Chan v Secretary, Department of Family and Community Services

REASONS FOR JUDGMENT 1 The applicant, Mr Chan, has filed a notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). 2 The applicant is an Australian citizen, as is his son, who is an infant. The applicant and the mother of the infant, Ms Hanh Min Vu, are apparently estranged. Ms Vu is not an Australian citizen. 3 Between 18 June 2001 and 20 July 2001 the applicant received various benefits in an amount below $3,000 under various sections of the A New Tax System (Family Assistance) Act 1999 (Cth) and the Social Security Act 1991 (Cth). 4 During the same period, benefits were paid in respect of the infant into an account controlled by Ms Vu. Precisely how these benefits were paid is not clear. Formally, Ms Vu is not eligible to receive them and so it was said they were paid to the son; but the son, as an infant, could not and did not either arrange for them to be paid or have a bank account under his control into which to receive them. I infer Ms Vu effected these matters. 5 Both sets of benefits (those to the applicant referred to at [3] above those to or in respect of the infant referred to at [4] above) were probably not payable. Each depended upon the infant being in the custody of one of the applicant and Ms Vu. The two, being estranged, did not both have the child at the same time. 6 In September 2001, Centrelink demanded repayment from the applicant of the benefits. 7 In January 2002, an authorised review officer of the first respondent affirmed the decision to recover the debt. 8 The applicant sought review of this decision to recover the debt in the Social Security Appeals Tribunal (SSAT). Ms Vu was joined as a party to that review. In August 2002 that Tribunal affirmed the decision of the authorised review officer. 9 In September 2002 the applicant sought a further review in the Administrative Appeals Tribunal (the AAT). 10 On 15 January 2003 the AAT sent a letter to Ms Vu to advise of the applicant's application to the AAT and to advise that as she was joined as a party by the SSAT, she was automatically a party to the AAT review as the second respondent. 11 On 4 March 2003 at the first preliminary conference before Conference Registrar Desses of the AAT, a preliminary issue was identified; that is, whether Master Vu should be joined as a party instead of Ms Vu. The applicant did not consent to this. A directions hearing was listed for 22 April 2003. 12 On 1 April 2003 Welfare Rights Centre sent a letter to the AAT enclosing Form 5, "Application to be made a party to a proceeding", naming "Master Tran Vu" as the person seeking to be made a party. The letter was in the following terms: We act on behalf of Ms Hanh Thi Minh Vu, a respondent in the above matter. We are instructed to apply to have Ms Vu's son Hieu Quan Tran Vu, added as a party in this matter as his interests may be affected by the Tribunal's decision. Following is a Form 5 "Application to be made a party to a proceedings". We understand that the Tribunal has set down a directions hearing in this matter on 22 April at 9.30 am. We advise that Jackie Finlay will be attending on behalf of Ms Vu and Master Vu. If you have any queries please do not hesitate to contact Jackie Finlay on ph: [number provided]. 13 The "Form 5" made under subregulation 6(1) was in the name of the infant (Master Tran Vu). The form contains the following assertion made on behalf of the infant: Outline the reasons why you should be made a party to the proceeding. Mr Chan's appeal raises the issue of whether he was qualified for Parenting Payment and Family Tax Benefit between 18 June 2001 and 20 July 2001 on the basis that Master Vu (his son) was in his care during this period. Master Vu was in receipt of Special Benefit during this period on the basis that he was in the care of his mother, Hanh Thi Minh Vu, who was unable to earn a sufficient livelihood for them both. The decision of the Tribunal in Mr Chan's appeal may have an adverse effect on Master Vu's qualification for Special Benefit during the period 18 June 2001 to 20 July 2001. 14 These matters were drafted by the "Welfare Rights Centre", which, as the letter of 1 April 2003 made clear (see [12] above) acted for Ms Vu and Master Vu. Presumably instructions were taken from Ms Vu. 15 On 3 April 2003 the AAT sent a letter to the first respondent, advising it had "received an application from Hieu Quan Tran Vu to be joined as a party to the review before the Tribunal" and requesting that the first respondent advise the AAT whether it consented to or opposed this application. The first respondent consented. 16 On 22 April 2003 the matter was listed for directions before Deputy President Handley of the AAT. On that day, Deputy President Handley made a direction as follows: "That the child Hieu Tran Vu (also known as Hieu Qan Chan) be joined as a party to the proceedings in substitution for Hanh Thi Minh Vu pursuant to s 30(1A) of the Administrative Appeals Tribunal Act 1975 ("the Act")" 17 It is against this procedural direction that the applicant "appeals". 18 Before the hearing the Australian Government Solicitor sent a letter to the applicant setting out the position in relation to "appeals" under s 44 of a direction of this kind. 19 A notice of objection to competency was filed on 10 June 2003. 20 The "appeal" is incompetent. The "appeal" provided for only lies from a decision of the Tribunal which constitutes the effective decision or determination of the application for review: Director-General of Social Services v Chaney (1980) 47 FLR 296, or at least a substantive part of the effective decision: Stafford v Repatriation Commission (1995) 56 FCR 121. 21 The procedure of the AAT is, subject to the AAT Act, within the AAT's discretion; par 33 (1)(a) of the AAT Act. The power of the AAT to join parties is provided for in s 30. Relevantly, par 30(1)(d) and subs 30(1A) are in the following terms: 1) Subject to paragraph 42A(2)(b), the parties to a proceeding before the Tribunal for a review of a decision are: … (d) any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A). (1A) Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding. 22 There may conceivably be debate about the question as to whether Master Vu's interests could be affected by the outcome of the decision. It is said that he (as an infant of two) could be liable to repay the benefits referred to in [4] above if the applicant were successful. I received submissions on this point. It is unnecessary to deal with the issue in detail. It is sufficient to say that I have grave doubt that Master Vu would be made liable in this way and not Ms Vu. 23 In any event, debate about this, in the light of ss 30 and 33 of the AAT Act, does not give rise to a ground for invocation of relief or likely grant of relief either under s 39B of the Judiciary Act 1903 (Cth) or s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Thus, there is no point in treating the initiating process as an application under these provisions, or either of them. 24 The appeal under s 44 of the AAT Act is incompetent, and should be dismissed as such. 25 As to costs, the applicant was advised to appeal in this way by an unnamed lawyer. However, the first respondent informed the applicant substantially accurately of the difficulties faced by him in a letter dated 30 May 2003 which I directed be sent. I think the applicant should pay the costs of the respondents from a point fourteen days after the date of that letter. 26 The AAT should be allowed to complete its task of dealing with the application before it deciding upon its own procedure in accordance with its powers in the AAT Act. 27 It should be noted that the Chief Justice decided that it was not appropriate for this matter to be dealt with by a Full Court under subs 44(3) of the AAT Act. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.