1 The applicant held an authority to drive taxi cabs issued under the Passenger Transport Act 1990 on 5 August 1999. On 26 February 2005 while driving a taxi he was stopped by Police and officers of what was then the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). He was detained by the DIMIA officers on the basis that he was illegally in Australia, his visa having expired on 24 July 2001.
2 On 4 March 2005 the Administrator suspended the applicant's authority. The applicant requested internal review of that decision, and the decision was affirmed. The applicant applied to the Tribunal for review of the decision, and on 6 April 2006 the decision to suspend the authority was set aside: Kharbanda v Ministry of Transport [2006] NSWADT 101. The respondent sought leave to appeal this decision to the Appeal Panel out of time, and this application was refused: Ministry of Transport v Kharbanda [2006] NSWADTAP 61.
3 The applicant's authority expired and on 10 October 2006 he applied for it to be renewed. On 22 November 2006 a delegate of the Director General decided to refuse the application for renewal on the ground that because the applicant was an unlawful non citizen with no right to work in Australia he was not a fit and proper person as required by s33(3) of the Passenger Transport Act. The applicant requested internal review and the decision was affirmed on 9 January 2007. On 6 February 2007 the applicant applied to the Tribunal for review.
4 The Tribunal issued a summons at the request of the respondent for the production of documents by DIMIA. The applicant opposed that, and applied for the summons to be set aside. On 14 August 2007 the application that the summons not be issued was refused (Kharbanda v Ministry of Transport [2007] NSWADT 217), and directions were made for filing and serving of documents and submissions. A hearing was scheduled for 30 October 2007. On 2 October 2007 the applicant requested an extension of time for filing submissions, stating that "[d]ue to the complexity of the matter and the recent change in the legislation and the serious lack of resources and the distressful and very troubling environment of the detention" he was unable to prepare and file his reply by the due date. The extension was granted and the hearing date vacated, and the matter was scheduled for hearing on 28 November 2007.
5 The applicant participated in the hearing on 28 November 2007 by telephone, having filed written submissions on that date. The applicant requested an adjournment for an extended period of time on the basis that the facilities at the Villawood detention centre which he needed to prepare his case were restricted, and that he was also trying to obtain his freedom from immigration detention. The applicant indicated that he may need up to six months. The application was refused, on the basis that the applicant would be given time to make submissions after the hearing. At the hearing the respondent's representative raised an issue not previously dealt with in the respondent's determinations, arising from the coming into force on 1 September 2007 of the Passenger Transport Regulation 2007 (the 2007 Regulation) and the consequent repeal of the Passenger Transport (Taxi-cab Services) Regulation 2001 (the 2001 Regulation). The respondent's representative argued that the 2007 Regulation contains the law which the Tribunal must apply in determining the review. The applicant requested that he have an extended period to respond to these submissions, and directions were made for the applicant to file and serve his written submissions by 29 February 2008, and for the respondent to file and serve any written submissions in reply by 14 March 2008, with the decision to be made after that date. On 3 March 2008 the applicant requested an extension of time to file his submissions until 10 March 2008, stating that "[I]f the tribunal does not receive my submission by next Monday you may proceed to make a decision on the material before you; I will not ask any more extensions of time after this." The applicant did not file any further written submissions.
Issues
6 The issues to be determined are:
(a) whether the applicable Regulation is the Passenger Transport (Taxi-cab Services) Regulation 2001 ("the 2001 Regulation") or the Passenger Transport Regulation 2007 ("the 2007 Regulation"); and
(b) if the 2001 Regulation applies, whether the applicant meets the requirements of cl 33(2)(f)(i) and (ii).
Respondent's case
7 The respondent submitted that the applicable Regulation is that in force from 1 September 2007, applying the general principle that the Tribunal should apply the law as at the date of its decision, subject to any accrued rights arising under s30 of the Interpretation Act or to any specific provision in the amending legislation. The respondent submitted that the applicant has no accrued right, and that any accrued right has been overridden by cl 240 of the 2007 Regulation. Esber v Commonwealth (1992) 174 CLR 430 should be distinguished, as this is an application for a new licence rather than involving an existing right, and Foley v Commissioner of Police [2005] NSWADT 12 should be followed. If the applicant did have an accrued right, that was overridden by cl 240 of the 2007 Regulation, which has the effect that the application for a new authority is taken to be an application made under the 2007 Regulation. If the 2007 Regulation applies, the applicant cannot satisfy cl 29(2)(e)(i) which requires that he satisfy the Director General that he may lawfully work in Australia.
8 In the alternative, if the Regulation in force at the time of the decision under review applies, the decision should be affirmed on the basis that the applicant does not satisfy cl 33(2)(f)(i) and (ii). The applicant has no right to work in Australia, and would commit an offence under the Migration Act 1958 if he were to drive a taxi. That means that he cannot satisfy the provisions of cl 33(2)(f) of the 2001 Regulation, as he could not demonstrate that he has sufficient responsibility to drive a taxi-cab "in accordance with law". The applicant could also not be regarded as being a "fit and proper" person to hold an authority if he would be doing something that would constitute an offence. There is a distinction between the discretionary power to suspend an authority under s33F of the Passenger Transport Act, and the requirement in s33B(2) that an applicant for an authority "must" meet any criteria in the regulations.
Applicant's case
9 The applicant relies on the decision in his favour in Kharbanda v Ministry of Transport [2006] NSWADT 101, and submits that the respondent cannot revisit the issue. The respondent had failed to obtain leave to appeal out of time, and did not exercise the right to appeal to the Supreme Court. The applicant submits that cl 29(2)(e)(i) of the 2007 Regulation is invalid as it is not authorised by the Passenger Transport Act, on the basis that an applicant's immigration status cannot be taken into account in decisions under the Passenger Transport Act.
Legislation
10 Division 5 of Part 4 of the Passenger Transport Act 1990 sets out the scheme for the issue of authorities to drive taxi-cabs. Section s33(3) sets out the purpose of an authority:
(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.
11 The power to grant an authority is conferred by s33B:
33B Grant or refusal of application
(1) Having regard to the purpose of authorisation under this Division, the Director-General may grant an application and authorise the applicant to drive a taxi-cab, or may refuse the application.
(2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.
(3) An applicant is required to pay any fee fixed by the regulations for the authority when first issued.
(4) An authority is to be given in writing by the Director-General to the authorised person.
(5) The authority may specify the category or grade of the authority, and (without limitation) may specify the kind or kinds of vehicles for which the authority is granted.
12 Section 33C(2) provides that an authority is renewable from time to time on payment of the fee fixed by the regulations. The procedures for making and dealing with applications, and for renewal, may be settled by the Director-General, subject to any provisions of the regulations: ss33A(3), 33C(3).
13 The power to make regulations is conferred by s63, which relevantly provides:
Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, the regulations may make provision for or with respect to the following:
…
(g) requirements as to service contracts, licences, authorities and authorisations under this Act, including:
(i) their form, and the terms, conditions and particulars applying to them, and
(ii) forms and conditions to be observed when submitting applications or tenders for them, and
(iii) matters relating to their award, refusal, transfer, suspension, cancellation or surrender, and
…
(3) The regulations may exempt, or provide for the exemption (either absolutely or subject to conditions) of, any person or vehicle or any class of persons or vehicles from all or any of the provisions of this Act.
14 The criteria for the grant of an authority under the 2001 Regulation are provided in cl 33:
33 Criteria for authorisation to drive taxi-cabs
(1) The object of this clause is to set forth, for the purposes of section 33B (2) of the Act, the criteria that an applicant for an authorisation to drive taxi-cabs must meet before the application is granted.
(2) The applicant:
(a) must be at least 20 years of age, and
(b) must hold a driver licence, and
(b1) must have held for a total of at least 12 months in the 2 years immediately preceding the date of the application, an Australian driver licence, and
(c) must have successfully completed a taxi-cab driver training course approved by the Director-General (or must have such competence as a driver of a taxi-cab as the Director-General considers appropriate), and
(d) must have passed an examination or assessment, at a level determined by the Director-General, in the following:
(i) geographical knowledge of areas in which taxis ply for hire,
(ia) such part or parts of the taxi-cab driver training course referred to in paragraph (c) as may be required by the Director-General (or must have such competence as a driver of a taxi-cab as the Director-General considers appropriate),
(ii) medical fitness,
(iii) knowledge of this Regulation, and
(e) must have passed an examination or assessment, at a level determined by the Director-General, in both written and oral communication in the English language (or must have such competence in that language as the Director-General considers equivalent to that level), and
(f) must satisfy the Director-General that he or she:
(i) is of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and
(ii) has sufficient responsibility to drive a taxi-cab in accordance with law and custom.
…
15 The 2007 Regulations came into effect on 1 September 2007, and provide:
29 Criteria for authorisation to drive public passenger vehicles
(1) For the purposes of sections 12 (2), 33B (2) and 40B (2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted are the criteria set out in subclauses (2)-(4).
(2) The applicant:
(a) must be at least 20 years of age, and
(b) must hold a driver licence that is not a learner licence, probationary licence, provisional licence, restricted licence, driver licence receipt or conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving), and
(c) must have held an Australian driver licence for a total of at least 12 months in the 2 years immediately preceding the date of the application, and
(d) must have passed an examination or assessment, at a level determined by the Director-General, in medical fitness, and
(e) must satisfy the Director-General that he or she:
(i) may lawfully work in Australia, and
(ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and
(iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom.
(3) In the case of an application for authorisation to drive buses, the applicant must also have successfully completed a bus driver training course approved by the Director-General and conducted by a registered training organisation (or must have such competence as a driver of buses as the Director-General considers appropriate).
(4) In the case of an application for authorisation to drive taxi-cabs, the applicant must also:
(a) have successfully completed a taxi-cab driver training course approved by the Director-General and conducted by a registered training organisation (or must have such competence as a driver of a taxi-cab as the Director-General considers appropriate), and
(b) have passed an examination or assessment, at a level determined by the Director-General, in the following:
(i) geographical knowledge of areas in which taxi-cabs ply for hire,
(ii) such part or parts of the taxi-cab driver training course referred to in paragraph (a) as may be required by the Director-General (or must have such competence as a driver of a taxi-cab as the Director-General considers appropriate),
(iii) knowledge of this Regulation in so far as it relates to taxi-cabs and the driving of taxi-cabs, and
(c) have passed an examination or assessment, at a level determined by the Director-General, in both written and oral communication in the English language (or must have such competence in that language as the Director-General considers equivalent to that level).
16 Section 30 of the Interpretation Act 1987 provides:
30 Effect of amendment or repeal of Acts and statutory rules
(1) The amendment or repeal of an Act or statutory rule does not:
…
(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or
…
and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.
17 Clause 240 of the 2007 Regulation provides:
240 Savings
Any act, matter or thing that had effect under any of the following Regulations immediately before the repeal of the Regulation concerned is taken to have effect under this Regulation:
(a) the Passenger Transport (Bus Services) Regulation 2000,
(b) the Passenger Transport (Ferry Services) Regulation 2000,
(c) the Passenger Transport (General) Regulation 2000,
(d) the Passenger Transport (Private Hire Vehicle Services) Regulation 2001,
(e) the Passenger Transport (Taxi-cab Services) Regulation 2001.
Consideration
18 The applicant contends that he is not an unlawful non citizen with no right to work in Australia. The evidence as to his immigration status is the statement provided most recently on 13 November 2006 by DIMIA to the respondent that the applicant's last held visa expired on 24 July 2001 and that he is an unlawful non citizen with no right to work in Australia. As was the case in Kharbanda v Ministry of Transport [2006] NSWADT 101, I am satisfied that for the purpose of this review that the applicant is an unlawful non citizen with no right to work in Australia. If the 2007 Regulation applies, the applicant cannot satisfy cl 29(2)(e)(i).
Does the 2007 Regulation apply?
19 It is not in dispute that the applicant's authority expired on 8 August 2006, and that he applied for renewal of his authority on 10 October 2006. The respondent's file indicates that he had requested that the relevant forms be sent to him by letter dated 16 June 2006. Neither the 2001 nor the 2007 Regulation specifies any procedure for application or renewal of an authority. While different forms are used, based on the Application for a Driver Authority completed by applicant in August 1999 and the Driver Authority Renewal Application signed by him on 10 October 2006, the process of application for renewal appears to be the same as that for an application for a new authority, and there appears to be no advantage to the holder of an authority lodging an application for renewal before the expiry of the existing authority.
20 The original decision and the decision on internal review were made under the 2001 Regulation. That Regulation was still in force when the applicant lodged his application to the Tribunal for review. The 2001 Regulation was repealed and replaced from 1 September 2007 by the 2007 Regulation.
21 Under s63 of the Administrative Decisions Tribunal Act 1997, the task of the Tribunal in reviewing a decision is to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual materials, and "any applicable written or unwritten law". This provision reflects the general principle applicable to review of administrative decisions, which is that the tribunal should decide the case by reference to the facts and law as at the date of its decision. Section 63(1)(b) refers to "applicable" law, and while this will generally be the law as at the date of the tribunal's decision, where the law has changed the applicable law may have to be ascertained by reference to any transitional provision made in the amending law, and subject to s30 of the Interpretation Act.
22 There is no indication in the terms of the 2007 Regulation that it is intended to operate retrospectively. The Explanatory Note to the 2007 regulation indicates that the object is to remake and consolidate, "with minor amendments and some new matter", five separate regulations dealing with different types of passenger vehicle services, including bus, ferry, private hire vehicles and taxis. Clause 29 does not impact on an existing authority, and simply sets out the criteria to be met by an applicant for a driver authority, including an authority to drive a taxi.
23 The issue here is whether the applicant, having applied to the Tribunal for review of a decision made under the 2001 Regulation, has a right to have the review conducted applying the law as it was at that time. The decision of the federal Administrative Appeals Tribunal in Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 944 draws a distinction between a decision under review that involves an investigation of accrued rights or liabilities, and a decision that involves an investigation whether the applicant "has a present entitlement to the grant of a right or privilege". That case involved an applicant for a commercial pilot licence, and the AAT held that the law as at the date of its decision applied. The AAT relied on the decision of the Full Court in Robertson v City of Nunawading [1973] VR 816, that if:
'…the mere taking of procedural steps under a statute in the expectation of receiving a benefit from an administrative authority does not create a right to the continuance of the proceedings after the repeal of the statute, then the conclusion seems equally justified that there mere taking of such procedural steps does not create a right to the continuance of the proceedings unaffected by amendment of the statute.'
24 To similar effect is the decision of the Privy Council in Director of Public Works v Ho Po Sang [1961] AC 901, at 922:
…there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not.
25 The making of an application for an authority may not be sufficient in general terms to base an entitlement to have the determination made on the basis of the law as at that date. The High Court gave detailed consideration to accrued rights in the administrative review context in Esber v Commonwealth (1992) 174 CLR 430. This case concerned an appeal to the AAT against a refusal by the Commissioner for Employees' Compensation to redeem weekly payments under section 49 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth). After Mr Esber had applied for review, but before the AAT heard it, the 1971 Act was repealed by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). The AAT found that the provisions of the 1971 Act applied. The full Federal Court, on appeal, held that the 1998 Act applied. On appeal to the High Court the majority (Mason CJ, Brennan, Deane, Toohey and Gaudron JJ) reversed that decision and held that the 1971 Act applied. In the course of the decision the Court considered the application of section 8(c) of Acts Interpretation Act 1901 (Cth) which is in similar terms to section 30(1)(c) of the Interpretation Act 1987. The majority held (at 440):
The appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined pursuant to Pt V of the 1971 Act. It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal. The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision ( Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, at 589)…
But that is not to the point here. If it be assumed that the appellant did not have a right to redemption …he had a right to have his claim for redemption determined in his favour if the delegate wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in New South Wales Aboriginal Land Council v Minister Administering Crown Lands (Consolidation) Act and Western Lands Act (1988) 14 NSWLR 685, at 694: 'The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.'
Once the appellant lodged an application to the tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the tribunal. It was not merely "a power to take advantage of an enactment" Mathieson v Burton (1971) 24 CLR 1, per Gibbs J at 23; and see Robertson v City of Nunawading [1973] VR 81. Nor was it a mere matter of procedure (See Newell v R (1936) 55 CLR 707, at 711-12); it was a substantive right (see, by way of analogy, Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161, at 175, 178, 185, 194; Colonial Sugar Refinery Co v Irving [1905] AC 369, at 372-3) Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent" Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541, at 552; see also Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc (1960) 103 CLR 422, at 426-7; Director of Public Works v Ho Po Sang [1961] AC 901. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by section 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.
26 Brennan J dissented, holding that the applicant did not have an accrued right to a redemption payment at the time of the legislative change, and that the normal principle that the AAT acts on the materials before it when it makes its decision should be applied, as the question was whether the applicant should be granted a right.
27 The respondent relied on the High Court decision in Attorney General (Qld) v Australian Industrial Relations Commission [2002] HCA 42, where Esber was distinguished. The case concerned proceedings pending in the Australian Industrial Relations Commission under Part VI of the Industrial Relations Act 1988 (Cth). The legislation was amended, and a new provision inserted which included the direction that the Commission "must cease dealing with" certain industrial disputes in specified circumstances. The High Court decided that the new legislation applied. This case does not assist the respondent, as there is no equivalent wording to this clear legislative direction in the 2007 legislation.
28 In my view, the majority decision in Esber governs this matter. The applicant had lodged his application to the Tribunal for review before the law changed, and this is sufficient to distinguish his position from one where the law changes during the course of consideration by the agency, and before an application is made for review by the tribunal: Azevedo v Secretary, Department of Primary Industries and Energy (1992) 106 LALR 683; Re Russell and Conservator of Flora and Fauna (1996) 42 ALD 441; Duncan v Commissioner of Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 121. The respondent relied on the Tribunal's decision in Foley v Commissioner of Police, NSW Police [2005] NSWADT 12, in which amended legislation was applied. While the context is similar, there was no detailed consideration in that case as to whether the lodging of the application for review before the change in legislation gave rise to an accrued right.
29 The respondent relies on cl 240 of the 2007 Regulation as demonstrating an intention to override any accrued right held by the applicant. Clause 240 is expressed in general terms, and forms part of the process of consolidating a number of existing regulations and providing legislative force to previously administrative requirements in other contexts. A similar provision in the Fisheries Management (General) Regulation 2002 was interpreted as having the effect that an application made before the law changed, but not yet determined by the agency, was to be treated as an application made under the new law: Southport Fishing & Dive Centre Pty Ltd & Anor v Minister for Fisheries [2004] NSWADT 242. However, an application for renewal of an authority to drive a taxi is made by virtue of the provisions of the Passenger Transport Act, and not under the regulations. Clause 240 would still have work to do, for example, in continuing a driver's authority card issued under cl 79 of the 2001 Regulation. Clause 240 it is not expressed in terms that would be sufficiently clear to override the applicant's accrued right to have his application for review determined under the legislation as it was at the date he applied for the review.
30 The application for review should be determined in accordance with the provisions of the 2001 Regulation. This conclusion makes it unnecessary to decide whether, as contended by the applicant, cl29(2)(e)(i) of the 2007 Regulation is ultra vires.
Does the applicant meet cl 33(2)(f) of the 2001 Regulation?
31 I agree with the respondent's submission that there is a difference between a decision to suspend or cancel an authority, and a decision whether or not to grant one. In the latter situation, s33B(2) requires that the applicant "must meet any criteria" in the regulations, and "must satisfy the Director-General as to any matter" the Director-General considers relevant. To that extent, the findings and conclusions of JM Molony in Kharbanda v Ministry of Transport [2006] NSWADT 101 do not necessarily apply. The respondent argues that the applicant cannot satisfy the Director-General (or, on review, the Tribunal) the requirement in cl 33(2)(f)(i) that he be a "fit and proper person" to be the driver of a taxi, or the requirement in cl 33(2)(f)(ii) that he have sufficient responsibility to drive a taxi "in accordance with law and custom". Section 235 of the Migration Act 1958 makes it an offence for an unlawful non citizen to perform work in Australia whether for reward or otherwise. The applicant would be committing an offence under the Migration Act 1958 if he drove a taxi, and for that reason it would not be open to find that he is a fit and proper person to hold an authority, or that he has sufficient responsibility to perform the function of driving "in accordance with law".
32 The central argument put by the respondent concerning whether the applicant can demonstrate that he is a fit and proper person to hold an authority and that he has sufficient responsibility to drive a taxi in accordance with law and custom is his immigration status and lack of permission to work. That this bears only a tenuous connection with the requirements of cl 33(2)(f) is demonstrated by the need to amend the regulations to insert a specific requirement in cl 29(2)(e)(i) of the 2007 Regulation that an applicant for an authority satisfy the decision-maker that he or she may lawfully work in Australia.
33 The initial decision, and the decision on internal review, were made solely on the basis that the applicant was not a 'fit and proper person' as required by cl 33(2)(f)(i). However, the respondent's argument at hearing addressed both that issue and the issue in cl 33(2)(f)(ii), namely whether the applicant has sufficient responsibility to drive a taxi in accordance with law and custom. The approach to be adopted to the construction of the terms "good repute" and "fit and proper person" is settled, and set out detail in the decision of Judicial Member Molony in Kharbanda v Ministry of Transport [2006] NSWADT 101 at [23] to [29]. It would serve no purpose to repeat them here. The determination as to whether a person is 'fit and proper' must be made in context, from the activities in which the person is or will be engaged and the ends to be served by those activities: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. A relevant consideration is the likely perceptions of the travelling public: Farquharson -v- Director General, Department of Transport [1999] NSWADT 53.
34 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.
35 In Kharbanda v Ministry of Transport [2006] NSWADT 101 Judicial Member Molony commented:
'33 In Mr Kharbanda's case there is no suggestion that he has behaved improperly or dishonestly as a taxi driver, or that his driving was inadequate or unsafe. It is not a case where there have been complaints made by customers. It is not a case where he has a record of criminal or driving offences. The only connection between the taxi industry and the matters said to affect his reputation is the fact that he was working when driving cabs, work which DIMIA says he was not entitled to do. The prohibition against him working would have applied in whatever context he was working, whether driving a taxi for reward, working in a factory, or spending his time writing a novel.'
36 The respondent's file indicates that the applicant received a caution in relation to a traffic offence 18 November 1999, and was reprimanded in 2001 for a failure to give lost property to an operator or network within 24 hours. There is no indication that the applicant has ever been the subject of a complaint from a passenger. As acknowledged during the hearing, the respondent's sole concern is with the applicant's immigration status.
37 The activity for which the applicant is seeking to be authorised is the driving of a taxi. I do not consider that a member of the public who knew of his immigration status, the fact that he has been previously located driving a taxi without permission to work, and the caution and reprimand previously received, would necessarily object to him as the driver of a taxi, or, as JM Molony found, cause such a person to be concerned for their safety or welfare. Having regard in particular to the factors set out in Saadieh, I am satisfied that the applicant is a fit and proper person to be the driver of a taxi.
38 Clause 33(2)(f)(ii) requires consideration of whether the applicant has sufficient responsibility to drive a taxi 'in accordance with law and custom'. The respondent argues that since the applicant would be in breach of the Migration Act were he to drive a taxi without permission to work, he cannot satisfy this requirement. I agree with JM Molony that cl 33 (2)(f)(ii) (which is in the same terms as s33(3)(b)(ii) of the Passenger Transport Act) "…goes to the competence of the person to drive a taxi-cab in accordance with law and custom", and that the applicant's immigration status does not reflect on the responsibility he exercises while driving a taxi, or on his aptitude to do so. As JM Molony commented:
The only connection between Mr Kharbanda's driving of a taxi in accordance with law and custom and his immigration status, rests on the fact that Mr Kharbanda was working while driving taxis, and his immigration status did not allow him to work. That connection is tenuous at best. The Administrator has not pointed to any other cause for concern that Mr Kharbanda does not have the requisite responsibility and aptitude to drive a taxi in accordance with law on custom.
39 I am satisfied that the applicant meets cl 33(2)(f) of the 2001 Regulation. The appropriate course is to set aside the decision under review and remit the matter for consideration of the remaining criteria imposed by cl 33 for the grant of an authority.
ORDER
40 The decision under review is set aside and the matter is remitted to the respondent for reconsideration.