FEDERAL COURT OF AUSTRALIA
Manikantan v Secretary, Department of Jobs and Small Business [2019] FCA 2103
ORDERS
THE COURT ORDERS THAT:
2. The decision of the Administrative Appeals Tribunal dated 29 March 2018 be set aside, and the matter is to be remitted to the Administrative Appeals Tribunal to be determined according to law.
3. The respondent to pay the applicant’s costs of this appeal, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ABRAHAM J:
1 On 16 December 1996, the applicant first received a Newstart allowance, although over the years there had been regular suspensions or cancellations due to overseas absences. On 7 November 2016, the Department of Human Services (Centrelink) cancelled that allowance effective from 8 October 2016, on the basis that the applicant failed to report over two consecutive fortnights as it alleged he was required to do. The applicant sought an internal review of that decision which was unsuccessful, as was the review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). That decision was the subject of review to the Administrative Appeals Tribunal (Tribunal), which also affirmed the original decision: Manikantan and Secretary, Department of Jobs and Small Business (Social services second review) [2018] AATA 685. This is an appeal by the applicant from that decision, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
2 The applicant appeared unrepresented at the hearing and made detailed submissions on his own behalf. The applicant had also provided written submissions in advance of the hearing, advancing his case and in reply to the respondent’s submission.
3 This matter proceeded on an amended notice of appeal filed on 29 June 2018, which alleged twenty five questions of law, and nine grounds of appeal (each with detailed particulars). The issues raised on the appeal centred on the Tribunal’s consideration of the circumstances of the cancellation of his allowance, and in particular, the obligations said to be imposed on him by the Newstart Employment Pathway Plan (EPP), and whether he had breached those obligations.
4 For the reasons below the appeal is allowed.
5 It was apparent from the hearing that a good deal of the history of this matter, as it related to the events leading up to the cancellation of the allowance, is contentious. Given the grounds of appeal which are established and that this matter is to be remitted, it is unnecessary and inappropriate for me to resolve those issues. Suffice to say, amongst other things, that there are issues surrounding the EPP, and whether the applicant was already on a plan, was requested to enter a plan, or was requested to alter the plan.
6 Regardless, the applicant sought an internal review of the decision to cancel his allowance and on 29 November 2016, an Authorised Review Officer of Centrelink affirmed the original decision to cancel the allowance. On 24 March 2017, the AAT1 reviewed and affirmed the decision.
7 On 29 March 2018, on review from that decision, the Tribunal found that the applicant’s allowance had been automatically cancelled on 7 November 2016 under section 95(1) of the Social Security (Administration) Act 1999 (Cth) (Administration Act). The reason for the cancellation, as found by the Tribunal, was that by failing to enter into an EPP, the applicant had not complied with his reporting obligations imposed under s 68(2) of the Administration Act, and no special circumstances existed such to vitiate the cancellation. Therefore, the Tribunal was satisfied that the decision to cancel the applicant’s Newstart allowance from 8 October 2016 was correct.
The Tribunal’s decision
8 The Tribunal commenced its reasons by referring to the legislative provisions of the Social Security Act 1991 (Cth) (SSA), and the Administration Act which it identified were relevant. The Tribunal referred to s 593 of the SSA (the requirements to qualify for a Newstart allowance); s 601 of the SSA (satisfying the activity test); s 605 of the SSA (entering into an EPP); s 68(2) of the Administration Act (notice to provide information); and s 95 of the Administration Act (automatic cancellation of benefits).
9 The Tribunal’s reasons are relatively brief, and as such, given the grounds of appeal, it is convenient to recite them (emphasis in the original):
9. By letter dated 22 August 2016, the applicant was notified that he must attend an appointment with his service provider on 31 August 2016. The letter set out the time and place of the appointment and indicated that the purpose of the appointment included entering into an EPP. Similarly, by letter dated 17 October 2017, the applicant was notified of an appointment scheduled for 25 October 2016.
10. The applicant attended both appointments on 31 August 2016 and 25 October 2016.
11. In a Participation Report dated 6 September 2016, it was recorded that on 31 August 2016 the applicant “made it clear that he will only si[g]n job plan if he changed all the writing on job plan”. It is also noted “this is the second job plan client has wish not to sign and we had given client over one week to attend office client stated will not sign…seen client again on 31/08/2016 client again did not want to sign job plan gave client over 96 hours to sign job plan client failed to sign job plan”. In the comment section of the report, the job provider noted a number of EPP alterations requested by the applicant.
12. In a letter dated 7 September 2016, Centrelink notified the applicant that their records showed that he may not have met one of the conditions for receiving his Newstart payment and if he did not have a reasonable excuse for his actions, he could lose his payment. It notes that if the applicant did not contact Centrelink before the next payment date, his payment may be stopped.
13. On 3 October 2016, Centrelink sent the applicant a Reporting Statement, which is an information notice under the Administration Act that (relevantly) required him to report on 21 October 2016 for the period 8 October 2016 to 21 October 2016 and on 4 November 2016 for the period 22 October 2016 to 4 November 2016. The Reporting Statement clearly states that if the applicant did not report by 5pm on the reporting date his Newstart allowance would stop.
14. On 22 October 2016, the applicant’s Newstart allowance was suspended. In a letter of the same date, Centrelink advised the applicant that he must, as soon as possible, contact them to discuss the suspension or his Newstart may be cancelled. This information was verbally relayed to the applicant again on 27 October 2016.
15. As a consequence of the applicant’s failure to enter an EPP and the subsequent suspension of the applicant’s Newstart allowance on 22 October 2016, he was unable to report as per his reporting requirements until he contacted Centrelink to discuss his suspension and his failure to enter into an EPP.
16. In a Participation Report dated 29 October 2016, it is noted that on 25 October 2016 the “client advised he does not need to attend office for job search as client can do this at home and client has refused to attend any course to assist client as client believes that client only needs to apply for position in his field and nothing more, client has been unemployed for over 400 weeks, client modify this job plan to his own needs RC advised client unable to sign client job plan client stated that he can make these changes”. Under ‘Provider Comments’, it is noted that the applicant “makes own changes” to EPP and that the job service provider was “unable to sign job plan due to changes”. The applicant was given 48 hours to consider his position however the applicant refused.
17. The content of the Participation Reports detailed above is consistent with contemporaneous notes taken by the job service provider for both appointments and the applicant’s own correspondence in emails to his job service provider dated 31 August 2016 and 25 October 2016.
18. While the applicant has said that he was trying to negotiate an EPP that better suited his needs, there is limited flexibility for the applicant to negotiate the terms of an EPP. This is plain from section 606 of the Act which states that a person is required to comply with the terms of an EPP that the Secretary regards as suitable.
19. Further, in Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268 at [38]-[39] the Federal Court stated the following about what is meant by the term “negotiate” in section 605(3) of the Act in the statutory context:
[38] Central to this trio is Mr Kronen’s conception of what is signified by the words “to be negotiated” in s 605(3). What is clear is that the level of permissible compromise and of required mutual agreement that this formula might otherwise suggest when used in other contexts, is radically curtailed in this statutory setting. Whether one can say that the ordinary meaning of “negotiate” is what is intended here (albeit what can be negotiated is limited by the Act and its purposes), hence the meaning is a question of fact: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (proposition 2); or that its meaning and hence proper construction is contrived by its legislative settings, hence are questions of law: Pozzolanic, 287 (propositions 1 and 4), what is clear is that Mr Kronen misapprehends the latitude the Act gives him. Elblematic of this was his presenting Maxima with negotiation procedures which included referral to an independent panel if any terms could not be agreed.
[39] If Mr Kronen is to qualify for a newstart allowance, he was required, in the circumstances, enter into an activity agreement: s 593(1)(e); he was required to undertake one or more activities that the Secretary regarded as suitable for the person: s 606(1); the terms of the agreement were to be approved by the Secretary. In this scheme, the “right to negotiate” could be illusory in quite some degree for some purposes and especially when the Secretary (or a delegate) takes decisions or actions in effectuation of the purposes of the Act itself. This is not to say that there was no room for discussion, accommodation and compromise. Rather, it is to recognise that the actual terms of the negotiation itself were something in relation to which the Secretary, acting reasonably and in good faith, could ultimately dictate, approve or disapprove, if there was to be an agreement.
20. Instruction 3.2.8.50 of the Guide to Social Security Law (“the Guide”) provides:
Jobseekers are encouraged and should consult with their employment services providers to identify appropriate activities they are interested in, or may prefer to undertake, to meet their mutual obligation requirements. While employment services providers will take these things into account, wherever possible, employment services providers (as delegates of the Secretary of the Department of Employment) have the final decision on what should be included in a jobseeker’s Job Plan. [Emphasis added]
21. Having careful regard to the applicant’s evidence, I am satisfied that the applicant has failed to meet his requirements under subsections 593(1)(c)-(f) of the Act because he refused to sign an EPP and had no intention of entering into an EPP (which was acceptable to his job service provider).
22. As a consequence of the applicant’s failure to enter an EPP and the subsequent suspension of the applicant’s Newstart allowance on 22 October 2016, he was unable to meet his fortnightly reporting requirements. Consequently, he failed to report for two consecutive fortnights being the weeks ending on 21 October 2016 and 4 November 2016. In a letter dated 7 November 2016, the applicant was advised by Centrelink that his Newstart allowance had been cancelled from 8 October 2016 (the start of the first fortnightly reporting period) for failure to report. I am not satisfied that there are any special circumstances in this matter which prevented the applicant from contacting Centrelink to discuss his suspension and to ensure that he reported on time as per his reporting requirements.
23. For the above reasons, I am satisfied that the decision to cancel the applicant’s Newstart allowance from 8 October 2016 was correct.
Grounds of appeal
10 As noted above, the applicant posed an extensive list of “questions of law” and grounds of appeal, each with many particulars, with some containing very general and broad assertions. It was these questions which were addressed by the applicant at the hearing of the appeal. Consequently, I have approached the consideration of this matter as if the questions are the grounds of appeal, as they are more focussed on the arguments as articulated by the applicant both in writing and orally. I note that the respondent’s written submission also approached the questions in that manner.
11 The appeal to this Court is limited; a party may only appeal to this Court “on a question of law, from any decision of the Tribunal”: section 44(1) of the AAT Act. It is not a merits review: Kara v Comcare [2011] FCA 951 at [31] per Lander J citing Brennan J in Attorney-General for The State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36; Evans v Secretary, Department of Social Services [2014] FCA 491 at [21] per Perry J. Whether a notice of appeal contains a question of law is to be approached as a matter of substance and not form: Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) at [62] per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ. In cases of doubt, the Court will consider the notice of appeal in question, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law: Haritos at [94].
12 It is well established that the applicant bears the onus of demonstrating an error of law on the part of the Tribunal: Haritos at [192]-[202]. It is also well established that the Tribunal’s reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ citing the Full Court (Neaves, French and Cooper JJ) in Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 (Pozzolanic) at 287.
13 As a general observation, the applicant’s grounds/questions primarily related to arguments about a denial of procedural fairness, and a failure by the Tribunal to refer to and take into account his arguments and claims. The applicant submitted there were inconsistencies in the Tribunal’s reasons, and that the Tribunal made conclusions without reference to the evidence, and of which there was no evidential foundation. The applicant argued that the Tribunal misconstrued the law. Some of the questions raised, as argued, are really an assessment of factual findings. While the applicant tended to submit that there was no evidence to establish a particular conclusion, the argument was rather that the evidence he had put forward should have been accepted: for example, aspects of questions 8-12. Also a number of the questions are general complaints about the conduct of Centrelink: for example, questions 18, 24 and 25. The applicant recognised that some of the questions he had identified were significant while others were less so.
14 While it is arguable as to whether some of the grounds/questions are properly characterised as questions of law, it is unnecessary to decide each because, for the reasons given below, three grounds/questions which do raise questions of law, have been established. While the respondent submitted that the appeal should be dismissed, the factual basis for establishing each of the three grounds/questions, (at least in part), was accepted by the respondent. The nature of these grounds are such that it is appropriate that this matter be remitted to the Tribunal.
15 The three grounds/questions which have been established are as follows: first, the denial of procedural fairness (question 1); second, the Tribunal’s reference to and reliance on s 593(1)(c)-(f) of the SSA (question 6); and third, the failure to address the applicant’s submission (question 5, although it is also encompassed in aspects of other questions, for example, 7, 8, 10).
Question 1: denial of procedural fairness
16 A denial of procedural fairness raises a question of law: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at [8] per Gray ACJ and North J; Haritos at [202].
17 The respondent accepted, as contended by the applicant, that although the Tribunal referred to the cancellation of the allowance being under s 95 of the Administration Act (automatic cancellation), that basis for the cancellation had not been raised with the parties either before or during that hearing, and is inconsistent with the basis on which the respondent presented its case. This falls within the question and grounds relating to a denial of procedural fairness. In the applicant’s amended notice of appeal, this question/ground was framed as follows:
1. Whether the Tribunal fell in error from a breach of procedural fairness while concluding that the cancellation was pursuant to subsection 95 (1) of the Social Security (Administration) Act (Cth) 1999 (assuming from paragraphs 7, 8 & 22 of its decision and reasons that they are the relevant provisions of law applied by the Tribunal in justification for its affirmation of the decision under review), without such an argument being advanced on behalf of the Secretary, nor discussed at the hearing or before, in light of the evidence including (but not limited to):
a) The submissions and statements on behalf of the Secretary;
b) The oral statements of the representative for the Department at the hearing; and
c) The submissions and statements of the Applicant.
18 At the hearing of the appeal, having provided the Court with a copy of the transcript from the Tribunal, the applicant proceeded to outline what he described as “the total package” of errors made in relation to s 95. Suffice to say, the cumulative effect of these oral submissions was that the applicant had “submit[ed] evidence [to the Tribunal]…without knowing that the Tribunal propos[ed] to invoke section 95(1) in place of 80(1)”, and that this was “a matter of substance”.
19 Section 95 is in the following terms:
95 Automatic cancellation—failure to provide statement under subsection 68(2)
(1) If:
(a) a person who is receiving a social security payment is given a notice under subsection 68(2) requiring the person to give the Department a statement or a number of statements; and
(b) the notice relates to the payment of the social security payment in respect of a period or a number of periods specified in the notice; and
(c) the person does not comply with the notice so far as it relates to a particular period;
then, subject to subsection (2), the social security payment is cancelled, by force of this section, on the first day in that period.
(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) The day specified under subsection (2) may be before or after the making of the determination.
20 As is apparent from the Tribunal’s reasons, this provision was plainly considered by it to be relevant, and there is no dispute between the parties that the Tribunal concluded that the applicant’s allowance was automatically cancelled pursuant to s 95.
21 The applicant is correct that s 95 was not raised during the hearing, nor was it raised in any submission by the respondent prior to the hearing. Indeed, the respondent had submitted to the Tribunal (and to the AAT1) that the applicant’s allowance was cancelled pursuant to s 80(1) of the Administration Act. The written and oral submissions of the respondent before the Tribunal were directed towards s 80(1). That provision was in the materials provided to the Tribunal, s 95 was not.
22 It is to be presumed that the respondent’s reliance on s 80(1) is based on its understanding that that was the power utilised in cancelling the applicant’s allowance. If that is so, for the Tribunal to find that the cancellation was pursuant to s 95, is not correct. However, the respondent’s submission in this Court simply proceeded on the basis that the allowance was cancelled pursuant to s 95, as the Tribunal concluded, despite that inconsistency.
23 Section 80(1) is as follows:
80 Cancellation or suspension determination
(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.
24 The difference between the s 80(1) and s 95, is that the former cancellation involves some decision by the Secretary, the latter is automatic.
25 It follows that no submission was advanced to the Tribunal about the application of s 95. Importantly, the applicant was not given an opportunity to address that provision. This is in the context where the applicant had submitted before the Tribunal that s 80(1) had not been satisfied. The Tribunal did not refer to or address those arguments. Indeed, the Tribunal did not refer at all to s 80(1) and why it did not accept the respondent’s submission that the cancellation was made under that section.
26 The failure to raise with the applicant that it was considering concluding, contrary to what was relied on by the respondent, that the cancellation was pursuant to s 95 is, in the particular circumstances of this case, a denial of procedural fairness. Section 95 has a number of preconditions to its operation which require satisfaction of certain factual matters.
27 The respondent accepted that procedural fairness in the Tribunal generally required prior notice that a decision that may affect a party’s interests will be made; disclosure of the “critical issues” to be addressed, and of information that is credible, relevant and significant to the issues; and a substantive hearing, with a reasonable opportunity to present a case. The respondent submitted that the critical issue to be addressed was whether the cancellation of the applicant’s allowance on 7 November 2016 with effect from 8 October 2016, was the correct and preferable decision, and that that was disclosed to him. That submission does not assist the respondent because while that proposition may be correct, its interpretation must necessarily extend to the power to cancel the allowance in circumstances where there must be satisfaction of certain preconditions.
28 The respondent also submitted that the decision-maker does not have to reveal their thought process in order to comply with the requirement to provide an applicant with procedural fairness, relying on Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (Alphaone) at 591-2 per Northrop, Miles and French JJ. While that proposition is correct, again, it does not assist the respondent in this case. The reliance on s 95 is not “a thought process” in the manner discussed in Alphaone. Here, the Tribunal, without notice to the applicant and without ruling on his submission in relation to s 80 (the provision the respondent submitted to it was the correct one), relied on s 95. The Tribunal did so without any explanation in its reasons as to why, and without addressing whether the preconditions were factually established.
29 The applicant submitted that if he had been provided with the opportunity to address s 95 he would have made submissions as to why the conditions imposed by that section had not been established. The applicant outlined those submissions during the course of this appeal. He was denied the opportunity of addressing the application of s 95 before the Tribunal.
30 This ground interrelates with the third ground addressed below, as the applicant’s submissions in relation to the failure to establish the preconditions of s 95 would include the matters referred to in that ground, but not considered by the Tribunal.
31 Therefore, the issue becomes whether the breach has given rise to a “practical injustice”: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal’s decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [38], [45]-[46] per Bell, Gageler, Keane, Nettle and Gordon JJ. By denying the applicant an opportunity to provide submissions or evidence on s 95, the breach has the requisite materiality.
32 This ground is established. The applicant has established that the breach was material and has given rise to a practical injustice.
Question 6: construction and application of section 593(1)(c)-(f)
33 Referred to by the applicant at the hearing as “a construction error”, in the applicant’s amended notice of appeal, this question/ground was framed as follows (with any errors in the original):
6. Whether the Tribunal fell in error on the true construction and application of subsections 593 (1) (c) - (f) of the Social Security Act 1991 towards asserting a failure to meet those requirements by the Applicant (as may be inferred from paragraph 21 of its decision and reasons), in light of the judicial facts and material evidence before the Tribunal including (but not limited to):
a) The nature of those requirements suggesting that all of them cannot be applied simultaneously due to the different conditions attached to each;
b) The statutory linkages between:
• Sections 593 & 605 of the Social Security Act (Cth) 1991;
• Sections 605 & 606 of the Social Security Act (Cth) 1991;
• Sections 605 of the Social Security Act (Cth) 1991 & Part 1, Division 3A of the Social Security (Administration) Act (Cth) 1999; and
• Section 8 of the Social Security (Administration) Act (Cth) 1999 to all of these above;
c) Various guides, principles and leaflets (including the Operational Blueprint) published by the relevant commonwealth government departments;
d) the submissions and statements of the Applicant with annexures and exhibits; and
e) The submissions and statements of the representative of the Department.
34 Whether the Tribunal has identified or applied the correct legal test, raises a question of law: Pozzolanic at 287. The respondent accepted in this context, that an error is established if the Tribunal erroneously applied a statutory test to the facts: Seven Network Ltd v Australian Competition and Consumer Commission [2007] FCA 1929; (2007) 164 FCR 127 per Buchanan J.
35 The Tribunal concluded at [21]:
Having careful regard to the applicant’s evidence, I am satisfied that the applicant has failed to meet his requirements under subsections 593(1)(c)-(f) of the Act because he refused to sign an EPP and had no intention of entering into an EPP (which was acceptable to his job service provider).
36 This finding led to the Tribunal’s ultimate conclusion.
37 The Tribunal’s statement that it was satisfied in relation to s 593(1)(c)-(f), in so far as it related to each of those subsections, cannot be correct. The applicant submitted that this established that the Tribunal misinterpreted those provisions. As accepted by the respondent during the hearing, all of those subsections could not apply simultaneously, as some relate to a person entering an EPP and others contemplate the scenario where a person was already on an EPP. While originally contending in its written submission that this ground/question was nothing more than “a challenge with respect to the merits of the [Tribunal]’s decision”, at the hearing, the respondent accepted there was an error.
38 However, the respondent submitted that the error was not a material one, relying on Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [30] per Kiefel CJ, Gageler and Keane JJ, in support of this contention. The applicant took issue with that submission.
39 Only two of the subsections of s 593 apply in this case. That the Tribunal considered that it was satisfied as to all four, reflects that it misapplied the provision. The relevant subsections which applied depended on the circumstances of the applicant; that is, if that person is to enter into an EPP or was already on an EPP which was being reviewed.
40 That error, by itself, may not have been material because it could be argued that the two that were applicable were addressed. However, the error is symptomatic of a broader issue (which is addressed in the next ground), that is, that the Tribunal did not address the applicant’s argument that he was already on an EPP, and that the letters he had been sent were to review the EPP and not to enter an EPP. The respondent’s argument throughout was that the letters related to entering an EPP as on their submission, the applicant was not already on one. In light of the issues noted below, the Tribunal’s error has been established and it is a material one.
Question 5: failure to consider the applicant’s submission
41 The applicant argued both that there was a failure to give reasons (question 5) and a failure to consider any of his submissions or claims (for example, questions 7, 8 and 10).
42 In the amended notice of appeal, question 5 was as follows:
5. Whether the Tribunal fell in error by its failure of the procedure mandated by the Administrative Appeals Tribunal Act (Cth) 1975 in its "decision and reasons for decision" without referring to the evidence for its reasons when it alludes [to] a failure (as may be inferred from paragraphs 4, 5 & 21 of its decision and reasons) under sections 593 and 601 of the Social Security Act (Cth) 1991 towards affirming the decision under review.
43 In reality this complaint permeated many of the grounds/questions (as exemplified by aspects of the arguments in questions 7, 8 and 10), and it is not necessary to recite all of those grounds.
44 An alleged failure to give reasons in accordance with either s 43(2) or s 43(2B) of the AAT Act involves a question of law: Comcare v Singh [2012] FCA 136 at [22] per Jagot J citing Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554. Not every failure to refer to a submission will amount to a contravention of s 43(2) or s 43(2B) or necessarily indicate that the submission was not considered, but a failure to advert to a submission on a matter “worthy of serious consideration and [which] was seriously advanced” may give rise to an inference that the tribunal overlooked the submission, thereby amounting to an error of law: Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 123; (1988) 79 ALR 269 at [21].
45 The Tribunal did not refer to any of the applicant’s submissions in any detail. Indeed, the only submission referred to was at paragraph [18], that “…the applicant has said that he was trying to negotiate an EPP that better suited his needs…”.
46 The respondent accepted that if the applicant submitted below that he had reported to Centrelink and had done so on the basis of an existing EPP, that argument ought to have been addressed by the Tribunal and a finding made on it, but was not.
47 The applicant had submitted before the Tribunal that he did report to Centrelink and that reporting had, at the time, been accepted by Centrelink. He submitted he had done so in compliance with his EPP. The emails he had sent to Centrelink which were purported to be his reporting to them, were before the Tribunal. This submission was in the context where the letter notifying the applicant that his allowance had been cancelled, stated that it was cancelled on the basis he had failed to report.
48 The evidence relied on by the applicant in support of that submission was summarised in the reasons of the AAT1 at paragraphs [20]- [22] as follows (footnotes omitted):
20. At the hearing, Mr Manikantan told the Tribunal that he communicates with Centrelink in writing and uploads his correspondence online because of prior experiences where his telephone conversations have not been recorded.
21. Mr Manikantan provided the Tribunal with letters addressed to Centrelink that are dated 4 November 2016, 18 November 2016, 2 December 2016, 16 December 2016, 29 December 2016, 13 January 2017 and 27 January 2017. These letters refer to relevant fortnightly periods and state:
I declare that I do not have any reportable employment income and that I met my job search requirements for this period as were set out in the JP/EPP in force. I also declare my wife has been living in India since June 2004 and she did not report any employment income either, during the reporting period as above.
I also declare that the information furnished in this claim for payment is true and correct to the best of my knowledge and belief.
22. Mr Manikantan supplied the Tribunal with a record of his job search efforts from 27 April 2016 to 7 September 2016 and from 27 September 2016 to 20 December 2016. These records show Mr Manikantan applied for more than 90 employment positions during October 2016.
49 It is plain from that summary that the applicant did make the submission and, from the passage recited, there was information from which it could be inferred the applicant believed he was on an EPP at the time and was reporting in accordance with that. That submission and evidence goes directly to the issue of the basis of the cancellation. The applicant also pointed to material before the Tribunal in the form of a Centrelink record that showed he was on a EPP (at least at the time the first letter was sent) and that the letters sent referred to reviewing an existing EPP, and not entering into one.
50 It is plainly not necessary for the Tribunal to refer to every piece of evidence or every submission by the applicant: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] and [47] per French, Sackville and Hely JJ. However, this submission goes to issues which, if accepted by the Tribunal, might have led to it making a different finding of fact, and had the capacity to affect the outcome of the hearing: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]-[97] per McHugh, Gummow and Hayne JJ. As noted above, the respondent accepted that this submission ought to have been addressed by the Tribunal.
51 The applicant also raised the issue that the Tribunal’s decision is based on the proposition that he had received a notice to enter into an EPP. The applicant had challenged this below, where he submitted that he was already on an EPP. An issue arose as to whether what was occurring was that he would not enter into an EPP or whether what was requested, was a review of an existing EPP. That has a significance to the nature of the powers being exercised. The relevant provisions are different depending on which of the two scenarios are in play. The applicant submitted to the Tribunal he was already on an EPP while the respondent submitted that the information notice was directed to entering into an EPP. As referred to above, his letters to Centrelink, reflect that at the time the applicant understood he was on such a plan. The Tribunal does not refer to the applicant’s evidence and submission on this topic, nor does it reflect any reasoning as to resolving the issue. Rather, as is apparent from paragraph [9] of the Tribunal’s reasons recited above, the Tribunal asserted the fact that the letter related to entering into an EPP. The Tribunal gave no reasons for that assertion. That finding underpinned the Tribunal’s ultimate conclusion.
52 I express no view on the ultimate merit of these submissions, but rather, given the nature of these arguments, the fact that they were not addressed, reflects an error by the Tribunal. Suffice to say that the AAT1 accepted, based on the evidence and argument, that the applicant satisfied the activity test. The applicant also submitted this argument is relevant to the application of s 95 and the denial of procedural fairness (discussed above at [16]-[32]), on the basis that if he had been on notice about s 95 he would have advanced this argument in support of the contention that the conditions in s 95 had not been satisfied. It is a precondition to the application of s 95 that the person does not comply with the notice. I note also that the AAT1 had accepted this part of the applicant’s argument.
53 The failure to address the submissions in the circumstances of this case gives rise to the inference they were not considered.
54 Even if the failure to afford procedural fairness was not established, the Tribunal’s failure to address any of the respondent’s submissions referred to above, given the findings made, would be sufficient to allow the appeal.
Conclusion
55 Three questions of law have been established. The matter is to be remitted to the Tribunal to be reconsidered. In those circumstances it is unnecessary to determine the remaining questions.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham. |
Associate:
