FFL v Commissioner of Victims Rights

Application for Administrative Review

1. This Tribunal's powers in relation to an application for administrative review are governed by s 63 of the ADR Act, which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
2. FFL filed an application for administrative review of the Assessor's decision on 12 November 2021. However, the application did not set out any grounds other than an assertion that no police report was attached and that the name on the report was inaccurate.
3. The matter came before me for directions on 17 December 2021. FFL appeared in person and Ms K Douch, Victims Services, appeared for the respondent. the Tribunal made an anonymisation order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). FFL was ordered to file and serve any further evidence on which he relied by 26 February 2022 and the respondent was ordered to file and serve its bundle of documents under s 58 of the ADR Act by 25 February 2022 and a summary of its legal arguments by 4 March 2022. The matter was listed for hearing on 18 March 2022.
4. At the hearing on 18 March 2022, FFL appeared in person and Mr M Ting, Victims Services, appeared for the respondent.
5. I asked FFL to clarify the grounds upon which he sought a review of the Assessor's decision and he replied that he sought a review because he had been required to pay out about 50% of the amount approved for medical treatment expenses relating to his injuries. I asked FFL whether he had applied for financial assistance for medical expenses from the respondent and he replied that he had not done so.
6. Accordingly, I am satisfied that FFL has further rights under the Act that he has not yet exercised and that those rights do not form part of the application before me.

Applicant's further evidence

1. FFL lodged the following further evidence in support of his application: 1. Letter from Ms A Karraz, Community Social Worker, dated 20 December 2021; 2. Email from Ms J Lumley, Sexual Assault Counsellor, to FFL dated 23 December 2021; 3. Copies of emails exchanged between Mr P Im, Solicitor, Civil Law Division, Legal Aid Commission of NSW and NSW Police between 11 August 2021 and 8 August 2021; 4. Police COPS Event report (number provided) dated 3 November 2021; 5. Statements made by FFL to Police dated 11 February 2021 (with attachments) and 15 February 2021.
2. I have reviewed this further evidence and note that it is relevant to the issue of whether an act of violence occurred, and in the case of the correspondence between the Police and Mr Im, whether Police intended to charge the alleged offender. However, the latter issue is not relevant to the matter before me.

Respondent's submissions

1. On 7 March 2022, the respondent filed written submissions that raised the following issues.

Objection to the Tribunal's jurisdiction

1. The respondent argued that FFL has not satisfied the relevant provisions of the Act and the ADR Act, which are as follows: 1. Section 51(1) of the Act, which provides in effect, that an applicant for a recognition payment who is aggrieved by the decision of a decision maker may apply to the Tribunal for review of a decision made by the Commissioner after an internal review of that decision under s 49 of the Act; 2. Section 55(3) of the ADR Act, which provides in effect, that an applicant may not make an application for review of an Assessor's decision unless they have duly applied for an internal review by the Respondent and the review is taken to have been finalised under s 53(9) of the Act; 3. Section 55(4)(b) of the ADR Act, which provides relevantly, that the Tribunal may deal with an application for the administrative review even though the applicant has not duly applied for an internal review if the Tribunal is satisfied that "it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned"; and 4. Section 55(5) of the ADR Act effectively provides that in determining whether an application to the Tribunal was made within a reasonable time for the purposes of ss (4), the Tribunal is to have regard to (a) the time when the applicant became aware of the making of the decision, and … (c) such other matters as it considers relevant.
2. The respondent also argued that the Tribunal lacked jurisdiction to determine the application because there is no administratively reviewable decision. The respondent asserted that s 51(1) of the ADR Act confers jurisdiction upon the Tribunal to review a decision of a decision-maker with respect to a recognition payment following an internal review under s 49 of the Act and as there was no internal review, FFL did not satisfy the pre-condition to s 51(1).
3. The respondent also argued that while s 51(2) of the ADR Act confers jurisdiction on the Tribunal to review a decision made by the respondent in respect of an application for a recognition payment, this power only arises where the Commissioner for Victims Rights, and not a delegate, determines the application for victims support, and as the decision was made by a delegate, s 51(2) of the ADR Act does not apply.
4. The respondent submitted that s 55(4) of the ADR Act does not apply to the current application because there is no administratively reviewable decision. In support of this assertion, the Respondent sought to rely upon a decision of Deputy President Hennessy in CWS v NSW Department of Education [2017] NSWCATAD 287 at [15] (CWS): While I accept that s 55 of the ADR is not expressly excluded by s 52(4) of the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act), s 55(4) of the ADR Act does not arise for consideration in the context of an application under the PPIP Act. Applications under that legislation are different from applications under legislation where an administrator makes an administratively reviewable decision which is then subject to internal review. Under the PPIP Act, an application for internal review under s 53 of the PPIP Act is a pre-condition to an administrative review by the Tribunal under s 55 of that Act. The Tribunal has no power to deal with the additional conduct in this case because the applicants have not applied for an internal review in respect of that conduct. Section 55(4) does not give the Tribunal jurisdiction to do so.

The current application was made out of time

1. The respondent argued that under s 24 of the Civil and Administrative Rules 2014, unless the Tribunal grants an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), the application for administrative review must be made by the end of the default application period. This is 28 days after the day on which the applicant was notified of the administratively reviewable decision.
2. The respondent stated that if the Tribunal finds that it has no jurisdiction to determine this matter, any application for an extension of time must be refused. However, if it finds that the Assessor's decision is an administratively reviewable decision, the rights of review flows from 21 June 2021 (the date upon which FFL was notified of the decision). This means that the application was required to be filed by 19 July 2021 and that it was filed 116 days late.
3. Section 41(1) of the NCAT Act provides that the Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation Section 42(2) provides that such an application may be made even though the relevant time period has expired.
4. The respondent argued that FFL has not provided any reason for the delay in filing his application and that information will be relevant to the determination of an extension of time under s 41(1) of the NCAT Act.

Category of recognition payment

1. The respondent also argued that FFL is not eligible for a category B recognition payment on the basis that he has not satisfied the criteria of s 35(2) of the Act, which provides: A category B recognition payment is a payment given in respect of an act of violence or act of modern slavery of the following kinds - (a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons, (b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts.
2. The respondent argued that there is no evidence that the sexual assault involved a series of related acts, an offensive weapon or multiple offenders, and it was understood that FFL sought approval of a category B recognition payment on the basis that he suffered serious bodily injury as a direct consequence of the act of violence.
3. The respondent argued that while "serious bodily injury" is not defined in the Act, it is apparent that this involves a higher threshold that actual bodily harm. In support of this argument, it cited case law regarding: 1. The meaning of "actual bodily harm" (BMF v Commissioner of Victims Rights [2020 NSWCATAD 97 at [71]); 2. The threshold for actual bodily harm in respect of psychological injury (Shu Qiang Li v R [2005] NSWCCA 442 at [45]); and 3. The meaning of serious bodily injury (BDJ v Victims Compensation Fund Corporation (No 2) [2014] NSWCATAD 187.
4. The respondent concluded that the Tribunal should find that it has no jurisdiction, but if it finds that it has jurisdiction, the Assessor's decision should be affirmed.

Objection to jurisdiction

1. I note that in CWS, the Deputy President expressly stated that s 55(4) of the ADR Act does not arise for the Tribunal's consideration in the context of an application under the PPIP Act.
2. However, the Act does not exclude the operation of s 55(4) of the ADR Act in relation to an application for administrative review of a decision made under the terms of the Act. In my view, the decision in CWS is not authority for the proposition that a decision of an Assessor, which is an administratively reviewable decision for the purposes of an application for internal review to the respondent, is not an administratively reviewable decision for the purposes of an external review by this Tribunal.
3. I made findings to this effect in the matter of FCB v Commissioner of Victims Rights [2021] NSWCATAD 365, where the respondent relied upon written submissions in almost identical terms to those filed in this matter. As at the date of writing this decision, I am not aware of any determination by a higher authority that my decision in FCB was erroneous in law.
4. Section 55(5)(c) of the ADR Act confers a wide discretion on this Tribunal in determining whether the application for administrative review was made within a reasonable time following the Assessor's decision and it allows the consideration of evidence that the Tribunal considers relevant.
5. In this matter, FFL has not provided any evidence regarding his failure to apply for an internal review by the respondent. However, I note that the medical evidence includes a report from Ms A Karraz, Community Social Worker, dated 20 December 2021. This indicates that FFL continued to be very effected by the sexual assault and lives with symptoms of trauma, rumination, avoiding activities and places, and has difficulty trusting places and people etc.
6. Based on Ms Karraz's report, I am satisfied that FFL continued to suffer psychological symptoms during the period from the date of the Assessor's decision and 20 December 2021, by which time the current application was filed. I am therefore satisfied that the current application was made within a reasonable time of the Assessor's decision.
7. Accordingly, I reject the respondent's objection to jurisdiction.

Late application

1. Based on Ms Karraz's report, I am satisfied that the current application was made within a reasonable time following the Assessor's decision and I extend the time for making it to the date it was made under s 41(1) of the NCAT Act.

Category of recognition payment

1. The respondent approved a recognition payment under category C recognition payment in the sum of $5,000. Section 35(3)(a) of the Act provides that this is the relevant category for a sexual assault other than one referred to in s 35(2)(b) of the Act.
2. Section 35(2) of the Act provides, relevantly, that a category B recognition payment is a payment given in respect of an act of violence or act of modern slavery of the following kinds - (b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts.
3. The police report, the available medical evidence and the application for victims support do not contain any report or other evidence of an act of violence of the kind described in s 35(b)(2) of the Act. During the hearing, in response to a direct question from the Tribunal, FFL stated that the act of violence involved a single sexual assault.
4. Accordingly, I am satisfied that FFL is not eligible for victims support in the nature of a category B recognition payment.

Correct and preferable decision

1. For the reasons above, I am satisfied that the correct and preferable decision is to affirm the decision of the Assessor dated 16 June 2021.

Order 1. The decision of the Assessor dated 16 June 2021 is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2022