MOHAMED and DEPARTMENT OF TRANSPORT - [2010] WASAT 68

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: ROAD TRAFFIC ACT 1974 (WA)

CITATION: MOHAMED and DEPARTMENT OF TRANSPORT [2010] WASAT 68

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 4 MAY 2010

DELIVERED : 14 MAY 2010

FILE NO/S: CC 78 of 2010

BETWEEN: AHMED SHEIKH MOHAMED
Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent

Catchwords:

Taxi licence Cancellation of extension T licence Number and nature of traffic offences Character Public interest Can hardship be taken into account when reviewing a decision to cancel a T extension Decisionmaker must have reason to believe that the person is not of good character Decisionmaker must have reason to believe a person should not be licensed due to the number or nature of convictions Can events that took place after the cancellation of the T extension be taken into account by the Tribunal

Legislation:

Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 25, reg 28, reg 41(1), reg 42, reg 42(4)
Road Traffic Act 1974 (WA),
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5)

Result:

The application is dismissed and the decision of the Department to revoke the T extension is affirmed

Category: B

Representation:

Counsel:

Applicant: Mr A Monisse
Respondent: Mr N Fox (Representative)

Solicitors:

Applicant: Mr A Monisse
Respondent: Department of Transport

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

Director General for Planning and Infrastructure v Nealon [2003] WASCA 161
Ford and Department for Planning and Infrastructure [2009] WASAT 236

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Ahmed Sheikh Mohamed's taxi licence was cancelled by the Department of Transport on the basis of the nature or number of convictions against the Road Traffic Act 1974 (WA). Mr Mohamed had accumulated over a period of about four years a total of 36 demerits. The Department of Transport also relied on some character issues during the hearing, on the basis of complaints received from the public about Mr Mohamed and events that unfolded after the cancellation of the licence.
Mr Mohamed sought a review of the decision on grounds of his many years experience as a taxi driver, his otherwise good driving record, the explanations he offered for the offences, the untested nature of the complaints by members of the public, and the hardship he and his family would face if the decision remained unreversed.
The Department of Transport contended that the decision should be affirmed on grounds of the seriousness and extent of the traffic offences and the statutory requirement that the Tribunal only need to 'have sufficient reason to believe' that Mr Mohamed was not of good character for the licence to be cancelled. The large number of offences committed while he was driving the taxi, as well as him driving a taxi without the necessary identification and without being logged on, added to a character that ought not be licensed. The Department of Transport further contended that hardship was not a factor that can be taken into account by the Tribunal.
The Tribunal found that from the perspective of the public interest, Mr Mohamed's traffic record was serious. Over a relatively short period of time, from 2006 2009, he accumulated 36 demerits in 16 separate incidents, of which 12 incidents were while he was driving a taxi. Members of the public use public transport in good faith and in the expectation that drivers will comply with the road rules and regulations. The explanations offered by Mr Mohamed to justify the traffic transgressions, place a question mark over whether he comprehends the seriousness of what he did. The Tribunal also emphasised that it is in the interests of other taxi drivers, and the industry at large, that the public perception of the industry is positive. The decision to cancel Mr Mohamed's licence was proper and should be affirmed.
The Tribunal also found that the events of 16 January 2010, when Mr Mohamed was found to have operated his taxi outside the area of authorisation, without displaying an identity card as required, and without being logged on, accumulate to raise very serious questions about his character and truthfulness. The Tribunal found his explanations as lacking credibility and truth. His lack of remorse was illustrated by his persistent efforts to attempt to justify all that had been done wrong.
In regard to the plea of hardship, the Tribunal concurred with the Department of Transport that the Tribunal cannot take into account personal hardship in considering the review. Mr Mohamed should have taken his personal circumstances into account when he transgressed traffic rules repeatedly.
The Tribunal, therefore, concluded there was sufficient reason to cancel Mr Mohamed's taxi licence due to the number and nature of the traffic convictions and concerns about his character.
The decision to cancel his T driver's licence was affirmed and the application for review dismissed.

Background

Mr Ahmed Sheikh Mohamed (Mr Mohamed) seeks a review under reg 42 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (RT(AD) Regs) of a decision by the Department of Transport (Department) to cancel his class T extension licence. The decision to cancel the licence was made on 10 December 2009 on the basis of the number and nature of offences against the Road Traffic Act 1974 (WA) (RT Act).
Mr Mohamed lodged an application for review of the decision on 20 January 2010. The first directions hearing took place on 21 January 2010. The matter was set down for hearing on 17 March 2010. Due to the failure of Mr Mohamed and Mr Monisse, counsel for the applicant, to comply with orders of the Tribunal, the hearing had to be adjourned. Orders were made for the Department to file a cost application. The cost application settled, with Mr Mohamed paying to the Department an amount of $300 towards costs wasted. A new hearing date was set for 4 May 2010.
The Department filed a statement of issues, facts and contentions with several documents attached. Mr Mohamed replied by a statement of issues, facts and contentions with several documents attached. Witness statements were also filed for Mr Mohamed (the applicant), Mr A Earl and Mr J Christie (both officials of the Department's Passenger Services Unit). These three witnesses gave evidence during the hearing. At the conclusion of the hearing the decision was reserved.

Statutory framework

The Tribunal has, in accordance with s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the same jurisdiction, functions and discretions as those of the delegated officer pursuant to the regulations.
The Tribunal is not limited to the statement of reasons given by the delegated officer (s 27(3) of the SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the delegated officer at the time when the decision was made (s 27(1) of the SAT Act).
The review hearing is therefore de novo (s 27(1) of the SAT Act) and is not confined to the matters and information that were before the decisionmaker at the time of the decision.
The powers of the Tribunal, according to s 29(3) of the SAT Act, are to:
a)affirm the decision;
b)vary the decision; or
c)set aside the decision
and to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the delegated officer (s 29(5) of the SAT Act).
Regulation 42(4) of the RT(AD) Regs grants Mr Mohamed the right to seek a review of the decision.
Regulation 25 of the RT(AD) Regs provides as follows:
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
(a)is not of good character; or
…
(d)should not hold a driver's licence because of the number or nature of the person's convictions for
(i)offences under the Act or regulations made under it; or
…
Regulation 28 of the RT(AD) Regs provides as follows:
(1)The holder of a driver's licence may give to the Director General a written application for the variation of the licence.
(2)The Director General may, on an application under subregulation (1) or if it is for any other reason appropriate to do so, by notice in writing given to the licence holder vary a driver's licence.
(3)If the variation sought in an application under subregulation (1) would extend the licence holder's authorisation to drive, before making the variation the Director General has to be satisfied that the person would be eligible to hold the licence as varied and that it would be appropriate to make the variation sought.
(4)Before varying a driver's licence in a way that would suspend or cancel any authorisation that the licence gives, the Director General has to have regard to the principles in regulation 41 that apply to the cancellation or suspension of a driver's licence, and regulation 41(2) and (3) apply as modified for the purpose of helping the Director General to decide whether to make the variation.
Regulation 41(1) of the RT(AD) Regs provides as follows:
(1)The Director General may, by notice in writing given to the licence holder
…
(b)suspend or cancel a person's driver's licence if
(i)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 regulation 25 to grant it; or
(ii)the Director General is no longer satisfied of each of the matters referred to in regulation 24.

Facts

The facts giving rise to the application can be summarised as follows:
a)Mr Mohamed has held a C class Western Australian driver's licence with a T extension since July 2005.
b)The C class driver's licence was suspended in July 2009 until 16 January 2010.
c)The Department decided to cancel Mr Mohamed's T extension due to the number and nature of traffic convictions he accumulated. This decision was conveyed to him by letter dated 10 December 2009.
d)A number of complaints from passengers had been received over a period of time about the conduct of Mr Mohamed. Some of the complaints had lapsed but four were investigated and one led to a $200 fine for 'making suggestive comments to (female) passenger and was also touching her' according to the complaints register.
e)On 16 January 2010, Mr Mohamed was questioned by taxi compliance officers in Subiaco about him driving a taxi outside of the designated area; failing to display an identification card where it was visible to passengers; failing to be logged on under his own name; and driving without current T extension. Mr Mohammed was served two infringement notices and he paid fines respectively of $200 and $250.
f)The Department cancelled his T extension on 10 December 2010 and an application for review was lodged on 20 January 2010.

Contentions and evidence

The Department made the following contentions, supported by the evidence of the two witnesses called by it:
•The Tribunal must take into account all information of relevance to the proceedings including the events that occurred on 16 January 2010 after the cancellation of Mr Mohamed's T extension.
•Due to the number and nature of traffic convictions against Mr Mohamed, there is sufficient reason for the Tribunal to affirm the decision of the Department to cancel Mr Mohamed's T extension.
•The Tribunal must take into account the complaints made by passengers against Mr Mohamed and, in particular, the recommendation of Dr Paul Smith, an occupational psychologist who interviewed Mr Mohamed, that his T extension ought to be cancelled.
•The Tribunal, further, has sufficient reason to affirm the cancellation of Mr Mohamed's T extension due to him not being of sound character to be licensed.
•The Tribunal should not have account for the hardship that may be suffered by Mr Mohamed, since that is not a criterion included in reg 25.
•The decision of the Department to cancel the T extension should therefore be affirmed and the application should be dismissed.
Mr Monisse contended, as follows, for the application to succeed, and this was supported by the evidence of Mr Mohamed:
•The Tribunal must only take into account the traffic offences and not the events of 16 January 2010, since the latter incidents took place after the T extension had been cancelled.
•The traffic offences must be assessed in light of:
a)the large volume of hours that Mr Mohamed has been driving;
b)his clean record in Victoria where he was a taxi driver prior to coming to Western Australia;
c)the absence of criminal convictions; and
d)the long hours he works, which makes the risk of traffic infringements more likely.
Mr Mohamed added to these contentions that most of the offences were not very serious and that some were committed at the instruction or request of a passenger.
•None of the infringements could be classified as 'serious', in the same way as reckless or dangerous driving would.
•The complaints made by customers were mostly not pursued or not supported by evidence and should therefore not be taken into account at all.
•The Department's actions caused Mr Mohamed to have a reasonable expectation that his T extension would remain current on the basis of him passing the certificate of competency and the invitation to renew his taxi driver identification card. The actions of the Department were confusing and one business section of the Department was not aware of what the other section was doing.
•Mr Mohamed does not have any criminal convictions.
•The hardship Mr Mohamed will suffer if the decision is affirmed must be taken into account by the Tribunal. He has invested a large amount in the taxi; he has a large family of seven children and, since he has only the use of one arm, his employment opportunities are limited.

Consideration

The Tribunal has taken into account all of the submissions and evidence in coming to its decision.
The first preliminary question raised by Mr Monisse is whether the Tribunal is constrained to take into account only the traffic offences and no other information about the complaints from passengers, or the events of 16 January 2010.
The Tribunal is satisfied that it may take into account all relevant information available to it up to the date of the hearing to assist it to come to a correct and preferable decision.
The hearing is de novo, which means that all information, including information that was not available at the time when the T extension was cancelled, can be taken into account.
The Tribunal can, and must, therefore take into account information regarding the traffic infringements, complaints by passengers, the recommendation of Dr Smith and the events of the evening of 16 January 2010. It is only by taking into account all relevant information, that the Tribunal can come to the 'best and preferable' decision.
In regard to issues of hardship, the Tribunal concurs with the submission of the Department; namely, that the decision of the Tribunal should not be influenced by such considerations. There is no discretion of the Tribunal to set aside the decision of the Department on the basis of hardship. Mr Mohamed should have taken the risk of hardship into account when he accumulated so many demerits and when he drove a taxi without proper identification. The Tribunal cannot allow the review to succeed on the basis of hardship that he may suffer as a result of his actions. This is consistent with the Tribunal's decision most recently in Ford and Department for Planning and Infrastructure [2009] WASAT 236, in which it relied on Director General for Planning and Infrastructure v Nealon [2003] WASCA 161, in which it was found that a magistrate had erred when he took the question of hardship into account (at [17]).
The first two issues raised by the parties are therefore resolved as follows:
a)The Tribunal can take into account all information that is of relevance to these proceedings, including information regarding Mr Mohamed's character.
b)Information regarding hardship that may be suffered as a result of the decision is not relevant to the proceedings.
This brings us to the main part of the application, namely, whether the Tribunal, since it is placed in the shoes of the decisionmaker, 'has reason to believe' that Mr Mohamed: (a) is not of good character, or (b) should not hold a licence because of the number or nature of infringements against the RT Act or regulations made under it.
The response of the Tribunal to both these questions is in the affirmative. There are more than sufficient reasons for the decision of the Department to be affirmed and for Mr Mohamed to have his T extension cancelled.
The reasons for this conclusion are as follows:
Number or nature of traffic offences
Mr Mohamed has recorded 16 separate traffic offences between 7 November 2005 and 9 May 2009. Key aspects of these offences were as follows:
•33 demerits were accumulated;
•12 offences were committed while on duty in his taxi;
•eight offences were exceeding the speed limit;
•two were making a U-turn where it was not allowed; and
•two were contravention of a red light and failing to stop at a stop sign.
Mr Mohamed's defence of these offences is that as a taxi driver he is more prone to traffic infringements due to the fact that he spends so many hours on the road; that the infringements were not 'deliberate'; that some were caused at the instruction and demands of his clients; and that there are many other taxi drivers with a similar record who continue driving.
The Tribunal rejects these explanations.
It seems to the Tribunal as if Mr Mohamed is so focused on defending his actions, that he has lost all perspective on the seriousness of the offences; the risk to which he has exposed his clients; and the hardship he may face unless he changes his driving culture.
Although Mr Mohamed makes much of the potential hardship he faces, the question is why the concern of hardship did not motivate him to obey traffic laws while he was licensed as a taxi driver. He had more than enough warnings and opportunities to adjust, but during the hearing he seemed to be so convinced by his own arguments, that the reality of repeat offences escaped him. Mr Mohamed appears to the Tribunal as a man who would justify his own actions at all cost, rather than to demonstrate and display sincere and honest remorse.
Mr Mohamed and Mr Monisse made much of what they described as inconsistent communication and actions within the Department by the respective business units. The Tribunal is, however, not required to review the functioning of the Department or the adequacy of internal communication between the different business units. The Tribunal accepts that Mr Mohamed was invited by way of an automatically generated letter to attend a professional development course and that he successfully completed the course. That in itself does not negate his unacceptable record of traffic offences. There is, as far as the Tribunal is concerned, no substance in the contention of Mr Monisse that Mr Mohamed has a 'reasonable expectation' to be licensed.
In the letter from the Department dated 22 September 2009, the following was explained to Mr Mohamed:
•On 28 August 2008, he had accumulated 13 demerit points within a three year period. He was served an excessive demerit point notice on 8 September 2008. On the same day he elected a good behaviour period. This period was to expire on 6 October 2009.
•On 13 February 2009, he accumulated an aggregate of 12 demerit points that resulted in a second excessive demerit point notice being served. He again opted for a good behaviour period. The second period is due to expire on 6 October 2010.
•On 19 May 2009, the Department received notification that Mr Mohamed had committed another driving offence which attracted two demerit points. Since this constituted a breach of the first good behaviour period, he was disqualified from driving for six months until 14 January 2010.
•As a result of the above, the second good behaviour period was adjusted to expire on 16 January 2011.

Mr Mohamed is of the view that more leniency should be shown by the authorities to taxi drivers because they spend more time on the road than other drivers. The converse is true. The public expects compliance of the laws from taxi drivers since they perform a public service. Mr Mohamed does not give any recognition to his duty of care towards passengers; the risk to which he exposed his clients; or the weakness of his explanation that he committed traffic infringements at the request of clients.
The Tribunal rejects his contention that the infringements were not serious, such as dangerous driving. Repeated speeding while on duty, crossing a red light while on duty, and failing to stop at a stop sign while on duty are serious infringements which all put passengers and other members of the public at risk.
The Tribunal has no hesitation to conclude that it has more than enough reason to believe that Mr Mohamed should not hold a T extension because of the number and nature of his convictions against the RT Act and the regulations there under.
'Not of good character'
Mr Mohamed says he is of good character, a family man with no criminal record, and a person who has not relied on government support to care for his family. He further says the complaints against him by passengers were either not pursued or had fallen away, with only one matter leading to a fine. He further says that although Dr Smith recommended against him being licensed, the Department nevertheless granted him the T extension.
The Tribunal does not agree with Mr Monisse that no weight should be given to the complaints lodged by members of the public to Swan Taxis against Mr Mohamed. Although the complaints did not lead to any criminal convictions, the Tribunal may, nevertheless, take note thereof for the purposes of forming a view whether Mr Mohamed is of such character that he should be entrusted with transporting members of the public. The nature, number and ongoing trend of complaints cannot simply be ignored. Members of the public were willing to disclose their personal details in order to lodge a complaint.
The Department, and in these proceedings the Tribunal, has a regulatory responsibility towards the public at large and the taxi industry, in particular, to ensure that proper standards are maintained in the said industry. The actions of a driver, such as Mr Mohamed, may harm the image of the industry and that is detrimental to those who comply with the laws of the land. Even if the information provided by way of a complaint is not sufficient for the criminal conviction of a driver, the information may be sufficient for the Tribunal to 'have reason' to believe that a person is not of good character for the purposes of a T extension.
The papers before the Tribunal referred to the following complaints made by members of the public about the behaviour of Mr Mohamed:
•19 January 2006 - driving dangerously;
•25 January 2007 - covered the meter;
•9 September 2007 - inappropriately touching a passenger. Infringement issued and fine paid. Driver referred for psychological assessment;
•21 April 2007 - behaving discourteously to passengers;
•29 December 2007 - failing to display driver identification card;
•13 March 2008 - driver appears drunk, falls asleep at traffic lights;
•5 July 2008 - verbal abuse of a passenger; and
•8 August 2008 - refusing or prematurely terminating taxi hire without reasonable cause.
Of these incidents, only one was prosecuted and led to a fine of $250.
The Tribunal is of the view that all these incidents, even though not prosecuted, must be taken into account to form a view about the character of Mr Mohamed.
What also weighs heavy in the mind of the Tribunal is the firm recommendation by Dr Smith, after he had administered a driver aptitude test on Mr Mohamed, that Mr Mohamed should not be granted a T extension. Dr Smith observed as follows:
Mr Mohamed was not successful in the Driver Aptitude Test because his scores were under the test's cut-points in all ability domain areas, and because of conduct (as a taxi driver) which is not consistent with that expected of a professional taxi driver.
This finding and recommendation should have been acted upon at the time. If the Department were to be criticised, it would be for having let the recommendation fall between the cracks. It was explained by Mr Keith Evans, a witness called by the Department, during evidence that he had been on secondment when the recommendation was received and, as a result, no one acted on it. By the time he returned, it was felt that it would be unfair on Mr Mohamed to pursue the matter.
It is the view of the Tribunal that there were already sufficient grounds for the T extension to be cancelled after the recommendation of Dr Smith and the complaints by the public.
That brings us to the events of 16 January 2010.
In short, Mr Mohamed was spotted by Mr Evans and Mr Earl driving outside the area for which his taxi is designated. Both witnesses are employed by the Department's Passenger Services Unit and responsible to ensure taxi drivers comply with laws and regulations. They both appeared to be very credible and reliable while giving evidence. There was no suggestion that they were 'picking' on Mr Mohamed. They initially identified the car by the plates and not the identity of the driver.
They followed him to Subiaco where they interviewed him after the passengers had alighted.
It appeared while they interviewed him that:
a)no taxi driver identification was displayed where passengers could see it;
(b)Mr Mohamed was not logged onto the taxi company's system;
(c)another taxi driver, Mr Farah (No 40347), was logged onto the system; and
(d)a driver's identification card was removed from the seat next to Mr Mohamed, where it appeared to Mr Evans and Mr Earl that it had been hidden on purpose by Mr Mohamed. It was not his card but that of another taxi driver, Mr Said (No 40448). Mr Mohamed was served with two infringement notices and accepted a fine for both.
During the hearing, Mr Mohamed sought to explain the events of 16 January 2010. He said he had to work since his regular driver had fallen ill; that his passengers requested from him to be dropped outside of his designated area; and that he was 'glad' to be stopped by the officers since he wanted to talk to them about the status of his driver's and taxi licence.
The explanation given is rejected by the Tribunal for lack of credibility, consistency and reliability. It seems to the Tribunal as if Mr Mohamed has a complete lack of insight to realise how unreliable and untrustworthy his evidence was. Although he explained the same events over and over, he eroded any credibility that he might have had by persisting with a version of events that seemed to fly in the face of reality. For example:
•His explanation that although he is restricted to a particular area, he is entitled to take a fare as long as the person goes in the general direction of his area, is rejected. Taxi drivers who are limited to a designated area are either aware of the restrictions or should be aware.
•His explanation that he was not aware that another person was logged on is rejected. The Tribunal finds it completely unbelievable that with all his experience as a taxi driver, he would take over and operate a taxi without realising that another person was still logged on.
•His explanation as to why he did not log on himself is rejected. The Tribunal finds it most unlikely that he would commence his shift without logging on.
•The Tribunal finds his explanation that he had passengers who were on their way to his designated area, but that they changed their mind to go to Subiaco, is unlikely. In any event, he could have explained to them that it was outside his designated area and that he could not accept the instruction or he could have called another taxi to pick them up.
•His explanation as to why he did not display an identification card is without credibility. It is generally known that an identification card should be displayed and it is simply not credible for Mr Mohamed to say he was not aware of it. Although he said he does not know the person whose identification card was in his possession, he failed to call the person or his other driver to explain how the card ended up in his car.
•His explanation as to why he paid the fines, since that was the 'easy option', further erodes his credibility, since in these proceedings he wishes to reopen the matter.
All these events add together to cast a very negative reflection on the character of Mr Mohamed as a taxi driver.
The Tribunal has more than sufficient reason to believe that Mr Mohamed is not of good character to be licensed as a taxi driver.

Finding

The decision of the Department to cancel the T extension of Mr Mohamed should be affirmed on the basis that the Tribunal is satisfied that: (a) he is not of good character, and (b) due to the number and nature of his traffic offences the extension ought to be cancelled.

Orders

1.The application for review of the decision of the Department of Transport to cancel the T extension of Mr Mohamed is affirmed.
2.The application is dismissed.

I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER