Watiwat v Secretary, Department of Social Services

Federal Court of Australia|2021-10-29|Before: Perry J

The application for an extension of time within which to appeal the decision of the Administrative Appeals Tribunal dated 24 November 2020 is dismissed.
The applicant is to pay the first respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 In a decision given on 31 January 2020 (the January 2020 decision), the Social Services & Child Support Division of the Administrative Appeals Tribunal (Tribunal) affirmed a decision of an Authorised Review Officer (ARO) that the applicant, Mr Bienvenido Watiwat, was not entitled to the payment of the age pension at the single rate from 13 September 2013 because he was a member of a couple from that date. 2 Mr Watiwat sought merits review of the January 2020 decision in the Tribunal. This is an application for an extension of time under r 33.13 of the Federal Court Rules 2011 (Cth) pursuant to which the applicant seeks to appeal from a decision made by the second respondent, the Tribunal, on 24 November 2020 (the November 2020 decision) on the application for review. By that decision, the Tribunal under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) set aside the January 2020 decision and substituted the same with its decision that the applicant is entitled to be paid the age pension at the single pension rate from 26 May 2018. It did not accept the applicant's contention that he should have been paid the age pension at the single rate from the earlier date of 13 September 2013. 3 The first respondent, the Secretary, Department of Social Services (Secretary), does not take issue with the adequacy of the applicant's explanation for the delay. Nor does the Secretary contend that he would be prejudiced if an extension of time were to be granted. However, the Secretary opposes the application for an extension of time on the basis that the proposed appeal lacks any reasonable prospects of success and as such it would not be in the interests of the administration of justice to grant an extension of time (Secretary's submissions filed 31 August 2021 at [2.8]). 4 It is important to note that if the application for an extension of time were to be granted, the appeal would lie under s 44(1) of the AAT Act and as such would be limited to an appeal on a question of law. The Court lacks jurisdiction to assess what is the correct and preferable decision on the merits, as this was a task for the Tribunal alone to undertake. 5 For the reasons set out below, the application for an extension of time should be refused.

BACKGROUND 6 On 13 September 2013, the applicant submitted a formal application to the Department of Social Services (Department) to be paid the age pension. Throughout the form, the applicant described Bernardita Watiwat, to whom he had been married since 1984 and with whom he resided, as his "partner" (Tribunal reasons (TR) dated 24 November 2020 at [7]). That application was granted on 30 January 2014 with effect from 6 September 2013, on the basis that the applicant was a member of a couple. 7 On 21 July 2014, the applicant made an application to be paid the age pension at the single rate, as he claimed that he and Ms Watiwat were living separately under the one roof. 8 On 8 September 2014, a Departmental officer found that the applicant should continue to be paid at the couple rate because he remained a member of a couple. The decision was affirmed by an ARO on 9 July 2019 subsequent to the applicant requesting a review on 26 November 2018. 9 On 8 October 2019, the applicant lodged an application for the Tribunal to review the ARO's decision of 9 July 2019. The Social Services & Child Support Division of the Tribunal ultimately affirmed the ARO's decision in the January 2020 decision. On 9 March 2020, the applicant sought a review (the second review) of the January 2020 decision. 10 As a result of the second review, the Tribunal found in its reasons for the November 2020 decision that: (a) upon consideration of the prescribed matters in s 4(3) of the Social Security Act 1991 (Cth) (the Act), the applicant was not "living separately and apart" from his then wife Ms Watiwat on a "permanent or indefinite basis" at any time between 13 September 2013 and 26 May 2018 for the purposes of s 4(2) of the Act. It followed that the applicant was a member of a couple for the purposes of the Act (TR at [48]); (b) the applicant commenced living separately and apart from Ms Watiwat after 26 May 2018 (TR at [49]); and (c) there were no special reasons justifying the treatment of the applicant as not being a member of a couple pursuant to s 24 of the Act (TR at [51]-[54]). 11 Therefore, the Tribunal under s 43(1) of the AAT Act set aside the January 2020 decision and substituted the same with the November 2020 decision that the applicant is entitled to be paid the age pension at the single pension rate from 26 May 2018. 12 On 12 January 2021, the applicant filed an application for an extension of time in the Federal Court together with a supporting affidavit affirmed on the same date. On 14 May 2021, the applicant filed an amended application for an extension of time. 13 The applicant also confirmed at the hearing that he relied upon his affidavit affirmed on 27 April 2021 (which was read in support of the application without objection) and each of the following draft notices of appeal: (a) "Draft Notice of appeal from a tribunal" dated 15 December 2020, received 12 January 2021; (b) "Draft Amended Notice of appeal from a tribunal" dated 20 April 2021, received 22 April 2021; and (c) "Further Draft Amended Notice of appeal from a tribunal NSD23/2021" dated 24 June 2021, received 25 June 2021. 14 The Secretary tendered the first respondent's Bundle of Documents which contained all of the material before the Tribunal when it made the November 2020 decision the subject of this proposed appeal. 15 The parties also filed written submissions in advance of the hearing which were supplemented by oral submissions.

3.1 Relevant principles 16 Section 44(2A) of the AAT Act provides that any appeal on a question of law from a decision of the Tribunal must be instituted not later than the 28th day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Court allows. The Tribunal made its decision on 24 November 2020. The applicant filed the application for an extension of time on 12 January 2021 (that is, 49 days after the date of the November 2020 decision). Even allowing up to seven days' postage for the Tribunal's decision to reach the applicant, his application was filed at least 14 days out of time. 17 Under s 44(2A), the Court has a discretion to allow further time in the interest of justice. In considering whether to exercise the discretion in the applicant's favour, the Court considers, among other things, principles which may be summarised as follows (see by analogy Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 (Wilcox J)). (1) The Court must be positively satisfied that it is proper to grant an extension of time. (2) The applicant must show an acceptable explanation of the delay and that an extension of time is fair and equitable in the circumstances. (3) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (4) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. 18 With respect to assessing the merits of an application for an extension of time, as I explained in Jamal v Secretary of Social Services [2017] FCA 916 at [12]: … it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant's prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to "assess the merits in a fairly rough and ready way" (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]). 19 As earlier noted, the application for an extension of time is opposed on the grounds that the proposed appeal would lack reasonable prospects of success and as such it would not be in the interests of the administration of justice to grant an extension of time. The public interest in the finality of litigation is a well-established principle: FCFY v Minister for Home Affairs [2019] FCA 1222 at [8] (Thawley J).

3.2 The length and explanation for the delay 20 In his affidavit affirmed on 27 April 2021, the applicant sought to explain the delay by reference to the difficulties he experienced in filing his application by email and by post. The applicant deposed that this process commenced on 19 December 2020 before his application was successfully filed on 12 January 2021 (at [3] to [11]). As earlier mentioned, the Secretary does not dispute the applicant's explanation for the delay or contend that he would suffer any particular prejudice if the extension were granted.

3.3 The merits of the proposed appeal 21 I accept the Secretary's submission that the proposed appeal lacks any merit. As such, the grant of an extension of time could serve no useful purpose and would not serve the interests of justice. It follows that the application for an extension of time should be refused. 22 First, the Tribunal, standing in the shoes of the Secretary, was required to decide for itself whether or not the applicant was a "member of a couple" as defined in s 4(2) of the Act in order to determine his entitlement to be paid the age pension at the single rate for all or part of the period claimed. That required the Tribunal to make the correct and preferable decision on the basis of the evidence before it. In order to do that, the Tribunal was required to exercise an independent mind and was not bound by the earlier decisions made by the Social Services & Child Support Division of the Tribunal or by Departmental officers. Nothing suggests that the Tribunal failed to discharge its duty in these respects. The provision of detailed reasons for its decision and the different decision in fact reached by the Tribunal on the second review demonstrate the contrary. As such, the complaints raised by the applicant in oral submissions about earlier decisions or processes undertaken by Departmental officers or with respect to the Tribunal's decision in January 2020 have no bearing upon the question of whether the Tribunal made an error of law in its November 2020 decision which is the subject of the present application for an extension of time. 23 Secondly, the November 2020 decision by the Tribunal did not concern any debt sought to be recovered by Centrelink's online compliance intervention system (also known as "robodebt"). As such, the applicant's complaints regarding "robodebt" are also irrelevant to the correctness in law of the Tribunal's November 2020 decision, as are the matters raised by the applicant at [10] of his outline of submissions in relation to the garnisheeing of income, other social security payments, or the purported cancellation of his Customer Reference Number. 24 Thirdly, the ambit of an appeal to the Federal Court under s 44 of the AAT Act is confined to a question or questions of law only: Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) at [62(1)] (the Court). It is not, therefore, the function of the Court to revisit the factual findings made by the Tribunal and to make a decision on the merits of the applicant's application to be paid the age pension at the single rate during the disputed period. The Court's role is limited to determining whether the decision of the Tribunal was made according to law. 25 In this regard, r 33.12(2) of the Federal Court Rules 2011 (Cth) provides that the notice of appeal must set out, among other things, the precise question or questions of law to be raised on the appeal and the grounds relied on in support of the relief sought. As such, the notice of appeal should be expressed in such a way as to expose with precision the error of law alleged to have been committed by the Tribunal or risk being struck out: HGMZ v Secretary, Department of Social Services [2021] FCA 280 at [25] (Flick J). Furthermore, as the Secretary submitted, generally self-represented litigants are not exempt from the requirements of this rule. That is not, however, to deny that ultimately the question of whether the appeal is on a question of law must be approached as a matter of substance rather than form: Haritos at [62(6)]. 26 Cumulatively, the draft notices of appeal contain four purported questions of law: (1) "Breach of Privacy Act particularly provisions 4 and 8" (2) "Breach of Crimes Act 1900, 192B, 192D and 192E" (3) "Section 43(1)"; and (4) "Section 24". 27 In this regard, I note that: (1) section 4 of the Privacy Act 1988 (Cth) (the Privacy Act) provides that the Crown in right of the Commonwealth is bound by the Privacy Act, while s 8 provides, in essence, that an act done by a person employed by an agency in performing the duties of that person's employment shall be treated as having been done or engaged in by the agency; (2) section 192E of the Crimes Act 1900 (NSW) creates the offence of fraud, while ss 192B and 192D contain relevant definitions for that offence; and (3) as the Secretary submitted, the reference to s 43 appears to be a reference to s 4(3) of the Act (to which I have earlier referred), while s 24 appears to be a reference to s 24 of the Act which confers a discretion on the Secretary to determine that a legally married person is not to be treated as a member of a couple in special circumstances. 28 The applicant also asked the Court to make three findings of fact being, in essence, that: (1) the Secretary's legal representatives attempted to mislead the Tribunal by resequencing/renumbering documentary evidence to hide select pages which were before the Social Services & Child Support Division of the Administrative Appeals Tribunal in an earlier hearing; (2) the Secretary's legal representatives tampered with the applicant's customer record held by Services Australia, the agency which delivers Centrelink social security payments and services (customer record); and (3) false information was inserted into interview notes forming part of the applicant's customer record by Departmental officers (that is, AROs specifically) to harm his application. 29 Manifestly, none of the purported questions of law comply with r 33.12(2) and raise any question of law with any precision. However, as the Secretary submitted, beneficially read, the following question of law can be discerned from the draft notices of appeal: "[w]as the decision of the Tribunal subject to the appeal infected by fraud?" 30 As the Secretary submitted, it is well established that an allegation of fraud is a serious one which ought not to be made lightly and must be exactly particularised and strictly proved: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538 (Kirby P (as his Honour then was), with whom Hope and Samuels JJA agreed). It is particularly grave to allege, as here, that it was practised on a court or tribunal: Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 at 113 (Lindgren J). Yet here the allegations manifestly lack any particularity. They do not rise above bare assertions. Nor, as the Secretary also submitted, has the applicant filed any evidence to support these serious allegations. As such, the allegations are scandalous and ought not to have been made. 31 Furthermore, the Tribunal makes no reference to the notes of any interviews with AROs or to the customer record which the applicant asserts were tampered with. As such, even if the allegations of fraud had any merit, there is nothing to suggest that the information said to have been tampered with or falsely inserted into the applicant's customer record was relied upon by the Tribunal in making the November 2020 decision.

CONCLUSION 32 The application for an extension of time within which to appeal from the November 2020 decision of the Tribunal is dismissed. The applicant is to pay the first respondent's costs as agreed or assessed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.

Federal Court Rules 2011(Cth)rr 33.12(2), 33.13

Privacy Act 1988(Cth)ss 4, 8

Crimes Act 1900(NSW)ss 192B, 192D, 192E

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