Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Parvez v Roads and Maritime Services [2014] NSWCATOD 13 Hearing dates: 22 January 2014 Decision date: 13 March 2014 Jurisdiction: Occupational Division Before: S Leal, Senior Member Decision: The decision under review is affirmed Catchwords: Taxi driver authority - cancellation - false statutory declarations - seriousness Legislation Cited: Passenger Transport Act 1990 - Passenger Transport Regulation 2007 - Administrative Decisions Review Act 1997 Cases Cited: McDonald v Director General of Social Security (1984) 1 FCR 354 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Lal v Director-General, Department of Transport [2001] NSWADT 74 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Category: Principal judgment Parties: Mohd Parvez (Applicant) Roads and Maritime Services (Respondent) Representation: M Parvez (Applicant in person) Smythe Wozniak (Respondent) File Number(s): 133360 reasons for decision Introduction 1Mr Mohd Parvez was born in Bangladesh and is a citizen of South Africa. In 2009, he was granted a temporary visa to study in Australia and in 2010 he was issued with an unrestricted NSW driver's licence. He was granted an authority to drive taxi-cabs in July 2012. 2Mr Parvez was issued with a penalty infringement notice for proceeding through a red light camera on 8 September 2012. On the same day, he was issued with a second penalty infringement notice for exceeding the relevant speed limit. Both incidents were recorded on camera. 3In relation to each offence, Mr Parvez completed a statutory declaration stating that he had not been the driver of the taxi-cab at the relevant times. Instead he nominated Mr Sayem Chowdhury as the driver on both occasions. According to records held by Roads and Maritime Services (RMS), Mr Chowdhury is not an authorised taxi-cab driver. 4In August 2013, Mr Parvez participated in a record of interview with officers of RMS. In the course of the interview, Mr Parvez admitted to swearing the false declarations, conceding that that he had in fact been the driver of the taxi-cab in question, namely taxi-cab T2345, when the offences were committed. He agreed that he had signed in as the driver of T2345 for 8 September 2012 and had completed the necessary worksheet to confirm this. He told the RMS officers that he had been unaware that it was an offence to swear a false declaration under the Oaths Act 1900. 5In September 2013, Mr Parvez was issued with a Notice to Show Cause as to why his authority should not be cancelled and on 7 November 2013, his authority was cancelled. 6Mr Parvez has lodged an application for review with this Tribunal (formerly the Administrative Decisions Tribunal (NSW)). His application for a stay of the decision to cancel his driver authority was refused on 10 December 2013. Review decision 7In this case, the Tribunal is undertaking a review of the merits of the original decision. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then affirms the original decision, varies it, or sets it aside and substitutes another decision. The Tribunal makes its own decision in place of that of RMS and there is no presumption that the decision of RMS is correct. McDonald v Director General of Social Security (1984) 1 FCR 354 at 357. 8RMS has the power to authorise persons to drive taxi-cabs. Such an authority attests, inter alia, 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. 9Section 33F of the Passenger Transport Act 1990 states that 'having regard to the purpose of an authorisation under this Division, Roads and Maritime Services may at any time vary, suspend or cancel any person's authority under this Division.' 10The issue in this case, then, is whether the decision to cancel Mr Parvez's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Parvez is a fit and proper person, whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a taxi-cab. The Tribunal has the power to review this decision pursuant to s9 of the Administrative Decisions Review Act 1997 and s52(1) of the Passenger Transport Act 1990. Consideration of evidence 11The Tribunal held a hearing in this matter on 22 January 2014. Mr Wozniak appeared for RMS while Mr Parvez was unrepresented. Mr Parvez told the Tribunal that he did not require the services of an interpreter and was happy to proceed with the hearing that day. 12Daily worksheets for Mr Parvez show that he commenced his shift at 3pm on 7 September 2012 and finished the shift at 3am on 8 September 2012. 13The statement of reasons provided by RMS in support of its decision to cancel Mr Parvez's taxi-cab driver authority note that Mr Parvez admitted to signing two false statutory declarations in an interview with RMS officers on 27 August 2013. He also admitted to having been signed into the taxi network at the time of the offences and having completed the worksheet stating that he had been the driver for the taxi-cab T2345 on 8 September 2012. 14Mr Parvez told the Tribunal that he had made a big mistake, one that he hadn't been aware he had been making. He stated that he had been unaware that it was an offence to swear a false declaration under the Oaths Act 1900. He told the Tribunal that he is helpful and honest with other taxi drivers and has always been honest and helpful with his customers. He confirmed that he is currently studying business management at university as an overseas student. 15Traffic records for Mr Parvez show that he received an infringement notice on 18 October 2012 for failing to keep left. 16Five references were provided by Mr Parvez in support of his application before this tribunal. In his reference, the HR and Manager of Operations of Patel Business Services Pty Ltd describes Mr Parvez as the driver of one of the taxi-cabs from his base. He describes Mr Parvez as being friendly, polite, punctual and 'very honest towards his job.' He excuses Mr Parvez's actions in dealing with the two penalty infringements for 8 September 2012 as being unintentional and the result of being given wrong information as 'he wasn't aware of it that he's actually breaking the law.' 17In his reference, Mr Kamrul describes himself as a former customer of Mr Parvez when he worked in a takeaway shop in Kings Cross. Mr Kamrul describes Mr Parvez as a 'hard working, honest and decent person.' 18Mr Husam Odeh is Mr Parvez's former employer at Five Star Kebab in Kings Cross and states that Mr Parvez provided my business with excellent support and dedication for the next one year. His work had been a major factor in our business success. He is very honest, hard working and peace loving person. He was loyal and trustworthy. 19Mr Faisal Aziz Akm describes himself as a longstanding friend of Mr Parvez. In his reference, he describes the tragedy of Mr Parvez losing his wife in South Africa and explains the stress that Mr Parvez is under given that his new wife is expecting the couple's first child and Mr Parvez is finding it difficult to financially support her. 20Mr Badshah writes of Mr Parvez in the following terms: I have known Mohd Parvez since his childhood. He is one of my good friends. I can confirm he is a man of great integrity. He is extremely dedicated to his family and work. He is a peace loving man. After his wife passed away in South Africa he was totally devastated. I requested him to come to Australia and start [a] new life. After coming to Australia, he started studying and after 3 months he got the job at Five Star Kebab. He loves driving. I suggested him to become [a] taxi driver. On 19 April 2013 he got married again in Bangladesh. His wife is expecting a baby on 27th January this year. At this moment if he loses his job he will suffer. Because he is the only person to look after his parents and wife. Findings 21As discussed earlier, the issue in this case is whether the decision to cancel Mr Parvez's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Parvez is a fit and proper person, whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a taxi-cab. 22The term "fit and proper person" was discussed by Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63]. The Chief Justice said that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 23In this case, an authority to drive a taxi-cab can be granted under the Passenger Transport Act 1990, one of the objectives of which is to encourage public passenger services (which include taxi-cab services) that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services. 24The following factors need to be taken into account in determining a person's suitability and fitness to hold a taxi-cab authority: * 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. 25In assessing the last factor, the following considerations are relevant: * the length of time since the offences were committed and the circumstances in which they were committed; * whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; * the efforts the applicant has made to rehabilitate himself or herself during that time; * any change in the applicant's circumstances such as increased support from friends, family or professional service providers. Saadieh v Director General, Department of Transport [1999] NSWADT 68 26In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails." 27Mr Parvez is an intelligent man who is close to finishing his studies in business management. This requires a good understanding of written English. Clearly marked on the statutory declaration forms signed by Mr Parvez is the following declaration I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act 1900. Directly below that is the following note: A person who makes a false or misleading declaration is liable to a penalty of up to $5500. 28By having completed the rest of the statutory declaration, Mr Parvez has shown that he has read the relevant instructions. The Tribunal does not accept that he was unaware of the warning contained on the form itself advising that it was an offence to make a false declaration. On this basis, the Tribunal does not accept Mr Parvez's submission that he did not realise it was an offence under the Oaths Act to sign a false declaration. Rather, the Tribunal finds that by signing the false declarations, Mr Parvez had found a way to avoid responsibility for the consequences of the penalty infringements notices issued against him. 29The Tribunal accepts that Mr Parvez is now remorseful for his actions and accepts that, in other areas of his life, he is known as an honest and helpful man. 30Nevertheless, the Tribunal is of the view that Mr Parvez's actions should be taken seriously for the following reasons: * His actions reflect badly on his honesty, which is a fundamental consideration when determining whether a person is fit and proper; * The offences in question relate directly to his driving and driving record, which is of importance given that a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 * As a result of his actions in blaming another person for two of his traffic offences, a false and misleading picture has been given of Mr Parvez's driving record. 31At the time of the two relevant traffic offences, namely 8 September 2012, Mr Parvez had held a taxi driver's authority for less than three months. By 18 October 2012, he had already received 3 traffic infringement notices. This is not an insubstantial traffic record in such a short time period. 32Mr Parvez has provided references attesting to his general honesty, politeness, punctuality and helpfulness. The Tribunal accepts that he enjoys a good reputation amongst his former employers, colleagues and friends. 33The Tribunal also notes that Mr Parvez has experienced tragedy in his life, with the death of his first wife, and that he will find it difficult to support his family if he can no longer work as a taxi-cab driver. Questions of possible hardship to Mr Parvez or to his family cannot be taken into account, however, in determining whether RMS has made the correct and preferable decision. Lal v Director-General, Department of Transport [2001] NSWADT 74 34In considering the likelihood of whether Mr Parvez would re-offend, the Tribunal accepts that his expressions of remorse and contribution are genuine. The Tribunal is satisfied that he now understands the seriousness of his conduct and would be unlikely to reoffend in the future. 35Given, however, the seriousness of his actions in swearing two false declarations in order to evade responsibility for two traffic offences, the Tribunal cannot be satisfied that Mr Parvez is, at this stage, a fit and proper person to hold a taxi driver's authority. 36The Tribunal is accordingly satisfied that Mr Parvez's actions in falsely swearing the two statutory declarations are sufficiently serious to warrant the cancellation of his authority. 37As the Tribunal has determined that, at this stage, Mr Parvez is not a fit and proper person to hold an authority, it is not necessary to consider whether Mr Parvez is of good repute or whether he has sufficient responsibility and aptitude to drive a taxicab, in accordance with the conditions under which a public passenger service is operated, and in accordance with law and custom. 38In light of the above findings, the Tribunal is satisfied that the decision of RMS to cancel Mr Parvez's authority to drive taxi-cabs should be affirmed. Decision 39The decision to cancel the Applicant's authority to drive a taxi-cab is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 17 March 2014