Kharbanda v Ministry of Transport

[2006] NSWADT 101

CITATION:	Kharbanda v Ministry of Transport [2006] NSWADT 101 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Harinder Kharbanda RESPONDENT Ministry of Transport
FILE NUMBER:	053180
HEARING DATES:	09/11/05
SUBMISSIONS CLOSED:	12/22/2005
DATE OF DECISION:	04/06/2006
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Passenger Transport Act - taxi driver - suspension of authority - Taxi driver - suspension of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Migration Act 1958 Passenger Transport Act 1990
CASES CITED:	Abouhassoun -v- Director General, Department of Transport [2001] NSWADT 193 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Ratay -v- Director General, Department of Transport [2003] NSWADT 40 Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392.
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak
ORDERS:	The decision of the Administrator to suspend Mr Kharbanda’s authority to drive a taxi-cab is set aside.

Background

1 Mr Kharbanda holds an authority to drive taxi-cabs under the Passenger Transport Act 1990. On 26 February 2005 while driving a taxi he was intercepted by Police and officials of DIMIA. He was detained by the immigration authorities on the basis that he was illegally in Australia. He remains in immigration detention, and is presently challenging his detention through the Courts.

2 According to written advice received from DIMIA by the Administrator:

“… Mr KHARBANDA Harinder (23/10/1968) was interviewed on 26/02/2005 by DIMIA officers Rod TAYLOR & Julie GRIFFITHS, with the resulting action that Mr KHARBANDA Harinder was identified as being an Unlawful non-citizen, and was therefore detained under S189 of the Migration Act 1958. Mr KHARBANDA Harinder was escorted to Villawood Immigration Detention Centre (VIDC) by officers CHANDRAN & GRIFFITHS.

Mr KHARBANDA Harinder is still detained at the VIDC and is therefore still unlawfully in Australia and has no permission to work.”

3 As a result of these events the Administrator suspended Mr Kharbanda’s authority on 4 March 2005. The basis of that decision is that DIMIA advised that Mr Kharbanda did not hold a permit authorising him to work in Australia.

4 Mr Kharbanda sought an internal review of that decision. On 18 April 2005 the decision was affirmed on internal review. On18 May 2005 Mr Kharbanda lodged his appeal against that decision.

5 Throughout the appeal Mr Kharbanda has remained in immigration detention. He participated in the hearing of the appeal on 9 November 2005 by telephone, and sought to make further submissions in support of his position in writing. This he has since done. Despite being given the opportunity to do so the Director-General has not filed any submissions in reply, relying instead on the oral submissions made by Mr Wozniack at the hearing.

Legislation

6 Section 33 of the Passenger Transport Act 1990 empowers the Director-General to issue authorities to drive taxi-cabs. Sub-section (3) sets out the purpose of such an authority:

“(3) The purpose of an authority under this Division 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.”

Section 33F empowers the Director-General, having regard to the purpose of authorities, to vary, suspend or cancel an authority.

7 The Tribunal’s jurisdiction to review a decision under s.33F is found in s.52 of the Passenger Transport Act 1990.

Mr Kharbanda’s Submissions

8 Mr Kharbanda has filed an affidavit and extensive submissions in support of application. Much of Mr Kharbanda’s affidavit is devoted to the treatment he has received in immigration detention, his contention that he is not an unlawful non-citizen, and how those detaining him have prevented him undertaking necessary legal research to support his contentions.

9 With respect to the decision made on internal review to confirm the suspension of his authority to drive a taxi-cab Mr Kharbanda contended that the review officer had failed to ask himself a number of relevant question in making his determination. These were:

a. Does "driving taxi" connotes to "work" in law?

b. What if Mr Kharbanda is misidentified by the DIMIA officers?

c. What if he is not an unlawful non citizen?

d. What i f he is an Australian citizen?

e. What if he has the right to work in Australia?

f. What if the claim made by DIMIA officers is incorrect or false?

g. Is Mr. Kharbanda's detention is really authorized by the Migration Act 1958 as claimed by DIMIA officers?

h. Is Mr. Kharbanda's detention is authorized by the Constitution?

i. Do I have the power to suspend Mr. Kharbanda's Taxi Authority even if he does not have right to remain and or work in Australia?

j. Do I have the power to demand from Mr. Kharbanda to demonstrate that he is entitled to work in Australia as a precondition to revoke the suspension of his Taxi Authority?

10 In his supplementary submissions Mr Kharbanda invited the Tribunal to determine whether the Passenger Transport Act 1990 authorises the Administrator to:

“Suspend a Taxi Authority of a taxi driver on the ground that a person does not have a right to remain and or work in Australia?

Suspend a Taxi Authority of a taxi driver on the ground that DIMIA or an officer of DIMIA alleges that a person does not have a right to remain and or work in Australia?

Demand from me in my case to demonstrate that I am lawfully able to undertake work in Australia as a precondition to revoke the suspension of my Taxi Authority?”

11 Mr Kharbanda submitted that he possesses all the qualities necessary for him to be considered of “good repute” and a “fit and proper person” to hold an authority to drive a taxi-cab under the Passenger Transport Act 1990. He cites a number of examples designed to demonstrate his honesty and personal integrity. He submits that the “unsubstantiated allegation” that he is an unlawful non-citizen does not affect his good reputation and irrelevant to his conduct as a taxi-driver. Mr Kharbanda submitted that “even if a person lacks good reputation in some other context and is unfit and improper in that context will not affect his “good reputation” and “fitness and properness” as a taxi-driver.”

12 With respect to the issue of whether he could be “considered to have sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom,” Mr Kharbanda submitted that there was no law or custom which prevents a person who does not have a right to work in Australia from driving a taxi. In making that submission, Mr Kharbanda specifically denied he is an unlawful non-citizen without a right to work in Australia. He further submitted that there was no evidence that he did not have sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom.” He argued that “law and custom” in s.33(3)(b)(ii) is concerned with “those laws which are relevant to the taxi service”.

13 The third limb of Mr Kharbanda’s submissions was that assuming he did not have a right to work under the Migration Act 1958 (Cth), which he denied, the right to work should be equated with the right to “earn” as the Migration Act clearly did not prohibit the day to day work individuals undertake in the course of their lives without any expectation of reward; e.g. cleaning and cooking for themselves. His submissions continued:

“Even if a person who does not have the right to work in Australia is legally entitled to lawfully engage in the aforesaid activities including driving a taxi and it would be unlawful for anyone including the Administrator to engage in a conduct which consequently stops, suspends, prohibits or interrupts a person from lawfully engaging in one of the aforesaid activities merely on the ground that a person is capable of earning by engaging in one of those activities or he might perhaps engage in work if he earns from it. It is also noteworthy that the Passenger Transport Act 1990 does not require the taxi driver to earn money while driving a taxi.”

14 Mr Kharbanda also submitted that because whether or not he is entitled to work in Australia is a matter of Commonwealth jurisdiction, and is not a matter within the jurisdiction of NSW. As such, the Passenger Transport Act 1990 did not extend to enable the Administrator to check whether he is legally entitled to work in Australia.

The Administrator’s Submissions

15 Mr Wozniack submitted, in reliance on Farquharson -v- Director General, Department of Transport [1999] NSWADT 53, that the Administrator was entitled to rely on the advice as to Mr Kharbanda’s immigration status it had received from DIMIA. The Administrator had no obligation to go behind that advice and make inquiries with respect to deciding whether or not Mr Kharbanda is an unlawful non-resident who is not entitled to work in Australia.

16 The fact that the Mr Kharbanda was apprehended while driving a taxi and found to be an unlawful non-resident who is not entitled to work in Australia, goes to his honesty and reputation. The Administrator, Mr Wozniack submitted, was entitled to rely on that fact as reflecting on Mr Kharbanda’s honesty and reputation. Further, the fact that Mr Kharbanda was found driving a taxi while not entitled to work in Australia raised real questions as to whether Mr Kharbanda would act in accordance with law and custom.

17 Mr Wozniack pointed out that the Administrator had suspended and not cancelled Mr Kharbanda’s authority. The reality is that he cannot drive while in immigration detention. Mr Wozniack submitted that when and if Mr Kharbanda is released from immigration detention, he could apply for the suspension to be lifted.

Findings of Fact

18 On the basis of the evidence before me, namely the statement from the DIMIA officer, I am satisfied for the purpose of this review that Mr Kharbanda is an unlawful non-citizen, and that he is not entitled to work in Australia. While I accept that Mr Kharbanda believes that he is not an unlawful non-resident with no right to work in Australia, it is well accepted that the Tribunal should not enter onto the ground of exploring the strength or weakness of the parties’ respective cases in other forums. In Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 the President of Tribunal said at [22]:

“In considering whether to exercise any discretion to suspend or otherwise interfere with the licence, an administrator can not reasonably be expected to enquire into the strength or weakness of the case against the licensee. That was the error into which the magistrate in Leo's case fell. Similarly a review tribunal can not be expected to go behind the information on which the administrator has relied to the extent of examining the strength and weaknesses of the prosecution case.”

19 I am further satisfied that that at the time he was apprehended by DIMIA Mr Kharbanda was driving a taxi.

Discussion

20 Whatever the merits of Mr Kharbanda contentions with respect to his treatment in immigration detention, they are not matters which this Tribunal has the jurisdiction or power to entertain or resolve. Mr Kharbanda claimed that his ability to prepare his case was adversely affected by those factors. In an effort to ensure procedural fairness, and to give Mr Kharbanda the fullest opportunity to present his case, the Tribunal (with the Administrator’s agreement) allowed Mr Kharbanda extra time in which to present submissions. He took advantage of that opportunity.

21 It is convenient to deal first with Mr Kharbanda’s submission in relation to work. Section 235 of the Migration Act 1958 creates a number of offences in relation to work. Sub-section (3) provides:

“(3) An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.”
This is a strict liability offence carrying a penalty of a fine not exceeding $10,000.00. Mr Kharbanda’s submission that work for the purposes of the Migration Act should be equated with earning, cannot stand in the light of the provisions of s.235(3) which clearly relates to work “for reward or otherwise”. His submission in relation to the meaning of “work” is without merit.

22 In my opinion Mr Kharbanda has misconceived the nature of the determination made by the Administrator, and to be made by this Tribunal on review, when he submits that the Passenger Transport Act 1990 does not extend to enable the Administrator to check whether he is legally entitled to work in Australia.

23 The issue is whether the Administrator is satisfied (and the Tribunal in the Administrator’s place) that 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.” These are distinct concepts which require separate consideration: Abouhassoun -v- Director General, Department of Transport [2001] NSWADT 193; Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392.

24 The fact that DIMIA says Mr Kharbanda had no legal entitlement to work in Australia is relevant insofar as it impacts on that consideration: despite the fact that the question of his right to work in Australia is a matter of Commonwealth jurisdiction. The Tribunal hears many cases in which breaches of Commonwealth law, whether they have reached the stage of conviction or not, form the basis for a consideration of whether a person has the requite reputation and character to hold a authority or licence: e.g. a taxi operator making false statement under the Veterans Entitlement Act 1986 (Cth) in respect of taxi vouchers – Ratay -v- Director General, Department of Transport [2003] NSWADT 40. It is what the conduct concerned says about the persons ability to satisfy the requirements of s.33 which concerns the Administrator and the Tribunal.

25 “Good repute” refers to the view others take of a person, their reputation within the community. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393:

‘A distinction must be drawn between "repute" or "reputation" and

"character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts.”

In illustrating the difference between being of good repute and being fit and proper, his Honour explained:
‘To illustrate, an applicant might be a person of good repute but, unknown to those who hold such an opinion of them, have deficiencies in his moral character which would make him not a fit and proper person to fulfil the responsibilities of a parent. A person might not be of good repute, because of a widespread but mistaken belief that he was dishonest but, in fact, have all the personal qualities necessary to make him fit and proper to fulfil the responsibilities of a parent. In either case, the Court, if so satisfied, would be obliged to refuse an application by him for the adoption of a child.”
At 399, his Honour turned to the meaning of good repute:
‘In the present context, the word "repute" simply means reputation, so the question is, has Mr T a good reputation? "Reputation" means "the common or general estimate of a person with respect to character or other qualities; the relative estimation or esteem in which a person is held": Shorter Oxford Dictionary , 1973, p 1083. This definition makes it clear, as is the law, that a person's reputation is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation which makes it a reliable guide to a person's character. See, generally, Wigmore on Evidence , 3rd ed., vol 5, p 486 et seq, pars 1615, 1616; p 479 et seq, par 1610. As is pointed out by Wigmore , a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: p 472 et seq, par 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character.

26 In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained:

'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.

27 In Re T Waddell J (at 399) discussed how reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives. At 401, his Honour said that:

‘…evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation.”
However evidence of prior convictions is cogent evidence going to reputation, but, at 402:
“In each case, the nature of the crime of which the person has been convicted, and the circumstances, must be considered before inferring that as a result he would have acquired a bad reputation. For instance, the conviction might have been for an offence, or in circumstances, which did not detract from the general good estimate of his character held by persons who knew him. Further, it might appear unlikely from the nature of the offence, and the circumstances, that the conviction would become known to those with whom the person had a reputation. It might be shown that knowledge of the conviction had not come to such persons.’

28 The meaning of "fit and proper" is dependent on the nature and purpose of the activities which the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:

‘The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.’

29 In the past the Tribunal and the Appeal Panel have frequently cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:

‘One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done ... to rehabilitate himself, would object to the applicant as the driver of the taxi.’

30 The review officer concluded that because Mr Kharbanda is being held in immigration detention and is not able to work in Australia, he would be considered of low repute if he attempted to drive a taxi. The review officer continued:

“It is important to note that the suspension of the authorisation recognises that pending determination by an appropriate person or judicial body that Mr Kharbanda is able to lawfully remain, and work, in Australia his reputation will remain adversely affected. This decision is not a judgment on whether or not that will in fact be the outcome of this matter

31 In reality there is no evidence before me as to the regard in which Mr Kharbanda is held by those who know him well. The Administrator does not point to any previous convictions from which evidence of a bad reputation can be gleaned. Rather, while noting that there has been no final determination of whether Mr Kharbanda is able to remain and work in Australia, the Administrator has concluded that he is of low repute. I do not agree that this conclusion is open on the evidence. It is my view that there is a dearth of evidence as to Mr Kharbanda’s reputation. The absence of evidence of bad repute, together with the fact that Mr Kharbanda has been driving taxis since 1999, and has no convictions or complaints upon which the Administrator relies, justify my drawing an inference that he is of good repute. The Administrator points to nothing else which affects his reputation. The connection between his migration status and the regulated industry relates only to the fact that the taxi industry is where Mr Kharbanda chose to work. What the ultimate outcome of the litigation in respect to his migration status will be is a matter of speculation.

32 In this case the regulated environment is that of the taxi industry. The fact that offences with which a person is charged occurred in the regulated environment may have a greater impact upon that consideration than those that occur outside that environment: Farquharson -v- Director General, Department of Transport [1999] NSWADT 53.

33 In Mr Kharbanda’s case there is no suggestion that he has behaved improperly or dishonestly as a taxi driver, or that his driving was inadequate or unsafe. It is not a case where there have been complaints made by customers. It is not a case where he has a record of criminal or driving offences. The only connection between the taxi industry and the matters said to affect his reputation is the fact that he was working when driving cabs, work which DIMIA says he was not entitled to do. The prohibition against him working would have applied in whatever context he was working, whether driving a taxi for reward, working in a factory, or spending his time writing a novel.

34 In Farquharson -v- Director General, Department of Transport [1999] NSWADT 53, at [36] O’Connor DCJ said:

‘In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself. One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence.’

35 In Mr Kharbanda’s case, I do not accept that a member of the Public travelling in a cab driven by him, knowing of his immigration status and what he has done, would object to him as the driver of a taxi. Mr Kharbanda’s immigration status would not be a cause for members of the travelling public to become concerned for or apprehensive about their safety or welfare. Unlike the situation in Farquharson, there is no obvious connection between the matters alleged against Mr Kharbanda and matters which one would expect might cause concern for members of the public. In my opinion, therefore, there is no basis for suspending Mr Kharbanda’s authority on the basis that he is not a fit and proper person.

36 The final basis advanced by the Administrator supporting the suspension is that Mr Kharbanda, by working as a taxi driver while an unlawful non-citizen, demonstrated that he does not have sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom: s.33(3)(b)(ii). I do not agree. The requirement of s.33(3)(b)(ii) goes the competence of the person to drive a taxi-cab in accordance with law and custom. In this respect I agree with Mr Kharbanda’s submission. Mr Kharbanda’s immigration status does not reflect on the responsibility he exercises while driving a taxi, or on his aptitude to do so. The only connection between Mr Kharbanda’s driving of a taxi in accordance with law and custom and his immigration status, rests on the fact that Mr Kharbanda was working while driving taxis, and his immigration status did not allow him to work. That connection is tenuous at best. The Administrator has not pointed to any other cause for concern that Mr Kharbanda does not have the requisite responsibility and aptitude to drive a taxi in accordance with law on custom. I am not satisfied that Mr Kharbanda lacks that responsibility and aptitude.

37 The reality is that Mr Kharbanda, as a matter of practicality, cannot drive taxis while in immigration detention. That itself is not a sufficient reason for the suspension of Mr Kharbanda’s authority.

Conclusion

38 As a result I am of the view that the correct and preferable decision to set aside the decision of the Administrator to suspend Mr Kharbanda’s authority to drive a taxi-cab.

11/04/2006 - Addition of word "driver" to quotation - Paragraph(s) 13