Wiseway Logistics Pty Ltd and Secretary, Department of Home Affairs
[2024] AATA 1032
•6 May 2024
Wiseway Logistics Pty Ltd and Secretary, Department of Home Affairs [2024] AATA 1032 (6 May 2024)
Division:GENERAL DIVISION
File Number(s): 2023/8442
Re:Wiseway Logistics Pty Ltd
APPLICANT
AndSecretary, Department of Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:6 May 2024
Place:Sydney
The stay application filed on 29 April 2024 is refused.
............................. [SGD]...........................................
Senior Member A Poljak
Catchwords
AVIATION TRANSPORT SECURITY – Application for a stay of respondent’s decision not to renew applicant’s designation as a registered air cargo agent – Stay hearing – Whether appropriate for an application for a stay to be relitigated – Whether there is a change in circumstances – application refused.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Aviation Transport Security Regulations 2005 (Cth)
Cases
Wiseway Logistics Pty Ltd v Secretary, Department of Home Affairs [2024] FCA 427
Wiseway Logistics Pty Ltd v Secretary, Department of Home Affairs (AAT, 7 February 2024)
REASONS FOR DECISION
Senior Member A Poljak
6 May 2024
1. The applicant is a freight forwarder which was designated as a regulated air cargo agent (RACA) under the Aviation Transport Security Regulations 2005 (Cth) (Regulations) on 8 February 2019 for a period of five years. On 15 September 2023 the applicant applied for renewal of it’s RACA designation. On 31 October 2023 a delegate of the respondent decided to refuse to grant that renewal (refusal decision). The applicant seeks review of the refusal decision by the Tribunal in the substantive proceeding.
2. With the applicant’s RACA designation due to expire on 8 February 2024, the applicant sought a stay of the refusal decision pending the outcome of the proceeding under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
The Tribunal refused the stay on 7 February 2024; see Wiseway Logistics Pty Ltd v Secretary, Department of Home Affairs (AAT, 7 February 2024) (Wiseway). The same day, the applicant obtained ex parte orders from Nicholas J as duty judge staying both the Tribunal’s decision and the refusal decision. On 16 February 2024, his Honour continued the stay on conditions.
On 26 April 2024, Kennett J dismissed the applicant’s application for judicial review of the Tribunal’s refusal of the applicant’s first stay application; see Wiseway Logistics Pty Ltd v Secretary, Department of Home Affairs [2024] FCA 427 (26 April 2024). His Honour continued the stay ordered by Nicholas J until 5:00pm on 1 May 2024.
The applicant has filed a fresh stay application in this Tribunal, based on changed circumstances since the original application. The application was filed on 29 April 2024, one week prior to the commencement of the substantive hearing. The applicant seeks the stay on the same strict conditions that have been in force pursuant to the Federal Court’s orders since February 2024.
Given the time constraints, pursuant to section 41(2) of the AAT Act, an interim stay was granted by the Tribunal on 1 May 2024, which would continue until 10:00AM on 6 May 2024 or until further order. The interim stay was made with the same conditions as imposed by Nicholas J of the Federal Court. The conditions are that for so long as the stay remains in force the applicant:
(a)will cease conducting examinations under the Aviation Transport Security Act2004 (Cth) (Act) and the Regulations;
(b)is only to handle cargo from existing customers who are prescribed as “known consignors” under the Regulations;
(c)will only conduct the handling of cargo in accordance with the security program in force with respect to the Applicant; and
(d)will engage an independent auditor, to be agreed by the Respondent (such agreement not to be unreasonably withheld), who will supervise the conduct of the Applicant on a daily basis and report weekly to the Respondent as to the Applicant's compliance with the Act, the Regulations, and this undertaking.
The first question to be considered is whether it is appropriate for an application for a stay to be relitigated.
The applicant contends that a second interlocutory application for a stay should be permitted because the relief sought by the applicant is different from that sought in the first application. The applicant now seeks the stay only on the same strict conditions that have been in force pursuant to the Federal Court’s orders since February 2024, whereas the original application was for an unconditional stay. Further, the applicant contends that there has been a material change in the circumstances since the first order was made, or where there is new material which was not available at the time the first orders were made.
The applicant submits that since the respondent’s original decision in October 2023, much has changed in the intervening period, such that the Tribunal is presented with a quite different factual landscape to that which was before the original delegate. Relevantly for the period after the determination of the original stay application, the applicant has not performed screening functions since 7 February 2024 and contends that it ceased to engage third party security contractors and in particular MSS since 8 February 2024 and developed measures to reduce reliance on third party security contractors in the event any third-party security contractor is engaged in the future.
The applicant contends that a change in circumstance also includes the fact that the applicant has demonstrated an ability to comply safely with the regime prescribed by the Federal Court over a number of months.
The applicant submits that the evidence of Mr Tong, Chief Operating Officer of the applicant, demonstrates a material change as it identifies measures implemented by the applicant in consultation with suitably qualified experts, to address and rectify underlying root causes of the applicant’s history of non-compliance. The applicant also submits that since the week starting 26 February 2024, Mr Wandmaker has been conducting independent weekly on-site audits of the two sites where the applicant’s RACA privileges continue to be authorised. The applicant submits that this is new evidence and includes evidence of the applicant’s compliance contained in Mr Wandmaker’s audit reports.
The applicant’s compliance with previous conditions of the Federal Court is in dispute.
In a statement dated 15 April 2024, Michele Pearce, Director of National Operations and Compliance and Coordination, Regulatory Compliance Branch for the Department of Home Affairs, details compliance issue with the applicant from February to March 2024. The compliance issues are also addressed in the evidence of Darren Nicholls and Imogen Kitteridge. The applicant submits that three of the alleged breaches are in contention and that one was potentially a breach. But even so, the applicant contends that none of the breaches raise issues with security. In this regard, the applicant relies on the evidence of Mr Wandmaker.
It is not necessary for me to resolve this evidentiary conflict for the purposes of the preliminary issue nor the substantive stay application. It is enough that the evidence suggests compliance issues have been raised while the conditions imposed by the Federal Court were in place. As such, the submission of the applicant that it has been compliant with the conditions of the stay of the Federal Court is not considered persuasive.
The key facts which underscore the main reason for the refusal of the applicant’s stay application before Senior Member Kelly in Wiseway is safety. SM Kelly found that the applicant promised to make changes, said they made changes and was still making them. At that time, it was noted that the effectiveness of the changes could not be determined or assumed. This still remains the case. SM Kelly Said at [59]:
The Applicant’s five year history of non-compliance, even if it is not as serious as the Respondent contends cannot be somehow offset by the measures that have been recently implemented or are planned to be implemented. Whether they will be effective cannot be determined. It cannot be assumed.
While the applicant puts forward evidence that further measures are being put in place to address the applicant’s history of non-compliance, this remains entirely untested, and the effectiveness of such measures still appears to remain in dispute. As such, the public interest, namely the primacy of ensuring public safety, remains. Safeguarding against unlawful interference with aviation is paramount.
The dispute as to the applicant’s compliance with its obligations imposed by the Federal Court reinforces that there has been no material change in circumstances. There has been an extensive and long history of non-compliance by the applicant. This fact remains.
For these reasons, I am not satisfied that there are changed circumstances sufficient to warrant the stay application to be re-litigated. The stay application filed on 29 April 2024 is refused.
19. I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
.........................[SGD]...............................................
Associate
Dated: 6 May 2024
Date(s) of hearing: 1 May 2024 Counsel for the Applicant: Mr T Brennan SC Counsel for the Respondent: Mr H Bevan SC
1
1
0