FEDERAL COURT OF AUSTRALIA

Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Notice of Objection to Competency is dismissed.

3.    Liberty is reserved to the Respondent to seek within seven days an order amending the name of the Respondent as named in the Notice of Appeal.

4.    The Appellant is to pay the costs of the Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The present proceeding involves two claims made by the Appellant, Ms Fatwidah Arifin, for a disability support pension and for compensation.

2    The claims were resolved initially by two decisions of the Administrative Appeals Tribunal (“the Tribunal”). In the first decision, the Tribunal affirmed a decision that a disability support pension be payable to Ms Arifin as from 17 September 2009: Re Arifin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 429. The Tribunal rejected Ms Arifin’s contention that the pension should have been payable from one or other of a number of earlier dates. In the second decision, the Tribunal concluded that it had no jurisdiction to determine a claim “for compensation for discrimination on the ground of disability”: Re Arifin and Decision Maker [2013] AATA 502 at [1].

3    Ms Arifin’s Notice of Appeal from the first decision of the Tribunal set forth the Questions of Law to be resolved (without alteration) as follows:

1.    Federal Rules of Civil Procedure, Rule 52(6)

2.    Disability Discrimination Act 1992

3.    Administrative Appeals Tribunal Act 1975

The Notice of Appeal in respect to the second decision of the Tribunal refers to “details enclosed” but does not appear to identify any Question of Law. The appeal from both decisions was dismissed: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 1162.

4    Ms Arifin now appeals from that decision of the primary Judge. A document titled “Addition of Information on Grounds of Appeal” filed in this Court on 31 January 2014 identifies the Grounds of appeal (without alteration) as follows:

Grounds of appeal see attachments (in page 1-2) as well and new attach

1.    Federal Court Rules 2011, Divisions 6.42, 1.31, 1.32, Chapter 3, Part 31,

2.    Federal Court of Australia 1976 s S 4, S 19, S 22, S 37P(2) (3). S 59… and S 59(d)

3.    Other jurisdictions that has stated in the attachment in page 1-2 that I delivered on 28 November 2013.

The two page “attachment” includes a series of further assertions, including the assertion that (without alteration) the “Respondent has failure to comply with Rules of Court, where has made VEXATIOUS PROCEEDING by has abused the process of the court to harass and annoy to achieve the wrongful purpose or to make failure the appellant claim the compensation…”.

5    Notwithstanding the apparent breadth of materials sought to be relied upon by Ms Arifin, the issues properly before the Court are within a limited compass and can be addressed briefly.

6    The Respondent has filed a Notice of objection to competency, specifying the “Grounds of objection” in terms of “no new issue” being raised or “no error of law” being disclosed. It was unclear from the Respondent’s submissions before this Court as to whether the objection was to the competency of the appeal from the decision of the Tribunal or to the competency of the appeal from the decision of the primary Judge. Either way, it may be queried whether the Notice properly complies with r 36.72(1)(b) of the Federal Court Rules 2011 (Cth) (“Federal Court Rules 2011”). It is, however, unnecessary to pursue this issue as the Respondent accepted that the merits of Ms Arifin’s appeal should be heard in advance of the objection to competency.

7    The appeal is to be dismissed with costs. The Notice of objection to competency is also to be dismissed.

A backdated pension?

8    Ms Arifin was born in Indonesia but became a permanent resident of Australia on 8 February 2009. She first contacted Centrelink by phone about a claim for family tax benefit in March 2009. On 17 September 2009 she again contacted Centrelink about whether she might be entitled to a Newstart Allowance.

9    When she was before the Social Security Tribunal Ms Arifin claimed that she was entitled to payment of a disability support pension as from 8 February 2009. That Tribunal disagreed and granted the pension from 27 September 2010. The delegate of the Secretary also agreed. The Administrative Appeals Tribunal set aside this decision and found Ms Arifin was entitled to payment from 17 September 2009. In doing so, the Administrative Appeals Tribunal applied s 15(4A) of the Social Security (Administration) Act 1999 (Cth). Section 15(4) and (4A) provide as follows:

(4)    For the purposes of the social security law, if:

(a)    a person makes a claim for a pension, allowance, benefit or other payment under a law of the Commonwealth, other than this Act or the 1991 Act, or under a program administered by the Commonwealth, that is similar in character to a social security payment, other than a supplementary payment (the initial claim); and

(b)    when the claim was made, the person was qualified for a social security payment, other than a supplementary payment; and

(c)    the person subsequently makes a claim for the social security payment referred to in paragraph (b) (the later claim); and

(d)    the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made the later claim on the day on which the initial claim was made.

(4A)    For the purposes of the social security law, if:

(a)    a person makes a claim for an income support payment (the initial claim); and

(b)    on the day on which the initial claim is made, the person is qualified for another income support payment (the other income support payment); and

(c)    the person subsequently makes a claim for the other income support payment (the later claim); and

(d)    the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made the later claim on the day on which the initial claim was made.

The Administrative Appeals Tribunal concluded that it was “reasonable” to fix the date upon which Ms Arifin made contact with Centrelink on 17 September 2009 in respect to the Newstart Allowance as the date from which the disability support pension should commence: [2013] AATA 429 at [12]. That Tribunal further concluded that her pension could not be backdated to March 2009 because (inter alia) the inquiry then made in respect to a family tax benefit was not a claim for an income support payment or “a claim for a payment that is similar in character to a social security payment as required by s 15(4)(a)”: [2013] AATA 429 at [15] to [17].

10    The learned primary Judge relevantly concluded that the Notice of Appeal from that decision of the Administrative Appeals Tribunal did not identify any “question of law” as required by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“Administrative Appeals Tribunal Act”) and that none of the matters raised by Ms Arifin had any substance. Her Honour concluded that “none of the matters to which Ms Arifin referred in her notice of appeal and her written and oral submissions would entitle this Court to overturn the Tribunal's decision”: [2013] FCA 1162 at [46]. Her Honour also addressed the alternative basis upon which the jurisdiction of this Court was invoked, namely the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“Administrative Decisions (Judicial Review) Act”). Her Honour also concluded that the application for judicial review was to be dismissed: [2013] FCA 1162 at [49].

11    Her Honour was unquestionably correct in so concluding.

The claim for compensation for discrimination

12    The second decision of the Administrative Appeals Tribunal involved what was characterised by that Tribunal as a claim “for compensation for discrimination on the ground of disability”: [2013] AATA 502 at [1].

13    The Administrative Appeals Tribunal correctly started with the proposition that it only had jurisdiction to review such decisions as had been entrusted to it pursuant to some legislative provision: Administrative Appeals Tribunal Act, s 25. That section provides in part as follows:

(1)    An enactment may provide that applications may be made to the Tribunal:

(a)    for review of decisions made in the exercise of powers conferred by that enactment; or

(b)    for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

…

(4)    The Tribunal has power to review any decision in respect of which application is made to it under any enactment.

The Tribunal concluded that no statutory provision had been identified by Ms Arifin to permit review.

14    In resolving Ms Arifin’s challenge to this decision of the Tribunal, the primary Judge noted that Ms Arifin’s “claim was not confined to disability discrimination”: [2013] FCA 1162 at [55]. Her Honour went on, however, to trace the reasons why the Tribunal had so characterised her claim and observed that “the Tribunal cannot be criticised for focussing on the Disability Discrimination Act”: [2013] FCA 1162 at [60]. Her Honour then concluded that there was a “more fundamental reason why the Tribunal had no jurisdiction”, namely:

[61]    Regardless, as the Tribunal pointed out, there is a more fundamental reason why the Tribunal had no jurisdiction to entertain Ms Arifin’s application. Although she filed an application for review, the application failed to disclose the decision to be reviewed, the date of the decision or the identity of the decision-maker. The narrative “claim”, which accompanied it, did not do so either. The Tribunal does not have an unlimited jurisdiction to investigate injustice wherever it may occur. Its jurisdiction is confined by the terms of the AAT Act…

[62]    …In this second matter, the Tribunal was not invited to review any decision under any relevant enactment. Unless an enactment empowers the making of the application to the Tribunal, the application is not made under an enactment and the Tribunal has no jurisdiction…. Neither in the Tribunal nor in this court did Ms Arifin refer to such an enactment. The Tribunal was not entitled to inquire into the treatment of which she complained. It follows that it committed no error in failing to do so.

Again, her Honour was unquestionably correct in so concluding.

The Appellant’s Grounds of Appeal and submissions

15    The task undertaken by the primary Judge was to resolve the appeals from the two decisions of the Tribunal and the application for judicial review of the Tribunal decisions.

16    The task entrusted to this Court is to resolve the appeal from that decision of her Honour: Federal Court of Australia Act 1976 (Cth): s 25. The proper role of an appellate court is ordinarily to correct error: Sobey v Nicol and Davies [2007] FCAFC 136 at [72], (2007) 245 ALR 389 at 403 to 404. Branson, Lindgren and Besanko JJ there cited with approval the following observations of Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1 at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court at first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

It is not part of the function of either a judge at first instance or an appellate court to resolve arguments or submissions which have no relevance to the “matters” properly before the Court. Arguments irrelevant to the identification of any “question of law” arising under s 44(1) of the Administrative Appeals Tribunal Act, for example, can properly be left to one side. Once the jurisdiction of the Court is properly invoked, the Court thereafter assumes no general charter to resolve all such arguments or grievances as a litigant may wish to ventilate.

17    It is sufficient for present purposes to note that Ms Arifin on appeal has not identified any appellable error on the part of the primary Judge. For that reason alone, the appeal should be dismissed.

18    However the Grounds of Appeal may have been expressed by Ms Arifin, her appeal is without substance.

19    The manner in which she expressed her Grounds of Appeal and her lengthy written submissions should nevertheless be briefly mentioned lest it be thought that they have not been considered. The inelegance in language in the Grounds of Appeal and her written submissions assumes no relevance. However expressed, if the Court is able to discern some “question of law” in the Tribunal’s decisions or some appellable error on the part of the primary Judge, this Court should intervene. Even arguments which may have some merit should, perhaps, be scrutinised whether or not the arguments were advanced in the Court below.

20    It should be recognised at the outset, however, that the Grounds of Appeal as formulated by Ms Arifin and her submissions canvass many issues going well beyond the matters which could properly be ventilated before the primary Judge or this Court on appeal.

21    In many respects those Grounds of Appeal and submissions seek to canvass:

    arguments and submissions which, if recast, could potentially identify a “question of law” for the purposes of s 44 of the Administrative Appeals Tribunal Act or a ground of review for the purposes of the Administrative Decisions (Judicial Review) Act;

    arguments or submissions for which there is simply no evidence;

    arguments or submissions which have no relevance to any of the issues properly before the Court; and/or

    submissions having such a level of generality as to be of little (if any) assistance.

Questions as to compliance with the Federal Court Rules 2011 may for present purposes be left to one side.

22    An instance of a ground which could potentially be recast as identifying a “question of law” or a ground of review is the assertion which states (without alteration): “I have misinterpret the Questions of Law of Social Security Act 1991 (Cth) that I have written in the summary of the ADJR Act 1977”. A further instance is provided in a document titled “Objections of Part of the Reasons for Judgment”. That documents states that the “Tribunal has breached it’s jurisdictions such as: SS Act 1991, s 23; SS Act 1999 SS 13, 15; ADJR Act S.5(1)…”. Such a statement provides no assistance to the Court or the Respondent as to any argument that may be founded upon the statutory provisions mentioned. But, in any event, no breach or error in the construction and application of those provisions emerges from the reasons for decision of the Tribunal or the primary Judge.

23    The fundamental difficulty confronting Ms Arifin is that, no matter how the question is recast, no error emerges. The legal issues upon which the Tribunal founded its two decisions, and which were reviewed by the primary Judge, were within a far more limited compass than the legal issues which Ms Arifin now wishes to pursue.

24    An instance of a submission being advanced by Ms Arifin, or a question she now poses, which lacks any factual foundation is the submission in the document titled “Objections of Part of the Reasons for Judgment” that “Tribunal has appearance of bias…”. Her Outline of Submissions filed on 11 April 2014 address alleged irregularities in respect to the non-return of documents and goes on to state in part (without alteration) as follows:

Why there is no intention from Tribunal and Court to disclose this big bundle case? Contrary of that, Tribunal infact Returned all the bundles to Fatwidah? What happened? And why also Judge Katzmann did not asked this acted in the hearing on 30 October 2013? Or whether there was of appearance of bias from the Court to the Appellant?

The same document also raised questions as to fraud (without alteration) as follows:

Appellant disputed that Tribunal has breached this point. Legislation S 5(2)… and ADJR Act 1977 and Court doesn’t want to determined it? The decision that Tribunal made was affected by “fraud”, fraud from Medical Certificate dr Brenda McPhee, fraud from Job Assessment Report from Centrelink. Proofs of “fraud” itself is Real, wrong informations about “delution” in medical certificate’s dr Brenda and in Job assessment Report. Appellant will dispute for this, Tribunal’s decision for both appeal was affected by “fraud” as state in Law” The decision was induced or affected by “fraud” and for this Tribunal has breached S 5(1)(g) of ADJR Act 1977.

There is no basis upon which any submission could be sustained that the primary Judge’s decision was affected by any perception of bias or that the Tribunal decision was vitiated by fraud.

25    An instance of an argument or submission having no relevance to the issues resolved by either the Tribunal or the primary Judge is provided by the document titled “Objections of Part of the Reasons for Judgment”. That document states (inter alia) – and again without alteration: “… many of my rights has been abused, especially about Freedom of Informations so I couldn’t access any information or Law/Legislation from internet…”. The difficulties confronting an unrepresented party gaining access to relevant legislative provisions may readily be accepted. But any “abuse” of the rights of Ms Arifin cannot alter the date from which her disability support pension was paid or transform into a relevant “question of law” or “ground of review.” Another instance is provided by references in the same document to the medical condition of Ms Arifin and the alleged failure on the part of a medical practitioner to “give me Medical Certificate explained about diagnosis about my illness”.

26    Equally irrelevant to the issues resolved by the two Tribunal decisions is a document filed during the course of the hearing of the appeal and titled “Statement of Claim of Compensation”. The document quantifies Ms Arifin’s claim in a sum of $8,638,000. But any quantification of any claim for compensation is not a matter relevant to the first decision of the Tribunal; nor, in the absence of jurisdiction, could it assume any relevance to the Tribunal’s second decision.

27    Again by way of example, the Notice of Appeal refers to rr 1.31 and 1.32 of the Federal Court Rules 2011 and the power of the Court to “have regard to the nature and complexity of the proceeding” and the power to “make any order that the Court considers appropriate in the interest of justice”. Those Rules are said by Ms Arifin to be of importance because she has been “aggrieved by those orders”. Reference to those Rules may, in an appropriate context, assume relevance. But, taken by itself, a mere reference to those Rules fails to identify any “Ground of Appeal.”

28    It is neither necessary nor appropriate to canvass each of the submissions advanced by Ms Arifin either in writing or in her oral submissions. The issues relevant to the appeal were within a narrow compass.

Conclusions

29    The appeal from the decision of the primary Judge discloses no appellable error. The learned primary Judge was unquestionably correct in dismissing the appeals from the two decisions of the Administrative Appeals Tribunal and in dismissing the applications for judicial review of those two decisions.

30    A residual ground of concern should, however, be expressly mentioned. Unrepresented litigants pose unique problems for this and other courts. In the present proceeding, and as correctly noted by the primary Judge, the Notice of Appeal from the decisions of the Administrative Appeals Tribunal failed to identify any “question of law”. The Notice of Appeal from the decision of the primary Judge did not comply, inter alia, with r 36.01(2)(c) of the Federal Court Rules 2011 requiring an appellant to state “briefly but specifically, the ground relied on in support of the appeal”. Particularly in cases involving an unrepresented party, the Court looks beyond compliance with particular rules of court and seeks to address the substantive merit of the application before it. But in many cases it must necessarily be recognised that to do so places the unrepresented party’s opponent – and the Court itself – in a difficult if not invidious position. The opponent can be easily prejudiced and impressions can emerge as to the Court’s lack of impartiality. In resolving the present appeal, the Court has again engaged in the all too familiar process of seeking to ensure that an unrepresented party is not prejudiced – and again to the potential prejudice of the Respondent. Where an appeal is nevertheless dismissed, a Respondent may not wish to complain as to the ultimate result. But the risks of prejudice and the necessity to ensure that the Court is in all cases perceived as impartially administering justice cannot be dependent upon the lack of success on the part of an unrepresented party. Cases do occur where an unrepresented party is successful despite substantial non-compliance with rules of the court. It is respectfully considered that greater hesitation and caution may be required before too readily departing from requirements imposed by the Federal Court Rules 2011. Those Rules, after all, are there for the benefit of all parties and the public interest in ensuring the proper administration of justice.

31    Rather than the reasons for decision of the primary Judge disclosing any appellable error, those reasons disclose nothing other than a careful consideration of the arguments and issues advanced by Ms Arifin. The Respondent sought costs in the event that the appeal was dismissed. Any deficiencies in the Notice of objection to competency do not warrant any departure from the usual rule that costs should follow the event.

32    Although the legal representative for the Respondent made no application for any order amending the name of the Respondent, it is noted that the Respondents’ Notice of objection to competency and Outline of Submissions name the first two Respondents as the Secretary, Department of Social Services and Secretary, Department of Human Services. Liberty is reserved to the Respondent to seek within seven days an order to be made in Chambers amending the name of the Respondents as currently identified in the Notice of Appeal.

33    The appeal is to be dismissed with costs.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Notice of Objection to Competency is dismissed.

3.    Liberty is reserved to the Respondent to seek within seven days an order amending the name of the Respondent as named in the Notice of Appeal.

4.    The Appellant is to pay the costs of the Respondent.

Associate:

Dated:    27 May 2014