Bond and Australian Trade and Investment Commission

The Administrative Appeals Tribunal considered an application by an applicant for an Export Market Development Grant (EMDG) for the 2020/2021 grant year. The applicant sought to claim $14,148 in expenses for registering intellectual property (IP) in Australia. The Australian Trade and Investment Commission (Austrade) disallowed this claim, determining that the expenses were not eligible under section 33 of the *Export Market Development Grants Act 1997* (EMDG Act). Consequently, the applicant's total eligible expenses fell below the $15,000 threshold required for a grant, and no EMDG was payable. The applicant sought a reconsideration of this determination.

The Tribunal was required to determine two principal issues. Firstly, whether the claimed IP registration costs of $14,148 constituted eligible expenses within the meaning of item 8 of the Table to section 33 of the EMDG Act. Secondly, the Tribunal had to consider whether it possessed the jurisdiction to entertain an additional claim subsequently advanced by the applicant.

Regarding the eligibility of the IP registration costs, the Tribunal rejected the applicant's submission that the word "obtaining" in item 8 should be interpreted broadly to include expenses incurred in the process of seeking foreign IP rights. The Tribunal found that item 8 specifically requires the obtaining of IP rights "under the law of a foreign country." As the applicant's patent applications were made to the Australian Patent Office, they were not made under the law of a foreign country, rendering these costs ineligible. Furthermore, the Tribunal determined that it lacked jurisdiction to consider the applicant's additional claim because it had not been the subject of a review by the CEO of Austrade, a prerequisite for the Tribunal's review powers under section 98(4) of the EMDG Act.

Consequently, the Tribunal affirmed the reviewable decision. As the eligible expenses did not meet the $15,000 threshold, no grant was payable to the applicant. The Tribunal also concluded it had no jurisdiction to hear the additional claim as framed by the applicant.