Lee and Decision Maker
[2023] AATA 3158
•2 October 2023
Lee and Decision Maker [2023] AATA 3158 (2 October 2023)
Division:GENERAL DIVISION
File Number: 2023/6516
Re:William Lee
APPLICANT
AndDecision Maker
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:2 October 2023
Date of written reasons: 6 October 2023
Place:Melbourne
The Tribunal is satisfied the decision is not reviewable and dismisses the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
.......................[sgd].................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – application for review of a decision by the Graduate Entry Medical Program Application and Selection Service – whether Tribunal has jurisdiction to review decision – Tribunal does not have jurisdiction – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 42A(4)
CASES
Adams and Tax Agents’ Board, Re (1976) 1 ALD 251
Chambers v Chief Executive Medicare [2022] FCA 1164
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Federal Commissioner of Taxation v Apted [2021] FCAFC 45
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Luck v University of Southern Queensland [2008] FCA 1582
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
6 October 2023
INTRODUCTION
On 4 September 2023, Mr Lee lodged an application with the Tribunal seeking to review a decision from the Graduate Entry Medical Program Application and Selection Service Australia Ltd (“GEMPASS”).
On 2 October 2023, the Tribunal decided to dismiss the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) because the decision is not reviewable. Upon being advised of this, Mr Lee requested written reasons. These now follow in accordance with s 43(2B) of the AAT Act, which states:
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
RELEVENT LEGISLATION AND CASE LAW
The Tribunal’s jurisdiction is conferred in part by s 25 of the AAT Act, which states:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment
An ‘enactment’ is defined at s 3(1) of the AAT Act to include a statute of the Parliament of the Commonwealth.
The Tribunal undertakes merits review of certain applications under Commonwealth legislation, does not have inherent jurisdiction like a court, and is not ‘at large’[1] in deciding which administrative decisions to review. Its general review power at s 25 of the AAT Act is only enabled when another Commonwealth statute expressly permits a review.[2] The enabling legislation also conditions the circumstances under which a review application can be made. As Justice Rangiah has observed:[3]
The Tribunal’s jurisdiction under s 25(1) of the AAT Act is limited to review of decisions made in the exercise of powers conferred by an enactment, or by another enactment having effect under that enactment[4]…[and the Tribunal]…has the competence and authority to determine whether it has jurisdiction.[5]
[1] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14], [41].
[2] Federal Commissioner of Taxation v Apted [2021] FCAFC 45 at [16].
[3] Chambers v Chief Executive Medicare [2022] FCA 1164.
[4] Citing cf Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 312, 334; Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 324 at [132]; Luck v University of Southern Queensland [2008] FCA 1582 at [11]-[12].
[5] Citing Re Adams and Tax Agents’ Board (1976) 1 ALD 251; Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459 at 468.
MR LEE’S APPLICATION
Mr Lee’s application was accompanied by a letter from the Chair of GEMPASS dated 21 August 2023, which is titled “Re: Fraudulent Submission of Documents”. It states in part:
Based on the above, it has been determined that your application is fraudulent, as you have submitted inaccurate information which materially improved your GPA. Consistent with the approach outlined in the Admissions Guide, GEMPASS has determined the following actions should be taken:
1. Your application for admission in 2024 is cancelled without refund
2. You are banned from applying to study medicine through the GEMSAS process for five (5) years, meaning you will next be permitted to submit an application in 2028 for admission in 2029.
In response to the question on the Tribunal application form: ‘Why do you claim the decision is wrong’, Mr Lee responded:
There was no evidence or other material to justify the making of the decisions, because
1) In contrary to what the first respondent claim, the document relied on by the first respondent does not constitute the actual "chronology" (it required in making its decisions) because it does not contain "year",
2) contains only 8 "semester", does not contain the correct numbers of "semester" proven by the fact that the applicant student ID…means the applicant started studying from the year of 1996 (9 semesters)
3) but the document is actually merely a prescribed 8-semester standard curriculum format that does not take account deviation hence does not constitute actual "chronology" required by the first respondent.
4) the overseas educational institution has different way of recording marks, that repeats (for fail mark) can be taken in subsequent semesters and will directly overwrite the original mark back to the semester where the original mark came from (not creating new entry in new semester and year!!!) hence history of actual undertaking of repeats is not recorded hence no actual "chronology". In contrary, australian universities will not overwrite original (fail) mark but will create a second entry in the semester where the repeat is undertaken (not overwriting back the original mark in previous semester)
5) Hence, the document relied on by the respondent does not constitute the actual "chronology" it required in making its decisions hence there was no evidence or other material to justify the making of the decisions.
(Errors in original).
The GEMPASS letter does not refer to any right of appeal to the Tribunal. Mr Lee’s application and other documentary materials also do not refer to any relevant law that enlivens the Tribunal’s jurisdiction. On 5 September 2023, a Tribunal Officer wrote to him seeking further information about the basis of his claimed right of appeal.
On 15 September 2023, in the absence of any further correspondence from Mr Lee, his application was referred for interlocutory hearing on the question of jurisdiction.
On 19 September 2023, a listing notice was sent to Mr Lee for a jurisdiction hearing at 11:00am on 2 October 2023. He was asked to provide a telephone number and subsequently emailed the Tribunal with a mobile number as his best contact.
On 22 September 2023, Mr Lee lodged a four-page document dated 13 September 2023 in support of his jurisdiction claim. In summary, he:
(a)named nine additional Respondents, who are Australian tertiary institutions, and who he contends have established and operate GEMPASS;
(b)stated that the ‘decisions made by the first respondent [GEMPASS] is under the purview of the Administrative Decisions’ (sic);
(c)made several claims under the heading ‘Grounds of application’ about purported chronological and factual inaccuracies, and stated ‘there was no evidence or other material to justify the making of the decision’; and
(d)under the heading ‘Orders sought’, stated that he wants:
‘An order for the Tribunal to quash the decision of the First Respondent that cancels the applicant’s GEMSAS admission for 2024
2. An order for the Tribunal to quash the decision of the First Respondent that bans the applicant for 5 years from applying GEMSAS
(Errors in original)
On 28 September 2023, after conducting a pre-hearing check, an associate of the Tribunal emailed Mr Lee to inform him the telephone number he provided was ‘not accessible’. He was asked to confirm his attendance at the hearing on 2 October 2023 and to provide a working contact number. Mr Lee responded by email later the same day without providing a contact telephone number but stated instead:
‘…I have just gone out of Australia (overseas) due to acute family crisis hence my mobile is not accessible. I am not sure when can i be back.
1. Is it possible for the Member to make decision or give advice (or provide further questions for clarification by email) based on my last submitted document as it is the complete picture of my case.
…
After seeking instructions, an associate responded to Mr Lee by email on the same day that a decision on jurisdiction would be made as he requested on the documentary submissions already provided.
DECISION
The basis of Mr Lee’s claims about jurisdiction centre solely on the administrative nature of the GEMPASS decision. He has not identified a statutory basis that enables the Tribunal’s review power, and the Tribunal cannot discern one.
Mr Lee’s application is dismissed under s 42A(4) of the AAT Act because it is not reviewable by the Tribunal.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC
…………[sgd]……………………….
AssociateDated: 6 October 2023
Date of hearing: 2 October 2023 (On the papers) Advocate for the Applicant: Applicant is overseas and did not appear Advocate for the Respondent: No identifiable Respondent Solicitors for the Respondent: N/A
0
8
0