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

REASONS FOR JUDGMENT 1 On 31 August 2011, the Administrative Appeals Tribunal affirmed an earlier decision by the Social Security Appeals Tribunal that Mr Khan was entitled to a carer payment and a carer allowance from 16 July 2010: Khan v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 608. Mr Khan had contended before the Tribunal that he was entitled to those payments from December 2008. An appeal to this Court from a decision of the Tribunal lies under s 44 of the Administrative Appeals Tribunal Act 1974 (Cth), but only in respect of questions of law. In the form which Mr Khan's initial proceedings took, no question of law appeared therein. On 3 July 2012, by consent, I ordered Mr Khan to file and serve an amended notice of appeal which identified a question or questions of law and to do so by 31 July 2012. Before that date, Mr Khan did indeed file an amended notice of appeal. It was not disputed before me this morning, however, that that amended notice of appeal did not articulate a question or questions of law. 2 On 27 August 2012, the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs filed an application seeking to dismiss Mr Khan's proceedings on the basis that they were incompetent. In the submissions made in support of that application, reliance was placed upon what Gummow J had said in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 where his Honour said: The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject of the appeal itself. 3 Subsequent to that decision, there have been a number of decisions in this Court which have affirmed that the articulation in the notice of appeal of a question of law is not merely a procedural nicety but, in fact, a jurisdictional requirement: see the Full Court's decision in Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; [2003] FCAFC 232 at [11] per Branson and Stone JJ and, perhaps pertinently to this case, the decision of Edmonds J in Khan v Secretary, Department of Family Housing Community Services & Indigenous Affairs [2010] FCA 420 at [10]. 4 It follows that, at least in form, the proceedings are incompetent and, but for what I am about to say, should be dismissed on that basis. 5 During the course of argument this morning, I sought to have Mr Khan identify a question of law which he said arose from the decision of the Tribunal. Ultimately, the following two questions were articulated: 1. Did the Tribunal apply the proper legal test to the facts? 2. Did the Tribunal fail to apply the real facts? Another way this was put was to ask whether the Tribunal had properly taken the facts into account. 6 I do not think that the first question would provide, even if I were minded to grant Mr Khan a further indulgence to amend his notice of appeal again, a sufficient question for present purposes. It is phrased at such a level of generality and abstraction that it provides no information about what the question would or might be. 7 The second question and its related articulation are revealed, in my opinion, to be essentially challenges to the approach of the Tribunal to the facts and I do not think they would be permissible subjects of a grant of leave to amend the notice of appeal. 8 I have considered whether Mr Khan should be given a further indulgence on the basis of the basic nature of his complaint. Without dwelling on it in excessive detail, the complaint is that the various administrative decision makers below have treated his application for a carer allowance and carer payment as having been made on 16 July 2010, whereas, as a matter of fact, they were made at an earlier time. The Tribunal analysed the somewhat complicated operation of the Social Security (Administration) Act 1999 (Cth) and, in particular, s 13 (which governs this matter) in its reasons. 9 I do not see anything in the analysis of the Tribunal which gives me pause to think that yet another attempt at formulation of a case by Mr Khan might be a fruitful endeavour. Thus, even if I were minded to give Mr Khan a further indulgence yet again to articulate an amended - or further amended - notice of appeal, for the reasons just stated I do not think that would be a useful endeavour. 10 During the course of the application, Mr Khan applied to me to adjourn the proceedings. That application occurred during a point in the argument in which I sought to have Mr Khan articulate the questions of law which he wished to have ventilated. He indicated to me that he needed to engage a lawyer and, in that regard, one can no doubt be sympathetic. Navigating one's way through the social security legislation is not easy for anybody. 11 I refused the adjournment application for a number of reasons. First, when these proceedings were initially commenced, Mr Khan sought a grant of Legal Aid which was declined and then declined on review. During the entire Legal Aid process, the proceedings were continually adjourned. After it become clear that a grant of Legal Aid would not be forthcoming, it was obvious to Mr Khan that he was in an unrepresented position. The proceedings have been around for a substantial period of time and there was no doubt that the carefully prepared submissions of the Secretary fully articulated the point which was going to be put against Mr Khan today. I do not think that he has been deprived of an opportunity properly to put his case and in that regard, I note that this is not the first time Mr Khan has been confronted with an argument based upon the jurisdictional requirements flowing from s 44 of the Administrative Appeals Tribunal Act. It was for those reasons that I thought the interests of justice favoured a refusal of the adjournment. 12 In those circumstances, I conclude that there is no doubt that the current amended notice of appeal is incompetent and should be dismissed. Although the matter does not directly arise because no formal application was made to me, I do not think there would be any utility in allowing any further attempts to put the amended notice of appeal in order. Accordingly, the orders of the Court will be that: 1. The appeal be dismissed as incompetent. 2. The applicant pay the respondent's costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.