FEDERAL COURT OF AUSTRALIA

Jamal v Secretary, Department of Social Services [2017] FCA 916

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to appeal the decision of the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is dismissed.

2.    The applicant is to pay the costs of the respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant seeks an extension of time to appeal against a decision of the Administrative Appeals Tribunal (the Tribunal). By its decision, the Tribunal affirmed the decision of the Social Security Appeals Tribunal (SSAT) not to extend the applicant’s portability period for the disability support pension. At the time that the original Centrelink decision was made in February 2015, a person could continue to receive their disability support pension payments whilst overseas for a maximum of six weeks (the “portability period”), subject relevantly to an exercise of discretion to extend the portability period under s 1218C(1) of the Social Security Act 1991 (Cth) (the Social Security Act).

2    Section 1218C of the SSA relevantly provides:

(1)     The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:

(a)     a serious accident involving the person or a family member of the    person;

    …

(2)     The Secretary must not extend the person’s portability period under subsection (1) unless:

(a)     the event occurred or began during the period of absence; …

(3)     If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period.

3    The respondent, the Secretary of the Department of Social Services (the Secretary), does not take issue with the adequacy of the applicant’s explanation for the delay. Nor does the Secretary contend that she would be prejudiced, were an extension of time granted. However, the application for extension of time is opposed by the Secretary on the basis that the proposed appeal lacks any reasonable prospects of success and it would not be in the interests of justice to grant an extension of time. In this regard, it is important to emphasise that, if the application for an extension of time were granted, the appeal would lie under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and as such would be limited to an appeal on questions of law. The Court has no jurisdiction to embark upon an assessment of what is the correct and preferable decision on the merits, which was a task relevantly for the Tribunal alone.

4    For the reasons that follow, the application for an extension of time should be dismissed.

2.    BACKGROUND

5    The relevant background facts leading to the suspension of Mr Jamal’s disability support pension were set out by the Tribunal member in its reasons as follows:

1.     The Applicant, Mr Jon Jamal has been in receipt of Disability Support Pension (DSP) since 4 May 2007.

2.     On or about 9 October 2014, Mr Jamal informed Centrelink of his intention to depart Australia on 30 October 2014 to travel to Egypt, and to return on 30 December 2014. Centrelink asserts that during a phone conversation on 9 October 2014, Mr Jamal was notified that his DSP could be paid outside Australia until 11 December 2014 and that payment would be stopped if he remained outside Australia beyond that date.

3.    On 30 October 2014, Mr Jamal left Australia, and on 2 December 2014 he sustained a dislocated shoulder whilst in Egypt. Mr Jamal was treated by Dr Khaled Manteser in Egypt. Under a general anaesthetic a reduction was performed, ostensibly leaving the shoulder in a "good position". Dr Manteser stated that Mr Jamal required "2 months in the bed at last with physiotherapy".

4.     On 11 December 2014, Mr Jamal's DSP was suspended because he remained overseas.

5.    Mr Jamal made two alterations to his original flight which was scheduled to have him return to Australia on 30 December 2014. On 25 December 2014, Mr Jamal altered his flight to a return date of 9 January 2015. On 6 January 2015, Mr Jamal once more altered his flight with a return date of 29 January 2015.

6.    Mr Jamal returned to Australia on 29 January 2015. His DSP payments were restored from 29 January 2015, that is the date of his return to Australia.

6    Mr Jamal’s request for an extension of the portability period of his disability support pension was refused by Centrelink in February 2015. That decision was affirmed on 20 March 2015 by an authorised review officer and on 29 May 2015 the SSAT affirmed the decision of the review officer. In reaching its conclusion, the SSAT found that Mr Jamal “clearly had no intention of ever returning” during the portability period, and in any event, the immediate treatment received in Egypt had been successful and further treatment could have been undertaken in Australia.

7    Mr Jamal applied for review of the SSAT decision on 4 June 2015. On 1 February 2016, the Tribunal affirmed the decision of the SSAT that Mr Jamal’s portability period should not be extended, concluding after its consideration of the evidence and submissions that:

61. First, I find that I am not satisfied that Mr Jamal intended to return to Australia before 30 December 2014. In other words, I am not satisfied that Mr Jamal intended to return to Australia before the expiration of his portability period. This finding does dispose of this matter.

62. Second, having regard to the injury to Mr Jamal’s shoulder, I further find that I am not satisfied that the dislocation of Mr Jamal’s shoulder prevented him from returning to Australia on or about 11 December 2014, and it certainly did not prevent Mr Jamal flying back to Australia before 29 January 2015. I accept that he did require ongoing treatment and that he would have suffered some pain on the return flight. However, I do not accept that he would not have been able to fly back to Australia on or about 11 December 2014.

8    With respect to the conclusion at [61], the Tribunal had earlier found that the precondition to the exercise of discretion in s 1218C(2) of the Act was not satisfied because the applicant had not intended to return to Australia until 30 December 2014 in any event: Tribunal’s reasons at [47].

9    On 15 April 2016, Mr Jamal filed the application for an extension of time which attached a draft notice of appeal.

3.    CONSIDERATION

3.1    Principles relevant to granting an extension of time

10    Section 44(2A) of the AAT Act provides that any appeal on a question of law from a decision of the Tribunal must be instituted not later than the 28th day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Court allows. The Tribunal made its decision on 1 February 2016. The applicant, Mr Jamal, filed the application for an extension of time on 15 April 2016. Allowing three days postage for the Tribunal’s decision to reach the applicant, his application was filed some 42 days out of time for an appeal.

11    The principles relevant to the exercise of discretion to grant an extension of time for an appeal are well established (see e.g. Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349) and may be summarised as follows:

(1)    An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

(2)    The applicant must show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.

(3)    Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

(4)    The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

12    As to the last of these matters, it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).

13    As earlier noted, the application for an extension of time is opposed on the grounds that any appeal would lack any reasonable prospect of success and it is not in the interests of justice to grant the extension.

3.2    Would any appeal have reasonable prospects of success?

14    The draft notice of appeal sets out seven alleged questions of law:

1 – The decision Maker disqualified to review my case and make decisions.

2 – The Tribunal member made an Error of law.

3 – Breached the rules of natural justice and procedural fairness;

4 – Abused his discretion with applicant officially evidence;

5 – The decision maker is not to be biased or seen as biased in that case he totally bias

6 – The Tribunal member was Mislead

7 – Prejudice to the right of defense “the appellant”

(errors in original.)

15    Rule 33.12(2)(b) of the Federal Court Rules 2011 (FCR) provides that the “precise” question or questions of law sought to be raised under s 44 of the AAT Act must be stated in the notice of appeal. Manifestly none of the proposed questions of law comply with this requirement. Merely to assert, as does the applicant, that the Tribunal has erred in law is not to state a question of law: Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) at [92]. Nor are the grounds relied on in support of the relief sought stated “specifically” in the notice of appeal in compliance with FCR r 33.12(2)(e). Furthermore, generally self-represented litigants are not exempt from these requirements: see by analogy SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [15]. However, while the existence of a question of law is necessary to found the jurisdiction of the Court under s 44 of the AAT Act, the failure to state a question of law does not go to the existence of the Court’s jurisdiction under that provision; rather, the question of whether a question of law is raised must be ascertained as a matter of substance: Haritos at [62](4) and (6) and [94].

16    For the reasons set out below, the applicant does not have any reasonable prospect of succeeding on any of his proposed questions of law and, indeed, no question of law properly so called is raised as a matter of substance by the proposed appeal.

17    The first proposed question of law asserts that the Tribunal member should have disqualified himself while the fifth alleges that he was biased. In this regard, on 9 December 2015 the applicant pressed an application for the Tribunal member to disqualify himself on the ground that the member is totally blind and could not see the evidence, in particular, photographs of the injury to the applicant’s shoulder. That application was refused by the Tribunal member for reasons given at [25] of his reasons, namely, that the Secretary accepted that the applicant had suffered the injury, the photographs (which were admitted) had little relevance because the issue primarily depended upon the medical evidence, and the Tribunal member would ask the applicant to describe the photographs to him (as in fact occurred). Nothing in those circumstances indicates any absence of impartiality so as to even approach establishing actual bias, or suggests that a fair-minded lay observer might reasonably apprehend that the member might not bring an impartial mind to the resolution of the issues: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [23]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-394. Nor does the fact that the member ruled against the applicant’s application to adjourn the hearing in order to enable him to obtain further medical evidence in the event that the Tribunal was not satisfied with his evidence establish actual or apprehended bias. The Tribunal’s reasons for so ruling were that the applicant had already had sufficient time to obtain medical evidence (Tribunal’s reasons at [37]), and had in fact done so. Moreover the fair-minded lay observer would also have been aware that under s 2A of the AAT Act, the Tribunal was required to pursue the objective of providing a mechanism of review that is, among other things, “economical, informal and quick”, being an objective which would tend strongly against permitting an adjournment where the party had already had a sufficient opportunity to lead evidence and indeed had done so. As such, the allegations of bias and that the Tribunal member should have disqualified himself have no reasonable prospects of succeeding.

18    Proposed question 2 merely asserts the existence of an error of law, without identifying any such error. The applicant, however, submitted that the Tribunal wrongly applied s 1218C of the Act in reaching its decision and ought instead to have applied ss 1218AAA, 1218AA and 1218AB of the Act. It was not in dispute that, if the Tribunal had applied the wrong provision, it would constitute an error of law. However, the issue before the Tribunal was not whether the applicant will have a “severe impairment” for at least the next five years or is terminally ill so as to engage the discretion under ss 1218AAA or 1218AA respectively for a determination that the portability period is unlimited; nor whether he was “severely disabled” so as to engage the discretion to extend the portability period under s 1218AB. The issues concerned only s 1218C as the Tribunal found:

11. The sole issue before me as I stand in the shoes of the Secretary, is whether the decision of 6 February 2015 not to extend Mr Jamal’s portability was the correct and preferable one.

…

15. There is no evidence before me concerning claims that Mr Jamal was eligible for unlimited portability by reasons of severe impairment (section 11218AAA of the SS Act) or terminal illness (section 1218AA of the SS Act).

19    Nothing has been identified by the applicant that casts any doubt on the correctness of those findings. The ground is unsustainable. I also note that the respondent identified the provision in issue as s 1218C in its statement of facts issues and contentions and that no statement of fact, issues and contentions taking issue with that was filed before the Tribunal by the applicant. Furthermore, it is apparent from the transcript of the hearing before the Tribunal that, while the applicant initially suggested that the relevant section was “AA”, he then accepted that the member was correct in stating that “The relevant section for you is 1281C.”

20    The third proposed question raises the question of whether the Tribunal breached the requirements of procedural fairness. I have already found that the draft notice of appeal does not raise any reasonably arguable case of bias. Nor is it reasonably arguable that the applicant was denied procedural fairness because the member could not see his photographs. In particular, his injuries were conceded by the Secretary and accepted by the Tribunal, and the applicant was afforded the opportunity to describe the photographs to the member and to lead medical evidence as to the impact of his injuries, which he in fact did. Nor for the reasons earlier given, has any reasonably arguable case been raised on the basis of which it could be said that, in refusing the application for an adjournment to obtain further evidence, the applicant was denied procedural fairness: see [17] above.

21    With respect to the allegation of “abuse of discretion” in proposed question four, the Tribunal found that it could not exercise the discretion under s 1218C(1) by virtue of s 1218C(2) because Mr Jamal always intended to stay in Egypt longer than his portability period of six weeks (at [43]-[47]). The Tribunal’s construction of s 1218C is plainly correct. The effect of s 1218C(2) is that the Secretary cannot extend the person’s portability period under s 1218C(1) unless “the event”, being the serious accident which precludes the person from returning to Australia, “occurred or began during the period of absence”. However, it was plainly open on the evidence, if not inevitable, for the Tribunal to find that the applicant’s shoulder injury did not prevent him returning to Australia during the 6 week portability period despite the injury occurring during that period, because the applicant had booked a flight to return Australia after the 6 week period had expired in any event. As such, it was not the shoulder injury that prevented his return within that period. He had never planned to do so. The applicant argued that in adopting this construction of s 1218C, the Tribunal wrongly relied upon Farah and Secretary, Department of Social Services (Social services second review) [2015] AATA 675 because Farah involved cancellation of a payment. However, irrespective of its reliance upon Farah, the construction adopted by the Tribunal was plainly correct. Furthermore, the finding by the Tribunal at [62] that the applicant’s shoulder injury would not in any event have prevented him from returning on or about 11 December 2014, and certainly before 29 January 2015, was plainly open to the Tribunal on the evidence and is consistent with the departmental policy quoted at [18] of the Tribunal’s reasons which the Tribunal was entitled to take into account. As such, the ground has no reasonable prospects of success.

22    The sixth proposed question of law that the Tribunal member was misled is unintelligible. Nor do the written or oral submissions suggest that any reasonably arguable case is raised. Neither the proposed question of law nor the submissions identify who is said to have misled the Tribunal or in what manner. To the extent that any clarification can be gleaned from the submissions, the allegation appears to be first, that the Tribunal wrongly found that there “was no case to answer” and dismissed the application on that ground. However, that is not the basis of the Tribunal’s decision. Secondly, the submissions suggest that the Tribunal member misled himself by reaching the wrong conclusion on the merits, including as to the weight to be given to evidence. Any such claim is also bound to fail. As the respondent submits, the Court does not have jurisdiction to consider for itself whether or not the portability period should be extended under s 1281 or otherwise to consider the merits of the Tribunal’s decision: Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at 35-36. As an aspect of this, it is well established that the weight to be given to particular evidence falls exclusively within the Tribunal’s jurisdiction and does not raise a question of law within s 44 of the AAT Act: Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; (2015) AAR 24 at [100] and [105].

23    As the respondent submits, the seventh proposed question refers to “prejudice to the right of defence” and is incomprehensible.

24    In his written submissions, the applicant also complains that the Tribunal’s reasons were inadequate. However, the Tribunal made clear findings on the material questions of fact, referred to the evidence and other material on which its decision was based, and sufficiently exposed the reasons on the basis of which its decision was reached: see s 43(2B) of the AAT Act. In those circumstances, the ground has no reasonable prospects of success.

25    Finally, the draft notice of appeal asks the Court to make three findings of fact as to the merits of his application for an extension of the portability period. However, as the Secretary submits, the Court has no jurisdiction under s 44 of the AAT Act to consider the merits of his application for an extension of the portability period: see above at [22].

26    In circumstances where no reasonably arguable case is raised by any of the proposed questions of law, I do not consider that it is in the interests of justice to grant the application for an extension of time.

4.    CONCLUSION

27    For these reasons, the application for an extension of time to appeal against a decision of the Tribunal is dismissed with costs.

Associate:

Dated:    11 August 2017