Lai and Chief Executive Officer of Customs [2000] AATA 1029 (24 November 2000)

Last Updated: 5 December 2000

DECISION AND REASONS FOR DECISION [2000] AATA 1029

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1877

GENERAL ADMINISTRATIVE DIVISION )

Re VAN AN LAI

Applicant

And CHIEF EXECUTIVE OFFICER OF CUSTOMS

Respondent

DECISION

Tribunal Mr B. H. Pascoe, Senior Member

Date 24 November 2000

Place Sydney

Decision The Tribunal affirms the decision under review.

.......(Sgd) B. H. Pascoe.........

Senior Member

CATCHWORDS

CUSTOMS - licence to act as customs agent - whether applicant has acquired experience that fits him to be a customs agent - applicant's unsupported evidence - recommendation by National Customs Agents Licensing Advisory Committee - whether adequate range of experience - whether additional evidence

Customs Act 1901

Re Zacharia and Collector of Customs (1994) 19 AAR 390

REASONS FOR DECISION

24 November 2000 Mr B. H. Pascoe, Senior Member

1. This is an application to review a decision of the respondent dated 7 May 1999 to grant a licence to the applicant to act as a customs agent pursuant to Division 3 Part XI of the Customs Act 1901 ("the Act"). The applicant had applied for a licence on 14 September 1998. He was interviewed by the National Customs Agents Licensing Advisory Committee ("NCALAC") ("the Committee") on 4 November 1998. The Committee noted that the applicant had originally applied for a licence in 1990 and had been interviewed on several occasions since that date. The Committee provided a report to the respondent dated 3 May 1999 although it is noted that two of the three members had dated their signature as 6 May 1999. The report recommended that the issue of a licence not be approved.

2. At the hearing the applicant, Mr Van An Lai, represented himself with the assistance of a friend and his wife. The respondent was represented by Mr R. Northcote of counsel. Evidence was given by the applicant. The Tribunal had the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Prior to the hearing the applicant had filed and served a letter dated 13 April 2000 summarising his experience in the industry. In addition, the applicant had forwarded copies of references from three former employees. However, at the hearing he acknowledged that he would not be relying on these references.

3. An appropriate summary of the relevant provisions of Division 3 was provided by the decision of Deputy President McMahon of this Tribunal in Re Zacharia and Collector of Customs (1994) 19 AAR 390. There has been no change of any significance in the legislation since then other than changing the title of the respondent from "Comptroller" to "CEO". In that case, the Tribunal was considering a situation similar to this matter and said (at pages 390 and 391):

"That Division empowers the respondent to grant a licence known as an agent's licence, entitling the holder to act as the agent of an owner for the purposes of the Act. Sub-section 181(4), in effect, grants a statutory monopoly to holders of these licences to perform certain named functions.

When the respondent receives an application for licence, he is bound to refer it to the Committee for a report and is bound to delay the grant or refusal of the licence until he has received and considered that report. The Committee means the National Customs Agents Licensing Advisory Committee established by s 183D.

The Committee consists of a Chairman, a member to represent customs agents, and a member to represent the Commonwealth. All are obliged by s 183DA to have special skills. The Committee, in effect, is an expert Committee. Section 183E allows for the making of regulations in relation to the procedure of the Committee. Succeeding sections empower the Committee to hear proceedings in private, to summon witnesses, to serve notices and summonses, to examine upon oath and affirmation and to allow legal representation. Clearly the Committee's functions are not restricted to the making of written reports. It is entitled to conduct oral hearings into any matter which is properly referred to it.

Having considered the Committee's report, the respondent is then bound to look to the terms of s 183CC to determine whether the applicant fulfils the requirements for the grant of a licence. The requirements in question in the present application are to be found in sub-section (2). An applicant is to be taken to be qualified to be a customs agent if and only if (with certain non-relevant exceptions) he has completed a course of study or instruction approved under sub-section (5) and secondly he has acquired experience that in the opinion of the Comptroller fits him to be a customs agent. Sub-section (5) empowers the Comptroller, after obtaining and considering the advice of the Committee, to approve in writing a course or courses of study or instruction that fits a person to be a customs agent.

There are therefore 2 essential requirements, academic achievement and experience. ..."

4. Mr Van An Lai, said that he has worked in the customs industry since 1985. He maintained that he had dealt with all facets of customs procedures including:

* classification of imported goods

* determination of the value of goods for calculation of duty

* impact of sales tax on imported goods

* determination of appropriate marine insurance

* preparation and processing of duty drawback claims

* preparation and processing of refund claims

* applications for tariff concession orders

* methods of payment and export finance

* feasibility costing services

His employment history since 1985 commenced with three years dealing with customs work at an Australian Chinese medicine company. He then had approximately one year with a small customs agent, three to four months temporary work with a freight company and some five years as export manager and assistant customs manager with an importer and exporter of machinery and equipment. In 1995 he commenced work with an importer of food machinery. Initially this was full-time but, after one year, he worked part-time, two days per week, and is currently maintaining that part-time employment. In 1997 he worked part-time with three large freight companies. Since 1998 he has worked part-time at Federal Express, working five to seven hours per night. In his written summary of experience he describes his work at Federal Express as classifier and compiler although in his oral evidence, he stated that the work covers a wide range of customs procedures. Currently he spends two days per week with the importer, five nights with Federal Express and the balance of his time operating his own business which he said was unrelated to customs work.

5. Mr Van An Lai has made three attempts to pass the examination of the Customs Brokers Council of Australia ("CBCA") without success. In his evidence he was critical of the examination process and maintained that he has been unable to obtain from the CBCA a report on his results and details of the required answers to questions. He successfully completed the approved TAFE course in 1990 and was accepted by the Committee and the respondent as being a person of integrity. The sole issue in this matter is whether the applicant has acquired experience that fits him to be a customs agent.

6. The difficulty in this case is similar to that faced by the Tribunal in Re Zacharia (supra). The applicant is seeking to have the Tribunal come to a different view to that expressed by the Committee on the basis of his evidence that he has acquired the relevant experience but without support from evidence of any independent referee or other objective evidence. Mr Van An Lai sought to imply that his inability to obtain supporting evidence from an experienced customs agent, to pass the CBCA examinations and to obtain support from the Committee has the connotations of a conspiracy by the CBCA to restrict his ability to obtain a licence. He maintained that he had been advised that he would not obtain a licence without the support of the CBCA and he pointed to the fact that the Committee report was signed by the CBCA representative prior to being signed by the other two members. The Tribunal is unable to place any reliance on Mr Van An Lai's allegations. The structure of the legislation does result, as a matter of practicality, in an applicant for a licence requiring a degree of support from the CBCA either by way of passing its examination or by obtaining support from referees who are likely to be members of that association. The Tribunal sees nothing sinister or personal to Mr Van An Lai in this. To be licensed to act as an agent within the industry requires the gaining of experience in all of the functions of the industry. Inevitably this will be with members of the industry and the demonstration of that experience will generally require the support of those members.

7. The members of the Committee who recommended that the issue of a licence to Mr Van An Lai be not approved were Mr R. K. Todd AM, Chairman, Mr K. Heazlett, and Mr G. Weppner. Mr Todd is a former Deputy President of this Tribunal and has been Chairman since 1996. Mr Heazlett is an experienced customs agent and the industry representative of the Committee whose evidence in Re Zacharia was accepted by the Tribunal as to the range of experience required for a licensed customs agent. Mr Weppner represents the Commonwealth on the Committee. In its report the Committee concluded its reasons for recommending against the issue of a licence to Mr Van An Lai in these words:

"5. Although the applicant performed satisfactorily at interview and has a long history in the Customs Industry, the Committee is not convinced that the work performed by the applicant over that period is the type of work that would allow the applicant to gain the experience required to be a Customs Broker. The Committee also felt that the inability and reluctance of any of the applicant's referees to corroborate and elaborate on his experience is also a major factor in the Committee's decision. The Committee made numerous attempts to corroborate his said experience through canvassing as many of his previous employers and referees as could be contacted. They generally agreed that he was a good person and a diligent worker but their references could go no further and failed to state that he had acquired the experience needed to be a Customs Broker.

6. In our opinion it will only be in rare circumstances that an exemption such as that here sought can be granted. We refrain from using expressions such as 'exceptional' or 'special' which have been used in statutes in the past and been subject to judicial consideration so intense that the words in the judgements have themselves come to be treated as statutory expressions having a rigid meaning. We would, in the present context, rather see it as a matter of careful consideration of each particular case, bringing into that consideration the length and breadth of experience of the applicant, as attested to by the NCALAC's own oral examination of the applicant, and the strength of the evidence given by the applicant's referees as to their knowledge and observation of the applicant's skills and experience in their contact with him/her while under supervision in the course of employment. We would expect to find in such evidence a demonstration that an applicant has, in acquiring such experience, been nurtured in a learning environment. With no little regret we are unable to so find in this case.

7. On the evidence and on the basis of this reasoning we make the recommendation that appears at the outset of this report."

8. As stated earlier, the only evidence before the Tribunal was that of Mr Van An Lai that he had acquired the necessary experience of all facets of work of a customs agent. There was no elaboration of that experience. A description of the range of work done was contained in a brief letter of 13 April 2000 filed before the hearing. One concern is that the wording of each area of work was virtually identical with the words used in an Australian Customs Notice No. 95/30 which set out the range of areas of experience in which the NCALAC would expect an applicant to be fully conversant. These words, in turn, appear to be based on those used in Re Zacharia. It may well be that Mr Van An Lai has that full range of experience. His difficulty is that he does not provide any supporting evidence and the simple reiteration of the words is not sufficient. As with the Tribunal's position in Re Zacharia, I am not an expert with full knowledge of the industry and must rely on evidence put before me which clearly includes a report of an expert committee, the NCALAC. In Re Zacharia, the applicant had extensive experience in other areas. Here, Mr Van An Lai says that he has had a wider experience. However, he was unable to convince the NCALAC of the truth of this and has produced no further evidence before this Tribunal. It should be noted that this Tribunal is standing in the shoes of the respondent in this matter and in a position of having received the same advice from the NCALAC, a committee charged under the Act to investigate and report on applications for licences. Whilst it is an advisory opinion only, the Tribunal is unlikely to substitute its own opinion unless it is satisfied that the opinion or recommendation is incorrect, arrived at without proper consideration of the facts or that evidence not before that committee is before the Tribunal. In this case none of these factors is present. Mr Van An Lai may well be fully experienced in all of the areas necessary to fit him to be a customs agent. However, he needs to demonstrate this to the satisfaction of the NCALAC, the respondent or the Tribunal. He has failed to do and may continue to so fail unless he is able to produce appropriate referees or adequate objective evidence of that experience. His unsupported statements and complaints about the system are unlikely to lead to a grant of the licence which he seeks.

9. The consequence of the failure of Mr Van An Lai to demonstrate to the satisfaction of the Tribunal that he has acquired the necessary experience must result in the decision under review being affirmed.

I certify that the nine (9) preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B. H. Pascoe, Senior Member

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 8 November 2000

Date of Decision 24 November 2000

Solicitor for the Applicant The applicant was self-represented

Counsel for the Respondent Mr R. Northcote

Solicitor for the Respondent Australian Government Solicitor