FEDERAL COURT OF AUSTRALIA

Twentyman v Secretary, Department of Social Services [2018] FCA 1892

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted an extension of time in which to file his appeal.

2.    The draft notice of appeal filed by the applicant is taken to be the applicant’s notice of appeal filed pursuant to the extension of time.

3.    The appeal be dismissed.

4.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    Mr Keith Twentyman is not a happy man. The main source of his unhappiness is the Department of Human Services. Mr Twentyman’s grievances with the Department are many and varied, but can largely be traced back to a decision made by an officer of the Department in late 2005 to first suspend, and then cancel, his disability support pension. While Mr Twentyman engaged in various sporadic battles with the Department over the ensuing years, it was not until February 2016, just over ten years from the original decision, that Mr Twentyman sought a review of the decision to cancel his pension.

2    Unfortunately for Mr Twentyman, a series of subsequent decision-makers who reviewed the original decision decided to affirm it; first, an “authorised review officer” within the Department; second, a member of the Social Services and Child Support Division of the Administrative Appeals Tribunal; and third, a senior member of the General Division of the Tribunal. Rather confusingly, the reasons given by the various decision-makers for cancelling, or affirming the cancellation of, Mr Twentyman’s pension are not entirely consistent. Nor are they entirely consistent with other decisions made by the Department in Mr Twentyman’s case. Perhaps understandably, that is a source of considerable consternation, if not frustration, for Mr Twentyman.

3    Be that as it may, this proceeding is an application for an extension of time in which to file an appeal, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), from the last-mentioned decision of the Tribunal. Such an appeal is limited to questions of law. The main question of law that Mr Twentyman wishes to agitate is, in substance, whether the Tribunal denied him procedural fairness because it made certain findings concerning his evidence in circumstances where he was not cross-examined. Mr Twentyman’s draft notice of appeal also includes a ground which, construed beneficially, may be taken to raise the question of whether the Tribunal’s decision to affirm the cancellation of his pension was unreasonable.

4    For the reasons that follow, Mr Twentyman should be granted an extension of time to file a notice of appeal, but his appeal should be dismissed with costs.

Factual Background

5    As has already been noted, Mr Twentyman’s interactions with the Department over the last 15 years have been extensive and tortuous. It is, however, important to focus on those events that apparently led to the cancellation of Mr Twentyman’s pension. While many things occurred after the cancellation of Mr Twentyman’s pension, those events are generally only relevant insofar as they might shed light on the circumstances as they existed at the time of the cancellation.

6    The process of ascertaining the relevant facts in this matter is difficult and complex. That is in large part due to the fact that the original decision was made so many years ago. Aside from Mr Twentyman’s evidence, the evidence before the Tribunal was essentially documentary. The difficulty and complexity in ascertaining the relevant facts arises mainly because the Department’s system of electronic record-keeping appears to be positively prehistoric. Despite the difficulties, the following facts would appear to be established by the documentary evidence that was before the Tribunal. Mr Twentyman’s evidence before the Tribunal will be considered separately.

7    Mr Twentyman began receiving the pension in 2001. It would appear that he qualified for the pension because he had been diagnosed as suffering from bipolar affective disorder.

8    From at least March 2002, Mr Twentyman began to travel overseas for lengthy periods. Relevantly, in the year prior to the cancellation of his pension in December 2005, he was outside Australia during the following periods: 9 November 2004 to 11 January 2005; 20 January 2005 to 14 February 2005; 1 March 2005 to 7 April 2005; 19 July 2005 to 16 August 2005; 22 August 2005 to 13 November 2005; and 8 December 2005 to 4 March 2006.

9    On 21 April 2005, the Department sent Mr Twentyman a letter concerning his pension (21 April letter). The letter was sent to [redacted for privacy reasons] Punchbowl, New South Wales. That was the address that Mr Twentyman had provided to the Department for the receipt of correspondence. While the letter appeared to comprise little more than a notification of the details of the pension, it also included what appeared to be a pro-forma notice. That notice included the following:

WHAT YOU MUST TELL US

You must tell us within 14 days (28 days if residing outside Australia) if any of these things happen, or may happen. If you get a Reporting and Income Statement, report your earnings or changes in circumstances on your reporting day. You can tell us by writing to us, by phoning or you can come in and talk to us at any of our offices. This is an information notice given under the social security law.

….

Going outside Australia

If you plan to travel outside Australia, you must let us know within 14 days of making the decision to go. Please check with us to make sure of your entitlements during your absence. You may not be entitled to your pension or some of the additional payments for the period you are away. If you do not advise Centrelink of your departure, your payment may be stopped while you are overseas. Please note this requirement also applies if you go to Norfolk Island.

(Emphasis added)

10    As will be seen, Mr Twentyman contended before the Tribunal that he did not receive this letter or read the notice included in it. It would appear that the Punchbowl address was his mother’s home, but he did not live there.

11    As has already been noted, after the 21 April letter was sent to Mr Twentyman, he departed Australia on 19 July 2005 and returned on 16 August 2005. He departed Australia again on 22 August 2005. There is no indication in the Department’s records that Mr Twentyman notified it that he was departing Australia on those days.

12    On 26 September 2005, Mr Twentyman’s pension was suspended. It does not appear that Mr Twentyman was notified of the suspension in writing, or given any reasons for the suspension. An internal Department record suggests that the reason for the suspension was that (errors in original):

customer has been overseas on a regular basis for the last couple of years and has not advised centrelink. there is currently an investigation thru the fraud team into the customers circumstances.

13    Another internal Department record indicates that the investigation into Mr Twentyman’s circumstances was instigated as the result of a “tip off” concerning his regular overseas trips.

14    Mr Twentyman was overseas at the time his pension was suspended. On 11 October 2005, he telephoned the Department. An internal Department record contains the following details of the conversation that ensued between Mr Twentyman and the Departmental officer (errors in original):

… customer called today to question regarding suspended dsp. i spoke with customer explaining we have been investigating his circumstances and that we received infor from dimia showing that he has left the country 5 times since November 2004 and has failed to advise us. He stated that it wasn’t centrelink’s business when he went o/s and what he did there. i explained that he is required to advise us that he is leaving the country prior to leaving. he states that he is on disability support pension & he can go and come as he pleases and does not have to answer to any authority. I again explained to him that this was not correct. he says he asked his friends about it and they told him that it was ok to go o/s and not tell centrelink. i asked why he didn’t just ring centrelink and find out from us directly he said because he trusts his friends. He asked what we were investigating. i explained that we are investigating how he is getting the money to travel o/s so often and also if he is running a business or employed by someone else. he said that he was trying to start up a business but wasn’t successful. he says that he i is not going to answer any more of my questions on the grounds that he might incriminate himself. i advised we would need to know where and how he got the money to travel o/s and what arrangements he’s made to make repayments. he states he borrowed the money from his ex girlfriend but she wouldnt verify it. when i asked why he didn’t answer and asked if we will be charging him with anything and if he would be paid. i explained that until we received this information i would not be restoring his payments and explained that he may have overpayments for the period/s he went overseas and did not advise. he was also told that there is a possibility he may be prosecuted if he is found to have acted fraudulently. Customer states that he hasn’t been o/s 5 times since November 2004. I asked him to then tell me what dates he visited o/s. he advised he went on 22/8/2005, 19/7/2005 and sometime in January2005. I asked customer if he went o/s in March 05 or November 04 and he stated “no” as there was no record of this on his passport. Customer asked why we were investigating him and i again explained to him re tip off and info from dimia. He then stated that Customs was doing the same thing and harassing him as customs officers question why he was going in and out of Thailand so often last march. I advised customer he had just told me he did travel o/s last march and he said “oh i forgot”.__I asked customer how he supported himself whilst he was o/s and he said “it only costs $5 a day to live here”. i asked customer if he is currently in Thailand and he stated “yes”. i asked why he didn’t advise me he was calling from Thailand and he stated he didn’t want me to know. Customer then stated that he has set up a business in Thailand thats been running for the last 2 months but he isn’t making any money. i asked how he purchased the business and what type of business he run but he refused to answer & repeated questions again. After a while customer kept repeating himself and questions and i gently terminated the call. The above conversation took place over 4 telephone calls as customer would keep hanging up and then calling back. Customer has been advised that he will not be paid until further information is received.

15    In the Tribunal, Mr Twentyman appeared to dispute that this was an accurate record of the conversation that he had with the Department on 11 October 2005.

16    The Department sent Mr Twentyman a letter dated 11 October 2005. The letter was sent to the Punchbowl address. Mr Twentyman was overseas at the time the letter was most likely delivered. The letter contained the same pro-forma notice as the 21 April letter. Indeed, it would appear to be fairly obvious, and largely common ground, that all Department correspondence to “customers” contained a notice in the same or similar terms.

17    It would also appear that the Department received information at about this time which indicated that Mr Twentyman had departed Australia on 22 August 2005. That appears to have prompted the Department to send a second letter to Mr Twentyman on 11 October 2005. That letter advised Mr Twentyman that the Department had information that indicated that he had left Australia on 22 August 2005 and requested that he advise the Department if that information was incorrect.

18    Mr Twentyman contacted the Department again on 1 November 2005. The Department’s records contain the following details concerning the conversation that occurred between Mr Twentyman and a Departmental officer on that day (errors in original):

Cus rang from Thailand and wish to find out the cause of the investigation. He then adv that he operates a business in Thailand but is not making money. The business commenced inAug 2004 and during the last 3 months he has only 1 helper in Aug and none for the next 2mths. He runs a laundrymat and cus uses a voucher system to monitor the business. He felt that since the business is not making money he should still be entitled to some assistance. He then wants to know if he will be arrested when he comes back to Aus as he felt that he was told that. As cus kept on butting in it was difficult to answer his queries. Some-how managed to advise him to write to Clink about his concerns and adv him to bring in all the necessary documents of his business in order that a proper decision can be made about his affairs when he next comes back. The call was then terminated suddenly. Cus did not call back.

19    Mr Twentyman returned to Australia on 13 November 2005. He contacted the Department by telephone a few days later, on 17 November 2005. The Department’s records contain the following details of the conversation that occurred on that day (errors in original):

Cus rang to adv that he is back in Aust and is prepared to come for an i/v with all his paperwork. He adv that his has stopped trading in Thailand but his business is still registered though his electricity & water has been cutoff. When asked if he intendsto go back to Thailand cus adv that he is unsure of. He adv that he has still friends there to visit and do not intend having a business over there.

Cus was adv that Elmas will be inviting him in for an i/v and will be writing to him. Cus is worried that Elmas may not deal with him fairly and so the cus was adv that he will be interested by Elmas in the presence of another officer. Cus has accepted that arrangement

20    Despite the apparent suggestion during the conversation on 17 November 2005 that he would attend the Department for an interview, Mr Twentyman again departed Australia on 8 December 2005. The Department’s records do not include any record that Mr Twentyman advised the Department of his departure. It might reasonably be inferred, having regard to the Department’s investigations into Mr Twentyman’s affairs that were taking place by this time, that the Department’s records would include a note if Mr Twentyman had advised that he was departing overseas again.

21    Mr Twentyman’s pension was cancelled not long after his contact with the Department in November 2005 and his departure from Australia on 8 December 2005. There is no clear record in the Department’s records of the date of the decision or the reasons for the cancellation. It appears to have been inferred or assumed by the later decision-makers that the date of the cancellation decision was 12 December 2005.

22    On 4 February 2006, the Department sent a letter to Mr Twentyman, notifying him of its decision to cancel his pension. That letter relevantly stated:

After careful consideration your Disability Support Pension has been cancelled because of your departure overseas.

This decision has been made under the Social Security Act 1991.

…

If you do not agree with this decision, please contact us and we will explain it. We will reconsider your case and change the decision if appropriate. If you still do not agree, you can ask for an Authorised Review Officer (ARO) to look at it. The ARO is an experienced officer who would not have previously been involved in your case. They can change the decision if it is wrong or, if they agree with the decision they can tell you how to appeal to the Social Security Appeals Tribunal (SSAT). Both the ARO review and the SSAT appeal are free.

Remember, if you do not ask for the decision to be reviewed within 13 weeks of being told about it, any change to that decision, or any backpayment can only take effect from the date you ask.

(Emphasis added)

23    As can readily be seen, the letter is rather opaque as to the reasons for the cancellation of Mr Twentyman’s pension. The reason was simply said to be “because of your departure overseas”. There is no other file note or documentary record of the precise reasons for the cancellation decision.

24    Mr Twentyman did not immediately seek internal review of the decision to cancel his pension.

Post-cancellation events

25    As has already been noted, the events that occurred after the cancellation of Mr Twentyman’s pension are really only relevant insofar as they might shed light on Mr Twentyman’s circumstances as at the date of the cancellation, and perhaps the reasons for the cancellation. It should also be noted, however, that Mr Twentyman’s arguments and submissions in support of his proposed appeal relied extensively on the events that occurred after the cancellation. It is, therefore, important to outline some of those events.

26    Despite the cancellation of Mr Twentyman’s pension, the investigation into his circumstances continued for some time. The investigation culminated in the raising of a debt of $16,672.98 against Mr Twentyman in January 2007. That debt was said to arise because Mr Twentyman had “travelled overseas for a total of 15 times between the period 20 March 2002 and 25 September 2005” and was not entitled to receive the pension during those periods.

27    At some stage, Mr Twentyman appears to have applied for an internal review of the decision to raise the debt against him. That review application was successful. In a decision made on 7 August 2013, an authorised review officer found that, while Mr Twentyman frequently travelled overseas for short periods during the period 20 March 2002 to 25 September 2005, he nevertheless remained an Australian resident. Prior to 1 July 2004, the pension was “portable” for temporary absences of up to 26 weeks. That meant that a person who received such a pension remained entitled to the pension if they left Australia for periods of up to 26 weeks. From 1 July 2004, the pension was portable for temporary absences of up to 13 weeks. The periods of time that Mr Twentyman was outside Australia were all shorter than 26 weeks (prior to 1 July 2004) and 13 weeks (after 1 July 2004).

28    It also appears that, on 8 January 2013, Mr Twentyman re-applied for the pension. That application was rejected on 24 January 2013. Mr Twentyman sought an internal review of that decision on 31 July 2013. On 24 October 2013, an authorised review officer affirmed the decision to reject his claim for the pension. Mr Twentyman then applied to the (then) Social Security Appeals Tribunal for a review of the decision to reject his claim for the pension. That review application was successful. On 5 December 2013, a member of the Social Security Appeals Tribunal remitted Mr Twentyman’s application for reconsideration.

29    Mr Twentyman’s success was, however, relatively short-lived. It would appear that, upon remittal, Mr Twentyman was granted the pension from 5 December 2013. He continued to receive the pension until November 2014, when it was suspended with effect from 23 October 2014. The reason for the suspension was that Mr Twentyman was said to have failed to undergo a medical examination as required. His pension was, however, subsequently reinstated with effect from 5 December 2014.

30    In the meantime, however, the Secretary of the Department of Social Services applied to the Tribunal for a review of the decision of the Social Security Appeals Tribunal to set aside the rejection of his application for the pension. While the Department deals with the delivery and co-ordination of social security payments, the Department of Social Services and its Minister administers, and deals with matters arising under, the Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth): Part 16 of the Administrative Arrangements Order made by the Governor-General on 19 April 2018. The Secretary’s review application was successful. On 31 March 2015, the Tribunal found that Mr Twentyman was not eligible for the pension because he did not satisfy the requirement that his bipolar disorder achieved an impairment rating of 20 points or more in accordance with the “impairment tables”.

31    Following the Tribunal’s decision that Mr Twentyman was not eligible for the pension, he was notified that he owed the Department $29,130.14 on the basis that he had received payments to which he was not entitled during the period 23 December 2013 to 25 March 2015. Mr Twentyman applied for an internal review of the decision to raise that debt against him. That application was partly successful. The end result was that Mr Twentyman’s debt was reduced to $11,473.05.

The internal review of the cancellation decision

32    On 5 February 2016, an application was made on Mr Twentyman’s behalf for internal review of the decision to cancel Mr Twentyman’s pension in 2005. As will become apparent, this application was made over ten years after the cancellation decision. Perhaps surprisingly, there is no relevant time limit for internal reviews.

33    On 29 March 2016, an authorised review officer affirmed the original cancellation decision.

34    It is unnecessary to say much about the authorised review officer’s decision. It suffices to say that the officer’s reasons for affirming the cancellation decision were plainly wrong. So much so is now accepted by the Secretary. The authorised review officer found that Mr Twentyman ceased to qualify for the pension because he had ceased to be an Australian resident by 26 September 2005, the date of the suspension of his pension. The difficulty with that decision, however, is that, having regard to the circumstances that applied to Mr Twentyman at the time of the cancellation decision, it was not necessary for him to have remained a resident of Australia. It was only necessary for him to have been an Australian resident when he first qualified for the pension. An amendment to the Social Security Act which took effect from 1 July 2011 changed that situation. That amendment did not apply to Mr Twentyman as at the date his pension was cancelled. As for Mr Twentyman’s frequent trips overseas, it is now also accepted that they were all shorter than the maximum “portability” period that applied to the pension at the time.

35    It should also be noted, if only for Mr Twentyman’s benefit, that the fact that the authorised review officer’s decision was plainly wrong is essentially immaterial. That is because this proceeding concerns an appeal from the Tribunal’s decision, not the decision of the authorised review officer.

The “AAT first review”

36    In 2015, the Social Security Appeals Tribunal was effectively merged into the Tribunal. Rather strangely, however, the Administration Act preserved two tiers of administrative merits review in the Tribunal for decisions under that Act. The first tier of review (called the “AAT first review”), is conducted by the Social Services and Child Support Division of the Tribunal and effectively constitutes the review that would previously have been conducted by the Social Security Appeals Tribunal. An unsuccessful party can then apply for a further review (the “AAT second review”), which is conducted by the Tribunal’s General Division. The wisdom of entrenching these two tiers of review is for others to judge. This case rather demonstrates, however, that the retention of the first tier of review is productive of little more than delay and wasted costs.

37    In any event, Mr Twentyman’s “AAT first review” of the cancellation decision was unsuccessful. On 20 April 2017, a member of the Social Services and Child Support Division of the Tribunal affirmed the Secretary’s decision to cancel Mr Twentyman’s pension in 2005.

38    As was the case with the authorised review officer’s decision, it is unnecessary to say much about the reasons given by the member who conducted the “AAT first review”. That is perhaps fortunate because it is, with respect, rather difficult to make much sense of the member’s reasons for affirming the decision. The member appears to have reasoned that the decision to cancel Mr Twentyman’s visa was the “correct and preferable” decision because, as at the date of cancellation, there was no basis upon which it could reasonably be predicted that Mr Twentyman might return to Australia, his “status, whereabouts and intentions were unknown”, and he had not complied with the request to provide information to the Department concerning his circumstances. Though the member referred to s 80 of the Administration Act, the precise legal basis of the cancellation decision was not explained and, as will be seen, the Secretary no longer contends that there was a basis to cancel Mr Twentyman’s pension pursuant to s 80 of the Administration Act. The member did not refer to s 81 of the Administration Act, which is the provision that the Secretary now contends provided the basis for the cancellation decision.

39    It should be noted, once again, that the fact that the reasoning of the member who decided the “AAT first review” is, at best, unsatisfactory is largely immaterial. It is not the decision which is the subject of Mr Twentyman’s proposed appeal. The unsatisfactory nature of both the decision of the authorised review officer, and the decision of the member who presided over the “AAT first review”, perhaps does explain, however, why Mr Twentyman feels so aggrieved by the handling of his case. His belief that his case has been mishandled by the Department is perfectly understandable in the circumstances.

The “AAT second review”

40    Mr Twentyman applied for a second review by the Tribunal on 2 May 2017.

41    The Tribunal convened a hearing on 20 September 2017. Mr Twentyman was represented by counsel. The Secretary was also legally represented. The Secretary relied on a detailed Statement of Facts, Issues and Contentions. Lengthy and detailed written submissions were furnished on Mr Twentyman’s behalf. Both parties also made detailed oral submissions. Perhaps more significantly, Mr Twentyman gave oral evidence at the hearing.

42    More will be said concerning the hearing in due course. It suffices for present purposes to observe that a review of the transcript suggests that the hearing did not proceed in an entirely orderly or regular fashion. While Mr Twentyman was represented by counsel, he repeatedly interjected during the hearing. It is also extremely difficult to distinguish between Mr Twentyman’s evidence and his interjections and arguments. It is also apparent that Mr Twentyman left the hearing at the conclusion of questioning by his counsel and before the hearing had concluded.

43    On 5 February 2018, the Tribunal handed down a decision which affirmed the 2005 decision to cancel Mr Twentyman’s pension.

44    Before addressing the Tribunal’s decision and reasons, it is convenient to briefly summarise the relevant legislative provisions concerning the entitlement to, and suspension or cancellation of, social security payments.

RELEVANT legislative PROVISIONS

45    Section 80 of the Administration Act provides for the cancellation or suspension of social security payments, including the disability support pension. Section 80(1) provides as follows:

(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 (other than because of the operation of Division 3AA);

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

46    Division 3AA concerns compliance with participation payment obligations for certain people receiving “participation payments”, which includes newstart allowance, youth allowance and parenting payments. The operation of Division 3AA is not relevant to Mr Twentyman’s case.

47    Section 81 of the Administration Act provides for the cancellation or suspension of social security payments in circumstances where the recipient has not complied with certain notices sent to them by the Department. Section 81(3) provides:

(3)    If:

(a)    a person who is receiving a social security payment has been given a notice under section 67 or 68 that requires the person to inform the Department of a proposal by the person to leave Australia; and

(b)    the person does not comply with the requirement; and

(c)    the person leaves Australia; and

(d)    the person’s portability period (see section 1217 of the 1991 Act) for the payment has not ended;

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

48    The “1991 Act” referred to in s 81(3)(d) is the Social Security Act. Section 1217 of the Social Security Act deals with the “maximum portability period” for a person receiving a social security payment. The maximum portability period is the maximum period of time that a person who is receiving social security payments can travel overseas and continue to receive their payment while they are out of the country. Prior to 1 July 2004, the maximum portability period applicable to the disability support pension was 26 weeks. From 1 July 2004, the maximum portability period for the disability support pension was reduced to 13 weeks. The maximum portability period has changed again since that time.

49    It is now accepted by the Secretary that Mr Twentyman did not travel overseas for more than the relevant maximum portability period in any of the trips he took prior to the suspension and cancellation of his pension.

50    Section 68 of the Administration Act deals with the giving of certain notices to persons receiving social security payments. Relevantly, subs 68(2) and (5) provide as follows:

(2)    The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:

(a)    inform the Department if:

      (i)    a specified event or change of circumstances occurs; or

 (ii)    the person becomes aware that a specified event or change of circumstances is likely to occur;

…

(5)    An event or change of circumstances is not to be specified in a notice under this section unless the occurrence of the event or change of circumstances might affect the payment of the social security payment or the person’s qualification for the concession card, as the case requires.

51    Section 94 of the Social Security Act sets out the criteria that a person is required to satisfy to qualify for the disability support pension. Subsection 94(1) relevantly provides as follows:

(1)    A person is qualified for disability support pension if:

   (a)    the person has a physical, intellectual or psychiatric impairment; and

(b)    the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)    one of the following applies:

    (i)    the person has a continuing inability to work;

(ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

…

52    The “Impairment Tables” referred to in s 94(1)(b) are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth).

the tribunal’s decision and reasons

53    On 20 September 2017, Mr Twentyman appeared before the Tribunal. As has already been noted, he was represented by counsel.

54    On 5 February 2018, the Tribunal affirmed the decision under review.

55    In its Reasons, the Tribunal relevantly summarised the submissions that had been advanced on behalf of both Mr Twentyman and the Secretary.

56    In relation to the Secretary’s case, the Tribunal noted that the Secretary had conceded that the issue of whether Mr Twentyman was resident in Australia did not bear on the decision under review: Reasons at [43]. The Secretary’s case was essentially that the decision to cancel Mr Twentyman’s pension was made pursuant to s 81(3) of the Administration Act because Mr Twentyman had departed Australia on 8 December 2005 without notifying the Department as he was obliged to do: Reasons at [22]. The obligation to notify was said to have arisen by reason of the notice included in the Department’s letter to Mr Twentyman dated 21 April 2005. The Secretary contended that the notice in that letter, and in other letters subsequently sent to Mr Twentyman, were notices pursuant to s 68 of the Administration Act: Reasons at [18]. The Secretary’s case was that the cancellation decision was “rational and proportionate” having regard to the circumstances that existed at the time: Reasons at [22].

57    It would appear that Mr Twentyman advanced a number of arguments to the Tribunal in support of his contention that the cancellation decision was “ultra vires and void”: Reasons at [35]-[36]. Relevant to the grounds he wishes to advance on appeal, Mr Twentyman argued before the Tribunal that: contrary to the Secretary’s contention, he did inform the Department of his overseas travel; he was told by officers of the Department on 1 March 2002, or at some later time, that he was not required to advise the Department of his departure unless he was going for more than the portability period; he did not receive any of the Department’s letters, including the letter dated 21 April 2005, because they were sent to his mother’s address and he was away in Thailand most of the time; and that he did contact the Department and gave it the “relevant information”: Reasons at [37].

58    The Tribunal made a number of factual findings relating to Mr Twentyman’s engagement with the Department concerning his pension. It is readily apparent that the Tribunal’s factual findings were based primarily on the Department’s contemporaneous records that were in evidence before it. In particular, the Tribunal found that: the 21 April letter, which contained the s 68 notice, was sent to the postal address that Mr Twentyman had provided to the Department; Mr Twentyman had departed Australia on 19 July 2005, returned on 16 August 2005, departed again on 22 August 2005, and returned on 13 November 2005; and Mr Twentyman had conversations with a Departmental officer on 11 October 2005, 1 November 2005 and 17 November 2005 which were in accordance with the notes of those conversations included in the Department’s records: Reasons at [46]-[57].

59    Critically, the Tribunal found that, when the cancellation decision was made, Mr Twentyman had “departed Australia three times without complying with the notice issued pursuant to s 68 of the Administration Act dated 21 April 2005 requiring him to advise [the Department] within 14 days of making the decision to travel outside Australia”, despite him having been reminded during the conversation he had with the Departmental officer on 11 October 2005 that he was obliged to advise the Department prior to leaving Australia: Reasons at [70]. The Tribunal considered, but rejected, Mr Twentyman’s evidence that he did not receive the Department’s letter dated 21 April 2005 and found that the letter was delivered to the address provided by Mr Twentyman: Reasons at [73], [75].

60    The Tribunal also considered and rejected Mr Twentyman’s evidence “about what happened more than 12 years ago”: Reasons at [71]. In particular, it did not accept Mr Twentyman’s evidence that the Department had told him on 1 March 2002 that he did not have to advise when he travelled overseas: Reasons at [71]. The Tribunal reasoned that Mr Twentyman’s evidence concerning that conversation was not supported by documents that Mr Twentyman provided to the Tribunal after the hearing, being letters from the Department dated 7 and 18 March 2002: Reasons at [72].

61    The Tribunal also found that, when the cancellation decision was made, Mr Twentyman was “not co-operating with the [Department’s] investigation of his affairs” and rejected Mr Twentyman’s evidence in relation to that issue: Reasons at [76]- [77].

62    The Tribunal found that the cancellation decision was “rational and proportionate in the circumstances”: Reasons at [80].

application for extension of time

63    Mr Twentyman sought an extension of time to file an appeal from the decision of the Tribunal. An extension of time was required because s 44(2A) of the AAT Act provides that an applicant may appeal a decision of the Tribunal on a question of law no later than 28 days after the applicant is given the decision. Mr Twentyman attempted to file his appeal three days outside that time period.

64    The principles governing the exercise of the Court’s discretion to grant an extension of time are well established. The Court must have regard to factors such as the length of, and reasons for, the delay, any prejudice to the respondent, and the merits – or lack thereof – of the proposed grounds of appeal: see Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 349; Gallo v Dawson (1990) 93 ALR 479, affirmed on appeal in Gallo v Dawson (No 2) (1992) 109 ALR 319.

65    Mr Twentyman’s draft notice of appeal, which was prepared at a time that he was represented by counsel, identified the following two questions of law (as drafted):

1.    Whether the rule in Browne v Dunn (1893) 6 R 67 or the fairness objective in section 2A of the Administrative Appeals Tribunal Act 1975 required the Applicant to be cross-examined by the Respondent’s legal representative before the AAT could reject the Applicant’s evidence?

2.    Whether the decision to cancel the Applicant’s Disability Support Pension was a “rational and proportionate response” to the Applicant’s alleged failure to comply with a notice, and therefore whether that decision was “the correct or preferable one”?

66    The draft notice of appeal identifies the following grounds which broadly correspond with the two questions of law (as drafted):

1.    The Applicant was denied procedural fairness by the failure of the Respondent’s legal representative to cross-examine the Applicant in accordance with the rule in Browne v Dunn (1893) 6 R 67, and by the failure of the AAT to give effect to section 2A of the Administrative Appeals Tribunal Act 1975.

Particulars

(a)    The AAT rejected (at [71]) the Applicant’s evidence that “Centrelink told him on 1 March 2002 that he did not have to advise when he travelled overseas”, in circumstances where the Applicant was not cross-examined about his evidence in this respect (or at all), and the Applicant told Centrelink on 11 October 2005 that he thought he could “go and come as he pleases” (at [49]);

(b)    The AAT held (at [71]) that the Applicant had “recalled” the date of 1 March 2002 “based on travel records in the T documents that show that he first left Australia on 2 March 2002”, in circumstances where the Applicant was not cross-examined about his evidence in this respect (or at all), and the T documents confirmed that the Applicant had informed Centrelink he was “going O/S” on 1 March 2002;

(c)    The AAT held (at [76]-[77]) that the Applicant had not “co-operated with Centrelink’s investigation as of the date of the cancellation decision”, in circumstances where the evidence established by the Applicant answered the questions that were put to him by Centrelink officers on 11 October 2005 ([48]-[49]), 1 November 2005 ([55]) and 17 November 2005 ([57), and he was not cross-examined about that evidence (or at all);

2.     Having regard to the following matters, the Respondent’s (discretionary) decision to cancel the Applicant’s Disability Support Pension was not “a rational and proportionate response” to the Applicant’s alleged failure to comply with a notice, and it was accordingly not the correct or preferable decision:

(a)    The Applicant was diagnosed with bipolar affective disorder in 2001, which, when combined with his limited education and his low-IQ, makes it difficult for him to concentrate and to understand complex concepts; and

(b)    On 1 March 2002 the Applicant told Centrelink that he was “going O/S”, and he was then told “that he did not have to advise when he travelled overseas”;

(c)    At all material times, the Applicant’s overseas trips were “allowable absences” because they were within the “maximum portability periods” that were then in force;

(d)    Contrary to the findings by the AAT, the Applicant answered the questions that were put to him by Centrelink officers on 11 October 2005 ([48]-[49]), 1 November 2005 ([55]) and 17 November 2005 ([57]), and he proactively attempted to provide information (including documentation) to Centrelink on 1 and 17 November 2005 ([55], [57]).

67    Mr Twentyman also filed two affidavits in support of his application. The first annexed a copy of the Tribunal’s decision. The second sought to explain why he did not file his notice of appeal within time. In summary, Mr Twentyman’s evidence was that he went to the Court’s Registry to enquire about how to appeal from the Tribunal’s decision and was told by someone at the Registry that he had 35 days within which to file an appeal. He was later told by counsel who had represented him at the Tribunal hearing that, in fact, he only had 28 days within which to file an appeal. The day that he was told about the correct time limit for filing an appeal was the last day that he could file an appeal. Counsel who had represented Mr Twentyman at the Tribunal hearing was, according to Mr Twentyman, unable to complete the forms in time. They were filed three days later.

68    The Secretary conceded that the explanation given by Mr Twentyman for not having filed the appeal within time was reasonable and satisfactory. It was also effectively conceded that the Secretary was not prejudiced by the delay. In light of those concessions, the question whether an extension of time should be granted accordingly hinged almost entirely on whether Mr Twentyman’s proposed appeal had any merit. As at least one of the grounds raised by Mr Twentyman appeared to be at least arguable, and to properly raise a question of law, the parties were invited to advance submissions on the basis that an extension of time would be granted.

ground ONE – procedural fairness and the rule in browne v dunn

69    The first question of law raised by Mr Twentyman’s draft notice of appeal is whether either the rule in Browne v Dunn (1893) 6 R 67 or the “fairness objective” in s 2A of the AAT Act required Mr Twentyman to be cross-examined by the Secretary’s counsel before the AAT could reject parts of his evidence. The so-called rule in Browne v Dunn essentially requires the cross-examiner of a witness in adversarial litigation to put to that witness the nature of the case on which the cross-examiner’s client proposes to rely in contradiction of that witness. Section 2A of the AAT Act provides, in substance, that the Tribunal must provide a mechanism of review that is: accessible; fair, just, economical, informal and quick; proportionate to the importance and complexity of the matter; and which promotes public trust and confidence in the decision-making of the Tribunal.

70    Mr Twentyman contended that the Tribunal made factual findings concerning his evidence which were not the subject of cross-examination by the Secretary’s legal representative. It followed, so it was contended, that there was a failure to comply with the rule in Browne v Dunn, a failure to give effect to s 2A of the AAT Act, and a denial of procedural fairness.

71    Mr Twentyman’s first question of law, and the contentions made by him in relation to it, in fact raise four related questions. The first question is whether the rule in Browne v Dunn applies to review proceedings in the Tribunal. The second question is whether s 2A of the AAT Act effectively imports the rule in Browne v Dunn by reason of the requirement that the Tribunal provide a review mechanism which is fair. The third question, which only arises if the answer to either or both of the first two questions is in the affirmative, is whether the Tribunal failed to ensure compliance with the rule in Browne v Dunn, or the equivalent requirement imposed by s 2A of the AAT Act. The fourth question is whether, if the Tribunal did make findings concerning Mr Twentyman’s evidence which were not the subject of cross-examination, the Tribunal denied Mr Twentyman procedural fairness.

72    It may be accepted that these four questions are questions of law for the purposes of s 44 of the AAT Act.

73    The first three questions may be answered shortly. The fourth question requires careful consideration of what occurred at the Tribunal hearing.

Does the rule in Browne v Dunn apply to review proceedings in the Tribunal?

74    In Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437, Gummow and Heydon JJ (with whom Gleeson CJ agreed) held that the rule in Browne v Dunn had no application in proceedings in the (then) Refugee Review Tribunal. Their Honours said (at [55]-[57]):

On occasion the submissions advanced for the prosecutrix were couched in the language of a contention that the rule in Browne v Dunn had not been complied with. Where a complaint is made about the failure of a questioner to put to a person giving oral answers a particular question, it is natural for a lawyer’s mind to turn to the rule in Browne v Dunn. In essence, and subject to numerous qualifications and exceptions, that rule requires the cross-examiner of a witness in adversarial litigation to put to that witness the nature of the case on which the cross-examiner’s client proposes to rely in contradiction of that witness.

However, the rule has no application to proceedings in the tribunal. Section 420(2) of the Act states:

The Tribunal, in reviewing a decision:

(a)    is not bound by technicalities, legal forms or rules of evidence; and

(b)    must act according to substantial justice and the merits of the case.

The purpose of a provision such as s 420(2) is to free bodies such as the tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate. Further, as was emphasised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures. There, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have considered it in their respective interests to adduce at trial.

Accordingly, the rule in Browne v Dunn has no application to proceedings in the tribunal. Those proceedings are not adversarial, but inquisitorial; the tribunal is not in the position of a contradictor of the case being advanced by the applicant. The tribunal member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The tribunal member has no “client”, and has no “case” to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client’s cases to the witnesses; if they want to be as sure as possible of success, they have to damage the testimony of the witnesses by means which are sometimes confrontational and aggressive, namely means of a kind which an inquisitorial tribunal member could not employ without running a risk of bias being inferred. Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the tribunal to decide whether her claim had been made out; it was not part of the function of the tribunal to seek to damage the credibility of the prosecutrix’s story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation.

(Footnotes omitted)

75    Some of the reasoning of Gummow and Heydon JJ arguably does not directly apply to proceedings in the Tribunal, other than perhaps review proceedings in the Migration and Refugee Division, which now conducts reviews previously conducted by the Migration and Refugee Review Tribunals. That is because review proceedings in the Tribunal other than in the Migration and Refugee Division tend to be more adversarial in nature: 3D Scaffolding Pty Ltd v Commissioner of Taxation (2008) 105 ALD 475 at [18]-[20]. That was the case in the review proceedings conducted by the Tribunal in this matter. There was a contradictor to the case that was advanced by Mr Twentyman in the Tribunal. That contradictor was the Secretary.

76    In those circumstances, it has been said that, despite what was said in S154/2002, the rule in Browne v Dunn may apply in proceedings in the Tribunal, though its application must depend on the particular circumstances of the case: Jagelman v Federal Commissioner of Taxation (1995) 31 ATR 467 at 473; 3D Scaffolding at [21]; Mautner v Minister for Immigration and Citizenship (2009) 112 ALD 518 at [19]; Calvista Australia Pty Ltd v Administrative Appeals Tribunal (2013) 216 FCR 32 at [116].

77    More recently, however, it appears to have been accepted that the observations of Gummow and Heydon JJ in S154/2002 do relevantly apply to proceedings in the Tribunal, and that the rule in Browne v Dunn has no application in such proceedings: Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at [149]-[151] (per Flick and Perry JJ); Millar v Commissioner of Taxation (2015) 101 ATR 827 at [139]. As Griffiths J pointed out in Millar (at [139]), the rule in Browne v Dunn is a rule of evidence, and the Tribunal is not bound by the rules of evidence: see s 33(1)(c) of the AAT Act. Section 33 of the AAT Act is in relevantly similar terms to s 420 of the Migration Act 1958 (Cth), the provision referred to by Gummow and Heydon JJ in S154/2002.

78    It is ultimately unnecessary to resolve any possible conflict between the decisions in 3D Scaffolding and Calvista on the one hand, and Sullivan and Millar on the other. That is because the rule in Browne v Dunn is essentially a rule which is designed to secure procedural fairness in adversarial proceedings. There is no doubt that the Tribunal must afford the parties to the review procedural fairness. Even if the rule in Browne v Dunn may not strictly apply in proceedings in the Tribunal, there undoubtedly may be circumstances where it would be a denial of procedural fairness for the Tribunal to make a finding of fact contrary to the evidence of a witness in circumstances where that finding was not put to the witness: see S154/2002 at [58] (per Gummow and Heydon JJ); Sullivan at [48]-[49] (per Logan J). The preferable approach is to address any issue arising from the failure to cross-examine the witness by reference to the principles of procedural fairness, without recourse to the rule in Browne v Dunn. As Robertson J put it in Calvista (at [118]), “… in light of the origins of the rule [in Browne v Dunn] … it is apt to mislead and to give proceedings in the Tribunal an unwarranted curial gloss to refer to principles of procedural fairness as they operate in the Tribunal by reference to Browne v Dunn”; see also Anovoy Pty Ltd v Federal Commissioner of Taxation (2000) 44 ATR 507 (appeal allowed on other grounds: Federal Commissioner of Taxation v Anovoy Pty Ltd (2001) 47 ATR 51) at [30]. That statement was endorsed by Flick and Perry JJ in Sullivan at [149].

Does s 2A of the AAT Act import a rule akin to Browne v Dunn?

79    As has already been noted, s 2A of the AAT Act obliges the Tribunal to provide a mechanism for review which is, amongst other things, fair. Section 2A, however, is “properly [to be] regarded as aspirational or exhortatory in nature, rather than as a source of directly enforceable rights and obligations”: Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 417 at [80]; see also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [108] (per Gummow J). It is, in those circumstances, difficult to see how s 2A could be said to be the source of any particular or specific obligation to cross-examine a party or witness.

80    In any event, as has already been said, there is no doubt that the Tribunal must afford procedural fairness to the parties to the review. It does not necessarily follow, however, that a failure by one party to cross-examine a witness in accordance with the rule in Browne v Dunn will necessarily give rise to a failure to give effect to s 2A of the AAT Act, or a denial of procedural fairness. Much will depend on the particular circumstances of the case.

Was there a breach of the rule in Browne v Dunn, or a failure to give effect to s 2A of the AAT Act?

81    It is unnecessary to answer this question for the reasons already given. Mr Twentyman’s contentions concerning the findings made by the Tribunal are properly considered having regard to the principles of procedural fairness, without recourse to the rule in Browne v Dunn or s 2A of the AAT Act.

Was Mr Twentyman denied procedural fairness?

82    Mr Twentyman contended, in substance, that it was procedurally unfair for the Tribunal to make three particular findings concerning his evidence in circumstances where he was not cross-examined by the Secretary’s legal representative. Those three findings were: first, the Tribunal’s finding (at Reasons [71]) that it did not accept Mr Twentyman’s evidence that the Department told him on 1 March 2002 that he did not have to advise when he travelled overseas; second, the Tribunal’s finding (at Reasons [71]) that Mr Twentyman recalled that date based on the travel records that show that he first left Australia on 2 March 2002; and third, the Tribunal’s finding (at Reasons [76]-[77]) that Mr Twentyman was not co-operating with the Department’s investigations at the time the cancellation decision was made.

83    Procedural fairness generally requires an administrative decision-maker to put a person who might be affected by the decision on notice of “any adverse conclusion which has been arrived at which would not obviously be open on the known material”; but that does not extend to the disclosure of the decision-maker’s “mental processes or provisional views”: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]. Nor is it necessary to disclose the decision-maker’s opinions, doubts or subjective appraisals: Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [413] (Kiefel J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J).

84    There is no doubt that the Secretary’s legal representative did not cross-examine Mr Twentyman. Does it necessarily follow that the Tribunal denied Mr Twentyman procedural fairness when it made any finding contrary to his evidence? Given the fact that Mr Twentyman was not cross-examined, did procedural fairness require the Tribunal to put Mr Twentyman on notice that it might nevertheless not accept his evidence concerning the conversation that he said occurred on 1 March 2002, or his evidence concerning his co-operation with the Department’s investigations? Or was the possibility that the Tribunal might reject these aspects of Mr Twentyman’s evidence, in all the circumstances, nevertheless obviously open on the known material, or constitute nothing more than the Tribunal’s provisional views, doubts, or subjective appraisals of Mr Twentyman’s evidence?

85    To answer these questions, it is necessary to give close consideration to the entirety of the hearing in the Tribunal, including the nature, content, and context of Mr Twentyman’s evidence and the submissions made by the parties.

86    As was observed earlier, despite the fact that Mr Twentyman was represented by counsel, the hearing did not proceed in an entirely regular or orderly fashion. Mr Twentyman did not file any affidavit or written statement of his evidence. While he did give oral evidence, it is not easy to discern from the transcript exactly when he was giving evidence, as opposed to making submissions or presenting arguments. That is because Mr Twentyman regularly interjected and interrupted the submissions and exchanges between the Tribunal and both his own counsel and the Secretary’s legal representative. Those interjections often contained assertions of fact.

87    These observations concerning Mr Twentyman’s conduct throughout the hearing are not intended to be a criticism of Mr Twentyman. His conduct during the course of the hearing was no doubt a product, at least in part, of his bipolar condition.

88    In any event, it would appear from the transcript that Mr Twentyman gave evidence on a number of different occasions during the hearing. He was initially sworn and gave some evidence in support of an adjournment application: see Application Book “AB” 232-234. He was later recalled and gave some short evidence, including evidence concerning the conversation he said that he had with a Departmental officer in 2002. His evidence in that regard was as follows (see AB 280):

So, did anybody in your various visits to Centrelink, speak to you about your notification obligations?--- No. I went in quite a few times, in the – before and after I went away, and no one spoke to me about anything and it’s all on the DIMA recording, so.

But, you – we have elicited evidence, I think, this morning, to the effect that on one occasion in 2002, you went into Centrelink and you were – and you said you were going overseas?---Yes, that’s right. On my first trip, I think it was, in March.

And you, I think said, you were then told something about, if you were going overseas. What was that evidence?---If you are going – I think – no, I know what they said. After the second and third, or fourth or fifth, sixth trip, they said, “If you are going for any more than the portable time, don’t bother coming and seeing us”. That’s only if you go for more than portable time and it’s not my fault that they didn’t write my name down on the computer to let them know that I went.

89    It may perhaps be observed that Mr Twentyman’s evidence concerning the occasion when he says that he was told that he did not need to advise the Department when he was going overseas for periods shorter than the “portable time” was anything but clear. While it appears to have initially been suggested that this occurred during a conversation with a Departmental officer on 1 March 2002, the day before Mr Twentyman’s first trip overseas, his subsequent answer suggested that it occurred during a conversation which occurred some time after Mr Twentyman had left Australia a number of times.

90    Following Mr Twentyman’s evidence concerning that conversation, Mr Twentyman’s counsel indicated that he had no further questions. The Tribunal then asked the Secretary’s legal representative whether he had any questions for Mr Twentyman. The Secretary’s legal representative indicated that he proposed to ask some questions in relation to “the lead up to the decision to cancel”: see AB 280. It would appear, however, that the Tribunal first invited the Secretary’s legal representative to take the Tribunal through the “key documents”, which mainly comprised the Department’s contemporaneous records of its dealings with Mr Twentyman. The intention, it would seem, was that if the key documents were identified, Mr Twentyman’s evidence might be relevantly confined: see AB 285. The apparent deferral of cross-examination was not opposed by Mr Twentyman or his counsel.

91    Once the Tribunal was taken to the key documents, including, most significantly, documents which purported to record discussions between Mr Twentyman and Departmental officers, the Tribunal made it abundantly clear to Mr Twentyman’s counsel that it might be important for Mr Twentyman to give his version of the conversations that he had with the Departmental officers: see, in particular, AB 302-303. The Tribunal pointed out that the Department’s records included contemporaneous notes and that, if Mr Twentyman was going to contend that those notes were not accurate or reliable accounts of the conversations, it would be necessary for him to give evidence about the conversations: see AB 310. Mr Twentyman was subsequently recalled and his counsel asked him further questions, primarily by reference to the documents.

92    Unfortunately, it is not easy to follow much of Mr Twentyman’s evidence. That is particularly the case in relation to Mr Twentyman’s account of the conversations he had with Departmental officers in October 2005. Even his own counsel became somewhat exasperated. At one stage, Mr Twentyman’s counsel said, in the context of Mr Twentyman’s evidence concerning a conversation that occurred in October 2005 (see AB 335):

I struggle to – I don’t really know how I could go about doing that. The passage of time is such that I don’t think there is any way anybody could remember, least of all, Mr Twentyman, what he said 12 years ago to somebody on the phone.

93    The Tribunal responded: “[w]ell, he seems to be telling me he has very clear recollections of lots of things”. There could be little doubt from these exchanges that Mr Twentyman and his counsel were on notice that there were issues concerning his evidence of the events and conversations that occurred so long ago.

94    After some brief further questioning, Mr Twentyman’s counsel said (see AB 336):

I don’t think Mr Twentyman’s recollection of the conversations, as he is recounting them today, is based on his memory of his events 12 years ago, it is based on his recollection of what he has read in these documents.

95    It would appear that, in response to that statement, Mr Twentyman said “[e]xactly”: see AB 336. Shortly thereafter, Mr Twentyman’s counsel indicated that he had no further questions for Mr Twentyman and that he thought it was “a matter for submissions”: see AB 338.

96    Critically, at that point, Mr Twentyman appears to have decided that he would withdraw from the hearing because he had “had enough” and because his head was “too full at the moment”: see AB 340. Neither the Tribunal, nor the legal representatives, objected to Mr Twentyman leaving the hearing. It would appear that there was some genuine concern for Mr Twentyman’s mental state at the time. In any event, no mention was made at that point of the fact that the Secretary’s legal representative had not had the opportunity to cross-examine Mr Twentyman as he had earlier foreshadowed.

97    Following Mr Twentyman’s departure from the hearing, the parties’ legal representatives made detailed oral submissions. Those submissions dealt with, amongst other things, the reliability and credibility of Mr Twentyman’s account of the conversations he had with Departmental officers between 2002 and 2005 and the question of whether he was co-operating with the Department’s investigations in 2005. The Tribunal made it tolerably clear in the course of the submissions that there was an issue concerning the reliability of Mr Twentyman’s evidence, including whether Mr Twentyman’s account was effectively a reconstruction arrived at from having read the documents: see, for example, AB 354. The Secretary’s legal representative also submitted, in tolerably clear terms, that the Secretary’s case was that the Department’s contemporaneous notes of the conversations constituted the best evidence of the conversations and that Mr Twentyman “was not available [sic] to provide recollection from that far long ago”: see AB 350. It was also submitted, on the Secretary’s behalf, that the conversations revealed that Mr Twentyman was not co-operating with the Department’s investigations.

98    As for Mr Twentyman’s evidence concerning the conversation that was supposed to have taken place in March 2002, the Tribunal pointed out to Mr Twentyman’s counsel that a problem for Mr Twentyman was that the version of the conversation that Mr Twentyman had with Departmental officers in October 2005 created a problem for Mr Twentyman. The notes recorded that Mr Twentyman told Departmental officers that he had been told by his friends that he did not need to advise the Department of short trips overseas. That was inconsistent with Mr Twentyman’s evidence that it was the Department who told him that in March 2002 or some later time: see AB 357. Mr Twentyman’s counsel could have been in no doubt that there was a significant issue concerning Mr Twentyman’s evidence that the Department had told him that he did not need to advise it of short trips.

99    The Secretary’s legal representative also submitted that little weight should be given to Mr Twentyman’s evidence concerning the March 2002 conversation because, while he was not cross-examined about that conversation, his evidence was “at odds with the more contemporaneous notes”: see AB 364. Mr Twentyman’s counsel responded by submitting that “we’re bound by the rule in Browne v Dunn”: see AB 365. He did not otherwise respond to the merits of the submission. Nor did he submit that Mr Twentyman should be recalled, a course which may well have been appropriate if there was truly an issue about the failure to cross-examine, particularly in light of the fact that Mr Twentyman unilaterally decided to absent himself from the hearing before cross-examination could take place.

100    Having regard to all that occurred during the hearing, it was not procedurally unfair for the Tribunal to not accept Mr Twentyman’s evidence that, at some time on or after 1 March 2002, the Department told him that he did not have to advise it of short trips overseas, even though the Secretary’s legal representative did not cross-examine Mr Twentyman. Mr Twentyman and his counsel were plainly on notice that there was an issue concerning the reliability of his evidence of conversations he said he had with the Department over 15 years ago. The adverse conclusion arrived at by the Tribunal was one which was open on the material and information known to Mr Twentyman and his counsel as a result of the exchanges which occurred in the course of the hearing.

101    Nor could it be concluded that there was any “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]. It is abundantly clear that, even in the absence of any cross-examination, Mr Twentyman’s evidence on this issue was effectively exhausted. It was clear that the Secretary disputed that any such conversation had occurred, and that Mr Twentyman maintained that it had. It was equally clear that the Tribunal had issues concerning the reliability of this aspect, and others, of Mr Twentyman’s evidence. Any further evidence given during cross-examination would not have shone any further light on the issue. There is no doubt that Mr Twentyman would have continued to maintain that the conversation did occur at some stage.

102    Exactly the same can be said concerning the Tribunal’s finding that Mr Twentyman’s recollection of the date of the conversation was based on the Department’s documents. The Department’s documents recorded that, on 1 March 2002, Mr Twentyman advised the Department that he was going overseas. The documents do not record that the Department told Mr Twentyman on that day, or any other day, that he did not need to advise the Department of short trips. It is nevertheless fairly obvious that the questions asked by Mr Twentyman’s counsel concerning the date of the alleged conversation, and Mr Twentyman’s answers to those questions, were based on the documents. So much so appeared to be conceded by Mr Twentyman’s counsel in the course of the questioning. It could scarcely be said to be unfair for the Tribunal to make a finding that Mr Twentyman’s evidence about the timing of conversations was based on the documents in the absence of cross-examination in circumstances where his counsel had effectively conceded that that was likely to be the case.

103    The situation is even clearer in relation to the Tribunal’s finding that Mr Twentyman was not cooperating with the Department’s investigation at the time of the cancellation decision. It is readily apparent that the Tribunal’s findings in that regard were based, in large part, on the Department’s documentary records of the conversations and exchanges between the Department and Mr Twentyman in October and November 2005. Mr Twentyman and his counsel were plainly on notice that there was an issue concerning Mr Twentyman’s evidence concerning those conversations insofar as that evidence conflicted with the Department’s records. That issue was fully explored in the course of Mr Twentyman’s evidence, even in the absence of cross-examination. It was also fully explored in the parties’ submissions. There was no procedural unfairness.

104    It follows that ground one of Mr Twentyman’s draft notice of appeal has no merit. Any issue arising from the absence of any cross-examination is best considered having regard to the principles of procedural fairness, without recourse to the rule in Browne v Dunn or s 2A of the AAT Act. In all the circumstances, Mr Twentyman was not denied procedural fairness, even though findings were made concerning the reliability of parts of his evidence in the absence of any cross-examination.

GROUND TWO – THE CORRECT OR PREFERABLE DECISION

105    The second question posed by Mr Twentyman’s draft notice of appeal is whether the decision to cancel was a “rational and proportionate response” to Mr Twentyman’s failure to comply with the Department’s notice under s 68 of the Administration Act, and was therefore the “correct and preferable decision”. Mr Twentyman’s contention was that cancellation was not a rational and proportionate response and the decision to cancel was not the correct and preferable decision. Mr Twentyman’s case would appear to be that the decision to cancel was not rational and proportionate because he had been diagnosed with bipolar disorder, he had been advised by the Department in March 2002 that he did not need to advise it of short trips, his absences were all less than the maximum portability period, and he co-operated with the Department’s requests for information.

106    The fundamental problem with this proposed question and ground of appeal is that it does not raise any question of law. It would appear to simply amount to a challenge to the exercise of the discretion to cancel Mr Twentyman’s pension pursuant to s 81(3) of the Administration Act. The contention, in short, is that for various reasons, which include some factual assertions that were rejected by the Tribunal, the discretion to cancel should not have been exercised. That is not a question of law. It is simply a challenge to the merits of the decision.

107    The expression “rational and proportionate response” would appear to have been drawn from various decisions of the Tribunal in other cases concerning the cancellation of social security payments: Fahmy v Secretary, Department of Social Services [2014] AATA 164 at [34]; Re O’Connell and Secretary, Department of Social Security [1991] AATA 523; Re Sevel and Secretary, Department of Social Security [1991] AATA 135. While that may well be one logical way of expressing the circumstances in which it would be appropriate to exercise the discretion to cancel in s 81(3) of the Administration Act, it does not impose a legal test.

108    In any event, Mr Twentyman’s complaints concerning the Tribunal’s exercise of the discretion to cancel have no merit. The Tribunal found that, in all the circumstances, cancellation was a rational and proportionate response to the fact that Mr Twentyman had departed Australia on three occasions after receiving the notice in the 21 April letter, had not notified the Department of his intended departures, and had not co-operated with the Department’s investigations or requests for information. Those findings were open on the evidence before the Tribunal.

109    Construed beneficially, Mr Twentyman’s contentions concerning the exercise of the discretion to cancel might be said to raise the question whether the decision was legally unreasonable. Even if that be so, there is simply no basis for any contention that the decision was legally unreasonable. The Tribunal’s reasons for cancelling Mr Twentyman’s pension for failure to comply with the notice under s 68 of the Administration Act were logical and rational. The decision did not lack an “evident and intelligible justification”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]. Nor was it a decision which no reasonable person could have arrived at: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230. While Mr Twentyman no doubt strongly disagrees with the decision, it nonetheless fell within the “range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Li at [105]; Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47].

110    It follows that the second question and ground in Mr Twentyman’s draft notice of appeal has no merit. It does not properly raise any question of law and, even if it did, any such question should be decided adversely to Mr Twentyman in any event.

CONCLUSION AND DISPOSITION

111    Mr Twentyman provided a reasonable and satisfactory explanation for not having filed his appeal within time. The first question of law and ground of appeal in Mr Twentyman’s draft notice of appeal was at least reasonably arguable. It is, in those circumstances, appropriate to grant Mr Twentyman an extension of time in which to file his appeal. The draft notice of appeal filed by Mr Twentyman should be taken to be his notice of appeal.

112    Neither of the two questions of law and grounds of appeal relied on by Mr Twentyman have any merit. His appeal must accordingly be dismissed with costs.

Associate:

Dated:    29 November 2018