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

Introduction 1 This proceeding is an appeal by Mr Charles Pham from a decision of the Administrative Appeals Tribunal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). It relates to a decision by an employee of Centrelink - as a delegate of the Secretary, Department of Education, Employment and Workplace Relations ("the Secretary") - to apply a penalty to Mr Pham's Newstart Allowance because he had failed to attend an appointment with an employment services provider. The proceeding is unusual because Mr Pham appeals to this Court from a decision made in his favour, rather than against him.

Background 2 Mr Pham is a recipient of Newstart Allowance from Centrelink. On 12 April 2010 he failed to attend an appointment scheduled with his employment services provider. An employee of Centrelink delegated by the Secretary ("Centrelink") determined that his non attendance at the appointment constituted a "no show no pay" failure under s 42C of the Social Security (Administration) Act 1999 (Cth) ("the SSA Act") as he had no reasonable excuse for failing to attend. On 11 May 2010 Centrelink made a decision to apply a penalty of $46.28 by way of deduction from Mr Pham's Newstart Allowance for the "no show no pay" failure. 3 Mr Pham sought a review of the decision by a Review Officer of Centrelink, contending amongst other things that he had a reasonable excuse for his failure to attend the appointment. On 28 July 2010, the Review Officer affirmed the decision. Mr Pham then sought review of the decision in the Social Security Appeals Tribunal ("SSAT"). On 16 September 2010 the SSAT affirmed the decision. It concluded that he was required to attend the appointment and that he did not have a reasonable excuse for not doing so. 4 On 15 October 2010, Mr Pham filed an application for review of the SSAT decision in the Administrative Appeals Tribunal ("Tribunal"). In his application he described the decision as follows, without alteration: CONFIRM CENTRELINK DECISION TO DEPRIVE APPLICANT OF PAYMENTS + BASIC HUMAN RIGHTS 5 In an earlier unrelated application brought in the Tribunal by Mr Pham against the Secretary, the Tribunal dismissed the proceeding on 19 January 2009 on the basis that it was frivolous and vexatious. The Tribunal directed that Mr Pham "must not without leave of the Tribunal, make any subsequent application of a kind arising under the Social Security Act 1991 or the Social Security (Administration) Act 1999" (see Re Pham v Secretary Department of Education, Employment, and Workplace Relations [2009] AATA 31 at [72] to [73]). As a result Mr Pham required leave before he could bring the proceeding the subject of this appeal. 6 After the application to the Tribunal was filed Centrelink conducted a review of its original decision to apply a "no show no pay" failure. Pursuant to s 126 of the SSA Act it set aside the original decision and substituted it with a decision that Mr Pham did not commit a "no show no pay" failure on 12 April 2010. 7 On 23 March 2011 Centrelink wrote to Mr Pham informing him that Centrelink had reversed its decision and would reimburse him $46.28 the following day. The letter also informed him that the varied decision in his favour would be treated as the decision affirmed by the SSAT pursuant to s 180 of the SSA Act. Centrelink advised that the varied decision became the subject of Mr Pham's application to the Tribunal, and that it was open to Mr Pham to withdraw his application for review to the Tribunal pursuant to s 180(3) of the SSA Act given the variation to the original decision. 8 On the same date Centrelink also wrote to the District Registrar of the Tribunal advising of the revocation of the original decision and the substitution of the varied decision. The letter indicated Centrelink's intention to request dismissal of Mr Pham's application in the event that he did not withdraw it himself. 9 Mr Pham did not withdraw his application to the Tribunal. 10 On 20 April 2011 the application came before the Tribunal at a directions hearing requested by the Secretary to consider dismissal of the application as frivolous. Mr Pham appeared by telephone. The Tribunal granted leave to Mr Pham to commence his application thereby meeting the requirement of the orders of 19 January 2009. The Tribunal then affirmed the SSAT decision that Mr Pham did not commit a "no show no pay" failure. 11 At this point the decision which had been the subject of Mr Pham's applications to the authorised Review Officer, the SSAT and the AAT had been set aside, and there had been a positive determination that he did not commit a "no show no pay" failure. The penalty had also been refunded. 12 However, on 18 May 2011 Mr Pham filed a Notice of Appeal, later amending the Notice, appealing to this Court against the decision of the Tribunal. As Mr Pham appeals against a decision by the Tribunal which is favourable to him in relation to the administrative decision that he had committed a "no show no pay" failure, it is difficult to see what Mr Pham seeks from these proceedings. 13 For the reasons that I set out below I have determined to dismiss the appeal and order Mr Pham to pay the Secretary's costs.

jurisdiction 14 Although the issue was not argued before me, there is a real question as to whether the Court has jurisdiction to entertain this appeal. The Court's authority to adjudicate derives from ss 75 and 76 of the Constitution and applies only to "matters". A "matter" is the justiciable controversy between the parties to it, comprised of the substratum of facts and claims representing or amounting to the dispute or controversy between them. It is not just the cause of action pleaded, but the whole controversy which it is the function of this Court to quell. 15 In this proceeding, it is difficult to see what controversy remains between the parties once the Secretary varied her decision and found that Mr Pham had not committed a "no show no pay" failure. The constitutional purpose of the Court in exercising the judicial power of the Constitution is to quell controversies, not to answer hypothetical questions or give advisory opinions: In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-267. 16 However, Mr Pham strongly argues that he has been wronged by the Secretary, that there is a controversy, and that the Tribunal erred in law. The Secretary did not contend that the Court had no jurisdiction to hear the proceeding. As I have reached the view that in any event the appeal lacks merit, in the absence of any submissions on the point I do not resolve the question as to jurisdiction as the appeal fails whichever course is followed.

nature of appeal 17 An appeal to this Court from a decision of the AAT is confined to "a question of law": s 44(1) of the AAT Act. 18 It is established that the existence of the question of law: … is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it. Brown v Repatriations Commission (1985) 7 FCR 302 at 304 per Bowen, Fisher and Lockhart JJ. 19 In Comcare v Etheridge (2006) 149 FCR 522 ("Etheridge") at 527 to 528 the Full Court per Spender, Branson and Nicholson JJ considered the meaning and limits of a "question of law" under s 44(1) and made the following observations: … an appeal "on a question of law" is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53, r 3(2)(b). The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. … A broad inquiry as to the construction and operation of statutory provisions is not a question of law within the meaning of s 44(1) of the AAT Act. Moreover, by inviting the Court to engage in such a broad and hypothetical inquiry the purported question of law extends beyond any controversy between the parties. It is for this reason incapable of constituting a "matter" and thus beyond the competence of the Court which has jurisdiction only in respect of matters (ss 75 to 77 of the Constitution of the Commonwealth). 20 Rule 33.12 of the Federal Court Rules 2011 sets out the procedural requirements in relation to appeals under s 44 and provides: (1) A person who wants to appeal to the Court under the AAT Act must file a notice of appeal, in accordance with Form 75. (2) The notice of appeal must state: (a) the part of the decision the applicant appeals from or contends should be varied; and (b) the precise question or questions of law to be raised on the appeal; and (c) any findings of fact that the Court is asked to make; and (d) the relief sought instead of the decision appealed from, or the variation of the decision that is sought; and (e) briefly but specifically, the grounds relied on in support of the relief or variation sought. (Emphasis added) 21 The Court requires strict compliance with r 33.12(2)(b) which requires the precise question or questions of law be raised in the Notice of Appeal: Lambe v Director-General of Social Services [1981] 57 FLR 262 at 264. As Stone and Branson JJ observed in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ("Birdseye") at [18] in reference to the predecessor provision to rule 33.12: In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. 22 The Court's task in dealing with an appeal under the AAT Act is restricted to a determination of such questions of law as are before me. The Court has no jurisdiction to simply cure any administrative injustice or error by the Tribunal or conduct a review of the merits of its findings: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35 per Brennan J.

The Notice of Appeal 23 Mr Pham's Amended Notice of Appeal states the following as the questions of law for determination in these proceedings. These are set out without alteration except that I have numbered them for ease of reference: (1) The Applicant had been denied Procedural Fairness by the Deputy President Administrative Appeals Tribunal, JW Constance: (a) The Deputy President breached the hearing rule by denying the Applicant the opportunity to present his case in the proper manner in person at the Tribunal; failing to hear on Writ of Mandamus; and failing to provide legislation or reason for decision; (b) The Deputy President breached the bias rule by denying the Applicant the opportunity to summons witnesses for his case; No consent was given to the Deputy President to hear the case; No consent was given to the Deputy President to grant leave for any matters; (c) The Deputy President breached the No Evidence rule by failing to consider the decision of the Social Security Appeals Tribunal; (2) The Question of Law is whether under section 180 of the Social Security (Administration) Act 1999, a belated varied decision from a lower decision-maker, Centrelink, can be treated as the decision affirmed by the SSAT, an Appellate Tribunal, after all their deliberations and considerations; (3) The Question of law is whether under section 180 (3), any other person than the Applicant may withdraw an application; (4) The Question of Law is whether under section 126, a decision can be altered without the consent and knowledge of the Secretary, DEEWR. 24 Under the heading marked 'Grounds of Appeal' Mr Pham lists the following: Denied Procedural Fairness, Unlawful racial discrimination, Conspiracy to pervert justice. 25 Mr Pham also provided written submissions in reply. Curiously, these submissions were in large part a verbatim replication of sections of the Secretary's written submissions. The submissions even repeated the contention that the present proceeding is an abuse of process. The sections that appeared to be in Mr Pham's own words provide no meaningful elaboration or explanation of the purported questions of law. The submissions relevantly provide as follows: APPLICANT'S CLAIMS: Allegation of denial of Procedural Fairness 22. Violation of Australian Constitution: on the Separation of Powers of the Executive and Judiciary; the aforementioned sections cannot be valid if they violate the Constitution; 23. Perverting the Independence of the Judiciary, namely the Social Security Tribunal; undermining the decision process of SSAT: 24. Reverse Racism against Caucasians under the Racial Discrimination Act 1975 (Cth); by failing to fully prosecute the Applicant under the Act; 25. Inciting Racial hatred against minorities for perceived favouritism; by failing to fully prosecute the Applicant under the Act; 26. Violation of International Conventions ICERD and ICCPR; articles relating to access to justice and legal systems; defending against defamation; Alleged unlawful racial discrimination and conspiracy to pervert justice 27. Failure to apply the test of "reasonableness" in the Social Security Act in continuous breaches in order to harass and intimidate the Applicant; ABUSE OF PROCESS 28. The Applicant further submits that it would be open to the Court to find that the present proceeding is an abuse of process. In Rogers v The Queen (1994) 181 CLR 251, Mason C.J. identified abuse of process as having two aspects, namely: "… first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute. ... SUMMARY 34. The Applicant therefore submits that Respondent's Outline of submission fails to challenge any of the Applicant's Questions of Law; 35. And that the AAT decision should be set aside, because; a. the sections of legislation relied upon, violated the Australian Constitution; b. Unlawfully discriminatory, in violation of the RDA; c. An abuse of process in "vexation, oppression and unfairness" of the Applicant and "bring(ing) the administration of justice into disrepute. 26 During the hearing I invited Mr Pham to elucidate how he put the questions of law upon which he brought the appeal but the questions became no clearer to me. 27 In his written submissions Mr Pham sought the following orders, without alteration: The Applicant seeks the following orders: a. Decision by the AAT to be set aside b. Prerogative Relief: Writ of Mandamus to be issued against: I. Administrative Appeal Tribunal II. Social Security Tribunal III. Secretary, DEEWR For breach of the Australian Constitution and the Racial Discrimination Act (Cth) 1972, and failing to do what the legislation compels them to do, which was to apply the test of "reasonableness"; c. Claim for punitive costs to be sent back to AAT; d. The Respondent to pay the costs of the Applicant associated with the Appeal

The purported questions of law 28 Another jurisdictional issue in the proceeding is that purported questions of law 3 and 4 in the Amended Notice of Appeal seek the answer to hypothetical questions. Such questions extend beyond any controversy between the parties, and as a result there is no "matter" founding the Court's jurisdiction: see Etheridge at 527-528. They are outside jurisdiction. Further, each of the purported questions of law 2, 3 and 4 amount to a broad inquiry as to the construction and operation of the provisions of the SSA Act referred to, and do not constitute questions of law within s 44(1) of the AAT Act. I will deal first with these questions. 29 The purported questions of law 1(a), (b) and (c), which all relate to a lack of procedural fairness, are also not questions of law within s 44(1). Even if able to be recast so as to be proper questions of law, the questions have no merit. However, these questions do at least appear to raise a controversy as to the manner in which the Tribunal determined the case before it. I shall deal with the purported questions individually.

Purported question of law 2 in the Amended Notice of Appeal 30 The purported question of law 2 asks whether under s 180 of the SSA Act a decision varied by Centrelink can be treated as the decision affirmed by the SSAT. Section 180(1) expressly provides that where a decision is varied by an officer of Centrelink after an application has been made to the AAT to review the decision, the varied decision is to be treated as having been affirmed by the SSAT. No submission was advanced by Mr Pham as to why this clear meaning did not apply. 31 I consider that the question does no more than seek that the Court embark on an inquiry as to the construction and operation of the section. No submission was advanced as to how the construction adopted by the Tribunal was wrong. It is not a question of law within s 44(1). 32 However, even if it is capable of being recast as a proper question of law it is hopeless because the provisions of the legislation are abundantly clear and the Tribunal made no error of law. 33 Subsection 180(1) of the SSA Act relevantly provides: 180 Variation of decision before AAT review completed (1) If an officer varies a decision after an application has been made to the AAT for review of that decision but before the determination of the application, the application is to be treated as if: (a) the decision as varied had been affirmed by the SSAT; and (b) the application were an application for review of the decision as varied. 34 Section 23 of the Social Security Act 1991 provides the definition of "officer" for the purposes of the SSA Act. It relevantly provides: officer means a person performing duties, or exercising powers or functions, under or in relation to the social security law ....

Purported question of law 3 in the Amended Notice of Appeal 35 The purported question of law 3 asks whether under subs 180(3) of the SSA Act any person other than the applicant may withdraw an application. Again, there is no real question as to the operation of the section. Subsection 180(3) of the SSA Act provides: (3) If: (a) a person applies to the AAT for review of a decision; and (b) before determination of the application, an officer varies the decision or sets the decision aside and substitutes a new decision; the applicant may, instead of proceeding with the application under subsection (1) or (2), withdraw the application. It plainly does not provide for any person other than the applicant to withdraw an application to the Tribunal. Mr Pham did not advance any submission to the contrary. 36 The purported question of law does no more than seek that the Court embark on an inquiry as to the construction and operation of the section. It is not a question of law within s 44(1). 37 Further, there is no link between the purported question of law and the circumstances of the case such that the question is proper. Because there is no link, it is no more than a hypothetical question insufficiently related to the facts of the case or to any controversy between the parties to amount to a "matter". This is so because neither the applicant nor any other person withdrew the subject application. Rather than being withdrawn, the application to the AAT was determined by the Tribunal. The purported question is outside the Court's jurisdiction.

Purported question of law 3 in the Amended Notice of Appeal 38 The purported question of law 3 asks whether under s 126 of the SSA Act a decision may be altered without the consent or knowledge of the Secretary. However, it is impossible for organisations as large as the Department of Education, Employment and Workplace Relations or Centrelink to operate on the basis that the Secretary had knowledge of and consents to every decision taken in relation to persons receiving, amongst other things, Newstart Allowance. The Act is clear that the Secretary may act through departmental employees and others to whom she delegates her powers. Whether the Secretary had direct knowledge or gave direct consent to the variation to the original decision regarding the "no show no pay" failure is not to the point. 39 Again no real question of law arises and the purported question seeks that the Court inquire into the construction and operation of the section. It is not a proper question of law under s 44(1). However, even if it could be recast as a proper question of law the section is clear and the Tribunal made no error of law. 40 Section 126 of the SAA Act relevantly provides: Review of decisions by Secretary (1) The Secretary may review: (a) subject to subsection (2), a decision of an officer under the social security law; … if the Secretary is satisfied that there is sufficient reason to review the decision. (2) The Secretary may review a decision: (a) whether or not any person has applied for review of the decision; and (b) even though an application has been made to the Social Security Appeals Tribunal or the Administrative Appeals Tribunal for review of the decision. (3) The Secretary may: (a) affirm a decision; or (b) vary a decision; or (c) set a decision aside and substitute a new decision. (4) If: (a) the Secretary sets a decision aside under subsection (3); and (b) the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made; the Secretary may, if satisfied that it is reasonable to do so, determine that the event is taken to have occurred for the purposes of the social security law. 41 The appeal book filed by the parties contains a letter from an officer of Centrelink to Mr Pham dated 23 March 2011 which makes plain that it was a departmental employee that set aside the original decision and substituted the varied decision. That letter relevantly states: The decision affirmed by the Social Security Appeal Tribunal on 16 September 2010 to apply a No Show No Show failure to your Newstart Allowance, in respect to a failure to attend an interview with the employment service provider on 12 April 2010, has been reviewed pursuant to section 126 of the Social Security (Administration) Act. As a result, the department has set aside the decision and substituted with a decision that you did not commit a No Show No Pay failure on 12 April 2010. The department's decision means that the failure 12 April 2010 has been revoked and an arrears payment of $46.28 has been paid to you account 24 March 2011. (Emphasis added) 42 Section 234 of the SAA Act. Section 234 relevantly provides: Delegation (2) Subject to subsection (3), the Secretary may, in writing, delegate to the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997) all or any of the powers of the Secretary under the social security law. 43 The question that Mr Pham asks in this appeal is whether s 126 allows a varied decision to be made without the direct knowledge and consent of the Secretary. It plainly does. When the Secretary's power under s 126 is delegated to an employee of Centrelink the delegate exercises the Secretary's power and does not require the direct knowledge or consent of the Secretary to make a decision. 44 I note that, although it is likely to be the case that the Secretary's powers to vary the original decision were delegated to the relevant employee, there is no evidence before me as to whether the Secretary had in fact done so. This is unsurprising as it was not a ground of Mr Pham's application to the Tribunal that the Secretary had not delegated her powers to the relevant employee. 45 If it was necessary to deal with whether power was in fact delegated by the Secretary it would be necessary to admit fresh evidence. Mr Pham did not argue that there was no delegation, and any application by the Secretary to introduce evidence of any actual delegation was therefore unnecessary. Of course, it is only in unusual circumstances that the Court will admit fresh evidence in an appeal under s 44(1): Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 37 FLR 457 ("Fruit Marketing") at 459 per Franki J with whom Brennan J agreed; Servos v Repatriation Commission (1995) 56 FCR 377 ("Servos"). However, for the sake of completeness, before delivering judgement I made a request of the parties to supply a copy of any relevant instrument of delegation. Mr Pham objected to the introduction of such evidence in colourful terms. As the delegation was of little significance the request was withdrawn.

Purported questions of law 1 (a), (b) and (c) in the Amended Notice of Appeal 46 Although not properly articulated by Mr Pham, it is unarguable that a failure by the Tribunal to provide procedural fairness as specified in question 1(a), or bias by the Tribunal in the orders made for the subpoena of witnesses for the hearing as specified in question 1(b), may constitute an error of law. 47 As the Full Court held in Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410 at [14] per Dowsett, Edmonds and Gordon JJ, citing Allsop J in Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at [55]: a question of law "directing the Courts attention to the manner in which the Tribunal failed to discharge its obligations according to law" is a "legitimate subject of an appeal" under s 44(1) of the AAT Act. 48 If there is no evidence which is capable as a matter of law of sustaining a finding made by an administrative tribunal, which is the thrust of purported question of law 1(c), it may also constitute an error of law: Fisse v Secretary, Department of the Treasury (2008) 172 FCR 513 at [46] to [50] per Buchanan J; Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 at [34] per Sundberg, Emmett and Finkelstein JJ. Accordingly, a finding in this matter which was not capable of being supported by the evidence may constitute an error of law. 49 There are obvious deficiencies in purported questions of law 1(a), (b) and (c), and it is not the task of the Court to plead the questions of law for the applicant. However, as Mr Pham is a litigant in person and not a qualified lawyer able to identify a question of law in conventional terms with the required precision, different considerations may apply: Hoe v Manningham City Council [2011] VSC 37 at [6] to [7] per Pagone J. 50 In this case the question is moot as, even if considering the questions of law that might be argued to exist, the appeal remains devoid of merit. I do not seek to recast Mr Pham's questions for my determination. In order only to better explain their lack of merit I note that the questions proposed in paragraphs 1(a),(b) and (c) can be seen to include the following: (a) Whether the Tribunal erred in law by denying the applicant procedural fairness in the conduct of the hearing in that it did not allow him to present his case in person at the hearing. (b) Whether the Tribunal erred in law in that it was biased against the applicant in refusing to allow the applicant to summons witnesses for the hearing. (c) Whether the Tribunal erred in law in failing to consider the decision of the Social Security Appeals Tribunal in reaching its decision. Mr Pham also made submissions as to a "lack of good faith" by the AAT which can be treated as falling within his claim of bias against the Tribunal. The claim of "conspiracy to pervert the course of justice" and "racial discrimination" by the Tribunal may also be viewed as a claim of bias.

Purported question of law 1(a) 51 Some parts of this purported question can be speedily dealt with. The purported question of law might be read to ask whether the Tribunal erred in law by failing to provide procedural fairness in that it failed to hear his application for prerogative relief. This question is entirely without substance. Not being a Court, but instead being a tribunal created by the AAT Act empowered to affirm, vary or set aside certain administrative decisions, the Tribunal has no power to grant such relief. It cannot be a proper question of law that it failed to do so. 52 Another part of the purported question of law might be read to ask whether the tribunal erred in law by failing to provide procedural fairness in breach of the "hearing rule" in that it did not allow Mr Pham to present his case in person at the Tribunal. 53 This purported question of law too does not withstand examination. After Mr Pham had commenced his application to the Tribunal, Centrelink varied its initial decision and determined that he had not committed a "no-show no pay" failure. It refunded the penalty imposed. By operation of s 180 of the SSA Act the substituted decision was treated as the decision of the SSAT before the Tribunal. When Mr Pham declined to withdraw his application despite the variation of the decision in his favour, the Tribunal conducted a brief hearing at which Mr Pham was present by telephone. 54 Although Mr Pham's application to the Tribunal made reference to the decision depriving him of his "basic human rights", the only application which was within the Tribunal's jurisdiction and properly before it was an application to set aside the administrative decision relating to the "no-show no pay" failure. In affirming the varied SSAT decision the Tribunal determined the controversy entirely in his favour. There was no requirement for witness evidence or detailed argument as there was no longer a controversy. 55 While the principles of procedural fairness and in particular, the hearing rule, must be carefully considered and protected, such protection does not give rise to a general right to be heard in respect of a purely academic legal argument without reference to any extant controversy between the parties. This is not the function of administrative tribunals or this Court. In R v Chief Constable of the Thames Valley Police; Ex parte Cotton [1990] IRLR 344 at 350 to 351, Bingham LJ explained that questions of procedural fairness are ultimately questions of fairness in substance, not form: …there can be no such thing as a technical breach of natural justice. That is because, to my mind, a procedure must in all the circumstances of a given case be either fair or unfair. Since, (always assuming the absence of a prescribed statutory procedure) the court is concerned with matters of substance and not mere form, a procedure cannot be unfair in a purely technical sense. There is no third category embracing procedures which are unfair to the subject of the decision as a matter of technicality but not substance. 56 There is no basis to Mr Pham's claim that by being denied a hearing in person replete with witness evidence and oral submissions, there was a denial of natural justice. Further, Mr Pham was present at the directions hearing albeit by telephone and had the opportunity to be heard if he sought to contend that there was some reason why the application should remain on foot. Section 35A of the AAT Act specifically provides for directions hearings to be conducted by telephone. 57 There is also nothing in the question of law as to whether the Tribunal breached procedural fairness in that it did not provide the legislation underpinning or written reasons for its decision. The Tribunal did no more than affirm the varied decision because the decision giving rise to the controversy previously before it had been withdrawn. There was no requirement to give written reasons in those circumstances. See Public Service Board v Osmond (1986) 159 CLR 656 at 662. Finally, it is apparent from the Tribunal's decision that oral reasons were given.

Purported question of law 1(b) - bias, conspiracy to pervert justice and racial discrimination 58 Some parts of this purported question of law can be speedily dealt with. The Amended Notice of Appeal asks whether the Tribunal denied Mr Pham procedural fairness in that no consent was given by Mr Pham to the Tribunal hearing the case or granting leave for any matters. The question has no basis. The Tribunal is empowered under the AAT Act to determine the issues before it according to law. Nothing in the AAT Act requires the Tribunal to seek Mr Pham's consent to its determination, or seek his leave in relation to matters before it. 59 Insofar as the question of law is whether the Tribunal erred in law by denying Mr Pham the opportunity to summons witnesses, the question is again without merit. Once the finding of a "no show no pay" failure was varied in his favour the controversy between the parties was at an end. No evidence that might be called by him could be relevant to the determination of any dispute. I cannot envisage a proper purpose for Mr Pham in summonsing witnesses to attend in those circumstances. 60 The balance of this purported question of law asks whether the Tribunal erred in law by failing to provide procedural fairness in that it was biased, conspired to pervert justice and/or racially discriminated against Mr Pham in the hearing. It is though impossible to discern from the question or the grounds how the serious allegations of bias, perversion of justice and racial discrimination are linked to the circumstances of the case, and how the alleged errors of law in the Tribunal's conduct of the proceeding are said to have arisen. The purported questions are therefore fatally flawed. No proper question of law is raised in the Amended Notice of Appeal as the question was not expressed with sufficient precision or particularity to amount to a question of law for the purposes of s 44(1) of the AAT Act or r 33.13(2)(b) of the Rules: Etheridge at 527 to 528. 61 Allegations of bias and conspiracy to pervert justice are serious, going as they do to the very core of the integrity of the decision maker, and therefore require evidence in order to be established: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44]; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102. In the absence of any evidence or even grounds linking this purported question of law to the circumstances of the case the proposed question is impermissible. 62 While Mr Pham's written submissions make various general contentions of errors of law in the hearing by the Tribunal, they are all unsupported by proper grounds. For example, they include a reference to an alleged conspiracy, stating that the "Australian Judiciary has colluded with the Executive to deny the Applicant access to the judicial process". No other information or grounds link this to the question of law that he seeks to raise. 63 Mr Pham was also unable at the hearing to provide anything more than his bare assertions and speculation to support his very general submissions as to bias, perversion of justice and racial discrimination. For example, he describes the decision to vary the initial decision in his favour as reverse racial discrimination. He says that he is of Asian descent and that by giving Asians favourable treatment racial hatred from others is incited. He did not point to any evidence or grounds in support of this submission or seek to link this assertion to the purported question of law. There was nothing offered to comprehensibly link the allegation of racial discrimination with the circumstances of the case.

Purported question of law 1(c) 64 The thrust of this purported question of law appears to be that the Tribunal erred in law by breaching the "no evidence" rule in that it failed to consider the decision of the SSAT. This question also does not withstand scrutiny. The decision of the SSAT was taken to be varied by operation of s 180(1) of the SAA Act once Centrelink varied its decision. It is clear that the Tribunal considered this varied decision as it affirmed it in its decision. 65 If instead the purported question turns on a failure by the Tribunal to consider the original decision of the SSAT this too has no merit. Once it was varied by operation of s 180(1) of the SAA Act the original decision had no effect and was not before the Tribunal for consideration.

Constitutionality or ss 180 and 126 of SSA Act 66 Mr Pham makes submissions regarding the constitutional validity of ss 180 and 126 of the SAA Act. This issue was not raised in the Amended Notice of Appeal and it is not clear whether Mr Pham raises this as a question of law, a ground of appeal or as both. He does not seek leave to further amend his Notice of Appeal. Had he done so I would have refused leave as his submission is vague and lacking any specificity or particularity. He does not provide any cogent argument as to how such constitutional invalidity could be established, beyond repeated assertions that the provisions in question breached the separation of powers doctrine.

Abuse of process 67 The respondent submits that it is open for me to find that the present proceeding is an abuse of process because it invokes the Court's processes for an illegitimate purpose. This submission has some force but it is unnecessary to determine the question as I have found that Mr Pham must fail in his application in any event.

Leave to issue subpoenas 68 Mr Pham sought leave prior to the hearing to subpoena the Federal Attorney General and the Secretary. He then filed two affidavits on 10 and 11 August 2011 in which he set out the basis upon which he sought leave. Mr Pham deposed in each of the two affidavits to the same reasons for seeking to subpoena the Attorney General, as follows: We seek to have the Federal Attorney General subpoenaed in order for him to support his continued unlawful perversion of justice and the rule of law, and unlawful racial discrimination in denying open access to the Australian Judiciary for ALL Australians, under HREOCA 1986 (Cth) and its parent UN treaty. The question of law lies in whether the Independence of the Judiciary allows it to pervert the rule of law and justice against self-representing litigants, by denying access to subpoena of witnesses, and access to representative; or refusing to provide reasons and legislations for decisions contrary to well-known High Court ruling. 69 Mr Pham also deposed in each of the two affidavits to the same reasons for seeking to subpoena the Secretary, as follows: We seek to subpoenae the Secretary, Department of education employment and workplace relations, since, from what the Deputy President of the AAT alleges, the Manager of Centrelink Springvale overruled the decision of the Secretary to penalise the Applicant for alleged breaches of the Act, without her consent. 70 The first concern with the subpoenas is that the resolution of the questions of law usually depends on the facts as determined by the Tribunal. It is only in most unusual cases that the Court will admit fresh evidence in a proceeding such as this: Fruit Marketing at 227, Servos. Nothing comprehensible was submitted by Mr Pham to suggest that this was a case requiring departure from this approach. 71 Further, the affidavits did not reveal any relevant evidence which might be put before the Court if either person were called. Mr Pham asserts that the Federal Attorney General should be required to give evidence as he is conspiring with this Court, the High Court, and the President of HREOC to deprive Mr Pham of access to the courts and to procedural fairness. For good measure Mr Pham also asserts that the Attorney General is conspiring to destroy or damage the Aboriginal peoples, and destroy asylum seekers who come to Australia. Mr Pham asserts that the Secretary should be required to give evidence as to whether the decision by the Centrelink employee to set aside the earlier decision of the Secretary was made with her consent or knowledge. 72 During the hearing, Mr Pham again sought leave to issue the subpoenas and made further submissions. He was invited by the Court to explain how the evidence of the Attorney General might be relevant to determining whether the Tribunal made an error of law. Mr Pham argues only that as the Attorney General is the "highest legal executive in the land …I am assuming he will set light on the legal aspects of the Constitution." In relation to how the evidence of the Secretary might be relevant he argues only that as the Secretary is the "main official" she will be able to answer the questions of law that he asks. 73 The questions of law the subject of this appeal cannot be resolved by recourse to the evidence that Mr Pham apparently seeks to adduce by the subpoenas. He apparently misunderstands the nature of the Court's power in hearing an appeal from the Tribunal. Leave was refused.

Conclusion 74 The application is dismissed. I order Mr Pham to pay the Secretary's costs. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy .