Federal Court of Australia

Fahy v Administrative Appeals Tribunal [2024] FCA 170

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the second respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    On 20 September 2017, the appellant, Ms Fahy, commenced (but did not complete) an online claim form for a type of social security benefit known as a “parenting payment” (hereafter, the “Parenting Payment”), which provides income support payment for a young child’s main carer. Ms Fahy alleges that, on that same date, she printed out, hand-completed and posted to Centrelink (the Commonwealth agency responsible for administering the Parenting Payment scheme) a completed Parenting Payment claim form.

2    More than two-and-a-half years later, Ms Fahy cancelled the online Parenting Payment claim that she had previously commenced, then completed and submitted a new one. A month later (on 5 May 2020), her claim was accepted with effect from 23 March 2020 (I shall refer to that acceptance hereafter as, the “Decision”).

3    The following events transpired after the Decision, namely:

(1)    on 26 May 2020, Ms Fahy requested an internal review of the Decision, contending that she should have been granted the Parenting Payment from 20 September 2017 onwards;

(2)    on 4 November 2020, an officer authorised by the second respondent (the “Secretary”) to review the Decision decided, on review, to affirm it (I shall refer to that affirmation hereafter as, the “ARO’s Decision”);

(3)    On 9 December 2020, Ms Fahy filed an application for review of the ARO’s Decision with the Administrative Appeals Tribunal (the “AAT”)—specifically, in its Social Services and Child Support Division;

(4)    on 5 March 2021, the AAT affirmed the ARO’s Decision (hereafter, the “First AAT Decision”);

(5)    on 11 March 2021, Ms Fahy lodged an application for review of the First AAT Decision with the General Division of the AAT; and

(6)    on 9 September 2021, the General Division of the AAT:

(a)    determined that Ms Fahy should be granted the Parenting Payment with effect from 4 February 2020; and, thus,

(b)    set aside the First AAT Decision and remitted the matter to the Secretary for reconsideration,

(I shall refer to that decision, hereafter, as the “Second AAT Decision”).

4    By a further amended notice of appeal from a tribunal dated 15 March 2022 (hereafter, “the Application”), Ms Fahy moves the court for relief in the form (amongst others) of a finding that her Parenting Payment claim was made under Schedule 2 and s 16 of the Social Security (Administration) Act 1999 (Cth) (hereafter, the “Administration Act”) on 20 September 2017, and that she should receive additional payments by reason of that.

5    For the reasons that follow, the Application will be dismissed, with costs.

The statutory framework

6    Section 18 of the Social Security Act 1991 (Cth) (hereafter, the “SS Act”) defines (and defined) “parenting payment”:

18 Parenting payment definitions

In this Act, unless the contrary intention appears:

…

parenting payment means:

(a)    pension PP (single); or

…

pension PP (single) means parenting payment whose rate is worked out under the Pension PP (Single) Rate Calculator in section 1068A.

…

7    Section 23(1) of the SS Act defines “social security pension” to include parenting payments, “social security payment” to include social security pensions, and “income support payment” to also include social security pensions:

23 Dictionary

(1)    In this Act, unless the contrary intention appears:

…

social security payment means:

(a)    a social security pension; or

…

social security pension means:

…

(e)    a pension PP (single); or

…

income support payment means a payment of:

…

(b)    a social security pension; or

….

8    Thus, Ms Fahy’s claim concerns a social security payment, which is a kind of income support payment.

9    The eligibility criteria for the Parenting Payment is (and was) governed by s 500 of the SS Act. There is no dispute that Ms Fahy was eligible for the Parenting Payment at all of the relevant times.

10    Part 3 of the Administration Act is entitled “provision of benefits”. Division 1 of that part is entitled, “claim for social security payment or concession card”. That division commences with s 11, which relevantly provides (and provided):

11 General rule

(1)    Subject to subsections (2) and (3) and Subdivision B, a person who wants to be granted:

(a)    a social security payment…

…

must make a claim for the payment or card in accordance with this Division.

…

11    Section 16 of the Administration Act (which is also within Div 1 of Pt 3) specifies how a claim for a social security payment is to be made. Relevantly, it provides (and provided):

16 How to make a claim

(1)    A person makes a claim for a social security payment or a concession card:

(a)    by lodging a written claim for the payment or card; or

(b)    by making the claim in accordance with subsection (7).

(2)    A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.

…

(4)    A written claim is lodged by being delivered:

(a)    to a person apparently performing duties at a place approved for the purpose by the Secretary; or

(b)    to a person approved for the purpose by the Secretary; or

(c)    in a manner, and to a place, approved for the purpose by the Secretary.

…

(7)    A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.

…

12    Ordinarily, a social security payment becomes payable on the “start day”. The relevant provisions are as follows, namely:

41 Commencement

(1)    Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.

(2)    Unless another provision of the social security law provides otherwise, a concession card takes effect on the person’s start day in relation to the card.

42 Start day

For the purposes of the social security law, a person’s start day in relation to a social security payment or a concession card is the day worked out in accordance with Schedule 2.

13    Schedule 2 to the Administration Act provides (and provided) that, subject to certain exceptions that do not presently apply, the “start day” in relation to a claim for a social security payment is the day on which the claim is made. Item 3 of Sch 2 provides as follows, namely:

3 Start day—general rule

(1)    If:

(a)    a person makes a claim for a social security payment; and

(b)    the person is qualified for the payment on the day on which the claim is made;

the person’s start day in relation to the payment is the day on which the claim is made.

…

14    Thus, in the normal case, a social security payment becomes payable on the day on which the claim is made, which, in the case of a written claim, is when it is lodged. In turn, a written claim is lodged when it is “delivered”.

15    There are some exceptions. Sections 12, 13 and 15 of the Administration Act provide (and provided) that a person may be deemed to have made a claim for an income support payment in certain cases, the relevance of which will become apparent. Those provisions are as follows, namely:

12 Deemed claim in certain cases

(1)    The Secretary may determine that, for the purposes of the social security law, a person is taken to have made a claim for an income support payment (the new payment), if:

(a)    the person became qualified for the new payment while receiving another income support payment; or

(b)    the person became qualified for the new payment immediately after ceasing to receive another income support payment.

(2)    The person is taken to have made the claim for the new payment on the day specified in the Secretary’s determination. That day must not be earlier than:

(a)    the day that is 13 weeks before the day on which the Secretary’s determination is made; or

(b)    if the person became qualified for the new payment after the day referred to in paragraph (a)—the day on which the person became qualified for the new payment.

…

13 Deemed claim—person contacting Department about a claim for a social security payment

(1)    For the purposes of the social security law, if:

(a)    the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and

(aa)    the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and

(b)    the person is, on the day on which the Department is contacted, qualified for the social security payment; and

(d)    the person lodges a claim for the social security payment within 14 days after the Department is contacted;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

(2)    For the purposes of the social security law, if:

(a)    the Department is contacted by or on behalf of a person in relation to a claim for a social security payment, other than crisis payment or special employment advance; and

(aa)    the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and

(b)    the person is, on the day on which the Department is contacted, qualified for the social security payment; and

(d)    the person lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(e)    the Secretary is satisfied that:

(i)    throughout the period starting on the day on which the Department was contacted and ending on the day on which the person lodged the claim, the person was suffering from a medical condition; and

(ii)    that medical condition, or circumstances related to that medical condition, had a significant adverse effect on the person’s ability to lodge the claim earlier;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

(3)    For the purposes of the social security law, if:

(a)    the Department is contacted by or on behalf of a person (the claimant) in relation to a claim for a social security payment, other than crisis payment or special employment advance; and

(aa)    the claimant is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and

(b)    the claimant is, on the day on which the Department is contacted, qualified for the social security payment; and

(d)    the claimant lodges a claim for the payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(e)    the Secretary is satisfied that:

(i)    throughout the period starting on the day on which the Department was contacted and ending on the day on which the claimant lodged the claim, the claimant was caring for, or was the partner of, another person; and

(ii)    throughout that period, the other person suffered from a medical condition; and

(iii)    the medical condition, or circumstances related to the medical condition, from which the other person was suffering had a significant adverse effect on the claimant’s ability to lodge the claim earlier;

the claimant is taken to have made a claim for the social security payment on the day on which the Department was contacted.

(3A)    For the purposes of the social security law, if:

(a)    the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and

(aa)    the person is, on the day on which the Department is contacted, included in a class of persons determined in an instrument under section 14A; and

(b)    the person is, on the day on which the Department is contacted, qualified for the social security payment; and

(d)    the person lodges a claim for the social security payment more than 14 days, but not more than 13 weeks, after the Department is contacted; and

(e)    the Secretary is satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier;

the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.

…

15 Deemed claim—incorrect or inappropriate claims

(1)    For the purposes of the social security law, if:

(a)    a person makes an incorrect claim; and

(b)    the person subsequently makes a claim for a social security payment for which the person is qualified; and

(c)    the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made a claim for that social security payment on the day on which he or she made the incorrect claim.

(2)    For the purposes of this section, a claim made by a person is an incorrect claim if:

(a)    the claim is for a social security payment, other than a supplementary payment; and

(b)    when the claim was made, the person was not qualified for the payment claimed but was qualified for another social security payment, other than a supplementary payment.

(3)    For the purposes of this section, a claim made by a person is an incorrect claim if:

(a)    the claim is for a supplementary payment; and

(b)    when the claim was made, the person was not qualified for the payment claimed but was qualified for another supplementary payment.

(4)    For the purposes of the social security law, if:

(a)    a person makes a claim for a pension, allowance, benefit or other payment under a law of the Commonwealth, other than this Act or the 1991 Act, or under a program administered by the Commonwealth, that is similar in character to a social security payment, other than a supplementary payment (the initial claim); and

(b)    when the claim was made, the person was qualified for a social security payment, other than a supplementary payment; and

(c)    the person subsequently makes a claim for the social security payment referred to in paragraph (b) (the later claim); and

(d)    the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made the later claim on the day on which the initial claim was made.

(4A)    For the purposes of the social security law, if:

(a)    a person makes a claim for an income support payment (the initial claim); and

(b)    on the day on which the initial claim is made, the person is qualified for another income support payment (the other income support payment); and

(c)    the person subsequently makes a claim for the other income support payment (the later claim); and

(d)    the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made the later claim on the day on which the initial claim was made.

(4B)    For the purposes of the social security law, if:

(a)    a person makes a claim for a supplementary payment (the initial claim); and

(b)    on the day on which the initial claim is made, the person is qualified for another supplementary payment (the other supplementary payment); and

(c)    the person subsequently makes a claim for the other supplementary payment (the later claim); and

(d)    the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made the later claim on the day on which the initial claim was made.

(5)    In this section:

supplementary payment means:

(a)    carer allowance; or

(b)    double orphan pension; or

(c)    education entry payment; or

(i)    mobility allowance; or

(j)    pensioner education supplement.

16    Section 34 of the Administration Act governs the manner in which a claim can be withdrawn. It is not disputed that, on 5 April 2020, Ms Fahy validly withdrew the online claim that she had previously commenced on 20 September 2017—it is the hard copy claim that she says was posted on 20 September 2017 that is in issue presently.

The Second AAT Decision

17    The AAT stated the main issue for its consideration as follows:

… Ms Fahy claims that she posted, by ordinary mail, a completed PP claim form to Centrelink and contends that she should be paid PP from this date. Put simply, the issue for consideration by this Tribunal is whether Ms Fahy should be paid PP as from 20 September 2017, instead of 23 March 2020, or from some other date if any of the deeming provisions in the Administration Act apply.

18    The AAT then proceeded to consider whether Ms Fahy “made a claim” on 20 September 2017. It considered Ms Fahy’s evidence as follows:

Ms Fahy gave evidence at the hearing that she encountered difficulties completing the online claim and reached a point where she was unable to proceed to the next page of the online claim and this prevented her from completing the online claim form. A printout of the information that was submitted by Ms Fahy as part of her partially completed online PP claim on 20 September 2017, can be found at ST-Documents ST1.

Ms Fahy told the Tribunal that when she encountered technical difficulties on 20 September 2017, on the same day, she printed out, completed, and posted to Centrelink, a hard copy PP claim form. When asked by the Tribunal where she had posted the form, Ms Fahy said she had posted it in a post-box located in front of the Warragul Post Office. When asked by the Tribunal whether Ms Fahy had sent the PP claim form by registered mail, express post or any other type of post where she was given a tracking number, she confirmed that she had not done so and that she had sent the hard copy PP claim form by ordinary mail.

…

19    The AAT concluded on the evidence that:

(1)    on 20 September 2017, Ms Fahy had attempted to complete an online PP claim form through Centrelink’s website; and

(2)    after experiencing technical difficulties, she had downloaded from Centrelink’s website, printed and completed a hard copy PP claim; but

(3)    Ms Fahy did not post that form as she claimed to have.

20    The AAT added:

The Tribunal wants to make it clear that it is not suggesting that Ms Fahy has sought to deliberately mislead the Tribunal about this factual matter. Instead, the Tribunal considers it likely that Ms Fahy’s memory is flawed given the significant passage of time, and while she might believe that she returned the form by post as claimed, it is more likely than not that she mistakenly remembers posting it when in fact she did not.

21    Its conclusion that Ms Fahy did not post the Parenting Payment claim form rested upon the following reasons, namely (references omitted):

Firstly, Ms Fahy’s (social security payment) claim history…indicates that before September 2017, Ms Fahy had claimed other types of social security payments, i.e. family tax benefits, parenting payment and Newstart allowance (NSA). The Tribunal infers from this that as at 20 September 2017, Ms Fahy was familiar with the way in which Centrelink operates when processing claims, and specifically, that Centrelink would not “do nothing” upon receiving a claim but instead, would contact the claimant to notify them of Centrelink’s decision whether to accept the claim or whether further information was required to assess the claim. The Tribunal is satisfied that if Ms Fahy had posted the PP claim, she would have twigged there was something amiss when she did not hear back from Centrelink about it.

After 20 September 2017, there was no evidence before the Tribunal of Ms Fahy having had any further communications with Centrelink until 2020 about the status or outcome of her purported 2017 PP claim. Specifically, Ms Fahy did not follow it up at any stage during this period to find out what decision had been made by Centrelink about her claim. Ms Fahy told the Tribunal that she did not follow it up because she had been granted parental leave payments and she did not think she would also be entitled to PP. Evidence before the Tribunal also records that Ms Fahy has claimed that she had spoken to “associates of Centrelink” who she knew informally (but not any Centrelink representative directly or officially), and they had told her that Centrelink had probably rejected her PP claim because she had not immunised her child.

The Tribunal does not accept either of these explanations as to why Ms Fahy did not follow up with Centrelink in relation to the purported PP claim made on 20 September 2017. The Centrelink records indicate that Ms Fahy contacted Centrelink on 16 October 2019 to enquire about family tax benefits. At that time, Ms Fahy had the opportunity to also enquire about the status of the PP claim that she claimed to have made in September 2017, or to confirm her assumption about whether this claim had been rejected for either of the reasons referred to in the above paragraph. The fact that Ms Fahy did not do so, supports a finding that it was more likely than not that she did not follow through with submitting the hard copy PP claim, by posting it as claimed. Ms Fahy, by her own evidence, said that this was a stressful time for her. The Tribunal notes that she separated from her partner eight months earlier in January 2017. Ms Fahy was also caring for a three-month old child as a single parent. It is within the realm of possibilities that she had every intention of posting the hard copy PP claim, but the Tribunal considers it more likely than not, that she did not get around to doing so.

Secondly, there are no records on Centrelink’s computer system of the hard copy PP claim form having been received by Centrelink at any time after 20 September 2017. Ms Fahy refers to a statement made by a Centrelink employee suggesting that Australia Post or Centrelink may have lost the completed claim form. The Tribunal considers that this evidence is not probative and at best, constitutes a speculative comment by a person who was not a direct witness to Ms Fahy posting the PP claim form on 20 September 2017. The Tribunal expects that this comment by the Centrelink representative was most likely made to appease Ms Fahy. Be that as it may, it does not assist the Tribunal in determining the likelihood or not of the claim form having been posted by Ms Fahy on 20 September 2017 as claimed. The absence of any record held by Centrelink evidencing or referring to the receipt of the completed hard copy PP claim form, weighs in favour of the Tribunal finding that this form was not posted by Ms Fahy on 20 September 2017 as claimed or at all.

Thirdly, there is no corroborating evidence before the Tribunal that the claim form was posted on 20 September 2017. Ms Fahy could have chosen to pay a modest fee to send the claim form by express post, or by registered post, whereby she would have been issued with a tracking number able to be retained and produced by her as evidence of her having posted this important document. Furthermore, the Tribunal asked Ms Fahy at the hearing, whether she had taken a photocopy of her completed PP claim form and retained it.

Ms Fahy said she had not done so. Ms Fahy referred to a covering letter dated 20 September 2017 which was included in the T-Documents. The Tribunal has considered that document but taken alone, it does not serve to persuasively corroborate her claim that she posted the hard copy PP claim form on 20 September 2017 as claimed. The Tribunal considers that the absence of any further corroborating evidence, supports its finding that the claim form was not posted by Ms Fahy on 20 September 2017.

Fourthly, while the Tribunal is not bound to apply the Evidence Act 1995 (Cth) in applications before it, the Tribunal notes that when a notice is sent by ordinary post, there is a rebuttable presumption that it is deemed to have been delivered within seven days after it was posted, unless it can be proved to the contrary. The Tribunal considers that this reflects a general expectation, which is well founded, that when items are sent by ordinary post using Australia Post services, in almost all cases, they reach their intended destination. The Tribunal acknowledges that it is always possible that someone at Australia Post or at Centrelink might have misplaced Ms Fahy’s PP claim form, but the Tribunal considers the chance of this occurring is remote. The Tribunal considers it most unlikely that Australia Post would have lost or not delivered Ms Fahy’s completed PP claim form if it had been posted by her.

22    The AAT then turned to consider the effect of the deeming provisions of the Administration Act (above, [15]), concluding that:

(1)    s 15(1), read in conjunction with subsections (2) and (3), did not apply because Ms Fahy was “qualified to receive PP” (that is, she had not made an “incorrect claim”);

(2)    s 15(4) and 15(4A) of the Administration Act did not apply because Ms Fahy had not made an earlier claim “similar in character to a social security payment”, nor had she made an earlier claim while qualifying “for another income support payment”;

(3)    s 15(4B) did not apply because “supplementary payments” did not include parenting payments;

(4)    s 13(1) did not apply because it requires a claimant to have lodged their claim within 14 days after they contacted Centrelink, which Ms Fahy had not; and

(5)    s 13(2), (3) and (3A) did not apply because they require a claimant to have lodged their claim more than 14 days but not more than 13 weeks after contacting Centrelink, which Ms Fahy had not; but

(6)    s 12(1) did apply because, at the point that she became qualified for the Parenting Payment (that is, upon the birth of her child), Ms Fahy was in receipt of “another income support payment” (namely, one known as “Newstart Allowance”); and, therefore,

(7)    Ms Fahy should be taken to have made the claim for the new (Parenting) payment 13 weeks before the 5 May 2020 decision—accordingly the Parenting Payment should commence with effect from 4 February 2020.

The application

23    Ms Fahy’s present application proceeds under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth), which relevantly provides that:

Appeal on question of law

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

24    The phrase “question of law” is of some significance. In Onassys v Comcare [2022] FCA 90, Abraham J observed (at [19]-[21]):

Whether a notice of appeal contains a question of law is an issue of substance and not form. In cases of doubt, the Court will consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, the Tribunal’s reasons for its decision and, having considered all those matters, satisfy itself that there is in fact a question of law: Haritos at [94]. If the question, properly analysed, is not a question of law, no amount of formulary can make it into a question of law: Haritos at [92].

…

The fact that an appellant is unrepresented is a relevant matter to be taken into account: see for example, Chen v Secretary, Dept of Social Services [2019] FCA 1155 at [35]; Lim v Secretary, Dept 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].

25    By her further amended notice of appeal, Ms Fahy identifies five grounds of appeal, namely:

1.    The decision-maker engaged in illogical and unreasonable fact-finding.

2.    Certain corroborative evidence has been excluded from consideration.

3.    The decision-maker has made offensive and discriminating claims against the Applicant in accordance with the Charter of Human Rights and Responsibilities Act 2006 and the Equal Opportunity Act 2010.

4.    It is the Duty of the Department of Social Services, Centrelink, and the AAT to uphold the Charter of Human Rights and Responsibilities Act 2006 in accordance with the Australian Constitution.

5.    Notice served on Federal Government 5 August 2020 relating to mandatory immunisations.

26    That same document also identifies ten questions of law that Ms Fahy says arise for the court’s consideration. It is convenient to replicate them in full:

1.    Jurisdictional Error.

2.    Natural Justice has not been observed.

3.    Procedural Fairness has been denied.

4.    In my letter dated 24 February 2021 to the Case Manager regarding my first appeal to the Tribunal (found at T11 pg. 39-41 of the Appeal Book) the details and particulars of my circumstance are clearly stated regarding this matter. I also acknowledge my dissatisfaction with the way this matter had been handled by the Appeals Review Officer pertaining to procedural fairness and jurisdictional error with certain facts and details omitted from consideration, which has been evident throughout every step of the appeals process leading up to being heard by this Court.

5.    I find it completely degrading and an unlawful attack on my reputation pursuant to Section 13(b) of the Charter of Human Rights and Responsibilities Act 2006, for the Tribunal to suggest that my memory is flawed and that I mistakenly remembered doing something when in fact I did not - in Paragraph 25 of the Tribunals Decision and Reasons for Decision dated 9 September 2021, enclosed as Annexure LF1 in the Applicants filed Affidavit (the Tribunals Considerations). There is no evidence to suggest that my memory is flawed and therefore this claim is unfair and unjust. Furthermore, if I did not post my claim like the Tribunal suggests, would it not also be fair to consider the fact that I would have come across the un-posted claim addressed to Centrelink at a later date and then proceeded to post it. This shows the biased nature of the Tribunals Consideration.

6.    At Paragraph 27 of the Tribunals Considerations, the Tribunal has relied on irrelevant material. I knew I was entitled to PPS as I had been informed of this during the telephone discussion with their office on the 20 September 2017, when I was told to submit the claim and that the payment would be transferred across automatically once Paid Parental Leave (PPL) ceased. Furthermore, I was not advised that my claim would have been rejected by my associates employed by the agency, I was advised I would not be receiving the full amount I was entitled to due to my daughters immunisation status. I presumed PPS and Family Tax Benefit (FTB) were one in the same payment as when PPL ceased in January 2018, FTB was the only payment I was receiving.

7.    This led me to initiate communications with Centrelink on the 28 June 2018 and 31 August 2018 expressing my concerns about immunisations requirements and stating that I should be entitled to more financial assistance. It seems the Tribunal has been biased and lacking procedural fairness in ignoring this relevant material. I firmly reiterate that had Centrelink responded to either of these letters and engaged in further enquires, this matter would have been sorted out then and there.

It is curious as to why the Tribunal chose to ignore these earlier communications, insinuating that I had no contact with Centrelink until 16 October 2019 in Paragraph 28 of the Tribunals Considerations. This supports the finding that Jurisdictional Error, Natural Justice and Procedural Fairness have all been infringed upon in the Tribunals Considerations, instead of the finding that I did not follow through with posting my hard copy PPS claim.

8.    The Tribunal has also discriminated against my Paternal and Marital Status at Paragraph 28 of the Tribunals Considerations in accordance with the Equal Opportunity Act 2010. Caring for a 3 month old child is complete and utter bliss when there are no associated complications regarding health and well-being. They sleep, eat, and are happy. There is so much time to get everything done with a 3 month old, no matter if you are in a relationship or not. There were many communications with Centrelink during this period to ensure I received PPL, and so much supporting documentation that I was continually being asked to supply, which I always did with care and in an extremely timely manner.

9.    In Paragraph 29 of the Tribunals Considerations, the Centrelink employee the Tribunal refers to was actually the first Appeals Review Officer I dealt with. Renee clearly stated that the claim could have been lost at their end, which would have been why it was never uploaded to my file, or lost by Australia Post. It is interesting how the Tribunal can consider this as a speculative comment by a person who was not a direct witness to me posting my PPS Claim, however the Tribunal can make considerations based on speculative comments about my character and personality without ever having witnessed the way I am and the way I live my life. This could be considered extremely biased.

10.    In Paragraph 30 of the Tribunals Considerations, the Tribunal has again displayed Jurisdictional Error, and not upheld Natural Justice or Procedural Fairness, choosing to ignore certain corroborating evidence yet again. Namely, the telephone record of 20 September 2017 and the generic correspondence from Centrelink of that same day regarding my eligibility for payment and concession card.

27    It is apparent that Ms Fahy prepared the further amended notice of appeal unaided by legal representation and she appeared on her own behalf at the hearing (as she had done before the AAT). Those observations serve to contextualise others that I must now make about her originating process. I should hope to make them without visiting any offence—indeed, it should be noted that Ms Fahy impressed at the hearing as a diligent and committed advocate in her own cause, and made her submissions intelligently, with admirable skill and courtesy.

28    Nonetheless, some reframing of Ms Fahy’s further amended notice of appeal is necessary, at least for the following reasons:

(1)    Ms Fahy’s subjective dissatisfaction with how her claim was handled, her subjective feelings in relation to whether she felt that the reasons given for the Second AAT Decision were degrading or offensive, and her subjective experiences in raising children are not matters for the court to consider in this appeal—what is relevant is whether the Second AAT Decision was a product of legal error;

(2)    operating in a federal jurisdiction, this court has no presently-relevant power in relation to the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Equal Opportunity Act 2010 (Vic); and there are no relevant obligations conferred by those enactments upon the Department of Social Services, Centrelink or the AAT;

(3)    in any case, I am quite unable to find any statement within the Second AAT Decision that could fairly amount to a breach of Ms Fahy’s human rights;

(4)    operating in its capacity as an appellate body, this court would not usually consider new evidence that was not before the AAT at the time of the Second AAT Decision (including the additional factual claims that are outlined in Ms Fahy’s further amended notice of appeal);

(5)    the only decision that is relevant to the present appeal is the Second AAT Decision and the primary issue to which the court’s attention must turn is whether it was tainted by an error or errors of law; and

(6)    government policies relating to mandatory immunisation have no bearing on this appeal—at the risk of repetition, all that is relevant is whether the Second AAT Decision was attended by an appellable error of law.

29    Reading her further amended notice of appeal fairly and understanding the submissions that were made in support of it, it is apparent that Ms Fahy’s appeal raises the following questions for the court’s consideration, namely:

(1)    whether the Second AAT Decision was founded upon a legally unreasonable conclusion that Ms Fahy mistakenly remembered posting her Parenting Payment claim, noting that:

(c)    there was no evidence to suggest that Ms Fahy’s memory was flawed;

(d)    had Ms Fahy not posted her claim, she would have come across the unposted claim at a later date and then posted it; and

(e)    the Second AAT Decision involved improper speculation as to Ms Fahy’s conversations, character and personality;

(2)    whether the Second AAT Decision was infected by actual or apprehended bias manifesting in the AAT’s:

(f)    concluding that Ms Fahy mistakenly remembered posting the claim on the basis of what Ms Fahy would or would not have done had she actually done so;

(g)    failing to address Ms Fahy’s communications with Centrelink on 28 June 2018 and 31 August 2018; and

(h)    making comments as to Ms Fahy’s character and personality;

(3)    whether the Second AAT Decision took into account irrelevant considerations, namely:

(i)    Ms Fahy’s oral evidence given to the AAT;

(j)    speculative comments about Ms Fahy’s character and personality; and

(k)    evidence before the AAT as to who Ms Fahy had spoken to about her claim and what they had said;

(1)    whether the Second AAT Decision failed to take account of relevant considerations, namely:

(l)    Ms Fahy’s communications with Centrelink on 28 June 2018 and 31 August 2018; and

(m)    Centrelink’s telephone record of 20 September 2017 and correspondence from Centrelink of the same date; and

(2)    as a consequence of the above, whether the Second AAT Decision was affected by error, or was such as to deny Ms Fahy natural justice or procedural fairness.

Legal unreasonableness

30    Ms Fahy submits that it was not open to the AAT to find that her memory was flawed and that she mistakenly remembered doing something which, in fact, she did not do (namely, send her Parenting Payment claim form in September 2017). That, she says, is so because there was no evidence to support a finding of flawed recall.

31    That contention cannot be accepted. In the reasons for its decision, the AAT referred to the evidence upon which it relied, most notably the significant period of time that elapsed between September 2017 and April 2020, when Ms Fahy reanimated her claim. That, it reasoned, made it unlikely that the claim had been posted as Ms Fahy had alleged.

32    Reasoning in that way was permissible and cannot be impugned as illogical or unreasonable to a point that reflects an error of law. Furthermore, it should be borne in mind that the AAT did not state conclusively that Ms Fahy’s memory was flawed; merely that it was “likely” flawed. Ultimately, not much turns on that: the finding of greater significance was that Ms Fahy did not post the form as she claimed to have done. Whether her contention to the contrary reflects faulty recall on her part doesn’t much matter.

33    Ms Fahy submits that, had she completed but not posted her claim, she would later have come across it and then posted it. That contention is founded upon the misunderstanding that the AAT made a finding that she mistakenly remembered posting the claim. As stated above, that was merely considered the most likely reconciliation of the competing factual hypotheses. In any event, accepting that Ms Fahy’s contention is not without force, there is no occasion here to speculate. The reality remains that there was nothing illogical or unreasonable to the point of legal error about the AAT’s path of reasoning. The worst that Ms Fahy might say about it is that it was factually wrong; but that is not the inquiry upon which the court is now called upon to embark.

34    Ms Fahy observes that the Second AAT Decision refers to her evidence about a “Centrelink employee”—who was in fact “the first Appeals Review Officer I dealt with”—and that that person “clearly stated that the claim could have been lost at their end, which would have been why it was never uploaded to my file, or lost by Australia Post”. The Second AAT Decision correctly characterised what Ms Fahy claims was said. Nonetheless, Ms Fahy contends that it is “interesting” that the AAT considered the statement by the Appeals Review Officer to be a “speculative comment”.

35    With great respect, I am unable to agree. The comment in question was unquestionably speculative. Ms Fahy’s real complaint is that the view expressed to her ought to have been preferred over the alternative narrative (namely, that she never posted her Parenting Payment claim in 2017), which of course also involved a degree of speculation.

36    Again with great respect, it is not for this court to second-guess the AAT’s factual findings. It might well have been open to the AAT to conclude that Ms Fahy, in fact, did post her claim; and that it was lost somewhere along the chain after she did so. That conclusion, had it been reached, would undoubtedly align with what Ms Fahy was told was one possible explanation as to why her claim had not been actioned. But the AAT was not obliged so to find. Given the other material before it, its failure to reach that conclusion cannot be impugned as illogical or unreasonable or otherwise reflective of an error of law. The worst that might be said of it is that it is factually wrong. That would not suffice for present purposes.

37    Ms Fahy then complains that the Tribunal unlawfully speculated as to her character and personality. As I understood the contention, she complains that by rejecting the factual narrative that she advanced, the AAT impugned her personally. Again, that contention cannot be accepted. The AAT did no more than conclude, permissibly, that Ms Fahy’s claim was never posted; and that her insistence to the contrary was a product of faulty recall on her part. There was no malice to that reasoning; nor anything that could adversely bear upon any aspect of Ms Fahy’s character or personality. Beyond an innocuous comment about the unmistakable fallibility of human memory, the AAT did not make any finding as to Ms Fahy’s character or personality at all. Respectfully, the complaint is unfounded.

38    There is nothing in the Second AAT Decision that can fairly be said to reflect unreasonable or illogical reasoning reflective of legal error. On the contrary, the findings that the AAT preferred were open to it on the evidence that it had.

Bias

39    Ms Fahy submits that the AAT’s finding that she mistakenly remembered posting her Parenting Payment claim in September 2017 is demonstrative of actual or apprehended bias against her.

40    In EBZ20 v ECA20 [2022] FCA 1098, [48], I made the following observations, which I adopt for present purposes:

Allegations of bias are serious. A litigant who makes such an allegation is obliged to seek relief reflecting that severity and an intermediate appeal court dealing with it and other discrete grounds is obliged to deal with allegations of bias first. In Concrete Pty Ltd v Paramatta Design & Developments Pty Ltd (2006) 229 CLR 577, 611 [117], Kirby and Crennan JJ observed as follows:

It must [deal first with an allegation of bias] because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues.

41    Here, as in that case, I did not require that Ms Fahy make any such election because it was and remains apparent, with respect, that her contention cannot be accepted. In order to establish actual bias, it must be shown that the AAT was committed to a conclusion already formed so as to be incapable of alteration, whatever evidence or argument might be put before it: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 532 [72] (Gleeson CJ and Gummow J).

42    Whatever might be said of it, that is not a criticism that can fairly be levelled against the AAT here. The Second AAT Decision specifically refers to the kinds of evidence that might have led to a different conclusion about the posting of the September 2017 Parenting Payment claim (for example, a photocopy of the completed claim, a tracking number, or independent witness testimony). Actual bias very clearly cannot be established and nothing more need be said about it.

43    In order to establish apprehended bias, Ms Fahy must first identify what it is said might have led the AAT to decide her case otherwise that on its legal and factual merits; and, then, must show that there is something about the state of affairs so identified that might lead a fair-minded lay observer reasonably to apprehend that the AAT might not have brought an impartial mind to the resolution of her claim: Isbester v Knox City Council (2015) 255 CLR 135, 146 [20]-[21] (Kiefel, Bell, Keane and Nettle JJ).

44    Ms Fahy’s claims of apprehended bias must fall at the first hurdle. There is no suggestion (much less any evidence to prove) that the AAT had any interest in the outcome of Ms Fahy’s claim, or otherwise was affected by any other reality that might be said to have tempted its resolution otherwise than on its merits. That the AAT was minded to reject the factual narrative that she advanced concerning the posting of her September 2017 claim is not nearly sufficient.

45    Ms Fahy submits that the Second AAT Decision failed to address her communications with Centrelink on 28 June 2018 and 31 August 2018, and that that failure discloses the bias of which she now complains (or is otherwise reflective of her having been denied procedural fairness). I cannot accept that contention. In point of fact, the Second AAT Decision squarely refers to those communications in the following terms:

In response to the tribunal asking the reason she did not follow up the claim when she was not advised of the outcome, Miss Fahy said Centrelink should have followed it up with her. She also referred to letters she sent to Centrelink in June 2018 and August 2018 and said she had not received any response, in writing or by a telephone call, to the letters. She said the letters made it clear that she was a single parent and Centrelink were aware that she was in need of money. The tribunal pointed out that the letters referred only to payment of family tax benefit and did not refer to parenting payment or her financial circumstances. In response she said that her understanding was that family tax benefit was only paid to single parents. Her understanding is incorrect and family tax benefit can be paid to a person who is a member of a couple and/or to a person in receipt of employment income.

46    It is simply not the case that the Second AAT Decision failed to address Ms Fahy’s communications with Centrelink on 28 June 2018 and 31 August 2018. No finding of actual or apprehended bias (or lack of procedural fairness) can properly be made.

47    Ms Fahy then submits that the AAT’s comments as to her character and personality are also evidence of bias. For the reasons outlined above, the AAT did not make any such comments; and, even if it did, that would still not suffice to establish actionable bias in the way that the authorities contemplate.

48    There is no proper basis upon which this court might find that the Second AAT Decision was a product of actual or apprehended bias.

Irrelevant considerations

49    Ms Fahy next contends that the statement in the Second AAT Decision that she “told the [AAT] that she did not follow [her 2017 Parenting Payment claim] up because she had been granted parental leave payments and she did not think she would also be entitled to PP” was “irrelevant material”. Ms Fahy maintains that she was, at all times, aware of her entitlement to Parenting Payment.

50    Whether Ms Fahy in fact knew that she was entitled to Parenting Payment is of no moment. What the AAT relied on—and was entitled to rely on—was what Ms Fahy told it. There is no evidence before this court that would permit or require a finding that the AAT misunderstood any submission that Ms Fahy made.

51    Further, I do not accept that the representation to which the AAT referred was irrelevant to the task with which it was seized. It was, quite plainly, a matter of some significance that Ms Fahy waited more than two-and-a-half years to reanimate her Parenting Payment claim. The AAT was entitled, if not obliged, to consider possible explanations for that delay and how they might bear upon its determination of Ms Fahy’s challenge. It did so in a way that was orthodox.

52    Ms Fahy further submits that the AAT indulged irrelevant “considerations based on speculative comments about [her] character and personality”. I have already addressed that contention at a headline level. I need not say any more about it.

53    Lastly, Ms Fahy submits that the AAT relied upon irrelevant considerations when it stated:

Evidence before the Tribunal also records that Ms Fahy has claimed that she had spoken to “associates of Centrelink” who she knew informally (but not any Centrelink representative directly or officially), and they had told her that Centrelink had probably rejected her PP claim because she had not immunised her child.

54    The AAT did not accept that as a possible explanation as to why Ms Fahy did not follow up on the claim she said that she made on 20 September 2017. Ms Fahy asserts that, in fact, she was not advised that her claim would be rejected; merely that it would be reduced. Again, it is not possible on the evidence before me to entertain a finding that the AAT misunderstood what Ms Fahy had submitted. That being the case, there are no grounds for concluding that the AAT impermissibly considered an irrelevant consideration as alleged.

55    It follows that I do not accept that the AAT, in making the Second AAT Decision, took account of irrelevant considerations.

Relevant considerations

56    Ms Fahy contends that the AAT ought to have considered “the fact that I would have come across the un-posted claim addressed to Centrelink at a later date and then proceeded to post it”. It’s failure to do so, she says, amounts to an error of law, which this court should correct on appeal.

57    Plainly, there is no reason to doubt that Ms Fahy believes—fervently so—that, had she not posted her claim as she alleges, she would later have come to be aware of that. That, though, is an invitation to indulge a hypothetical. As has already been addressed (in the context of legal unreasonableness), the AAT was entitled on the material before it not to accept that narrative. There is no relevant want of consideration.

58    Ms Fahy then submits that the AAT ignored the communications that she had with Centrelink on 28 June 2018 and 31 August 2018. As has been observed, the AAT did consider those communications. That it did not make of them what Ms Fahy wanted it to make of them is, respectfully, neither here nor there. Its consideration of what was advanced cannot be doubted. No error of law is exposed.

59    Ms Fahy next submits that the AAT:

…[chose] to ignore certain corroborating evidence yet again. Namely, the telephone record of 20 September 2017 and the generic correspondence from Centrelink of that same day regarding my eligibility for payment and concession card.

60    I cannot see how that could be described as relevantly “corroborating”. The AAT found that Ms Fahy had downloaded, printed, and completed a hard copy claim form; but that it had not been posted. That Ms Fahy had a telephone call with somebody from Centrelink, or received generic correspondence from Centrelink on 20 September 2017, could not permissibly bear upon whether or not the claim form was posted. The AAT did not, and did not need to, consider what Ms Fahy complains went unconsidered.

61    The Second AAT Decision did not fail to take into account relevant considerations as alleged.

Disposition

62    Ms Fahy has not established that the Second AAT Decision was affected by any error of law, or that she was denied natural justice or procedural fairness. The appeal must be dismissed. There is no reason why the usual order for costs ought not be made and it will be.

Associate:

Dated:    4 March 2024