Johnson v Chief Executive, Department of Employment, Economic Development and Innovation
[2010] QCAT 511
•18 October 2010
| CITATION: | Johnson v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 511 |
| PARTIES: | Bradley William Johnson |
| v | |
| Chief Executive, Department of Employment, Economic Development and Innovation |
| APPLICATION NUMBER: | FHR094-09 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 19 July 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | M Howard, Presiding Member P Stilgoe, Member P Wulf, Member |
| DELIVERED ON: | 18 October 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Respondent’s decision to amend Licence Number 17345 with boat mark FYVN to remove the L1 symbol is confirmed. |
| CATCHWORDS : | Fisheries- removal of L1fishery symbol from commercial fishing boat licence- where discrepancies in logbook data-Fisheries Act 1994 s 63. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Bradley William Johnson |
| RESPONDENT: | Chief Executive, Department of Employment, Economic Development and Innovation |
REASONS FOR DECISION
The Application
The applicant is the holder of commercial fishing boat licence 17345 with boat mark FYVN, which was endorsed until 7 October 2009 with an L1 fishery symbol. On that date, a delegate of the respondent made a decision under section 63 of the Fisheries Act 1994 (the Act), to amend the licence to remove the L1 fishery symbol. The respondent subsequently located information which had been submitted by the applicant and which had not been taken into account and reviewed its decision. It made another decision of 13 October 2009, which confirmed the decision of 7 October 2009 to remove the L1 fishery symbol. The effect of both decisions is identical, namely, to remove the L1 fishery symbol from the applicant’s licence.
The applicant appealed both decisions to remove the L1 fishery symbol on the basis that the removal of the symbol is contrary to the Act; manifestly unfair; and will cause him severe personal hardship. The appeal was filed in the Fisheries Tribunal. Effective from 1 December, 2009, the Fisheries Tribunal was abolished. Under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the Qld Civil and Administrative Tribunal (QCAT or the tribunal) must deal with the proceeding.
Applicable Law and Policy
Section 196(1) of the Act, as it was in force immediately before the Fisheries Tribunal was abolished, provided for a person whose interests were adversely affected to appeal a decision of the respondent to the Fisheries Tribunal on the grounds that the decision was contrary to the Act; that the decision was manifestly unfair; or that the decision will cause severe personal hardship to the appellant. Under the then section 196(2), a decision of the respondent about policy could not be appealed and the Fisheries Tribunal could not review the respondent’s decision to adopt a policy. Equivalent provisions are now reflected in section 185 of the amended Act with respect to the review of decisions of the respondent by QCAT.
The reviewable decisions were made under section 63 of the Act. The decisions were made in accordance with a written policy adopted by the Respondent on 18 July 2008 entitled ‘Policy for the Removal of Excess Fishing Capacity in Queensland’s Line, Crab, Beam Trawl and Eel Fisheries’ (the Policy). The objective of the Policy is to remove excess fishing capacity in the identified fisheries. Under the Policy, this objective is to be achieved by providing a decision-making process to amend commercial fishing licences to remove L1, C1, T5, T6, T7, T8, T9 and E fishery symbols if minimum fishing history criteria are not met. It provides for minimum levels of fishing ordinarily to be determined based on statistical returns (logbook records) which provide legally binding records of commercial fishing in Queensland waters filled in at the time of the catch and submitted to the respondent. The Policy provides that any logbook returns not submitted by the date of the release of the draft Policy on 19 May 2008, may need to be supported by corroborative documentation before they will be considered in the decision-making process.
Under the Policy, assessment criteria for minimum levels of fishing activity for the L1 Symbol are provided as follows:
(a)the holder has reported any catch under the L1 fishery symbol in any three of the periods from
(i)1 July 1999 to 30 June 2000;
(ii)1 July 2000 to 30 June 2001;
(iii)1 July 2001 to 30 June 2002;
(iv)1 July 2002 to 30 June 2003;
(v)1 July 2003 to 30 June 2004;
(vi)1 July 2004 to 30 June 2005;
(vii)1 July 2005 to 30 June 2006;
(viii)1 July 2006 to 30 June 2007; and
(b)the total catch for the period from 1 July 1999 to 30 June 2007 is 3,000 kg or more.
If the minimum commercial level of catch is not met, the Policy makes provision for special circumstances affecting the licence holder’s usual fishing pattern to be considered. The guidelines for the application of special circumstances (the Guidelines) acknowledge that licence holders might have specific reasons why they were unable to meet the minimum catch criteria. The Guidelines require decision-makers to decide whether a special circumstance warrants the requirements of the Policy being set aside and, if so, what criteria should be used in place of the Policy criteria. The Guidelines set out examples of types of special circumstances that may commonly arise, but these are not intended to be exhaustive. These types of special circumstances include:
a.logbook clarification – where supporting documents show that there are errors in the recording of catches in logbook records;
b.event – where no fishing activity was undertaken under any fishery symbol during a particular period because of a specific reason out of the control of the operator, such as illness and damage to or destruction of a boat attached to the licence;
c.recent entrant – where a licence holder has not met the entry criteria because he or she did not hold the licence or fishery symbol long enough to generate the required catch;
d.multi-endorsed and diversified fishing operations – where a licence holder has a consistent level of catch history for a fishery symbol, but has failed to meet the criteria because he or she relied upon operating in a number of fisheries;
e.other circumstances relevant to the L1 fishery – these include where holders of RQ and/or SM fisheries symbols can demonstrate reliance on the L1 symbol to access coral reef fin fish and/or Spanish mackerel; where catch history is recorded in less than three years during the criteria period but the catches were significantly high; where spotted mackerel were taken in the past by net and reliance on the L1 is demonstrated in order to continue to take them; and where trawl operators are able to demonstrate reliance on line caught product during certain periods;
f.other circumstances for all fisheries symbols – any other special circumstances that prevented a licence holder from meeting the required minimum commercial level during the criteria period.
Some Adjusted Criteria Guidelines are provided as guidance for situations in which special circumstances are demonstrated which warrant the provisions of the Policy being set aside. These include, for an event special circumstance, determining the period of the event and then for that period applying the higher of the catch taken during the same period in the year immediately before the event or the year immediately following the event, in effect allowing other fishing periods to replace the event period.
However, the Respondent must exercise a broad discretion under section 63 of the Act, which cannot be fettered by the Policy and Guidelines. It is fundamental that the exercise of a statutory discretion cannot be fettered by a policy: see, for example, Perder Investments v Lightowler; and [1] R v Queensland Fish Management AuthorityEx Parte Hewitt.[2] The respondent, and QCAT when it stands in its shoes in reviewing decisions, is required to take into account any other circumstances that may warrant the discretion being exercised not to remove the L1 fishery symbol.
[1] (1990) 25 FCR 150.
[2] [1993] 2 Qd R 201 at 204,206.
The Evidence
The evidence before the tribunal included the Appeal Book tendered by the respondent; a bundle of documents and copies of letters tendered by the applicant; a document from the applicant entitled submissions; and copies of logbook pages tendered by the applicant. Additionally, the applicant and his partner, Rosemary Gould, both gave oral evidence at the hearing.
The Applicant’s Arguments
10. Mr Johnson’s arguments are to the effect that the decisions are contrary to the Act; were manifestly unfair; and/or will cause him severe personal hardship because:
a.The Policy is inappropriate and unproductive and contrary to assertions made to fishers before log books were required about how log book information would be used;
b.having regard to the decision made by the Fisheries Tribunal in 1999 in Johnson v Chief Executive, Department of Primary Industries and Fisheries,[3] he has been denied natural justice as
[3] FT 106.
i.the earlier Fisheries Tribunal orders were ignored or rescinded; and
ii.His restitution is being taken back; and/or
c.The decision is contrary to the Policy due to log books not being taken into account and/or the respondent’s logbook data being incorrect; and/or
d.He has a variety of other special circumstances which have not been taken into account; and/or
e.He has a $50,000 primary fishing vessel which is of no use without the L1 symbol; and/or
f.Of stress caused to him.
Consideration of Issues Raised by the Applicant
The Policy
11. The material relied upon by Mr Johnson, included information that before the introduction of logbooks, he and other fishers were told by departmental representatives that the logbooks would not be used against fishers. Specifically, logbooks would not be used in determining catch quotas.
12. From time to time, the respondent, consistent with its legislative duties provided by the Act to manage Queensland fisheries, adopts Policies and Plans in the management of Queensland fisheries.[4] The Policy has been adopted by the respondent lawfully under the Act. The respondent is entitled to adopt policies and QCAT does not have the power to review policies adopted by the respondent.
[4] See Fisheries Act 1994, especially sections 3, 3A, 20, 20A, and Part 5.
Previous Fisheries Tribunal Decision
13. Mr Johnson argued that because of the decision of the Fisheries Tribunal in 1999, he should always maintain his L1 symbol. An unsealed copy of an order from that proceeding was provided in the applicant’s documents.[5] The Fisheries Tribunal made orders that the applicant be issued with commercial fishing boat licences with various fishery symbols attached including L1 symbols. Mr Johnson told the tribunal about the long history of the dispute with the respondent dating from 1984 prior to the 1999 order, which returned to him entitlements that had been removed many years before. He submitted that removing the L1 symbol was to effectively take away his restitution and rescind the 1999 Fisheries Tribunal orders. He also referred to a subsequent proceeding in the Fisheries Tribunal between himself and the respondent relating to his fishing licences.[6]
[5] See Exhibit B, Fisheries Appeal FT106 documents. The orders were also set out in a subsequent decision of the Fisheries Tribunal in Johnson v Chief Executive, Department of Primary Industries and Fisheries FT 564, 627.
[6] See also Exhibit B and Johnson v Chief Executive, Department of Primary Industries and Fisheries FT 564, 627 regarding orders made by the Fishereis Tribunal on 22 July 2005.
14. The tribunal accepts that Mr Johnson has endured some protracted difficulties in relation to his fishing licences over the years. However, QCAT is not reviewing the decision made by the Fisheries Tribunal, nor does that previous decision provide a fetter on the manner in which QCAT determines the review currently before it. This tribunal is not revoking the previous orders, nor interfering with any restitution. QCAT is reviewing the decisions of 7 October and 13 October 2009 to remove the L1 fishery symbol.
15. It is established as a principle of law that a licence will usually be terminable upon giving a reasonable notice.[7] Section 63 of the Act specifically provides for amendments to be made to a licence. Therefore, the applicant only held the L1 fishery symbol for so long as he complied with the conditions imposed on the licence and subject to the respondent’s ability to remove it under the Act.
[7] For example, see Winter Garden Theatre (London) Ltd v Millennium Production Ltd [1948] AC 173, 195; Queensland v Townsville Prison Employees Sporting Club Inc [2006} QSC 233.
The log book data
16. Logbook clarification is one type of special circumstance provided for in the Guidelines.
17. When assessing Mr Johnson’s licence, the relevant decision-maker was required to consider his catch history against the Policy. However, the Guidelines specify that if the records held by the respondent do not match an operator’s catch records, the applicant may provide documentation to demonstrate logbook errors, such as copies of logbooks, unloading dockets and information used to prepare taxation returns. The Adjusted Critieria Guidelines for logbook clarification suggest that a decision-maker would generally only accept catches in accordance with the Policy. However, data entry error by the respondent when entering data from submitted logbook records is suggested as an example of when special circumstances may be accepted. This then allows the corrected figures to be taken into account in determining whether an applicant meets the minimum catch history criteria for the fishery.
18. On 1 August 2008, the respondent sent Mr Johnson a show cause letter with respect to the L1 fishery. Mr Johnson was advised in a table contained on page 3 of that letter[8] that the respondent held a record of nil catch history for the L1 symbol.
[8] Exhibit A: Appeal Book - Page 4 through 7
19. On 24 August 2008, the applicant provided the respondent with a letter in response to the show cause notice attaching copies of pages 1 to 4 from Log Book 0541 that he believed demonstrated his use of the L1 symbol. No supporting documentation was provided. The applicant’s correspondence suggests that there must have been a computer error. These records were not in the possession of the delegated decision-maker when the decision of 7 October was made. However, when the additional information was presented to her, she reviewed her decision on 13 October 2009.
20. The decision dated 13 October 2009 refers to only page 1 of logbook 0541 having been received by the respondent prior to 19 May 2008 and entered into the database. However, as the catches were taken in the L2/L3 area, the respondent considered that they did not relate to the L1 fishery. The decision further advises that pages 2-4 of logbook 0541 were not received prior to 19 May 2008 and were therefore not relevant under the Policy. The decision further advises the applicant that in any event that the catches were in two financial years only, not the required three, and that some of the dates for which catch was recorded do not exist. For these reasons, the delegated decision-maker did not set aside the Policy. The delegate confirmed the decision of 7 October 2009 on 13 October 2009 to remove the L1 symbol.
21. According to calculations submitted by Mr Johnson with his bundle of documents relied upon, he had line fishing catch history as follows:
2001/02 - 85.5kg;
2004/05 - 376kg; and
2006/07 - 3363kg.
However, the applicant did not dispute that the 85.5kg reported on page 1 of Logbook 0541 related to the L2/L3 fishery.
22. In his submissions,[9] Mr Johnson told the tribunal that the respondent had lost the logbook records on two occasions and that he had done what he was required to do by posting them. At the hearing, Ms Gould told the tribunal that she completed the logbooks from dockets or from what Mr Johnson had caught. She said that she usually completed them contemporaneously, and would have done so with reef fish but that during the mullet fishing season sometimes she had to wait 2 to 3 weeks for the dockets. She was unable to recollect when she had first sent the logbook records pages 2-4 of 0541 to the respondent, although she asserted that she ‘would’ have sent them at the end of the month or a few months later. She said the 2005 record (page 2) ‘would have been’ sent separately from the 2007 record (page 3 and 4). Subsequent oral evidence of Ms Gould seemed to be to the effect that that the pages were sent in response to the show cause letter, admitting that she and Mr Johnson were a bit undisciplined at times about sending logbook records in to the respondent. Notwithstanding this evidence, the applicant’s logbook records for the crab and net fisheries were apparently kept up to date with the respondent.
[9] Exhibit CC, Page 4.
23. The tribunal considered the available logbook records attached to Mr Johnson’s letter in response to the show cause notice in the Appeal Book. Also, the Applicant tendered at the hearing, copies of further logbook information. No other supporting documentation for the logbook entries, such as unloading dockets, was provided. At the conclusion of the hearing, the respondent was directed to provide QCAT with the original logbook pages held by it for the applicant’s fishing activities during the relevant period. In all, the QCAT reviewed the following logbook data:
Logbook 0961 page 6 (12/1/02-27/4/02);
Logbook 2529 pages 13 (1/3/05-26/04/05); 27 (10/1/07-7/02/07) 28 (12/2/07-13/03/07); 29 (14/3/07-17/04/07); 30 (18/4/07-14/6/07); and 31 (21/6/07-30/9/07); and
Logbook 0541 pages 1 (14/03/02-21/03/02); 2 (16/04/05-23/4/05); 3 (30/1/07-8/05/07); and 4 (22/5/07- 19/6/07).
Following the conclusion of the hearing, the respondent provided copies of original logbook pages held for the applicant’s fishing activities as follows:
Logbook 2529 pages 13, 27, 28, 29, 30 and 31; and
Logbook 0541 page 1.
24. Mr Johnson seemed to acknowledge at hearing that he was predominantly a net fisher and crabber. The logbook evidence was consistent with this proposition. In a letter dated 24 August 2008[10] to the respondent following the show cause notice regarding the C1 fishery, he states that he spends June, July and August in the K8 net fishery. Also, in his written submissions,[11] he refers to spending May each year in 2005, 2006 and 2007, preparing his fishing gear for mullet in the K8 fishery. Page 13 of logbook 2529 contains a comment to the effect that he did not fish in May 2005, while getting gear ready for the K8 fishery. Page 31 of logbook 2529 contains a notation to the effect that June July and August 2007 were spent ‘full-time fishing and searching’ on the Noosa north shore in the K8 fishery.
[10] Exhibit B.
[11] Exhibit C, Page 6.
25. The applicant’s logbooks suggest that there was a large catch recorded within the L1 fishery, especially during the period 30 May 2007 to 19 June 2007. This is contrary to other evidence of the applicant to the effect that during May he prepared his equipment for the mullet season. It seems improbable therefore that in 2007 while he commenced catching mullet from 7 June 2007,[12] his L1 catch history was high during May and June 2007.[13]
[12] Log Book Page 30 of 2529
[13] Log Book 0541 Page
26. Logbook Page 3 of 0541 and Log Book Page 27 of 2529, on 30 January 2007 appear to indicate that the applicant:
a.Set and retrieved 20 pots within area V34 for 24 Blue Swimmer Crabs (an average catch for the relevant page of the log book);
b.Undertook tunnel netting in the same location for 18kg of bream; and
c.Undertook fishing in the L1 fishery within area W33 and caught a considerable quantity of fish (approximately 203kg).
27. In oral evidence, although not about this particular date, Mr Johnson said that line fishing was done overnight at times and that his practice was to set his pots on the way out at Noosa and pick them up on his way back, or the next day. However, the tribunal considers undertaking of the three activities within a 24 hour period improbable.
28. Logbook Page 3 of 0541 lists catch on the dates of 29 and 30 February 2007. No such dates exist. In oral evidence, Rosemary Gould told QCAT that the dates must have been the 22 and 23 February and that it must have been the last week in the month as the applicant used to do two-day trips.
29. In relation to an apparent significant change to his fishing habits to suddenly undertaken considerable L1 fishing in 2007, Mr Johnson’s explanation for the anomaly was vague and to the effect that it was probably because of the weather and because the fish were there at that time.
30. Log books for the net and crab fishery were apparently submitted to the respondent in a timely manner. However, according to the respondent’s records copies of the logbook records pages 2 to 4 of 0541 were not received until after the show cause notice. The applicant now asserts that the respondent has lost them, it seems, twice. Rosemary Gould’s evidence about whether they were sent prior to the 24 August 2008 is contradictory and equivocal. On the balance of probabilities, the tribunal finds that they were not sent to the respondent prior to 24 August 2008.
31. Further, the apparent anomalies identified by the tribunal raise concerns about the authenticity of Log Book Pages 3 and 4 of 0541. On the basis of its assessment of the logbooks and the concerns identified, and the lack of any supporting documentation to verify the logbook records, the tribunal does not, on the balance of probabilities, accept the authenticity of the log books. The tribunal does not accept that there was log book error in the data held by the respondent, at the commencement of the review nor that the respondent has lost the log book records as alleged by the applicant. Accordingly, the tribunal does not find that there is a basis to set the Policy aside under the Guidelines for special circumstances relating to logbook clarification.
Other special circumstances
32. A variety of other special circumstances arguments were raised by the applicant in the review.
Event Special Circumstance
33. Mr Johnson raised two events as bases for special circumstances, namely, the delay in being given back his fishing licence by the respondent following the 1999 decision of the Fisheries Tribunal, resulting in him not having the licence until February 2000, and then requiring time to prepare to commence fishing until early May 2000; and that he was unable to fish for eight months from about October 2000 to April 2001 as a result of a thumb injury and complications arising from it. He argues that both of these events have constrained his ability to meet the criteria provided for in the Policy, effectively giving him only six of eight years to accumulate catch history.
34. QCAT considered the argument that the applicant did not have a licence following the Fisheries Tribunals’ orders until February 2000 and could not fish until May 2000. QCAT is satisfied that the applicant satisfies the event special circumstance with respect to this event. However, under the Guidelines this would usually allow the higher of the L1 catch in the preceding annual period or the subsequent annual period to be taken into account. In neither of these years did Mr Johnson have recorded catch. Indeed, QCAT has not accepted that he has L1 catch in any other relevant period. Therefore QCAT is not satisfied that this special circumstance warrants the requirements of the Policy being set aside.
35. In relation to the period of his injury, the applicant relied upon a decision of the Fisheries Tribunal in Riys –v- Chief Executive, Department of Primary Industries and Fisheries[14]In the case of Mr Riys, he adduced medical evidence to the Fisheries Tribunal which showed that during numerous years he was unable to fish in the C1 fishery as a result of the need to have surgery for the reconstruction of both shoulders on separate occasions and other matters that made it impossible for him to undertake crabbing. Based on his history in the fishery, the respondent consented to allowing Mr Riys to retain his C1 symbol based on the new evidence and this is the basis of the decision.
[14] FT759
36. While the tribunal had the evidence of the applicant and his submissions, there was no corroborative evidence, such as medical reports. However, the respondent did not challenge the applicant on this issue. The tribunal accepts Mr Johnson’s evidence and it is satisfied that Mr Johnson has an event special circumstance on the basis of his thumb injury. However, again, under the Guidelines this would usually allow the higher of the L1 catch in the preceding annual period or the subsequent annual period to be taken into account. In neither of these years does Mr Johnson have recorded catch. Indeed, the tribunal has not accepted that he has L1 catch in any other relevant period. Therefore the tribunal is not satisfied that this special circumstance warrants the requirements of the Policy being set aside.
Recent Entrant
37. Mr Johnson also argued that he was a recent entrant into the L1 fishery and therefore should be availed of the recent entrant special circumstance as a result of his regaining his licence. The tribunal notes that the decision of the Fisheries Tribunal occurred in the initial 12 month period within which the Policy commenced. Accordingly, the applicant had seven other periods in which to accumulate catch history in the L1 fishery. The tribunal therefore finds that Mr Johnson was not a recent entrant.
Multi-Endorsed and Diversified Fishing Operation
38. Mr Johnson also argued that he was a multi endorsed and diversified fisher and that this should allow him to keep his L1 symbol. For the multi- endorsed and diversified special circumstances criteria to be fulfilled, a licence holder is required to have consistent level of catch throughout all years relevant under the Policy. In this case, Mr Johnson has not demonstrated reliance on the L1 fishery symbol. Even if his log books 0541 pages 3 and 4 had been accepted as accurate, and the tribunal has not accepted them as accurate, it seems that Mr Johnson only suggests that he used the L1 symbol during two of the relevant periods listed under the Policy. This would not be sufficient to demonstrate consistent catch. In the circumstances, the tribunal does not find that Mr Johnson operates a multi-endorsed and diversified operation in the L1 fishery as he cannot demonstrate a consistent catch, and indeed, does not assert one.
Other Circumstances
Severe personal hardship
39. Mr Johnson indicated that he would suffer severe personal hardship as a result of losing his L1 symbol because of his vessel. Mr Johnson’s submissions discuss a boat worth approximately $50,000.00 which he says he has for line fishing. However, there was no supporting evidence to corroborate the purchase or the cost of the boat and there was no evidence before QCAT to indicate that this boat was solely for the purposes of fishing in the L1 fishery. The Notice of Appeal filed by the applicant also refers to the boat as being owned by Mr Johnson since 2000.
40. The tribunal considers it improbable that Mr Johnson purchased a vessel worth $50,000.00 solely for the purpose of fishing in the L1 fishery and yet has subsequently not pursued fishing activities utilising his L1 symbol. According to his log books, the applicant caught on the L1 fishery symbol in only two periods of the Policy. The log books have not been accepted by the tribunal as sufficient to support a logbook clarification special circumstance. However, even if Mr Johnson’s assertions had been accepted about the L1 fishing history, he could not demonstrate financial reliance on the catch in these circumstances.
41. Mr Johnson relied on Savige –v- Chief Executive, Department of Primary Industries and Fisheries (Savige).[15] However, there is a significant distinction between that case and the current matter. In Savige, the applicants, a father and son were in a business partnership together. Both did not have enough catch to satisfy the policy for their catch history. However, the applicants provided the Fisheries Tribunal with evidence that as a result of changes in their fishing area, they intended to diversify into the L1 fishery. They provided the Fisheries Tribunal with evidence that they had purchased not only a boat at considerable expense but had also purchased other equipment. In that matter, the Fisheries Tribunal agreed to allow Mr Savige Snr to retain his L1 symbol as Mr Savige Jr was happy to continue to work in a business partnership with his father and accept the removal of his licence.
[15] FT749, 750
42. Further, Mr Johnson referred to stress as a basis for hardship. The tribunal had no evidence to support an argument that the loss of the L1 symbol would cause additional stress to the applicant given the limited use of the L1 symbol. The tribunal does not accept that there will be severe personal hardship as a result of the removal of the L1 symbol.
43. It remains to be considered whether there is any other special circumstance that prevented Mr Johnson from meeting the criteria during the relevant period or whether there are any other circumstances which warrant the exercise of the broad discretion under s 63 of the Act not to remove the L1 symbol. The tribunal was unable to identify any other special circumstance which prevented Mr Johnson from meeting the criteria, or any other circumstance which would warrant the exercise of the discretion not to remove the symbol.
44. Accordingly, the tribunal is not satisfied that the decision was contrary to the Act; manifestly unfair; or that it will cause the applicant severe personal hardship.
45. Accordingly, the respondent’s decision to amend primary commercial boat licence Number 17345 with boat mark FYVN to remove the L1 symbol is confirmed.
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