FEDERAL COURT OF AUSTRALIA

Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 260

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 25 March 2013 be dismissed.

2.    The application for an extension of time to appeal filed on 7 November 2012 be dismissed.

3.    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    Andy Soames is aggrieved by the cancellation of his disability support pension. The pension was cancelled on 22 March 2011 (with effect from 29 July 2010) because his assets were found to be above the allowable limit. The decision was taken after the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs discovered that Mr Soames had withdrawn over $1 million from his bank before leaving Australia for Syria in August 2010. His assets were assessed at $997,250. Mr Soames appealed the Secretary’s decision to the Social Security Appeals Tribunal (“SSAT”) without success and was equally unsuccessful on an appeal from that tribunal to the Administrative Appeals Tribunal (“AAT”).

2    Mr Soames now wishes to appeal the decision of the AAT. That decision was handed down on 23 February 2012. He had 28 days in which to file his appeal without obtaining a Court order (Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), s 44(2A)) but neglected to do so. Consequently, he now applies for an extension of time. The application is opposed.

3    The application was filed on 7 November 2012 – more than seven months after the time to appeal had lapsed. It is supported by an affidavit sworn the same day and a draft notice of appeal also accompanied by an affidavit. His application was heard on 29 January 2013. But for his introduction of additional evidence at the hearing that had not been served on the Secretary and his multiple requests for an extension of time to file submissions, it would have been disposed of much sooner.

4    In the first affidavit Mr Soames states that he did not file “an application” earlier because he has “very limited legal knowledge”, he is depressed and his depression causes him to delay a lot of things. He states that he lacks the money for a lawyer, was refused legal aid, and that although the AAT referred him to the Welfare Rights Centre for assistance, they also refused to help him and “gave [him] a run around for the last 20 months”. Otherwise the affidavits refer to his background, illnesses, financial position and the care he provides for his son and his wife. It contains no medical evidence to support the assertion that his depression causes him to procrastinate.

5    The second affidavit makes the following assertions/submissions:

(1)    The tribunal member was extremely biased and manipulated the evidence, contrary to the facts;

(2)    The tribunal member concealed “many vital and relevant pieces of evidence”;

(3)    The tribunal member ignored him on 6 December when several times he signalled to her that his hearing aid was not working properly;

(4)    The tribunal member allowed the Secretary’s lawyer to question him very quickly, knowing that he had difficulty hearing and understanding;

(5)    Although she knew that he had difficulty understanding English and although there was an interpreter present, the tribunal member did not ask for the interpreter to be used;

(6)    When at the hearing he asked the interpreter to translate, she said she could not because the lawyer was going too fast. The member could see this but ignored it;

(7)    He requested a transcript but the member refused;

(8)    The member took the Secretary’s side, despite the fact that the Secretary’s submission was “all based on false assumptions”;

(9)    He asked the member to examine the lawyer on extremely important issues. He stated that the lawyer had made alterations to one of his documents; and

(10)    Because of his problems with hearing and understanding he was confused by the lawyer’s questioning and answered wrongly. He stated that he believed the lawyer and the member were working to set him up and confuse him intentionally.

6    No written submissions were filed in support of the application despite a direction to do so. Mr Soames, however, made the following oral submissions.

7    Mr Soames submitted that his ability to file a notice of appeal within the prescribed time was impaired by his depression and physical conditions. He said that he has difficulty reading and has multiple medical conditions which preoccupy him, including problems with his back and knee. He said he has a depressive and anxiety condition which has been significantly exacerbated by the conflict in Syria, the loss of lives in Syria and concern for his family in Syria, all during the period from the time the decision was handed down in the AAT to the time he approached the Federal Court. When asked why he didn’t file any medical evidence in support of his application for an extension of time he replied that he was not aware that he was required to do so due to his lack of legal training and that he is not “mentally capable”.

8    Mr Soames further submitted that he is preoccupied looking after one of his sons, who has a number of medical and psychiatric conditions. He said that he is a carer for him and that he now also has problems with his younger son. He also said that he is a carer for his partner.

9    Mr Soames said that his attempts to obtain legal representation also contributed to the delay. He said that he tried to obtain legal assistance on a number of occasions, in particular from Legal Aid, but was knocked back each time. He said that he promptly complained to the AAT about the manner in which the hearing was conducted, but was not satisfied with the AAT’s response. He says he then approached the Ombudsman with his complaint, but was similarly dissatisfied.

10    Mr Soames repeated his concerns about procedural unfairness set out in the second affidavit. He said that he tried to talk, but that the Senior Member stopped him on a “regular basis” by “putting her hand up” when he tried to speak.

11    Mr Soames said that “the finding of fact” was wrong and that it was an attempt to hurt him. He said that the Senior Member deliberately misinterpreted what he had to say.

12    Mr Soames contended that the “Centrelink lawyer” (Ms Schuster), who appeared for the Secretary in the tribunal, altered a “second contract”. He also contended that the lawyer misused the first contract which he said had been altered by the real estate agent in Syria. He said that he gave Ms Schuster the second contract on her undertaking that she would not use it because it had been altered and that she breached that undertaking by using it.

13    Mr Soames said that he requested the opportunity to examine Ms Schuster on the alteration of the document but was prevented from doing so.

14    Mr Soames also complained that the Senior Member did not ask Ms Schuster to speak more slowly. He said that during cross-examination he pointed to his hearing aid to communicate to the tribunal that he had hearing difficulties but that the Senior Member ignored him. He said that the interpreter wrote down in Arabic what was said, but that the interpreter’s writing was illegible. Mr Soames said that he requested a copy of the transcript of the AAT hearing but that the Senior Member refused.

15    During the course of his oral submissions Mr Soames referred to numerous documents that were not in evidence. After hearing argument I decided to admit most of them subject to relevance but gave the Secretary an opportunity to consider them and make further submissions about them. I also gave Mr Soames the opportunity to reply to the Secretary’s submissions, an opportunity of which he has not availed himself. Before going any further I need to deal with an issue that has arisen from this.

16    I directed the Secretary to file and serve any further written submissions relating to the new documents on or before 11 February 2013. I limited their length to 10 pages. I then asked Mr Soames whether he wanted two weeks to reply.

MR SOAMES: One week, your Honour, I will do it.

HER HONOUR: One week? All right.

MR SOAMES: That’s - - -

HER HONOUR: Submissions in reply then by 18 February.

17    On 18 February 2013 Mr Soames wrote to the Court requesting extra time to file his submissions. He explained that he had applied for legal aid to assist with the preparation of the further submissions (the application was made on 13 February 2013, presumably after he had received the Secretary’s further submissions) but that he had not yet received any news of the outcome of his application. I then granted him a further two weeks (until 4 March 2013) to file his submissions. Mr Soames failed to provide them in this time. On 5 March 2013 the Court received further correspondence from Mr Soames explaining that his application for legal aid had been refused on 19 February 2013, the day after the initial request for extra time had been made. He offered no explanation for why he had waited two weeks to contact the Court. He wrote that he had been refused assistance from Legal Aid on three occasions and “under Section 57 of the Act, wished to apply for an extension of time to appeal to Legal Aid for assistance or find a lawyer to assist me with my submission”. He attached the letter from Legal Aid dated 19 February 2013. He sought the Court’s assistance. It is apparent that no extension of time to appeal was required. Section 56 of the Legal Aid Commission Act 1979 (NSW) provides for a 28-day period in which to appeal and that period had not expired by the time Mr Soames contacted the Court. I took it that the reference to an extension of time is an application for an extension of time to file his submissions.

18    Section 57 provides as follows.

Where it appears to a court or tribunal, on any information before it:

(a) that a party to any proceedings before the court or tribunal:

(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or

(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,

(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

(c) that there are no special circumstances that prevent it from doing so, the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

19    By force of s 79 of the Judiciary Act 1903 (Cth), s 57 applies to the Federal Court. It picks it up and applies it as surrogate federal law: Wilson v Alexander (2003) 135 FCR 273 at 279 [19].

20    The first issue that arises in the present case is whether the section extends to require an “adjournment” at any stage in the proceedings, including after the hearing. The vast majority of the authorities dealing with s 57 concern an application for an adjournment of proceedings before hearing. I can find only one case (in the New South Wales Administrative Decisions Tribunal) in which post-hearing directions for further submissions were amended pending the outcome of applicant’s appeal to the Legal Aid Review Committee: Martin v Commissioner of Police, NSW Police Force [2009] NSWADTAP 67. While the circumstances in that case are readily distinguishable from those in the present case, it may nevertheless be accepted that the legislation will operate at any stage before judgment. Mr Soames did not seek an adjournment. He sought an extension of time to file submissions in reply. But the effect is the same. The provision should be construed beneficially.

21    The Court is required to grant an adjournment unless the appeal or the intention to appeal is not bona fide, is frivolous or vexatious, is otherwise intended to improperly hinder or delay the conduct of the proceedings, or where special circumstances prevent the Court from doing so. But there is a threshold question. That is whether an appeal has been filed or Mr Soames intends to appeal.

22    Mr Soames certainly signified his intention to appeal. For this reason I deferred delivering judgment. But the time to appeal to a Legal Aid Review Committee passed and I was not informed that an appeal was filed. Consequently, I am not satisfied that it has been. Nor am I satisfied in the circumstances and despite the earlier indication to the contrary, that Mr Soames now intends to appeal, if he ever really did. For this reason s 57 does not apply and I am not bound to adjourn the proceeding. Of course, I have a discretion to do so but I am satisfied that the discretion should not be exercised in Mr Soames’s favour. It would not serve the overarching purpose of the Federal Court Act 1976 (Cth) and rules to do so: Federal Court Rules 2011 (Cth), s 37M. Mr Soames has had (in effect) two extensions of time already. On the assumption that he has been looking for a lawyer I think it is highly unlikely that he would find one prepared to assist him whose advice he would be prepared to accept. On 18 February 2013 (when he first applied for extra time to file his reply submissions) he wrote that the Court had referred him to a barrister for help “but she was unhelpful and manipulative”. He also said that he had contacted many lawyers in Sydney without success but that he had appointments with two different lawyers on 22 February 2013. In the absence of the submissions it was reasonable to infer that neither of them was prepared to take on his case or that he was not inclined to take their advice.

23    On 20 March 2013, however, Mr Soames presented at the Registry attempting to file what he said were submissions. The “submissions” were well outside the extended period he had been given. They were also well in excess of the 10-page limit I had stipulated. He was given an opportunity to file his 10 best pages but declined to take it. In the result the Registrar refused to allow him to file them.

24    The next day Mr Soames returned to the Registry and attempted to file an interlocutory application for permission to file “a full submission in relation to extension of time against the AAT 23/02/12”. This morning I granted Mr Soames leave to file the interlocutory application together with an affidavit in support.

25    In his affidavit Mr Soames referred to the order I made for submissions of no more than 10 pages and complained that I did not give him the opportunity to explain that “there is a lot of material and evidence”. He said that the entirety of the “submission” that he tried to file on 20 March is “extremely vital and relevant to the hearing on 23/02/12” (the AAT hearing) and explains what was happening at the AAT when his pension was cancelled. He repeated his previous statements about his health and that of his son. He attached an affidavit from his son’s psychiatrist dated 11 March 2012 which explains the care Mr Soames provides for his son. He also said he is on a waiting list for a knee replacement at Concord Hospital, was given the opportunity to have this done but had to postpone it “since I have to attend the Federal court and other, I have no income, and cannot afford the costs for after the surgery”. A letter from the hospital, annexed to the affidavit, states that he has in fact been removed from the waiting list.

26    Tellingly, he asserted:

the evidence (included in my submission) that I tried to file today was extremely important and vital evidence which was sent to the Federal Minister of community services but he refused to deal with it as well as the ombudsman and other.

27    This morning he reiterated the importance of the evidence, without indicating what the evidence was.

28    After hearing from the parties I refused Mr Soames’s application. I did so for two reasons.

29    First, Mr Soames does not merely want to file submissions. He also wants to file additional evidence. The Secretary opposed the receipt of further evidence and I do not consider that Mr Soames should be allowed to tender any more evidence. He has had ample opportunity to present his evidence. He complained that I had prevented him from doing so when the matter was last before the Court. That is not true. Although I initially refused to allow him to tender documents in the middle of his oral submissions, I later changed my mind and admitted all but a handful of the documents he put before me, excluding only those which were irrelevant to his application for an extension of time. At the hearing I allowed Mr Soames to adduce a total of 123 pages of additional evidence and to put before the Court as a submission his 26-page statutory declaration. Indeed, this was the occasion for the additional submissions from the Minister.

30    Secondly, the order I made was for submissions in reply.

31    Mr Soames either does not understand or refuses to accept the differences between submissions in chief, submissions in reply and evidence.

32    At the hearing on 29 January I repeated several times that both the Minister’s submissions and Mr Soames’s submissions in reply were not to exceed 10 pages. Mr Soames indicated that he understood that and that he also understood the need to focus on the major issues. I made it clear to him twice that his reply submissions were to deal with the submissions that the Secretary made. Mr Soames accepted this.

33    Yet, at the hearing this morning Mr Soames explained that he had 27 pages of submissions, which did not just address the submissions made by the Secretary but which addressed all the matters he wanted to put before the Court including the additional evidence he wanted to rely on which, he said, totalled 60 to 70 pages. In my view it would be unfair to the Secretary for the Court to receive submissions of this nature at this time.

34    I formally dismiss the interlocutory application received in the Registry on 21 March 2013 and filed in Court this morning.

35    It remains for me to deal with Mr Soames’s substantive application for an extension of time to appeal from the AAT.

The entitlement to cancel a pension

36    The Secretary is entitled to cancel a pension if it is or was not payable: Social Security (Administration) Act 1999 (Cth) (“Administration Act”), s 80. The issue for the AAT was whether the value of Mr Soames’s assets on 29 July 2010 was such that the pension was not payable.

37    The circumstances in which a pension is payable are set out in the Social Security Act 1991 (Cth) (“SS Act”), the relevant provisions of which the AAT summarised in its reasons (at [9]–[14]). Relevantly, the fortnightly pension is reduced by $1.50 for every $1,000 over the person’s asset value limit. See SS Act, ss 117 and 1064. “Asset” includes property or money outside Australia: SS Act: s 11. Where assets have been disposed of for no consideration, s 1124 of the SS Act provides that the value of the disposal is equal to the value of the assets disposed of. Section 1123 provides that a person has disposed of assets if he or she directly or indirectly engages in a course of conduct which destroys, disposes of or diminishes the value of the asset without any or any adequate consideration, or engaged in the conduct in order to gain a social security advantage.

38    Mr Soames gave evidence before the AAT concerning the disposal of his assets and income. He claimed to have spent more than $1,040,000 in Syria in a period of less than five months. The tribunal did not believe him.

The AAT’s decision

39    Senior Member Isenberg found Mr Soames’s evidence to be inconsistent, vague and lacking in credibility. She was not satisfied that the documents he produced to support his contentions were genuine. She found that the total amount of his assets exceeded the assets value limit for a non-homeowner couple as at 29 July 2010. She held that this was a sufficient reason to cancel his pension from that date pursuant to s 98 of the SS Act (which relevantly provides that the disability support pension is not payable to a person if the person’s disability support pension rate would be nil) and s 80 of the Administration Act. She also found that his assets at that time (and on 22 March 2011, when his pension was cancelled) were in excess of the assets limit for a single pensioner, which he claimed to be. She found that the assets hardship rules were inapplicable as, on his own evidence, Mr Soames had at his disposal $120,000 in cash in Syria and some $64,000 in a superannuation account. Accordingly, she determined that the Secretary’s decision to cancel Mr Soames’s pension from 29 July 2010 on the basis that his assets exceeded the assets value limit was correct.

The right to appeal

40    Section 44(2A) of the AAT Act provides that an appeal “shall be instituted” no later than the 28th day after the day on which the document setting out the terms of the decision is given to the person or within such further time as this Court may allow and in such manner as is prescribed by the rules of court made under the Federal Court of Australia Act 1976 (Cth).

41    There is no evidence about when Mr Soames received a copy of the AAT’s decision but the decision was evidently posted to him at his last address for service and, in the absence of any evidence to the contrary, the letter is taken to have been given to him at the time the letter would have been delivered in the ordinary course of post: AAT Act, s 68AA(1)(b). Unless evidence sufficient to raise doubt about the presumption is adduced (and none was in this case) a letter from a Commonwealth agency is presumed to have been sent by prepaid post on the fifth business day after a date that purports to be the date on which the letter is prepared (Evidence Act 1995 (Cth) (“Evidence Act”), ss 163). A letter sent by prepaid post to a specified Australian address is presumed to have been received at that address on the fourth working day after having been posted (Evidence Act, s 160). The letter enclosing the decision is dated Thursday 23 February 2012. It is therefore presumed for the purpose of this proceeding that the letter was posted by the AAT on Thursday 1 March 2012 and was received by Mr Soames on Wednesday 7 March 2012. It follows that any appeal should have been filed no later than Wednesday 4 April 2012.

The discretion to extend time

42    The Court’s discretion under s 44(2A) is not constrained by statutory preconditions, but it must be exercised judicially. The Court may extend time where the justice of the case requires it (cf. Dickson v Whiddett [2001] FCA 585 at [34]). Parliament has fixed a period in which appeals should be filed. In general a respondent is entitled to the benefit of that statutory limitation. It will not be in the interests of justice to extend the time to appeal where the appeal is obviously without merit, where there is no satisfactory explanation for the delay or where the respondent is prejudiced by the delay. It must be fair and equitable to grant an extension. The mere absence of prejudice will not require that an extension be granted. Cf. Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (“Hunter Valley Developments”) at 348–349 and Franich v Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2011] FCA 1362. A minor delay may be easily excused, not so a lengthy one. Here, the Secretary does not suggest he is prejudiced but submits that the explanation for the delay is inadequate and that the appeal is unmeritorious.

The delay and its explanation

43    In this case the delay is undoubtedly lengthy. I find the explanation for it unconvincing.

44    On 23 February 2013 (the day the decision was published) the AAT sent Mr Soames a copy of the decision and advised him (amongst other things) of his right to appeal. It set out the nature of that right and of the need to lodge any appeal to the Federal Court:

-    no later than 28 days after you receive a copy of the Tribunal’s decision; or

-    if the decision was posted to you at the last address you gave to us, no later than 28 days after it was delivered to your address.

(Emphasis in original.)

45    There can therefore be no doubt that Mr Soames knew how long he had to appeal.

46    Mr Soames never explained what he meant by the statement that he was given “a run around” by the Welfare Rights Centre for 20 months or when that period was. And I am at a loss to understand what that has to do with his failure to file an appeal within the prescribed time.

47    Mr Soames’s affidavits are silent about when he made a request for legal aid, when it was refused, what the Welfare Rights Centre said to him, and indeed when he last had contact with the Centre.

48    At the hearing, however, Mr Soames tendered a letter from Legal Aid NSW dated 13 March 2012 (during the 28-day appeal period) rejecting his application for legal aid to appeal to this Court from the AAT’s decision and advised him of his right of appeal to the Legal Aid Review Committee. The letter also informed him that if he wanted to pursue an appeal to this Court he had to file it by 22 March 2012. This date appeared in bold print and was underlined. The letter explained that it was open to him to lodge an appeal after that date but he would then need to ask the Court for permission and permission might not be given.

49    There is some evidence to indicate that Mr Soames did appeal to a Legal Aid Review Committee. That is a brief letter from that Committee dated 25 October 2012 in the following terms:

Your appeal was considered by the Legal Aid Review Committee at its meeting on 24 October 2012 and the appeal was unsuccessful.

The Committee disallowed the appeal because it is not satisfied from the materials submitted in support of the appeal that the legal proceedings have reasonable prospects of success.

Please note that the Legal Aid Review Committee decision is final.

50    The difficulty with this letter is that the application for appeal to which it relates was not tendered. There is no evidence about when Mr Soames lodged his appeal to the Committee.

51    But Mr Soames also tendered a letter from Legal Aid NSW dated 9 August 2012. It discloses that Mr Soames had lodged a new claim for a disability support pension on 28 February 2012 – five days after the AAT decision he now says he wants to appeal was published. The new claim, which he apparently asked be considered under the asset hardship rules, was rejected. The letter reveals that Mr Soames sought review in the SSAT of the decision to reject the new claim and that the SSAT dismissed his application. At some stage he applied for legal aid to appeal to the AAT from the SSAT’s decision on the new claim, but the evidence does not disclose when this application was made. But the 9 August 2012 letter from Legal Aid NSW reveals that his application was rejected. On 11 October 2012 the AAT dismissed his application for review of the SSAT’s decision: Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 699.

52    What emerges from all of this is the strong inference that Mr Soames chose not to appeal from the decision of Legal Aid NSW to refuse aid for a Federal Court appeal but to pursue a different course – to make a new claim and when it was rejected, to appeal that decision.

53    I accept that Mr Soames has a history of depression and that he may well be depressed now. Given his domestic circumstances that is understandable. I also accept that a person suffering depression may have difficulty meeting deadlines. A report from a psychiatrist dated 1 December 1995 describes him as having a “severe anxiety/depression state” and states that “lack of concentration, and severe depression affected his decision making ability”. But that was 17 years ago. Apart from a short report from a GP dated 28 October 2011 and the odd medical certificate (the most recent of which is from 2004) there is no evidence about his condition in recent times. The GP’s report states that he has had depression for many years and is currently taking Tolvon 20 mg daily but is silent about the severity of his symptoms or the impact of the medications. None of the reports Mr Soames tendered addressed his condition in 2012. Nor do they afford any explanation for why it took him seven months to approach the Court. What is more, Mr Soames’s conduct in connection with the new claim is inconsistent with his contention that his depression accounts for his delay. The material before me shows that Mr Soames was far from idle either during the 28-day period after his appeal was dismissed or in the months that followed. Indeed, for much of that time it seems he was preoccupied with pursuing his new claim. Mr Soames also complained to his local federal member of parliament.

54    For these reasons I reject Mr Soames’s explanation for the delay. I am satisfied that the real reason Mr Soames did not file his appeal within time is that he was refused legal aid and upon its refusal he decided to assert his rights to challenge the Secretary’s decision to reject his new claim, rather than to appeal the AAT’s decision.

55    Even if I were persuaded by Mr Soames’s explanation, I would refuse his application because I am satisfied it is entirely without merit.

The merits of the proposed appeal

56    As the AAT informed Mr Soames in its letter of 23 February 2012, an appeal from the AAT is limited to a question of law (AAT Act, s 44). That means the success of any appeal will depend on whether the AAT erred in law, not fact.

57    Under the heading “Questions of Law” the following appears in the Draft Notice of Appeal (without alteration):

(1)    There was an absence of procedural fairness and natural justice.

(2)    The member made a finding of fact contrary to the evidence.

(3)    The member was extremely bias on the whole judgement.

(4)    The member did not allow vital evidence to be given under examination of the lawyer for the respondent.

(5)    The member allowed the lawyer (knowing she was acting wrongly and against court rules) to continue.

(6)    The member hid vital evidence of the applicant, both verbal and written.

(7)    The member twisted and manipulated the evidence to benefit the respondent.

(8)    The member took advantage of the applicants hearing disability, trouble with English and the severe depression and post-traumatic stress.

58    These are not questions but assertions. As the Court’s jurisdiction is enlivened only by the existence of a question of law, the question of law must be articulated with precision: Federal Commissioner of Taxation v Crown Insurance Services Ltd (2012) 207 FCR 247 at 250 [13] per Lander and Foster JJ; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 325 [18] per Branson and Stone JJ; Khan v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2012] FCA 1060 at [3] per Perram J.

59    There is a lack of precision in Mr Soames’s assertions and the second one does not involve any question of law. Unless the matters raised in the draft notice of appeal were reformulated so as to raise precise legal questions, the Court would have no jurisdiction to entertain an appeal.

60    In substance, however, (the second assertion aside) it appears that Mr Soames’s complaint is that he was denied procedural fairness (or natural justice) because the AAT member who heard his application was biased against him for the reasons given in items 4–8 of the draft notice of appeal.

61    There is no doubt that the AAT was obliged to afford Mr Soames procedural fairness (AAT Act, s 39; Teuila v Minister for Immigration and Citizenship [2012] FCAFC 171 at [14]) and a complaint about a denial of procedural fairness raises a question of law: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at 32 [8] per Gray ACJ and North J.

62    Yet a claim of actual bias (as this plainly is) must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 [69] per Gleeson CJ and Gummow J. The affidavits upon which Mr Soames relies supply no such proof and it is not apparent that Mr Soames is in a position to supply it. Absent actual bias and any question of waiver or necessity, bias may be imputed where a fair-minded observer might reasonably apprehend that the tribunal might not bring an impartial mind to the resolution of the question it is required to decide: Livesey v NSW Bar Association (1983) 151 CLR 288 at 300; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”). Even so, there must be a connection between the events giving rise to the apprehension of bias and the possibility of a departure from impartial decision making: Ebner at 345 [8]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 445 [63].

63    The allegations of procedural unfairness in the present case are fleshed out in the 26-page statutory declaration made on 23 October 2012, apparently sent to the tribunal in support of an application for it to reopen the case the subject of the present appeal or the later proceeding – it is not clear which.

64    The statutory declaration quarrels with numerous statements in the tribunal’s decision. Most of it takes issue with findings of fact. While Mr Soames referred to statements he made or information he provided, he did not refer to the transcript of evidence despite the fact that he told the Court he had a copy of it when he appeared at the first directions hearing on 26 November 2012. Though he does refer to submissions, submissions are not evidence. The tribunal cannot be criticised for not adopting as fact a statement made in submissions.

65    The following propositions can be taken to bear on the allegations of a denial of procedural fairness:

(1)    Senior Member Isenberg “concealed and manipulated” Mr Soames’s submissions and relied solely on the Secretary’s submissions;

(2)    Senior Member Isenberg “manipulated” Mr Soames’s oral and written submissions relating to the $120 000 he left in Syria;

(3)    Senior Member Isenberg “took advantage” of Mr Soames’s hearing disability and poor English by “manipulating” his evidence relating to the intended use of the property in Syria and “twist[ed] the facts”;

(4)    Mr Soames wanted to question Centrelink’s lawyer, Ms Schuster, during the hearing in the tribunal on 6 December 2011, but he had not been allowed to do so. He stated that

(a)    he gave her a copy of a contract on a confidential basis, but she breached the confidentiality; and

(b)    she or someone on her behalf tampered with the date on the contract;

(5)    The manner in which he was questioned by Ms Schuster was “extremely confusing and undirected”;

(6)    The equipment provided to assist his hearing was not working well and he “couldn’t hear correctly”; and

(7)    He had a poor understanding of English and the “lawyer and member did not use the interpreter; they instead made her not useful”.

66    I am unable to discern any factual basis in either the decision or the transcript of the AAT hearing for any of these allegations. As for the claim in point 3 above, the following passage in his statutory declaration reveals this to be a complaint about the factual finding:

I gave detailed evidence in my written submission and verbally where I stated that my intention was to live in my property in Syria for 6 months and 6 months in Sydney with my family. The member manipulated this and said that I brought it with the possibility of living in it, which is very wrong (My evidence in the hearing and in my submission definitely shows this), however I was definitely going there, but the civil war prevented be from going.

67    In any event, the transcript does not support his statement about what his evidence was. It reveals the following exchange:

MR SOAMES: The property, I bought it, somewhere to live in, and also, understood near the property I bought, there is a village, a small village, they’re building a nursing home. A large nursing home complex for older people, I said would be ideal for myself, if something happened or one day I will need for it, move from the property, sell it or contract it to the nursing home, stay in the nursing home, and also, my mother should be near me or possibly … or whatever. I can’t speak for … This is my dram. This is what I was planning for. This is what I’ve done.

[…]

MS ISENBERG: Yes, and now you’re telling me about looking to move somewhere in Syria.

MR SOAMES: Yes.

68    In the light of this evidence it is impossible to see how the tribunal’s statement in [27] of its reasons for decision that “Mr Soames said he bought the property with a view to living in it one day” could be seen as a “manipulation” of his evidence.

69    Throughout the tribunal hearing Mr Soames advanced a theory about a fax machine, crossfire, and an estate agent in Syria changing a copy of the contract. But there is no mention in the transcript of any of the following allegations made in Mr Soames’s statutory declaration:

(a)    that he had wanted to question Centrelink’s lawyer, during the hearing on 6 December 2011, but had not been allowed to;

(b)    that he gave a copy of a contract to Centrelink’s lawyer on a confidential basis, but she breached the confidentiality; or

(c)    that the lawyer or someone on her behalf tampered with the date on the contract.

70    The transcript shows that none of these three matters was raised at the hearing, either directly or indirectly. That is the obvious explanation for the absence of any reference to them in the tribunal’s reasons for decision.

71    During the AAT hearing Mr Soames did say that Ms Schuster should not rely on the second copy of the contract because it had been “slightly altered”. However, he did not say that when he had sent her the contract, he had told her she should not rely on it or that there had been any agreement to that effect.

72    As far as I can tell, the first time Mr Soames indicated that he wanted to question Ms Schuster was when he wrote to the AAT on 19 July 2012 – five months after the decision he wants to appeal was published and seven months after the hearing. This was a request that Ms Schuster be called at the forthcoming hearing. In that letter Mr Soames did assert that he told the Senior Member that “he wanted to ask the solicitor why the confidentiality was broken and she disregarded [his] request”, but the transcript does not bear this out.

73    On several occasions during the AAT hearing Mr Soames complained that he had been “shut off” or stopped from speaking. But I find nothing to indicate that any interventions by the Senior Member were unfair or prevented him from putting any relevant information before the tribunal. On the contrary, she gave him a great deal of latitude to air his grievances and showed considerable patience. There is no foundation whatsoever for the allegations of impropriety levelled against her.

74    I am satisfied that Mr Soames did ask for a transcript and that the tribunal refused to give him one but there are two answers to this complaint. First, the tribunal had no obligation to provide him with a transcript. Secondly, the request was made so that Mr Soames could respond to Ms Schuster’s submissions. Ms Schuster offered to put her submissions in writing. Mr Soames was apparently content with that. In these circumstances the refusal of the request for a transcript could give rise to no appealable error.

75    Apart from Mr Soames’s bare assertions, there is no evidence to substantiate any of the other allegations.

76    The proposed appeal is not merely weak, it appears to be hopeless. Ms Cassidy’s assessment in her letter to Mr Soames seems to sum things up pretty well:

From the transcript of your hearing it is clear that you were given ample opportunity to provide documents and make oral submissions to the Senior Member. The transcript demonstrates that at (sic) the Senior Member was respectful, understanding and accommodating to your requests during the hearing. You were offered an interpreter and given an opportunity to compose yourself to make submissions. Your complaint that you were treated unfairly because of your disability and language difficulty is without foundation.

Conclusion

77    In all the circumstances it is not in the interests of justice to extend the time to appeal. The application should therefore be dismissed. Mr Soames should pay the Secretary’s costs.

Associate:

Dated:    25 March 2013