Consideration
22 When the Tribunal attends to its task of merits review under s 74N of the Act, it "stands in the shoes" of the Commissioner's delegate and is to make the correct or preferable decision, at the time of the Tribunal's decision, on the material before it: see Frugtniet v ASIC [2019] HCA 16; 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ); Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [96]-[98] (Hayne and Heydon JJ).
23 Accordingly, the Tribunal was required, under the terms of the AAT Act and s 63D of the Act, to consider the evidence before it, and to determine whether it should affirm, vary, or set aside and substitute the decision under review by reference to the matters set out in ss 63D(3) and (4). The correct version of s 63D is extracted as follows:
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.
24 The Commissioner submitted that the Tribunal failed to do attend to its statutory task. Its conclusions at T[10] were in respect of inapplicable legislation. The Tribunal did not engage at all with the relevant statutory framework that it was required to take into account though it is clear that the Tribunal did consider the evidence.
25 The error arose where the Tribunal understood, at the commencement of T[10], that it was for "this Tribunal" to be satisfied as to the suitability of the corporation (through its key personnel). Putting aside the fact of the inapplicable legislation, the Tribunal did not go on, consistently with the deficiencies it identified in Double Bay's application (at T[10]-[13]) and find that it was not able to approve the application. Rather, it found that it "could not grant an approval to the applicant on the present evidence, even if it was minded to do so" (at T[10]); and then, rather than discharge its statutory function and not approve Double Bay's application, gave Double Bay an opportunity to put on more information and erroneously sought for the Commissioner, rather than itself, to perform "its duty under s 63D" of the Act: T[14].
26 I accept the Commissioner's submission that the Tribunal misunderstood the nature of its review function and failed to carry out the review required of it under the AAT Act.
27 The reasoning in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529 is apposite to this case. ZRTY concerned judicial review of a decision of the Tribunal where the Tribunal was required to review a decision of a delegate of the Minister for Immigration who had refused, under s 501CA(4) of the Migration Act 1958 (Cth), to revoke the cancellation of the review applicant's visa. The Tribunal in that case decided to set aside the delegate's non-revocation decision and to remit the matter by reason of having identified problems with the review applicant's evidence and other shortcomings in the materials which might have enabled the Tribunal to find that there was "another reason why the original decision should be revoked" (s 501CA(4)(b)(ii)). As Katzmann J observed in ZRTY at [43], the Tribunal had "proceeded on the basis that it had insufficient material before it to engage in the exercise required of it by the [Ministerial] Direction [issued under s 499 of the Migration Act]". Her Honour held at [41] that the Tribunal had failed to undertake the task required of it because it had fallen into the kind of error expressed in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [80]:
41 It is plain on the face of the reasons (read fairly and as a whole) that the Tribunal did not undertake the task required of it. Rather, it remitted that task to the Minister's Department. That amounted to a constructive failure to exercise jurisdiction. As Gaurdron J observed in Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [80] (footnotes omitted):
The classic statement as to what constitutes constructive failure to exercise jurisdiction is that of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council [(1947) [1947] NSWStRp 24; 47 SR (NSW) 416 at 420]. That statement, which has been approved by this Court on numerous occasions identifies a constructive failure to exercise jurisdiction as occurring when a decision-maker "misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and ... appl[ies] 'a wrong and inadmissible test'... or ... 'misconceive[s his or her] duty,' ... or '[fails] to apply [himself or herself] to the question which the law prescribes' ... or '... misunderstand[s] the nature of the opinion which [he or she] is to form'".
28 The Tribunal adopted a similar erroneous approach here, albeit in a different statutory context. The Tribunal in the present case, as in ZRTY, was required to conduct a review under the AAT Act, and to make a decision under s 43 of the AAT Act. The Tribunal here misconceived its duty and did not make a decision it was empowered to make. The Tribunal was required to decide whether to approve Double Bay as an aged care provider. It was unable to so approve Double Bay unless satisfied that it was a corporation which was suitable to provide aged care: s 63D(2). As stated above, the Tribunal appears to have made a finding (at T[10]) that Double Bay did not satisfy the s 63D(2)(c) criterion (by reference to the incorrect legislation), but for unknown reasons failed to exercise the power required of it having come to that conclusion, which was (under s 43(1)(a) of the AAT Act) to affirm the decision under review.
29 Similarly to the Tribunal's decision in ZRTY, the Tribunal here appears to have considered it necessary to set aside the delegate's decision on the basis that it was considered "necessary for the Commissioner to be given more information" about certain matters which might have supported the Double Bay's approval as an aged care provider. As Katzmann J observed in ZRTY at [64] "the Tribunal was required to engage in a consideration of the material before it, rather than speculate about what other material might be in existence or might later be obtained." The Tribunal was required to satisfy for itself whether Double Bay had met the requirements in s 63D(2). If it was not satisfied, the Tribunal was required, under statutory compulsion, not to approve Double Bay as an aged care provider. The Tribunal could not, by reason of insufficient information, decide to set aside the delegate's decision and to remit for reconsideration.
30 It was not open to the Tribunal - for the reasons it gave - to decide to set aside the delegate's decision and to remit the matter to the Commissioner. As observed by Lee J with respect to the remittal power under s 43(1)(c)(ii) of the AAT Act, in Minister for Immigration & Multicultural Affairs v Perth City Mission [2000] FCA 397 at [23]:
23. The power of the Tribunal to set aside a decision and remit the matter for reconsideration only arises where the Tribunal is unable to make, and has not made, a decision in substitution for the decision set aside. (See: Commonwealth of Australia v Beale [1993] FCA 294; (1993) 30 ALD 68 per Neaves J at 70.) Section 43(1)(c)(ii) is directed to a circumstance where the decision under the enactment has not been made where the Tribunal is of the view that it is unable to make the decision required by the enactment, for example, where a requirement or condition must be satisfied before a decision can be made.
31 The Tribunal was required to make a decision on the basis of the information before it (which included extensive oral evidence adduced during the hearing) by reference to its power under s 43(1) of the AAT Act, informed by s 74L(2) and s 63D of the Act. The fact that it did not so decide and rather remitted the task to the Commissioner amounted to a constructive failure to exercise jurisdiction: Miah at [80].
32 As is evident from the above, here the Tribunal made no finding that it was unable to make a decision required by the enactment, nor on the evidence presented to the Tribunal. The Tribunal erred in having purported to exercise the power under s 43(1)(c)(ii) on the evidence before it.