Two Feet and a Heartbeat Pty Ltd and Australian Trade and Investment Commission

This matter concerned an appeal by Two Feet and a Heartbeat Pty Ltd against a decision of the Australian Trade and Investment Commission (Austrade). The dispute centred on the eligibility of the applicant for an Export Market Development Grant, specifically whether the applicant's business was a continuation of a previous business for the purposes of the grant scheme. The case was heard by Deputy Boyle P.

The primary legal issues before the Tribunal were whether it had jurisdiction to review the decision under section 99 of the relevant Act, and if so, what constituted the reviewable decision. This involved determining whether a decision of the CEO of Austrade, as confirmed or varied under section 98(4), had been properly identified and presented to the Tribunal. The Tribunal also considered the application of Ministerial Guidelines under section 101 of the Act, which govern how the CEO determines if a new business is a continuation of an old business.

Deputy Boyle P noted that the documentation provided by Austrade was unclear as to the precise decision being reviewed. While the applicant referred to a letter dated 3 December 2018 indicating an appeal was unsuccessful, this letter was not included in Austrade's official documents. Furthermore, inconsistencies arose from Austrade's own statements regarding the dates of the "Original Decision" and the "Review Decision," creating ambiguity about the procedural steps taken and the specific decision subject to review.

The Tribunal found that the jurisdiction under section 99 of the Act was limited to reviewing a decision of the CEO that had been confirmed or varied under section 98(4). Due to the lack of clarity regarding the exact decision that had undergone this process, and the conflicting information presented by Austrade, the Tribunal concluded that the matter could not be properly determined. Consequently, the decision was set aside and remitted for reconsideration.