FEDERAL COURT OF AUSTRALIA

Tran v Singh [2018] FCA 1512

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 9.05 of the Federal Court Rules 2011, the Secretary, Department of Jobs and Small Business be joined as a second respondent to the proceeding.

2.    The application for an extension of time to appeal from the decision of the Administrative Appeals Tribunal dated 29 July 2016 be dismissed.

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

REASONS FOR JUDGMENT

GLEESON J:

1    This is an application for an extension of time to appeal from a decision of the Administrative Appeals Tribunal (“AAT”) dated 29 July 2016 (“AAT’s July 2016 decision”), affirming a decision of the Social Services and Child Support Division (“SSCSD”) of the AAT made on 10 February 2016 (“SSCSD decision”).

2    The SSCSD decision affirmed a decision of an authorised review officer, an officer authorised to review decisions made by the Department of Human Services (now the Department of Jobs and Small Business) (“Department”) made on or about 16 November 2015 that the newstart allowance of the applicant (“Mr Tran”) was correctly cancelled from 29 January 2015.

3    The main issue on the application was whether Mr Tran’s proposed appeal from the AAT’s July 2016 decision has any merit, because there may be a question of law arising in connection with the AAT’s conclusion that Mr Tran’s newstart allowance was correctly cancelled from 29 January 2015.

4    By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), a party to a proceeding before the AAT may appeal to this Court, on a question of law, from any decision of the AAT in that proceeding.

5    By s 44(2A)(a), an appeal by a person under s 44(1) must be instituted not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the AAT is given to the person or within such further time as this Court (whether before or after the expiration of that day) allows.

6    The AAT’s decision record was given to Mr Tran no later than 17 August 2016.

7    The extension of time application was filed on 1 February 2018.

Proper respondent

8    Mr Tran nominated the respondent to the application as Praveen Singh. Mr Singh is the manager of Bankstown Centrelink. Mr Singh wrote to the applicant, on behalf of the Department, on two occasions on 17 February 2015: first, to inform the applicant of a decision to suspend his Newstart Allowance; and second, to inform the applicant that he did not have a reasonable excuse for not entering into an Employment Pathway Plan (“EPP”). However, as appears below, any relevant decision of Mr Singh was affirmed following two successive tiers of merits review.

9    The Secretary of the Department of Human Services was the respondent to Mr Tran’s application to the AAT. Accordingly, the Secretary was the proper respondent to the application to this Court: see para 4.3 of the Court’s Administrative and Constitutional Law and Human Rights National Practice Note.

10    At the hearing, I granted leave to the Secretary to join the proceeding as the second respondent.

11    There was no evidence that Mr Singh was served with the application and, although Mr Tran’s material made references to Mr Singh, on a close reading of the material, I concluded that Mr Tran’s proposed appeal did not concern Mr Singh. He should not have been a respondent to the proceeding.

Legal framework for considering whether to grant extension of time

12    The principles relevant to the exercise of discretion to grant an extension of time for an appeal are well established and may be summarised as being that:

(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; and

(4)    the merits of the substantive appeal, if leave were granted, are properly to be taken into account: see, for example, Jamal v Secretary, Department of Social Services [2017] FCA 916 at [11].

13    It is unlikely to 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 the impact on other Court users: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38].

14    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 (an Infant) v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9].

15    The Secretary submitted that it is not in the interests of justice to grant an extension of time on the basis that no satisfactory explanation has been given for the delay, and the substantive appeal does not identify an error of law.

16    For the reasons set out below, I have concluded that the proposed appeal has no prospects of success. Accordingly, it would be futile and therefore not in the interests of justice to grant the extension of time sought, regardless of whether Mr Tran’s explanation for his delay is satisfactory.

Legal framework concerning cancellation of newstart allowance

17    At the time of the AAT’s July 2016 decision, s 80(1) of the Social Security (Administration) Act 1999 (“Administration Act”) provided:

(1)    If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a)    who is not, or was not, qualified for the payment; or

(b)    to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended.

18    Part 2.12 of the Social Security Act 1991 (“SSA”) is entitled “Newstart Allowance”. Division 1 concerns qualification for and payability of newstart allowance. Division 1 contains the subdivisions including:

A.    Basic qualifications

B.    Activity test

BA.    Exemption from activity test – people temporarily incapacitated for work

C.    Newstart Employment Pathway Plans

19    Section 593 of the SSA is entitled “Qualification for newstart allowance”. It provides relevantly:

(1)    Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:

…

(b)    in the case of a person to whom subparagraph (a)(i) applies – throughout the period, or for each period within the period, the person:

(i)    satisfies the activity test; or

(ii)    is not required to satisfy the activity test; and

(c)    if subsection 605(1) applies to the person, at all times (if any) during the period when a Newstart Employment Pathway Plan is not in force in relation to the person, the person is prepared to enter into such a plan; and

…

(e)    if the person is required by the Secretary to enter into a Newstart Employment Pathway Plan in relation to the period, the person enters into that plan; and

(f)    while the plan is in force, the person satisfies the Secretary that the person is complying with the requirements in the plan; and

…

20    Section 605 of the SSA is entitled “Newstart Employment Pathways Plans – requirement”. Section 605(1) provides:

(1)    If a Newstart Employment Pathway Plan is not in force in relation to a person, the Secretary may require the person to enter into such a plan if:

(a)    the person is receiving, or has made a claim for, a newstart allowance; or

(b)    the Department is contacted by or on behalf of the person in relation to a claim for a newstart allowance.

Background to application for an extension of time

21    Mr Tran started receiving newstart allowance in 1998.

22    The AAT found that, on 29 January 2015, Mr Tran attended a “scheduled connection appointment” at Mission Australia Employment Solutions, in Bankstown, New South Wales. At the appointment, Mr Tran was informed that he was required to enter into an EPP which included a requirement for him to participate in “Work for the Dole”. Mr Tran refused to sign the EPP on the basis that the work would not be “within [his] preferred industry of financial services”, resulting in a “connection failure”.

23    The SSCSD decision record states that it was undisputed that Mr Tran refused to enter an EPP on 29 January 2015. A Department record dated 12 February 2015 records a message from Mr Tran saying, relevantly (errors in original):

On 29 January 2015, Mr Elvedin topcagic meeting me try again required enter Employment Pathway same before appeals to Tribunal. His has oppressive paid voluntary Work for Dole Incorrect Classification of job Seeker that is unsuitable for my skills, experience or qualification Management Accountability of Financial Services the work would require enlistment in the Defence Force or the Reserves. I have not required to satisfy the activity test it would wrong under “Social Security Law Act 1991” unsuitable employment offer, that may appeal to Centrelink on 16 July 2014 currently procedure ongoing appeal to “Administrative Appeals Tribunal (AAT)” process hold review and then made decision.

24    By letter dated 28 February 2015, Mr Tran was informed that his newstart allowance had been cancelled from 29 January 2015 “because you have not reported” (“cancellation decision”).

25    On 16 June 2015, pursuant to s 42C(2) of the AAT Act, the AAT set aside a decision of the Social Security Appeals Tribunal dated 3 December 2014 and, in substitution, decided that Mr Tran was entitled to be paid newstart allowance for the period 16 July 2014 to 27 August 2014 inclusive.

26    By letter dated 16 November 2015, an authorised review officer (“ARO”) informed Mr Tran of the results of her review of the cancellation decision. The ARO determined that the newstart allowance was correctly cancelled from 29 January 2015 as Mr Tran was “not connected with a Job Services Australia provider and therefore [was] not qualified to receive newstart allowance”. The ARO also concluded that Mr Tran had a “connection failure” on 29 January 2015 and a “reconnection failure”, apparently by reason of a failure to attend a reconnection appointment on 17 or 18 February 2015. Subdivision C of Div 3A of the Administration Act concerns “connection failures” and “reconnection failures”.

27    On 30 November 2015, Mr Tran lodged an application for review of the ARO’s decision with the AAT.

28    On 10 February 2016, the SSCSD affirmed the ARO’s decision. Relevantly, the SSCSD found:

(1)    Centrelink decided to cancel Mr Tran’s newstart allowance from 29 January 2015 because he failed to enter an EPP that required him to undertake work for the dole.

(2)    Mr Tran’s contention that he holds certain skills and qualifications was not a basis upon which he was entitled to refuse to enter an EPP.

(3)    The AAT’s 15 June 2015 decision did not limit the AAT in this case, and Mr Tran’s reliance on that earlier decision was misconceived and incorrect.

(4)    Section 601 of the SSA did not “operate to restrict the newstart activity test work related matters to only those within a particular set of skills or qualifications that a person may hold”.

(5)    The effect of ss 593 and 605 of the SSA was that a person may be required to enter an EPP in order to qualify for newstart allowance. The effect of not satisfying that requirement is that qualification for newstart allowance ceases.

(6)    When Mr Tran was required to enter an EPP on 29 January 2015 pursuant to s 605 and failed to do so, an essential qualification condition for newstart allowance (specifically s 593(1)(e)) could not be satisfied.

(7)    The effect of s 593 is that Mr Tran ceased to be qualified to receive newstart allowance from that date.

(8)    Newstart allowance can be cancelled if a person is not qualified to receive the payment.

(9)    As Mr Tran was not qualified to receive newstart allowance, the decision to cancel the payment from 29 January 2015 was correct.

29    The SSCSD did not address whether the ARO was correct to find that there had been a “connection failure” and a “reconnection failure”.

30    On 3 March 2016, Mr Tran lodged an application for review of the SSCSD decision. In the documents lodged with the AAT for the review of the SSCSD decision, the Department noted, the sole issue to be considered was “[w]hether the Applicant’s Newstart Allowance was correctly cancelled from 29 January 2015”.

AAT’s July 2016 decision

31    At para 15 of its decision, the AAT identified the determinative issue as whether, on 29 January 2015, Mr Tran was qualified for payment of newstart allowance.

32    At para 20, the AAT recorded Mr Tran’s statement that he refused to enter the EPP on 29 January 2015 because he considered that the work he was being offered was unsuitable for his particular skills and qualifications in financial services.

33    At para 25, the AAT recorded that Mr Tran’s principal contention in written submissions appeared to be that:

Mr Tran believes that “Work for the Dole” is unsuitable for his “particular skills, experience or qualification of Management Accountability and Financial Services Profession”.

34    At paras 26 to 28, the AAT noted that s 593 of the SSA sets out the qualification requirements for newstart allowance, and noted the terms of ss 593(1)(c) and (e).

35    At para 29, the AAT noted that s 605(1)(a) provides that, if a Newstart EPP is not in force in relation to a person, the Secretary may require the person to enter into such a plan if the person is receiving, or has made a claim for, a newstart allowance.

36    At para 30, the AAT observed that a consequence of ss 593 and 605 of the SSA is that the Secretary may require a person to enter an EPP in order to qualify for newstart allowance.

37    At paras 32 and 33, the AAT concluded:

In my view, the fact that Mr Tran refused to enter an EPP on 29 January 2015 and in the subsequent 4 weeks means that he was not “prepared to enter” such a plan, and therefore, did not satisfy s 593(1)(c) of the Act. Also, he could not satisfy s 593(1)(e) of the Act.

It follows that on 29 January 2015 Mr Tran was, prima facie, not qualified for newstart allowance.

38    The AAT then considered the operation of Div 3A of the Administration Act in the particular circumstances. As stated in s 42B, as it stood at the time of the AAT’s July 2016 decision, the object of Div 3A is “to encourage people to participate in employment and engage with employment services. It is also the object of this Division to secure compliance with a person’s obligations and requirements in relation to participation payments, and to ensure that those who do not comply are re-engaged with employment services as quickly as possible”. This aspect of the AAT’s decision does not arise from the SSCSD decision, which did not make any finding of a “connection failure” or a “reconnection failure”.

Proposed appeal

39    Mr Tran’s application for an extension of time to appeal is supported by an affidavit affirmed by him on 18 January 2018. The available documents also include a draft notice of appeal received by the Court and stamped 1 February 2018.

40    Mr Tran also filed a short written submission and made oral submissions in support of his application.

41    The material submitted by Mr Tran, both in writing and orally, was almost entirely incomprehensible.

42    At the first case management hearing, I raised my concern that I could not understand Mr Tran and asked whether he might be assisted by the provision of an interpreter. Mr Tran denied speaking any language other than English. The decision records of the SSCSD and the AAT reveal that each of them had raised their difficulties understanding with Mr Tran with him, but that (in the case of the SSCSD) he said that he did not want to participate with an interpreter and would not nominate the relevant language and (in the case of the AAT) “steadfastly refused the assistance of an interpreter despite several attempts to encourage him to accept this assistance”.

43    While understanding that Mr Tran contends that his newstart allowance should not have been cancelled, I could not discern any particular contention that he wished to make concerning the reasoning of the AAT.

44    In the written submissions, Mr Tran set out three paragraphs under the heading “Questions of law”. They are set out below:

1.    I have applications for the question law raised on appeal are: - Mr Praveen Singh, has breach report to Workskil Bankstown required enters agreement Unfair or unconscionable agreements Employment Pathway, has breach oppressive give voluntary Work for Dole Salvation Army and Maintenance Cleaning Job and Kitchen Hand Job. Incorrect Classification of Jobseekers that is unsuitable my skills, experience or qualification of Management Accountability and Financial Services Professional.

It was being unfair and unjust decision. It would be wrong employment offer under “Social Security Law Act 1991” and (Administration) Act 1999 and agreement paid voluntary that did not obligation high skills rule Fair Work Act 2009 “Condition National Employment Standard” that apply to all national employment. Mr Praveen Singh has breach in Non-payment Total amount $8,517.16 period of Newstart Allowance has been as following:

1.    First Non-Payment from on 30th Jan 2015 to 25th Mar 2015;

2.    Second Non-Payment from 28th July 2015 to 18 Sept 2015;

3.    Third Non-payments 31th Oct 2015 to 22th Dec 2015;

4.    Fourth Non-payments from 12th Feb 2016” to 06th April 2016.

2.    Mr Praveen Singh of Centrelink has continued breach has not compliance with decision. In accordance with subsection 42C (1) of “Administrative Appeals Tribunal Act 1975”. Pursuant to subsection 42C(2) of the “Administrative Appeals Tribunal Act 1975”, the Tribunal sets aside the decision of the SSAT dated 3 December 2014 and in substitution decides that:

1.    The applicant is entitled to be paid Newstart Allowance for the period 16th July 2014 to 27 August 2014 inclusive, pursuant to subsection 95(2) of the “Social Security (Administration) Act 1999”.

Subsection (2) if the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person on and from a day specified in the determination.

3.    Mr Praveen Singh of Centrelink has continued breach oppressive give voluntary Work for Dole Salvation Army and Maintenance Cleaning Job and Kitchen Hand Job. Incorrect Classification of Jobseekers that is unsuitable my skills, experience or qualification of Management Accountability and Financial Services Professional. applications for the question law raised on appeal:

45    I am unable to draw anything meaningful from these submissions, except that Mr Tran argues that he should not have been required to enter into an EPP. In particular, the Fair Work Act 2009 (Cth) has no relevance to the decision to cancel Mr Tran’s newstart allowance.

46    In the written submission, Mr Tran also referred to ss 18 and 31 of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth). Section 18 proscribes conduct, in trade or commerce, that is misleading or deceptive or likely to mislead or deceive. Section 31, which Mr Tran read from several times during his oral submissions, provides that a person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking employment as to:

(a)    the availability, nature, terms or conditions of the employment; or

(b)    any other matter relating to the employment.

47    These provisions also have no relevance to the decision to cancel Mr Tran’s newstart allowance.

48    The Secretary’s written submissions attempted to distil some meaning from Mr Tran’s materials and identified the following issues.

Complaints about the conduct of Praveen Singh

49    The Secretary noted that the application for an extension of time appears to allege that Mr Singh breached various provisions of the AAT Act and the SSA. These complaints appear to be on the basis that Mr Singh made decisions refusing or suspending Mr Tran’s newstart allowance.

50    The Secretary submitted, and I accept, that Mr Tran’s complaints concerning the conduct of Mr Singh are not relevant, without more, to the question whether Mr Tran has grounds to appeal on a question of law from the AAT’s decision, which was a review of the decision of the SSCSD which was, in turn, a review of the decision of the ARO.

Misapplication of the statutory test

51    The Secretary suggested that Mr Tran’s case is that the AAT was wrong to find that he was not qualified for newstart allowance because he refused to enter into the EPP.

52    The Secretary noted that Mr Tran appears to argue that the EPP itself was “unfair or unconscionable” because it imposed requirements on him that were “oppressive” and were incompatible with his skills, experience and qualifications. The applicant complains that he ought never to have been subject to the EPP because he was qualified as a person with financial expertise and therefore the EPP was unfair or unconscionable.

53    However, by s 593(1)(e) of the SSA, the AAT was required to consider whether, as a recipient of newstart allowance, the applicant was required by the Secretary to enter into an EPP. Mr Tran did not identify any statutory provision by which the Secretary may only require an applicant to enter into an EPP appropriately tailored to the applicant’s particular skills. Conversely, he did not identify any provision which might permit a recipient of the newstart allowance to retain his qualification for the allowance despite not complying with s 593(1)(e). The Secretary did not suggest that there might be any statutory provision in support of Mr Tran’s case.

54    The Secretary also noted that Mr Tran’s draft notice of appeal refers to s 603A of the SSA. In particular, at para 26 of that document, Mr Tran states:

I have explained to [the AAT] about my situation special circumstances, beyond the person’s control, exist; and The Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to comply with the activity test for that …particular period under section 603A(1). Subject to subsections (2) and (3), a person is not required to satisfy the activity test for a period and;

Obligation rule Fair Work Act 2009 in high skills “Condition National Employment Standard” that apply to all national employment, modern awards and enterprise agreements. It also sets out when a modern award or enterprise agreement applies to a person and the significance of that for this Act. Fact or thing whose existence obliged my occupational duty Management Accountability & Financial Services Professional education Skills or Experience or Qualification Obligations: Section 912A (1) provides the general obligations of AFS licensee as needing.

55    The activity test is set out in s 601 of the SSA. Section 603A provides that a person is not required to satisfy the activity test in certain circumstances, including where the Secretary is satisfied that special circumstances, beyond the person’s control, exist. As appears above, by s 593(1)(b) of the SSA, satisfaction of the activity test may be a qualification requirement for newstart allowance. Mr Tran’s allowance was not cancelled for failure to satisfy the activity test. Accordingly, the question of whether Mr Tran was entitled to relief from the activity test under s 603A does not arise.

Ignoring relevant material

56    The Secretary suggests that Mr Tran wishes to argue that the AAT erred by failing to have regard to items of evidence.

57    To the extent that this concerns the June 2015 AAT decision, there is nothing to suggest that this decision has any relevance to the AAT’s July 2016 decision. It relates to the allowance payable to Mr Tran for a different period of time.

58    Otherwise, it is not apparent what evidence the AAT is said to have overlooked.

Connection and reconnection failures

59    As noted earlier, the AAT made findings concerning whether there had been a “connection failure” and a “reconnection failure” by Mr Tran in January and February 2015. These findings were not relevant to the AAT’s decision to affirm the decision of the SSCSD. Accordingly, there is no basis for an appeal arising out of those findings. In any event, I did not understand Mr Tran to challenge those findings except by reference to the contention, which I consider unarguable for the reasons set out above, that he was wrongly required to enter into an EPP.

Conclusion

60    I am not satisfied that Mr Tran’s proposed appeal has any merit. In my view, it would be futile to grant an extension of time to appeal from the AAT’s July 2016 decision and therefore not in the interests of justice to do so.

61    Accordingly, I will dismiss the extension of time application. I will hear the parties on the question of costs.

Associate:

Dated:    12 October 2018