Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Husain v Roads and Maritime Services [2017] NSWCATOD 8 Hearing dates: 20 September 2016 and 22 December 2016. Date of orders: 12 January 2017 Decision date: 12 January 2017 Jurisdiction: Occupational Division Before: Prof G Walker, Senior Member. Decision: Decision under review affirmed. Catchwords: PASSENGER TRANSPORT - taxicab driver licensing -cancellation of driver authority – fit and proper person – false statutory declarations – attempt to transfer points. Legislation Cited: Civil and Administrative Tribunal Act 2013; Oaths Act 1900; Passenger Transport Act 1990. Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321; Babikir v Roads and Maritime Services (RMS) [2014] NSWCATOD 4; Cai v RMS [2014] NSWCATOD 34; Director-General, Transport New South Wales v AIC [2011] NSWADTAP 65; Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179, (1979) 46 FLR 409; Ghachame v RMS [2013] NSWADT 144; Howell v Macquarie University [2008] NSWCA 123; Hughes and Vale Pty Ltd v New South Wales [1955] HCA 28, (1955) 93 CLR 128; Jones v Dunkel [1959] HCA 8, (1958 – 59) 101 CLR 298; Lal v Director-General, Department of Transport (2001) NSWADT 74; Manly Council v Byrne [2004] NSWCA 123; McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354; Miah v RMS [2013] NSWADT 264; Naveed v RMS [2014] NSWCATOD 4; Parvez v RMS [2014] NSWCATOD 13; R v Einfeld [2009] NSWSC 119; Saadieh v Director-General, Department of Transport [1999] NSWADT 68; Saifi v RMS [2014] NSWCATOD 24; Sara v Director-General, Department of Transport [2003] NSWADT 157; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Sterjoviski v Director-General, Department of Transport [2000] NSWADT 10; Ullah v RMS [2014] NSWCATAD 71. Category: Principal judgment Parties: Iqbal Husain (Applicant) Roads and Maritime Services (Respondent) Representation: Counsel: M Higgins (Applicant) Solicitors: Lenz Legal (Applicant) Smythe Wozniak (Respondent) File Number(s): 1620179 reasons for decision 1. The applicant Mr Iqbal Husain applied to this tribunal on 13 July 2016 for review of a decision by the respondent Roads and Maritime Services (RMS) on 22 June 2016 to cancel the applicant's taxicab driver authority. The respondent also cancelled the applicant's taxi operator authority on the same date, but the applicant has not sought tribunal review of that decision. 2. The driver authority was cancelled because on 22 January 2016, the applicant pleaded guilty in the Local Court to, and was subsequently convicted of, two counts of falsely nominating another for a camera-recorded offence. The two offences were as follows: 1. Taxicab number T2740 was detected speeding by a stationary speed camera or 2 December 2014. The applicant knowingly submitted a false statutory declaration to the State Debt Recovery Office (SDRO) on 12 December 2014 nominating as being the driver of the vehicle during the offence a person who he knew was not the driver. 2. Taxicab number T2740 was detected failing to comply with a red traffic control signal by a stationary red light camera on 12 December 2014. The applicant knowingly submitted a false statutory declaration to SDRO on 23 January 2015 nominating as being the driver of the vehicle during the offence a person who he knew was not the driver. 1. The respondent took the view that by reason of those offences it could no longer attest to his being fit and proper to hold a taxicab driver authority and cancelled his authority with immediate effect. Applicable legislation 1. Section 33 of the Passenger Transport Act 1990 (the PT Act) provides as follows: Authorities (1) RMS 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. (4) The regulations may create categories or grades of authorities. (5) Without limitation, the regulations may provide that subsection (2) does not apply in specified circumstances, including, for example, when a taxi-cab is being driven to a place to have it repaired or serviced. 1. Section 33F provides that "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". 2. The issue in this case is whether the tribunal can attest that the applicant is of good repute and a fit and proper person to be the driver of a taxicab within the meaning of s 33(3). The evidence 1. The basic facts set out above are not in dispute and the respondent called no oral evidence, but relied on the documentary evidence, consisting of the s 58 documents (exhibit R1), the applicant's RMS taxi driver authority file (exhibit R2) and the applicant's RMS taxi operator accreditation file (exhibit R3). 2. On the first day of the hearing, the respondent had pointed out that the person the applicant had nominated as driver of the taxi at the time of one of the offences was a Mr Mahzoor Khan. Enquiries with the Department of Immigration disclosed no record of any person by that name. The respondent had then on 23 June 2015 emailed the applicant seeking clarification of the fact that Mahzoor Khan did not appear to be an actual person. On 26 June the applicant replied by email advising that the name of the person was Manzoor Khan, not Mahzoor Khan. 3. The respondent then made further enquiries to ascertain whether the Department of Immigration could locate any records for a person named Manzoor Khan, but was informed that it could not. The respondent therefore concluded that Manzoor Khan was not an actual person and that the applicant had provided false information about the identity of the nominated person twice. It was agreed that if that conclusion were correct, it might well be viewed as an aggravating factor. 4. The applicant then on 8 November 2016 filed a signed and witnessed statement by a Mr Naim ul Islam, bearing the same date. In it Mr ul Islam stated inter alia that as he is on a disability pension, his wife is a university student and they have four children, to assist financially they let rooms in their Bankstown house to students. 5. Sometimes his paying guests would also have new arrivals or friends staying with them for a short period. One of their regular guests, a Mr Saeed, had a friend staying with him for two weeks in August or September 2014. The friend's name was Manzoor Khan. Mr Saeed provided the applicant with his friend's name and address in Pakistan. 6. Mr ul Islam met Mr Riffat Khan about 15 years ago. At that time Mr ul Islam operated a taxi business, and Riffat Khan drove taxis. Mr ul Islam met the applicant a little more than 15 years ago, at which time Mr Husain was also operating a taxi business. In December 2014, Riffat Khan told Mr ul Islam that he had a problem with his driver licence and asked him whether he knew someone to whom he could transfer points. Mr ul Islam told him that he would see if he could find someone, and asked the students who were staying in the house, but none of them could help. 7. Later in December 2014, he encountered Manzoor Khan at Bankstown train station. He was living at Sefton at the time. He told Manzoor about Riffat's problem, and Manzoor agreed, in order to be "helpful", that Mr ul Islam could use his details for the driving fine. Manzoor held an international driver licence at the time. Manzoor gave Mr ul Islam his date of birth and licence number, which the latter passed on to Riffat Khan. 8. Then in January 2015, Mr ul Islam encountered Manzoor Khan at the Yagoona markets. Mr Khan told him that he was travelling home to Pakistan for a short visit. That was the last time Mr ul Islam saw Manzoor Khan. 9. In November 2015, Mr ul Islam travelled to Pakistan to visit his family. While he was there he went to Manzoor Khan's address in Lahore, as the latter owed him $300 and he wished to ask for repayment of the loan. The address was street number 104, house number 36, Ichchra Mor, Lahore. On arrival he asked to speak to Manzoor Khan and was told that he did not live at that address any more. Mr Saeed no longer lives in Australia. Mr Islam attended the hearing in case the respondent wished to cross-examine him, but the respondent did not require him for cross-examination. 10. The applicant also tendered a summary of his logbooks for the previous two financial years showing that he had driven a total of 32460 km in 2014 – 2015 and 32180 km in 2015 – 2016 (part exhibit A1). Applicant's submissions 1. Mr Higgins pointed out that the power in s 33F to vary, suspend or cancel any person's authority was to be exercised "Having regard to the purpose of authorisation under this Division [Division 5, relating to taxi drivers]". The issue of cancellation was therefore to be viewed through the prism of the purpose of taxi driver authorization under Division 5. 2. The expressed purpose of driver authorization is declared to be, first, to attest that the person is of good repute and a fit and proper person to be the driver of a taxicab (s 33(3)(a)). But there is a second part to the purpose, which is to attest that the person has sufficient responsibility and aptitude to drive a taxi (s 33(3)(b)). A person seeking a driver authority must therefore satisfy the cumulative purposes in both paras (a) and (b). As regards the applicant's aptitude, the extracts from his logbooks for the previous two financial years showed that he was driving over 32,000 km in both years. On average he drove a taxi for 87.8 hours, and 2693.3 km, per month (part exhibit A1). When one compares that with his traffic record (part exhibit A1), one sees that while there are breaches in the corresponding two years, none of them goes to his driving aptitude. That was relevant to the way the issue should be viewed through the prism of overall suitability. 3. The respondent's statement of reasons for cancellation (exhibit R1, tab 12) says nothing about his aptitude and thus does not rely on those factors. It is therefore accepted that the applicant is a safe driver. 4. In so far as the statutory declaration of 5 December 2014 is concerned, in the hand-written particulars he gave the driver's name as Manzoor Khan (exhibit R2, p 112), but that was rendered as Mahzoor in the respondent's fact sheet (exhibit R2, p 177). The respondent's request to Immigration for a search of their records also used the spelling Mahzoor (exhibit R2, p 72). The applicant had in fact corrected the respondent's mistake by pointing out that the correct spelling was Manzoor (exhibit R2, pp 74, 172). 5. The starting point for considering the question of fitness and propriety was therefore that the spectre of the supplying of false identities was based on an error on the part of RMS in relation to the spelling of the name. The central point is that the applicant gave a name (Manzoor Khan) in his statutory declaration and another person (Mr ul Islam) states that a person by that name does exist in their social circle. A disconnect arises because the respondent submits that there is no evidence that Mr ul Islam told the applicant about the name. The real issue, however, is whether or not Manzoor Khan is a real person, because the applicant's offences are more serious if he fabricated another person's identity. 6. The applicant states that he made the false declaration in order to oblige Riffat Khan, while Mr ul Islam says that he gave the name to Riffat and that he knows the applicant. Mr ul Islam states that Manzoor Khan exists, and he is not challenged on that point. A fine was paid to RMS because the applicant lied, but he did not do so in order to defeat a charge. 7. From the above, the applicant drew these conclusions: * the applicant did not engage in the conduct for his own benefit * the evidence does not show that he created a fictitious person, but that he used a member of their circle * the applicant's driving history shows him to be a competent driver, and * the respondent does not rely on any allegation that the applicant lacks the necessary aptitude to be a taxicab driver. 1. Consequently, there was no issue under s 33(3)(b). The statutory declaration offences were insufficient on their own to warrant cancellation of the applicant's driver authority. The fact that the applicant gained no benefit from the contraventions meant that they were correspondingly less serious. Consideration 1. The applicant is currently aged 57. He was born in Pakistan and attended university, graduating with a degree in electrical engineering. He studied with the Royal Naval Engineering College in the United Kingdom before serving for 14 years in the Pakistan Navy, attaining the rank of lieutenant. He arrived in Australia in 1995 and is a permanent resident. He is married with two children, who reside with him and his wife. Both children are studying at university. 2. The applicant has never previously faced prosecution of any kind. He has operated a taxicab service since 1998 without regulatory contraventions. 3. Section 52(1) of the PT Act gives this tribunal jurisdiction to review RMS cancellation decisions. Under s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act), the tribunal is to decide what is the correct and preferable decision having regard to the material then before it and the applicable law. In so doing it may exercise all of the functions conferred or imposed by any relevant enactment. It is not restricted to considering the material that was before the respondent when the decision under review was made, but may have regard to any relevant material before it at that time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 4. As Montgomery JM explained in Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10, 11, 12], these are not adversarial proceedings in which the applicant carries an onus of proof. By making an application, the applicant triggers a process of merits review by the tribunal. The applicant does not assume the responsibility of having to prove a case, nor does he or she cause an administrator to have to prove a case. The tribunal reaches its own conclusion as to the correct and preferable decision and "there is no presumption that the decision of the administrator is correct": McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357. 5. Under s 33(3) of the PT Act, the purpose of an authority is to "attest" that the person meets the requirements of the Act for taxicab drivers. The term "attest" is stronger than the concept of being satisfied of something, and envisions the decision-maker assuring the public that the authority holder is of good repute and meets the other criteria in s 33(3): Director-General, Transport New South Wales v AIC [2011] NSWADTAP 65, [12]. As the requirements are cumulative, the inability to attest to any one of them is fatal to an entitlement to a driver authority. Thus, even if the person is of good repute, he or she must in all other respects be "a fit and proper person to be the driver of a taxicab", and must also possess the requisite responsibility and aptitude. 6. In this case the respondent does not allege that the applicant is not of good repute or that he lacks the necessary aptitude, but argues that by reason of his two convictions for making the false statutory declarations, he is not a "fit and proper person" to be a taxi driver. The High Court has defined fitness and propriety as incorporating three components: "honesty, knowledge and ability": Hughes and Vale Pty Ltd v New South Wales [1955] HCA 28; (1955) 93 CLR 128. 7. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, Walters J said in a much-quoted passage: "In my opinion what is meant by ["fit and proper"] is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving 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". 8. The phrase was also discussed by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, [63], where his Honour said that "The question whether a person is fit and proper is one of value judgement. 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. 9. The tribunal elaborated the concept in Saadieh v Director-General, Department of Transport [1999] NSWADT 68, setting out the following factors to be considered in determining a person's fitness and propriety to hold a taxicab 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 reoffend, be the subject of further complaints or commit further traffic offences. 1. Questions of possible hardship to the applicant, and in this case his family, cannot be taken into account in determining whether RMS has made the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47]. 2. Taking the first Saadieh criterion, the nature, seriousness and frequency of the applicant's offences, the applicant knowingly submitted false statutory declarations on 12 December 2014 and 23 January 2015 nominating as driver at the time of a traffic offence a person who he knew at the time was not the driver. The offences are sufficiently separated in time that they could not be regarded as a single transaction or the result of an isolated act of impulsive wrongdoing. 3. The offences did not relate to his own driving, but to that of one of his drivers, Riffat Khan. In relation to the first offence, he said when interviewed that "I give him a little bit of favour….If I put Riff's name he lose the points…. I just cover to him". He explained that the person he nominated, Manzoor Khan, was a friend of his and had agreed to take the points for the offence if the applicant paid the fine. The applicant made a second statutory declaration in relation to that offence on 2 April 2015 to SDRO nominating the correct driver, Riffat Maqsood Khan, to rectify the original false nomination (exhibit R2, p 173). He had known at the time of the original declaration, however, that he had given a false name when nominating the driver. 4. He also confirmed that at the time of making the false declaration on 23 January 2015, he had known that the driver was in fact Riffat Maqsood Khan, but stated "[S]ame as the other one…. I cover for my friend". He confirmed that the person he nominated, Ali Mohammed, was a friend of his who agreed to take the points for the offence if the applicant paid the fine. Again, the applicant made a second statutory declaration on 2 April 2015 to SDRO nominating the correct driver, Riffat Maqsood Khan, in order to rectify the original false nomination. 5. Mr Higgins submitted that as the declarations did not relate to his own licence, he gained no benefit from them, and that was a mitigating factor making the offences less serious. The evidence shows, however, that he did stand to gain from helping Riffat Khan to avoid losing his licence by directing the points to another person. At interview he said his reason for making the two false declarations was: "The reason, I borrow the money from the banks….If no one drive the taxi I lose the money…so that's why I keep that driver on the road to drive my cab" (exhibit R2, p 172). 6. In this State, making a false declaration for a material benefit is a serious offence. Under s 25A of the Oaths Act 1900, conviction on indictment can lead to imprisonment for up to 7 years. So is making false statements in order to transfer traffic points. As I pointed out in Miah v RMS [2013] NSWADT 264, a former Federal Court judge was sentenced in 2009 to three years' imprisonment for offences arising out of an attempt to avoid traffic points following a speeding charge by falsely attributing the violation to another person. He was also disbarred, lost his Queen's Counsel commission, his Order of Australia and his National Trust listing as a "Living National Treasure": R v Einfeld [2009] NSWSC 119. 7. Similarly, in England a former Blair government cabinet minister, Chris Huhne, was sentenced in 2011 to 8 months' imprisonment for transferring some traffic points to his then wife in 2003. His (by then ex-) wife, Vicky Pryce, incurred a similar sentence for her part in the conspiracy and was stripped by the Queen of her honour as Companion of the Order of the Bath. 8. This kind of offence is thus viewed very seriously, and not only in New South Wales. Further, in this case the offences related directly to driving by a driver in his employ. As Huntsman JM noted in Ghachame v RMS [2013] NSWADT 144, [54], a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. 9. Since Miah, a number of other tribunal cases have dealt with false statutory declarations made in similar circumstances. In Ullah v RMS [2014] NSWCATAD 71, the applicant had made four false statutory declarations and had also failed to declare some traffic offences. The tribunal found that he was not a fit and proper person to hold a taxi driver authority 10. Babikir v RMS [2014] NSWCATOD 61 involved two false statutory declarations. Referring to Naveed v RMS [2014] NSWCATOD 4, the tribunal said that the false declarations in that case reflected badly on the applicant's honesty, which was fundamental to the question of his fitness and propriety. There again, the offences related directly to driving and gave a false picture of his driving record. 11. In Saifi v RMS [2014] NSWCATOD 24, the tribunal found that an applicant who had delivered one false statutory declaration to SDRO was for that reason not a fit and proper person to hold a driver authority. 12. Parvez v RMS [2014] NSWCATOD 13 concerned two false statutory declarations, which the tribunal found reflected on the applicant's honesty. As they related directly to driving, they created a false picture of his driving record. They were serious offences and meant that the tribunal could not attest that he was fit and proper. 13. In Cai v RMS [2014] NSWCATOD 34, there were three false statutory declarations, which led the tribunal to find that the applicant was not a fit and proper person to hold a driver authority. Although the applicant might have had direct knowledge only of one of the declarations, the tribunal considered that he had been reckless in relation to the other two. 14. In every one of the above cases, therefore, the making of even a single false statutory declaration in relation to driving has led the tribunal to the conclusion that the applicant was not a fit and proper person to hold a driver authority. In argument the parties did not refer to a single instance involving false statutory declarations in which the tribunal had set aside a cancellation decision. While every case coming before the tribunal must be judged on its own merits, that unambiguous line of authority provides guidance as to the appropriate course to be taken in such cases. 15. The applicant's convictions do reflect adversely on his honesty and therefore on his fitness and propriety. I am not, however, convinced that the applicant aggravated his offences by nominating a person, Manzoor Khan, who does not exist. Mr ul Islam's statement asserts that Manzoor Khan is a real person who was living in New South Wales around the relevant time and was part of his and the applicant's circle. Mr ul Islam gives an account of the circumstances, movements and connections of the persons involved that does not give the appearance of being a fabrication. The respondent did not cross-examine him, although he was present at the hearing in case he were required. His statement is thus unchallenged. 16. Mr Wozniak pointed out that Immigration had no record either of a Mahzoor or of a Manzoor Khan. That fact is not necessarily conclusive, however, as it is well known that there is considerable scope for ambiguity and error involved in transliterating into Roman characters the names of persons whose names are normally written in Arabic script. 17. As regards the second Saadieh factor, the nature, seriousness and frequency of any complaints made against the applicant, the evidence shows that the applicant has had no complaints lodged against him and received one complimentary mention, for giving helpful assistance, in 2006. 18. The third Saadieh criterion is the applicant's driving record, which is relevant in this case even though the offences actually related to Riffat Khan's driving. The applicant's driving record (part exhibit A1) is far from exemplary. Since receiving his unrestricted licence in 1995, he has been issued with demerit point warning letters on five occasions. His list of violations includes seven instances of disobeying traffic lights, the most recent of those being in October 2014. He appears to be a serial offender in that class of potentially dangerous infringement alone, although overall, given the amount of driving he has undertaken, one would not say that his record qualifies as egregious. 19. In relation to the fourth Saadieh factor, the applicant's reputation in the community, the applicant has unusually submitted no references or other evidence in relation to his community standing. While I do not regard that lacuna as crucial, especially as the respondent does not argue that he is not of good repute, it does mean that any adverse inferences on fitness and propriety can be more readily drawn. 20. Finally, under Saadieh the tribunal must consider the likelihood that the applicant will reoffend or commit further traffic offences. The false declaration offences in this case are relatively recent and must have involved an element of deliberate planning. 21. The applicant has acknowledged the offences and at interview admitted that he had made "a big mistake". Through his legal advisers he has expressed regret about his behaviour. He has not, however, given any evidence himself, whether written or oral, which is an unusual circumstance in cases of this type. 22. In those circumstances, the respondent contended, the tribunal should draw an inference under Jones v Dunkel [1959] HCA 8; (1958 – 59;) 101 CLR 298. In Howell v Macquarie University [2008] NSWCA 26, the Court of Appeal, quoting Manly Council v Byrne [2004] NSWCA 123, [51] – [52] explained the consequences that can be drawn from Jones v Dunkel concerning the obligations of a trial forum in a civil trial by judge (or presumably tribunal member) alone: Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn…. Applying this principle to the situation of a trial by judge alone, there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences. 1. For the kinds of reasons expressed in Sterjovski above, I think the second, less determinative, category of inference from the absence of evidence from the applicant is as far as it is appropriate for the tribunal to go in such a case. 2. The applicant's lack of any prior non-traffic criminal convictions may be some evidence pointing towards the likelihood of his reoffending being low. The absence of any evidence from the applicant, however, makes it more difficult to reach a clear conclusion in his favour in relation to the final Saadieh factor. The two Local Court convictions for making false statutory declarations stand and must be regarded as reflecting negatively on his honesty. 3. It can hardly be doubted that honesty must be central to any consideration of whether someone is a fit and proper person with the responsibility and aptitude to drive a taxicab in accordance with the statutory conditions, the law and custom. An analogy may be drawn with Sara v Director-General, Department of Transport [2003] NSWADT 157, where a taxi driver had been knowingly involved in a Cabcharge fraud perpetrated by one of his regular passengers. Despite his 39–year driving record with no complaints against him, the cancellation of his licence was affirmed. 4. Mr Higgins submitted that if the applicant's conduct were viewed in the global context of fitness and propriety together with the other s 33(3) criteria, responsibility and aptitude to drive a taxicab, a less serious picture emerged. The difficulty with that argument is that the s 33(3) factors are expressly declared to be cumulative by the use of the word "and" at the end of s 33(3)(a). The tribunal is thus asked to attest to all of the statutory criteria individually as well as together. Whatever its findings in relation to his responsibility and aptitude as a driver, the tribunal is required to attest to fitness and propriety. 5. After weighing the relevant considerations, and in light of all the evidence, I am unable to conclude that the applicant has shown that the tribunal may attest to his suitability and fitness to hold a taxi driver's authority at the present time. In light of his overall record, I do not exclude the possibility that at some time in the future he may be able to meet the statutory criteria. But he has committed serious offences and it is too soon to say with confidence that if he were to again find himself in a difficult predicament, he would not reoffend in some significant way. Order 1. Decision under review 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: 12 January 2017