Duarte and Australian Maritime Safety Authority
[2008] AATA 1016
•12 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1016
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5351
GENERAL ADMINISTRATIVE DIVISION )
Re RODNEY DUARTE Applicant
And
AUSTRALIAN MARITIME SAFETY AUTHORITY
Respondent
DECISION
Tribunal Mr D Connolly AM, Member Date12 November 2008
PlaceSydney
Decision There is a reviewable decision before the Tribunal relating to this application.
....................[sgd]..........................
Mr D Connolly AM,
Member
CATCHWORDS
PRACTICE AND PROCEDURE – hearing of jurisdiction – whether the Tribunal has jurisdiction to hear the matter – whether Tribunal has jurisdiction to review a position asserted by the General Manager of the Australian Maritime Safety Authority that the Applicant must complete the Australian Maritime Safety Authority approved course before being eligible for issue of an Engineering Class 1, 2 or 3 (Motor) Certificate – Tribunal has jurisdiction in this matter – substantive application might now proceed.
Navigation Act 1912 – s 15, 425(1AA), 426A
Australian Maritime Safety Authority Act 1900 – s 49
Administrative Appeals Tribunal Act 1975 – s 3(3)
Marine Orders Part 3: Seagoing Qualifications Issue 6 – p 5.1, 5.2, 7.1, 7.3, 8.1, 15, 32
Navigation (Orders) Regulations 1980 - r 3A(3)(c)
REASONS FOR DECISION
12 November 2008 Mr D Connolly AM, Member
1.On 2 November 2007 Mr Duarte lodged an application for review of letters received from the Australian Maritime Safety Authority (“AMSA”) dated 18 September and 15 October 2007. During the hearing, held on 27 August 2008, Mr Duarte amended his application to include a further AMSA letter dated 11 June 2008. Mr Duarte asserts that these letters represent decisions made by AMSA.
2.Counsel for Mr Duarte wrote to the Tribunal on 28 June 2008 to further amend the application. Counsel submitted that correspondence from AMSA dated 22 February 2005 and on or about 17 September 2005, plus a further letter from Mr Duarte dated 18 October 2005, should be considered decisions.
3.However I accept AMSA’s contentions that none of the 2005 letters contained reviewable decisions within the meaning of the Marine Orders Part 3: Seagoing Qualifications (“the Marine Orders”). In particular the correspondence of 22 February 2005 was not a decision as it was in fact a letter from Mr Duarte to AMSA. I also accepted that correspondence dated 27 September 2005 (not 17 September 2005) was not a decision amenable to review under the Marine Orders. Furthermore Mr Duarte’s letter dated 16 October 2005 (not 18 October 2005) was answered by letter dated 24 October 2005, by the AMSA officer to whom it was addressed, and is also not a decision amenable to review under the Marine Orders.
4.AMSA has contended that none of the letters cited above, in 2007 and 2008, represent reviewable decisions within the meaning of the Marine Orders and consequently the Tribunal has no jurisdiction under the Administrative Appeals Tribunal Act 1975 to hear the application.
5.Accordingly the application presently before the Tribunal requires a determination to be made as to whether it has jurisdiction to review a position asserted by the General Manager of AMSA on 18 September 2007, 15 October 2007 and 11June 2008, namely that Mr Duarte complete certain requirements before being eligible for issue of an certificate of competency.
LEGISLATION UNDER CONSIDERATION
6.The Tribunal has taken note of section 425(1AA) of the Navigation Act 1912 (“the Act”) that on 20 August 2004 the Chief Executive Officer ( “the CEO”) of AMSA made an order issuing the Marine Orders to come into operation on 8 September 2004. The CEO of AMSA manages the Authority (section 49 of the AMSA Act 1990) and anything done in the name of, or on behalf of AMSA, by the CEO is to be taken to have been done by the Authority [AMSA].
7.Jurisdiction conferred upon the Tribunal is found in paragraph 5 of the Marine Orders. The Marine Orders provide:
“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 apply to the General Manager for review of that decision.
…
5.1.3 The General Manager may:
(a) affirm the original decision of the Manager; or
(b)make any decision that could be made by the Manager in accordance with this part.
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 General Manager must give a decision in writing within 28 days of receiving the application for internal review. The notice 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.”
8.A Manager is defined by Order 2 to mean the:
“person occupying the position of Manager, Ship Operations and Qualifications, in AMSA or, in respect of any particular purpose under this part, a suitably qualified person authorised by the manager for that purpose.”
9.The General Manager is defined to mean the:
“person occupying the position of General Manager, Maritime Operations, in AMSA.”
10.The issue arises in this application as to whether the General Manager in asserting the position referred to in paragraph 1 above made a “decision” within the meaning of paragraph 5.1.1 of Marine Orders, more particularly, paragraph 8.1.
11.Section 425(1AA) of the Act provides that “The Authority [AMSA], may make orders with respect to any matter in Part II for or in relation to which provision may be made by the regulations other than matters referred to in paragraph 1(h) [the imposition of penalties]”. An Order made under section 425(1AA) shall be taken for the purposes of the Administrative Appeals Tribunal Act 1975 to be an enactment (section 426A).
12.Section 15 of the Act relevantly provides:
“Division 3 – Qualifications of masters, officers and seamen
15. Regulations respecting qualifications and watchkeeping obligations of masters, officers and seamen
(1) The regulations may specify standards of competence to be obtained and other conditions to be satisfied, or specify conditions to be satisfied, by a person in order to be a qualified master, officer or seaman or any designation for the purposes of this Act.
(2) Without limiting the generality of subsection (1), the conditions specified in regulations made for the purposes of that subsection may include conditions as to age, character, health, nationality, citizenship or residence, and regulations made for the purposes of that subsection may make provision for and in relation to:
…
(d) the instruction, training and examination of masters, officers and seamen, including the gaining of sea service and other experience, and the conduct of examinations, the conditions for admission to examinations and the appointment and remuneration of examiners;…
(f) the reconsideration of decisions made under regulations made for the purposes of subsection (1) or under orders made in pursuance of regulations made by virtue of paragraph (h) of this sub section;
(g) the exemption of persons, in whole or in part and whether conditionally or unconditionally, from any requirement in relation to which provision is made by the regulations made for the purposes of subsection (1).
(3) In subsection (2) decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.”
13.Section 3(3) of the Administrative Appeals Tribunal Act 1975 provides that unless the contrary intention appears, a reference in this Act to a decision includes a reference to:
“(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;…
(g) doing or refusing to do any other act or thing.”
14.The application made by Mr Duarte was for the issue of a certificate in accord with paragraph 7.1 of the Marine Orders which as here relevant provides:
“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…
7.3 Where, under this Part, the issue of a certificate to a person is dependant upon that person satisfactorily completing an approved course, that course must have been completed:
(a) if the Applicant provides proof of continuity of sea service since completion of the course which is at least equivalent to the requirements for revalidation in 10.1(a)(i) – within ten years of the certificate being issued; or
(b) in any other case – within five years of the certificate being issued; unless otherwise specified in this part.”
15.The certificate is to be issued in accord with order 8.1 namely:
“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.”
16.Paragraph 15 of the Marine Order provides:
“15. Equivalent qualifying sea service and training
If a person has satisfactorily completed sea service or training which the Manager considers is equivalent to all or part of the qualifying sea service or training prescribed by this Part in relation to eligibility to hold a certificate, that person is deemed to have satisfactorily completed all or that part, as appropriate, of the prescribed qualifying sea service or training in respect of that certificate.”
17.The approved course referred to in Order 7.2 is specifically dealt with in Order 32 where as relevant to these reasons it is provided:
“32.1 Engineer Class 1
To be eligible for a certificate of competency as Engineer Class 1, a person must:
(a) hold a certificate as Engineer Class 2, which need not be current, or such other certificate as the Manager considers to be equivalent or superior;
(b) have completed at least 39 months qualifying sea service on ships of at least 750 kW propulsion power, with the following conditions:
(i) at least 30 moths must have been served while holding a certificate as Engineer Watch-keeper, at least 15 months of those 30 must have been served on ships of at least 3,000 kW propulsion power, and at least 12 months of those 15 must have been served while holding a certificate as Engineer Class 2, or
(ii) at least 15 months must have been on ships of at least 3,000 kW propulsions power while holding a certificate as Engineer Class 2.
(c) have completed at least 9 months of the qualifying sea service on ships of at least 3,000 kW propulsions power referred to in (b) in charge of an engine-room watch on ships using propulsions of the kind to which the certificate relates;
(d) have satisfactorily completed an appropriate approved course of study that:
(i) at least meet the standards specified in table A-111/2 of the STCW Code and includes management training and knowledge of international Safety management Code; and
(ii) includes practical training in:
(A) first aid at sea
(B) advanced fire fighting in accordance with the provisions of section A-V!/3 of the STCW Code;
(e) hold a certificate of proficiency in survival craft and rescue boats other than fast rescue boats; and
(f) have passed an oral examination in appropriate operational knowledge conducted by an examiner.
32.3 Engineer Class 2
To be eligible for a certificate of competency as Engineer Class 2, a person must:
(c) have satisfactorily completed an appropriate approved course of study that:
(i) at least meets the standards specified in Table A – III/2 of the STCW Code and includes management training and knowledge of the International Safety Management Code; and
(ii) includes practical training in:
(A) first aid at sea
(B) advanced fire fighting in accordance with the provision of s A-vi/3 of the STCW Code;...”
32.4 Other Grades [Engineer Class 3]
To be eligible for a certificate of competency as:
(a) Engineer Class 3; a person must have such qualifications and experience as may be specified by the Manager consistent with requirements for a certificate of that grade specified in the STCW Convention and the STCW Code.
18.Hence the issue crystallises. Was the assertion of the Manager, Ship Operations and Qualifications, a decision within the meaning of the Administrative Appeals Tribunal Act 1975 and pursuant to 8.1 of the Marine Orders? If so, it is reviewable by the Tribunal. If not, the Tribunal is without jurisdiction to consider the assertion.
BACKGROUND
19.Mr Duarte claims that he holds a Liberian Chief Engineers Certificate, No 307885 issued in April 1986, the same year he migrated to Australia and subsequently became an Australian citizen on 19 October 1989. Mr Duarte is a member of the Institute of Marine Engineers, the Engineering Council and the Australian Institution of Engineers and is an Associate member of IMarEST. Mr Duarte claims to have completed various TAFE courses to revalidate his qualifications.
20.In late 1990 he applied to AMSA, then the Department of Transport and Communications, for recognition of his overseas qualifications and the issue of a certificate of competency. Subsequently, by letter dated 29 August 1990 he was advised by the Principal Examiner of Engineers, Maritime Operations Division, of four available options for gaining validation and the procedures to be followed. Mr Duarte’s Liberian Chief Engineers certificate would require endorsement or have a supporting document specifically stating that it complied with a particular endorsement under Regulation 1/2 of the STCW and Regulations 111/2, 3 and 4.
21.Mr Duarte was advised by the Principal Examiner of Engineers Maritime Operations Division, Department of Transport and Communication in a letter dated 29 August 1990 that his Liberian engineering qualifications was not recognised for manning purposes on Australian ships. His qualifications and service was assessed and he was told that he could become eligible for the issue of an Australian engineer class 2 (motor) certificate when he produced his original UK second class 2 (motor) certificate as the results form Exn 45 which he provided was not acceptable. He must further meet the revalidation requirements for issue of the engineer class 2 certificate; provide medical fitness and pay the required fee. Mr Duarte was also advised that if he was unable to meet these conditions he was eligible for direct entry into the oral examination for the Engineer class 2 certificate which would be granted subject to his passing the oral examination, completing specialist training and meeting the other conditions.
22.Mr Duarte was further advised in the same letter that he would be eligible for direct entry into the engineer class1 (motor) oral examination when his Liberian chief engineer’s certificate was endorsed and he produced a supporting document stating that it complied with a particular endorsement under regulation 1/2 of the STCW Convention and in particular regulations 111/2,111/3 and 111/4 or he completed a further 15 months qualifying sea service while holding the UK second class certificate. If he could not meet these requirements, and provided he obtained the STCW endorsement on his Liberian certificate, he would be eligible for direct entry into the engineer class2 (Motor) oral examination and would qualify upon passing the oral examination and meeting the other requirements.
23.Mr Duarte claimed that the document “Recognition of Overseas Maritime Qualifications and Skills” required him to obtain only one revalidation and of the four options on offer he had chosen an oral examination. He was also advised to undertake a refresher course offered by the Sydney TAFE which he completed on 8 November 1990. In March 1991 on 4 June 1997 and in March 2003 Mr Duarte claimed that he revalidated his Liberian Chief Engineer licence with the appropriate endorsement and was told by AMSA that his application was in order. During 2001 and 2002 Mr Duarte attended the AMSA offices in Sydney and Newcastle and was advised to have his Liberian Chief Engineer’s certificate revalidated in order to obtain a certificate of competency. His Liberian certificate was re-issued in March 2003. Later when he presented his certificate and papers to AMSA Mr Duarte stated that he was informed that his Liberian certificate was no longer recognised and he would need to re-qualify as a watch-keeper.
24.Mr Duarte requested by faxed letter dated 22 February 2005 (with 15 pages of attachments) addressed to The Manager Marine Operations Ship Operations and Qualifications that AMSA give him special consideration and issue him with a recognised Chief Engineer’s certificate in view of his professional qualifications and long periods of service at sea and in the industry.
25.On 9 March 2005 AMSA advised Mr Duarte that he could not be given special consideration for the recognition of his Liberian Chief Engineers Certificate, because as previously advised, due to changes in the IMO STCW 78 as Amended Convention and Australian legislation (the Marine Orders) he would need to meet the requirements for the issue of an engineer watchkeeper certificate if he wished to obtain an Australian engineering certificate of competency. This letter was unclear because it stated “you meet the requirements for issue of a certificate as an engineer watchkeeper.” The word “must” was missing. Mr Duarte sought clarification from AMSA and the error was noted.
26.On 31 March 2005 Mr Duarte filed an application with the Administrative Appeals Tribunal (AAT) appealing AMSA’s previous decision not to issue an Engineer Class 1 certificate. He claimed that AMSA had not honoured its previous decision and that his experience since 1972 and other qualifications had been ignored, he was being treated as a new entrant and his employability in the industry would be severely affected unless his Liberian certificate was recognised. Mr Duarte was unable to appear before the AAT as he was overseas attending to his mother’s illness. (On 31 August 2005 Mr Duarte’s original application to the Tribunal was dismissed and the applicant did not seek reinstatement within 28 days from that date.)
27.On 16 May 2005 the Acting Manager Ship Operations and Qualifications, Maritime Operations at AMSA, wrote to Mr Duarte advising him that in accordance with the Marine Orders provision 5 (Review of Decisions) should he wish to have the previous decision reviewed he must make an application to the General Manager, Maritime Operations at AMSA and provide detailed information relating to the training, courses and examinations he had undertaken prior to receiving his Liberian marine engineers qualification and information on other certificates. Particularly in respect to a UK Engineer Class 2 certificate which the applicant had indicated that he held; other college courses and training completed relevant to seagoing engineering, recognition of other qualifications or exemptions received and copies of correspondence with AMSA relating to applications for qualifications and certified copies of original qualifications.
28.Mr Duarte was also advised that “failure to supply all relevant information may hinder the review process and that if he was unable to provide some of the items as listed he should state that in his review application and provide an explanation. He was further advised that the General Manager AMSA was required to respond to his request for a review within 28 days and Mr Duarte could request a statement of reasons for any decision that results, if still dissatisfied he could lodge an appeal with the AAT. It was further noted that neither AMSA nor the AAT could give further consideration to the original decision regarding Mr Duarte’s application for an AMSA certificate until he complied with the provisions of the Marine Orders outlined.
29.Mr Duarte claimed before the Tribunal that he started writing two letters dated 23 May 2005. A three page letter was sent and delivered on 29 June 2005 and a four page letter was first delivered around 4 August 2006 to the Manager AMSA. Mr Duarte sought a review of the adverse decision of 9 March 2005, pursuant to the Marine Orders provision 5.1.1 and the consent directions of the AAT made on 29 June 2005 of the decision made on 9 March 2005 refusing him an Engineer Certificate Class 1, or for AMSA to exercise its powers to waive requirements in the Marine Orders. Mr Duarte provided AMSA with additional information on his qualifications as requested in the AMSA letter dated 16 May 2005. AMSA subsequently submitted to the Tribunal that it did not receive this correspondence. (Mr Duarte stated before the Tribunal that these letters were re-delivered on two further occasions including as an attachment to his letter of 5 September 2007.)
30.On 4 August 2005, not having received a response from AMSA, Mr Duarte sent a further letter requesting a review of the decision of 9 March 2005 which he claimed to have initially made on (or about) 23 May 2005 and admitted before the Tribunal that this was probably the wrong date. No reply was received.
31.On 29 August 2005 Mr Duarte wrote to the Manager, Ship Qualifications and Certification to advise that due to his mother’s illness he was unable to meet the deadline for sending the material requested on 16 May 2005. He also advised that the “IEAust” has upgraded his membership and accepted his senior management experience and qualifications as an engineer to Technologist Fellow and Chartered Engineering Technologist (TFIE Aust, CengT).
32.On 19 September 2005 Mr Duarte wrote to AMSA about obtaining an engineer watchkeeper certificate of competency.
33.On 27 September 2005 Mr Yeung, an Examiner of Engineers Maritime Operations (East) for AMSA, wrote to Mr Duarte and advised that his qualifications were acceptable in workshop trade training, having met the initial training requirements for an engineer watchkeeper and completion of a short course on basic and advanced fire fighting and proficiency in survival craft rescue boats other than fast rescue craft. However, he required additional qualifications before attempting an oral examination including an AMSA approved medical first aid at sea course with an Australian college; an appropriate AMSA approved course of study for engineer watchkeeper with an Australian college and a further three months sea service on ships over 750kW in accordance with section 34 of the Maritime Orders. The Manager had determined this requirement in accordance with section 16.5 of the Marine Orders. The requirement to complete a Training Record Book for sea service was waived.
34.On 16 October 2005 Mr Duarte replied to Mr Yeung’s letter outlining his qualifications and sea service and sought a reduction in the specific requirements for obtaining an Australian certificate of competency.
35.On 24 October 2005 the Manager, Ship Operations and Qualifications replied and advised Mr Duarte that an extensive assessment of his qualifications and sea service had been carried out against the specific requirements of the applicable legislation and that additional items were required to be completed in order to qualify for a certificate of competency as an engineer watchkeeper (Motor). When Mr Duarte met those requirements then AMSA would duly consider his application for a relevant certificate of competency.
36.On 5 and 6 September 2007 Mr Duarte claimed that he sent a follow up request, by facsimile to AMSA, for a review of the 9 March 2005 decision and he also attached a copy of the letter allegedly dated 23 May 2005 addressed to Jeff Holden, with 19 pages of attachments. Mr Duarte claimed that he verified that this letter was received.
37.On 18 September 2007 Mr Duarte received a reply from the Manager, Ships Operations and Qualifications section of AMSA stating that they had checked the relevant files and had found no reference to having received Mr Duarte’s letter of 23 May 2005 or any reply. Despite this, there had been no changes to the STCW as Amended, Australian legislation, nor had AMSA changed its policy in respect to Mr Duarte obtaining an Australian certificate of competency. He must meet the requirements as previously advised.
38.On 19 September 2007 Mr Duarte requested an examination for his engineer watchkeeper certificate of competency.
39.On 15 October 2007 AMSA sent Mr Duarte a further letter rejecting his application for a STCW endorsement for his Engineer Class 3 certificate of competency. He was told to complete a further 12 weeks sea service on vessels of over 750 DWT and meet all requirements before re-applying and an AMSA endorsement would be issued.
40.On 20 November 2007 Mr Duarte wrote to the AAT applying under subsection 29(1) of the Act for a review of two decisions made by AMSA in relation to his application for an Engineer Class 3 certificate of competency. On 29 November 2007 the AAT wrote to AMSA advising it of the application and that on 6 November 2007 Mr Duarte had been requested by letter to identify more clearly why he believed that the Tribunal has power to review these decisions. Mr Duarte responded by letter dated 20 November 2007.
41.On 2 December 2007 Mr Duarte wrote to the AAT clarifying that he was seeking review of decisions by the AMSA in regard to applications for Engineer Class 1 and Class 2, an engineer watchkeeper certificate and STCW endorsement on a Engineer Class 3 certificate which he had received from Waterways (NSW Maritime). He also requested that his matter for hearing be listed after mid February 2008.
42.In February 2008 Mr Duarte wrote to the AAT noting that he was not satisfied with the outcome of his appeal in 2005 in accordance with the Marine Orders provision 5.2 and was lodging a new appeal following his earlier appeal to the Manager of AMSA.
43.On 8 March 2008 Mr Duarte wrote to the AAT restating much of his earlier complaint against AMSA regarding its refusal to make a concession in his case based upon his previous experience and qualifications and why he needed an Engineer Class 1 certificate to obtain employment and why a watchkeeper certificate would be a “waste of time” requiring additional sea time and courses suited to a new entrant not a person close to 60 years of age with 40 years engineering experience.
44.On 14 March 2008 Mr Duarte wrote to the Manager of AMSA advising that he had completed 11 weeks sea time and attached in support of his application his sea service history, testimonials, discharge certificates and a cheque for $185. Mr Duarte also referred to an earlier request for a review of the decision to refuse endorsement of his Class 1 Engineers certificate and implied that his request for a review was still alive. He contended that the original application was sent “on the date which the letter bears” namely 23 May 2005 (the letter which AMSA contends it did not receive) and if he did not receive a favourable determination he would submit to the AAT that by lapse of time the AMSA had effectively refused his application thus giving the AAT jurisdiction. Mr Duarte also stated that he did refresher courses in 1990/91 and 2002/3 and more recently. This should be acceptable instead of extra sea time. He also attended technical meetings of the IMarEST and Engineers Australia regularly.
45.On 14 March 2008 Mr Duarte wrote to the Manager AMSA advising that he had completed 11 weeks sea time and would undertake the remainder for qualification. He also attached a completed application form and discharge papers, testimonials and a cheque for $185 and asked for endorsement to his Engineers certificate Class 111 and watchkeeper certificate. He also referred to a further copy of his application for a review of his Class 1 endorsement or a Class 11 certificate which he previously sent. If unsuccessful he would submit to the AAT that AMSA had by lapse of time refused his application.
46.On 15 March 2008 Mr Duarte requested the AAT to give an extension of time for him to undertake an extra 3 months sea time as requested by AMSA.
47.On 16 April 2008 The AMSA Principal Qualifications Officer Engineering wrote to Mr Duarte with reference to his application for an AMSA STCW endorsement to his NSW Engineer Class 111 (Motor) certificate received on 19 September 2005. AMSA had assessed sea service at 10 weeks and 5 days of the 12 weeks required. Evidence was still required that Mr Duarte had completed the outstanding sea service on board a vessel of DWT 15,000 Tonnes and 9,800KW engine propulsion power.
48.On 30 May 2008 Mr Duarte wrote to the General Manager AMSA about his licence application so that he could work on coastal vessels. He outlined his qualifications and experience over past 40 years including four years in a marine engineering apprenticeship, approximately 12-13 years, on large foreign vessels and 6 or more years as a First Engineer (2nd under the STCW). He had completed the Ordinary nationals in electrical, electronics instrumentation and controls and the Higher nationals in Marine Engineering with mechanical and electrical (approx three years full time study) at South Tyneside Shields UK. He also completed a revalidation course and STCW 95 requirements in Sydney and Newcastle and attended the Higher Certificate/Advanced Diploma course in marine engineering.
49.Mr Duarte claimed that he had submitted these qualifications and experience to AMSA on three occasions since 2005 and had been given four options for obtaining his Class 1 or 2 certificates and given information to renew his licence which was incorrect. His engineering qualifications have been accepted by the IMarEST and also Engineers Australia. AMSA has discretionary powers under the Marine Orders but despite the skills shortage had not acted in his support.
50.On 11 June 2008 the Manager Ship Operations and Qualifications at AMSA replied to Mr Duarte’s undated fax enquiry about engineer qualifications. As previously advised Mr Duarte had a number of options available as previously explained to him and as the Marine orders had not been reissued since late 2004 “the advice you have received is still current.”
51.On 20 June 2008 Mr Duarte wrote to the AAT claiming that since his last appearance he had sent AMSA documents and letters for the third time but had not received a response regarding his application for a Class 1 certificate or a Class 11 certificate. He had been asked to complete the remaining 9 days sea time for a STCW endorsement on his engineer class 111 certificate when he had previously approximately 12 years experience on foreign vessels over 3000 kW. He sought a review by the AAT of the decision under the Navigation Act 1912 and the Marine Orders provision 5.2 requiring him to undertake an approved course (six months to a year in college) and start a watchkeeper certificate course. This ignored his qualifications in the UK and experience. He had finally received a STCW 95 endorsement on his Engineer Class 111 certificate. If he had received his Engineer Class 11 certificate he could have undertaken an oral examination to qualify for a Class 1 certificate.
52.Mr Duarte told the Tribunal that he is not currently employed on a permanent basis and his age, near 60 precludes him from extensive retraining to requalify for his marine engineering certificates. He claimed that he already holds extensive qualifications gained over many years in marine operations at various levels. He is the holder of a permanent full-time engineer ticket from Adsteam Harbour and the holder of a First Class Engineer of a Steam Ship Certificate of Competency and a STCW 95 Third Class Motor Certificate.
53.At the Tribunal’ hearing on 27 August 2008 Counsel for Mr Duarte advised that he was seeking the reinstatement of the earlier decision of Senior Member Walker so that the he could have a hearing on the merits of the issue before the Tribunal. The matter now before the Tribunal relates only to its having jurisdiction to entertain Mr Duarte’s application.
APPLICANT’S CONTENTIONS BEFORE THE TRIBUNAL
54.In his application dated 2 November 2007 Mr Duarte sought review by the Tribunal of AMSA decisions communicated by letters dated 18 September 2007 and 15 October 2007. The applicant recast his application in a submission dated 28 June 2008 and claimed that the correspondence relating to the “decisions” was dated 22 February 2005, on or about 17 September 2005 and in reply to a letter of 18 October 2005. At the Tribunal’s hearing on 27 August 2008 Counsel for Mr Duarte said that he was asking it to review under clause 5.2.2 the general manager’s decisions communicated by letters dated 18 September 2007, 15 October 2007 and 11 June 2008.
55.On 5 September 2007 Mr Duarte wrote to the Manager AMSA seeking a review of the decision by Captain Briggs made on 9 March 2005 and resent on 5 September 2007. On 18 September 2007 AMSA disputed receipt of the earlier letter but confirmed that there had been no changes to the International Convention nor had AMSA changed its policy in respect to Mr Duarte’s certificate of competency. On 14 March 2008 Mr Duarte claimed that he faxed AMSA seeking a review of the decision to reject his application for a class 1 or class 2 certificate.
56.On 11 June 2008 he was advised by Mr Eldon-Roberts that the General Manager Maritime Operations had asked him to reply to his recent undated fax inquiry and as previously advised, since the Marine Orders had not been reissued “the advice you received is still current.” In light of the earlier advice given to Mr Duarte on 24 October 2005 this meant that although AMSA had conducted an assessment of his qualifications against the specific requirements of the legislation he would be required to complete additional training in order to qualify for a certificate of competency as an engineer watchkeeper (Motor) prior to his request for a relevant certificate of competency being considered.
57.Mr Duarte’s contends that in view of his qualifications, AMSA should have used the discretionary powers available to it under the Marine Orders, provisions 6.2 and 6.3 to issue him with a Class 2 Marine Engineers certificate which would have enabled him to then re-qualify for an Engineer Class 1 certificate. Instead he had been informed by letter on 9 March 2005 and in subsequent correspondence that due to changes in the IMO STCW 78 as Amended Convention and Australian legislation (the Marine Orders) he would need to meet the requirements for the issue of an engineer watch-keeper certificate if he wished to obtain an Australian engineering certificate of competency.
58.The Tribunal was asked to review the decisions made by the General Manager of AMSA and communicated by letters dated 18 September 2007, 15 October 2007 and 11 June 2008 under provision 5.2.2 of the Marine Orders.
RESPONDENT’S CONTENTIONS
59.The main contention of AMSA was that Mr Duarte failed to identify any additional decision by the Authority which is subject to review by the Tribunal. A previous application had been dismissed on 31 August 2005 when he failed to establish jurisdiction. Further, the applicant failed to apply for a review of a decision at the relevant time which could have vested the Tribunal with jurisdiction. The legislative requirements for review are covered by the Marine Orders, which require that an application for review be made to the General Manager of AMSA. When Mr Duarte first raised his objections to the letter of 9 March 2005, in addition to the review of decisions, made under the Marine Orders, the Navigation (Orders) Regulations 1980 were in force, paragraph 3(a) stated that an application for review by the General Manager had to be lodged within 21 days of the day on which the original decision comes to the notice of the applicant, namely 31 August 2005. The right of review was extended to Mr Duarte in the proceedings which terminated on 31 August 2005, but he failed to avail himself of that opportunity and no subsequent correspondence can enliven an opportunity which no longer exists. Consequently Mr Duarte’s requests for review of the 9 March 2005 decision was out of time from 23 May 2005 and on each occasion thereafter.
60.In relation to the applicant’s claims regarding a STCW endorsement for his Engineer Class 3 certificate, as he has completed all the requirements for issue of the endorsement and as it has been issued there is no matter for the Tribunal to determine.
61.In relation to the applicant’s claim regarding an engineer watchkeeper certificate, this matter was not referred to in this current application to the Tribunal nor has he identified a decision which would be subject to review by the Tribunal.
TRIBUNAL’S DETERMINATIONS
62.The Tribunal has reviewed the correspondence by the General Manager of AMSA as communicated to the applicant on 18 September 2007, 15 October 2007 and 11 June 2008 and is satisfied that the Tribunal has jurisdiction in this matter as the General manager made decisions, as that word is defined in section 3 of the Administrative Appeals Tribunal Act 1975. He refused to give a certificate and/or refused to give consent to dispensing with completion of the additional training required to qualify which was within his powers under the Marine Orders provisions 6.2 and 6.3.
63.The Tribunal has not accepted AMSA’s claim that Mr Duarte failed to meet the requirements of clause 3A(3)(c) in the Navigation (Orders) Regulations 1980 as he failed to seek a review within 21 days of receipt. Subsequently, AMSA conceded that clause had been amended with the removal of paragraph 3(a) on 15 June 2006 and replaced with the Marine Order provision 5 which states that “If a manager makes a decision under this part, the person affected may apply to the general manager for review.” As there is no stipulated time limitation, the Tribunal is satisfied that when Order 3A(3)(c) was repealed an applicant would be entitled to look to the Marine Orders provision 5 as the basis for seeking a review of a decision.
64.In relation to Mr Duarte’s claims regarding a STCW endorsement for his Engineer Class 3 certificate, as he has completed all the requirements for issue of the endorsement and it has been issued there is no matter for the Tribunal to determine.
65.In relation to Mr Duarte’s claim regarding an engineer watchkeeper certificate, this matter was referred to in this current application (through subsequent correspondence) and the decision would be subject to review by the Tribunal.
66.The substantive application might now proceed. In the event of Mr Duarte not withdrawing his application within 14 days of this date AMSA is to lodge with the Tribunal and serve upon Mr Duarte the section 37 documents within 42 days of this date.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D Connolly AM, Member.
Signed: ................[sgd]................................................................
AssociateDates of Hearing 10 March, 23 June, 24 July and 27August 2008
Date of Decision 12 November 2008
Counsel for the Applicant Mr P E KingSolicitor for the Respondent Ms M Dean, Australian Maritime Safety Authority
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