Peric v Secretary, Department of Education, Employment and Workplace Relations

REASONS FOR JUDGMENT 1 The applicant, Ms Peric, applies for an extension of time within which to appeal from a judgment of a single judge of the Court. 2 On 14 September 2011, Gray J refused an application by Ms Peric for an extension of time within which to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal ("the AAT"); see Peric v Secretary, Department of Education, Employment and Workplace Relations [2011] FCA 1128. The extension of time required was less than two months. The respondent did not resist the application for an extension on any basis other than it would be futile to grant an extension because the appeal from the decision of the AAT was bound to fail. 3 Justice Gray carefully considered the decision of the AAT to determine whether the appeal sought to be ventilated by Ms Peric was bound to fail. His Honour considered that any such appeal would not succeed for failure to raise a proper question of law. 4 From his Honour's judgment the following points may be distilled: Ms Peric sought an exemption from the "participation requirements" which concern attempting to find and engage in work for a limited number of hours whilst in receipt of a parenting payment and carer allowance; unsuccessful merits reviews of the decision to refuse Ms Peric an exemption from the "participation requirements" occurred before an Authorised Review Officer and the Social Security Appeals Tribunal; the AAT was not satisfied that the care needs of Ms Peric's children were such that she would be prevented from undertaking 15 hours of part-time work per week or alternative activities acceptable to Centrelink; and Ms Peric has been unable to formulate a question of law which might be relevant to her proposed appeal from the AAT's decision. Effectively, her complaint is with the merits of the AAT's decision. 5 Justice Gray was unable to discern any legal error in the reasoning of the AAT. He specifically noted that no denial of procedural fairness had occurred. At [12], his Honour said: The Tribunal appears to have gone to extraordinary lengths to assist the applicant to present her case to it and ensure, so far as it could, that it had all of the correct documents before it. 6 At [13] his Honour said: In the circumstances I can see no possibility that the applicant could formulate a question of law that would give her an entitlement to appeal from the Tribunal's decision to this Court. She has requested that I grant her a further adjournment in order that she can try to obtain legal advice to formulate such a question. Having already adjourned the case once and arranged for legal advice to be given to the applicant, which she does not appear to accept, I am reluctant to accede to any application for a further adjournment. 7 The proposed single ground of appeal sought to be raised by the draft notice of appeal from his Honour's judgment is as follows: Denial of natural justice in not allowing the applicant more time to obtain legal assistance to draft and file her original notice of appeal. 8 There is no utility in permitting that ground to be raised on appeal as it is bound to fail. Justice Gray was extremely generous to the applicant in affording her every reasonable opportunity to draft and file a notice of appeal which raised an arguable alleged error of law. 9 As referred to at [10] of his Honour's reasons, this included the granting of a pro bono referral for counsel's advice and the drawing of any necessary documents. Pro bono counsel advised that Ms Peric had no case capable of being successfully argued on appeal from the AAT. At the hearing on 14 September 2011, Gray J offered Ms Peric a further opportunity to formulate a question of law. There is no escape from the conclusion that Ms Peric has no available legal error to ground a proper appeal from the AAT. This Court has no jurisdiction to engage in a merits review of a decision of the AAT; see Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232. 10 When the application came on for hearing on 24 October 2011, Mr Tringas (a solicitor) appeared for Ms Peric. Mr Tringas submitted that there were arguable errors of law in the AAT's decision. The Court ordered that Mr Tringas file and serve a document identifying any such errors of law. The document filed in response was not the sort of document the Court expected to be filed. It purported to rely on the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The notice of appeal filed by Ms Peric sought to invoke s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). What was sought before Gray J was an extension of time within which to bring an appeal under s 44 of the AAT Act and not a proceeding under the ADJR Act. Ms Peric sought to rely on O 53 r 2 of the then rules of Court, that provision concerned the form of an appeal under s 44 of the AAT Act. 11 Despite the problems identified in the document prepared by Mr Tringas, it raises matters which Mr Tringas contends to be errors of law. The matters in that category are: (a) an alleged failure to take into account a medical report for Ms Peric's daughter, Candice, dated 14 April 2011; (b) an alleged failure to take into account the care needs of Ms Peric's three disabled children as disclosed in medical reports referred to at [15] of the AAT's reasons for decision; (c) an alleged failure to take into account the care needs of Ms Peric's sons, Jonathan and Jordan, as disclosed in medical reports referred to at [24] of the AAT's reasons for decision; (d) reliance on submissions of the respondent concerning the evidentiary value of the medical reports at (c) above; (e) following "Centrelink policy" in determining relevance rather than considering the individual circumstances of Ms Peric; and (f) based on the assessment of the disabilities of Ms Peric's "three children" on inaccurate records at [11] of the AAT's reasons for decision. 12 The Court will consider these alleged errors of law in reverse order to determine whether they truly raise questions of law or whether they seek to cavil with aspects of the merits of the AAT's decision of 12 May 2011. 13 At [11] of the AAT's decision, it said: Centrelink records show that one of Miss Peric's sons suffers from developmental delay of moderate severity. Another suffers from spina bifida and a deformity of his legs. Her younger daughter suffers from intellectual disability of moderate severity. The three children attend mainstream schools. Their doctor's reports indicate that the children are able to attend to their own personal care and hygiene needs, dress themselves and remain at school for a normal school day without parental care. The accuracy or otherwise of those records was a matter for the AAT to determine as a matter of fact. There is no evidence before the Court that the accuracy of those records was contested before the AAT. The critical aspect of the quoted paragraph above was that the children did not require parental care whilst at school. There was a question of fact to determine. The alleged error of law at (f) above is not an error of law but an attempt to question the merits of an aspect of the AAT's decision. 14 The next alleged error of law is that the AAT followed Centrelink policy and did not consider the merits of Ms Peric's circumstances. It is trite law that an administrative tribunal is entitled to take into account government policy on a particular topic unless there are good reasons not to do so; see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. At [18] of the AAT's reasons, it made it clear that it did not consider itself bound by the policy. However, critically at [19] it said, "Miss Peric did not claim to meet any of the other possible criteria for exemption". To the extent that the proposed question of law at (e) may be considered to be an arguable question of law (which is a matter of grave doubt) it is one completely devoid of merit. 15 A complaint (as made at (d)) that the AAT relied on submissions does not raise an error of law. It is not an error of law to take into account or be persuaded by submissions. The evidentiary value of the relevant reports was a matter for the AAT. 16 Alleged error of law (c) refers to medical reports in respect of which Ms Peric was invited to make further submissions but failed to do so. The AAT cannot validly be criticised for not taking into account reports which were not the subject of submission by the person seeking to rely on them. That was a matter going to the merits of the AAT's decision and does not reveal any error of law. 17 Alleged error of law (b) asserts that the AAT failed to take into account the care needs of Ms Peric's children as disclosed in medical reports. Those medical reports of Dr R Megally were taken into account by the AAT. They concerned the care needs of the children. This alleged error of law is not an error of law but a misconceived attempt to cavil with the merits of the AAT's decision. 18 Alleged error of law (a) concerns a medical report for Ms Peric's daughter Candice dated 14 April 2011. The AAT's decision does not refer to any such report. To ground a proper error of law Ms Peric must demonstrate that the report was so central to the determination of the matter before the AAT that it was bound to take the report into account. There is no obligation on an administrative tribunal to refer to every piece of evidence before it in its reasons for decision. In the absence of any persuasive submission demonstrating why the AAT would have been bound to take the 14 April 2011 report into account and a demonstration of how that report may have affected its decision, the Court considers that no arguable error of law on this ground can be established. 19 For the foregoing reasons, I dismiss the application for an extension of time within which to appeal from the judgment of Gray J. His Honour's decision is not attended with any doubt, let alone sufficient doubt, to warrant it being reconsidered. No injustice, let alone substantial injustice, arises from the refusal of leave; see Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397. There is no point in extending time to appeal his Honour's judgment as no natural justice point can be established. There is no point, in any event, in allowing the alleged errors of law to be ventilated before a Full Court. If Ms Peric can frame other points of law or improve on the framing of the alleged errors of law raised by Mr Tringas it would be open to her to commence a fresh proceeding under s 44 of the AAT Act and seek an extension of time for it to be filed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.