Thiruchelvam and Secretary, Department of Agriculture, Water and the Environment

[2021] AATA 1739

Thiruchelvam and Secretary, Department of Agriculture, Water and the Environment [2021] AATA 1739 (5 May 2021)

Division:GENERAL DIVISION

File Number:          2020/8591

Re:Shireen Thiruchelvam

APPLICANT

AndSecretary, Department of Agriculture, Water and the Environment

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date of decision:               5 May 2021  

Date of written reasons:         15 June 2021

Place:Melbourne

The Tribunal is satisfied that the application for review of the decision is frivolous, in that it serves no useful purpose, and has no reasonable prospects of success.

The Tribunal, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975, dismisses the application.

.......[sgd].................................................................

R Cameron, Senior Member

Catchwords

PRACTICE AND PROCEDURE – dismissal application – import permit – live dog – permit expired – frivolous – no useful purpose – no reasonable prospects of success – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Biosecurity Act 2015 (Cth)

Secondary Materials

Biosecurity Regulations 2016 (Cth)

Biosecurity (Suspended Goods - Cats and Dogs Malaysia) Determination 2020 (Cth)

REASONS FOR DECISION

R Cameron, Senior Member

15 June 2021

INTRODUCTION

1. The Applicant seeks review of a decision made on 17 December 2020 upholding a previous decision to revoke an import permit held by her for a live dog, being a poodle, from Malaysia.[1]

   [1] T Documents, T2.

2. The relevant decision was made under the provisions of section 181 of the Biosecurity Act 2015 (“the Act”).

3. The Respondent made an application for dismissal of the proceeding under section 42B of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). This section permits the Tribunal at any stage of the proceeding to dismiss the application if it is satisfied that such application is frivolous, vexatious, misconceived or lacking in substance or has no reasonable prospects of success.

4. The Tribunal on 5 May 2021 heard the application for dismissal. Submissions were made by both the Applicant and the Respondent. Upon completion of the hearing, the Tribunal gave oral reasons dismissing the application under section 42B of the AAT Act. The Applicant has sought written reasons for the decision.

   LEGISLATIVE FRAMEWORK

5. A permit is required for the importation into Australia of live dogs. The Director of Biosecurity (“the Director”) is empowered under section 179 of the Act to issue a permit to import a live dog, which falls within the category of conditionally non-prohibited goods under section 174 of the Act.

6. Once a permit has been issued, section 181(1)(c) of the Act permits the Director to revoke an import permit. They must do so in accordance with the Regulations made under the Act. The relevant considerations to be taken into account by the Director when making a decision under section 181 are found in Regulation 45 of the Biosecurity Regulations 2016. That regulation need not be reproduced for the purposes of these reasons. However, it includes an obligation on the part of the Director as decision-maker to consider, amongst other things, the level of biosecurity risk associated with the goods to which the permit relates.[2]

   [2] Biosecurity Regulations 2016, reg 45(2)(a).

7. This decision by the Director is subject to internal review.[3] An internal review decision can be reviewed in this Tribunal under section 578 of the Act.

   [3] Act, s 574(1).

   FACTUAL BACKGROUND

8. The Department issued to the Applicant a permit to import conditionally non-prohibited goods, being a live dog, on 1 November 2019 (“the permit”).[4] The dog is a pet poodle. The permit was valid for 12 months from the date of issue and expired on 1 November 2020. There are extensive conditions attached to the permit. They include that all treatments, collection of specimens and examinations are conducted in an approved country by an official government veterinarian or a government-approved veterinarian. All testing must be conducted in an approved country and in an approved laboratory. A further condition required that the dog must arrive in Australia prior to the expiry date of the permit.

   [4] The permit is document T3 of the T Documents. It permits the importation of a poodle known as "Lilo Chelliah" microchip number 458 098 500 295 830.

9. For the sake of completeness, it should be noted that the dog has not been imported into Australia.

10. On 6 March 2020, the Deputy Secretary of the Department made the Biosecurity (Suspended Goods – Cats and Dogs Malaysia) Determination 2020[5] (“the determination”). The determination was made pursuant to a power conferred upon a Delegate under section 182 of the Act. The Determination, after being registered and laid before Parliament, became valid as and from 12 March 2020.

    [5] T Documents, T4.

11. The purpose of the Determination was to provide that a specified class of goods, namely cats and dogs, must not be brought or imported into Australian territory from Malaysia for a specified period. In this case it was for a period of six months.[6]

    [6] Biosecurity (Suspended Goods – Cats and Dogs Malaysia) Determination 2020, clause 8.

12. Clause 5 of the determination outlines the reasons why it was made. Those reasons are referred to in their entirety. However, it should be noted that clause 5 identified defects in Malaysia’s processes to provide veterinary health certifications meaning that there is a risk that cats and dogs being imported to Australia from Malaysia may have been exposed to diseases exotic to Australia, including rabies. An additional reason noted that veterinary health certifications provided in support of the importation of cats and dogs arriving from Malaysia may have been false and misleading. Having regard to these matters, the Department was concerned that the process undertaken by Malaysian veterinarians is not sufficiently robust to indicate that the relevant purpose of the standard permit condition – to prevent diseases entering Australia – is being fulfilled. Therefore, there was a moderate likelihood that diseases could enter Australian territory and establish themselves.

13. Under section 184 of the Act, the effect of a determination made under section 182(1) on the permit issued to the Applicant is that it is taken to have been suspended for the period specified in the determination, to the extent that the permit relates to those goods. In this case it is the live dog.

14. The Department gave a Notice of Intention to revoke the permit to the Applicant on 25 August 2020.[7]

    [7] T Documents, T7.

15. The Applicant made submissions to the Department on 27 August[8] and 1 September 2020.[9]

    [8] T Documents, T9.

    [9] T Documents, T11.

16. The permit was revoked on 14 September 2020.[10] Reasons for the decision were provided. Those reasons are referred to in their entirety. However, the Delegate stated in her reasons that, despite the issues raised by the Applicant, the level of biosecurity risk associated with the direct import of cats and dogs from Malaysia exists at a level greater than very low, and is therefore unacceptable, in accordance with Australia’s “Appropriate Level of Protection”, defined under section 5 of the Act. This followed the Department’s decision to remove Malaysia from the list of countries approved for the direct export of cats and dogs to Australia. Therefore, it is not possible to import dogs and cats to Australia from

    
    

    non-approved countries. It was emphasised that imported cats and dogs present a significant risk pathway for the introduction of numerous diseases that have the potential to cause harm to human and animal health in Australia. These include but are not limited to rabies. It was also emphasised there could be economic consequences associated with the entry, establishment or spread of the diseases or vectors carrying the diseases into Australia.

    [10] T Documents, T12.

17. The Applicant sought an internal review of the decision to revoke the permit, as she was entitled to do, on 2 October 2020.[11]

    [11] T Documents, T17.

18. The decision to revoke the permit was affirmed after an internal review was undertaken on 17 December 2020.[12] It is from this decision that the Applicant sought review in this Tribunal.

    [12] T Documents, T2.

    SUBMISSIONS

19. Most of the Applicant’s submissions at the hearing of this application were made by her husband. Those submissions were directed towards what were contended to be the manifest unfairness of the predicament that the Applicant found herself in through no fault of her own.

20. Emphasis was placed upon the importance that the dog has for the Applicant and her desire to have the dog present in Australia where she and her husband currently reside. It was difficult not to have significant sympathy for the Applicant’s position. As a result of not having the dog present in Australia, she has experienced significant emotional and psychological stress requiring her to seek professional help from a psychologist and undergo a course of medication. It was submitted that the Applicant and her husband should be shown some leniency due to their difficult situation. The inability to import the dog was said to have caused the Applicant and her husband tremendous personal damage and had a serious impact on their lives. The Applicant’s husband also submitted that the options for importing through a third country were not practical in their circumstances.

21. However, no submissions directed to questions of relevant fact and law, as articulated in both the Respondent’s written and oral submissions, were forthcoming. In particular, the submissions of the Respondent essentially remained unchallenged. There was no alternative valid contention to rebut the thrust of those submissions.

22. The Tribunal was directed to the submissions made by the Applicant to the Department concerning the steps they had undertaken to facilitate the importation of the dog to Australia including the processes of veterinary examination, testing and certification. This was of course considered by the Tribunal.[13]

    [13] Details of those steps were included in a letter dated 1 September 2020 from the Applicant to the Department together with the annexures to it. The contents of that letter are referred to. They need not be reproduced for the purposes of these reasons.

23. There were several limbs to the Respondent’s submissions in support of its application for dismissal under section 42B(1)(a) and (c) of the AAT Act.

24. The first limb of the Respondent’s submissions was that the permit has now expired. Reference was made to the conditions attaching to the permit. One of those conditions under the heading “Travel to Australia” prescribed that “The dog must arrive in Australia prior to the expiry date of this import permit”.[14] Due to this condition in the permit, the application is futile and serves no useful purpose. This is because even if the Tribunal set aside the revocation decision as affirmed on 17 December 2020, the decision would have no legal effect due to the expiry of such permit.

    [14] This condition is found in document T3 of the T Documents, p 18.

25. The second limb of the Respondent’s submissions was that Malaysia remains a country that is not approved for the importation of cats and dogs into Australia. Reference was made to the “List of Approved Countries for the import of live cats and dogs to Australia”.[15] Malaysia is not included on the list.

    [15] ST Documents, ST2.

26. The Respondent, as a corollary to the first and second limbs of its submission, contended that even if the two hurdles identified above could be overcome this application would have no reasonable prospects of success.

    CONSIDERATION

27. The Tribunal is persuaded that no useful purpose is served by allowing the application for review of the decision to revoke the permit to proceed. It accepts the contention of the Respondent that there would be no legal effect even if the Tribunal were to set aside the revocation decision. As the permit has expired the Applicant would be in no better position. If she wishes to import the dog, she would be required to apply for a fresh permit.

28. Similarly, the Applicant faces the hurdle of the fact that Malaysia is not an approved country for the importation of a dog. The permit does not allow importation from a non-approved country, as noted earlier. Once again, even if the application were successful, the permit (which has expired in any event) could not be used to import the dog concerned from Malaysia.

29. Finally, as noted above in the submissions made by and on behalf of the Applicant, the “Reasons for Decision” contained in the internal review were not challenged. The thrust of the submissions made by the Applicant, as noted earlier, was the personal inconvenience and that it was manifestly unfair to her. It should be recalled that those reasons were detailed, carefully articulated, and furnished by a Senior Veterinary Officer of the Respondent. The Tribunal agrees that to find for the Applicant would require the Tribunal to have to ignore the risk assessment and policy of the Australian regulator in respect of Malaysia. There is the potential to imperil Australia’s biosecurity interests in circumstances where there is no apparent justification for a departure from that policy other than the Applicant’s personal desire to import the dog.

30. It should also be observed by the Tribunal that the Respondent’s representatives consistently submitted that the most appropriate approach for the Applicant to adopt would be to have the dog prepared in and exported from a third country that is on the approved list of countries from which dogs are permitted to be imported. The Respondent suggested that a new import permit should be pursued on that basis. It does seem the most practical approach to addressing the Applicant’s concerns.

31. For these reasons, the Tribunal is satisfied that the application for review of the decision is frivolous, in that it serves no useful purpose, and has no reasonable prospects of success. The Tribunal, pursuant to section 42B(1) of the AAT Act, dismisses the application.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision of R Cameron, Senior Member

......[sgd].......................................

Associate
Dated: 15 June 2021

Date of interlocutory hearing:	5 May 2021
Advocate for the applicant:	Dr Sureshan Marcandan
Advocate for the respondent:	Karwan Eskerie
Solicitors for the respondent:	Sparke Helmore Lawyers