Federal Court of Australia

Ahamed v Secretary, Department of Human Services [2022] FCA 1207

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time and leave to appeal be dismissed.

2.    The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

BROMBERG J:

INTRODUCTION AND BACKGROUND MATTERS

1    This is an application made by Mr Ahamed for an extension of time and leave to appeal orders made by a judge of this Court (primary judge) who dismissed Mr Ahamed’s Amended Notice of Appeal from a decision of the Administrative Appeals Tribunal (AAT) of 4 December 2020. The Amended Notice of Appeal was dismissed on the basis that the notice failed to disclose any question of law.

2    Section 44(1) of the Administrative Appeal Tribunal Act 1975 (Cth) provides that a party to a proceeding before the AAT may appeal a decision made by the AAT to this Court “on a question of law”. The effect of that provision in combination with s 44(3), is that this Court only has jurisdiction to review a decision of the AAT on a question of law. In other words, only an error of law made by the AAT engages the jurisdiction of this Court to review a decision of the AAT on an appeal instituted under s 44(1) of the Act.

3    By reason of the limited nature of this Court’s jurisdiction in relation to an appeal under s 44(1) of the Act, r 33.12(2)(b) of the Federal Court Rules 2011 (Cth) provides that a notice of appeal from a decision of the AAT must specify “the precise question or questions of law to be raised on the appeal” to engage the jurisdiction of the Court.

4    On 24 December 2020, Mr Ahamed filed a Notice of Appeal from the AAT’s decision. The Notice of Appeal purported to identify questions of law as follows (errors in original):

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?

5    On 24 March 2021, the respondent filed a Notice of Objection to Competency. A self-executing order was then made by consent on 28 April 2021 which in effect provided Mr Ahamed with a time limited opportunity to file and serve an amended draft notice of appeal which specified an error or errors of law claimed by him to have been made by the AAT. On 14 May 2021, Mr Ahamed filed an Amended Notice of Appeal. The Amended Notice of Appeal was, relevantly, in the following terms (errors in original):

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.

…

6    On 11 June 2021, the parties appeared before the primary judge at a case management hearing where the respondent continued to rely on the Notice of Objection to Competency. The primary judge at [18] of his reasons for judgment (reasons) noted the respondent’s position at that hearing as follows:

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.

7    Following that case management hearing, the primary judge made orders, inter alia, listing the hearing of the respondent’s Notice of Objection to Competency concurrently with the hearing of Mr Ahamed’s Amended Notice of Appeal and requiring the parties to file written submissions on (i) whether Questions 1 and 2 of Mr Ahamed’s Amended Notice of Appeal (extracted at [5] above) were questions of law within the meaning of s 44 of the Act and (ii) as to the merits of Mr Ahamed’s appeal.

THE PRIMARY JUDGE’S JUDGMENT

8    On 6 September 2021, the concurrent hearing proceeded as scheduled. On 23 November 2021, his Honour published his reasons see: Ahamed v Secretary, Department of Human Services [2021] FCA 1441. The primary judge summarised the parties’ submissions on whether Questions 1 and 2 of Mr Ahamed’s Amended Notice of Appeal were questions of law and set out the relevant provision under the Rules and s 44 of the Act dealing with an appeal on a question of law (see reasons at [20]-[25]). The primary judge noted that the Full Court in Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [62] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) considered the construction of the phrase “a question of law” in s 44 of the Act and set out the principles found in that case (discussed further below) noting that those principles bind him as a single judge of this Court (see reasons at [26]-[27]).

9    Applying Haritos to Mr Ahamed’s Amended Notice of Appeal, the primary judge found at [31] of the reasons that:

nothing that was advanced by [Mr Ahamed], 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.

10    The primary judge also found that on their face, Questions 1 and 2 did not reveal a question of law (see reasons at [32]).

11    His Honour accepted the respondent’s submission that Questions 1 and 2 invited the Court to decide a question not of law but of discretion, the merits of which were for the Tribunal (see reasons at [33] and [37]). In relation to Question 2, his Honour found that Mr Ahamed was “plainly…aggrieved and convinced the outcome [was] unfair” but had not identified any question of law “as might put in issue that the [AAT] decided that issue in a manner exceeding its legal duty or jurisdiction”. Instead, his Honour found that Question 2 “simply ask[ed] the Court to answer that question differently than did the [AAT]” and “to the extent the Court itself gave consideration to whether it might be possible to understand the ground as raising an issue of substance, [the primary judge] apprehended nothing to suggest the [AAT’s] reasoning and its conclusions were infected by legal error” (see reasons at [38] – [39]).

12    Accordingly, the primary judge upheld the respondent’s Notice of Objection to Competency and dismissed Mr Ahamed’s Amended Notice of Appeal.

THE INTERLOCUTORY NATURE OF THE DECISION AND MR AHAMED’S MISCONCEPTION OF IT AS A FINAL DECISION

13    The authorities are clear that a decision upholding an objection to competency and dismissing an appeal under s 44 of the Act on that basis is characterised as an interlocutory decision: see Luck v Secretary, Department of Human Services [2014] FCA 1060 at [30] (Mortimer J); SZAJB v Minister for Immigration and Citizenship 168 FCR 410 at [23] (French J). As the decision of the primary judge was an interlocutory decision, under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) the applicant requires leave to appeal. In accordance with r 35.13(a) of the Rules an application for leave to appeal must be filed “within 14 days after the date on which the judgment was pronounced or the order was made”.

14    It seems clear that, not being legally represented, Mr Ahamed did not realise that the primary judge’s decision was an interlocutory decision in relation to which he would need leave to appeal. Instead of applying for leave to appeal within the 14 day period provided for by r 35.13(a), on or about 17 December 2021 Mr Ahamed filed a notice of appeal from the decision of the primary judge. That was done within the 28 days provided for by the Rules under r 36.03 for the filing of a Notice of Appeal. The matter having been the subject of some case management before me on 1 July 2022, Mr Ahamed first came to understand that he needed leave to appeal from the decision of the primary judge and therefore an extension of time to seek that leave under r 35.14. On 29 June 2022, Mr Ahamed made an application for an extension of time and leave to appeal the decision of the primary judge. As I have said, these reasons deal with that application.

EXTENSION OF TIME / LEAVE TO APPEAL – RELEVANT PRINCIPLES

15    The criteria for determining whether an extension of time should be granted are not fixed but a Court generally takes into account: (i) whether an explanation has been provided for the delay in filing the application, (ii) the length of the delay, (iii) any prejudice to the respondent and (iv) the merits of the application: ALDI Foods Pty Limited as General Partner of Aldi Stores (A Limited Partnership) v Transport Workers’ Union of Australia (2020) 282 FCR 174 at [73] (Besanko, Bromberg and O’Bryan JJ) and Luck at [57] and [58] (Mortimer J).

16    Generally, an applicant seeking leave to appeal must demonstrate that the decision sought to be appealed from is attended with sufficient doubt to warrant it being reconsidered by the Full Court and that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ).

17    Leaving aside for the moment the question of the merits of Mr Ahamed’s application, the other questions raised by the tests set out at [15] and [16] are either not in contest or not substantively in contest. I note that Mr Ahamed’s application for leave to appeal is some 6 months out of time. However, for the reasons given above at [14], I accept that an explanation for the delay has been provided. The respondent has submitted that there is no prejudice to it if an extension of time is granted. Although the respondent did contend that no substantial injustice would result if leave to appeal were refused, it is ultimately unnecessary to answer that question because even if I assume that substantial injustice would result if leave were refused, I would not be satisfied that Mr Ahamed’s application should succeed.

18    The primary question, then, is the merit of the proposed appeal. Given that I am dealing with both an extension of time application and an application for leave to appeal, I think it appropriate to consider the merits of Mr Ahamed’s proposed appeal by reference to the criteria for the grant of leave, namely, is the decision sought to be appealed attended with sufficient doubt to warrant it being reconsidered by the Full Court?

THE PROCEEDING BEFORE THE AAT

19    Before turning to consider that primary question, I should set out some further relevant background about the proceedings before the AAT which is extracted from [3] to [17] of the reasons of the primary judge:

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 [13 December 2019], 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 [13 December 2019] 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 [sic]) 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

IS THE PRIMARY JUDGE’S DECISION ATTENDED WITH SUFFICIENT DOUBT TO WARRANT ITS RECONSIDERATION

Legal Principles

20    The task performed by the primary judge in determining whether the respondent’s Notice of Objection to Competency should be upheld was to consider whether Mr Ahamed’s Amended Notice of Appeal from the decision of the AAT disclosed a question of law. As the primary judge came to the view that it did not, his Honour concluded that the appeal was incompetent.

21    As the Full Court in Haritos said at [97], the Court has jurisdiction to decide whether or not it has jurisdiction and that carries with it the authority to decide whether a notice of appeal states a question of law and does so with precision.

22    The manner in which that task is to be performed is extensively addressed in Haritos. Whether or not a question of law is disclosed “is to be approached as a matter of substance rather than form”: at [62(6)]. In concluding that the issue must be approached as a matter of substance the Full Court said this at [94]:

In cases of doubt, the Court should consider the notice of appeal, 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.

23    At [103] the Full Court also relevantly said:

As a matter of the jurisdiction of the Court, we agree with the summary by Wigney J in P v Child Support Registrar (2013) 62 AAR 17 at [53], which takes account of the position of self-represented litigants:

A question which is inelegantly drafted may nonetheless be a question of law which attracts the jurisdiction of this court if its purport is tolerably clear having regard to the context in which it appears: Ergon Energy Corp Ltd v Cmr of Taxation (2006) 153 FCR 551 at [51]. In an appropriate case the Court itself may be “prepared to frame questions in order to found its jurisdiction”: Secretary, Department of Education, Employment and Workplace Relations v Ergin (2010) 54 AAR 60 at [11]; 119 ALD 155 at 159; Rana at [16]; Goodricke v Comcare (2011) 55 AAR 188 at [14]-[22]; 122 ALD 546 at 549-550. An appropriate case may arise where, as here, an applicant is unrepresented and where it is possible to discern a question which, if properly framed, could found the jurisdiction of the Court: Hoe v Manningham City Council [2011] VSC 37 at [6]-[7]; Kolya v Tax Practitioners Board (2012) 87 ATR 474 (Kolya) at [8].

24    At [104] the Full Court also expressed agreement with the approach of Mortimer J in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 where at [75]-[77], her Honour said:

The similarity between appeals on a question of law and the supervisory jurisdiction of the courts at once highlights the importance of the clear expression of a question of law, but also the importance of reading notices of appeal fairly so that tribunals subject to such appeals on a question of law remain within the confines of their jurisdiction and act lawfully, and the Court’s supervisory function is preserved.

It is true that many lawyers never master the art of articulating a question of law, so to expect a person who is not legally trained to be able to do so is generally unrealistic. That is why, where a person is unrepresented (or, here, where a company is represented by its controlling mind who is not legally trained), in order to ensure that the interests of the administration of justice are fulfilled, the notice of appeal should be read as a whole, and read fairly.

Recognising minds differ on such matters, in my opinion a requirement that a notice of appeal be read fairly, rather than generously or benevolently, is a preferable approach. It provides more consistency with the role of the Court. It involves neither overzealous scrutiny, nor technicality, nor the imposition of a standard which in the circumstances it would be unreasonable to expect a non-legally trained person to meet. Fairness allows for the reading of a notice of appeal in its context: that is, reading all of the notice rather than simply that nominated as the “question of law”.

25    What emerges from Haritos is that in determining whether a notice of appeal discloses a question of law, a court should focus on substance rather than form. Recognising the particular difficulties faced by self-represented litigants, the task of discerning as a matter of substance whether a notice of appeal discloses a question of law, requires that the whole of the notice of appeal, including the alleged question or questions of law as well as the grounds of appeal specified, be fairly read by reference to the relevant statutory context as well as the reasons of the tribunal whose decision is under challenge.

Mr Ahamed’s Draft Grounds of Appeal

26    Mr Ahamed’s draft grounds of appeal from the decision of the primary judge were set out in a “Notice of Appeal” annexed to Mr Ahamed’s affidavit in support of his application. They are as follows (errors in original):

1.    The learned primary judge erred in law not being able to identify that the appellant had three legal questions before the AAT General Division not two; One being the appellant's debt decision from 5 April 2017 to 16 April 2018, another one being the appellant's single rate of the DSP payment beyond 17 April 2018 and onwards, and the other one being the appellant's rent decision from 16 June 2016 to 4 January 2018.

2.     The learned primary judge erred in fact that the appellant requested the respondent to send letters to his old address.

3.     The learned primary judge erred in law that the respondent sending rent cancellation decision to the appellant's old address on 16 June 2016, and thus a 13 weeks review rule still be applied.

4.     The primary judge erred in law in holding that section 1216 of the Social Security Act 1991 was the correct one when the respondent cancelled the appellant's rent assistance on 15 June 2016. In fact, the correct section of the Act would be 1218, which is no cancellation when a DSP recipient study overseas.

5.     The learned primary judge erred in law by upholding the respondent's notice of objection to competency by way of misunderstanding the appellant's position of the matter, which is the appellant did not bring a new legal issue in fact those were the existing legal issues before the tribunal and on 20 May 2020, the Federal Circuit Court of Australia (FCCA) ordered the AAT General Division to deal with the appellant's three legal issues and the tribunal ignored one legal issue (which is paying single rate of DSP beyond 17 April 2018 and onwards), which prompted the appellant to seek judicial review of that tribunal decision of the matter.

27    Mr Ahamed’s draft grounds of appeal are misconceived. The issue those grounds should have addressed is why Mr Ahamed alleges that the primary judge was wrong to determine that no question of law was disclosed by his Amended Notice of Appeal from the decision of the AAT. Instead of doing that, draft grounds of appeal 1-4 seem to be alleging that the primary judge failed to identify various alleged errors made by the AAT. Draft ground 5 appears from its opening words to be more directed to the primary judge’s upholding of the respondent’s Notice of Objection to Competency. It is difficult to understand what the ground is directed to but clear enough that the ground is not directed to why Mr Ahamed alleges that the primary should have found that his Amended Notice of Appeal from the decision of the AAT disclosed a question of law.

28    At the hearing before me, I explained to Mr Ahamed that it was important to the success of his application that he persuade me that the correctness of the primary judge’s decision that neither Question 1 or 2 identified a question of law, was attended with sufficient doubt to warrant reconsideration on an appeal.

29    By his oral submissions Mr Ahamed then contended that the terms of Question 1 did in substance raise a question of law. He submitted that the primary judge should have appreciated that the reference to “special circumstances” in Question 1 was a reference to s 24 of the Social Security Act 1991 (Cth) (SSA). He also essentially said that it should have been apparent from the terms of Question 1, and in the context provided by the AAT’s decision, that the legal question there raised was the AAT’s failure to consider his claim that he should have received the single rate of the disability support pension during the period April 2017 to 28 April 2019.

30    As for Question 2, Mr Ahamed contended that it should have been apparent to the primary judge that a question of law was there raised that the AAT had misconstrued the SSA because it should have applied s 1218 and not s 1216 of that Act in relation to his claim for rent assistance.

31    Mr Ahamed contended that the primary judge should have but failed to sufficiently consider the context, namely the underlying decisions of the Tribunal in order to identify a question of law in relation to each of Questions 1 and 2. More generally, he also contended that he should not be punished if in fact he had failed to identify before the primary judge an error of law in his Amended Notice of Appeal from the decision of the AAT.

CONSIDERATION

32    In Mr Ahamed’s favour, I will treat the contentions he made, which were better directed to the issue which I need to determine than were his draft grounds of appeal, as though they are Mr Ahamed’s draft grounds. I shall start with Mr Ahamed’s last point just mentioned. It is no part of my function to punish Mr Ahamed. Mr Ahamed is not legally represented and has no doubt tried to do the best he can to properly bring a proceeding in this Court to challenge the AAT’s decision of which he complains. Unfortunately for Mr Ahamed, he seems not to have appreciated that the jurisdiction of this Court is confined and that it is only if an error of law can be demonstrated that relief may be obtained by him in relation to the decision of the AAT. He is not to be punished for that lack of understanding but he must, nevertheless, bear the consequences of it.

33    There can be no doubt that Questions 1 and 2 do not on their face disclose a question of law. All they do is state whether the relief Mr Ahamed sought from the AAT should have been granted by the AAT. They give no hint as to how it is that Mr Ahamed alleges the AAT erred, let alone how the AAT erred in relation to a question of law determined by the AAT in refusing Mr Ahamed the relief he sought. The ground specified by the Amended Notice of Appeal from the decision of the AAT are not informative of any question or error of law. They merely refer to various sections of the SSA and to the “Social Security Policy for Portability”. Why the various provisions and the Policy in question were referred to is not apparent. Read in the context of the decision of the AAT, the purported questions of law and the grounds specified (whether read alone or read in combination), do not disclose what question of law Mr Ahamed sought to allege the AAT had determined which gave rise to an error.

34    I do not agree with Mr Ahamed that the primary judge failed to sufficiently consider the context provided by the underlying decision of the AAT. As is set out above, the primary judge outlined the nature of the proceedings before the AAT and the AAT’s reasons in considerable detail. However, the very general and uninformative nature of the questions and grounds specified by Mr Ahamed’s Amended Notice of Appeal meant that the context provided by the decision of the AAT was not illuminating. The context does little more than enable speculation as to what it was, in terms of legal error, that Mr Ahamed’s Amended Notice of Appeal may have been driving at.

35    It was not for the primary judge to engage in speculation as to what question and thus what error of law Mr Ahamed was trying to raise. The primary judge correctly appreciated that he needed to focus on substance and not form, but his Honour’s focus on substance failed, quite understandably, to detect any question of law.

36    Contrary to Mr Ahamed’s contentions, there is no basis for the primary judge to have determined that Question 1 raised a ‘failure to consider’ legal error. Such a conclusion would have been entirely speculative. Likewise in relation to Question 2, it would have been entirely speculative for the primary judge to have concluded that the question of law there sought to be raised was that the AAT had misconstrued the SSA by applying s 1218 instead of s 1216.

37    The primary judge needed to be satisfied that the Court’s jurisdiction had been properly invoked by the disclosure of a question or questions of law in the Amended Notice of Appeal from the decision of the AAT. There is not sufficient doubt in the correctness of the primary judge’s decision that no question of law was disclosed, to warrant the reconsideration of that decision.

38    Mr Ahamed’s application must therefore be dismissed. Unless extraordinary circumstances exist, the winning party is entitled to have its legal costs paid for by the loser. Mr Ahamed did not demonstrate any reason why that ordinary rule should not be here applied.

39    Accordingly, I will make orders dismissing Mr Ahamed’s application and requiring Mr Ahamed to pay the respondent’s costs of the application.

Associate:

Dated:    12 October 2022