FEDERAL COURT OF AUSTRALIA

Serpinli v Secretary, Department of Social Services [2019] FCA 2029

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal dated 8 October 2018 be dismissed.

2.    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

O’CALLAGHAN J:

1    The applicant appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) dated 19 September 2018 refusing an application for reinstatement.

2    It is difficult on the face of the documents filed by the applicant, who appeared for himself at the hearing this morning and below, to understand the procedural history of the matter or the grounds of the application.

3    The notice of appeal from a tribunal dated 8 October 2018 stated as follows (errors in the original):

That I believe the AAT’s decision not fair and incorrectly interpreted.

It would be good to show my evidence and I’d like to tell my information properly. I haven’t had that chance in AAT.

…I’ve already provide some evidence to AAT. I would like to provide more.

4    The applicant also filed a further document dated 16 August 2019 which says:

I would like to talk about, information I have provided in the past, I would like to talk about some more new evidence, also about some phone calls, social workers, other Centrelink people I have saw them in the past and present spoke to them face to face, lost documentation I have provided, payments and Tribunal decision they took against me. If there is something in relation to my issue with Centrelink that I would like to talk in front of the Judge. Such as Department of Social Service send some papers some of the information there and some is missing never existed and finally some Centrelink workers offers.

5    The solicitors for the respondent Secretary filed helpful and detailed submissions explaining the relevant factual background and procedural history, and explaining why, even if the grounds of the application are to be read as favourably as possible to the applicant, the application must be dismissed.

6    I turn now to that procedural history.

7    On 31 January 2018 the Administrative Appeals Tribunal Social Services and Child Support Divisions affirmed earlier decisions made by the respondent which found that the applicant owed a debt, in the sum of $16,837.90, for Austudy paid to the applicant between 9 March 2016 to 11 January 2017 and student start-up scholarships paid to the applicant between 24 February 2016 to 27 July 2016; and that this debt could not be waived or written off. The applicant sought review of this decision.

8    The matter was listed for hearing on 13 September 2018.

9    The applicant failed to attend the hearing, and the application for review was dismissed pursuant to s 42A(2) of the AAT Act.

10    On 14 September 2018, the applicant emailed the Tribunal and attached a medical certificate signed by a general practitioner dated 12 September which asserted that the applicant was “suffering from medical illness” and was “unable to do his/her usual work/duty/study” on 13 September 2019.

11    On 19 September 2018, an interlocutory hearing was convened to hear the applicant’s request pursuant to s 42A(9) of the AAT Act for reinstatement.

12    The hearing occupied approximately 80 minutes. The transcript of the hearing, which I have read, was in the evidence before me.

13    As the transcript reveals, the Tribunal refused the applicant’s request for reinstatement because he was not satisfied that the applicant had provided a reasonable excuse for failing to appear; he was not satisfied the applicant had a reasonable case to argue; and he lacked credibility.

14    I turn now to the appeal.

15    As a model litigant, the respondent agrees that on a generous reading of the applicant’s case it may be posited that the Tribunal made an error of law in the exercise of its discretion in deciding whether or not to reinstate the applicant’s application under s 42A(9) of the AAT Act.

16    Rule 33.19 of the Federal Court Rules 2011 (Cth) states:

If the Tribunal did not give reasons in writing for its decision, the Applicant must:

(a)    obtain from the Tribunal, in accordance with section 43(2A) of the AAT Act, a statement in writing of the reasons for its decision; and

(b)    send a copy of the statement to the Registry within 10 days after receiving it.

17    The respondent’s solicitor emailed the applicant on 26 September 2019 advising him of this requirement. The applicant has not provided a copy of the Tribunal’s written reasons. The appeal was conducted on the basis of the transcript.

18    Section 42A(2) of the AAT Act states:

If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

(a)    if the person who failed to appear is the applicant – dismiss the application without proceeding to review the decision.

…

19    Section 42A(7) of the AAT Act provides:

Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.

20    Section 42A(8A) states:

If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.

21    Section 42A(9) of the AAT Act states as follows:

If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

22    The respondent agreed that that the notice of appeal may be construed to raise the following questions of law:

(1)    whether the Tribunal misinterpreted the test in determining whether or not to reinstate the application in accordance with s 42A(9) of the AAT Act;

(2)    whether the Tribunal failed to take into account evidence the applicant sought to provide; and

(3)    whether the Tribunal failed to afford the applicant procedural fairness.

23    Taking each in turn.

Question 1: Did the Tribunal misinterpret the test in s 42A(9) of the AAT Act?

24    The Tribunal, in considering the applicant’s application for reinstatement, had regard to the relevant test in s 42A(9) of the AAT Act and correctly identified that the question for determination was whether it was “appropriate” to reinstate the application.

25    At the outset of the hearing in this case, the Tribunal confirmed that the issue before it was whether or not “it’s appropriate that [the applicant’s] case should be reinstated”. The Tribunal said that in doing so it needed to consider: whether the applicant had a reasonable excuse for failing to attend the hearing, and whether the application had prospects of success.

26    In considering whether to reinstate an application, the Tribunal can have regard to a range of factors in determining whether it is “appropriate” to reinstate an application. These factors may vary from case to case, but include a consideration of the merits of the substantive application, and in circumstances where the application was dismissed for a failure to appear at a hearing, the explanation for it.

27    Here the Tribunal asked the applicant to explain why he had not attended the hearing.

28    The Tribunal noted that the applicant had provided a medical certificate, but that this was not the reason provided by the applicant for his failure to appear in a letter sent to the Tribunal. The applicant then provided the following differing explanations for his failure to attend, namely that he:

(1)    was unable to do so because of back pain;

(2)    had to study for university;

(3)    was hit by a car; and

(4)    was not allowed into the building by the Tribunal’s security.

29    The Tribunal asked the applicant a number of questions to try and ascertain what happened on the day of the hearing and why the applicant failed to attend the hearing, given the conflicting evidence provided by the applicant.

30    The Tribunal then directed the applicant to the decision that was the subject of the substantive application – that is, a decision which found he owed a debt in the sum of $16,837.90.

31    The Tribunal then asked the applicant to explain why he did not owe that debt.

32    The applicant provided a number of explanations as to why he disagreed with the decision to raise and recover a debt, being:

(1)    Centrelink had erased information from their system and told him he owed them money; and

(2)    the university had also erased information from their system.

33    The Tribunal then referred the applicant to a statement contained in the material before the Tribunal which said that the applicant studied online in 2016 following an incident in 2015 in which he was allegedly assaulted, drugged and involved in a pornographic film without his consent.

34    The Tribunal asked a number of questions regarding this incident and the action taken in relation to it (as the applicant said that he had reported the incident to police) and noted that there was no independent evidence to say that the applicant was involved in any pornographic filming.

35    The Tribunal, having heard the applicant’s evidence regarding his failure to attend and why he said that the decision regarding his debt was incorrect, found that it was not appropriate in the circumstances to reinstate the application, as follows:

SENIOR MEMBER: That’s all right. Now, I have to be satisfied that it’s appropriate to set aside the decision which was reached as a result of your failure to attend. I have to be satisfied it’s appropriate to do so. I’m applying two tests in that regard. Whether you have a reasonable excuse for failing to attend on that day last week, last Thursday and secondly, whether, if I was to allow that to happen, whether you’ve got a reasonable case to advance. On both grounds, Mr Serpinli, I’m afraid you fail. It’s not appropriate to set aside the decision, the judgment that’s been dismissed, your case has been dismissed. And in those circumstances, I expect the debt remains standing.

SENIOR MEMBER: Well, you haven’t persuaded me, or satisfied me, that you’ve got a reasonable excuse for failing to attend and secondly, you haven’t satisfied me that you’ve got a reasonable case to argue because I think you lack credibility.

36    Ultimately, the Senior Member, having heard the various explanations from the applicant summarised at [27], told him “I can’t believe anything you are saying”.

37    The applicant contends that the decision of which he complains is not “fair”. At the hearing, this morning, the applicant said, among other things along the same lines, that the Tribunal had made the “wrong decision”, but as I endeavoured to explain to the applicant, that does not give rise to any error of law.

38    There was no error in the Tribunal’s exercise of discretion to refuse reinstatement and that this ground of appeal must fail.

Question 2: Did the Tribunal fail to take into account evidence?

39    In considering the applicant’s application for reinstatement the Tribunal clearly had regard to the available evidence.

40    The Tribunal provided the applicant with an opportunity to make submissions in support of his application for reinstatement and had regard to the correspondence from the applicant regarding his failure to attend including a letter and a medical certificate.

41    After the Tribunal had made its decision to refuse the application for reinstatement, the applicant claimed to have evidence to prove he was studying two subjects in 2016 and again alleged that the Tribunal had not let him into the building (a claim that he reiterated this morning).

42    The applicant did not mention this evidence until after the Tribunal had made its decision.

43    In those circumstances, the Tribunal was not required to consider the unidentified evidence alleged to be in the possession of the applicant and this ground of appeal must fail.

Question 3: Did the Tribunal fail to afford the applicant procedural fairness?

44    The applicant’s notice of appeal says that “[i]t would be good to show my evidence and I’d like to tell my information properly. I haven’t had that chance”.

45    To the extent that this raises an issue of procedural fairness, this ground of appeal must also fail.

46    The applicant was given ample opportunity to make submissions in support of his application for reinstatement, and did so for almost 80 minutes, as the transcript proves.

47    The applicant was offered the assistance of an interpreter, who was present at the hearing, but he said that he did not need such assistance.

48    The applicant also had an opportunity to provide further evidence in support of his claim.

49    There was no error of law in the decision of the Tribunal and the appeal will accordingly be dismissed with costs.

Associate:

Dated:    2 December 2019