CITATION: Liu v Ministry of Transport [2007] NSWADT 32 DIVISION: General Division APPLICANT PARTIES: Xin Gang Liu RESPONDENT Ministry of Transport FILE NUMBER: 063370 HEARING DATES: 12/12/2006 SUBMISSIONS CLOSED: 19 January 2007 DATE OF DECISION: 5 February 2007 BEFORE: Pearson L - Judicial Member CATCHWORDS: Passenger Transport Act - taxi driver - grant of authority - Taxi driver - grant of authority MATTER FOR DECISION: Prinicpal matter LEGISLATION CITED : Passenger Transport (Taxi-Cab Services) Regulation 2001 Passenger Transport Act 1990 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Barrett v Director General, Department of Transport [2000] NSWADT 183 EB v Director General, Department of Transport [2002] NSWADT 258 Farquharson v Director General, Department of Transport [1999] NSWADT 53 CASES CITED: Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Loye v Director General, Department of Transport [2000] NSWADT 145 Maythisathit v Registrar of Motor Vehicles [1996] AATACT 165 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Singh v Director General, Department of Transport [1999] NSWADT 96 APPLICANT D Huen, solicitor REPRESENTATION: RESPONDENT A Wozniak, solicitor ORDERS: 1. The decision to refuse to renew the applicant's driver authority is set aside.; 2. The matter is remitted to the respondent for reconsideration on the basis that the applicant meets the requirements of section 33(3) of the Passenger Transport Act 1990. REASONS FOR DECISION 1 On 30 August 2006 the applicant applied for renewal of his Driver Authority GA7919, which was due to expire on 24 October 2006. In that application the applicant disclosed that he had been found guilty of the offence of possess licence obtained/renewed by dishonest means and fined $500. On 26 September 2006 a delegate of the respondent advised the applicant that his application for renewal had been refused on the ground that the applicant did not meet the requirements of section 33(3) of the Passenger Transport Act 1990 (the PT Act). On 29 September 2006 a delegate of the respondent advised the applicant that his driver authority had been suspended in accordance with section 33F of the PT Act. 2 The decisions were affirmed on internal review on 4 October 2006. On 13 October 2006 the applicant lodged an application to the Tribunal for review of the decision to refuse to renew the driver authority. On 17 October 2006 a stay of the decision to suspend the applicant's authority was granted provided the authority be returned to the respondent on 25 October 2006. Directions were made as to filing of statements and submissions. The respondent provided a copy of its file. The applicant provided two written references. 3 A hearing was held on 12 December 2006, and the applicant gave oral evidence. At the conclusion of the hearing the respondent's representative requested an adjournment to enable him to obtain further records from the RTA concerning the applicant's second driver's licence. The matter was listed for directions on 19 January 2007. On that occasion the respondent tendered a copy of the application made by the applicant for a driver licence on 22 December 2004. The applicant gave further oral evidence, and further oral submissions were made by both parties. Relevant legislation 4 Under section 33 of the PT Act the Director-General may authorise a person to drive a taxi-cab by the issue of an authority. The purpose of an authority is provided in subsection 33 (3) of the PT Act: (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. 5 Under section 33C of the PT Act, an authority is renewable. 6 Clause 36 of the Passenger Transport (Taxi-cab Services) Regulation 2001 (the PT Regulation) provides: 36 Driver to notify Director-General of alleged offence (1) The driver of a taxi-cab must, in accordance with this clause, furnish the Director-General with written details of the following: (a) any alleged offence (other than a parking offence) with which the driver is charged by a police officer, (b) any penalty notice issued to the driver in respect of an alleged offence (other than a parking offence) that relates to the driving of a motor vehicle. Maximum penalty: 10 penalty units. (2) If, on the commencement of this clause: (a) proceedings against a driver of a taxi-cab in respect of an offence referred to in subclause (1) (a) are pending—details of the charge are to be furnished within 48 hours after that commencement, unless the driver of the taxi-cab is acquitted of the charge within 24 hours after that commencement, or (b) a penalty notice of the kind referred to in subclause (1) (b) is in force against a driver of a taxi-cab—details of the penalty notice are to be furnished within 48 hours after that commencement. (3) In the case of a charge that is laid by a police officer, or a penalty notice relating to the driving of a motor vehicle that is issued, on or after the commencement of this clause (other than a charge or a penalty notice in respect of a parking offence), the details are to be furnished within 7 days after the laying of the charge or the issue of the notice. Respondent's case 7 The decision under review was based on the following findings of fact: On 6 March 2006 the applicant was convicted at Sutherland Local Court of an offence relating to the falsification of his date of birth on a drivers licence, and was fined $500 plus court costs; The applicant failed to inform the respondent that he had been charged with this offence or the outcome of the Local Court proceeding, contrary to cl 36 of the PT Regulation. 8 The internal reviewer concluded that he was unable to attest to the applicant being of good repute as required by section 33(3) of the PT Act. The applicant had not provided any testimonials or references as to his character, and while the existence of the conviction did not of itself mean that the applicant was of low repute, the crucial relationship between the regulation of the taxi industry and the taxi driver's licence would infer a considerable community concern that the offence would have been committed by a working taxi driver. 9 At the hearing, the respondent's representative submitted that honesty is implicit in whether a person is a fit and proper person to hold an authority. The applicant had worked illegally, and had obtained a second drivers licence while suspended. The applicant had failed to notify the respondent when charged, and only notified the conviction when he applied for renewal of the authority. The references provided by the applicant do not state that the providers of those references were aware of the applicant's conviction or his driving while suspended. Applicant's case 10 The applicant gave oral evidence, and stated that he left Australia on 27 July 2004 and was in China for four months. He did not receive notification of the suspension of his drivers licence. After he returned to Australia he tried three times to correct the date of birth on his drivers licence. The first time he showed the old and the new passport and was told that because the new passport was issued after the licence, the licence could not be changed. He tried again and was told he needed a citizenship certificate. He applied for the second licence a short time after returning to Australia at the RTA in Campsie. The applicant conceded that he knew at that time that his licence was suspended but he decided to apply for a new licence. He did this because he needed identification to set up a bank account, and he only had his passport. He also wanted to correct the birth date on the licence. In cross examination the applicant stated that he had not driven taxis while his licence was suspended. He got his full licence two months after he presented both licences to the RTA. The RTA issued a full licence with the correct date of birth and took away his learner licence. 11 In his supplementary oral evidence the applicant was questioned about the application for a learners permit made on 22 December 2004. The applicant stated that he had not disclosed that he had previously held a NSW drivers licence because his only purpose in applying for the learners permit was to correct the date of birth. If he had told them that he had another licence they probably would not have issued him with a licence with the correct date of birth. He answered the following two questions "No" because he had answered the first question that way. In cross examination the applicant stated that he had not waited until his suspension was over to apply for a new licence because his purpose in applying was not so that he could drive. 12 The applicant's representative submitted that the applicant had initially been charged with two offences, obtaining a licence dishonestly and possessing a licence dishonestly obtained, and the first charge had been dropped. The applicant had derived no significant benefit in declaring that he was seven years older than he really was. He has been driving for six years and has had significant opportunity to demonstrate that he is a fit and proper person. Findings of fact 13 The following findings on factual matters that were not in dispute are based on the Facts Sheet prepared by the NSW Police and the documents in the respondent's file: The applicant arrived in Australia on 3 June 1994 on a tourist visa using passport number 141143356 in the name of Xin Gang Liu with a date of birth of 30 January 1968; The applicant applied for a NSW drivers licence on 27 March 1995 using the false birth certificate, and was issued drivers licence 12228437 with the date of birth 30 January 1968; The applicant was issued with a taxi driver authority GA7919 on 1 June 2000, valid until 1 June 2001, using driver licence 12228437; The applicant was located on 4 April 2003 by officers of the Department of Immigration and Multicultural and Indigenous Affairs and detained as an unlawful non citizen; Driver authority GA7919 was cancelled on 7 May 2003, and this decision was affirmed on internal review on 22 May 2003; On 24 July 2003 the applicant was issued with a bridging visa with permission to work; The applicant left Australia on 27 July 2004 and returned on 16 December 2004 with a new passport G11661389 in the name of Xingang Liu with a date of birth of 30 January 1975; The applicant's drivers licence 12228437 was suspended from 4 December 2004 to 4 March 2005 for demerit points offences; On 22 December 2004 the applicant applied for a NSW drivers licence using the new passport G11661389, and was granted learners permit 1527085; On 28 September 2005 the applicant attended the Campsie RTA and completed a form to change the name and date of birth on licence number 12228437, and produced both licences; On 6 March 2006 the applicant pleased guilty and was convicted of the offence of possess licence obtained/renewed dishonestly under section 22(1)(b) of the Road Transport (Driver Licensing) Act 1998, and was fined $500 plus court costs; On 30 August 2006 the applicant applied for renewal of his drivers authority GA7919, and disclosed the conviction in response to question 1 "Since you were first issued with or last renewed your driver authority 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?" 14 The circumstances of how the applicant obtained the birth certificate and passport which he used to enter Australia were the subject of submissions by his representative, who stated that the travel agent had made a mistake. The Facts Sheet provides a different explanation, which was that the applicant paid an unknown person approximately $15,000 to supply him with a Chinese passport, birth certificate and identification card, and tickets and a visa for the applicant to spend two weeks in Australia on a tourist visa. Regardless of how the applicant came by the identity documents and passport showing the date of birth of 30 January 1968, there was no dispute that in 1995 he used those documents to obtain drivers licence 12228437. The applicant applied for a new licence on 22 December 2004. Based on his evidence, the applicant was aware at that time that driver's licence 12228437 had been suspended for three months from 4 December 2004 for demerit points offences. Questions 2, 3 and 4 of the application form completed on 22 December 2004 ask: 2. Do you hold or have you ever held a licence to drive or ride in NSW in the above name or in another name? 3. Have you ever been prohibited or refused from driving a motor vehicle or riding a motorcycle in NSW or elsewhere? 4. Do you have a disqualification, cancellation, suspension or pending charge against you in NSW or elsewhere or is your licence subject to an appeal for driving or riding offences? 15 The applicant ticked "No" in response to each of these questions. The answer to questions 2 and 4 was incorrect, and based on his evidence, I find that the applicant knew that his answers were incorrect. Reasons and decision 16 The issue in this matter is whether the applicant's driver authority should be renewed. Subsection 33 (3) requires that the Director-General be satisfied that the applicant is considered of good repute, and is considered in all other respects a fit and proper person to be a taxi driver, and is considered to have sufficient responsibility and aptitude to drive a taxi. 17 An assessment of whether a person is "fit and proper" involves different considerations from those relevant to "good repute": Singh v Director General, Department of Transport [1999] NSWADT 96 at [25] to [28], Farquharson v Director General, Department of Transport [1999] NSWADT 53 at [27]. In Farquharson v Director General, Department of Transport [1999] NSWADT 53, President O'Connor DCJ said: A taxi driver has a continuing responsibility to ensure that he is of "good repute" and a "fit and proper person". Clearly, the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person's character. The concepts of "good repute" and "fit and proper character" involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J). 18 "Repute" is defined in the Macquarie Dictionary (Third Edition) to mean "estimation in the view of others; reputation". 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: EB v Director General, Department of Transport [2002] NSWADT 258 at 40. References which do not specifically address the applicant's offences or the issues with which the Tribunal is concerned are of less use: Loye v Director General, Department of Transport [2000] NSWADT 145. 19 The meaning of being of "good repute" was discussed by Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393. Waddell J defined reputation in the following terms: 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 . . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation. 20 In Saadieh v Director General, Department of Transport [1999] NSWADT 68 Deputy President Hennessey noted that a person's criminal record alone is not necessarily evidence of bad repute which is sufficient to disqualify that person from holding a taxi authority. 21 In this case the applicant has been convicted of an offence involving dishonesty. While that alone does not establish that he is not a person of good repute, it does raise the question as to whether he can be so regarded. As Judicial Member Rice noted in Barrett v Director General, Department of Transport [2000] NSWADT 183: This is so because the conviction is arrived at in open court, on the basis of facts aired in open court, and is assumed to be public knowledge and therefore directly relevant to reputation. 22 The applicant has provided two references. The first is dated 8 October 2005 and is addressed "To the Honourable Magistrate". It was provided by Thi Kim Cuc Bui, a friend of the applicant and expresses the opinion that "Everyone who knows Xingang also thinks that he is a great man". . It appears to have been provided for the purpose of the proceedings in Sutherland Local Court, rather than for these proceedings. The second reference is provided by Duc Chinh Do and dated 26 November 2006, and states that the applicant "has been good and honest guy". This reference refers to the "difficult he is suffering at the moment", and states "Now the Ministry of Transport (MOT) put him in this situation". While neither reference expressly states that the writer is aware of the specific allegations made against the applicant, both indicate awareness that the applicant is facing regulatory action. Accordingly, I have given them some weight, and I am not satisfied that the applicant could not be considered to be of good repute. 23 However, even if the applicant is found to be a person of good repute, it must also be established that he is considered to be a fit and proper person to drive a taxi. The Tribunal has frequently cited the decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 as a guide to the meaning of "a fit and proper person". In that case Toohey and Gaudron JJ stated (at 380): 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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 24 Their Honours further stated (at 388): 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. 25 The activities in which the person will be engaged is relevant to consideration of whether he is a "fit and proper person": Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156-7. In this case it is relevant to note that the objects in section 4 of the PT Act include the object of encouraging public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services. 26 In Saadieh v Director General Department of Transport [1999] NSWADT 68 at [17] Deputy President Hennessy set out a number of factors based on the legislation and relevant case law as being relevant to determining a person's fitness and suitability to obtain an authority. These included: 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. 27 The applicant obtained a drivers licence in 1995 having knowingly provided false identification documentation to the RTA. That is now over ten years ago. More recently, however, in December 2004 the applicant applied for a new licence without disclosing that he held a licence that was subject to suspension, and on his evidence, did so because he knew he probably would not be issued the new licence if he did disclose this. The offence for which the applicant was convicted was relevant to his occupation as a taxi driver, which is based on the driver having lawful authority to drive. It is in the applicant's favour that he drew the issue to the attention of the relevant authorities when he attended the RTA on 28 September 2005 with both licences. The applicant did not disclose to the respondent that he had been convicted in March 2006 as required by reg 36 of the PT Regulation. He did, however, disclose this in his application in August 2006 for renewal of his driver authority. The applicant was first authorised to drive a taxi in June 2000, less than seven years ago. The respondent's file shows only two complaints during that period. While his driving record from December 1999 to June 2004 was poor, there is no indication in the evidence provided by the respondent that this pattern has continued in the past two years. 28 Having regard to the above factors, this matter is fairly evenly balanced. Many Tribunal decisions have applied the test stated by the President of the ACT Administrative Appeals tribunal in Maythisathit v Registrar of Motor Vehicles [1996] AATACT 165 in the following terms: 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 wether 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. 29 In the present circumstances, I consider that a member of the public would be concerned that the applicant has previously made false statements to the authorities in the context of his authority to drive. However, it was his action that drew the matter to the attention of the authorities. His evidence in these proceedings was direct and honest, including where it disadvantaged him. I consider that it is unlikely that the applicant will re-offend, and there is no issue as to his recent record as a driver and as a taxi driver. At the hearing the applicant's representative indicated that he was not seeking review of the decision to suspend his authority, and he has now in effect served a period of suspension for three months. I conclude that the decision to refuse to renew the applicant's driver authority should be set aside. The applicant's application for renewal of his driver authority should be reconsidered on the basis that the applicant meets the requirements of section 33(3) of the PT Act. Orders 1. The decision to refuse to renew the applicant's driver authority is set aside. 2. The matter is remitted to the respondent for reconsideration on the basis that the applicant meets the requirements of section 33(3) of the Passenger Transport Act 1990. 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