The Findings of the Administrative Appeals Tribunal
66 It would appear that few of the facts relevant to the review process being undertaken by the Tribunal were in dispute. Much of the evidence apparently went unchallenged. The transcript of the hearing, however, was not reproduced in the materials available on appeal. Regardless of the state of the evidence or other materials available to the Tribunal, left for resolution by the Tribunal were the ultimate factual conclusions or inferences to be drawn and the application of the statutory provisions to those factual conclusions.
67 The Tribunal decided that Mr Mouratidis was "entitled to a continuation of the payment of his DSP from 29 March 2009": Re Secretary, Department of Families, Community Services and Indigenous Affairs and Mouratidis [2010] AATA 318 at [31]. The route by which the Tribunal reached that decision, however, was not self-evident.
68 The confined jurisdiction of this Court when reviewing any decision of the Tribunal is to be constantly borne in mind. That jurisdiction is conferred by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). That section provides for an "appeal … on a question of law". No jurisdiction is conferred to correct such factual errors as the Court may perceive to have been committed.
69 And, although expressed in terms of an "appeal", the jurisdiction being exercised is an exercise by the Court of its original jurisdiction: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 410 per Bowen CJ and Deane J. 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 Repatriation Commission (1985) 7 FCR 302 at 304 per Bowen CJ, Fisher and Lockhart JJ. See also: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 at [38] to [39], 114 ALD 8 at 19 per Marshall, Tracey and Foster JJ. An appeal which does not identify a "question of law" and which is no more than an application to undertake a review on the merits may be struck out: eg, Kara v Comcare [2011] FCA 951.
70 The "question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law": Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ. No submission was advanced in the present appeal that a "question of law" did not arise.
71 It is within these constraints that power is conferred upon the Court to make orders in respect to a decision of the Tribunal.
72 It is thus necessary to identify the manner in which the Tribunal approached the construction of the statutory provision in issue and thereafter the manner in which the Tribunal applied that construction to the findings of fact as made.
73 The Tribunal considered the terms of s 1218C and set forth its approach to the construction of this provision as follows:
Consideration
[24] The decision under s 1218C of the Act to continue the payment of a benefit beyond the period permitted when a social security recipient is overseas is discretionary. The discretion can only be exercised because one of the events set out in the section renders the recipient unable to return to Australia. …
[25] In Manolev ([2005] AATA 398), the Tribunal stated that the use of the word "events" in s 1218C of the Act "means a specific identifying incident and not something which came on gradually" ([2005] AATA 398 at [28]). This Tribunal is unable to accept that limitation, which does not appear in the words of the section and there is no reason to read down the words used. As is apparent from the terms of s 1218C(2)(a) of the Act, the event must have "occurred" or "began" during the period of absence. For an illness to occur, this includes a condition manifesting itself. Among the meanings attributable to the verb "to occur" are "take place, befall, happen", and it [is] in this sense that the noun "event" in s 1218C(2) of the Act should be understood.
No issue, it may be noted, is taken in the present appeal as to whether or not a deterioration of a medical condition may constitute an "event" for the purposes of s 1218C. That was an issue which had been argued before the Tribunal - but it is an issue which has fallen by the wayside in the hearing of the appeal. The sole issue to be resolved on appeal is whether - upon the facts as found by the Tribunal - the condition precedent to the exercise of the discretionary power had been satisfied.
74 Those findings of fact were expressed by the Tribunal as follows:
[26] There is no doubt the respondent's mother was aged and frail when she went to Greece on 28 May 2008. She was then in need of the services of a carer. While there is no medical evidence to support such a finding, the Tribunal accepts that she may, as part of that frailty, have been suffering Alzheimer's disease. She was however fit enough to undertake the journey to Greece.
[27] By 2 December 2008 the respondent's mother was certified as being unable to travel and as requiring the services of a second carer. The Tribunal regards that medical assessment as representing an appreciable deterioration of her condition as clearly in May of that year she had been able to travel overseas, albeit with assistance. Moving from a state at which a person is able to travel overseas to one at which that is no longer possible, and no new condition is mentioned, is indicative of a deterioration in the person's condition. Similarly the need to increase the number of carers required to look after her is indicative of her deterioration. As at 2 December 2008, it was reasonable to conclude, and the Tribunal does agree, that her condition had changed from one in which she was merely old and frail with Alzheimer's disease to one in which she had become seriously ill as the result of that disease.
[28] On 16 December 2008, his mother fell and broke her right leg. She was admitted to hospital. Prior to her discharge, Dr Patelaros, a psychiatrist, certified her as suffering advanced dementia and that she was bedridden. This all occurred while the respondent was in Australia. He returned to Greece on 28 January 2009 where he has remained caring for his mother since.
[29] The Tribunal accepts that the applicant's two return trips to Australia from Greece in 2008 were made in order to secure a continuation of the payment of his DSP. He was however outside Australia at the time, in early December 2008, when the Tribunal is satisfied his mother's condition deteriorated and she became seriously ill. It would be harsh and unreasonable if his return to Australia for the period between 9 December and 28 December 2008, in order to secure the continued payment of his benefit should act to disqualify him from receipt of the benefit if he is otherwise entitled, given that:
(a) it is unclear whether he had been advised of the circumstances which may give rise to approval of portability,
(b) the subsequent medical evidence that his mother's condition had worsened was forthcoming, and
(c) he was advised that an application to have the portability approved would not be successful.
The Tribunal then went on to affirm the decision of the Social Security Appeals Tribunal.
75 The Administrative Appeals Tribunal, accordingly, made express findings of fact as to the mother's condition as at 2 December 2008. But it failed to identify the "portability period" that was being extended.
76 That difficulty was addressed by the primary Judge as follows:
Portability period extended by the Tribunal
[50] In the present case, the Tribunal did not expressly state that it extended a portability period and did not identify, by reference to particular dates, the portability period it extended. Rather, it affirmed the decision of the SSAT that the respondent was entitled to a continuation of the payment of the disability support pension from 29 March 2009.
[51] There are two possible portability periods the subject of the extension. The first is a portability period commencing on 12 September 2008. The second is a portability period commencing on 28 December 2008. While the respondent returned to Australia on 9 December 2008, prior to the expiration of the 13 week period commencing on 12 September 2008, and hence, on one view, did not require an extension of that portability period, it was during his absence within that 13 week period that the Tribunal unambiguously located the occurrence, as at 2 December 2008, of an event which satisfied the statutory precondition for the existence of the discretion (namely, the appreciable deterioration of the respondent's mother's illness to the point where it became serious, as certified on 2 December 2008). If, on the other hand, the respondent's return to Australia on 9 December 2008 and arrival in Greece on 28 December 2008 initiated a new portability period and a new period of absence, the 13 week portability period expired on 29 March 2009, yet the only circumstances relevant to an extension identified by the Tribunal within that period of absence was the mother's diagnosis on 12 January 2008 and discharge from hospital on 15 January 2009. The Tribunal did not identify those circumstances as an event, although the respondent, in the Notice of Contention, alleges that such a finding could and should have been made.
[52] The respondent submitted, correctly in my view, that on the better construction, the Tribunal extended the portability period commencing on 12 September 2008 but failed to make an express finding to that effect. On the better reading of the reasons, the Tribunal extended the portability period commencing on 12 September 2008, in which it identified the occurrence of an event within the meaning of s 1218(1) during the respondent's absence from Australia. It treated the respondent's short return to Australia prior to the expiration of the portability period commencing on 12 September 2008 as potentially relevant to the exercise, rather than the existence, of the discretion.
[53] On that construction of the Tribunal's reasons, the respondent's return to Australia on 9 December 2008 would not constitute an impediment to the existence of the discretion unless, as the applicant contended, the Act imposes a temporal scheme where (in the context of extensions of the portability periods specified in the Act) any return to Australia extinguishes the discretion to extend, and terminates an extension already granted, of a portability period specified in s 1217 of the Act even if, during the respondent's absence from Australia, the criteria for an extension were satisfied.
The primary Judge went on to conclude that the return to Australia on 9 December 2008 by Mr Mouratidis "did not exclude the discretion to extend the portability period commencing on 12 September 2008": [2011] FCA 268 at [70]. The primary Judge also went on to conclude that it was unnecessary "that the serious illness 'begin' during the period of absence" and that "the occurrence of a 'serious illness' of a person or family member under s 1218(1)(b) would comprehend a change (including an appreciable deterioration) in the degree or nature, or the diagnosis of, an existing condition, sufficient to cause the inability to return to Australia during the period of absence": [2011] FCA 268 at [95].