Singh and Director General Of the Department Of Transport
[2013] WASAT 87
•18 JUNE 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: ROAD TRAFFIC (AUTHORISATION TO DRIVE) REGULATIONS 2008
CITATION: SINGH and DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT [2013] WASAT 87
MEMBER: MS NATASHA OWEN-CONWAY (MEMBER)
HEARD: 15 MARCH 2013
DELIVERED : 18 JUNE 2013
FILE NO/S: CC 77 of 2013
BETWEEN: RAVNEET SINGH
Applicant
AND
DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
T extension to motor vehicle driver's licence Variation to cancel T extension Good character of applicant for purpose of grant of T extension Convictions for driving whilst disqualified and using forged or altered driver's licence Conduct giving rise to conviction Conduct of applicant in Tribunal proceedings Relevance of character references Weight to be given to character references Regulations 12, 25, 28 and 41 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA)
Legislation:
Evidence Act 1966 (WA)
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 7(1), reg 11(1), reg 12, reg 15, reg 22, reg 24, reg 25, reg 25(a), reg 25(d), reg 28, reg 41, reg 42, reg 42(3), reg 42(4)
Road Traffic Act 1974 (WA), s 5, s 42, s 48A, s 49, s 97(2), s 97(2)(d), Pt IVA
State Administrative Tribunal Act 2004 (WA), s 3, s 9, s 9(a), s 17, s 24, s 27, s 29, s 29(1), s 29(3), s 32
State Administrative Tribunal Rules 2004 (WA), r 9
Taxi Act 1994 (WA), s 3
Result:
Decision affirmed
Summary of Tribunal's decision:
Mr Singh, the applicant, held a T extension to his motor vehicle driver's licence which entitled him to carry passengers for reward in a taxi. Mr Singh did not work as a taxi driver other than for a short period in 2009. After he ceased working as a taxi driver, Mr Singh accumulated 12 demerit points on his driver's licence which resulted in his disqualification from driving for a period of three months. Just prior to the conclusion of the disqualification period the police apprehended Mr Singh driving a motor vehicle on a road and using a foreign driver's licence of another person as if it were his own. Mr Singh was charged and convicted of driving whilst disqualified and using a forged or altered driver's licence. The applicant was fined and disqualified from driving for a further period of nine months. At the conclusion of the second disqualification period the Director General of the Department of Transport cancelled Mr Singh's T extension upon the basis that he is not a person of sufficient good character to hold a T extension. The applicant sought a reconsideration of that decision by the Director General. The Director General affirmed his earlier decision to cancel the applicant's T extension. Mr Singh sought a review of that decision. The Tribunal found that the applicant's conduct giving rise to his two convictions reflected adversely upon the applicant's character and that some of the evidence led or adduced at the final hearing also reflected adversely upon Mr Singh's character. The Tribunal gave no or little weight to two of Mr Singh's referees. The Tribunal concluded on all of the evidence that Mr Singh was not of sufficient good character for the purposes of a grant of a T extension and affirmed the Director General's decision to vary Mr Singh's driver's licence so as to cancel his T extension.
Category: B
Representation:
Counsel:
Applicant: Ms A Rogers
Respondent: Mr P Busby (Acting as Agent)
Solicitors:
Applicant: Abigail Rogers Barristers & Solicitors
Respondent: Department of Transport
Case(s) referred to in decision(s):
Director General for Planning and Infrastructure and Nealon [2003] WASCA 161
Minitti v Commissioner of Police [2010] WASCA 198
Mohamed and Director General [2011] WASAT 76
Mohamed v Director General Department of Transport [2010] WASC 375
Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35
Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996)
REASONS FOR DECISION OF THE TRIBUNAL:
The application
On 17 January 2013 the applicant lodged an application in the Tribunal against the respondent for a review of the respondent's decision made on 27 November 2012 to cancel the applicant's 'T' extension (T extension) to his driver's licence. In fact, the respondent's decision, made on 27 November 2012, to cancel the applicant's T extension was the subject of reconsideration by the respondent pursuant to reg 42(3) of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (regulations). The reconsideration yielded a new decision on 21 December 2012 wherein the respondent affirmed its decision made on 27 November 2012. The applicant intended to seek a review of the reconsidered decision (see reg 42(4) of the regulations).
Time for making the application
The Tribunal is satisfied that the application was made within 28 days of the date of the reviewed decision, as required by r 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules). The application for review is therefore made within the time specified by the SAT Rules.
The issues
The ultimate issue in this proceeding and the Tribunal's determination of the issue is: whether the applicant is 'of good character' within the meaning of that expression in reg 25(a) of the regulations for the purposes of holding a T extension. The Tribunal's answer to that question is no. The following subissues are:
a)whether the applicant's convictions on 24 February 2012 are relevant to the ultimate issue; and
b)what other facts are relevant to the ultimate issue.
The Tribunal's review jurisdiction
Section 48A the Road Traffic Act 1974 (WA) (RT Act) provides that regulations may be made concerning any review of the respondent's decisions made under Pt IVA of the RT Act. Reg 42 of the regulations provides relevantly:
(1)In this regulation
reviewable decision means a decision of the Director General to
(d)vary a driver’s licence, whether by imposing or amending a condition, by making, amending, or cancelling any other endorsement on it, or in any other way;
…
(3)A person given a notice under subregulation (2) may, within 28 days, in writing request the Director General to reconsider the reviewable decision, and the Director General may confirm, alter, or revoke the decision.
(4)A person aggrieved by the reviewable decision or the decision the Director General makes under subregulation (3) on reconsidering the reviewable decision may apply to the State Administrative Tribunal for a review of the decision by which the person is aggrieved. (Tribunal's emphasis)
The RT Act and the regulations made pursuant to s 42 of the RT Act together comprise an enabling Act (s 3 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)) for the purposes of s 17 of the SAT Act. When read together, they confer jurisdiction upon the Tribunal to review the respondent's reconsidered decision to cancel the applicant's T extension.
In the exercise of its review jurisdiction, the Tribunal is not limited in its considerations to the material that was before the original decisionmaker (s 27(1) of the SAT Act) nor to a consideration of the original decision-maker's reasoning alone (s 27(3) of the SAT Act). The review is by way of a hearing de novo (s 27(1) of the SAT Act) and the Tribunal's statutory objective is to make the correct and preferable decision (s 27(2) of the SAT Act). Section 29(1) of the SAT Act provides that all of the functions and discretions conferred on the original decisionmaker are conferred on the Tribunal in addition to the powers conferred upon the Tribunal by the SAT Act. Section 29(3) of the SAT Act confers specific powers upon the Tribunal in the disposition of the review application.
Generally, and whether exercising its original or review jurisdiction, the Tribunal is not bound to apply the Evidence Act 1966 (WA), the rules of evidence or the practices and procedures of any courts of record (s 32(2)(a) of the SAT Act), but it is bound by the rules of natural justice (s 32(1) of the SAT Act) and 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities' (s 32(2)(b) of the SAT Act). Further, the Tribunal is bound to 'ensure' that all relevant material is disclosed to the Tribunal 'so as to determine all of the relevant facts in issue in a proceeding' (s 32(7)(a) of the SAT Act). In conducting proceedings, the Tribunal is to review decisions '… fairly and accordingly to the substantial merits [of the case]' (s 9(a) of the SAT Act). The Tribunal has the implicit power to make enquiries of the parties and witnesses so as to discharge the obligations referred to in s 9 and s 32 of the SAT Act.
Statutory framework concerning the respondent's decision under review
The purpose of the RT Act identified in the long title is:
… to consolidate and amend the law relating to road traffic; to repeal the Traffic Act 1919 and for incidental and other purposes.
Part IVA of the RT Act is concerned with 'Authorisation to drive'. Relevantly, s 42 of the RT Act relevantly provides:
(1)The regulations are, together with [Part IVA], to provide for a driver licensing scheme under which
(a)the Director General
(i)grants people licences to drive motor vehicles on roads;
…
(3)The regulations may
…
(c)prescribe different endorsements of drivers’ licences that can be made, and the effect of each endorsement;
…
(4)The regulations may
(a)provide for the manner and form in which an application may be made for the grant, renewal, or variation of a driver’s licence[.] (Tribunal's emphasis)
Section 5 of the RT Act defines 'driver's licence' and 'licence' as follows:
driver's licence means a licence under this Act authorising the holder to drive a motor vehicle on a road, but does not include a learner's permit[.]
licence means a licence granted under this Act[.]
A driver's licence simply authorises a person to drive a vehicle of the class described in the licence on a road (see s 5 of the RT Act and reg 7(1) of the regulations).
The grant of a driver's licence does not, of itself, authorise a person to drive a vehicle so as to carry passengers for reward. Regulation 11(1) of the regulations provides:
Unless endorsed as described in regulation 12 to give that authorisation, a driver's licence does not authorise the holder to drive a motor vehicle when it is being used for the purpose of carrying passengers for reward, either in a taxi or in any other circumstance.
Regulation 12 of the regulations provides for the 'endorsement' to a driver's licence that must be granted by the respondent so as to authorise a person to drive a vehicle and carry passengers for reward:
(1)The Director General may endorse a driver’s licence to give the authorisation referred to in regulation 11(1).
(2)The endorsement is to show that the driver’s licence includes
(a)extension T, to indicate that the driving authorised by the licence includes that driving when it is for the purpose of carrying passengers for reward but, if the driving is at a time when the licence holder has not reached 21 years of age, only in a taxi[.]
…
(3)In subregulation (2)
taxi has the meaning given in the Taxi Act 1994 section 3(1), whether or not that Act applies to its operation.
…
(7)The Director General may make an extension T endorsement if the applicant pays the fee, if any, prescribed under the Road Traffic (Charges and Fees) Regulations 2006 for making the endorsement and the Director General is satisfied that the applicant
(a)has, for a period of at least 3 years or periods adding up to at least 3 years, held a relevant driving authorisation; and
(b)has reached 20 years of age; and
(c)is of good character; and
(d)is mentally and physically fit to drive a motor vehicle for the purposes of carrying passengers for reward; and
(e)has successfully completed a training course or test approved by the Director General.
Section 3 of the Taxi Act 1994 (WA) (Taxi Act) defines taxi as:
taxi means a vehicle which is used for the purpose of standing or plying for hire, or otherwise for the carrying of passengers for reward, but does not include an omnibus licensed under the Transport Coordination Act 1966 or a vehicle of a class declared by the Director General under subsection (2) not to be a taxi[.]
The Taxi Act is concerned with the ownership or leasing of taxi plates and the operation of related businesses but is not concerned with the authority to drive a vehicle on a road so as to carry passengers for reward in a taxi. That is the subject of reg 12 of the regulations.
As to the variation of a person's driver's licence, reg 28 of the regulations provides:
…
(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.
…
(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. (Tribunal's emphasis)
In deciding whether to cancel a T extension endorsed on a driver's licence, reg 28(4) of the regulations provides that the respondent 'has to have regard' to the 'principles' in reg 41 of the regulations that apply relevantly to a cancellation of a driver's licence and that reg 41(2) and reg 41(3) apply with necessary modification to 'help' the respondent decide whether to cancel the licence.
Regulation 41 of the regulations relevantly provides:
(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.
(2)In order to decide whether there is a basis for suspending or cancelling a person's driver's licence under subregulation (1) the Director General may, by notice in writing given to the licence holder, require the person to satisfy the Director General within the period specified in the notice, being not less than 14 days, as to any matter relevant to that decision.
(3)If the person fails to satisfy the Director General within that period or within any further period that the Director General allows, the Director General may
(a)cancel the person's driver's licence[.]
(Tribunal's emphasis)
Regulation 25 of the regulations provides that the respondent:
… may refuse to grant a driver's licence to a person if the [respondent] 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[.]
It is by reason of reg 28 of the regulations, when read with reg 41, that the respondent is compelled to consider the factors relevant to the refusal of a driver's licence referred to in reg 25(a) - (d) of the regulations, when deciding whether to vary a driver's licence in such a way as to cancel a particular and specific authorisation to drive. Further, whenever the respondent considers a variation to a driver's licence, he must be satisfied that the person is eligible to hold the licence as varied and whether it is 'appropriate' to make the variation (reg 28(3) of the regulations). In the case of a T extension, the respondent must be satisfied that the person can and should be granted the same in the context of any variation consideration. As stated, the factors relevant to the grant of a T extension are found in reg 12 of the regulations. In effect, the respondent must consider all of the factors relevant to the grant of the T extension and the refusal of a grant of the T extension afresh, as at the date of the variation consideration.
The coincidental factor to reg 12 and reg 25 of the regulations is the 'good character' of the driver in issue. Whether the good character factor in reg 25 is different to the good character factor in reg 12 is not clear. The authorities do not support the proposition that if a driver is not of good character for the purposes of granting a T extension (reg 12 of the regulations) he or she is also not of good character such that a basic driver's licence may be refused (pursuant to reg 25 of the regulations). This suggests that the test of good character in reg 12 of the regulations (to grant a T extension) is more stringent because the grantee is expected and entitled to interact with the public as a taxi driver. In this proceeding, the respondent asserts the applicant is not of good character to hold a T extension but does not assert that the applicant should be refused a driver's licence. The provisions of reg 24 of the regulations are not in dispute in this proceeding. The Tribunal must therefore decide on the facts whether the applicant is person of good character such that he may continue to hold a T extension. The applicant asserts that he is of sufficient good character to hold a T extension.
The respondent principally relies upon the applicant's convictions for offences under the RT Act to establish that the applicant is not of 'good' character.
The respondent's power to vary a driver's licence pursuant to reg 28 of the regulations depends upon either an application by the driver to vary the licence or if there is 'any other appropriate reason' (reg 28(2) of the regulations). The applicant did not take issue with the respondent's right to consider a cancellation of his T extension and it is implicit that the respondent relied upon the applicant's convictions for offences under the RT Act as an 'appropriate reason' to consider a variation to the applicant's driver's licence.
Character law and evidence
In Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 (18 February 2011) Newnes JA, with whom Pullin and Buss JJA agreed, stated (at paragraph 28ff), in the context of the expression 'good character and repute',:
The expression 'good character and repute' itself involves two discrete elements. While 'good character' does not have a precise meaning, it ordinarily refers to a person's moral qualities (whether known to others or not), as opposed to the estimation in which (fairly or unfairly) the person is held by others, that is, their repute: Irving v Minister for Immigration, Local Government and Ethnic Affairs(1996) 68 FCR 422, 431 432; Re T & Director of Youth & Community Services[1980] 1 NSWLR 392, 398 - 399. In Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1, McHugh J put it as follows:
In its strict sense, character refers to the inherent moral qualities of a person or what the New Zealand Law Reform Commission has called 'disposition - which is something more intrinsic to the individual in question.' It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person (15).
Or as Lord Denning succinctly stated it (albeit, in another context) in Plato Films v Speidel[1961] AC 1090:
A man's character, it is sometimes said, is what he in fact is whereas his 'reputation' is what other people think he is (1137 1138). (original emphasis)
… Thus, a person may be of good repute but, unbeknown to those who hold that opinion, have serious deficiencies in their moral character, and conversely, a person may not be of good repute because of a widespread but mistaken belief that (for instance) he or she is dishonest, but in fact be possessed of good moral qualities. And as Lee J pointed out in Irving v Minister for Immigration (432), a person who has been convicted of a serious crime and thereafter held in contempt in the community nonetheless may show that he or she has reformed and is of good character.
Guided by these statements, the Tribunal must assess the moral character of the applicant in fact and not merely in terms of his reputation. The character references are relevant only to the extent that they reflect the character of the applicant in fact.
Although the expression 'good character' must be construed in the context of the particular legislation in which it occurs (see Mohamed v Director General Department of Transport[2010] WASC 375 (13 December 2010) per Allanson J) it is limited to the moral quality of the person in question (contrary to the expression 'fit and proper' which is a flexible criterion (see Minitti v Commissioner of Police [2010] WASCA 198 per Pullin JA)).
As to the traffic infringements, the respondent does not rely on those traffic infringements as 'convictions' for the purposes of reg 25(d) of the regulations and could not have done so (see Mohamed v Director General - Department of Transport) [2010] WASC 375 at paragraph 23) but he does rely upon the infringements as well as the convictions for the purposes of determining the applicant's character, at least in crossexamination. The Tribunal has in the past relied upon the accumulation of past traffic infringements when assessing the character of the T extension holder (see Mohamed and Director General [2011] WASAT 76 and cases referred to at [48]). The issue arises whether these applicants accumulated traffic infringements alone, or together with other facts, is relevant to the assessment of the applicant's character in this proceeding.
As to prior convictions the respondent says that the convictions for driving without any authority and using a forged or altered driver's licence reflect adversely upon the applicant's character. Although Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996) concerns the phrase 'fit and proper' rather than 'good character', it is instructive on the relevance of convictions when making assessments of character and fitness of a person. Her Honour Wheeler J (as she then was) stated:
It must be stressed therefore that there can be no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework.
With that caution borne firmly in mind, however, some factors relevant to prior convictions can be listed. Convictions will, in my view, generally be regarded as more serious in the statutory context if:
(1)they occur in the course of or relate to the carrying out of the occupation of inquiry agent. See New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420.
(2)they are offences of dishonesty, broadly understood. This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty;
(3)they occur while the person is the holder of a licence under the Act;
(4)they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.
Indications that a person may be of good character and a fit and proper person notwithstanding previous convictions may be gleaned from the following factors:
(1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. See Good v Medical Board of WA; unreported; SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited. The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;
(2)if the offences were committed a substantial time ago. I would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors I list and, in appropriate cases, on others;
(3)any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;
(4)a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references. As to character references, I would caution that they will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences.
The applicant's convictions are relatively recent but did not occur in the course of the applicant acting as a taxi driver (although he was the holder of the T extension at the time). The issue for the Tribunal on the facts is whether the convictions (and the material facts of the convictions) are, of themselves, serious; represent a disregard for the law or otherwise reflect adversely upon the applicant's character, whether because the convictions involve dishonest conduct on the part of the applicant or for some other reason. The Tribunal must also consider whether the applicant is remorseful; displays genuine insight into his conduct; and whether his circumstances now reflect a change to his character from the time of the convictions so as to be able to conclude that the applicant is now a person of good character.
The Tribunal is not limited in assessing the character of the applicant to the facts and circumstances of the convictions and the references. Ultimately, the decisionmaker must make an assessment of the applicant's character and the applicant's testimony may have a significant bearing on the Tribunal's assessment of his character.
The evidence and the findings of fact
The Tribunal considers all of the facts referred to in paragraphs 2, 3, 4, 5, 6, 7, 8, 11, 12 and 13 of the applicant's statement of issues, facts and contentions to be proved and none were seriously challenged. There is no dispute between the parties concerning the following facts:
1)The applicant was born on 30 September 1979 and, as at the date of the final hearing, was 33 years of age.
2)The applicant is a New Zealand citizen although he was born in India.
3)The applicant arrived in Australia with his family in 2008.
4)The applicant is married and has three children as follows:
a)one born on 1 April 2004, and almost nine years of age; and
b)twins, born 18 April 2008, and almost five years of age,
as at the date of the final hearing.
5)The respondent issued a T extension endorsement to the applicant's driver's licence in about March 2009.
6)The applicant was employed or engaged as a parttime taxi driver for approximately six months in 2009.
7)The applicant ceased parttime taxi driving and obtained fulltime employment at the Western Australian Mint until about May 2010.
8)The applicant worked as a cleaner for approximately one year and four months until 21 September 2011.
9)By 22 September 2011 the applicant had accumulated 12 demerit points on his driver's licence for the following traffic infringements:
(a)27 June 2009 - exceeding the speed limit between 10 and 19 kilometres per hour two demerit points;
(b)19 December 2009 exceeding the speed limit between 10 and 19 kilometres per hour four demerit points;
(c)2 February 2011 exceeding the speed limit between 20 and 29 kilometres per hour three demerit points;
(d)10 April 2011 driving a motor vehicle using a hand held mobile phone three demerit points.
10)On 22 September 2011 the applicant surrendered his driver's licence for three months and he was disqualified from driving for that period of time.
11)As a cleaner, the applicant was required to drive a motor vehicle to attend the cleaning sites with all of the necessary cleaning equipment. As a consequence of not being able to drive, the applicant ceased his cleaning work.
12)On or about 20 December 2011 and two days before expiry of the disqualification period referred to in 10) above, the applicant drove a motor vehicle without any authority to drive on a road.
13)On or about 20 December 2011 the police apprehended the applicant and asked the applicant for his driver's licence.
14)In responding to the request referred to in 13) above, the applicant produced a Government of Punjab Transport Department driver's licence bearing the name Ramandeep Sandhu.
15)On 22 December 2011 the three months' disqualification period terminated.
16)On 24 December 2011 the applicant was charged with driving without a valid driver's licence, and without authority to drive, and a second offence of using a forged or altered a driver's licence.
The applicant asserted that he and his wife had been, and continue to be, financially dependant upon his brother and sisterinlaw as he cannot obtain any new cleaning work (because he does not have a clear National Police Certificate) and is unable to earn as a taxi driver (because his T extension is currently cancelled subject to this review).
In the course of giving his evidence in chief, the applicant informed the Tribunal that he entered a plea of guilty and was convicted on both charges on 24 February 2012.
The National Police Certificate provided to the Tribunal as document 13 of the respondent's s 24 bundle of documents notes that in respect of using a forged or altered motor vehicle driver's licence the applicant was fined $1,000, and in respect of the driving with no authority to drive, the applicant fined $500. In addition, the applicant was disqualified from driving for nine months.
In answer to the Tribunal's questions, the applicant conceded the circumstances of the traffic infringements, although in relation to one infringement driving a motor vehicle using a hand held mobile phone he stated to the Tribunal that he was not actually using the mobile phone, just holding the same. Notwithstanding that, he did not challenge that infringement.
In answer to the Tribunal's questions, the applicant said that soon after his disqualification from driving in September 2011 he and his family left Perth and went to India for 'about two months' for his brother's wedding. In the applicant's letter to the respondent dated 12 December 2012 in support of an internal review of the respondent's decision, at page 2 he states:
Taking into account the aforesaid circumstances [being the fact that he is the sole bread earner in the family], I was compelled [to] drive a motor vehicle without a Driver's License [sic] (Since my license had already been surrendered before WA Police). On the IllAdvice of a friend who arranged a forged overseas license [sic] for me, I started using the said forged license [sic] under an impression that, I would be able to dodge the authorities and carry on my job without any troubles[.] …
In support of the applicant's application filed 17 January 2013, the applicant attached a letter written by his wife, Harpreet Kaur, in which she states:
As ill luck would have it, my husband accepted an ill advice of a friend who arranged an overseas forged license [sic] and he started driving his car on that license [sic] to continue his business of cleaning and for that only mode of transport required to carry cleaning equipment's [sic] to distantly located sites was a car.
…
These statements are the subject of paragraphs 9 and 10 of the applicant's statement of issues, facts and contentions. The respondent took issue with these statements. The respondent, in its statement of issues, facts and contentions, states that the applicant has shown blatant disregard for the law by driving whilst disqualified from driving and has:
… taken the unusual step of obtaining a forged driver's licence calculated to deceive police and avoid detection. That level of premeditation is unusual for this kind of offence. The [Magistrates Court] has looked upon it as serious and that is reflected by the penalty, $1000. The maximum penalty for the offence is $1600 and given that the Applicant was a first offender and appears to have pleaded at the earliest opportunity the fine can be said to be at the upper end of the scale.
The applicant conceded in crossexamination by the respondent's representative that whilst in India he paid the equivalent of $10 to purchase the Punjab Transport Department driver's licence bearing the name Ramandeep Sandhu.
In answer to the Tribunal's questions, the applicant stated that he knew that as a result of the disqualification from driving in September 2011 he was not permitted, as a matter of law, to drive a vehicle on a road in Western Australia until the conclusion of the disqualification period. He further admitted that he knew this to be the case when on 20 December 2011 (approximately two days prior to the expiration of the disqualification period) he was driving a vehicle on a road. He said he knew when the police officer asked to see his driver's licence and he produced the Punjab Transport Department driver's licence of Ramandeep Sandhur, that he intended the police officer to be misled into believing that the driver's licence he provided was his. The applicant's and his wife's statements referred to above suggest that the applicant was tempted or fated by others and his circumstances (the need to provide for his family), to deceive the authorities by the use of the Punjabi driver's licence. The connotation is to diminish the applicant's responsibility for the factual scenario underlying the offences of which he was convicted and to imply that the convictions do not adversely reflect upon the applicant's character. This assertion is not consistent with the admitted fact that he purchased the Punjab Transport Department driver's licence bearing the name Ramandeep Sandhu for $10 or the applicant having any or any substantial insight into his wrongdoing.
The applicant was charged with driving whilst disqualified (s 49 of the RT Act) and for the use of a 'forged or altered licence' (s 97(2) of the RT Act). The applicant's conduct involves an element of premeditation, deception and dishonesty. Notwithstanding the applicant's evidence and the statements of his wife referred to above, the Tribunal finds that the applicant's conduct was deliberate and not the consequence of any mistake nor the consequence of necessity. The deliberateness of the applicant's conduct that resulted in the convictions reflects adversely upon the applicant's character.
The applicant asserted in support of his case that, nonetheless, he is of good character and that the Tribunal should set aside the respondent's cancellation of his T extension to his motor vehicle licence, in that:
1)he has no convictions in New Zealand and no convictions in Australia other than those disclosed on the National Police Certificate;
2)he has never breached any taxi regulations whilst driving a taxi in Western Australia; and
3)he has not been the subject of a complaint as a taxi driver.
The Tribunal finds that each of those assertions in 1), 2) and 3) above are true and correct and none was challenged by the respondent. However, those facts are not sufficient for the Tribunal to find on all of the evidence, including the applicant's convictions, that he is of good character such that he should continue to hold a T extension.
Evidence of good character
The applicant produced further documents to support his contention that he is a person of good character despite his convictions.
References by Mr Ricky Sandhu and Ms Kaur
The applicant relied upon four references. One reference is signed by Mr Ricky Sandhu, whose occupation is described as 'dentist' and whose address is described as '2 Murdoch Grove, Greenfields 6216'. That reference is dated 14 January 2013. Mr Sandhu describes himself as a 'Family friend' who has known the applicant and his family 'from the last 10 years[,] that is, the days he was living in New Zealand'. Mr Sandhu states that he considers the applicant to be a person, amongst other things, of a good moral character and was aware of his convictions for driving a car on a forged overseas driver's licence. Mr Sandhu considers that that conduct was 'unacceptable and cannot be endorsed', but that he 'noticed that [the applicant] is remorseful for whatever illegal [sic] he has done as it does not reflect his true character at all'.
The second reference is by Ms Kaur. Ms Kaur's occupation is described as 'registered nurse' (registration No NMW0001650161). The address is described as '204D/25 Herdsman Parade, Wembley, WA'. This reference is written on 15 January 2013. The format is similar to that of the reference by Mr Sandhu. Ms Kaur also described herself as a family friend of the applicant and his wife. Ms Kaur states that that, notwithstanding the applicant's conviction, he is a 'gentleman and bears a high moral character'. Similarly to Mr Sandhu, she describes the hardship suffered by him and his family and his remorse for his conduct.
The Tribunal, in assessing these two letters of good character, took steps to inquire on the public register kept and maintained by the Australian Health Practitioner Regulation Agency (AHPRA) and noted that Ms Kaur is indeed a registered nurse but her name as registered is Ms Simerjit Sandhu. The Tribunal also noted that there were no AHPRA registration details provided by Mr Sandhu in his reference. The Tribunal notes that there was no registration of a dental practitioner on the AHPRA register of practitioners consistent with the name of Mr Ricky Sandhu, and the only registration of dentists with that surname were not related to Mr Ricky Sandhu.
The Tribunal put to the applicant that Mr Ricky Sandhu was not registered in Western Australia as a dentist. The applicant explained in his answer that Mr Ricky Sandhu was a dentist in India and was still undergoing training in Australia to become registered as a dental practitioner in Australia. The Tribunal put to the applicant that in fact in Australia Mr Sandhu was not a dentist. The applicant agreed. The Tribunal considers that it is possible that in the mind of the applicant and Mr Sandhu there might have been a misunderstanding that when Mr Sandhu referred to his occupation as 'dentist', he was referring to his occupation as a dentist and qualification to practise as a dentist in India. Mr Sandhu was not called as a witness so the Tribunal could not ask him any questions about this matter.
The Tribunal put to the applicant that Ms Kaur was in fact Ms Simerjit Sandhu and had the same surname as Mr Ricky Sandhu, and asked if they were related. The applicant conceded that Mr Ricky Sandhu and Ms Kaur were married and lived together in Wembley. The applicant explained that it was not compulsory or even common for married women in India to use their married surname, and he referred to the fact that his wife likewise does not use his surname. The Tribunal noted that the applicant's wife's surname on her passport is 'Kaur'. The Tribunal put to the applicant that although it may not be common for married women in India to adopt their husband's surname on marriage, Ms Kaur had adopted her husband's surname for the purposes of registration as a nurse and midwife on the APRHA register. The applicant did not give any explanation why Ms Kaur had written the reference in her maiden name and had become registered as a registered nurse using her husband's surname.
The Tribunal asked whether the applicant knew whether Mr Ricky Sandhu and Ms Kaur were married as at 14 January 2013. After some consideration, the applicant agreed that as at the date of execution of the character references, he was certain that Mr Ricky Sandhu and Ms Kaur were married. The Tribunal asked when they had married and he indicated approximately the year before the date of the references - December 2011 or January 2012. The Tribunal asked the applicant why it was that Mr Ricky Sandhu's address was described, as at 14 January 2013, as '2, Murdoch Drive Greenfields 6210, WA', a suburb of Mandurah in Western Australia. He could offer no explanation save to say that that was an earlier address for Mr Ricky Sandhu.
The Tribunal expressly put to the applicant that Mr Ricky Sandhu and Ms Kaur had described themselves and their address in such a way as to appear to be independent of one another, so as to appear to be two separate independent referees rather than a married couple providing essentially one reference. He denied that to be the case.
The Tribunal then noted and put to the applicant that Mr Ricky Sandhu's surname was the same as the surname on the Punjab Department of Transport driver's licence (Ramandeep Sandhu), which the applicant had used on 20 December 2011. The Tribunal asked the applicant whether Mr Ricky Sandhu and Mr Ramandeep Sandhu were related. The applicant said they were not. The Tribunal asked the applicant how was he so sure of that and the applicant responded that he was sure because Mr Ricky Sandhu was in fact his (that is, the applicant's) brother. At no time prior to that point in the proceeding had the applicant indicated that Mr Ricky Sandhu was the applicant's brother and that Ms Kaur was the applicant's sisterinlaw the same brother and sister-in-law whom he and his wife had asserted were providing the applicant with financial support because he could not drive a taxi.
Up until that point in time in the proceeding there was no suggestion in the applicant's evidence that Mr Ricky Sandhu was the applicant's brother. The applicant conceded, in answer to the Tribunal's questions, that Mr Sandhu was in fact his brother and Ms Kaur was his sister-in-law who were supporting the applicant, his wife and three children during the period that his driver's licence was suspended and who were allegedly currently supporting him and his family because he could not return to driving a taxi.
The Tribunal finds that Mr Sandhu and his wife, Ms Kaur, have a vested interest in seeing the applicant return to taxi driving work as he has allegedly been unable to obtain fulltime gainful employment as a cleaner, given the fact that he no longer holds a clear National Police Certificate. The Tribunal considers this fact substantially detracts from the value of these two references. Further, the Tribunal finds that the applicant knew that Mr Sandhu and his wife had misdescribed themselves. Had it not been for the Tribunal's enquiry of the applicant about the referees, the real relationship between the applicant and the referees would not have been known. The Tribunal finds that the applicant withheld relevant information from the Tribunal, which information goes to the credibility of the referees and their statements in the references. The applicant's counsel, in closing, suggested that it was correct for Mr Sandhu and his wife to describe themselves as family friends of the applicant upon the basis that 'friend' is a wider description than family member and inclusive of family members. The Tribunal rejected that submission. Based upon the information before the Tribunal, the Tribunal finds that the applicant, Mr Sandhu and Ms Kaur failed to disclose to the Tribunal the critical facts concerning the references given by Ms Kaur and Mr Sandhu and, in particular, failed to disclose to the Tribunal that they were members of the applicant's family who had a vested interest in the Tribunal setting aside the respondent's decision and reinstating the applicant's T extension. The Tribunal concludes that the character references by Mr Sandhu and Ms Kaur are not proved that is, the references do not prove that the writers hold a true and genuine belief that the applicant is a person of good character. Further and alternatively, the Tribunal concludes that the character references by Ms Kaur and Mr Sandhu are of no weight, or no significant weight.
The applicant's advance of the character references of Mr Sandhu and Ms Kaur
Although the applicant answered the Tribunal's questions readily and truthfully whilst under oath, the Tribunal finds that the applicant's failure to volunteer his relationship with Mr Sandhu and Ms Kaur, reflects adversely upon the applicant's moral character.
Reference by Mr Ashwani Chaudhary
The applicant relied upon a character by Mr Ashwani Chaudhary whom the applicant said was a colleague he met and knew whilst driving a taxi. The character reference by Mr Chaudhary is dated 12 January 2013 and it describes Mr Chaudhary as a taxi driver. Mr Chaudhary states that he has known the applicant since 2008 and has known him to be 'of good character, honest, faithful, of helping nature, and a person strictly nonviolative of any road rules'. He states:
I am aware that Mr Singh was caught driving his private car on a forged license [sic] while his WA license [sic] was suspended, in consequence to which his T extension was also cancelled. I am astonished how a noble person like him could commit such an act of fraudulent nature as it did not at all imitate the actual good character of the said person.
I have noted that Mr Singh whole heartedly repents this act though he might have taken it under the dire compulsion of fulfilling his family's financial needs. I have further noticed that this action has caused Mr Singh a Psychological setback besides affecting him a lot in terms of financial loss. He has assured me that the last thing he would ever do is to get involved in such like unlawful acts.
…
This letter indicates that Mr Chaudhary is of the view that the applicant has insight into, repents and is remorseful of his conduct, and has suffered to some extent as a result of lawfully imposed restrictions on his authority to drive a vehicle as a consequence of his conduct leading to the convictions referred to. Although Mr Chaudhary was not called as a witness, the Tribunal considers that there is no reason for the Tribunal not to accept Mr Chaudhary's opinion of the applicant and finds that Mr Chaudhary genuinely holds the opinion that the applicant is a person of good character. It is particularly weighty that Mr Chaudhary, as a taxi driver, should hold the opinion that the applicant is of good character with a view to returning to the business of driving a taxi. However, the degree of contact that Mr Chaudhary has had with the applicant since the applicant ceased driving a taxi (that is, 2009) is not clear. Whilst the Tribunal accepts that Mr Chaudhary genuinely holds the opinion or belief that the applicant is of good character, the Tribunal is not persuaded by that opinion that the applicant is in fact a person of good character for the purposes of a T extension in light of all of the evidence before the Tribunal.
Reference by Mr Sulejman
The applicant also relied upon a character reference provided by Mr Adnan Sulejman. The applicant did not call Mr Sulejman to give evidence. Under questioning by the Tribunal, the applicant gave evidence to clarify that Mr Sulejman had not been able to provide him with more than one or two jobs since his conviction because he did not have sufficient work to keep the applicant fully occupied. The applicant explained that when his driver's licence was suspended in September 2011, and then suspended for a further nine months, Mr Sulejman found other people to service the cleaning contracts that he had been servicing. He stated that it was difficult now for the applicant to find new work as a cleaner because he could not produce a National Police Certificate that was clear of any convictions. Mr Sulejman does not confirm this fact.
Mr Sulejman states that he could not provide the applicant with cleaning work because 'he could not reach at the job site with his cleaning equipment at the given time for want of his driving license [sic] …'. Mr Sulejman does state that he 'bears a good moral character'. Mr Sulejman's reference has more to do with the applicant's hardship submission and whether he was a good cleaner than it does with the applicant's character. Mr Sulejman's reference to the applicant's character is an aside. Whilst the Tribunal concludes that Mr Sulejman holds the belief that the applicant is a hardworking man of good character who engaged in 'foolish' conduct (a reference to his convictions), the Tribunal is not persuaded by that opinion that the applicant is in fact a person of good character for the purposes of a T extension in light of all of the evidence before the Tribunal.
The review
The Tribunal is bound to determine whether, on the evidence before the Tribunal, the applicant is a person of good character such that his T extension should be restored.
The respondent says that the applicant is not a truthful and honest individual and lacks the qualities required to be considered a person of good character so that his T extension should be restored. The respondent principally relies upon the fact that during the period of disqualification the applicant 'chose' to drive without authority and purchased a forged driver's licence from a friend which was a calculated move by him to deceive police and avoid detection for driving without a driver's licence. The respondent says at paragraph 11 of the statement of issues, facts and contentions:
Whilst the offence is not related to his work as a taxi driver the premeditated and deceitful element does give rise to doubts about the Applicant's character and his suitability to hold a vocational driver's licence. Taxi drivers in particular are in a position of trust and the public expectation is that drivers should be of good character.
As to the issue of traffic offences resulting in the 12 demerit points, the respondent, in paragraph 9 of his statement of issues, facts and contentions, appears to assert that the applicant's character is to be assessed by reference to the fact that the applicant accumulated 12 demerit points for a 'series of infringements for speeding offences and using a mobile phone'.
The Tribunal finds that the accumulation of 12 demerits points for a series of four infringements for speeding offences and using a mobile phone, over a two year period, is not reflective of the applicant's character in this particular case. The Tribunal considers that, the applicant's convictions for driving without authority and using a forged or altered driver's licence in the circumstances described above, do indicate a preparedness to mislead the authorities. The applicant's conduct in advancing the references of Mr Sandhu and Ms Kaur, as described above, without disclosing all of the facts of his relationship with those referees (and between those referees) also indicates a preparedness to mislead. These facts, along with the connotation from the applicant's assertions and his wife's assertions referred to above, are not consistent with the applicant showing real insight into his behaviour which culminated in his conviction. The Tribunal accepts that the applicant regrets the financial pain and discomfort he visited upon his family as a consequence of his disqualification from driving following his convictions, but he has not persuaded the Tribunal that he has learned from his wrongdoing or that he recognises his preparedness to mislead authorities as a flaw of his character. The Tribunal considers that the public must be able to have confidence in the honesty of the taxi drivers who provide the public with taxi services. In this proceeding the Tribunal is not persuaded that the applicant is currently a person of such good character that he may hold a T extension and be permitted to provide that service for the public.
Conclusion
The Tribunal concludes that on the evidence before the Tribunal, the respondent's convictions are an appropriate reason to consider a variation to the applicant's driver's licence pursuant to reg 28 of the regulations. In considering whether to vary the applicant's licence so as to cancel the T extension endorsed on the applicant's driver's licence, the Tribunal has had regard to all of the factors in reg 12, reg 25 and reg 41 of the regulations. The relevant factor is the character of the applicant.
For the reasons expressed above, the Tribunal is not persuaded that the applicant is of good character such as that required to hold a T extension on the evidence before the Tribunal. For this reason the Tribunal affirms the respondent's decision to cancel the applicant's T extension to his driver's licence.
Other matters
The applicant concerted that a basis for the Tribunal setting aside the respondent's decision to cancel the applicant's T extension is that the cancellation would result in hardship to the applicant. The applicant asserts that the hardship is demonstrated by the fact that he cannot earn a living as a taxi driver to keep his family, which is all that was left for him, as he cannot find new work as a cleaner. In support of this, the applicant relied upon the fact that Mr Sulejman could not give him any new work. The applicant gave evidence that he only had one or two cleaning jobs from Mr Sulejman because the latter had no openings for additional staff. The applicant gave evidence that he could not get new cleaning work because he was unable to show a clear National Police Certificate. Mr Sulejman does not state that he cannot engage the applicant because of his convictions. However, the Tribunal accepts that the recording of the applicant's convictions will detract from the applicant's prospects of successful employment as a cleaner or any other position which involves a degree of trust and confidence in him. The alleged hardship suffered, however, is a consequence of his conduct resulting in the convictions and not from the cancellation of the licence.
The authority that is most frequently quoted on this issue is Director General for Planning and Infrastructure and Nealon [2003] WASCA 161 in which the Full Court of the Supreme Court held that the Magistrate in that matter had erred in considering and taking into account the hardship of cancellation of a licence to a party as being relevant to whether the licence should be cancelled or not. That case was decided well prior to the promulgation of the regulations that now comprise the law as to the grant, variation, cancellation and review of decisions concerning authorisation to drive. There is one instance under the regulations where hardship is to be taken into account concerning the minimum age of a driver (reg 15 and reg 22 of the regulations) which is not relevant in this matter. For this reason, the Tribunal rejected the submission that any of the evidence concerning hardship is relevant to the Tribunal's review of the respondent's decision to cancel the applicant's T extension to his driver's licence.
Order
1.The respondent's decision to cancel the applicant's 'T' extension to his driver's licence made on 17 November 2012, affirmed by the respondent following a review pursuant to reg 42(3) of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) on 21 December 2012, is hereby affirmed.
I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS NATASHA OWEN-CONWAY, MEMBER
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