FEDERAL COURT OF AUSTRALIA

Khan v Secretary, Department of Family and Community Services [2005] FCA 1550

YOUMNA KHAN v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

NSD1165 OF 2005

MOORE J

8 NOVEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal is refused.
2. The applicant pay the respondent's costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a judgment of Wilcox J of 23 June 2005 refusing to extend time to appeal against a decision of the Administrative Appeals Tribunal ("the Tribunal") of 30 November 2004.  Essentially two issues were considered by his Honour.  The first was whether the applicant, through her husband who represented her, identified a question of law for the purposes of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).  The second was if the alleged question was that the Tribunal found facts where there was no evidence to support those facts, was that allegation made good.

2                     His Honour assumed, without deciding, that a question of law was raised but concluded that the applicant had not made out the ground.  In the application before me, the question of law or the error of law was identified as concerning:

·        The cancellation of my husband debt of $15,670.10, which was raised on centrelink perception of company operating.

The matter before the Tribunal concerned the raising of a debt as a result of the overpayment of sickness benefits paid, relevantly, to Mrs Khan.  She was entitled to those benefits only if she could be viewed as having been unemployed during the relevant period.  I have read the decision of the Tribunal.  The Tribunal records evidence before it that led it to reject the evidence of Mrs Khan and her husband and which led it to be affirmatively satisfied that Mrs Khan had not been unemployed during the relevant period.  It has not been demonstrated that this evidence was not before the Tribunal.  It was probative of the factual issue determined against the applicant by the Tribunal.  Justice Wilcox did not err in concluding that the applicant had not demonstrated any error of law.  Accordingly, the appeal has no prospects of success.  Leave to appeal is refused with costs.

Associate:

Dated:              7 November 2005