Duarte and Australian Maritime Safety Authority

[2011] AATA 530

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 530

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No 2011/1217

GENERAL ADMINISTRATIVE DIVISION		)
Re		Rodney Duarte

Applicant

And   Australian Maritime Safety Authority

Respondent

DECISION

Tribunal Senior Member A K Britton

Date29 July 2011  

PlaceSydney  

Decision The application is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

......................[sgd]........................

Senior Member A K Britton  

CATCHWORDS

PRACTICE AND PROCEDURE – power of Tribunal to determine application – whether applicant lodged valid application in approved form – whether respondent made reviewable decision - application dismissed as decision not reviewable

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) – ss 3(3)(a), 3(3)(g), 25(5), 42A(4)

Navigation Act 1912 (Cth) – s 426A

Ombudsman Act 1976 (Cth) – s 10

Administrative Decisions (Judicial Review) Act 1977 (Cth) – s 7

Cases:

Duarte and Australian Maritime Safety Authority [2009] AATA 989

Duarte and Australian Maritime Safety Authority [2008] AATA 1016

Duarte v Australian Maritime Safety Authority (2010) 188 FCR 429; [2010] FCAFC 127

Other Instruments:

Australian Maritime Safety Authority, Marine Orders – Part 3: Seagoing Qualifications, Issue 6 (Order No. 8 of 2004), 7 December 2007 - OO 1.1, 2, 4(a), 5, 5.1.1, 6, 6.1, 6.2, 6.3, 7, 7.1, 8, 21

International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 [1984] ATS 7 (entered into force 28 April 1984)

REASONS FOR DECISION

29 July 2011  Senior Member A K Britton

1.Mr Rodney Duarte has applied to the Administrative Appeals Tribunal for review of a number of “decisions” made by the Australian Maritime Safety Authority. These purported decisions relate to the issue of certificates that Mr Duarte must hold to work in various positions in the Australian maritime industry. 

2.The Authority contends that the AAT does not have power to determine Mr Duarte’s application, as he did not make a valid application and the Authority did not make a reviewable decision. These reasons address the preliminary issue of whether the Tribunal has power to determine Mr Duarte’s application.

Background

3.To put the arguments made by the parties in context, it is necessary to sketch in the background to Mr Duarte’s current application to the AAT.

4.In November 2007, Mr Duarte made an application to the AAT, seeking review of various “decisions” made by the Authority not to issue him with a certificate of competency as an Engineer, Class 1 or Class 2, or as an “Engineer Watchkeeper”. That application was dismissed on the grounds that there was no reviewable decision and therefore the Tribunal was without power to determine Mr Duarte’s application: Duarte and Australian Maritime Safety Authority [2009] AATA 989. In reaching that decision, Deputy President Tamberlin departed from an earlier decision that the Tribunal had jurisdiction to consider Mr Duarte’s application: Duarte and Australian Maritime Safety Authority [2008] AATA 1016, per Mr D Connolly AM, Member.

5.Notwithstanding his decision that the Tribunal lacked jurisdiction, the Deputy President went on to consider the merits of Mr Duarte’s application and concluded that as he did not satisfy the relevant statutory criteria for a certificate of competency as an Engineer Class 1 or Class 2, or “Engineer Watchkeeper”, his application could also be dismissed on that basis.

6.In dismissing an appeal bought by Mr Duarte, Ryan, Mansfield and Rares JJ decided that it was not necessary to make a final determination on the issue of jurisdiction: Duarte v Australian Maritime Safety Authority (2010) 188 FCR 429. Their Honours concluded that the Tribunal could not determine Mr Duarte’s substantive application because, among other things, he had not satisfied a mandatory precondition of the issue of each certificate for which he had applied, that is, to have passed an oral examination.

Legislative framework

7.The Tribunal’s power to review a decision is confined to “reviewable decisions”, that is, those decisions that the Tribunal has been given power under an enactment to review (s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)). The relevant enactment in this case is the Australian Maritime Safety Authority, Marine Orders, Issue 6 (Order No. 8 of 2004), 7 December 2007 (the Marine Orders), made under the Navigation Act 1912 (Cth) (“the Act”): s 426A of the Act.

8.Part 3 of the Marine Orders is headed “Seagoing Qualifications”. Its stated purpose is to give effect to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978, as amended (the STCW Convention): Order 1.1., Part 3 applies to, among others, a person intending to perform duties as a qualified master, officer or seaman on a ship subject to pt II of the Act: Order 4(a).

9.Order 5 provides that a party affected by a decision made under pt 3 by “the Manager” can apply to the “General Manager”, and ultimately the AAT, for review of that decision. That order is critical to Mr Duarte’s current application and I will return to consider it in detail.

the “decisions” the subject of Mr Duarte’s current application for review 

10.In his application lodged with the AAT on 1 April 2011, Mr Duarte described the decision(s) the subject of his application in these terms:

Failed to issue me with any licence to work on vessels over 3000kw. Also failed to allow me to do the class/oral exam. Not willing to accept my qualifications done in the UK and Australia.

11.Under the heading “Reasons for application” he wrote:

I am an Australian citizen and resident. I have a right to be able to work here. I am a specifically trained and experienced marine engineer, over 3000kw. I have 25 years’ experience and spent many years doing the qualifications etc. I have done the studies in the UK and in Australia. I have current overseas licences.

12.Attached to Mr Duarte’s application for review is correspondence between him and the Authority, throughout the period, November 2010 to March 2011.  In these proceedings, Mr Duarte confirmed that the “decisions” the subject of that correspondence and his application to the AAT were those listed in his letter to the Authority’s General Manager, Mr Allan Swartz, dated 8 March 2011, namely:

·A temporary licence under order 6, 6.1, 6.2 and 6.3 of the Marine Orders

·A restricted licence Class 1 or Class 2 as per order 21

·A Watchkeeper licence  

·A Class 2 licence 

·“To be allowed to appear for the Class 1 oral exam”

13.For convenience, in the reasons I will refer to the licences listed above as the “subject licences”.

Does the aat have power to determine mr duarte’s application?

14.It is not in issue that a decision made under pt 3 of the Marine Orders in relation to the issue of, or refusal to issue, a subject licence is reviewable by the AAT.  The Authority argues that in this case the AAT cannot conduct a review as a “reviewable decision” has not been made.  The Authority contends that:

·Mr Duarte failed to make an application for any of the subject licenses in the “approved form”

·There has been no decision made by a “Manager” and accordingly Mr Duarte was not entitled to apply for an internal review

·An internal review was not conducted and hence there is no reviewable decision

·No decision has been made relating to Mr Duarte’s purported request to “appear for the Class 1 oral exam” 

was it necessary for the application for a subject licence to be made in an “approved form”?

15.The Authority contends that Order 7 requires an application for any of the subject licenses to be made in an “approved form”. The Authority states that the “approved form” for each of the subject licenses is “AMSA63 Application for a certificate and/or endorsement” as contained on its web site:

Authority argues that Mr Duarte did not make an application in the approved form and therefore a valid application has not been made. Mr Duarte contends that at no stage during his dealings with the Authority over the past 12 months was he advised that he was required to submit an application in the approved form. He claimed that the officers of the Authority understood that he was relying on his original applications. (In 2005 Mr Duarte submitted applications in the approved form for certificates for a “Watchkeeper Engineer” “Marine Engineer Class 3” and in 2004 for “Watchkeeper or Class 2 or Class 1”.)

17.Orders 7 and 8 provide: 

SECTION B ADMINISTRATION OF CERTIFICATES

7 Applying for the issue, revalidation or endorsement of a certificate

7.1 Application for the issue, revalidation or endorsement of a certificate must be made in an approved form and accompanied by such evidence of relevant service, certificates held or other documents as the Manager considers necessary.

…

8 Issue, revalidation and endorsement of certificates

8.1 If the Manager is satisfied that an applicant has met the requirements specified in this Part for the issue of a certificate of a particular designation and particular grade, the Manager will issue to that applicant a certificate of that designation and of that grade.

8.2 If the Manager is satisfied that an applicant has met the requirements specified in this Part for the revalidation or endorsement of a certificate, the Manager will revalidate or endorse that certificate accordingly.

18.Order 7 is expressed in mandatory terms — “…the application must be made in ‘an approved form’”.  In my opinion, read together with Order 7, the obligation of a Manager to issue a certificate of a particular designation and particular grade, imposed by Order 8, will only arise if, among other things, the application for a certificate of a particular designation and particular grade is made in an approved form. 

did mr duarte make an application in an approved form?

19.The remaining question to be decided is whether, as claimed, Mr Duarte resubmitted his original 2004 and 2005 applications and, if so, whether that constitutes “ma[king] an application in an approved form” for the purpose of Order 7.1.

20.As properly conceded by Mr Duarte, there is no mention in any of his correspondence to the Authority written in late 2010 that he was seeking to resubmit his original applications.  Nor do I believe can this be inferred from the correspondence taken as a whole. 

21.Given that the “requests” made by Mr Duarte could not be characterised as a resubmission of his original applications, it is not necessary to decide whether, as the Authority asserts, it was not open to Mr Duarte to simply resubmit his earlier applications or that, any purported “new” application was invalid as the prescribed application fee had not been paid.

22.I am satisfied that Mr Duarte was required to, but did not, make an application for the subject licence in the approved form. In case I am wrong in finding that a valid application has not been made, I will consider whether, as Mr Duarte contends, a reviewable decision was made by the Authority.

Was a reviewable decision(s) made?

23.Mr Duarte wrote to Mr Andy Hogan, Ship Operations and Qualifications, about various matters, on a number of occasions throughout November 2010. Mr Hogan did not reply. For present purposes I will assume that one of the letters written to Mr Hogan constituted a valid application for the subject licences. 

24.Mr Duarte contends that Mr Hogan failed to determine his application and therefore a decision was deemed to have been made to refuse his application for the subject licences. As I understand it, he contends that the deemed decision was made on or about 1 December 2010 (approximately 28 days after Mr Hogan received Mr Duarte’s “application”). 

25.On 21 December 2010, Mr Duarte wrote to the Authority’s General Manager, seeking a review of Mr Hogan’s “decision”. He contends that that letter constituted an application for internal review.  He also argues that as the General Manager did not determine his application within 28 days of receiving it, a decision was deemed to have been made by the General Manager on or around 20 January 2011 (approximately 28 days after the General Manager received Mr Duarte’s request for an internal review).

26.Order 5 is critical to whether a reviewable decision has been made and is set out below in full:

5 Review of decisions

5.1 Internal review

5.1.1 If the Manager makes a decision under this Part, a person affected by the decision may, within 3 months of the date of notification of the decision or such longer period as determined by the General Manager, apply to the General Manager for review of that decision.

5.1.2 An application for internal review under 5.1.1 must be made in writing to the General Manager and must be accompanied by such information as the General Manager requires to enable the decision to be properly reviewed.

5.1.3 The General Manager may:

(a) affirm the original decision by the Manager; or

(b) make any decision that could be made by the Manager in accordance with this Part.

5.1.4 The General Manager must give his or her decision in writing within 28 days of receiving the application for internal review.

5.2 Review by the AAT

5.2.1 Application may be made to the Administrative Appeals Tribunal for review of a decision by the General Manager under 5.1.3.

5.2.2 The notice of a decision by the General Manager under provision 5.1.3 must include a statement to the effect that, if the person is dissatisfied with the decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision. The notice must also include a statement to the effect that the person may request a statement under section 28 of that Act.

5.2.3 Failure to comply with 5.2.2 in relation to a decision does not affect the validity of that decision.

27.“General Manager” is defined to mean “the person occupying the position of General Manager, Maritime Operations” in the Authority and “Manager” is defined to mean “... the person occupying the position of Manager, Ship Operations and Qualifications” in the Authority: Order 2.

28.As Mr Duarte correctly contends where a valid application for internal review is made and the General Manager does not make a decision within 28 days of receiving that application, then at the expiration of that 28 day period, the General Manager is deemed to have made a decision: s 25(5) of the AAT Act and Order 5.1.4. The difficulty with Mr Duarte’s argument is that a failure by a Manager to make a decision under pt 3 is not treated in the same way. This is because s 25(5) of the AAT Act, which operates to deem a decision to have been made where a person has failed to do an act or thing, only applies where the relevant enactment prescribes a period where the person must do the act or thing. It provides:

Failure of decision maker to meet deadline

…

(5)       For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.

29.The Marine Orders do not prescribe a period in which the Manager must make a decision under Order 8 (or pt 3) and accordingly, s 25(5) of the AAT Act does not apply. As Mr Duarte correctly points out, the AAT Act defines “decision” to include “refusing to make an order or determination” and “refusing to do any act or thing”: ss 3(3)(a) and 3(3)(g). This broad definition of “decision” does not assist Mr Duarte because where a decision-maker fails to make a decision, a decision will only be taken to have been made where the relevant enactment prescribes a deadline for the making of the decision.

30.Accordingly, the Manager’s failure to make a decision in relation to Mr Duarte’s “application”, does not constitute a deemed decision. As no “decision” was made under Order 5.1.1, Mr Duarte was not entitled to apply to the General Manager for an internal review.  It follows that the application for internal review made by Mr Duarte was invalid; the General Manager was not required to make a decision within 28 days of receiving Mr Duarte’s “application”; no decision was taken to have been made by the General Manager; and, Mr Duarte is not entitled to apply for review by the AAT under Order 5.2.3.

31.Mr Duarte submitted that it is unfair that a person is deprived of the right to seek review by the AAT because a decision-maker has failed to make a decision required to be made under an enactment. I note that a person aggrieved by the failure of a decision-maker to make a decision within a reasonable period can make a complaint to the Commonwealth Ombudsman. Section 10 of the Ombudsman Act 1976 (Cth) gives the Ombudsman the power to certify that a decision has been made where, after investigating a complaint, he or she is of the opinion that there has been unreasonable delay in deciding whether to do the “act or thing”. Section 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) also provides a remedy to a person aggrieved by the failure of a decision-maker to make a decision within a reasonable period.

Request to be allowed to take the “Class 1 oral exam”

32.I am unable to identify from the material before me any reference to a request having being made by Mr Duarte to sit an oral examination or any decision relating to such request. Absent a relevant decision this matter is not reviewable by the Tribunal. 

Status of matter 2008/3978

33.Matter no 2008/3978 was listed for hearing on the same day as matter no 2011/1217. The latter related to Mr Duarte’s current application for review lodged on 1 April 2011 and is discussed above. Hearing notices sent to the parties stated that both matters were listed for an “interlocutory question - jurisdiction”.

34.At the hearing there was some uncertainty about the status of matter no 2008/3978 (“the 2008 matter”) and I invited both parties to make written submissions on whether, as the Authority claimed, that matter had been determined.

35.Having examined the Tribunal’s file and considered the parties’ submissions, I am satisfied that, as the Authority contends, the 2008 matter has been determined. It relates to an application made by Mr Duarte on 22 August 2008, in which he sought review of “decisions made after 23 May 2005, and after 4 August 2006, and 18 September 2007, 15 October 2007 and 11 June 2008” (see letter from the Registrar to the parties dated 26 August 2008). That application was dismissed by the Tribunal, constituted by Senior Member Walker, on 16 December 2008 under s 42A(4) of the AAT Act.

36.I do not agree with the assertion made by Mr Duarte that the 2008 matter has not been disposed of because of an earlier ruling made by Member Connelly that the Tribunal had jurisdiction to determine his application.  That decision related to a different application to that the subject of the 2008 matter, namely an application made by Mr Duarte on 2 November 2007 (see Duarte and Australian Maritime Safety Authority [2008] AATA 1016 at [1]). In any event, the application the subject of Member Connelly’s decision, was ultimately dismissed by the Full Court of the Federal Court: Duarte v Australian Maritime Safety Authority (2010) 188 FCR 429.

37.As the application for review made by Mr Duarte on 22 August 2008 — the 2008 matter — has been dismissed, I am without power to consider that application. 

Decision

38.For the reasons as given, the application for review lodged by Mr Duarte on 1 April 2011 is not reviewable and for that reason I have decided to dismiss that application under s 42A(4) of the AAT Act.

39.The dispute between Mr Duarte and the Authority has a long and protracted history. Without attributing blame to either party, the history of this dispute indicates that to date much time and resources have been consumed in fruitless and unproductive argument and interlocutory wrangling.  I note from correspondence between the parties that a formal mediation process has been commenced. It seems to me that this presents a most sensible course as it is evident that a different approach is needed to bring the parties together to identify the real issues and, if possible, to settle them.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         .......................[sgd]............................
  Associate to Senior Member Britton

Date/s of Hearing:  6 July 2011
Date of Decision:  29 July 2011

Applicant:Self-represented

Solicitor for the Respondent:     Ms M Dean, In-house counsel, Australian Maritime Safety Authority