Federal Court of Australia

Manikantan v Secretary, Department of Employment and Workplace Relations [2024] FCA 94

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent is changed to Secretary, Department of Employment and Workplace Relations.

2.    Leave is granted for the applicant to raise the new question of law posed by ground 3(c)(i)–(iii) of the amended notice of appeal from a Tribunal decision dated 19 July 2023.

3.    The appeal on questions of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is dismissed.

4.    The applicant pay the respondent’s costs on a lump sum basis, as agreed or assessed.

THE COURT NOTES THAT:

5.    In line with the Costs Practice Note (GPN-COSTS) the Court expects the parties to make a genuine effort to reach agreement as to the quantum of the lump sum costs payable by the applicant to the respondent.

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 questions of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal, General Division, given on 24 November 2022 (the Tribunal’s decision) on a second review: Manikantan and Secretary, Department of Education [2022] AATA 4051 (TD). By that decision, the Tribunal affirmed an earlier decision of the Tribunal dated 24 March 2017 (the 2017 Tribunal decision) which, in turn, had affirmed a decision of the respondent, the Secretary of the Department of Employment and Workplace Relations. The issue before the Tribunal on each occasion was whether to affirm a decision to cancel the applicant’s Newstart allowance under the Social Security (Administration) Act 1999 (Cth) (Administration Act).

2    While an application made pursuant to s 44 of the AAT Act is called an appeal, the application is instituted in the original jurisdiction of the Federal Court and is properly characterised as an application for judicial review of the lawfulness of the Tribunal’s 2022 decision: see, eg, Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10; (2022) 289 FCR 175 at [7]. The Court has jurisdiction to review, on a question of law, the Tribunal’s decisions for errors of law.

3    For the reasons that follow, a number of the purported questions raised in the applicant’s amended notice of appeal are not properly questions of law. While those questions assert legal error, their focus is in fact on the merits of the Tribunal’s decision. While it is understandable that an applicant may strongly disagree with the outcome of the Tribunal’s decision, this does not provide a basis on which that decision can be challenged on a s 44 appeal. The remaining grounds have no merit. As such, the application must be dismissed with costs.

2.    BACKGROUND

2.1    Applicable law

4    As to the applicable law, Kiefel CJ, Keane and Nettle JJ held in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250, at [14] that, in determining the decision under review is the correct or preferable decision, 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.)

5    Applying this principle here, the present case falls to be determined in accordance with the law as at the time of the Tribunal’s 2017 decision, despite the Newstart allowance having since been replaced by JobSeeker payment. In its 2017 decision, the Tribunal was required to apply the law as it applied to the Secretary’s delegate (being the authorised review officer) at the time of the original cancellation. It follows that the relevant version of the Social Security Act 1991 (Cth) (the Social Security Act) is contained in Compilation No 151, while the relevant version of the Administration Act is contained in Compilation No 109 (noting that the same versions of the Acts applied as at the time of the original cancellation and the authorised review officer’s decision). For convenience, the legislation is referred to in these reasons in present tense.

6    Section 593 of the Social Security Act prescribes criteria which a person must meet in order to qualify for a Newstart allowance in respect of a period. These matters include that the person satisfies the Secretary that throughout the period the person is unemployed (s 593(1)(a)(i)). In addition, relevantly, the criteria under s 593(1) include that:

(e)    if the person is required by the Secretary to enter into a Newstart Employment Pathway Plan in relation to the period, the person enters into that plan; and

(f)    while the plan is in force, the person satisfies the Secretary that the person is complying with the requirements in the plan; ….

7    Section 605 of the Social Security Act in turn provides that:

(1)    If a Newstart Employment Pathway Plan is not in force in relation to a person, the Secretary may require the person to enter into such a plan if:

(a)    the person is receiving, or has made a claim for, a newstart allowance; or

(b)    the Department is contacted by or on behalf of the person in relation to a claim for a newstart allowance.

(2)    If a Newstart Employment Pathway Plan is in force in relation to a person, the Secretary may require the person to enter into another plan instead of the existing one.

8    A Newstart Employment Pathway Plan (EPP or Job Plan) must be in a form approved by the Secretary: s 605(4). Furthermore, a valid EPP must contain one or more terms with which the person is required to comply and which the Secretary regards as suitable for the person: s 606(1).

9    While I set out relevant provisions of the Administration Act later in these reasons, I note the following broad features of the Administration Act which assist, among other things, in understanding the relationship between that Act and the Social Security Act.

(1)    The Administration Act forms part of the “social security law”: s 4 of the Administration Act. A reference in the Administration Act to the social security law is a reference to the Administration Act, the Social Security Act (described in the Administration Act as the 1991 Act), and any other Act expressed to form part of the social security law: s 3 of the Administration Act. The Secretary has the general administration of the social security law, subject to any direction of the Minister: s 7.

(2)    Part 3 of the Administration Act is entitled “Provision of benefits” and is divided into a number of divisions. Relevantly these include the following.

(a)    Division 1 entitled “Claim for social security payment or concession card” comprises ss 11–35B. Section 11 of subdivision A sets out the general rule that a person who wants to be granted a social security payment must make a claim in accordance with Division 1.

(b)    Division 2 of Part 3 deals with the determination of claims, s 36 of which imposes an obligation on the Secretary to determine a claim in accordance with social security law.

(c)    Division 3A (comprising ss 42A–42Z) is entitled “Compliance with obligations in relation to participation payments”.

(d)    Divisions 3, 4 and 5 respectively deal with commencement of social security payment, payment of social security payments, and protection of social security payments.

(e)    Division 6 comprises ss 63 to 77 and is entitled “Requirement to provide information, undergo medical examination etc.” Relevantly, s 63 confers power on the Secretary to require a person in receipt of a Newstart allowance to, within a specified time, attend an office of the Department, contact the Department, and give information to the Secretary where the Secretary is of the opinion that the person should do so. Section 64 provides that if the person does not comply with this requirement, the payment that the person is receiving “is not payable". Section 66A of Subdivision B also imposes a general requirement on persons to give notice within 14 days of “an event or change of circumstances … that might affect” the payment of their social security payment. Relevantly for reasons which will become apparent, s 68 (also in Subdivision B) empowers the Secretary to require a person to whom a social security payment is being made, to inform the Department about certain matters (s 68(2)(a)) or give the Department statements about a matter that may affect the payment to the person of the social security payment (s 68(2)(b)). Notices given under Subdivision B must comply with the requirements imposed by s 72.

(f)    Division 8 deals with automatic cancellations and variations. Of particular relevance, s 94(1) provides that, where a person receiving a social security payment is given a notice under s 68(2) which requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period and the person fails to do so, the social security payment is cancelled by force of that section. Similarly, s 95 provides that, where a person does not comply with a notice given under s 68(2) requiring the person to give the Department a statement relating to the payment of social security payments in respect of a specified period, the social security payment is cancelled by force of s 95 on the first day in that period.

10    Finally, I note that s 235 confers power on the Secretary to authorise an officer to perform duties as an authorised review officer for the purposes of the social security law and, under s 236, such decisions must be in writing.

2.2    Circumstances leading to the cancellation of the applicant’s Newstart allowance

11    On 16 December 1996, the applicant first received the Newstart allowance. From about 2004 until 22 October 2016, the applicant was frequently receiving the Newstart allowance, with regular suspensions or cancellations for overseas absences: TD [4].

12    On 22 August 2016, a delegate of the Secretary wrote to the applicant. That letter (at p. 1) stated that:

You are required to attend an appointment with us. The purpose of this appointment is to discuss your ongoing job search requirements and activities or services that will help you to find work. At this appointment you may also be required to review and agree to updates to your Job Plan.

13    The appointment was scheduled for 10:00am on Wednesday, 31 August 2016. The second page of this letter was not in evidence on the s 44 appeal. However, in line with the applicant’s concession before the Tribunal (TD [99]), it was not in issue that the contents of that page were the same as the second page of a letter sent to the applicant on 12 August 2016 which was in evidence.

14    The applicant attended the appointment with his relevant employment service provider on 31 August 2021 but did not enter into an EPP even though the provider explained that it needed to be agreed.

15    On 3 October 2016, the Department gave the applicant a notice imposing on him an obligation to give the Department “all the information that is relevant to [his] payment”. The notice advised that the applicant “must report every 2 weeks for each Reporting Period on the dates” set out in in a table and stated that, once the reporting requirements had been met, his payment would be issued for each Reporting Period. Under the heading “What you must report for each Reporting Period”, the notice further advised that:

•    If any of your circumstances have changed:

•    you must tell us of any changes in your circumstances at your next reporting date. There is important information about what you must tell us on the back of this letter.

•    If you were employed:

•    the businesses where you worked

•    the number of hours you worked, and

•    the amount you earned for any work done during each Reporting Period. The amount reported must be the amount earned before tax and other deductions such as salary sacrifice. You must report even if you have not received all or some of the pay yet.

…

•    If you participated in activities as detailed in your Job Plan, including:

•    approved activities you participated in, and

•    any exemption/s you had during the period.

What happens if you do not report on time for each Reporting Period

If you do not provide these details by 5.00pm on the reporting date your Newstart Allowance will stop.

(Emphasis in original.)

16    On 22 October 2016, the Department wrote to the applicant advising that a decision had been made to suspend the applicant’s Newstart allowance because the Department’s “records show you did not attend your activity or an appointment”. The letter also advised that if the applicant had not already done so, he needed to call Centrelink “as soon as possible to discuss the activity or appointment you missed”, and that, if he did not call, his payment may be cancelled. The letter included contact information.

17    On 25 October 2016, the applicant attended an appointment with his employment service provider but, again, did not enter into the EPP.

18    On 1 November 2016, the Department wrote to the applicant advising that its records showed that the applicant may not have met one of the conditions for receiving payment and that, if he did not have a reasonable excuse for his actions, he may lose his payment. The letter also advised the applicant to call the Department on a given number as soon as possible and that, if he did not contact the Department before his next payment date, his payment may be stopped.

19    On 7 November 2016, the Department wrote to the applicant advising that his “Newstart Allowance ha[d] been cancelled from 8 October 2016 because [he had] not reported”.

20    An authorised review officer reviewed the cancellation decision under s 129 of the Administration Act. On 29 November 2016, the officer found that the cancellation decision was correct and therefore the applicant’s review was unsuccessful. The officer referred, amongst other things, to the cancellation being made under s 80 of the Administration Act.

2.3    The first and second reviews by the Tribunal in 2017 and 2018

21    On 5 December 2016, the applicant applied to the Tribunal for review of the authorised review officer’s decision. The first Tribunal decision was given on 24 March 2017. The Member found that the applicant was not qualified to receive Newstart allowance because he had not entered into an EPP, as required by s 593(1)(c)–(f) of the Social Security Act. In this regard, the Member accepted that the applicant signed a Job Plan on 16 August 2016 and 25 October 2016 but found that neither of these Job Plans were valid as they were not signed by his employment service provider due to changes made by the applicant to the Job Plan. These changes included deleting a requirement that the applicant attend job search activities with his service provider for three days a week for two hours each day. The Member found that, while the applicant may seek to jointly develop and negotiate an EPP with his provider, his “right to negotiate” did not extend to him deciding not to attend regular meetings and skills activities with his employment service provider. The service provider had the “final decision on what [was] included” in the applicant’s EPP. As a result, the Member found that the correct decision was to cancel the applicant’s Newstart allowance pursuant to s 80(1) of the Administration Act.

22    On 5 April 2017, the applicant applied for a second review of the 2017 Tribunal decision under s 179 of the Administration Act.

23    On 29 March 2018, a Senior Member of the Tribunal made a decision on the second review (2018 Tribunal decision): Manikantan v Secretary, Department of Jobs and Small Business [2018] AATA 685. The Senior Member found that the applicant refused to enter an EPP and “had no intention of entering into an EPP (which was acceptable to his job service provider)”: at [21]. As a consequence of the applicant’s failure to enter into an EPP and the subsequent suspension of his Newstart allowance on 22 October 2016, the Senior Member also found that he was unable to meet his fortnightly reporting requirements and failed to report for two consecutive fortnights being the weeks ending on 21 October and 4 November 2016: at [22]. The Senior Member was not satisfied that there were any special circumstances, for the purposes of s 95(2) of the Administration Act, which prevented the applicant from contacting Centrelink to discuss his suspension and to ensure that he reported on time in accordance with his reporting requirements. As a result, the Senior Member found that the correct decision was to affirm the decision to cancel the applicant’s Newstart allowance under s 95(1) of the Administration Act: at [23].

2.4    The 2022 Tribunal decision on remittal

24    On 13 December 2019, a single judge of this Court set aside the 2018 Tribunal decision and remitted the matter for hearing: Manikantan v Secretary, Department of Jobs and Small Business [2019] FCA 2103 (Manikantan No 1). This was based on a finding that the Tribunal, without notice to the applicant, and without ruling on the applicant’s submissions in relation to s 80 of the Administration Act (which the Secretary, at the time of the Tribunal’s 2018 review, contended was the correct provision), relied on s 95 of the Administration Act as the basis for the cancellation. That omission was held to amount to a denial of procedural fairness which occasioned a practical injustice.

25    On 24 November 2022, the Tribunal made a fresh decision on the application for a second review. I consider the reasoning of the Tribunal in relevant respects below. For present purposes, salient aspects of the Tribunal’s reasons can be briefly summarised as follows. First, the parties agreed that the issue for determination was whether Centrelink followed the correct procedure when cancelling the applicant’s Newstart allowance on 7 November 2016, with effect from 8 October 2016: TD [93]. With respect to that issue, the applicant submitted to the Tribunal that he had been “apparently penalised for not agreeing to take part in what could be called a commercial activity for the [employment service] provider, without any benefit to the applicant, and instead of dealing with the records according to the compliance framework under the social security law, Centrelink - a delegate of the Secretary - imposed administrative actions one after another against the applicant…”: as quoted at TD [94]. Secondly, the Tribunal found at [101] that:

it was for the Secretary to determine the reasonableness of the job plan that the applicant was required to enter into, and it was not a matter that fell within the discretion of the applicant…

26    While the applicant did not consider the Job Plan was suitable for him, he conceded that the Secretary had the last say in what was suitable: TD [104]. Thirdly, while s 605 of the Act refers to “‘negotiating’, the final substance of the job plan is to be determined by the Secretary”: TD [106]. Fourthly, the Tribunal found that the proposed EPP met the reasonableness test in s 606 of the Social Security Act: TD [105]. In the fifth place, Centrelink followed the correct procedure which ultimately resulted in the cancellation of the applicant’s Newstart allowance on 7 November 2016: TD [112]. Sixthly, the applicant was required to provide details of how he had complied on each reporting day with his job search requirements and the requirement of 22 August 2016 to enter into a new job plan, and not merely to state that in his opinion, he had complied: TD [113]–[114]. Finally, the Tribunal found that the cancellation on 8 October 2016 was an automatic cancellation under s 95(1) of the Administration Act: TD [126]. The failure by the applicant to submit compliance statements to Centrelink on the first two reporting dates of 21 October 2016 and 4 November 2016 were sufficient for his Newstart Allowance to be cancelled on 7 November 2016. His failure to enter into a new job plan was also a serious non-compliance: TD [127]–[128]. Nor did special circumstances exist for the purposes of s 95(2) of the Administration Act: TD [129].

3.    QUESTIONS OF LAW

3.1    Relevant principles

27    As earlier explained, the Court has jurisdiction to hear the present “appeal” under s 44 of the AAT Act. Significantly, the subject matter of a s 44 appeal “is limited to the question or questions of law”: Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [85] (following Brown v Repatriation Commission [1985] FCA 236; (1985) 7 FCR 302 at 304; and Commission of Taxation v Brixius [1987] FCA 612; (1987) 16 FCR 359 at 363–364 (Forster, Fisher and Sheppard JJ). Questions of law in this context include non-jurisdictional questions of law and mixed questions of fact and law: Haritos at [62](7) and (8). It is, therefore, incumbent on the Court to determine whether or not the notice of appeal contains a question of law in order to determine whether it is seized of the matter in the exercise of jurisdiction conferred by s 44.

28    In this regard, merely to assert an error of law or to invite the Court to embark upon a broad and hypothetical consideration of statutory provisions is not to state a question of law: Haritos at [92]–[93]. Rather, the Full Court in Haritos (at [94]) held that that question must be approached as a matter of substance, and further that:

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.

29    However, while “the statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal … [a]ny requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction…”: Haritos at [62](2) and (4) respectively; see also ibid at [97].

3.2    Does the amended notice of appeal raise a question of law?

30    The applicant’s amended notice of appeal is prolix and, at times, incomprehensible. It raises ten purported questions of law, with many containing a multitude of sub-issues. The confusion is compounded by the fact that the grounds contained in the amended notice of appeal do not directly correspond with the purported questions of law.

31    The Secretary says that the notice of appeal does not state a question of law for two reasons. First, the Secretary submits that most, if not all, of the purported questions of law concern only the merits of the Tribunal’s decision and are therefore beyond the Court’s jurisdiction. In other words, it is said that certain grounds raise only questions of fact. Second, the Secretary submits that the purported questions of law are merely assertions and therefore not questions of law for the purposes of s 44: citing Katzmann J in Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 260; (2013) 59 AAR 501 at [58].

32    In determining whether, as a matter of substance, the notice of appeal raises questions of law, the fact that the applicant is self-represented is relevant. As Abraham J helpfully explained in Onassys v Comcare [2022] FCA 90 at [21]:

The fact that an appellant is unrepresented is a relevant matter to be taken into account: see for example, Chen v Secretary, Department of Social Services [2019] FCA 1155 at [35]; Lim v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1058 at [13]. The notice of appeal should be read fairly and as a whole, particularly in cases involving unrepresented parties: Haritos at [104], citing Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75] –[77]. Where as a matter of substance a question of law exists, the Court has a procedural discretion to grant leave for an amended notice of appeal to be filed: Haritos at [107]. In appropriate cases, the Court may reframe the questions relied upon so as to give precision to an inelegantly specified question of law, however care must be taken, especially in the face of an objection to competency, not to “visit on a respondent party a judicially attractive question of law which the notice does not fairly raise”: Secretary, Department of Education, Employment and Workplace Relations v Ergin [2010] FCA 1438 at [11]; Rana v Repatriation Commission [2011] FCAFC 124 at [14].

33    First, while framed in terms of jurisdictional and other errors of law such as unreasonableness, a failure to consider a relevant consideration, a failure to give reasons, or a denial of procedural fairness, in substance questions 3(i)–(j) and 5–8 seek impermissibly to challenge only the merits of the Tribunal’s factual findings (as well as being in certain respects incomprehensible): Attorney-‍General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35–36 (Brennan J). For example, question 3(j) frames the following question:

(j)    whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it, evident from:

(i)    the inconsistent or mutually contradictory inferences (for example, Paragraphs '1, 93 & 94', '67 & 92', '68 & 122', '115,116 & 137(a)' of the Tribunal's reasons and more under question 5 below) on the material before the Tribunal; and/or

(ii)    inferences that are not necessarily the only conclusions possible from the facts found/admitted such as for example, whether it was logical or rational for the Tribunal to conclude that the Applicant was required to report on the basis of an EPP that was yet to be approved (Paragraph 137(d) of the Tribunal's reasons), which the Respondent had already admitted as illogical in its submission

34    However, questions of what inferences might be drawn from the material before the Tribunal are quintessentially questions of fact. The fact that other inferences might have been drawn falls far short of establishing legal unreasonableness. Nor does the fact that the question is framed in terms of whether it was open to the Tribunal to make certain findings on the evidence elevate the challenge to the factual finding to a question of law: see e.g. Palassis v Commissioner of Taxation [2011] FCA 1305 at [30] (McKerracher J).

35    Secondly, questions 1(b)–(c), 3(c)–(h), 4 and 10 of the amended notice of appeal contain assertions of legal error which are so broad and vague as to be incomprehensible and/or indecipherable. For example, question 3(d) is:

whether the facts as found/agreed/admitted come within the statutory description of the provisions purportedly applied or alternately, whether interpretation or construction of a statute, or some other principle or rule of law, supports its application on the facts as found to determine the legality such as for example, whether the description of sections 68 & 95 of the [Administration Act] fits with the circumstances of the case on the material before the Tribunal

36    This purported question does not identify any specific finding of fact which is challenged; nor does it identify how the applicant contends that “the facts as found/agreed/admitted” fail to come within the meaning of the legislative provisions.

37    Even having regard to the fact that the applicant is self-represented, I do not consider that those “questions” are properly questions of law and, therefore, they do not engage the Court’s jurisdiction.

38    Thirdly, Ground 3(c)(i)–(iii) would seem to raise a question of law as to whether the Secretary and the Tribunal erred in failing to determine whether the notice dated 22 August 2016 satisfied the requirements under s 605 insofar as it failed to identify whether it was issued under s 605(1) or s 605(2) of the Social Security Act on the basis that these provisions are mutually exclusive. However, the Secretary objected to this question because this issue was not raised before the Tribunal. Pursuant to leave, the applicant filed brief post-hearing submissions allegedly identifying where this issue was raised before the Tribunal to which the Secretary responded by way of short submissions in reply. I have reviewed the Appeal Book references identified by the applicant. However, while I accept that the applicant raised before the Tribunal the issue of whether the 22 August 2016 notice was valid under s 605, the applicant did not identify the particular issue raised in this proposed question of law as the Secretary submits. That being so, the question arises as to whether this Court should entertain the new question of law which was not raised before the Tribunal.

39    In this regard, the Full Court in Haritos explained in summary (at [62](9)) that:

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

40    Thus the Full Court explained that the approach to determining whether a Court on appeal should entertain a new issue not before the court at first instance applied by analogy to the question of whether the Court should entertain a new issue not raised before the Tribunal: at [80]. That approach was explained by the Full Court in Summers v Repatriation Commission [2015] FCAFC 36; (2015) 145 ALD 30 at [93]–[95] in the following passage approved in Haritos at [79]–[80]:

… parties are of course bound by the way a case is conducted: … Thus, a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence at trial. This is, however, not such a case; and [citing Coulton and Others v Holcombe and Others (1986) 162 CLR 1 at 7-8, among other authorities]… an appellate court has a discretion to permit an appellant to argue an issue on appeal that was not argued below where it considers that it is expedient and in the interests of justice to entertain the issue… The fact that an alleged error of law is not raised before the court at first instance does not preclude an appellate court from entertaining the point where it is in the interests of justice to do so…

The court must be satisfied that allowing a new point to be argued would work no injustice to the other party, recognising that it is not always an easy task to pinpoint whether the matter would have been approached differently had the point then been raised … Generally speaking the court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy…

(Citations omitted.)

41    As the issue sought to be raised by the applicant involves a pure question of law and would not involve the calling of any additional evidence, I consider that the applicant should be entitled to raise this issue on the appeal notwithstanding that he did not raise it before the Tribunal.

42    Fourthly, I consider that the following additional questions of law, only, can fairly be discerned from the amended notice of appeal:

(1)    Did the Tribunal err in finding that the notice dated 3 October 2016 was a s 68(2) notice for the purposes of s 95(1) of the Administration Act (question 3(a))?

(2)    Did the Tribunal erroneously affirm the 2017 Tribunal decision which was “void” following the Federal Court’s decision in Manikantan No 1, and was premised on a different legal and factual issue (questions 1(a) and 2)?

(3)    Was the applicant denied procedural fairness because of a change in legal issue between the earlier decisions and the Tribunal’s decision (question 3(b))?

(4)    Was the Tribunal’s decision affected by apprehended bias (question 9)?

43    It follows to this extent that I do not accept the Secretary’s submissions that the Court lacks jurisdiction to entertain any of part of the s 44 appeal on the basis that no questions of law are raised.

44    Finally, I have not considered the applicant’s submissions to the extent to which they go beyond the subject-‍matter of the questions identified above and sought impermissibly to expand the issues beyond those which could reasonably be discerned from the notice of appeal.

4.    DISPOSITION OF THE APPEAL

4.1    Did the Tribunal err in failing to find whether the notice dated 22 August 2016 was issued under sub-ss (1) or (2) of s 605 of the Social Security Act?

45    The relevant subsections of s 605 of the Social Security Act are set out above. Relevantly, sub-‍s (1) applies in circumstances where a participant does not have an EPP in force whereas, sub-‍s (2) applies where the participant does have an EPP in force.

46    As described above, the notice dated 22 August 2016 required the applicant to attend an appointment with his employment service provider on 31 August 2016 and “enter into or review” his EPP.

47    The Tribunal found at [115]–[116]:

Further, I accept the Respondent’s submissions that it is not material whether the applicant was on an existing EPP on 31 August 2016, as the letter from TSAEP adequately covered both scenarios. Relevantly, the letter stated:

If you do not attend this appointment and enter into or review your job plan as required, your payment may be stopped by Centrelink…This is a notice under Social Security Law.

I am, on the evidence before me, satisfied that the applicant did not have an existing job plan at the date of 31 August 2016. The Department’s record, produced in the T-documents, shows that the applicant entered a job plan on 23 July 2015 that was to expire on 24 August 2016. There is, in evidence, the signed job plan of 23 July 2015. As discussed above, even if the applicant’s job plan dated 23 July 2015 continued to exist past 24 August 2016, the Secretary was able to require him to enter into a new EPP while there was an existing EPP in force.

(Emphasis in original omitted; emphasis in bold and italics added.)

48    It is clear from the above passage that the Tribunal found that the applicant did not have an EPP in force on the date on which the Secretary required the applicant to enter into one. Therefore, it can be inferred that the Tribunal was satisfied that the notice was given under s 605(1) of the Social Security Act. The Tribunal then considered the consequences of the alternative position if its primary finding was incorrect and the applicant did in fact have an ongoing EPP in force at the relevant time. The Tribunal found that even if this alternative scenario were correct, it would not have affected its decision because the applicant would have failed to comply with the requirement by the Secretary to enter into a new EPP. I do not consider that the Tribunal erred in this approach. This line of reasoning is entirely orthodox.

4.2    Did the Tribunal err in finding that the notice dated 3 October 2016 was a s 68(2) notice for the purposes of s 95(1) of the Administration Act?

4.2.1    Summary of the issue and the applicant’s submissions

49    Section 95(1) of the Administration Act provides that:

If:

(a)    a person who is receiving a social security payment is given a notice under subsection 68(2) requiring the person to give the Department a statement or a number of statements; and

(b)    the notice relates to the payment of the social security payment in respect of a period or a number of periods specified in the notice; and

(c)    the person does not comply with the notice so far as it relates to a particular period;

then, subject to subsection (2), the social security payment is cancelled, by force of this section, on the first day in that period.

50    Section 68 in turn relevantly provides:

(1)    Subsection (2) applies to a person to whom a social security payment … is being paid.

(2)    The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:

(a)    inform the Department if:

(i)    a specified event or change of circumstances occurs; or

(ii)    the person becomes aware that a specified event or change of circumstances is likely to occur;

(b)    give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;

(c)    give the Department one or more statements about a matter that might affect the operation, or prospective operation, of Part 3B in relation to the person.

51    Under s 74(1) and (4) of the Administration Act, it is a strict liability offence punishable by imprisonment up to 6 months for a person to refuse or fail to comply with a notice under ss 67, 68, 70 or 70A. However, that offence applies only to the extent to which the person is capable of complying with the notice and does not apply if the person has a reasonable excuse: ss 74(2) and (3).

52    As was common ground between the parties, a notice under Subdivision B of Division 6 of Part 3 of the Administration Act must comply with the requirements of s 72 of that Act. That section relevantly provides that:

(1)    A notice under this Subdivision:

(a)    must be given in writing; and

(b)    may be given personally or by post or in any other manner approved by the Secretary; and

(c)    must specify how the person is to give the information or statement to the Department; and

(d)    must specify:

(i)    in the case of a notice under section 68 that requires the giving of more than one statement, each relating to the payment of the social security payment in respect of a period—the date by which the person is to give each statement to the Department; or

(ii)    in any other case—the period within which the person is to give the information or statement to the Department; and

(e)    must specify that the notice is an information notice given under the social security law.

(2)    A notice under this Subdivision is not invalid merely because it fails to comply with paragraph (1)(c) or (e).

53    The applicant challenges the Tribunal’s finding that a valid notice was given to him under s 68(2) of the Administration Act for the purposes of s 95(1)(a) of that Act. He submits that, as s 95(1)(a) requires “a notice under s 68(2) requiring the person to give the Department a statement or a number of statements”, only notices under ss 68(2)(b) and (c) can satisfy this requirement: applicant’s outline of submissions (AS) [20]. The applicant contrasts this with s 68(2)(a), which in his submission is concerned with the provision of a notice by the Secretary requiring a person to inform the Department if specified circumstances arise and, as such, does not require the giving of a statement or number of statements.

54    In summary, the applicant submits that the Tribunal made the following errors of law regarding to the validity of the 3 October 2016 notice:

(1)    The Tribunal failed to make a material finding of fact because it did not identify the subsection of s 68(2) pursuant to which the 3 October 2016 notice was purportedly given: AS [20].

(2)    The Tribunal’s finding that the 3 October 2016 notice was a s 68(2) notice because it satisfied the statutory criteria set out in s 72 of the Administration Act was erroneous: AS [22]. This is because all notices under Subdivision B of Division 6 of Part 3 of the Administration Act must satisfy s 72.

(3)    It would be inconsistent with the legislative intent and s 42B of the Administration Act to construe the 3 October 2016 notice as having been given under s 68(2) because to do so would have the consequence that a failure to enter into an EPP or report to Centrelink would be subject to strict liability under s 74: AS [19], [23]–[25].

4.2.2    There was no error by the Tribunal in its assessment of whether the 3 October 2016 notice was valid under s 68(2) of the Administration Act

55    The applicant has not established that the Tribunal erred in finding that there was a valid notice given under s 68(2) for the purposes of the automatic cancellation provision in s 95(1)(a) of the Administration Act for the following reasons.

56    First, while the 3 October 2016 notice required the applicant to report, among other things, on any changes in circumstances, the Tribunal found that the 3 October 2016 notice “required [the applicant] to provide his statements of compliance to Centrelink”: at [112](c) (emphasis added). The Tribunal then found that the applicant “failed to submit compliance statements in accordance with the notice” and this was the reason for the cancellation of his Newstart allowance on 7 November 2016: at [127] (emphasis added), see also at [128]. In those circumstances, the Tribunal was plainly correct in finding that the applicant was given a notice which required the applicant “to give the Department a statement or a number of statements” for the purposes of s 95(1)(a).

57    Secondly, with respect to the validity of the s 68(2) notice, the Tribunal found at [107]–‍[108]:

In his evidence to the Tribunal, Mr Manikantan agreed that if he had been required under s 68(2) of the Administration Act to enter into a new job plan to vary or replace the job plan dated 23 July 2015, he would have signed the unaltered job plan as proposed by the employment service provider. He claimed, however, that no such section 68(2) notice was ever served on him.

This argument cannot however be sustained because the reporting statement dated 3 October 2016 was in my opinion, a valid s 68(2) notice. In particular, it satisfied the statutory criteria set out in s 72 of the Administration Act for a valid s 68(2) notice, both in form and in substance.

58    The Secretary submits that the Tribunal correctly found that the notice complied with s 72. I agree for the following reasons.

(1)    The notice was provided in writing (s 72(1)(a)).

(2)    The notice appears to have the applicant’s postal address for delivery (s 72(1)(b)).

(3)    The notice specified how the applicant was to give the statement (s 72(1)(c)) under the heading “How you report”:

Logon to Online Services To report your earnings and participation details on the internet logon to our online services at www.centrelink.gov.au

Call our reporting line 13 3276 (13 ‘EARN’) on your reporting day between Monday to Friday 8:00am - 5:00pm

Please quote your Customer Access Number… and your PIN.

There was a symbol of a laptop before the first paragraph above and a symbol of a telephone before the second paragraph.

(4)    The notice required the giving of more than one statement, being “every 2 weeks for each Reporting Period”, and specified the date by which the applicant was to give the statement to the Department (s 72(1)(d)(ii)) as follows:

(5)    The notice specified that the “Reporting Statement [was] an information notice given under social security law” (s 72(1)(d)(e)).

59    The applicant correctly submits that s 72 applies to all notices under Subdivision B of Division 6 of Part 3 of the Administration Act. However, each type of notice under that Subdivision applies to people in different circumstances, such as, for example: a person who has made a claim (s 67); a person receiving social security payment or holding a concession card (s 68); a person who has received a social security payment or who has held a concession card (s 69); and a care receiver in respect of whom carer payment being made (s 70). The Tribunal found that since 2004, the applicant was frequently “receiving” the Newstart allowance: at [4]. It follows that the applicant fell within the scope of s 68 and the Tribunal did not err in considering compliance with s 72 as relevant to the question of whether a valid s 68(2) notice was given.

60    Thirdly, s 42B provides that the object of Division 3A (headed “Compliance with obligations in relation to participation payments”) of Part 3 is:

to encourage people to participate in employment and engage with employment services. It is also the object of this Division to secure compliance with a person’s obligations and requirements in relation to participation payments, and to ensure that those who do not comply are re-engaged with employment services as quickly as possible.

61    One difficulty for the applicant in terms of his reliance in this context on s 42B is that s 68 is not found within Division 3A of Part 3 of the Administration Act. As such, s 42B does not apply to s 68. However, even assuming that s 42B may be relevant to the interpretation of a section within Division 6, the objects of Division 3A are not only intended to benefit recipients by assisting them to achieve employment, but to impose obligations with which recipients are required to comply. In this regard, it will be recalled that the Secretary is required to administer the Administration Act not only having regard, among other things, to the special needs of disadvantaged groups in the community, but also to establishing procedures to minimise abuses of the social security system: see s 8. However, as s 42B(2) makes clear, Division 3A is not concerned with punishing persons who have a reasonable excuse for not complying. Rather, the intention is to ensure that those who do not comply are re-engaged with employment services as soon as possible.

62    It was not suggested that s 68(2)(c) had any relevance to the applicant. Relevantly, therefore, s 68(2)(b) does not limit the scope of statements which may be required by the Department, save by requiring (relevantly) that the statement or statements required to be provided are “about a matter that might affect the payment of the social security payment” to the person. I do not consider that the legislative intention was to limit the scope of this section in the way proposed by the applicant, namely, to permit a notice to be given where the failure to routinely report in compliance with the notice could result in strict liability for an offence under s 74. The applicant did not submit that the reporting requirements in the 3 October 2016 notice could not affect the payment of Newstart payments to him. Accordingly, the applicant has not established that the 3 October 2016 notice was beyond the scope of s 68(2).

4.3    Was it open to the Tribunal to affirm the 2017 Tribunal decision where the 2018 decision had been set aside?

63    The applicant submits that the 2017 Tribunal decision became void as a consequence of the decision made in Manikantan No 1 setting aside the 2018 Tribunal decision: applicant’s submissions in reply (AR) at [3]. Further, he submits that the basis for the 2022 Tribunal decision presently under review is different in subject matter from the decision of the authorised review officer and the 2017 Tribunal decision: question 2(c). In those circumstances, the applicant contends that it was not open to the Tribunal to affirm the 2017 Tribunal decision, as compared to vary or substitute the decision: question 1(a).

64    As the Secretary correctly identifies, the decision in Manikantan No 1 was a s 44 appeal from the 2018 Tribunal decision on a second review under s 179 of the Administration Act from the 2017 Tribunal decision. The Court set aside the 2018 Tribunal decision and remitted the matter to the Tribunal for determination according to law. The Court did not address the validity of the 2017 Tribunal’s decision, it neither made findings about whether the decision was affected by jurisdictional error, nor that it was void.

65    As set out above, in 2017 the Tribunal affirmed the decision of the authorised review officer to cancel the applicant’s Newstart allowance. The nature of the Tribunal proceeding on the s 179 second review was to undertake a de novo review in the exercise of the powers conferred on the first Tribunal, that is, to determine what was the correct and preferable decision: see, by analogy, VXQB v Child Support Registrar [2021] FCA 48 at [18] (Colvin J). It was therefore open to the Tribunal to determine that the correct and preferable decision was that the decision under review should remain unchanged — that is, that the applicant’s Newstart allowance should remain cancelled — and to do so based on different legal and factual issues from the 2017 Tribunal decision (provided that the issues remain within the Tribunal’s jurisdiction). It follows that this ground is without merit.

4.4    Was the applicant denied procedural fairness because of the Tribunal’s reliance on s 95 of the Administration Act?

66    The applicant submits that the Tribunal’s consideration of the cancellation under s 95 of the Administration Act, as compared to s 80, “in the final merit-review jurisdiction created a procedural default with a practical injustice”: question 3(b) (emphasis omitted).

67    The Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 at 590–‍592 emphasised the requirement on a decision-‍maker, such as the Tribunal, to put a party on notice of the determinative issues to the decision:

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That 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…

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. For a statutory exception to the latter proposition see the pre-decision conference process provided for in the Trade Practices Act 1974 (Cth).

(Emphasis added.)

68    In support of this ground, the applicant relies on Manikantan No 1. As earlier explained, in that decision, Abraham J found that a “denial of procedural fairness raises a question of law”: at [16]. The issue in that case was that the applicant was not put on notice that the Tribunal may find that his social security payment was cancelled under s 95 of the Administration Act, as opposed to s 80. Her Honour held in this regard, that the possible application of s 95 had not been raised in the decision of the authorised review officer or the 2017 Tribunal decision: at [17]. Nor was it raised in the Secretary’s written submissions to the Tribunal or at the hearing which at that time focused upon s 80 as the allegedly correct provision: at [21]. It was in this context that her Honour held at [31] that:

the issue becomes whether the breach has given rise to a “practical injustice”: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal’s decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [38], [45]-[46] per Bell, Gageler, Keane, Nettle and Gordon JJ. By denying the applicant an opportunity to provide submissions or evidence on s 95, the breach has the requisite materiality.

69    Justice Abraham noted that if the original cancellation decision was in fact made pursuant to s 80(1) of the Administration Act, then it would have been incorrect for the second Tribunal to find the cancellation was pursuant to s 95: at [22]. However, her Honour did not comment on the merits of the second Tribunal’s reliance on s 95 of the Administration Act.

70    I do not consider that there has been any breach of procedural fairness established with respect to the Tribunal’s 2022 decision. The 2018 Tribunal decision itself put the applicant on notice of the issue in circumstances where Justice Abraham did not determine whether or not the Tribunal’s reliance upon s 95 gave rise to any error of law, absent that Tribunal’s failure to comply with the requirements of procedural fairness. Furthermore, the Secretary’s Statement of Facts, Issues and Contentions dated 19 May 2020 (RSFIC) set out the facts and issues before the Tribunal. In particular, the Secretary in the RSFIC expressly contended that the applicant’s Newstart payment was automatically cancelled by operation of s 95 of the Administration Act, addressing in detail the requirements of that section, and contended that no special circumstances existed for the purposes of s 95(2): at [9.1]–[9.7] and [11.1]–[11.31] respectively. The applicant was provided the opportunity to make submissions in respect to the application of s 95 and in fact made detailed submissions on that issue: see, eg, the Applicant’s Reply to the RSFIC at [98]–[113]. In these circumstances, there is no merit in the suggestion that the Tribunal acted in breach of procedural fairness in finding that the original cancellation decision was made pursuant to s 95: TD [122]–[126]. Therefore, this ground must fail.

4.5    Was the Tribunal’s decision affected by apprehended bias?

71    The test for determining whether a decision-maker is disqualified by reason of apprehended bias is well-‍settled, namely, “whether a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question the [decision-maker] is required to decide”: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31] (Gummow A-CJ, Hayne, Crennan and Bell JJ); see also Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 at [11] (the Court). As such, the test is objective: Wilson at [32]–‍[33] (Gummow A-CJ, Hayne, Crennan and Bell JJ); Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [7]–‍[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

72    This test requires consideration of two limbs (Ebner at [8]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [21] (Kiefel, Bell, Keane and Nettle JJ)), namely:

(1)    identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits; and

(2)    articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.

73    In applying the test for apprehended bias, it is also important to emphasise that the fair-minded lay observer “is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision”: Isbester at [23] (Kiefel, Bell, Keane and Nettle JJ).

74    The applicant contends that the Tribunal’s decision is vitiated by apprehended bias. The applicant relies on the Tribunal’s written reasons in support of this contention. Specifically, at AS [35] the applicant contends that:

The Tribunal disregarding evidence (AB 946), ignoring claims (e.g., AB 892-894 [127]­[134]; 896 [143]-[145]; 974-975 [30]; 977 [44]-[48]; 979 [54]; 980-981 [57]; 982 [64]; 984 [68]; 986-988 [72]-[82]; 989-992) and failing to resolve contentions (e.g., AB 830-831 [63]; 863-867 [3]-[6]; 883 [91]; 884-886 [97]-[102]; 886 [104]; 891 [121]-[123]; 905 [194]; 906- 907 [199]-[204]; 908-910 [208]-[216]; 910-911 [218]-[222]; 912 [225]-[228]; 912-913 [229]-[231]; 913 [232]-[235]; 914-917 [239]-[245]; 917-919 [248]-[255]; 929-931 [289]­[294]; 970-973 [11]-[13], [15]-[19], [23]-[26]; 975-977 [31]-[43]; 978-979 [49]-[53]; 979 [55]; 981-982 [59]-[63]; 991-992 [89]) give credence to an apprehension of bias too. Its inconsistent assertions (e.g., AB 1063 [60(b)]; 1071 [107]; 1072 [109]-[110]; 1073 [112(b)]; 1074 [115]-[117]; 1075 [119], [123]; 1077 [131]; 1078 [137(d)]) reinforce the errors further.

(Emphasis omitted.)

75    However, the applicant’s reliance upon the reasons of the Tribunal to establish apprehended bias is misconceived. As the Full Court held in Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41; (2022) 288 FCR 218 at [86]–[87]:

… the rule against bias is a principle of procedural fairness and “principles of procedural fairness focus upon procedures rather than outcomes”: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [16] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ). The rule is intended to ensure that the process is, and appears to a fair-minded lay observer to be, a fair process: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [19] (Keifel CJ and Gageler J).

In Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [67], Gummow ACJ, Hayne, Crennan and Bell JJ explained as follows:

An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made.

(Emphasis in italics in the original; emphasis in bold and italics added.)

76    The Full Court in Chen held at [90] that the decision in Wilson “is authority of long-standing” and “it would be contrary to that decision to treat the Tribunal’s reasons in the present case as confirming, enhancing or diminishing the existence of apprehended bias, and we have not done so.” Equally in the present case, the applicant’s focus upon the Tribunal’s reasons inverts the proper inquiry, seeking to infer from adverse findings that a reasonably informed lay-observer might reasonably apprehend that the Tribunal would not bring an impartial mind to the outcome which it has reached. Contrary to principles of long-standing, it seeks to treat the Tribunal’s reasons for its decision as confirming apprehended bias.

77    The applicant also submits that the procedure adopted by the Tribunal would lead an observer to apprehend that the Tribunal prejudged that the applicant was at fault in the proceeding. This is because, in the applicant’s submission, the Tribunal permitted questions in cross-examination which were “irrelevant or failed the test of reason”: Transcript (T)-8.13–37. In particular, while the issue before the Tribunal is said to have been whether Centrelink followed the correct procedure, the applicant contends that the Tribunal permitted cross-‍examination on topics such as the applicant’s “overseas trips and whether he ha[d] applied for jobs”: T-9.12–14.

78    The applicant has not produced a copy of the Tribunal hearing transcript. This was despite a notation to my orders dated 15 June 2023 that the “[t]he appeal papers may include a copy of the transcript of the hearing before the Administrative Appeals Tribunal”. In the absence of a copy of the transcript, I am unable to make any findings about the manner in which the cross-‍examination proceeded.

79    That said, however, the Tribunal’s decision supports that the applicant was cross-examined by the Secretary, and that there was evidence before the Tribunal about the applicant’s overseas travel and whether he had applied for jobs: see, eg, TD [66], [80]. First, while the question of the applicant’s overseas travel did not provide a basis for the Tribunal’s findings, its potential relevance was identified in the RSFIC at [11.14] in the context of the Secretary’s contention that there were no “special circumstances” for the purposes of s 95(2) of the Administration Act. Specifically, the Secretary submitted that the applicant’s financial circumstances did not provide such special circumstances considering that the applicant “travels regularly between India and Australia”: RSFIC at [11.14]. Second, the question whether the applicant had applied for jobs appeared to have some relevance to whether the applicant had complied with his obligation to report on his job search activities: TD [117]. It follows that these topics were not, as the applicant contends, necessarily irrelevant or without reason. Furthermore, there is no evidence that the applicant objected to cross-‍examination on any of these topics before the Tribunal. Nor, in any event, did the applicant articulate any logical connection between the fact that cross-examination by the Secretary touched on these topics on the one hand, and the feared deviation from the course of the Tribunal deciding the case on its merits, on the other hand. In short, the allegation of apprehended bias lacks any merit. It is a serious allegation which should not have been made.

80    Finally, to the extent, if at all, that the applicant alleged actual bias against the Tribunal member in the form or prejudgment, the applicant had to establish that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] (Gleeson CJ and Gummow J, with Hayne J agreeing at [176]). There is not a skerrick of evidence that supports the proposition that the Tribunal member brought a closed mind in this sense to bear on the issues. Furthermore, an allegation of this nature must be strictly pleaded and proved which manifestly it has not been. As the NSW Court of Appeal held in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68] (Gleeson JA, Emmett JA and Tobias AJA agreeing at [4] and [252] respectively):

A finding of actual bias is a grave matter… Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required…

81    It follows that the allegation of apprehended bias, and to the extent it was made, any allegation of actual bias, are utterly lacking in merit.

5.    CONCLUSION

82    For these reasons, the appeal lacks merit and must be dismissed with costs.

Associate:

Dated:    16 February 2024