AL ASADI and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
[2007] WASAT 50
•22 FEBRUARY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: ROAD TRAFFIC ACT 1974 (WA)
CITATION: AL ASADI and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2007] WASAT 50
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 20 FEBRUARY 2007
DELIVERED : 22 FEBRUARY 2007
FILE NO/S: CC 1953 of 2006
BETWEEN: MOHAMMED AL ASADI
Applicant
AND
DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
Respondent
Catchwords:
Road Traffic Act 1974 (WA) - Endorsement as T driver - Decision-maker must have reason to be believe that person is not of good character - Serious offences - Public interest
Legislation:
Road Traffic Act 1974 (WA), s 48(1)(a), s 48(1)(e), s 48(4)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5), s 48(2)(a)
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr N Fox
Solicitors:
Applicant: Self-represented
Respondent: Department for Planning and Infrastructure
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Al Asadi sought review of the decision by the Department for Planning and Infrastructure to refuse his application for a "T" class endorsement. The Department grounded the decision on the basis that they had reason to believe that Mr Al Asadi is not of good character. They referred in particular to his conviction of burglary in 2000 and contended that not a sufficiently long period has lapsed for him to be licensed as a taxi driver. Mr Al Asadi contended that he was remorseful for what he had done and that he should be given a chance to start a new life. Mr Al Asadi did not attend the hearing but made a written submission as part of his application.
The Tribunal found that, given the criminal record of Mr Al Asadi, it has reason to believe that he is not of good character and that the interests of the public demand that the application must be refused.
The application for review failed and the decision of the Department was affirmed.
Background
Mr Al Asadi seeks a review under s 48(4) of the Road Traffic Act 1974 (WA) (RT Act) of a decision by the Department for Planning and Infrastructure (the Department) to refuse his application for a "T" class endorsement. He is the holder of a "C" class motor driver's licence.
The decision to refuse the licence was made on 24 October 2006; notice of suspension was served on 2 November 2006. The application for review of the decision was lodged on 27 November 2006.
A directions hearing took place on 14 December 2006 at which detailed directions were made. The respondent was required to file its Statement of Issues, Facts and Contentions and Mr Al Asadi was given an opportunity to respond thereto.
Mr Al Asadi did not, as he was ordered, reply to the respondent's Statement of Issues, Facts and Contentions.
Mr Al Asadi failed to attend the hearing or to apologise for not attending. He also did not seek an adjournment of the proceedings.
The Tribunal decided to continue with the proceedings.
The ground for refusal to endorse the licence is found in s 48(1)(a) of RT Act namely that the decision-maker has reason to believe that Mr Al Asadi is not of good character. It must be noted that the test is not as stated in the notice of refusal dated 24 October 2006, that Mr Al Asadi "is not of good character". The test is whether the decision-maker has "reason to believe that Mr Al Asadi is not of good character".
The Department filed a Statement of Issues, Facts and Contentions with several documents attached. It appears from these documents that the Department initiated an investigation into Mr Al Asadi's suitability to hold a T licence. At the conclusion of the investigation the Department's legal services recommended that a T endorsement be refused.
The Department contends that it has reason to believe that Mr Al Asadi is not of good character for reason that he (a) failed to declare his criminal record on the application form and (b) has been involved in two serious criminal offences.
Mr Al Asadi was convicted in 2000 of possession of cannabis and robbery whilst armed in company. For the latter offence a term of 4 years and 6 months imprisonment was imposed. According to the information provided to the Tribunal the robbery was conducted with Mr Al Asadi's vehicle, the offenders disguised themselves, and they used a real and replica handgun.
Mr Al Asadi contended in his application that the decision should be reviewed on grounds that the offence was committed some time ago and he has not re‑offended. He is now employed with a family. He submitted two letters of reference.
Consideration
The Tribunal has in accordance with s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) the same jurisdiction, functions and discretions as those of the delegated officer.
The Tribunal is not limited to the Statement of Reasons given by the delegated officer (s 27(3) SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the delegated officer at the time when the decision was made (s 27(1) SAT Act).
The review hearing is therefore "de novo" (s 27(1) SAT Act) and is not confined to the matters and information that were before the decision‑maker at the time of the decision.
The powers of Tribunal according to s 29(3) SAT Act are to:
a)affirm the decision; or
b)vary the decision; or
c)set aside the decision,
and to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the delegated officer (s 29(5) SAT Act).
The starting point for the Tribunal is s 48(1)(a) RT Act that clothes it with a discretion. The Tribunal may refuse to issue the T driver's licence if it has "reason to believe" that Mr Al Asadi "is not of good character".
The Tribunal is put in the same position of the decision‑maker to take into account the interests of the individual as well as the interests of the public. In doing so the Tribunal must take into account all information regarding the character of Mr Al Asadi and the interests of the public to be protected against persons who may not be of good character.
The offences for which Mr Al Asadi was convicted are serious – in particular the armed robbery offence. It appears that he played an active role in the robbery. Although the offence was committed some time ago (in 2000), the seriousness of it and the failure to declare it on the application form must be taken into account by the Tribunal.
It is the view of the Tribunal that the public would frown upon a decision to allow Mr Al Asadi to be licensed as a taxi driver. The fact that he did not disclose the offence adds to the doubt cast over his character. Although he submitted two letters of reference, the Tribunal must take all information and the interest of all parties into account when making the decision. It does not appear from the letters of reference that the authors were aware of his convictions. They were also not called to give evidence.
Finding
It is in summary the Tribunal's view that to uphold this application for review would expose the public to unnecessary risk. The Tribunal has reason to believe that Mr Al Asadi is not of good character for purposes of being licensed as a taxi driver.
The decision not to issue a T driver's licence to Mr Al Asadi should be affirmed.
The Tribunal further notes that the failure of Mr Al Asadi to comply with orders of the Tribunal, constitutes, in accordance with s 48(2)(a) SAT Act a further ground for the application to be dismissed. The Tribunal nevertheless considered the application on merit.
Orders
1.The application is dismissed.
2.The decision to refuse to issue a "T" class endorsement to Mr Al Asadi is affirmed.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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