Chen v Secretary, Department of Social Services

REASONS FOR JUDGMENT 1 On 26 February 2016 the Administrative Appeals Tribunal affirmed a decision made by the Social Security Appeals Tribunal in August 2014 and concluded that Ms Rui Chen had been overpaid: $16,229.16 in Newstart Allowance from 9 December 2011 to 11 August 2013; and $735.19 in carer payments from 12 August 2013 to 24 October 2013. The Administrative Appeals Tribunal further concluded that there was no basis upon which the Secretary of the Department of Social Services should waive the right to recover these moneys. The central factual issue which was resolved by that Tribunal adversely to Ms Chen focussed upon the withdrawal from bank accounts held in her name of the sum of $260,000 on 9 December 2011 and $207,383.78 on 14 January 2013. That Tribunal rejected a claim by Ms Chen that she held these moneys on trust for her mother, Ms Xuan. 2 On 30 March 2016 there was lodged electronically in this Court an Application for an extension of time in which to file a Notice of Appeal from the decision of the Administrative Appeals Tribunal. By that date Ms Chen was outside the 28 day period within which appeals may be instituted without leave: Administrative Appeals Tribunal Act 1975 (Cth) (the "Administrative Appeals Tribunal Act"), s 44(2A). The jurisdiction of this Court to entertain any appeal from a decision of that Tribunal, even if brought within time, is constrained by the need for an "appellant" to identify a "question of law" for the purposes of s 44 of the Act. The existence of a "question of law", it has long been recognised, "is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it": Brown v Repatriation Commission (1985) 7 FCR 302 at 304 per Bowen CJ, Fisher and Lockhart JJ. 3 The affidavit filed in support of the Application stated, in part, that Ms Chen believed "that the AAT made errors of law in disregarding my evidence and treating the money as mine, and was procedurally unfair in not letting me have a witness appear at the hearing, and that the AAT decision was wrong". She also annexed a draft Notice of Appeal to her affidavit which she candidly acknowledged was "incomplete". That, indeed, was an understatement. The draft Notice of Appeal stated in part: Question of law 1. TBA 2. TBA 4 The matter was listed for hearing on 27 June 2016. On 20 June 2016 Ms Chen applied to adjourn the hearing. The adjournment application was opposed. Directions were made (inter alia) for the filing of a Draft Notice of Appeal and the matter was adjourned until 19 July 2016. 5 On 12 July 2016, Ms Chen lodged a Draft Notice of Appeal which contained the following "Questions of Law" (without alteration): 1. Whether the Tribunal member denied procedural fairness by accepting into evidence documents from Bernard Wong, David Haley and Simon Au and indicating that it was not necessary to call them to give evidence to confirm the contents, but then deciding that she doubted the authenticity of the documents because they were not called to give evidence, and would give them no weight. 2. Whether the Tribunal member denied procedural fairness by not making any investigation and rejecting the evidence of the Applicant that she had provided the documents from Bernard Wong, David Haley and Simon Au to the earlier Social Security Appeals Tribunal (SSAT) hearing on 20 August 2014, without examining the SSAT records to verify this and when the SSAT records indicate that they were in fact provided to the SSAT. 3. Whether the Tribunal member denied procedural fairness by deciding that she doubted the authenticity of the Statements of Explanation (10 October 2014, 11 November 2014 and 27 December 2015) from persons in China, tendered in evidence in the AAT by the Applicant, without raising this doubt with the Applicant and allowing an opportunity to answer it. 4. Whether the Tribunal member erred in conclude that all the written documents from various witnesses were inadmissible as she applied wrong legal test and inconsistent reasoning to all evidence provided by different individuals without investigating each evidence and pointed out where is at odds individually and did not explain why she gave them no weight. 5. Whether the Tribunal member erred in making the decision biased from the SSAT decision without looking at the evidence from a fresh mind. 6. Whether the Tribunal member erred in using unrelated transactions or evidence to draw the inference in one area and render the same inference to another area without investigation. 7. Whether the Tribunal member erred in applying or interpreting the case with the relevant trust law, failed to explain and state the reasoning with why the assertion of that the money was held in trust cannot be believed instead taking many unrelated aspects into the consideration. 8. Whether the Tribunal member erred in not dealing adequately with the Applicant's case that the money in the relevant accounts was held in trust by the Applicant for her mother Ms Gong Xiang Xuan. 9. Whether the Tribunal member erred in giving inconsistent and illogical reasons between the paragraphs of 13 and paragraph 47. The member conflicted with 13 she thinks business ventures was vague but in 47 she thinks Ms Xuan's evidence about business was detailed in ATT although she doubted if the detailed evidence was said in SATT. 10. Whether the Tribunal member erred in failing to record Ms Xuan's evidence on 12th January about her own check. It addressed the three checks that consisted two from Ye Zong Xi and Long Zeng Kang, the third one was from Ms Xuan. They were brought back by Dr Bernard Wong in August, 2011. 11. Whether the Tribunal member erred in claiming the cash deposit of $21,826 in Ms Chen's bank statement. 12. Whether the Tribunal member erred in deciding that the Applicant was suffering from financial hardship alone, which cannot constitute special circumstances and allow the waiver of a debt under s. 1237AAD, Social Security Act. 6 On 19 July the proceeding was stood over for hearing on 4 August 2016. On 4 August the proceeding was further adjourned until 12 September 2016. The hearing of the Application for an extension of time and the hearing of the appeal (in the event that leave was granted) was listed for hearing at 9.30 am. Ms Chen did not appear. The matter was stood down so that she could be contacted. When contacted, she maintained that she thought the hearing was "tomorrow" and that she "had a fever". The matter was stood down to 11.15 am to allow Ms Chen the opportunity to attend and present a medical certificate which was apparently obtained on 9 September 2016. 7 It is concluded that the proposed grounds of appeal sought to be raised on appeal by Ms Chen are devoid of any legal merit. Her Application for an extension of time is to be dismissed.

The absence of any question of law 22 In the present case it is respectfully concluded that there is no "question of law" which would trigger the jurisdiction of this Court. 23 A denial of a "reasonable opportunity" or a denial of procedural fairness to Ms Chen to present her case may, of course, give rise to a "question of law" for the purposes of s 44: cf. Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8], (2003) 131 FCR 28 at 32. See also: Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180 at [93], (2014) 227 FCR 459 at 488 per Bennett, Nicholas and Griffiths JJ; Mentink v Secretary, Department of Social Services [2015] FCA 473 at [97], (2015) 66 AAR 205 at 219 per Greenwood J. 24 But no such error emerges. 25 A "question of law" may arise where the Tribunal fails to afford an opportunity to a party to adduce evidence from a material witness: Sullivan v Department of Transport (1978) 1 ALD 383 at 391per Fisher J. The Tribunal was there reviewing a decision refusing to renew Mr Sullivan's pilot's licence. The renewal had been refused on medical grounds. Mr Sullivan wished to question Dr Evans. The Tribunal proceeded in the absence of Dr Evans. On appeal it was concluded that he had not been afforded a reasonable opportunity to present his case. In so concluding, Smithers J observed: In my opinion if the appellant was to present his case reasonably it was essential that Dr Evans be called as a witness. The reason he was not called was that although expected to appear at the hearing he did not actually appear. Counsel for the respondent indicated that the respondent had taken no steps to have him present, as it was understood that the appellant would arrange for him to be present. The appellant told the Tribunal that the doctor had said to him that he would be present. That the appellant desired to question Dr Evans is beyond doubt. However, the Tribunal proceeded to a decision in the application before it without directing any inquiries as to Dr Evans' whereabouts or his intention as to his attending the hearing and without giving any indication to the appellant that he might apply for an adjournment or that the procedure of summons to witness was available on the direction of the President: see Administrative Appeals Tribunal Act s 40(1 A) and reg 15 made under the Act. One does not know what the appellant knew about his rights or duties as an advocate or litigant. His general approach was certainly untutored. He was obviously not competent to handle his own case properly. But he did make clear that he wished to question Dr Evans on matters which would have been relevant to the issue of whether a conditional renewal of his licences should be granted …. Without Dr Evans the appellant had no opportunity to put before the Tribunal the oral evidence of a competent witness who could speak as to his physical and mental state at his most recent medical examination and who, as appeared from the terms of his written certificate and from what he had told the appellant, might well have been expected to testify that the appellant was fit to fly civil aircraft, at least subject to certain conditions and limitations. Of present relevance is the fact that a failure to consider evidence or a failure to consider a material fact may constitute a "question of law" susceptible of appeal. Of less importance is the fact that in the circumstances of Mr Sullivan's case there had been a denial of an opportunity to be heard - but in factual circumstances very different from those in the present case. The evidence not called in Mr Sullivan's case was "critical" and Mr Sullivan had made it known that he wished to question Dr Evans. It was his expressed desire to question Dr Evans that contributed to the conclusion that the Tribunal should have "alerted" Mr Sullivan to the prospect of seeking an adjournment. But the potentially corroborative evidence in the present case remained within the control of Ms Chen to call if she so wished. No question arose of any reason to "alert" her to the prospect of calling further evidence if she so wished; any further evidence that she wished to call remained within her control and did not depend on any necessity (for example) to issue a summons. 26 A jurisdictional error, and unquestionably a "question of law", emerges if an administrative tribunal fails to evaluate the evidence in a rational manner or in a procedurally fair manner: Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [56] to [63]. See also: Commissioner of Taxation v Moignard [2015] FCA 143 at [72] per White J. 27 But, again, no such error emerges in the present case. Ms Chen was afforded a reasonable opportunity to present her case and adduce whatever evidence she wished. A reasonable opportunity to be heard does not require the Tribunal to provide a party with a progressive series of assessments as to the current "state of play" of her evidence as a hearing progresses or to provide advice as to the desirability of calling further evidence if the existing evidence has been assessed (albeit in a preliminary manner) as wanting. 28 Notwithstanding the manner in which the draft Notice of Appeal was first drafted, it was understood that Ms Chen sought to identify a "question of law" by reference to a contention that: the Tribunal erred in not advising her - or putting her on notice - that she should have called (for example) Mr Haley or Mr Au lest her failure to do so may prejudice the Tribunal's consideration of the evidence relied upon; or the Tribunal actively misled Ms Chen by representing to her that there was no need to call Mr Haley or Mr Au - the contention being that Ms Chen offered to call these witnesses but had been told by the Tribunal that there was no need to do so. These were the arguments more fully addressed in the Draft Notice of Appeal filed on 12 July 2016. However expressed, none of these contentions (with respect) withstands scrutiny. 29 The case of an unrepresented party creates difficulties for the parties, the Tribunal and the Court. The Courts, it has been said, "have an overriding duty to ensure that a trial is fair": Hamod v New South Wales [2011] NSWCA 375 at [309] per Beazley, Giles and Whealy JJA. But "the court's duty is not solely to the unrepresented litigant": AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [310]. Flick, Griffiths and Perry JJ there observed that this "entails ensuring that the trial is conducted fairly and in accordance with law": at [309]. Although there "may be a tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties … it is the task of the judge to strike that balance": at [315]. 30 In the circumstances of the present case, had the Tribunal (for example) misled Ms Chen into believing that it was satisfied with the evidence that it presently had before it and that she need not adduce further evidence or call further witnesses to corroborate what was asserted in an otherwise unverified document, a denial of procedural fairness may well have been made out. But there was no basis for such a finding. 31 There was, with respect to Ms Chen, no basis upon which any view could be formed other than that the Tribunal proceeded in a procedurally fair way. There is, in particular, no necessity for the Tribunal to advise Ms Chen of any reservations it may have had in respect to the evidence she was giving either during the hearing itself or thereafter when writing its reasons. There is no requirement that the Tribunal expose its reservations as to the reliability of the evidence being given during the course of a hearing. It may do so - but it is not required to do so. There is, in particular, no requirement for a decision-maker to give a "running commentary" on its assessment of the evidence throughout the course of a hearing: cf. Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [31], (2001) 206 CLR 57 at 69 per Gleeson CJ and Hayne J. A decision-maker's assessment of the probative weight to be given to the evidence being adduced by a party may vary considerably throughout the course of the hearing itself as the evidence is tested in possible cross-examination and when further, possibly corroborative evidence is adduced. Its assessment may also change after the hearing has concluded and the decision-maker is considering the evidence in its entirety in the course of preparing reasons for decision. 32 Nor is there any basis for concluding that the Administrative Appeals Tribunal "actively misled" Ms Chen as to the course she should take. A transcript of the proceedings before that Tribunal belatedly became available. A review of the transcript exposes the Tribunal extending to Ms Chen every opportunity to explain her position. The Tribunal initially conducted a hearing on 12 January 2016 and a further hearing on 22 January 2016. At the resumed hearing, the Tribunal member stated at the outset: … The reason I asked you to come back is that following the hearing, in going through some of the evidence there were several things that were not clear to me, and that seemed to be unanswered by the evidence I had heard, and which raised some questions in my mind, and I thought it important that I give Ms Chen an opportunity to hear what those matters are and to explain them, if she is able … A review of the transcript does not expose any occasion when the Tribunal "actively misled" Ms Chen. There were some isolated occasions when the transcript would appear to be incomplete, possibly due to difficulties in understanding what was being said. But an account was given to this Court as to what was said to have not been included in the transcript. Such omissions as there may be in the transcript assume no relevance. There was no other evidential basis upon which any conclusion could be reached that Ms Chen was (for example) advised not to call any particular witness. 33 Nor has there been any failure on the part of the Administrative Appeals Tribunal properly to assess the evidence that was before it; the complaint of Ms Chen is that she wanted that Tribunal to reach a different conclusion upon the basis of that material. But such a factual divergence between the desired result and the decision reached gives rise merely to a question of fact - and not of law. Unlike the case in Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [56] to [63], the Tribunal in the present case did evaluate the evidence that was before it and reached a rational conclusion based upon that evaluation.

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