FEDERAL COURT OF AUSTRALIA

Williams v IS Industry Fund Pty Ltd [2016] FCA 524

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Superannuation Complaints Tribunal dated 17 March 2015 be set aside.

3.    The matter be remitted to the Superannuation Complaints Tribunal to be heard and determined according to law and the reasons herein.

4.    The first respondent is to pay the applicant’s costs of the appeal.

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

REASONS FOR JUDGMENT

REEVES J:

Introduction

1    Mr Joseph Stephen Williams (the deceased) was, until his untimely death in November 2011, a member of the Intrust Super Fund. IS Industry Fund Pty Ltd (IS Industry) was the trustee of that Fund. Subsequent to the deceased’s death, IS Industry decided, in its capacity as trustee, not to pay a death benefit payable under the Rules of the Fund to the deceased’s father, Mr Joseph Francis Williams. Instead, it decided to pay the death benefit to Mr Bradley Selvig, the deceased’s brother and legal personal representative of his estate. Critical to that decision was the question whether the deceased had an “interdependency relationship” with his father, Mr Williams.

2    After unsuccessfully objecting to IS Industry’s decision, Mr Williams lodged a complaint with the Superannuation Complaints Tribunal (the Tribunal). In March 2015, the Tribunal affirmed IS Industry’s decision. Mr Williams has now appealed the Tribunal’s decision to this Court.

The factual background

3    The deceased was born on 22 July 1980. At the age of 4, he was diagnosed with neurofibromatosis. He lived in Ohio, in the United States of America, with his parents, Mr Williams and Ms Katherine Grunwell, until their divorce in about 1999/2000. Following his parents’ divorce, the deceased lived in Ohio with his mother. From 2000 to 2005, he attended college in Pittsburgh and during most of this period he lived on campus. He would, however, return to his mother’s home in Ohio during college breaks.

4    From September 2005 until November 2010, the deceased lived variously in Pittsburgh, New York and Philadelphia in the United States of America. In November 2010, he commenced working for the Club Med organisation in the Whitsunday Islands, in Queensland, Australia. Upon commencing that employment, he joined the Intrust Super Fund.

5    On 1 May 2011, he took two weeks’ planned leave and returned to Ohio, where he stayed with his father. At the conclusion of his leave, he was scheduled to commence work at the Club Med resort at Turkoise in the British West Indies. However, at about that time he was diagnosed with cancer and, as a consequence, he never resumed his employment. In late June 2011, he was admitted to hospital in Cincinnati, Ohio for palliative care treatment. He remained in hospital until late September 2011, at which time he was transferred to a hospice in Michigan.

6    He executed his last will on 4 October 2011. He passed away on 7 November 2011. Mr Selvig was appointed as the legal personal representative of his estate on 29 November 2011.

The nature of this appeal

7    Mr Williams’ right of appeal is conferred by s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the SRC Act). It relevantly provides:

Appeals to Federal Court of Australia from determinations of the Tribunal

(1)    A party may appeal to the Federal Court, on a question of law, from the determination of the Tribunal.

(2)    …

(3)    The Federal Court is to hear and determine the appeal and may make such order as it thinks appropriate.

(4)    Without limiting by implication the generality of subsection (3), the orders that may be made by the Federal Court on an appeal include an order affirming or setting aside the determination of the Tribunal and an order remitting the matter to be determined again by the Tribunal in accordance with the directions of the Court.

(5)    …

8    It can be seen that the right of appeal under s 46 is confined to “a question of law”. The same terminology is used in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). That terminology was recently considered by a Full Court of five judges in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 (Haritos). As to what constituted a question of law, the Court set out the relevant principles (at [62]) and concluded that the issue was one of substance, not form, as follows (at [94]):

In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.

The Court went on to emphasis (at [97]) that the jurisdiction to entertain an appeal is not dependent on the drafting of the notice of appeal.

9    Dealing specifically with s 46 of the SRC Act, in Board of Trustees of the State Public Sector Superannuation Scheme v Edington (2011) 119 ALD 472; [2011] FCAFC 8 (Edington), Kenny and Lander JJ made the following helpful observations about the jurisdiction invoked by an appeal under that section (at [36]):

The jurisdiction invoked by Mr Edington in the proceeding before the primary judge was that conferred by s 46(1) of the Complaints Act, which provides that a party to a proceeding before the tribunal may appeal to the Federal Court on a question of law. The jurisdiction is thus a limited one. The appeal for which s 46(1) provides is a proceeding in the original jurisdiction of the court. The subject matter of an appeal under this provision is the question or questions of law on which the appeal is brought. No appeal under s 46(1) will lie from the tribunal’s findings of fact, unless those findings were reached in a manner giving rise to a question of law: see, for example, Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12 per Davies and Beazley JJ and at 16 per Hill J. Accordingly, if the question is whether the decision-maker in answering questions of fact failed to take into account a relevant consideration, had regard to an irrelevant consideration, adopted a wrong approach, or reached a decision so unreasonable that no reasonable decision-maker could have come to it, then that question is a question of law: see Sharp at 12.

(Emphasis in original)

It should be noted that Edington was referred to with apparent approval by the Full Court in Haritos: see at [158].

10    The sorts of questions that do, or do not, constitute questions of law in this context were conveniently summarised by Griffiths J in Friar v Brown [2015] FCA 135 (Friar). While that decision predates Haritos, I do not consider the following propositions are affected by anything that was said in Haritos. The following questions were identified by Griffiths J as falling within, or without, that criterion (at [70]–[72]):

70    Thirdly, generally speaking, issues relating to the weight to be given to evidence do not give rise to a question of law (see Board of Trustees of the State Public Sector Superannuation Scheme v Edington [2011] FCAFC 8; (2011) 119 ALD 472 (Edington) at [61] per Kenny and Lander JJ).

71    Fourthly, no appeal lies under s 46 of the SRC Act from the Tribunal’s findings of fact, unless those findings were reached in a manner which gives rise to a question of law (see, for example, Edington at [36] per Kenny and Lander JJ). There is no error of law simply in making a wrong finding of fact (Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J). Justice Foster recently expressed the principle in Hannover Life Re of Australasia Pty Ltd v Wright [2014] FCA 1163 at [21]:

… Where a choice falls to be made between two conclusions open on a consideration of the facts, the question is one of fact.

72    Fifthly, the question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law, at least where a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words (Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 and Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 16 per Hill J). More recently, in Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24], the High Court (Gleeson CJ, Gummow and Callinan JJ) observed, in the context of an appeal confined to a question of law from a trial court, that:

Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way … whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation …

    And at [27], their Honours referred approvingly to Mason J’s statements in Hope v Bathurst City Council (1980) 144 CLR 1 at 8-9 that:

… when it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute a question of law will be involved, but that the question may be a mixed one of fact and law. … [A] question exclusively of law arises … if, on the facts found only one conclusion is open.

The questions of law in this appeal

11    Mr Williams’ notice of appeal contains seven grounds of appeal. From those grounds, he claims seven questions of law arise, as follows:

1.    Whether the Tribunal misconstrued s 10A of the Superannuation Industry Supervision Act 1993 (“the Act”) as requiring it to determine whether the Applicant and the deceased had an interdependency relationship in May 2011 as being “prior” to the death, whereas on the proper construction of s 10A of the Act the Tribunal was required to determine whether the Applicant and the deceased had an interdependency relationship immediately before the death of the deceased on 7 November 2011?

2.    Whether in determining whether the Applicant and the deceased had an interdependency relationship immediately before the death of the deceased on 7 November 2011 (if it did so), the Tribunal had regard to an irrelevant consideration, namely the fact that the deceased and the Applicant were not living together before May 2011?

3.    Whether the Tribunal misconstrued s 10A of the Act in finding that during the two weeks during which the deceased ‘stayed with” the Applicant in May 2011, he was not living with the Applicant, whereas on the proper construction of s 10A of the Act, during the two weeks during which the deceased ‘stayed with” the Applicant in May 2011, he was living with the Applicant?

4.    Whether the Tribunal misconstrued s 10A of the Act as requiring it to determine whether the reason the Applicant and the deceased were not living together before May 2011 was that the Applicant suffered from a physical disability, whereas on the proper construction of s 10A of the Act, the Tribunal was required to determine whether the reason the Applicant and the deceased were not living together immediately before the death of the deceased on 7 November 2011 was that the Applicant suffered from a physical disability?

5.    Whether the Tribunal was required to but failed to address the questions of whether:

(a)    the reason the Applicant and the deceased were not living together immediately before the death of the deceased on 7 November 2011 was that the Applicant suffered from a physical disability; and

(b)    the Applicant and the deceased had an interdependency relationship immediately before the death of the deceased on 7 November 2011?

6.    Whether the Tribunal was required to, but failed to take into account the financial support, domestic support and personal care provided by the Applicant to the deceased between May 2011 and the date of his death on 7 November 2011 in determining whether:

(a)    the reason the Applicant and the deceased were not living together immediately before the death of the deceased on 7 November 2011 was that the Applicant suffered from a physical disability; and

(b)    the Applicant and the deceased had an interdependency relationship immediately before the death of the deceased on 7 November 2011?

7.    Whether, on the facts found by the Tribunal, the Tribunal should have concluded in the Applicant’s favour that the reason the Applicant and the deceased were not living together immediately before the death of the deceased on 7 November 2011 was that the deceased suffered from a physical disability and that but for his requirement for hospital and hospice care, he would have, given his illness, lived with and have been provided with care by his father, the Applicant, and no other conclusion was open to the Tribunal?

12    Taking into account the matters identified in Haritos (see at [8] above), I consider four of these seven questions are, in substance, questions of law. They are questions 1, 2, 4 and 5. All of those questions revolve around whether the Tribunal, in making its determination about whether Mr Williams and his son were in an interdependency relationship as defined in the Superannuation Industry (Supervision) Act 1993 (Cth) (the SIS Act), and the Superannuation Industry (Supervision) Regulations 1994 (Cth) (the SIS Regulations), was bound to consider certain matters as relevant considerations and, if so, whether, it failed to do so. In my view, these are, therefore, questions of law of the kind outlined in Edington above (at [9]). Noting that question 2 is essentially subsumed in question 1 and questions 5(a) and 5(b) essentially replicate questions 4 and 1 respectively, I consider these four questions of law can be reduced to the following two matters:

(a)    whether, on a proper construction of s 10A of the SIS Act, the Tribunal was required to determine whether Mr Williams and his son had an interdependency relationship immediately before the death of the latter on 7 November 2011, and, if so, whether it failed to do so;

(b)    whether, on a proper construction of s 10A of the SIS Act, the Tribunal was required to consider whether, if Mr Williams and his son were not living together immediately before the death of the deceased, that was so because the latter suffered from a physical disability, and, if so, whether it failed to do so.

13    However, I consider the remaining three questions posed by Mr Williams (at [11] above) are truly questions of fact: questions 3, 6 and 7. That is so because they essentially raise questions about the manner in which the Tribunal dealt with the evidence before it of the kind identified in Friar above (at [10]).

The rules and the related legislative provisions

14    As I have already mentioned, the expression “interdependency relationship” is critical to the outcome of this appeal. That expression is used in the Rules of the Intrust Super Fund and is also to be found in the SIS Act. The Rules of the Intrust Super Fund are set out in the Trust Deed governing the operation of the Fund. Relevantly, those Rules state that, following the death of a member of the Fund, the death benefit payable in respect of that member may be paid, as IS Industry decides to:

(a)    nominated beneficiaries (if any) or other dependants of the deceased member; or

(b)    the deceased member’s legal personal representative.

15    A number of the terms used in this Rule are defined elsewhere in the Trust Deed. The expression “nominated beneficiary” is defined to mean one or more dependants, or the legal personal representative of a member, nominated by the member as a nominated beneficiary. Further, the expression “dependant” is defined to mean the spouse, child, person in an interdependency relationship, or any other person financially dependent on the deceased member. Finally, the expression “interdependency relationship” is defined as having the same meaning as is contained in the SIS Act and the Regulations prescribed under that Act.

16    The expression “interdependency relationship” is defined in s 10A of the SIS Act as follows:

Interdependency relationship

(1)    Subject to subsection (3), for the purposes of this Act, 2 persons (whether or not related by family) have an interdependency relationship if:

(a)    they have a close personal relationship; and

(b)    they live together; and

(c)    one or each of them provides the other with financial support; and

(d)    one or each of them provides the other with domestic support and personal care.

(2)    Subject to subsection (3), for the purposes of this Act, if:

(a)    2 persons (whether or not related by family) satisfy the requirement of paragraph (1)(a); and

(b)    they do not satisfy the other requirements of an interdependency relationship under subsection (1); and

(c)    the reason they do not satisfy the other requirements is that either or both of them suffer from a physical, intellectual or psychiatric disability;

they have an interdependency relationship.

(3)    The regulations may specify:

(a)    matters that are, or are not, to be taken into account in determining under subsection (1) or (2) whether 2 persons have an interdependency relationship; and

(b)    circumstances in which 2 persons have, or do not have, an interdependency relationship.

(Emphasis in original)

17    As is anticipated by the words “subject to” in ss 10A(1) and (2) above and s 10A(3) itself, the SIS Regulations set out various criteria which must be taken into account in determining whether two people have, or had, an “interdependency relationship”. In particular, reg 1.04AAAA states:

(1)    For paragraph 10A(3)(a) of the Act, the following matters are to be taken into account in determining whether 2 persons have an interdependency relationship, or had an interdependency relationship immediately before the death of 1 of the persons:

(a)    all of the circumstances of the relationship between the persons, including (where relevant):

(i)    the duration of the relationship; and

(ii)    whether or not a sexual relationship exists; and

(iii)    the ownership, use and acquisition of property; and

(iv)    the degree of mutual commitment to a shared life; and

(v)    the care and support of children; and

(vi)    the reputation and public aspects of the relationship; and

(vii)    the degree of emotional support; and

(viii)    the extent to which the relationship is one of mere convenience; and

(ix)    any evidence suggesting that the parties intend the relationship to be permanent;

(b)    the existence of a statutory declaration signed by one of the persons to the effect that the person is, or (in the case of a statutory declaration made after the end of the relationship) was, in an interdependency relationship with the other person.

(2)    For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:

(a)    they satisfy the requirements of paragraphs 10A(1)(a) to (c) of the Act; and

(b)    one or each of them provides the other with support and care of a type and quality normally provided in a close personal relationship, rather than by a mere friend or flatmate.

Examples of care normally provided in a close personal relationship rather than by a friend or flatmate:

1.    Significant care provided for the other person when he or she is unwell.

2.    Significant care provided for the other person when he or she is suffering emotionally.

(3)    For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:

(a)    they have a close personal relationship; and

(b)    they do not satisfy the other requirements set out in subsection 10A(1) of the Act; and

(c)    the reason they do not satisfy the other requirements is that they are temporarily living apart.

Example for paragraph (3)(c): One of the persons is temporarily working overseas or is in gaol.

(4)    For paragraph 10A(3)(b) of the Act, 2 persons have an interdependency relationship if:

(a)    they have a close personal relationship; and

(b)    they do not satisfy the other requirements set out in subsection 10A(1) of the Act; and

(c)    the reason they do not satisfy the other requirements is that either or both of them suffer from a disability.

…

18    The SRC Act is also pertinent to the determination of this appeal. Under s 37(6) of the SRC Act, the Tribunal was required to affirm the decision of IS Industry if it was satisfied that decision, in its operation in relation to Mr Williams and Mr Selvig, was fair and reasonable in the circumstances. This issue was examined by Griffiths J in Friar at [73]–[76].

The Tribunal’s reasons for determination

19    The Tribunal devoted most of its Reasons for Determination to outlining various procedural matters, setting out the factual background to the matter, detailing the relevant parts of the Trust Deed for the Intrust Super Fund, and recording in quite some detail the submissions made on behalf of both Mr Williams and Mr Selvig.

20    In the final section of its Reasons – the Deliberations and Findings section – after briefly describing its function, the Tribunal specifically noted that, in making its determination, it had taken “into account the whole of the evidence and submissions of the parties”. The Tribunal then analysed the relevant clauses of the Trust Deed with reference to the submissions of the parties. Having done so, it formed the view that Mr Williams could only bring himself within the terms of the definition of a “nominated beneficiary” if he were able to establish he was in an “interdependency relationship” with his son, or he was financially dependent on him. The Tribunal disposed of the latter question elsewhere in its Reasons (see at [26] below) and no issue is raised about that matter in this appeal. The Tribunal therefore focused on the former question: whether Mr Williams was able to establish he was in an interdependency relationship with his son.

21    After mentioning that the meaning of the expression “interdependency relationship” is the same as that contained in the SIS Act and SIS Regulations, the Tribunal identified the issue it had to determine in these terms:

46.    Under sl0A of the SIS Act, two persons are in an interdependency relationship if they live together or, if they do not live together, the reason they don’t is that one of them suffers from a physical, intellectual or psychiatric disability. There is no evidence that, whilst the Deceased Member was working in Australia shortly before his death, he was suffering from any physical, intellectual or psychiatric disability.

47.     The issue for the Tribunal, therefore, in determining whether the Trustee’s decision was fair and reasonable, is whether the Complainant and the Deceased Member were living together prior to the latter’s death.

22    The Tribunal then turned to consider the evidence relating to that issue, as follows:

48.    The evidence provided to the Tribunal of the places at which the Deceased Member lived from May 2003 until May 2011 shows that he did not, in that period, live in the same city as the Complainant.

49.    A letter from the Deceased Member’s last employer, of 15 September [2014] states that he worked at the employer’s resort in Australia and that his last day of work at that location was 1 May 2011. He was then going on two weeks leave of absence and was scheduled to return to work on 18 May 2011 at the employer’s resort in an overseas country.

23    Based on that evidence the Tribunal made the following finding:

50.    The Tribunal, therefore, finds that the Deceased Member was not living with the Complainant prior to his death and the two weeks that he stayed with the Complainant in May 2011 were whilst he was on vacation from his job and that he was due to live overseas after the two week vacation.

24    Thereafter, the Tribunal referred to, and disposed of, a contention put on behalf of Mr Williams that his son used his address as his principal place of residence as follows:

51.    The Complainant has argued that the fact that the Complainant’s address was the address used by the Deceased Member as his address shown on his driver’s licence and for electoral purposes demonstrated that the Complainant’s address was the Deceased Member’s principal place of residence.

52.    Whether or not that was the Deceased Member’s principal place of residence is not the relevant test to determine whether there was an interdependency relationship. The requirement of section 10A of the SIS Act is that the two parties must live together. For the reasons given above, the finding of the Tribunal is that the Complainant and the Deceased Member did not live together. Rather, the Deceased Member lived independently in Australia and the intention was that he would resume his employment by living overseas.

25    Having disposed of that contention, the Tribunal confirmed, and expanded on, its finding above, finding that Mr Williams was not a “nominated beneficiary” within the terms of the Trust Deed, in the following terms:

53.    It is, therefore, the finding of the Tribunal that the Complainant was not in an interdependency relationship with the Deceased Member and there is no evidence that he was financially dependent on the Deceased Member. It is the view of the Tribunal, therefore, that the Complainant does not come within the definition of ‘Dependant’ in the Trust Deed, and he does not, therefore, come within the definition of ‘Nominated Beneficiary’ because he had to be a Dependant in order to come within the definition of ‘Nominated Beneficiary’.

26    In the concluding paragraphs of its Reasons, the Tribunal found that there was no evidence that any person came within the definition of “dependant” in the Trust Deed and that, therefore, Mr Selvig, the deceased’s legal personal representative, was the only person to whom IS Industry was permitted by the Trust Deed to pay the death benefit. It therefore concluded that IS Industry’s decision was in keeping with the requirements of the Trust Deed and was fair and reasonable in the circumstances within s 37(6) of the SRC Act. Thus, it affirmed IS Industry’s decision, summing up its Reasons in the following terms:

59.    As it is the Tribunal’s view that the Trustee’s decision was consistent of the requirements of the governing rules of the Fund, it is the Tribunal’s view that the Trustee’s decision to pay the benefit to the Executor was fair and reasonable, in the circumstances, in its operation in relation to both the Complainant and the Executor. The Tribunal, therefore, affirms the decision of the Trustee.

Contentions

27    It is worth noting at the outset that, in his submissions, Mr Williams accepted that the only basis upon which he could be held to be a “dependant” within the meaning of the Trust Deed (see at [15] above) was if his son and himself were in an interdependency relationship, within the meaning of s 10A of the SIS Act. He also accepted that the Tribunal correctly identified that, under s 10A of the SIS Act, one of the elements of an “interdependency relationship” was that the two persons concerned have to “live together” (s 10A(1)(b)).

28    In determining this appeal, Mr Williams contended that the Tribunal had failed to take account of two matters as relevant considerations, namely:

(a)    whether he and his son had an interdependency relationship immediately before his death on 7 November 2011;

(b)    if that were not so, whether that state of affairs was caused by his son having suffered from a physical disability.

It is to be noted that these matters express the gist of the two broad issues set out at [12] above.

29    On the first, Mr Williams contended that the Tribunal was required, as a relevant consideration, to ask itself whether he and his son were living together at, and immediately before, the date of his death in November 2011. Instead, he contended, the Tribunal erred by asking about his son’s intentions in that regard when he arrived in Ohio on 1 May 2011 and confining its deliberation to the period immediately surrounding that date.

30    On this first issue, IS Industry accepted that the SIS Regulations, specifically reg 1.04AAAA(1), required that the determination whether two persons had an interdependency relationship was to be addressed “immediately before” the death of one of those persons. Nonetheless, IS Industry submitted that the factors described in that Regulation demonstrated that the expression “immediately before” the death of the deceased encompassed circumstances of the relationship which extended well beyond the immediate temporality of the death, such as the duration of the relationship and the nature of the relationship, for example, whether or not it was a sexual relationship. IS Industry also relied on reg 1.04AAAA(3) of the SIS Regulations. It submitted that provision required the factual assessment to consider the whole of the relationship between the parties, including whether at the time of the death they were “temporarily living apart”.

31    IS Industry submitted that the factual findings the Tribunal made relating to this question were reasonably open to it. It submitted that the Reasons showed that the Tribunal did not limit its determination to May 2011, but took account of the whole of the evidence bearing upon the question it had to decide. In particular, IS Industry submitted:

As SIS Regulation 1.04AAAA demonstrates, and as is inherent in the expression “living together” in a “relationship”, there needs to be some degree of continuity or permanency, including whether the parties intend the relationship to be permanent. In determining whether the Trustee’s decision was fair and reasonable in the circumstances, it was reasonably and fairly open to the Tribunal to infer the intention of the continuity and permanence of any living arrangements that existed, and whether it did or did not amount to “living together” in a relationship, from circumstances, including a pattern of behaviour, over a period of time extending beyond the immediate temporality with the death. That is the approach evident in the finding of fact made at paragraph 50 of the Tribunal’s reasons.

(Footnotes omitted; emphasis omitted)

32    Accordingly, IS Industry submitted, Mr Williams was, in reality, seeking to challenge the factual findings of the Tribunal and had not identified any true error of law in the Tribunal’s Reasons.

33    On the second issue, Mr Williams accepted that, at the date of his son’s death, they were not “living together” because at that time his son was living in a hospice. However, he contended that, by the time his son first went to hospital, he had been living with him between 18 May 2011 and 24 June 2011, and had apparently decided to do this “in the face of the terrible death sentence that he … received in this period”. Mr Williams contended that the requirement in s 10A(1)(a) of the SIS Act was satisfied, in that he and his son did have a “close personal relationship” and the reason they did not live together was because his son was suffering from a physical disability. He contended that, under s 10A of the SIS Act, the Tribunal was required to ask whether, if they were not separated by illness, his son would have remained living with him. Instead, he submitted, the Tribunal had asked itself what, hypothetically, would have occurred if his son had not been ill and answered that he would have returned to work. Mr Williams submitted the correct question was whether, if not separated by illness, his son would have remained living with him. He submitted the Tribunal “simply failed to address this question because it focused exclusively on the period leading up to the first two weeks of May 2011”.

34    In summary, Mr Williams contended that:

… the Tribunal should have concluded that the reason [he] and [his son] were not living together immediately before [his] death … on 7 November 2011 was that [he] suffered from a physical disability and that but for his requirement for hospital and hospice care, he would have, given his illness, lived with and have been provided with care by [him], and no other conclusion was open to the Tribunal.

35    On this second issue, IS Industry contended that the underpinning premise of Mr Williams’ submissions was that there ought to have been a factual determination that Mr Williams and his son “lived together”. IS Industry therefore contended as follows:

Having found that subparagraph 10A(1)(b) of the SIS Act was not satisfied, which was reasonably and fairly open to the Tribunal to do, the Tribunal did not have to consider, inter alia, subsection 10A(2)(c) of the SIS Act because the Tribunal was not satisfied that the reason that the relationship did not satisfy the other requirements was because the Deceased suffered from a relevant disability. The Tribunal found as a fact that it was not for that reason but because, as a fact, the parties did not live together.

(Footnote omitted; emphasis omitted)

Consideration

36    In its Reasons, the Tribunal appears to have set out the two matters identified above (at [12]) in discursive form as they were relevant to its determination by stating (at [46], see at [21] above) that an interdependency relationship existed under s 10A of the SIS Act if the two persons “lived together or, if they do not live together, the reason they don’t is that one of them suffers from a physical, intellectual or psychiatric disability”. Putting aside the absence of the temporal factor “immediately before the death of”, this appears to state the combined effect of s 10A(1)(b): whether “they live together”, and s 10A(2)(c): if not, whether that was because of a physical disability. It is also important to note that this description of the issues implicitly assumes that Mr Williams had complied with the threshold criterion in s 10A(1)(a) that “they have a close personal relationship”. Presumably the Tribunal made that assumption because they were father and son.

37    The first step, then, is to determine whether one or both of those matters constituted a relevant consideration. In Esposito v Commonwealth of Australia (2015) 235 FCR 1; [2015] FCAFC 160, the Full Court described what constitutes a relevant consideration in the following terms (at [123]):

The concept of a relevant consideration in administrative law denotes a matter of which a decision-maker is bound to take account. This is a legal issue to be determined from the terms of the law under which the decision is made. This will include those matters which the law explicitly says must be taken into account but also other matters when this is discernible from the subject matter, scope and purpose of the law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.

38    This leads, in turn, to the question whether the Tribunal was bound to take account of one or both of the two matters set out in [12] above. I will consider those two matters in turn.

39    On the first matter, there is no issue between the parties that under reg 1.04AAAA(1) of the SIS Regulations (made under s 10A(3): see [17] above) that the Tribunal was bound to have regard to whether Mr Williams and his son were in an interdependency relationship “immediately before the death of” the latter and to have regard to all the circumstances of the relationship including the factors, so far as they were applicable, set out in (a) and (b) of that Regulation. The only issue – that raised by IS Industry – relates to the content of these considerations, specifically whether the words “immediately before the death of” are confined to solely temporal factors, or include features of the relationship such as its continuity and permanence.

40    While it is unnecessary to determine this question to dispose of this appeal, I observe that reg 1.04AAAA(1)(a) does appear to require the Tribunal to consider a range of factors prescribed therein that go to the nature of the relationship concerned beyond the purely temporal issue associated with the expression “immediately before the death of”. Plainly, some of those factors would be excluded by the inherent nature of the particular relationship in question. For example, in this matter, the relationship of father and son is fixed by conception and birth and would not obviously call into operation a factor such as (1)(a)(viii): “the extent to which the relationship is one of mere convenience”. However, with a relationship of father and son, it may well be necessary to consider the factor expressed in (1)(a)(vii): “the degree of emotional support”. On this aspect, it is worth recalling a matter I have already mentioned above (at [36]) that the Tribunal implicitly accepted that Mr Williams and his son met the threshold criterion in s 10A(1)(a) because they were father and son.

41    The next step, therefore, on this first matter, is to determine whether the Tribunal took account of it, as it was bound to. That requires an examination of the Tribunal’s Reasons, particularly the Deliberations and Findings section thereof. However, before proceeding to conduct that examination, it is appropriate to mention the well-established principle that, on an appeal of this kind, the reasons for decision of an administrative body, such as the Tribunal, should not be read overzealously or with an eye for error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291 cited most recently in Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50 at [41] and SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 at [38].

42    It is apt to begin this examination of the Tribunal’s Reasons by observing that the Tribunal was apparently aware of the existence of the SIS Regulations because earlier in its Reasons, when summarising the submissions put on behalf of Mr Selvig, it mentioned those Regulations, albeit that it did not specifically refer to reg 1.04AAAA. It again mentioned those Regulations in passing in [45] of its Reasons, again without descending into details. However, apart from these brief and passing references to the SIS Regulations, there is no indication from the Tribunal’s Reasons that it had any regard to any of the requirements of reg 1.04AAAA(1) in assessing whether an interdependency relationship existed between Mr Williams and his son. That is so in respect of both the temporal requirements encapsulated in the expression “immediately before the death of” and the qualitative factors expressed in sub-regulation (a), as highlighted by IS Industry above.

43    So much is apparent from the summary of the Tribunal’s Reasons set out above (at [21]–[26]). In the first place, at [47] of the Tribunal’s Reasons, the Tribunal relevantly outlined the issue it had to decide as: whether Mr Williams and his son “were living together prior to the latter’s death”. Thereafter, it turned to consider the evidence bearing on that issue and made the central finding set out in [50] of its Reasons (see at [23] above). Then, at [51] and [52] of the Reasons (see at [24] above), it rejected the proposition put by Mr Williams that his son’s principal place of residence was a relevant factor and it reiterated the finding it had made at [50]. Importantly, it added (at the end of [52]): “Rather, the [deceased …] lived independently and, prior to his hospitalisation when he became ill, he was living independently in Australia and the intention was that he would resume his employment by living overseas.” Finally, in the first sentence of [53] of its Reasons, it made its ultimate finding that: “[Mr Williams] was not in an interdependency relationship with the [deceased …] and there is no evidence that he was financially dependent on the [deceased …]”. As I have already mentioned above, there is no issue about the latter question in this appeal. The remainder of the Tribunal’s Reasons address other aspects of the Trust Deed and certain provisions of the SIS Act that are also not pertinent for the purposes of this appeal.

44    Even if the Tribunal’s Reasons are read with an eye tolerant of error and generously, the difficulty I have with them is that there is little, if anything, to indicate that it had any regard to the expression “immediately before the death of” in assessing whether Mr Williams and his son were living in an interdependency relationship. There is no mention of that expression anywhere in the Deliberations and Findings section of its Reasons and, as I have already mentioned above, the passing references to the SIS Regulations elsewhere in the Reasons do not refer to reg 1.04AAAA, much less that expression. There is also no mention of the factors set out in reg 1.04AAAA(1)(a), nor is there any discussion about what temporal or qualitative considerations may be imported into the expression “immediately before the death of” by those factors. It follows that, even if IS Industry were correct in its contentions that that expression is not confined to temporal factors, but takes account of qualitative factors such as the continuity and the permanence of the interdependency relationship in question, there is no indication in the Tribunal’s Reasons, even on a generous reading, that it gave any consideration at all to those factors.

45    This conclusion is further supported by the fact that there is no evidence from the Tribunal’s Reasons that it had any regard to the six months (approximately) period between May 2011 and the date of the deceased’s death in November 2011, which period plainly falls within the temporal confines of the expression “immediately before the death of” the deceased. Importantly, in this respect, in the two paragraphs of the Reasons immediately preceding the Tribunal’s central finding (at [50] of its Reasons) where the Tribunal recites the evidence upon which it based that finding, it only refers to the places where the deceased lived in the period from May 2003 until May 2011 and makes no mention of any period after 18 May 2011. Further, in the paragraphs immediately following that finding (at [51] and [52] of its Reasons), where the Tribunal rejects Mr Williams’ argument that his son used his address as his principal place of residence, the Tribunal states that the deceased “lived independently and, prior to his hospitalisation when he became ill, he was living independently in Australia”. This statement is also confined to the period up to May 2011 and does not examine the six months period thereafter. Finally, since IS Industry specifically raised it, there is no indication from the Tribunal’s Reasons that it gave any consideration to the provisions of reg 1.04AAAA(3).

46    All of these aspects of the Tribunal’s reasons go to demonstrate that this is not a case where the Tribunal has made an erroneous factual finding as IS Industry has contended. Rather they demonstrate that the Tribunal has made a finding about a matter, namely, whether Mr Williams and his son were living together, without having regard to the period it was bound to consider: that immediately before the death of the deceased. For these reasons, I therefore consider the Tribunal failed to take into account a relevant consideration which it was bound to. It necessarily follows that the Tribunal has made an error of law in this respect.

47    Even if I am incorrect in this conclusion, I consider that the Tribunal alternatively committed an error of law with respect to the second matter above (at [12]). On that matter, as with the first matter above, there does not appear to be any issue between the parties that the Tribunal was bound to take it into account, at least in the alternative to the first matter. Thus, it appears to be accepted by both parties that, in the event Mr Williams did not satisfy one of the requirements in s 10A(1)(b) to (d) of the SIS Act – here it is common ground that the relevant requirement was s 10A(1)(b) “they live together” – s 10A(2)(c) of the SIS Act required the Tribunal to consider whether “the reason they do not satisfy [that] requirement … is that either or both of them suffer from a physical, intellectual or psychiatric disability”. Regulation 1.04AAAA(4)(c) contains a similar requirement albeit without describing the nature of the disability in any detail (see at [17] above).

48    There are, in my view, at least two flaws in IS Industry’s contentions on this issue. First, for the reasons given above, I consider the Tribunal committed an error of law in its consideration of the requirements in s 10A(1)(b) and reg 1.04AAAA(1) above as to whether Mr Williams and his son were living together immediately before the latter’s death. It necessarily follows that I reject IS Industry’s contention that the Tribunal properly determined that matter as a question of fact and there was therefore no necessity for it to consider this matter. Secondly, and alternatively, even if the Tribunal had properly determined that Mr Williams and his son were not living together within the requirements of s 10A(1)(b) of the SIS Act, the Tribunal was still bound by s 10A(2)(b) and reg 1.04AAAA(4) to consider whether the reason why Mr Williams failed to satisfy that requirement was that the deceased suffered from “a physical, intellectual or psychiatric disability”.

49    The next question is whether the Tribunal failed to consider this matter. On that question, despite IS Industry’s contention that the Tribunal did not have to consider this matter, there is some indication from the Tribunal’s Reasons that it may have, at least incidentally. That appears in the curious statement in the last sentence of [46] of the Tribunal’s Reasons (see at [21] above), that: “there is no evidence that, whilst the deceased member was working in Australia shortly before his death, he was suffering from any physical, intellectual or psychiatric disability”. That statement is plainly directed to the period that the deceased “was working in Australia shortly before his death”, namely, the period prior to 1 May 2011 when the deceased left that employment to take two weeks planned leave in Ohio. If, contrary to IS Industry’s submission, this statement can be taken as some indication that the Tribunal did consider the question posed by s 10A(2)(b) of the SIS Act, I consider it did so erroneously. That is so because, as with the first matter above, reg 1.04AAAA specifies that the relevant period for the purposes of determining this matter is the period “immediately before the death of” the deceased. Further, as with the first matter, it is apparent from this statement that the Tribunal confined its consideration to the period up to May 2011. For these reasons, I therefore consider the Tribunal failed to take into account a relevant consideration which it was bound to, namely, assuming Mr Williams and his son were not living together within the requirement in s 10A(1)(b) of the SIS Act, whether the reason why that was so was because his son suffered from a physical, intellectual or psychiatric disability.

Conclusion

50    For these reasons, this appeal must be allowed. Accordingly, Mr Williams is entitled to the orders sought in his notice of appeal filed on 20 April 2015.

Associate:    

Dated:    13 May 2016