FEDERAL COURT OF AUSTRALIA

Duarte v Australian Maritime Safety Authority
[2010] FCAFC 127

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  Each party file and serve any submissions that he or it wishes to make as to costs on or before 8 October 2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal constituted by a Deputy President, the Hon Brian Tamberlin QC.  The Chief Justice made a direction under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that a Full Court exercise the Court’s original jurisdiction to hear the appeal.

2                     The Deputy President dismissed the application brought by Rodney Duarte for the Australian Maritime Safety Authority to issue him with a certificate of competency as an engineer class 1 or class 2, or as an engineer watchkeeper, under Part 3 of the Marine Orders made under the Navigation Act 1912 (Cth) (“the Act”).  The Deputy President held that the Tribunal had no jurisdiction because there was no decision to review.  He did so despite an earlier decision made in the course of the review by a member of the Tribunal, David Connolly AM, that it did have jurisdiction.  The Deputy President also observed that had the Tribunal been able to exercise jurisdiction, the correct and preferable decision would have been to affirm the Authority’s decision not to issue any certificate to Mr Duarte.

The Legislative Scheme

3                     The Marine Orders, including Pt 3, were made pursuant to the Authority’s powers in s 15, which is in Pt II, of the Act.  A regulation was defined as including an order made under that Act (s 6(1)).  Under s 425(1AA) the Authority had power to make orders with respect to any matter in, among others, Pt II of the Act.  By force of s 426A, an order made pursuant to s 425(1AA) is taken to be an enactment for the purposes of the AAT Act.  Regulations, including orders, could be made under ss 15(1) and (1A) specifying standards of competence to be attained and other conditions to be satisfied by a person in order to be a qualified officer for the purposes of the Act.  Under this power orders could be made to give effect to the STCW Convention (i.e. the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978, adopted at London by the International Maritime Organisation on 7 July 1978 as affected by any amendments made under Art XII of the Convention that have entered into force for Australia:  s 9A). 

4                     The purpose of Pt 3 of the Marine Orders is to give effect to the STCW Convention (Order 1.1).  Under Order 2 relevantly, “General Manager” was defined as meaning “the person occupying the position of General Manager, Maritime Operations” in the Authority and “Manager” was defined as meaning “… the person occupying the position of Manager, Ship Operations and Qualifications” in the Authority. 

5                     Critically, Order 5.1.1 provided that, if the Manager made a decision under Pt 3, a person affected by it could apply to the General Manager for review of that decision.  That application had to be in writing (Order 5.1.2) and, under Order 5.1.3, the General Manager had to give his or her decision “… in writing within 28 days of receiving the application for internal review”.  Order 5.2.1 provided:

“Application may be made to the [Tribunal] for review of a decision by the General Manager under 5.1.3.”

6                     Under Order 6.1 the holder of a valid STCW Endorsement issued or recognised under Pt 3 was qualified to serve in the capacity of the endorsement, subject to satisfying any additional requirements specified in Pt 3 for the class of ship on which he or she sought to serve.  Order 6.2 gave the Manager a discretion to permit the holder of a certificate, other than one referred to in Order 6.1, to serve or be taken into employment on a ship operating wholly within Australia’s exclusive economic zone, for such period and subject to such conditions as the manager determined.  In addition, under Order 6.3 the Manager could grant a dispensation from Order 6.1 consistent with Art VIII of the STCW Convention.

7                     Order 7.1 provided, relevantly, that an application for the issue or endorsement of a certificate had to be made in an approved form and be accompanied by such evidence of relevant service, certificates held or other documents as the Manager considered necessary.  Importantly, Order 7.4 provided that where Pt 3 made the issue of a certificate dependent upon a person passing an oral examination, that examination had to be passed, unless the Manager otherwise determined, after all other eligibility criteria had been met and within 12 months before the certificate was issued.  Thus, under Order 7.4 the Manager could vary the time for the oral examination, but not dispense with the requirement that it be passed.

8                     Under Order 15, the Manager could dispense with requirements in Pt 3 for prescribed sea service or training if he or she considered that the person had satisfactorily completed equivalent sea service or training.  Under Order 21 a person was entitled to be issued with a certificate of recognition for a foreign certificate in certain specified circumstances.

9                     In order to be eligible for a certificate of competency as an engineer class 1 or 2 or an engineer watchkeeper under Order 32, a person had to have met a number of criteria.  The criteria for each of those qualifications included that the person must have passed an oral examination (Orders 32.1(f), 32.2(f), 32.3(f)).  The criteria also included a requirement that the person had satisfactorily completed an approved course of study, including practical training in particular matters (Orders 32.1(d)(ii), 32.2(c)(ii) and 32.3(d)(ii)).

Background

10                  The Tribunal found that Mr Duarte had commenced his maritime training in 1967 as an apprentice.  By 1972 he was qualified in India to commence working as an engineer and worked on various vessels in an engineering capacity until 1982, and for a month in 1984 or 1985.  He had been granted a Liberian certificate of competence as chief engineer in 1986 that was renewed in 1991, 1997 and 2003.  However, since early 2002 and so, at the time of his applications, Order 21.1(b)(ii) precluded the Authority from recognising that qualification because Australia did not have an agreement with Liberia regarding recognition of its certificates.  Thus, Mr Duarte was qualified to work on Liberian flagged ships and on ships whose flag State recognised Liberian certifications.  Mr Duarte held a number of certificates and had attained some qualifications in marine engineering.  However, he had not completed an approved course of training for the issue of an Australian qualification as an engineer class 1 or 2 or as an engineer watchkeeper.  Mr Duarte had only served about five months at sea since 1985.

11                  In oral argument on the appeal, the Authority contended that Mr Duarte had only two criteria to satisfy before he would be entitled to be issued with a certificate of competency as an engineer watchkeeper.  These were the passing of the oral examination and the requirement in Order 32.3(c)(ii) that he complete at least 36 weeks practical training ashore that meets the standards in Table A-III/1 of the STCW Code.  It was common ground, and the Tribunal found, that Mr Duarte had not passed any oral examination for the purposes of Order 7.4.

The History of Mr Duarte’s Applications

12                  On 23 December 2004, Mr Duarte wrote to the Authority enclosing two applications in the prescribed form.  He lodged some but not all required documents promising to send the balance later.  The first application was for a new certificate, issued by the Authority, as an engineer class 1 or 2 or engineer watchkeeper.  He identified his Liberian certificate as the certificate he currently held.  Mr Duarte sought that the Authority make an assessment of his qualifying service and administer an oral examination.

13                  In the second application he sought an endorsement of his existing New South Wales Waterways Engineer Class 3 certificate.  That application, or a later version of it, was granted under Order 6.1 in June 2008 before Member Connolly’s decision of 12 November 2008 and is not the subject of this appeal.  The effect of that endorsement was that Mr Durarte held a valid STCW Endorsement under Pt 3 for the purposes of Order 6.2

14                  On 20 January 2005, the Authority’s principal qualifications officer wrote to Mr Duarte about his two applications.  The letter noted that the Authority previously had assessed his Liberian certificate as not satisfying its requirements for recognition.  It referred Mr Duarte to the provisions of Order 21.  It explained that the reason why his Liberian certificate could not be accepted was because the Authority did not have any agreement with Liberia for its recognition as required under the STCW Convention.  The letter then reminded Mr Duarte that the Authority had also informed him previously of its requirements before it would issue a certificate of competency as an engineer watchkeeper.  It explained that because he did not then have an existing certificate that the Authority could recognise, he was not eligible to apply for a higher level marine engineer certificate (i.e. as class 1 or 2).  The letter then recited the requirements in Order 32.3 in a formulaic manner.  Importantly, the letter did not explain to Mr Duarte what was lacking in the material he had provided for the purposes of Order 32.3.  In this respect the letter was unhelpful and offered him no guidance.  The letter asserted that, as the Authority had not provided him with a service for which a fee was payable, it returned his cheque for the assessment of his sea service and qualifications, oral examination and certificate issue fees.

15                  On 22 February 2005, Mr Duarte wrote a response seeking a certificate as a chief engineer (i.e. class 1) on the basis of his Liberian chief engineer certificate.  He asked for this special consideration on the basis of his earlier dealings with the Authority.  He claimed that in 2001 and 2002 officers of the Authority had advised him that, in order to obtain a certificate of competency from it, he needed to get his Liberian certificate re-validated.  He asserted that when he had done so, and presented his updated Liberian certificate to the Authority after March 2003, he had been informed that Australia no longer recognised the Liberian certificate and he needed to apply here for an engineer watchkeeper certificate.  Given the apparently complete rejection, in the Authority’s letter of 20 January 2005, of all the material he had submitted in support of his 23 December 2004 application, it is understandable that Mr Duarte had now turned his attention back to seeking recognition for his Liberian qualifications.

16                  The Manager replied to that letter from Mr Duarte on 22 March 2005.  He stated that after carefully reviewing it and his previous correspondence on file, he had determined once again that the Authority could not recognise Mr Duarte’s Liberian certificate because of the STCW Convention and Pt 3 of the Marine Orders.  The Manager repeated that Mr Duarte needed to meet the requirements for an engineer watchkeeper certificate, without indicating what else he needed to do to supplement his 23 December 2004 application.

17                  On 6 April 2005 and again on 5 May 2005 Mr Duarte lodged applications in the Tribunal for review of decisions that the Authority had made.  Neither application was in evidence but an affidavit by Mary Dean, a solicitor for the Authority, that was before the Deputy President, suggested that those applications sought review of a decision made on 9 March 2005.  However, it is likely that the two applications intended to refer to the Manager’s letter of 22 March 2005.  Next, on 16 May 2005, the acting Manager of the Authority wrote to Mr Duarte about his applications to the Tribunal.  The letter drew his attention to the requirement in Order 5 of Pt 3 of the Marine Orders.  It informed him that he had first to seek an internal review by a written application to the General Manager and, if that were unsuccessful, he then would have the right to apply to the Tribunal.

18                  Ms Dean’s affidavit recorded that the first 2005 application to the Tribunal was withdrawn after Mr Duarte had been advised to seek an internal review under Order 5.1.  She recorded that the second application was dismissed by the Tribunal on 31 August 2005 under s 42A(4) of the AAT Act because Mr Duarte had not sought an internal review as he had agreed to do.  Section 42A(4) provided for dismissal of proceedings in which the decision did not appear to be reviewable.  On 19 September 2005 Mr Duarte lodged two further applications with the Authority, one for the issue of Australian certificates of competency as an engineer class 1 or 2 and engineer watchkeeper and the second for an endorsement on his New South Wales Waterways certificate.  Next, Ms Dean’s affidavit recorded that in 2006, Mr Duarte made another application for review of an unknown decision to the Tribunal that was dismissed on 30 July 2007 under s 42A(5) of the AAT Act.  That section gave the Tribunal power to dismiss an application if an applicant for review had failed within a reasonable time to proceed with the application or comply with a direction.

19                  On 5 September 2007 Mr Duarte wrote to Mark Eldon-Roberts, who was the then Manager.  Mr Duarte wrote that he did not recall receiving a reply to his letter of 23 May 2005, a copy of which he enclosed.  The 23 May 2005 letter sought a review of the decision made on 22 March 2005 by Mr Eldon-Roberts’ predecessor as Manager, John Briggs and could be understood as seeking a review by the General Manager.

The alleged “decisions” of the Authority

20                  The first letter that Mr Duarte claimed was a “decision” reviewable by the Tribunal was dated 18 September 2007 and written by Mr Eldon-Roberts.  He responded to Mr Duarte’s letter of 5 September 2007 stating that the Authority had not been able to locate any letter from Mr Duarte of 23 May 2005 and its records indicated that it had not received that letter.  Mr Eldon-Roberts’ letter continued:

“However despite the above you should be aware that there have been no changes to the international convention (STCW 78 as Amended) Australian legislation (Navigation Act & Marine Orders Part 3) nor has AMSA changed its policy in respect 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.”

21                  As the Authority submitted in argument on this appeal, the letter of 23 May 2005 was a curious document.  First, it was addressed to the Manager, Jeff Holden, seeking review of Mr Briggs’ decision that it stated was dated 9 March 2005.  Secondly, it asserted that Mr Duarte was applying pursuant to Order 5.1.1. “… and the consent directions of the [Tribunal] made on 29 June 2005”.  It then referred to Mr Holden’s letter of 16 May 2005 and to a telephone discussion between Mr Duarte, Mr Holden and Mr Anderson on 23 May 2005.  The letter then set out a detailed account of Mr Duarte’s experience and qualifications.  It also referred to a certificate of June 2005 that he had received from the Institute of Engineers Australia as a technologist fellow and chartered engineering technologist.  On 27 October 2005 Mr Duarte produced such a certificate to the Authority but it was dated 4 July 2005.  It is safe to infer that the letter dated 23 May 2005 was not written until some time after 4 July 2005.  Given its contents, it is likely that the Authority had not received it before 5 September 2007.

22                  The second letter that Mr Duarte claimed was a decision, was written on 15 October 2007 by Neil Anderson, the Authority’s Principal Qualifications Officer, Engineering, Ship Operations & Qualifications.  It relevantly read:

“I refer to the letter and attachments you submitted to the AMSA Darwin office in which you request issue of an AMSA STCW Endorsement for your Engineer Class 3 certificate of competency.

As previously stated when you have completed 12 weeks sea service on vessels over 750 kW from the time you originally applied for the endorsement you may then apply to AMSA for the endorsement also submitting evidence of meeting all other requirements.

Please note you must submit (to an AMSA office or by post) the sea service history for assessment by AMSA on an appropriate completed form and include testimonials, discharge certificates and a letter on company letterhead confirming that sea service.  There is also a fee payable of $185 for that assessment.

Once you have met all the requirements for issue of the endorsement AMSA will issue it to you.”

The suggestion in that letter that Mr Duarte submit the material identified, could well have left him perplexed.  He had tried to do that in his 23 December 2004 letter and the Authority had rejected the material outright without an adequate explanation.

The Application to the Tribunal

23                  On 2 November 2007 Mr Duarte filed an application for review of a decision with the Tribunal.  This claimed that in its letters dated 18 September 2007 and 15 October 2007 the Authority had refused to issue Mr Duarte with an engineer certificate class 1 or 2, an engineer watchkeeper certificate or to endorse his engineer class 3 certificate.  As noted above, later in 2008 the Authority endorsed his New South Wales Waterways Engineer Class 3 certificate.

Member Connolly’s Decision

24                  Member Connolly’s decision was given on 12 November 2008.  It referred to a further letter dated 11 June 2008 from Mr Eldon-Roberts to Mr Duarte.  This letter was not the subject of his application to the Tribunal made seven months earlier on 2 November 2007.  The letter read:

“The General Manager, Maritime 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.”

25                  Member Connolly found that each of the three letters dated 18 September 2007, 15 October 2007 and 11 June 2008 was “correspondence by the General Manager” of the Authority.  He found that each letter amounted to a refusal to give a certificate or consent to dispensing with a requirement for additional training under Orders 6.2 and 6.3.  On this basis he held that the Tribunal had jurisdiction.

The Proceedings before Senior Member Allen

26                  Next, on 12 June 2009, a summons in the application for review came before Senior Member Allen in the Tribunal.  The Senior Member made a number of observations critical of Member Connolly’s decision that there was a reviewable decision that gave the Tribunal jurisdiction stating bluntly twice:  “I am convinced that the decision is wrong.”.  He also said that he was not bound by Member Connolly’s decision.

27                  On 14 August 2009, the Authority filed a statement of further facts and contentions.  This contended that the Tribunal did not have jurisdiction because Mr Duarte had not sought an internal review and none of the letters dated 18 September 2007, 15 October 2007 and 11 June 2008 was a decision by the General Manager.  It argued that Member Connolly’s decision could not vest the Tribunal with jurisdiction under s 25 of the AAT Act because there was no decision to review under Order 5.2.

28                  There was no objection by Mr Duarte to the Tribunal being reconstituted by Senior Member Allen or later by the Deputy President.

The Deputy President’s Decision

29                  The Deputy President decided that there was no estoppel on the issue of the Tribunal’s jurisdiction or any other reason preventing him from reconsidering its jurisdiction.  He found that the 18 September 2007 letter was not a reviewable decision.  He held that on a fair reading, first, it conveyed information as to the non-receipt of the 23 May 2005 letter.  Secondly, he held that by referring to its policy, the Authority was conveying its opinion that Mr Duarte could not qualify for a certificate under the Marine Orders until he had satisfied its requirements.  The Deputy President said that that opinion was not a reference to any particular inflexible policy directed solely to Mr Duarte in any discriminatory way.  Rather, he construed the letter as conveying that the Authority considered that Mr Duarte had to meet the requirements of the legislation.  He found that this did not amount to a reviewable decision.

30                  Next, the Deputy President found that the letter dated 15 October 2007 was first, not from the General Manager and, secondly, did not amount to a decision to refuse Mr Duarte’s application.  Thus, he held that this letter was not a reviewable decision in the sense that it had determined an application.

31                  In support of his findings, the Deputy President referred to Australian Broadcasting Authority v Bond (1990) 170 CLR 321 at 337.  He held that neither letter was a reviewable decision within the meaning of the AAT Act.  He also found that a precondition to the jurisdiction of the Tribunal had not been satisfied because neither letter was a decision of the General Manager on an internal review.  He held that Order 5.1.2 required that a decision reviewable by the Tribunal must have been made by the General Manager following an application for an internal review.

32                  The Deputy President also rejected Member Connolly’s finding that the letter of 11 June 2008 conveyed that the General Manager had concurred in, or adopted, the earlier “decisions” by the Manager.  The Deputy President found that, first, the letter of 11 June 2008 was not from the General Manager and, secondly, it simply conveyed that the General Manager had asked the Manager, Mr Eldon-Roberts, to respond to a recent letter of enquiry from Mr Duarte concerning his qualifications as engineer.  He held that this letter reiterated earlier advice the Authority had given Mr Duarte about his options and contained no more than a statement that the General Manager had requested the Manager to reply to an enquiry.  Accordingly, the Deputy President found that the Tribunal lacked jurisdiction on the additional ground that Mr Duarte’s application did not satisfy the requirements of Order 5.2.1.  This was because no decision made by the General Manager of the Authority was before the Tribunal for review.

33                  The Deputy President also briefly considered the merits of Mr Duarte’s application on the assumption that there had been a “decision” before the Tribunal.  He concluded that the correct and preferable decision was to affirm any such “decision”.  First, he found that the Tribunal was not entitled to recognise Mr Duarte’s Liberian qualification as a valid certificate.  Secondly, he observed that in the two 2007 letters the Authority had not applied inflexibly a policy of requiring Mr Duarte to meet its requirements.  The Deputy President held that the objective of the STCW Convention and the Marine Orders was to ensure safety and protection of life, property and the environment in the operation of ships.  He said that in the previous 14 years Mr Duarte had had only five months at sea and had not taken or passed the required oral examination in operational knowledge to qualify for an Australian certificate.  He held that the applicable requirements in the Marine Orders were in mandatory terms.  Accordingly, he concluded that the correct and preferable decision was to affirm any earlier “decision”.

Mr Duarte’s Argument

34                  Mr Duarte argued that once Member Connolly had decided that the Tribunal had jurisdiction, it was bound to proceed on that basis.  He contended that this decision was a “jurisdictional fact” and not a question of law.  He also argued that because the Authority had not appealed from Member Connolly’s decision it was estopped from later revisiting the issue of jurisdiction before the Deputy President or in judicial proceedings.  He claimed that the  decision of the Deputy President had given rise to a denial of natural justice or was invalid because of the inability or failure of the Tribunal to review the whole of the evidence on which Member Connolly had based his decision.

35                  Mr Duarte also contended that in its s 37 statement of further facts and contentions, filed after Member Connolly’s decision, the Authority had admitted that the General Manager had made decisions in the letters of 18 September 2007 and 11 June 2008.  This argument was misconceived and can be disposed of immediately.  The Authority simply stated that first, the Tribunal had earlier decided that it had jurisdiction, and secondly, on that basis, the then present application before the Tribunal concerned “decisions” in those two letters.  The Authority was only identifying the basis of the finding by Member Connolly, on which it understood that the Tribunal was proceeding. 

36                  Finally, Mr Duarte argued that the Deputy President’s decision should be set aside and his application be remitted to the Tribunal to be determined on its merits.  The 10 questions of law asserted in Mr Duarte’s further amended notice of appeal can be distilled essentially to three.  These were whether the Tribunal was entitled to reconsider the issue of its jurisdiction after Member Connolly’s decision, secondly, if it were, whether its conclusion that there was no reviewable decision was correct, and last, whether it should not have decided that Mr Duarte did not satisfy the requirements of the Marine Orders.

Consideration – Jurisdiction of the Tribunal to re-open its decision on Jurisdiction

37                  Mr Duarte’s argument that the Tribunal could not revisit the issue of its own jurisdiction after Member Connolly’s decision is unsound.  First, the Tribunal had no power to determine conclusively its own jurisdiction.  Only a court exercising the judicial power of the Commonwealth can make a conclusive determination of whether an administrative tribunal has validly exercised a power conferred on it by the Parliament or under a power contained in an Act of the Parliament:  cf  Enfield City v Development Assessment Commission (2000) 199 CLR 135 at 155 [48] per Gleeson CJ, Gummow, Kirby and Hayne JJ.  If Member Connolly’s decision had been affected by a jurisdictional error, the Tribunal was entitled to treat that decision as having no legal effect and as no decision at all:  Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ;  Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51] per Gaudron and Gummow JJ, 618 [63] per McHugh J and 646-647 [157] per Hayne J.  Thus, it was open to the Deputy President to consider whether the Tribunal’s jurisdiction had or had not been enlivened and whether Member Connolly had been wrong to decide that it had.

38                  Secondly, where an inferior tribunal or court has authority to decide a question, it cannot give, or deprive itself, of that jurisdiction by erroneously determining the question of whether the jurisdiction does or does not exist:  Mutual Life & Citizens’ Assurance Co Ltd v Attorney-General (Qld) (1961) 106 CLR 48 at 56 per Dixon CJ, Taylor J and Windeyer J agreeing at 58, 59.  Accordingly, it was arguable that the Deputy President had power to re-open the issue of the jurisdiction of the Tribunal notwithstanding Member Connolly’s earlier decision.  However, because the Deputy President’s decision was the only one open to the Tribunal, for the reasons that follow, it is not necessary finally to decide this issue.

Consideration of the Decision as to the Merits

39                  The Full Court was not apprised of the complete history or details of the long course of dealings between Mr Duarte and the Authority or its predecessor.  However, it was unfortunate that the Authority’s letter of 20 January 2005 was couched in bureaucratic and unhelpful language.  No doubt Mr Duarte had sought several times before then to rely on his Liberian certificate.  Nevertheless, his application dated 23 December 2004 appeared to have provided the Authority with detailed and extensive information about his sea service, engineering and trade qualifications and, as part of the application, he had also asked, and paid the fee, for an oral examination.   However, the letter of 20 January 2005 returned the fee and in substance wrongly told him that he had not made an application at all.  It is unclear why that letter did not point out what, if anything, Mr Duarte needed to do to complete any gaps in the information he had provided in support of the 23 December 2004 application so that he could have his qualifying service assessed and take the oral examination.  Instead, after the rebuff  in the letter of 20 January 2005, he then focused on his Liberian certificate because that was, in essence, the only intelligible deficiency in the material he had provided which the Authority had identified.

40                  During the course of argument of the appeal some uncertainty emerged as to whether all the relevant evidence on the issue of jurisdiction was before the Deputy President or in the appeal books.  Mr Duarte had argued that this unspecified material may have given Member Connolly a factual basis on which to conclude that one or more of the three letters was a decision of the General Manager.

41                  It is not necessary to make a final decision on this question because we have concluded that it would be futile to order that the matter be remitted to the Tribunal.  This is because Mr Duarte had not passed an oral examination and so the Tribunal could not determine his application for the issue of a certificate.  Orders 7.4, 32.1(f), 32.2(e) and 32.3(f) made it a mandatory precondition of the issue of each certificate for which Mr Duarte had applied that he should have passed the oral examination.  In addition, the Tribunal could not decide to permit Mr Duarte to serve on or be taken into the employment of a ship under Order 6.2.  This is because he held his New South Wales Waterways certificate which was a certificate issued or recognised under Order 6.1.  And, since he already held that endorsed certificate, the Tribunal could not exercise the Manager’s power under Order 6.2 to grant a dispensation from Order 6.1.

42                  Moreover, we interpret Order 6.2 as permitting only a limited grant of permission to serve or be taken into employment on a particular ship operating wholly within Australia’s exclusive economic zone.  It did not confer an unrestricted discretion on the Manager to relieve a person from the need to satisfy a mandatory condition such as the passing of an oral examination that was created by Order 7.4.

43                  It is not necessary to consider the remaining arguments.  One misconception in Mr Duarte’s written submissions should be dispelled.  He asserted that the Tribunal’s use of the phrase “correct and preferable decision” was an error.  That was wrong.  This well known phrase encapsulates the role that the Tribunal has performed for over 30 years:  Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ.

44                  Mr Duarte had not satisfied a mandatory requirement of the Marine Orders for the issue of a certificate of competency as an engineer class 1 or 2 an engineer watchkeeper for which he had applied.  Consequently, the correct, and only, decision open to the Tribunal was to dismiss his application for review.

Conclusion

45                  The appeal under s 44 of the AAT Act fails.

Costs

46                  As appears from the foregoing recitation of the history of Mr Duarte’s interactions with the Authority, he experienced some less than helpful consideration of his applications.  The Authority, for no apparently good reason, had returned his application made in December 2004 without considering it and without informing Mr Duarte what was wrong with it.  It also returned his fee that he had paid to take the oral examination.  So far as we could discern that application was deserving of proper consideration and Mr Duarte was probably entitled to take the oral examination at that time provided that he complied (as he appeared to have done later) with any request by the Authority for some more details.  Nor did the Authority treat any of his further applications as, in substance, seeking a review by the General Manager of the earlier rejection.

47                  These matters have caused us to reflect that in the unusual circumstances of this matter, departure from an order that costs follow the event may be worthy of consideration.  The parties should consider their positions as to what is the appropriate order for costs and any written submissions on that matter should be filed and served within 7 days.

Associate:

Dated:         1 October 2010