Kumar and Australian Maritime Safety Authority

[2007] AATA 1478

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1478

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0827

GENERAL ADMINISTRATIVE DIVISION		)
Re		SRINIVASAN KUMAR

Applicant

And AUSTRALIAN MARITIME SAFETY AUTHORITY

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date1 June 2007

PlaceCairns  

Decision The decision under review is affirmed.

..............................................

Deputy President

CATCHWORDS

MARITIME – certificate of competency as Engineer Class 1 – statutory requirements – earlier statutory regime recognised English qualification as Australian equivalent – current statutory regime does not recognise English qualification as Australian equivalent – decision under review affirmed

Marine Orders Part 3: Seagoing Qualifications, Issue 6 (Order No. 8 of 2004) – Division 6, Provision 32

International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (1978)

Navigation Act 1912

REASONS FOR DECISION

1 June 2007 Deputy President P E Hack SC    

1.This is an application by Mr Sriniversan Kumar. He seeks to review a decision made by the General Manager of the respondent, the Australian Maritime Safety Authority, on 5 March 2007. By that decision the respondent confirmed an earlier decision that Mr Kumar did not meet the statutory requirements established under Marine Orders Part 3, the issue of Australian certificate of competency as an Engineer Class 1.

2.It is important in Mr Kumar’s case to recognise that in 1992 under an earlier statutory regime an English certificate of competency was recognised as the equivalent to an Australian certificate.

3.However since that time, and to give effect to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 and pursuant to the Navigation Act 1912, the Marine Orders Part 3 have been issued.

4.Those Marine Orders constitute subordinate legislation and set the framework by which applications may be made for certificates in relation to seafarers. Relevantly for present purposes Division 6 of Marine Orders Part 3 requires persons seeking to serve or be taken into employment on ships to perform duties of a master officer or seaman to hold a certificate of competency or a certificate of recognition pursuant to Marine Orders Part 3.

5.Mr Kumar made an informal application by letter which was treated by the Authority as being compliant with the provision requiring an application.

6.However the certificate which he sought is governed by Provision 32, Eligibility for Certificates. It provides that to be eligible for a certificate of competency as an Engineer Class 1 a person must satisfy a series of qualifications from (a) to (f). Mr Kumar accepts that he does not hold those qualifications. His argument is that, having qualified and having had his qualifications accepted in 1992, the decision was wrong because it failed to give effect to what had earlier been done.

7.Whilst I can understand the argument and have some sympathy for it, it seems to me that I have no alternative but to affirm the decision. That seems to me to be inevitable since the legislative framework has changed since that time. I am sure Mr Kumar is as competent now as he was then, and perhaps given the additional qualifications he has obtained since then perhaps even more qualified. Unfortunately the legislation as I read it does not provide any residual discretion to waive or set aside the requirements for eligibility. In the circumstances, as it seems to me, I must affirm the decision.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................................................................................
  Associate

Date of Hearing  1 June 2007
Date of Decision                   1 June 2007
The Applicant was self-represented

Representative for the Respondent          Solicitor for the Australian Maritime Safety Authority