Mavris and Commissioner of Taxation (Taxation) [2018] AATA 4130 (31 October 2018)

1. The key issue before the Tribunal concerns the status of the Tribunal's decision, namely, whether the Tribunal had jurisdiction to make the decision that it did in circumstances where the Applicant died before the publication of the decision.

1. The Commissioner argued that, following the death of the Applicant, the Tribunal had no jurisdiction to review the decision in question absent an appropriate person being joined to the proceedings. The Commissioner relied on the case of Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326 (Re Andreatta) which was approved of by Kenny J in V120/00A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 264 (V120/00A).
2. The Commissioner also referred me to s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which states:

Where an application has been made by a person to the Tribunal for review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.

1. The Commissioner also urged me to treat the decision that had been made by the Tribunal on 19 June 2018 as "no decision at all", and to clarify the steps to be taken towards making a decision which has a legal and jurisdictional foundation, for example, by making directions concerning the possible joinder of another party.
2. I disagree with the Commissioner's submissions and approach and have decided the Tribunal had jurisdiction to make the decision for the reasons set out below. In any event, if there is any doubt about the jurisdiction of the Tribunal, the Tribunal's decision is presumed to be valid, until set aside in separate proceedings.
3. I will deal firstly with the authorities and statutory provision relied on by the Commissioner and then briefly refer to some other considerations which have informed my decision.
4. In Re Andreatta, after the hearing of the matter and while the decision of the Tribunal had been reserved, the applicant, Mr Andreatta, died. The decision under review in that case was a decision to issue a Benefit Classification Certificate under the Superannuation Act 1976 (Cth). The Tribunal adopted the position that if the applicant dies prior to the delivery of its decision, then one of two consequences occur. If the statutory entitlement at issue in the proceeding does not devolve upon the applicant's death, then the availability of the entitlement is extinguished and with it the power of the Tribunal to decide whether the entitlement is payable. However, if the statutory entitlement at issue in the proceeding does devolve upon the applicant's death, then the person to whom that entitlement has devolved must apply pursuant to s 30(1A) of the AAT Act to be made to a party to the proceeding. It was decided by the Tribunal in that case, at 327, that "[u]nless and until such an application is made, the Tribunal has no jurisdiction to review the decision."
5. In V120/00A, one of the issues that was addressed by the Federal Court was the effect of an applicant's death on the application for review by the Tribunal where the deceased was the principal claimant for a protection visa under the Migration Act 1958 (Cth). The deceased had lodged an application for review with the Tribunal but died before the application was heard and the decision delivered. The deceased's wife and children were also applicants in the proceedings and had informed the Tribunal that they would be taking responsibility for appearing at the hearing, in the absence of the main applicant. The Court stated at [46] "the [Migration] Act provides the context in which this question must be considered" and proceeded to examine the statutory provisions dealing with applications for visas in some detail. Relevantly, the Court decided as follows at [53] - [55]:

Effect of the deceased's death

[53] What was the effect of the deceased's death on the deceased's entitlement to review by the Tribunal? Whether a statutory entitlement (including an entitlement to merits review of an administrative decision) lapses or devolves on another upon the death of the claimant under the statute depends on the language of the statute under which the entitlement arises: see Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326 at 327. Where the statutory entitlement does not devolve upon another upon the claimant's death, then death extinguishes the entitlement and also the power of a relevant decision-maker with respect to it, including the power of a Tribunal upon review: cf Re Andreatta at 327.

[54] In a number of provisions, the Act emphasises that the right of review conferred by it is personal to the non-citizen who is the subject of the RRT-reviewable decision: see, eg, s 412(2) & s 412(3), s 425(1) and s 430A(2). If, in this case, the deceased had been the sole applicant for review of a decision by the respondent refusing him a protection visa, then, as a matter of statutory construction, his death would have extinguished his review entitlement.

[55] This conclusion is supported by the nature of the right of review and the relevant RRT-reviewable decision. The decision under review was one refusing the deceased a protection visa, and with his death the decision had no further purpose to serve. Put simply, on his death, the deceased could no longer be affected by the decision he sought to have reviewed, nor any review right he had previously invoked. The statutory injunction, in s 414(1) of the Act, that the Tribunal review the decision the subject of a valid application, does not result in a contrary conclusion. There will be no valid application for review if the application has lapsed by reason of an applicant's death.

1. In Re Bates and Secretary, Department of Employment [2016] AATA 250 (Re Bates), Mr Bates had applied for review of a decision made by a delegate of the Secretary of the Department of Employment regarding an advance he claimed under the Fair Entitlements Guarantee Act 2012. Mr Bates died before the matter could be heard by the Tribunal and his son advised that he and his mother would like to continue with the application. The Secretary submitted that certain procedural steps had to be followed.
2. The Tribunal decided in Re Bates (without referring to V120/00A) that principles relating to the survival of causes of action and devolution of rights do not apply in the Tribunal, and that the matter must be decided by reference to s 27(1) of the AAT Act which is concerned with persons who may apply to the Tribunal for review of a decision. The Tribunal also referenced the statutory provisions allowing for the review of the decision in the Fair Entitlements Guarantee Act 2012 and stated at [3] that "although [the relevant provision in Fair Entitlements Guarantee Act 2012] qualifies the operation of s 27(1), ...[the relevant provision] must be read as not excluding a deceased applicant's personal representative (or person entitled to the estate without need to obtain probate or letters of administration) from applying to be joined as a party to the proceeding". In Re Bates, Deputy President Forgie adjourned for further consideration in order to determine the position of Mr Bates's widow.
3. Relevantly, for present purposes, in Re Bates, at [9], Deputy President Forgie explained as follows:

... any right that a person may have to pursue a matter in the Tribunal is a right created by statute. That right is created when, consistently with s 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act), an enactment provides that an application may be made to the Tribunal for review of decisions made under that enactment. The right is a right to apply for review of an administrative decision and is not an "appeal" in the sense in which that word is understood in the courts. A decision on that application is not a judgment but another administrative decision. While the matter remains in the Tribunal, it is concerned with an administrative decision made in the agency and reviewed in the Tribunal. Its essential character does not change.

1. DP Forgie further analysed the issue by examining whether the late Mr Bates had a cause of action in the Tribunal under the relevant Act allowing for the review, as follows, at [26]:

That analysis begins with the AAT Act. Before the Tribunal has power to review an administrative decision, an enactment must provide that an application may be made to it.

1. As noted above, the Tribunal in Re Bates concluded that Mr Bates had a right to apply to the Tribunal for review of the Secretary's decision but the proceedings in the Tribunal are not a cause of action and, accordingly, it did not survive his death according to the principles of devolution. However, the Tribunal also concluded that the fact Mr Bates' application did not survive his death by reason of the principles of devolution did not mean the application is deemed to be dismissed because he died. Further, it was considered that the Tribunal's powers to dismiss an application in ss 42A(2) and 42B(1) of the AAT Act (which set out the Tribunal's power to dismiss an application if the applicant fails to appear at a hearing or if the application is frivolous or has no reasonable prospect of success) do not address the situation of the death of a party. The Tribunal decided the personal representative of the late applicant, or a person in a like position in relation to the late application, is a person whose interests are affected by the decision under review and who may apply to be joined as a party. In other words, the Tribunal effectively decided that the administrative review proceedings should continue.
2. I have considerable difficulties with accepting the Commissioner's submissions in reliance on the authorities referred to above, and prefer the analysis set out in Re Bates which endorses the role of the Tribunal in administrative decision-making for the reasons enumerated below_._ I also do not consider myself bound to apply the Court's decision in V120/00A because the facts and the legal issue raised in the present case are distinguishable from those in V120/00A, especially having regard to the legislative framework for the review by the Tribunal of taxation decisions made by the Commissioner, to which I will come shortly. It was also acknowledged by the Commissioner that there was no directly analogous case to the present case, where the Tribunal had actually made and published the decision, even though the Applicant died after the hearing and before the publication of the Tribunal's decision.
3. First, and as noted above, the Tribunal in this proceeding having satisfied itself that it had jurisdiction to review the Commissioner's objection decision conducted the hearing and later published its decision. That is a key distinguishing feature from what happened in each of Re Andreatta, Re Bates and V120/00A. In doing so, the Tribunal had afforded the Applicant the opportunity to present his case, including to give oral evidence. The Commissioner also presented his viewpoint. Written submissions on certain legal issues arising during the hearing were also allowed to be submitted after the hearing, according to a timetable set by the Tribunal with the consent of the parties. There was nothing further to be done by the parties after they sent their final written submissions and the Tribunal had reserved its decision. Indeed, the Tribunal then did precisely what it was required to do pursuant to the AAT Act, which is make a decision and publish the decision and reasons, having regard, in particular, to ss 2A, 25 and 43 of the AAT Act which set out the Tribunal's objective and the role of the Tribunal and, additionally, the Tribunal's types of decisions available on review.
4. Secondly, the Tribunal's statutory function of review was in accordance with the provisions of the TA Act. The Applicant in the present case had a right to apply to the Tribunal for review of the Commissioner's objection decision: s 14ZZ of the TA Act and s 27(1) of the AAT Act. The Applicant was challenging, pursuant to the statutory framework for taxation reviews and appeals set out in Part IVC of the TA Act, the Commissioner's objection decision regarding certain assessments of luxury car tax and penalties. He was not pursuing a statutory entitlement that was itself the subject of the proceeding, as considered in Re Andreatta, nor one which was personal to him, as was the case in V120/00A.
5. Thirdly, the role of the Tribunal when reviewing a reviewable objection decision is to exercise all the original decision-maker's powers, subject to all of the same legal constraints: s 25 of the AAT Act. That is why it is often said the Tribunal stands in the shoes of the original decision-maker. The Tribunal has several options open to it when conducting a review and having satisfied itself that it has jurisdiction. The usual course is to conduct the review and reach a decision under s 43 of the AAT Act. Its powers under s 43 include the power to affirm the decision and the power to set aside and remit the decision to the original decision-maker for further consideration. When the Tribunal makes its decision, as it did here, the decision takes effect or shall be deemed to have had effect on and from the day on which the decision under review has or had effect: s 43(6) of the AAT Act. Furthermore, s 14ZZL of the TA Act states that when the decision of the Tribunal on the review of a reviewable objection decision becomes final, the Commissioner must, within 60 days, take such action including to amend any assessment concerned, as is necessary to give effect to the decision.
6. The Commissioner's submission that the Tribunal should treat its decision as not having been made because it had no jurisdiction and should now set about clarifying steps it proposes to take towards making a decision with a legal and jurisdictional foundation is contrary to the fact that the Tribunal, in the present case, actually made a decision. It is also an unsatisfactory and undesirable course of action in the attendant circumstances. Nothing is to be gained in the present case if the Tribunal were required to make a decision again (assuming it were not functus), especially as the Applicant has died. It is acknowledged, however, that the Commissioner's approach would be appropriate if the Applicant had died before the hearing. In those circumstances, the Tribunal would want to be satisfied about the proper conduct of the proceeding, in the absence of the Applicant, and would adjourn for further consideration.
7. I have also considered the fact that no provision is specifically made in the AAT Act as to what must happen when a party dies. As set out above, s 30(1A) of the AAT Act requires an application be made to the Tribunal by any other person whose interests are affected to be made a party to the proceeding. This is in a context where s 30(1) of the AAT Act prescribes who are the parties to a proceeding. In the present case, no application was made by any other person and I was also given to understand, subsequent to the Tribunal's decision and the Applicant's death, that no person intended to apply to the Tribunal under s 30(1A) of the AAT Act to be made a party to the proceeding. A significant point about s 30(1A) is that it is a general provision which may apply to a variety of circumstances where another person has an interest in the outcome of a proceeding, and is not limited to the situation where a party dies. Furthermore, the Tribunal cannot insist another person make an application to be joined to the proceeding, nor can the Commissioner of Taxation.
8. Moreover, while the AAT Act is not specific as to what should ensue when a party to legal proceedings dies, the Federal Court Rules 2011 (Cth) are more prescriptive as to the situation in the Federal Court. For example, under Rule 30.24 of the Federal Court Rules 2011 (Cth), it is stated that "if a party dies after the hearing of the proceeding has concluded, the Court may still proceed to give judgment and an order be made for the entry of the judgment". Additionally, where a party dies and an interest or liability of a party passes by transmission, devolution or otherwise to another person, the Court may make orders for the addition of parties and for the further conduct of the proceeding. The differences in approach reflect the different roles of the Court and the Tribunal.
9. Finally, returning to the statutory framework for the review of taxation decisions, it is noted the TA Act expressly provides that Part IVC of the TA Act (which deals with taxation objections, reviews and appeals) applies in relation to objections lodged by certain other persons as if those persons were the deceased person: see s 260-140(6) regarding administered estates and s 260-145(6) regarding unadministered estates, namely, where no person has been appointed to represent the affairs of the deceased. (An example of the latter can be seen in Binetter v Commissioner of Taxation [2016] FCAFC 163). In other words, it contemplates the carriage of Part IVC proceedings by other persons instead of the deceased taxpayer but does not prescribe in any mandatory terms, what must happen, for example, when a taxpayer dies part way through review of an objection decision by the Tribunal.
10. While it is not strictly necessary for me to consider the subsidiary issue of whether the Tribunal is functus as, in my view, the Tribunal has already made a decision and is not proposing to revisit it, the reasoning in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 is instructive. It highlights the primary importance in the Tribunal's role of discharging its statutory function of conducting a proper review and making a decision.
11. Broadly, the facts in Bhardwaj were as follows. Mr Bhardwaj was granted a student visa to study in Australia. The Minister cancelled the visa. On 20 August 1998, Mr Bhardwaj applied to the Immigration Review Tribunal for review of the Minister's decision. On 2 September 1998, Mr Bhardwaj was notified that the tribunal would conduct a review hearing on 15 September 1998. On 13 September 1998, Mr Bhardwaj became ill and on 14 September 1998 his agent sent a fax message to the tribunal informing it of that fact and seeking another hearing date. The facsimile did not come to the attention of the person constituting the tribunal and on 16 September 1998 the tribunal affirmed the Minister's decision to cancel Mr Bhardwaj's visa. On 18 September 1998, Mr Bhardwaj's agent sent a further fax to the tribunal referring to his earlier fax of 14 September 1998. In consequence, the tribunal wrote to Mr Bhardwaj stating that the time for the hearing had been changed. A hearing then took place on 23 September 1998. On 22 October 1998 the tribunal published a decision revoking the cancellation of Mr Bhardwaj's visa.
12. The Minister then commenced proceedings in the Federal Court seeking to set aside the decision of 22 October 1998 on the basis that, by reason of the September decision, the tribunal lacked jurisdiction to make the October decision and the tribunal was functus. The Minister was unsuccessful in the Federal Court and in his appeals to the Full Court and High Court.
13. Gaudron and Gummow JJ (which whom McHugh J relevantly agreed) stated (at [51]-[53], footnotes omitted):

Decisions involving jurisdictional error: the general law

[51] There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all [(51)] . Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

[52] The view that a decision involving jurisdictional error does not prevent the decision-maker from correcting that error by making a later decision has been accepted by the Supreme Court of Canada. Thus, in Chandler v Alberta Association of Architects, Sopinka J, with whom Dickson CJ and Wilson J concurred, said:

"As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances ...

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. [(52)] "

In the same case, his Lordship cited [(53)] with approval a statement by McLachlin J that:

"as a matter of logic and on the authorities ... a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision. [(54)] "

[53] In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act.

[11] To say that a tribunal has considered an application, reached a conclusion, and informed affected parties of its decision, is to make a statement of fact. But the legal consequences of that fact depend upon the Act; and the answer to a question about those consequences may depend upon the purpose for which the question is asked. The answer to the question whether a legally effective decision has been made may depend upon the kind of legal effect that is under consideration, and upon further facts as to what was done, or not done, following the communication of the decision.

1. His Honour continued, quoting with approval (at [12]) a passage from the judgment of Finkelestein J in Leung v Minister for Immigration and Multicultural Affairs [1997] FCA 1313; (1997) 79 FCR 400 at 413, which included the following:

In some circumstances the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside.

1. Gleeson CJ held that, on the facts that presented themselves in Bhardwaj, it was not inconsistent with the scheme of the relevant legislation (the Migration Act 1958 (Cth)) for the tribunal in question, not having conducted a review as required by that Act, to give the respondent in that case the opportunity that the Act required him to appear, give evidence and present arguments.
2. Unlike the situation in Bhardwaj, the Applicant in this case was given the opportunity to present his case and the Tribunal did conduct the review. As the Tribunal has published its decision and the Applicant has died, it would be pointless to treat the Tribunal's decision as no decision at all and to make directions about the further conduct of this proceeding, especially as no one has applied to be joined to the proceeding.

1. The Tribunal had jurisdiction to make the decision in the matter of Re Mavris and Commissioner of Taxation [2018] AATA 1825, even though the Applicant had died and no other party had applied to join the proceeding.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Ms G Lazanas, Senior Member

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