18 The Tribunal directly referred to the issue in that way. Its earlier remarks, however, indicated that to the extent that the Department was relying on the past conduct of Mr Costa in support of its case which was solely that he was not a fit and proper person, the Tribunal took the Department's lack of due diligence to have contributed to the situation. But the reasons do not include any passage which directly addresses in any detail the issue of whether Mr Costa was a fit and proper person to receive a license. The parties were invited by the Tribunal to seek written reasons if they wished and it appears from a portion of the transcript immediately following the reasons given that counsel for the Secretary in fact sought written reasons. It appears that as at the date of the hearing before me, however, no written reasons had been provided. It seems that the plaintiff has elected to seek a review of the decision on the basis of the transcription of the oral reasons. I note in particular, that the plaintiff has not sought to review the decision on the grounds that insufficient reasons were given.
19 Considering the above section of the reasons, it is reasonably clear that the Tribunal had not reached the conclusion that Mr Costa was not a fit and proper person to hold a license. Whether an error was made, therefore, would appear to depend on whether there was, as was argued for the plaintiff, an onus on Mr Costa to establish that he was a fit and proper person - the final ground of appeal.
20 Counsel for the plaintiff submitted that Mr Costa did in fact carry the onus before the Tribunal (and the Secretary), that he was a fit and proper person. Counsel relied upon the following cases; Delaney v Boyling[2]; Sobey v Commercial and Private Agents Board[3]; Frugtniet v Board of Examiners[4]; Re S (a solicitor)[5]. Counsel submitted that they supported the proposition that an applicant for a license carries the onus of proving the propriety and desirability of the granting of a license.[6] In the alternative, the plaintiff submits that if the correct analysis was that the Tribunal was left in a state of uncertainty as to whether Mr Costa was a fit and proper person to hold an aquaculture licence, it will have failed to have been satisfied that he was a fit and proper person and must therefore find in favour of the Department.
21 Generally, concepts of onus of proof are inapplicable to appeals against administrative decisions.[7] The cases cited, and other authorities[8] demonstrate, however, that is necessary to have regard to the terms of the statutes which describe the nature of the application and define the questions to be decided in determining whether there is an onus of proof as to any matter, and, if so, on whom it rests.
22 The Act in this case does not in express terms address the question of onus of proof. It is, therefore, necessary to look at the nature of the inquiry involved in the application and the way in which the issue of being a fit and proper person is formulated in the Act.
23 It was of course Mr Costa who had to make the application for the license. By s.148(2) he was obliged to lodge an application in the form approved for the purpose by the Secretary. It was also required that the application be accompanied by any information that the Secretary requires for the purpose of the application. The application forms part of the record and was tendered in evidence before me[9]. It does not require any information relevant to the issue of whether he was a fit and proper person. The Act itself could have, but does not, require the applicant to supply such information. The language of s.51 requires only that the applicant satisfy the eligibility criteria and pay the fees. The legislation does not in terms seek to place any onus on the applicant to prove satisfaction of the eligibility criteria. Thus, if the applicant does not supply the evidence relevant to eligibility criteria, the application will fail. In that sense the applicant carried the onus of proof on those issues. Section 51(4)(a) does not alter that analysis, but makes it clear that in that situation no discretion may be exercised in favour of the applicant.
24 Turning to the other requirements of s.51(4), the language used does not expressly place an onus on anyone. But it sets out the circumstances in which an application, otherwise satisfactory, must be refused.
25 In relation to s.51(4)(c), the question for the Secretary, and the Tribunal, where the issue is raised, will be whether they consider the applicant "is not a fit and proper person ...". The obligation on the part of the Secretary, and the Tribunal, to refuse to issue a license under s.51(4)(c) arises if they consider that the applicant is not a fit and proper person to hold a licence. In such a situation there will be an onus of proof to be applied. It will rest, however, with the person seeking to persuade the Secretary, or the Tribunal, to consider that the applicant is not fit. It would not rest on the applicant to prove that he was a fit and proper person. Therefore, it did not rest on Mr Costa. In the present case, what occurred was that the Tribunal was not persuaded that Mr Costa was not a fit and proper person - partly because it would seem that it held the Department responsible for significant aspects of the events relied upon by the Department on that issue.
26 If, on the other hand, an analysis in terms of onus of proof is incorrect and the task before the Tribunal was simply to consider the issue, its obligation to refuse a license only arose if it considered that the applicant was not a fit and proper person. Plainly on its reasons, it had not reached that conclusion or was in a state of uncertainty about it.[10] It had concerns about him but had not concluded that he was not a fit and proper person.
27 In those circumstances, on either analysis, no error of law is shown on the bases advanced by the plaintiff.
28 For the foregoing reasons, the grounds relied upon to review the decision have not been made out and the originating motion should be dismissed.