FEDERAL COURT OF AUSTRALIA

Precious Family Day Care Pty Ltd v Secretary, Department of Education [2024] FCA 20

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal from a tribunal filed on 8 March 2023 is dismissed.

2.    The applicant pay the respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an appeal on a question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of the respondent, the Secretary of the Department of Education, under s 194B(6) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (Administration Act): Precious Family Day Care and Secretary, Department of Education [2023] AATA 99.

2    The key issue in dispute before the Tribunal was whether the applicant and its sole director, Ms Muna Abdi, as a person with management or control of the applicant, were fit and proper persons to be involved in the administration of the Child Care Subsidy (CCS) and the Additional Child Care Subsidy (ACCS) for the purpose of the provider eligibility rules (s 194C(b)–‍(d)) and service eligibility rules (s 194D(c) and (d)). Section 194E, in turn, sets out various mandatory considerations to which the Secretary must have regard in determining whether a person is a fit and proper person. The Tribunal concluded that the applicant and Ms Abdi were not fit and proper persons.

3    The Tribunal’s decision is challenged on three grounds, namely that the Tribunal:

(1)    acted in breach of procedural fairness;

(2)    failed to have regard to the fit and proper person considerations in s 194E(1) of the Administration Act; and/or

(3)    misunderstood its task and thereby failed to consider relevant probative material.

4    For the reasons that follow, none of these grounds have been established and the appeal must be dismissed. In addition, I thank the legal representatives of the parties for their assistance, including counsel whose submissions were carefully considered and helpful.

2.    BACKGROUND

5    The applicant, Precious Family Day Care Pty Ltd, is an approved family day care provider under s 48 of the Education and Care Services National Law Act 2010 (Vic). On 19 November 2018, the applicant applied to be an approved child care service provider under the family assistance law. As defined in s 3(1) of the Administration Act, the family assistance law or FAL is comprised of the A New Tax System (Family Assistance) Act 1999 (Cth), the Administration Act, instruments made under those Acts including regulations, and Schedules 5 and 6 to the A New Tax System (Family Assistance and Related Measures) Act 2000 (Cth). The application identified Ms Muna Abdi as the only person with management or control of the applicant. Ms Abdi was the sole director of the applicant.

6    On 1 April 2020, a delegate of the Secretary refused to approve the applicant for the purposes of the family assistance law. The delegate was satisfied that the applicant and Ms Abdi, as the person with management or control of the applicant, were not fit and proper persons to be involved in the administration of CCS and ACCS under s 194C of the Administration Act. This was on the basis of Ms Abdi’s performance in a written assessment on key obligations under the family assistance law including unsatisfactory responses for questions relating to fraud and reporting sessions of care and enrolments, as well as “the lack of detail presented in the applicant’s governance documents”.

7    On 15 April 2020, the applicant sought internal review of the delegate’s decision. On 3 June 2021, an authorised review officer affirmed the delegate’s decision. In summary, the authorised review officer found:

(1)    Ms Abdi was the person with management or control of the applicant.

(2)    Ms Abdi was also a person with management or control of Golden Heart Family Day Care Pty Ltd and, therefore, Golden Heart was a “relevant person” for the purposes of s 194E of the Administration Act. This was because the authorised review officer was satisfied that Ms Abdi was an authorised person for Golden Heart for the purposes of accessing the Child Care Management System (CCMS) and, as a result, was a person who was responsible for the day-‍to-‍day operations of a child care service in respect of Golden Heart.

(3)    On 13 February 2017, Golden Heart was issued a “Notice of Sanction” which found that there had been instances of non-‍compliance between 1 January 2015 to 19 June 2016. The authorised review officer was satisfied that Ms Abdi had sufficient influence over Golden Heart, and was not satisfied that she was not at least aware of the non-‍compliant practices at Golden Heart. The authorised review officer found that this non-‍compliance weighed heavily against finding that Ms Abdi and the applicant were fit and proper persons.

(4)    The applicant’s “inadequate governance documents combined with the [applicant’s] failure to report accurately to ASIC” weighed heavily against a finding that Ms Abdi and the applicant were fit and proper persons.

(5)    Ms Abdi’s performance in the written assessment was concerning. That factor, together with inaccurate and inconsistent information provided in the applicant’s governance documents, “weigh[ed] moderately against a finding that Ms Abdi and the [applicant were] fit and proper persons to be involved in the operation of CCS and ACCS.”

(6)    Ms Abdi and the applicant were not fit and proper persons to be involved in the administration of CCS and ACCS.

8    On 1 July 2021, the applicant applied to the Tribunal for merits review of the authorised review officer’s decision. On 8 February 2023, the Tribunal affirmed the decision under review. The relevant portions of the Tribunal’s reasons are summarised below. However, it is helpful to note at this stage that there were three central issues in relation to whether the applicant and Ms Abdi were fit and proper persons which the Tribunal considered, namely:

(1)    was Golden Heart a “relevant person” for the purposes of s 194E of the Administration Act and what weight, if any, should be given to Golden Heart’s non-‍compliance with the family assistance law;

(2)    what weight, if any, should be given to considerations relating to Little Beginners Family Day Care as a “relevant person”; and

(3)    what weight, if any, should be given to the “governance issues”, being whether the applicant’s governance documents were adequate to ensure compliance with the family assistance law and Ms Abdi’s knowledge of the family assistance law.

3.    RELEVANT LEGISLATIVE SCHEME

9    Section 194A(1) of the Administration Act provides:

Any of the following (a provider):

(a)    an individual

(b)    a body corporate;

(c)    a partnership;

(d)    an entity or body prescribed by the Minister’s rules;

may apply to be approved for the purposes of the family assistance law in respect of one or more child care services that the provider operates or proposes to operate.

(Emphasis in original.)

10    In relation to an application for approval under s 194A(1), s 194B relevantly provides:

(1)    The Secretary may approve a provider for the purposes of the family assistance law if the Secretary is satisfied that:

(a)    the provider satisfies the provider eligibility rules in section 194C; and

(b)    the provider operates, or will operate, at least one child care service that satisfies the service eligibility rules in section 194D.

…

(6)    The Secretary must refuse to approve a provider for the purposes of the family assistance law if the Secretary is not satisfied of one or more of the matters referred to in subsection (1).

11    Section 194C relevantly provides:

A provider satisfies the provider eligibility rules if:

…

(b)    the provider is a fit and proper person to be involved in the administration of CCS and ACCS; and

(c)    any person with management or control of the provider is a fit and proper person to be involved in the administration of CCS and ACCS; and

(d)    any person who will be a person with management or control of the provider on the day the provider’s approval takes effect, or the day the provider’s approval in respect of a child care service takes effect, is a fit and proper person to be involved in the administration of CCS and ACCS; and

…

12    Section 194E provides:

(1)    The Secretary must have regard to the following matters in determining whether a person is a fit and proper person for the purpose of paragraph 194C(b), (c) or (d) or 194D(c) or (d):

(a)    any non‑compliance by a relevant person with a law of the Commonwealth or a State or Territory;

(b)    any proceedings currently before a court or tribunal that involve a relevant person;

(c)    any decision made under a law of the Commonwealth or a State or Territory relating to child care which adversely affects a relevant person;

(d)    subject to Part VIIC of the Crimes Act 1914, any conviction, or finding of guilt, against a relevant person for an offence against a law of the Commonwealth or a State or Territory, including (without limitation) an offence against children, or relating to dishonesty or violence;

(e)    any order for a relevant person to pay a pecuniary penalty for the contravention of a civil penalty provision of a law of the Commonwealth or a State or Territory;

(f)    any act of a relevant person involving fraud or dishonesty;

(g)    the arrangements the person has:

(i)     to ensure the person complies with the family assistance law; and

(ii)    to ensure anyone the person is responsible for managing complies with the family assistance law;

(h)    the record of administering of Commonwealth, State or Territory funds of a relevant person;

(i)    any debts to the Commonwealth incurred by a relevant person (whether or not the debt has been discharged);

(j)    the record of financial management of a relevant person, including any instances of bankruptcy, insolvency or external administration involving the person;

(k)    any other matter prescribed by the Minister’s rules;

(l)    any other matter the Secretary considers relevant.

(2)    For the purposes subsection (1), a relevant person is:

(a)    the person; and

(b)    another person or body in respect of which the person is or has ever been a person with management or control.

(Emphasis in original.)

13    I note that after the authorised review officer’s decision and before the Tribunal’s decision, s 194E(1)(g) was repealed. However, in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250, Kiefel CJ, Keane and Nettle JJ held at [14] that the question for the Tribunal on merits review is whether the decision under review is the correct or preferable decision and in so deciding the Tribunal “is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision” (emphasis added).

14    Thus the parties proceeded on the basis that s 194E(1)(g) was relevant to the proceeding. In those circumstances, I have decided the application by reference to the earlier version of the Administration Act.

15    Section 194F provides:

(1)    A person is a person with management or control of a body, if the person is any of the following:

(a)    a member of the group of persons responsible for the executive decisions of the body;

(b)    a person who has authority or responsibility for, or significant influence over, planning, directing or controlling the activities of the body;

(c)    a person who is responsible for the day‑to‑day operation of the body (whether or not the person is employed by the body);

(d)    a person who is responsible for the day‑to‑day operation of a child care service in respect of which the body is approved or is seeking to be approved (whether or not the person is employed by the body).

(2)    Without limiting paragraph (1)(a), the following persons are taken to be members of the group referred to in that paragraph:

(a)    if the body is a body corporate—an officer of the body corporate (within the meaning of the Corporations Act 2001);

(b)    if the body is a partnership—a partner;

(c)    in any other case—a member of the body’s governing body.

(Emphasis in original.)

4.    DISPOSITION OF THE APPEAL

16    The notice of appeal raises three questions of law:

(1)    Whether the Tribunal denied the applicant procedural fairness and/or constructively failed to exercise jurisdiction by making an adverse finding that Ms Abdi’s “role at Golden Heart should be considered as a moderate factor for refusing [the applicant’s] approval for CCS as she was an integral staff member at the service during its period of significant non-compliance” (at [163]; emphasis added), on the grounds that:

(a)    whether Ms Abdi was an “integral staff member” of Golden Heart and the consequence of such a finding was not in issue before the Tribunal and the applicant was not put on notice or heard on this issue; and

(b)    whether Ms Abdi was an “integral staff member” of Golden Heart did not arise on the Secretary’s case and was not relevant to the question under s 194E(2) for the purposes of considering the matters in s 194E(1) of the Administration Act.

(2)    Whether the Tribunal failed to have regard to and make findings upon the “matters” prescribed by s 194E(1) of the Administration Act in determining whether the applicant (and any person with management or control of the applicant) was a fit and proper person.

(3)    Whether the Tribunal failed to perform and/or misunderstood its statutory task in making findings by reference to factors for or against the applicant being granted provider approval rather than having regard to the specific matters in s 194E(1) for the purposes of the criteria in s 194C of the Administration Act.

17    The notice of appeal is supported by three corresponding grounds of appeal and particulars.

4.1    Ground 1: Whether the Tribunal denied the applicant procedural fairness and/or constructively failed to exercise jurisdiction

4.1.1    Relevant principles

18    The principles with respect to establishing a breach of the rules of procedural fairness or, more accurately, the natural justice hearing rule, are well-‍established. These were summarised in Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10; (2022) 289 FCR 175 at [114]–‍[120] (Perry J with whose reasons Logan and Griffiths JJ agreed at [1] and [2]) as follows:

First, it is trite to say that the Tribunal is bound by the rules of procedural fairness: see by analogy VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 (VAAD) at [38] (the Court) and the authorities referred to therein.

Secondly, [the applicant] bears the onus of establishing the factual foundation for a breach of procedural fairness (eg VAAD at [44]–[45] (the Court)).

Thirdly, as McHugh J observed in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (Ex parte Aala), in order to comply with the requirements of procedural fairness:

101.    … a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless that risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.

(Footnotes omitted.)

See also Ex parte Aala at [78] (Gaudron and Gummow JJ).

Fourthly, as the Full Court held in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 590–1, compliance with this obligation “would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material” (approved in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) at [32] (the Court)). Conversely, the Full Court in Alphaone pointed out that “[w]ithin the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject’s case”: at 591.

Fifthly, the precise content to be given to the obligation to accord procedural fairness and the question of whether it has been breached will depend upon the facts and circumstances of the particular case, including the relevant statutory framework, as opposed to a priori classifications: SZBEL at [26] (the Court). Thus, as Brennan J observed in Kioa v West (1985) 159 CLR 550 at 611–2:

It is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy a condition that the principles of natural justice be observed.

…

The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.

In the sixth place, and as an aspect of the last point, the Tribunal is required to put a party on notice of critical issues on review in circumstances where … the issues were not considered dispositive by the primary decision-maker: see by analogy SZBEL at [35] (the Court); see also Alphaone at 591 (the Court).

Finally, compliance with these requirements requires the provision only of a reasonable opportunity to deal with matters adverse to the person’s interests that the decision-maker proposes to take into account: eg Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966 at [123] (McHugh J); and Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ).

19    In addition and relevantly (as I shortly explain), while the Tribunal on merits review may deny a party a fair opportunity to be heard by failing to alert the party of an important issue which goes beyond those raised by the parties, the primary decision-maker or the Tribunal itself, procedural fairness does not generally require the decision-maker to disclose her or his thought processes or evaluation of the evidence. As the Full Court held in SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145; (2018) 266 FCR 105 at [38]:

Procedural fairness does not require the decision maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision, and generally does not require a decision maker to invite comment on the evaluation of the subject’s case: [citing Alphaone at 590–591].

(Approved for example, in National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415 at [68] (the Court).)

4.1.2    The applicant’s submissions on procedural fairness

20    The applicant framed this ground in terms of both a denial of procedural fairness and a constructive failure to exercise jurisdiction in light of the judgments in National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415 at [66]–‍[69] and National Disability Insurance Agency v Davis [2022] FCA 1002 at [174] (Mortimer J (as her Honour then was)). For simplicity, this ground will be referred to in terms of whether there was a denial of procedural fairness as the substance of the ground alleged is the same, notwithstanding the different characterisations of the ground.

21    The Tribunal at [162]–‍[163] found that:

Based upon the evidence, the Tribunal is unable to determine whether Ms Abdi was an authorised person at Golden Heart. Based upon the conflicting evidence and lack of sound data, the Tribunal cannot make a finding that she was a person with management or control of the service.

However, the Tribunal does find that Ms Abdi’s role at Golden Heart should be considered as a moderate factor for refusing [the applicant’s] approval for CCS as she was an integral staff member at the service during its period of significant non-compliance.

(Emphasis added.)

22    In summary, the applicant submits that the Tribunal denied it procedural fairness in finding that Ms Abdi was an “integral staff member” of Golden Heart, and that this finding could be a “moderate factor” adverse to the applicant. This was because the finding was:

(1)    not a matter raised in the delegate or authorised review officer’s decisions;

(2)    was not put to any of the applicant’s witnesses at the hearing;

(3)    departed from the way the parties put their respective cases and submissions on the Golden Heart issue; and

(4)    was not grounded in any discernible part of the statute.

23    As a consequence, the applicant submits that it did not have an opportunity to make submissions and present further evidence on this issue, despite it being taken into account by the Tribunal against the applicant.

24    The applicant submits that this error was material for two reasons:

(1)    before any adverse findings, the applicant was entitled to have its fitness and propriety weighed properly by the Tribunal considering all the relevant matters mandated by the statute; and

(2)    it cannot be said that there is no “possibility” of a different outcome as required by the authorities.

25    In support of the second proposition, the applicant relies on Davis at [190] (Mortimer J); Klewer v National Disability Insurance Agency [2023] FCA 630 at [112] (Raper J); Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 at [33] (Kiefel CJ, Keane and Gleeson JJ), [47] (Gageler J). In the applicant’s submission, an opportunity to make submissions to contradict the purported association based on “integral” involvement in the tainted entity could have made a difference to the outcome and the ultimate finding about fitness and propriety.

4.1.3    No breach of procedural fairness has been established

26    The applicant does not submit that the Tribunal took into account a mandatory irrelevant consideration in taking into account that Ms Abdi was an “integral staff member” of Golden Heart. Nor, absent legal unreasonableness, would such a submission be tenable as s 194E(1)(l) provides that the Tribunal must have regard to “any other matter the [Tribunal standing in the shoes of the Secretary] considers relevant” in determining whether a person is a fit and proper person. The issue raised by ground 1 is solely whether the Tribunal was required to put the applicant on notice of this issue and afford it an opportunity to be heard on the issue. For the following reasons and in all of the circumstances, I accept the Secretary’s submissions that there was no such obligation on the Tribunal. In order to explain my finding in this regard, it is necessary to begin with a consideration of the relevant circumstances including, in particular, the matters put in issue by the parties before the authorised review officer and the Tribunal, and the nature of the issue itself.

27    First, I accept that the authorised review officer and the parties framed the issue of Ms Abdi’s involvement with Golden Heart by reference to whether Ms Abdi was an “authorised person”. I have summarised the authorised review officer’s findings above at [7].

28    The Secretary’s Statement of Facts, Issues and Contentions (SFIC) before the Tribunal also framed the issue in terms of whether Ms Abdi was an authorised person of Golden Heart, with reference to specific pieces of evidence. Further, under the heading “Paragraph 194E(1)(l) – any other matter the Secretary considers relevant”, the Secretary did “not contend that any further matters [were] relevant” aside from those otherwise raised by the Secretary in the SFIC.

29    Moreover, in oral submissions to the Tribunal, both parties proceeded on the basis that the Golden Heart issue fell to be determined by reference to whether Ms Abdi was an authorised person. The applicant’s representative contended that “if the respondent can’t get a favourable finding of fact on that issue, then that issue falls away”. Likewise, the Secretary’s representative accepted “[a]s my learned friend has pointed out, if you’re not with the Secretary on that, then that issue does fall away”.

30    It was therefore common ground on this appeal that the focus of the parties before the Tribunal was on whether Ms Abdi was a person with management or control of Golden Heart on the basis that she was an authorised person for the purpose of submitting certain reports in the CCMS.

31    Secondly, I accept the Secretary’s submission that the question of whether Ms Abdi was a person with management or control of Golden Heart, by its nature, was a question about what Ms Abdi’s role was at Golden Heart and how that role should be characterised.

32    In this regard, there was evidence before the Tribunal which went to the broader issue of Ms Abdi’s role at Golden Heart. The Tribunal sets out the following affidavit evidence which related to the applicant’s role at Golden Heart:

30.    Ms Abdi’s affidavit of 7 June 2022 affirms:

…

114. As outlined above at Paragraph 25, my duties and responsibilities whilst employed as an administration officer at Golden Heart were purely administrative in nature.

115. At no time was I involved in any decisions made by the service, including issues such as who was to visit and monitor each educator, who was employed, the educators that were engaged, the reporting of care and attendance records to the Respondent, or the cancellation of educator’s contract with the service.

116. I did not have any say or involvement in the making of executive decisions.

117. I did not hold any authority, responsibility, or significant influence over the planning, directing or controlling of the activities of the service.

118. I was not responsible for the day to day operation of the service, and did not have any insight in to the day to day operation, other than what I was required to do in respect to data entry of new enrolment details and the other duties

119. I worked under direction and supervision at all times, save for where I performed general office duties such as tidying up papers and scanning and photocopying documents.

120. When the Department contacted Golden Heart by telephone, which I recall happening on several occasions, the Department would request to speak with the Approved Provider or Nominated Supervisor. I would not speak with them and would pass the phone to the Nominated Supervisor or one of the directors if they were available.

121. When the Department attended the office of Golden Heart, I would greet the Department Officers and get the Nominated Supervisor or one of the Directors to attend to speak with the Department Officers. The Department Officers would sit and wait for the Approved Provider or Nominated Supervisor to arrive. I would not speak to them further than greeting them.

122. In my opinion, I was not a person with management and control of Golden Heart.

…

31.    Mr Ali Elmi’s affidavit of 7 June 2022 states:

I was a director of Golden Heart …between around 2009 and 2019.

…

During the course of Muna’s employment, she retained the role of Administrative Officer at all times.

During the course of Muna’s employment, and in her role as an Administrative Officer, her duties and responsibilities included:

a).     Carrying out general administrative duties including organising documents in physical paper files and in digital folders;

b).     Enrolling children and educators and archiving them when necessary;

c).     Answering the phone and taking front desk enquiries; and

d).     Sourcing materials and information, scanning, photocopying and printing

Muna’s role did not involve accessing CCMS for the purposes of submitting care session report.

During the course of Muna’s employment, at no time was Muna responsible for:

a).     making business decisions of Golden Heart;

b).     planning, directing or controlling the activities of Golden Heart; or

c).     the day-to-day operations of Golden Heart or Golden Heart FDC.

32.    Ms Kadra Elmi’s affidavit of 8 June 2022 states:

I was previously a director of Golden Heart Family Day Care…

Muna’s role was employed to perform a purely administrative role. During the course of her employment, Muna’s role included:

a).     performing general administrative tasks such as filing and management of paper and digital files;

b).    entering details of new child enrolments into Golden Heart’s CCMS and archiving them when necessary; and

c).     working in the office and answering the phone and take inquiries.

Muna’s role did not involve taking payments or undertaking any activities relating to reporting sessions of care.

At no time during the course of her employment was Muna responsible for:

a).     making business decisions of Golden Heart;

b).     planning, directing or controlling the activities of Golden Heart; or

c).     the day-to-day operations of Golden Heart or Golden Heart FDC.

…

33    The Tribunal also set out at some length, extracts from Ms Abdi’s oral evidence at [158](a) when making findings on the Golden Heart issue:

So it’s correct that you submitted enrolment notices and updated educator records in CCMS? Yes.

Okay. Now, in addition to doing those things in CCMS, were there other tasks that you did in CCMS? No

So is your evidence that you only accessed areas of CCMS in relation to child enrolments? Yes.

Okay, so the ? Not just not just child enrolments

Okay? But educator, you know, if there’s an educator that’s leaving, I’ll cease her. So child enrolments, and like, updating an educator if she moves houses, I would update her, you know, new address. And enrolments in respect to, you know, when when the parent does their, you know, their orientation with Kadra, she would bring me the forms and say, “Can you put that in the system?”, and I would do that. But it’s nothing yes, it’s nothing that I could, you know yes, I think that’s it.

[M]s Abdi, I put to you that this spreadsheet records that you submitted 2905 session of care reports in your capacity as an authorised person while you were working for Golden Heart. Do you accept that? No.

How do you explain the use of your name as the authorised person for the submission of those reports? I have no explanation. The that wasn’t in my scope, to be entering time sheets, attendance records. So yes.

Did you provide your credentials to log into the system to other persons? My credentials were it like, we didn’t have passwords. So especially before Harmony Web Online, you would be logged in a computer, and yes, I’ve seen people use, and I’ve I have seen people use the login details of each other, and it wasn’t something like, this is my username, or this is yours, you keep it. It was just MA. And you enter into the system, you go lunchbreak, someone else is sitting there using it. In my understanding at the time, I what I understood was, “This is your scope. This is what you can do.” Even if it’s your, you know, login details, you can’t get out of your scope. So yes, that’s my explanation.

So did you use other people’s login details? Yes, if it’s logged in, I’m not going to just sign out. If I need to get a, you know, a phone number of an educator, I’d look, but I didn’t I never submitted attendance records for the company.

Who was responsible for submitting attendance records at the company? The nominated supervisor and the directors of the company.

And by supervisor, that’s a reference to Jessica Dunbar? Jessica and Ali and Kadra. The authorised person here, that doesn’t mean it’s the person that submitted it. Harmony right now, for me, Harmony right now, if I log in and I want to submit, it will come up with Kin and it will come up with, you know, other users, but that doesn’t mean the person that submitted those timesheets is that person. It doesn’t show the login details. This is Muna Abdi, my credentials was MA, you know what I mean? So over here it has my full name, so it must have been I believe that it was something where someone clicked into. When you’re submitting the attendance like, Harmony, when you’re submitting the attendance records, you choose Kadra, Jessica, whoever, and you click one and it will submit.

So why would somebody submit your name as being the authorised person if that was not part of your role? I’m not sure. I’m that’s something I don’t understand till today.

I put to you that it’s not a plausible explanation for why this records your name as the authorised person. What do you say about that? I didn’t submit these attendance records. That’s what I have to say. And who did, that’s not something I can answer

MR GALVIN: So you had access, as an authorised person, to other reports and functions in Harmony, other than just the enrolment details for children and for the educator details. Is that what you’re saying? When I see this now, I can see that I had more functionalities, but my scope and my job only consisted of admin. Here are the enrolment forms, put them in for the (indistinct). That’s all I did in that company, and that’s all I did until I finished working there.

34    Thirdly, the Secretary correctly submits that the findings of the Tribunal were a middle-‍point between both parties’ submissions.

35    The applicant submitted to the Tribunal that if it accepted the Secretary’s submission, the decision would create a problematic precedent in that a person with a limited, administrative role is a person with management or control of an entity where they are identified in a system, whether or not with their knowledge or consent. The Secretary submitted that this was not the case because Ms Abdi’s role, as a person who had consistently submitted sessions of care reports over a long period of time, distinguished her from other administrative staff engaged by family day care services. However, the Tribunal was “not completely persuaded” by that assurance: at [155]. Nor was the Tribunal persuaded that the evidence established the finding by the authorised review officer that Ms Abdi was a person with management or control for the purposes of s 194F(1)(c): at [156]. Rather, the Tribunal found that “the inconsistencies and inaccuracies in Golden Heart’s data made reliance upon it as evidentiary proof that Ms Abdi was a person responsible for the day-to-day operation of the service too high a bar for the Tribunal”: at [157]. That notwithstanding, the Tribunal found that it “was completely underwhelmed by the evidence of Ms Abdi, and Ms and Mr Elmi and is not persuaded that their evidence demonstrated that Ms Abdi was not a person responsible for the day-to-day operations of Golden Heart”: at [158].

36    The Secretary submitted to the Tribunal that Ms Abdi “submitted session of care reports and enrolment notices and updated session of care reports over a considerable period of time”. The Secretary also submitted that entering these records for the Department was “critical to the day to day operations of the child care service”. The Tribunal, however, found that Ms Abdi’s evidence was “slightly confused” on this issue: while she conceded in oral evidence that “she did enter various records onto the CCMS system whilst employed at Golden Heart”, she was also “adamant that she was not an authorised person”: at [161].

37    It is in this context that the Tribunal found at [162]–‍[163]:

Based upon the evidence, the Tribunal is unable to determine whether Ms Abdi was an authorised person at Golden Heart. Based upon the conflicting evidence and lack of sound data, the Tribunal cannot make a finding that she was a person with management or control of the service.

However, [t]he Tribunal does find that Ms Abdi’s role at Golden Heart should be considered as a moderate factor for refusing Precious FDC’s approval for CCS as she was an integral staff member at the service during its period of significant non-compliance.

38    Subject to the question of procedural fairness, these findings were plainly open to the Tribunal on the evidence before it. It has been long recognised that fact finding is a task for the Tribunal and credibility findings are a function “par excellence” of the Tribunal: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] (McHugh J); Osland v Secretary to the Dept of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 at [19] (French CJ, Gummow and Bell JJ). Indeed, the applicant has not sought to submit that the Tribunal’s findings were unsupported by evidence or unreasonable.

39    Fourthly, in line with the principles to which I have earlier referred, the question is relevantly whether the applicant was fairly on notice of matters adverse to its interests that the Tribunal proposed to take into account: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [32] quoting Alphaone at 590–‍591. However, the Tribunal was not required to put the parties on notice of an issue which was obvious and arose on a natural evaluation of the materials before the Tribunal: WRMF at [69]. Nor was the Tribunal required to give the applicant “a running commentary upon what it thinks about the evidence that it given”: SZBEL at [48]; see also SZLPH (quoted above at [19]).

40    While the parties submitted that the Golden Heart issue was solely determined by the question of whether Ms Abdi was a person with management or control of Golden Heart, the nature and importance of Ms Abdi’s role at Golden Heart was in issue on the material before the Tribunal. I do not consider that characterising Ms Abdi’s role at Golden Heart as “integral” raised a new issue in respect of which notice should have been given in order to comply with the natural justice hearing rule. Rather, the Tribunal simply did not accept that the evidence supported either parties’ submissions as to the nature and extent of Ms Abdi’s role at Golden Heart. In effect, the Tribunal found in the applicant’s favour insofar as it rejected the Secretary’s submission that the evidence was sufficient to establish that Ms Abdi was a person with management or control of Golden Heart during its period of non-compliance, even though it was not satisfied that Ms Abdi’s role was as confined as the applicant submitted. The truth, so to speak, of Ms Abdi’s role lay, in the Tribunal’s assessment, somewhere in the middle between these two ends of the spectrum. It was this consideration which underpinned the Tribunal’s finding to give lesser, but nonetheless moderate, weight to Ms Abdi’s role at Golden Heart than if she had been an authorised person, as a factor for refusing the applicant’s approval to be involved in the administration of CCS and ACCS. These findings were open on the “natural evaluation” of the material before the Tribunal. No further invitation to comment was therefore required. To require otherwise would be to require the Tribunal to invite comment on its evaluative thought processes by way of a running commentary. It follows in my view that there was no denial of procedural fairness.

4.1.4    In any event, any breach of procedural fairness was not material

41    In any event, even if there was a failure in the respect alleged to comply with the natural justice hearing rule, in my view the error was not material.

42    A legal error by an administrative decision-maker will generally not sound in jurisdictional error if the error was not material to the ultimate conclusion: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]–‍[30] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2018) 273 CLR 506. However, while the burden of establishing that a breach of procedural fairness is material falls upon the applicant, the standard by which the materiality of a breach is assessed is not high. Thus, in Nathanson, Kiefel CJ, Keane and Gleeson JJ at [32]–‍[33] held:

As explained in MZAPC, the materiality of a breach requires consideration of “the basal factual question of how the decision that was in fact made was in fact made”. This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”. The burden falls on the plaintiff to prove “on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition”.

There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.

(Citations omitted; emphasis added.)

43    In assessing the question of materiality in Nathanson, Kiefel CJ, Keane and Gleeson JJ considered that it was “necessary to consider how the Tribunal’s decision was in fact made” and how the provision of additional evidence or submissions could have “affected the Tribunal’s evaluative fact finding”: at [39].

44    Two factors in my view cumulatively make it clear that any breach of procedural fairness was not material.

45    First, the applicant contended before the Tribunal that Golden Heart’s non-‍compliance was not relevant to the Tribunal’s assessment because Golden Heart was not a “relevant person” and therefore Golden Heart’s non-compliance should be given no weight. The applicant submitted that if it had been afforded an opportunity to respond to the Tribunal’s proposed finding that Ms Abdi was an “integral” staff members at Golden Heart, it would have led further evidence to rebut that. Importantly however, the applicant did not submit if it had been afforded such an opportunity, it would have submitted that her limited role at Golden Heart should somehow weigh in favour of finding that Ms Abdi and the applicant were fit and proper persons. To the contrary, if afforded the opportunity to comment, the most favourable finding for which the applicant might have contended before the Tribunal would have risen no higher that denying that the evidence was sufficient to establish that Ms Abdi was an “integral” staff member of Golden Heart and therefore contending that no weight be given to the Golden Heart issue in its entirety. In other words, it could have contended (as in fact it did in any event) that Ms Abdi’s role at Golden Heart during the period of non-compliance was a neutral factor.

46    Secondly, as the Secretary submitted, the Tribunal’s findings in relation to the governance issues constitute an independent and sufficient basis for the Tribunal’s decision that Ms Abdi and the applicant were not fit and proper persons. As a consequence, any failure to comply with the natural justice hearing rule with respect to the Golden Heart issue was not material to the Tribunal’s decision: see e.g. Hossain at [41] (Nettle J). In some cases, as in Hossain, a decision may be valid despite error in the application of one statutory criterion because of findings lawfully made with respect to other essential statutory criteria. However, that is not the only circumstance in which an independent basis may exist which is sufficient to sustain an administrative decision, notwithstanding that one aspect of that decision is tainted by error. Each case will turn upon its own facts. Applying Nathanson, the question remains whether the applicant has proved on the balance of probabilities, the historical facts necessary to establish a realistic possibility that a different decision could have been made absent the legal error.

47    The Tribunal in this matter found that the FAL requires Ms Abdi to be conversant with the complexities of multiple state and federal legislative requirements including with respect to the accurate administration of Commonwealth funds: at [167]–‍[168]. Thus, in order to determine whether the applicant (as a new service seeking registration) has the capacity to comply with these complex obligations, the Tribunal considered that the applicant must demonstrate that it understands the compliance management systems, processes and procedures required to receive and administer Commonwealth payments on behalf of individuals eligible for child care fee assistance having regard among other things to the applicant’s policy documents and procedures and Ms Abdi’s demonstrated knowledge in the written assessment: at [170]. However, after referring to the applicant’s aide-memoire, the Tribunal found at [177] that:

this documentation exemplifies the lack of clarity and understanding by Precious FDC of its obligations in administering the FAL. The Tribunal found these documents difficult to navigate and interpret. These policies and procedures were contradictory, and this was compounded by Ms Abdi’s contradictory evidence to the Tribunal. The Tribunal could not find one clear concise document to assist staff, educators and parents to comprehend their requirements under the FAL. The Tribunal finds this lack of clarity and understanding is sufficient enough to warrant the refusal of Precious FDC’s CCS approval, as it is this very lack of guidance to staff, educators and parents that leads to human error and fraudulent activity resulting in overpayments and subsequent debts to the Commonwealth.

(Emphasis added.)

48    In other words, the Tribunal found that the lack of clarity and understanding by the applicant of its obligations in administering the FAL alone was fatal to the applicant’s application for approval, even though it did not limit its consideration of whether the applicant and Ms Abdi were fit and proper persons to that factor. This is plain from the Tribunal’s description of its finding as “sufficient enough” to warrant refusal of the approval.

49    In this regard, the applicant sought to rely upon the Tribunal’s statement at [182] that the inadequacies in the applicant’s governance arrangements “weighs heavily against a finding that Ms Abdi and [the applicant] are fit and proper persons” at [182] to suggest that [177] should not be read as suggesting that these inadequacies were determinative. I do not agree. Ultimately, the reasons of Tribunal must be read fairly and not “minutely and finely”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272; (Brennan CJ, Toohey, McHugh and Gummow JJ, quoting with approval Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287). So read, in my view nothing in the Tribunal’s findings at [182] should be read as effectively “watering down” its findings at [177]. To the contrary at [182], the Tribunal also found that “governance arrangements are of vital significance in determining whether a provider is a fit and proper person” (emphasis added). Furthermore, a matter which is given determinative weight would clearly weigh heavily in favour of the conclusion reached by the Tribunal. Thus, read together, [177] and [182] make it clear in my view that the Tribunal attributed determinative weight to the governance issues.

50    In these circumstances, even if the applicant had been afforded procedural fairness and persuaded the Tribunal to give neutral weight to the Golden Heart issue, I consider that there was no realistic possibility that this would have led to a different outcome. As such, any such error would not be jurisdictional.

4.2    Ground 2: Whether the Tribunal failed to make findings about relevant “matters” required by s 194E

4.2.1    The applicant’s submissions on whether there was a failure to make findings

51    The applicant submits that the Tribunal failed to “have regard to” or “consider” the prescribed matters in s 194E(1). The Tribunal’s consideration was limited to, in substance, three issues concerning Golden Heart, Little Beginnings and the governance issues. In this way, the applicant contends that the Tribunal failed to have regard to each matter required to be considered under s 194E(1), as well as “the overall balance of circumstances”: see Li v Minister for Immigration and Citizenship [2008] FCA 902; 102 ALD 354 at [24] (Jessup J).

52    The applicant submits that as the Tribunal’s reasons do not address each of the matters in s 194E(1) seriatum, the Court should infer that “the Tribunal member made no such finding as part of his or her mental process when making the decision” and therefore, “the Tribunal will not have complied with its obligation… to ‘consider’ all of the circumstances”: He v Minister of Immigration and Border Protection [2017] FCAFC 206; 255 FCR 41 at [76].

53    The applicant submits that, while a different statutory scheme was considered in Li and He, those cases are not relevantly distinguishable. The applicant submits that the Secretary’s submission that many of the factors in s 194E may, by their nature, be simply inapplicable in a particular case and that no express finding is needed in those circumstances should be rejected. In He, the Full Court stated that “the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter … However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter”: at [76].

4.2.2    No failure to have regard to the relevant considerations in s 194E has been established

54    I accept the Secretary’s submission that ground two should be dismissed for the following reasons.

55    First, both Li and He concerned whether a person was a “spouse” within the meaning of reg 1.15A of the Migration Regulations 1994 (Cth). The Full Court in He at [73]–‍[75] explained with respect to reg 1.15A that:

Regulation 1.15A(3) itself identifies circumstances of the relationship that the Tribunal must consider. It is prescriptive. It deems each of the prescribed circumstances, or matters, to be relevant to the question of whether there is a married relationship. The Tribunal must at least apply an active intellectual process and give proper, genuine and realistic consideration to each of the prescribed circumstances.

… the structure of reg 1.15A(3) commences with four principal matters (the principal matters) set out in paragraphs (a) to (d) that must be considered, namely:

(a)    the financial aspects of the relationship;

(b)    the nature of the household;

(c)    the social aspects of the relationship; and

(d)    the nature of the persons’ commitment to each other.

There are then set out a series of specific matters (numbered with Roman numerals) relevant to the principal matters. So, for example, when considering “(b) the nature of the household”, the Tribunal is expressly required to consider:

(i)    any joint responsibility for the care and support of children;

(ii)    the living arrangements of the persons; and

(iii)    any sharing of the responsibility for housework.

56    In He, the appellants submitted that the Tribunal had failed to determine, or reach a conclusion, about some of the matters set out in reg 1.15A(3). The Full Court held at [52] that each of the matters set out in reg 1.15A(3) were relevant considerations which the decision-maker was bound to consider in the sense of “actively think[ing] about each such matter”. An intention to this effect is generally apparent from the use of the expressions such as “have regard to” and “take into account”, with such terms “usually be[ing] regarded as synonyms for ‘consider’”: at [53]. Importantly, however, at [70] the Full Court held that “[t]he content of a requirement to ‘consider’ relevant matters must depend on the particular statutory context.”

57    As a matter of construction, the Court held that the obligation to consider the circumstances in reg 1.15A required the Tribunal to make findings on each of prescribed matters numbered with Roman numerals, holding at [76]:

The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:

(i)    whether there are children and whether there is any joint responsibility for their care and support;

(ii)    what the living arrangements of the persons are; and

(iii)    whether and to what extent there is sharing of the responsibility for housework.

The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal’s answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.

58    Similarly, while expressed more broadly, the Court held that the requirement to consider meant that the decision-maker had to make findings also on the principal matters in paras (a) to (d) of reg 1.15A, while also accepting that “[i]n many cases, the requirement to make findings upon the principal matters may be satisfied by the course of making findings upon the specific matters”: at [77]. By way of example, the Court explained that “the Tribunal may make a finding that the nature of the household is one where the parties have no children, they live together and they share responsibility for housework equally”: ibid.

59    As s 194E(1) of the Administration Act also requires that the Secretary “must have regard to the following matters in determining whether a person is a fit and proper person”, it is apparent that each of those matters are mandatory relevant considerations (emphasis added). Therefore, as in He, I consider that here it is equally incumbent on the Secretary (and the Tribunal standing in the shoes of the Secretary) to consider each of the matters in s 194E(1) of the Administration Act.

60    Second, there is a difference between an obligation to make findings about prescribed matters and an obligation to provide written reasons. Section 43(2) of the AAT Act, pursuant to which the Tribunal in the present proceeding provided reasons, imposed an obligation on the Tribunal to give (relevantly) written reasons for its decision. Subsection (2B) specified that where written reasons are given by the Tribunal, “those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.”

61    This distinction was expressly recognised by the Full Court in He, being the obligation to make a finding, on the one hand, and the question of what inferences might be drawn if a finding on a mandatory relevant consideration is not expressly made in written reasons, on the other hand. Thus, the Full Court held in He at [79] that:

It must be emphasised that there is a distinction between the making of a decision by the Tribunal and the written statement it must give under s 368 of the Act: see Yusuf at [30]; Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [19], approved in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 at [11], [55], [101]; Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 at [40]. The making of a decision involves a mental process. The written statement functions as a record of the Tribunal’s reasons for making its decision. Those reasons provide evidence of the mental process engaged in by the Tribunal. If the written statement does not set out a finding concerning any of the prescribed matters set out in reg 1.15A(3) in Roman numerals, it may (but will not necessarily) lead to an inference that the Tribunal member made no such finding as part of his or her mental process when making the decision. In such a case, the Tribunal will not have complied with its obligation under reg 1.15A(2) to “consider” all of the circumstances of the relationship, including all the matters set out in reg 1.15A(3).

(Emphasis added.)

62    In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, to which the Court in He referred, the High Court considered the purpose served by the obligation to give reasons under s 430 of the Migration Act 1958 (Cth) and what inferences may be drawn with respect to any matter not mentioned in the reasons. Specifically, McHugh, Gummow and Hayne JJ held at [69] that:

Understanding s430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt8 of the Act, or by this Court in proceedings brought under s75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

See also [5] (Gleeson CJ), [35] (Gaudron J), and [217] (Callinan J).

63    These principles have also been applied with respect to s 43(2B) of the AAT Act pursuant to which the Tribunal gave written reasons in this case. Thus, in V324 v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8], Hill J and Allsop J (as his Honour then was) observed that:

The terms of the provision are clear. It is necessary for the Tribunal to record its findings of the facts that it considers to be material. That proposition was also made plain by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 in considering the similarly worded s 430 of the Migration Act. There are differences between s 430 and s 43(2B), but these differences only reinforce the proposition that s 43(2B) only requires that it is the findings of fact which, in the opinion of the Tribunal, are material that need to be set out in the reasons. Merely because the Court is of the view that the matter should have been approached in a different way or that important factual questions have not been addressed does not lead to the conclusion that there has been a failure to comply with s 43(2B). Nevertheless, as was pointed out in Yusuf at [31], [74], [75] and [82], the absence of findings by the Tribunal on certain matters or the nature of the findings actually made may disclose that the Tribunal has failed to attend to the task given to it by the statute. The findings, including the absence of findings, may, in that way, disclose jurisdictional error.

64    Accordingly, the Secretary correctly submits that, while the Tribunal is required to have regard to each of the matters in s 194E, the Tribunal is not required to mechanically set out express findings on each prescribed matter.

65    Third, on the balance of probabilities, I consider that the Tribunal correctly had regard to the matters prescribed by s 194E(1) of the Administration Act.

66    In summary, the parties’ submissions as ultimately pressed before the Tribunal in respect of each of the s 194E(1) prescribed matters were as follows:

(a)    any non-compliance by a relevant person by a relevant person with a law of the Commonwealth, State or a Territory (s 194E(1)(a)): the Secretary submitted that the Golden Heart issue was relevant to this consideration; the parties both made submissions in respect of Little Beginners and this consideration;

(b)    any proceedings currently before a court or tribunal that involve a relevant person (s 194E(1)(b)): neither party submitted that this consideration was relevant;

(c)    any decision relating to child care which adversely affects a relevant person (s 194E(1)(c)): the Secretary submitted that the Golden Heart issue was relevant to this consideration; the Secretary submitted that a previous refusal of service approval of the applicant on 6 February 2018 was relevant to this consideration;

(d)    any conviction or finding of guilt against a relevant person for an offence against children or relating to dishonesty or violence (s 194E(1)(d)): neither party submitted that this consideration was relevant;

(e)    any order for a relevant person to pay a pecuniary penalty (s 194E(1)(e)): neither party submitted that this consideration was relevant;

(f)    any act of a relevant person involving fraud or dishonesty (s 194E(1)(f)): neither party submitted that this consideration was relevant;

(g)    the arrangements the person has to ensure compliance with the family assistance law (s 194E(1)(g)): the Secretary submitted that the governance issues related to this consideration;

(h)    the record of administering funds of a relevant person (s 194E(1)(h)): the Secretary submitted that the Golden Heart issue was relevant to this consideration; the applicant submitted that Little Beginners record of administering funds was relevant to this consideration;

(i)    any debts to the Commonwealth incurred by a relevant person (s 194E(1)(i)): the Secretary submitted that the Golden Heart issue was relevant to this consideration; the applicant submitted that the fact that Little Beginners did not have any debts to the Commonwealth was relevant to this consideration;

(j)    the record of financial management of a relevant person (s 194E(1)(j)): the Secretary submitted that the Golden Heart issue was relevant to this consideration; the applicant submitted that Little Beginners’ record of financial management was relevant to this consideration;

(k)    any other matter prescribed by the Minister’s rules (s 194E(1)(k)): the Secretary submitted that Ms Abdi’s written assessment results were relevant to this consideration;

(l)    any other matter the Secretary considers relevant (s 194E(1)(l)): the applicant submitted that Ms Abdi’s motivation to provide child care services in Epping due to the need for such services in that area was relevant to this consideration.

67    The Tribunal set out s 194E of the Administration Act at [24] and included a summary of the parties’ submissions with reference to the s 194E matters: at [71], [119]–‍[142].

68    Against that context, in my view it is apparent that ground two has not been established.

69    First, given the statutory obligations as to the content of written reasons, there was no requirement for the Tribunal to structure its reasons in a manner that formulaically addressed each of the relevant matters: He at [79]. No adverse inference, in other words, can be drawn from the failure by the Tribunal to do so.

70    Secondly, in relation to the failure specifically to make findings with respect to the matters in ss 194E(1)(b), (d) and (e), the inference to be drawn is that the Tribunal did not consider that they were material in circumstances where no party made any submissions that they were relevant. Similarly, where no submissions were made in respect of a particular “relevant person” and a prescribed matter, I infer that the Tribunal did not make an express finding about them because the Tribunal did not consider them material. These inferences are more readily drawn in circumstances where both parties were represented before the Tribunal, and the parties made detailed written and oral submissions.

71    In drawing this inference, I have also taken into account that the Tribunal may reasonably consider that an absence of evidence, for example, of any non-compliance with the law or of any convictions render the matters prescribed by s 194E(1)(a) and (d) neutral and therefore not a material consideration. By contrast, the same could not necessarily be said, for example, with respect to the considerations prescribed by reg 1.15A of the Migration Regulations 1994 (Cth) considered in He in the context of deciding whether individuals were in a married relationship. In the context of an evaluative decision of that nature, the answer to the question of whether, for example, the individuals concerned shared parenting and housework responsibilities may well be relevant irrespective of whether the answer is negative, positive, or the evidence does not permit a finding either way.

72    Thirdly, in relation to s 194E(1)(f), despite no submission having been made by the parties, the Tribunal found that there was “no evidence that Ms Abdi had been involved in any fraudulent activity or mismanagement in her role as a director of Little Beginners”: at [181]. As such, the Tribunal expressly addressed that prescribed matter in relation to Ms Abdi and Little Beginners as relevant persons.

73    Fourthly, in relation to the Golden Heart issue and ss 194E(1)(a), (c), (h), (i) and (j), the applicability of these prescribed matters was contingent on the Tribunal accepting that Ms Abdi was a person with management or control of Golden Heart and, therefore, that Golden Heart was a “relevant person” for the purposes of s 194E. In circumstances where the Tribunal rejected that factual premise, the Tribunal was not required to go further and expressly attribute no weight to each prescribed matters in relation to Golden Heart: see by analogy He at [86].

74    I will address each of the remaining issues by reference to the “relevant person”.

75    First, in relation to s 194E(1)(c), the Secretary contended before the Tribunal that a previous refusal of service approval of the applicant should weigh heavily against a finding that the applicant is a fit and proper person. The Tribunal did not make a finding in respect of this matter. This was a potential error by the Tribunal. However, applying the principles to which I referred in the context of ground 1 at [42] above, any such error was not material because any finding would have been either adverse or alternatively neutral to the applicant. It follows that, even if the Tribunal had expressly made a finding with respect to this consideration, it would not have changed the outcome that the applicant was not a fit and proper person.

76    Secondly, s 194E(1)(g) concerns the arrangements a person has in place to ensure compliance with the family assistance law. In my view, the Tribunal considered this issue in substance at [167]–‍[177] in relation to the governance issues. The Tribunal found that the applicant’s policy documents and procedures evidenced a lack of clarity and understanding of the obligations in administering the family assistance law and that this consideration was “sufficient enough to warrant the refusal of [the applicant’s] CCS approval”: at [177]. It follows that the Tribunal made a finding in respect of this prescribed matter.

77    Thirdly, s 194E(1)(k) concerns “any other matter prescribed by the Minister’s rules”. Section 46(3) of the Minister’s Rules required the Secretary (and the Tribunal on review) to have regard to the understanding that can be demonstrated by the applicant or Ms Abdi (as a person with management or control of the applicant) of the obligations that would apply under the family assistance law, and their level of commitment to complying with those obligations. The Secretary submitted to the Tribunal that Ms Abdi’s performance in a written assessment demonstrated that she did not have a strong understanding of the obligations that would apply under the family assistance law. As will be recalled, the Tribunal at [178]–‍[180] found that Ms Abdi did not demonstrate a sound knowledge and understanding of the family assistance law and weighed this against the applicant. It follows that the Tribunal expressly made a finding in respect of this prescribed matter.

78    Fourthly, in relation to Little Beginners, the Tribunal set out the Secretary’s submission that Little Beginners had not complied with the family assistance law in an important respect by failing to notify the Secretary of a change in status of educators’ within 24 hours of becoming aware of the change of status and that this was relevant to s 194E(1)(a). The Tribunal, however, apparently did not accept the Secretary’s submission as to the weight to be attributed to this consideration. Rather, it found that “Ms Abdi has been running Little Beginners successfully, without any major blemish in respect of its compliance record, for the past three years” at [164]. In those circumstances, it is apparent that the Tribunal considered the issue of non-compliance.

79    Related to this, the applicant submitted to the Tribunal that Little Beginners’ history should weigh in favour of finding that Ms Abdi and the applicant were fit and proper persons with regard to ss 194E(1)(a), (h)–‍(j). The Tribunal’s findings in respect of Little Beginners were, at the risk of repetition, that:

164.    The Tribunal finds that Ms Abdi’s role at Little Beginners weighs both in favour and against Precious FDC’s approval to administer CCS. On the one hand, the Tribunal finds that Ms Abdi has been running Little Beginners successfully, without any major blemish in respect of its compliance record, for the past three years. However, on the other hand, the Tribunal is not persuaded that Ms Abdi had a sound knowledge of her obligations under the FAL which was of concern to the Tribunal as Ms Abdi is currently a co-director of an approved provider.

165.    Additionally, the Tribunal is not convinced that Ms Abdi would be able to undertake both her roles at Little Beginners and Precious FDC, which would reduce her ability to comply with the FAL…

166.    The Tribunal considers that Ms Abdi’s role as director of Little Beginners weighs neither for nor against Precious FDC being granted CCS approval.

…

181.    The Tribunal finds that Ms Abdi had a genuine desire to provide a much-needed child care service to the ethnically diverse, lower sociodemographic families within her community. The Tribunal finds that there is no evidence that Ms Abdi had been involved in any fraudulent activity or mismanagement in her role as a director of Little Beginnings.

(Emphasis added.)

80    While this extract does not make express reference to ss 194E(1)(a), (h)–‍(j), it is plain that it addressed them in substance.

4.3    Ground 3: Whether the Tribunal misunderstood its statutory task and failed to consider probative material

4.3.1    The applicant’s submissions

81    This ground seeks to impugn the following aspects of the Tribunal’s reasoning process:

163.    However, The Tribunal does find that Ms Abdi’s role at Golden Heart should be considered as a moderate factor for refusing Precious FDC’s approval for CCS as she was an integral staff member at the service during its period of significant non-compliance.

…

166.    The Tribunal considers that Ms Abdi’s role as director of Little Beginners weighs neither for nor against Precious FDC being granted CCS approval.

…

177.    The Tribunal finds that this documentation exemplifies the lack of clarity and understanding by Precious FDC of its obligations in administering the FAL. The Tribunal found these documents difficult to navigate and interpret. These policies and procedures were contradictory, and this was compounded by Ms Abdi’s contradictory evidence to the Tribunal. The Tribunal could not find one clear concise document to assist staff, educators and parents to comprehend their requirements under the FAL. The Tribunal finds this lack of clarity and understanding is sufficient enough to warrant the refusal of Precious FDC’s CCS approval, as it is this very lack of guidance to staff, educators and parents that leads to human error and fraudulent activity resulting in overpayments and subsequent debts to the Commonwealth.

…

180.    The Tribunal finds that Ms Abdi did not demonstrate a sound knowledge and understanding of the FAL and this weighs against granting CCS approval to Precious FCD.

(Emphasis added.)

82    The applicant submits that the central issue was whether the Tribunal was satisfied that the applicant met the provider eligibility rules in s 194C(b) to (d)—which direct attention to the fit and proper person considerations in s 194E(1) to be weighed up in forming the required state of satisfaction. By only identifying factors for or against “being granted CCS approval”, rather than weighing the prescribed matters in s 194E(1) for the purposes of being “satisfied” pursuant to s 194C(b) to (d) and s 194B, the applicant submits that the Tribunal fell into error. It further contends that that error also disabled the Tribunal from considering, and properly weighing as part of the correct statutory exercise, probative material relevant to particular matters in s 194E(1). For example, it is submitted that the Tribunal did not properly engage with the s 194E(1) matters in relation to Ms Abdi’s track record at Little Beginners. The applicant further submits that the Tribunal’s finding at [164] that “Ms Abdi has been running Little Beginners successfully, without any major blemish in respect of its compliance record, for the past three years” was expressed at too high a level of generality and, had the Tribunal engaged with the s 194E(1) matters properly, the Tribunal may have reached a different conclusion as to weight on this issue.

4.3.2    Reasons for dismissing ground three

83    I do not consider that the Tribunal misunderstood its task.

84    First, I accept, as does the Secretary, that the Tribunal’s language lacks precision. However, when the Tribunal’s decision is read as a whole, it is sufficiently clear that the Tribunal understood that its task was to determine whether the applicant and Ms Abdi were fit and proper persons. In this regard, it bears repeating that “reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

85    The Tribunal explained the relevant legislative framework at [16]–‍[25]. The Tribunal identified the issue before it as “whether [the applicant] meets the requirements for approval for CCS and ACCS in accordance with section 194B(1) of the Administration Act”: at [26]. As identified above, s 194B(1) provides that the “Secretary may approve a provider for the purposes of the family assistance law if the Secretary is satisfied” that the applicant satisfied certain criteria. Those criteria included that the applicant satisfied the eligibility rules in s 194C which in turn required the applicant and any person with management or control of the applicant to be fit and proper persons to be involved in the administration of CCS and ACCS. After considering the evidence and making relevant findings, the Tribunal’s decision has the heading “Fit and Proper Person”. Under that heading, the Tribunal summarised its findings and the weight to be given to pertinent factors: at [181]–‍[182]. The Tribunal then under the heading “DECISION” concluded that, “having determined that Ms Abdi and [the applicant] are not fit and proper persons to be involved in the administration of CCS and ACCS, affirms the decision under review”: at [183]. Accordingly, it is apparent on a fair reading of the Tribunal’s reasons as a whole that the Tribunal understood its statutory task.

86    Further, in the present case and as the Secretary submits, the question of whether the applicant should be granted approval turned on whether Ms Abdi and the applicant were fit and proper persons. In a practical sense, if the applicant does not satisfy the eligibility criteria in s 194D, one of which being that the applicant and Ms Abdi be fit and proper persons, then the decision-‍maker “must refuse to approve” the application to be an approved child care service provider (emphasis added): see ss 194B(1), (6), 194C of the Administration Act. It follows that if the Tribunal was not satisfied that the applicant was a fit and proper person, that finding would, by virtue of the Act, be determinative of whether the provider approval could be granted. Against that background, the Tribunal’s reference to whether certain factors weighed for or against the granting of “approval” should be understood as a recognition of the fact that whether a factor weighed for or against a finding of fitness and propriety in practice also ultimately functioned as a factor for or against granting the final approval, being the issue ultimately in dispute.

87    In the event that I am wrong and the Tribunal did misunderstand its task, the Secretary submits that any such error was not material in light of the Tribunal’s findings in relation to the governance issues. I would not accept that submission because, even in considering the governance issues, the Tribunal’s finding was framed by reference to refusal of the CCS approval. Therefore, any such error would have infected that reasoning and would have been material.

5.    CONCLUSION

88    For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    19 January 2024