FEDERAL COURT OF AUSTRALIA

Elbayeh v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 832

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

introduction

1    The applicant, Mr Anis Elbayeh, appeals from a decision of the Administrative Appeals Tribunal (“the Tribunal”) under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The Tribunal upheld a decision of the Secretary of the Department of Education, Employment and Workplace Relations (“the Secretary”) to recover a large debt owed to the Commonwealth by Mr Elbayeh by issuing a garnishee notice against a redundancy payment he had received.

2    The history to the dispute is that for some years while he was receiving a Newstart Allowance administered by Centrelink Mr Elbayeh did not properly declare the salary that he was receiving from employment with The Age newspaper. As a result, over two separate periods, he was overpaid a total of approximately $78,000 in Newstart Allowance payments.

3    When these overpayments came to the attention of the Commonwealth it raised debts for that amount and sought their repayment. In light of Mr Elbayeh’s financial circumstances, Centrelink initially accepted an offer by him to repay the debts by weekly instalments of $80. However, when he later became entitled to receive a lump sum termination payment from The Age, a delegate of the Secretary determined to garnishee most of the amount owing in a lump sum.

4    Mr Elbayeh challenged the decision to issue the garnishee order before an Authorised Review Officer of the Department and then the Social Security Appeals Tribunal (“SSAT”), but they refused to vary or set aside the decision. He then applied to the Tribunal but it affirmed the decision on 25 July 2011.

5    He now appeals to this Court. The Tribunal decision is based on various findings of fact made by it. Contrary to Mr Elbayeh’s submissions I can discern no error of law by the Tribunal in reaching these findings, or in any other aspect of the Tribunal's decision. For the reasons I set out below I dismiss the appeal and order the applicant to pay the respondent’s costs.

6    The Court is grateful for the assistance of Mr Mukherji of Counsel who appeared pro bono for Mr Elbayeh, acting in the highest traditions of the profession.

The facts and procedural history

7    Mr Elbayeh was employed at The Age newspaper from 1989 until 2000. From 9 March 1990 to 26 May 1996 he received Newstart Allowance payments to which he was not entitled as he had been working more hours at The Age than he had declared to Centrelink. On 10 December 1996 a departmental officer raised a debt of $47,471 in respect of this overpayment (“the First Overpayment”). On 6 January 1996 he commenced repayment of this debt at the rate of $50 per fortnight.

8    Mr Elbayeh was charged with breaches of ss 1347 and 1350 of the Social Security Act 1991 (Cth) (“the Act”) in relation to the First Overpayment. These charges were heard on 16 December 1998 and he pleaded guilty. He was sentenced to serve a community based order for 12 months, to perform 120 hours of community work over 6 months, and to participate in the “Break Even” gambling program (“the First Sentence”).

9    Unfortunately, after the first debt had been raised but prior to the First Sentence, Mr Elbayeh had again sought Newstart Allowance payments to which he was not entitled. He began to receive these payments on 3 January 1997 and continued doing so until 3 November 2000. The overpayments arising from this period amounted to $31,019.27 (“the Second Overpayment”). He was charged with breaches of the Act in relation to the Second Overpayment. These charges were heard on 21 May 2001 and he pleaded guilty again. He was sentenced to 1 month’s imprisonment, but was released subject to a 24 month good behaviour order.

10    On 4 December 2000 the Secretary issued a garnishee notice to The Age, seeking to recover the debts arising out of the First and Second Overpayments by a weekly payment of $100 from Mr Elbayeh’s wages. By this time, the total debt had been reduced to approximately $73,000. On 12 December 2000 the weekly amount was then reduced by agreement to $80 per week to take account of Mr Elbayeh’s financial circumstances.

11    During the period 20 December 2000 to 7 March 2003 weekly repayments of $80 of the debt arising from the First and Second Overpayments were made by Mr Elbayeh pursuant to the garnishee order. On 13 March 2003 Centrelink became aware that Mr Elbayeh might become entitled to a voluntary redundancy payment from The Age of approximately $75,000. A delegate of the Secretary issued a garnishee notice to The Age requiring it to pay $64,652.33 in the event that Mr Elbayeh chose to take the redundancy payment (“the redundancy garnishee notice”). Mr Elbayeh asked the Secretary to cancel the redundancy garnishee notice and to accept continuing weekly repayments of $80 but the Secretary refused.

12    The Age then notified Centrelink that Mr Elbayeh had chosen to receive a redundancy payment, and on 14 April 2003 The Age paid $64,652.33 to Centrelink in satisfaction of the redundancy garnishee notice.

13    Mr Elbayeh complained about the decision to issue the redundancy garnishee notice, or a refusal to set it aside, on a number of occasions. In July 2003 he requested that Centrelink return the redundancy payment to him so that he could purchase a café business for $41,000 and continue making weekly repayments of the debts. Centrelink considered but refused that request. He then sought a reconsideration of the decision to issue the redundancy garnishee notice but, having reconsidered the decision, the delegate of the Secretary declined to vary or set it aside.

14    Later, he again sought a review of the decision to issue the redundancy garnishee notice by an Authorised Review Officer under the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). In July 2004 the Authorised Review Officer affirmed the Secretary’s decision. Mr Elbayeh then appealed that decision to the SSAT, but he withdrew that application on 6 September 2004.

15    In October 2010 Mr Elbayeh again applied to the SSAT for review of the decision to issue the redundancy garnishee notice. On 3 February 2011 the SSAT affirmed it. He then appealed to the Tribunal for review of the SSAT decision, but the Tribunal affirmed the decision on 25 July 2011.

The appeal to the Federal court

16    Mr Elbayeh now appeals the decision of the Tribunal to this Court under s 44(1) of the AAT Act. Such an appeal is confined to determination of any question of law properly before the Court and is not a review of the merits of the Tribunal decision. The Court has no jurisdiction to simply cure any administrative injustice or error by the Tribunal or conduct a review of the merits of its findings: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35 per Brennan J.

Is there a question of law raised in the appeal?

17    The existence of a question of law “is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it”: Brown v Repatriation Commission (1985) 7 FCR 302 at 304 per Bowen, Fisher and Lockhart JJ (“Brown”).

18    In Comcare v Etheridge (2006) 149 FCR 522 (“Etheridge”) at 527 to 528 the Full Court per Spender, Branson and Nicholson JJ considered the meaning and limits of a “question of law” under s 44(1) and made the following observations:

… an appeal “on a question of law” is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies “on a question of law” the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53, r 3(2)(b).

The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act.

…

19    Rule 33.12 of the Federal Court Rules 2011 sets out the procedural requirements in relation to appeals under s 44. It provides that the notice of appeal must state the precise question or questions of law to be raised on the appeal. The Court requires strict compliance with this rule: Lambe v Director-General of Social Services [1981] 57 FLR 262 at 264. As Stone and Branson JJ observed in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] (in reference to the predecessor provision to rule 33.12):

In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.

20    In my view, the Amended Notice of Appeal does not set out precisely framed or pure questions of law as required. It sets out the following purported questions of law for determination:

1.     Whether, on the material presented to the Tribunal, it was possible for the Tribunal to hold that the garnishee notice issued by the Respondent had been issued in compliance with the requirements of section 1230C of the Act;

2.     Whether the Respondent exercised the discretion under section 1230C(3) of the Act correctly;

3.    Whether the Respondent gave improper weight to the Applicant’s past conduct, constituting an error of law in the application of section 1230C(3) of the Act by drawing the wrong inference from fact;

4.     Whether a “reasonable arrangement to repay [a] debt” for the purposes of section 1230C(2)(b)(i) of the Act can be rendered unreasonable by a change in circumstances of the parties to the arrangement.

21    The Amended Notice of Appeal also sets out the following grounds:

1.     The Respondent was not entitled to issue a garnishee notice pursuant to section 1230C(1)(e) as it had not established at the time of issuing the garnishee notice that the Applicant had failed to enter into a reasonable arrangement to repay the debt or that after having entered into such an arrangement the Applicant had failed to make a particular payment in accordance with the arrangement. Prior to issuing the garnishee notice the Respondent had entered into an arrangement with the Applicant for repayment of the debt requiring the payment of $80 per week. The Applicant had not failed to make these payments.

2.     The Applicant had complied with previous instalment plans for payment of the debt as agreed between the parties. The Tribunal member erred in finding that a garnishee notice was appropriate within the meaning of section 2130C(3) of the Act because other alternatives for payment of the debt had failed. The Tribunal member based this finding of law by drawing the wrong inference of fact, namely the ‘failure of these [alternative] methods in the past’ (at para [12]).

3.     The Tribunal erred in finding that the arrangement previously entered into between the Applicant and the Respondent for the repayment of the debt was rendered inappropriate once the Applicant had received a termination payment.

4.     The Tribunal member erred in finding that the Applicant had a continuing gambling problem in 2003 based on medical and other evidence from 2000. The Applicant did not have a gambling problem at the relevant time.

5.     The Applicant’s experience in hospitality was not relevant to determining whether the Applicant was able to continue to comply with the arrangement between the Respondent and Applicant for the repayment of the debt as at the time that the garnishee notice was issued.

22    It is apparent from the Amended Notice of Appeal that the purported questions of law are imprecise, too broad, and are not pure questions of law within the meaning of s 44 of the AAT Act. Even so, it is clear enough from the grounds advanced and the submissions made on behalf of Mr Elbayeh that at the core of his case is the contention that the Tribunal made errors of law in making various findings of fact without having a proper basis upon which to do so. I deal with those purported errors of law below.

relevant legislation and principles

23    Section 1233 of the Social Security Act gives the Secretary power to require the repayment of a recoverable debt from funds held by a person on behalf of the debtor, for example, an employer - such as The Age in this case -that holds an employee debtor’s wages and entitlements. It relevantly provides:

(1)     If a debt is recoverable from a person (in this section called the debtor) by the Commonwealth under section …1230C of this Act… the Secretary may by written notice given to another person:

(a)     by whom any money is due or accruing, or may become due, to the debtor; or

(b)     who holds or may subsequently hold money for or on account of the debtor;

    …

require the person to whom the notice is given to pay the Commonwealth:

(e)     an amount specified in the notice, not exceeding the amount of the debt or the amount of the money referred to in the preceding paragraph that is applicable; or

(f)     such amount as is specified in the notice out of each payment that the person becomes liable from time to time to make to the debtor until that debt is satisfied; or

(g)     such percentage as is specified in the notice of each payment that the person becomes liable from time to time to make to the debtor until that debt is satisfied.

The Secretary’s power to seek repayment under subs 1233(1) - by methods including issuing a garnishee notice - arises out of the existence of a debt that is recoverable under s 1230C. The existence of such a debt in this matter is not controversial.

24    Section 1230C provides:

(1)    Subject to subsection (2), a debt due to the Commonwealth under this Act or Part 3B of the Administration Act is recoverable by the Commonwealth by means of one or more of the following methods:

(a)     if the person who owes the debt is receiving a social security payment—deductions from that person’s social security payment;

(b)     if, in respect of the debt, section 1234A applies to another person who is receiving a social security payment—deductions from that other person’s social security payment;

(c)     repayment by instalments under an arrangement entered into under section 1234;

(d)     legal proceedings;     

(e)     garnishee notice.

This subsection provides that the Commonwealth may recover a debt owing to it by the methods listed, which includes by garnishee notice. In this case the delegate of the Secretary determined to issue a garnishee notice.

25    Subsections 1230C(2) and (3) provide:

(2)    Subject to subsection (3), a debt due to the Commonwealth under this Act or Part 3B of the Administration Act is recoverable by means of a method mentioned in paragraph (1)(d) or (e) only if the Commonwealth:

(a)    has first sought to recover the debt by means of a method mentioned in paragraph (1)(a), (b) or (c); and

(b)     can establish that the person who owes the debt:

(i)     has failed to enter into a reasonable arrangement to repay the debt; or

(ii)     after having entered into such an arrangement, has failed to make a particular payment in accordance with the arrangement.

(3)     If the Secretary determines that the recovery of the debt by means of a method mentioned in paragraph (1)(a), (b) or (c) is not appropriate having regard to the circumstances of the case, paragraph (2)(a) does not apply in respect of the recovery of the debt.

…

26    Subsection (2) operates to restrict the Commonwealth’s power to recover a debt by garnishee notice or legal proceedings. It requires that the Commonwealth must have first sought to recover the debt by the methods provided in subss (1)(a) to (c). However, subs (3) empowers the Secretary to determine that recovery of the debt using the methods in subss (1)(a) to (c) is not appropriate “having regard to the circumstances of the case”. In this case the Secretary decided that those methods were not appropriate.

27    Subsections 2(b)(i) and (ii) operate to restrict the Secretary’s power to issue a garnishee notice unless Mr Elbayeh has either failed to enter into a reasonable arrangement to repay the debt or, having entered such an arrangement has failed to make a payment in accordance with it. The Secretary argues, and the Tribunal found, that having entered into an instalment repayment arrangement Mr Elbayeh had failed to make a payment in accordance with it, and also that the offer to repay the debt by instalments of $100 per week was not reasonable in the circumstances.

The findings of fact

The challenge to the findings of fact made

28    Each of questions 1, 2 and 3 of the purported questions of law in the Amended Notice of Appeal turn on findings of fact made by the Tribunal that I set out below. That the Tribunal made these findings is common ground. Question 4 does not turn on a finding of fact, but as I set out below, the question must be resolved in favour of the Secretary.

29    The Tribunal found that Mr Elbayeh:

(a)    had not entered into a reasonable arrangement to repay the debt - as referred to in subs 1230C(2)(b)(i) of the Act; and

(b)    having previously entered into a debt repayment arrangement had failed to make a particular payment - as referred to in subs 1230C(2)(b)(ii) of the Act.

30    Question 1 in the Amended Notice of Appeal turns on these two findings. Unless successfully challenged, either one of these findings of fact is fatal to the appeal. Subs 1230C(2)(b) operates to authorise the issue of a garnishee notice if the Secretary establishes either that Mr Elbayeh had not entered into a reasonable arrangement to repay the debt as required by subs (i) or after having entered into such an arrangement, had failed to make a particular payment in accordance with the arrangement as required by subs (ii).

31    Question 2 also turns on the finding of fact that, having previously entered into a debt repayment arrangement, Mr Elbayeh had failed to make a payment required. Unless successfully challenged, this finding of fact critically damages Mr Elbayeh’s appeal as it supports the decision by the Secretary pursuant to subs 1230C(3) that repayment of the debt by means other than the garnishee notice was “not appropriate having regard to the circumstances of the case”.

32    The Tribunal also made a finding of fact that Mr Elbayeh had a gambling problem. Question 3 turns on this finding. Unless successfully challenged, this finding too supports the decision by the Secretary that instalment repayment of the debt was not appropriate - as required by subs 1230C(3).

33    Mr Elbayeh challenges each of the findings of fact set out. He also seeks that the Court make findings of fact in substitution but I will deal with that submission later.

Legal principles relevant to a challenge to a finding of fact by the Tribunal

34    The legislature has placed the task of assessing facts in the hands of the Tribunal and not the Court. An appeal lies to the Court only if the Tribunal's decision is materially affected by an error of law. The Court should be cautious before it embarks on its own analysis of that evidence: Brown at 304.

35    There is no error of law in making a wrong finding of fact and no error of law in drawing an inference based upon illogical reasoning as long as the inference drawn was reasonably open on the facts. As long as there is some evidence to support a finding of fact, no error of law will have been committed: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 per Mason CJ. The Tribunal does not commit a reviewable error merely by finding facts wrongly or upon a doubtful basis or by adopting unsound or questionable reasoning: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257.

36    As was observed by Fox, Deane and Morling JJ in Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 at 411:

An appellant who attacks a conclusion of the Tribunal because of a deficiency of proof said to amount to an error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based.

37    In a similar vein, Goldberg J noted in Parks Holdings Pty Ltd v CEO of Customs [2004] FCA 820 at [62]:

The tribunal is the ultimate determiner of the facts and it should only be in exceptional cases, where there is a clear case that there was no evidence to support a particular finding and conclusion, that the Court should undertake that exercise. If there be evidence supporting the Tribunal’s findings or conclusions, then the Court should resist the temptation to consider the evidence going the opposite way for the purpose of establishing that there was no evidence upon which a finding could have been made.

Were the various findings of fact open to the Tribunal?

38    As I set out below in dealing with each of the findings of fact made by the Tribunal, I consider that Mr Elbayeh cannot establish that the various findings were not open to the Tribunal.

(a)    The finding that Mr Elbayeh had previously failed to comply with a repayment arrangement

39    The Tribunal found that, in the past, Mr Elbayeh had failed to comply with an arrangement to repay the debt. He denies any such failure. He contends that this finding amounts to an error of law as there was no evidence before the Tribunal capable of supporting it.

40    The only evidence before the Tribunal on this issue was a file note taken by an officer of Centrelink on 11 December 2000, in which the officer recorded the following:

…

[Mr Elbayeh] wanted to make payments himself. I told [Mr Elbayeh] he failed to repay in the past and in light of this and his gambling it was more prudent that we recover via garnishee.

…

There was no other evidence of the alleged failure by Mr Elbayeh to meet his obligations.

41    While the file note must be seen as evidence likely to be inadmissible in this Court and of little probative value, in my view it is sufficient for the finding of the Tribunal to be properly based. The fact that the file note would not be admissible as evidence before this Court does not disqualify it from being relied on by the Tribunal. Section 33(1)(c) of the AAT Act provides that the Tribunal is not bound by the rules of evidence: see Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41-42. The completeness of the file note and the weight it should be given are not issues for the Court. That the Court might take a different view as to the weight to be attached to the file note does not establish that there was no evidence capable of sustaining the finding made by the Tribunal: see Fisse v Secretary, Department of the Treasury (2008) 172 FCR 513 at [42] per Flick J. I consider that the file note constitutes sufficient evidence to support the Tribunal’s finding that Mr Elbayeh had previously failed to make repayments in accordance with an arrangement reached. It follows that the Tribunal made no error of law in making the finding.

42    In any event, this finding of fact goes only to the application of subs 1230C(2)(b)(ii). The Secretary also relies on subs 1230C(2)(b)(i) of the Act in support of the decision to issue the garnishee notice: see VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 at [19]. A factual finding in favour of the Secretary relevant to that subsection also operates to support the determination by the Secretary under subs 1230C(3) that recovery by way of a garnishee notice is appropriate in the circumstances of the case. The Secretary only needs to establish that Mr Elbayeh had failed to enter into a reasonable arrangement to repay the debt to succeed under the alternative subs 1230C(2)(b)(i). The Tribunal also reached this finding.

(b)    The finding that the $80 per week repayment arrangement was not reasonable

43    The Tribunal made a finding of fact that, given his receipt of the redundancy payment, Mr Elbayeh’s offer to repay the debt at the rate of $80 per week was not a reasonable arrangement. He again argues that this finding was not open to the Tribunal.

44    Mr Elbayeh contends that the arrangement to repay the debt at the rate of $80 per week accepted initially as reasonable by Centrelink could not be rendered unreasonable by reason of his changed financial circumstances. I do not accept this. The question of what is a reasonable repayment arrangement is clearly conditioned by factors that include the financial circumstances of the debtor, the alternative repayment arrangements available to the debtor, and the size of the debt reflected by the length of time required by the proffered repayment arrangement.

45    In my view it was plainly open to the Tribunal to find that an offer to repay a debt of approximately $73,000 by weekly instalments of $80 per week was unreasonable. To repay the whole debt on that repayment schedule would take about 17 years. That this finding was open to the Tribunal is also clear when one considers that various alternative repayment arrangements were available, including a lump sum payment coupled with weekly instalments. Such arrangements would have enabled a shorter and more reasonable period for repayment of the debt. There was no evidence of any such offer by Mr Elbayeh. Further, even if I took a different view as to the reasonableness of the arrangement offered by Mr Elbayeh - which I do not - it is not the Court’s role to substitute its view for the finding made by the Tribunal.

46    The undisturbed finding that the offer by Mr Elbayeh of only $80 per week was not a reasonable arrangement means that the Secretary was authorised to issue the garnishee notice by operation of subs 1230C(2)(b)(i). The finding also supports the Secretary’s decision that the recovery of the debt by instalments was not appropriate in all the circumstances - as required by subs 1230C(3).

47    Mr Elbayeh also argues that the Tribunal erred in taking into consideration the practicality of his plan to open a café with the redundancy payment in the event it were returned to him. He says that this is an irrelevant consideration which could not properly be taken into account by the Tribunal as he did not indicate that he intended to use the money for that purpose until July 2003 - after the redundancy garnishee notice had already been issued.

48    I reject this submission as it misunderstands the decision which was before the Tribunal. The statutory framework for the process of review relevant to this matter is set out in the Administration Act. Section 129 of the Administration Act provides that a person who is affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision. Section 135 relevantly provides that where an application for review is made under s 129, an Authorised Review Officer must review the decision, and either affirm, vary or set aside and substitute a new decision. This internal review mechanism contemplates a decision made de novo, and the Authorised Review Officer is therefore not limited in the material before him or her to that which was before the original decision maker.

49    In this matter it was not until July 2004 that the Authorised Review Officer reviewed the decision to issue the redundancy garnishee order. As this officer was considering the issue de novo his consideration was not limited only to the information before the Secretary at the time of the issue of the redundancy garnishee notice. There was evidence before him as to Mr Elbayeh’s proposal to purchase a café business, and his decision of July 2004 took this evidence into account. The Authorised Review Officer’s decision then stood in place of the original decision. As s 138 of the Administration Act makes clear, the application then made to the SSAT was made in respect of the decision of the Authorised Review Officer. In turn, the appeal to the Tribunal was from the decision of the SSAT.

50    I can discern no error of law by the Tribunal in its taking into account the evidence that Mr Elbayeh intended to use the redundancy payment to open a café if the money was returned to him.

(c )    The finding that Mr Elbayeh had a gambling problem in 2003

51    Mr Elbayeh challenges the Tribunal’s finding of fact that he had a gambling problem as at 2003. While he accepts that there was evidence before the Tribunal indicating that he had a gambling problem he argues that - by the time of the decision to issue the redundancy garnishee notice - that evidence was too old or too open to doubt to form a proper basis for the finding.

52    This contention too must be rejected. There was plainly some evidence before the Tribunal capable of supporting its finding that he had a gambling problem in 2003, and the authorities I have already set out provide that this is enough to sustain the finding.

53    First, in a record of interview with Centrelink on 17 January 1997 Mr Elbayeh accepted that he had a gambling problem. Second, a report dated 14 December 1999 by a psychologist offered the opinion that Mr Elbayeh was a compulsive gambler which was linked with his suffering from depression. Third, the learned Magistrate hearing the criminal charges arising from the First Overpayment must have considered that he had a gambling problem because he imposed a sentence which included a requirement to attend a relevant rehabilitation program for problem gamblers.

54    Mr Elbayeh argues that he did not have an interpreter present at the interview in January 1997 and so did not properly understand the questions. He contends that the psychologist’s report was no longer current at the time the redundancy garnishee notice was issued in 2003, and even less current when the Tribunal hearing was held. He also argues that he did not have an interpreter present at the sentencing hearing and agreed to the orders on the advice of counsel without fully understanding them. He points to the fact that he was sentenced in December 1998 and a significant period of time had elapsed between then and the issue of the redundancy garnishee notice.

55    In my view the evidence before the Tribunal is sufficient to sustain the finding, particularly when Mr Elbayeh put on no medical evidence to indicate that he had recovered from the compulsive gambling problem previously diagnosed. I did not find his attempts to explain away the evidence of his gambling problem persuasive. However, little turns on this. Even if I had found his argument about the state of the evidence persuasive, the authorities are clear that it is not an error of law for the Tribunal to make a wrong finding of fact or to do so upon a doubtful basis. An attack upon the weight given the evidence referred to, or to point to other evidence that might or even should have weighed against a finding that he had a gambling problem, is not sufficient to disturb the finding of fact by the Tribunal. In order to disturb the finding of fact he must establish that there is no evidence at all upon which the finding could have been based. He has not done so.

The application for findings of fact to be made by the Court

56    Mr Elbayeh also submits that the Court should make the following findings of fact:

(a)    That the Applicant’s arrangement with the Respondent for the repayment of the debt at the rate of $80 per week was a reasonable arrangement;

(b)    That the Applicant had never failed to comply with the requirements of the repayment arrangement with the Respondent; and

(c)    That the Applicant did not suffer form a gambling problem as at 2003.

57    I reject this submission. Section 44(7) of the AAT Act provides:

If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:

(a)    the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as a result of an error of law); and

(b)    it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to: [a series of factors are then set out]

58    First, I reiterate my view that none of the findings of fact made by the Tribunal constitute an error of law. Accordingly, it is not open to the Court to make the findings sought by Mr Elbayeh as to do so would be inconsistent with the findings of fact already made.

59    Second, it must be noted that while s 44 gives the Court an express statutory power to make findings of fact, this power is limited. In Etheridge Branson J explained at [17]:

Although recent amendments to s 44 of the AAT Act have given the Federal Court limited powers to make findings of fact (see, s 44(7) to (10)), this is a power available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal. If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in the Court by s 44(7) may be exercised, where it is convenient to do so having regard to the factors identified in the subsection, to avoid the need for the matter to be remitted to the Tribunal for further consideration.

60    I have not granted any relief to Mr Elbayeh, and there is no basis to find facts so as to avoid the inconvenience, cost and delay of the matter being remitted to the Tribunal. The only point of making the findings of fact sought by him would be to usurp the fact finding role of the Tribunal and the Court is not empowered to do so.

Question 4

61    Question 4 in the Amended Notice of Appeal does not turn on a finding of fact made by the Tribunal. However, it has no merit.

62    I do not accept Mr Elbayeh’s submission that subs 1230C(2)(b) operates so that once the instalment repayment arrangement of $80 per week based on the circumstances then existing had been put in place, the Secretary was not able to later determine that in different circumstances a different arrangement was reasonable. There is nothing in s 1230C which operates to require that an assessment as to whether an arrangement is reasonable can only be made once. As I have already noted, the reasonableness of a repayment arrangement is conditioned by factors including the debtor’s financial circumstances, the available alternative methods, and the length of time which it would take to repay the debt under the repayment arrangement offered. Such matters may well change over time and the Act does not operate to lock the Secretary into a repayment arrangement reached when circumstances were different.

63    For example, in the circumstances of this case, one may well accept that an arrangement to repay the debt at $80 per week was reasonable when the only way that Mr Elbayeh could do so was by weekly deductions from his Newstart Allowance. However, when he became entitled to receive a lump sum payment of about $75,000 the circumstances had changed, and the Secretary was able to again determine that issue. The Tribunal found that in the new circumstances an offer of repayment at the rate of $80 per week was not reasonable. I do not accept that this finding is an error of law.

Conclusion

64    I order that the appeal be dismissed and that the applicant pay the respondent’s costs.

Associate:

Dated:    8 August 2012