CHOWDHURY and DEPARTMENT OF TRANSPORT

[2012] WASAT 128

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: ROAD TRAFFIC (AUTHORISATION TO DRIVE) REGULATIONS 2008

CITATION:   CHOWDHURY and DEPARTMENT OF TRANSPORT [2012] WASAT 128

MEMBER:   MR D AITKEN (MEMBER)

HEARD:   29 MAY 2012

DELIVERED          :   29 MAY 2012

PUBLISHED           :  19 JUNE 2012

FILE NO/S:   CC 515 of 2012

BETWEEN:   MD MAHFUZUR RAHMAN CHOWDHURY

Applicant

AND

DEPARTMENT OF TRANSPORT
Respondent

Catchwords:

Authorisation to drive a taxi ­ Requirement of good character for endorsement of extension T on driver's licence ­ Moral qualities lie at the heart of the concept of good character ­ Sexual activity between taxi driver and passenger ­ Financial hardship not a relevant consideration

Legislation:

Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 11, reg 12, reg 25, reg 25(a), reg 28, reg 28(2), reg 28(4), reg 41, reg 41(1)(b), reg 42
State Administrative Tribunal Act 2004 (WA), s 17, s 27

Result:

Application dismissed and decision of the Department of Transport to cancel T extension affirmed

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Mr P Busby (Acting as Agent)

Solicitors:

Applicant:     N/A

Respondent:     Department of Transport

Case(s) referred to in decision(s):

Mohamed v Director General, Department of Transport [2010] WASC 375

The Registrar, Real Estate and Business Agents Advisory Board v Barnett (unreported, Full Court of the Supreme Court in Western Australia, Library No 170426, 26 August 1997)

Upton and Director General of Transport [2012] WASAT 63

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicant, Mr Chowdhury, sought a review of a decision by the Director General of the Department of Transport to cancel the endorsement of extension T on his driver's licence, which authorised him to drive a taxi.

2. During the course of transporting a female passenger, who was very intoxicated, Mr Chowdhury had parked his taxi and engaged in sexual activity with the passenger.  The passenger made a complaint to police, who interviewed Mr Chowdhury and viewed CCTV images captured inside the taxi and decided not to lay charges.  Mr Chowdhury claimed that the sexual activity was initiated by the passenger.

3. The Department of Transport cancelled Mr Chowdhury's T extension on the grounds that he was not of good character to hold a T extension.

4. The Tribunal considered the relevant legislative provisions and the concept of good character.  The Tribunal decided that the moral qualities which lie at the heart of the concept of good character for the purposes of a T extension need to be of such a standard that there can never be any doubt that the holder of the licence will, at all times, conduct themselves appropriately while carrying a passenger.

5. The Tribunal decided that, in the circumstances, the conduct and attitude of Mr Chowdhury was not of sufficient moral quality for him to be considered to be of good character for the purpose of the endorsement of a T extension on his driver's licence to enable him to drive a taxi.

6. The Tribunal therefore dismissed the application and affirmed the decision of the Department of Transport.

7. The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction

1. In this matter, Md Mahfuzur Rahman Chowdhury (applicant) is a taxi driver, who is seeking a review of a decision by the respondent, the Director General, Department of Transport (Director General), to cancel the endorsement of extension T on the applicant's driver's licence.

2. Under reg 11 and reg 12 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (Regulations), a person must hold a driver's licence endorsed with extension T to be authorised to drive for the purposes of carrying passengers for reward, including a taxi.

Issue

1. The issue to be decided by the Tribunal is whether the decision of the Director General to cancel the endorsement of extension T on the applicant's driver's licence should be affirmed or whether that decision should be set aside.

Facts

1. The applicant is 28 years of age and has held a driver's licence in Western Australia with an extension T to that licence since May 2008.

2. On 7 March 2012, police received a complaint from a female that she was sexually assaulted by the applicant whilst she was a fare­paying passenger in his taxi.  The police interviewed the applicant, who apparently admitted that he knew that the passenger was intoxicated and that he had engaged in sexual activity with her, but he claimed that this was initiated by the passenger.  The incident had been captured on the taxi security video.  The police decided that there was insufficient evidence to substantiate a criminal offence and did not lay charges.  However, the police reported the incident to the Director General on 8 March 2012 and, following an investigation by a delegate of the Director General, the decision was made to cancel the T extension on the grounds that the Director General had reason to believe that the applicant is not of good character or a fit and proper person to hold a T extension.  Notice of the cancellation of the T extension was served on the applicant on 8 March 2012, although the notice was dated 9 March 2012.

3. The notice of cancellation stated that the applicant was entitled to request a reconsideration of the decision and that is what the applicant did by way of a letter dated 12 March 2012.  In that letter the applicant states that he picked up a female passenger in the city who wanted to go to Dianella and that she was intoxicated and vomited three times on the way.  He then states that, when he was close to the destination, the passenger asked him to have sex with her and he agreed and stopped the taxi and got into the back with her, but realised that what he was doing was wrong and stopped.  He further states that she was pushing him to do it, but he said that he could not do it and she needed to go home and she then became upset with him.  The letter goes on to state that the applicant apologises to the taxi industry, that he has broken the code of conduct of the industry and that what he had done for that few moments was wrong.  The applicant then states that he has learned a huge lesson and is requesting one chance to prove how a taxi driver should drive a taxi, and promises that he will not do anything wrong in the future.

4. The code of conduct, to which the applicant refers in his letter, is the WA Taxi Driver Code of Conduct (Code), developed by the Department of Transport, which requires that all taxi drivers follow the Code.  The introduction to the Code states that drivers who behave in an unacceptable manner will have action taken against them, which may include removal from the taxi industry.  Under the heading 'Inappropriate Behaviour', the Code states that this includes touching passengers in an inappropriate manner, initiating discussions of a sexual nature with passengers and making sexual advances towards passengers. 

5. In response to the applicant's letter, the Acting Director of Quality Assurance & Compliance, as the delegate of the Director General, wrote to the applicant by letter dated 21 March 2012 advising that he had examined the applicant's letter and the material which was before the delegate of the Director General at the time of the original decision, and that he was satisfied that the decision to cancel the T extension to the applicant's driver's licence was justified.  The reasons given for that decision to uphold the cancellation of the T extension are as follows:

   1.Regulation 12 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) requires that the holder of driver's licence extension 'T' be a person of good character;

   2.The driver's licence extension 'T' authorised [the applicant] to drive a taxi;

   3.The evidence before the delegated officer reveals that on 7 March 2012 [the applicant] engaged in sexual activity with a female passenger during the course of [his] occupation as taxi driver;

   4.The footage from the camera stills taken from within [the applicant's] Taxi at the time of the incident clearly shows the passenger to be significantly intoxicated, and as a taxi driver [the applicant] had a responsibility to provide a safe environment for [his] passenger;

   5.The camera footage also shows that [the applicant] had made a conscious decision to park [his] vehicle and engage in sexual activity with the female passenger;

   6.[The applicant's] claim that the passenger initiated the sexual activity is irrelevant in [the Director General's] view as the general public has an expectation that Taxi Drivers will behave in an appropriate manner, which includes ensuring vulnerable passengers are safety [sic] transported to their end destination;

   7.[The applicant's] actions on the night in question were a direct breach of the Taxi Code of Conduct published by [the Department of Transport].

6. The letter concludes by advising the applicant that he may apply to the Tribunal for a review of the decision, which is what he has done.

7. Under reg 42 of the Regulations, a decision of the Director General to vary a driver's licence by cancelling an endorsement on it is a reviewable decision, which comes within the jurisdiction of the Tribunal under s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Role of the Tribunal in a review proceeding

1. Under s 27 of the SAT Act, the Tribunal considers an application for a review of a reviewable decision de novo, which means that the Tribunal is standing in the shoes of the Director General, with the functions and discretions exercisable by the Director General. The purpose of the review is to produce the correct and preferable decision at the time of the review.

2. The Tribunal must decide, on the basis of the evidence before it and the contentions of the parties, what the correct and preferable decision is in respect of the endorsement of the extension T to the applicant's driver's licence.  In doing that, the Tribunal must exercise the functions and discretions exercisable by the Director General regarding the matter.

Relevant legislative provisions and legal principles

1. The relevant provisions of the Regulations regarding those functions and discretions are set out in regs 25, 28 and 41

2. Regulation 28(2) provides that the Director General may, if it is for any reason appropriate to do so, by notice in writing given to the licence holder, vary a driver's licence. Regulation 28(4) provides that, before varying a driver's licence to cancel any authorisation that it gives to the licence holder, the Director General has to have regard to the principles in reg 41 that apply to the cancellation or suspension of a driver's licence.

3. Regulation 41(1)(b) gives the Director General the power to cancel a person's driver's licence if the Director General has reason to believe that there are grounds on which the Director General could, if then considering whether to grant the driver's licence, refuse under reg 25 to grant it.

4. Regulation 25(a) provides that the Director General may refuse to grant a driver's licence to a person if the Director General has reason to believe that the person is not of good character.

5. The question which the Tribunal needs to answer, therefore, is whether the Tribunal has reason to believe that the applicant is not of good character for the purposes of a T extension being endorsed on his driver's licence to enable him to drive a taxi.

6. In Mohamed v Director General, Department of Transport [2010] WASC 375, which dealt with a review by the Tribunal of a decision by the Director General to cancel a T extension, Allanson J at [27] and [28] stated:

   Regulation 25 refers to 'good character' and not whether the applicant is 'fit and proper' to hold a [driver's] licence.

   …

   While 'good character' is frequently referred to as an aspect of whether a person is 'fit and proper' … it is not the same thing.  An expression such as 'good character' must always be construed in the context of the particular legislation in which it occurs … It refers, in essence, to notions of moral quality …

7. Allanson J goes on at [30] to refer to moral qualities which lie at the heart of the concept of good character.

8. In Upton and Director General of Transport [2012] WASAT 63, the Tribunal reviewed a decision by the Director General to refuse an application for a T extension to a driver's licence on the ground that the applicant in that case was not of good character. At [8] of that decision, the issue of moral quality and its application to good character was stated by the Tribunal in the following terms:

   In considering the issue of good character in the vocational context, an applicant must show not only that they are possessed of a requisite degree of knowledge of the duties and responsibilities expected of them as the holder of the particular licence, but also that they possess sufficient moral integrity and rectitude of character such that the public would accept them as suitably trustworthy to perform the duties which the relevant licence requires.

9. In considering the issue of moral qualities and good character in respect of the suitability of a person to have a T extension endorsement on their driver's licence, and therefore to be able to work as a taxi driver, it is essential that the Director General, and in the case of a review, the Tribunal, not have any reason to believe that the applicant might act inappropriately when confronted with a situation where a passenger is vulnerable, whether as a result of intoxication or for any other reason.

10. The Tribunal accepts the contention of the Director General that a taxi driver must be expected to provide a safe environment in the taxi for his or her passenger and ensure that the passenger is transported safely to their destination, without any possibility of the taxi driver being involved in any inappropriate activity during the course of the journey, even if that may be initiated by the passenger.

11. The moral qualities which lie at the heart of the concept of good character for the purposes of a T extension need to be of such a standard that there can never be any doubt that the holder of the licence will, at all times, conduct themselves appropriately whilst carrying a passenger.

Does the Tribunal have reason to believe that the applicant is not of good character for the purposes of being permitted to drive a taxi?

1. The applicant asserts that he has learnt a huge lesson about responsibility and what he is supposed to do and not do as a taxi driver, and promises that he will not make a single 'mistake' in the future.

2. However, the fact remains that the applicant transgressed the bounds of appropriate behaviour in a situation where a vulnerable female passenger was not properly transported to her destination.

3. At the insistence of Mr Busby, representing the Director General, the Tribunal has viewed the CCTV images captured inside the taxi commencing at 9.56 pm on Wednesday 7 March 2012.  The applicant requested that the images not be viewed in the hearing, so the Tribunal viewed them in private.  The images show a young female passenger get into the taxi in a very intoxicated state.  At approximately 10.23 pm the passenger leans forward and embraces the applicant, following which the applicant climbs into the back of the taxi.  The images show clearly apparent sexual activity between the applicant and the passenger for a period of between 9 and 10 minutes, before the applicant climbs back into the front seat at approximately 10.33 pm.

4. In the grounds stated in the application for review, the applicant refers to the 'small mistake' he made on the night in question and states that for 'a few seconds' he was out of his mind.  Likewise, in his letter dated 12 March 2012, the applicant contends that it was only a momentary lapse when he agreed with his passenger to have sex with her.  The Tribunal considers those statements to indicate a lack of insight by the applicant regarding the seriousness of his conduct.  The Tribunal does not accept the contention by the applicant that his conduct only constituted a small momentary error of judgment.  The evidence shows very clearly that the passenger was significantly intoxicated and the applicant made a series of conscious decisions; initially to stop and park the taxi, then to move into the back seat, and then to engage in sexual activity with the passenger.

5. The Tribunal believes that, in the circumstances, the conduct and attitude of the applicant is not of sufficient moral quality for the applicant to be considered to be of good character for the purpose of the endorsement of a T extension to his driver's licence to enable him to drive a taxi.

Is financial hardship a relevant consideration?

1. There is one further issue which the Tribunal will address before proceeding to make an order in respect of the application.  In the grounds stated in the application, the applicant states that his family is fully dependent on his income.  The implication of that statement is that the applicant will suffer financial hardship if he is not able to work as a taxi driver.

2. The law is very clear that hardship is not to be taken into account in vocational regulation and disciplinary matters.  Kennedy J in The Registrar, Real Estate and Business Agents Advisory Board v Barnett (unreported, Full Court of the Supreme Court in Western Australia, Library No 170426, 26 August 1997), at 9, stated the principle in the following terms:

   The fact that the respondent would be prevented from earning an income in the calling which he knows is also irrelevant if he is unable to maintain the personal standards which the Act requires.

Conclusion

1. For the reasons given, the Tribunal has decided that the correct and preferable decision is that the endorsement of the T extension on the applicant's driver's licence should be cancelled and that the Tribunal should affirm the decision by the delegate of the Director General.

Order

1. It is ordered that:

   1.The decision of the delegate of the Director General of the Department of Transport to cancel the endorsement of extension T on the applicant's driver's licence is affirmed.

   2.The application is dismissed.

I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D AITKEN, MEMBER