Musumeci v Minister for Fisheries

[2002] NSWADT 161

CITATION:	Musumeci & ors -v- Minister for Fisheries [2002] NSWADT 161
DIVISION:	General Division
PARTIES:	1. APPLICANT Rocco Musumeci 2. APPLICANT Vincenzo Musumeci 3. APPLICANT Lucia Musumeci
FILE NUMBER:	003391
HEARING DATES:	28/06/01
SUBMISSIONS CLOSED:	11/07/2001
DATE OF DECISION:	09/06/2002
BEFORE:	Rice S - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994
CASES CITED:	Woodward v Director General, NSW Fisheries [2000] NSWADT 143 Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298 Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 Foster -v- Minister for Fisheries [2000] NSWADT 175
REPRESENTATION:	APPLICANTS M Slattery QC, barrister RESPONDENT J Crespo, barrister
ORDERS:	Pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act the decision of the Minister is affirmed.

1 I am not satisfied that Rocco Musumeci is eligible for the endorsement he seeks, and his application is therefore unsuccessful.

Background

2 I mean no disrespect to members of the Musumeci family when I refer to each of them throughout this decision by their first name. I do so to ensure that their identities are clearly understood.

3 Vincenzo Musumeci, Lucia Musumeci and Rocco Musumeci have together owned the Illawarra Star since 1 July 1987. Before then the Illawarra Star was owned jointly by Antonio and his brother Vincenzo Musumeci. The change in ownership has no bearing on the question of eligibility, as the claim is based on the boat history of the Illawarra Star.

4 The Illawarra Star is skippered by Rocco who is Vincenzo’s son. He has been the skipper of the Illawarra Star since 1 July 1987. Before then, under the previous ownership, Rocco’s cousin Rocco A was the skipper, but activity from that time is not relevant to this matter. I heard oral evidence in this matter from Rocco and his father Vincenzo.

Application

5 Vincenzo, Lucia and Rocco Musumeci (the Musumecis) own fishing business FB2265. Commercial fishing licence 890222 is issued in respect of the business.

6 On 12 December 1996 the Musumecis applied for an Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsement on fishing licence 890222. By letter dated 1 April 1997 the Minister advised the Musumecis that their application for the endorsement had been refused, and on 4 April 1997 the Musumecis requested an internal review of that decision.

Internal review

7 The internal review was conducted by the Restricted Fisheries Review Panel (‘the Review Panel’). By report dated 13 September 2000 the Review Panel recommended to the Minister that the Musumecis’ application for the endorsement be refused. By letter dated 23 November 2000 the Musumecis were advised of the Minister’s decision, in accordance with the Review Panel’s recommendation, to refuse the endorsement.

8 On 12 December 2000 the Musumecis applied to this Tribunal for review of the decision to refuse the endorsement.

Reviewable decision

9 The reviewable decision for this Tribunal is the Minister’s decision of 23 November 2000 to refuse the application for the endorsement in accordance with the Review Panel’s recommendation.

Hearing

10 The application was listed for hearing with that of Antonio Musumeci, registry file number 003392. The evidence in both matters was heard on the same day, and the evidence in one matter, to the extent of its relevance, is evidence in the other.

Identity of the applicant

11 Only an individual may hold a commercial fishing licence (cl.135(1) Fisheries (General) Regulation 1995 (FMR)), and the licence for a jointly owned fishing business is issued to one of the owners (cl.135(1A) FMR). I infer from the material on the Department’s file directly that Rocco is the owner to whom the licence for the fishing business was issued.

12 The “owner of a business” can satisfy the eligibility criteria for the endorsement based on the catch history associated with a fishing business (cl.187(4)), and Vincenzo, Lucia and Rocco are together the owner of the business. But the Minister may endorse the commercial fishing licence only of a “person who satisfies the eligibility requirements for the endorsement” (my emphasis) (cl.188(2)). I assume that that person is the one to whom the licence for the fishing business is issued under cl.135(1A), in this case Rocco. Consistently with cl.188(2) only an individual is entitled to an endorsement in respect of a fishing business (cl.212X(2)). Again I assume that that would be the person to whom the licence for the fishing business is issued under cl.135(1A), in this case Rocco. When a fishing business is owned by more than one person only one of them, on behalf of the business, may be nominated to take fish for sale pursuant to an endorsement (cl.212X(3)): I assume that this was, again, Rocco. Thus while an owner, which in this case is more than one person, can satisfy the eligibility criteria, only an individual is entitled to the resulting endorsement.

13 Applying this analysis to the facts, Vincenzo, Lucia and Rocco are together the owners who rely on the catch history associated with their fishing business to satisfy the eligibility criteria for the endorsement. Rocco is the person nominated to take fish for sale, and it is Rocco who worked the vessel the Illawarra Star. Rocco holds the licence for the business, and the endorsement, if granted, would be on that licence. The applicant for the endorsement is Rocco, and so I refer throughout the decision to Rocco Musumeci as the applicant, on behalf of the partnership.

Applicable law: ocean fishery

14 A fisher’s eligibility for endorsements “is to be determined in accordance with the regulations” (s113(2) Fisheries Management Act 1994 (FMA)). The relevant regulations are in Part 8 Division 2A of the FMR. The endorsement sought is described in cl.186(1):

The following classes of endorsement are available in the restricted fishery:
Northern zone endorsement. This endorsement authorises the holder to use an otter trawl net (fish) to take fish (other than prawns) for sale from ocean waters that are north of a line drawn due east from Barrenjoey Headland (other than the waters in which use of an otter trawl net (fish) is prohibited under clause 35).
15 Eligibility for this endorsement is described in cl.187(1):
Northern zone endorsement. A person is eligible for a northern zone endorsement if the Minister is satisfied that the person owns an otter trawl net (fish) that was registered in the name of the person at any time before 1 January 1993 and that:
(a) the person submitted to the Director at least 15 ocean waters catch returns in the years from 1986 to 1990 that indicate that the person took fish from an area designated on the return as zone 1, 2, 3, 4, 5 or 6 by the method of fish trawl, or

(b) the person submitted to the Director at least 3 ocean waters catch returns in the years from 1986 to 1990, and at least 5 ocean waters catch returns in the years from 1991 to 1993, that indicate that the person took fish from an area designated on the return as zone 1, 2, 3, 4, 5 or 6 by the method of fish trawl and that the person took not less than 20 tonnes of fish trawl species in those zones in at least 3 of the years from 1986 to 1993 by the method of fish trawl.

Concessions as to eligibility

16 As to net ownership, the Minister concedes that ownership of an otter trawl net (fish) is not in issue.

17 As to the catch returns required for eligibility pursuant to cl.187(1)(a) the Minister concedes that of the 15 ocean waters catch returns in the years from 1986 to 1990, Rocco can show one.

18 As to the catch returns required for eligibility pursuant to cl.187(1)(b) the Minister concedes that:

· of the three ocean waters catch returns in the years from 1986 to 1990, Rocco can show one;

· of the five ocean waters catch returns in the years from 1991 to 1993 Rocco can show all of them; and

· of the twenty tonnes in each of three years from 1986 to 1990 Rocco can show one year.

Claim for eligibility

19 Rocco says that his circumstances bring him within the provisions of cl.214C(2) FMR which allows for eligibility in a range of prescribed circumstances that might fairly be called ‘extenuating’ circumstances; this Tribunal has on a number of occasions referred to the effect of cl.214C as allowing for “extended eligibility” (eg Woodward v Director General, NSW Fisheries [2000] NSWADT 143).

20 Rocco does not say that but for inaccurate or incomplete records, or an incorrect determination of catch history, he could show that he does in fact meet the eligibility requirements; such an argument could be made under cl.214C(2)(a) and (b). Instead he concedes that the shortfalls in catch returns and quantity of fish taken are real, and says that the shortfalls would not exist but for the occurrence of circumstances anticipated by cl.214C(2)(c)(i) and (iii):

(i) the person suffered illness or other incapacity for a significant period and the illness or incapacity substantially affected his or her ability to satisfy the eligibility criteria for the endorsement, or

. . .

(iii) the person was engaged in fishing during that period and for other significant reasons (that are not attributable to the fault of the person) the person was unable to satisfy the eligibility criteria.

21 I refer to these provisions as sub-clause (i) and sub-clause (iii) respectively.

22 Under sub-clause (i) Rocco submits that because of his thyroid condition he ‘suffered illness or other incapacity for a significant period and the illness or incapacity substantially affected his ability to satisfy the eligibility criteria for the endorsement’.

23 In the alternative, under sub-clause (iii) Rocco submits that the heart condition of Vincenzo, complications relating to pregnancies of Rocco’s wife, and the absence to a point in time of the GPS (global positioning system) technology, were ‘significant reasons not attributable to his fault for which he was unable to satisfy the eligibility criteria’.

24 It was said in written submissions that the Musumecis as applicants relied on the illnesses of both Rocco and Vincenzo. This was followed by a detailed submission headed ‘The illness of Rocco and its effect’ but no such submission relating to Vincenzo. The submissions under sub-clause (i) conclude with reference only to the illness of Rocco. Further submissions refer only to Rocco’s illness as the basis of a claim under sub-clause (i).

Clause 214C(2)(c)(i) and (iii): ‘ability’ and ‘unable’

25 The meaning of the words ‘inability’ in sub-clause (i), and ‘unable’ in sub-clause (iii), was decided by the NSW Court of Appeal in Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298:

51 The word "ability" in Clause 214C(2)(c)(i) and (ii) appears to mean "capacity" or "power". ("Incapacity" in Clause 214C(2)(c)(i), by reason of its location in conjunction with "illness", refers to physical incapacity, or lack of physical power or strength, but "ability" is used more widely.) "Ability" is the quality in an agent which makes action possible. In the context of Clause 214C(2)(c)(i) and (ii), to say that an applicant is unable to satisfy the identified criteria is to say that it is not possible for that applicant to satisfy them, whether by reason of the applicant's illness or incapacity or by reason of the applicant's commercial fishing boat having been lost. To be able to do something is to have the means of doing it . The persons described in Clause 214C(2)(c)(i) and (ii) lack the means of satisfying the eligibility criteria either because of their health or because they have lost their boats. Persons who have the ability to meet the criteria are persons for whom it is possible to meet the criteria in the sense that meeting the criteria is within their potential. A loss of "ability" in the sense of that term as employed in these provisions is not a condition in which illness, incapacity or loss of a boat makes it harder, but not impossible, to meet the criteria.

52 The word "unable" in Clause 214C(2)(c)(iii) should be construed in a manner which is cognate with "ability" in Clause 214C(2)(c)( i) and (ii). The meaning of Clause 214C(2)(c)(iii) would not change if it read "for other significant reasons ... the person lacked the ability to satisfy the eligibility criteria". To be "unable" to satisfy the eligibility criteria is to be incapable of doing so or to lack power to do so. It is to lack the quality which makes satisfying the criteria possible. It is to lack the means of satisfying the criteria. It is to lack the potential to meet the criteria. It is to suffer a disability preventing one from satisfying the criteria.

53 To construe the word "unable" in that way is not to give Clause 214C(2)(c)(iii) a very wide meaning. One example of "other significant reasons" proffered by the second respondent was inability to satisfy the eligibility criteria because of the cutting of a trawler's net by another vessel or by some submerged object in circumstances where the trawler was operating in an inherently competent fashion. Other examples mentioned in argument were inability to procure crew and inability to procure equipment. But Clause 214C(2)(c)(i) does not have a wide meaning either. To fall within it there must be illness or other incapacity for a significant period to such an extent that it substantially affected the applicant's ability to satisfy the eligibility criteria. It would be a rare illness or incapacity which would cause an applicant to fall within the provision if Clause 187(1)(a) is under consideration, since it requires only the submitting of fifteen ocean waters catch returns out of a possible sixty (or about thirty if allowance is made for the fact that not all species can be caught all year). And it would be a rare illness or incapacity which would cause an applicant to fall outside the provision if Clause 187(1)(b) is under consideration, for that requires three ocean waters catch returns out of sixty (or thirty) in the years 1986 to 1990, and five out of thirty-six (or eighteen) in the years 1991 to 1993, together with twenty tonnes of fish in three years out of eight. The same analysis applied to Clause 214C(2)(c)(ii) leads to a similar conclusion. It would not therefore be surprising if Clause 214C(2)(c)(iii) was not of frequent application. The point, however, is that even though it may not be of frequent application on the second respondent's construction, it does have some content and some work to do.

26 Applying this to the facts of that case the Court said:
61 The appellants decided not to fish for gemfish in the northern zone because it was uneconomic to do so. Yet it was not impossible for them to do so. They were capable of doing so. They had the means of doing so. It was within their potential. They did not labour under any disability preventing them from doing so.

62 Accordingly the appellants do not fall within Clause 214C(2)(c)(iii).

Clause 214C(2)(c)(i): ‘substantially affected’

27 It is submitted for Rocco that the decision in Puglisi did not consider the meaning of the phrase “substantially affected” in sub-clause (i). I agree.

28 The phrase “substantially affected” qualifies the extent to which the inability must have existed to meet the requirement of sub-clause (i). It is not the case that a person must have been “unable” as in sub-clause (iii); it is enough that their ability was “substantially affected”.

29 I agree with the submission for Rocco that the illness or incapacity “does not have to totally deprive an applicant of capacity to satisfy the eligibility criteria”. But that observation does not go far enough. The phrase “substantially affected” introduces the concept of degree: while the illness or incapacity does not have to totally deprive an applicant of the ability to satisfy the eligibility criteria, it must impose a limitation on an applicant’s ability to a “significant degree”.

30 Sub-clause (i) has only been considered and applied in three matters previously in this Tribunal; for the sake of consistency at least, it is desirable to consider other decisions by the Tribunal in the same point. Substantial consideration was given to the meaning of sub-clause (i) in Woodward v Director General, NSW Fisheries [2000] NSWADT 143:

37 . . . the applicant sustained an injury in June 1993 which prevented him from engaging in hand gathering for the remainder of that year . . . this incapacity must be found to have been suffered "for a significant period" within reg 214C(2)(c)(i). In this respect, I would understand "significant" to have the dictionary meaning " of consequence". Any period of seven months incapacity from illness must be "of consequence" objectively in the context of a criteria requiring only 8 monthly returns. In relation to the applicant's particular circumstances, this particular period is "of consequence" since he was theoretically capable of satisfying the strict criteria by engaging in hand gathering during that period.

38 A further issue arises under reg 214C(2)(c)(i), which is whether the applicant's incapacity "substantially affected his ability to satisfy the eligibility criteria". There is some vagueness in this language. The word "substantially" is especially prone to shades of meaning which depend upon context (c.f. Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 at [26]). Here, I consider it has shades of meaning both of "materially" and "in the main" (c.f. OED meaning 4: "in all essential character or features; in regard to everything material; in essentials; to all intents and purposes; in the main"). "Affect" has the dictionary meaning of "produce an effect or a change in" . . .

39 I accept that it may be relevant to consider the likelihood that, but for his illness, the person would have performed activities which, together with relevant activities outside the period of incapacity, would have satisfied the eligibility criteria. However, in my opinion such a judgment is not necessary nor determinative. The language of "substantially affected his ability to satisfy" seems to demand less than satisfaction that incapacity in fact caused the failure to satisfy the criteria. It is enough to decide that his ability to qualify was "substantially affected" by a period of incapacity. In effect, once this is established, an incapacitated fisherman is to be given the benefit of uncertainties as to whether other factors might also have affected his ability to qualify and as to whether in fact he would have qualified.

31 The Tribunal found on the facts that
41 . . . it is highly probable that the applicant would have gathered pipi on several occasions during the period of his incapacity, and that there was a significant possibility that this would have occurred on sufficient occasions over the period to have allowed him to have accrued the requisite number of fishing returns during the remainder of 1993 to satisfy the strict eligibility requirements . . .
32 In Foster -v- Minister for Fisheries [2000] NSWADT 175 the facts were found to satisfy the requirements of sub-clause (i) having regard to the reasoning in Woodward . I respectfully agree with the approach taken in Woodward , and in Wardley-v- Minister for Fisheries [2000] NSWADT 65 at para 128 I said of sub-clause (i)
. . . The test there is that illness or incapacity “substantially affected his ability” to satisfy the eligibility criteria. This is different from, and is arguably a less onerous test than, the test in cl.214C(2)(c)(iii) . . .
33 I found on the facts in that case that:

. . . the wrist surgery and resulting incapacity, while it may have had some occasional effect to some degree, did not substantially affect [the applicant’s] ability to satisfy the eligibility criteria.
34 In this matter I give effect to the terms “substantially affected and “significant period” in accordance with the analysis in Woodward , and to the words “ability” and “unable” in accordance with the analysis in Puglisi ”.

Clause 214C(2)(c)(i): illness

35 There is no argument that Rocco suffered a thyroid and sinus related medical condition, described in a report by Dr Crakanthorp, for which he took medication and had two operations. The Minister does not say that Rocco was not adversely affected by the condition in the way he described in his evidence. I am satisfied that Rocco did suffer an illness. I am satisfied that he suffered the illness for a significant period.

36 The manner in which the oral evidence was given did not, understandably, clearly separate evidence according to which of the alternative provisions – sub-clause (i) or sub-clause (iii) – the applicants rely on. Some time was spent on evidence of factors other than Rocco’s illness which had a bearing on his fishing activity. Those factors included the heart condition of Vincenzo and Rocco’s concern not to be far from him, and the health of Rocco’s wife during pregnancy and Rocco’s concern not to be far from her. These factors could perhaps be relied on in relation to the claims under both sub-clause (i) and sub-clause (c)(iii).

37 The question arises: who is the “person” referred to throughout cl.214C(2)? In particular, whose illness is it that is relevant to sub-clause (i)? Is it in this case, as I have said, that of Rocco alone, or can it be as well the illness of Vincenzo because he is one of the owners on whose behalf the endorsement is sought?

38 Vincenzo did not hold the licence of which the endorsement was sought, was not nominated as the person to take fish for sale, and did not work the boat on whose history eligibility for the endorsement depended. He has no standing to apply for the endorsement, or to apply for consideration under an exception to the requirements for an endorsement. Consequently his illness can have no relevance to sub-clause (i). It is the illness of the person who had an ability to satisfy the eligibility criteria for the endorsement to which sub-clause (i) is directed. Vincenzo was not that person. Only Rocco was.

39 In my view Vincenzo’s illness cannot be relied for a claim under sub-clause (i). I make no further reference to the concerns regarding the health of Vioncenzo or Rocco’s wife in considering Rocco claim under sub-clause (i). The only factor of which account can properly be taken under sub-clause (i) is Rocco’s health: not the health of another person, nor Rocco’s concern for the health of another person.

Sub-clause (i) ‘ability to satisfy the eligibility requirements’

40 There is no issue as to Rocco’s ability to use the fish trawl method. None of his evidence suggested that his illness affected his ability to trawl for fish. He trawled for fish consistently and successfully in zone 7 throughout the relevant period, and he trawled on occasions for fish in zone 6. The eligibility criterion with which he says his ability to comply was affected, was that he take fish in zone 6.

41 Unless Rocco’s ability to go into zone 6 was substantially affected by his own health or incapacity sub-clause (i) is not satisfied. No reason other than his own health or incapacity is relevant to sub-clause (i).

42 Between 1986 and 1990 Rocco went into zone 6 in four different months: 9002, 9005, 9006, 9009, and used the fish trawl method in one of those months: 9009. Between 1991 and 1993 he went into zone 6 in nine different months: 9102, 9103, 9110, 9111, 9112, 9201, 9203, 9205, 9206, and used the fish trawl method in six of those months: 9110, 9111, 9112, 9201, 9203, 9205. He caught more than 20 tonnes of fish in one of the eight years 1986-1993: 1991.

43 For cl.187(1)(a) the question is: why in 1986-1990 did Rocco not go into zone 6 and use the fish trawl method in 14 of the other 59 months? For cl.187(1)(b) the questions are: why in 1986-1990 did Rocco not go into zone 6 and use the fish trawl method in only 4 of the other 59 months? And in 1986-1993 why did he not take more than 20 tonnes of catch in two of seven years? Only one answer can bring Rocco within sub-clause (i): because his illness substantially affected his ability to do so.

44 Rocco’s health did not affect his ability to go to zone 6 in a total of 13 of 96 months. Nor did his health or incapacity affect his ability to use the fish trawl method in zone 6 for seven of 96 months. I am not concerned with whether he went to zone 6 on a long day from port, allowing him only one ‘shot’ rather than say three or four, or on an overnight trip of two or more days. If he was able to go to zone 6 only for short periods, allowing him one ‘shot’, that would be relevant to the quantity of catch taken, but not to whether he was able to submit catch returns from zone 6 at all.

45 There is no evidence that Rocco’s health was better in those months in which he did go to zone 6 than it was in those months when he didn’t. There is no evidence that his ability to travel to zone 6 was less “affected” in the months he went to zone 6 than in the months he didn’t. It is not Rocco’s evidence that his health fluctuated over the period. He was fairly consistently affected by the symptoms, with some easing of them after an operation in 1987. He managed the symptoms with medication; he could feel the onset of symptoms and bring them under control. I assume that this was the case at all times – there is no evidence that this regime changed at times or over time. Except that the symptoms were apparently worse in winter, I have to assume that Rocco’s health was no better on the occasions he went into zone 6 than it was during the months he didn’t go there.

46 His having worse symptoms in winter is consistent with his never having fished in to zone 6 in July or August, although in two years he did go in June. Even removing the winter months from the equation, there is no evidence that can reasonably satisfy me that for the any of the remaining months in the years 1987-1993 Rocco was any less able to go to zone 6 than in the months he did go.

47 On the evidence, the degree to which Rocco’s ability was affected by his illness appears to have been consistently the same over the years 1987-1993, having been a little worse in 1986-87. Whether there was no change from time to time, or whether Rocco’s ability was affected to different degrees at different times, the evidence shows no correlation between the effect of his illness on his ability to go to zone 6 and the actual occasions he did go to zone 6. Whatever factors influenced him to go to zone 6, he appears to have gone in spite of his illness. The evidence indicates that other factors may have included the extent to which at different times he felt more or less concerned about the health of his father and his wife, whether there was a run of fish that he felt inclined to follow further than he usually might, whether he felt like accompanying his cousin’s boat further from port, and whether the fishing in zone 7 was so poor that it was worth venturing, even for a short time, into zone 6. Rocco agrees that the income produced by his fishing principally in zone 7 was sufficient.

48 It is not possible in those circumstances to say that Rocco’s ability to go to zone 6, and thereby to satisfy the eligibility criteria, was “significantly affected” by his illness. Consequently I am not satisfied that Rocco’s ability to meet the eligibility requirements was substantially affected by illness.

Clause 214C(2)(c)(iii): inability for other significant reasons

49 Rocco was not “unable”, in the sense that the word is defined by the Court of Appeal in Puglisi, to satisfy the eligibility criteria. His argument that his circumstances fall within sub-clause (i) is premised on his being ‘able’, even if only to a degree.

50 Because Rocco is not “unable”, sub-clause (iii) cannot be available to him. The most that can be said for the “other significant reasons” that he refers to – his concern for Vincenzo’s health and for his wife’s health – is that they may have affected to some extent his ability to satisfy the eligibility criteria. Only sub-clause (i) is concerned with a factor affecting ability, and the only factor it is concerned with is the applicant’s health. There is no place in cl.214C for factors such as concern for another’s health unless the applicant is “unable”. Even then there might be argument as to whether such concerns constitute “other significant reasons”.

Findings

51 I find that Rocco Musumeci is unable to establish eligibility for Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsement pursuant to cl.187(1) FMR. His circumstances are not within those described by either cl.214C(2)(c)(i) or cl.214C(2)(c)(iii) FMR.

Correct and preferable decision

52 Having regard to the relevant factual material and the applicable law, I agree with the Minister that Rocco Musumeci is not eligible for the endorsement he seeks. Accordingly the correct and preferable decision is that the applicant is not eligible for an Ocean Fish Trawl Restricted Fishery (Northern Zone) endorsement, and I affirm the decision of the Minister to that effect.

ORDERS

Pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act I affirm the decision of the Minister.