Atlas v D.F.C.S. - [2003] FMCA 527

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ATLAS v D.F.C.S.

[2003] FMCA 527

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – no error of law.

Social Security Act 1991, s.94
Administrative Appeals Tribunal Act 1975, s.44
Federal Court Rules 2001, O.62

Ma v Federal Commissioner of Taxation (1992) 23 ATR 485
Sullivan v Department of Transport (1978) 1 ALD 383, 20 ALR 325

Applicant:

BULENT ATLAS

Respondent:

SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

File No:

MZ 607 of 2003

Delivered on:

7 November 2003

Delivered at:

Melbourne

Hearing Date:

7 November 2003

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms J. Macdonnell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Notice of Appeal filed 9 May 2003 be dismissed.
The Applicant shall pay the Respondent's costs fixed pursuant to the scale of the Federal Court of Australia up to and including the date of transfer of the Application from that Court to the Federal Magistrates Court and thereafter pursuant to Schedule 1 of the Federal Magistrates Court Rules with the costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
Pursuant to Rule 12.15 of the Federal Magistrates Court Rules the Court certifies that it was reasonable for the Respondent to employ an advocate to appear in the proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 607 of 2003

BULENT ATLAS

Applicant

and

SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

REASONS FOR JUDGMENT
(Revised from transcript)

This is an Application by way of Notice of Appeal filed 9 May 2003 by Bulent Atlas (the Applicant). The Application was originally filed in the Federal Court of Australia but transferred to this Court by order of the Federal Court of Australia on 4 June 2003.
The Application seeks to appeal from a decision of the Administrative Appeals Tribunal (the AAT) delivered on 11 April 2003. The AAT had before it a reviewable decision made by the Social Security Appeals Tribunal (the SSAT) on 27 November 2002. The SSAT had affirmed a decision of a Centrelink Delegate of the Secretary to the Department of Family and Community Services (the Respondent) that the Applicant was not qualified for disability support pension.
In brief terms, the background to the Application before the AAT is set out in its reasons for decision which appear at page 201 of the Appeal Book. In paragraphs 4 and 5 of the decision the AAT states that the Applicant was born in Turkey and is 32 years old. He has tertiary qualifications from Turkey in architectural design and engineering.

He came to Australia in July 1996. He worked from 1996 with General Motors Holden (GMH) but sustained an injury for which he sought workers compensation. He did not work from February 2001 onward and took a redundancy package from GMH in November 2001.
The Applicant claimed a disability support pension on 8 August 2002. The claim was rejected on 14 October 2002 on the basis of medical evidence which suggested the Applicant would be able to return to work within six to twelve months. The Applicant sought review of the decision to reject his claim. An authorised review officer conducting an internal review and subsequently the SSAT agreed with the decision-maker that the Applicant did not qualify for the payment.

The Applicant then sought review with the AAT on 16 December 2002.
It is clear that in considering the Application the AAT had the benefit of the evidence of the Applicant, together with evidence of medical witnesses referred to in the AAT's decision. The AAT after referring to the evidence and the relevant legislation had affirmed the decision under review. The key finding of the AAT is found in paragraph 26 where it states:
“The Tribunal, is therefore, satisfied that, at the time of the claim, in August 2002, the applicant did not meet the level of impairment necessary for disability support pension, as set out in s94(1)(b) of the Act, which requires a person having an impairment rating at twenty points or more.”
As the Applicant did not meet the requirement of s.94(1)(b) of the Social Security Act 1991 (the SSAT Act), the AAT did not go on to consider whether the Applicant had a continuing inability to work as also required for qualification for this pension under s.94 of the SSAT Act.
In his Application the Applicant, who appears unrepresented before me today, albeit with the assistance of a qualified interpreter, was asked to consider in the Application what he regarded as being the relevant matters or substantive issues arising on the evidence and material before the AAT which it had failed to consider. The question arose in the context of his Application where in relation to the questions of law the Applicant states the following:
“a.The Tribunal erred in law in making the decision and thereby acted without jurisdiction in failing to consider or determine the relevant matters or substantive issues arising on the evidence and material before the Tribunal.
Particulars
The Tribunal failed properly or at all to consider the applicant’s claims in statements made orally at the Tribunal on 7 April 2003.
b. Further or in the alternative, the Tribunal erred in law in making the decision and thereby acted without jurisdiction in not complying with its obligations under the law.
c. Further or in the alternative, the Tribunal erred in law and thereby acted without jurisdiction in failing to give natural justice to the applicant.”
In support of the Application the Applicant also relied upon an affidavit purportedly sworn by him on 9 May 2003. In that affidavit, the Applicant states:
“2.On 7 April 2003 I attended the Administrative Appeals Tribunal (“the Tribunal”) for a hearing in regard to my claim for Disability Support Pension. At the hearing I gave oral evidence in support of my claim for Disability Support Pension and maintain those statements to be true and correct.
3.I disagree with the decision of the Tribunal and I ask that this honourable court review the decision made.”
When the matter commenced before me this day counsel for the Respondent sought and was granted leave to rely upon amended Respondent's submissions dated this day. The amendments to those submissions are minor and I accept for the present purposes that a copy of the original submissions had been forwarded to an appropriate address for the Applicant.
In any event, it was clear to me that in the circumstances it was important to ensure that the Applicant, who is unrepresented, had the opportunity of being able to at least hear and understand what was said in those submissions. Accordingly, the matter was stood down whilst the interpreter interpreted the Respondent's written submissions.
Upon resuming, it was noted that the Applicant after briefly summarising his medical condition noted that he had not worked since 2001 and noted otherwise he does not believe he had the capacity to work and further noted that he understood the Respondent's submissions but does not accept those submissions. He asserted his health problems are still continuing. He otherwise took the view that although he understood the role of this Court and the process, he disagreed with the findings made by the AAT.
In the submissions before this Court the Respondent, after referring to the AAT's reasoning and referring to the material before the AAT, including the medical evidence, medical reports and the oral evidence of the Applicant, submitted that in the circumstances, the finding and reasoning by the AAT was a finding which did not display or reveal any error of law of a kind that would otherwise attract the intervention of this Court pursuant to s.44 of Administrative Appeals Tribunal Act 1975 (the AAT Act).
In certain circumstances, it is clear to me that a failure to consider a case or the way in which an Applicant puts a case may constitute an error of law (see Ma v Federal Commissioner of Taxation (1992) 23 ATR 485). An error of law may also arise in certain circumstances where there has been either a misapprehension or a total failure to take into account any material fact. Relevant considerations must be taken into account and irrelevant considerations disregarded (see Sullivan v Department of Transport (1978) 1 ALD 383, 20 ALR 325).
The task of a Court in matters of this kind is made more difficult when dealing with an appeal of an Applicant who is unrepresented and whose first language is not English and by the narrow concept of an error of law which is the basis upon which this Court has to consider any appeal under s.44 of the AAT Act. It is clear to me from the submissions and affidavit material of the Applicant, together with his Notice of Appeal, that essentially he feels aggrieved because he continues to suffer from the disability of a kind which he agreed he had described to the AAT and reiterated to this Court today.
Having considered the AAT's reasoning, however, it is my view that the AAT has properly referred to all the relevant matters, has otherwise considered in its fact-finding mission the matters raised by the Applicant on his own behalf, has otherwise recited and considered the appropriate medical evidence and then made a decision of a kind to which I have referred in the last paragraph of its decision. The AAT’s reasoning otherwise, in my view, is reasoning which cannot be subject to a challenge of a kind required pursuant to s.44 of the AAT Act.
On all the material available to me I am unable to identify an error of law and accordingly, it follows that the Application filed on 9 May 2003 should be dismissed with costs. The orders of the Court are as follows:
(1)The Notice of Appeal filed 9 May 2003 be dismissed.
(2)The Applicant shall pay the Respondent's costs fixed pursuant to the scale of the Federal Court of Australia up to and including the date of transfer of the Application from that Court to the Federal Magistrates Court and thereafter pursuant to Schedule 1 of the Federal Magistrates Court Rules with the costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
(3)Pursuant to Rule 12.15 of the Federal Magistrates Court Rules the Court certifies that it was reasonable for the Respondent to employ an advocate to appear in the proceedings.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 7 November 2003