Jamal v Secretary, Department of Social Services

1. The applicant pay the respondent's costs fixed in the sum of $4,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 On 3 April 2018, I heard an application for leave to appeal from orders made by a judge of this Court on 11 August 2017. The applicant appeared as a litigant in person. The respondent, the Secretary of the Department of Social Services, was represented by a solicitor. At the conclusion of the hearing, and after a short adjournment, I made orders dismissing the application with costs, advising the parties that my reasons would be published at a later date. The following are my reasons for that decision and my reasons for making a lump sum costs order as sought by the respondent. 2 The primary judge dismissed an application for an extension of time in which to bring an appeal from a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of the Social Security Appeals Tribunal not to extend the applicant's portability period for receipt of his disability support pension while he was overseas. The applicant's pension was suspended when he reached the six-week limit for portability. The reason he advanced for seeking an extension of the portability period was that he fell and dislocated his shoulder nine days before the six-week period elapsed. 3 While the Tribunal accepted that the applicant's injury was serious, it did not accept that this was the reason why the applicant was unable to return to Australia prior to the expiry of the portability period, which was a necessary precondition to extending the portability period by the terms of s 1218C(1)(a) of the Social Security Act 1991 (Cth). That conclusion was reached by the Tribunal: (1) in part, because the applicant had provided his travel itinerary three weeks before leaving Australia, with a departure date of 30 October 2014, and a return date of almost nine weeks later on 30 December 2014, such that he had never intended to return within the six-week portability period; and (2) in part, because, while the injury was serious, it was not accepted to be serious enough to prevent him from returning to Australia within the nine days remaining before the expiry of the portability period and receiving medical treatment here. 4 The primary judge, at [21], found that it was open to the Tribunal, on the material that was before it, to make findings to the effect that the applicant was not prevented by his injury from returning to Australia within the six-week portability period. However, beyond such an adjudication as to the Tribunal's legal capacity to make findings of that nature, this Court has no jurisdiction, as her Honour observed, to embark upon an assessment of what the correct and preferable decision was on the merits, that being a task for the Tribunal alone. 5 The appeal that the applicant sought to bring was required to be limited to questions of law: s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The primary judge accepted that there was a reasonable explanation for the delay in bringing the application, noting that the grant of the extension was opposed by the respondent, but not upon that basis. However, her Honour refused to grant the extension of time upon the basis that the proposed appeal had little or no prospect of success. Her Honour followed well-established authority in reaching that conclusion, citing Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. 6 The last relevant principle set out in Hunter Valley Developments was that the merits of the substantive appeal should to be taken into account. Her Honour followed the view expressed by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62], upheld by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478, to the effect that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court. 7 The primary judge carefully examined each proposed ground of appeal and concluded that none of them had any reasonable prospects of success in establishing the necessary error of law. Her Honour further found that no question of law was raised as a matter of substance by any of the proposed grounds of appeal. That conclusion is unassailably correct when regard is had to the seven proposed grounds of appeal that were reproduced by her Honour verbatim at [14] and the reasons her Honour gave for finding that no viable question of law had been raised. Those grounds, as reproduced by her Honour, were as follows: 1 - The decision Maker disqualified to review my case and make decisions. 2 - The Tribunal member made an Error of law. 3 - Breached the rules of natural justice and procedural fairness; 4 - Abused his discretion with applicant officially evidence; 5 - The decision maker is not to be biased or seen as biased in that case he totally bias 6 - The Tribunal member was Mislead 7 - Prejudice to the right of defense "the appellant" 8 The discretion to grant leave to appeal in s 24(1A) of the Federal Court of Australia Act 1976 (Cth) is unfettered. However, the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399-400 accepted a line of authority as to the general guidance which this Court should normally accept in exercising such a discretion. That guidance comes down to two tests: (1) first, whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal; and (2) secondly, whether substantial injustice would result if the leave were refused, supposing the impugned decision to be wrong. 9 The two tests are not uncoupled, but are cumulative and bear upon each other. The degree of doubt which is sufficient in one case may be different from that required in another. There will continue to be cases that raise special considerations, and, accordingly, this Court should not regard its hands as tied by the general guidance of the two tests. No special consideration has been suggested as applying to this case, and none is apparent. As such, it is appropriate to apply the ordinary tests. 10 The application for leave to appeal lists the following 18 grounds (verbatim): 1. Her Honour PERRYJ did an errors in law or Questions in law and violation of the law Act 2. Her Honour PERRY J was mislead and made her order dated 11/8/2017, under that misled, [ the case hidden one year. the transcript did not produce as it was included the appellant submission and the appellant affidavit dated 15/4/2016. was disappeared] 3. The appellant field his appeal on 15/4/2016, supported it, by an affidavit showed is he wasn't in Australia from 29/1/2016 to 29/3/2016, and the AAT decision date is 1/2/2016, [the appellant appeal was completely comply with s 44(2A) of AAT Act] and Her Honour made her order with absent affidavit and transcript as that were appellant's evidence . 4. The appellant appeal's comply with Rule 33.12.(2)(b)(e) of the FCR and raised his ground of appeal's in the hearing date through the interpreter as English is second language.and [her honour she very positive and satisfied is the appellant was field his appeal in the time farm as required bv s 44 (2A) of AAT Act and he was Prejudice and her honour consent is AAT target to Mislead fact.and the Case full merits ] 5. Her Honour PERRY J Abused her discretion with appellant officially evidence showed is my case merits and did not emulate of evidence in the case file's 6. Her Honour PERRY J fell into jurisdictional error by way of a constructive failure to exercise her jurisdiction 7. In the present case, there was no identifiable purpose for which the other evidence were intended to be used, and Her Honour's reference to taking those matters into account in weighing the scales was an error on the face of the record 8. Her honour had no statutory or common law jurisdiction to take those matters into account, whether "weighing the scales" or in determining whether the method had proved its case beyond reasonable doubt. 9. Furthermore, in describing "weighing the scales" Her Honour must have been adverting to a balancing exercise, such as the balance of probabilities. A finding beyond reasonable doubt proceeds on a very exercise than weighing or balancing different matters. 10. Her Honour's reliance on that material in "weighing the scales" against the appellant amounted to an error on the face of the record because it mistakenly asserted her ability to take matters into account that were outside her jurisdiction to do so. 11. on 8/12/2015,the appellant asked The Tribunal Member for an adjournment because there was not able to bring his case to the tribunal and explained in his application he requested opportunity to have time to present his case, but The Tribunal Member refused this application and pushed the appellant to choose some reasons to discussed only 12. It is a common Law requirement that the administrators of justice afford the appellant the right to procedural fairness and natural justice. 13. The Common Law states that the concept of procedural fairness is two fold, and encompasses the limbs, namely • That the decision maker must afford a hearing in appropriate circumstances ; and • The decision maker is not to be biased or seen as biased. 14. in Re Minister for immigration and Multicultural Affairs; Ex prate Lam [2003]HCA 6 per Chief Justice Gleeson examined the manner in which cases concerning procedural fairness are approached by the courts and commented as follows: 37] 'Fairness is not an abstract concept. It is essentially practical justice, The concern of the law is to avoid practical injustice 15. in Re Minister for immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598 it was found that if there is a situation where procedural fairness is not afforded the applicant in proceedings that the decision is said to be a decision which is not made in accordance with the law and as such there is not a decision in law or in fact, 16. in the Director of public Persecutions v Gursel Ozakca & Anor[2006] NSWSW1425, the plaintiff sought prerogative relief on the basis of denial of natural justice Rothman J at [13] stated 'A refusal to grant an adjournment can constitute a failure to give a party to the proceedings the opportunity of adequately presenting his case" 17. (please refer to paper delivered by A Mark A Robinson, 'Pactical Justice and Procedural Fairness, Delivered at PAVE Peace Group, Sydney, 23 December 2003, Page 5) 18. What has happened in my view, is that The Tribunal Member has entirely confused the differences to determining whether there was evidence which if accepted, and taken at its highest, could amount to proof of merits ,a question of law, with a different question, namely one of fact, that is, whether he did or did not judge the evidence which was to be reliable and acceptable. And her Honour PERRY J fell on the same mistakes 11 The applicant filed written submissions on 15 January 2018. The respondent filed written submissions on 1 February 2018. The applicant filed further written submissions on 2 March 2018. The applicant also made oral submissions at the hearing on 3 April 2018. 12 The arguments that the applicant advanced orally and in writing did not in substance rise above a disagreement with the conclusions that had been reached by the primary judge and by the Tribunal and, in part, endeavoured to have this Court engage in impermissible merits review. The errors asserted on the part of the primary judge were not shown to be of substance, or to give rise to any appellable issue. The applicant also sought to explain his lack of success as being due to improprieties on the part of several of the decision-makers, but provided no proper basis for making any of those assertions. 13 During the course of the hearing of the application, the applicant also asserted that something "corrupt" had happened and that the primary judge had not really written her reasons for judgment at all, which were said to have been written by someone else who did not like him, swapped for those her Honour had written, and then published. The basis for this submission appeared to be a contention that the primary judge had not referred in her reasons to various matters raised during the course of the hearing before her Honour, as reflected in the transcript of those proceedings. The applicant also seemed to be suggesting that the primary judge was required, in determining his application for an extension of time, to conduct a full hearing of his appeal, including delving into the merits of his case. There was no foundation for any of those assertions. 14 The following specific observations may be made about the prospects of success of the 12 proposed grounds of appeal contained in the applicant's draft notice of appeal dated 15 August 2017 and reproduced at [10] above: