Rifahi v Roads and Maritime Services

NCAT Occupational|2014-04-22

reasons for decision 1The Applicant Mr Rifahi has brought these proceedings seeking review of a determination by the Respondent that his authority to drive taxi-cabs be cancelled under the provisions of the Passenger Transport Act 1990 (PTA). This determination was made on 13 March 2014.

Reasons for cancellation 2The Respondent had become aware of 2 criminal convictions of Mr Rifahi in the Local Court at Bankstown on 29 January 2014 through data matching. The 2 convictions were for Assault Occasioning Actual Bodily Harm on 14 October 2013. As a result of the convictions Mr Rifahi was sentenced to 18 months imprisonment to be served as an intensive correction order in the community from 5th February 2014 to 4th August 2015. The victims had been Mr Rifahi's former wife and her sister. 3The Respondent wrote to Mr Rifahi on 13 March 2014 cancelling his driver's authority. The Respondent's Statement of Reasons said that the Respondent could no longer attest as required by section 11 of the PTA that Mr Rifahi was a fit and proper person with sufficient responsibility and aptitude to drive a taxicab in accordance with the conditions under which the taxicab service is operated and in accordance with law and custom. 4Mr Rifahi lodged his Application for Review in the NCAT on 18 March 2014. He was granted a stay of the cancellation by the NCAT pending the outcome of the Application on 23 March 2014.

Legislation concerning the grant of a taxi cab driver authority 5Section 11 of the Passenger Transport Act 1990 sets out that to drive a taxi cab in NSW it is necessary to be issued with an authority by the Respondent RMS. Prior to issuing that authority RMS must be satisfied that the purpose is met: 11 (2) 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 public passenger vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated, and (ii) in accordance with law and custom. (tribunal's underlining) 6Section 14 of the PTA confers powers to vary, suspend or cancel an authority that has been issued. In exercising any of these powers, the Respondent is required to have regard to the purpose of the authority. Accordingly, when considering cancellation of an existing authority the Respondent must consider whether the Applicant is of good repute, fit and proper, and has the responsibility and aptitude to drive a public passenger vehicle. 7The Applicant completed a renewal application on 23 December 2013 for his driver's authority. He answered "no" to the question in relation to whether he was subject to criminal proceedings. He was due before the Court in January 2014. He did not advise the Respondent of the charges at that time. 8Clause 44 of the Passenger Transport Regulation 2007 requires a driver of a pubic passenger vehicle to advise the Respondent with written details of any alleged offence within 7 days of the laying of the charges. The Applicant did not do this prior to the decision to cancel his authority. The offences came to light through data matching. 9The Respondent has determined that it can no longer attest to Mr Rifahi being fit and proper.

Summary of facts of Assaults 10The assaults occurred in the context of Mr Rifahi trying to exercise access to his 2 children who were living with his former wife Saraa Rostom and her sister Claire Restom. The police facts of the offences to which Mr Rifahi pleaded guilty are set out as follows. 11Mr Rifahi came to the home where his children were living with his former wife and her sister. He said to his daughter "come to the car right now." When his daughter said that her mother did not want them to go on access he went back to his car and got a cricket bat and walked towards his daughter shaking the bat. When his former wife told their daughter to go back into the home Mr Rifahi walked towards his former wife swinging the bat and struck his former wife on the back of her leg. He then struck a second blow to her leg causing her to fall over. He then stood over her. His former wife's sister then came into the front yard and he hit her on the head with the bat knocking her to the ground. She experienced swelling and bleeding to the back of her head. His former wife's sister's 10-year-old son said stop hitting my mum. He then stood over his former wife shouting and threatening her with the bat. His former wife's sister's daughter then said "I will call the police". At this point he picked up the bat, went to his car and drove away.

The Applicant's evidence 12The Applicant said that he had been married to his former wife since 2004 and they had two children. They had separated in November 2012 because his wife had returned to Lebanon with their two children. He had sent money to his former wife while she was living in Lebanon to support her and the children. His former wife and children had returned to Sydney and they had reached an agreement about access to the children with help from his local sheikh. 13Circumstances of assaults on 14 October 2013 14He had three weekends of access to the children prior to the assaults on 14 October 2013. He had agreed with his former wife two weeks previously that he would pick up the children on the afternoon of 14 October 2013 to enable him to spend time with them at the festival of Eid Al Fitr. As he was leaving home to pick up his children he had received a text from his daughter saying that their mother had said that they would not be going on access with him. He sent his daughter a text saying words to the effect of 'get ready - I'm coming over.' 15He said that when he arrived to pick up his children just before sunset he had removed his cricket bat from the boot of the car because his son had wanted to see it. His wife had come outside and was swearing at him and accusing him of things. He thought she was trying to "ransom the kids" and he had been "set up". He had approached his former wife with the cricket bat with the intention to scare her. He recalled that he had hit her once behind the legs and that she fell to the ground. He did not recall how many times he had hit his former wife. 16After that, his former wife's sister came out of the house running towards him. He had dropped the bat. He pushed her away using his hands. She fell to the ground. He denied hitting her on the head with the bat. His former wife had not asked him to stop but rather she had said when he had hit her "this is exactly what I wanted". He understood this to mean that she had wanted to get him into trouble. He said he took off when both his former wife and her sister were on the ground. He did not recall swinging the bat around in the air. He did not shout at the children and his daughter had not said to him that she did not wish to go with him. He had not approached his daughter with the cricket bat. The whole thing happened in the space of 20 seconds and he was only at the house for a period of two minutes. At the time he felt sorry and angry and was trying to cool down. 17He had been married to his former wife for 11 years and he had never raised a finger to her. His assault of her had come out of the blue. 18When he was giving his evidence Mr Rifahi was shown the victims' police statements. He said he had not previously seen them. He was asked by the Respondent why he was laughing as he read them. He said he was responding to the fact that lots of things in the fact statements as they were set out were not true. He referred to their injuries as "so-called bruises". 19When he was in custody the police put to him a short outline of the facts and he disagreed with most of what was in that outline. He denied saying "I will kill you" and he did not say to his children "jump in the car". The Respondent put to him that he had decided he would take the children whether they wanted to go with him or not. Mr Rifahi said that he had an access agreement which had been brokered with his local sheikh and his former wife. He had arranged two weeks previously for access on this occasion. The children had not said to him that they did not wish to come, so he thought it was appropriate that they would come on access with him. 20When the matters of the assaults came before the Court he had signed an agreed statement of facts which had been negotiated between his solicitor and the police prosecutor. He said that he did not accept all the matters that were set out in the agreed statement of facts which were presented to the court. He considered that as it was two against one and he would not be successful in contesting the allegations made against him. He did not wish to bring his family into court for cross-examination so he had agreed to the document and signed it. He accepted the way in which the magistrate had dealt with him. 21He had obtained references from people who knew him. He had told them that he had been convicted of the assaults. He said that he had been working at the Salvation Army shop one day a week as part of the community corrections order. He had previously done voluntary work and he liked helping the public. He noted that his brother has spina bifida and cannot walk very far. He often drove him round in his wheelchair accessible cab. 22Since the convictions he had seen Dr Milic, psychologist, on two occasions and had continued to see Dr Al Shamali, psychologist. He had undertaken a course in anger management and he would be starting one about taking care of kids after separation. He had set aside his efforts to agree with his former wife about access to his children for the moment as this matter of his taxi driver's authority had become more important. He said he was ashamed about his actions in front of his children and he was trying to make up for them. 23Under cross examination Mr Rifahi was asked why he had not declared the outstanding charges on his application to renew his taxi driver's authority on 23 December 2013. At this time he had been charged with the assaults and was due to attend at the Local Court. He said that as the matter wasn't finished he did not think he needed to reveal it. He was going to tell the RMS in the next renewal if he were convicted. He said he thought he would "stretch out" the necessity to notify the RMS of his convictions and would notify them at the next renewal date. He understood that this was not the right thing to do. 24He said he did not have anger management problems and was attending the anger management course to assist any application in the Family Court for access to his children. His anger towards his wife had been built up over seven years of frustration in relation to his access to his children. He had allowed his anger to get out of control on this one occasion. 25In response to the Respondent's question he said that he saw the events of the assault as a trap that he had walked into and that his former wife had got what she wanted. He said that he considers himself a victim in the situation but he has to take responsibility for his actions. He said that his former wife and her sister had told lies but he would not be the one to judge them. 26His treating psychologist Dr Al Shamali had said that he had been depressed. Mr Rifahi explained that this was because he hadn't seen his children in a long time, that he was staying with his mother and he no longer had a wife. He is seeing Dr Al Shamali, not because he has to, but because she gives him good advice relating to relaxing and breathing techniques. He had seen Dr Milic because Dr Al Shamali had advised him to get a second opinion. He had intended to use the reports for court matters.

Reports of Dr Milic 27The Applicant provided two reports of Dr Milic, clinical and forensic psychologist. He had consulted Dr Milic on 19 December 2013 for three hours and then again for an hour on 14 April 2014. Dr Milic's first report of 8 January 2014 was prepared for the criminal proceedings. The report stated that Mr Rifahi had demonstrated remorse. He was essentially a normal individual with a positive self-concept. He had a normal mental health history. The assaults had been out of character and he had a prosocial history. Dr Milic concluded that he had a low risk of reoffending with a nonviolent philosophy of life. Dr Milic proposed a treatment plan to reduce the risk of reoffending which included anger management courses and counselling. 28Dr Milic's second report dated 15 April 2014 was prepared for the tribunal's examination of Mr Rifahi's taxi driver authority. Dr Milic repeated his previous assumptions about Mr Rifahi's mental health history. He quoted Mr Rifahi's view that you could not have a short temper and drive a cab. He concluded that Mr Rifahi's risk of reoffending was reduced by his participation in anger management courses and the psychological consultations. He then set out of 11 reasons why he did not think that Mr Rifahi posed a significant risk to the safety of members of the public. 29Dr Milic's reasons included that Mr Rifahi had a normal mental health history and an above average level of emotional resilience. He does not have an alcohol abuse or drug abuse issue. He has a prosocial history and an excellent work record as a taxi driver and a good driving record. His offences were out of character and they occurred in the context of a domestic dispute unconnected to his work as a taxi driver. He had not put a foot wrong since the offences and continues to enjoy a good relationship with his employer. He had participated in an anger management course and counselling with the psychologist since the offences. Mr Rifahi articulated realistic plans for the future to prevent trouble re-emerging between himself and his former wife. For example he said he would be careful to avoid contact with his former wife after he gains access to his children with the help of the Family Court. He is highly committed to his work as a taxi driver and to not doing anything that would further jeopardise his career. He has been placed in a trusted community service position at the Salvation Army store as part of his sentence and had performed well in that role. 30Dr Milic concluded that given these factors Mr Rifahi is safe from a psychological point of view to operate as a taxi driver and poses no significant risk to the public. He has sound psychological health, has learned from his mistake and he is vigilant to avoid further mistakes. Dr Milic concluded that he likely poses less risk to public safety than the average employee.

Report of Dr Al Shamali 31Dr Al Shamali prepared a report dated 21 March 2014. She had been seeing Mr Rifahi since November 2013. She indicated that he had an adjustment disorder with mixed anxiety and depressive mood and an anger problem. He had attended regular psychological counselling sessions and had undertaken an anger management course. His attitude towards psychological treatment was positive. Overall he was a normal individual with a positive concept and his attitude towards psychological treatment was positive. He was maintaining a healthy lifestyle, practising deep breathing exercises and other psychological techniques to improve symptoms.

Applicant's submissions 32The Applicant had accepted responsibility for the injuries he had caused. It was conceded that any member of the public would be taken aback when hearing of the offences committed by Mr Rifahi. After the passage of time Mr Rifahi had now come to think of himself as a victim in the matter. Dr Milic had concluded that Mr Rifahi did not pose a risk to the community. 33The Applicant had submitted a number of testimonials from referees who have been made fully aware of his offences and were still prepared to think well of him. 34He sees Dr Al Shamali who provides him with techniques for dealing with issues that arise. He is fully armed with skills to deal with situations He has been through rehabilitation and retribution. The offences had been committed during his lawfully designated contact period. His anger had built up over seven years of marital difficulties and everything had got out of control on this particular day when he had been fasting. He had made admissions where he needed to and had made admissions which were against his interest - such as in relation to his failure to advise the Respondent of being charged with the matters in his annual renewal. 35He had not declared pending charges in his December 2013 driver authority renewal application because he had not understood the word 'pending' which he had demonstrated in his evidence. Further the question is a long question and he had focused on the end of that question. He was worried about his capacity to earn a living and had stuck his head in the sand. 36The general member of the public would be deeply horrified by the offences. However the Applicant continues to receive assistance in the community and is trying to contribute to the community to atone for what he has done wrong. While he is presently on a sentence which will finish in August 2015 it should be noted that the court took the decision to release him into the community and to ensure that he had psychological support. He is subject to the strict supervision of the parole service. He had not engaged in a course of conduct but rather a serious incident which was out of character. In the last six months there had been nothing untoward in his actions albeit he had failed to notify the RMS of the convictions and he had incorrectly filled out the authority renewal form. Dr Milic says that the Applicant now poses less risk to public safety than the average employee.

The Respondent's submissions 37The Respondent submitted that the Applicant had not been truthful about the events of 14 October 2013 in his evidence before the tribunal. Witnesses had said that the confrontation had gone on for 15 to 20 minutes while he said it was two minutes. The Applicant had said that he was lawfully entitled to take the children however they were at the home that they lived in and this view was at odds with the situation. 38He knew there was a problem before he had even arrived at his former wife's home. He did not accept full responsibility for the offences as he had said that he had been trapped by his former wife into hitting her and her sister. He was still not sure how many times he had hit his wife. He had pleaded guilty but he was now trying to soften the facts. 39The test under section 11 of the PTA was that the decision maker was required to make a positive affirmation that the Applicant was a fit and proper person and of good repute. 40The mere fact of the acts of violence would be a concern to the public as would be the convictions. 41The Applicant's fitness and propriety should be measured through the tests set out in Saadieh's case - see Saadieh v Director General, Department of Transport [1999] NSWADT 68. The tests in Saadieh's case provide a framework for assessing the likelihood of the Applicant re-offending - a significant aspect to determining the Applicant's fitness and propriety. 42The Respondent's analysis of these factors was that the nature and seriousness of the assaults was that the Applicant is a physically strong man who drove to his former wife's house with a cricket bat. He pleaded guilty in the Local Court to the agreed facts but now wished to move away from those facts. It was not open to the tribunal to go behind those agreed facts. Those facts set out that he had hit his former wife twice and had hit his former wife's sister with a cricket bat on the head. 43The Respondent noted that there were no complaints about the Applicant in his role as a driver nor did he have any offences on his driving record. 44The Applicant had produced positive references from members of the community in relation to his reputation however it was undeniable that damage had been done to his reputation by the convictions. Even if the offences had not occurred during the course of his work, there was serious damage to his reputation. 45In considering the factor as to the likelihood that the Applicant would reoffend the Respondent noted the decision in Bedi v the Director-General of Transport 1999 NSW ADT. The former President of the Tribunal O'Connor had determined in considering the matter of a taxi driver convicted of a serious assault on his wife that it was too soon even 3 years after the assault for the administrator to have confidence in Mr Bedi even though a psychological report said he was unlikely to reoffend. The Respondent noted that it was a short time since Mr Rifahi had committed the offences. 46The Respondent noted the difficulties of relying on Dr Milic's report of 15 April 2014. The problem was that Dr Milic's information was from a single unverified source - Mr Rifahi himself. The version that he told the psychologist contrasted with the police facts. He characterised himself as a victim. It was not clear what degree of knowledge Dr Milic had about his penalty and the intensive community corrections order. Dr Milic had concluded that the risk of reoffending was reduced by his participation in an anger management course. However Mr Rifahi had denied having an anger management problem. Dr Milic's conclusions were contradicted by those of his treating psychologist who had determined that Mr Rifahi had an adjustment disorder and suffered from depression. It was difficult to accept Dr Milic's conclusion that the offence was out of character on the basis of a three hour interview. The statement that he was wanting to establish a peaceful coexistence with his wife was contradicted by Mr Rifahi's evidence in which he was critical of his former wife. Mr Rifahi couldn't be given credit for undertaking the various courses as he had been ordered by the court to take these actions. The Respondent submitted that in determining Mr Rifahi's fitness and propriety the tribunal needed to consider the objects of the Act which were to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services. 47His effort to rehabilitate himself undertaking an anger management course was to his credit, but the value of this was diminished by his own statements that the Family Court would take a better view of his application for access. Undertaking the anger management course was merely tactical on his behalf 48The Respondent said that the Applicant's responsibility and aptitude to be a taxi cab driver was not brought into question. However the Applicant conceded that he had concealed his charges and subsequent conviction from the regulator. His answer in relation to the meaning of "pending" was unsatisfactory. Honesty was one of the three pillars of fitness and propriety and he had not been honest with the regulator about the charges or the convictions. He knew that being honest would bring forward the day on which his driver authority would be cancelled 49His custodial sentence would be finished on 4 August 2015 and it was too soon to assess the outcome of his efforts towards rehabilitation. Neither the decision maker nor the tribunal could now attest to the fact that he was a fit and proper person given the capacity that the Applicant had disclosed for very serious violence.

The Role of the Tribunal on Review 50The 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. 51The tribunal may take into account new material not previously available to the decision maker at the hearing - see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. 52The tribunal notes that there was a significant amount of material before the tribunal not previously before the decision maker - such as the second report of Dr Milic dated 15 April 2014 and the reference from Reverend Kurilowicz.

Relevant Case Law on "fit and proper". 53The Tribunal notes that the significant considerations in this matter are the requirements under section 11 of the PTA that the holder of an authority be 'of good repute and in all other respects fit and proper..... 54The 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. 55The 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. In 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. 56The content of fitness and propriety was defined in the matter of Hughes & Vale in the High Court as having 3 components -"honesty, knowledge and ability." Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at para 9. 57In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper": "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." 58This Tribunal's synthesis of these requirements in this matter is that an Applicant's fitness and propriety must be determined in the light of the role the Applicant is to undertake. The Tribunal must consider the evidence before it about the Applicant's honesty, knowledge and ability as it relates to the specific role. It is a determination to be made by the decision maker taking into account and weighing up matters both contrary to and in favour of the Applicant.

Good Repute 59The President of the Tribunal, Judge K P O'Connor, in the case of Nasour v Director-General, Transport NSW [2011] NSWADT 91 at 34 has said that: "A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'."

Findings of Fact 60Mr Rifahi pleaded guilty to 2 counts of assault occasioning actual bodily harm and was sentenced to imprisonment for 18 months, expiring on 4 August 2015. The sentence is to be served by way of intensive correction in the community. The offences occurred in October 2013. 61The Tribunal accepts the assertions by Zakareah Elkheir, Nick Abrahim, Ayman Sabsabi, Muhammad Ismail and Reverend Ariel Kurilowicz that in spite of their knowledge of Mr Rifahi's being subject to and pleading guilty to the 2 assault charges, they continue to consider him to be of good repute. 62This testimonial evidence shows that the Applicant's reputation is that he is not a person inclined to violence. There is no persuasive evidence that Mr Rifahi's behaviour is otherwise a cause of concern. 63The tribunal also finds that Mr Rifahi knew he had an obligation at the time of application for renewal of his driver authority in December 2013 to advise the Respondent of the assault charges and that he deliberately decided not to advise the Respondent at the time.

Discussion of and Findings on the Relevant Law 64This tribunal adopts the determination of the ADT Appeals Panel in Murray's case in relation to the steps it must take to establish whether Mr Rifahi continues to be a fit and proper person. That is, 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. It must be a positive attestation. Fitness and propriety must be considered in the context of the activities in which the person will be engaged. 65At the same time however the tribunal noted in Singh -v- Director General, Department of Transport [1999] NSWADT 96 at 34 in relation to a taxi driver authority for an Applicant who had a history of breaching an apprehended violence order - as well as a history of another assault "The fact that the breaches of the order relate to his personal life does not mitigate their severity in any way." 66Saadieh's case sets out factors for consideration by a decision maker concerning cancellation of an authority. These 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." In 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. 67The tribunal has considered the factors set out in Saadieh's case. The offences did not occur while Mr Rifahi was driving a taxi. However, there is no doubt that the offences Mr Rifahi committed against his former wife and her sister are very serious. The police facts are terrifying. It is disturbing that his children and his wife's sister's children saw the events. The Court imposed a custodial sentence - clearly regarding the facts as very serious. 68The tribunal notes that there are no complaints from Mr Rifahi's employer about his behaviour. He does not have traffic infringements of concern. The references indicate that the violent behaviour is out of character. There is no evidence before the tribunal that Mr Rifahi has previously been dishonest with authorities as he was in completing his application for- renewal of authority in December 2013. 69The reports of Probation and Parole suggest that Mr Rifahi has a low risk of reoffending. The tribunal has considered the respective reports of psychologists Dr Al Shamali of 21st March 2014 and Dr Milic as set out above. The tribunal notes that Dr Al Shamali has seen Mr Rifahi on a number of occasions since November 2013. Dr Al Shamali does not draw a conclusion about Mr Rifahi's likelihood of reoffending - but does note Mr Rifahi's efforts in psychological treatment. 70Dr Milic draws the conclusion that Mr Rifahi is safe to operate as a taxi driver from a psychological point of view and poses no significant risk to the public. 71The tribunal notes the reference of Mr Elkheir dated 16 January 2014. He is a relative who has known Mr Rifahi for 25 years who says that the offence was out of character. Similarly Ayman Sabsabi says he has known Mr Rifahi for 18 years and the offences are out of character. Muhammed Ismail an employer of 4 years, provided a reference dated 24 March 2014 which describes Mr Rifahi as "an upright man with very good morals and manners." Nick Abrahim, a colleague in the taxi industry has not changed his positive view of Mr Rifahi. The reference of Reverend Kurilowicz, a regular passenger of Mr Rifahi, notes that he has "seen many people with difficult personal issues who have remained professional at work. I strongly believe Mohammed to be one of these people." 72Mr Rifahi committed the offences in October 2013. A year has not yet elapsed. However Mr Rifahi remains under the monitoring of probation and parole and continues to seek the assistance of his psychologist. The fact that he is still under supervision is significant in a number of respects. First of all, it may well be of concern to a taxi cab passenger that the driver has committed very serious offences and that Mr Rifahi remains under supervision. However the continuing supervision should also function as a deterrent to future offending. 73The tribunal has considered the contention in Bedi's case (see Bedi v The Director General, of Transport [1999] NSWADT 51) that it would be necessary for Mr Rifahi to complete the period of supervision prior to it being satisfied that he is a fit and proper person. In this instance however there is very strong support for the view that violence is out of character for Mr Rifahi; that he is now well supported and unlikely to reoffend. 74The psychological reports and references report Mr Rifahi's remorse for the violence. Mr Rifahi told the tribunal he was remorseful. 75This view was however undermined by a number of aspects of Mr Rifahi's evidence. 76These included his reference to him being the victim in the circumstances of the assaults; the "so-called" bruises of his victims; the fact that he had been "set up" by his former wife; and the fact that he was "stringing out" telling RMS about his charging and conviction. 77On one view these statements demonstrated an uncomfortable candour with which Mr Rifahi did not seek to deceive by saying the "right thing". 78Mr Rifahi has undertaken an anger management course. This will be of assistance for Mr Rifahi in dealing with a range of members of the public in difficult situations that arise in driving a taxi cab. He has continued to see a psychologist to assist him to deal with the issues raised in Dr Al Shamali's report.

Repute 79The tribunal adopts the ADT President's finding in Nasour's case that a judgement as to the perception of reasonably-minded members of the travelling public is a relevant consideration for an administrator considering the repute of a driver. There is no doubt that members of the public would consider Mr Rifahi's violent behaviour towards his former wife and sister in law in front of their children abhorrent. The tribunal accepts that a member of the travelling public might not consider Mr Rifahi to be of good repute as a result of his convictions. This is one of the relevant considerations the Tribunal must weigh up. 80The Respondent's view is that in spite of the references provided by a range of family, clients, friends and an employer for Mr Rifahi, his repute has been damaged by the fact of the convictions. 81Mr Rifahi has no prior reputation for violence or dishonesty in dealing with authority which has been put before the tribunal. He has provided the tribunal with references which indicate that the referee has been made well aware of the assault matters for which he was convicted while still considering him to be of good repute. These referees include an employer and clients of his service and relate to his reputation as a taxi cab driver. 82In keeping with the tribunal's past approach in Lal's case (see Lal v Director-General, Department of Transport [2001] NSWADT 74), the Tribunal has not taken into account the hardship that cancellation of Mr Rifahi's authority will cause to him and his family.

Conclusion 83In reaching its decision the tribunal has had the benefit of materials which were not before the decision maker. These include the second report of Dr Milic, references of Mr Ismail, the Applicant's employer and Reverend Kurilowicz, a regular passenger. Mr Rifahi has continued in his rehabilitation efforts including consultation with psychologist Dr Al Shamali. 84It is clear that the Applicant's "good repute" will have suffered as a result of the offence and the custodial sentence. The same matters also affect the judgment to be made as to the Applicant's fitness and propriety for his role as a taxi cab driver. As the cases have reiterated, the assessment of character in the context of a licensing scheme must have regard to the nature of the licensed occupation and its objectives: see generally Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 156; Bond v Australian Broadcasting Tribunal [1990] HCA 33; (1990) 170 CLR 321. 85The Tribunal accepts that members of the travelling public may well consider that the offences impact negatively upon Mr Rifahi's repute. The Tribunal balances against this against the expressions of support for Mr Rifahi's repute from a range of people, including those using his services, who have been made aware of Mr Rifahi's offences. The Tribunal finds that Mr Rifahi is of good repute in relation to being the driver of a public passenger vehicle as set out in section 11(2) (a) of the PTA. 86The Tribunal further accepts, having weighed all the circumstances - including the nature of the offences, the fact that the assaults did not occur prior or since, Mr Rifahi's attempts at rehabilitation, evidence that Dr Milic thinks the behaviour is unlikely to reoccur and the fact that there have been no significant concerns about Mr Rifahi's behaviour in his workplace that Mr Rifahi is at present a fit and proper person to be the driver of a public passenger vehicle - as set out in section 11(2) (a) of the PTA. 87In view of these findings and reasons the correct and preferable decision is that the decision under review should be set aside, and the Tribunal will so order. 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: 08 August 2014

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