Lowis v Board of Professional Engineers Queensland - [2021] QCAT 360

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lowis v Board of Professional Engineers Queensland [2021] QCAT 360

PARTIES:

SHANNON WILLIAM LOWIS

(applicant)

v

BOARD OF PROFESSIONAL ENGINEERS QUEENSLAND

(respondent)

APPLICATION NO/S:

OCR040-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

20 October 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

The application to review a decision filed on 27 January 2021 is dismissed

CATCHWORDS:
APPEARANCES

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to review a refusal of registration – whether application for registration refused or lapsed – whether Tribunal has jurisdiction to review

Professional Engineers Act, s 8, s 12, s 14, s 23, s 25, s 27, s 122
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17(1), s 47

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

:

REASONS FOR DECISION

On 27 January 2021, the applicant filed an application to review what was said to be a refusal by the respondent of his application for registration as a Registered Professional Engineer of Queensland. The present issue is whether the Tribunal has jurisdiction in relation to the matter.
Section 17(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides:
The Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.
Section 122 of the Professional Engineers Act 2002 (Qld) (‘the Act’) confers jurisdiction on the Tribunal to review specified decisions made under that Act and indicates who may bring the review application. Section 122(2)(a) provides that ‘a person whose application for registration, or renewal or restoration of registration, is refused’ may apply, as provided under the QCAT Act, to review that decision.
On 11 January 2021, the Board of Professional Engineers Queensland (‘the Board’) wrote to the applicant advising him that his application for registration had lapsed, as he had failed to provide the Board with the information it requested pursuant to ss 27(1) and 27(2) of the Act, which information was required by the Board to enable it to decide the application.[1] In that letter, the following background information is given:
·The applicant applied for registration on 6 August 2020.
·On 9 October 2020, the Board requested that he provide a ‘current copy of an eligibility letter from a Board approved assessment scheme’.[2] It was requested that it be provided by 16 October 2020.
·Following a request from the applicant for an extension of time, the time for compliance was extended to 13 November 2020, with the Board noting that if the information was not provided by that date the application would lapse.
·On 16 November 2020, the applicant requested a further extension of time. Time for compliance was extended to 7 December 2020, with the Board again noting that if the information was not provided by that date the application would lapse.
·The required information was not provided and the opportunity to provide further information ended on 7 December 2020.
[1]Submissions of the respondent, Annexure L.
[2]In relation to this request by the Board, see submissions of the respondent, [35].
Section 8 of the Act is headed ‘Applying for registration’ and sets out the material required in making the application, including at s 8(2)(b)(ii):
if there is an assessment scheme approved for the area of engineering the applicant is applying to be registered in—the assessment entity’s assessment of the applicant against the qualifications and competencies provided for under the scheme;
Section 8(4) then provides:
The applicant also must provide any other relevant information reasonably required by the board to decide the application.
Section 12 of the Act is headed ‘Deciding application’ and at s 12(1) provides:
The board must consider each application for registration made under section 8 and either grant or refuse to grant the application as soon as practicable after the last of the following events to happen—
(a) the board receives the application;
(b) the board receives all necessary information to decide the application.
Section 27 of the Act is headed ‘Lapsing of application’ and provides:
(1) This section applies if an application for registration, or renewal or restoration of registration, is made under this part.
(2) The board may make a requirement under section 8(4), 18(6) or 23(5) for information to decide the application by giving the applicant a notice stating—
(a) the required information; and
(b) the time by which the information must be given to the board; and
(c) that, if the information is not given to the board by the stated time, the application will lapse.
(3) The stated time must be at least 21 days after the requirement is made.
(4) The board may give the applicant a further notice extending or further extending the time if the board is satisfied it would be reasonable in all the circumstances to give the extension.
(5) A notice may be given under subsection (4) even if the time to which it relates has lapsed.
(6) If the applicant does not comply with the requirement within the stated time, or any extension, the application lapses.
(7) If an application lapses under subsection (6), the board must, as soon as practicable after it lapses, refund the fees that accompanied the application less a reasonable amount, if any, prescribed under a regulation for processing the application.
As appears from s 27(6) of the Act, if the applicant does not comply with the requirement to provide information within the stated time, or any extended time, the application lapses by force of the legislation. No decision is required by the Board. The lapsing of an application is not one of the matters that may be reviewed by the Tribunal pursuant to s 122 of the Act.
On 4 May 2021, directions were issued by the Tribunal requiring the parties to file submissions relevant to the jurisdiction of the Tribunal to conduct a review in this matter. Both parties have filed submissions.
The applicant submits that the board refused the applicant’s ‘request for restoration’ of registration ‘alleging that the applicant did not provide “a letter of eligibility from an approved assessing entity”’. This was said to be a ‘condition imposed by the board under s 25(2) of the Act’, which is said to be ‘unreasonable and irrelevant’. It is added that the ‘timeframe imposed by the board is also “unreasonable and irrelevant”’.[3]
[3]Submissions of the applicant, 2.
While the applicant had previously been registered as an engineer, by email of 20 July 2020 the respondent advised the applicant that he would need to complete a ‘Form 2 Application for New Registration’.[4] Restoration of registration is dealt with separately at Part 2, Division 4, Subdivision 3 of the Act. By s 23(1) of the Act, where registration has expired, ‘the person may, within 2 months after the expiry, apply to the board for restoration of the registration’.[5] The applicant’s prior registration was between 2005 and June 2016.[6] In any event, for present purposes, it does not matter whether the application was for new registration or restoration of registration. In relation to restoration, by s 23(5) of the Act, as with s 8(4) in relation to new applications, the applicant must provide ‘any other relevant information reasonably required by the board to decide the application’. Also, the lapsing of an application under s 27 of the Act applies to an application for registration, or renewal or restoration of registration, while the review rights under s 122 of the Act arise where an application for registration, or renewal or restoration of registration, is refused.
[4]Submissions of the respondent, [10] and Attachment G.
[5]By s 23(3) of the Act, the Board may accept an application for restoration of registration made more than 2 months after the expiry ‘if the Board is satisfied it would be reasonable in all the circumstances to accept the application’.
[6]Ibid, [2].
The submissions of the applicant proceed on the assumption that there has been a refusal by the Board of the application for registration. However, there is no evidence of any refusal by the Board of the application for registration. As is noted above, the communications of the Board were framed as a lapsing of the application under s 27 of the Act. If, as submitted by the applicant, the request by the Board for further information was not reasonable, or the allowed timeframe was not reasonable, that, if anything, gives rise to a ground for judicial review in terms of the proper operation of s 8(4) of the Act (or s 23(5) of the Act in relation to restoration of registration).[7] Those provisions require an applicant to provide ‘relevant information reasonably required by the board to decide the application’. Any unreasonable request under that provision does not elevate the decision of the Board to one of refusal of the application for registration. By s 12 of the Act, as set out above, an application for registration is considered after the Board receives all necessary information to decide the application, while s 14 of the Act sets out the steps to be taken after any refusal (see s 26 in relation to refusal of restoration of registration).
[7]The applicant also submits that the wrong application form was sent to him, given that his application was for restoration and not new registration: applicant’s reply to respondent’s submissions, 2-3. However, again, this does not elevate the conduct of the respondent to a refusal of the application, such that the jurisdiction of the Tribunal might be invoked. In relation to forms, see submissions of the respondent, [32]-[34].
There having been no refusal of the application for registration, such as to attract the jurisdiction of the Tribunal under s 122 of the Act, and there being no other provision allowing for the jurisdiction of the Tribunal in the circumstances of the present case, the application for review is misconceived or lacking in substance in terms of s 47 of the QCAT Act. Accordingly, the application to review a decision filed on 27 January 2021 is dismissed.