Federal Court of Australia

Ahamed v Secretary, Department of Human Services [2021] FCA 1441

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s Notice of Objection to Competency filed 24 March 2021 be upheld.

2.    The Applicant’s amended Notice of Appeal filed 14 May 2021 be dismissed.

3.    The Applicant pay the Respondent’s costs as may be agreed, or in default of agreement, as may be taxed.

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

REASONS FOR JUDGMENT

KERR J:

1    This case concerns an appeal by the Applicant, Mr Mohammad Ahamed, from a decision of the Administrative Appeals Tribunal (the Tribunal) dated 4 December 2020 concerning his Disability Support Pension (DSP) and rent assistance payments: CJCY and Secretary, Department of Social Services (Social services second review) [2020] AATA 4939.

2    It is useful to first set out the procedural history of this matter. The following background is summarised from the reasons for decision of the Tribunal and is not in dispute.

3    On 7 August 2018, the Secretary, Department of Human Services (the Secretary) made a decision that the Applicant was a member of a couple and had been incorrectly paid the DSP at the single rate and thus had a debt of $6,795.88 (the DSP Decision).

4    In September 2018, the Secretary made a further and separate decision that the Applicant was entitled to rent assistance from 5 January 2018 (the Rent Assistance Decision).

5    The Applicant sought a review of the Secretary’s DSP and Rent Assistance decisions. He contended that he was eligible for the single rate DSP and was entitled to rent assistance from 16 June 2016 to 4 January 2018, and was thus entitled have his DSP debt waived and rent assistance for that period back-paid. On 7 December 2018, an Authorised Review officer of the Appeals Branch of the Secretary affirmed the Secretary’s decisions.

6    The Applicant appealed to the Tribunal. On 22 May 2019, the Social Services & Child Support Division of the Tribunal affirmed the decisions of the Authorised Review Officer.

7    The Applicant appealed that decision to the General Division of the Tribunal. On 7 January 2020, the General Division of the Tribunal set aside the DSP Decision and remitted it to the Secretary on the basis of special circumstances being found to waive $2,000 from the Applicant’s total debt. It affirmed the Rent Assistance Decision.

8    The Applicant sought review of that decision in the Federal Court of Australia. That proceeding was subsequently transferred to the then Federal Circuit Court of Australia (FCCA). On 20 May 2020, the FCCA allowed Mr Ahamed’s appeal and set aside the 7 December 2020 decision of the Tribunal, directing that it be remitted for hearing according to law.

9    Prior to the remitted hearing in the Tribunal, the Secretary proposed to the Applicant a concession that a discretion be exercised so as to treat him as not being a member of a couple for the period 5 April 2017 and 16 April 2018. The practical effect of that proposed concession was that, if given effect to, Mr Ahamed would be recognised as having been entitled to the single rate of DSP for that period and thus had no debt due. That proposed concession was later formally made by the Secretary during the remitted hearing before the Tribunal on 5 October 2020.

The DSP Decision

10    Given the concession that had been made by the Secretary that the Applicant was entitled to the single rate DSP for the relevant period of 5 April 2017 and 16 April 2018, and thus was entitled to have the debt waived, the Tribunal dealt with that issue only briefly. It set out s 24(1)(c) of the Social Security Act 1991 (Cth) as follows:

PART 1.3—DETERMINATIONS HAVING INTERPRETATIVE EFFECT

24 Person may be treated as not being a member of a couple (subsection 4(2)) (1)

Where:

(a)     a person is legally married to another person; and

(b)     the person is not living separately and apart from the other person on a permanent or indefinite basis; and

(c)     the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.

11    The Tribunal treated the Secretary’s concession as an admission. The Tribunal reasoned and concluded as follows:

27.     As can be seen from an examination of the language used in section 24 (1) (c), an exercise of the discretion in favour of the Applicant as proposed by reason of the concession amply justifies setting aside the DSP decision, having the effect that the Applicant was entitled to the single rate of the DSP during the period of 5 April 2017 and 16 April 2018. It is this timespan which is covered by the decision of the Authorised Review Officer on 7 December 2018. The effect of that decision was to hold that the Applicant was paid $6,795.88 more by way of the DSP that he was eligible to receive during that period.

28.     In the circumstances, and by reason of the admission made on behalf of the Respondent by its lawyer Ms Heffernan, the Tribunal is satisfied that the correct and preferable decision is to set aside the decision of the Authorised Review Officer of the Respondent made on 7 December 2018 concerning the Applicant’s entitlement to the DSP for the period 5 April 2017 to 16 April 2018 (forming part of document T 9 of the T documents) and that in substitution for that decision there be a decision that:

“The discretion in section 24 (1) (c) of the Social Security Act 1991 be exercised so as to treat the Applicant as not being a member of a couple in relation to the period between 5 April 2017 and 16 April 2018 (“the relevant period”)”; and

“The Tribunal notes that the effect of this decision is that the Applicant was entitled to the single rate of the DSP during the relevant period and as such, does not have a DSP debt to the Commonwealth of Australia of $6,795.88.”

(citations omitted)

The Rent Assistance Decision

12    The Tribunal set out the background to that issue and reasoned as follows:

32.    …On 29 November 2012 the Applicant was granted the DSP. With the DSP was included an allowance for Rent Assistance, relating to rental for the premises situated at 115 Creswick Street, Footscray.3

33.    On 17 December 2015 the Applicant left Australia.

34.    His Rent Assistance was cancelled on or about 14 June 2016. The reason for the cancellation was his continuing absence from Australia for a period in excess of 26 weeks. Section 1216 of the Social Security Act 1991 provides in effect that portability of such payments ceases 26 weeks after the period of absence from Australia commenced.

35.    The Respondent notified the Applicant in writing to his Australian address (as he had requested prior to his departure from Australia) of the cancellation of his Rent Assistance. Further, he was informed on 3 occasions in writing, that if he disagreed with the decision to cancel his rent assistance it was important that he ask for a review within 13 weeks of being notified about the decision. The notice also informed him that if his request for a review was more than 13 weeks after being notified, he may only receive his entitlement from the date he requested such review.

36.    The Applicant did not seek review of the decision to cancel his Rent Assistance in June 2016. He returned to Australia on 16 February 2017. Upon his return he did not advise the Respondent that he had changed his address or that he was paying rent.

37.    Following his return to Australia, the Applicant received several letters from the Respondent on 20 February 2017, 21 February 2017 and 15 December 2017 advising him that the DSP that he was in receipt of did not include Rent Assistance.

13    On 4 December 2020, the Tribunal made orders as follows:

(a)     The decision of the Authorised Review Officer of the Respondent made on 7 December 2018 concerning the Applicant's entitlement to the DSP for the period 5 April 2017 to 16 April 2018 (forming part of document T 9 of the T documents8) is set aside.

(b)    That in substitution for that decision there be a decision that:

(i)     "The discretion in section 24 (1) (c) of the Social Security Act 1991 be exercised so as to treat the Applicant as not being a member of a couple in relation to the period between 5 April 2017 and 16 April 2018 ("the relevant period")"; and

AND THE TRIBUNAL NOTES: that the effect of this decision is that the Applicant was entitled to the single rate of the DSP during the relevant period; and as such, does not have a DSP debt to the commonwealth of Australia in the sum of $6,795.8

(c)     The decision of AAT 1 made on 22 May 2019 concerning the decision of the Respondent's Authorised Review Officer made on 7 December 2018 with respect to the Rent Assistance decision is affirmed.

14    On 24 December 2020 the Applicant filed, or purported to file, a Notice of Appeal from the Tribunal’s decision. The Applicant’s Notice of Appeal identified the questions of law as would engaged the jurisdiction of the Court for the purposes of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). as follows :

Does Secretary of the department of Social Services have the right to overrule the legislation or law?: and

Is AAT bound by Federal Circuit Court orders?

15    On 24 March 2021 the Respondent filed a Notice of Objection to Competency to the Applicant’s appeal so expressed. At the first case management hearing later that month the Court sought to explain to the Applicant the import of the Respondent’s objection to the competency of his appeal. The Court urged him to seek legal advice.

16    On 28 April 2021 the Court later ordered by consent, inter-alia;

Unless the Applicant by no later than 4:00pm on 14 May 2021 has filed and served an amended draft notice of appeal specifying an error or errors of law (within the meaning of s 44 of the Administrative Appeals Tribunal Act 1975) claimed to have been made by the Administrative Appeals Tribunal in its decision of 4 December 2020 the Applicant’s appeal be dismissed with costs in favour of the Respondent to be as agreed or assessed without the requirement of any further hearing.

17    On 14 May 2021 the Applicant filed (not in draft, but no procedural point is taken by the Respondent) his amended Notice of Appeal. It is in the following terms:

The Applicant appeals from the decision of the AAT given on 4 December 2020 at Melbourne.

The Tribunal decided debt part only and made an error whilst deciding other issues that arose before the tribunal.

The Applicant appeals from an error occurred whilst deciding other issues that arose before the tribunal.

Questions of law

1 .     Should the appellant receive the single rate of DSP during the period of April 2017 till (sic) 28 April 2019 based upon special circumstances?.

2.     Should the appellant be eligible for rent assistance during the period of February 2016 tilt January 2018?.

…

Orders sought

1.     Full DSP rate including Pension Education Supplement and rent assistance when the applicant was studying overseas as a full- time student in the whole year of 2016.

2.     Full four weeks payments once the applicant had finished his studies overseas for the period of 1 January 2017 till 28 January 2417.

3.    Rent assistance for the period between 2016 till January 2018.

4.     Single DSP payment from April 2017 till 28 April 2019.

5.     Pension education supplement (PES) for the whole year of 2018.

Grounds relied on

1.     Social Security Act 1991- Section 1218.

2.    Social Security Act 1991- section 1070C.

3.    Social Security Act 1991- Section 24,

4.    Social Security Act 1991- Section 1061PJ.

5.    Social Security Policy for Portability.

…

(emphasis added)    

18    The matter as it then stood was re-listed for case management hearing on 11 June 2021. The Respondent, as the Secretary was entitled to, continued to rely on the earlier filed Notice of Objection to Competency. On behalf of the Secretary, Ms Heffernan, advised that notwithstanding Appellant’s changed wording of his amended Notice of Appeal the Respondent’s position remained that his appeal was incompetent because it still failed to satisfy s 44 of the AAT Act. The questions posed were not questions of law. Instead they impermissibly invited the Court to undertake merits review.

19     Following that interlocutory hearing the Court made the following orders:

1.    The Respondent’s Notice of Objection to Competency dated 23 February 2021 be adjourned for hearing and determination concurrently with the hearing of the Applicant’s Amended Notice of Appeal dated 14 May 2021 at 10:15am on 6 September 2021 (with an estimated hearing time of half a day).

2.    The parties each file and serve written submissions limited to no more than 2 pages as to whether the questions in the Applicant’s Amended Notice of Appeal are questions of law within the meaning of s 44 of the Administrative Appeals Tribunal Act 1975 as follows:

a. The Applicant no later than 4:00pm on 23 July 2021;

b. The Respondent no later than 4:00pm on 27 August 2021; and c. The Applicant in reply no later than 4:00pm on 3 September 2021.

3.    The parties each file and serve written submissions limited to no more than 6 pages as to the merits of the Applicant’s appeal as follows:

a. The Applicant no later than 4:00pm on 23 July 2021;

b. The Respondent no later than 4:00pm on 27 August 2021; and c. The Applicant in reply no later than 4:00pm on 3 September 2021.

4.    The Respondent file and serve a joint list of authorities which must include an index which contains an individual hyperlink to each document included in the index no later than 4:00pm on 3 September 2021.

The concurrent hearing proceeded on the scheduled date.

is the appeal competent?

The Respondent’s submissions

20    The Respondent submitted that notwithstanding the Applicant having been given leave to file an amended Notice of Appeal his revised Notice of Appeal still failed to identify a question of law for the purposes of s 44 of the AAT Act. The Respondent submits that the grounds pressed by the Applicant involve no question of law but instead impermissibly calls upon the Court to make findings at large.

21    The Secretary filed written submissions, inter alia, as follows:

6.    The Respondent submits that the Applicant’s appeal based on the Amended Notice of Appeal is not competent. The purported questions of law are not questions of law but rather they invite the Court to undertake impermissible merits review by making factual findings that the Applicant is entitled to the full rate of disability support pension (DSP) for April 2017 until 28 April 2019, and rent assistance for a particular period.

7.    The Applicant has not identified how the Tribunal erred in its decision of 4 December 2020.

7.1    At the commencement of the Amended Notice of Appeal the Applicant states: ‘the Tribunal decided debt part only and made an error whilst deciding other issues that arose before the tribunal’, and goes on to state that he ‘appeals from an error occurred whilst deciding other issues that arose before the tribunal’.

7.2    The Applicant fails to identify what error was made by the Tribunal and how it related to a question of law.

8.    Accordingly the Respondent submits that the Court cannot be satisfied that the Applicant’s appeal is on a question of law for the purposes of s 44(1) of the Administrative Appeals Tribunal Act 1975.

The Applicant’s submissions

22    The Applicant filed written submissions as follows:

1.    The Administrative Appeals Tribunal Act 1975 provides that a party to a proceeding before the AAT may appeal to the Federal Court on a question of law from any decision of the AAT in that proceeding. The applicant appealed to the federal court on a question of law from the AAT on 24 December 2020 according to the act.

2.    The federal court made a first case management hearing on 1March 2021 in relation to the notice of appeal of which the respondent made an objection that the applicant’s question of law on a notice of appeal form does not fall under the s44 of the AAT Act 1975 to which the court ordered the hearing to go ahead on 28 April 2021 and on that day the court ordered the applicant to amend the notice of appeal’s question of law and the applicant submitted the amended notice of appeal form to the Federal court on 13 May 2021 and the court went for another hearing on this matter of the respondent’s objection on 11 June 2021 and the court did not have any objection to the applicant’s question of law on the amended notice of appeal form and further decided to go for a hearing on 6 September 2021 is a sufficient reason to believe that the applicant’s question of law is within the meaning s44 of the administrative appeals tribunal act 1975.

(as in original)

23    I mean no disrespect to the parties but their oral submissions in respect of the interlocutory application did not substantially further illuminate the position.

Discussion

24    It is appropriate to commence by setting out r 31.05 of the Federal Court Rules 2011:

31.05 Notice of objection to competency

(1) A respondent who objects to the competency of an application must, within 14 days after being served with the application, file a notice of objection to competency:

(a) in accordance with Form 68; and

(b) that, briefly but specifically, states the grounds of the objection.

(2) The applicant carries the burden of establishing the competency of an application.

(3) A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the application.

(4) If a respondent has not filed a notice under subrule (1), and the application is dismissed by the Court as not competent, the respondent is not entitled to any costs of the application.

(5) If the Court decides that an application is not competent, the application is dismissed.

25    Section 44(1) of the AAT Act is as follows:

44 Appeals to Federal Court of Australia from decisions of the Tribunal

Appeal on question of law

(1)     A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

26    In Haritos v Commissioner of Taxation [2015] FCAFC 92, the Full Court considered the construction of the phrase “a question of law” as appears in s 44 of the AAT Act. Under the heading “Summary of conclusions in relation to s 44 of the AAT Act”, the Full Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) expressed itself as follows:

62    We now turn to consider the more general questions raised by the appeal in relation to s 44 of the AAT Act. In summary, our conclusions are as follows:

(1)    The subject-matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.

(2)    The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.

(3)    The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.

(4)    Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.

(5)    In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.

(6)    Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.

(7)    A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.

(8)    The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

(9)    In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.

(10)    Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.

27    The above observations bind me as a single judge of this Court.

28    As a preliminary matter however I am satisfied that the Court is entitled to reject, and should reject, the Applicant’s submission that:

…the court did not have any objection to the applicant’s question of law on the amended notice of appeal form and further decided to go for a hearing on 6 September 2021 is a sufficient reason to believe that the applicant’s question of law is within the meaning s44 of the administrative appeals tribunal act 1975.

That submission refects a plain misunderstanding of the relevant procedural facts.

29    The Court’s orders of 11 June 2021 as are reproduced above at [19] explicitly made provision for each of the parties to file short written submissions as to the jurisdictional objection that the Respondent had raised. Those orders made it very clear that that question remained in issue.

30    Having regard to the observation of the Full Court at [62(5)] the Court had listed the Secretary’s Notice of Objection to Competency to be heard concurrently with the hearing of the Appeal. The Court had done so to permit the Applicant to put forward in submissions and argument all that he wished to rely on.

31    However, nothing that was advanced by the Applicant, in writing or orally, after having been given that opportunity assisted the Court to identify how the propositions he advanced in his amended grounds as questions of law if formally deficient might nonetheless, on further explanation, reveal a question of law understood as a matter of substance.

32    On their face they do not.

33    The question “should the appellant receive the single rate of DSP during the period of April 2017 till (sic) 28 April 2019 based upon special circumstances” as the Secretary submits, invites the Court to decide a question, not of law but of discretion, the merits of which were for the Tribunal.

34    Nothing was advanced by the Applicant in argument that could serve as the foundation for a substantive contention that the Tribunal had erred when it confined its decision on review to the period ending 16 April 2018.

35    As noted at [5] above the Applicant’s proceedings in the Tribunal had initially been commenced in relation to his then contentions: (a) that he was entitled to the single rate of benefit until 4 January 2018 and (b) that he had been wrongly required to repay the excess he had received.

36    It was the Secretary’s later concession as is referred to at [9] above that opened the way to the Tribunal handing down a decision applying beyond 4 January 2018. Whatever might be said about the legal basis for that extension, there can be no room for doubt that in respect of the whole of the period relevant to the Tribunal’s decision (on remittal) the Applicant had been (and, if anything, more than) wholly successful.

37    The second question the Applicant’s amended Notice of Appeal advances as a supposed question of law is “should the appellant be eligible for rent assistance during the period of February 2016 till January 2018?” That also, as the Secretary submits, asks a question properly for the Tribunal to provide an answer to rather than this Court.

38    The applicant plainly is aggrieved and convinced the outcome is unfair but he has not identified any question of law as might put in issue that the Tribunal decided that issue in a manner exceeding its legal duty or jurisdiction.

39    The Tribunal answered the question before it in the negative for the reasons it stated at paragraphs [32]–[37]. Those paragraphs appear in these reasons at [12] above. The purported question of law in the Applicant’s amended Notice of Appeal simply asks the Court to answer that question differently than did the Tribunal. The Applicant’s written and oral submissions identified no relevant question of law in that regard as might entitle the Court to understand the position differently. Moreover, to the extent the Court itself gave consideration to whether it might be possible to understand the ground as raising an issue of substance, I apprehended nothing to suggest the Tribunal’s reasoning and its conclusions were infected by legal error.

40    I am therefore satisfied that the Secretary must be correct, notwithstanding the duty of the Court to interrogate for itself whether or not a question of law has been advanced as a matter of substance, to contend that the jurisdiction of the Court has not been validly invoked in this proceeding.

41    I uphold the Secretary’s Notice of Objection to Competency.

42    For completeness I note that the Applicant’s citation of a number of provisions of the Social Security Act 1991 that he relies on (s 1218; s 1070C; s 24; s 1061PJ, and the Social Security Policy for Portability) does not compel the contrary answer. It is true those are ‘laws’ but there is nothing before the Court to link those laws existence or what they require to the questions set out in the amended Notice of Appeal the Applicant has filed.

43    The Applicant’s application is dismissed pursuant to r 31.05(5) of the Federal Court Rules 2011. There is no reason why costs should not follow the event. The Applicant is to pay the Respondent’s costs as may be agreed, or in default of agreement as may be taxed.

Associate:

Dated:    23 November 2021