Kharbanda v Ministry of Transport

[2007] NSWADT 217

CITATION:	Kharbanda v Ministry of Transport [2007] NSWADT 217
DIVISION:	General Division
PARTIES:	APPLICANT Harinder Kharbanda RESPONDENT Ministry of Transport
FILE NUMBER:	073029
HEARING DATES:	14 August 2007
SUBMISSIONS CLOSED:	14 August 2007
EXTEMPORE DECISION DATE:	14 August 2007
DATE OF DECISION:	18 September 2007
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Summons - application to set aside
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Kharbanda v Ministry of Transport [2006] NSWADT 101
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	Application that summons be set aside is refused

Introduction

1 Mr Kharbanda obtained a taxi driver authority in 1999. On 26 February 2005, while driving a taxi, he was stopped by police and officials from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). These officials detained him in Villawood Detention Centre on the basis that he was in Australia illegally. Mr Kharbanda says he is not in Australia illegally and is challenging that decision in another jurisdiction. The Ministry of Transport suspended his taxi authority when he was detained. Mr Kharbanda applied to the Tribunal for a review of that decision. The Tribunal set aside the Ministry’s decision and re-instated Mr Kharbanda’s authority. The Ministry of Transport lodged an appeal but it was out of time and the Appeal Panel declined to extend time.

2 Subsequently, while still in detention, Mr Kharbanda’s taxi authority expired and he applied to renew it. The Ministry refused that application. Mr Kharbanda has applied for a review of that decision. This preliminary decision concerns a summons issued by the Tribunal at the request of the Ministry of Transport. Mr Kharbanda has applied for the summons to be set aside. On 14 August 2007 the Tribunal heard that application. Mr Kharbanda participated by phone. I decided after hearing submissions that the summons should not be set aside. Mr Kharbanda has asked for written reasons for that decision.

The summons

3 The summons issued by the Ministry, requested DIMIA to provide:

All information in a chronological order of events relating to Mr Harinder Kharbanda

All information contained in your records in regard to Mr Kharbanda entering and leaving Australia

4 DIMIA produced the documents in response to the summons. Mr Kharbanda applied for the summons to be set aside.

Legal framework

5 The Tribunal has power to issue summonses: Administrative Decisions Tribunal Act 1997 (ADT Act), s 84. The documents must have some apparent relevance to the issues to be decided in the case. The issue to be decided in this case when this matter goes to hearing will be whether the Ministry made the correct and preferable decision in refusing Mr Kharbanda’s application for a taxi authority. In determining whether to grant or refuse an application for a taxi authority, the Director General of the Ministry of Transport must have regard to the purpose of an authority. That purpose, as set out in s 33(3) of the Passenger Transport Act 1990, 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 taxi-cab, and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab:

(i) in accordance with the conditions under which the taxi-cab service concerned is operated, and

(ii) in accordance with law and custom.

6 In the previous decision, Kharbanda v Ministry of Transport [2006] NSWADT 101 (6 April 2006) the Tribunal assumed that Mr Kharbanda was an unlawful non-citizen, and that he was not entitled to work in Australia. The Tribunal characterised the issue as whether Mr Kharbanda meets the requirements of s.33 for the holder of an authority to drive taxi-cabs, in terms of being of "good repute", being a "fit and proper person," and having the requisite "responsibility and aptitude." The Tribunal decided that despite being an unlawful non-citizen, Mr Kharbanda met those requirements and the fact that he could not drive a taxi because he was in detention was not a sufficient reason to suspend his authority.

7 The issue in this preliminary matter is whether the summons that has been issued should be set aside because it has no apparent relevance to the question of whether Mr Kharbanda should be issued with a taxi authority.

Submissions

8 I understand Mr Kharbanda to be saying that the fact that he is still in detention is not a sufficient reason to refuse to issue him with a new authority. Alternatively, Mr Kharbanda said that the Ministry’s decision not to issue him with a new authority is null and void because the Tribunal has already decided that the decision to suspend his authority was wrong.

9 According to Mr Wozniak, the purpose for issuing the summons was to ascertain whether Mr Kharbanda was likely to be released from detention and be permitted to work in Australia and, if so, when that might be expected to occur. He says that if there is no prospect of him being able to work in the foreseeable future, that is a factor which is potentially relevant to the Tribunal’s decision.

Conclusion

10 The Tribunal is being asked to review a new decision – the decision to refuse to issue Mr Kharbanda with a taxi authority. The Tribunal is not bound by its previous decision in relation to the suspension of his authority. While the Tribunal must still have regard to the matters in s 33(3) when making the new decision, it is not obliged to make the same decision as that made by the previous Tribunal. The documents which have been summonsed are potentially relevant to the issues which need to be decided, in particular Mr Kharbanda’s reputation and his fitness to be the driver of a taxi. The Tribunal must take into account all relevant material including events that have occurred since the decision to refuse to renew the authority was made: ADT Act, s 63(1). For those reasons, Mr Kharbanda’s application that the summons not be issued is refused.