Hijazi v Department of Transport and Main Roads

[2011] QCAT 575

CITATION: Hijazi v Department of Transport and Main Roads [2011 ] QCAT 575

PARTIES:	Alaa Eldean Hijazi
v
Department of Transport and Main Roads

APPLICATION NUMBER:   GAR301-11

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 9 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:      A stay of the decision made 21 October 2011 is refused.

CATCHWORDS: 

REVIEW OF ADMINISTRATIVE DECISION – where Driver Authorisation cancelled following conviction for assault – where stay of operation of decision sought – where public interest considered

Queensland Civil and Administrative Tribunal Act 2009, s 22
Transport Operations (Passenger Transport) Act 1994, s 23

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. When Mr Hijazi obtained a driver authorisation on 15 June 2010, he considered that he was on the first step towards building a better life for himself.  He wanted to get away from dead end jobs and he had hopes to one day own his own taxi.

2. He had prior to 15 June 2010 been found guilty of some criminal offences and he had a conviction recorded on a charge of unlawful possession of a weapon on 10 June 2010.  On 18 August 2011 Mr Hijazi was convicted of common assault.  The Department of Transport and Main Roads then moved to cancel his driver authorisation. 

3. Mr Hijazi has sought a review of the decision to cancel his driver authorisation and has also sought a stay of the operation of the cancellation until the finalisation of the review to be conducted by QCAT.  The stay has been opposed by the Department.

4. Section 22 of the Queensland Civil and Administrative Tribunal Act 2009 permits QCAT to stay the operation of a decision being reviewed by the Tribunal.  QCAT can stay a decision only if it considers it desirable after having regard to the interests of any person whose interests may be affected by the making of, or declining of, a stay order, having regard to any submissions made to QCAT by the decision maker and having regard to the public interest.   

5. Mr Hijazi submitted that the cancellation of his driver authorisation has left him without income in circumstances where he has an extremely low chance of finding gainful employment.  He contributes to the support of his family.  He submitted that he has become withdrawn and depressed.

6. The Department submitted that Mr Hijazi has not disputed that he has been convicted of a Category C driver disqualifying offence under the Transport Operations (Passenger Transport) Act 1994 which permitted the Department to take disciplinary action to cancel Mr Hijazi’s driver authorisation.      

7. The purpose of a driver authorisation is to maximise public confidence in public passenger services in relation to the drivers of public passenger vehicles.[1]  The statutory purpose seeks to ensure that drivers of public passenger vehicles are suitable persons having regard to the need to provide for public safety of passengers and of the public, that drivers conduct themselves responsibly with passengers and the public, and are held accountable for complying with appropriate standards.[2]  

   [1] Section 23(1) of the Transport Operations (Passenger Transport) Act 1994.

   [2] Section 23(2) of the Transport Operations (Passenger Transport) Act 1994.

8. The Department submitted that an inference can be drawn from the statutory purpose for having a driver authorisation that the public is entitled to rely on decision makers to keep offenders away from driving taxis until they can demonstrate they are responsible citizens.  It was submitted that the public interest should take precedence over Mr Hijazi’s own personal interests. 

9. It was further submitted by the Department that Mr Hijazi is not prevented from seeking other forms of employment and that the documents he supplied to QCAT indicate that he has skills and capabilities in other areas of employment. 

[10]  I accept that Mr Hijazi will not be able to earn income as a taxi driver during the period when the decision to cancel his driver authorisation is being reviewed unless a stay is granted.  I accept that his capacity to support himself and to contribute income to his family will be impacted until he replaces his taxi driving income with income from other employment.  I do not accept that Mr Hijazi would be unable to obtain employment in another type of work as he has skills and capabilities for a variety of employment endeavours according to his own evidence.[3]   

[3]        See reference from Freedom Healthcare dated 28 October 2011.

[11]  The holding of a driver authorisation is a privilege and holders of that authorisation must act in a way that the safety of the public is maximised and public confidence in the public passenger transport system is maintained.  Engaging in behaviour which results in an assault conviction appears to be inimical to promoting public confidence in taxi drivers. 

[12]  It is in the public interest that the Department is able to discharge the statutory duty of ensuring the safety of passengers and the public with all reasonable diligence.  It is also in the public interest that the functions of the Department, while subject to review by QCAT, are not unnecessarily impeded in ways that would tend to undermine the integrity of the legislative scheme for the safe transport of public passengers.

[13]  The Department has a responsibility to make decisions in the public interest and once decisions have been made, those decisions stand as valid unless and until the decisions are set aside on review.  Staying the operation of a decision is not lightly undertaken by QCAT.  Consideration of a stay requires weighing up the interests of the public in maintaining the integrity of a regulatory process established to promote safety in public passenger transport systems and the interests of an individual whose actions have resulted in the withdrawal by cancellation of the privilege to drive public passenger vehicles.   

[14]  I am not satisfied that the evidence has established that it is desirable in this case to make an order to stay the operation of the decision to cancel Mr Hijazi’s driver authorisation.  While not granting a stay would adversely affect the interests of Mr Hijazi, I am of the view that granting a stay would tend to undermine the integrity of the scheme for the safe operation of conveying public passengers.  The public interest in this case should not be overridden by the interests of Mr Hijazi when considering whether to stay the operation of the decision under review. 

[15]  The application for a stay of the decision of the respondent is refused.