Duarte and Australian Maritime Safety Authority [2009] AATA 989 (23 December 2009)

Last Updated: 24 December 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 989

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/5351

GENERAL ADMINISTRATIVE DIVISION )

Re Rodney DUARTE

Applicant

And Australian Maritime Safety Authority

First Respondent

DECISION

Tribunal The Hon. Brian Tamberlin QC, Deputy President

Date 23 December 2009

Place Sydney

Decision The application for review is refused as the Tribunal does not have jurisdiction.

................[sgd]............................
The Hon. Brian Tamberlin QC
Deputy President

CATCHWORDS

MARITIME LAW – Applicant acquired qualifications abroad – acceptance or recognition of such qualifications within Australia – Applicant failed to satisfy Australian legislative requirements.

PRACTICE AND PROCEDURE - whether a reviewable decision was made by the Australia Maritime Safety Authority – whether a decision was made by an officer from whom an application for review can be made to Tribunal - application dismissed for want of jurisdiction

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RELEVANT ACTS

Navigation Act 1912: ss 15

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CITATIONS

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

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AUTHORITIES

Marine Orders Part 3 Seagoing Qualifications (Issue 6) : clauses 5.1.1, 5.2.1, 6.2, 21.1,32

REASONS FOR DECISION

23 December 2009

The Hon. Brian Tamberlin QC, Deputy President

1. These reasons concern an application for review of “decisions” said to have been made on 18 September 2007 and 15 October 2007 by the Australian Maritime Safety Authority (AMSA) refusing to recognise or accept the qualifications of Mr Duarte as an Engineer Class 1 or 2 or as a Watchkeeper Engineer under the provisions of the Marine Orders, Part 3, Seagoing Qualifications which give effect to the International Convention on Standards of Training Certification and Watchkeeping for Seafarers (STCW Convention).

ISSUES

2. This application raises the following issues:
   • (a) Whether a reviewable decision has been made by AMSA;
   • (b) If so, was the decision made by an officer of AMSA from whom an application for review can be made to this Tribunal;
   • (c) Whether this Tribunal lacks jurisdiction because of a self-executing order for dismissal as a consequence of failure to comply with directions;
   • (d) Whether in reaching its decision, AMSA failed to take into account a relevant consideration;
   • (e) Whether AMSA inflexibly has applied a “policy” in respect of Mr Duarte in such a way that the decision should be set aside and his application remitted for further decision by AMSA.

BACKGROUND

3. Mr Duarte, who was born on 1 January 1949, commenced maritime training in India in 1967, undertaking a four-year apprenticeship. His claim is that he was then appropriately qualified in India to commence work as an Engineer in 1972 and worked on various vessels in an engineering capacity until March 1982 and again for a month in 1984/1985. In 1986, he sought and was granted a Liberian Certificate as a Chief Engineer. However, Australia does not now have any agreement with Liberia regarding the recognition of Liberian certificates. He renewed that certificate in 1991, 1997 and 2003 by undertaking requirements established by the Republic of Liberia. Mr Duarte has completed numerous courses of training of both a personal and professional nature and is a member of various engineering organisations. He holds a current medical certificate and has undertaken short courses required for revalidation of his existing certificate and revalidation of Australian certificates.
4. Mr Duarte has provided a certificate attesting to completion of a program of study in 1985 relating to a Higher National Certificate in Marine Engineering, which was assessed in Australia in August 1986 as being equivalent to a TAFE Higher Certificate in Marine Engineering. He was awarded an Associate Diploma of Marine Engineering by TAFE in 1991 and undertook courses in 2006, and in 2008 he was given advance standing for the award of Associate Diploma of Engineering in Marine Engineering.
5. He has, however, not completed an approved course of training for issue of an Australian qualification as an Engineer Watchkeeper or Engineer Class 1 or 2.
6. Mr Duarte gave evidence before me that he has served only about five months at sea in total since 1985.
7. Mr Duarte lodged an application on 24 December 2004. The application was assessed by AMSA for issue of both an Australian certificate of competency and an Australian certificate of recognition, but this was rejected.
8. Further applications for issue of Australian certificates of competency as Engineer Class 1 and 2 and Watchkeeper Engineer and endorsements on a New South Wales Waterways Marine Engineer Class 3 certificate were lodged on 19 September 2005. The application for Engineer Watchkeeper was rejected but he was issued an endorsement on his New South Wales Waterways Marine Engineer Class 3 certificate in June 2008.
9. AMSA does not dispute that the Applicant was appropriately qualified in 1972 to work as an engineer following his training in India and accepts that he was engaged in seafaring roles for approximately 13 years before coming ashore in 1985. He undertook the necessary training and recertification to allow him to progress in the engineering ranks until his last voyage in 1985. He remains qualified to hold a Liberian certificate of competency as an Engineer Class 1 but, as noted above, there is currently no recognition agreement between Liberia and Australia.
10. AMSA contends that the training undertaken by Mr Duarte does not meet the requirements of relevant legislative provisions in Australia set out in the current Marine Order which are embodied in a legislative instrument made pursuant to the Navigation Act 1912 (the Act), section 15. This was because the training that has been undertaken by him is not approved training within the meaning of this Order and nor was it considered to be equivalent to approved training. Moreover, even if the training that had been undertaken was approved training, AMSA contends it was not undertaken in the required timeframe. AMSA submits that even if Mr Duarte had completed approved training, he is not entitled to be issued with an Australian Certificate of Competency or Certification of Recognition until he sits for and completes an oral examination as required by the current Marine Order clauses 21.1 and 32. It is common ground that this has not been done. AMSA contends that shore-based recognition is not equivalent to approved training.
11. AMSA also contends that the applications lodged by the Applicant on 24 December 2004 and 19 September 2006 have been properly assessed and that there had been no material changes in the Applicant’s circumstances since those applications were lodged and it says it is unable to issue an Australian Seafarer Certification to Mr Duarte.
12. AMSA’s submission is that Mr Duarte is not entitled to be issued with an Australian Certificate of Competency as an Engineer Class 1 or Class 2, or Engineer Watchkeeper until such time as he successfully undertakes an oral examination in operational knowledge conducted by an examiner. Nor is he entitled to be issued with an Australian Certificate of Recognition because he does not hold a qualification from a country with which Australia has a recognition agreement as required by the Marine Order clause 21.1(b)

MARINE ORDERS

13. This application purports to be brought to the Tribunal for review pursuant to Marine Order clause 5.2.
14. Under the Marine Order clause 5.2.1, an application may be made to this Tribunal for review of a decision made by the General Manager of AMSA. The General Manager’s decision is made by way of an internal review of a decision made by the Manager of AMSA. Under Marine Order clause 5.1.2, a person affected by the Manager’s decision can apply to the General Manager for review of that decision. There is no provision for this Tribunal to review a decision of the Manager.
15. The offices of Manager and General Manager in these provisions are different. The definition in the Marine Order clause 2 indicates that the Manager is the person empowered to make a decision in the first instance within AMSA. The role and jurisdiction of the General Manager is to carry out an internal review of the primary decision of the Manager by expressly providing that this Tribunal can review a decision of the General Manager. The Marine Order show an intention that there is no review power in this Tribunal in relation to the decision of the Manager made under clause 5.1.1. To permit review of the Manager’s decision would be contrary to the language of the order.
16. Under the Marine Order clause 21.1, a person can be issued with a Certificate of Recognition if he or she satisfies certain conditions which includes a requirement that the person holds a certificate issued by a marine administration in a country other than Australia which has been approved as having training and certification standards in accordance with the STCW Convention. In this case, Mr Duarte does not have such a certificate.

JURISDICTION

17. I note that there has been a previous decision on jurisdiction by Member David Connolly AM. The Member concluded that the Tribunal has jurisdiction to review the decision in this case. With respect, after lengthy consideration, I cannot agree for the reasons set out below. There can be no estoppel on the question of jurisdiction and I must, therefore, examine the question anew.
18. The first submission on jurisdiction by AMSA is that there has been no “decision” by either the Manager or the General Manager of AMSA on which an application for review could be based.
19. The application before me is expressed to be in respect of two “decisions” of 18 September 2007 and 15 October 2007.
20. On 18 September 2007, Mr Eldon-Roberts, the Manager of Shipping Operations and Qualifications in Maritime Operations for AMSA, wrote to Mr Duarte in response to a query from Mr Duarte as to the receipt of a letter. He stated that AMSA did not receive the letter dated 23 May 2000 to which Mr Duarte had referred in an earlier letter of 5 September 2007. Mr Eldon-Roberts said:

However, despite the above you should be aware that there had been no changes to the international convention ... nor has AMSA changed its policy in relation to you obtaining an Australian certificate of competency. Accordingly if you wish to obtain an AMSA certificate of competency you must meet the requirements as previously advised.
(emphasis added)

21. AMSA contends that this is not a reviewable decision but that it is simply a letter conveying information as to the non-receipt of an earlier letter. On a fair reading of the paragraph, I consider that the reference to “policy” is a reference to the opinion of AMSA that Mr Duarte cannot qualify under the Marine Order until he has satisfied its requirements and it is not a reference to any particular inflexible policy directed solely to Mr Duarte in any discriminatory way.
22. The letter in substance considers that Mr Duarte must meet the requirements of the legislation.
23. In my opinion, this letter from the Manager in terms does not constitute or amount to a reviewable”decision”.
24. The other letter from the Manager which was referred to in the Application for Review is dated 15 October 2007. It is addressed to Mr Duarte and is from Mr Anderson, the Principal Qualifications Officer, Engineering, Ship Operations and Qualifications. This letter refers to a letter submitted to the AMSA Darwin office and states that when he (Mr Duarte) has completed 12 weeks’ sea service on vessels over 750 kW, he may then apply for an endorsement on his Engineer’s Class 3 Certificate of Competency. He is directed to submit his sea service history for assessment by AMSA on an appropriate form and to include testimonials, discharge certificate and a letter on company letterhead confirming his sea service. It also refers to a fee and states that once he (Mr Duarte) has met all the requirements for issue of an endorsement, AMSA will issue it to him.
25. This letter is not from the General Manager and in substance it does not amount to a “decision” to refuse his application and this is not a “reviewable decision” in the sense that it determines an application.
26. Accordingly, I am of the opinion that neither of the letters relied on as being a decision can be said to amount to a reviewable decision within the meaning of the Administrative Appeals Tribunal Act 1975 (AAT Act): cf Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 337.
27. The second submission by AMSA on lack of jurisdiction is that, even assuming contrary to the conclusion expressed above, that there is a “decision”, then such decision is not made by the General Manager. Since an application for review can only be made from a decision of the General Manager pursuant to the Marine Order clause 5.1.2, then there is no jurisdiction in the Tribunal. The express provision of a review in this Tribunal after internal review excludes any implication that there can be a review in this Tribunal of a decision of the Manager. In this case there has been no internal review by the General Manager.
28. In my view, this submission is correct. Accordingly, because neither of the alleged “decisions” is from a decision by the General Manager, the present application before this Tribunal must be refused for want of jurisdiction.
29. During the hearing, Counsel for Mr Duarte, Mr King, contended that there is evidence that the General Manager had concurred in or adopted the earlier decision by the Manager and that the present appeal was therefore competent.
30. The document relied on to support this proposition is a letter from Mr Eldon-Roberts, the Manager, to Mr Duarte dated 11 June 2008, some 10 months after the application for review by this Tribunal was lodged wherein it is stated:

Dear Mr Duarte
The General Manager, Marine Operations Division, has asked me to reply to your recently (undated) faxed enquiry concerning engineer qualifications.
As AMSA has previously advised there are a number of options available which have all been fully explained to you. As Marine Orders Part 3 has not been reissued since late 2004, the advice you have received is still current.
Yours sincerely
CM Eldon-Roberts

31. This letter which is not from the General Manager does not in my view in any way evidence anything other than that the General Manager asked the Manager to reply to a recent letter of enquiry from Mr Duarte concerning engineer qualifications. It does not amount to a “decision” by the Manager and does not amount to an adoption or qualification after review of any earlier decision by the Manager. The letter simply states that AMSA has previously advised that Mr Duarte has some options which have previously been explained. So far as the General Manager is concerned, it only indicates a request to the Manager to reply to an enquiry.
32. Accordingly, I find that this Tribunal lacks jurisdiction in the present case on the further ground that the application does not satisfy the requirements of the Marine Order which requires that a review only lies from a decision of the General Manager.
33. A third ground on which it is said that there is no jurisdiction is the circumstance that at an earlier stage in the proceeding, an order was made that Mr Duarte was required to comply with a direction from the Tribunal and that in the absence of such compliance, the application should be dismissed. There was no compliance with the requirement. Therefore AMSA submits that the application has been dismissed and that there is no jurisdiction in the Tribunal to hear the present application.
34. The difficulty with this proposition is that the “self-executing” order did not of itself dispose of the proceedings at the time it was made. It left outstanding a determination as to whether the direction had been complied with. Before the matter is dismissed, there must be a further finding to the effect that the direction had not been met. Accordingly, I do not consider that the order for dismissal which was made on the contingency that the direction is not complied with, prevents the Tribunal from hearing the present application on the basis of lack of jurisdiction.

CONCLUSION ON JURISDICTION

35. The Tribunal does not have jurisdiction to hear this matter because there is no application for review from a “decision” of the General Manager. Additionally, there has been no reviewable decision by the General Manager in this matter.
36. I now turn briefly to the other arguments raised on behalf of the Applicant on the assumption, contrary to my conclusion, that the Tribunal has jurisdiction in the matter.

FAILURE TO TAKE INTO ACCOUNT A RELEVANT CONSIDERATION

37. Mr Duarte submits that on the basis that there is a reviewable decision such decision is invalid because it failed to take into account in exercising its power of dispensation a relevant consideration and / or that it inflexibly applied a policy directed, specifically in a discriminatory manner, against Mr Duarte ad hominem.
38. Mr Duarte says that under the Marine Orders, the Manager has a discretion to permit a person to serve or be taken into employment on a ship operating wholly within the Australian near coastal area for such period and subject to such conditions as the Manager determines.
39. He submits that in considering the exercise of its discretion generally and in particular under the Marine Order clause 6.2, the decision-maker failed to take into account that Mr Duarte had been misinformed by AMSA officers as to the legal position with respect to his qualifications and that as the law previously stood, his Liberian certificate could be accepted as the Republic of Liberia was an a “white list” of acceptable countries for recognition and acceptance of qualifications. He says that this recognition of the Liberian qualification had been changed by law prior to the decision by AMSA but that AMSA had failed to take this previous position and the misinformation into account or to give it any weight. Accordingly, because there had been a decision by AMSA, which failed to take into account Mr Duarte's prior entitlement and the misinformation, AMSA’s decision was invalid and should be remitted to the decision-maker for further determination so that these matters could be properly taken into account. He also contends that AMSA failed to take into account the fact that there was and is a shortage of Ships Engineer’s in Australia and that this also invalidated the decision
40. This Tribunal is, however, bound to consider the matter anew and this means that it must take into account the law as it now stands at the time when it makes its decision. Where the law has been changed from the time when the initial decision was made, the Tribunal must generally apply the law as amended. Since the Tribunal is not entitled to recognise the Liberian certificate as a valid qualification then it does not have to take into account the consideration that it might previously have been recognised Therefore, it cannot be said that AMSA had failed in any way to take into account a relevant consideration in relation to this matter or that it has failed to take account of any statements by AMSA personnel in relation to the Liberian qualification

INFLEXIBLE APPLICATION OF POLICY

41. Mr King, on behalf of Mr Duarte submits that because the letter from Mr Eldon-Roberts of 18 September 2007 states that AMSA has not changed its “policy” with respect to [you] obtaining an Australian certificate of competency”, then it is clear that Mr Eldon-Roberts, the Manager, had either inflexibly applied a general policy or had discriminated against Mr Duarte by relying on some ad hominem policy in respect to Mr Duarte alone. He says that this conclusion was affirmed by the subsequent letter of 15 October 2007.
42. In my view, a fair reading of these two letters does not support the conclusion contended for by Mr Duarte. In the letter of 15 September 2007, Mr Eldon-Roberts is simply referring to the legal requirement, which relate to all applicants including the particular circumstances of Mr Duarte. It does not show that there was any discrimination in relation to Mr Duarte so far as “policy” or consideration of this application is concerned. Both this letter and the subsequent October letter rather confirm that Mr Duarte “must meet the requirements as advised” and that once all the requirements for issue of the endorsement are satisfied AMSA will issue it to him. The material submitted in relation to a general skills shortage does not advance Mr Duarte’s case. The information is by way of press clippings which are over 15 months old.
43. For these reasons I do not consider that either of the letters, or both when read together, can be seen as supporting a contention that there has been any discrimination or an inflexible application of general policy to Mr Duarte’s circumstances, which would preclude him from obtaining recognition or certification as he has sought. Nor do I consider that the letter from Mr Eldon-Roberts of 11 June 2008 referring to the General Manager’s request to reply to Mr Duarte’s faxed enquiry can be said to evidence any discrimination or inflexible application of policy by the General Manager.

MARINE ORDERS

44. The objective of the SCTW Convention and the Marine Order is to ensure safety and protection of life, property and the environment in the operation of ships. The operations of large marine vessels can cause enormous extensive damage and injury. It is therefore essential that ship’s Engineers are shown to be competent and properly tested and qualified both by training and experience. In this present case, Mr Duarte has only had five months at sea over the past 14 years and he has not taken or passed the required oral examinations in operational knowledge to qualify for Australian Certification nor can his Liberian certificate currently be recognised in Australia. The requirements in the Marine Order are expressed in mandatory terms. These are powerful considerations in favour of dismissing the application for review of Mr Duarte even if the Tribunal had jurisdiction to hear this application so that even if there were jurisdiction, I consider that the correct and preferable decision is that his applications the subject of review should be refused.

CONCLUSION

45. For the above reasons I am satisfied that the correct and preferable decision in this matter is that the application for review by Mr Duarte should be dismissed for want of jurisdiction and also it should be dismissed on the basis that Mr Duarte does not satisfy the relevant requirements of the Marine Order.

I certify that the 45 (forty-five) preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President

Signed: ...............[sgd]............................................................

M.Corcoran, Associate

Date/s of Hearing: 26 November 2009

Date of Decision: 23 December 2009

Counsel for the Applicant: Mr P King

Solicitor for the Respondent: Ms M Dean, AMSA