FEDERAL COURT OF AUSTRALIA

Christanty v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCA 1360

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

1    The applicant, Enny Christanty, is the holder of a Subclass 143 Contributory Parent visa. It was a criterion for the grant of the visa that the Minister for Immigration and Citizenship be satisfied at the time the decision is made that the Secretary of the Department of Family and Community Services (now the Department of Families, Housing, Community Services and Indigenous Affairs) had accepted an assurance of support (“AOS”) in relation to her (Migration Regulations 1994 (Cth), Sch 2, cl 143.228). An AOS is an undertaking given by one person to pay the Commonwealth amounts equivalent to social security payments received by another person who has been granted a visa in connection with the undertaking: Social Security Act 1991 (Cth), s 1061ZZGA. In this case, Ms Christanty’s brother, Chris Kwik, provided the AOS. It came into effect on 27 April 2008. The Department’s position is that it endures until 26 April 2018.

2    In April 2011 Ms Christanty was granted Newstart allowance. It appears that Centrelink (an agency of the Department) later contacted Mr Kwik to advise him that, in accordance with the AOS, he had accrued a debt to the Department. He apparently made no complaint, but Ms Christanty asked Centrelink to review its decision. Centrelink carried out that review but was unmoved. It maintained that the AOS had been properly entered into and remained in effect until 26 April 2018. Ms Christanty sought a review by the Social Security Appeals Tribunal (“SSAT”) but the SSAT affirmed the Department’s decision. Ms Christanty then sought a review in the Administrative Appeals Tribunal (“AAT”) and it affirmed the SSAT’s decision. This is an appeal from the AAT’s decision.

3    The material before the Court does not clearly disclose the relevant Departmental decision that was under challenge. The AAT defined the issue on the application for review, however, as:

whether there are circumstances present under which the AOS provided by Mr Kwik for [Ms Christanty] should be cancelled.

4    The AAT concluded that there are none.

5    A party may only appeal from a decision of the AAT on a question of law: Administrative Appeals Tribunal Act 1975 (Cth), s 44(1). In other words, the Court’s jurisdiction is only enlivened by the existence of a question of law. For this reason, it is necessary that the question of law be articulated with precision: Federal Commissioner of Taxation v Crown Insurance Services Ltd [2012] FCAFC 153 at [13] per Lander and Foster JJ; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCAFC 232 at [18] per Branson and Stone JJ; Khan v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCA 1060 at [3] per Perram J.

6    Ms Christanty filed her notice of appeal on 24 August 2012. The notice purported to set out the findings of fact she asked the Court to make, the orders she sought and the grounds she relied on, but it failed to articulate any question of law. At the first directions hearing on 3 October 2012, I pointed this out to Ms Christanty, and made orders requiring her to file and serve an amended notice of appeal identifying the precise question or questions of law. Ms Warner Knight, the solicitor with the carriage of the matter for the Secretary, foreshadowed that the Secretary would be seeking summary dismissal if the amended notice of appeal again failed to identify a question of law

7    On 24 October 2012 Ms Christanty filed an amended notice of appeal. Under the heading “questions of law” the following appears:

1.    Why Enny Christanty in the decision of A.A.T decided under Assurance of Support.

2.    Why Chris Kwik in the decision of A.A.T decided that he have to repaid to Centrelink in the total of $2770.11.

8    The Secretary contends that the appeal is incompetent or, if not, the applicant has no reasonable prospects of successfully prosecuting the appeal. For this reason he filed an interlocutory application seeking that the appeal be dismissed with costs. His application was supported by an affidavit of Ms Warner Knight, which did no more than repeat the substance of the grounds in support of the orders and annex a copy of the AAT decision under appeal.

9    At the hearing of the interlocutory application Ms Christanty confirmed that, properly understood, the questions raised by the amended notice of appeal are:

1.    Why did the AAT decide that Ms Christanty was under an assurance of support?

2.    Why did the AAT decide that Mr Kwik had to repay to Centrelink the amount of $2770.11?

10    Under the heading “findings of fact that the Court is asked to make”, Ms Christanty listed descriptions of, and extracts from, three documents apparently produced to her after a Freedom of Information request, which she annexed to the amended notice of appeal – “Doc 59 of 86”, “Doc 62 of 86” and “Doc 57 of 86”. On the face of them the documents were printed on 5 January 2012 from a Centrelink computer.

11    The amended notice of appeal seeks orders that:

1.    Enny Christanty is not under Assurance of Support.

2.    Mr Chris Kwik is not responsible to repaid to Centrelink in the total amount of $2770.11.

12    Under the heading “grounds relied on” appears the following:

1.    I looked myself in the computer screen at centrelink Office that the Assurance of Support for Enny Christanty was BLANK (NONE).

2.    The Administrative Appeal Tribunal didn’t look at the document provided by the Freedom of Information in their decision making.

13    The amended notice of appeal was accompanied by an affidavit sworn on 22 October 2012. In the affidavit Ms Christanty asserted that her assurance of support “was ceased” when she had an operation on her right hand. She also referred to the fact that she had undergone heart bypass surgery some years earlier. She stated that at the time she looked at a computer screen at the Centrelink office and saw that “[her] Assurance of Support was BLANK (NONE)” but “now they put it back”. She referred to the documents that were annexed to her amended notice of appeal and also to an earlier affidavit sworn on 22 August 2012. Ms Christanty went on to refer to a statement made by the AAT in its reasons that she had told Centrelink she required assistance because her brother didn’t want to help her. She insisted she had never said that. She stated that she is not supposed to ask her brother for help because he has his own family to provide for. She also stated that she is not supposed to be under an AOS because she has been living in Australia since 1983 and her two children were born here. She also annexed her Freedom of Information request for a particular document (“doc 59 of 86”) referred to in the documents that were annexed to her amended notice of appeal and her August affidavit. Ms Christanty filed a further affidavit on 13 November 2012 which largely repeats the contents of her 22 October 2012 affidavit but which also annexes “doc 59 of 86”, the document she requested from the Department.

14    If Ms Christanty wants to agitate a question of law, the amended notice of appeal plainly does not disclose one. As the Secretary submitted, the two questions amount to nothing more than a statement of disagreement with the AAT decision or a request that the decision be explained.

15    To the extent that the grounds or the affidavit evidence shed light on Ms Christanty’s grievances it is difficult to discern any question of law or anything that might point to an allegation that the AAT erred in law. Taking ground 2 at its highest, it appears to be a claim that the AAT failed to take into account certain information that appeared on the Department’s computer.

16    The question of law should not only be stated with precision but it must be a “pure question of law”: Birdseye at [18]. Thus, a mixed question of fact and law is not a question of law for the purposes of s 44 of the AAT Act: Comcare v Etheridge (2006) 149 FCR 522 at [16]. Cf. Board of Trustees v Edington (2011) 119 ALD 472; [2011] FCAFC 8 at [39]. A question about whether the tribunal failed to take into account a relevant consideration will be a question of law: Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12 per Davies and Beazley JJ. But neither in her amended notice of appeal nor in the affidavits filed in support does Ms Christanty identify any such consideration. Ms Christanty’s complaints relate to factual findings.

17    On the other hand, it is possible that Ms Christanty wishes to argue that the fact that she was granted Newstart allowance means that she is no longer under an AOS. That proposition seems to emerge from her last affidavit (although it is at odds with an assertion in an attachment to her first affidavit that her AOS ceased on 1 April 2011 when she had an operation on her right hand). That might translate into a question of law: whether an AOS ceases to be in force upon the grant of Newstart allowance. Another way of putting it might be whether the AAT failed to take into account a relevant consideration, namely, the fact that she was granted Newstart allowance. Even so, I am quite satisfied that the appeal enjoys no reasonable prospects of success. Section 31A of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) allows the Court to give summary judgment for the Secretary in these circumstances and, in my view, this is a proper case in which to do so. That power is to be exercised in the way that best promotes the overarching purpose of the FCA Act and Rules of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible (see s 37M). Having regard, in particular, to the objectives listed in s 37M(2) of the FCA Act, dismissing the appeal at this point would be the optimum way to promote the overarching purpose.

18    Section 1061ZZGEA of the Social Security Act provides that once the person in respect of whom an AOS was given becomes the holder of a visa granted in connection with the assurance, the AOS may not be withdrawn. Section 1061ZZGF(1)(b) provides that an AOS remains in force until the earliest of the following times:

(i)    the end of the period specified for the purposes of this subparagraph in a determination under section 1061ZZGH;

(ii)    the time (if any) determined by the Secretary under subsection (2);

(iii)    if a circumstance specified for the purposes of this subparagraph in a determination under section 1061ZZGH applies in relation to the assurance – the time determined by the Secretary in relation to that circumstance.

19    The relevant determination is the Social Security (Assurances of Support) (DEEWR) Determination 2008 made on 7 February 2008. Section 17 of the Determination specifies that the relevant period in the case of a Contributory Parent visa for the purpose of subpara 1061ZZGF(1)(b)(i) is 10 years. For the purpose of subpara 1061ZZGF(1)(b)(iii), the following circumstances are specified:

(a)    after arrival in Australia, a person identified in an assurance of support is granted refugee status;

(b)    the visa of a person identified in an assurance of support is cancelled.

(c)    a person is the only person identified in an assurance of support and the person dies;

(d)    the following special circumstances that, in the opinion of the Secretary, justify cancellation of an assurance of support:

    (i)    an accident, disability, illness or other circumstance that has critically affected the assurer’s ability to provide adequate support;

    (ii)    the incapacity of a person identified in an assurance of support to travel to Australia before the expiration of a visa.

20    As the AAT found, none of these circumstances arise in the present case. Ms Christanty did not contend that they did. Her repeated references in her affidavits to her injury and heart surgery are irrelevant. Section 18(d) is not concerned with the situation of the visa holder.

21    In the result, no time having been determined by the Secretary for the purpose of s 1061ZZGF(1)(b)(ii), the AOS in respect of Ms Christanty remains in force for 10 years, being the period specified for the purposes of subparagraph (1)(b)(i).

22    Ms Christanty challenges the AAT’s finding because she says her AOS ceased on 1 April 2011, apparently based on what she was told by Centrelink officers and what she says she saw on computer screens. The AAT member did not accept that fact, describing it as a misunderstanding on Ms Christanty’s part (at [19]). This plainly is a finding of fact, not of law. What is more, none of the documents annexed to the affidavits shows anything different.

23    As I mentioned earlier, Ms Christanty also challenges the AAT’s statement that she told Centrelink she needed assistance because her brother did not want to help her and only provided the bond money because she begged him at the time. That, too, is a finding of fact, which is not amenable to challenge on an appeal under s 44 of the AAT Act.

24    A proceeding need not be “hopeless” or “bound to fail” for it to have no reasonable prospect of success: FCA Act, s 31A(3); Spencer v Commonwealth (2010) 241 CLR 118 at [17] per French CJ and Gummow J, at [52] per Hayne, Crennan, Kiefel and Bell JJ. But in the present case I am satisfied that the appeal is, indeed, hopeless. It follows that, even if a question of law can be teased out of the material, the appeal is bound to fail and should therefore be dismissed. There is no reason why Ms Christanty should not pay the Minister’s costs.

Associate:

Dated:    30 November 2012