Bekhit v Department of Transport
[2017] WASC 50
•2 MARCH 2017
BEKHIT -v- DEPARTMENT OF TRANSPORT [2017] WASC 50
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASC 50 | |
| Case No: | GDA:15/2016 | 20 DECEMBER 2016 | |
| Coram: | LE MIERE J | 2/03/17 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MOHAMOUD AHMED BEKHIT DEPARTMENT OF TRANSPORT |
Catchwords: | Appeal Road Traffic (Authorisation to Drive) Regulations 2014 (WA) Cancellation of indorsement on driver's licence Appeal from State Administrative Tribunal Good character Whether evidence properly considered Turns on own facts |
Legislation: | Administrative Appeals Tribunals Act 1975 (Cth), s 44 Migration Act 1958 (Cth) Road Traffic (Authorisation to Drive) Regulations 2014 (WA), reg 12(7), reg 25, reg 28, reg 41(1) State Administrative Tribunal Act 2004 (WA), s 105(1), s 105(2), s 105(13) The Criminal Code(WA), s 323 |
Case References: | Bekhit and Department of Transport [2016] WASAT 108 Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 Comcare v Etheridge (2006) 227 ALR 75 Commissioner for Consumer Protection v Carey [2014] WASCA 7 Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774 Haritos v Commissioner of Taxation (2015) 233 FCR 315 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552 Mohamed v Director-General - Department of Transport [2010] WASC 375 Morris v Information Commissioner at WA Office [2016] WASC 336 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
DEPARTMENT OF TRANSPORT
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MS K WHITNEY (MEMBER)
Citation : BEKHIT and DEPARTMENT OF TRANSPORT [2016] WASAT 108
File No : CC 766 of 2016
Catchwords:
Appeal - Road Traffic (Authorisation to Drive) Regulations2014 (WA) - Cancellation of indorsement on driver's licence - Appeal from State Administrative Tribunal - Good character - Whether evidence properly considered - Turns on own facts
Legislation:
Administrative Appeals Tribunals Act 1975 (Cth), s 44
Migration Act 1958 (Cth)
Road Traffic (Authorisation to Drive) Regulations 2014 (WA), reg 12(7), reg 25, reg 28, reg 41(1)
State Administrative Tribunal Act 2004 (WA), s 105(1), s 105(2), s 105(13)
The Criminal Code (WA), s 323
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms L B Black
Respondent : Mr J L Winton
Solicitors:
Appellant : Hammond Legal
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bekhit and Department of Transport [2016] WASAT 108
Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232
Comcare v Etheridge (2006) 227 ALR 75
Commissioner for Consumer Protection v Carey [2014] WASCA 7
Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774
Haritos v Commissioner of Taxation (2015) 233 FCR 315
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552
Mohamed v Director-General - Department of Transport [2010] WASC 375
Morris v Information Commissioner at WA Office [2016] WASC 336
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175
- LE MIERE J:
Summary
1 The appellant held a T extension to his motor vehicle driver's licence entitling him to carry passengers for reward in a taxi. On 4 December 2015 the appellant pleaded guilty and was convicted of indecent assault. The offence had been committed against a taxi passenger in the course of the appellant's employment as a taxi driver. The respondent, the CEO of the Department of Transport, cancelled the appellant's T extension on the basis that he was not a person of sufficient good character to hold a T extension. The appellant applied to the State Administrative Tribunal for a review of that decision.
2 The Tribunal was not satisfied on all the evidence, including the evidence of five character witnesses, that the appellant is of the requisite good character to hold a T extension and affirmed the CEO's decision: Bekhit and Department of Transport [2016] WASAT 108 (Bekhit). The appellant now applies for leave to appeal against the Tribunal decision under s 105(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
3 The appellant says that the appeal is on questions of law. The first asserted question of law concerns the proper or lawful use by the Tribunal of the character evidence. The appellant says the Tribunal wrongly characterised the evidence as only being relevant to the character of the appellant in the context of members of the Eritrean community. The second concerns the use by the Tribunal of the evidence of the absence of any prior bad character and the appellant's subsequent good character. The third asserted question of law concerns the absence of any proper evidential foundation for the Tribunal's finding that the appellant may not have fully appreciated that his offending behaviour was inappropriate. The respondent submitted that the purported appeal is not an appeal on a question or questions of law and in any event each ground of appeal lacks merit.
4 For the reasons that follow there will be leave to appeal and the appeal will be dismissed.
Facts as found by Tribunal
5 The relevant facts as found by the Tribunal are as follows. The appellant is a 51-year-old married man with three young children. He was born in Eritrea and lived for 20 years in a refugee camp in Sudan prior to migrating to Australia in 1996. On 1 February 2007 his driver's licence was varied by indorsement with a T extension and he worked as a taxi driver for eight years without being the subject of a complaint.
6 On 1 May 2015 the appellant was charged with the offence of indecent assault under s 323 of The Criminal Code (WA). The circumstances of the offence are as follows. At 3.56 am on 27 March 2015 the appellant was operating his taxi in the Northbridge area. A young female and two other people hailed the appellant's taxi. The other two passengers were dropped off after a short journey in Northbridge and the victim stayed in the taxi to travel to an address in Stirling. The victim was seated in the front passenger seat of the taxi. During the journey the appellant asked the victim words to the effect of 'do you have a boyfriend?' The appellant later placed his hand on the victim's neck, stroked her neck and told her that she was beautiful. The victim became uncomfortable and shifted away from the appellant towards the door of the vehicle and moved her bag onto her lap. The appellant removed his hand from the victim's neck. Upon arriving at the address in Stirling the victim got out of the vehicle and told the appellant he had scared her. The victim asked how much the fare was and the appellant replied there was no charge before speeding off.
7 The plea in mitigation on behalf of the appellant included that the victim was an Irish backpacker and extremely friendly and was telling the appellant her life story. She told him a story about some friends that had worked with her and one of her friends was an Australian female who had dated a Nigerian man. She said the couple had got married and had a child together.
8 The appellant pleaded guilty and was sentenced to a fine of $2,000 reduced to $1,800 by reason of his guilty plea. In his sentencing remarks the magistrate said that the offence is extremely serious although the indecency is at the lower end of the scale. The magistrate said the offence was serious because the victim is a female passenger who put her trust in the appellant as a taxi driver, she was in a vulnerable position in a moving vehicle and the appellant touched her inappropriately.
9 The magistrate refused to grant the appellant's application for a spent conviction order for the following reasons. The offence is not trivial. The appellant is of previous good character. It is hard to determine whether the appellant is unlikely to commit such an offence again. Even if the appellant was unlikely to commit such an offence again, in exercising the court's discretion, the appellant should not be relieved immediately of the adverse effect of the conviction because it was committed in the course of his employment, it involves public safety considerations and is a conviction that should be recorded on the appellant's record. It will then be up to the Taxi Board to take that conviction into account in deciding whether or not to allow the appellant to continue working as a taxi driver.
Relevant law concerning T extension to driver's licence
10 A person must hold a driver's licence with a T extension to carry fare paying passengers and operate as a taxi. The CEO may make a T extension if, amongst other things, the CEO is satisfied that the applicant is of good character: Road Traffic (Authorisation to Drive) Regulations 2014 (WA) (the Regulations) reg 12(7).
11 The CEO may vary a driver's licence but before varying a driver's licence in a way that would cancel any authorisation, the CEO must have regard to the principles in reg 41 that apply to the cancellation or suspension of a driver's licence: reg 28.
12 Regulation 41(1) provides that the CEO may cancel a person's driver's licence if the CEO has reason to believe that there are grounds on which the CEO could, if then considering whether to grant the driver's licence, refuse under reg 25 to grant it. Regulation 25 provides that the CEO may refuse to grant a driver's licence to a person if the CEO has reason to believe that the person is not of good character. Therefore, the CEO may cancel a T extension if the CEO has reason to believe that the holder is not of good character.
13 The member who constituted the Tribunal directed herself that her task was to determine whether the appellant is a person of good character such that he may continue to hold a T extension: Bekhit [16], [32]. Neither party challenged that formation of the issue before the Tribunal.
Tribunal's reasons
14 The Tribunal commenced its consideration by addressing the character evidence adduced by the appellant. The Tribunal made the following findings and observations:
1. The Tribunal accepts the evidence of the character witnesses that the appellant is a respected member of the Eritrean community and has an admirable history of voluntary community service.
2. The Tribunal accepts the evidence of the character witnesses that the appellant's behaviour in the Eritrean and Sundanese communities is exemplary, and that the offending behaviour shocked the witnesses because it was so inconsistent with their own experiences in dealing with him.
3. The appellant's offending behaviour was quite different from how he behaves towards women in his own community.
4. The offending behaviour did not occur in the context of the appellant's dealings with women in his own community. It occurred in the context of driving a taxi, where he is alone in a confined space with passengers drawn from the general public who regularly include young women who are intoxicated and who may well behave in a manner which is different to the women in the appellant's community.
5. The evidence as to how the appellant conducts himself in his own community does not necessarily indicate how he tends to behave in the context of his employment.
15 The Tribunal then considered 'how [the appellant] behaves towards women from outside his community when he is alone with them in his taxi'. The Tribunal said that on the one hand it had the evidence of his offending behaviour and on the other hand evidence from the appellant's employer that he has never been the subject of any other complaint and that the offending behaviour was a single, isolated incident. The Tribunal found that the fact that the appellant engaged in the offending behaviour is sufficient evidence to support the finding of a risk of abhorrent, unacceptable behaviour posed by the appellant when driving his taxi. The Tribunal said that this risk is not counterbalanced by the evidence of his good character 'within his community'.
16 The Tribunal then addressed the offending behaviour. The Tribunal found that the seriousness of the offending behaviour arose from the breach of trust constituted by the offending behaviour. The Tribunal did not accept that the appellant's otherwise impeccable character weighs heavily in his favour.
17 The Tribunal was not satisfied that the appellant's conduct is consistent with the test for 'good character'. In essence the test is that the Tribunal must be satisfied that the holder of the T extension has a good character comprising moral qualities of such a standard that there can never be any doubt that the holder of the licence will, at all times, conduct themselves appropriately when carrying a passenger.
18 The Tribunal then made some observations about the appellant's insight into his offending behaviour. The Tribunal noted that in cross-examination the appellant conceded he does not understand why he engaged in the offending behaviour and said that in the absence of a clear understanding of why he engaged in the offending conduct it is difficult to have confidence in his reassurances that he can guarantee it will not happen again. The Tribunal said it has 'concerns about whether [the appellant] currently has sufficient true insight into his behaviour to be able to carry through on such a guarantee'. The Tribunal said it is not satisfied that there is currently no reason to believe that the appellant might act inappropriately when confronted with a situation where a passenger is vulnerable.
19 Finally, the Tribunal said it has concerns 'as to whether, at the time of offending, [the appellant] fully appreciated that his behaviour was inappropriate'. The Tribunal referred to statements made by the appellant and said that '[t]hese submissions are troubling'.
20 The Tribunal concluded that it is not persuaded that the appellant is of the requisite good character to hold a T extension and therefore affirmed the respondent's decision.
21 It is necessary to outline the evidence before the Tribunal because the essence of the appellant's challenge to the Tribunal's decision is that the Tribunal used the evidence improperly and the evidence does not support its findings.
Leave to appeal
22 I grant leave to appeal. In my opinion the decision of the Tribunal is attended with sufficient doubt to warrant it being considered by the court and substantial injustice would result if leave was refused, supposing the decision to be wrong.
Appeal only on a question of law
23 The scope of an appeal under s 105(1) of the SAT Act was considered by the Court of Appeal in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 (Paridis) and Commissioner for Consumer Protection v Carey [2014] WASCA 7 (Carey). In Carey Buss JA said that a number of propositions may be enunciated about the jurisdiction and powers of this court under s 105 in relation to an appeal, with leave, on a question of law. Those principles included:
First, s 105 confers jurisdiction on this court to examine for legal error what has been done in the State Administrative Tribunal (the Tribunal). Despite the description of the proceedings in this court as an 'appeal', s 105 confers original not appellate jurisdiction. The proceedings are in the nature of judicial review. They are not an 'appeal' by way of rehearing. Where a statute confers what is described as an 'appeal' from an administrative decision, and the 'appellate' court's jurisdiction is enlivened, it is necessary to identify the nature of the jurisdiction and the duties and powers of the 'appellate' court. See Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 [15] (Gaudron, Gummow, Hayne & Callinan JJ); Osland [18] (French CJ, Gummow & Bell JJ); Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [27] (French CJ); Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) [2011] HCA 41; (2011) 245 CLR 446 [5] (French CJ, Gummow, Crennan, Kiefel & Bell JJ).
Secondly, this court's jurisdiction under s 105(1) is, by s 105(2), confined to an 'appeal' 'on a question of law'. Section 105(9), which confers powers on this court in aid of the exercise of its jurisdiction, does not enlarge that jurisdiction. See Osland [19]. Section 105 does not qualify or circumscribe the nature or character of the questions of law on which an 'appeal' may lie.
Thirdly, a question of law, for the purposes of s 105(2), is not to be distilled from the ground or grounds of appeal. See Osland [21]. The existence of a question of law is both a qualifying condition to the invoking of this court's jurisdiction under s 105 and the subject matter of the 'appeal' itself. See TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, 178 (Gummow J); Osland [21]. It is essential that the question of law relied on for the purposes of s 105(2) be identified with precision. In Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, I said (Wheeler and Pullin JJA agreeing) in relation to the limitation in s 105(2):
'An appeal "on a question of law" is narrower than an appeal that merely "involves a question of law". Where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2). See, in the context of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the observations in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 58 - 60 [10] - [18]; Comcare v Etheridge (2006) 149 FCR 522 at 527 [13] - [17]. Section 44(1) of the Administrative Appeals Tribunal Act provides that an appeal from a decision of the Administrative Appeals Tribunal may only be made "on a question of law". That provision is not materially different from the provisions of s 105(1) and (2) of the Western Australian Act [53]' [163] - [165].
- McClure P held at [68] that the appeal court does not have jurisdiction to make findings of fact. Her Honour said at [72] that although an appeal under s 105(2) is analogous to judicial review in the sense that the error both enlivens and limits the scope of the jurisdiction, s 105(2) applies to all errors of law, jurisdictional or otherwise.
24 More recently in Haritos v Commissioner of Taxation (2015) 233 FCR 315 (Haritos) the Full Court of the Federal Court considered the scope of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which, like s 105(2) of the SAT Act, limits an appeal from the tribunal to an appeal 'on a question of law'. The Full Court summary of its conclusions in relation to s 44 of the AAT Act includes, at [62]:
We now turn to consider the more general questions raised by the appeal in relation to s 44 of the AAT Act. In summary, our conclusions are as follows:
(1) The subject-matter of the court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.
(2) The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.
(3) The court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.
(4) Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the court by s 44(3) to hear and determine appeals instituted in the court in accordance with s 44(1), but to the exercise of that jurisdiction.
…
(6) Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.
(7) A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.
(8) The expression 'may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal' in s 44 should not be read as if the words 'pure' or 'only' qualified 'question of law'. Not all so-called 'mixed questions of fact and law' stand outside an appeal on a question of law.
…
(10) Earlier decisions of this court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232 ; 76 ALD 321; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; 169 FCR 241.
25 The Full Court of the Federal Court took a more expansive view of what constitutes a question of law than the Court of Appeal in Paridis and Carey in that the Full Court held that not all mixed questions of fact and law standoutside appeals from the AAT under s 44 of the AAT Act, whereas the Court of Appeal held that a question of mixed law and fact is not a question of law within s 105(2) of the SAT Act.
26 In reaching its decision in Paradis the Court of Appeal relied upon the decision of Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 (TNT Skypak) and the decisions of the Full Court of the Federal Court in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 (Birdseye) and Comcare v Etheridge (2006) 227 ALR 75 (Etheridge) each of which concerned the scope of an appeal under s 44 of the AAT Act. In Haritos at [143] the Full Court opined that in TNT Skypak Gummow J did not say anything, at least expressly, about whether a mixed question of fact and law would or may fall within s 44 of the AAT Act and TNT Skypak does not support the proposition that s 44 does not extend to a question of mixed fact and law. The Full Court held at [193] that to the extent that the reasoning in Birdseye and Etheridge depended on the view that a question of law within s 44 is required to be a 'pure' question of law which should be capable of being answered without reference to facts, they are wrong and should not be followed. However, the Full Court noted that although by s 105(2) of the SAT Act an appeal can only be brought on a question of law, by s 105(13) despite s 105(2), in certain specified circumstances an appeal under s 105 may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact: Haritos [187]. Thus, the scope of an appeal on a question of law under s 105(2) of the SAT Act may be narrower than the scope of an appeal on a question of law under s 44 of the AAT Act.
27 In Morris v Information Commissioner at WA Office [2016] WASC 336 Corboy J at [56] had regard to what was said by the Full Court in Haritos, including those aspects that might arguably take a more expansive view of what constitutes a question of law than has been adopted by the Court of Appeal (for example, on the issue of whether a mixed question of fact and law can be a question of law). His Honour followed what was said by the Full Court in Haritos, holding at [94] that the issue must be approached as one of substance; the court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context and the decision maker's reasons and having considered all of those matters, satisfy itself that there is, in fact a question of law (Haritos [94]). I propose to follow the same course.
The questions of law submitted by the appellant
28 Counsel for the appellant, Ms Black, commenced her oral submissions by identifying the questions of law on which the appeal is brought. Ms Black said that ground 1 raises the question of law whether the Tribunal correctly categorised the character evidence as only being relevant to the character of the appellant in the context of people of his own race and did not give the character evidence the proper meaning and effect that the appellant was entitled to have given to it but instead used the character evidence in a way that was contrary to law because the Tribunal used it to demonstrate the appellant's character only in the context of people of his own race. Ms Black said that the error of law raised by ground 2 is the failure of the Tribunal to have proper regard to the specific matters relevant to the appellant's character; and that the Tribunal erred in law in that it failed to properly take into account the absence of any other complaints against the appellant. The question of law raised by ground 4 is whether there was a proper evidential foundation to support the Tribunal's finding that the appellant did not appreciate his offending behaviour was inappropriate. The appellant does not press ground 3.
29 In Haritos the Full Court said at [212] that it may be an error of law to make a decision which is irrational, illogical and not based upon findings or inferences of fact supported by logical grounds. At [213] the Full Court said that a conclusion that a decision involves a lack of reason or logic sufficient to amount to an error of law is not to be lightly drawn and not every lapse in logic is sufficient to constitute an error of law. However, it is not a precondition for relief that it be established that the decision would have been different but for the lack of reason or logic in the relevant sense: Haritos [213]. The Full Court said that what that meant in that case was that, in order to make out the alleged error of law, it was not necessary for the appellants to establish that but for the lack of reason or logic Mr Haritos' evidence concerning the subcontractor expenses would have been accepted; it was sufficient that it may have been accepted: Haritos [213]. At [217] the Full Court found that the approach by the tribunal in that case had involved an error of law. The error was the drawing of a conclusion about the nature or character of the evidence of Mr Dolla Costa, a witness, that was irrational, illogical and not based on findings or inferences supported by logical grounds. The evidence of Mr Dolla Costa did not admit of a conclusion rationally reached that the tribunal reached. So to conclude is not merely a wrong finding of fact; it was to make a finding effectively without any material, such was the mischaracterisation of the evidence. The Full Court found that it could be seen as equivalent to finding a fact with no evidence or to drawing a conclusion that it was reasonably open to make a finding when it was not so open: Haritos [217]. The Full Court found that so to conclude was not to enter into the field of merits review or fact finding but to supervise the legality of the fact finding process of the tribunal. A tribunal cannot, at least in relation to central and important evidence, say that material cannot be considered as of any weight because it derives from a tainted source, when an examination of that material (without the need for any weighing of evidence or choosing between available inferences or findings) reveals that it does not derive from the source said to be tainted: Haritos [218]. This is to fail to deal in the review process with possibly significant evidence for a reason that has no evidential foundation or for a reason that has no evidential foundation or for a reason that is sufficiently irrational or logical as to be legally unreasonable: Haritos [219].
30 The appellant argues, in effect, that the Tribunal, in relation to central and important evidence (that is, evidence of the appellant's character) gave no weight to the character evidence adduced by the appellant because it is evidence of the appellant's behaviour in the Eritrean and Sundanese communities and not how he behaves towards women from outside his community. The appellant says, in effect, that the Tribunal thereby failed to deal with significant evidence for a reason that has no evidential foundation or for a reason that is sufficiently irrational or illogical as to be legally unreasonable.
31 The appellant says that the errors raised by grounds 2 and 4 raise questions of law for similar reasons. Whether the grounds of appeal, or any of them, are on a question of law requires a consideration of the Tribunal's findings and the evidence before the Tribunal.
Meaning of good character
32 Before considering the evidence before the Tribunal it is convenient to say something about the concept of good character. In Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774 Lee J considered the proper construction of the provisions of the Migration Act 1958 (Cth) which defined the character test. The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. On appeal in Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552 [34] the Full Court of the Federal Court said that Lee J's consideration of the matter was correct and constitutes a valuable guide for decision-makers. Lee J said:
The words 'of good character' mean enduring moral qualities reflected in soundness and reliability in moral judgment in the performance of day-to-day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continued performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character …
… The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person of good character, a question not to be confused with characterisation by conduct alone …
…
… For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character …
… Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they would be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct [51] - [56].
33 The paragraph of the Full Court judgment approving the statements of Lee J was referred to with approval by Allanson J in Mohamed v Director-General - Department of Transport [2010] WASC 375, at [28], where his Honour considered the meaning of 'good character' in Regulation 25. His Honour said that 'an expression such as "good character" must always be construed in the context of the particular legislation in which it occurs' and 'it refers, in essence to notions of moral quality'.
34 In the context of the Regulations under consideration whether a person is of good character is a judgment about a person's mental and moral qualifications for being a taxi driver. The question the Tribunal had to decide was whether the appellant was, at the time of the decision, a person of good character. In making that decision the Tribunal had to determine whether the appellant had such mental and moral qualities so that it could be found as a fact that he was a person of good character. The Tribunal had to determine whether the appellant was a person of good character such that it would be in the interests of the community that he may drive a taxi in Western Australia.
35 A person's character may be proved by testimony about the person's reputation or by testimony in the form of an opinion or by evidence of relevant specific instances of the person's conduct. Evidence of specific instances of conduct is generally the most convincing because it shows what a person is whereas testimony about the person's reputation or testimony in the form of an opinion of their character is evidence of what people believe the person to be. In this case the evidence relied upon by the respondent was evidence of a specific instance of conduct - the offending behaviour of which the appellant was convicted. The evidence adduced by the appellant was mainly evidence of reputation and opinion of the appellant's character but the appellant did lead evidence of specific instances of conduct by the appellant, namely the behaviour of the appellant towards women in the Eritrean and Sudanese community in Western Australia.
Evidence before Tribunal
36 The evidence adduced by the respondent included the written police statement of material facts to the Magistrates Court, the transcript of proceedings before the magistrate, a copy of the recording of the incident by the taxi camera surveillance unit and the Department of Transport Taxi Driver Code of Conduct.
37 The evidence adduced by the appellant included a witness statement by the appellant to which was attached a written character reference from Kim Johnson, director of Embleton Motor Co, the taxi operator by whom the appellant was employed and a reference from Wendy Lim, driver services executive of Swan Taxis. The appellant also adduced character evidence in the form of witness statements from Samia Mustafa, Omer Bekhit, Abdel Osman, Abdelsalam Mohamedkhier and Ahmed Khalid Fadlalla. Each of the witnesses was cross-examined. The character evidence is important. The appellant says that the Tribunal overemphasised the differences in the cultural mores of the Eritrean, Sudanese and African communities and undervalued the witnesses' character evidence as demonstrating his character and behaviour towards women. At this stage it is convenient to make some observations about that evidence.
38 First, the appellant and each of his witnesses were born in Eritrea or Sudan and referred to the appellant as a member of the Eritrean community. In his witness statement, the appellant himself described 'my community (Eritrean)'. Secondly, each of the witnesses referred to the appellant's reputation within the Eritrean community. Thirdly, each of the witnesses referred to the appellant's experiences with members of the Eritrean community and things that he has done to help and for the benefit for members of the Eritrean community. Some of the witnesses referred to the appellant's behaviour towards women within the Eritrean community.
39 Fourthly, each of the witnesses makes reference to the culture or mores of the Eritrean community in Western Australia. Abdelsalam Mohamedkhier, the President of the Eritrean community in Western Australia, refers to 'our [c]ommunity' and 'our culture'. When asked about the roles of men and women in the community Mr Mohamedkhier said men and women mingle together but 'it's not like a western society … we are a little bit different' (ts 29). Ahmed Khalid Fadlalla is the Vice President of the African Community Council. He said that he had seen the appellant at functions within the community but had not seen the appellant interact with any women that are not part of his community. When he was asked about the cultural relationship between men and women and whether it is fairly strict in the community, he said:
… it is not really strict but it is respectful and it is a principle for us, really. Normally we have just the first look you can look and the second you can't do it. Just to recognise the person not more than that (ts 19).
- Abdel Osman is the fleet manager for the Embleton Motor Co and has known the appellant in Australia through the Eritrean community. He said that he socialises with the appellant 'quite a lot through the community' (ts 13). When he was asked about 'your culture' he said: 'It's not like the western culture. There is a barrier between men and women' although he went on to say that women mixed with the men in the same way they do in a western culture (ts 15 - 16). Samia Mustafa is the Children's Co-ordinator for the African Community Council. In her witness statement she said:
In our culture and religion we cannot let a girl go by a man by herself. However, [the appellant] is a man I can trust and that is why I am happy to allow my sister to go with [the appellant] to work, and get picked up by him, by herself.
When she was asked if the appellant had spoken to her about the circumstances that led to his conviction she said that her only knowledge is what she had heard on the news 'because normally as a culturally we can't talk like women to men and actually you can't talk to the women [sic]' (ts 9).
Appeal ground 1
40 Appeal ground 1 is that the Tribunal erred in law in making findings as to the character evidence adduced on behalf of the appellant, in that the member:
(a) failed to properly take into account the character evidence when concluding that it did not demonstrate how the appellant behaved towards women but it only revealed his conduct when in the presence of women 'in his own community' as though this somehow differed;
(b) concluded, despite the absence of any evidence, that intoxicated women who were other than women from the appellant's community 'may well behave in a manner which is different to the women in the Appellant's community'; and
(c) overemphasised the differences in the cultural mores of the Eritrean and Sudanese communities, and dismissed the proper value of the character evidence in circumstances where the appellant was entitled to the benefit of that evidence as demonstrating his character and normal behaviour towards women.
41 This ground of appeal is not made out. A court in judicial review proceedings ought not to concern itself with looseness in the language nor with unhappy phrasing of the reasons of the decision under review. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh, Gummow JJ).
42 The member did take into account the character evidence adduced by the appellant. At [18] and [21] of its reasons the Tribunal fairly described the character evidence led by the appellant. At [23] the Tribunal accepted the evidence and that 'such evidence may be indicative of good character' but it is 'merely one factor which must be weighed by the Tribunal in determining whether, on balance, the [appellant] is of the requisite good character to hold a T extension'. At [24] the Tribunal accepted the evidence of the character witnesses that the appellant's behaviour in the Eritrean and Sudanese communities is exemplary and that the offending behaviour was inconsistent with the witnesses' experiences in dealing with the appellant. The Tribunal did not mischaracterise the character witnesses' evidence of their experiences of the appellant's behaviour. The witnesses expressly referred to their observations and experiences of the appellant's behaviour in the Eritrean and Sudanese community. At [27] the Tribunal found that, apart from the offending behaviour, the appellant was otherwise of 'impeccable character'.
43 In deciding whether the appellant was of good character the Tribunal was entitled to have regard to evidence of relevant specific instances of behaviour as well as testimony about his reputation or testimony in the form of opinions about his character. The Tribunal gave greatest weight to the appellant's offending behaviour. The Tribunal also gave consideration to the appellant's behaviour towards women in the Eritrean and Sudanese community because the appellant led evidence of that behaviour. In evaluating the evidence of the appellant's offending behaviour and his behaviour towards women in his community (which he and the witnesses expressly referred to), the Tribunal was entitled to have regard to the different contexts in which the behaviour occurred. That is what the Tribunal did in [25] and [26] of its reasons.
44 The Tribunal did not disregard the evidence of the witnesses called by the appellant of his good character. The Tribunal did not disregard evidence of the appellant's experiences with women in the Eritrean and Sudanese community because of differences in the cultural mores of Eritrean and Sudanese women on the one hand and women in the general community on the other hand. The Tribunal had regard to the different context of that behaviour and the context of the offending behaviour of the appellant. The Tribunal found the evidence of a specific instance of conduct - the appellant's behaviour towards a young intoxicated women in his taxi that gave rise to his conviction - more convincing evidence of the relevant character trait than evidence of reputation and opinion of his character and behaviour towards women who knew him in the Eritrean and Sudanese community with which he engaged.
Appeal ground 2
45 Appeal ground 2 is:
The Learned Member erred in law in that she failed to properly take into account the absence of any other complaints against the Appellant, and the absence of any prior bad character. This was in the context of the Appellant having been a taxi driver for a long period of time and having regular opportunities to have behaved in the manner alleged in the isolated incident and yet having never behaved in such a manner.
46 This ground of appeal is not made out. At [26] of its reasons the Tribunal expressly took into account that the appellant had never been the subject of any other complaint in respect of his conduct as a taxi driver and the offending behaviour was a single isolated incident and furthermore that the offending behaviour was not necessarily indicative of how he normally behaves with passengers. However, the Tribunal gave greater weight to the fact that the appellant had engaged in the offending behaviour. At [27] of its reasons the Tribunal expressly had regard to, and accepted, that the appellant had 'otherwise impeccable character'.
47 The Tribunal gave proper, genuine and realistic consideration to the absence of any other complaints against the appellant, the absence of any prior bad character and the appellant's otherwise (that is, other than the offending behaviour) good character.
48 Mere preference for a different result when the question is one on which reasonable minds may come to different conclusions does not raise a question of law nor reveal any error of law. The appellant is really inviting the court to engage in merits review and using the term 'properly take into account' to impugn a decision with which he disagrees. The evaluation of on the one hand, the absence of any other complaints against the appellant, the absence of any prior bad character and the appellant's otherwise good character and on the other hand, what was revealed about the appellant's character by the offending behaviour, was a matter for the Tribunal.
Ground 4
49 Ground 4 is that:
The Learned Member erred in law when she concluded that the Appellant may not have fully appreciated that his behaviour was inappropriate because:
a) The Appellant provided a statement and gave evidence that he understood both the consequences and the nature of his conduct;
b) The selected remarks relied upon in the Learned Member's Reasons for Decision were unfairly taken out of context and ignored contrary evidence;
c) the evidence from the witnesses called on behalf of the Appellant corroborated the Appellant's assertions of genuine remorse and genuine understanding;
d) In any event, there were difficulties in the interpretation of the Appellant's evidence given he was unable to speak in English and the interpreter did not always interpret what was actually being said, making such a conclusion inherently unfair and unsafe.
50 The ground of appeal is that the member erred in concluding that the appellant may not have fully appreciated that his behaviour was inappropriate. Counsel for the appellant submitted that the ground of appeal is an appeal on a question of law:
A finding by the learned member that does not have proper evidential foundation to support it is an error of law … to conclude that the appellant did not appreciate his behaviour was inappropriate is an error of law because the evidence, in fact, did not exist to support such a finding … the member … [cannot] pluck a piece of evidence out in isolation and say, 'well, look, there's this one line said by the appellant at one point to one person', which, therefore, shows a lack of appreciation of the seriousness. The learned member was obliged at law to consider all of the evidence about the Appellant's understanding, remorse, contrition, all of those things. She was obliged to consider all of it and draw a conclusion from that … There was no evidential foundation for the findings she made (ts 7 - 8).
51 The appeal ground is not made out. The finding of the Tribunal is a finding of fact. There was an evidentiary basis for the member's finding. The evidence before the Tribunal included:
(a) a witness statement signed by the Appellant on 24 August 2016 (Appellant's Statement), and confirmed on affirmation as being true and correct (ts 33), in which the Appellant states:
(i) 'I really did not think through at the time how serious my actions would be viewed by others': Appellant's Statement, [54];
(ii) 'Having gone through this process I am very well aware of how wrong it was': Appellant's Statement, [54];
(iii) 'The Magistrate when he sentenced me told me how serious my actions were and I now truly understand that I did wrong by my passenger': Appellant's Statement, [55]; and
(iv) 'It has been a very big learning experience for me': Appellant's Statement, [56],
(b) In giving evidence in chief, the Appellant stated, in response to the question 'what have you learned?', 'I have learned the things that I have done, touching the lady and - it touched me so deep that, in the future, I will not do it again' (ts 33);
52 It was open to the member to draw the inference that the appellant may not, at the time of the offending, have fully appreciated that his behaviour was inappropriate.
Conclusion
53 Leave to appeal will be granted. The appeal will be dismissed.
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