Guy Forsyth and Chief Executive Officer of Customs
[2013] AATA 793
[2013] AATA 793
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4657
Re
Guy Forsyth
APPLICANT
And
Chief Executive Officer of Customs
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 6 November 2013 Date of written reasons 8 November 2013 Place Canberra No jurisdiction.
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Mr S. Webb, Member
CUSTOMS & EXCISE – jurisdiction – application for review of decision to impose duty - payment of duty on importation – not established that duty paid under protest - application for refund of duty – no decision made in respect of the application for refund – no jurisdiction
Customs Act 1901, s 163, 167, 237GA
Customs Regulations 1926, r 126, 127, 128, 128AA
Re Azco Overseas Sales Pty Limited and the Collector of Customs for New South Wales [1981] N80/71
REASONS FOR DECISION
Mr S. Webb, Member
8 November 2013
As will appear, I heard this matter on 25 October 2013 and 6 November 2013. At the conclusion of the hearing I gave a decision attended by oral reasons. Subsequently, Mr Forsyth asked a question about the reasoning process and the words of the decision. For abundant clarity, it is desirable, therefore, to set out my reasons in writing.
Guy Forsyth purchased four bottles of alcoholic beverages duty free prior to returning to Australia. On arrival he was charged an amount of duty on the basis that the four bottles exceed the duty free threshold in respect of alcohol. Mr Forsyth cavilled with this. Precisely what occurred between Mr Forsyth and the officials of the Australian Customs Service (Customs) with whom he was dealing at Sydney Airport on that day is a matter of controversy. Suffice to say, there was a delay and Mr Forsyth’s onward travel arrangements were interrupted. In the result, Mr Forsyth paid the duty before proceeding on his way.
Subsequently, Mr Forsyth engaged in a number of communications with Customs, contesting the imposition of duty, seeking a refund and enquiring about his review options.
The information he was provided is far from clear in respect of Mr Forsyth’s options for challenging the decision to impose duty on the merits and the process to be followed when seeking a refund or remission of the duty paid. Generally, the manner in which Customs dealt with his case is somewhat perplexing, and I can well understand Mr Forsyth’s apparent consternation and frustration in his efforts to have this matter properly addressed.
After much to-ing and fro-ing, on 16 September 2013, Mr Forsyth lodged an application for review in the Tribunal to which he attached –
(a)a Notice of Assessment Paid Assessment – Duty and Indirect Tax dated 27 March 2013 (the Notice), specifying Customs duty of $117.80 and assessed Goods and Services Tax of $18.28 in respect of four bottles containing alcohol; and
(b)a letter signed by Mr Forsyth and addressed to “Australian Customs” dated 5 April 2013, setting out grounds on which he challenged the Notice.
The application raised a question about the Tribunal’s jurisdiction. On 19 September 2013, the Tribunal sent Mr Forsyth a letter asking him to show that the decision, subject to his application, is able to be reviewed by the Tribunal.
On 10 October 2013, Mr Forsyth informed the Tribunal, by email, that the Tribunal has jurisdiction under s 163 and s 167 of the Customs Act 1901 (the Act), asserting that –
“In relation to s.163 it is my contention that an application has been made on two occasions for a refund of the duty under s 41 of the regulations to the Customs Act and several applications have been made in writing. Evidence will be adduced that the payment of duty was made under protest and that this aspect is reviewable by the AAT.”
The matter came on for hearing by telephone before me on 25 October 2013.
At hearing, Mr Forsyth referred to a written application he lodged with Customs on 3 June 2013 for a refund of the duty paid. He told me that he had a copy of this document, but he would need time to file it with the Tribunal. Customs denied receiving such a document.
In light of this, I stood the hearing over to 6 November 2013 to allow Mr Forsyth to file the document and for Customs to check its records and holdings.
Prior to resumption, on 28 October 2013, Mr Forsyth filed the application he previously referred to. It comprises a covering letter dated 3 June 2013 (unsigned) and a completed and signed, but not dated, form – Application for Refund of Duty for goods imported under item 41E of Schedule 4 to the Customs Tariff Act 1995.
On 29 October 2013, Customs filed, by two emails, written submissions and several documents –
(a)CEO Instrument of Approval No. 14 of 2012 and related Statements in respect of the attached ‘incoming passenger card’ (I note in passing that this approved form requires an incoming passenger to declare whether or not he or she is bringing into Australia “2. More than 2250ml of alcohol…?”);
(b)a letter from Robyn Miller, Customs National Manager, Passenger Policy and Practice, to the Commonwealth Ombudsman, dated 17 July 2013, in respect of Commonwealth Ombudsman Investigation 2013-300807 regarding a complaint by Mr Forsyth about the duty charged on alcoholic beverages imported into Australia (I note that this document sets out in tabular form communications between Mr Forsyth and Customs between 27 March and 12 June 2013, referring to attachments A to M);
(c)attachments A to M, albeit not marked as such (some of which I will return to shortly);
(d)a copy of the incoming passenger card completed by Mr Forsyth on 27 March 2013; and
(e)an extract of Part II of the Schedule of Concessional Instruments, setting out By-law 1300953, Item 5 under the Customs Tariff Act 1995.
On resumption of the hearing, Customs conceded that Mr Forsyth’s 3 June 2013 application for a refund had been received by Customs, effectively withdrawing one ground of resistance to the assertion of jurisdiction. This document, however, is notably absent from the table of communications set out in and attached to Ms Miller’s 17 July 2013 letter to the Commonwealth Ombudsman. No explanation has been given for this omission.
Customs also retreated from its earlier assertion that Mr Forsyth used an incorrect form when making his request for a refund of duty on 3 June 2013, conceding that no application form was required as regulation 128AA of the Customs Regulation 1926 (the Regulations) applies in the particular circumstances. I simply note that the circumstances in which a person may be entitled to a refund or remission of duty under s 163 of the Act are prescribed in regulation 126. The manner in which an application for a refund may be made, including circumstances where a person is entitled to a refund without making an application, or where no application fee is payable, are also prescribed in regulations. It is in this regard that regulation 128AA may be relevant. Customs’ concession that this regulation applies in Mr Forsyth’s case means that, subject to meeting the preconditioning criteria, he will be entitled to a refund of the duty paid without any need to make an application. If it does not apply, the application requirements of regulation 128 must be satisfied. Whether the form he lodged on 3 June 2013 complies, strictly, with this regulation is moot. But this jurisdictional point was not pressed and, in light of the concession made (which I accept is correct), it is not necessary for me to address it.
The central plank of Customs’ resistance to the jurisdiction asserted by Mr Forsyth is that it is not presently established that he paid the duty ‘through manifest error of fact or patent misconception of the law’. The consequence of this, so the argument goes, is that he is not within the terms of regulations 126(1)(e) or 128AA(1)(b) and for that reason the Tribunal’s jurisdiction is not enlivened.
I reject this argument as the issue of whether Mr Forsyth paid duty through manifest error of fact or patent misconception of law is a prescribed determinant of his entitlement for a refund or remission of duty under s 163(1) of the Act. It is a matter for evidence and consideration on the merits in review, rather than firm ground on which to resist the assertion of jurisdiction.
Mr Forsyth proceeded on two fronts. He argued that a decision had been made under s 163 of the Act, either by Custom’s refusal to provide a refund as evidenced by the communications to which reference has been made or, if he fails on that point, then by the author of the submissions filed by Customs on 29 October 2013 – James Millea.
Secondly, Mr Forsyth ventilated issues relating to jurisdiction in relation to a decision under s 167 of the Act. In the course of the hearing, however, he conceded that this point is not sustainable.
The Tribunal’s jurisdiction is conferred by legislation – it does not exercise power at large. In respect of the Act, jurisdiction is conferred by s 273GA to review certain decisions. Mr Forsyth’s application is for review of a decision to impose duty on 27 March 2013, as conveyed by the Notice of Charge. It is quite clear that this is not a decision within the terms of s 273GA.
Mr Forsyth asserts jurisdiction in respect to the following sections –
(a)s 273GA(1)(haaa) – ‘a decision of a Collector under section 163 in relation to an application for a refund, rebate or remission of duty’; and
(b)s 273GA(2) – ‘[w]here a dispute referred to in subsection 167(1) has arisen and the owner of the goods has, in accordance with that subsection, paid under protest the sum demanded by the Collector, an application may be made to the Tribunal for review of the decision to make that demand and of any other decision forming part of the process of making, or leading up to the making of, that first-mentioned decision’.
It is important to note that under s 273GA(8) the word ‘decision’ has the same meaning as in the Administrative Appeals Tribunal Act 1975 (the AAT Act). That meaning is as follows –
3 Interpretation
…
(3) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing.
Having carefully examined the documents filed by the parties, and the communications between Mr Forsyth and Customs in particular, I am satisfied that none of those documents form a ‘decision’ for the purposes of s 163 or s 167 of the Customs Act.
The letter from Customs dated 10 April 2013 provides information and refers Mr Forsyth to the Australian Taxation Office website for “[f]urther details about an individual’s right for review”. This letter does not convey a decision of any kind in respect of the refund of duty. Email communications from Customs officers to Mr Forsyth on 10 and 25 April 2013 provide information, but again no decision of any kind is conveyed in respect of a refund of duty. The same can be said of the email from Noel Hamilton of Customs to Mr Forsyth on 1 May 2013 – this document attached a Guide for Travellers.
The letter dated 3 May 2013 from Kristen Reeson, Acting Director, Passenger Policy to Mr Forsyth provides information and offers the following suggestion –
“Should you wish to dispute the payment of duty as paid ‘under protest’ with the Administrative Appeals Tribunal, you are invited to do so within six (6) months of the payment.”
I will return to this point shortly, but the letter does not convey a decision of any kind in respect of the refund of duty.
A further letter dated 22 May 2013 from Ms Reeson states –
“The circumstances regarding your experience at Sydney Airport on 27 March as described in your correspondence throughout April and May have been reviewed by representatives of Australian Customs and Border Protection Service Airport Operations Sydney, Import/Export Policy, Tariff Policy and Passenger Policy sections in Canberra.
Our investigations and review of the legislative interpretation and policy guidance provided to all Australian Customs and Border Protection Service officers, determined that in the circumstances described, the concession limit was exceeded and the Australian Customs and Border Protection Service was legally bound to charge the applicable duty on the entire importation.
The officers involved in reviewing your complaint have considered all avenues available to assist with a positive outcome however our legislative restrictions preclude, in this case, reimbursing your funds.
We have answered all questions in accordance with the legislation and policy and regretfully, we are unable to resolve this matter. You have identified that you would like to formally lodge an application for further review with the Administrative Appeals Tribunal (AAT) who will independently review our administrative decision. The AAT website is >
There are a number of things to say about this letter. Firstly, as can be seen, it refers to a legislative preclusion on reimbursing the duty Mr Forsyth paid and it refers to an administrative decision. Unfortunately, the letter does not identify that purported decision with precision, by reference to a date or a communication to Mr Forsyth. Secondly, the letter does not purport to make a decision in its terms, it merely represents what is said to have been done. Thirdly, pointing Mr Forsyth to the Tribunal does not mean that the Tribunal has jurisdiction to review the administrative decision referred to. And fourthly, it is not presently established that Mr Forsyth understood this letter to be a decision refusing to refund the duty paid. He did not refer to this letter in his application to the Tribunal – his application expressly refers to a decision on 27 March 2013, the day on which the import duty was imposed at the border. I am satisfied that this letter does not satisfy the requirements of a ‘decision’ under s 163 of the Act.
On 3 June 2013, Mr Forsyth made a formal application for a refund of duty. On that day he also sought further information from Customs about review processes as “… the fee to commence proceedings [in the AAT] for this matter significantly exceeds the claim”.
On 12 June 2013, Customs sent Mr Forsyth further information, by email, explaining that”… your internal review options have been exhausted”.
When questioned about this history in the hearing, Customs was not able to point to a decision in respect of Mr Forsyth’s claim for refund of the duty he paid on 27 March 2013 under s 163 of the Act. Furthermore, Customs made the rather startling, but correct, concession that no decision had yet been made in response to Mr Forsyth’s application for a refund of duty on 3 June 2013. This being so, Customs gave an undertaking to make a decision addressing the claim within 28 days.
Considering all of this, I am satisfied that no decision meeting the statutory requirements of s 163 (with reference to the broad meaning of ‘decision’ under s 3(3) of the AAT Act) has yet been made. Without a decision of that kind being the subject of an application for review, the Tribunal’s jurisdiction under s 273GA(1)(haaa) is not enlivened. Mr Forsyth’s application does not satisfy that test, and the Tribunal has no jurisdiction to review the decision to impose and collect duty from him on 27 March 2013.
It is appropriate to observe that the Tribunal is not seized of jurisdiction under s 273GA(2) as it is not presently established that the duty Mr Forsyth paid on 27 March 2013, was paid under protest. There are specific requirements set out in s 167(3), (3A) and (4) of the Act that are mandatory and must be satisfied before the Tribunal’s jurisdiction on this point is enlivened. Among them is the requirement that action to recover is commenced within six months of payment. These requirements have been strictly interpreted and applied in previous cases[1]. I see no reason to depart from this approach here. I am satisfied that Mr Forsyth did not comply with those requirements, insofar as he did not commence action to recover in the Tribunal within six months of payment, and he did not provide Customs with a signed notice containing the words ‘paid under protest’, setting out the grounds on which the protest is made, within seven days of making the payment. That aside, Mr Forsyth conceded the jurisdictional point in respect of s 167 during the hearing.
[1] See Re Azco Overseas Sales Pty Limited and the Collector of Customs for New South Wales [1981] N80/71, for example.
It follows that there is no foundation to the assertion of jurisdiction.
Decision
The Tribunal has no jurisdiction in respect of the application lodged by Mr Forsyth on 16 September 2013.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
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Associate
Dated 8 November 2013
Dates of hearing 25 October 2013 and 6 November 2013 Applicant In person Advocate for the Respondent James Millea and Rebecca Azzopardi Solicitors for the Respondent Legal Services Branch, Australian Customs and Border Protection Service
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