Musa and Ministry of Transport
[2005] AATA 577
•16 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 577
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/358
GENERAL ADMINISTRATIVE DIVISION ) Re
AHMED MUSA
Applicant
And
MINISTRY OF TRANSPORT
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date 16 June 2005
Place Sydney
Decision The Administrative Appeals Tribunal affirms the decision under review.
[Sgd] Ms N Isenberg, Member
CATCHWORDS
TRANSPORT – taxi-cab driver’s licence – failure to disclose - criminal record – false statement – interstate registration – notice to show
LEGISLATION
Mutual Recognition Act 1992 ss 17(1), 19 and 23(1)
Passenger Transport Act 1990 (NSW) s 33(3)CASE LAW
Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321
Azar v Director General, Department of Transport [2001] NSWADT 219
Re Davis (1947) 75 CLR 409
Hughes & Vale Pty Ltd v The State of New South Wales (N0.2) (1955) 93 CLR 127
Hawchar v Director General, Department of Transport [2000] NSWADT 50
Kioussis v Director General, Department of Fair Trading [2002] NSWADT 2
Re Mayers and Casino Surveillance Authority (1993) 29 ALD 585
Re Maythisathit and Registrar of Motor Vehicles (1996) 44 ALD 475
McNamara v Arnold (1995) 22 MVR 376
Morgan v Director General, Department of Transport [2003] NSWADT 257
Peric v Director General, Department of Transport [2001] NSWADT 22
Prothonotary, Supreme Court (NSW) v Darveniza (2001) A Crim R 542
Singh v Director General, Department of Transport [1999] NSWADT 96REASONS FOR DECISION
16 June 2005 Ms N Isenberg, Member DECISION UNDER REVIEW
1. This is a review of the decision of the Ministry of Transport (“the Respondent”) dated 15 March 2005 which refused the application of Mr Musa (“the Applicant”) for authorisation to drive a taxi-cab in New South Wales.
BACKGROUND
2. Mr Musa was employed as a taxi-cab driver for Silvertop in Victoria, for seven years. He then moved to Sydney and requested a taxi-cab licence in New South Wales.
3. Mr Musa was refused a licence as a taxi-cab driver by the Ministry for Transport (“MOT”) for failure to disclose convictions in 2000 and 2004.
4. On 20 March 2005 Mr Musa applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of that decision.
ISSUE BEFORE THE TRIBUNAL
5. Whether statements made by Mr Musa in connection with his application for a New South Wales taxi-cab driver’s licence were materially false or misleading.
LEGISLATION
6. S.17(1) of the Mutual Recognition Act 1992 (”the Act”) provides an entitlement to the holder of an interstate registration, to have that registration recognised in another State for the equivalent occupation. An application is made under s19 of the Act. Such an application however can be refused under s23 (1) of the Act.
7. S.23 (1) “A local registration authority may refuse the grant of registration if :
(a) any of the statements or information in the notice as required by
s.19 are materially false or misleading; or ……
S33(3) of the Passenger Transport Act 1990 (NSW) sets out the purpose of an authorisation (in respect of authorisation to drive a taxi-cab):
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.
CONSIDERATION OF THE EVIDENCE
8. At the request of the Applicant, the parties agreed that the matter should be dealt with by the Tribunal on the basis of the available material without their attendance before the Tribunal.
9. I had before me documents lodged pursuant to s 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence.
10. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
11. From the papers the following sets out the relevant facts:
12. Mr Musa holds a current Victorian taxi driver’s licence (T3/007) and in January 2005 applied to the MOT, to obtain a New South Wales taxi-cab driver’s licence.
13. Mr Musa completed an application form dated 11 January 2005 (T8/17). He ticked the “no” box in answer to the following questions:
Question 4. Have you ever had your drivers licence suspended or cancelled for any reason in New South Wales or elsewhere?
Question 5. Are there any traffic charges pending against you or have you ever been found guilty or convicted by court in New South Wales or elsewhere of any traffic offences in the last ten years (other than parking fines)?
Question 6. Are there any charges pending against you for any criminal offences or have you been found guilty or convicted by a court in New South Wales or elsewhere of any criminal offence in the last ten years?
14. In the same document it was made clear that it is an offence to make a false statement, the potential penalty being clearly stated. Further, a warning was contained on the page that a “show cause” may be issued if any information in the application was found not to be correct.
15. In signing the application Mr Musa gave consent to the MOT performing checks to verify his answers and to obtaining details of convictions or other matters which might be considered relevant (T8/19).
16. Mr Musa also completed a Statutory Declaration dated 19 January 2005 (T8/20) wherein he wrote:
“I did not had any crime or offences in Australia or anywhere else my live” (sic.)
17. The MOT checked Mr Musa‘s New South Wales traffic record (T5), and it was ascertained that he had only been licensed in New South Wales since 16 November 2004. Subsequently, a check of his Victorian traffic record (T6) was arranged.
18. Mr Musa‘s traffic record was obtained from Vicroads (T11/25) which revealed that, on 19 November 2003 he had been found guilty of two traffic offences, being
·Drive while authority suspended
·Disobey traffic sign
19. The MOT also conducted an interstate criminal record check through ‘Crimtrac’, and details of Mr Musa‘s criminal record were received on 9 March 2005 (T23/040) in which the following convictions in Victoria were recorded:
·4 September 2000 Drive while disqualified (T23/044)
·4 December 2000 Breach intervention order (T23/043)
·8 May 2004 Intentionally cause injury (T23/042)
20. It was conceded by the MOT that the 04 September 2000 offence was erroneously referred to as 04 September 2004 in the Statement of Reasons. However, the MOT submitted that the date of the conviction is not relevant to the matter before me, rather the fact of its existence.
21. The convictions are recorded in the names of Ahmed Muse, Ahmed Muse Ibrahim and Ibrahim Ahmed respectively. The documents record a number of aliases used by Mr Musa. They are as follows: Ahmed Ibrihim Musa, Ahmed Ibrahim, Ahmed Muse Ibrahim, Ahmed Musse Ibrahim, Ahmed Musa, Amed Musa, Ahmed Ibrahim, and Ahmed Muuse Abraham.
22. As a result of this ‘Crimtrac’ record and Mr Musa‘s Vicroads record, the MOT formed a view that Mr Musa had made false and misleading entries on his application, and had completed and signed a false Statutory Declaration. Accordingly, a Notice to Show Cause was issued on 10 March 2005 (T24/045), in order for Mr Musa to have an opportunity to submit evidence to the MOT as to his fitness and propriety to hold a taxi-cab driver’s licence.
23. Mr Musa replied to the Notice in a letter dated 10 March 2005 (T25/048). The response made a short submission as to his aptitude and record driving taxi-cabs. The bulk of the response was concerned with denials in relation to the criminal and traffic matters referred to in the Notice. The response, however, did not address the main concern as to reasons why Mr Musa made the entries on his application form.
24. In respect of the Statutory Declaration, Mr Musa said that he wrote it in the belief he had not committed any crimes in Australia or elsewhere.
25. As the MOT did not consider Mr Musa to have satisfactorily addressed the issues raised in the Notice, on 15 March 2005 a final letter refusing the licence was issued.
26. Mr Musa appealed to the Tribunal. In support of his application for review, Mr Musa wrote to the Tribunal on 23 March 2005 expressing his concerns about what he considered to be the unrealistic nature of the knowledge testing (which he had failed). He did not address the issues in relation to the failure to disclose the offences.
27. In a further letter dated 6 April 2005 he wrote:
“Because in the statutory declaration, I declared I did not commit any crime in Australia or any where else my live that is trout crime for me is something which is against law, which people are, punished something that is morally wrong illegal behaviour in general. I’m not the person who has committed any crime of his live, the tree convictions were Shawn as recorded against me I did not committed that’s why I said I did not comit any crime in Australia or anywhere else
1-Breach intervention order I’m not the person who breach that intervention order that is happen where I use to live in sunshine 5 years ago the officer Police made false statement against me, and I give only AAT and Victorian Ombudsman the name of that officer if they ask me.
2-Drive while disqualified is happen 5 years ago same officer of the police made this to put me in jail I have decided not to take any action against this Officer that was false impressments, it is happen 2000, but Kerry Reuben change the date illegally she but it 2004 instead of 2000 that is false I’m clearly of the opinion that ministry transport there are not equality of opportunity in the transport field
3-Intentionally cause injury that is happened between two Indian and me my whitnes they did not appear in the court that is why they said to me if you plea guilty is 400 dollars if you don’t is 1000 dollars I said I’m not guilty
* In the pro forma application form I ticked the box no in relation to the following questions 4,5 and 6 I do apologize don’t tell the ministry transport
This matter, which happen to me. Last ten years I live in Australia” (sic)
28. In a further letter dated 19 April 2005 he wrote:
“I’ve lived in Australia nearly 10 years for the first time I make a mistake because I’ve forget ten to tell the Ministry Transport this tree matters which happen to me last ten years I live in Australia and I apologizing now, said sorry to Ministry Transport and I’ve already paid dearly for that mistake, and I don’t know what to make of Ministry Transport, because they don’t accept my apologize and …..” (sic)
29. In a stay application Mr Musa was recorded as having told SM Bell that he had made an honest mistake on the form because he misunderstood what ‘offence’ meant. He conceded the intervention order, that he had served 27 days in prison for driving while disqualified and that he had been in a fight at a soccer game (which had led to the conviction for intentionally causing injury)
30. From Mr Musa‘s response and from his correspondence with the Tribunal and his concessions at the stay hearing,,it appears that Mr Musa does not dispute that he was gaoled for driving whilst disqualified (2000) and that he was convicted for intentionally causing injury (2004). In relation to each, though, he sought to raise whether he was properly convicted. It was unclear if he conceded the breach intervention order (2000) or whether he was disputing the police methods which led to the order. I note that his letter of 19 April 2005 would tend to suggest he admitted that matter also, as he referred to ‘this tree [three] matters’.
31. I have come to the view that Mr Musa was well aware of the matters on his record. The records show and he admits that he was convicted in court, (as distinct from receiving a penalty notice in the mail) for the matters, and that he even served a period of imprisonment.
32. In relation to the traffic offences (2003) his response to the Notice suggests that that order had been revoked. No clarification appears to have been sought. For the purposes of this decision, I have disregarded that matter.
33. Mr Musa does not dispute that he filled out the application form or completed the statutory declaration. He wrote in his letters to the Tribunal that he admitted making a mistake, but said, if I understand him correctly, that he thought that he was being asked if he had done something against the law, or something that was morally wrong or ‘illegal behaviour in general’. He also said he ‘forgot’. While his understanding of ‘crime’, ‘offences’ and ‘illegal behaviour’ may go some way to providing some explanation for the terms of the statutory declaration, it cannot explain his unequivocal responses to the very specific questions in the form. He has admitted that he drove while disqualified, that is, that he had had his licence suspended or cancelled (Q4) and that he had been convicted of a traffic offence (Q5), and that he had been convicted for intentionally causing injury, that is, found guilty of a criminal offence (Q6).
34. I therefore find that Mr Musa has made false or misleading statements.
35. S.23 of the Act allows for refusal of an application where an applicant has made false or misleading statements. However, this refusal is discretionary.
36. I therefore turn to consider whether that discretion should be exercised, having regard to the provisions of s 33(3) of the Passenger Transport Act 1990 (NSW) in relation to whether Mr Musa is a fit and proper person to hold a taxi-cab driver’s authority.
37. The Respondent referred me to several cases as to the meaning of ‘fit and proper’, in particular, Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 and Hughes & Vale Pty. Ltd. v The State of New South Wales (No.2) (1955) 93 CLR 127 that the phrase is to take its meaning from its context within its relevant legislation and in this case, the intended occupation.
38. I note that Mr Musa supplied a letter from Mr Osman, the president of the Somali Community of Victoria Inc. Mr Osman wrote of Mr Musa’s good character and his help in the Somali community and that he works as a homework tutor and has a role in welcoming refugees. I accept without reservation Mr Osman’s evidence as to Mr Musa’s community role. In the circumstances, however, due to Bond and Hughes (supra) I am obliged to look to the context of Mr Musa’s application to be a taxi-cab driver.
39. The Respondent referred me to cases where failure to disclose information which may have a negative impact upon an applicant’s claim for a licence in a particular area. In Re Mayers and Casino Surveillance Authority (1993) 29 ALD 585, affirmed a refusal where the applicant had failed to disclose two minor offences. See also Prothonotary, Supreme Court (NSW) v Darveniza (2001) A Crim R 542, McNamara v Arnold (1995) 22 MVR 376, Kioussisv Director General, Department of Fair Trading [2002] NSWADT 2.
40. As far as the specific application of ‘fit and proper’ as it relates to taxi-cab drivers, I was referred to several cases. In Hawchar v Director General, Department of Transport [2000] NSWADT 50, the applicant for a taxi-cab licence falsely answered “no” to questions relating to his traffic record, and to his criminal record. Honesty was said to be a quality central to the concept of a fit and proper person. See also Peric v Director General, Department of Transport [2001] NSWADT 22.
41. In Singh v Director General, Department of Transport [1999] NSWADT 96, the applicant for a taxi-cab licence failed to disclose his criminal history. In that matter, as in the present matter, the applicant contended that he had been falsely convicted.
42. In Re Davis (1947) 75 CLR 409, which was in relation to a solicitor who had failed to disclose a conviction for break enter and steal 10 years beforehand, it was held that it was his failure to disclose his offence, rather than the offence itself which was of most concern. In the present matter the MOT conceded that, the offences themselves, if declared, may not have been a fatal impediment to the granting of the licence.
43. In Azar v Director General, Department of Transport [2001] NSWADT 219, in dismissing the appeal of Mr Azar, in circumstances not dissimilar to the matter before me, Judicial Member Higgins said at 47 :
“What is of concern is that, in his 1998 application for a driver authority, Mr Azar gave incorrect answers to the questions about whether he had ever been prohibited from driving or charged/convicted of a traffic type of offence. He also gave a selective history of his driving record. Furthermore, in his application, he declared that his responses to the questions in the application were true and correct to the best of his knowledge and belief, when this was not the case."
44. Unlike in Morgan v Director General, Department of Transport [2003] NSWADT 257, there was no cogent or credible reason in the matter before me to support any contention that it is reasonable that Mr Musa would believe that he had no criminal or traffic record.
45. The Respondent submitted that honesty is an integral part of the occupation of taxi-cab driver, and that the public perception of the honesty of the driver is the test. This was applied specifically to this occupation in Re Maythisathit and Registrar of Motor Vehicles (1996) 44 ALD 475. Notwithstanding his protestations of innocence of the matters for which he has been convicted, and his purported understanding of ‘crime’, I find that Mr Musa did not complete the application form honestly.
46. The Passenger Transport Act 1990 (NSW) s.33 is clear that the purpose of an authority is to attest that the holder is a fit and proper person. I find that by his actions, Mr Musa has shown himself to be not a fit and proper person to hold a taxi-cab drivers authority. Accordingly, I find that the decision of the Director General to refuse to register the Applicant in New South Wales pursuant to s.23(1) of the Act should be affirmed.
DECISION
47. The Administrative Appeals Tribunal affirms the decision under review.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: Lori Feely
AssociateDate of Decision 16 June 2005
Representative for the Applicant Self-represented
Solicitor for the Respondent Sean O’Dwyer
1
9
0