanced against his criminal record, noting that he failed to notify the Ministry of the charges laid against him in May 2007 and of his subsequent conviction on 23 October 2007, contrary to the regulations. 18 Mr Wozniak submitted that Mr Ebrahimi's criminal record suggests a propensity for violence, noting the recent charges for assault and intimidation. Mr Wozniak referred to the decision in Farquharson v Director General, Department of Transport [1999] NSWADT 53 ('Farquharson'), at [21], where the President of the Tribunal, O'Connor DCJ, said: "An administrator of a licensing scheme would be expected to respond to advice that a regulated person had been charged with a serious criminal offence, especially one arising out of circumstances that directly bear on the activity in relation to which the licence has been issued." 19 Mr Wozniak said the charges in Mr Ebrahimi's case are also very serious and directly bear on his operating a private hire car business. As the President noted in Farquharson, at [30]: "The administrator is entitled to take account of the general circumstances giving rise to the charges, without being called on to examine the strengths and weaknesses of the prosecution case or the nature of any defences. Powers of suspension are, by their nature, designed to provide a temporary form of intervention pending further developments ..." 20 Mr Wozniak also pointed to the significance accorded to the requirement for reporting to the Ministry "any conviction or charge in relation to criminal, traffic or any other kind of offence (other than parking offences) in NSW or elsewhere": Farquharson, at [31ff]. 21 Mr Wozniak referred to the decision in Kwai Hung Lo v Ministry of Transport [2003] NSWADT 276, at [37], where, in the case of a person who was subject to a good behaviour bond which had not yet expired, Montgomery JM found it was too soon to be confident that the person would not re-offend. In Mr Ebrahimi's case, not only has his good behaviour bond not yet expired, but he has also been charged with a similar offence to those of which he has already been convicted. 22 Lastly, Mr Wozniak noted that in addition to not reporting the 2007 charge and conviction to the Ministry, Mr Ebrahimi failed to disclose his prior convictions when applying to the Ministry for accreditation as a private hire car operator in October 2008. Essentially, Mr Ebrahimi lied on the application form. This points to dishonesty and to his not being a fit and proper person for accreditation as the operator of a private hire car service. Discussion 23 The standard required for accreditation as a private hire vehicle operator pursuant to s 38 of the Act is that the person must "be of good repute and in all other respects fit and proper to be responsible for the operation of a private hire vehicle service". Deputy President Hennessy discussed the meaning of 'good repute' in Singh v Director-General, Department of Transport [1999] NSWADT 96: essentially, a person's reputation is how the community assesses the person's moral character. The Deputy President also discussed the factors to be considered when determining a person's suitability and fitness to obtain a taxi-cab authority, referring to her earlier decision in Saadieh, where she said, at [17], that these factors include: "the nature, seriousness and frequency of any criminal offences for which the applicant had 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; the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences." 24 The meaning of the phrase 'fit and proper person' was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at [9], where Dixon CJ, McTiernan and Webb JJ found the word 'fit', in relation to an office, to involve honesty, knowledge and ability. The meaning of the phrase 'fit and proper person' was also discussed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,where Toohey and Gaudron JJ said, at [36]: "The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities." 25 As their Honours recognised, at [66], whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed. 26 In terms of Mr Ebrahimi's reputation in the community, I note the large number of references he has provided attesting to this – although in terms of the weight to be accorded to those references, I also note that, with one exception, none of the references refer to the incident at the airport on 14 October 2008 and its aftermath. I accept Mr Ebrahimi's evidence that he has the support of his family. 27 With regard to whether Mr Ebrahimi is a fit and proper person, the context in the present case is that of a private hire vehicle operator. In my view, the charges of assault and intimidation laid against Mr Ebrahimi bear directly on that activity. These charges need to be considered in the light of Mr Ebrahimi having twice been convicted of the offence of common assault – in 1999 and 2007, and of his still being subject to a good behaviour bond arising from the 2007 conviction, which will not expire until October 2009. 28 In terms of his fitness for accreditation, and, in particular, his honesty, it is also relevant that he failed to report to the Ministry the charges laid and his convictions in 2007, as required by clause 36 of the Passenger Transport (Taxi-cab Services) Regulation 2001, in effect at the time of the charges in May 2007, and clause 44 of the Passenger Transport Regulation 2007, in effect from 1 September 2008. Moreover, in his application for accreditation as a private hire vehicle operator signed on 9 October 2008, he failed to disclose his 2007 convictions. His explanation for this – that he sought advice from a counter officer at the Ministry's offices who indicated that the Ministry was only concerned with serious offences such as fraud, rape etc, I find implausible. 29 In my view, the above findings raise serious doubts about Mr Ebrahimi's fitness for accreditation as a private hire vehicle operator. Ultimately, the resolution of that issue will need to await the outcome of the court proceedings following from the charges laid in October 2008. In the meanwhile, I am satisfied that suspension of Mr Ebrahimi's accreditation is the appropriate action for the Director General to take pursuant to s 38E of the Act and is the correct and preferable decision. 30 The decision under review is therefore affirmed.