Christanty v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 The applicant seeks leave to appeal from a judgment of the Court given on 30 November 2012 (Christanty v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCA 1360), and an extension of time in which to seek that leave. 2 The proceeding in which judgment was given was an appeal from a decision of the Administrative Appeals Tribunal in which the Administrative Appeals Tribunal had affirmed a decision of the Social Security Appeals Tribunal, itself affirming the continuing existence of an assurance of support (AOS) that had been given in relation to the applicant. Background 3 The brief background circumstances to the application are as follows. 4 The applicant is the holder of a Contributory Parent visa. A criterion for the grant of that visa is that the Minister for Immigration and Citizenship is satisfied that the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs has accepted an AOS in relation to the visa applicant. The applicant's brother, Mr Kwik, provided an AOS in respect of the applicant. It came into effect on 27 April 2008. The Department's position is that the AOS remains in effect and, under present arrangements, will do so until 26 April 2018. 5 In April 2011, the applicant was granted a benefit called Newstart Allowance. Later, Centrelink (an agency of the Department) advised Mr Kwik that he had accrued a debt in respect of the AOS he had given. He apparently made no complaint about that fact. Nevertheless, the applicant asked Centrelink to review its decision. Centrelink carried out a review, but maintained its decision. It was this decision that led to the unsuccessful review by the Social Security Appeals Tribunal and, subsequently, the Administrative Appeals Tribunal. 6 An appeal to this Court from a decision of the Administrative Appeals Tribunal can only be on a question of law: s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The question of law must be articulated with precision. 7 The applicant sought to appeal from the decision of the Administrative Appeals Tribunal by filing a notice of appeal on 24 August 2012. When the matter was first before the Court, it was pointed out to the applicant that her notice of appeal failed to articulate a question of law. She was granted leave to file an amended notice of appeal. On 24 October 2012, the applicant filed an amended notice of appeal. Thereafter, the respondent filed an interlocutory application seeking orders under s 31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). 8 Section 31A provides as follows: (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. 9 The basis of the respondent's interlocutory application was that, first, the applicant's appeal was incompetent in that it was not an appeal on a question of law and, secondly, the applicant had no reasonable prospect of successfully arguing that the AOS was not still in full force and effect. 10 The primary judge acceded to that application and dismissed the appeal with costs. The primary judge's decision 11 The grounds of the applicant's amended notice of appeal before the primary judge were poorly expressed. However, at the hearing of the interlocutory application, the applicant confirmed that the questions raised by the amended notice of appeal were to be understood as follows. First, why did the Administrative Appeals Tribunal decide that the applicant was under an AOS? Secondly, why did the Administrative Appeals Tribunal decide that Mr Kwik had to repay to Centrelink the amount of $2,770.11? 12 At the hearing of the interlocutory application, the applicant raised a number of factual contentions. She argued that the AOS had "ceased" when she had an operation on her hand and that her own inspection of a computer screen at a Centrelink office revealed to her that "[her] Assurance of Support was BLANK (NONE)" but "now they put it back". She also said, somewhat inconsistently with her other evidence, that when she was granted her Newstart Allowance she was told by an officer from Centrelink that no money would become payable under the AOS on that account. 13 It is not necessary for me to describe the details of all the factual matters that were raised by the applicant. Those matters are recorded in [13] of the primary judge's reasons. 14 The respondent submitted that the two questions that the applicant had raised in her amended notice of appeal amounted to nothing more than a statement of disagreement with the Administrative Appeal Tribunal's decision or a request that the decision be explained. 15 The primary judge reasoned that the amended notice of appeal disclosed no question of law and that, essentially, the applicant's complaints related to factual findings. The primary judge canvassed possible questions of law, including questions related to whether the grant of the applicant's Newstart Allowance put an end to the AOS. In the end result, however, the primary judge concluded that the applicant's appeal had no reasonable prospect of success. The primary judge's reasons for coming to that conclusion are captured in [18] to [21] of the reasons: 18 Section 1061ZZGEA of the Social Security Act provides that once the person in respect of whom an AOS was given becomes the holder of a visa granted in connection with the assurance, the AOS may not be withdrawn. Section 1061ZZGF(1)(b) provides that an AOS remains in force until the earliest of the following times: (i) the end of the period specified for the purposes of this subparagraph in a determination under section 1061ZZGH; (ii) the time (if any) determined by the Secretary under subsection (2); (iii) if a circumstance specified for the purposes of this subparagraph in a determination under section 1061ZZGH applies in relation to the assurance - the time determined by the Secretary in relation to that circumstance. 19 The relevant determination is the Social Security (Assurances of Support) (DEEWR) Determination 2008 made on 7 February 2008. Section 17 of the Determination specifies that the relevant period in the case of a Contributory Parent visa for the purpose of subpara 1061ZZGF(1)(b)(i) is 10 years. For the purpose of subpara 1061ZZGF(1)(b)(iii), the following circumstances are specified: (a) after arrival in Australia, a person identified in an assurance of support is granted refugee status; (b) the visa of a person identified in an assurance of support is cancelled. (c) a person is the only person identified in an assurance of support and the person dies; (d) the following special circumstances that, in the opinion of the Secretary, justify cancellation of an assurance of support: (i) an accident, disability, illness or other circumstance that has critically affected the assurer's ability to provide adequate support; (ii) the incapacity of a person identified in an assurance of support to travel to Australia before the expiration of a visa. 20 As the AAT found, none of these circumstances arise in the present case. Ms Christanty did not contend that they did. Her repeated references in her affidavits to her injury and heart surgery are irrelevant. Section 18(d) is not concerned with the situation of the visa holder. 21 In the result, no time having been determined by the Secretary for the purpose of s 1061ZZGF(1)(b)(ii), the AOS in respect of Ms Christanty remains in force for 10 years, being the period specified for the purposes of subparagraph (1)(b)(i). 16 In dealing with the application under s 31A of the Federal Court Act in respect of the applicant's appeal, the primary judge (at [17]) said: Section 31A of the Federal Court of Australia Act 1976 (Cth) ("FCA Act") allows the Court to give summary judgment for the Secretary in these circumstances and, in my view, this is a proper case in which to do so. That power is to be exercised in the way that best promotes the overarching purpose of the FCA Act and Rules of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible (see s 37M). Having regard, in particular, to the objectives listed in s 37M(2) of the FCA Act, dismissing the appeal at this point would be the optimum way to promote the overarching purpose. 17 The primary judge later said (at [24]): A proceeding need not be "hopeless" or "bound to fail" for it to have no reasonable prospect of success: FCA Act, s 31A(3); Spencer v Commonwealth (2010) 241 CLR 118 at [17] per French CJ and Gummow J, at [52] per Hayne, Crennan, Kiefel and Bell JJ. But in the present case I am satisfied that the appeal is, indeed, hopeless. It follows that, even if a question of law can be teased out of the material, the appeal is bound to fail and should therefore be dismissed. There is no reason why Ms Christanty should not pay the Minister's costs. The present application 18 The judgment given by the primary judge is to be taken as an interlocutory judgment for the purposes of s 24 of the Federal Court Act: s 24(1D)(b). Leave to appeal is, therefore, required: s 24(1A). 19 An application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made: r 35.13(a) of the Federal Court Rules 2011 (FCR). The application must be accompanied by a number of documents, including a draft notice of appeal that complies with r 36.01(1) and (2): r 35.12(2) FCR. 20 An application for an extension of time to seek leave to appeal must also be accompanied by a number of documents. These include a draft notice of appeal as described above and an affidavit that briefly, but specifically, states the facts on which the applicant relies and why the application for leave to appeal was not filed within time: r 35.14(3) FCR. 21 The applicant did not file an application for leave to appeal within time. On 21 December 2012, she filed an application for an extension of time and leave to appeal. The application was supported by an affidavit made by the applicant. This affidavit is difficult to comprehend. It deals with the grant of the applicant's Newstart Allowance. Essentially, it appears to repeat the applicant's claim that an officer from Centrelink told her that no money would be payable under the AOS by reason of the grant of that benefit. On 22 January 2013, the applicant filed a further affidavit. That affidavit is also difficult to comprehend. Once again, it deals with the grant of the applicant's Newstart Allowance. Neither affidavit advances any reason why an application for leave to appeal was not filed within time. 22 In submissions today, the applicant informed me that she attended the Registry in time to file a notice seeking leave to appeal but was given the wrong form by Registry staff. This may be a possible explanation as to why the application for leave to appeal was not made within time. 23 It is not necessary for me to dwell on that matter because leave to appeal against an interlocutory order will usually be granted only where the applicant is able to show that the order occasioned substantial prejudice to the applicant and there is a reasonable argument that the order should be set aside: Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at [20]; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. These requirements are regarded as cumulative. 24 Furthermore, the circumstances in which leave to appeal will be granted from the exercise of a discretionary power are constrained by the principles in House v The King (1936) 55 CLR 499 at 505. In such cases, it must be shown that the primary judge's exercise of discretion has miscarried, because he or she has acted upon a wrong principle, been guided by extraneous or irrelevant matters, ignored relevant matters or made mistakes of fact. A failure to properly exercise a discretion may be inferred in appropriate cases where the primary judge's decision is, upon the facts, unreasonable or plainly unjust. 25 The draft notice of appeal served by the applicant on the respondent does not provide any assistance as to where it might be said that the primary judge erred in the present case. It contains a ground which refers to a document provided to the applicant under a freedom of information request. This document is annexed to the applicant's first affidavit to which I have referred. The applicant's contention seems to be that because this document does not refer to the AOS, it must be the case that the AOS is not engaged by the grant of the Newstart Allowance or, perhaps, that she could not get her Newstart Allowance if there was in existence a continuing AOS. 26 The primary judge acceded to the application for summary judgment on two bases: first, that no appeal on a question of law had been identified and, secondly, that in light of the provisions of the Social Security Act to which her Honour referred, any argument that the AOS had ceased to have any operative effect could not be sustained. I am unable to see how the primary judge erred in the conclusions to which she came. Indeed, in my respectful view, the primary judge was plainly correct on both bases. Having reached that level of satisfaction, it was within the proper exercise of discretion for the primary judge to accede to the respondent's interlocutory application to summarily dismiss the proceeding. 27 The applicant has put nothing to me today in her oral submissions that dissuades me from that view. The applicant's case appears to be based on nothing more than the contention I have noted above. That contention lacks a proper legal foundation. On the present material before the Court, the AOS has at all times remained in full force and effect and will do so, absent other circumstances, until 26 April 2018. The applicant's appeal from the decision of the Administrative Appeals Tribunal cannot succeed. Therefore, it was appropriate for the primary judge to dismiss it summarily. The applicant's application for leave to appeal and to extend time to do so is, therefore, refused. 28 The respondent seeks an order for costs. In my view, costs should follow the event, and the applicant should pay the respondent's costs. The respondent has applied for an award of costs in a lump sum. The amount sought is $1,700. That amount is supported by an affidavit which has been filed in court by the solicitor appearing for the respondent today. I propose to accede to the application that costs be paid in a lump sum. However, I fix the sum at $1,500. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.