Aged Care Quality and Safety Commissioner v Amana Community Services Pty Ltd

B BACKGROUND 4 As long ago as September 2021, Amana applied for approval as a provider of home care, and in May 2022, a delegate of the Commissioner refused that application. Amana sought a reconsideration of this decision. As notice of a reconsideration decision was not given to Amana within 90 days of the reconsideration request, the decision to refuse the application was taken to have been affirmed on 6 September 2022 (deemed decision). 5 In October 2022, Amana applied to the Tribunal for review of the deemed decision and in December 2022, the Tribunal ordered that the matter be remitted to the Commissioner for reconsideration of the deemed decision on or before 16 January 2023. The saga continued in January 2023 when the delegate affirmed the deemed decision not to approve Amana to become a provider of aged care (specifically, home care and flexible care). 6 The review application before the Tribunal involved a one-day hearing held on 2 April 2024. Both the Commissioner and Amana (which was represented at the hearing by its managing director, Mrs Nasour) filed submissions in the form of a Statement of Facts, Issues and Contentions. The evidence discloses that in June 2022, Amana provided various "additional supporting documents". Part of that material involved reference to additional information given in relation to "key personnel", and referred to Mr Tony Baddour, the director of an accounting firm, who was described as the Chief Financial Officer (CFO) of Amana. The additional information also represented, among other things, that: [Mr Baddour's] sweeping responsibilities included but were not limited to overseeing the full finance function including responsibility for IT systems and the complete establishment and oversight of head office operations. His unique set of skills and experience across diverse industries and varying organizations [sic] (size and culture) has given him the skills needed for any Senior Finance and CFO roles. He enjoys the experience of working closely with an organization's [sic] senior executive teams to realise strategic goals in an open and transparent environment with cross functional input and business partnering across the organisation. 7 As part of the process before the Tribunal, various witness statements were also provided. One of those statements came from a certified practising accountant, being Mr Hadee Faqih, who was described as the "registered accountant" of Amana. Mr Faqih attested to "the detailed attention given [at Amana] to various aspects, including payroll management, invoicing procedures, BAS statements, and overall adherence to legal requirements". 8 In the Statement of Facts, Issues and Contentions filed on behalf of the Commissioner dated 15 September 2023 (Commissioner SFIC), reference was made to the fact that the issue for determination before the Tribunal is "whether [Amana] is suitable to provide home care for the purposes of the Commission Act" and that determination of that issue "will require the Tribunal to consider the matters in s 63D(3)(a) to (e) of the Commission Act, in addition to any other matters the Tribunal may think it relevant to consider" (at [4.1]). 9 As part of the matters put to the Tribunal, it was submitted on behalf of the Commissioner that it was open for it to consider the experience of Amana's identified key personnel in providing the relevant forms of home care. Those identified key personnel included Mr Baddour, who in addition to being described in the document earlier (at [6]) as the CFO, was identified as "KP5". 10 Mr Baddour was described in the Commissioner SFIC (at [5.11]) as: the only key personnel of [Amana] who appears to be somewhat independent from [Amana's] business as an aged care broker and NDIS provider. He is a certified practising accountant and appears to have provided accountancy services to [Amana] in the past. He does not have any experience in providing aged care or other relevant forms of care. It is not clear how [Amana] proposes that Mr Baddour will develop an understanding of the rigorous financial requirements and obligations of a provider of aged care, let alone be equipped to ensure that [Amana] complies with those responsibilities. 11 As will be seen below, one of the mandatory considerations to which the Tribunal was required to have regard was s 63D(3)(d) of the Commission Act, being Amana's "record of financial management and the methods that [Amana] uses, or proposes to use, in order to ensure sound financial management". 12 As part of a number of arguments that were directed toward seeking to persuade the Tribunal as to this consideration, the Commissioner submitted the following: [Amana's] CFO, Mr Baddour, has no qualifications or experience related to aged care. His involvement in the sector appears limited to the provision of accounting services to [Amana] and he was only identified as a member of [Amana's] key personnel after his omission was highlighted by the Commissioner. Despite this, there is nothing to suggest that Mr Baddour will continue to operate other than as an external provider of company accounting services. As such, it remains unclear how [Amana], through its CFO or otherwise, will ensure that it complies with the rigorous financial governance requirements that come with approval. 13 On the basis of the above and other submissions, the Commissioner contended that the Tribunal ought not be satisfied on the evidence before it that Amana met what it described as the "high threshold of suitability" to provide aged care, as required by s 63D(2)(b) of the Commission Act, when regard is had to all relevant matters. 14 When the matter eventually came on for hearing on 2 April 2024, there was reference to a number of persons who were said to perform the roles of "key personnel" in Amana being absent before the Tribunal for the purposes of being questioned. During the cross-examination of Mrs Nasour, the following evidence was adduced: MR ESKERIE: Now, what about Tony Baddoor?---He's an accountant. MR ESKERIE: Is it your position that he will remain a key personnel at Amana?---I believe not. MR ESKERIE: And since when has that changed?---Last year. MR ESKERIE: So when last year?---I can't remember on top of my head. I'm happy to send you the dates later on. MR ESKERIE: The beginning of last year, late last year? Can you give me an indication?--- I'm not sure. Maybe Saad can. MR ESKERIE: Because you say a fair bit in your reply of 30 October 2023 about Tony Baddoor and his responsibility as the CFO?---Exactly. And if you see that last statement of facts, we did not mention him. MR ESKERIE: So he's dropped out?---Yes. MR ESKERIE: And the role of the CFO has dropped out with him?---Yes. MR ESKERIE: So all of your documents that refer to CFO, that should be ignored, the reference to CFO because you will not have a CFO?---No, because we will have one. MR ESKERIE: So you will have a treasurer, a CFO and an accountant; is that the plan?---If needed. MR ESKERIE: Well, what is your management plan for your finance be? Who will there be?---We'll have to look at the policies and procedures, policy number 8. MR ESKERIE: I'm not asking you to take me to a policy, I'm asking you about your understanding of what your company's financing will comprise of?---Yes. So it will comprise of myself - - - MR ESKERIE: (Indistinct)?---Yes. It will comprise of myself, Saad and the treasurer and the accountant of the company. MR ESKERIE: And by accountant, do you mean Mr [Faqih], or do you mean someone else than Mr [Faqih]?---And he's the one who we always ask for advice. Like, for example, when we purchase the van the other day we were in contact with him to ask him a few questions on how to do it, what - who should we - how we should register it and stuff like that. Yes. 15 Mr Faqih was also cross-examined and gave evidence consistent with his statement mentioned earlier as follows (T66.14-30): MR ESKERIE: Now, you are the principal of A2Z Taxation; is that right?---Yes. Yes. MR ESKERIE: And that's essentially a tax accountancy business; is that correct?---Tax (indistinct), yes. MR ESKERIE: And that is the type of service you are providing Amana; is that right?---Correct, yes. MR ESKERIE: Okay. And I think you said earlier as well you described your role as being a tax agent for Amana?---Yes. I am their tax agent, yes. MR ESKERIE: All right. Now, Amana is essentially a client of A2Z Taxation; is that right?---Yes. MR ESKERIE: How many clients would you say you have a present roughly?---Roughly about 550 clients. 16 When the evidenced concluded, the senior member invited submissions from the parties, and invited the Commissioner to address the Tribunal in advance of Amana's submissions. The solicitor appearing for the Commissioner made reference to the Commissioner SFIC and went on (to use his words) to "highlight some key aspects of the evidence, including evidence that came out today". In the light of the evidence that had emerged during the course of the hearing, the following was submitted (T72.22-32; T73.18-25): MR ESKERIE: Ms Nasour herself started as a CEO, she's now managing director. There's a reference to a CFO who no longer is in the picture. There's now a registered accountant who's given prominence in the material and in the policy documents when it comes to financial arrangements. Well, we heard from that accountant today who identified his role as the tax agent for Amana who happened to be one of that particular tax agency's some 500 or so tax clients. What that reveals, and what we say the remainder of the evidence before the tribunal reveals, is that behind the very elaborate, and with respect, confusing façade that is presented as Amana's overall governance and management structure is, in fact, a very simple business structure that revolves around Ms Nasour. *** MR ESKERIE: We know nothing really of verifiable substance about a number of these people. We only found out today that the CFO, who was given quite some prominence including in the applicant's reply SFIC as late as October last year, is no longer in the picture. Instead, mention was made of Amana having a registered accountant, who has today described himself as the tax agent whose business has some 550 and clients including Amana. That just, sort of, reveals the extent to which the façade that is presented is simply not the reality of this business. 17 Following the conclusion of oral submissions, the Tribunal reserved its decision and did not deliver reasons, being the decision, for over four months. 18 Before coming to the decision, it is worth setting out the nature of the decision required to be made under the Commission Act.

C THE LEGISLATIVE SCHEME 19 The objects of the Commission Act are set out in s 5, which provides: (5) The object of this Act is to establish a regulatory framework that will: (a) protect and enhance the safety, health, well-being and quality of life of aged care consumers; and (b) promote aged care consumers' confidence and trust in the provision of aged care services and Commonwealth-funded aged care services; and (c) promote engagement with aged care consumers about the quality of care and services provided by: (i) approved providers of aged care services; and (ii) service providers of Commonwealth-funded aged care services. 20 Pt 7A, Div 2 of the Commission Act deals with the approval of providers of aged care. Div 4 deals with the cessation and revocation of approval. Div 2 contains s 63D, which at all relevant times provided: 63D Commissioner must decide whether to approve person as provider of aged care (1) If a person makes an application under subsection 63B(1), the Commissioner must decide whether to approve the person as a provider of aged care within: (a) if a request for further information in relation to the application has been made under subsection 63C(1) - 90 days after receiving the further information; or (b) otherwise - within 90 days after receiving the application. Note: See Part 8B for the reconsideration of a decision not to approve a person as a provider of aged care. Approval as provider of aged care (2) The Commissioner must not approve the person as a provider of aged care unless the Commissioner is satisfied that: (a) the person is a corporation; and (b) the person is suitable to provide aged care; and (c) none of the key personnel of the person is a disqualified individual. Suitability to provide aged care (3) In deciding whether the person is suitable to provide aged care, the Commissioner must consider the following matters: (a) the person's experience in providing, at any time, aged care or other relevant forms of care; (b) the person's demonstrated understanding of the person's responsibilities as a provider of the type of aged care for which approval is sought; (c) the systems that the person has, or proposes to have, in place to meet the person's responsibilities as a provider of the type of aged care for which approval is sought; (d) the person's record of financial management and the methods that the person uses, or proposes to use, in order to ensure sound financial management; (e) if, at any time, the person has been a provider of aged care or other relevant forms of care - the person's conduct as such a provider and the person's compliance with: (i) the person's responsibilities as a provider of that care; and (ii) the person's obligations arising from the receipt of any payments from the Commonwealth for providing that care; (f) any other matters specified in the rules. (4) In considering a matter referred to in paragraph (3)(a), (b), (d), (e) or (f), the Commissioner may also consider the matter in relation to any or all of the key personnel of the person. (5) The rules may specify the matters to which the Commissioner must have regard in considering any of the matters set out in paragraphs (3)(a) to (f). (6) Subsection (3) does not limit the matters the Commissioner may consider in deciding whether the person is suitable to provide aged care. 21 The only issue in dispute before the Tribunal was the requirement in s 63D(2)(b) (see decision (at [7])). As s 63D(3) makes clear, in determining whether a person is suitable to provide aged care, the Commissioner must consider the matters set out in that subsection. Obviously enough, these mandatory considerations are not exhaustive and s 63D(4) permits decision-makers to have regard to the matters contained in ss 63D(3)(a), (b), (d), (e) or (f) in relation to any or all of an applicant's "key personnel".

D THE TRIBUNAL'S REASONS 22 As an aside, one complaint made by the Commissioner is that the Tribunal's reasons are confined to 15 pages and 39 paragraphs. I do not consider that this, in and of itself, is a pointer to anything. Aside from the fact that lengthy decisions by their very nature often defend themselves against the risk of being read, brevity in decision-making is to be encouraged, provided that attention is given to all matters to which the decision-maker is to have regard and provided that the appropriate reasoning process is sufficiently exposed. 23 With that said, the form of the decision did not adopt the approach of explicitly or clearly identifying when the Tribunal was moving from one of the mandatory considerations in s 63D(3) to another. Without being unduly critical, it might be thought that this is less than ideal given the need for the Tribunal to reveal to those interested in the decision that the Tribunal has assessed each of the mandatory considerations individually, thus assisting in exposing the reasoning process in relation to each of these matters, including by having regard, at least briefly, to the contentions advanced and the matters that have led the Tribunal to its conclusion. 24 It is possible, however, to glean from the decision the relevant findings that have been made with regard to ss 63D(3)(a), (b) (c) and (e). The senior member identified the key personnel as including Mr Baddour (at [18]), and noted the following (at [23]-[24]): [23] Mr Baddour is a certified practising accountant and appears to have provided accountancy services to the applicant in the past. He does not have any experience in providing aged care or other relevant forms of care. Mr Baddour's experience in providing accountancy services to the applicant indicates his familiarity with the financial operations of the organisation. This experience equips him with the necessary skills to oversee financial matters and ensure compliance with financial responsibilities. Mr Baddour's expertise is directly aligned with his responsibilities as CFO, and his independent oversight enhances the applicant's financial governance. [24] I consider that the key personnel, including Mrs Nasour, Dr Ramadan, Mrs Khalil, Mrs Ayoub, and Mr Baddour, bring a diverse range of skills and experiences that are highly relevant to their respective roles with the applicant. I am satisfied that the applicant or its key personnel have sufficient relevant experience in the provision of aged or other forms of care that would enable the applicant to successfully establish and safely and effectively operate as a provider of home care. 25 Later, the Tribunal turned directly to matters which could be seen to be the subject of the consideration the subject of s 63D(3)(d). The entirety of that reasoning process is as follows (at [36]-[38]): [36] Considering financial management, in terms of operating capital, the applicant relies on the cash position of three bank accounts in the name of Mr Ramadan, two of which contained a total of $222,783.93 on 3 June 2022 and the third contained $85,993.20 as of 31 March 2023. The Tribunal has before it a rudimentary profit and loss statement, which appears to show a full year profit of $225,694.32 for an undisclosed year. The applicant has also provided two financial statements prepared by the company that employs Mr Baddour, which indicate a $2,034.58 loss in the 2020 financial year, and a $855.43 profit for the 2021 financial year. [37] Mr Faqih provided a statement in these proceedings dated 9 February 2024 and gave evidence orally at hearing. In his statement he spoke of the applicant's financial capability and said, it is "bolstered by its directors' commitment to invest in the aged home care sector, which was notably strong. Ownership of three residential properties, a healthy stock portfolio and the directors' stable full-time employment provide a solid foundation for financial stability". He further said the applicant: …stands as a testament to good company structure, governance, and solid compliance with Australian laws. Their payroll management, invoicing procedures, BAS statements, and overall commitment to legal requirements underscore their eligibility and suitability to become an approved aged care provider. [38] At hearing, Mr Faqih confirmed that his opinions were from his perspective as a tax agent and from his understanding of the applicant's running of the business. He confirmed that his opinion about the applicant's financial capability was based on the applicant's income and cash assets, bolstered by the directors' assets. He stated that as of December 2023, the applicant had $43,000 in cash assets. Mr Faqih said that payments would need to come out for GST and superannuation but at the same time, the company would still be running and generating income.

E THE PARTIES' SUBMISSIONS 26 During the course of oral submissions today, I asked the parties to direct themselves primarily to what I regarded as the obvious error in the Tribunal's decision and the legal consequences that could flow from that error. In short, the core dispute arising between the parties on the appeal can be summarised as follows. 27 The Commissioner submits that the way in which the Tribunal dealt with the evidence and submissions in the context of its consideration of s 63D(3)(d) demonstrated three errors, namely: (1) the failure to expose sufficiently the Tribunal's reasoning process in relation to Amana's "record of financial management" or "the methods" that it uses or proposes to use "in order to ensure sound financial management", such that the Tribunal did not make a positive factual finding as to the status of Amana's financial management and methods in the light of the evidence; (2) the failure to address the evidence of Mrs Nasour that Mr Baddour, who had been put forward by Amana as one of the "key personnel" in respect of its financial management responsibilities, was no longer occupying the role of CFO, instead identifying Mr Baddour as CFO and as part of its "key personnel"; and (3) the failure to respond to the Commissioner's substantial and clearly articulated argument relying on established facts that Mr Baddour no longer held the position of CFO and that there was no appointment to replace him as CFO. 28 The submission made on behalf of Amana was to recognise appropriately that an error had been made by the Tribunal in the context of its consideration of s 63D(3)(d), but that the issue of Mr Baddour's role as external accountant and CFO was not of such significance to Amana's application to be approved as a provider of aged care that any error by the Tribunal in dealing with that issue would amount to a constructive failure to exercise jurisdiction or a denial of procedural fairness by the Tribunal. This is because when one has regard to the Commissioner's position before the Tribunal that Mr Baddour lacked the requisite experience in providing aged care or other forms of care, and therefore was not suitable to perform the role of CFO, no error relating to Mr Baddour could conceivably have made any difference to the Tribunal's ultimate decision of whether Amana was suitable to be a provider of aged care.

F THE RELEVANT LAW 29 Despite the four grounds of appeal advanced by the Commissioner, for the reasons I have explained earlier, it is only necessary for me to have regard to the Commissioner's argument based on a constructive failure to exercise jurisdiction. 30 It is well established that a failure to respond to a substantial, clearly articulated argument relying upon established facts may amount to both a constructive failure to exercise jurisdiction and a failure to accord procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 (at 1092 [24] per Gummow and Callinan JJ). The expression "constructive failure to exercise jurisdiction" is used because it involves a situation where it is said the decision-maker has purported to resolve the issue present but has not, in fact, done so. This can occur when it is apparent from the reasons that a material issue has not been addressed or that material evidence has been overlooked. 31 With that said, the authorities are replete with cautions that there is a risk that this type of argument can be distorted and morph into some degree of merits review. In assessing such arguments, it is necessary to bear in mind that decision-makers, including the Tribunal, are not required to address every contention made by a party and every piece of evidence in delivering reasons. The failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved: Ming v Director of the Public Prosecutions (NSW) [2022] NSWCA 209; (2022) 109 NSWLR 604 (at 608 [15] per Kirk JA, with whom White and Mitchelmore JJA agreed).

G CONSIDERATION 32 This is not a case at the margins. 33 Counsel for Amana, Mr Robertson, said all that he could fairly have said on behalf of his client in the course of his cogent written and oral submissions. But ultimately, he was faced with the reality that despite the Tribunal turning to the relevant mandatory consideration (at [36]-[38]), that consideration cannot be put into some form of hermetically-sealed box from what precedes it, and it is clear that the Tribunal (at [23]-[24]) placed some emphasis on the role of Mr Baddour as the CFO and the fact that his experience equipped him with the necessary skills to perform various tasks together with other key personnel (see above (at [24])). 34 There is no way of reading that section of the Tribunal's reasons differently. Although Mr Robertson was correct to point to the Commissioner SFIC (at [5.11]) as dismissing the importance of Mr Baddour's role, the final submissions made on behalf of the Commissioner made plain that (T73.18-25): We only found out today that the CFO, who was given quite some prominence including in [Amana's] reply SFIC as late as October last year, is no longer in the picture. Instead, mention was made of Amana having a registered accountant, who has today described himself as the tax agent whose business has some 550 and clients including Amana. 35 It is clear that this was an important matter that was being relied upon by the Commissioner and revealed what was described as the "façade" of how Amana proposed to operate its business. Although the Tribunal correctly understood that a registered accountant was conducting accounting services for Amana, it is clear that the whole premise of the Tribunal's reasoning process is that accounting work was being performed on behalf of the company but that there was some role that Mr Baddour was planning to play in the ongoing operation of the business. 36 This factor was expressly taken into account by the Tribunal in assessing whether the mandatory consideration set out in s 63D(3)(d) had been satisfied to the requisite degree, and the overall consideration called for by ss 63D(2) and (3) as to the suitably of Amana to be a provider of aged care services. The fact that no argument was put that Mr Baddour was central to the operations of Amana may have some substance, but it is not correct to say that this factor was irrelevant to the way in which the Tribunal grappled with the material and determined that suitability had been established. 37 I am satisfied there was a failure to address the evidence that Mr Baddour was no longer occupying the role of CFO and a related failure to respond to the Commissioner's substantial and clearly articulated argument relying upon the fact that Mr Baddour no longer held the position of CFO and that there was no CFO. Accordingly, an error of law has been established and the Tribunal's decision must be set aside.

H CONCLUSION AND COSTS 38 Needless to say, this is a highly regrettable set of circumstances. 39 The attempt by Amana to bring an application and to exercise its legal rights for the decision to be determined according to law has had a long history characterised by significant delay that is not the fault of Amana. I will hear any argument relating to costs, but it seems to me that there is much to be said for the proposition that each party should bear their own costs in circumstances given the history and where the arguments put by Mr Robertson were arguments which were clearly available on the evidence. Although I was greatly assisted by the helpful submissions of Ms Forrester, who appeared on behalf of the Commissioner, the point was a relatively narrow one, and it might be thought surprising in these circumstances that I was presented with a 16-volume court book, not to mention the number of other arguments advanced on appeal which I have found unnecessary to address and in respect of which I do not consider it necessary to call on Mr Robertson. [THE PARTIES MADE SUBMISSIONS AS TO COSTS] 40 Following the delivery of my reasons above, Ms Forrester contended that costs should follow the event, but for the reasons I have already indicated, at the end of the day, s 43 of the Federal Court of Australia Act 1976 (Cth), informed by considerations as to facilitating the overarching purpose, confers a broad discretion as to costs. The Tribunal's failure to make a decision according to law was not the fault of Amana and it approached the resolution of what I have found to be a narrow issue responsibly and with expedition. 41 Indeed, although unnecessary costs were spent on preparation of what was a straightforward appeal, I am grateful to counsel and the solicitors for both parties who conducted this matter in a way that allowed it to proceed to hearing with celerity and allowed me to deliver ex tempore reasons. 42 Accordingly, I will make the following orders: 1. The decision of the Administrative Appeals Tribunal dated 14 August 2024 be set aside. 2. The matter be remitted to the Administrative Review Tribunal for determination according to law, pursuant to item 25 of Part 5 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.