Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199 (12 August 2010)

Last Updated: 12 August 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
ATM Chowdhury

RESPONDENT
Department of Transport & Infrastructure



FILE NUMBERS:
093319

HEARING DATES:
23 March 2010

SUBMISSIONS CLOSED:
4 August 2010



DATE OF DECISION:
12 August 2010

BEFORE:
Molony P - Judicial Member





LEGISLATION CITED:
Passenger Transport Act 1990
Passenger Transport Regulation 2007
Administrative Decisions Tribunal Act 1997

CASES CITED:
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Maythisathit and Registrar of Motor Vehicles [1996] ACT 165
Farquharson -v- Director General, Department of Transport [1999] NSWADT 53
Saadieh v Director General, Department of Transport [1999] NSWADT 68
Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392
Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37

TEXTS CITED:


APPLICATION:
Passenger Transport Act - Taxi driver - cancellation of authority

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
M Jools, Agent
RESPONDENT
A Wozniak, solicitor


ORDERS:
The decision of the Agency to cancel Mr Chowdhury’s taxi authority is set aside.


Reasons for Decision:

REASONS FOR DECISION

1 Mr Chowdhury is a taxi-driver. On 2 December 2009 the NSW Department of Transport and Infrastructure (the Agency) made a decision to cancel his authority to drive a taxi-cab issued under the Passenger Transport Act 1990. That decision was made on the basis of three incidents in which Mr Chowdhury was alleged to have been detected in Bayswater Road, Kings Cross, kerb crawling and refusing offers for hire.

2 On 7 December 2009 Mr Chowdhury applied to the Tribunal to review that decision and sought an urgent stay of the decision to cancel his authority. On 15 December 2010 the Tribunal stayed the cancellation of Mr Chowdhury’s taxi authority. The decision was remitted to the Agency for further consideration under s 65 of the Administrative Decisions Tribunal Act 1997, or alternately for the conduct of internal review in accordance with an application to be lodged by Mr Chowdhury.

3 On 9 January 2010 the decision to cancel Mr Chowdhury taxi authority was confirmed on internal review. The internal review found that Mr Chowdhury is not a fit and proper person to drive a taxi-cab and is not of good repute. It confirmed the decision to cancel Mr Chowdhury’s authority.

4 Mr Chowdhury’s appeal against the decision to cancel his authority was heard by me on 23 March 2010. At the end of the hearing I reserved my decision.

5 The issues canvassed during that hearing were wider than those encompassed by the internal review, with the Agency relying on additional allegations against Mr Chowdhury which it said went to his fitness and repute. Put shortly, the Agency alleged that Mr Chowdhury had:

Failed to accept a hire in Kings Cross on 30 August 2009.

Failed to accept a hire in Bayswater Road, Kings Cross early in the morning of 19 September 2009. It was also said that he had failed to properly display his authority card at this time.

Failed to accept a hire in Bayswater Road, Kings Cross on 8 November 2010.

Driven a taxi-cab on 8, 10, 11, 12, 13 and 14 December 2009 when he knew his authority was cancelled and before the Tribunal had stayed the decision to cancel his authority.

Driven a taxi-cab on 7 and 8 March 2010 when his motor car driver’s licence was suspended.

6 I will consider each of these separately. Before doing so it is necessary to shortly review the provisions regulating the conduct of taxi drivers, as it provides the context in which the conduct is to be assessed.

The Legislation and Regulation
7 Section 33F of the Passenger Transport Act 1990 provides that having regard to the purpose of an authority the Director-General may at any time vary, cancel or suspend an authority. The purposes of a taxi drivers authority are set out is s 33(3):

"The purpose of an authority under this Division is to attest:

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and

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

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

(ii) in accordance with law and custom."

8 The meaning of "fit and proper" is dependent on the nature and purpose of the activities which the person will undertake. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:

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

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

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

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

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

11 The fact that offences with which a person is charged occurred in the regulated environment may have a greater impact upon that consideration than those that occur outside that environment: Farquharson. "The nature, seriousness and frequency of any complaints made against the applicant" are relevant factors in such an assessment: Saadieh v Director General, Department of Transport [1999] NSWADT 68.

12 In contrast to character, reputation as Waddell J explained in Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 389:

"...is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation which makes it a reliable guide to a person's character. See, generally, Wigmore on Evidence, 3rd ed., vol 5, p 486 et seq, pars 1615, 1616; p 479 et seq, par 1610. As is pointed out by Wigmore, a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: p 472 et seq, par 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character.

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

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

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

‘...evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation."

15 The Passenger Transport Regulation 2007 contains provisions regulating the conduct and operation of public passenger vehicles and their drivers. A number of these are relevant in Mr Chowdhury’s case.

16 Clause 132 is concerned with the display of driver authority cards. It provides:

"The driver of a taxi-cab must not drive the vehicle unless the appropriate driver authority card:

(a) is contained in a holder firmly affixed to the interior of the taxi-cab, and

(b) is displayed so that its face can be easily seen by any passenger in the taxi-cab.

Maximum penalty: 5 penalty units."

17 Relevantly clause 4 defines "drive" thus:

"drive a vehicle (other than a vessel) includes cause or allow the vehicle to stand."

18 Drivers of taxi cabs are required to complete work sheets when they drive a cab recording details such as the times they commence and finish driving, and odometer readings: clause 134.

19 Drivers of taxi-cabs that are available for hire are required by clause 146(1) to accept hirings when offered, subject to the exceptions specified in sub-clause (2).

20 Clause 233 is concerned with touting or soliciting passengers for a public passenger vehicle. It provides:

"(1) A person must not tout or solicit for passengers for, or for a hiring of, a public passenger vehicle.

Maximum penalty: 50 penalty units (in the case of an offence committed in the Sydney Airport precinct) or 5 penalty units (in any other case).

(2) The operator or driver of a public passenger vehicle must not, by the operator’s or driver’s employee, agent or contractor, tout or solicit for passengers for, or for a hiring of, a public passenger vehicle.

Maximum penalty: 50 penalty units (in the case of an offence committed in the Sydney Airport precinct) or 5 penalty units (in any other case)."

21 The Macquarie Dictionary Online relevantly defines tout as meaning, "1. to solicit business, employment, votes, etc., importunately." It conveys a quality of urgency and persistency to the solicitation.

22 Taxi-cabs are required to be fitted with signs and lamps by clause 121, Sub-clause (5) provides:

"(5) In the case of a taxi-cab that is fitted with a taxi-meter, the lamp enclosed by the roof sign, the red lamp (if fitted) and the amber lamp must all be wired to the taxi-meter so that:

(a) while the taxi-cab is not for hire, all the lamps will be extinguished, and

(b) while the taxi-cab is available for hire, both the lamp enclosed by the roof sign and the amber lamp will be illuminated, and

(c) while the taxi-cab is engaged:

(i) both the lamp enclosed by the roof sign and the amber lamp will be extinguished, and

(ii) if the meter is computing the fare at the night-time surcharge rate, the red lamp will be illuminated."

The Events of 30 August 2009
23 On 5 September 2009 The Sunday Telegraph published an article under the headline, "Greedy cabbies take us for a ride" (Exhibit R1). It alleged that of 108 drivers approached in Kings Cross between the hours of midnight and 3-30am only 19 had accepted a metered fare to Bondi. It listed the registration numbers of taxis which had refused the fare. A taxi then being driven by Mr Chowdhury was among them.

24 The Agency sent Mr Chowdhury a show cause notice as a result of this, on 11 September 2009, alleging that he had failed to accept a hiring in breach of clause 146(1) of the Passenger Transport Regulation 2007 (s.58 documents at page 88) . Mr Chowdhury says he did not receive this as it was sent to an old address. He says he had notified the Agency of his change of address. The Agency disputes this.

25 On 2 November 2009 Mr Chowdhury was interviewed by Compliance Officer Thorpe with respect to the allegation in The Sunday Telegraph: (s.58 documents at page 96). He agreed that he had been driving his taxi on the night, but could not recall any incident. Compliance Officer Thorpe gave him a "brief view of the complaint put forward" but did not, in the record of interview, outline any specific allegations to him. Mr Chowdhury told him that he had not received the show cause notice.

26 This is the totality of the evidence the Agency relied on with respect to the events of 30 August 2009. An article from a newspaper, without more, is insufficient to prove a breach of the Regulation as alleged. Mr Chowdhury does not recall an incident.

27 I am not satisfied that any breach has been demonstrated.

The Events of 19 September 2009
28 Mr Wayne Thorpe, a Compliance Officer with the Agency, gave evidence with respect to a number of events in issue.

29 On 22 September 2009 Mr Thorpe issued Mr Chowdhury with a penalty notice for the offence of not accepting a hire when offered, contrary to clause 146(1) of the Passenger Transport Regulation 2007. This was said to have occurred at 2.25am on 19 September 2009, a Saturday morning, in Bayswater Road, Kings Cross (s.58 documents at page 91) . The description of that offence in the penalty notice was:

"Whilst conducting operation with Police at Kings cross Taxi T481 was observed on Jones Bay Rd with with (sic) pas side window down slightly and vacant light not illuminated. Driver stopped when waved down and then soon departed."

30 Mr Thorpe’s notes of that event (s.58 documents at page 90) are consistent with that description. They indicate that Mr Chowdhury said he was on the way home and had his light turned off. When asked to do so Mr Chowdhury produced his authority cared from a plastic bag. In response to a question as to why the authority was not displayed, Mr Chowdhury said he had just put it in the bag to save time.

31 Mr Thorpe interviewed Mr Chowdhury about this incident on 2 November 2010. Mr Chowdhury was asked why he had not displayed his authority card. He explained that he was going home and was logged off.

32 Mr Thorpe gave evidence that this penalty notice had been withdrawn. It was difficult to prove the alleged offence as he had not heard what Mr Chowdhury said to the people he pulled over and spoke with.

33 In the course of his evidence Mr Thorpe was shown a logged activity record for Mr Chowdhury’s taxi on that night. It showed the following:

Time	Action	Suburb
0209	Login Vacant	Balmain
0210	Login Rank	Balmain
0230	Job Offer rejected	Balmain
0242	Login Vacant	Balmain
0242	Sign Off	Balmain

34 The purpose of this log was to negative Mr Chowdhury’s explanation that he was not working, but was heading home at the time he was observed and spoken to by Mr Thorpe.

35 Mr Thorpe is correct in his analysis that it is difficult to prove that Mr Chowdhury refused an offer for hire based on this evidence. While there is equivocal evidence concerning whether or not he was available for hire, there is no evidence that he was offered a hire and rejected it. I do not think this allegation is made out.

36 There is, however, agreement that Mr Chowdhury drove a taxi-cab when he did not have his authority card firmly affixed in the holder as required by clause 132(a) of the Regulation. Mr Chowdhury’s consistent explanation of this is that he was heading home and had placed the card in the bag to save time when he reached base. In my view, this is not inconsistent with his logged times, although the Balmain entries cast doubt on their reliability, placing him there, when other evidence establishes he was in Kings Cross.

37 While I accept that he breached clause 132(a), the breach is a technical one.

The Events of 8 November 2010
38 Mr Scott Watson, a Senior Enforcement Officer of the Agency, gave evidence that on the morning 19 September 2009 he, together with Officer Rosiello, was on an enforcement operation in Kings Cross. He saw a taxi turn from Ward St onto Bayswater Road. He described his position as 50 to 100 yards up Bayswater Road from the intersection.

39 As the taxi came up Bayswater Road, its front passenger window was down. The taxi’s lights were off: its vacant light was not illuminated. The taxi proceeded along Bayswater Road at a slow speed, stopping at times. There were "plenty of people around".

40 Mr Watson said he saw a number of people try to stop the taxi. One group, he was standing beside, hailed the taxi and said they wanted to go to Kellyville. The driver replied, "Fuck off, too far." Mr Watson said he thought the driver was touting for a fare.

41 Enforcement Officer Rosiello, who Mr Watson said was some thirty yards up the road, then stopped the driver. Neither Mr Watson nor Mr Rosiello were wearing illuminated vest which identify them as enforcement officers.

42 Mr Watson said that Mr Rosiello showed the driver his identification, and asked the driver for his authority. He said the driver, "basically said ‘No.’" Mr Rosiello then told the driver not to move, following which the driver "took off at fairly high speed."

43 Mr Roseillo was on leave at the time of the hearing and did not give evidence. It is not clear to me from Mr Watson’s evidence how he was able to hear what Mr Rosiello said to the driver of the taxi, given that he was thirty yards away in Bayswater Road, Kings Cross, early on a Saturday morning and there was plenty of people and traffic about.

44 Mr Chowdhury version of these events was that he turned right into Bayswater Road from Wards Road, having just dropped passengers. He was ending his shift and heading back to East Lakes. His taxi was showing that it was not available for hire. There were a lot of people roaming around and traffic was heavy. People did attempt to flag him down, but he told them he was not available for hire. He denied saying, "Fuck off" to anyone. He said that he is a practicing Muslim and does not swear.

45 As he drove along someone approached his car and showed him a badge saying as they did so, "MOT – pull over." He was unable to see the badge. Mr Chowdhury said that there was no where to pull over and that he was blocking traffic in Bayswater Road. He said that he would pull over up ahead, and did so at the first available opportunity at the corner of Bayswater Road and Kings Cross Road. He said that he did not understand why he had been pulled over, and that when he did so, he waited, but no one came.

46 Mr Chowdhury was subsequently issued with two enforcement notices which he said he is contesting arising from this incident: one for not producing his authority card when required to do so (s.58 documents at page 100), and another for not accepting a hire when offered (s.58 documents at page 101). These offences from part of the basis of the decision to cancel his authority.

47 In my opinion, the evidence of Mr Watson does not establish that the taxi Mr Chowdhury was driving was available for hire. On Mr Watson’s own evidence the vacant light was not illuminated, and all the lamps were extinguished. This points to the taxi not being available for hire. The fact that the vehicle proceeded slowly up Bayswater Road and that its side window was open, given the time, traffic and number of people about, does not persuade me that, despite the fact that the taxi’s lamps were extinguished, it was nonetheless available for hire. Mr Chowdhury denies that it was.

48 Mr Watson says that he heard the driver say "Fuck off, too far" in response to a request for "Kellyville." Mr Chowdhury denied saying this, but did agree that he said, when flagged down, that he was not available for hire.

49 I am not persuaded that it was Mr Chowdhury who said "Fuck off, too far". I do not accept that Mr Watson, standing beside a group of people, in the darkness of night, in busy Bayswater Road, could see the driver of a passing taxi speak.

50 Similarly, I do not accept that Mr Watson was in a position to hear what Mr Chowdhury said to Mr Rosiello when he pulled him over. Because Mr Rosiello was not available to give evidence about those events, the only direct evidence of them is that of Mr Chowdhury. I accept it. I therefore do not accept that he was asked to produce his authority card and refused to do so, or that he failed to pull over when required to do so.
51 For the sake of completeness, I add that I do not consider that the evidence demonstrates that Mr Chowdhury was touting for or soliciting for a hiring. While I do accept that it may be possible to prove such an offence by demonstrating a pattern of conduct by a taxi driver, even with his lamps extinguished, the reality is that there is no evidence of such a pattern here.

Driving when Authority Cancelled
52 Mr Thorpe gave evidence that he had told Mr Chowdhury on 2 December 2009 that his authority had been cancelled. Mr Chowdhury acknowledged this, saying that Mr Thorpe told him that he would receive a letter telling him of this. He said he received the letter advising of the decision to cancel his authority on 7 December 2010. On the same day he applied to the Tribunal for a stay of the cancellation, pending his appeal of the decision.

53 The stay hearing took place before the President and the stay was granted on 15 December 2009.

54 The internal review found that Mr Chowdhury had driven ten shifts after his authority was cancelled on 2 December 2010. Mr Chowdhury has subsequently been charged with six counts of driving a taxi while his taxi-authority was cancelled on 8, 9, 10, 11, 12, 13 and 14 December 2010 (Exhibit R3).

55 Mr Chowdhury did not dispute that he had driven a taxi on those dates, but consistently maintained that he had been allowed to do so by the Tribunal. Mr Chowdhury said that when he received the notice of cancellation on 7 December he had come to the Tribunal, made his stay application, and was told he had clearance to drive by Mr Jools, his agent in these proceedings from the Australian Taxi Drivers Association.

56 This is incorrect. The Tribunal’s records make it clear that the stay was not ordered until the President heard the stay application on 15 December 2010 at 10:00am. Mr Wozniak, who appeared for the Agency, cross-examined Mr Chowdhury about this, and forcefully put to Mr Chowdhury that he had known he was driving while his authority was cancelled. Mr Chowdhury was firm in his denials and that Mr Jools had told him he had clearance to drive.

57 I accept that Mr Jools did so and that Mr Chowdhury honestly believed this to be the case. It was not.

58 I am satisfied that on 8, 9, 10, 11, 12, 13 and 14 December 2010 Mr Chowdhury drove a taxi while his authority was cancelled. In making that finding, I am also satisfied that Mr Chowdhury did so in the mistaken belief that he could lawfully do so, and that he honestly held that belief.

Driving while licence suspended
59 Mr Chowdhury’s drivers licence was suspended for fine defaults commencing on 8 February 2010. The suspension was lifted at 1:27am on 9 March 2010, a Tuesday (Exhibit R4).

60 Mr Thorpe gave evidence of inquiries he had made regarding whether Mr Chowdhury had driven a taxi while his drivers licence was suspended. He produced five documents which the Agency relied on to prove he had.

61 The first was a Logged Activity Record on 6 March 2010 showing that someone using Mr Chowdhury’s driver identity logged on in taxi 1045 at 2125 and immediately logged off. There was a similar sign on, followed immediately by a sign off, both times at 2140.

62 The second was a copy of a hand written statement of Sugiono Budhi taken from Mr Thorpe’s notebook, dated 19 March 2010, and signed by Mr Budhi (Exhibit R5). Mr Chowdhury drives for Mr Budhi. Materially the statement says:

"Officer Thorpe attended my residential address at 8.20pm and I gave him a driver roster and worksheets pertaining to Mr Chowdhury.

The roster shows that Mr Chowdhury drove on 6 March 2010, whilst driving taxi T1045. He also drove on the 7 March 2010 however I could not obtain the worksheet as he would not give it to me. He was driving taxi T2188.

Mr Chowdhury also drove on 9 March 2010 whilst driving taxi T481."

63 The driver’s roster (Exhibit R6) shows that Mr Chowdhury was rostered to drive on Saturday 6 March, Sunday 7 March, and Tuesday 9 March. Puzzlingly, the roster does not cover Monday 8 March.

64 There is a driver’s daily worksheet for Mr Chowdhury showing that he drove T1045 commencing at 9-29pm on Saturday, 6 March 2010 and finished at 3am on the Sunday morning (Exhibit R7). A driver’s daily worksheet for 9 March shows that he commenced driving 3pm on that day and stopped at 3am the following morning (Exhibit R8).

65 Mr Chowdhury gave evidence that he had been overseas from 31 January 2010 until 2 March 2010. His first shift had been on 6 March 2010. He denied driving on 7 March.

66 He said that on 6 March 2010 he had not been aware that his licence was suspended. When he logged on, on 6 March, he received a message to contact the Agency, but was not told that his license was suspended. It being a Saturday he drove his shift, planning to contact the Agency on the following Monday. He did not drive on Sunday 7 March.

67 On Monday 8 March 2010 Mr Chowdhury said he checked his letterbox and found a notice of his fine default suspension from the RTA. He paid the fine and got clearance to drive the next day. This he did.

68 There is no dispute that Mr Chowdhury drove the late shift on 6 March 2010. There is a significant dispute as to whether he did so on 7 March. Mr Chowdhury insist that he did not.

69 The evidence relied on by the Agency to demonstrate that he did so consists of the driver’s roster and Mr Budhi’s statement. The fact that the roster, without explanation, does not cover 8 March, but does cover the days 6, 7 and 9 March continues to worry me and to approach it with some scepticism. In any case, the roster is a schedule and at best proves that Mr Chowdhury was scheduled to drive on 7 March. It does not prove that Mr Chowdhury, in fact, drove on that date.

70 Mr Budhi’s statement that Mr Chowdhury was driving on 7 March is predicated on the fact that Mr Chowdhury was rostered to drive on that date. Mr Budhi does not disclose any other basis for his assertion that Mr Chowdhury drove on that day. He does say that Mr Chowdhury has refused to give him a worksheet for 7 March, but does not say why. Mr Chowdhury was not asked about this when giving his evidence.

71 Given Mr Chowdhury’s consistent denials that he drove on 7 March, the driver’s roster and Mr Budhi’s statement do not persuade that Mr Chowdhury drove on that day.

72 I do accept, however, that Mr Chowdhury did drive a taxi while his license was suspended on 6 March 2010. I accept his evidence that, when he did so, he was not aware that his driver’s licence was suspended. In reaching that conclusion I accept Mr Chowdhury’s evidence that he first became aware of the suspension when he checked his post box on 8 March. While he can be criticised for not checking his mail soon after his return from overseas, he did not do so. As soon as he became aware of the suspension, the evidence establishes that he took action to pay his outstanding fine and have the suspension lifted. He did not drive a taxi while aware of the suspension.

What is the correct and preferable decision?
73 Section 63 of the Administrative Decision Tribunal Act 1997 says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

74 On internal review the Agency, having been satisfied that the allegations of not accepting a fare were justified, found Mr Chowdhury is not a fit and proper person to hold an authority and is not of good repute.

75 I have found that each of the allegations relating to Mr Chowdhury not accepting a fare is not made out on the evidence. I have also found that Mr Chowdhury has committed a number of breaches of the rules governing taxi authority holders.

76 On 19 September 2009 he breached clause 132(a) of the Passenger Transport Regulation 2007 by failing to have his authority displayed in the authority holder. In the circumstances in which it occurred, I regard the breach as technical rather than deliberate.

77 On 8, 9, 10, 11, 12, 13 and 14 December 2010 Mr Chowdhury drove a taxi while his authority was cancelled. In making that finding, I am satisfied he did so in the mistaken belief that he could lawfully do so, and that he honestly held that belief.

78 On 6 March 2010 he drove a taxi while his driver’s license was suspended. I am satisfied that when he did so he was not aware his licence was suspended.

79 In my view none of these breaches are of sufficient seriousness to merit the conclusion that Mr Chowdhury is not a fit and proper person to hold a taxi authority. The circumstances in which they occurred do not point to any dishonesty or impropriety by Mr Chowdhury, and his explanations of them are both reasonable and understandable. They do not reflect adversely on his character.

80 Similarly they do not justify a conclusion that Mr Chowdhury is not of good repute. There is no other evidence which would lead me to draw an adverse conclusion as to his reputation.

81 I do not accept that a member of the public knowing of these events would object to Mr Chowdhury driving a taxi. I do not accept, given the circumstances, that these breaches justify a decision to interfere with Mr Chowdhury’s authority to drive a taxi-cab, whether by way of cancellation or suspension.

Conclusion
82 As a result I will set aside the decision to cancel Mr Chowdhury’s authority. I hope that, as a result of this proceeding, Mr Chowdhury understands the importance of keeping his authority in its holder while driving a taxi, and of checking his mail regularly.

83 The decision of the Agency to cancel Mr Chowdhury taxi authority is set aside.