Miah v Roads and Maritime Services

Supreme Court of NSW|2013-11-14

Background 1The applicant Mohammed Rubel Miah was born in Bangladesh on 7 August 1983. He obtained a New South Wales driver's licence in 2006. In January 2008 he was granted taxicab driver authority GR 1959 and in May 2008 taxicab operator accreditation No. 35569. 2By letter dated 21 August 2013 the respondent Roads and Maritime Services (RMS) cancelled the applicant's operator accreditation and driver authority with immediate effect. On 26 August 2013 the applicant applied to this tribunal for a review of the cancellation decision. 3At the hearing the applicant withdrew his review application in relation to the operator accreditation. This case therefore concerns only his taxicab driver authority No. GR 1959. 4Section 33 of the Passenger Transport Act 1990 (PT Act) provides as follows: 33 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. 5Section 33F of the PT Act states that "Having regard to the purpose of an authorisation under this Division, RMS may at any time vary, suspend or cancel any person's authority under this Division".

Issue 6The issue in these proceedings is whether the applicant is of good repute and in all other respects a fit and proper person to drive a taxicab, and has the requisite responsibility and aptitude to do so.

Basic facts 7The central facts and circumstances of the case for the most part are not in dispute. As the applicant concedes, on 1 November 2012 he drove taxicab T 206 and disobeyed a "No stopping" sign in a Mosman school zone, an offence for which he received a penalty notice. 8On 13 November 2012, while driving taxicab T206, he proceeded through red traffic control light on the Princes Highway at Rockdale, an offence for which he received a further penalty notice. 9On 7 January 2013, the applicant made two false statutory declarations for the State Debts Recovery Office stating that the person responsible for the two offences was Rumana Zaman, the wife of a friend of the applicant. Mrs Zaman did not hold a taxicab driver authorisation, and indeed did not have a New South Wales driver's licence at all. The applicant declined to attend at RMS Parramatta for the purpose of an interview in relation to these matters and stated that he did not wish to answer any questions about them. 10The applicant had been the subject of two warning letters in relation to his driver's authority. The more recent one, dated 1 March 2010 (exhibit R1 p 71), arose out of passenger complaints about his behaviour. The earlier warning, dated 15 May 2009 (exhibit R1 p 45) resulted from his failure to disclose that he had been charged with assault occasioning actual bodily harm. In the event, he was acquitted of that charge. 11A notice to show cause why his driver authority should not be cancelled was issued on 12 July 2013 (exhibit R1 p 114). An internal review of the applicant's submissions in response to the notice concluded that while the applicant had made two false statutory declarations, "it should be noted that these offences were committed within 12 days of each other and the statutory declarations were sworn on the same date, being 7/1/13". The reviewing officer concluded by recommending that a warning letter should be issued to him (exhibit R1 p130).

Applicant's evidence 12In his oral evidence at the hearing, the applicant adopted his sworn statement dated 9 October 2013, together with attachments (exhibit A1). In it he stated that he was aware of only five complaints having been made against him during his entire career as a taxi driver and he had received no complaints since 2012. He gave his version of the facts and circumstances surrounding three passenger complaints and the charge of assault occasioning actual bodily harm. 13He stated that the magistrate at Burwood Local Court determined that he had no case to answer and the charge was dismissed. He had not reported that incident as required because he did not understand the difference between a criminal charge and a criminal conviction, having been in Australia for only three years and having language skills that were not sufficiently advanced. If he had been convicted, he would have been ready and willing to report the conviction as required. 14He had been driving a taxi in Sydney for five years and nine months. During that time he believed he had helped many members of the community. He had handled probably 50 or more instances of lost property. In such cases he routinely made every effort to contact the owner by telephone, a simple task when the property itself was a mobile phone. For other items, he always delivered the items to the Taxis Combined lost property centre. 15If he had a private booking, he always made an extra effort to be on time, as he understood the time pressures to which his customers were often subject. 16His taxi is a disabled model, which means that he was able to pick up disabled people. It was his choice whether to drive disabled customers, and he often chose to do so. That involved driving to their house, picking them up and unloading them, which creates extra work for which he is not necessarily paid. 17He made a point of remaining abreast of all traffic changes in Sydney by listening to traffic reports on the radio and undertaking personal research. This was to ensure that his passengers would be taken by the most direct route to their destinations. He had often given passengers free rides when they had been short of money on arrival at their destination. He had always taken the view that it is better to render a favour to members of the public, rather than initiate a dispute. 18He accepted full responsibility for submitting the two false statutory declarations. He had done so because he feared losing his licence, job and livelihood immediately, together with his ability to send money to his family in Bangladesh. He now understood how seriously the community regards the submission of false statutory declarations. 19In cross-examination he conceded that he had passed the RMS test on the relevant regulations, including the obligation to notify any offences or charges. He had not reported to the assault charge, believing that he only had to notify convictions, but admitted that the relevant documents and permits provided no basis for such a belief. 20He had been confused about the red light charge as he had not noticed a flash at the time. He was not aware that on indictment the offence of making a false statutory declaration is punishable by up to seven years imprisonment, nor did he know that a former Federal Court judge had served a term of imprisonment for offences arising out of a similar attempt to avoid traffic points. He knew, however, that the statement that Mrs Zaman had been driving the taxi at the time (exhibit R1 p 104) was false. He did not know it was "a big thing", as the printed form only mentioned a fine of $5500, and he thought everyone did it. He had felt that he had no option and believed that he had caused no harm. Other drivers had told him it was nothing major and he had not known that it was a crime. 21In re-examination the applicant repeated that he had not known that making a false declaration was a crime in the same way as assault is a crime. He had thought it was something like a parking fine. Many drivers did the same thing and subsequently received warning letters. 22In his mind he was an honest person who helps people and never cheats passengers. He believed he was a fit and proper person to drive a taxi as he was knowledgeable, respectful and helpful. He had received many compliments and always returned lost property. But he had made a mistake in this instance. 23The applicant also relied on a number of character references (exhibit R1 pp 117 -- 121). Mr Asraful Islam of Rockdale described how on one occasion after he had been driven home by the applicant he realized that he had forgotten his wallet and asked if he could pay the applicant that next day. The applicant was very polite and agreed to the arrangement. Since then Mr Islam had been using the applicant's taxi service whenever he needed a cab. He thought it unlikely that the applicant would reoffend and supported his application to be allowed to continue to drive a taxi. 24Mr Gausul Alam JP knew the applicant, seeing him regularly as a community member and for his justice of the peace services. He had always found the applicant to be honest, friendly, reliable and generous. He was always helpful and willing to go the extra mile for any volunteer work in the community. He believed that the offence was out of character and that the applicant was a fit and proper person to hold a taxi authority. 25Mr Muhammad Bhuiyan JP, public accountant, had known the applicant for two years as a client and community member. He believed him to be well-behaved, honest and reliable and thought the offence did not portray his general character. Other references, from Mr Quazi M.B.Rahman, Mr Muhammad J. Ahmed and Mr Muhammad R.Haque are to a similar effect. 26A medical certificate dated 30 July 2013 from Dr Andrew T.A.Le of Lakemba (exhibit R1 pp122 - 127) states that as a result of his possible loss of his taxi driver licence the applicant had been suffering from anxiety and depression requiring medication and psychological counselling.

Applicant's submissions 27Mr Jones submitted that in Saadieh v Director-General of Motor Transport [1999] NSWADT 68 at [17], Hennessy DP had identified five factors that needed to be taken into account in determining a person's suitability to obtain a taxi authority. 28The first was the nature, seriousness and frequency of any criminal offences for which the applicant had been arrested or convicted. Mr Jones pointed out that the charge of assault occasioning actual bodily harm had been dismissed. If anything the applicant had been the victim in that incident, which he believed could have been racially motivated. He had not reported it because of the stress at being falsely charged. 29The second factor was the nature, seriousness and frequency of any complaints made against the applicant. In this case only two of the complaints made against the applicant had been found by the respondent to be justified. On the contrary, he made strenuous efforts to exceed the expected standards. 30The third Saadieh factor was the applicant's driving record. The applicant's driving record since he obtained his licence in 2007 was not perfect, but his record of contraventions was not excessive for a daily driver. There had been no drink-driving matters or major offences, although it had to be conceded that the 2012 breaches were serious. 31The fourth factor was the applicant's reputation in the community. As regards this point it was clear from the various letters of support that the applicant enjoyed a high reputation in the community. 32The final factor was the likelihood that the applicant would re-offend, be the subject of further complaints or would commit further traffic offences. The applicant's clear demonstration of remorse and contrition made it unlikely that he would reoffend. He had offended out of fear that he would lose the ability to support his family in Bangladesh. While their hardship was irrelevant to the exercise of the discretion, it was relevant to the question of his moral guilt. He had declined to be interviewed about the statutory declarations but in his show cause submissions had admitted guilt (exhibit R1 p 132). 33If he had accepted the demerit points in the proper way, his licence would have been suspended for three months. An appropriate course of action would be to adjourn the proceedings for three months to allow him to complete a six-week Traffic Offenders' Program, for which he undertook to enrol. That, Mr Jones said, would demonstrate his fitness to serve the public in the taxi industry. The public was less concerned about his interactions with RMS than with his behaviour towards passengers.

Consideration 34Section 52(1) of the PT Act gives this tribunal jurisdiction to review the RMS cancellation decision. Under s 63 of the 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, 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. 35Under s 11 of the PT Act, the purpose of an authority is to "attest" that the person meets the requirements of the Act. 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 11(2). 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 public passenger vehicle" and must also have the requisite responsibility and aptitude. 36Questions of possible hardship to the applicant, or in this case to his family in Bangladesh, 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]. 37In this context a person's reputation is to be sought in the estimate of his moral character entertained by some specific group of people, such as neighbours or work colleagues. "Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed most cogent evidence, of bad reputation": Re T Anderson inand the Director-General of Youth and Community Services [1980] 1 NSWLR 392 at 393. 38The evidence adduced by the applicant tends to show that he enjoys a favourable reputation in the community. While I accept that evidence, it is also to be borne in mind 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": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63]. That is reflected in the first of the five Saadieh considerations, the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted. 39This is apparently the first case under the PT Act in which a cancellation decision has relied on the making of false statutory declarations. 40In this case the applicant made two false declarations, but as they were both sworn on the same day, one can perhaps treat them as being part of a single transaction. On the other hand, they could not be characterized as an act of impulsive wrongdoing. Arranging for a friend's wife to accept responsibility for serious traffic breaches must have required at least some degree of planning and organization. 41In 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 seven years. 42As Mr Wozniak pointed out, a former Federal Court judge was recently sentenced to three years' imprisonment for offences arising out of an attempt to avoid traffic points following a speeding charge. 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). 43Similarly, in England a former Blair government Minister was sentenced in 2011 to eight 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. 44This kind of offence is thus viewed very seriously, and not only in New South Wales. Further, in this case the offence related directly to driving and the applicant's driving record. As Huntsman JM noted in Ghachame v Roads and Maritime Services [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 (at [54]). It is also relevant to note that, having been committed 10 months ago, the offences are relatively recent. 45In relation to the second Saadieh factor, the nature, seriousness and frequency of any complaints made against the applicant, the evidence shows that the applicant has been the subject of a number of complaints, but only two of them were found to have been substantiated. They were not major matters and involved no sexual misconduct, cheating, intoxication, violence or threatening language. 46The third Saadieh factor is the applicant's driving record. His driving history is not unblemished. The respondent said, and the applicant did not dispute, that to date he has received three demerit warning letters. The red light and "No stopping" violations in 2012 were serious and the former especially was potentially very dangerous. 47As regards the fourth factor, the applicant's reputation in the community, I have indicated above that I accept the evidence proffered on his behalf. 48Finally, the tribunal must consider the likelihood that the applicant will reoffend, be the subject of further complaints or commit further traffic offences. As was noted above, the false declaration offences are relatively recent and involved an element of deliberate planning, as well as informal survey research and consultation among other drivers. His remorse and contrition seem genuine, however. But although he has admitted the offences, he said more than once in his oral evidence that in the circumstances he had no choice, no other option but to make the false declarations. He did have the option, though, of accepting the points and a three-month suspension and conscientiously driving more carefully in the future. His less than reassuring propensity to rationalize his wrongdoing leaves a residual concern that if placed in a difficult situation in the future he might again give way to temptation. 49It can hardly be disputed 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 public passenger service vehicle in accordance with the statutory conditions, the law and custom. An analogy can 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. 50After 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 particular, he has committed serious offences and it is too soon to say with confidence that if he were to find himself under pressure in the future he would not reoffend in some significant way. 51On behalf of the applicant Mr Jones submitted that an appropriate course of action would be to adjourn these proceedings for three months to enable Mr Miah to show that he meets the statutory criteria. In the interim he would enrol in a Traffic Offenders' Program. But that program relates to driving, not the falsification of documents. It would provide insufficient grounds for attesting that the applicant meets the fitness and suitability standards laid down in s 11. After careful/ consideration I conclude that it is not an appropriate option. It may be that if the applicant reapplies in the future he may be able to prove that RMS would be justified in making the necessary attestation, but at present he does not meet the statutory standards. 52The decision under review is affirmed.

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: 21 November 2013

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