Allan and Repatriation Commission

[2003] AATA 994

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 994

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/327

VETERANS’ APPEALS DIVISION		)
Re		GRAHAM ALLAN

Applicant

And REPATRIATION COMMISSION

Respondent    

DECISION

Tribunal    Justice Garry Downes, President

Date                3 October 2003

Place               Brisbane

Decision

The Tribunal directs that:

(i)      the matter be fixed for hearing before a single member tribunal constituted by a legally qualified member different to the member who heard the matter previously; and

(ii)     the matter be heard de novo unless the parties are able to confine the issues and communicate this to the Tribunal prior to the hearing.

...............................................

President

CATCHWORDS – interlocutory decision – remittal by consent from Federal Court of Australia to differently constituted tribunal – error of law not identified – factors relevant to constitution not identified – different legally qualified member to hear the matter de novo unless parties confine issues

Administrative Appeals Tribunal Act 1975 (Cth), ss 20, 44

Bowman v Comcare Australia [2000] FCA 88
Comcare Australia v Hill (1999) 56 ALD 487
Commissioner of Taxation v MacArthur [2003] FCA 903
De Domenico v Marshall (1999) 94 FCR 97
Hornsby v Military Superannuation and Benefits Board of Trustees No 1 [2003] FCA 54
Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323
Lynch v Minister for Human Services and Health (1995) 61 FCR 515
Minister for Immigration and Ethnic Affairs v Gungor  (1982) 42 ALR 209
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39
Ragogo v Minister for Immigration and Ethnic Affairs & Anor (1995) 59 FCR 489
Sanchez v Minister for Immigration and Multicultural Affairs [1999] FCA 265
Secretary, Department of Family and Community Services v Sekhon [2003] FCA 76
Versatile Carpets Pty Ltd v Collector of Customs (1985) 7 ALN N167; Sweeney, Woodward and Davies JJ, 21 February 1985
Villa v Minister for Immigration and Multicultural Affairs [2001] FCA 115
Xiao v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 129

Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142

REASONS FOR DECISION

1. On 27 September 2002 this Tribunal, constituted by Dr E K Christie, determined that the applicant Graham Allan must fail in his claim to a greater pension entitlement than he had been awarded by the Veterans’ Review Board. Dr Christie gave written reasons for his decision. Mr Allan appealed to the Federal Court of Australia. The Federal Court allowed the appeal by consent and remitted the matter to the Tribunal “for determination according to law”. There are no formal reasons for judgment. The parties cannot now agree as to what errors of law justified the appeal being allowed. My task, pursuant to s 20 of the Administrative Appeals Tribunal Act 1975 (“the Act”), is to determine how the Tribunal should be constituted to hear the matter again.  I note that the order of the Federal Court directs that the matter “be remitted to a differently constituted Tribunal”.

2. Appeals from decisions of the Tribunal are provided for in s 44 of the Act. Parties may only appeal “on a question of law” (subs 44(1)). Subsection 44(4) provides that:

   “The Federal Court of Australia shall hear and determine the appeal and may make such orders as it thinks appropriate by reason of its decision.”

3. Allowing an appeal pursuant to s 44 of the Act involves an exercise of the judicial power of the Commonwealth. The exercise of the power is conditioned upon a duty first to “determine” (subs 44(4)) whether there has been an “error of law” (subs 44(1)) and, where that has been determined, to make the order appropriate to “the decision” (subs 44(4)). The parties cannot confer power to make orders which the Court does not otherwise have power to make.

4. A question arises as to how satisfied the Federal Court must be that there is an error of law before it can set aside a decision of the Tribunal.  On one view orders setting aside decisions of the Tribunal should not be made unless the Court is fully satisfied that there has been a requisite error of law which then leads to orders tailored by reference to the error found.  An error of law which does not affect the result would not result in the decision being set aside.  This seems to me to be what Sheppard J said in Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 (at 220 and 221):

   “It is, in my opinion, not correct to say that this court is by these provisions given wide powers to make such order as it thinks fit. Implicit in its powers are a number of restrictions. The appeal is expressly limited to error of law, which alleged error is the sole matter before this court and is the only subject matter of any order made consequent on the appeal. The order which this court can make after hearing the appeal is also similarly restricted to an order which is appropriate by reason of its decision. It follows that the only order which can be properly made is one the propriety of which is circumscribed by and necessary to reflect this court’s view on the alleged or found error of law.

   …

   The powers of this Court on appeal under s 44 of the AAT Act are limited to consideration of alleged errors of law by the Tribunal and go no further.  There is certainly no power to supervise the Tribunal in any other way and, in particular, to deal with the merits of the review.  The error of law alleged has to be isolated out, a decision made on this question of law, and such order made and directions given as are appropriate only to the decision of this question of law, and not to the decision under review by the Tribunal.  However, this former decision must be seen in context, and in this instance in the light of the fact that the question of law arises in proceedings which can only result in a recommendation by the Tribunal.”

   These observations were generally approved by Gleeson CJ, McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at 356 and 357 who described them as providing “guidance”.. Their Honours set out the first passage quoted above in full in their judgment.

5. It is important to bear in mind that the subject matter of an appeal from the Tribunal to the Federal Court is not an order of a court. It is not an order at all. It is an administrative decision made in exercise of the executive power of the Commonwealth (see ss 25 and 43 of the Act). Accordingly, decisions of tribunals are not to be equated with orders of courts resolving disputes between parties. Rather, they are to be seen as decisions having wider significance than merely their effect upon the immediate parties.. Migration decisions are ultimately decisions about the make up of the Australian people. Decisions about veterans’ pensions are ultimately decisions about the expenditure of taxpayers’ money. A decision made by the Tribunal is not a determination of a private dispute which the parties are free to vary by agreement.

6. When a matter comes to the Federal Court of Australia the decision in question is no longer a decision made by the agency or government department which is a party to the appeal.  In accordance with the will of the Commonwealth Parliament, the agency or department decision has been replaced by the decision of the Tribunal.  Accordingly, the agency or department, as a party to the application before the Federal Court, is not defending its own decision and is not in a position to consent to its being set aside.

7. To this point I have been concerned with the jurisdictional basis for appeals from the Tribunal to the Federal Court and how they should be dealt with.  However, the more pressing concerns for me are practical.  What are the appropriate directions for me to give for the final determination of the matter?  I need to make decisions as to whether the Tribunal should be comprised by lawyers or experts or both, and, in the latter event, as to what expertise the expert member or members should have.  I need to consider whether the Tribunal should be comprised of three, two or one members.  I need to consider whether the requirement in the order for “determination according to law” requires the matter to be heard again de novo or whether only parts of the decision need to be reconsidered.  There is an associated question of whether it is appropriate for the Tribunal to hear further evidence (subs 44(5)).

8. For the reasons I have given, the opinions of the parties cannot offer satisfactory guidance as to what error of law prompted an order allowing the appeal. In the absence of reasons for decision I consider that the notice of appeal is a better source of information. Notices of appeal under s 44 are required to identify the questions of law raised in the appeal. The notice of appeal described those questions of law as follows:

   “(a)Whether the Tribunal was wrong in law in its application of ss 120 and 120A of the Veterans’ Entitlement Act 1986 (“the Act”);

   (b)Whether the Tribunal was wrong in law in its application of s 120(6) of the Act;

   (c)Whether the Tribunal was wrong in law in its application of s 119 of the Act.”

   These so-called questions of law offer me no assistance as to what the questions to be raised actually were.  That would require a statement  addressing the circumstances which attract the application of the relevant section.  The question should have addressed what it was the applicant asserted “was wrong” in the Tribunal’s application of the sections.  Moreover, I do not know whether all of the alleged errors are to be taken to be made out or only some or one of them.  In addition to specifying questions of law, the Notice of Appeal set out six grounds of appeal.  Some of these grounds were cumulative.  At least one of them was alternative.  They do not identify alleged errors of law but rather identify findings which are said either not to be supported by the relevant parts of the legislation or contrary to them.  They also suffer from the defect that I do not know which of the grounds are to be taken to have been upheld.  In the result, the notice of appeal does not assist me to know the grounds upon which the appeal was allowed.

9. Although I do not consider that it is for the parties to inform the Tribunal what error has resulted in the appeal being allowed, in the present case it occurred to me that the views of the parties might assist me in determining what directions I should give.  I accordingly asked the Registry to enquire whether the parties could inform the Tribunal what they considered to be the grounds upon which the appeal was allowed.  The respondent identified one error of law.  The applicant identified the six grounds in the Notice of Appeal.  By a letter dated 15 May 2003 the Tribunal was informed “that the parties have not been able to come to an agreement as to the particular errors of law in the Tribunal’s decision dated 27 September 2002.”

10. The question of how appeals to the Federal Court from decisions of the Tribunal should be dealt with when the parties are agreed as to the appropriate outcome does not appear to have been directly considered by the Federal Court.  However, the situation has been considered in a number of applications in the Federal Court for review of decisions of the Migration Review Tribunal and the Refugee Review Tribunal: Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557; Sanchez v Minister for Immigration and Multicultural Affairs [1999] FCA 265; Xiao v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 129; [2001] FCA 459; Minister for Immigration and Multicultural Affairs v Villa (2001) FCR 16; [2001] FCA 1175; and Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142.

11. The grounds upon which decisions of the migration tribunals may be reviewed in the Federal Court have changed over the years. The form of appeal on a question of law from the Tribunal which is created by s 44 of the Act has never been reflected in the legislation relating to the migration tribunals. Rather, applications for review of the decisions of those tribunals have been based on conventional grounds of judicial review and review pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977.. The observations made in the decisions relating to applications to review decisions of the migration tribunals nevertheless provide some guidance for appeals pursuant to s 44. However, the statutory emphasis in that section upon the requirement for a “decision” to “determine” whether there has been an “error of law” leading to an order that is “appropriate” to the decision provides support for the conclusion that there is less room for the consent of the parties having any operation in the setting aside of decisions of the Tribunal than in the setting aside of decisions of the migration tribunals. The words of Sheppard J in Gungor justify a considerably stricter view of the limits upon a court allowing an appeal under s 44 than exist for a court hearing an application for review of the decision of a migration tribunal.

12. The analysis of applications for review of Refugee Review Tribunal decisions in the Federal Court undertaken by French J in Kovalev is most instructive. His Honour anticipated many of the problems which have arisen in the present case. I will set out some of the more pertinent passages (at 326-328):

    “In making a consent order the Court exercises judicial power. This is a power conferred upon it by the Parliament under Ch III of the Constitution of the Commonwealth. Its exercise is a public function and operates to bind the parties. Its public character applies to agreed orders disposing of private litigation between citizens or corporations and proceedings brought by or against governments and their agencies or public authorities.

    An order disposing of proceedings by consent must be self-explanatory as must any order. It is not appropriate to make an order of uncertain content or the content of which is to be derived from materials which are not on the public record.

    There is a fundamental difficulty where a court makes an order remitting a matter to a decision-maker or tribunal to be decided "according to law" and the court itself is not informed of the nature of the error conceded. The court is then making an order without being apprised of its basis and proposed operation. To do so in my opinion is a purported, but not an actual exercise of judicial power. Moreover, in a practical sense the decision-maker or tribunal lacks the benefit of any binding direction from the court as to precisely what it is that the decision-maker or tribunal is required to do. In the present case the precise concession which led to the proposed consent order had not been communicated by the respondent to the applicant. The possibility arose that the matter could have been remitted to the Tribunal with the parties themselves not being ad idem as to the error of law which had led to the decision being set aside and which the Tribunal was required to rectify. And even if there had been such an agreement the terms of the order proposed would not have disclosed to the public what the parties had agreed should be its content. In the particular case where a tribunal decision is set aside, the Tribunal itself is not usually a party and has played no role in the negotiation of the agreement that it erred in law. A fortiori in that case the order must be clear and complete and the Court must be satisfied that it is appropriate.

    …

    It is well-established that in making a consent order or indeed in accepting undertakings the Court must have regard to the limits of its power. The parties cannot, by consent, confer power on the Court to make orders which the Court lacks power to make - Thomson Australia Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163. The question whether a consent order is to be made, is not concluded by a finding that it is formally within the power of the Court. In the exercise of its power the Court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so: see Australian Competition and Consumer Commission v Real Estate Institute (WA) Inc (1999) 161 ALR 79 at 86 and the authorities referred to there. It is important therefore that the Court itself addresses and is satisfied of the basis upon which its order is to be made and in particular where the order sets aside the decision of an official decision-maker or a tribunal.

    …

    It is also a substantial discourtesy for a court to overturn the decision of an official decision-maker and a fortiori that of a statutory tribunal without consideration of the error that leads to the decision being overturned or communication of the terms of that error to the decision-maker or tribunal.  If such a determination is to be set aside on the basis that it has failed to apply or has misapplied the law whether substantive or procedural, there may potentially be some precedential impact in other like cases.  To permit the principle underlying the order to be formulated only by the parties in their submissions to the decision-maker or the Tribunal leaves the content of  that principle in the hands of the parties.”

1. Prior to the decision of French J in Kovalev, Sackville J in Sanchez had approached the issue in a similar way.  Stone J, in Yulianti, agreed with both Sackville J in Sanchez and French J in Kovalev (paras [5]-[12]).  She added a minor qualification to what, on one view, French J had said in Kovalev, pointing out, as I think French J actually recognised, that the grounds for the order may appear in the reasons rather than in the order itself (para [12]).  This qualification, if it be such, cannot be challenged.  Courts have for a very long time used phrases in orders such as “according to law” as a short hand means of directing attention to the content of the reasons. 

2. In the result there are three judges of the Federal Court (Sackville, French and Stone JJ) who may be taken to consider that the principles relating to the disposition of appeals by consent from migration tribunals are as stated by French J in Kovalev. I agree. Any qualification of these observations, because they do not relate to appeals pursuant to s 44 of the Act, will only require greater emphasis upon the Court being “satisfied of the basis upon which its order is to be made” in the light of the observations of the High Court in Thiyagarajah  and Sheppard J in Gungor.

3. I turn to the determination of how the reconsideration of the matter in the Tribunal should be dealt with.  First, because of the form of the order I will assign the matter to a differently constituted Tribunal.  I must assume that there is something about the error in the earlier decision which justified this condition.  Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42 is often cited in support of a claim that a matter remitted by the Federal Court for rehearing in the Tribunal should be heard by a tribunal differently constituted. However, Northern NSW FM was not an appeal from the Administrative Appeals Tribunal but an appeal from the Australian Broadcasting Tribunal.  Further, the Court recognised that there are occasions when it would be appropriate for the Australian Broadcasting Tribunal to rehear a matter constituted as it was for the first hearing.  I note that in a number of cases in the Federal Court, both before and since Northern NSW FM, observations have been made that a matter remitted to the Tribunal should or could be heard by the tribunal constituted as it was for the first hearing or that it was more appropriate for the President of the Tribunal to make the determination (Versatile Carpets Pty Ltd v Collector of Customs at par [32] (unreported, Sweeney, Woodward and Davies JJ, 21 February 1985); Ragogo v Minister for Immigration and Ethnic Affairs & Anor (1995) 59 FCR 489 at 500-501, par [38]; Lynch v Minister for Human Services & Health (1995) 61 FCR 515 at 519, par [15]; Comcare Australia v Hill (1999) 56 ALD 487 at 490, par [15]; [1999] FCA 488; De Domenico v Marshall (1999) 94 FCR 97 at 117, par [67]; [1999] FCA 1305; Bowman v Comcare Australia [2000] FCA 88 at par [20]; Hornsby v Military Superannuation & Benefits Board of Trustees No 1 [2003] FCA 54 at paras [51]-[52]; Secretary, Department of Family & Community Services v Sekhon [2003] FCA 76 at paras [46]-[47]; and Commissioner of Taxation v MacArthur [2003] FCA 903 at par [26]).

1. The rehearing of a matter remitted after appeal by the Tribunal constituted as it was for the first hearing will usually result in the matter being finally disposed of more expeditiously, less expensively and more efficiently than before a differently constituted Tribunal. This would seem to accord with the legislative direction to the Tribunal given in par 33(1)(b) of the Act. Of course, there will be cases when it is appropriate, or even essential, that a rehearing should be before a tribunal differently constituted. In the present case, however, I am bound by the terms of the order and will list the matter before a differently constituted tribunal.

2. There seems no reason why the matter should not be heard by a single member tribunal comprised of a legally qualified member although I note that Dr Christie, who is a barrister, also has expert qualifications.  Not knowing the precise basis upon which the appeal was allowed, noting the width of the grounds of appeal and noting that the matter will be heard by a tribunal differently constituted I direct that the matter be heard de novo unless the parties are able to confine the issues.  The member who constitutes the Tribunal for the hearing will be determined at the time it is fixed for further hearing.

I certify that the seventeen (17) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Garry Downes, President

Signed:         .............................................
  Associate

Date of Hearing  23 July 2003                  

Date of Decision  3 October 2003

Counsel for Applicant                R Clutterbuck

Solicitor for Applicant               Streeting Haney

Counsel for Respondent         E Ford

Solicitor for Respondent          Australian Government Solicitor