Lee and Decision Maker - [2023] AATA 3158

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]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lee and Decision Maker

Details

AGLC: Lee and Decision Maker [2023] AATA 3158
Case: [2023] AATA 3158
Decision Date: 2 October 2023

CaseChat Overview and Summary

This matter concerned an application by Mr Lee for a review of a decision made by the Graduate Entry Medical Program Application and Selection Service (GEMPASS). The application was heard by A. Nikolic Am Csc SM.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to review the GEMPASS decision. Mr Lee's argument for jurisdiction was based on the administrative nature of the GEMPASS decision.

The Tribunal found that Mr Lee had not identified any statutory basis that would confer review power upon it. Consequently, the Tribunal was unable to discern any such statutory basis. The application was therefore dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) on the grounds that the decision was not reviewable by the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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