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[2021] FCA 1441
Federal Court of Australia
2021-11-23
Kerr J
Original judgment source is linked above.
The Applicant's submissions 22 The Applicant filed written submissions as follows: 1. The Administrative Appeals Tribunal Act 1975 provides that a party to a proceeding before the AAT may appeal to the Federal Court on a question of law from any decision of the AAT in that proceeding. The applicant appealed to the federal court on a question of law from the AAT on 24 December 2020 according to the act. 2. The federal court made a first case management hearing on 1March 2021 in relation to the notice of appeal of which the respondent made an objection that the applicant's question of law on a notice of appeal form does not fall under the s44 of the AAT Act 1975 to which the court ordered the hearing to go ahead on 28 April 2021 and on that day the court ordered the applicant to amend the notice of appeal's question of law and the applicant submitted the amended notice of appeal form to the Federal court on 13 May 2021 and the court went for another hearing on this matter of the respondent's objection on 11 June 2021 and the court did not have any objection to the applicant's question of law on the amended notice of appeal form and further decided to go for a hearing on 6 September 2021 is a sufficient reason to believe that the applicant's question of law is within the meaning s44 of the administrative appeals tribunal act 1975. (as in original) 23 I mean no disrespect to the parties but their oral submissions in respect of the interlocutory application did not substantially further illuminate the position.
Discussion 24 It is appropriate to commence by setting out r 31.05 of the Federal Court Rules 2011: 31.05 Notice of objection to competency (1) A respondent who objects to the competency of an application must, within 14 days after being served with the application, file a notice of objection to competency: (a) in accordance with Form 68; and (b) that, briefly but specifically, states the grounds of the objection. (2) The applicant carries the burden of establishing the competency of an application. (3) A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the application. (4) If a respondent has not filed a notice under subrule (1), and the application is dismissed by the Court as not competent, the respondent is not entitled to any costs of the application. (5) If the Court decides that an application is not competent, the application is dismissed. 25 Section 44(1) of the AAT Act is as follows: 44 Appeals to Federal Court of Australia from decisions of the Tribunal Appeal on question of law (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. 26 In Haritos v Commissioner of Taxation [2015] FCAFC 92, the Full Court considered the construction of the phrase "a question of law" as appears in s 44 of the AAT Act. Under the heading "Summary of conclusions in relation to s 44 of the AAT Act", the Full Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) expressed itself as follows: 62 We now turn to consider the more general questions raised by the appeal in relation to s 44 of the AAT Act. In summary, our conclusions are as follows: (1) The subject-matter of the Court's jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law. (2) The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal. (3) The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44. (4) Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction. (5) In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal. (6) Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form. (7) A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law. (8) The expression "may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal" in s 44 should not be read as if the words "pure" or "only" qualified "question of law". Not all so-called "mixed questions of fact and law" stand outside an appeal on a question of law. (9) In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court's discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an "error of law" in the failure in the Tribunal to make a finding first urged in this Court. (10) Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241. 27 The above observations bind me as a single judge of this Court. 28 As a preliminary matter however I am satisfied that the Court is entitled to reject, and should reject, the Applicant's submission that: …the court did not have any objection to the applicant's question of law on the amended notice of appeal form and further decided to go for a hearing on 6 September 2021 is a sufficient reason to believe that the applicant's question of law is within the meaning s44 of the administrative appeals tribunal act 1975. That submission refects a plain misunderstanding of the relevant procedural facts. 29 The Court's orders of 11 June 2021 as are reproduced above at [19] explicitly made provision for each of the parties to file short written submissions as to the jurisdictional objection that the Respondent had raised. Those orders made it very clear that that question remained in issue. 30 Having regard to the observation of the Full Court at [62(5)] the Court had listed the Secretary's Notice of Objection to Competency to be heard concurrently with the hearing of the Appeal. The Court had done so to permit the Applicant to put forward in submissions and argument all that he wished to rely on. 31 However, nothing that was advanced by the Applicant, in writing or orally, after having been given that opportunity assisted the Court to identify how the propositions he advanced in his amended grounds as questions of law if formally deficient might nonetheless, on further explanation, reveal a question of law understood as a matter of substance. 32 On their face they do not. 33 The question "should the appellant receive the single rate of DSP during the period of April 2017 till (sic) 28 April 2019 based upon special circumstances" as the Secretary submits, invites the Court to decide a question, not of law but of discretion, the merits of which were for the Tribunal. 34 Nothing was advanced by the Applicant in argument that could serve as the foundation for a substantive contention that the Tribunal had erred when it confined its decision on review to the period ending 16 April 2018. 35 As noted at [5] above the Applicant's proceedings in the Tribunal had initially been commenced in relation to his then contentions: (a) that he was entitled to the single rate of benefit until 4 January 2018 and (b) that he had been wrongly required to repay the excess he had received. 36 It was the Secretary's later concession as is referred to at [9] above that opened the way to the Tribunal handing down a decision applying beyond 4 January 2018. Whatever might be said about the legal basis for that extension, there can be no room for doubt that in respect of the whole of the period relevant to the Tribunal's decision (on remittal) the Applicant had been (and, if anything, more than) wholly successful. 37 The second question the Applicant's amended Notice of Appeal advances as a supposed question of law is "should the appellant be eligible for rent assistance during the period of February 2016 till January 2018?" That also, as the Secretary submits, asks a question properly for the Tribunal to provide an answer to rather than this Court. 38 The applicant plainly is aggrieved and convinced the outcome is unfair but he has not identified any question of law as might put in issue that the Tribunal decided that issue in a manner exceeding its legal duty or jurisdiction. 39 The Tribunal answered the question before it in the negative for the reasons it stated at paragraphs [32]-[37]. Those paragraphs appear in these reasons at [12] above. The purported question of law in the Applicant's amended Notice of Appeal simply asks the Court to answer that question differently than did the Tribunal. The Applicant's written and oral submissions identified no relevant question of law in that regard as might entitle the Court to understand the position differently. Moreover, to the extent the Court itself gave consideration to whether it might be possible to understand the ground as raising an issue of substance, I apprehended nothing to suggest the Tribunal's reasoning and its conclusions were infected by legal error. 40 I am therefore satisfied that the Secretary must be correct, notwithstanding the duty of the Court to interrogate for itself whether or not a question of law has been advanced as a matter of substance, to contend that the jurisdiction of the Court has not been validly invoked in this proceeding. 41 I uphold the Secretary's Notice of Objection to Competency. 42 For completeness I note that the Applicant's citation of a number of provisions of the Social Security Act 1991 that he relies on (s 1218; s 1070C; s 24; s 1061PJ, and the Social Security Policy for Portability) does not compel the contrary answer. It is true those are 'laws' but there is nothing before the Court to link those laws existence or what they require to the questions set out in the amended Notice of Appeal the Applicant has filed. 43 The Applicant's application is dismissed pursuant to r 31.05(5) of the Federal Court Rules 2011. There is no reason why costs should not follow the event. The Applicant is to pay the Respondent's costs as may be agreed, or in default of agreement as may be taxed. I certify that the preceding forty three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr.
Ahamed
Secretary, Department of Human Services
KERR J: 1 This case concerns an appeal by the Applicant, Mr Mohammad Ahamed, from a decision of the Administrative Appeals Tribunal (the Tribunal) dated 4 December 2020 concerning his Disability Support Pension (DSP) and rent assistance payments: CJCY and Secretary, Department of Social Services (Social services second review) [2020] AATA 4939. 2 It is useful to first set out the procedural history of this matter. The following background is summarised from the reasons for decision of the Tribunal and is not in dispute. 3 On 7 August 2018, the Secretary, Department of Human Services (the Secretary) made a decision that the Applicant was a member of a couple and had been incorrectly paid the DSP at the single rate and thus had a debt of $6,795.88 (the DSP Decision). 4 In September 2018, the Secretary made a further and separate decision that the Applicant was entitled to rent assistance from 5 January 2018 (the Rent Assistance Decision). 5 The Applicant sought a review of the Secretary's DSP and Rent Assistance decisions. He contended that he was eligible for the single rate DSP and was entitled to rent assistance from 16 June 2016 to 4 January 2018, and was thus entitled have his DSP debt waived and rent assistance for that period back-paid. On 7 December 2018, an Authorised Review officer of the Appeals Branch of the Secretary affirmed the Secretary's decisions. 6 The Applicant appealed to the Tribunal. On 22 May 2019, the Social Services & Child Support Division of the Tribunal affirmed the decisions of the Authorised Review Officer. 7 The Applicant appealed that decision to the General Division of the Tribunal. On 7 January 2020, the General Division of the Tribunal set aside the DSP Decision and remitted it to the Secretary on the basis of special circumstances being found to waive $2,000 from the Applicant's total debt. It affirmed the Rent Assistance Decision. 8 The Applicant sought review of that decision in the Federal Court of Australia. That proceeding was subsequently transferred to the then Federal Circuit Court of Australia (FCCA). On 20 May 2020, the FCCA allowed Mr Ahamed's appeal and set aside the 7 December 2020 decision of the Tribunal, directing that it be remitted for hearing according to law. 9 Prior to the remitted hearing in the Tribunal, the Secretary proposed to the Applicant a concession that a discretion be exercised so as to treat him as not being a member of a couple for the period 5 April 2017 and 16 April 2018. The practical effect of that proposed concession was that, if given effect to, Mr Ahamed would be recognised as having been entitled to the single rate of DSP for that period and thus had no debt due. That proposed concession was later formally made by the Secretary during the remitted hearing before the Tribunal on 5 October 2020.
[1989] FCA 557
[1986] HCA 33