FEDERAL COURT OF AUSTRALIA

Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 1162

THE COURT ORDERS THAT:

1.    The appeal and the application for judicial review 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.

THE COURT ORDERS THAT:

1.    The appeal and the application for judicial review 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    Fatwidah Arifin appeals from two decisions of the Administrative Appeals Tribunal.

2    The first appeal is concerned with the date from which her disability support pension was granted. The Tribunal backdated her pension to one date. She claims it should have been backdated to an earlier date.

3    The second is a challenge to the Tribunal’s decision that it had no jurisdiction to hear and determine a claim she made for compensation, a claim it characterised as a claim for discrimination on the ground of disability.

4    A party may only appeal from a decision of the Tribunal on a question of law: Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), s 44. Neither of the notices of appeal discloses a question of law. This omission is fatal to the success of both appeals. Ms Arifin appeared to recognise as much. Consequently, in her submissions she invoked the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”), contending that the decisions should be set aside on most of the grounds of review contained in ss 5(1) and 6 (and in some respects 7) of the Act. There is no dispute that a party aggrieved by a decision of the Tribunal may seek judicial review under the ADJR Act. Ms Arifin did not do this. In each case she filed a notice of appeal under s 44 of the AAT Act. Still, the respondent (“the Secretary”) did not take the point and, as she is self-represented, this is understandable. In the circumstances, it is appropriate to treat the notices of appeal as both appeals and applications for judicial review.

5    There is, however, no substance to either appeal or application for judicial review. The Tribunal was correct to hold that it had no power to backdate Ms Arifin’s disability support pension to the earlier date. The Tribunal was also correct to find that it had no jurisdiction to hear her claim for compensation.

The salient facts

6    The salient facts disclosed in the material filed on the appeals are as follows.

7    On 8 February 2009 Ms Arifin, who is Indonesian, became a permanent resident of Australia.

8    On 24 March 2009 she contacted Centrelink by phone about a claim for family tax benefit. She apparently told the Tribunal that she lodged a medical certificate with Centrelink that month but there was no evidence in Centrelink’s records to support her contention and no evidence that she qualified for a disability support pension at that time.

9    On 17 September 2009 Ms Arifin contacted Centrelink about whether she might be entitled to a Newstart allowance.

10    Ms Arifin contacted Centrelink again on 27 September 2010, this time inquiring about a disability support pension and on 11 October 2010 she lodged a claim for that pension. Centrelink rejected her claim because she failed to provide information it had requested. On 11 April 2011 she contacted Centrelink once more about a claim for a disability support pension and on 27 April 2011 she lodged another claim. Centrelink granted her a disability support pension from 14 April 2011.

11    Ms Arifin applied to the Social Security Tribunal (“SSAT”) for review of the decision, claiming she was entitled to payment from 27 September 2010 when she first inquired about the disability support pension. Ms Arifin was successful in the SSAT. It decided that she was indeed entitled to payment from that date.

12    Although she received precisely what she asked for in the SSAT, Ms Arifin applied to the Tribunal for a review of the SSAT’s decision, this time claiming that she was entitled to payment from 8 February 2009 - the day she acquired permanent residency. There is no evidence to suggest she made any application for a social security benefit of any kind on that date.

The two Tribunal decisions

13    In the first case, the Secretary agreed and the Tribunal found that Ms Arifin was entitled to a disability support pension from 17 September 2009 when she inquired about a Newstart allowance: [2013] AATA 429. But the Tribunal held that she was not entitled to the pension from 8 February 2009 or, indeed, at any time before 17 September 2009. The Tribunal announced its decision at the conclusion of the hearing on 4 June 2013. Oral reasons were apparently given at the time but, at Ms Arifin’s request, written reasons were later published.

14    Before going any further it is necessary to say something about the relevant legislation.

15    Section 11(1) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) relevantly provides that, subject to Subdivision B of Pt 3 Div 1 of the Act, a person who wants to be granted a social security payment must make a claim for the payment in accordance with Div 1. Section 16 sets out the requirements for a valid claim. A person makes a claim by lodging a written claim for the payment (subs (1)(a)) or by making the claim in a manner approved by the Secretary for the purposes of subs (7). Subdivision B is entitled “cases where claim not necessary”. The only provision of that subdivision that was conceivably relevant on the facts of this case was s 15 which sets out various circumstances in which a claim is deemed to be made.

16    The Tribunal’s decision was based on s 15(4A) of the Administration Act which states:

For the purpose of the social security law, if:

(a)    a person makes a claim for an income support payment (the initial claim); and

(b)    on the day on which the initial claim is made, the person is qualified for another income support payment (the other income support payment); and

(c)    the person subsequently makes a claim for the other income support payment (the later claim); and

(d)    the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made the later claim on the day on which the initial claim was made.

(Original emphasis.)

17    The Tribunal was satisfied that at the time Ms Arifin contacted Centrelink on 17 September 2009 about the Newstart allowance, she was entitled to a disability support pension. Noting her later claim for the pension, the Tribunal concluded that it was reasonable to apply the subsection in her case, so that she should be taken to have made her claim for the disability support pension on 17 September 2009. The Tribunal observed (at [9]), however, that permanent residency of itself does not entitle a person to a disability support pension and (at [15]-[18]) that Ms Arifin’s contact with Centrelink on 30 March 2009 regarding the family tax benefit could not be taken as an “initial claim” for the purposes of s 15(4A) of the Administration Act. There were two reasons for this second observation.

18    In the first place, the Tribunal noted that claims for family tax benefit are made under a different Act (A New Tax System (Family Assistance) Act 1999 (Cth)) and do not fall within the definition of “income support payment” in s 23 of the Social Security Act 1991 (Cth) (“Social Security Act”).

19    In the second place, the Tribunal said that a claim for a family tax benefit is not a claim for a payment that is similar in character to a “social security payment” as required by s 15(4)(a). (See the definition of “social security payment” in s 23 of the Social Security Act.) Section 15(4) of the Administration Act provides that:

For the purpose of the social security law, if:

(a)    a person makes a claim for a pension, allowance, benefit or other payment under a law of the Commonwealth, other than this Act or the 1991 Act [the Social Security Act], or under a program administered by the Commonwealth, that is similar in character to a social security payment, other than a supplementary payment (the initial claim); and

(b)    when the claim was made, the person was qualified for a social security payment, other than a supplementary payment; and

(c)    the person subsequently makes a claim for the social security payment referred to in paragraph (b)(the later claim); and

(d)    the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made the later claim on the day on which the initial claim was made.

(Original emphasis.)

20    “Supplementary payment” is defined for the purposes of s 15 as one or other of the following: carer allowance, double orphan pension, education entry payment, mobility allowance and pensioner education supplement.

21    The Tribunal referred to Ms Arifin’s statement that she had lodged a medical certificate with Centrelink in March 2009 but said that there was no evidence of that in Centrelink’s records and no evidence that Ms Arifin qualified for the disability support pension at that time.

22    The second decision from which Ms Arifin appeals ([2013] AATA 502]) concerns a claim Ms Arifin made for compensation. The claim apparently emerged during a telephone conversation with an officer of the Tribunal on 23 April 2013, while Ms Arifin’s application for review of the SSAT’s decision was pending. As the Tribunal explained in its reasons for decision at [3]:

In the course of her application for review, Ms Arifin submitted to the Tribunal a large bundle of documents in which she referred to herself as a victim of mental health issues. She described a range of matters including unfair termination of her employment on the ground of mental health issues, vilification and physical assault. She referred to conduct directed at her by the police, Centrelink and her private health fund, and the circumstances in which her infant son died in 1999, which she said amounted to medical negligence.

23    Ms Arifin told the Tribunal officer that she wanted to claim compensation for the matters described in the bundle of documents. But the Tribunal returned the documents to Ms Arifin with a letter advising that it did not have jurisdiction to determine claims for compensation for discrimination. Later, however, Ms Arifin submitted an “application for review of decision” form, referring to the bundle of documents and attaching a letter entitled “appeal for claiming of compensation”, which referred to the material in the bundle of documents.

24    In its reasons the Tribunal explained that it has no general power to review decisions and that it only has jurisdiction to review a decision if the legislation under which the decision is made gives it that power (referring to s 25 of the AAT Act). It said that there was nothing in Ms Arifin’s application which disclosed a decision that was reviewable by the Tribunal. It mentioned that Ms Arifin had referred at the hearing to the Disability Discrimination Act 1992 (Cth) (“Disability Discrimination Act”). The Tribunal noted that complaints about discrimination may be made to the Australian Human Rights Commission but said that there was nothing in the Act or any other legislation that gives the Tribunal jurisdiction to determine complaints of discrimination under that Act. Consequently, it concluded that it had no jurisdiction to consider the matters described in Ms Arifin’s bundle of documents or in her application for review.

The appeal in relation to the backdating of the disability support pension (NSD 1233 of 2013)

25    In her notice of appeal Ms Arifin stated that she was appealing from:

8 February 2009, because disability or illness caused by Medical Negligence (injected by virus) has happened since 1999 … Since then I’ve been disability discrimination because illness/diseases in my body. And first time I contact Centrelink 24 March 2009 – to apply Benefit (see proofs) but be refused by Centrelink.

(Original emphasis.)

26    The “questions of law” are listed as follows:

1.    Federal Rules of Civil Procedure, Rule 52(b)

2.    Disability Discrimination Act 1992

3.    Administrative Appeal Tribunal Act 1975

27    The Federal Rules of Civil Procedure, presumably sourced from an internet search, are rules of civil procedure for the District Courts of the United States of America. The reference to the Disability Discrimination Act is difficult to understand. The decision with which this appeal is concerned raises no question about the Disability Discrimination Act. The reference to the Administrative Appeals Tribunal Act is equally obscure.

28    At the commencement of the hearing of the appeals Ms Arifin handed to the Court a table which she indicated was a summary of her submissions. The table was entitled “Question of Law of AAT (Tribunal’s) Decision is AD(JR) Act 1977 (Cth). Self-evidently, that is a statement, not a question.

29    There is much authority for the proposition that where an appeal is confined to a question of law the question (or questions as the case may be) must be precisely stated because that is what enlivens the court’s jurisdiction. See, for example, Federal Commissioner of Taxation v Crown Insurance Services Ltd (2012) 207 FCR 247 (“Crown”); Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; [2003] FCAFC 232 (“Birdseye”).

30    It follows, as Ryan J observed in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 524, that “grounds in support of [the order sought] would properly assume the resolution of the question of law in favour of the applicant and indicate in a summary way the reasons why that resolution requires the decision of the AAT to be set aside”. The grounds on which Ms Arifin relies do nothing of the kind. They read (without alteration):

1.    In this case Tribunal is not exercise its function and power according to the Law and has put aside a decision that suppose not to happen.

    I hope in deciding dispute, the Court has to objective according to “the Court’s Jurisdiction”, promptly courteously and effectively and in so doing, to interpret the STATUTORY LAW and develop the general Law of the Commonwealth, so as to fulfil the role of a court exercising the Judicial Power of the Commonwealth under the Constitution.

2.    A fairness decision of Court where everything has to base on reality or facts if fair related to the supportive evidences so it can be decided in exercises power of jurisdiction in dispute between me as applicant and Respondent.

31    Ms Arifin applied for two orders.

32    The first was an order that she be referred to a lawyer. On 29 July 2013 I referred Ms Arifin to a lawyer for legal assistance in accordance with r 4.12 of the Federal Court Rules 2011 (Cth). A barrister accepted the referral. On 26 August 2013, however, the barrister was granted leave to withdraw.

33    The second order is in the following terms (without alteration):

to find out the solutions base on facts and reality from all proofs of incidents that has happened to me as disability discrimination person and compensation as the balance from all these criminal injuries and loss. And it’s have to related to Alternative Dispute Resolution (ADR) guidelines, in legislative framework, Administrative Appeals Tribunal Act 1975, in section 2A: “In carrying out its functions the Tribunal must pursue the objective of providing a mechanism for Review that is fair, just economical in formal and quick”.

34    Ms Arifin’s contention is that her disability support pension should have been backdated to 8 February 2009 – the date she obtained permanent residency. She did not submit that there was any error in the decision not to backdate the pension to the date she applied for the family tax benefit. Indeed, at the hearing she confirmed that she did not claim that her pension should have been backdated to that date in the alternative. In support of her contention that the Tribunal erred in failing to backdate the pension to 8 February 2009 Ms Arifin wrote in her written submissions:

Why since this date? because I have been suffered from October 1999, after I was birthed my baby, the baby died and my body was injured from virus that had injected to my stomack through “Chromosom Test” by Dr Challis, Randwick Woman Hospital. Since then I have been using NATURAL REMEDY to fix my health.

35    This submission affords no basis for setting aside the Tribunal’s decision for error of law.

36    During oral argument I pressed Ms Arifin to identify the legal error in the Tribunal’s decision. She submitted that the Tribunal erred in law because the decision was not in accordance with the ADJR Act. She said she had been disabled since 1999 and had been granted permanent residency on 8 February 2009. She claimed that that was an error of law because the Tribunal failed to address the relevant factors and included irrelevant factors in its decision. She pointed to a “letter” from a doctor which, she said, contained some untruths. I understood her to be saying that the Tribunal should not have taken into account the opinion of her general practitioner. She referred to the diagnosis made by her GP of depression with fixed delusions. Ms Arifin asserted that the diagnosis was a “fraud”. The Tribunal did not expressly refer to this opinion in its reasons. There is no evidence of fraud. Fraud must be strictly proved. A mere assertion will not do. In any event, there is nothing to indicate that the Tribunal took anything said in the medical certificates into account in any way adverse to Ms Arifin’s interests.

37    In her written submissions Ms Arifin did not articulate a question of law but purported to rely on the following grounds of judicial review:

1.    The decision was made in breach of natural justice.

2.    There was an error of law in process of making decision.

3.    Relevant factors (fact factors/real matters) were not taken into account.

4.    Irrelevant factors were taken into account.

5.    The decision was made for an improper purpose or in bad faith.

6.    No jurisdiction.

7.    The decision maker acted under dictation.

8.    The decision was so unreasonable or that no reasonable decision maker could have made it for improper purposes (like recommendation from Concord Hosp).

9.    Conduct for the purpose of making decision (such as incident of Concord hosp H/health – assault.

10.    Methods or procedures of the administrative body/official did not follow proper procedures in reaching its conclusions.

38    There was little exposition of any of these matters in the written submissions.

39    In oral argument Ms Arifin submitted that the Tribunal erred by asking her whether she was mentally ill, a question she submitted was irrelevant to the issue of whether the pension should be backdated. But there is no evidence to indicate that the Tribunal in fact asked her such a question, or, if it did, that there was no proper purpose in doing so. The appeal book did not include a transcript and Ms Arifin did not provide the Court with one.

40    Ms Arifin submitted that the Tribunal acted in bad faith and for an improper purpose because it failed to investigate the GP’s diagnosis. This submission must also be rejected. There is no evidence of bad faith or improper purpose. Bad faith implies “a lack of an honest or genuine attempt to undertake the task” (SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19]). Here, the task for the Tribunal was to decide whether the disability support pension should be backdated. That was also its purpose. No part of that inquiry called for an investigation into whether the doctor’s diagnosis was “fraudulent”. The reasons for decision do not suggest anything other than an honest and genuine attempt to undertake the task .

41    Ms Arifin also submitted that the Tribunal erred by referring to the Social Security Act. She claimed that, instead, it should have referred to the ADJR Act “because I use Natural Remedies to fixed my health”. The Tribunal did not err in referring to the Social Security Act. The case was concerned with the operation of certain provisions of the Administration Act. Section 3(2) of the Administration Act states that expressions that are used in the Social Security Act have the same meaning when used in the Administration Act. Accordingly, it was necessary to refer to the Social Security Act to determine the meaning of certain expressions in the Administration Act. Nor did the Tribunal err in not referring to the ADJR Act. Indeed, had it done so it would have been in error. A person aggrieved by a decision to which the ADJR Act applies may apply for an order of review to this Court or to the Federal Circuit Court of Australia but not to the Tribunal. The ADJR Act had nothing to do with either of Ms Arifin’s applications.

42    Although Ms Arifin had applied to the Tribunal to have the SSAT’s decision set aside, she argued that the Tribunal erred in doing so because:

    It was “a breach of their natural justice”;

    There were “laws which the Tribunal has received and it’s in regards to the constitutional writ … called certiorari”; and

    It was a jurisdictional error.

43    This argument, like the others, has no substance.

44    No submissions were made to support the assertion that the Tribunal acted under dictation and there is no evidence to substantiate it.

45    Although both the Disability Discrimination Act and the AAT Act were mentioned in the “questions of law” in the notice of appeal, no submissions were made purporting to raise any question of law concerning or arising out of either Act.

46    None of the other matters to which Ms Arifin referred in her notice of appeal and her written and oral submissions would entitle this Court to overturn the Tribunal’s decision.

47    There is in fact no basis for calling the decision into question. There was no evidence before the Tribunal that on 8 February 2009 (or, for that matter, at any time before 17 September 2009) Ms Arifin had lodged a written claim for a social security payment in accordance with s 11(1) of the Administration Act. Nor did Ms Arifin submit that she had. Subdivision B of s 11(1) (which includes the deeming provisions of s 15) lists the cases where a claim is unnecessary. The fact of permanent residency is not one of them.

48    It is unnecessary to decide whether the Tribunal erred in concluding that the claim for a family tax benefit did not fall within the terms of s 15(4) or (4A) because Ms Arifin made it clear that she was not challenging the Tribunal’s decision in this respect. I would, however, observe that there would appear to be no basis to impugn that decision either. The Tribunal was correct to hold that a family tax benefit is not an income support payment. “Income support payment” is defined in s 23 of the Social Security Act to mean one of the following: a social security benefit, a job search allowance, a social security pension, a youth training allowance, a service pension or an income support supplement. Each of these terms is also defined. A family tax benefit does not meet the description in any of the definitions. Consequently, s 15(4A) could not apply. Additionally, no evidence was submitted to the Tribunal to show that Ms Arifin qualified for a disability support pension at the time she applied for a family tax benefit and this circumstance alone means that the conditions that would enliven the discretion of the Secretary (or the Tribunal “standing in the Secretary’s shoes”) conferred by s 15(4) could not be satisfied.

49    It follows that the appeal and the application for judicial review under the ADJR Act must be dismissed.

The appeal from the Tribunal’s finding as to jurisdiction (NSD 1617 of 2013)

50    Once again, no questions (or purported questions) of law were identified in the notice of appeal. The grounds were described in the following terms (without alteration):

I hope in deciding dispute of the court has to objective according to the Court’s Jurisdiction, promptly, courteously and effectively and in so doing to interpret the statutory Law and develop the general Law of Commonwealth, so as to fulfil the role of a Court in exercising the Judicial Power of the Commonwealth under the Constitution.

51    In substance, Ms Arifin’s complaint was that the Tribunal failed to consider the merits of her claim for compensation. She was disturbed that the case only took an hour to be heard and that she was asked no questions about the matters she had raised in the material she submitted in support of her claim. She submitted that before dismissing her claim on the basis that it had no jurisdiction, the Tribunal should have contacted all the people against whom she had a grievance as outlined in that material in order to investigate whether or not her grievances were well-founded. As she put it “the Tribunal have to – they really have to look into what has happened and all the explanations about this matter of what has happened to me”. Each of the grounds relied upon under the ADJR Act was invoked to support this basic point.

52    Ms Arifin referred to natural justice. Natural justice is the right to a fair hearing. It has two limbs: the right to be heard before an adverse decision is made and the right to a hearing before an impartial tribunal. Ms Arifin submitted that “the Tribunal has failed to use its power in relation to natural justice to continue with the hearing”. But the sole purpose of the hearing was to hear argument about whether the Tribunal had jurisdiction. There is transcript of this hearing. That transcript discloses that the senior member made the purpose of the hearing very clear to Ms Arifin and that she understood what the senior member said to her. The transcript also shows that Ms Arifin was given a full and fair opportunity to be heard on the question of jurisdiction. I accept, as Ms Arifin submitted, that she was not given an opportunity to be heard in relation to the substance of her claims. But unless the Tribunal had jurisdiction to award her compensation, there was no point to such an inquiry.

53    In her written submissions Ms Arifin contended that there was an appearance of bias but did not elaborate on the submission at any point. The test for apprehended bias in relation to proceedings in a court is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question it is called upon to decide: Johnson v Johnson (2000) 201 CLR 488 at [11]. The test in an administrative tribunal, like the Tribunal, is no different: Mellor v Australian Postal Corporation (2010) 51 AAR 498; [2010] AATA 288; (per Downes J); Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28. As the High Court said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 and stressed in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [63], two steps are required. First, it is necessary to identify what might lead the Tribunal to decide a case other than on its legal and factual merits. Second, “there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits” (Michael Wilson & Partners Limited v Nicholls at [63]). Ms Arifin did not indicate what it was that might lead the Tribunal to decide her case other than on its legal merits (the question of its factual merits being irrelevant at this point). She merely asserted that there was an appearance of bias. That is not good enough.

54    There is no error in the AAT’s decision that it lacked the jurisdiction to award compensation for disability discrimination. The Tribunal was correct for the reasons that it gave.

55    Ms Arifin submitted, however, that her claim was not confined to disability discrimination.

56    That much is undoubtedly true. Her claim for compensation is wide ranging. In a document entitled “appeal for claiming of compensation” which was filed with the Tribunal on 11 April 2013 she made numerous complaints going back to 1998. She complained that she had been unfairly terminated from her employment in 1998. She complained that various vehicles she had were struck and damaged by strangers. She complained that she had been assaulted. She complained of a dispute with her neighbours. She complained that the police had incarcerated her husband and taken her daughter away. She complained that the “RTA” had suspended her licence for no reason and that it had also suspended her husband’s licence. She complained about staff at the health fund, NIB. She complained about numerous public utility companies hitting the family with excessive bills. She complained of problems with her internet connection. She complained of negligence on the part of a number of doctors and of fraud by one of them with whose diagnosis she vehemently disagrees. She also complained about Centrelink’s failure to backdate her pension.

57    Ms Arifin claimed that the Secretary is liable to compensate her for this conduct “because this is all related and this is the government – the Australian Government”.

58    The Tribunal was well aware of the breadth of Ms Arifin’s complaints but the transcript of the hearing clearly shows why it referred to compensation for disability discrimination. That was because, as Ms Arifin acknowledged during oral argument, when the senior member sought clarification as to the basis for her claim she submitted that the Disability Discrimination Act was the source of her entitlement:

SENIOR MEMBER: Am I right that the treatment that you say those agencies have given you has been to do with a range of things, including how you have been death with by mental health authorities for things that have happened to do with the police, to do with your employment – a whole range of things that have affected your life?

…

Also, that you say there was medical negligence concerning your baby. What I want to understand, Ms Arifin, is looking at what you have said I cannot see where there is a decision that the law says this tribunal can review. I can see things have happened that you are most unhappy about and you disagree with, but when I look at the Tribunal’s jurisdiction list I cannot see any legislation that gives the Tribunal power to review those kinds of matters. So what I want to ask you, Ms Arifin, is why do you say the Tribunal has got the power to review these things?

APPLICANT: I was convinced that the Tribunal has – had the power to exercise the power because this had something to do with disability discrimination which has happened to me.

…

SENIOR MEMBER: [T]his is not every decision made about compensation but generally some decisions concerning workers compensation, some decisions concerning taxation, some decisions concerning pensions paid to veterans … And there are others, but they are the main part of the decisions that the Tribunal will review.

APPLICANT: Yes, but Disability Discrimination Act 1992, “DDA”. Came into effect on 1 March 1993.

59    The senior member then explained to Ms Arifin that if she had a complaint of disability discrimination she could make it to the Human Rights Commission but there was nothing the Tribunal could do about it. Ms Arifin appeared to have some trouble coming to terms with this proposition, ultimately accepting it, but at the same time pleading with the Tribunal to help her:

APPLICANT: Yes, in view of the explanation – your explanation – I realise that the Tribunal doesn’t have any jurisdiction to review the decision. But can’t the Tribunal do something to help me in view of this Disability Discrimination Act 1992?

SENIOR MEMBER: No. That’s the answer, no. I know that sounds harsh but, no, we haven’t got the power.

APPLICANT: Is it not power, this legislation?

60    In these circumstances the Tribunal cannot be criticised for focussing on the Disability Discrimination Act.

61    Regardless, as the Tribunal pointed out, there is a more fundamental reason why the Tribunal had no jurisdiction to entertain Ms Arifin’s application. Although she filed an application for review, the application failed to disclose the decision to be reviewed, the date of the decision or the identity of the decision-maker. The narrative “claim”, which accompanied it, did not do so either. The Tribunal does not have an unlimited jurisdiction to investigate injustice wherever it may occur. Its jurisdiction is confined by the terms of the AAT Act. Section 25 relevantly provides:

25    Tribunal may review certain decisions

Enactment may provide for applications for review of decisions

(1)    An enactment may provide that applications may be made to the Tribunal:

(a)    for review of decisions made in the exercise of powers conferred by that enactment; or

(b)    for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

…

Tribunal’s power to review decisions

(4)    The Tribunal has power to review any decision in respect of which application is made to it under any enactment.

62    In other words, the Tribunal has power to review a decision and then only in cases where an enactment provides for an application to be made to the Tribunal (Re Qantas Airways Ltd and Deputy Commissioner of Taxation (Western Australia) (1979) 2 ALD 291 (“Qantas Airways”) at 292 per Davies J). “Enactment” is defined in s 3 of the AAT Act to mean an Act (which is a reference to an Act of the Commonwealth Parliament), an Ordinance of a Territory other than the Northern Territory or the Australian Capital Territory, or an instrument made under an Act or such an Ordinance. For example, in the case the subject of the first appeal the Tribunal had jurisdiction because the Administration Act provided (in s 179) that applications could be made to the Tribunal for review of a decision of the SSAT. In this second matter, the Tribunal was not invited to review any decision under any relevant enactment. Unless an enactment empowers the making of the application to the Tribunal, the application is not made under an enactment and the Tribunal has no jurisdiction: Qantas Airways at 293. Neither in the Tribunal nor in this Court did Ms Arifin refer to such an enactment. The Tribunal was not entitled to inquire into the treatment of which she complained. It follows that it committed no error in failing to do so.

63    In an attachment to her notice of appeal and in her written submissions Ms Arifin referred to a decision to refuse her compensation made by a legal officer in the People and Customer Compensation Legal Branch of the Department of Human Services. That decision appears to have been made on 10 July 2013, five days before the hearing in the Tribunal. I was not taken to any enactment conferring on the Tribunal a power to review such a decision. In any event, there is nothing to suggest that the Tribunal was asked to review this decision, nor indeed that it was even informed of this decision. In fact, it appears that Ms Arifin, herself, was not aware the decision had been made until after the Tribunal hearing. Ms Arifin expressed her disappointment with that decision in the written submissions filed in this appeal and attacked the decision as a breach of natural justice which should be reviewed under ss 3, 5, 6 and 7 of the ADJR Act. But no application was made under the ADJR Act or otherwise for a review of that decision either to this Court or to the Tribunal. Consequently, for present purposes the decision is entirely irrelevant.

64    For completeness, I should add that Ms Arifin also complained of decisions of the Victims Compensation Tribunal of New South Wales, the Health Care Complaints Commission of New South Wales and the Supreme Court of New South Wales (striking out a statement of claim she filed in 2012), citing various provisions of the ADJR Act. Further, she complained that she had received no response to complaints that she had made to former Prime Ministers Gillard and Rudd. None of these matters was reviewable in the Tribunal.

65    For all these reasons the Tribunal was correct to dismiss the claim for want of jurisdiction and both the appeal from this decision and the application under the ADJR Act must be dismissed.

Addendum

66    Strictly speaking, having regard to the terms of r 9.05 of the Federal Court Rules 2011 (Cth) (“FCR”) and Practice Note CM 21, the Tribunal should have been added as a respondent in both proceedings. Ms Arifin did not apply for such an order. The Court has the power to make an order of its own motion: FCR r 1.40. In view of the conclusions I have reached, however, no such order need be made.

Costs

67    The usual order is that costs follow the event. There is no reason why the usual orders should not be made in this case.

Associate:

Dated:    7 November 2013