Towle v Secretary, Department of Social Services

1. The appeal be dismissed.
2. The appellant pay the respondent's costs, of and incidental to the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 On 30 June 2016, a delegate within the then Department of Human Services sent to the appellant, Mr Thomas William Towle, a letter which enclosed a questionnaire. The letter was expressed to have been given "under social security law". At the time, Mr Towle was in receipt of a disability support pension. The questions in the enclosed questionnaire were directed, in the first instance, to whether Mr Towle still considered himself to be partnered to a Ms Chang. There were consequential questions, five in all, dependant on the answer given to that, some of which, notably questions 4, 5 and 6, sought information relating not just to Mr Towle's income and employments but also to that of Ms Chang. 2 Mr Towle did not ignore that request for information. Rather, via a response dated 6 July 2016, he stated in response to question 4, "please describe your partner's employment status. If working please advise her current employer and how much money she earns each fortnight", the following: I'm not privy to her bank accounts or any income. She is not supported by Australian government. She gets casual work as needed in agriculture industry. 3 In response to question 5, which was "please provide pay slips for all work your partner has done in the last three months. If you do not have pay slips, please provide a letter from the employer with hours/amount paid each fortnight in this period", he responded: She is not a permanent resident. I'm not privy to her private information. Centrelink does not support her. 4 Upon receipt of that response, another delegate formed the view that there had not been compliance with the request for information in the letter such as to enliven the discretionary power conferred by s 81 of the Social Security (Administration) Act 1999 (Cth) (Administration Act) to suspend Mr Towle's disability support pension. A suspension decision was made on 14 July 2016. 5 Thereafter, Mr Towle sought the internal review of that decision. The outcome of that review was not favourable to Mr Towle. His disability support pension remained suspended. 6 As was his right, Mr Towle then sought the external review on the merits by the Administrative Appeals Tribunal (Tribunal) of the suspension decision as so affirmed on internal review. The initial Tribunal decision in respect of the review of the suspension decision was to affirm that decision. 7 Mr Towle enjoyed and took up a further right of external merits review by the Tribunal. 8 On 28 April 2017, the Tribunal again decided to affirm the suspension decision under review. From that decision, Mr Towle appealed to the original jurisdiction of this court invoking, or seeking to invoke, the jurisdiction conferred by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). That jurisdiction is conferred only in respect of a question of law. The questions of law identified by Mr Towle in his amended notice of appeal were these: Questions of law 1. Whether the Tribunal made an error of law by failing to correctly and fully take into account the determination made by the Respondent on or about 10 December 2015 pursuant to Section 24 of the Social Security Act 1991 that the Appellant not be treated as a couple for the purposes of the Social Security Act 1991 in making its decision of 28 April 2017. 2. Whether the Tribunal made an error of law by failing to correctly and fully take into account the determination made by the Respondent on or about 10 December 2015 pursuant to Section 24 of the Social Security Act 1991 that Ms Ya-Fen Chang not be treated as a member of a couple for the purposes of the Social Security Act 1991 in making its decision of 28 April 2017. These were said to raise particular grounds as set out in that amended notice, namely: Grounds relied on 1. The Tribunal wrongly held that the Appellant's disability support pension ("DSP") was correctly suspended pursuant to section 81 of the Social Security (Administration) Act 1991 in that: a. The Tribunal failed to correctly and fully take into account the determination made by the Respondent pursuant to section 24 of the Social Security Act 1991 on or about 10 December 2015 that for a special reason in the particular case, the Appellant was not to be treated as a member of a couple for the purposes of the Social Security Act 1991 even though the Appellant has a relationship with Ya-Fen Chang and the relationship between the Appellant and Ya-Fen Chang is a de facto relationship; b. The Tribunal failed to correctly and fully take into account the determination made by the Respondent pursuant to section 24 of the Social Security Act 1991 on or about 10 December 2015 that for a special reason in the particular case, Ms. Ya-Fen Chang was not to be treated as a member of a couple for the purposes of the Social Security Act 1991 even though Ya-Fen Chang has a relationship with the Appellant and the relationship between the Appellant and Ya-Fen Change is a de facto relationship; c. The Appellant correctly responded to question 1 of the questionnaire annexed to the Respondent's letter of 30 June 2016 ("the questionnaire") that "yes" he still considered himself partnered to Ya-Fen Chang, which was consistent with the determination made pursuant to section 24 of the Social Security Act 1991 that he was not to be treated as a member of a couple even though he was partnered with Ya-Fen Chang; d. In questions 3 and 4 of the questionnaire the Appellant declined to advise the Respondent how much money Ms Chang earns each fortnight and payslips for the last 3 months. e. There was no necessity for the Appellant to provide the Respondent with information concerning how much money Ms Chang earns each fortnight and her payslips for the last 3 months as the Respondent had determined that the Appellant was not to be treated as a member of a couple; f. There was no necessity for the Appellant to provide the Respondent with information concerning how much money Ms Chang earns each fortnight and her payslips for the past 3 months as the Respondent had determined that Ms Chang was not to be treated as a member of a couple; g. The Appellant complied with the requirement of the notice given to the Appellant under section 68 of the Social Security (Administration) Act 1999 ("the Administration Act") contained within the letter of 30 June 2016 ("the section 68 notice"); h. As the Appellant had complied with the section 68 notice, the Appellant's DSP should not have been suspended pursuant to section 81 of the Administration Act. 9 By that stage, the relevant responsibility for responding to the appeal had become that of the Secretary to the Department of Social Services (Secretary). The Secretary, hardly unfairly, did not object to the competency of the appeal on the basis of an absence of any question of law. Again, hardly unfairly, the learned primary judge sought to distil from the notice particular questions of law requiring an answer. Indeed, and with respect, her Honour went further than that, apparently as a result of the hearing of submissions and consideration of written submissions from the parties. Though her Honour was of the view that the Tribunal had not fully comprehended and dealt with some of Mr Towle's arguments, her Honour identified, correctly, that the Tribunal's task was to make the correct or preferable decision on the material before it and "to adequately explain in its reason how the discretion to suspend Mr Towle's disability support payment was enlivened on the facts and why the discretion should be exercised in his case". 10 The Tribunal had determined that "Centrelink was able" to suspend the payments. Her Honour was not uncritical of the Tribunal's reasons, but concluded, at para [45] of her reasons for judgment, that "the only conclusion open was that the section 68 notice was validly issued and that Mr Towle had not complied with it". The reference to s 68 needs some further explanation. 11 The letter of 30 June 2016, did not itself make reference to s 68. Section 68 of the Administration Act is in these terms: 68 Person receiving social security payment or holding concession card (1) Subsection (2) applies to a person to whom a social security payment (other than utilities allowance or seniors concession allowance) is being paid. (2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following: (a) inform the Department if: (i) a specified event or change of circumstances occurs; or (ii) the person becomes aware that a specified event or change of circumstances is likely to occur; (b) give the Department one or more statements about a matter that might affect the payment to the person of the social security payment; (c) give the Department one or more statements about a matter that might affect the operation, or prospective operation, of Part 3B in relation to the person. (3) Subsection (4) applies to a person who is the holder of a concession card. (4) The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following: (a) inform the Department if: (i) a specified event or change of circumstances occurs; or (ii) the person becomes aware that a specified event or change of circumstances is likely to occur; (b) give the Department a statement about a matter that might affect the person's qualification for the concession card. (5) An event or change of circumstances is not to be specified in a notice under this section unless the occurrence of the event or change of circumstances might: (a) affect the payment of the social security payment or the person's qualification for the concession card, as the case requires; or (b) affect the operation, or prospective operation, of Part 3B in relation to the person. 12 Suffice it to say, that section applied to Mr Towle because he was a person to whom a social security payment, other than one excluded from the section's application, was being paid. That being so, the section enabled the Secretary to give Mr Towle a notice which required him to, amongst other things, give the Department one or more statements about a matter that might affect the payment to him of his disability support pension; see s 68(2)(b). 13 There is earlier Full Court authority in respect of a not-materially distinguishable provision in the Administration Act, to the effect that it is not necessary, in relation to a letter of the kind sent to Mr Towle on 30 June 2016, to specify that it is one given under s 68: see Theo v Department of Family and Community Services (2005) FCAFC 239 at [24]. 14 At the time when that letter was sent, Mr Towle had the benefit of a determination made by the Secretary under s 24 of the Social Security Act 1991 (Cth) (Social Security Act). Such a determination enables a person to be treated as not being a member of a couple. The term "member of a couple" is defined in s 4(2) of the Social Security Act. The term turns, in part, on the Secretary's opinion about certain matters. Section 4(2) is expressed to be subject to s 4(3), which sets out matters "the Secretary is to have regard to" in forming an opinion under s 4(2). 15 One subject addressed by the Tribunal in its reasons, evidently in response to submissions made by Mr Towle, was whether the then circumstance that Ms Chang did not hold a Partner visa issued under the Migration Act 1958 (Cth) (Migration Act) was such that he ought to remain treated as not being a member of a couple. That argument was repeated before us in a way which threw that question into rather sharper focus than it seems it was before her Honour. The Tribunal concluded that the provisions in the Social Security Act dealing with a partner and members of a couple were not in conflict with the provisions of s 5CB of the Migration Act. The latter section deals with a person who is the de facto partner of another person for the purposes of that Act. 16 The amended notice of appeal to this Court against the judgment below is, with respect, prolix. It is by no means easy to determine the grounds of appeal. It is necessary to recall that the exercise of appellate jurisdiction is concerned with dealing with alleged error in the judgment below. In the past, observations have been made in relation to the difficulties presented in the exercise of appellate jurisdiction by notices of appeal, usually those of unrepresented litigants, which do not comply with the requirement in the Federal Court Rules 2011 (Cth) that a notice of appeal identify, briefly and succinctly, the grounds of appeal. For example, in Nyoni v Chee Koon Hee [2014] FCA 83 at [30], McKerracher J observed that, while "a degree of latitude must be afforded to an unrepresented litigant, such status does not confer a licence to disregard entirely the procedural requirements imposed by the Federal Court Rules 2011". On the other hand, as Flick J observed in SZLQW v Minister for Immigration and Citizenship [2008] FCA 1279 at [9], rules of court should not become themselves "instruments of oppressions". With that in mind, it seemed to the Court that the interests of justice required an endeavour to distil from the amended notice of appeal, with the benefit of an exchange in the course of oral submissions with Mr Towle and with counsel for the Secretary, particular grounds of dissatisfaction with the judgment below. 17 With commendable discrimination, and as Mr Towle made clear to the Court, whilst there were references in his notice of appeal to apprehended bias, these grounds were not pressed in the amended notice of appeal. 18 What did emerge very clearly from Mr Towle's submissions was a fundamental disagreement on his part as to how the absence of a Partner visa for Ms Chang (though she had made an application for one), was consistent with the suspension of his disability support pension. In effect, his contention was that it must necessarily have followed from the absence of a Partner visa for Ms Chang that he should have been treated as a single person for disability support pension purposes and that there was no occasion at all for the suspension of his pension. That looks to have been the subject dealt with expressly by the Tribunal. 19 The question is one which surely must have wider application in the administration of the Social Security Act than just to Mr Towle. So it is desirable to deal with it directly. There is nothing in s 4(2), read with s 4(3), of the Social Security Act which expressly either excludes or requires consideration of the visa status of one or other or both of the people potentially constituting the couple. The fact that a non-citizen, living in Australia, does not hold a visa may clearly be relevant as part of the factual matrix. 20 In turn, in deciding whether or not the discretion to determine that a person is not a member of a couple under s 24 of the Social Security Act should be exercised, the circumstance that one member of the couple does not hold, either at all or as yet, a Partner visa is a fact which permissibly can be taken into account by the Secretary. 21 In short, there is no necessary antipathy between the absence of a person's holding a Partner visa and a conclusion that another person is, with them, a member of a couple for the purposes of the Social Security Act. Had there been such an antipathy, the Tribunal may well have been obliged to conclude that there should be no suspension of Mr Towle's disability support pension because the questions asked could have no particular relevance to his pension. As it was though, the questions posed did have relevance to the question as to whether to continue the determination not to treat him as a member of a couple, and for that matter, the underlying payment to him of a disability support pension. The income, or otherwise, and the amount thereof could have affected the amount of pension to which Mr Towle was entitled. That being so, and given that there was no obligation to cite the particular statutory authority, the letter of 30 June 2016 asked lawful questions. The Tribunal's conclusion that the questions had not been responded to was one open factually for the Tribunal to make. 22 Her Honour went rather further, with respect, and concluded it was the only conclusion. That may well be so, but it was certainly a conclusion reasonably open. In those circumstances, it is particularly necessary in respect of an appeal, which lies only on a question of law, to recall observations made in the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at pp 286 and 287 in relation to a practical as well as a principled restraint in dealing with appeals on questions of law. Section 44 of the AAT Act self-evidently has the purpose of leaving what are just questions of fact to the Tribunal's determination alone. 23 The result then, is that the notice sent to Mr Towle was lawfully sent. The Tribunal's conclusion that there was no response to particular questions was open to it and in turn the resultant conclusion to affirm the decision to suspend was open to it. The primary judge was, therefore, correct in her dismissal of the appeal. 24 For completeness, and because it was mentioned in the course of Mr Towle's written submissions, I should add this. It was alternatively possible for the Secretary to seek particular information from Ms Chang directly in relation to financial circumstances. The Secretary did this. It was also possible for the Secretary to utilise a general information gathering power, found in s 192 of the Administration Act, for which a particular form of notice as prescribed by s 196 is required. Such a notice can have penal consequences and, unsurprisingly, Parliament has made it necessary to refer in such a notice to the particular statutory authority for giving it. There is no similar requirement in s 68. 25 It was open to the Secretary to utilise s 68 and, further, it was not necessary for the particular statutory authority to be specified. Of course, there are aspects of public administration which come within the purview of the background to this case, the wisdom or otherwise of which may be the subject of reasonable difference between reasonable people. But it is very necessary to recall that the administration of the Act is consigned not to the Court but to the Minister and, as responsible to the Minister, to the Secretary. In turn that means that the Court is concerned with matters of legality, not the general administration of the Social Security Act. 26 What follows from the forgoing is that, in my view, the appellant has not demonstrated error on the part of the primary judge. To the contrary, the order dismissing the appeal from the Tribunal was correct. 27 I would therefore dismiss the appeal. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.