Federal Court of Australia

Huynh v Secretary, Department of Social Services [2026] FCA 906

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent is amended to “Secretary, Department of Social Services”.

2.    The Notice of Objection to Competency dated 1 August 2025 is upheld.

3.    The Notice of Appeal dated 6 May 2025 is dismissed.

4.    The applicant is to pay the respondent’s costs, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

NESKOVCIN J:

1    The applicant seeks to appeal from a decision made by the Administrative Review Tribunal on 31 March 2025 (Tribunal decision, or T). These reasons concern an objection to competency of the appeal, filed by the respondent.

2    On 6 May 2025, the applicant, who is a litigant in person, filed a notice of appeal in respect of the Tribunal decision. The grounds of appeal in the notice of appeal are discussed below. The Tribunal decision related to a review of the suspension of the applicant’s Jobseeker Payment due to the non-provision of information sought by the respondent.

3    On 1 August 2025, the respondent filed a notice of objection to competency of the appeal, stating that the appeal does not identify a question of law for the purpose of s 172 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).

4    On 31 July 2025, Registrar Edwards made orders including for the parties to file and serve outlines of submissions and any affidavit evidence in relation to the notice of objection to competency.

5    On 21 November 2025, I made orders for the applicant to file and serve any further affidavit evidence and any further submissions in relation to the notice of objection to competency, and listed the application for hearing on 27 February 2026.

6    The applicant filed and served two affidavits, which each contained within them sections referred to as “submissions” in relation to the notice of objection to competency. The applicant also appeared and made oral submissions at the hearing.

7    For the reasons that follow, the notice of objection to competency is upheld, and the notice of appeal is dismissed.

background

8    The relevant background is set out in the Tribunal decision. The following salient matters are noted.

9    From May 2020, the applicant was in receipt of a Jobseeker Payment and was paid at the single rate of payment: T [2].

10    On 4 October 2021, the applicant submitted a “Separated under one roof” form in which he said that he was separated from his former partner and they were both residing at an address in Suburb 1 (the First Address): T [28].

11    On 25 November 2021, the respondent assessed the applicant and his former partner as not being members of a couple and continued to pay the applicant the Jobseeker Payment at the single rate: T [29].

12    On 19 July 2023, the applicant provided an “Accommodation Details” form to Centrelink for an address in Suburb 2 (the Second Address), and stated that he did not live in shared accommodation. The form was signed by the applicant and his landlord, being his former partner, who stated her address as the Second Address, being the address where the applicant was residing: T [30].

13    On 26 September 2023, the respondent issued a notice requesting information under s 63 of the Social Security (Administration) Act 1999 (Cth): T [31] – [32]. The notice relevantly stated that:

Request for Information

We are writing to ask for more information to help us make the right decision about your JobSeeker Payment.

What you need to do

You need to provide the following information by 11 October 2023:

•    A completed Relationship details – Separated under one roof form (SS293) and all supporting documents.

....

If you do not provide this information

If you do not provide this information to us by 11 October 2023 your JobSeeker Payment may be stopped.

14    The applicant did not provide the “Separated under one roof” form (SS293 form) requested by the respondent in the notice: T [37].

15    On 19 October 2023, the respondent made the decision to suspend the applicant’s Jobseeker Payment under s 80(1) of the Administration Act with effect from on or about 12 October 2023, on the basis that he had failed to comply with the requirement to provide information under s 63 of the Administration Act: T [5] and T [54].

16    On 11 December 2023, following a request for an internal review, an Authorised Review Officer of the respondent affirmed the respondent’s decision of 19 October 2023 to suspend the applicant’s Jobseeker Payment (ARO decision): T [6].

17    The applicant sought a first review of the ARO decision by the Administrative Appeals Tribunal (AAT) and, on 24 July 2024, the AAT affirmed the ARO decision: T [7].

18    On 31 July 2024, the applicant sought a second review of the ARO decision by the AAT. The second review was conducted by the Tribunal, in accordance with the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). The Tribunal held a hearing on 18 March 2025. The applicant appeared in person and an interpreter was present at the hearing to assist the applicant: T [8] – [10].

19    On 31 March 2025, the Tribunal affirmed the ARO decision.

the tribunal’s decision

20    The Tribunal, at T [45] – [46], identified the issues as:

(a)    whether the notice was validly issued under s 63 of the Administration Act;

(b)    whether the applicant did not comply with the notice; and

(c)    whether s 64 of the Administration Act applied.

21    The Tribunal found, at T [45] – [46], that the notice was validly issued under s 63(1) of the Administration Act and the applicant did not comply with the notice, because he did not complete the SS293 form.

22    The Tribunal further found that sub-ss 64(1)(a) and (b) were satisfied:  T [46]. The Tribunal then proceeded to consider whether the requirement in the notice for the applicant to provide the SS293 form was reasonable, for the purpose of s 64(1)(c) of the Administration Act. At T [47], the Tribunal found that the requirement was reasonable, stating as follows:

... The completion of the most recent form, requested in September 2023, was sought in circumstances where the Applicant and his former partner had not shared accommodation for a period of time, had recommenced living at the same address and where information provided by the Applicant in his form indicated both that he was not sharing accommodation but was also sharing the same address as his former partner. Given the previous relationship between the Applicant and his former partner, the resumption of shared living arrangements and the relevance of the Applicant's relationship status to his rate of jobseeker payment, the Tribunal finds that the requirement in the notice - for the Applicant to complete a form which would have allowed Centrelink to reassess his circumstances at the point in time at which he and his former partner were again residing together - was reasonable.

23    The Tribunal found that the applicant was aware that Centrelink required the SS293 form, but noted that he was dissatisfied with being asked to provide the form because “he was not a member of a couple” and “the document [had] been provided in the past”: T [38] – [39], [41].

24    Having satisfied itself that the remaining requirements of sub-ss 64(1)(d) and (f) of the Administration Act were also met (s 64(1)(e) was not applicable) (at T [48] – [49]), the Tribunal concluded that “it was appropriate for Centrelink to seek the further information contained in the ‘Separated under the one roof form’, because of both the need for clarification given the inconsistent information indicated in the accommodation details form and because of the relevance of any partnership of the Applicant to his rate of jobseeker payment”: T [50].

relevant statutory provisions

25    Sections 63, 64 and 80 of the Administration Act relevantly provide:

63  Requirement to attend Department etc.

Secretary may require person to attend Department etc.

(1)    Subsection (2) applies to a person if:

(a)    the person is receiving, or has made a claim for, a social security payment; or

(b)    the person is the holder of, or has made a claim for, a concession card; or

(c)    the Department is contacted by or on behalf of the person in relation to a claim for:

(i)    if the person is not undertaking full-time study and is not a new apprentice—youth allowance; or

(ii)    in any case—jobseeker payment;

to be paid to the person.

(2)    If the Secretary is of the opinion that a person to whom this subsection applies should:

(a)    attend an office of the Department; or

(b)    contact the Department; or

(c)    attend a particular place for a particular purpose; or

(d)    give information to the Secretary;

the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing. However, the Secretary may not, under this subsection, notify a person that he or she is required to do an act or thing referred to in paragraph (4)(a) or (b).

...

Consequence of not informing person of effect of failure to comply with requirement in notice

(7)    If a person is notified under subsection (2), (2AB) or (4) and the notice does not inform the person of the effect of section 64, subsection 64(1) or (5) (as the case requires) does not apply to the person in relation to the requirement in the notice.

...

64 Effect of failing to comply with requirement to attend Department etc.

Person receiving, or claiming, social security payment

(1)    If:

(a)    a person is receiving, or has made a claim for, a social security payment; and

(b)    the Secretary notifies the person under subsection 63(2), (2AB) or (4); and

(c)    the requirement in the notice is reasonable; and

(d)    the person does not comply with the requirement; and

(e)    except if the person is receiving, or has made a claim for, a participation payment—the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and

(f)    the Secretary is satisfied that it is reasonable for this subsection to apply to the person;

the payment that the person is receiving or has claimed is not payable.

...

80 Cancellation or suspension determination

(1)    If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a)    who is not, or was not, qualified for the payment; or

(b)    to whom the payment is not, or was not, payable (other than because of the operation of Division 3AA);

the Secretary is to determine that the payment is to be cancelled or suspended.

26    Sections 52 and 60 of the ART Act relevantly provide:

52  Tribunal is not bound by rules of evidence

The Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such manner as it considers appropriate.

...

60  Decision-makers may elect not to participate in kind of proceeding or Tribunal case event

(1)    A person who is the decision-maker for a reviewable decision may give the Tribunal written notice (an election notice) that the person does not wish to participate in:

(a)    a kind of proceeding in the Tribunal; or

(b)    a kind of Tribunal case event (other than a directions hearing or part of a directions hearing) in relation to a kind of proceeding in the Tribunal.

(2)    However, subsection (1) does not apply in relation to a kind of proceeding or Tribunal case event prescribed by the rules.

(3)    An election notice is not a legislative instrument.

RELEVANT principles

27    Section 172 of the ART Act provides that a party to a proceeding in the Tribunal may appeal to this Court, on a question of law, from the decision of the Tribunal in the proceeding.

28    In Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [62] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ), the Full Court summarised the position with respect to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), the predecessor to s 172 of the ART Act, as follows:

(1)    The subject matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.

(2)    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.

(3)    The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.

(4)    Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.

(5)    In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.

(6)    Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.

(7)    A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.

(8)    The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

(9)    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) 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) 20 ATR 1262 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.

(10)    Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; Etheridge; HBF Health Funds and Hussain v Minister for Foreign Affairs (2008) 169 FCR 241.

29    The Full Court’s observations in Haritos apply equally to s 172 of the ART Act and the same approach should be taken to s 172 as to its predecessor: eSafety Commissioner v Baumgarten (2026) 315 FCR 44; [2026] FCAFC 12 at [2] (Mortimer CJ, Beach, and Horan JJ).

30    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].

31    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].

32    The Court is not constrained by the questions stated in the notice of appeal in determining whether a question of law is sufficiently asserted: Haritos at [99].

33    The Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to strike out a notice of appeal under s 172 where the notice fails to state a question of law: Haritos at [96], citing Bittmann v Australian Securities and Investments Commission (No 2) [2006] FCA 1786 at [12].

34    In Bittmann, Kenny J at [12] observed that:

In McGregor v Chief Executive Officer of Centrelink [2000] FCA 701 at [17], Spender J expressed the view that there was power under O 20 r 2 of the Rules to dismiss an appeal purportedly under s 44 of the AAT Act on the basis that it stated no question of law and thus disclosed no reasonable cause of action: see also Zoia v Administrative Appeals Tribunal [2003] FCA 303 at [6] per Carr J and Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272 at [15] per Allsop J. In Lambroglou, Ryan J expressed the view (at 519) that O 53 r 15(1) of the Rules conferred a power sufficiently broad to allow the Court to strike out the whole or part of an appeal under s 44 of the AAT Act. Whatever the correct analysis of the Rules, s 23 of the Federal Court Act confers broad power on the Court to make orders of such kinds as it thinks appropriate. I accept that, pursuant to s 23, the Court has power to strike out a notice of appeal in reliance on s 44 where the notice does not state a question of law: compare also Lambroglou at 519-520.

35    The notice of appeal should be read fairly and as a whole, particularly in cases involving unrepresented parties: Haritos at [104], agreeing with Mortimer J’s (as her Honour then was) observations in 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: P v Child Support Registrar (2013) 138 ALD 563; [2013] FCA 1312 at [53] (Wigney J).

Determination

36    In assessing the grounds raised by the applicant in the notice of appeal and submissions, I take into account that he is a litigant in person. I have considered the notice of appeal and submissions as a whole and as fairly as possible: Avetmiss at [76].

37    I have also taken into account that the Court is not constrained by the questions stated in the notice of appeal in determining whether a question of law is sufficiently asserted in an application under s 172 of the ART Act: Haritos at [99] – [104]. I have endeavoured to construe the applicant’s grounds as generously as possible, having regard to the statutory context.

38    The notice of appeal is in three parts. The notice of appeal does not identify the relief sought by the applicant. The focus of the applicant’s case, before the Tribunal and in this Court, was the ARO decision to suspend his Jobseeker Payment due to non-provision of information requested by the respondent. It was difficult to discern, however, whether the applicant’s grievance was about the suspension of his Jobseeker Payment or his frustration in having to complete the SS293 form.

39    The first part of the notice of appeal repeats [4] – [8], [12], [16], [18], [24] – [26] and [52] of the Tribunal decision.

40    The second part of the notice of appeal is entitled “Question of law to be raised in this appeal”. It simply refers to ss 5 and 8 of the Administration Act. Having regard to the way the applicant framed his case, the reference to ss 5 and 8 of the Administration Act cannot be regarded as raising questions of law because they deal with the manner of giving notice under the social security law and the matters to which the Secretary is to have regard in administering the social security law respectively. The applicant did not contend that the notice did not comply with the Administration Act or that the Secretary did not have regard to applicable principles in administering the social security law.

41    The third part of the notice of appeal is entitled “Error of law to be raised on this appeal”. It refers to or sets out:

(a)    sections 63 and 64 of the Administration Act;

(b)    section 52 of the ART Act; and

(c)    section 60 of the ART Act.

42    Each of those provisions is set out above in paragraphs 25 – 26 . Sections 52 and 60 of the ART Act can be put to one side. Section 52 provides that the Tribunal is not bound by the rules of evidence. Section 60 provides that the decision-maker may elect not to participate in a proceeding. The applicant made no complaint regarding the evidence before, or the parties to, the proceeding before the Tribunal. Sections 63 and 64 of the Administration Act concern the requirement to provide information and the effect of failing to comply with the requirement.

43    Despite the titles to the second and third parts, the notice of appeal does not specifically or even broadly identify any questions of law or errors of law purportedly made by the Tribunal.

44    The reference to ss 63 and 64 of the Administration Act, in the third part of the notice of appeal under the heading “Errors of law to be raised in this appeal”, might be capable, in theory, of raising a question of law, having regard to the issues decided before the Tribunal and the statutory context. On that premise, which is the most favourable to the applicant, the questions of law raised by the notice of appeal would include: (1) whether the Tribunal identified the relevant legal test; (2) whether the Tribunal applied the correct legal test; (3) whether there is any evidence to support a finding of a particular fact; and (4) whether facts found fall within a statute properly construed: Commissioner of Taxation v Trail Bros Steel and Plastics Pty Ltd (2010) 186 FCR 410; [2010] FCAFC 94 (Dowsett and Gordon JJ) at [13].

45    I would not, however, grant leave to the applicant to amend the notice of appeal to raise a properly framed question of law of the kind identified in Trail Bros, at [13], for two reasons.

46    First, I am not satisfied that such a question of law would raise a ground of appeal which had any reasonable prospects of success in the present case: Matson v Attorney-General (No 2) [2022] FCA 21 at [162] (Collier J); Singh v Owners - Strata Plan No 11723 (No 4) [2012] FCA 1180 at [32] (Griffiths J); Zambini v Secretary, Dept of Employment and Workplace Relations [2006] FCA 1773 at [13] (Mansfield J). The Tribunal identified the relevant legal test, namely, whether the notice was validly issued under s 63(1) of the Administration Act and whether s 64 of the Administration Act applied, including whether the requirement for the applicant to provide the SS293 form was reasonable. The Tribunal applied the correct legal test, and found that the applicant’s Jobseeker Payment was suspended by operation of s 80(1) of the Administration Act. There was no dispute regarding the facts and it was not suggested by the applicant that the Tribunal made findings that were not open on the evidence. I see no error of law in the Tribunal’s reasoning or decision.

47    The Tribunal noted that the applicant was aggrieved by having to provide the SS293 form. However, as the Tribunal carefully explained, at T [47], that was necessary because, while the applicant and his former partner had not shared accommodation for a period of time, the Accommodation Details form which the applicant provided in July 2023 indicated both that he was not sharing accommodation and that he was sharing the Second Address with his former partner.

48    Second, I am not satisfied that it is in the interests of justice to grant leave to amend the notice of appeal: Haritos at [107]. This is in circumstances where it appears that there are avenues available to the applicant to seek to reinstate his Jobseeker Payment, if that is his objective.

conclusion

49    For the foregoing reasons, the notice of objection to competency should be upheld and the notice of appeal should be dismissed. The respondent raised that the name of the respondent should be corrected, because the correct respondent is the Secretary, Department of Social Services. I will make an order correcting the name of the respondent.

Associate:

Dated:    14 July 2026