FEDERAL COURT OF AUSTRALIA

Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60

ORDERS

THE COURT ORDERS THAT:

1.    The Administrative Appeals Tribunal be removed as a respondent.

2.    The application be dismissed.

3.    The applicant pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

1    The applicant was a registered provider of aged care services under the Aged Care Act 1997 (Cth) (the Act) until 6 December 2019, when its registration was revoked. The revocation followed the confirmation, by an internal review process, of a decision made by a delegate of the Secretary of the Department of Health, which had been notified to the applicant on 8 August 2019.

2    The applicant filed an application for review of the delegate’s decision in the Administrative Appeals Tribunal (the Tribunal) on 10 December 2019. The review proceeding occupied six hearing days between March and June 2021. The Tribunal delivered its decision, affirming the decision under review, on 28 January 2022.

3    The present proceeding is an “appeal” from the decision of the Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Such an “appeal" may be brought on a question of law. Despite the statutory label “appeal”, determination of the proceeding involves an exercise of the Court’s original jurisdiction. It is in substance a species of judicial review, although any error of law on the part of the Tribunal may be sufficient to engage the Court’s remedial power under s 44: Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 (Haritos) at [62(7)]. It is not necessary for an applicant to identify an error going to jurisdiction: Haritos at [62(7)].

THE STATUTORY SCHEME

4    At the relevant time, registration as a provider of aged care services was provided for under the Act. The Act has since been repealed and substantially replaced by new provisions inserted into the Aged Care Quality and Safety Commissioner Act 2018 (Cth) (the ACQSC Act). It was common ground in the Tribunal and in this Court that the relevant version of the Act was the version in force immediately before 1 January 2020.

5    Division 8 of the Act, within Part 2.1, dealt with the process and criteria for becoming registered as an aged care provider. Section 8-1(1) provided as follows:

(1)    The Secretary must, in writing, approve a person as a provider of *aged care if:

(a)    the person (the applicant) makes an application under section 8-2; and

(b)    the Secretary is satisfied that the applicant is a *corporation; and

(c)    the Secretary is satisfied that the applicant is suitable to provide aged care (see section 8-3); and

(d)    the Secretary is satisfied that none of the applicant’s *key personnel is a *disqualified individual.

Note 1: Under Part 4.4, the Secretary may restrict a person’s approval as a provider of *aged care to certain *aged care services, or to certain care recipients.

Note 2: Rejections of applications are reviewable under Part 6.1.

6    Section 8-3 provided (relevantly) as follows:

(1)    In deciding whether the applicant is suitable to provide *aged care, the Secretary must consider:

(a)    the applicant’s experience in providing aged care or other relevant forms of care; and

(b)    the applicant’s demonstrated understanding of its responsibilities as a provider of the type of care for which approval is sought; and

(c)    the systems that the applicant has, or proposes to have, in place to meet its responsibilities as a provider of the type of care for which approval is sought; and

(d)    the applicant’s record of financial management, and the methods that the applicant uses, or proposes to use, in order to ensure sound financial management; and

(e)    if the applicant has been a provider of aged care—its conduct as a provider, and its compliance with its responsibilities as a provider and obligations arising from the receipt of any payments from the Commonwealth for providing that aged care; and

(f)     ny other matters specified in the Approved Provider Principles.

(2)    In considering a matter referred to in paragraph (1)(a), (b), (d), (e) or (f), the Secretary may also consider the matter in relation to any or all of the applicant’s *key personnel.

(5)    The Approved Provider Principles may specify the matters to which the Secretary must have regard in considering any of the matters set out in paragraphs (1)(a) to (f).

(6) ...

(7)    Paragraph 8-1(1)(d) and sections 10A-2, 10A-3 and 63-1A do not limit this section.

7    Division 10 of the Act was headed “When does an approval cease to have effect?”. Section 10-1 provided that an approval ceased to have effect, inter alia, if “the approval is revoked under section 10-3”. Section 10-3 was, relevantly, as follows:

(1)    The Secretary must revoke an approval of a person as a provider of *aged care under section 8-1 if the Secretary is satisfied that:

(a)    the person has ceased to be a *corporation; or

(b)    the person has ceased to be suitable for approval (see section 8-3); or

(c)    the person’s application for approval contained information that was false or misleading in a material particular.

Note 1: Revocation of approvals are reviewable under Part 6.1

Note 2: Approvals may also be revoked as a sanction under Part 4.4

(3)    Before deciding to revoke the approval, the Secretary must notify the person that revocation is being considered. The notice must be in writing and must:

(a)    include the Secretary’s reasons for considering the revocation; and

(b)    invite the person to make submissions, in writing, to the Secretary within 28 days after receiving the notice; and

(c)    inform the person that if no submission is made within that period, any revocation may take effect as early as 7 days after the last day for making submissions.

(4)    In deciding whether to revoke the approval, the Secretary must consider any submissions given to the Secretary within that period.

(5)    The Secretary must notify the person, in writing, of the decision.

(6)    The notice must be given to the person within 28 days after the end of the period for making submissions. If the notice is not given within this period, the Secretary is taken to have decided not to revoke the approval.

(7)    The Secretary must give effect to the revocation of the approval by:

(a)    giving the person one or more written notices (which the Secretary may give at different times) limiting, or further limiting, the approval to:

(i) one or more specified types of aged care; or

(ii) one or more specified *aged care services; or

(iii) one or more specified classes of care recipient; or

(iv) any combination of the above; or

(b)    giving the person a written notice revoking the approval altogether (whether or not the Secretary has already imposed any limitations under paragraph (a)).

A notice under this subsection may be given at the same time as the subsection (5) notice or at a later time.

(8)    …

8    It will be noted that at s 10-3(1)(b) attention was directed to s 8-3 for the purpose of determining whether a person “has ceased to be suitable for approval”, even though s 8-3 itself was framed in terms of suitability “to provide aged care”, and suitability to provide aged care was only one of the criteria for approval under s 8-1.

9    Another of the criteria for approval was that none of the applicant’s “key personnel” was a “disqualified individual”. “Key personnel” was defined by s 8-3A and relevantly included a person responsible for executive decisions of the entity, a person with influence over planning, directing or controlling the entity’s activities, and a person responsible for nursing services or day-to-day operations in an aged care service. “Disqualified individual” was defined by s 10A-1 and included an individual who was an insolvent under administration.

10    In addition to the process for revocation of an approval contained in s 10-3, the Act included in Part 4.4 provisions for the consequences of non-compliance with responsibilities imposed on aged care providers under other parts of the Act. Part 4.4 comprised a regime for the imposition of “sanctions”. There were provisions governing when sanctions could be imposed (Division 65), what those sanctions could comprise (Division 66) and detailed procedural provisions including for the giving of a notice of non-compliance (Division 67). Important aspects of Part 4.4, for the purposes of the arguments in the present case, were as follows:

(a)    the sanctions that could be imposed included “revoking or suspending the approved provider’s approval under Part 2.1 as a provider of aged care services” (s 66-1(a)) along with a range of other measures;

(b)    sanctions could be imposed by the Secretary if the provider had not complied with one of its relevant responsibilities (s 65-1(a)) and “the Secretary is satisfied that it is appropriate to impose sanctions on the approved provider” (s 65-1(1)(b)); and

(c)    the appropriateness of imposing sanctions was to be assessed according to criteria set out in s 65-2, which included the seriousness of non-compliance, whether it had occurred before, and whether it threatened the health, welfare or interests of care recipients (the last of these being specified as the Secretary’s “paramount consideration” by s 65-2(2) of the Act).

THE REASONING OF THE TRIBUNAL

11    Having referred to the statutory scheme (including, somewhat confusingly, certain of the provisions which had replaced the applicable legislation), the Tribunal framed the issue before it as follows (at [24]):

Section 10-3 of the Aged Care Act provides that the Secretary must revoke an approval of a person as a provider of aged care under section 8-1 if the Secretary is satisfied that “the person has ceased to be suitable for approval…”. The issue for the Tribunal to consider is whether the Applicant is suitable for approval. That consideration requires an assessment of the Applicant against the criteria contained in section 8-3(1).

12    The Tribunal then proceeded to consider each of the matters set out in s 8-3(1) under a series of separate headings.

13    In relation to s 8-3(1)(a) (applicant’s experience in providing aged care or other relevant forms of care), the Tribunal referred to evidence concerning the applicant’s corporate structure and history and what it claimed was a long history of providing aged care. Letters of support had been provided, but the Tribunal refer to these as “mainly historic” and not dealing with the applicant’s current capacity to provide aged care. Also provided to the Tribunal were numerous certificates of persons apparently engaged by the applicant, together with police checks for some contracted workers. However, the Tribunal observed that “there is no comprehendible list of persons engaged by the Applicant showing their qualifications and whether or not they satisfied police checks” (at [30]).

14    The Tribunal noted that the applicant contended it had been a provider under the National Disability Insurance Scheme (NDIS). There was evidence to show that the applicant had obtained approvals required by the NDIS. However, those documents did not describe the quality of care provided and the Tribunal regarded them as not relevant for the purpose of s 8-3(1)(a).

15    In relation to the applicant’s experience in providing aged care, the Tribunal referred to evidence of Ms Yan Wu (who was, in substance at least, the main manager of the applicant) asserting, in effect, that the business was operating well and providing home care with no incidents of concern. This evidence was pitched at a very general level, and it is apparent from observations elsewhere in the Tribunal’s reasons that the Deputy President had reservations about the reliability of Ms Wu.

16    The Tribunal concluded at [35]:

The lack of reliable evidence in regard to this consideration [being the applicant’s experience in providing aged care] leaves the Tribunal unable to make a conclusive finding. In the absence of compelling evidence, the Tribunal cannot be satisfied as to what level of experience the Applicant holds in providing aged care or other relevant services.

17    In relation to s 8-3(1)(b) (applicant’s understanding of its responsibilities), the Tribunal considered a series of allegations of breaches of the Quality of Care Principles 2014 (Cth) (the Quality of Care Principles). Those principles were made by the Minister under s 96-1 of the Act and their content defined, in part, the responsibilities of approved providers under the Act (see, e.g., s 54-1(1)(a), (h)). The allegations were contained in a Final Quality Review Report (the Quality Review), on which the respondent relied, and were said to show that the applicant had failed to demonstrate an understanding of its responsibilities as a provider of home care services.

18    The first issue concerned standards relating to effective management, which Part 1 of Schedule 4 to the Quality of Care Principles divides into eight “matter indicators”: corporate governance, regulatory compliance, information management systems, community understanding and engagement, continuous improvement, risk management, human resource management and physical resources.

19    In relation to corporate governance, the Tribunal considered that the Quality Review established that the applicant was “unable to demonstrate an organisational structure, a system for strategic or business planning, nor a transparent and accountable system to manage Home Care Package (HCP) budgets” (at [39]). No self-assessment had been provided in response to a request for such a document in September 2018.

20    At this time, Ms Wu advised the Department that the applicant was now registered in her sister’s name (Ms Bing Wu) although Ms Bing Wu appeared to have no role in the management or governance of the company. Ms Wu told the assessors on 27 September 2018 that she was responsible for the company’s corporate and business activities. However, “no governance structure existed which would have provided oversight of the operational management of the company and to ensure that the services provided were accountable to stakeholders" (at [40]). The Tribunal concluded that Ms Wu “could not state what governance structures existed for the Applicant but claimed that her computer contained all the required information. However, during an interview Ms Wu experienced difficulty in finding and producing some of the documentation on her computer at the assessment” (at [42]). The Quality Review also recorded feedback from care recipients or their representatives indicating that they did not feel the services provided by the applicant were well-managed.

21    The “finding” recorded by the Tribunal was that “the applicant is unable to demonstrate that it possesses corporate governance processes, that they are effectively implemented, nor that they are sufficiently accountable to stakeholders". In the Tribunal’s view, “the Applicant fails to satisfy this matter indicator” (at [44]).

22    Turning to regulatory compliance, the Tribunal referred to three aspects of the evidence before recording a “finding” as follows (at [49]):

the evidence establishes that the Applicant did provide monthly accounts to its clients but that such accounts were not in a comprehensible form and did not provide accessible information. Clause 7 of the Charter of Care Recipients Rights and Responsibilities – Home Care provides that each recipient has the right “(b) to receive invoices that are clear and in a format [that is] understandable”. In respect of unspent funds, the Applicant has provided an “Unspent Funds Transfer Form” for use where a transfer of providers occurs. However there is no evidence that such forms have been utilised.

23    Turning next to information management systems, the Tribunal recorded the respondent’s claim that the applicant’s information management systems could not be easily understood, information on the My Aged Care portal was inaccurate, and the accounting system for managing budgets was not transparent or verifiable. The “finding” on this issue occupied six short paragraphs ([52]-[57]). In summary, they provided as follows:

(a)    Only Ms Wu could operate the computer system to locate files and records, the electronic files were not clearly named, and there was no evidence of secure storage and backup.

(b)    Upon request in September 2018, Ms Wu could not produce certain key documents.

(c)    Information for the applicant on the My Aged Care portal was inaccurate and potentially misleading.

(d)    There was no evidence of a transparent accounting system, registers to monitor currency of staff certifications, or a system to record care and progress notes.

(e)    The respondent claimed there was no continuous improvement plan, but the applicant produced a document which “purported to satisfy this requirement”. The applicant did have a system of recording information management details of each care recipient.

(f)    A number of complaints from care recipients and representatives were of no relevance to the issue of information management.

24    The next indicator considered was community understanding. The respondent accepted that this requirement was satisfied (at [59]).

25    In relation to continuous improvement, the Tribunal noted again that the applicant had produced documents which were said to constitute a continuous improvement plan. It concluded that “these documents clearly did not comprise a specific policy. Nor was there any evidence of any system for care recipient complaint reporting and action” (at [62]).

26    Next, as to risk management, the respondent claimed that the applicant had not provided evidence of a framework for risk management. The applicant relied on a document entitled “Governance – Risk Management”, which the Tribunal noted was current on 31 March 2020 and had been last edited on 19 August 2019. Some doubt was expressed as to whether the policies contained in the document existed at the time of preparation of the Quality Review Report. The Tribunal found (at [65]):

This document would appear to satisfy this requirement, by providing a framework for risk to be encountered by the Applicant in the delivery of its services. However, there is no governance body nominated to oversee such a system although the policy makes provision for management to be reporting to such a body. There is no evidence that such a body has been used or referred to.

27    As to human resource management, the respondent alleged that the applicant had no system for the safe delivery of care and services to care recipients. It was claimed that no registers were maintained to ensure that staff were appropriately certified; nor was there any evidence of minimum qualification requirements for workers or “pool staff”. Workers were said to be recruited for their language proficiencies or cultural backgrounds. There was no provision for support staff to cover the managing director’s responsibilities if she was absent.

28    The Tribunal’s “finding” referred to two forms that the applicant had produced and concluded that “the specific requirements referred to in the Quality Review have been met by the Applicant” (at [70]).

29    The final indicator on this issue was described as physical resources. The respondent accepted that the applicant satisfied this requirement (at [72]).

30    The next issue traversed by the Tribunal, still under the heading “applicant’s understanding of its responsibilities”, concerned allegations regarding the Accountability Principles 2014 (Cth) (the Accountability Principles). The Accountability Principles were also made by the Minister under s 96-1. They gave content to some of the responsibilities of approved providers under Division 63 of the Act.

31    The Tribunal recorded a contention by the respondent that the applicant had failed to comply with certain clauses of the Accountability Principles because it failed to provide the Secretary with its aged care financial report within four months of the end of the financial year. No sanction action had been taken in relation to this breach. However, the respondent contended that the Tribunal was entitled to consider it for the purposes of determining the applicant’s suitability to provide aged care.

32    The applicant acknowledged that it had failed to provide accounts within the requisite period despite receiving reminders. This was apparently “because it operated a cash accounting system and it was waiting for a statement from the Department of Human Services before it was able to provide the accounts”. The failure in this regard related only to one financial period. The Tribunal therefore did not regard this breach as having any serious consequences in itself, although “it does form part of the overall pattern of the Applicant’s non-compliance with its obligations” (at [74]).

33    The respondent asserted that the applicant had “knowingly failed” to ensure that its employees obtained and maintained current police certificates as required by the Accountability Principles. The Tribunal referred in this connection to evidence concerning one staff member, who had been reminded in September 2018 that she had not provided a first aid certificate and national police check. At this time, the staff member had already been working for a month. Three months later, Ms Wu sent the staff member another reminder. The required documents were not provided for another month, and “despite this, the staff member was still allowed to work” (at [76]). The Tribunal found at [77] that there was “a clear breach by the Applicant of the requirement to ensure that an employee had obtained a current police check before commencing work”.

34    The next issue concerned allegations regarding the User Rights Principles 2014 (Cth) (the User Rights Principles), a further set of principles promulgated by the Minister under s 96-1. These principles give content to some of the responsibilities of approved providers in relation to quality of care under Division 54 of the Act.

35    The respondent asserted that the applicant had not complied with provisions in the User Rights Principles requiring it to provide the Department of Health with pricing information for its services. In a letter dated 13 March 2019, the applicant said that it was its understanding that, from 1 April 2019, there would be “a set pricing for all the providers” and that it had therefore informed all its clients that its pricing would be changed in accordance with the Department’s pricing. However, the Tribunal found that “the information provided was pro forma pricing, in some cases published by the NDIS. It did not reflect the prices necessarily to be charged for the services to be provided by the Applicant and was accordingly deficient” (at [79]).

36    It was also asserted that the applicant had not complied with provisions requiring it to provide care recipients with monthly statements of available funds and expenditure. Monthly statements either were not provided, failed to include required details, or were not “clear and understandable”.

37    The Tribunal found at [81] that the applicant did provide monthly statements to its clients, but that the statements “were virtually incomprehensible and it is not possible to discern whether a surplus or deficit remains in a care recipient’s account”. It disagreed with a suggestion by Ms Wu that, if the statements were not clear and understandable, it was the responsibility of the client to seek clarification.

38    The Tribunal next turned to the question of key personnel, noting the definition of that expression in s 8-3A of the Act. It concluded at [84] that the evidence clearly established that Ms Wu was the person who had had the day-to-day conduct of the applicant’s business. It then noted that Ms Wu had been declared bankrupt on 1 May 2018 and discharged from bankruptcy on 26 March 2020. On this basis Ms Wu had been, for “a substantial portion of time”, a “disqualified person” within the meaning of the Act.

39    In response to a notice to give information under s 9-2 of the Act issued in March 2019, the applicant had advised that Ms Wu was not a current director. A letter to the respondent from Christian Fox, Audit and Assurance dated 4 October 2019 acknowledged that Ms Wu had “from time to time” purported to communicate on behalf of the applicant and asserted clinical responsibility. The letter said (presumably on behalf of the applicant) that this conduct was “not acceptable” and “robust action has been taken to prevent further instances”. However, in the Tribunal’s view, the evidence showed Ms Wu to have “continued to act despite such assurances”. She claimed that the statements concerning her participation in the applicant’s affairs were written without her knowledge or authority, and she did not agree with them (at [88]). A resume provided by Ms Wu said that during her bankruptcy she did not act as a director, but as “GM”; however, the duties listed for the two positions were in the Tribunal’s view identical.

40    The Tribunal also noted that, upon becoming bankrupt, Ms Wu had transferred her shares in the applicant to Ms Bing Wu, “thereby suggesting that Ms Wu was divesting any control over the applicant in favour of her sister”. However, when the respondent carried out assessments, Ms Bing Wu did not attend and Ms Wu provided instructions. Ms Wu had signed various emails to the respondent as “manager”, stating later that she had forgotten to change the name on the signature block to that of Ms Bing Wu. In an email sent in April 2019, in response to a notice issued under the Act, Ms Wu had stated that no key personnel of the applicant were disqualified. That, in the Tribunal’s understanding, was sent at a time when Ms Wu was herself bankrupt and also purporting to act as key personnel (at [94]).

41    In her statements to the Tribunal, Ms Wu said that during the period of her bankruptcy she had worked voluntarily and claimed no income for her aged care work. She said she had removed herself as a director of the applicant. She said that her sister Ms Bing Wu had acted as managing director during this period and that she had no involvement other than in a voluntary capacity. However, it emerged that Ms Bing Wu had at all times held part-time employment as a teacher (at [97]-[98]).

42    The Tribunal thus found that Ms Wu had conducted herself as a principal of the applicant while she was bankrupt; and that, by doing so, she contravened s 10A-2 of the Act (at [99]).

43    It was also asserted against the applicant that, in contravention of s 8-3A(3) of the Act, Ms Wu had acted as one of the key personnel of the applicant and taken responsibility for nursing services at a time when she did not hold a current qualification in nursing. Ms Wu claimed that she was not responsible for nursing services and that a Ms Chan Nguyen performed that role. Material before the Tribunal indicated that Ms Nguyen had been engaged on 18 April 2019.

44    Ms Wu claimed that Ms Nguyen had commenced with the applicant in 2015, although the records tendered to support this assertion were unsatisfactory. There was also no evidence that Ms Nguyen was a registered nurse at relevant times. The Tribunal observed that, at times when Ms Nguyen was not engaged by the applicant, the only person who could have been responsible for nursing services was Ms Wu (who did not have a current qualification). However, the Tribunal considered that the evidence was inconclusive. At [105], it concluded that it was not able to find that Ms Wu was acting as director of nursing of the applicant prior to the engagement of Ms Nguyen.

45    The respondent also contended that the applicant’s response to complaints by care recipients and requests for further information in respect of alleged non-compliance demonstrated that it did not understand its responsibilities. It referred to several disparate matters under this rubric, including writing to the responsible Minister to complain about the Quality and Safety Commission’s (the Commission) conduct, failing to provide a continuous improvement plan, failing to attend or cutting short assessment appointments and deleting or failing to provide relevant information. The Tribunal made findings on these disparate matters (at [106]).

46    The next factor considered was that referred to in s 8-3(1)(c) (systems that the applicant has or proposes to have in place to meet its responsibility as a provider). Relying on the matters canvassed in relation to s 8-3(1)(b), the respondent alleged a long history of non-compliance which showed that the applicant did not have adequate systems in place to meet its responsibilities. It was noted that the applicant “acknowledged that it had deficiencies in ‘ongoing clinical and administrative management’” (at [108]). The Tribunal then considered the adequacy of the applicant’s management systems in various more detailed respects. It recorded the following conclusions:

(a)    there was no evidence that a new continuous improvement plan had been utilised (at [113]);

(b)    there was a document entitled “governance – consumer care risks" which identified potential risks to the applicant’s operations (at [114]);

(c)    there was no evidence of any incident register or complaints and feedback register, nor was there a register to monitor currency of staff certifications (at [115]);

(d)    there was evidence of at least two incidents in which the applicant had attempted to backdate documents, which was inappropriate (at [116]-[121]);

(e)    there was evidence that the applicant had provided inadequate care to a particular client, and an apparent finding that a letter from the client, stating that the applicant had done "a good job", was not genuine (at [122]-[124]);

(f)    there were insufficient particulars of an allegation that the applicant had impeded the investigation of complaints by failing to engage with the respondent (at [126]);

(g)    the evidence demonstrated a lack of cooperation between the applicant and the respondent, with the applicant’s conduct being misleading in many instances including in relation to care recipients (at [128]-[130]);

(h)    staff training had been inadequate (at [131]);

(i)    effective management practices did not exist – for example, there was no evidence that the applicant maintained a risk management plan, incident register, complaints and feedback register or registers to monitor currency of staff certifications (at [132]);

(j)    the applicant did not have adequate systems to oversee the care of clients or the management of their packaged funds in accordance with its responsibilities under Parts 4.1 and 4.2 of the Act (at [133]);

(k)    the applicant had failed to take any positive action to address its non-compliance (at [134]-[135]).

47    The Tribunal then turned to the consideration in s 8-3(1)(d) (the applicant’s record of financial management, and the methods that the applicant uses to ensure sound financial management). At [137], the Tribunal said that it relied on what it had previously said on the issues of non-compliance with the Accountability Principles and the User Rights Principles in connection with s 8-3(1)(b). However, it referred to the following examples of particular relevance to 8-3(1)(d) of the Act.

(a)    Upon learning that a particular client (Ms L) wished to dispense with the applicant’s services, the applicant debited her account for the amount of $1,000 in order to indemnify it in anticipation of having to engage lawyers to defend a legal claim. There was evidence of other debits to that client’s account in relation to communication with the Commission about her case. Ms Wu claimed that she was entitled to make such debits for the work she had done. The Tribunal did not accept this assertion. No claim was ever made and legal advice was not required. Further, "irrespective, such charge and the other charges were unauthorised and were not for a proper purpose” (at [141]).

(b)    The applicant spent "packaged funds” of a client (Mr RL) totalling $16,550.69 on a cruise holiday which was envisaged as being for the client, the client's daughter and Ms Wu. The client did not go on the cruise, and Ms Wu went with the client’s daughter. The applicant then intended to suspend its services to the client in the following months, to recoup the amounts that had been expended. In cross-examination, Ms Wu saw no problem with these actions. She apparently maintained that the cruise was "assisted travel" which she could not refuse to undertake. The Tribunal concluded that no assisted travel was involved, and the cruise would not have qualified as "assisted travel” even if the client had not withdrawn. Expenditure of the client’s funds on a cruise was “contrary to the purpose for which such funds were provided and clearly does not demonstrate sound financial management” (at [146]).

(c)    The Tribunal rejected an allegation of misuse of packaged funds of a third client (Ms F) (at [148]).

(d)    In relation to another client (Ms DV), the Tribunal found that excessive and unjustified charges were debited to her account totalling $650. The Tribunal rejected Ms Wu's view that these charges were justified (at [151]-[153]).

(e)    The applicant had said in correspondence to the respondent that it planned to seek professional advice from outside experts in relation to its financial management deficiencies. The respondent submitted that little weight could be given to this assertion, as such assistance had been sought only belatedly and there was no evidence of any actual advice or recommendations having been received. The Tribunal agreed. It also noted at [157] that the applicant had not complied with a specific obligation under the Act to submit an Aged Care Financial Report.

(f)    It was claimed by the respondent that the applicant had failed to provide monthly statements to clients. The Tribunal found that monthly statements had been provided, but that they were "not understandable for recipients” and the applicant had therefore breached the User Rights Principles (at [158]). The applicant had also failed to comply with an obligation to provide the Secretary with, or publish, pricing information (at [159]).

(g)    The Tribunal described the applicant as having refused to accept responsibility for any shortcomings (at [160]). It made a general finding at [161] that the applicant had failed to meet its financial reporting obligations and to manage funds appropriately.

48    The final set of issues considered by the Tribunal related to s 8-3(1)(e) (compliance by the applicant with its responsibilities as a provider). The applicant was alleged to be "non-compliant under this paragraph” as a consequence of the various matters discussed under the previous paragraphs. The Tribunal addressed certain specific contentions raised by the respondent in addition to that general submission.

(a)    It was asserted that the applicant had knowingly failed to meet its responsibilities to ensure that employees had national police checks. This was established in relation to at least one employee (at [169]).

(b)    It was alleged that the applicant had continued to enter into home-care agreements with care recipients after the revocation of its approval. The Tribunal noted two cases in which it was satisfied that the applicant had asked care recipients to sign backdated documents after its approval had been revoked. In one case, Ms Wu had threatened an elderly care recipient with court proceedings. The applicant’s conduct in this respect was "inappropriate” (at [171]).

(c)    A further example of “inappropriate conduct for a service provider” was writing a threatening letter to a care recipient who wished to terminate their agreement with the applicant (at [173]).

49    Under the heading “conclusion”, the Tribunal summarised its reasoning as follows.

50    First, despite Ms Wu's considerable experience in providing aged care, the Tribunal concluded that she had demonstrated an inability to accept the requirements which were necessary for a provider under the Act. Until the applicant, through Ms Wu as its executive, acknowledged the necessity to observe and comply rigidly with the requirements (and did so), the applicant was not fit to be a provider (at [174]).

51    Second, the applicant had failed to meet its requirements in respect of more than one regulatory criterion. In particular, it had failed to demonstrate an understanding of its responsibilities as a provider of aged care. This was demonstrated by the applicant’s "extensive pattern of non-compliance" (at [177]).

52    The Tribunal thus concluded, at [178], that the applicant failed to satisfy “the requirements under section 8-3(1)(a)-(e) and has ceased to be a person suitable for approval as an aged care provider”. Section 10-3 of the Act required revocation of approval in such circumstances; and the decision under review was therefore affirmed.

THE GROUNDS OF APPEAL

53    The proceedings in this Court were instituted on 24 February 2022. By its amended notice of appeal filed on 3 February 2023, the applicant advanced seven grounds of appeal. (A further amended notice of appeal was filed after the hearing, with the consent of the respondent, specifying the questions of law said to arise in order to comply with rule 33.12(2)(b) of the Federal Court Rules 2011 (Cth) (the Rules). It did not make any change to the grounds.)

54    Ground 1 alleged that the Tribunal erred by finding that it was required to consider only the matters set out in s 8-3(1) of the Act and not proceeding in accordance with ss 65-1, 65-2 and 66-1 and Division 67.

55    Ground 2 alleged that the Tribunal erred by imposing a sanction that was unrelated to the objects of the Act and disproportionate to the breaches found.

56    Ground 3 alleged that the Tribunal erred by applying s 63D(2) of the ACQSC Act (equivalent to s 8-1 of the Act), rather than s 63J (equivalent to s 10-3) in assessing whether approval should be revoked.

57    Ground 4 alleged that the Tribunal erred in 20 identified paragraphs of its reasons by placing an “evidential onus of proof” on the applicant.

58    Ground 5 alleged that the Tribunal erred in 48 specified paragraphs of its reasons by failing to give adequate reasons.

59    Ground 6 alleged that the Tribunal erred in 52 specified paragraphs of its reasons by making “findings that were unsupported by the evidence”.

60    Ground 7 alleged that the Tribunal erred by making “contradictory findings” as to the applicant’s experience in the provision of aged care services.

GROUND 1: REVOCATION UNDER S 10-3 AND SANCTIONS UNDER PART 4.4

61    Ground 1, as particularised and then developed in the submissions, appeared to have two aspects. One, essentially factual, was that the decision made on 8 August 2019 was part of a “chain” of decisions and the culmination of a process that had been commenced and carried out under Part 4.4 of the Act. The other was that, as a matter of statutory construction, the power to revoke the applicant’s registration arose, at least in part, under s 66-1 of the Act; and consideration of the appropriateness of the revocation decision was therefore governed by ss 65-1 and 65-2 and Division 67.

62    The factual aspect does not lead anywhere. We accept that a process envisaged as leading to a decision under Part 4.4 of the Act commenced with a Notice of Non-Compliance issued under s 67-2 of the Act on 11 April 2019, advising that the delegate may impose sanctions on the applicant. That notice set out details of alleged non-compliance, invited written submissions, and referred to actions that might be taken under provisions of Part 4.4. Subsequently, a delegate of the Minister issued a Notice of Intention to Impose Sanctions under s 67-3 on 3 May 2019. That notice set out at some length the non-compliance which the delegate had found and the sanctions that were in contemplation (including revocation or suspension of approval under s 66-1). This tells us that a process was commenced under Part 4.4, but says nothing in itself as to whether the ultimate decision made on 8 August 2019 was a lawful exercise of the power in s 10-3 of the Act. It was the lawfulness of that decision, and not the preceding notices, which was in question before this Court. That question depends on compliance with requirements found in Division 10. The content of those requirements is not, of course, affected by any officer’s understanding from time to time of the process being followed.

63    The process commenced under Part 4.4 does not appear to have led to anything purporting to be a notice under s 67-5 of the Act of a decision whether or not to impose sanctions. We were informed by counsel for the respondent that there was no such decision. Conceivably, mandamus might have been available to compel such a decision to be made depending upon the circumstances. It does not follow, however, that the decision made on 8 August 2019 must be taken to have been made under Part 4.4 and not under Division 10.

64    It is apparent that, at some point, the officers involved in considering the applicant’s non-compliance reached a view that consideration should be given to whether the applicant remained suitable for registration, leading to a possible exercise of power under s 10-3. On 13 June 2019 a notice was issued to the applicant headed “Consideration of Revocation of Approved Provider Status – s 10-3 Aged Care Act 1997”. The notice of the primary decision, dated 8 August 2019, also expressly invoked s 10-3 and not the provisions of Part 4.4. At the end of its explanation of the delegate’s reasoning, that document said:

I am therefore satisfied that you have ceased to be suitable for approval as a provider of aged care. Accordingly, I am required pursuant to section 10-3(1)(b) of the Act to revoke your approval as a provider of aged care under the Act and hereby notify you in accordance with section 10-3(5) of the Act of my decision to revoke your approval as a provider of aged care.

65    There can therefore be no doubt as to the power that the delegate understood himself to be exercising. The process leading to this decision may be said in a practical sense to have grown out of the earlier process begun under Part 4.4, in that much of the documentary material referred to by the delegate was material that had been obtained or generated in the earlier process. However, that does not mean that the earlier process affected the character of the ultimate decision in any legal sense.

66    Turning to the issues of statutory construction, the applicant submitted that the process of reaching the state of satisfaction referred to in s 10-3(1) of the Act was required to accord with the terms of the Act as a whole. Therefore, the argument ran, where consideration of whether that state of satisfaction was reached depended on identifying and assessing non-compliance with the provider’s obligations under the Act, the protections of Part 4.4 (which applied to the imposition of sanctions for non-compliance) were engaged. The consequence was said to be that revocation of a provider’s approval on the ground of such non-compliance could be imposed only after a process that complied with Division 67, and only after the Secretary had given consideration in accordance with s 65-2 to whether it was “appropriate” to impose a sanction in the form of revocation.

67    The submission had two bases, one textual and one contextual.

68    The textual point is that s 66-1(a) referred, as one of the “sanctions” that might be imposed on a non-complying provider, to “revoking or suspending the approved provider’s approval under Part 2.1 as a provider of aged care services”. It was submitted that s 66-1(a) treated revocation under Part 2.1 (ie, under s 10-3) as a species of “sanction” under Part 4.4 and thereby brought into play the procedural and other requirements of that Part.

69    This submission should be rejected. It sits uneasily with aspects of the structure of the Act, which will be mentioned shortly. More particularly, it does not accord with a proper analysis of the text.

70    The submission involves reading the words “under Part 2.1” in s 66-1(a) as qualifying the reference to “revoking” (that is, under s 66-1(a), the Secretary may impose a “sanction” of revocation “under Part 2.1” of the Act). However, if that is the correct reading, the words “under Part 2.1” must not only qualify the expression “revoking”; they must qualify the compound expression “revoking or suspending”. That reading of the text cannot be maintained. Whilst there was a power to “revoke” in Part 2.1, there was no power to “suspend” under that Part; the only power in the Act to “suspend” a provider’s approval was contained in s 66-1 itself. Additionally, if the words “under Part 2.1” qualified “revoke”, their placement within the paragraph could at best be said to be idiosyncratic: they interrupted, for no apparent reason, the expression of a key concept “approval … as a provider of aged care services”.

71    The correct reading of s 66-1(a) is that the words “under Part 2.1” attached to the phrase within which they were located, and qualified “approval … as a provider of aged care services”. In other words, s 66-1(a) made the revocation or suspension of the approval granted under Division 8 (which is in Part 2.1) available as a potential sanction under Part 4.4. It did not sweep the (textually self-contained) power of revocation in s 10-3 into the basket of sanctions available under Part 4.4.

72    The contextual argument was that, if the power in s 10-3 is understood to have been distinct and self-contained, the protections conferred on providers by Part 4.4 would be avoided in cases of the potential imposition of the most serious of sanctions – revocation of their approval. There are three answers to this argument.

73    First, although the modern approach to statutory construction calls for attention to context in the first instance and does not require any preliminary identification of ambiguity (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ)), the role of context is to assist in understanding the meaning of the statutory text (Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). The words of a provision are not to be given a meaning that they cannot reasonably bear. Construing the relatively clear specification in s 10-3 of the circumstances in which the duty of revocation arises, so as to have the result that revocation could only occur in accordance with Part 4.4, would involve more than straining the statutory language. There is no room, on any ordinary English reading of the section, for such a construction.

74    Secondly, there are textual indications directly to the contrary of the applicant’s argument. Section 10-1(1), which set out circumstances in which an approval as a provider of aged care would cease to have effect, listed revocation under s 10-3 and revocation under Part 4.4 separately, in different paragraphs, thereby strongly indicating an understanding that they were separate processes. Imposition of a sanction under s 66-1 was, according to the terms of that section, discretionary (and subject to an assessment of whether sanction was “appropriate”, involving consideration of various factors listed in s 65-2(1)); whereas s 10-3 was cast in mandatory terms, requiring revocation where the Secretary was satisfied of matters which by their nature made continuing approval inappropriate (relevantly here, ceasing to be suitable for approval). This construction is also consistent with the second notation to s 10-3 which provided that “[a]pprovals may also be revoked as a sanction under Part 4.4” (emphasis added). Specifically, the use of the adverbial “also” indicates that revocation under s 10-3 and revocation under Part 4.4 are conceptually distinct processes.

75    Thirdly, the difference in the protection afforded to approved providers under Division 10 and Part 4.4 was not so stark as to suggest that Parliament must have intended the latter to supplement the former. In terms of substance, the trigger for revocation under s 10-3(b) (an evaluative judgement that the person had ceased to be suitable for approval) was not dramatically different from the discretionary judgement required by ss 65-2 and 66-1(a) (that a proposed sanction – relevantly, revocation – was appropriate). In terms of procedural protection, s 10-3(3) required written notice that revocation was being considered, including reasons for that consideration and an invitation to make written submissions (which the Secretary was required to consider: s 10-3(4)). Division 67 set out a two-stage notification process for the imposition of sanctions, involving a notice of non-compliance followed (potentially) by a notice of intention to impose sanctions (see s 67-1). However, those two stages (and the alternatives at the second stage, including a notice to remedy the non-compliance) reflected the broader range of potential outcomes under Part 4.4. Section 10-3 contemplated only two possible outcomes (revocation or no action), so that the need for a second notice detailing proposed sanctions was not apparent.

76    There is therefore no sufficient basis for reading s 10-3 otherwise than according to its terms. The Tribunal did not err by treating the issues before it as whether, by reference to the factors set out in s 8-3, the applicant had ceased to be suitable for approval as a provider of aged care services.

GROUND 2: THE EVALUATIVE EXERCISE AND THE OBJECTS OF THE ACT

77    Ground 2 alleges that “the sanction imposed by the reviewable decision was unrelated to the objects of the Act and disproportionate to the breaches as found”.

78    As to the first of those propositions, the applicant’s written submissions relied on statements by the Tribunal in Marnotta Pty Ltd v Secretary, Health and Ageing [2005] AATA 426 (Marnotta). Marnotta was a case involving the imposition of sanctions under Part 4.4, and reliance on that decision (together with the framing of the ground of appeal) indicates an assumption that the approach to construction of the Act relied on by ground 1 is the correct one. That assumption is unwarranted for reasons set out above.

79    The written submissions then accused the Tribunal of employing a “mechanical ‘tick-box’ approach” of identifying alleged breaches, without engaging with how and why such breaches should justify revocation. Two short points should be made about this. First, the overwhelming majority of “breaches” identified by the Tribunal were more than “alleged”. They were found to have occurred. The present appeal is limited to questions of law, and the Court is not asked by the notice of appeal to make any findings of fact (cf r 33.12(2)(c) of the Rules). Secondly, the Tribunal did not simply list breaches of regulatory requirements. It identified an “extensive pattern of non-compliance”, which showed a lack of understanding of the applicant’s responsibilities, and a lack of acceptance by the applicant of the need for compliance; and it thus concluded, by reference to the factors referred to in s 8-3(1), that the applicant had “ceased to be a person suitable for approval”. This reasoning explicitly addressed the relevant statutory test.

80    In oral submissions senior counsel for the applicant submitted that, if s 10-3 was “self-contained”, the decision-maker was nevertheless required to consider the objects of the Act in making the assessment that the provision required.

81    No authority was referred to for the proposition that the matters set out in the objects clause of the Act (s 2-1) were, ipso facto, mandatory relevant considerations in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42 (Mason J).

82    A broadly stated proposition in the terms proposed by the applicant seems unlikely to be correct, if only because some of the objects set out in s 2-1 concern matters unrelated to suitability for approval, while others are so broadly stated that their invocation provides little assistance.

83    Clearly, the stated objects of the Act form part of the context in which ss 8-3 and 10-3 are to be construed, and may legitimately inform understanding of the expressions used in those provisions. However, it does not follow that that those objects were required to be weighed by decision-makers. Nor does it follow that the statutory objects give rise to any particular “purpose” for which the power in s 10-3 was to be exercised. While the purported exercise of a true discretion might well be approached by reference to the “purpose” for which the power is conferred (as in, eg, Minister for Immigration v Li [2013] HCA 18; 249 CLR 332 at [83]-[85] (Hayne, Kiefel and Bell JJ)), s 10-3 imposed a duty to revoke a provider’s registration once a state of satisfaction was reached as to a specified criterion. The criterion called for an evaluative judgment, but that judgment was required to be reached by reference to the five matters referred to in ss 8-3(1)(a)-(e) together with any other matters specified in the Approved Provider Principles 2014 (Cth) (s 8-3(1)(f)). It was not contended that the Tribunal had misinterpreted any of the provisions in s 8-3(1), or misunderstood the test of suitability for the purposes of s 10-3, by failing to construe them in the light of the statutory objects.

GROUND 3: RELEVANCE OF MS WU’S BANKRUPTCY

84    Ground 3 alleges that the Tribunal “applied the incorrect section” and refers to the Tribunal having applied s 63D(2) rather than s 63J of the ACQSC Act. This framing of the alleged error, like the Tribunal’s reasons at [20], is somewhat confusing. As the Tribunal was aware (and as is common ground), the provisions of the ACQSC Act were not applicable to the issues before it. In the operative parts of its reasons the Tribunal referred, correctly, to relevant provisions of the Act.

85    It emerged in argument that the real issue sought to be agitated was the relevance of Ms Wu having been bankrupt. How this intersects with the citation by the Tribunal of provisions of the ACQSC Act remains, with respect, something of a mystery. The point arises by reference to the provisions of the Act that the Tribunal applied.

86    It is uncontroversial that, while she remained an undischarged bankrupt, Ms Wu was a “disqualified individual” as defined in s 10A-1 of the Act. Further, the Tribunal was satisfied (in a finding that is not challenged) that she was performing functions that made her one of the applicant’s “key personnel” within the meaning of s 8-3A.

87    Having a “disqualified individual” as one of its “key personnel” was an express barrier to an entity becoming approved as a provider of age care under s 8-1 (see s 8-1(1)(d)). It was not, at least expressly, part of the test of suitability to provide aged care under ss 8-1(1)(c) and 8-3.

88    When one comes to the potential revocation of approval, s 10-3(1)(b) referred to the person no longer being “suitable for approval” (not “suitable to provide aged care”); however, the paragraph went on to say “(see section 8-3)”. There is thus a question whether or not having a disqualified individual as key personnel at the time when exercise of s 10-3 was being considered would require the entity’s approval to be revoked (on the basis that the entity did not meet the criteria for “approval” in s 8-1). However, that question does not arise in the present case. Ms Wu was no longer a “disqualified individual” at the time of the Tribunal’s decision (which is the relevant time: Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [29] (Kirby J), [101] (Hayne and Heydon JJ), [142]-[143] (Kiefel J (Crennan J agreeing))); and there is nothing in the Tribunal’s reasons to suggest that it regarded Ms Wu’s bankruptcy as sufficient in itself to require revocation of the applicant’s approval.

89    Instead, the Tribunal treated the fact that Ms Wu had continued to act as one of the applicant’s key personnel while she was a disqualified individual as relevant to its assessment of the applicant’s understanding of its responsibilities as a provider (s 8-3(1)(b)) and its conduct as a provider (including compliance with its responsibilities) (s 8-3(1)(e)). Ms Wu’s disqualification was at least prima facie relevant to those matters, given the express prohibition on an approved provider having a disqualified individual as one of its key personnel (s 10A-2, and see also s 10A-3).

90    The argument ultimately advanced by the applicant was that the fact of Ms Wu having been an undischarged bankrupt was not permitted to be taken into account for the purposes of s 8-3 (and therefore for s 10-3(1)(b)) because it was dealt with by s 8-1(1)(d). It was submitted that, if regard could be had to the disqualification of key personnel for the purposes of s 8-3 and thus s 8-1(1)(c), s 8-1(1)(d) would be rendered otiose.

91    That submission is rejected. First, it flies in the face of s 8-3(7), which expressly provided that “Paragraph 8-1(1)(d) … do[es] not limit this section”. Secondly, it is not correct that s 8-1(1)(d) is rendered otiose if disqualification of key personnel could be considered as a relevant factor under s 8-1(c). In the circumstance to which it applied (having a disqualified individual among a corporation’s key personnel at the time it seeks approval), s 8-1(1)(d) made that circumstance an absolute barrier to approval in its own right. Clearly, therefore, the paragraph had work to do even if that disqualification was also capable of being considered as one of the issues (but not an absolute determinant) going to the assessment of suitability under s 8-1(1)(c). Section 8-1(1)(d) does not provide a basis for inferring a legislative intention that disqualification of key personnel was not allowed to be considered by a decision-maker applying s 8-3.

GROUND 4: ONUS OF PROOF

92    Ground 4 focuses on paragraphs of the Tribunal’s reasons in which it refers to the applicant as having “failed to produce” evidence or documents, or “failed to demonstrate” its understanding of matters. Reliance was placed by the applicant on the principle, long established by authority, that the curial notion of onus of proof is unhelpful in administrative decision-making including in the Tribunal: see McDonald v Director-General of Social Security (1984) 1 FCR 354 (McDonald) at 357-8 (Woodward J); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at 164 [40] (the Court).

93    It was also suggested in written submissions that the applicant had “proved” its suitability for approval when it was approved (most recently in September 2016), and it was the respondent who “alleged” that the applicant was no longer suitable. Those observations are inclined to suggest that the respondent bore an “onus”, and in our view are also unhelpful. However, it is appropriate to note that s 10-3(1)(b) made it a precondition for revocation of approval that the decision-maker (relevantly, here, the Tribunal) be “satisfied” that the applicant had ceased to be suitable for approval. Provisions in that form have been taken to require the decision-maker to be “affirmatively satisfied” of the relevant matter (eg Minister for Immigration v Gill [2019] FCAFC 9; 268 FCR 575 at [16]). The Tribunal therefore needed to have some probative material before it, capable of engendering that state of satisfaction. (That does not mean that any party bore an onus of proof. Sufficiently persuasive material might be found in the documents required to be lodged by the original decision-maker under s 37 of the AAT Act.)

94    We are not persuaded that the parts of the Tribunal’s reasons, about which complaint is made, demonstrate the imposition of an “evidential onus” on the applicant.

95    In one instance (at [35]), the Tribunal evidently found the applicant’s evidence unsatisfactory and regarded itself as unable to make any conclusive finding. There was no error in that conclusion. The fact that the Tribunal needed to reach an overall state of satisfaction that the applicant had ceased to be suitable for approval did not mean that specific anterior propositions needed to be proved against the applicant.

96    In other instances, the Tribunal was drawing appropriate inferences based on which party was likely to be able to produce evidence of a particular kind, and from the fact that there had already been decision-making processes in which the applicant had been invited to submit relevant material. For example, to the extent that it was relevant to know whether the applicant had sound corporate governance structures (considered by the Tribunal at [38]-[44]) or systems to promote regulatory compliance (considered at [45]-[49]), or whether it understood its responsibilities as a provider under the Act (considered at [177]), it was natural to expect the applicant rather than the respondent to be in possession of the relevant material. It was also natural to assume that, if evidence on these matters existed, the applicant would have put it forward, either in response to the allegations of non-compliance made against it or in response to the notice served on it under s 10-3(3). In this regard, it was entirely appropriate for the Tribunal to give weight to the evidence (or lack thereof) according to the capacity of each party to adduce that evidence and doing so does not mean that the Tribunal wrongly imposed an evidential standard of proof: Millar v Commissioner of Taxation [2015] FCA 1104 at [52] (Griffiths J); McDonald at 358 (Woodward J); see also generally as to the relevance of the common law rules of evidence as a guide in many instances to administrative tribunals, Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; 226 FCR 555 at 579 [93] – 580 [97] (Flick and Perry JJ).

GROUND 5: ADEQUACY OF REASONS

97    Ground 5 alleges that the Tribunal erred in law by failing to give adequate reasons. Significantly, no relief is sought requiring the Tribunal to remedy the alleged inadequacy in its reasons by the provision of adequate reasons; rather the ground is relied upon as a ground for setting aside the Tribunal’s decision in common with the other grounds.

98    The Tribunal was required to give reasons for its decision by s 43(2) of the AAT Act. Section 43(2B) further provides in relation to reasons given in writing:

(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

99    As framed and developed in the submissions, Ground 5 is a complaint that the Tribunal failed to comply with its obligation to give reasons for its decision; it is not a complaint that failure to consider a matter (or some other form of error) is to be inferred from the absence of reference to that matter in the reasons (cf eg, Minister for Immigration and Multicultural Affairs v Jusuf [2001] HCA 30; 206 CLR 323 at [5] (Gleeson CJ)).

100    In Dornan v Riordan (1990) 24 FCR 564 (Dornan) a tribunal was expressly required to give reasons for its decision and such reasons needed to comply with the requirements specified in s 25D of the Acts Interpretation Act 1901 (Cth) (which is relevantly similar to s 43(2B) of the AAT Act). It was held in that case that a substantial failure to comply with that requirement was an error of law, capable of leading to an order under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Different views have been expressed as to whether Dornan is good law and applicable to appeals under s 44 of the AAT Act, but the preferred view now appears to be that it is: see Wonson v Comcare [2020] FCAFC 76; 276 FCR 613 at [42] (Katzmann, Anastassiou and Abraham JJ). We therefore proceed on the basis that: (i) whether the Tribunal’s reasons comply with s 43(2B) is a question of law capable of being the subject of an appeal; and (ii) failure to comply with s 43(2B) is an error of law which is capable, in a s 44 appeal, of justifying an order setting aside the Tribunal’s decision.

101    Provision of reasons for a decision is conceptually distinct from the making of the actual decision, and it is the decision (not the reasons) that is the subject of judicial review: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; 253 ALR 263 (Central Aviation FCA) at [31] (Perram J) (an appeal from this decision was allowed in part, but this aspect of the reasoning was not doubted: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; 179 FCR 554 (Bennett, Flick and McKerracher JJ)) (Central Aviation FCFCA). Non-compliance with a duty to give reasons is therefore not an error of law that infects the decision itself (although it may provide a basis on which to infer the existence of error in the decision), and would (at least ordinarily) not be regarded as jurisdictional. Because the order that the Court makes under s 44(4) must appropriately relate to the error of law that it has found (Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209, 220 (Sheppard J)), some attention is therefore needed to questions of when, and why, inadequacy of reasons will call for a decision of the Tribunal to be set aside. Where the reasoning underpinning the decision can be discerned and no legal error is found in that reasoning, it is difficult to see why non-compliance with s 43(2B) should result in the decision being set aside. The position may be different where inadequacy of the written reasons is such that the reasoning of the Tribunal cannot be understood, and the Court and the parties can therefore have no confidence that that reasoning was sound (cf Central Aviation FCFCA at [50], [55]). Even then, mandamus to require provision of compliant reasons (or some order having equivalent effect), rather than an order setting aside the decision, may be the appropriate response. (In Central Aviation FCA Perram J left the decision in place but remitted the matter to the Tribunal for preparation of proper reasons. The order proved to be impossible to carry out, because the Tribunal member’s term had expired; and the Full Court, on appeal, saw no alternative but to set aside the decision.)

102    In the present case, while the Tribunal’s reasoning does not present a neat linear structure leading from evidence to conclusions, that is in large part a reflection of the test in s 8-3, which required consideration of five broadly expressed factors, with no guidance as to their relative weight. None of those factors points towards a particular outcome; instead, they are essentially headings under which a wide range of potentially relevant material, favourable and unfavourable, is to be discussed. The lack of a neat, linear structure also reflects the volume of material presented, which covered a large number of failings in corporate governance, compliance with regulatory requirements and relationships with clients. It is unsurprising that the conclusions expressed by the Tribunal at [174]-[178] (which were criticised for lacking an apparent evaluative process) appear as the result of an instinctive synthesis rather than an orderly application of definite criteria.

103    The applicant’s approach of singling out particular paragraphs in the reasoning for criticism tended to isolate those paragraphs from their context. Read as a whole, we think that the reasons meet the specific requirements in s 43(2B): they set out the Tribunal’s findings on material questions of fact (that is, the findings the Tribunal made on the facts that it saw as material) and refer to the evidence on which those findings were based. Beyond that, the overarching requirement to give “reasons” in s 43(2) no doubt calls for some explanation of why the findings that have been made lead to the ultimate decision. While that can properly be described as a “logical process” (eg, Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; 91 ALD 103 at [40] (French J)), it does not mean that syllogistic reasoning or the express weighing of factors for and against a result is always to be expected. Much depends on the nature of the criterion to be applied. The somewhat amorphous nature of the statutory criterion in the present case meant that the Tribunal could not do much more than set out the facts it regarded as relevant (with their evidentiary basis) and the judgment to which those facts drove it.

104    Even if there are aspects of the reasons which do not meet the standard of ss 43(2) and (2B), we do not think this is a case in which the Tribunal’s reasons are so opaque as to demand that the decision of the Tribunal be set aside. The Tribunal’s understanding of the applicable law was apparent, so that its correctness was able to be tested in this appeal. More broadly, there is no real mystery about why the applicant lost. The Tribunal was persuaded that it had failed to comply with its obligations under the Act in many ways (which were identified), over a fairly extended period; its attempts to rationalise or downplay those findings were rejected; and the Tribunal was not persuaded that any credible effort was being made by the applicant to mend its ways.

GROUND 6: FINDINGS THAT WERE UNSUPPORTED BY THE EVIDENCE

105    Ground 6 refers to a number of findings by the Tribunal that are alleged to be “unsupported by the evidence”. This ground was not developed in written submissions and was only addressed briefly during the hearing. It was addressed by a detailed table handed up at the hearing, later supplemented (by consent) by references to some additional material. The table refers, in relation to each of the contested findings, to evidence which was (it was submitted) “not considered” or (in a few cases) reasons why it was submitted that inferences should not have been drawn or findings should not have been regarded as significant.

106    Whether there is any evidence to support a finding of fact is a question of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond), at 355 (Mason CJ). On the other hand, “there is no error of law simply in making a wrong finding of fact” (Bond at 356 (Mason CJ), citing Waterford v The Commonwealth (1987) CLR 54, 77 (Brennan J)). Arguments as to whether the Tribunal should have given more weight to evidence tending against the findings that it made, or given less weight to particular evidence or findings, therefore do not raise questions of law: Haritos at [192], [195] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). Further, because the obligation to give reasons in ss 43(2) and (2B) of the AAT Act does not require express reference to evidence other than that which has been relied upon by the Tribunal in reaching its decision (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [65] (McHugh J); Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [48] (Besanko, Barker and Bromwich JJ)), absence of reference to contradictory evidence in the reasons does not found an inference that the evidence was overlooked. Ground 6 does not allege any error of law.

GROUND 7: CONTRADICTORY FINDINGS

107    Ground 7 alleges a contradiction between the Tribunal’s recording (at [174] of its reasons) of a claim that that Ms Wu had 27 years of experience, and its conclusion at [35] and [44] that it was unable to make firm findings about the experience of the applicant in providing aged care. We do not regard these statements as contradictory. In any event, for the reasons set out in relation to the previous ground, this allegation does not raise a question of law.

DISPOSITION

108    The appeal must be dismissed with costs.

Associate:

Dated:    24 April 2023