Khan v Roads and Maritime Service

The Respondent's reasons for decision 8The Respondent wrote to Mr Khan on 2 April 2014 advising him that it had determined to cancel his driver authority. The statement of reasons recited the complaint of this sexual conversation, his exposing of his penis and his grabbing of the passenger's right hand. It referred to the fact of the passenger's mobile phone texts to a friend after the incident. 9The statement of reasons quoted the continuing obligation of the RMS to ensure that public passenger services meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services. Persons authorised to drive public passenger vehicles are required to be of good repute and in all other respects fit and proper. The fact of the alleged behaviour raised doubt whether Mr Khan was a fit and proper person to remain the holder of an authority. It was also expected that an authority holder have sufficient responsibility and aptitude to drive a taxi in accordance with the law. Passengers were entitled to feel safe and secure while using the services of an authorised taxi driver. Mr Khan had failed to demonstrate those qualities. The statement concluded that to allow a person to continue to drive a taxicab under these circumstances is an unacceptable risk to the safety of passengers and the wider community. RMS believed that any member of the travelling public being aware of his actions would object to being a passenger in a taxicab driven by him.

The Passenger Transport Act 10The Passenger Transport Act 1990 (the PTA) contains provisions governing the purposes of, the mechanisms for granting, and the power of the Administrator to cancel or suspend an authority to drive a taxi-cab. S.33 of the PTA sets out the purpose of the authority, while s.33F gives the Administrator power to cancel or suspend that authority at any time, "having regard to the purpose of the authority". 11Section 33 (3) of the PTA sets out 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.

The Hearing 12The Tribunal's jurisdiction to hear and determine this application for review is found in section 52 of the Passenger Transport Act 1990 and section 63 of the Administrative Decisions Review Act 1997. 13The authorities accept that the Tribunal's review is for the purpose of determining the correct and preferable decision by way of a merits review. See Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 at paragraphs 10, 11 and 12. 14The Tribunal may affirm, vary or set aside the original decision. 15The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought before the Tribunal. The Tribunal is not restricted to the consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 16Section 38 of the Civil and Administrative Tribunal Act 2013 (CATA) provides that The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 17The hearing commenced on 5 June 2014. The tribunal had before it the following documents:

• Mr Khan's application for review and stay dated 15th April 2014
• the section 58 documents produced by the Respondent
• a statement from Mr Khan dated 12th April 2014 18On the second day of hearing, 4 August 2014, the Respondent placed before the tribunal
• a DVD recording of the images of the four security cameras in Mr Khan's taxi cab on the night of Wednesday the 4th and the morning of Thursday the 5th of December 2013;
• a written record of Mr Khan's interview with RMS officers on 23rd December 2013; and
• Transcript of the evidence heard by the tribunal on the 5th of June 2014.

The issue for the tribunal 19The issue before the tribunal was whether Mr Khan was a fit and proper person to hold a taxi driver authority. The sole matter before the tribunal which brought his fitness and propriety into question was whether he had had an interaction with Ms Montalban in his cab in the early morning of Thursday, 5 December 2013 in which he initiated and conducted an inappropriate sexual conversation and then exposed his penis to Ms Montalban and then pulled her right hand as she was leaving the cab to get her to touch his exposed penis. Ultimately the matter before the tribunal is one of credibility of the witnesses, Ms Montalban and Mr Khan. 20The alleged behaviour is said to have occurred while Mr Khan was driving a taxi cab. The case law indicates that fitness and propriety is to be measured in terms of the role the Applicant is to perform - that is the role of taxi driver. In these circumstances should the alleged behaviour be proved the Respondent submitted that Mr Khan could not be considered to be fit and proper to hold a taxi driver authority.

Evidence of Ms Montalban. 21Ms Montalban had provided a statement about the events to the RMS which is countersigned and dated by RMS officers on 18th December 2013. The contents of this statement were read to Mr Khan by the RMS officers in a recorded interview of 23rd December 2013. Ms Montalban gave oral evidence via Skype as she was overseas at the dates of hearing. 22Her account of the events was as follows. She had been to the cinema with a friend and had dinner and a drink afterwards. She had drunk wine at dinner and a scotch at a bar after dinner. She said that when Mr Khan had picked her up she sat in the front passenger seat. A short while into the trip he had told her that 2 men had on an occasion had sex in the back seat of the cab while he was driving. He had told them that his penis was bigger, they had asked him if he wished to join in - but he declined. He had then told her that on an occasion a man and a woman had commenced having sex in the back seat of the cab while he was driving. He had asked them to stop as he did not wish them to stain the seat. As they approached her destination in Enmore Mr Khan had then told her that on an occasion he had been driving a drunk female passenger to West Pymble and that she had initiated sexual contact with him, then had invited him into her home where they had sex. 23As Ms Montalban was paying the fare with her credit card she said that Mr Khan exposed his penis to her and pulled her right hand to get her to touch his penis. She declined and alighted from the taxi cab. 24Ms Montalban said she felt initially uncomfortable at the raising by Mr Khan of the story of people having sex in the rear seat of his taxi cab. She was concerned about getting home and laughed in order not to provoke action from the driver. 25Under cross-examination she had denied being intoxicated and said she had had three drinks over six hours. She denied having complained to the driver that he was taking her the long way home. She conceded that she may have asked the driver where he came from. She is an immigration lawyer and this often comes up in casual discussion. She denied asking the driver "Why are you driving so slowly?" or complaining about him taking her on a longer route. She denied asking him if he was a student. She denied that the driver had said to her "It is nothing to do with you" - in response to her question as to where he had come from to be in Australia. She said that she was a refugee lawyer and this conversation was outside of her scope. She said that at that time of the night there was not much traffic. She agreed that there were many opportunities to exit the taxi because of traffic lights on the way. However she said she just wished to get home. She denied saying to the taxi driver "Don't worry you will pay for this. " She denied having received a card from the driver which set out how to make a complaint to Taxis Combined and RMS. She did not wish to get out of the cab before her destination because she considered she would be exposing herself to further risk. A friend had recently been attacked in the street in the area. She paid by credit card in order to have proof of the trip from the receipt. She denied having any motive for making up the story saying "I have zero motive for making this up." She denied being intoxicated and offended by Mr Khan's bluntness and said that she did not care if Mr Khan had not told her about his immigration status. She said she wished to end the conversation and the taxi ride as smoothly as possible because the driver had dropped her near her house and she was concerned that he knew where she lived. She sent a text to her friend after the trip telling him of what had occurred. He had responded next morning. She spoke with a colleague when she arrived at work on the following day. She delayed seeing the police until the following Monday as she wished to have the support of a colleague in reporting the matter. 26A copy of the text message she had sent her friend after she alighted from the taxi was attached to her statement of 18th December 2013, together with the Cabcharge receipt for her journey on 5 December 2013 from Oxford Street to Enmore.

Evidence of Anatoly Louganov 27Mr Louganov gave oral evidence to the Tribunal. Mr Louganov had met with Ms Montalban to see a film and have dinner on the night of Wednesday, 4 December 2013. He denied that Ms Montalban was intoxicated at the end of the evening and said she seemed quite fine. He did not recall many details of the evening. Ms Montalban had sent him a telephone text message at 12:21 am, not long after she entered the cab. This text message read "Thanks for the great night." Mr Louganov responded. He had then received a telephone text message from Ms Montalban which he had seen the following morning when he turned on his mobile telephone. The text stated: "OMG you will never believe what just happened to me!!!!! The taxi driver started telling me stories about people having sex in his taxi and then at the very end of my trip pulled out his stick. WTF!!!" 28On Thursday, 5 December 7:31 am Mr Louganov sent a text to Ms Montalban as follows: "!!!!!!! Whoa no way!! Are you alright?" 29Ms Montalban responded: "I feel a little violated"

Evidence of Marion Russell 30Ms Russell had provided a written statement. She also gave oral evidence to the tribunal. She said that she had been Ms Montalban's work colleague for approximately one year. She recalled that when Ms Montalban came to work on Thursday, 5 December 2013, Ms Montalban appeared shocked and rattled. She had a conversation with Ms Montalban. She understood from Ms Montalban that the taxi driver who had taken Ms Montalban to her home the night before had indecently exposed himself to her.

Evidence of Mr Khan 31Mr Khan had provided 2 written statements to the tribunal. One was dated 12th April 2014 and another the 30th May 2014. He had also participated in an interview with RMS officers on 23rd December 2013. The respondent had produced a transcript of this interview to the tribunal. Mr Khan also gave oral evidence to the tribunal. 32Mr Khan's oral evidence was that he had held a driver's licence since coming to Australia in 1998 from Pakistan. He had driven for Taxis Combined since 1998 as well as for another company. His normal shift was from 2:30 pm to 2:30 am the next morning. He would usually carry 20 to 30 passengers a day. On Fridays, it was approximately 50 passengers. He said that the 4th and 5th of December had been a normal to busy day as it was Thursday night and hence long shopping hours. 33He said he was divorced with a 10-year-old son and was in a relationship at the time of the alleged events in December 2013. He had never been charged previously with a crime and had committed no traffic offences. He had not previously been suspended. He had five complaints made against him during the course of his career as a taxi driver. He had become aware of these when he applied to become a self-service driver. There were five complaints over the space of 13 years. One was because he arrived one minute late for a passenger. The second was when he picked up a passenger at the airport who was going to Manly. He was driving a sedan and the passenger had a surfboard which did not fit in that sedan so he was unable to carry the passenger and his surfboard. Another involved an allegation made by another motorist that he had failed to give way. He had never had a complaint relating to a sexual matter made against him previously. 34He had first become aware of the allegations made against him when asked a day or so beforehand to attend an interview at the RMS on 23 December 2013. Prior to the interview he did not know what the matter was about. When the RMS officers told him about the complaint he did not recall the passenger. He did recall her however when shown the CC TV footage by the RMS officers. He recalled that he had picked her up in Oxford Street near the end of his shift when he was tired. She had jumped into the front seat, when most passengers usually travel in the back seat. They travelled for 6 or 7 minutes in pleasant conversation until he reached King Street Newtown. He had taken her the most direct route travelling down Oxford Street into Wentworth Avenue and then to King Street. When in King Street the passenger's tone changed and she asked him: "Why are you driving so slow?" 35He said to her: "It's a 50 km zone and I am on four points." 36She then asked him: "How did you come to be in Australia. Are you a student?" 37He recognised the change of tone having previously been subject to racist comments. It was a critical tone. He responded: "It is nothing to do with you." 38The passenger then responded: "You took me the long way." 39He said: "I asked at the beginning which way you want to go." 40After King Street he turned into Enmore Road. As she was paying the passenger said to him: "You will pay for this as well." 41As he thought she sounded angry, he gave her a card with the number on it to make a complaint to the company and RMS. She alighted from the taxi and he did not see her further. 42He denied having talked about two gay passengers having had sex in the back seat of his cab or of telling them that his penis was bigger than theirs or declining an invitation to join in. He denied telling Ms Montalban a story about two heterosexual passengers having sex in his back seat. He denied having talked to Ms Montalban about an intoxicated lady who he was driving home to Pymble and that she had got into the front seat, fondled his penis and given him a head job or that he had then gone into her home and had sex with her. He denied exposing his penis to Ms Montalban. He denied grabbing her right hand to get her to touch his exposed penis. 43He had seen the CC TV footage. He did not recall why during the course of the journey it showed Ms Montalban raising her hand and pulling a "yucky face". He did not recall her pulling faces. He had not taken Ms Montalban the long way. He thought that the cost of the fare - $36 - was a reasonable cost for the trip from Oxford Street to Enmore. 44Mr Khan was asked about the passenger's motivation for making up the story about the inappropriate sexual talk, alleging he had exposed his penis and that he had attempted to get Ms Montalban to touch his exposed penis. He said that he thought that Ms Montalban was angry because she thought she had been taken the long way and because he had responded "It is nothing to do with you" when she had asked him how he came to be in Australia. It was the end of his shift, he was tired and perhaps he'd overreacted a bit 45He said that Ms Montalban was the only lady in December 2013 to whom he had given the Taxis Combined and RMS complaint card.

Evidence of Mr Minhas 46Mr Minhas had provided a written character reference for Mr Khan dated 18th March 2014. The character reference did not raise the matter before the tribunal. Mr Minhas also gave oral evidence to the tribunal. Mr Minhas said he had worked for Dosti Multicultural Arts for 15 years and is the Director. He had come to know Mr Khan as Mr Khan had volunteered for the service for the last two years in its cultural and charity activities and in producing radio shows. His understanding was that he had been accused of sexually harassing or sexually assaulting a woman in the taxi. He did not think that Mr Khan was capable of thinking the matters he was alleged to have done - let alone doing them. He said Mr Khan was a quietly religious man. He had joined them the last few years for Eid ul Fitr celebration at the end of Ramadan. He was a very shy person who did not talk to women. His understanding from Mr Khan of what had occurred was that he had had a conversation with a woman in the taxi and that this had caused her to make up the story. He thought very well of Mr Khan and said that Mr Khan would attend functions in his family home with his children and that he continued to consider him to be a good person.

Evidence of Mr Zafar 47Mr Zafar had provided a written statement addressed TO WHOM IT MAY CONCERN dated 12th April 2014. It did not refer to the matters before the tribunal. He also gave oral evidence to the tribunal. He had known Mr Khan for 12 to 13 years. Their friendship started when he had also been working in the taxi business. He is now hire car driver. He understood that Mr Khan's taxi licence had been cancelled because of a complaint that he had exposed himself to a passenger while driving. He said that Mr Khan was very honest and he did not believe that he could do this. The fact of the accusations had not changed his social and family interactions with Mr Khan. Mr Khan was still welcome in their home in the company of his 12-year-old daughter and nine-year-old son.

Findings of fact 48The tribunal was presented with two conflicting accounts of what had occurred in Mr Khan's cab on the night and early morning of 4th and 5th December 2013. 49The tribunal is not bound by the rules of evidence. However in determining a matter of this gravity, given its implications for Mr Khan's driver authority, the tribunal considers it should be satisfied on the basis of section 140 at the Evidence Act 1995 NSW. This sets out as follows: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged 50The allegations are grave - not only in their nature but also in their implications for Mr Khan's fitness and propriety to hold a taxi driver authority. The actions are alleged to have occurred during the very role for which the Respondent and the Tribunal must attest Mr Khan as being fit and proper. 51The tribunal considered both accounts of what occurred in Mr Khan's taxi cab in the early hours of Thursday morning 5th December 2013. The tribunal accepted the evidence given by Miss Montalban. The reason for this was that in giving her evidence Ms Montalban was consistent with her prior statements. She was cross examined by Mr Khan's counsel but was not shaken under cross-examination. She gave her evidence in a calm and measured way. Her account was internally consistent. As she told the tribunal she had "zero motivation" to make up the story. 52The tribunal does not accept that Ms Montalban was affected by alcohol such that she was mistaken about the events in some way. She had sent two text messages on her mobile telephone during and after the taxi ride. There is CCTV footage of her face during the taxi ride. Neither the texts not the CCTV footage suggest she was affected by alcohol such that she was mistaken about the events in the taxi cab. 53Ms Montalban's text message to Mr Louganov advising him of what she said occurred in the taxi is consistent with her statement to the RMS officers and her evidence to the tribunal. 54The tribunal also heard from Ms Montalban's workmate Ms Russell. She reported that Ms Montalban had arrived at work distressed the following morning and had related the event. While these matters do not prove that the incident occurred, they do demonstrate Ms Montalban's making of a complaint about the incident very soon afterwards. 55Ms Montalban also told the tribunal that she had contacted the New South Wales Police and on their referral she had then contacted Roads and Maritime Services and provided them with a statement. She had persisted in pursuing the matter. 56The tribunal has also considered the CD of the four security cameras inside Mr Khan's taxi cab. While the trip took some 20 to 25 minutes the footage is reduced to 4 minutes. The footage does not show below approximately shoulder level of Ms Montalban or Mr Khan. However it does show Ms Montalban's facial expressions during the trip. The tribunal observed Ms Montalban to grimace and bring her hand to her mouth on a couple of occasions during the footage. This was referred to during the evidence by the parties as Ms Montalban having a "yucky face". The tribunal considered that this was consistent with Ms Montalban hearing Mr Khan's stories about passengers having sex in his vehicle and feeling uncomfortable about what she was hearing. 57The tribunal accepts that Ms Montalban asked Mr Khan where he was from. Logically, this is likely to have occurred near the commencement of the journey and the commencement of any conversation. However the balance of Mr Khan's account was not credible. Mr Khan said that the journey had commenced with 6 or 7 minutes of pleasant conversation and that then in sequence Ms Montalban had become hostile about him driving slowly, racist in questioning how he came to be in Australia and dissatisfied with the route he was taking. 58Ms Montalban denied having asked further questions about Mr Khan's origins, she denied having asked Mr Khan why he was driving slowly or why he was taking the long route. Ms Montalban told the tribunal that she did not consider that Mr Khan had taken the long route and she had not become engaged in a verbal dispute with him. Mr Khan's account of the sequence of the conversation as set out does not make logical conversational sense. 59It was not clear to the tribunal whether Mr Khan was recalling an interaction with Ms Montalban or another passenger. He indicated in his evidence that it had been Thursday night and very busy with late-night shopping. However it had not been Thursday night but rather Wednesday night which is not a late night shopping night. Mr Khan's facial expressions in the CCTV footage do not illustrate a driver irritated by racist questioning about his origins or complaints about the speed at which he is driving or the route he is taking. 60Ms Montalban denied having been provided with the Taxis Combined or Roads and Maritime Services complaint card. 61Mr Khan gave an account of Ms Montalban asking him about his origins, his response "It is no business of yours" and Ms Montalban then complaining he was driving slowly and taking the long route as motivation for saying "you will pay for this" and then making up the story about him. 62The tribunal does not accept Mr Khan's account of Ms Montalban's. 63motivation for making up the story against him. The tribunal does not accept Mr Khan's account of Ms Montalban disputing the speed at which he was driving, being offended by his terse response to her alleged questions about his origins or questioning the route he was taking. Even if this conversation had occurred, the Tribunal is still satisfied that Mr Khan related stories about sexual matters in his cab to Ms Montalban, that he exposed his penis to her and pulled her hand in an attempt to have her touch his penis.

Fit and proper 64The meaning of fit and proper person in the context of issuing a driver authority was considered by the NSW ADT Appeal Panel in the matter of Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 at 20. In that matter Deputy President Hennessy said that the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. 65The content of the concept of "fit and proper to hold a licence" has been considered in numerous cases. In Sobey v Commercial and Private Agents Board 20 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." 66It is well established that the discretion to issue a licence or authority must be exercised keeping in mind the activities in which the person will be engaged if an authority is granted (see Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 156 and Bond v Australian Broadcasting Tribunal [1990] HCA 33; (1990) 170 CLR 321).T 67The Appeal Panel in Murray referred to the approach of the High Court to the phrase "fit and proper person" as set out in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. The ABT was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that: 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. 68In the same case, Mason CJ stated at [63] 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. This tribunal's synthesis of these requirements in this matter is that Mr Khan's fitness and propriety must be determined in the light of the role that he undertakes as a taxi driver. The Tribunal must consider the evidence before it about his integrity, honesty, knowledge and ability as it relates to that role. It is a determination to be made by the tribunal taking into account and weighing up matters both contrary to and in favour of Mr Khan. 69Saadieh's case sets out factors for consideration by a decision maker concerning cancellation of an authority. See Saadieh v Director General, Department of Transport [1999] NSWADT 68. These factors include the severity of the offence. Those considerations are:

• "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." 70In 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. 71The tribunal has considered the factors set out in Saadieh's case. In this matter Mr Khan has not been convicted of a criminal offence. However Ms Montalban's complaint against him is a serious matter. It is the only complaint of a serious nature against Mr Khan. The other five complaint matters are not in the tribunal's understanding such as to warrant cancellation of his authority. 72The tribunal is not presented with concerns about Mr Khan's driving record. It was presented with evidence from Mr Minhas and Mr Zafar about their opinion of Mr Khan as being of good repute. 73As Mr Khan has maintained his innocence of the complaint made by Ms Montalban, the tribunal has not been presented with evidence about remorse or rehabilitation.

Decision 74The objects of the Passenger Transport Act include in section 4(e): "To encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services..." 75These objects underpin the authorisation of persons to be taxi drivers and the cancellation of authorities. The matters complained and found proved go to the heart of Mr Khan's taxi driver's authority. The tribunal considers that the correct and preferable decision is that Mr Khan's authority should be cancelled. The decision of the Respondent 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: 03 November 2014