FEDERAL COURT OF AUSTRALIA

Jamal v Secretary, Department of Social Services [2018] FCA 513

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the respondent’s costs fixed in a sum to be determined.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant pay the respondent’s costs fixed in the sum of $4,000.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    On 3 April 2018, I heard an application for leave to appeal from orders made by a judge of this Court on 11 August 2017. The applicant appeared as a litigant in person. The respondent, the Secretary of the Department of Social Services, was represented by a solicitor. At the conclusion of the hearing, and after a short adjournment, I made orders dismissing the application with costs, advising the parties that my reasons would be published at a later date. The following are my reasons for that decision and my reasons for making a lump sum costs order as sought by the respondent.

2    The primary judge dismissed an application for an extension of time in which to bring an appeal from a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of the Social Security Appeals Tribunal not to extend the applicant’s portability period for receipt of his disability support pension while he was overseas. The applicant’s pension was suspended when he reached the six-week limit for portability. The reason he advanced for seeking an extension of the portability period was that he fell and dislocated his shoulder nine days before the six-week period elapsed.

3    While the Tribunal accepted that the applicant’s injury was serious, it did not accept that this was the reason why the applicant was unable to return to Australia prior to the expiry of the portability period, which was a necessary precondition to extending the portability period by the terms of s 1218C(1)(a) of the Social Security Act 1991 (Cth). That conclusion was reached by the Tribunal:

(1)    in part, because the applicant had provided his travel itinerary three weeks before leaving Australia, with a departure date of 30 October 2014, and a return date of almost nine weeks later on 30 December 2014, such that he had never intended to return within the six-week portability period; and

(2)    in part, because, while the injury was serious, it was not accepted to be serious enough to prevent him from returning to Australia within the nine days remaining before the expiry of the portability period and receiving medical treatment here.

4    The primary judge, at [21], found that it was open to the Tribunal, on the material that was before it, to make findings to the effect that the applicant was not prevented by his injury from returning to Australia within the six-week portability period. However, beyond such an adjudication as to the Tribunal’s legal capacity to make findings of that nature, this Court has no jurisdiction, as her Honour observed, to embark upon an assessment of what the correct and preferable decision was on the merits, that being a task for the Tribunal alone.

5    The appeal that the applicant sought to bring was required to be limited to questions of law: s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The primary judge accepted that there was a reasonable explanation for the delay in bringing the application, noting that the grant of the extension was opposed by the respondent, but not upon that basis. However, her Honour refused to grant the extension of time upon the basis that the proposed appeal had little or no prospect of success. Her Honour followed well-established authority in reaching that conclusion, citing Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9.

6    The last relevant principle set out in Hunter Valley Developments was that the merits of the substantive appeal should to be taken into account. Her Honour followed the view expressed by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62], upheld by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478, to the effect that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court.

7    The primary judge carefully examined each proposed ground of appeal and concluded that none of them had any reasonable prospects of success in establishing the necessary error of law. Her Honour further found that no question of law was raised as a matter of substance by any of the proposed grounds of appeal. That conclusion is unassailably correct when regard is had to the seven proposed grounds of appeal that were reproduced by her Honour verbatim at [14] and the reasons her Honour gave for finding that no viable question of law had been raised. Those grounds, as reproduced by her Honour, were as follows:

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”

8    The discretion to grant leave to appeal in s 24(1A) of the Federal Court of Australia Act 1976 (Cth) is unfettered. However, the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399-400 accepted a line of authority as to the general guidance which this Court should normally accept in exercising such a discretion. That guidance comes down to two tests:

(1)    first, whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal; and

(2)    secondly, whether substantial injustice would result if the leave were refused, supposing the impugned decision to be wrong.

9    The two tests are not uncoupled, but are cumulative and bear upon each other. The degree of doubt which is sufficient in one case may be different from that required in another. There will continue to be cases that raise special considerations, and, accordingly, this Court should not regard its hands as tied by the general guidance of the two tests. No special consideration has been suggested as applying to this case, and none is apparent. As such, it is appropriate to apply the ordinary tests.

10    The application for leave to appeal lists the following 18 grounds (verbatim):

1.    Her Honour PERRYJ did an errors in law or Questions in law and violation of the law Act

2.    Her Honour PERRY J was mislead and made her order dated 11/8/2017, under that misled, [ the case hidden one year. the transcript did not produce as it was included the appellant submission and the appellant affidavit dated 15/4/2016. was disappeared]

3.    The appellant field his appeal on 15/4/2016, supported it, by an affidavit showed is he wasn't in Australia from 29/1/2016 to 29/3/2016, and the AAT decision date is 1/2/2016, [the appellant appeal was completely comply with s 44(2A) of AAT Act] and Her Honour made her order with absent affidavit and transcript as that were appellant's evidence .

4.    The appellant appeal's comply with Rule 33.12.(2)(b)(e) of the FCR and raised his ground of appeal's in the hearing date through the interpreter as English is second language.and [her honour she very positive and satisfied is the appellant was field his appeal in the time farm as required bv s 44 (2A) of AAT Act and he was Prejudice and her honour consent is AAT target to Mislead fact.and the Case full merits ]

5.    Her Honour PERRY J Abused her discretion with appellant officially evidence showed is my case merits and did not emulate of evidence in the case file's

6.    Her Honour PERRY J fell into jurisdictional error by way of a constructive failure to exercise her jurisdiction

7.    In the present case, there was no identifiable purpose for which the other evidence were intended to be used, and Her Honour's reference to taking those matters into account in weighing the scales was an error on the face of the record

8.    Her honour had no statutory or common law jurisdiction to take those matters into account, whether "weighing the scales" or in determining whether the method had proved its case beyond reasonable doubt.

9.    Furthermore, in describing "weighing the scales" Her Honour must have been adverting to a balancing exercise, such as the balance of probabilities. A finding beyond reasonable doubt proceeds on a very exercise than weighing or balancing different matters.

10.    Her Honour's reliance on that material in "weighing the scales" against the appellant amounted to an error on the face of the record because it mistakenly asserted her ability to take matters into account that were outside her jurisdiction to do so.

11.    on 8/12/2015,the appellant asked The Tribunal Member for an adjournment because there was not able to bring his case to the tribunal and explained in his application he requested opportunity to have time to present his case, but The Tribunal Member refused this application and pushed the appellant to choose some reasons to discussed only

12.    It is a common Law requirement that the administrators of justice afford the appellant the right to procedural fairness and natural justice.

13.    The Common Law states that the concept of procedural fairness is two fold, and encompasses the limbs, namely

•    That the decision maker must afford a hearing in appropriate circumstances ; and

•    The decision maker is not to be biased or seen as biased.

14.    in Re Minister for immigration and Multicultural Affairs; Ex prate Lam [2003]HCA 6 per Chief Justice Gleeson examined the manner in which cases concerning procedural fairness are approached by the courts and commented as follows:

37] 'Fairness is not an abstract concept. It is essentially practical justice, The concern of the law is to avoid practical injustice

15.    in Re Minister for immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598 it was found that if there is a situation where procedural fairness is not afforded the applicant in proceedings that the decision is said to be a decision which is not made in accordance with the law and as such there is not a decision in law or in fact,

16.    in the Director of public Persecutions v Gursel Ozakca & Anor[2006] NSWSW1425, the plaintiff sought prerogative relief on the basis of denial of natural justice Rothman J at [13] stated ‘A refusal to grant an adjournment can constitute a failure to give a party to the proceedings the opportunity of adequately presenting his case"

17.    (please refer to paper delivered by A Mark A Robinson, 'Pactical Justice and Procedural Fairness, Delivered at PAVE Peace Group, Sydney, 23 December 2003, Page 5)

18.    What has happened in my view, is that The Tribunal Member has entirely confused the differences to determining whether there was evidence which if accepted, and taken at its highest, could amount to proof of merits ,a question of law, with a different question, namely one of fact, that is, whether he did or did not judge the evidence which was to be reliable and acceptable. And her Honour PERRY J fell on the same mistakes

11    The applicant filed written submissions on 15 January 2018. The respondent filed written submissions on 1 February 2018. The applicant filed further written submissions on 2 March 2018. The applicant also made oral submissions at the hearing on 3 April 2018.

12    The arguments that the applicant advanced orally and in writing did not in substance rise above a disagreement with the conclusions that had been reached by the primary judge and by the Tribunal and, in part, endeavoured to have this Court engage in impermissible merits review. The errors asserted on the part of the primary judge were not shown to be of substance, or to give rise to any appellable issue. The applicant also sought to explain his lack of success as being due to improprieties on the part of several of the decision-makers, but provided no proper basis for making any of those assertions.

13    During the course of the hearing of the application, the applicant also asserted that something “corrupt” had happened and that the primary judge had not really written her reasons for judgment at all, which were said to have been written by someone else who did not like him, swapped for those her Honour had written, and then published. The basis for this submission appeared to be a contention that the primary judge had not referred in her reasons to various matters raised during the course of the hearing before her Honour, as reflected in the transcript of those proceedings. The applicant also seemed to be suggesting that the primary judge was required, in determining his application for an extension of time, to conduct a full hearing of his appeal, including delving into the merits of his case. There was no foundation for any of those assertions.

14    The following specific observations may be made about the prospects of success of the 12 proposed grounds of appeal contained in the applicant’s draft notice of appeal dated 15 August 2017 and reproduced at [10] above:

Proposed ground 1

15    This proposed ground of appeal states:

1.    Honour PERRYJ did an errors in law when made her order date 11/8/2017,the application for an extension of time dismissed under s 44of AA T Act 1975,,

16    This ground asserts, but does not identify, any error of law on the part of the primary judge. Her Honour identified the relevant principles for an extension of time at [10]-[13]. There was no apparent error in the application of those principles to the proposed grounds of appeal from the Tribunal’s decision.

Proposed ground 2

17    This proposed ground of appeal states:

2.    There has been no delay in bringing proceedings to set aside judgement I have filed the notice of motion as soon as possible I was contact the AAT Decision date 1/2/2016.

18    This ground goes no further than addressing the reasons for the lateness of the filing of the appeal from the Tribunal in this Court. That delay did not form any part of the primary judge’s reasons for refusing the extension of time sought.

Proposed ground 3

19    This proposed ground of appeal states:

3.    My appeal filed on 15/4/2016, supported by affidavit dated 15/4/2016, showed I, wasn't in Australia from 29/1/2016 to 29/3/2016, so I, comply with [s44(2A)]

20    This ground only goes to the merits of the applicant’s case based on when he was overseas and does not assert any error on the part of the primary judge.

Proposed ground 4

21    This proposed ground of appeal states:

4.    The appellant appeal's comply with Rule 33.12.(2)(b)(e) of the FCR as he has raised all grounds in the hearing, through the interpreter as English is second language. [her honour she very positive and satisfied the appellant was field his appeal in the time farm as required by s 44 (2A) of AAT Act and he was Prejudice and consent the AAT target to Mislead fact ,and the Case full merits]

22    This ground again addresses the lateness of the filing of the notice of appeal, which was not a factor in refusing an extension of time.

Proposed ground 5

23    This proposed ground of appeal states:

5.    Her Honour PERRY J target to mislead and made her order dated 11/8/2017, and made her order under that misled, [ my case disappear suddenly one year, the transcript did not produce as it was included mv oral submission and my affidavit dated 15/4/2016. disappeared too ]

24    This ground asserts that some misleading of or by the primary judge has taken place. The applicant suggested that the delay between judgment being reserved and delivered, and the absence of reproduction in the judgment of the applicant’s oral submissions or affidavit was somehow misleading. It is not apparent what possible difference this could have made, let alone how it amounts to or reveals any error.

Proposed ground 6

25    This proposed ground of appeal states:

6.    The appellant express in his notice of appeal all Questions in law target of the AAT Decision pursuant rule 33.12(2) and made submission in the hearing 30/8/2016.

26    This ground seems to reassert that the applicant was raising questions of law, but does not identify any error on the part of the primary judge in finding to the contrary.

Proposed ground 7

27    This proposed ground of appeal states:

7.    The appellant appeal's is fact ,merits, and the order of Honour PERRY J denied the fact and omitted all my oral submissions and affidavits and notice of appeal,

28    This ground seems to assert a right to bring a merits appeal, which is plainly wrong, as was made clear to the applicant at the hearing on 3 April 2018.

Proposed ground 8

29    This proposed ground of appeal states:

8.    The appellant believe both courts The AAT and Federal court target to mislead and made their decisions under that misled, I,refer to my affidavit dated 15/4/2016 which included evidence showed I am out of Australia 29/1/2016, to 29/3/2016,and the transcript of the hearing dated 30/8/2016 ,as evidence was absent of order maker.

30    This ground asserts that the Tribunal and the primary judge engaged in some kind of misleading conduct, apparently basing that upon the applicant’s travel movements in early 2016 and upon what took place at the hearing before the primary judge. There is no identification of what was said to be misleading, or how that had any bearing on the orders and reasons of her Honour, let alone how it is capable of establishing error.

Proposed ground 9

31    This proposed ground of appeal states:

9.    Her Honour based on her order date 11/8/2017on here analysis of the errors in law not aim a question in law with non giving chance to the appellant to clarify this point in the hearing, which the appellant mention that in hearing and stated clearly the AAT decision has several a questions of law, and the transcript wasn't in case file,

32    Ground 9 again asserts that the applicant was raising questions of law, but does not identify what those questions might be, or how the primary judge was said to have erred.

Proposed ground 10

33    This proposed ground of appeal states:

10.    Her honour delivered her order dated 11/8/2017, after one year of the hearing.with absent of my affidavit and my submission made in the hearing date 30/8/216,which she forget she was in full consent by all my submission was made in the hearing day, and she stated that the transcript well be included the case evidence.

34    This ground seems to suggest that some material aspect of the applicant’s case was overlooked in the period between the hearing before the primary judge and her Honour’s delivery of judgment, but does not identify what was overlooked, or what material difference it might have made. The oral submissions by the applicant suggested that there had been acceptance at the hearing before the primary judge of error on the part of the Tribunal. However, a careful consideration of the relevant portions of the transcript reveals no more than a debate as to what could constitute a legal error, not that any such error had in fact taken place.

Proposed ground 11

35    This proposed ground of appeal states:

11.    I would like to refer you honours to my case file, and do double check of it as I feel there are some hands play on it, and that happen in the AAT hearing before.

36    This ground seeks to have this Court conduct merits review of the applicant’s case, or some kind of propriety check in relation to what had taken place, presumably before the Tribunal. That is not the function of this Court in hearing an application for leave to appeal, especially as no error is asserted by this ground.

Proposed ground 12

37    This proposed ground of appeal states:

12.    The appellant well prepare submission later explain why his case was merit and what error in law or question in law Honour PEERY J based on her order in 11/8/2017 on it.

38    This ground refers to the applicant providing submissions as to why his case has merit and what the errors of law or questions of law were. As such, this is not a ground of appeal at all.

Conclusion

39    None of the applicant’s oral arguments identified any viable ground of appeal. Nothing said by the applicant orally or in writing affected any of the observations above. At no point was an error on the part of the primary judge even identified, let alone any basis provided for supposing that such a ground might be viable.

40    There is no prospect of success for any of the proposed grounds of appeal in relation to the primary judge’s orders. There can be no injustice at all, let alone substantial injustice, in refusing leave to appeal.

41    In the circumstances, it is not necessary to determine the respondent’s notice of objection to competency.

42    For the foregoing reasons, the application for leave to appeal was dismissed with costs.

Question of ordering lump sum costs

43    The solicitor appearing for the respondent at the hearing of the application handed up copies of tax invoices rendered in relation to this application and gave a copy to the applicant, who said that he was unable to comment upon them. The invoices did not include anything for the day of the hearing of the application because that had not yet been billed.

44    The total amount billed was just over $5,800, including $510 for the cost of the transcript of the hearing before the primary judge, which was specifically sought to be included in the appeal book by the applicant during the course of a case management hearing. The respondent’s solicitor sought reimbursement of the transcript cost in full and two-thirds of the balance of the costs incurred. Having examined the invoices, that amount appears to be just and reasonable, especially as it does not include the costs to be billed for the hearing itself, noting that the costs for the proceedings before the primary judge were taxed in the larger sum of $7,960. Accordingly, I fix the costs payable by the applicant to the respondent in the sum of $4,000.

Associate:

Dated:    17 April 2018