FEDERAL COURT OF AUSTRALIA

Singh v Secretary, Department of Social Services [2025] FCA 538

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

DOWLING J

INTRODUCTION

1    The applicant, Ms Balbir Singh, appeals from a decision of what was then the Administrative Appeals Tribunal. That decision concerned the applicant’s claim for a crisis payment under the Social Security Act 1991 (Cth). The applicant made the claim after having been removed from her home by police officers and mental health nurses as the result of an involuntary mental health treatment order. Her claim was rejected by Services Australia, an agency within the portfolio of the respondent. The applicant sought review of that rejection. The rejection was affirmed by the respondent’s authorised review officer. It was affirmed again by a decision of the Tribunal’s Social Services and Child Support Division. It was further affirmed by a decision of the General Division of the Tribunal on 2 May 2024. That last decision is the subject of this appeal. That decision is Singh and Secretary, Department of Social Services [2024] AATA 1265 (Tribunal Decision).

2    The applicant’s appeal is made under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Whilst an application made under s 44 is called an appeal, the application is instituted in the original jurisdiction of this Court and is properly characterised as an application for judicial review of the lawfulness of the Tribunal’s decision: see Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10; 289 FCR 175 at [7] (Perry J). The review examines errors of law and not the factual merits.

3    The applicant’s amended notice of appeal sets out two “questions of law” as follows:

(1)    “Procedural Fairness has been denied to the applicant as she did not have access to complete call records/logs provided to the AAT by Services Australia. Also the AAT has not properly considered Miss Balbir Singh’s serious injuries, her financial difficulties, deprivation of her liberties or her difficult living circumstances in Australia.”

(2)    “AAT incorrectly interpreted a statute relevant to the proceeding including Section 13 of the Social Security Act 1999 as well as Section 1061JH and 1061JG of the Social Security Act 1999 [and s] 44(7) of Administrative Appeals Tribunal Act 1975.”

4    The amended notice of appeal sets out two further matters under the heading “grounds relied on”:

(1)    “Fraud and Corruption. Miss Balbir Singh is not convinced that Services Australia and the AAT have properly considered all the information she has provided.”

(2)    “Significant apprehension of bias against the appellant Miss Balbir Singh and the AAT not considering Miss Balbir Singh’s serious injuries or circumstances properly.”

5    During the hearing, the applicant, amongst her expansive oral submissions, made two principal attacks on the Tribunal Decision. First, that the Tribunal committed an error of law by determining that the applicant had not established or intended to establish a new home as the result of the crisis and as required by s 1061JH(1)(c) of the Act. Second, that the Tribunal made an error of law by determining that the applicant’s claim was not lodged within the requisite time period by finding that s 13(3A) of the Social Security (Administration) Act 1999 (Cth) did not apply to the applicant so that a greater period of time to lodge her claim might apply.

6    Arising from her written and oral grounds, the applicant seeks an order that: “Miss Balbir Singh’s Extreme Circumstances Payment to be paid to her as soon as possible by Services Australia. Miss Balbir Singh has provided a statutory declaration regarding her financial status and her large debts, which should be considered by Services Australia. She has also provided numerous health reports as evidence of her serious injuries as well as change of address.” The applicant additionally seeks that the Court make the following findings of fact:

(1)    “Miss Balbir Singh has been in financial crises since late 2019 when she became unemployed.”

(2)    “Miss Balbir Singh is a vulnerable citizen due to her serious injuries and should be granted flexibility for the lodgement of her application. She also did move to a different location.”

7    In assessing the grounds raised and relief sought by the applicant in her amended notice of appeal and submissions, I take into account that she is a litigant in person. I have considered the amended notice of appeal and submissions as a whole and as fairly as possible: Onassys v Comcare [2022] FCA 90 at [21] (Abraham J). I also take into account that the Court is not constrained by the questions stated in the amended notice of appeal in determining whether a question of law is sufficiently asserted in an application under s 44 of the AAT Act: Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [99] – [104] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). I have endeavoured to construe the applicant’s grounds as generously as possible. I have assessed the following seven grounds by which it is alleged the Tribunal committed an error of law:

(1)    by finding that the applicant had not established or intended to establish a new home pursuant to s 1061JH(1)(c) of the Act;

(2)    by reaching a mistaken conclusion that the applicant’s claim was not lodged within the requisite time period by finding that s 13(3A) of the Administration Act did not apply;

(3)    by failing to properly consider all of the information (said to be material) provided to it by the applicant, including the applicant’s:

(a)    serious injuries,

(b)    financial difficulties,

(c)    deprivation of liberties, and

(d)    difficult living circumstances in Australia.

(4)    by incorrectly interpreting:

(a)    s 13 of the Administration Act;

(b)    ss 1061JH and 1061JG of the Act; and

(c)    s 44(7) of AAT Act.

(5)    by failing to afford procedural fairness to the applicant because she did not have access to call records or logs provided to the Tribunal by the respondent;

(6)    by being tainted by fraud and corruption; and

(7)    by the existence of an apprehension of bias against the Tribunal member due to the Tribunal’s failure to adequately consider the applicant’s serious injuries or circumstances.

8    Each of those grounds is considered below. For the reasons given, I dismiss the appeal.

BACKGROUND

9    The relevant background was set out in the Tribunal Decision. I note the following salient matters.

10    On 14 December 2022, the applicant was referred to a hospital for an involuntary mental health treatment order. On this date, the applicant was removed from an address at Eden Hill, Western Australia, by police and mental health nurses allegedly causing damage to the door of that property. These circumstances formed the basis of the applicant’s claim for a crisis payment.

11    The applicant was in psychiatric confinement from 14 December 2022 to 18 December 2022 (on the respondent’s evidence), or 31 December 2022 (on her evidence). During the applicant’s period of psychiatric confinement, the applicant submitted that she was locked out of her Centrelink account for a month and therefore could not lodge the crisis payment claim until February 2023.

12    The applicant provided phone records to the Tribunal that indicated that she made a number of calls to both myGov and Services Australia in December 2022 and January 2023. She submitted to the Tribunal that she contacted Services Australia “many times since 2 January” to let them know about the crisis.

13    On 7 February 2023, the applicant lodged a claim with Services Australia for a crisis payment. In the claim, the applicant provided her address, being a property in Cloverdale, Western Australia. The applicant wrote in her claim that she had lived at that property since October 2022.

14    On 8 February 2023, a delegate of Services Australia rejected the applicant’s claim on the basis that her circumstances could not be confirmed.

15    On 9 February 2023, the applicant requested a review of the decision.

16    On 1 March 2023, an Authorised Review Officer (ARO) affirmed the decision dated 8 February 2023 on the basis that the applicant did not lodge her claim within seven days of the extreme circumstance occurring and did not provide any evidence in support of her claim.

17    On 28 March 2023, the applicant filed an application for review by the Social Services and Child Support Division of the Tribunal.

18    On 14 June 2023, the Social Services and Child Support Division of the Tribunal affirmed the ARO’s 1 March 2023 decision.

19    On 22 June 2023, the applicant requested a review of the 14 June 2023 decision within the General Division of the Administrative Appeals Tribunal on the grounds that:

This is because I do not believe that the Senior Member involved has taken into consideration the fact that I have serious ongoing mental and physical injuries. I was locked out of my own Centrelink account by Centrelink and could not lodge a claim for a month. Whilst in psychiatric confinement, I tried to call Centrelink, but was redirected to MY GOV twice, who informed me that a Centrelink manager had locked me out of my own account. This was whilst my GP who placed me in psychiatric confinement went away on Christmas Holidays, and decided to give up on my healthcare, with her secretaries slamming their phones down on me. I am still currently under psychiatric care and am still unwell.

20    On 2 May 2024, the General Division of the Administrative Appeals Tribunal affirmed the 14 June 2023 decision. The Tribunal published its reasons for decision on 29 May 2024 (Tribunal Decision).

21    On 9 May 2024, the applicant filed, in this Court, a notice of appeal from the Tribunal Decision.

THE STATUTORY SCHEME

22    In the Tribunal Decision, the member assessed the applicant’s crisis payment application pursuant to s 1061JH (Qualification – extreme circumstances forcing departure from home) of the Act. Section 1061JH(1) states that a person will qualify for a crisis payment if each of the below provisions are satisfied:

(a)    the person has left, or cannot return to, his or her home because of an extreme circumstance; and

(b)    the extreme circumstance makes it unreasonable to expect the person to remain in, or return to, the home; and

(c)    the person has established, or intends to establish, a new home; and

(d)    at the time the extreme circumstance occurred, the person was in Australia; and

(e)    the person makes a claim for a crisis payment within 7 days after the extreme circumstance occurred; and

(f)    on the day on which the claim is made:

(i)    the person is in severe financial hardship (see section 19D); and

(ii)    the person has made a claim (whether on the same day or on an earlier day) for a social security pension or benefit and the person is qualified for the pension or benefit; and

(g)    during the 12 months immediately preceding the day on which the claim is made, no more than 3 crisis payments have been payable to the person based on:

(i)    the qualifications set out in this section; or

(ii)    the qualifications set out in section 1061JHA (remaining in home after removal of family member due to domestic or family violence).

23    A note within s 1061JH states that: “Examples of extreme circumstances that would qualify a person for crisis payment are the person’s house being burnt down, or the person being subjected to domestic or family violence.”

24    In the Tribunal Decision, the Tribunal additionally considered the Social Security Guide. The Guide defines itself as a publication designed to assist decision makers in administering social policy law. There is no express statutory provision authorising the Tribunal to consider the Guide in the Act or the Administration Act. However, the Tribunal’s reference to the Guide indicates that it determined that the Guide was a relevant factor in the determination of the application for review and that the Guide’s application provided for consistency in decision making: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69 - 70 (Bowen CJ and Deane J). I see no error in that approach. In relation to the requirement under s 1061JH(1)(e), the Guide relevantly states that the seven-day claim period may be met by contacting Services Australia about a claim within seven days and lodging a claim within 14 days after the contact day. In relation to the requirement to establish, or intend to establish a new home pursuant to s 1061JH(1)(c), the Guide provides:

The person must have established a new home or they must be intending to establish a new home, as a result of the extreme circumstance. CrP is payable in cases where the applicant expresses an intent to return to the home after the home is again liveable, but they have established a new home in the interim.

…

A person must show they have established or intend to establish a new home. The following examples would be considered suitable verification that the person has established a new home:

•    taking out a residential lease

•    change of address on motor vehicle registration or driver’s licence

•    change of contact details at child’s school, or mail redirection.

25    Section 13 of the Administration Act sets additional provisions for when a person is deemed to have “made a claim” for the purpose of s 1061JH(1)(e) of the Act. Relevantly, s 13(3A) of the Administration Act provides that 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.

26    Section 5(d) of the Social Security Administration (Class of Persons – Intent to Claim) Determination 2018 states a “class of persons”, for the purpose of s 13(3A)(aa) of the Administration Act, is a person who is unable to lodge a claim on the contact day because, at any time during the relevant period, the person is released from psychiatric confinement. “Contact day” is defined in s 4 to mean the day on which the Department is contacted by a person in relation to a claim. The “relevant period” is defined to mean the period of eight weeks ending on the contact day. In the context of s 13(3A) of the Administration Act and the Determination, the Department refers to the Department of Social Services.

THE TRIBUNAL DECISION

27    As explained, on 22 June 2023, the applicant lodged an application with the General Division of the Tribunal to review the decision of the Tribunal’s Social Services and Child Support Division. On 2 May 2024, the Tribunal affirmed the decision under review. The Tribunal Decision, published on 29 May 2024, can be summarised as follows:

(1)    The eligibility requirements in s 1061JH of the Act are cumulative, and two requirements were not satisfied: principally, the applicant did not establish or intend to establish a new home at the relevant time pursuant to 1061JH(1)(c); and, as a secondary factor, the applicant did not lodge the crisis payment claim within seven days of the extreme circumstance pursuant to s 1061JH(1)(e): Tribunal Decision at [8] – [9] and [12].

(2)    As to the requirement that the applicant intend to establish a new home, the Tribunal noted the Guide at 3.7.4.30, which states, “person must have established a new home, or they must be intending to establish a new home as a result of the extreme circumstance”. Following the crisis, the applicant stated that she moved between different locations and accommodations, including an accommodation at Cloverdale, Western Australia. The Tribunal stated that the applicant had provided a “prior to crisis” address in Cloverdale, Western Australia on her crisis form dated 7 February 2023. During the hearing before the Tribunal, the applicant accepted that she previously resided at the Cloverdale address, and then subsequently lived at the Eden Hill address at the time of the crisis. The applicant also accepted that she moved between different locations and accommodations, including at the relevant time following the crisis. Based on the applicant’s evidence, the Tribunal was not satisfied that the applicant had established or intended to establish a new home because she had resided at the Cloverdale address at times prior to and after the crisis: Tribunal Decision at [10] – [11].

(3)    As to the requirement that the applicant make the claim within seven days of the extreme circumstance, the Tribunal rejected the applicant’s contention that she contacted Services Australia about the relevant crisis payment a number of times in January 2023, preferring the respondent’s evidence which indicated that the applicant contacted Services Australia in January 2023, but none of these contacts related to the relevant crisis payment: Tribunal Decision at [14].

(4)    The Tribunal also considered, “for completeness”, the Applicant’s claim in the context of s 13 of the Administration Act, stating that s 13(3A)(b) (the person is, on the day on which the Department is contacted, qualified for the social security payment) and s 13(3A)(e) (the Secretary is satisfied that it was not reasonably practicable for the person to lodge the claim earlier) remained in issue. The Tribunal found that s 13(3A)(b) was not satisfied due to the applicant not meeting the requirement in s 1061JH(1)(c). The Tribunal also found that s 13(3A)(e) was not satisfied as the applicant had ongoing contact with Services Australia regarding other matters in January 2023, and therefore it was reasonably practicable for the applicant to have lodged her claim earlier: at [15] – [16].

28    Ultimately, the Tribunal affirmed the decision under review.

CONSIDERATION

29    I note that the respondent filed a Notice of Objection to Competency. Following this, the applicant amended the Notice of Appeal, though a number of the complaints raised in the Notice of Objection to Competency remained arguable on the Amended Notice of Appeal. I have decided the applicant’s appeal on the merits.

Ground one

30    By ground one, the applicant submitted that the Tribunal erred in finding that she did not establish, or intend to establish, a new home pursuant to s 1061JH(1)(c) of the Act. The applicant submitted at the hearing that the Tribunal’s error manifested in two ways. First, that the Tribunal erroneously interpreted s 1061JH(1)(c) as requiring the applicant to live in a home in which she had never previously lived. Second, that the Tribunal ignored relevant material submitted by the applicant that demonstrated her intent to purchase a new home. Such material included images of homes the applicant wished to purchase.

31    The Tribunal had before it the applicant’s claim for a crisis payment, which provided, under the heading “Address Details”, an address in Cloverdale. In the claim form, the applicant stated she started living at this address on 14 October 2022. At the hearing before the Tribunal, the applicant accepted that she lived at the Cloverdale address prior to and after the crisis.

32    Further, the Tribunal had before it an undated statement from the applicant in which she stated:

I was renting in my family member’s home, in December 2022, in Eden Hill, when the police broke the front door there to get me. After being discharged from St John of God, Midland Hospital, I rented in a different family members (sic) home in Cloverdale. I have to move around to different family members home’s (sic) at times and rent at different places depending on the situation so sometimes I am at Leeming or Willeton.

33    The Tribunal additionally considered the provisions within the Guide relating to the requirement to establish, or intend to establish, a new home, as set out at [24] of this decision.

34    On the basis of the evidence set out above, the Tribunal member determined that the applicant had not established or intended to establish a new home pursuant to s 1061JH(1)(c). The Tribunal member found that while the relevant crisis occurred at an address in Eden Hill, the applicant lived at the Cloverdale address directly before and after the crisis. In those circumstances, the Cloverdale address was not a new home.

35    I see no error of law in the Tribunal’s reasoning or decision. The Tribunal was not reaching a conclusion that a person could not, or never, establish a new home in a home in which they had previously resided. Rather, the Tribunal emphasised that it was not satisfied on the evidence before it that the applicant had established, or intended to establish, a new home. For completeness, I note that at the hearing before me, the applicant submitted that she resided in a different room at the Cloverdale property after the crisis as compared to before the crisis. However, there is no evidence that this submission was before the Tribunal; and, even if it was, I do not find that the Tribunal’s failure to expressly mention or consider this submission constitutes an error of law.

36    The applicant further complained that the Tribunal did not give weight to the applicant’s evidence that she wished to purchase a new home. Before me, the applicant made clear that in her present financial circumstances she could not afford to purchase a new home. She said that would change if she received damages in legal proceedings currently pursued by her. I find that in the circumstances of this case, and in light of the applicant’s own evidence of her difficult financial circumstances, any claim by the applicant that she wished to purchase a home was not a material fact such that any failure to account for it was an error of law.

37    Accordingly, I dismiss ground one.

Ground two

38    By ground two, the applicant asserted that the Tribunal reached a mistaken conclusion that the applicant’s claim was not lodged within the requisite time period by finding that s 13(3A) of the Administration Act did not apply.

39    There was no dispute that the applicant did not lodge her claim within the seven days required by s 1061JH of the Act. Section 13 of the Administration Act provides a scheme by which a person who has contacted the Department in relation to a claim, but then later lodges the claim outside of the required time period, can be taken to have made the claim on the day they contacted the Department. The relevant subsection in this appeal is s 13(3A).

40    The Tribunal addressed s 13(3A) of the Administration Act at [15] – [16] of the Tribunal Decision. At [15], the Tribunal recorded that the respondent conceded, and that the Tribunal was satisfied, that the applicant met some of the requirements of s 13(3A). However, the Tribunal correctly recorded that the requirements of s 13(3A) are cumulative. It found that ss 13(3A)(b) and 13(3A)(e) “remain[ed] in issue”.

41    Section 13(3A)(b) relevantly requires that the “person is, on the day on which the Department is contacted, qualified for the social security payment”. For the reasons set out above (in relation to ground 1), namely that the applicant had not established, or did not intend to establish, a new home, the Tribunal concluded that the applicant was not “qualified for the social security payment” and therefore not entitled to the benefit of s 13(3A). I see no error in that conclusion or approach.

42    The Tribunal went on to consider, “for completeness”, whether s 13(3A)(e) had been met. Section 13(3A)(e) relevantly provides a requirement that the Secretary be satisfied that, in the special circumstances of the case, it was not reasonably practicable for the person to lodge the claim earlier.

43    The applicant complained that the Tribunal erred in determining that s 13(3A)(e) of the Administration Act did not apply by concluding there were no “special circumstances of the case” that meant “it was not reasonably practicable for the [applicant] to lodge the claim earlier”. In reaching that decision, the applicant alleges that the Tribunal failed to take into account material facts and relevant considerations including her serious injuries, financial difficulties, deprivation of liberties or her difficult living circumstances in Australia.

44    The Tribunal found that it was reasonably practicable for the Applicant to lodge her crisis claim earlier than 7 February 2023 due to the respondent’s ongoing contact with Services Australia in January and February 2023 regarding other claims. In reaching this finding, the Tribunal member relied on a document provided by the applicant to the Tribunal which contains a “document upload history” of documents lodged by the applicant with Services Australia in January 2023. The Tribunal additionally relied on call records provided by the respondent to the Tribunal which:

    record the details of calls made by the applicant to Services Australia between 6 December 2022 and 16 February 2023;

    contains a contemporaneous case note drafted by a Services Australia staff member that describes each of those calls; and

    serve to demonstrate that the applicant made a number of calls to Services Australia in December 2022 and January 2023 relating to the cancellation of the applicant’s rent assistance and other rejected payment claims. The call records show that the applicant called four times in December 2022 and five times in January 2023. The call records indicate that the first call the applicant made relating to the relevant crisis payment was February 2023.

45    I see no error in the Tribunal’s reasoning or outcome. The applicant’s financial and medical circumstances and difficult living conditions were before the Tribunal and were mentioned in the Tribunal Decision at [5]. The Tribunal engaged in a weighing up exercise and arrived at the sound and reasonable conclusion that s 13(3A)(e) was not established.

46    Ground two is dismissed.

Ground three

47    By ground three, the applicant submits that the Tribunal failed to properly consider all of the information (said to be material) provided to it by the applicant, including the applicant’s serious injuries, financial difficulties, deprivation of liberties and difficult living circumstances in Australia.

48    The applicant did not particularise the information provided by her to the Tribunal that was not considered. Insofar as the applicant alleges those same matters that were the subject of the complaint about s 13(3A)(e), that claim is rejected for the same reason set out under ground two. The applicant’s financial and medical circumstances and difficult living conditions were before the Tribunal and were mentioned in the Tribunal Decision at [5].

49    Insofar as the applicant intended other material information, without any particularisation of that information it is difficult for the complaint to succeed. Nothing before me supported the allegation that the Tribunal failed to properly consider any material information.

50    Ground three is dismissed.

Ground four

51    By ground four, the applicant contends that the Tribunal incorrectly interpreted s 13 of the Administration Act, ss 1061JH and 1061JG of the Act and s 44(7) of AAT Act.

52    I have considered the Tribunal’s interpretation of s 13 of the Administration Act and s 1061JH of the Act and found no error: see [30] – [46] of this decision.

53    Section 1061JG provides for a category of crisis payment for individuals who have been “release[d] from gaol or psychiatric confinement”. The eligibility criteria under s 1061JG relevantly includes that a person has spent at least 14 days in psychiatric confinement because they have been charged with an offence, are released from psychiatric confinement, and claim a crisis payment while in psychiatric confinement or within seven days of release: see subs 1061JG(1)(a) and (b). Section 1061JG was considered by the Tribunal’s Social Services and Child Support Division in its 14 June 2023 decision, though it is unclear why. There is no evidence before me that suggests that the applicant was in psychiatric confinement because she had been charged with an offence. The Tribunal Decision that is the subject of this appeal did not expressly consider s 1061JG, and I see no error with that approach. There is no basis to allege an incorrect interpretation of s 1061JG by the Tribunal Decision.

54    Section 44(7) of the AAT Act provides that in an appeal to the Federal Court under that section, the Court may make findings of fact. Subsection (7) was not considered or in issue before the Tribunal; there was no incorrect interpretation of that subsection.

55    I dismiss ground four.

Ground five

56    By ground five, the applicant alleges that the Tribunal failed to afford procedural fairness to her because she did not have access to the call records, described at [44], provided to the Tribunal by the respondent. The call records were annexed to the Respondent’s Statement of Issues, Facts and Contentions (RSIFC) which was before the Tribunal.

57    At the hearing, the respondent submitted that it filed and served the RSIFC on the applicant on 9 November 2023 ahead of the hearing before the Tribunal. The respondent further submitted that the applicant engaged with the RSIFC after it was filed by sending a series of emails on 9 November 2023 that make clear that the applicant had seen the call records. Whilst the applicant initially submitted at the hearing that she “did not actually receive these call records”, after further questioning, she stated that she “cannot recall this entire document [RSIFC] – ever seeing this particular call record.” As the result of that exchange, and the applicant’s tone, I understood the applicant’s answer to express doubt about her recollection. I can see no reason why the respondent would not have served the RSFIC (and annexure) upon the applicant. The Tribunal member referred to the RSFIC and the documentary record relied upon by the respondent: see Tribunal Decision at [14] and footnote 5 (referring to paragraph 5.20 of the RSFIC which itself refers to the annexure). The Tribunal did not record any dispute about the applicant’s lack of access to the RSFIC or its annexure.

58    I find, in accordance with the submissions of the respondent, that the applicant received, or had access to, the call records and there is no denial of procedural fairness. Ground five is dismissed.

Ground six

59    By ground six, the applicant states that the Tribunal and Services Australia were tainted by fraud and corruption. The applicant did not provide any evidence of any fraud or corruption on the part of the Tribunal or Services Australia. There is also no evidence before me to suggest that the Tribunal or Services Australia were tainted by fraud or corruption. Ground six is dismissed.

Ground seven

60    By ground seven, the applicant asserted there was an apprehension of bias against the Tribunal member due to the Tribunal’s failure to adequately consider the applicant’s serious injuries or circumstances. The applicant did not make oral submissions as to this ground at the hearing, nor did she particularise this claim in her written submissions save for comments that she had been a victim of bias due to “blatant racism she has been subjected to daily in Australia [and] New Zealand, the spread of false information about her everywhere portraying her as being a bad woman and her serious injuries being actively manipulated by corrupt entities to decrease her compensation payments as a woman/doctor/citizen”.

61    I find that there is no evidence before me that establishes that a fair minded lay observed might reasonably apprehend that the Tribunal did not bring an impartial mind to bear on the decision: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Ground seven is dismissed.

APPLICATION FOR DISQUALIFICATION

62    On 14 May 2025 (two working days before the hearing listed on 19 May 2025), the applicant sent an email to my chambers which included the following:

This case should be postponed until a new Judge can preside over this case. I have asked for a change in the Judge presiding over this case. If that does not happen, this case will be embroiled with fraud and corruption, because Justice Dowling was involved in a separate case involving Services Australia in which I was sexually harassed and the outcome was something ridiculous, like I was having a Separation/Divorce from my Engagement/Marriage with Services Australia, despite suing that Agency for Defective Administration/Racism/Mismanagement.

…

I would like for this case to be postponed so that a new Judge who can better understand the needs of the Citizens of Australia can be properly looked after.

(emphasis in original)

63    The applicant did not otherwise raise or press for my disqualification. Out of caution, I treat the applicant’s email as an application that I disqualify myself from hearing this matter.

64    There was no explanation by the applicant as to how the matter would be “embroiled with fraud and corruption” should the matter not be allocated to another judge. As best as I can discern, the applicant seeks that I disqualify myself because I was a member of a Full Court in an unrelated proceeding brought by her: Singh v Minister for Government Services [2024] FCAFC 159. In that proceeding, the applicant’s appeal was dismissed by the Full Court.

65    The applicant has not provided any basis upon which a fair-minded observer could apprehend that I might be unable to bring an impartial mind to the resolution of the questions I am deciding: Ebner at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

66    The mere fact that a judge has made findings of fact or law adverse to a party in a previous decision does not give rise to a reasonable apprehension of bias: Ogbonna v CTI Logistics Ltd [2022] FCA 227 at [23] (Jackson J); Quach v Marks (No 2) [2021] FCA 922 at [15] (Abraham J).

67    If the applicant intends to allege actual bias, she has not provided any basis upon which I have “prejudged the case against the applicant, or acted with such partisanship or hostility as to show that [I] had a mind made up against the applicant and was not open to persuasion in favour of the applicant”: Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 at 134E (North J); Dunstan v Orr [2022] FCA 1006 at [63] (Wigney J).

68    The application for disqualification has no substance and is dismissed.

DISPOSITION AND COSTS

69    For the reasons set out above, I determine that the appeal is dismissed with costs.

Associate:

Dated:    26 May 2025