FEDERAL COURT OF AUSTRALIA

0108 of 2014 v Secretary, Department of Social Services [2017] FCA 57

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

THE APPEAL

1    The applicant ‘appeals’ from a direction (Decision) of the Administrative Appeals Tribunal. By the Decision, the Tribunal directed that on or before 29 July 2016 the applicant was to agree on a suitable date in 2016 on which to attend an appointment with the respondent’s preferred occupational physician. The applicant contends that the senior member making the Decision should have recused herself from adjudicating the directions hearing (and any future decisions) and that s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) was utilised to justify the decision made without taking into account the specifics of the case as she says is directed by ss 28(5), 33(1)(b), 43(2B) and 45(3) of the AAT Act.

2    The respondent contends that the grounds of the notice of appeal fail to state or identify any question of law; that the Decision of the Tribunal that is the subject of the appeal was a procedural decision and a court should be reluctant to interfere with the procedural orders of the Tribunal; the orders of Barker J dated 22 April 2016 (Applicant 0108 of 2014 v Secretary, Department of Social Services [2016] FCA 421 (First Decision)) specifically gave the parties leave to call further evidence and no error of law has been demonstrated or is apparent in the Decision.

BACKGROUND

3    In the First Decision, in which his Honour partly allowed an appeal by the same applicant, Barker J noted (at [1]-[16]) that:

1    The applicant at material times was in receipt of a disability support pension (DSP) granted under the Social Security Act 1991 (Cth) in 2010.

2    Part 4.2 of Ch 4 of the Act deals with the overseas portability of such a pension. Generally speaking, until the introduction of s 1218AAA in 2012, the recipient of a DSP could only be absent from Australia for relatively short periods, save for exceptional circumstances provided by s 1218AA, without affecting their eligibility to receive the pension.

3    Section 1218AAA, which came into operation on 1 July 2012, was, however, introduced with the apparent intention of making these portability rules “more generous”.

4    The general question raised in this appeal, from a decision of the Administrative Appeals Tribunal ([Tribunal]) rejecting the applicant’s application for unlimited portability of her DSP under s 1218AAA, is how generous the rule introduced by that section is in practice.

5    The particular question raised concerns the proper construction of the work capability criterion encapsulated in s 1218AAA(1)(d).

THE APPLICATION FOR PORTABILITY

6    In September 2012, the applicant applied for a written determination, under s 1218AAA, that the maximum portability period for her disability pension is an unlimited period.

7    Section 1218AAA(1) relevantly provides that:

The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

(a)    the person is receiving disability support pension;

(b)    the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));

(c)    the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

(d)    the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.

8    At material times following the commencement of s 1218AAA, a person qualified for a DSP, under s 94(1), if they had a physical, intellectual or psychiatric impairment; the impairment was of 20 points or more under the Impairment Tables; and one or other of a number of other criteria applied, including that the person had a “continuing inability to work”.

9    By s 94(2), the expression “continuing inability to work”, was defined.

10    At that same time, a person’s impairment was considered a “severe impairment”, under s 94(3B), if their impairment was of 20 points or more under the Impairment Tables, “of which 20 points or more are under a single Impairment Table”. The requirement just emphasised thus needed to be established for the purposes of para (b) of s 1218AAA(1).

11    Each of the delegate of the Secretary, Department of Social Services (Department or Centrelink), an authorised review officer (ARO), the Social Security Appeals Tribunal (SSAT) and the [Tribunal], in turn, on considering the applicant’s application, refused to make the determination of unlimited portability under s 1218AAA.

12    There was no dispute at any stage that the applicant was receiving a DSP for the purposes of para (a).

13    Initially, before the delegate, the ARO and the SSAT, the initial issue was whether the applicant’s impairment was a severe impairment for the purposes of para (b), which it was found it was not.

14    The decision-maker on each of these occasions consequently did not need to consider whether, for the purposes of para (c), any severe impairment would last for at least five years; or, for the purposes of para (d), any severe impairment “would prevent [the applicant] from performing any work independently of a program of support (within the meaning of the subsection 94(4)) within the next 5 years”.

15    When the applicant sought further review of her application before the [Tribunal], the Department withdrew the concession earlier made in its statement of facts, issues and contentions before the [Tribunal], concerning the applicant’s impairment in fact being a severe impairment, and for the required duration, and also sought to uphold the refusal to make the determination on the basis that para (d) was not satisfied in any event.

16    The [Tribunal] was satisfied as to the matters in paras (b) and (c), but not as to para (d) and so refused the application. From that decision the applicant appeals to this Court.

(emphasis added)

4    His Honour concluded that the Tribunal had erred in its approach, his Honour noting (at [78]-[82]):

78    It follows that some of the submissions made by the applicant are answered by this understanding of what “work” relevantly is. For example, the simple fact that a severely impaired pensioner can water their garden, work on their home computer, or help out in the community in some voluntary capacity, or receives some remuneration for their exertion but not by way of wages in the open labour market, does not mean the person thereby is demonstrated as able to perform “work” for the purposes of para (d). Such evidence does not directly answer the question whether the severely impaired person is prohibited from undertaking any work, for wages, that exists in Australia. It may possibly be relevant, with other evidence, to that question, but it does not directly answer it.

79    On the AAT’s approach, however, the capacity of the applicant to do such things as spend time on a computer and undertake odd jobs around the house, including watering the garden, was considered of direct significance to whether it was satisfied para (d) was met. By relying on evidence concerning what other physical activities the applicant, on her own evidence and appearance before the AAT, was capable of doing, the AAT failed, in my view, correctly to apply the para (d) consideration. It failed to address the question whether the applicant, by her severe impairment, was prevented from performing any work on wages that exists in Australia for the next five years. Rather, it assumed she could do such work – which was not relevantly identified – simply because, in part, she could perform some non-wage activities.

80    In those circumstances, it would appear, as the Secretary submits, that the “Sustainability of work” definition otherwise employed by Centrelink for other s 94 qualification purposes, is not directly relevant to the question that needs to be grappled with under para (d). It is not difficult to understand, however, why Dr Tabrizian, when asked to respond to the matters set out in the AGS letter to the applicant dated 13 June 2014, dealt with the matter in the way that he did in his report. His focus was not directly drawn to any particular concept of “any work”. At least, the letter requesting his opinion was ambiguous as to what he was specifically required to comment on. While it is correct to submit, as the Secretary did when the Court invited further oral submissions following the presentation of the written submissions on the sustainability of work definition question, that the letter adverted to the terms of para (d), the fact is that the letter in para 9 raised substantive, technical questions for Dr Tabrizian’s medical opinion, which he provided. It is entirely understandable that Dr Tabrizian gave his report in the manner that he did.

81    The substantive question whether the applicant, by reason of her severe impairment was prevented from performing any work, without a program of support, within the next five years, was, on the face of it, not directly addressed by Dr Tabrizian. It is understandable therefore that the AAT was, in a sense, confounded by the evidence before it.

82    But as indicated, it was first necessary to address the question that is, in effect, what work is there that exists in Australia, on wages, that the applicant might possibly be able to do in the next five years, in order to answer the question whether, by reason of her severe impairment, she is prevented from performing such work.

(emphasis added)

5    I should pause now to highlight a significant point of misunderstanding as I perceive it from the very lengthy submissions of the applicant. The focus of his Honour’s observations is that it is insufficient to identify the fact that the applicant may be able to do, for example, some household chores and therefore should be able to do some remunerative work. As his Honour says, it is essential to identify what work for wages the applicant would be able to do, having regard to the state of her impairment. It is not possible to answer the question in s 1218AAA(1)(d) of the Social Security Act 1991 (Cth) without having regard both to the degree and nature of the impairment and also what possible work there may be, if any, which could be carried out having regard to this impairment. The difficulty which was being addressed in the First Decision was that a conclusion was reached without having regard to the actual job market. The applicant, however, has focussed on the word ‘first’ in [82] of the First Decision as if to say it is not possible to medically assess her without first identifying the relevant availability for people of her impairment in the job market. But the word ‘first’ used in [82] was not intended to indicate that the job market must be analysed first before considering the applicant’s impairment, but rather that any conclusion under para (d) could not be reached without first having regard to both factors. In particular, for the purposes of that appeal, it was not possible to reach a conclusion under para (d) without first considering the actual availability of positions in the job market. In other words, where ‘first’ is used, it relates to an assessment being required before an ultimate conclusion is reached. It is not, as the applicant has taken it to be, an assessment being required before she undergoes medical examination.

6    That misunderstanding is at the heart of the entire appeal, as the other points discussed below have no substance.

7    His Honour was satisfied that the applicant had been correct in asserting in her grounds of appeal that the Tribunal did not apply the correct test created by para (d).

8    The matter was remitted to the Tribunal for further consideration according to law.

REASONING OF the TRIBUNAL ON RECONSIDERATION

9    Unlike the First Decision, there is presently no substantive decision that is the subject of this appeal as the direction which was made was interlocutory in nature. In this instance, all that was done was to make a direction.

10    The Tribunal said (at [4]-[22]):

4.    In Applicant 0108 of 2014, Barker J made the following orders:

1.    The appeal be allowed in part.

2.    The decision of the Administrative Appeals Tribunal made 22 June 2015 be set aside.

3.    The matter, limited to the question whether, for the purposes of s 1218AAA(1)(d) of the Social Security Act 1991 (Cth), the applicant's severe impairment would prevent her from performing work independently of a program of support within the next five years, be remitted to the Administrative Appeals Tribunal for reconsideration according to law.

4.    The applicant, and the Secretary, have leave to call further evidence relevant to the matter in issue. [Original Emphasis]

5.    The matter was subsequently remitted to the Tribunal and a directions hearing was listed on 14 June 2016 for the purpose of programming the matter to hearing.

6.    At the directions hearing held on 16 June 2016, the Secretary requested that the Applicant attend an appointment with the Secretary's preferred Occupational Physician on 26 or 27 July 2016 or on 29, 30 or 31 August 2016.

7.    The Secretary submitted that Order 4 of Barker J's orders contemplates the filing of further evidence by both parties. According to the Secretary, the reason for requesting the Applicant to attend an appointment with the Secretary's preferred Occupational Physician is to obtain a report, which would later be filed by the Secretary as evidence in these proceedings, to assist the Tribunal to decide the question it is required, by Order 3 of Barker J's orders, to decide on remittal, namely whether, for the purposes of s 1218AAA( 1 )(d) of the SSA:

the applicant's severe impairment would prevent her from performing work

independently of a program of support within the next five years.

8.    The Secretary referred the Tribunal to paragraph 77 of Barker J's reasons for judgment, which provides:

77.    I would add that para (b) of the definition of "work" makes it clear the para (d) question is whether a severely impaired person is prevented, without a program of support, from undertaking available work for wages that exists in Australia, where he or she lives or elsewhere in Australia. This invokes a labour market analysis. It invites the question whether there is work on wages available in Australia that the person could perform, within the next five years, without a program of support ....... Such work must be identified in order to decide if the severely impaired person is prevented from doing any such work, without a program of support. The question of work capacity for para (d) purposes is not, therefore, to be asked in a labour market vacuum, so to speak.

9.    The Applicant objected to the Secretary's request for her to attend an appointment with the Secretary's preferred Occupational Physician and asked the Tribunal for an opportunity to put her reasons for that objection in writing.

10.    Consequently, on 14 June 2016, the Tribunal made the following direction:

On or before 28 June 2016, the Applicant has leave to file submissions in relation to her objection to attend a medical appointment with the Respondent's preferred Occupational Physical on 26 July 2016, 27 July 2016, 29 August 2016, 30 August 2016 or 31 August 2016.

11.    On 28 June 2016, the Tribunal received the Applicant's submissions (49 paragraphs in length). In summary, the Applicant objects to the Secretary's request for her to attend an appointment with the Secretary's preferred Occupational Physician on the basis that: (i) it is unnecessary for the purpose of the Tribunal deciding the limited question it is required to decide on remittal (as set out in Order 3 of Barker J's orders); and (ii) to comply with the Secretary's request would leave the Applicant open to a further abuse of process.

12.    The Tribunal rejects both of these arguments.

13.    The Tribunal's obligation in this case is to reach the decision that it considers to be the correct and preferable decision on the question whether, for the purposes of s 1218AAA(1)(d) of the SSA, the Applicant's severe impairment would prevent her from performing work, independently of a program of support, within the next five years: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 78 per Smithers J.

14.    Section 33(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides:

(1)    In a proceeding before the Tribunal:

…

(c)    the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. [Original emphasis]

15.    As stated, the duty of the Tribunal is to review an administrative decision to determine whether it, or some other decision, is the right decision in all the circumstances. The Tribunal accordingly must follow the procedures that are best suited to achieving this. This was noted by Barker J in his reasons for judgment in Applicant 0108 of 2014 (at [98]), as follows:

98.    It should not be forgotten that the AAT has the power under s 33(1)(c) of its own Act to "inform itself. .... as it thinks appropriate" ....... After all, the AAT is an administrative tribunal seeking to make good and reliable decisions for the benefit of citizens, not a court of law bound by pleadings or the rules of evidence whose parties are left often to "die by their own hand" in adversarial litigation ..... . .

16.    Section 33(1)(a) of the AAT Act provides:

(1)    In a proceeding before the Tribunal:

(a)    the procedure of the Tribunal is, subject to this Act and the regulations and any other enactment, within the discretion of the Tribunal;

17.    Section 33(1)(a) of the AAT Act contemplates the Tribunal making directions under s 33(2A) of the AAT Act as to the procedure to be followed at or in connection with the hearing of a proceeding before it.

18.    The Tribunal has previously directed, at the request of the decision-maker, that an applicant attend a medical or other examination: Re Health Insurance Commission and Hobbes and Comcare (1999) 21 ALD 229 and Re Secretary, Department of Social Services and Twentyman [2014] AATA 582 (where the Tribunal acknowledged that s 33 of the AAT Act could be invoked but declined so in the particular circumstances of that case).

19.    The Tribunal considers that a report from the Secretary's preferred Occupational Physician, which addresses whether the Applicant's severe impairment would prevent her from performing work "in the open labour market" independently of a program of support within the next five years, is likely to assist it in satisfying its obligation to reach the correct and preferable decision in this case and the obtaining of such a report is appropriate in the circumstances of this case.

20.    Moreover, the provision of such a report by the Secretary is entirely consistent with the Secretary's statutory obligation, as the primary decision-maker, in s 33(1AA) of the AAT Act to use "his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding".

21.    For the above reasons, pursuant to s 33 of the AAT Act the Tribunal DIRECTS:

(i)    The Applicant to attend an appointment with the Secretary's preferred Occupational Physician on a date in 2016 to be agreed between the parties; and

(ii)    If, on or before 29 July 2016, the parties are unable to agree upon a date for the appointment referred to in Direction (i), the matter be listed for a directions hearing.

22.    An applicant who fails, within a reasonable time, to comply with a direction of the Tribunal, may have his or her application dismissed, without proceeding to review the decision: s 42A( 5)(b) of the AAT Act.

THE APPLICATION

11    The substance of the applicant’s originating application is in these terms:

The Applicant appeals from the decision of [Tribunal] given on 29 June 2016 and then amended on 15 July 2016 at Perth.

The Tribunal decided on 29 June 2016,

1.    The Applicant to attend an appointment with the Respondent’s preferred Occupational Physician on a date in 2016 to be agreed between the parties.

2.    If, on or before 29 July 2016, the parties are unable to agree upon a date for the appointment referred to in Direction 1, the matter be listed for a directions hearing.

This was then amended on 15 July 2016,

1.    Direction 2, made on 29 June 2016, is hereby revoked.

2.    On or before 29 July 2016, the Applicant is to agree on a suitable date in 2016 on which to attend an appointment with the Respondent’s preferred Occupational Physician.

The Applicant appeals from the decision maker specifically and the resulting decision.

Questions of law

1.    Jurisdictional error of law in the determination of the [Tribunal].

Findings of fact that the Court is asked to make

1.    The Senior Member should have recused herself from adjudicating the directions hearing of 14 June 2016.

2.    Failing that on being told by the applicant that she continued not to be happy with her presence at the directions hearing she should have recused herself from making any decisions.

3.    S 33 of the AAT Act was employed to justified [sic] the decision made without taking into account the specifics of the case as directed in s 28(5), s 33(1)(b), s 43(2B), s 45(3)

Orders sought

1.    The decision of 29 June 2016 should be reheard by an independent person unconnected with the Perth [Tribunal].

Grounds relied on

1.    Procedural fairness was denied by the Senior Member hearing and deciding the case.

2.    Natural justice was denied through procedural errors, and erring in their findings

THE APPLICANT’S ARGUMENTS

12    The arguments for the applicant were presented in written submissions which, together with annexures, ran to some 110 pages. They were supplemented by submissions in response with annexures totalling some 23 pages. The applicant relied upon all written submissions at the hearing of the application.

Recusal

13    The applicant says that she is entitled to appeal the Decision of 29 June 2016 on the basis that senior member should have recused herself from adjudicating the directions hearing on 14 June 2016. As a result of not recusing herself, procedural fairness was denied by the senior member in hearing and deciding the case. Furthermore, the applicant says, natural justice was denied by the Tribunal through procedural errors in the findings.

14    The applicant refers to s 21A of the AAT Act, which was in effect at the time in which she first made a complaint about the senior member. This provision of the AAT Act, now replaced by s 19D, provided for the reconstitution of the Tribunal in certain circumstances, such as upon the request of a party to the proceeding.

15    The applicant points to a directions hearing on 10 October 2014 by the senior member in which the applicant says the senior member placed more weight on meeting the Tribunal’s statistical requirements than on a medical report sent directly to the Tribunal by the applicant’s treating doctor. The applicant then wrote to the then Deputy President of the Tribunal objecting to the senior member’s continued involvement with her case. As a result of that letter there was a directions hearing on 11 December 2014 held by the then Deputy President who said that since a medical report had been received by the Tribunal, there was no reason why ‘postponement’ should not be granted. He also said that he did not wish to discuss the question of the senior member, which the applicant regarded as ‘diplomatic handling of an awkward situation’. The senior member then resumed the carriage of the applicant’s matter before the Tribunal.

16    The applicant, again, wrote to the then Deputy President of the Tribunal on 6 January 2015 complaining about the continued involvement of the senior member. A directions hearing was held on 22 January 2015 by the senior member and in which the applicant says the senior member apologised to the applicant for her ‘error of judgement’. The applicant thanked her for her apology, but stated that she still wished for someone else to hear her case.

17    Subsequently, the applicant’s case was heard by Dr Kendall. The applicant says she was therefore ‘alarmed’ when at the directions hearing on 14 June 2016, she discovered that it would be convened by the same senior member. She says she expressed her ‘surprise and consternation’. The applicant says that she expected the directions hearing to be only about nominating a suitable date for the hearing of the case remitted by this Court following the First Decision. When the applicant expressed her concern to the senior member at the directions hearing, she stated that she did not wish the senior member to hear the case remitted by this Court. She says that the senior member’s response was that she ‘can’t promise but would try’. She says that the senior member indicated that the Perth Registry was a small registry but attempts would be made to accommodate the applicant’s request. The applicant goes on to say that the senior member was therefore well aware of the applicant’s previous objections and continuing objections to her adjudicating her case. The applicant says it would have been appropriate for the senior member to have recused herself, but she did not.

18    The applicant points to the content of [89]-[90] of the First Decision and says that to have complied with the senior member’s coercion would have put the applicant at a marked disadvantage in presenting her evidence. This was because Barker J had said that work needed to be identified before the question could be answered whether or not an applicant is prevented by reason of impairment from performing such work.

19    The applicant contends that because the senior member apologised to the applicant on 22 January 2015 in the way quoted above, ‘some in the public would fear that the senior member would harbour resentment towards the applicant for exposing her error, which resulted in a public apology’.

20    The applicant contends that the Tribunal erred in rostering the senior member to hear the directions hearing of 14 June 2016. The applicant submits that even if there was no bias, the perception by the public would be that there was. This perception of bias would arise because, the applicant contends, the Deputy President of the Tribunal had recognised the importance of a medical report that the senior member had ignored, however, then had proceeded to include and act on its contents and subsequently apologised for the error, therefore ‘it would have been wiser to have been overly cautious and [for the senior member to] recuse herself’. The applicant points to the Direction of the Deputy President of the Tribunal, Justice Kerr, issued in 2015 ‘Constituting the Tribunal’ and contends, without further specificity, that there was non-compliance or non-application with the Direction in her case.

21    The applicant emphasises repeated and expressed concerns as to the constitution of the Tribunal by the particular senior member and focusses in particular on the senior member’s emphasis on administrative deadlines at the expense of a letter directed to the Tribunal from her treating doctor. The applicant refers to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 where Gleeson CJ, McHugh, Gummow and Hayne JJ said (at [6]):

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (…), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. …

22    The applicant also relies upon a Tribunal decision in Confidential v Commissioner of Taxation [2013] AATA 112 where the Deputy President said (at [597]):

When it is understood that Tribunal members are expected to meet the same standards of behaviour as judicial officers, it is also understood that the security or otherwise of appointments made to the Tribunal or their being full or part time appointments does not have any effect on the role that they must play and the integrity with which they must undertake their work. The Tribunal’s members continue to swear an oath or make an affirmation that they will “… faithfully and impartially perform the duties of…” the office of member. At no time have the courts given any indication that it has changed what is expected of the Tribunal in making a lawful decision. In light of this, it seems to me that the principles relevant to ascertaining whether a member should disqualify him or herself for bias, whether actual or apprehended, remain those that guide the courts. They do not require modification. [emphasis added by applicant]

23    The applicant also relies on R v Watson; Ex parte Armstrong (1976) 136 CLR 248 where the High Court (Barwick CJ, Gibbs, Stephen and Mason JJ) said (at 259-260), citing Lord Denning in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 557:

… “it is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” After saying that he stood by that principle, Lord Denning M.R. continued:

“… in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. … Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough … There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’”

Danckwerts L.J., who dealt with the matter quite shortly, appears to have accepted that it would be enough to justify the court's interference if a person knowing the circumstances might reasonably feel doubts as to the tribunal's impartiality. Edmund Davies L.J. was clearly of the view that the court should interfere if it considered that it would appear to right-thinking people that there were solid grounds for suspecting that a member of the tribunal responsible for the decision may (however unconsciously) have been biased. He expressed his conclusions as follows:

“With profound respect to those who have propounded the ‘real likelihood’ test, I take the view that the requirement that justice must manifestly be done operates with undiminished force in cases where bias is alleged and that any development of the law which appears to emasculate that requirement should be strongly resisted. That the different tests, even when applied to the same facts, may lead to different results is illustrated by Reg. v. Barnsley Licensing Justices itself, as Devlin L.J. made clear in the passage I have quoted. But I cannot bring myself to hold that a decision may properly be allowed to stand even although there is reasonable suspicion of bias on the part of one or more members of the adjudicating body.”

It has since been doubted whether in practice materially different results would follow from the adoption of one test rather than another: see Hannam v. Bradford Corporation. No doubt in many cases it will be immaterial which test is applied, but that is not universally true, as Edmund Davies L.J. pointed out in the passage already cited from Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon. It has also been said that the “two tests are often overlapping and it may be that one is appropriate to one situation and another is appropriate to another situation”: Reg. v. Altrincham Justices; Ex parte Pennington. However that may be, the judgments of the Court of Appeal in Metropolitan Properties Co. (F.G.C.) Ltd v. Lannon provide authority for the proposition that if there is a reasonable suspicion of bias against a judge that is enough to warrant the court's interference.

24    The applicant says, and I accept, that the crucial question is whether a fair-minded lay observer might reasonably apprehend that the tribunal member might not bring an impartial mind to the resolution of the question the tribunal member is required to decide.

25    I propose to deal immediately with the recusal ground on the basis of apprehended bias.

26    At the 14 June 2016 directions hearing the senior member directed that on or before 28 June 2016 the applicant have leave to file submissions in relation to her objection to attend a medical appointment with the respondent’s preferred occupational physician on various dates. Lengthy submissions were filed on 28 June 2016, with the application objecting, in essence, on the basis that:

(a)    it was unnecessary for the purpose of the Tribunal deciding the limited question it was required to decide on remittal;

(b)    a labour market analysis was not a medical appointment;

(c)    to comply with the respondent’s request would leave the applicant open to a further abuse of process; and

(d)    the respondent had previously engaged the Health Professional Advisory Unit (HPAU) to provide a biased medical report.

27    On 29 June 2016, the senior member delivered the Decision, much of which is extracted above, making the necessary directions. The senior member rejected the applicant’s arguments and found that a report from the respondent’s preferred occupational physician, which would address whether the applicant’s severe impairment would prevent her from performing work ‘in the open labour market’ independently of a program of support within the next five years, was likely to assist in satisfying the Tribunal’s obligation to reach the correct and preferable decision in the case and that obtaining such a report was appropriate in the circumstances of the case.

28    Clearly there was no lack of procedural fairness in providing this opportunity to present an argument and in considering and evaluating the argument. These were merely interlocutory directions and nothing in the procedure adopted contravenes the requirements in s 39 of the AAT Act which are to the following effect:

39    Submissions-Divisions other than Security Division and Social Services and Child Support Division

(1)    Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

(2)    This section does not apply to:

(a)    a proceeding in the Security Division to which section 39A applies; or

(b)    a proceeding in the Social Services and Child Support Division (see section 39AA).

(3)    This section does not limit subsection 25(4A) (Tribunal may determine scope of review).

29    It is well established that an allegation of apprehended bias must be firmly established. It is not sufficient that there be some idiosyncratic or over-sensitive perception of concern about the decision-maker. The decision-maker is required to bring an impartial and unprejudiced mind to the process; he or she has a duty to sit and is not to accede too readily to suggestions of appearance of bias which might encourage parties to raise such questions for inappropriate purposes. The hypothetical lay observer can be assumed not to be a lawyer, however, is not to be taken to be uninformed or uninstructed about the law or ordinary judicial practice, but rather is assumed to have informed him or herself as to the relevant context and to be neither complacent nor unduly sensitive or suspicious: see, for example, the discussion by Perry J in Picos v Australian Federal Police [2015] FCA 118 (at [27]).

30    In this instance, the Tribunal explained its reasons for directing that the applicant attend an appointment with the respondent’s preferred occupational physician. Any reasonable person being apprised of the issues in dispute and the role to be played by the Tribunal could not reasonably entertain an apprehension of bias in anything done by the Tribunal, both in the immediate direction Decision or in the broader historical context of other decisions. It follows that there was no basis upon which the senior member should have recused herself, as the applicant contends. It is not obvious that there was a specific application made by the applicant for recusal of the senior member despite lengthy submissions made on a number of occasions. Mere expressions of concern do not rise to this level. Even if it was clear that such an application was made, it would be wrong in principal for a member to accede to a demand for recusal where a proper legal basis for such a step is lacking. Section 21A, as discussed above (at [14]), provided for the reconstitution of the Tribunal at the relevant point in which the applicant had made a complaint about the senior member. Section 21A, at the relevant time, read as follows:

21A    Reconstitution of Tribunal at the request of a party

Scope

(1AA)    This section does not apply in relation to proceedings in the Security Appeals Division.

Party may request reconstitution of Tribunal

(1)    At any time during the hearing of a proceeding before the Tribunal (other than a proceeding in which the Tribunal is constituted by a presidential member who is a Judge and 2 other members), a party to the proceeding may apply to the Tribunal as constituted for the purposes of the proceeding requesting that the Tribunal be reconstituted for the purposes of the proceeding.

(2)    Upon the making of an application under subsection (1), the Tribunal as constituted for the purposes of the proceeding shall, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and give him or her particulars of those submissions.

(3)    The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Tribunal as constituted for the purposes of the proceeding be reconstituted by:

(a)    adding one or more members; or

(b)    removing one or more members; or

(c)    substituting one or more other members;

(or any combination of these).

(4)    Where a direction is so given, the Tribunal as reconstituted in accordance with the direction shall continue the proceeding and may either:

(a)    complete the proceeding; or

(b)    at any time remit the proceeding to the Tribunal as previously constituted for completion by the Tribunal as previously constituted.

Note:    Section 23D provides that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted.

(5)    Where the Tribunal as reconstituted so remits a proceeding to the Tribunal as previously constituted, the Tribunal as reconstituted may give directions in relation to the proceeding to the Tribunal as previously constituted and the Tribunal as previously constituted shall, in making a decision on the review, comply with those directions.

(7)    Where, by virtue of subsection (4), a proceeding is remitted by the Tribunal as reconstituted to the Tribunal as previously constituted, the Tribunal as previously constituted may, for the purposes of that proceeding, have regard to any record of the proceeding before the Tribunal as reconstituted including a record of any evidence taken under the proceeding.

31    It does not appear to be the case in the history of this disputation that the applicant has made a specific request to the Tribunal through the presiding senior member for the exercise of a discretionary power residing in the President to reconstitute the Tribunal. Even if she had, there is no reason why the President should accede to that request. It is not as though a party can shop around until finding the person perceived as the most favourable member.

32    There is absolutely no evidence express or inferential to support any conclusion that the senior member had any interest whatsoever that was adverse to the applicant or favourable to the respondent which could conflict with a proper performance of her functions in relation to the proceedings. The error in the applicant’s submission is apparent from the contention that the senior member should ‘have checked that the applicant was happy for her to hear the matter, and if not, immediately recused herself’ (emphasis added). Plainly, this is not the test and does not accord with authority. Judicial officers and Tribunal members are not required to recuse themselves simply because a litigant is unhappy with them hearing a particular matter. There is no obligation to check that each litigant is ‘happy’ in that sense.

33    Finally, it is particularly important to place this discussion in context. This was simply a directions hearing where the Tribunal was programming a matter to hearing. The senior member had indicated that the oral request by the applicant for another member to determine her ultimate application would be considered. This was also confirmed in an email to the applicant from the Registrar on 26 July 2016. This communication, however, is not in any way to be taken as some implicit acceptance of the applicant’s assertions. In all of the circumstances of this case it was intended presumably to be a practical (but not strictly necessary) solution which may have avoided the additional expense, delay and stress of the present appeal.

34    There is no merit in any of the assertions of apprehended bias or failure to recuse.

Medical appointment/examination

35    I turn now to the applicant’s substantive arguments on the direction itself.

36    The applicant’s submissions focus on [77], [82], [89] and [90] of the First Decision. The applicant’s written submissions on this topic continue as follows:

33.    The [Tribunal] when considering under the heading “Contrasting Medical Evidence“, said,

62.    … Further, until quite recently, the Department had never expressed any concerns to the Tribunal in relation to the assessment provided by Dr Tabrizian, his qualifications or the diagnosis and rating of the Applicant’s medical conditions. Indeed, as noted above, in its written submissions of 4 September 2014, the Department asked the Tribunal to accept Dr Tabrizian’s findings that the Applicant suffered from a severe impairment – agreeing with Dr Tabrizian that the Applicant’s chronic mal-absorption was fully diagnosed and treated, rated 20 points on the Impairment Tables and was likely to last for 5 years.

63.    Based on the evidence before it, the Tribunal finds that the evidence provided by Dr Tabrizian is to be accepted.

Indeed the [Tribunal] went on to underline their opinion by saying later in the same paragraph “(r)ather, it simply recognises the value to be attached to Dr Tabrizian’s long history with the Applicant as her general practitioner and the Department’s previous position that Dr Tabrizian’s assessment is accurate and sound.”

34.    Therefore given that the applicant’s treating doctor’s reports were accepted by the [Tribunal] and also by the Federal Court and had been acceptable to the respondent until the [Tribunal’s] directions hearing of 14 June 2016, one must ask, why the situation would suddenly change?

35.    At the [Tribunal’s] directions hearing the respondent was speaking in terms of “an appointment” with the respondent’s occupational physician, a term also employed in the [Tribunal’s] decision of 29 June 2016 in paragraph 7. In the case management hearing it became apparent that the imprecise and vague term of “an appointment” was in fact, to quote the respondent from the transcript, “the medical evidence that is before the tribunal is now quite dated and it is relevant to be able to conduct the labour market analysis that an assessment of the applicant’s capacity to work – to do any work is done now so that the decision-maker is able to make the correct and preferable decision” (page 2, line 35). This is repeated later at page 8, line 43, “(t)he medical evidence would assist the tribunal to come to a correct and preferable decision, and that is why the request was made and a direction was made.”

36.    This again is another example of the respondent’s tendency to be less than direct in their communications. Barker J commented on this at paragraph 80 when he noted, “the AGS letter to the applicant dated 13 June 2014 … At least, the letter requesting his opinion was ambiguous as to what he was specifically required to comment on.”

37.    The justification for a morphed appointment into a medical examination is couched in the terms of “to assist the Tribunal to decide the question it is required” (paragraph 7 of the [Tribunal’s] directions hearing decision). This is contrary to Barker J’s order “(3) The matter, limited to the question …”

38. This was again reinforced as justification for a medical examination by the respondent at the case management hearing. The transcript shows that at page 7, line 40 the respondent said, “Only that if I could reiterate that – and in an attempt to resolve the matter rather than – that the respondent’s position as model litigant is to assist the tribunal to come to the correct and preferable decision. There is no underlying sinister approach here. The medical evidence would assist the tribunal to come to a correct and preferable decision, and that is why the request was made and a direction was made.” Given that the respondent is keen to assist the Tribunal all they need do is follow the instructions that Barker J repeatedly outlined.

39.    As can be seen Barker J makes no reference to medical report. Only that a labour market analysis be done. Barker J makes further references to labour market analysis in paragraphs 82 and 89. Yet in all his clarifications he never mentions the need for medical reports, just a labour market analysis.

37    The applicant stresses that once a labour market analysis has been done then it is time for both the applicant and the respondent to call further evidence in relation to the matter in issue, should they wish. Order 4 of the reasons of Barker J did not, the applicant submits, give leave to the respondent to require the applicant’s attendance at a further medical examination.

38    The applicant refers to r 7.1.2.10 of the General Rules of Portability of the Guide to Social Security Law which provide as follows:

…

Indefinite portability of DSP - severely impaired disability support pensioner

From 1 July 2012 DSP recipients with a permanent and severe impairment and no future capacity to work are eligible for indefinite portability of their pension. DSP recipients applying for portability under these provisions are required to undergo an assessment of their impairment and their future work capacity (JCA).

To be eligible for indefinite portability under these rules, a DSP recipient must:

•    have a severe impairment (1.1.S.127) which will persist at this level for at least the next 5 years (i.e. no significant improvement is expected to the level of impairment within this period), and

•    have no future work capacity, that is be prevented by their impairment from performing any work independently of a program of support within the next 5 years, or

•    be assessed as manifestly eligible for DSP under the current (post December 2002) manifest criteria.

A DSP recipient is accepted as being prevented from performing any work if, because of their impairment, they are deemed unlikely to have any capacity to undertake work in the open employment market in the next 5 years, even with interventions.

For the purpose of these provisions, 'work' means work that:

•    is on wages that are at or above the relevant minimum wage, and

•    exists in Australia, even if not within the recipient's locally accessible labour market.

DSP recipients need to apply for indefinite portability under these provisions while in Australia and are required to undergo a portability assessment before departure.

Generally, those recipients who are overseas and intend to apply for indefinite portability will need to return to Australia to undergo a portability assessment under these provisions.

An exception to the requirement to return to Australia for an assessment will apply in limited circumstances where a DSP recipient is unable to return to Australia because they have had a serious accident, or been hospitalised, before the end of their current portability period.

Act reference: SSAct section 1218AAA Unlimited portability period for disability support pension-severely impaired disability support pensioner, section 94(3B) Severe impairment, section 94(4) Doing work independently of a program of support

Policy reference: SS Guide 3.6.1.50 Payability of DSP, 3.6.2.20 Manifest Grants & Rejections for DSP

…

39    The applicant says that, as found in the first paragraph, the only requirement that disability support pension (DSP) recipients applying for portability under these provisions are required to undergo an assessment of their impairment and their future work capacity (JCA). She points to the fact that she has participated in two JCAs, in 2010 and 2012, as detailed in the First Decision.

40    The applicant contends, therefore, that the respondent’s occupational physician has the JCA to assist them. Indeed, the respondent has never indicated that the medical reports were of any concern to it in forming a JCA.

41    Related to this complaint is the applicant’s contention that the Tribunal failed to address her objections. The applicant repeats the submission (which she says was ignored) as follows:

58.    The applicant’s submission was made under the following headings:

Legal Objection

Fear of an abuse of process.

A.     Imposition of a two hour work capacity which is “is not generally available to the public and is for internal use.”

B.    The respondent’s legal department knew this was not a legislated requirement.

C.    Respondent withheld this requirement when writing to applicant’s doctor for a medical report

D.    The Respondent had opportunity to correct their Statement of Facts, Issues and Contentions

E.    Respondent engaged the HPAU to provide a biased medical report

The necessity of a medical appointment

All these headings and their accompanying detail were dismissed in 7 words, in one short sentence at paragraph 12. “The Tribunal rejects both of these arguments.” The applicant has no understanding of why her arguments were lacking, or how they may or may not inform the eventual hearing before the AAT. This is particularly relevant for the section entitled Legal Objection.

42    The applicant draws again on discussion in Confidential (at [195]) where Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 is cited:

“When the parties submit their dispute to a tribunal for adjudication, they do so on the assumption that the dispute will be decided in accordance with rules. They assume that the adjudicator will decide the dispute according to the rules or principles which govern their conduct and that he will ascertain, so far as he reasonably can, what are the facts of the dispute. To give effect to these assumptions a judicial decision must be a recent decision arrived at by finding the relevant facts and then applying the relevant rules or principles. A decision which is made arbitrarily cannot be a judicial decision; for the hallmark of a judicial decision is the quality of rationalities. … However, without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as a ‘necessary incident of the judicial process’ because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.

The giving of reasons for a judicial decision serves at least 3 purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision. … Secondly, the giving of reasons furthers judicial accountability. … Thirdly, under the common law system of adjudication, courts not only resolve disputes - they formulate rules for application in future cases. … Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.

43    The applicant also relies upon a passage from a paper presented by Gleeson CJ entitled ‘Judicial Accountability’, Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (at 78) per Smithers J, and numerous other judicial and extra curial analyses of the obligations of the Tribunal, including the obligations set out in the AAT Act, which is in the following terms:

28    Person affected by decision may obtain reasons for decision

Request for statement of reasons

(1)    Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement.

44    The applicant contends that the Tribunal has provided justification for rejecting the applicant’s objection, but has failed to address the applicant’s ‘evidence for other material on which those findings were based and giving the reason for the decision’. She refers to, again, the Tribunal’s earlier reasoning (at [62]), which was rejected in the First Decision, and where it was said:

Without further information, the Tribunal can only make a choice of this sort based on the limited evidence it has before it. In that regard, the Tribunal notes that Dr Tabrizian has been the Applicant’s doctor since 2006 – some 9 years. It also notes that Dr Tabart has never met the Applicant and did not speak to Dr Tabrizian about the Applicant’s medical history and treatments to date. Much of Dr Tabart’s report seems to query Dr Tabrizian’s diagnostic conclusions and seems to focus a great deal on whether the Applicant should have received DSP in the first place – a question the Tribunal was not asked to determine. Further, until quite recently, the Department had never expressed any concerns to the Tribunal in relation to the assessment provided by Dr Tabrizian, his qualifications or the diagnosis and rating of the Applicant’s medical conditions. Indeed, as noted above, in its written submissions of 4 September 2014, the Department asked the Tribunal to accept Dr Tabrizian’s findings that the Applicant suffered from a severe impairment – agreeing with Dr Tabrizian that the Applicant’s chronic mal-absorption was fully diagnosed and treated, rated 20 points on the Impairment Tables and was likely to last for 5 years.

45    The applicant contends:

75.    The applicant puts to the court that history frequently informs the future. As we have seen the respondent has been prepared to impose unlegislated requirements; flawed and biased health report and to withhold key information from the applicant’s treating doctor. There is no reason to suppose another medical examination will be fair. The occupational physician will be well aware that continued business from such a huge organisation as the government will be dependent on a medical report favourable to Centrelink. The “Respondent’s preferred Occupational Physician” (paragraph 1 of the AAT direction, 29 June 2016) is a company with branches Australia wide. That is, potentially all Centrelink’s business Australia wide, if they come up with acceptable findings. Acceptable findings, that is, to the view point of the client who has already been found to stoop to illegal and immoral actions in order to achieve their aims. As Deputy President Todd said in Health Insurance Commission and Hobbes and Comcare (1999) 21 ALD 229 at paragraph 9, “…although one should be able to trust that a professional man would not be influenced in his opinion by the fact of which party it is that has nominated him to examine an employee, the fact remains that justice must not only be done but be seen to be done.”

76.    The applicant would submit that to allow the respondent to submit another medical report would be to condone the respondent’s past disreputable actions and give them another chance to again discredit her doctor. How many times does the court system allow a professional to be discredited? How many times does the court system allow the respondent to play around with medical reports?

77.    The applicant held grave fears that the medical appointment was a revisiting of the failed HPAU attempt to discredit her treating doctor. This was the reason the applicant objected to the respondent’s requested medical appointment/examination. She put it to the AAT this was in fact merely a ‘fishing trip’.

The Tribunal ‘exceeded its powers’

46    It is not clear to which ground of appeal these arguments are directed. The applicant accepts that in a normal tribunal hearing anything that assists the Tribunal to come to a correct and preferable decision is acceptable. But this, however, ‘is not a normal [Tribunal] hearing. It is a referral from the Federal Court where the case has been set aside and the matter limited to the question.’ The applicant contends that the Tribunal has ignored the orders of this Court. She contends that the respondent engaged the HPAU to provide a biased medical report. She cites numerous Tribunal decisions where varying approaches have been taken by Tribunal members, which she says would not accord with the approach taken in this instance. In short, she contends that given the senior member in 2014 had been found to have pushed statistical deadlines ahead of a medical report and had to apologise for doing so, it was appropriate that two years later, she should act to avoid ‘the slightest doubt in the public mind of bias’. The applicant contends the respondent had nothing to lose by trying for another medical report after their last one was rejected by the Tribunal.

47    The applicant goes on to seek orders that any remittal to the Tribunal be reheard by ‘an independent person unconnected with the Perth [Tribunal]’.

CONSIDERATION

48    The arguments of the applicant on this topic are not entirely easy to follow, but at their core is the contention that the Tribunal has failed to follow the orders of Barker J in the First Decision. That is to say, the applicant maintains that the direction that she attend a medical appointment with an occupational physician is contrary to the orders of Barker J. This submission is not correct.

49    His Honour’s orders specifically allowed both parties to call further evidence. The applicant’s contention that a labour market analysis cannot be conducted by the occupational physician is without evidentiary or other foundation. It is well recognised that an occupational physician is a medical practitioner specialising in the capacity to provide opinions about the types of work that an applicant, such as this applicant, could potentially be able to carry out and, if so, how many hours per week she could carry out. In this case, the assessment would be directed to the period over the next five years, taking into account her impairments arising from her fully diagnosed, treated and stabilised condition.

50    The applicant submits that his Honour’s reasoning contemplated a sequence in the calling of further evidence, but there is no foundation for this assertion at all for reasons explained above (at [5]).

51    It cannot be thought that the only basis of approaching the fact finding exercise is to conduct some market analysis of what jobs are available for persons of a particular level of incapacity and then to review the applicant’s particular incapacity to see where she fits within such analysis. It is entirely customary and conventional for an occupational physician, on conducting a review of a person in the applicant’s position, to express a view as to whether or not such a person would be able to carry out certain types of work for certain periods of time. There will clearly be supplementary questions then, which may or may not be specifically answered by the occupational physician, as to whether such positions may be available, but it is no more logical to suggest that that question must be answered before a review by an occupational physician, rather than after. It is more likely than not that an occupational physician would be in a position to answer both questions, but in either event, it does not follow that the approach contemplated by the Tribunal conflicts with the requirements identified by Barker J in the First Decision. To the contrary, the approach taken by the Tribunal was entirely orthodox.

52    The applicant also submits that any further report would not be impartial. However, there is also no acceptable foundation for this assertion. Even if a report gave a result which was disappointing to her, that would not necessarily assume impartiality. There is a vague suggestion from the applicant that the respondent is ‘fishing’, but, in my view, it is clear that the respondent is discharging its obligation to assist the Tribunal by providing relevant and current material regarding the effect of the applicant’s medical condition on her ability to do any work.

53    As to the complaint about the inadequacy in the Tribunal’s reasons, that is, in considering the applicant’s arguments, again, this is clearly based on an erroneous appreciation as to the nature of the hearing and the obligations.

54    There was no hearing and there was no final ‘deciding of the case’. This was simply a procedural step in preparation for the final hearing, similar to an interlocutory step which might be taken in litigation. The applicant’s submissions all relate to the obligations a tribunal might have on a final hearing. In this instance, the Tribunal gave ample reasoning and there is certainly no obligation to identify and reiterate every single argument exhaustively advanced by the applicant nor, as the applicant submits, to identify evidence that was rejected and the evidence that was given more weight. That was not the exercise being conducted. This identification of the sentence in the reasons of the Tribunal (at [12]), where it rejected her lengthy arguments, assumes that this is the sole explanation for rejection of her arguments whereas those words are merely pre-amble for all that follows in the balance of the Tribunal’s reasons.

55    The arguments as to excess of jurisdiction proceed on the mistaken basis that because of her success in the First Decision, there was something in the nature of the orders made by Barker J which limited the Tribunal’s statutory powers and obligations. That is not so, the decision which the Tribunal was required to review was the initial decision to refuse the applicant unlimited portability. That is because the whole of the first decision of the Tribunal was ‘set aside’ (by order in the First Decision). The Tribunal has not ignored the orders of Barker J in carrying out its obligations to review that decision. It has power to make directions in accordance with s 33(2A) of the AAT Act to require the applicant to provide further information to the extent to which the Tribunal considers maybe relevant to the proceedings.

56    While it is true that the orders of Barker J have placed certain limitations on the scope of the remitted matter, those limitations related to the consideration of the very broad question of whether the applicant’s severe impairment would prevent her from performing work independently of a program of support within the next five years.

57    The applicant has not demonstrated that the requirement for contemporaneous medical evidence would be irrelevant to determining that question. The Tribunal will be required to determine the relevance and attribute weight in due course to any further information or evidence either the applicant or the respondent may provide in response to any directions made by the Tribunal in order to ultimately determine the merits of the case. There is nothing in the direction which has been made which departs from this obligation.

58    It is unnecessary to consider in the circumstances, in my view, whether or not a question of law has been identified. Certainly, questions of law have ultimately been raised in the grounds of appeal, but none of the grounds has succeeded.

59    Apart from the error identified above (at [5]), this appeal, in any event, is not competent for reasons identified by Perram J in Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18, where his Honour noted (at [17]-[19]):

17.    Section 44 of the AAT Act confirms the jurisdiction of this Court to entertain the questions thus posed. By contrast, applications under the ADJR Act and under s 39B of the Judiciary Act do not require the stating of such questions. Further, in any judicial review proceedings the Tribunal itself would necessarily be a respondent which is plainly not the case with the present proceeding. For all those reasons I cannot accede to Mr Yao ’s submission that his notice of appeal is anything but that which it appears to be, namely, an appeal pursuant to s 44 of the AAT Act.

18.    That being so the appeal is clearly incompetent. Section 44 of the AAT Act provides for appeals from “decisions”. In Director General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80 the meaning of the word “decision” in s 44 was examined. The director general had sought to appeal, pursuant to s 44, from the Tribunal’s preliminary determination that it had jurisdiction to entertain Ms Chaney’s application to review the Department’s decision to cancel her widow’s pension. A majority of the Full Court (Deane J with whom Fisher J agreed) concluded that the word “decision” in s 44 should, for contextual reasons, be given a narrow reading and that so read it was confined to decisions “which constitute[s] the effective decision or determination of the application for review”. The proper construction of “decision” in s 44 is a matter upon which minds might legitimately differ as Northrop J’s dissent in Chaney amply demonstrates. However, Chaney has been repeatedly applied in this Court over a number of years: see Kowalski v Repatriation Commission [2009] FCAFC 107; (2009) 259 ALR 444 at 447-448 [18]- [23] per Spender, Graham and Gilmore JJ; and also the analogous reasoning in Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877; (2000) 64 ALD 325 at 334-335 [26]- [28].

19.    In this case the five decisions under review are decisions by the learned Tribunal member not to issue summonses to give evidence. Such a decision is not, to use the language of Deane J in Chaney, “a decision constitut[ing] the effective decision of determination of the application for review”. It follows that the purported appeal is incompetent.

60    Further, in Commissioner of Taxation v Beddoe (1996) 44 ALD 561, Spender J said (at 566-567):

In my opinion, the giving of a direction pursuant to s 33 of the AAT Act is not the making of a decision within the meaning of s 3 of the ADJR Act, nor in my opinion does the AAT, in making a direction under s 33, engage in conduct for the purpose of making a decision to which the ADJR Act applies, within the meaning of s 6(1) of the ADJR Act.

…

Notwithstanding the views which I expressed as a member of the Full Court in Hutchins v Deputy Commissioner of Taxation (1996) 136 ALR 153 , consistent with authority binding on me, I conclude that a direction pursuant to s 33(2A) of the AAT Act as to the procedure to be followed in connection with the hearing of a proceeding before the tribunal, requiring any person who is a party to the proceeding to provide further information in relation to the proceeding, lacks that quality of finality or ultimate determination which the authorities say is necessary before any particular decision can be a decision “made under an enactment”.

61    While the applicant disagrees with this view, it represents the law and I intend to apply it. Even in mainstream litigation leave would be required before appealing an interlocutory decision and in a case like this would rarely be sought or granted. There is nothing in the slightest that is unconventional or inappropriate about the direction given by the Tribunal.

CONCLUSION

62    The appeal must be dismissed with costs. It follows that any suggestion that the balance of the review in the Tribunal be conducted in another location, such as Victoria, is quite an inappropriate order to be made by this Court, especially when the Tribunal has made no error.

Associate:

Dated:    3 February 2017