Eurovox Pty Ltd and Chief Executive Officer of Customs [2000] AATA 809 (11 September 2000)

Last Updated: 27 October 2000

CATCHWORDS - CUSTOMS - PRACTICE AND PROCEDURE - extension of time - whether applicant sought review by the Tribunal - whether required to lodge application - effect of application to become a party - extension of time refused.

Administrative Appeals Tribunal Act 1975 - Ss 29, 29A, 30, 34, 41, 42A, 45

Administrative Appeals Tribunal Regulations - Rr 5A, 19, 19AA, Schedule 1

Customs Act 1901 - Ss 269F, 269HA, 269SD, 269SJ

Customs Regulations 1926 - R 185

Customs Tariff Act 1995 - Schedule 3 and 4

Customs (Tariff Concession System Validations) Act 1999 - Ss 2, 3, 4, 5, 6

Angus Fire Armour Australia Pty Ltd v Collector of Customs (1988) 19 FCR 477 Purden Pty Ltd v Registrar in Bankruptcy (1982) 64 FLR 306

Sanyo Australia Pty Ltd v Comptroller-General of Customs; Matsushita Electric Co Australia Pty Ltd and Akai Pty Ltd (unreported decision AAT No 9289A, 17 August, 1994, Deputy President McMahon, D D Coffey and I R Way (Members))

DECISION AND REASONS FOR DECISION [2000] AATA 809

ADMINISTRATIVE APPEALS TRIBUNAL )

) V1999/1158

GENERAL ADMINISTRATIVE DIVISION )

Re: EUROVOX PTY LTD

Applicant

And: CHIEF EXECUTIVE OFFICER OF CUSTOMS

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)

Date: 11 September, 2000

Place: Brisbane

Decision: The Tribunal refuses the applicant's application for an extension of time within which it might lodge an application for review of a decision of the respondent dated 10 September, 1997.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 12 October, 1999, the applicant, Eurovox Pty Ltd ("Eurovox"), applied for an extension of the time within which it might lodge an application for review of a decision of the respondent, the Chief Executive Officer of Customs ("the CEO"), dated 10 September, 1997. A delegate of the CEO had decided to refuse to refund duty paid by Eurovox on the basis that the relevant tariff classification orders ("TCOs") were not operative at the time of entry.

2. At the hearing of the application, Eurovox was represented by Mr Hanks QC and the CEO by his solicitor, Mr Northcote. An affidavit of Mr Peter Allan Hodder, a customs broker, was admitted in evidence together with a copy of a letter dated 13 November, 1996 from Mr Hodder to the Tribunal attaching an application for review of a decision of a delegate of the CEO made on 16 October, 1996 and rejecting an application for a tariff concession order. No oral evidence was given at the hearing.

THE ISSUE

3. The issue in this case is whether Eurovox's application, headed "Application to be made a party to a proceeding" lodged on 27 November, 1997, meant that it had "sought a review by the Administrative Appeals Tribunal of ... a decision ... not to pay a refund of customs duty" within the meaning of s. 6(1) of the Customs (Tariff Concession System Validations) Act 1999 ("Validations Act").

BACKGROUND

4. The facts forming the background in this case have their foundation in two earlier applications in the Tribunal. Each is referred to in the affidavit of Mr Hodder and I have also looked at the Tribunal's files in relation to those applications.

5. I find that Eurovox is an importer of car components. Mr Hodder has advised it in relation to various customs matters. On 25 September, 1996, Eurovox applied in accordance with s. 269F(1) of the Customs Act 1901 ("Customs Act") for a Tariff Concession Order ("TCO") for goods described as "Motor vehicle radio-broadcast receivers combined with sound recording or reproducing apparatus" ("motor vehicle radio/cassette players"). On 10 October, 1996, it applied for another TCO for goods described as "Motor vehicle reproducers, digital audio, compact disc, laser beam" ("compact disc units"). Both types of goods were said to be "... designed for use in all motor vehicles. In particular they are used by O.E. [original equipment] manufacturers GMH and Mitsubishi re the motor vehicle manufacturing plan. They are also used by after sales O.E. car suppliers namely, Nissan, Audi and BMW."

6. It was common ground between Eurovox and the CEO that the goods described in each application fell within sub-headings under Schedule 3 of the Customs Tariff Act 1995 ("Tariff Act"). The issue for determination was whether the goods were entitled to concessional entry under Schedule 4 of the Tariff Act. Section 269HA(1) of the Customs Act provides that the CEO must reject an application for a TCO if he is prevented from making a TCO under s. 269SJ(1). He is prevented from making a TCO in respect of goods if those goods have been declared by the Customs Regulations 1926 ("Customs Regulations") to be goods to which a TCO should not extend (s. 269SJ(1)(b)). Regulation 185(1) provides that, for the purposes of s. 269SJ(1) of the Customs Act, a TCO should not extend to goods in respect of which the general rate of customs duty specified in the Customs Tariff Act is 15%. Pursuant to Item 53(a) of Part III of Schedule 4 of the Customs Tariff Act, goods are not entitled to concessional rates of duty upon their importation into Australia if the goods are "... of a kind used as replacement components in passenger motor vehicles ...".

7. A delegate of the CEO refused both of Eurovox's applications for TCOs on the basis that the goods were "... 'goods of a kind used as replacement components in passenger motor vehicles' and were therefore still goods specified in the Customs Tariff Act 1995 with a general duty rate of 15% and were subject to Regulation 185." The decision in respect of the motor vehicle radio/cassette players was made on 16 October, 1996 and that in respect of the compact disc units was made on 1 November, 1996. On 13 November, 1996, Eurovox lodged two applications in the Tribunal for review of those decisions (V96/1384 and 1385). Mr Hodder instructed solicitors in relation to these applications.

8. Between November, 1996 and June, 1997, Pioneer Electronics Australia Pty Ltd ("Pioneer Electronics") lodged a number of entries for home consumption relating to motor vehicle radio/cassette players and compact disc units. For the purposes of customs, those goods were entered into Australia under their respective tariff items and Pioneer Electronics paid duty accordingly. In June, 1997, an amendment to r. 185(2) of the Customs Regulations effectively restored concessional entry to goods of the type imported by Pioneer Electronics. The amendment did not, however, apply to those imported prior to the amendment.

9. In respect of those goods imported earlier, Pioneer Electronics sought to have a duty concession applied to the goods and, commencing in July, 1997, lodged 47 refund applications on the basis that Commercial Tariff Concession Orders ("CTCOs") 8439972 and 9100855 applied to the goods that had been entered for customs purposes. Revocation orders, which were dated 29 November, 1996, notified in the Commonwealth Gazette dated 2 October, 1996 pursuant to s. 269SD(1AA) of the Customs Act and made by a delegate of the CEO, purported to revoke the CTCOs with effect from 25 September, 1996. He purported to make the revocation pursuant to s. 269SD(1AB). Section 269SD comes within Part XVA of the Customs Act.

10. Mr Hodder had also been instructed by Eurovox to take appropriate steps to obtain from Customs a refund of customs duty following the revocation of those CTCOs. He consulted Mr John O'Halloran, a senior consultant with Price Waterhouse, as to the appropriate steps he should take. Mr O'Halloran was acting for Pioneer Electronics. On 21 July, 1997, Mr O'Halloran sent Mr Hodder a draft of a letter which he proposed to send to the Australian Customs Service ("ACS") on behalf of both Pioneer Electronics and Eurovox. His draft letter stated that Eurovox believed that the revocation of a number of CTCOs was not legal and was seeking a refund of duties it had paid due to its inability to claim the CTCOs on the appropriate entries. The letter stated that "Eurovox is acting in conjunction with Pioneer Electronics Australia Pty Ltd who will also be lodging refund claims shortly." (Exhibit A, Annexure "PH-1").

11. On 25 August, 1997, Mr O'Halloran wrote again to the ACS. He advised that Pioneer Electronics had lodged refund applications for duty paid on various car audio products. Another car audio importer (Eurovox), he said, would also be lodging similar refund claims. Pioneer Electronics and Eurovox were acting jointly in this matter and the letter set out their submission why the revocation of the CTCOs had been invalid (Exhibit A, Annexure "PH-2").

12. Once Mr Halloran's letter had been sent, Mr Hodder lodged on behalf of Eurovox nineteen applications for refunds of duty and sent an accompanying letter dated 2 September, 1997 (Exhibit A, Annexure "PH-3"). Mr Hodder's letter stated that the basis of the applications had been detailed in Mr O'Halloran's letter of 25 August, 1997 to the ACS. On 10 September, 1997, Mr Hodder received a decision, dated the same day, refusing to refund duty paid by Eurovox (Exhibit A, Annexure "PH-4"). The basis of the refusal was that the TCO was not operative at the time of entry.

13. On 17 September, 1997, Mr O'Halloran sent a letter to Mr Hodder attaching a copy of reply he had received to his letter of 25 August, 1997 (Exhibit A, Annexure "PH-5"). The ACS's reply, dated 15 September, 1997, referred to Mr O'Halloran's request for refunds in respect of car audio products imported by Pioneer Electronics and Eurovox. It then went on to advise Mr O'Halloran why it did not accept his reasoning that its revocation action was without foundation. In his facsimile message, Mr O'Halloran asked Mr Hodder to consider the ACS's response. They should then discuss the matter, he wrote.

14. On 28 October, 1997, Mr O'Halloran advised Mr Hodder that Pioneer Electronics had applied to the Tribunal for review of the decision not to refund to it the duty it had paid to the ACS (V97/1236). On 27 November, 1997, Mr Hodder delivered to the Tribunal's Registry a document headed "Application to be made a party to a proceeding". In that application, Eurovox applied under s. 30(1A) of the Administrative Appeals Tribunal Act 1975 ("AAT Act") to be made a party to the proceeding between Pioneer Electronics and the CEO (Exhibit A, Annexure "PH-7"). In response to the question on that application as to the way in which the decision affects the interests of Eurovox, Mr Hodder stated:

"We lodged nineteen Refunds of Duty with the Collector of Customs, Melbourne, on behalf of Eurovox Pty Ltd.

The basis of the claimed refunds was the submission lodged by Mr J O'Halloran of Price Waterhouse to Mr R Walters of A.C.S., Canberra. V97/02710 refers.

The Refunds of Duty were rejected by the Australian Customs Service.

Attached to this Application is a copy of the A.C.S. Rejection Notice (undated) and a schedule of the entry numbers, refund claim numbers, and amount claimed." (Exhibit A, Annexure "PH-7")

Mr Hodder also attached a copy of the Refund Rejection Notice and the relevant entry numbers, refund claim numbers and amounts claimed.

15. On 8 December, 1997, Deputy President Forrest directed that Eurovox's application should await the outcome of the Eurovox and CEO matters (V96/1384 and 1385). Decisions in those matters had been reserved on 20 November, 1997. A note was made in the Tribunal's case management system to resubmit the Pioneer Electronics application on 2 February, 1998 to follow up Eurovox's application for a joinder. That was a date prior to a conference scheduled for 20 February, 1998. Mr Hodder was out when a Registry officer telephoned Mr Hodder on 9 December, 1997 to advise him of the course of action. He was asked to return the call. (Exhibit A, Annexure "PH-8" and "PH-9")

16. On 19 February, 1998, Mr O'Halloran advised Mr Hodder that the Tribunal had deferred the further hearing of Pioneer Electronics' application pending its decision in the Eurovox matter (Exhibit A, Annexure "PH-10"). On 17 March, 1998, the Tribunal affirmed the CEO's decisions in the Eurovox applications. In affirming the decisions, the Tribunal rejected Eurovox's submission that the goods were original goods and not goods "of a kind used as replacement components" falling within the exclusion of goods entitled to concessional entry in Item 53 of Part III of Schedule 4 of the Customs Tariff Act 1995. Eurovox lodged an appeal to the Federal Court. That appeal was heard on 10 December, 1998 and dismissed on 18 December, 1998.

17. Mr Hodder did not receive any communication from the Tribunal relating to Eurovox's application for joinder. He had assumed that the Tribunal would contact him when he was ready to reactivate Pioneer Electronics' application for review and Eurovox's application for joinder.

18. Pioneer Electronics' applications were heard and, on 2 July, 1999, the Tribunal expressed the view that the revocation orders in relation to CTCOs 8439972 and 9100855 had been made without proper power. The orders had been made without proper power as the power relied upon by the CEO was that under s. 269SD(1AB) of the Customs Act and that power had not been delegated to the person who had purported to make them. It had not been delegated, the Tribunal found, as s. 269SD(1AB) had not formed part of s. 269SD when the CEO signed on 27 November, 1995 an "Instrument of Delegation of Comptroller-General's Powers" pursuant to s. 14 of the Customs Administration Act 1985. Section 269SD(1AB) (and s. 269SD(1AA), which necessarily complements it) was added to s. 269SD on 15 July, 1996 by the Customs Amendment Act 1996.

19. As the power had not been properly delegated, that led to the conclusion that Pioneer Electronics had paid duty as a consequence of a patent misconception of the law. Consequently, the Tribunal set aside the CEO's decisions to reject the claims for refund and remitted the matters to the CEO with a direction that he refund the duty paid.

20. Mr Hodder received notice of the Tribunal's decision on approximately 27 July, 1999. On 3 August, 1999, he wrote to the Tribunal noting that the decision had been handed down in the Pioneer Electronics' matter. He also noted that:

"... our request was not taken into account due to a notation on the file that a current case was before the Federal Court (refer VG15198) and our request was not to be included until 29.01.99.

Would you please now issue an order enabling us to seek refunds of duty on applications lodged and rejected by the Australian Customs Service regarding identical products." (Exhibit A, Annexure "PH-11")

21. On 25 August, 1999, Mr Gawne, District Registrar, replied to Mr Hodder:

"It seems you are under some misapprehension in this matter. Pioneer lodged an application for a review of the decision of Customs in relation to its refund claims, which as you are aware, is the subject of the decision of the Tribunal on 2 July 1999. It is noted that Eurovox did not lodge an application for review of the decision but applied to be joined as a party to the separate Pionneer application. An application to be joined as a party could not achieve what you are now seeking because it related only to Pioneer's application and not to any application for review by Eurovox.

Your request for a refund of duty, which presumably is made in accordance with the decision of the Tribunal in the Pioneer matter will need to be made to Customs. For the reasons explained a joinder application cannot achieve this result because the Tribunal does not have jurisdiction to make the order you are now seeking in the absence of an application for review.

May I suggest that, failing a satisfactory response from Customs you may wish to lodge on behalf of your client a separate application for review to the Tribunal." (Exhibit A, Annexure "PH-12")

22. On 12 October, 1999, Mr Hodder lodged an application on behalf of Eurovox for review of the CEO's decisions made on 10 September, 1997 to refuse to refund duty paid by Eurovox (see paragraph 7 above). At the same time, he lodged an application for an extension of the time within which that application could be lodged.

23. On 3 November, 1999, the Validations Act received the Royal Assent and commenced operation (s. 2). The legislation was "... designed to remove any doubt about the validity of certain decisions made by officers of the Australian Customs Service in relation to the tariff concession system" (Second Reading Speech, Mr Slipper, Parliamentary Secretary to the Minister for Finance and Administration, Hansard, House of Representatives, 21 October, 1999). The issue of the validity of certain decisions was the basis of the Tribunal's decision regarding Pioneer Electronics' application.

24. Section 4 of the Validations Act validates certain affected delegations. An "affected delegation" means:

"... any delegation, or purported delegation, by the CEO to an officer of Customs of powers or functions conferred on the CEO under a specified section or subsection of Part XVA of the Customs Act if:

(a) that delegation was executed on 27 November 1995 or on any later day before 31 May 1999; and

(b) a revocation of that delegation was not executed, or purportedly executed, before 31 May 1999." (s. 3)

25. It follows that the Instrument of Delegation of Comptroller-General, which was signed on 27 November, 1995 and which had not been revoked before 31 May, 1999, is an affected delegation. That affected delegation related to powers given under s. 269SD and so to powers given under Part XVA of the Customs Act. In view of that, s. 4(1)(b) is directly applicable in this case. It provides that:

"if, at any time after its execution, any provision of Part XVA was amended so as to affect the ambit of a power of function purportedly covered by the affected delegation - [an affected delegation] is taken to have applied, with effect from the commencement of that amendment, in the same manner as if the delegation had been revoked and re-executed so as expressly to cover the altered ambit of that power or function."

This provision only has effect up until 1 June, 1999. As of that date, all affected delegations are taken to be of no effect (s. 4(2)).

26. Section 5 validates decisions made as well as acts and things done in reliance on an affected delegation. Subject to s. 6, a decision made and an act or thing done, or purportedly made or done, at any time on or after 15 July, 1996 in relation to a matter arising under Part XVA of the Customs Act by an officer of the ACS holding, occupying or performing the duties of a position specified in an affected delegation is taken to have been valid or validly done. They are also taken to continue to be valid or validly done.

27. Section 6 ameliorates the effect of ss. 4 and 5 of the Validations Act in relation to certain matters before the Tribunal and certain refund applications. I am concerned only with the provision relating to matters before the Tribunal. In that regard, s. 6(1) provides:

"Sections 4 and 5 do not apply in relation to any circumstance where a person has, before 1 June 1999, sought a review by the Administrative Appeals Tribunal of:

(a) a decision of an officer of Customs not to pay a refund of customs duty; or

(b) a decision of a delegate of the CEO to revoke a TCO under subsection 269SD(1AB);

but, before 1 June 1999, the Tribunal has not made a decision on that review."

CONSIDERATION

28. Has Eurovox, within the meaning of s. 6(1) of the Validations Act, "sought a review" by the Tribunal of decision not to pay a refund of duty? That turns upon whether its application to be made a party to the application made by Pioneer Electronics in file number V97/1236 may be regarded as Eurovox's having "sought a review" by the Tribunal of the CEO's decisions not to pay a refund of customs duty.

29. There is no question that Eurovox's application filed on 27 November, 1997 was, on its face, an application to be made a party to the application for review made by Pioneer Electronics. As such, no fee is payable upon its lodgement. However, the non-payment of a fee means that the application cannot, on any interpretation of its contents, be regarded as an application for review of the CEO's decisions in relation to Eurovox. That follows from the provision in s. 29A of the AAT Act that, except in circumstances that are not relevant in this case, an application to the Tribunal is not taken to be made unless any prescribed fee in respect of the application is paid. In general terms, r. 19 of the Administrative Appeals Tribunal Regulations ("AAT Regulations") provides that a fee is payable for lodging with the Tribunal of an application for review of a decision. The decisions in this case are not "prescribed decisions" within the meaning of r. 19(2) and so Eurovox would not be exempt from the payment of a fee in respect of any application for review.

30. Mr Hanks accepted that this was so but submitted that the words "sought a review by the Administrative Appeals Tribunal" in s. 6(1) of the Validations Act did not require Eurovox to have lodged, or made, an application to the Tribunal for review of a decision. The word "sought" did not equate with "lodge" or "make" but required something less than an application. Eurovox had "sought a review" of the CEO's decisions not to refund duty when it had taken steps which, viewed objectively, constitute an attempt to bring about, or request for, review by the Tribunal of those decisions. In support of his submission, Mr Hanks referred to the following definitions:

"The Macquarie Dictionary (2^nd edn, 1991) defines 'seek' as follows:

... to try to obtain; to try or attempt; to ask for, request ...

The New Shorter Oxford English Dictionary (1993) defines 'seek' as follows:

... Try or want to obtain or gain (a thing, esp. something advantageous); try to bring about or effect; Ask for, demand, request; Entreat, beseech, (a person to do) ..."

31. Mr Hanks also submitted that, had Parliament intended to limit the effect of s. 6(1) of the Validation Act to those cases in which a person had lodged an application for review in the Tribunal, it would have used more appropriate words e.g. "made an application for review" or "lodged an application" in the Tribunal. Instead, it chose the expression "sought a review". Just as the Full Federal Court in Angus Fire Armour Australia Pty Ltd v Collector of Customs (1988) 19 FCR 477 did not give the word "lodge" in s. 29(1)(d) of the AAT Act and the Full Federal Court in Purden Pty Ltd v Registrar in Bankruptcy (1982) 64 FLR 306 did not give the word "presented" in the Bankruptcy Act 1966 a narrow technical meaning, nor should I given the expression "sought a review" in the Validations Act a narrow, technical meaning.

32. In considering Mr Hanks' submissions, I have started with the application made by Eurovox on 27 November, 1997. As I have already found, on its face it was an application to be made a party to the proceeding between Pioneer Electronics and the CEO. If the application had been heard by the Tribunal, its success or otherwise would have depended upon whether Eurovox was a "person whose interests are affected by the decision". The decision by reference to which Eurovox's interests would have been considered was the decision of which Pioneer Electronics sought review. That is to say, was Eurovox a person whose interests were affected, either beneficially or adversely, by the CEO's decision to refuse to refund duty to Pioneer Electronics? In considering Eurovox's application to be a party, it would not have been relevant to consider whether it was affected by a decision by the CEO to refuse to refund duty to it (Eurovox). That is so even though the issues considered by the CEO and the grounds of his decisions were identical in his making the decisions in respect of both Pioneer Electronics and Eurovox's applications. A decision regarding the refund, or otherwise, of duty to Pioneer Electronics could not affect the interests of Eurovox in any legal sense. In particular, variation of the decision would not lead as a matter of course to a change in the decision the CEO had made in relation to Eurovox. The decision in relation to Eurovox could only be altered if Eurovox were to apply for the review of the decisions relating to it rather than relating to Pioneer Electrics.

33. This is illustrated by the fact that, had Eurovox been made a party to the Pioneer Electronics application and had Pioneer Electronics withdrawn its application at some stage before the Tribunal had made its decision, Eurovox would not have had a right to continue the application. Pioneer Electronics' withdrawal would have led to the Tribunal's being taken to have dismissed its application (AAT Act, ss. 42A(1A) and (1B)). That would have been an end of the matter and Eurovox could not have continued the application in some way so that the CEO's decisions refusing to refund duty it had paid could be reviewed and decided upon by the Tribunal. As Deputy President McMahon said in Sanyo Australia Pty Ltd v Comptroller-General of Customs; Matsushita Electric Co Australia Pty Ltd and Akai Pty Ltd (unreported decision AAT No 9289A, 17 August, 1994, Deputy President McMahon, D D Coffey and I R Way (Members)), s. 42A(1B) of the AAT Act:

"... deems the application to have been dismissed. This must mean the whole of the application. It can not mean that part of the application peculiar to the interests of Sanyo [the applicant] and not to those of Akai [a party joined]. For the purpose of sub-section (1B) an application is whole and indivisible. Subsection [42A](2) recognises this distinction by using language in paragraph (b) directed to removing a party, as distinct from the provisions of paragraph (a) where the applicant is in default [by failing to appear], and the Tribunal is given power to dismiss the application." (paragraph 19)

34. It follows that Eurovox's application to be made a party to the proceeding between Pioneer Electronics and the CEO cannot, on the basis that it is such an application, be construed as an application to review the decisions made by the CEO in respect of Eurovox's applications for a refund of duty.

35. It is clear from the text of Eurovox's application, however, that it did indeed wish to seek such a review. This brings me to Mr Hanks' submission that something less than an application for review could be lodged for it to be found that it had "sought a review" by the Tribunal. In considering that submission, I have looked first to the AAT Act. In most instances, it speaks of an application's having been "made". Section 30(1A), for example, provides for a person to be made a party to a proceeding "Where an application has been made by a person to the Tribunal for a review of a decision ..." (emphasis added). Section 34(1) provides that the President or her delegate may direct the holding of a conference "Where an application is made to the Tribunal for a review of a decision ..." (emphasis added). An application "... is not taken to be made ..." (emphasis added) unless the prescribed fee in respect of the application is paid (s. 29A(1)). Subject to certain qualifications, the "... making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision"(s. 41(1), emphasis added).

36. In addition to making an application, the AAT Act also refers to an applicant's seeking review of a decision. It does so in the context of the reference of questions of law to the Federal Court in s. 45. More particularly, it does so in the context of the Tribunal's referring such questions arising in a proceeding before the Small Taxation Claims Tribunal ("STCT"). Before the Tribunal may refer a question of law arising in a proceeding before the STCT, "... the interests of the applicant seeking review of a relevant taxation decision must be taken into account." (AAT Act, s. 45(1)(c)) (emphasis added). It is apparent from the provisions of Part IIIAA of the AAT Act that the general provisions of the AAT Act apply to applications heard in the STCT rather than in the Taxation Appeals Division of the Tribunal. Consequently, an application must comply with the requirements of s. 29 as must any other application made to the Tribunal. The prescribed fee, albeit reduced (AAT Regulations, rr. 19 and 19AA.), must be paid, otherwise the application "... is not taken to be made" (s. 29A(1), emphasis added). The reference in s. 45(1)(c) to the applicant's "seeking review" can only mean a reference to an applicant who is seeking review by having made an application. It could not be otherwise for, unless the application had been made or lodged, the Tribunal would not have power to consider it at all let alone consider whether or not to refer a question of law to the Federal Court.

37. That this is the correct interpretation is supported when regard is had to the language of the AAT Regulations. References are made to an application's having been made. They appear in r. 5A in relation to the arrangement of business and in r. 19AA(10) in relation to the refund of fees in certain instances. A reference is also made in the AAT Regulations to a person's seeking an application for review. It appears in the Form 1 set out in Schedule 1 to those regulations. Form 1, which is an application for review of decision, asks the person completing the form to set out his or her "... reasons for seeking review of this decision ..." (emphasis added). This seems to me to be no more than asking the person why he or she is making or lodging the application.

38. In the context of the AAT Act and the AAT Regulations, it seems to me that the expressions "seeking review" or "making an application" (or equivalent expressions) mean the same thing for all practical purposes. They mean that an application must have been made or lodged in accordance with the AAT Act.

39. It seems to me that the same conclusion must be reached when the expression "sought a review" is considered in the context of s. 6(1) of the Validations Act. A person cannot have "sought a review by the Administrative Appeals Tribunal" unless he or she has made or lodged an application in accordance with the AAT Act. The practical effect of an application made or lodged is that the person is asking or requesting the Tribunal to review a decision. To use the word in its ordinary meaning, he or she is seeking that the Tribunal review the decision. He or she can only be said to have "sought a review" by the Tribunal when he or she has made or lodged the application. On the ordinary meaning of the expression, it is not enough that he or she attempted to seek that the Tribunal review the decision. In the absence of a properly made or lodged application for review, he or she cannot have sought a review within the meaning of s. 6(1) of the Validations Act.

40. In view of the earlier findings I have made, it follows that Eurovox has not sought review of the decisions of the CEO not to pay refunds of duty within the meaning of s. 6(1) of the Validations Act. Therefore, the ameliorative effects of s. 6 do not apply and the decisions made by the CEO refusing to refund duty to Eurovox are taken to be valid decisions. Any application to review the decisions on the basis of their validity must fail. As validity is the only basis upon which Eurovox seeks to challenge the decisions, any application would be unsuccessful. It follows that there is no basis upon which an extension of time may properly be granted.

41. For the reasons I have given, I refuse the applicant's application for an extension of the time within which it might lodge an application for review of a decision of the respondent dated 10 September, 1997.

I certify that the forty one preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)

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

Merissa Martinez Associate

Date of Hearing 7 April, 2000

Date of Decision 11 September, 2000

Counsel for the Applicant Mr P Hanks QC

Solicitor for the Applicant Blake Dawson Waldron

Advocate for the Respondent Mr R Northcote

Solicitor for the Respondent Australian Government Solicitor