Christiansen v Social Security Appeals Tribunal
[2010] FCA 1146
FEDERAL COURT OF AUSTRALIA
Christiansen v Social Security Appeals Tribunal [2010] FCA 1146
Citation: Christiansen v Social Security Appeals Tribunal [2010] FCA 1146 Appeal from: Application for extension of time: Confidential v Social Security Appeals Tribunal & Anor [2010] AATA 328 Parties: KAY CHRISTIANSEN v SOCIAL SECURITY APPEALS TRIBUNAL, NEALE GREGORY SUTTON and ADMINISTRATIVE APPEALS TRIBUNAL File number: QUD 339 of 2010 Judge: COLLIER J Date of judgment: 22 October 2010 Catchwords: ADMINISTRATIVE LAW – application for extension of time to lodge notice of appeal from decision of the Administrative Appeals Tribunal (“the AAT”) – appeal from that decision of the AAT – whether decision of the AAT should be set aside and remitted to the AAT – original dispute over entitlement of applicant to receive child support payments from the second respondent pursuant to the Child Support (Assessment) Act 1989 (Cth) – second decision published by AAT following letter from the Department of Human Services – outcome of first AAT decision reversed by second AAT decision – principles relevant to exercise of Court’s discretion to extend time during which an appeal may be instituted against the AAT – whether AAT made error of law in failing to provide adequate reasons – whether applicant was denied procedural fairness – whether AAT’s decision was irrational or illogical – principles in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 – whether AAT had power to make second decision – principles in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Held: extension of time granted for lodgment of notice of appeal from decision of the AAT, decision of AAT set aside and the matter remitted to the AAT to be decided according to law
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 39, 43, 44
Child Support Assessment Act 1989 (Cth) Pt 5 Div 4, ss 5(3), 7B(1), 12(2AA), 48, 49, 50, 74
Migration Act 1958 (Cth)Cases cited: Australian Postal Commission v Hayes (1989) 23 FCR 320 cited
Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 103 ALR 661 cited
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 applied
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 cited
Ramsay v Australian Postal Corporation (2005) 147 FCR 39 cited
Re Michael and Secretary, Department of Employment, Science and Training (2006) 90 ALD 457 cited
Ridge v Baldwin [1964] AC 40 cited
Sagigi v Comcare [2009] FCA 385 cited
Sullivan v Department of Transport (1978) 1 ALD 383 citedCampbell E, “Revocation and Variation of Administrative Decisions” (1996) 22 Monash U L Rev 30
Downes AM, The Hon Justice Garry, “Finality of Administrative Decisions” Hartigan Memorial Lecture, Brisbane, 30 November 2005
Orr R and Briese R, “Don’t think twice? Can administrative decision-makers change their mind?” (2002) AIAL Forum No 35 11Date of hearing: 14 October 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 70 Counsel for the Applicant: Mr D Rangiah SC and Mr S Cleary (Pro Bono) Solicitor for the Applicant: Queensland Public Interest Law Clearing House Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second Respondent: Mr MR Green Solicitor for the Second Respondent: Stephens & Tozer Counsel for the Third Respondent: The Third Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 339 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: KAY CHRISTIANSEN
ApplicantAND: SOCIAL SECURITY APPEALS TRIBUNAL
First RespondentNEALE GREGORY SUTTON
Second RespondentADMINISTRATIVE APPEALS TRIBUNAL
Third Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
22 OCTOBER 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time in which to institute an appeal against a decision of the Administrative Appeals Tribunal dated 23 July 2010 be granted.
2.The decision of the Administrative Appeals Tribunal dated 23 July 2010 be set aside, and the matter remitted to the Administrative Appeals Tribunal to be decided according to law.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 339 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: KAY CHRISTIANSEN
ApplicantAND: SOCIAL SECURITY APPEALS TRIBUNAL
First RespondentNEALE GREGORY SUTTON
Second RespondentADMINISTRATIVE APPEALS TRIBUNAL
Third Respondent
JUDGE:
COLLIER J
DATE:
22 OCTOBER 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
These proceedings concern an application for an extension of time to lodge a notice of appeal from a decision of the Administrative Appeals Tribunal (“the AAT”) and an appeal from that same decision of the AAT. Although the applicant, Ms Christiansen, has not yet filed a notice of appeal in this matter pending resolution of her application for an extension of time, a draft amended notice of appeal is before the Court. In previous directions I indicated to the parties that I would hear submissions in respect of both the application and the applicant’s grounds of appeal with a view to determining both the application for an extension of time, and the substantive issues raised in the appeal, at the same hearing on 14 October 2010. Counsel argued their respective cases before me at the hearing on 14 October 2010 on that basis.
These proceedings arise, in substance, from a dispute between the applicant and the second respondent as to the entitlement of the applicant to receive child support payments from the second respondent. The dispute has progressed from the Child Support Agency (“the Agency”), through the Social Security Appeals Tribunal (“the SSAT”) and then to the AAT. The key issue in the proceedings before me is whether the decision of the AAT dated 23 July 2010 in respect of the applicant’s entitlement to receive such payments should be set aside and remitted to the AAT to be decided according to law.
In my view, it is appropriate both that the applicant be granted an extension of time in which to file a notice of appeal, and that an order be made setting aside the decision of the AAT and remitting the matter to the AAT to be decided according to law. Before turning to the reasons for this decision, it is appropriate to examine the background facts giving rise to these proceedings.
Background
The applicant and the second respondent are parents of a child (“the child”). The second respondent has paid child support to the applicant in respect of the child in accordance with the Child Support Assessment Act 1989 (Cth) (“Child Support Act”).
On 15 April 2009 an order in respect of the child was made in the Children’s Court of Queensland granting custody of the child to the Department of Child Safety (Queensland) (“DOCS”).
The child support payments of the second respondent to the applicant were made because the applicant had care of the child. On 18 May 2009 the Agency decided not to amend its assessment of child support notwithstanding the 15 April 2009 order of the Children’s Court. In June 2009 the second respondent objected to this decision of the Agency, however in July 2009 the agency disallowed the second respondent’s objection.
On 4 August 2009 the second respondent sought a review of the Agency’s decision in the SSAT. On 22 September 2009 the SSAT set aside the decision of the Agency, and substituted a decision that from 15 April 2009 the applicant no longer had care of the child and that, as a result, a terminating event occurred in relation to the relevant child support case on that date.
The applicant applied to the AAT for review of the decision of the SSAT.
Proceedings before the AAT
The matter was heard by the AAT on 19 April 2010. Both the applicant and the second respondent were self-represented. On 6 May 2010 the AAT delivered a decision.
“First” decision of the AAT
The decision of the AAT delivered 6 May 2010 was as follows:
Decision
The Tribunal sets aside the decision under review and substitutes the decision that from at least 28 October 2009 the applicant has had care of Child B.
So far as relevant, the reasons for decision were as follows:
EVIDENCE
2. A hearing of this matter was held in Brisbane on 9 April 2010. The applicant attended and gave evidence on her own behalf. Her sister (Ms X) and a friend (Mr Y) also attended to give evidence as did the joined party.
3. The applicant referred to her daughter staying with her for some three nights a week on average after the child was placed in the care of DOCS. Even though DOCS records do not reflect the visits to her mother’s house, the applicant contended that Child B would sleep at the applicant’s house and the applicant would take her to school or back to Kingsbury House as required. This began about a month after the Court order was made.
4. On 28 October 2009, Child B came to live with the applicant with the consent and knowledge of the Agency who checked, usually by telephone, about the arrangements. DOCS was also aware of Child B staying with Mr Y who lives some 20 minutes away from the applicant.
5. The applicant explained how her health was “a lot better” than what it was and that she no longer sees a doctor regularly. Child B stays with her and Mr Y and DOCS is aware of the arrangement that has been “permanent” since 28 October 2009. Indeed, they have approved of the shared care arrangements with Mr Y.
6. The applicant confirmed that Child B had been staying with her regularly since the Court Order and that DOCS had not documented Child B’s visits or the times she was with her mother “properly”. The applicant referred to her and her daughter’s situation and position last year and how Child B would come and stay with the applicant since May 2009. The arrangements were organised verbally with DOCS and “nothing formally was put in place”. She reiterated that she has had full time care of Child B since 28 October 2009 and that the joined party has been making payments in this regard. The applicant stated she had legal guardianship of her daughter and would be asked to sign consent forms for her education and the like. She noted that if things were as bad as the joined party had suggested, DOCS would not have allowed Child B to go home with her mother.
7. Ms X explained how she had lived with the applicant from June to October 2009 and that Child B had stayed with them on average three nights a week during that period. She stopped living with the applicant on 28 October 2009 and at that time Child B was in the applicant’s “full time care”.
8. Mr Y whom she has known for some five years was often at the applicant’s house and confirmed that Child B would be there some three to four times a week. Child B also stays with him at this house and has been doing so with DOCS knowledge for some two months now. The applicant provides money to him for Child B’s upkeep. He supported the applicant’s evidence that DOCS would not recognise the times Child B would leave Kingsbury and just roam around.
9. The joined party referred to a chronology of events and how he had been contacted by a child welfare officer in March 2009. He referred to a Voluntary Care Agreement signed by the applicant with DOCS involving Child B going to a residential care facility. He referred to two clauses in the agreement whereby she gave custody and the decisions of the child’s care to DOCS. Child B moved to Kingsbury in March 2009 and on 15 April 2009 the Magistrate granted custody for one year to DOCS who became responsible for all decisions relating to Child B for that time.
10. The joined party confirmed he has never had custody, care or control of Child B and only heard of the problems from a DOCS officer in March 2009. He said that Child B was a high frequency absconder and her arrangements were ad hoc. He said she would run away to see friends and not her mother.
CONSIDERATION AND FINDINGS
11. Pursuant to Part 5 of the Child Support (Assessment) Act 1989 (Cth) (the Act) a person’s child support liability depends on the division of care in relation to an eligible child. The working out of a percentage of care is contained in s 48 of the Act. Division 4 of the Act provides that percentage care in part may be determined by oral or written agreement, a parenting plan or court order or in their absence by the Registrar.
12. From the evidence and material before it, the Tribunal finds that the applicant has for some time now cared on a noticeable basis for Child B. The Tribunal accepts that although the Court Order of 15 April 2009 indicated that the care of the child was the responsibility of DOCS, Child B would go and stay with her mother on an increasing basis. This was confirmed by Ms X and Mr Y who spent time at the applicant’s house. Indeed, from 28 October 2009 the applicant had the care of Child B. This was acknowledged in a letter from a Child Safety Officer from DOCS dated 27 November 2009. That officer also confirmed that DOCS was aware of the present care and living arrangements for Child B with the applicant and Mr Y.
13. DOCS material sighted by the Tribunal indicates that the Department was working towards the “reunification” of the applicant and her daughter over time and expected that the “reunification will occur during the period of the current order” (ie. the Court Order of 15 April 2009). As well, the Tribunal notes that in August 2009 a note from DOCS indicates that while Child B was in hospital “any decisions about invasive medical treatment is required to be made by her guardian”. Child B’s mother’s name and phone number have been provided.
14. The Tribunal notes that the reports of the Agency show an improved relationship between the mother and daughter over the year with the applicant working to overcome her earlier deficiencies and difficulties. Over time, Child B appears to have spent more time at her mother’s place or in her care as supported by Ms X and Mr Y.
15. Therefore, on all of the evidence and material before it, the Tribunal finds that the applicant exercised a level of care in relation to Child B even though the Court Order of the Children’s Court had not been revoked or varied. Particularly, from 28 October 2009, when it appears that Child B was in her mother’s overall care and which living arrangements were acknowledged by DOCS who also noted that “[Child B’s] placement at Kingsbury Residential was closed shortly after this time” (28 October 2009). Consequently, the Tribunal finds that the applicant has had care of Child B for a period of time now at least since October 2009 notwithstanding the Court Order that was to expire on 15 April 2010 and that DOCS was aware of Child B’s care arrangements as acknowledged in its letter of 27 November 2009.
DECISION
16. The Tribunal sets aside the decision under review and substitutes that decision that from at least 28 October 2009 the applicant has had care of Child B.
Letter from the Department of Human Services
Following the delivery of the decision of the AAT on 6 May 2010, the Department of Human Services (“the Department”) wrote a letter to the District Registrar of the AAT in Brisbane. In this letter, which was undated but from the material before the Court appears to have been received by the AAT on 3 June 2010, the Department wrote that it wished “to raise with the AAT, on behalf of the Child Support Registrar, some concerns about the decision”. The letter summarised the concerns as follows:
•It is not clear from the Tribunal’s decision whether the Tribunal considered if there was a ‘terminating event on or after 15 April 2009. If there was a terminating event, the requirement of the father to pay child support to the mother would have ended. The mother would then need to reapply for child support from the date she again had the care of the child and fell within the definition of “eligible carer” under the legislation. If she had care for the child from 28 October 2009, then she could reapply for child support from that date.
•If the Tribunal has found that there was no terminating event, and that the mother was therefore an eligible carer at all times, the Tribunal should determine the mother’s percentage of care during the period that the child was not under her complete care. This percentage of care would then be used to determine the father’s liability to the mother for child support during the period from 15 April until 27 October 2009.
•The Tribunal has found that “at least from” 28 October 2009, the mother had the care of the child. This causes difficulty for the Registrar in implementing the decision as it is not precise. We assume that the Tribunal has found that the mother has had complete care of the child starting on 28 October 2009, and that the phrase “at least from” does not indicate that the Tribunal has found that full care may have occurred before that date.
After summarising its concerns, the letter of the Department continued:
It may be that these concerns could be addressed in an amendment to the written decision. Alternatively, the Tribunal may wish to consider whether the decision should be reconsidered.
In conclusion, the Department wrote:
We respectfully request that the AAT reconsider this decision with a view to providing clear reasons regarding whether or not there was a terminating event and, if there was no terminating event, that the Tribunal sets a percentage of care pursuant to the child support legislation for specific periods. This is necessary to allow the Registrar to make the assessment of the debt that the father owes to the mother during the relevant periods.
It is clear that the AAT immediately acted on the letter from the Department.
Letter from the AAT to the parties
On 6 July 2010, in a letter copied to the Department, the District Registrar of the AAT in Queensland wrote to the parties in the following terms:
The Tribunal has received correspondence from the Child Support Registrar suggesting that the Tribunal has not decided the issue it was required to decide. A copy of those submissions is attached.
You are invited to provide further submissions to the Tribunal within 14 days. Those submissions ought address:
1.whether the Tribunal ought act on the request to reconsider the earlier decision; and
2.what the Tribunal ought do on a reconsideration.
Please contact the Tribunal if you require any further assistance.
Letter from the applicant
It is not clear on the material before me whether the second respondent replied to the letter of 6 July 2010 from the AAT. However the applicant did reply, in a letter dated 13 July 2010, in the following terms:
I am in full agreement with the Child Support Registrar on this issue. My submissions are the same and are as follows:
1. the Tribunal has not decided the issue it was required to decide.
2.the Tribunal ought to act on the Registrar’s request to reconsider the earlier decision.
3.considering that the Tribunal has already decided to “set aside the decision under review” as stated in the earlier decision, then it ought to have also decided that a “terminating event did not occur and that I was still eligible to recieve (sic) child support payments”. This being the case the paying parent should be made liable for child support payments for the full duration of the court order.
“Second” decision of the AAT
On 23 July 2010 the AAT published a document in the same proceedings, entitled “ADDENDUM”. This document read as follows:
1.On 6 May 2010 the Tribunal, as presently constituted, made a decision in this matter following a hearing involving the applicant (mother) and the joined party (father). The decision made was to set aside the decision under review, of the Social Security Appeals Tribunal (SSAT) made on 22 September 2009.
2.Since then the Child Support Registrar has written to the District Registrar of the Tribunal suggesting that the Tribunal did not in fact, decide the question which was required to be decided, namely whether the SSAT decision was the correct decision. The Child Support Registrar suggests, correctly in my view, that if, in truth, the Tribunal had failed to exercise its jurisdiction there was “no decision at all” and it was open to the Tribunal to now make a decision.
3.The Child Support Registrar provided written submissions which were provided to the parties and the parties were invited to make further submissions about what the Tribunal ought do. Further submissions were submitted by both the applicant and the other party and have been considered.
4.Some history is desirable. On 15 April 2009 the mother consented to the making of an Order in the Children’s Court granting custody of the child of the relationship to the Department of Child Safety (Queensland). The Child Support Agency was informed of this change in care but determined not to amend the assessment of child support. The father objected to that decision but the objection was disallowed. Subsequently the SSAT decided, on 22 September 2009, to set aside the Agency’s decision and to substitute a decision that from 15 April 2009 the mother no longer had care of the child with the result that a “terminating event” occurred that day.
5.The earlier decision regarded that the mother had care of the child from 28 October 2009. What ought to have been decided, but which was not, was whether the evidence established a discernable pattern of care on the part of the mother between 15 April 2009 and 27 October 2009.
6.The earlier decision recorded that over time the child spent increasing time with the mother with the approval of DOCS and despite DOCS heaving custody by virtue of the Court Order. The question is whether, by virtue of that contact she became an “eligible carer” as a person who has at least shared care of the child. To answer that description the mother must have had at least 35% of the care of the child during the period from April to October 2009.
7.The evidence of the mother, set out in the earlier decision, does not satisfy the Tribunal that she had care to that extent. In these circumstances the correct decision is that the decision of the SSAT ought be affirmed.
Appeal from the AAT to this Court
Appeals from the AAT to this Court are subject to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). Section 44(1) provides:
A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
Although a party to a proceeding before the AAT may appeal to the Federal Court from any decision of the AAT, the Court hears the “appeal” in its original jurisdiction.
The AAT Act also provides that an appeal by a person under s 44(1) shall be instituted no later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the AAT is given to the person or within such further time as the Federal Court allows (s 44(2A)). The twenty-eighth day after 23 July 2010 was 20 August 2010. In this case the applicant filed an application for an extension of time on 19 August 2010, which is within the period of twenty-eight days after the “second” decision was delivered.
Extension of time: relevant principles
Principles relevant to exercise of the Court’s discretion to extend the time during which an appeal may be instituted against a decision of the AAT are found in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. In that case Wilcox J held, in summary, that:
·The applicant for an extension of time must show an acceptable explanation of the delay, and that it is fair and equitable in the circumstances to extend the time. Action taken by the applicant, other than by making an application for an extension of time, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished.
·Any prejudice to the respondent is a material factor militating against the grant of an extension of time, however the mere absence of prejudice is not enough to justify the grant of an extension.
·The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
·Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion.
In this case the second respondent accepted that the main governing factor in relation to whether the Court would be prepared to grant leave to extend time for the filing was the substantial merits of the application (TS p 66 ll 22-24; written submissions para 11). That it was proper for the second respondent to make this concession is clear from the facts that:
·The applicant has clearly explained the reason for her delay in filing the notice of appeal. In her affidavit sworn 19 August 2010, the applicant deposed, in summary, that she was of low economic status, and that she had required time to obtain legal advice to assist her in relation to the matter. The applicant elaborated upon her evidence in this affidavit in a subsequent affidavit sworn 13 October 2010, in which she explained the process by which she had finally obtained legal assistance through the Queensland Public Interest Law Clearing House (QPILCH). In my opinion the applicant’s explanation is satisfactory. At previous directions hearings in this matter the applicant was self-represented, and was only legally assisted before me at the directions hearing immediately before the substantive hearing in these proceedings. I accept that framing an application for an extension of time in which to institute an appeal from the AAT, and drafting a notice of appeal compliant with s 44(1) of the AAT Act, are difficult tasks for a self-represented litigant. In the circumstances of this case the fact that the applicant was endeavouring to obtain legal assistance before lodging the notice of appeal is an acceptable explanation for the delay in doing so.
·Second, I note that the applicant’s delay in filing an application for an extension of time in which to institute an appeal was within twenty-eight days of the second decision of the Tribunal, and that accordingly the applicant’s delay was not lengthy. While I note the second respondent’s concern that the matter at issue has been protracted through consideration by the original decision-maker and two merit review bodies, the second respondent has not demonstrated any prejudice he will suffer should an extension of time be granted to the applicant to file a notice of appeal.
·Finally, in this case no considerations of fairness as between the applicant and other persons otherwise in a like position have been demonstrated as relevant.
Accordingly, I now turn to the merits of the applicant’s case as articulated in her draft notice of appeal on appeal.
Grounds of Appeal
In this case the questions of law raised on appeal are:
·whether the AAT made an error of law in failing to provide adequate reasons;
·whether the applicant was denied procedural fairness;
·whether the AAT’s decision was irrational; and
·whether the AAT had no power to make the decision.
It is not in dispute that these questions are questions of law for the purposes of s 44(1) of the AAT Act.
Did the AAT make an error of law in failing to provide adequate reasons for its decision?
Legislative framework
As was clear from the extensive submissions of Counsel at the hearing, the legislative scheme underpinning a decision to terminate an obligation to make child support payments is complex. In summary, relevant provisions of the Child Support Act applicable in this case include the following:
·Section 5(3) which provides:
A person has shared care of a child if the person has
(a) at least 35%; but
(b) no more than 65%
Of the care of the child during a care period
·Section 7B(1) which provides:
In this Act, eligible carer, in relation to a child, means a person who has at least shared care of the child
·Section 12(2AA) which provides:
A child support terminating event happens in relation to a child if:
(a) both of the parents of the child are not eligible carers of the child; and
(b) there are no non-parent carers entitled to be paid child support in relation to the child.
·Section 48 which provides:
(1) A person’s percentage of care for a child for a day in a child support period is the percentage of care of the child that the person is likely to have during the period (the care period) of 12 months from:
(a) the day on which an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child; or
(b) if one of the following events occurs:
…
(ii) there is a change of at least 7.l% in the percentage of care for the child that the person has, and the change alters the person’s cost percentage for the child;
…
(v) the person’s percentage of care for the child falls below 35%;
(vi) the person’s percentage of care for the child increases to 35%;
whichever of the following days is applicable:
(vii) if the Registrar is notified, or otherwise becomes aware, of the event within 28 days after the day on which the event occurs – the day on which the event occurs;
(viii) in any other case – the day on which the Registrar is notified, or otherwise becomes aware, of the event
…
Note: the Registrar is not entitled to amend an administrative assessment in respect of a person’s percentage of care unless the Registrar becomes aware of an event mentioned in paragraph (1)(b) (see subsection 75(2)).
(2) The percentage of care is to be worked out in accordance with this Subdivision.
Note: Generally a person’s percentage of care for a child is worked out based on the number of nights that the child is likely to be in the care of the person during the care period.
(3) If a person’s percentage of care worked in accordance with this Subdivision is not a whole percentage:
(a) if the percentage is greater than 50% – the percentage is rounded up to the nearest whole percentage; and
(b) if the percentage is less than 50% – the percentage is rounded down to the nearest whole percentage.
·Section 49, which provides that agreements, parenting plans and court orders may determine the percentage of care of the child during a care period.
·Section 50, which provides:
(1) The Registrar must determine the percentage (if any) of care of a child that a parent or non-parent carer of the child is likely to have during the relevant carer period if there is no agreement, plan or order that allows such a percentage to be determined under section 49.
(2) In making the determination, the Registrar must take into account such period as is required in order for the Registrar to be satisfied that there is, has been, or will be, a pattern of care for the child.
(3) The Registrar may revoke or vary a determination made under this section.
·Section 74, which provides:
(1) If:
(a) child support is payable for a child; and
(b) the Registrar is notified of, or otherwise becomes aware of:
(i) the happening of a child support terminating event in relation to the child, a liable parent, or a carer entitled to child support, or all 3; or
(ii) the happening of an event or change of circumstances that affects the annual rate at which the child support is payable under this Act;
The Registrar must immediately take such action as is necessary to take account of the happening of the event or change of circumstances (whether by amending any administrative assessment or otherwise).
(2) Nothing in subsection (1) is to be taken to prevent the Registrar from taking such action as the Registrar considers appropriate to take account of the likely happening of an event or change of circumstances of which the Registrar is notified or otherwise becomes aware (whether by amending any administrative assessment or otherwise).
In summary, Mr Rangiah SC for the applicant submitted that:
·The applicant was an eligible carer of the child.
·The critical issue for the decision-maker was whether the applicant’s shared care of the child fell below 35% during a care period.
·The care period was ascertained as the period of 12 months from the occurrence of an event falling within s 74 of the Child Support Act – in this case 12 months from the date of the order of the Children’s Court awarding custody of the child to DOCS (15 April 2009).
·It appears that the Agency decided that, for the purposes of s 48 of the Child Support Act, because the child continued to spend time with the applicant and from 28 October 2009 the child returned to the full time care of the applicant, it was likely that the applicant would have more than 35% care of the child during the care period.
·As a result of this finding, on 18 May 2009 the Agency decided not to amend the child support assessment.
·To that effect, it appears that the Agency concluded that the order of the Children’s Court on 15 April 2009 was not a “terminating event” for the purposes of the Child Support Act.
·In making its “first” decision, the AAT appears to have accepted the evidence of the applicant, as well as the evidence of Ms X and Mr Y, that notwithstanding the order of the Children’s Court of 15 April 2009 the child continued to stay at the applicant’s house at least three nights per week.
·The AAT appeared to accept that the applicant had care of the child prior to 28 October 2009, although this was particularly the case after 28 October 2009.
·To that extent, the decision of the AAT of 23 July 2010 is in no way explained by the AAT.
Mr Green for the second respondent submitted in summary:
·The reasons for the AAT’s decision made on 23 July 2010 are contained in both that decision and the reasons for decision dated 6 May 2010.
·The AAT was required to determine whether there was a terminating event, and this, in turn, depended upon whether the applicant ceased to be an eligible carer because her percentage of care for the child at some point fell below 35%.
·In para 6 and para 7 of the decision dated 23 July 2010, the AAT found that it was not satisfied that the applicant had care of the child 35% of the time.
·The decision of the AAT was in light of the evidence advanced on behalf of the applicant, including the evidence of Ms X and Mr Y.
·At best, it is clear from the AAT’s reasons that the AAT found that the applicant had cared on a noticeable basis and an increasing basis for the child until 28 October 2009.
·The AAT is an administrative body, and its decision should not be too closely scrutinised for the purpose of searching for errors of law in what may be imprecise language.
Obligation of the AAT to give reasons
Section 43(2B) of the AAT Act provides:
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
The obligation of the AAT to give reasons was recently summarised by Edmonds J in Sagigi v Comcare [2009] FCA 385 in the following terms:
[17] Similar observations were more recently made by Flick J in Comcare v Davies (2008) 173 IR 294 at [31] and [32]:
31 …The nature and extent of this obligation [under s 43(2B) of the AAT Act] has been extensively canvassed. For the purposes of the resolution of the present appeal it is sufficient to note that the reasons of the Tribunal are “meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration & Ethnic Affairs v Liang [1996] 185 CLR 259 at 272. But it is equally important “to review the Tribunal’s reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address”: Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 30 at [14].
32. The extent of the reasoning provided in accordance with s 43(2B) must also be considered against the backdrop of the contentions advanced for resolution and the evidence presented. The Tribunal is exhorted by s 2A of the 1975 Act to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”. When carrying out its functions the Tribunal is also obliged to “ensure that every party to a proceeding ... is given a reasonable opportunity to present his or her case”: s 39(1). The person who made the decision being reviewed by the Tribunal is also required to “use his or her best endeavours to assist the tribunal to make its decision in relation to the proceeding”: s 33(1AA). (Emphasis added)
[18] The adequacy of reasons provided, however, is also a matter of “substance”: Dodds v Comcare Australia (1993) 31 ALD 690. Burchett J at 691 there observed:
The obligation to furnish reasons, and to furnish reasons which are adequate, is a very important obligation. It is a pillar of the system of administrative decision-making by the Tribunal, and it is essential that the Court should insist on its fulfilment. But it is the substance of the obligation that matters. Indeed, as Lord Sumner pointed out in SS Hontestroom v SS Sagaporack [1927] AC 37 at 50, even a Judge’s reasons on a question of fact will not be vitiated by “imperfections in form and expression”. Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal’s reasons exposed the logic of its decision, and contain findings on those matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with the requirement to include “findings on material questions of fact”. (Emphasis added)
In this case, are the reasons for the AAT’s decision of 23 July 2010 clearly articulated? Did the AAT make findings on material questions of fact, and in substance was the reasoning of the AAT in making those findings clear irrespective of the terms in which the AAT’s decision was given?
In my view, the answer to all of these questions is “No”.
Inadequate reasons overall
First, notwithstanding Mr Green’s persuasive submissions that the two “decisions” can be read together and that the findings of fact in the decision of 6 May 2010 support the decision of 23 July 2010, it is clear that:
·on 6 May 2010 the applicant received a decision ordering that the SSAT decision be set aside (and accordingly, was the beneficiary of a decision of the AAT in her favour);
·but then the applicant was faced on 23 July 2010 with the completely opposite outcome, on the basis of reasons which could most positively be described as thin. Indeed the only reason given by the AAT for its apparent change of mind between 6 May 2010 and 23 July 2010 and its decision to now affirm the decision of the SSAT can be found in para 7 of the decision of 23 July 2010, namely:
7. The evidence of the mother, set out in the earlier decision, does not satisfy the Tribunal that she had care to that extent [that is, 35%]. In these circumstances the correct decision is that the decision of the SSAT ought be affirmed. (material in parentheses added)
In light of the serious ramifications for the applicant resulting from the “new” decision of 23 July 2010, reasons more than this wholly inadequate statement were warranted.
Inadequate explanation for rejection of evidence previously accepted
Second, it is not clear to me from the decision of 23 July 2010 why the AAT was not satisfied that the applicant had care of the child amounting to or exceeding 35% after the Children’s Court order of 15 April 2009. Indeed, the basis on which the AAT makes this finding of fact is not articulated, and I am not persuaded that the reasons are apparent from the decision of 6 May 2010.
Notwithstanding the decision of the AAT on 23 July 2010 as to the extent of the applicant’s care of the child, I accept the submission of Mr Rangiah SC that, in fact, in its reasons of 6 May 2010 the AAT plainly accepted the evidence of the applicant, Ms X and Mr Y that the child stayed with the applicant three nights per week on average after the Children’s Court order of 15 April 2009. As Mr Rangiah SC submitted, three nights per week constitutes almost 43% care of the child. Examining the AAT’s reasons of 6 May 2010 I note:
oParagraph 3, where the AAT observed:
The applicant referred to her daughter staying with her for some three nights a week on average after the child was placed in the care of DOCS. Even though DOCS records do not reflect the visits to her mother’s house, the applicant contended that Child B would sleep at the applicant’s house and the applicant would take her to school or back to Kingsbury House as required. This began about a month after the Court order was made.
oParagraph 7, where the AAT observed:
Ms X explained how she had lived with the applicant from June to October 2009 and that Child B had stayed with them on average three nights a week during that period.
oParagraph 8, where the AAT observed:
Mr Y whom she has known for some five years was often at the applicant’s house and confirmed that Child B would be there some three to four times a week.
oParagraph 11, where the AAT observed that the calculation of a percentage of care is contained in s 48 of the Act.
o Paragraph 12, where the AAT found:
From the evidence and material before it, the Tribunal finds that the applicant has for some time now cared on a noticeable basis for Child B. The Tribunal accepts that although the Court Order of 15 April 2009 indicated that the care of the child was the responsibility of DOCS, Child B would go and stay with her mother on an increasing basis. This was confirmed by Ms X and Mr Y who spent time at the applicant’s house.
oParagraph 15, where the AAT found:
Therefore, on all of the evidence and material before it, the Tribunal finds that the applicant exercised a level of care in relation to Child B even though the Court Order of the Children’s Court had not been revoked or varied. Particularly, from 28 October 2009, when it appears that Child B was in her mother’s overall care and which living arrangements were acknowledged by DOCS…
From these reasons, the approach of the AAT to the evidence of the applicant, Ms X and Mr Y is plainly one of acceptance of that evidence. There is no doubt expressed by the AAT in its decision of 6 May 2010 as to the reliability of the evidence given by the applicant, Ms X and Mr Y that the child spent on average three nights per week with the applicant between the date of the Children’s Court order and 28 October 2009.
The discussion of the AAT of the amount of time the child stayed with the applicant during this period was clearly coloured by the AAT’s perception that the key issue for its decision was whether the applicant had care of the child from 28 October 2009. However although the AAT did not overtly make a finding that the child stayed with her mother three nights per week prior to that date, in my view the inference is clear from its decision of 6 May 2010 that the AAT accepted that this was the case.
In this light, I am unable to identify the reason for the AAT’s decision as stated in para 7 of its Reasons for Decision of 23 July 2010 or why the AAT changed its view as identified in the first decision. Even if Mr Green’s submission that the AAT’s reference to “evidence of the mother” in para 7 refers not merely to the evidence of the applicant, but encompasses the evidence of Ms X and Mr Y, the statement in para 7 is not supported by adequate reasons.
Lack of reference to legislative framework
Third, while the AAT referred in para 11 of its reasons of 6 May 2010 to the operation of Pt 5, Div 4 and s 48 of the Child Support Act, there is no explanation by the AAT of the statutory basis upon which it concluded that it was not satisfied by the evidence of the applicant that she had care of the child to the extent of 35%. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). In this case however as I have already noted the legislative scheme is complex, and indeed the complexity of the legislation is such that Counsel before me were at odds as to the correct interpretation and application of ss 48, 49 and 50 of the Child Support Act in the context of these proceedings. The AAT had not only initially focussed – apparently mistakenly – in its first decision on the care of the child after 28 October 2009 (when the period prior to that date was, it appears, also relevant), but then executed a 180 degree turn from its decision of 6 May 2010 to set aside the decision of the SSAT to then affirm the SSAT decision on 23 July 2010. It would in my view have been appropriate for the AAT to explain the basis of its later decision in light of the legislation, and failure of the AAT to do so by reference to the statutory framework also constitutes an error of law.
In my view the failure of the AAT to provide adequate reasons for its decision constitutes an error of law warranting an order that the decision of the AAT be set aside and remitted to that tribunal for reconsideration according to law.
Was the applicant denied procedural fairness?
It is not in dispute that parties appearing before the AAT are entitled to procedural fairness (Australian Postal Commission v Hayes (1989) 23 FCR 320, Ramsay v Australian Postal Corporation (2005) 147 FCR 39). This includes the opportunity of a party to present its case to the tribunal: s 39 AAT Act, Sullivan v Department of Transport (1978) 1 ALD 383.
In this case, as is demonstrated by the facts I have already outlined, the AAT wrote to the parties in the following terms:
You are invited to provide further submissions to the Tribunal within 14 days. Those submissions ought address:
1.whether the Tribunal ought act on the request to reconsider the earlier decision; and
2.what the Tribunal ought do on a reconsideration.
As I have also noted, the applicant replied in writing to the AAT, making submissions in response to the AAT’s invitation.
Before me Mr Rangiah SC on behalf of the applicant submitted in summary that:
·The AAT denied the applicant procedural fairness by failing to provide her with a reasonable opportunity to present her case.
·The AAT denied the applicant procedural fairness by rejecting evidence of the applicant and her witnesses which it had previously accepted, without giving her notice of its intention to do so, and an opportunity to respond to that intention.
·The terms of the AAT’s letter indicated that the invitation related to procedural questions.
The second respondent submitted in summary:
·At the time of the AAT hearing of 19 April 2010, both parties were aware that the key issue for consideration by the tribunal was the level of the applicant’s care for the child after 15 April 2009. The AAT decision of 6 May 2010 did not make findings as to whether there was a terminating event or the extent of the applicant’s care for the child from 15 April 2009.
·The AAT invited the parties to make further submissions in light of the letter from the Child Support Registrar.
·The applicant did not seek to call further evidence, cross-examine or tender further documentation, or even seek a hearing to make further oral submissions.
·The plain meaning of the letter of the AAT to the applicant, and her response, demonstrates that the AAT’s invitation did not relate only to procedural questions, and was not taken by the applicant to relate only to procedural questions.
·The requirements of procedural fairness in this case obliged the AAT to provide the detailed submissions of the Child Support Registrar to the parties with a broad invitation to provide further submissions which encompassed not only whether there should be a reconsideration of the AAT’s 6 May 2010 decision, but what should happen on such reconsideration. The applicant’s reply indicates she clearly understood what was required of her, and she provided submissions on what the AAT ought do.
·It is not in dispute that the AAT did not receive any further evidence after receiving the parties’ submissions. The circumstances of the case did not require the AAT to again revert to the applicant, or the second respondent to seek further submissions just because it did not propose to accept the applicant’s submission that a terminating event did not occur.
I note that the submissions of Counsel proceed on the basis that the AAT was entitled to seek further submissions from the parties after 6 May 2010 and make a further decision. For the purposes of considering whether procedural fairness was given to the applicant I will consider this issue on the same basis, and turn to the power of the AAT to make a subsequent decision on 23 July 2010 later in this judgment.
In my view, it is clear from her letter to the AAT that the applicant did not assume that the AAT was inviting submissions relating only to procedural questions. However while the AAT communicated with the parties and invited submissions in light of issues raised by the Department, the steps taken by the AAT in the circumstances fell short of procedural fairness to the applicant. I form this view for the following reasons.
Previous acceptance of evidence
First, as I have already observed, the AAT in its decision of 6 May 2010 plainly accepted the evidence of the applicant, Ms X and Mr Y, as to the extent of the applicant’s care for the child after 15 April 2009. Although the AAT communicated with the parties, and invited submissions as to, inter alia, “what the Tribunal ought do on a reconsideration”, I do not consider this procedure put the parties on notice that the AAT would be revisiting evidence it had already accepted in the 6 May 2010 decision. This was particularly the case given that the key concerns raised by the Department related to legal issues requiring decision by the AAT. I accept the submission of the applicant that, in the circumstances, the AAT was required to give the applicant notice of its intention to now reject the evidence of the applicant, Ms X and Mr Y, and provide her with an opportunity to respond to that intention.
Inadequate notice
Second, the letter from the AAT to the applicant and second respondent must be read in the context of both the letter from the Department to the AAT and the AAT’s decision of 6 May 2010. In the Department’s letter, the Department clearly indicated that it considered that the AAT had failed to make a decision in respect of whether there had been a terminating event, and in respect of the nature of the applicant’s care of the child after 15 April 2009. In the AAT’s decision of 6 May 2010, the AAT plainly accepted evidence of the applicant, Ms X and Mr Y as I have already discussed, and the AAT decided that the decision of the SSAT should be set aside. In circumstances where the AAT had accepted evidence tendered by the applicant and other witnesses to the effect that the applicant had at least 35% care of the child after 15 April 2009, in the absence of notice to the contrary from the AAT, a reasonable assumption to be made by the parties was that any “reconsideration” by the AAT would be on the basis that the applicant had at least 35% care of the child after 15 April 2009. In other words, a reasonable assumption for the parties to make was that any subsequent decision of the AAT would build on the evidence already given and accepted. To the extent that the AAT in “reconsidering” its decision was contemplating departing from this position and reversing its earlier decision setting aside the decision of the SSAT, the parties were entitled to be put on notice that this was the situation and to be given a reasonable opportunity to present their cases. I do not consider that the AAT’s letter to the parties put them on such notice or gave them such an opportunity. I note that in her written submissions to the AAT as articulated in her letter of 13 July 2010 the applicant wrote:
…considering that the Tribunal has already decided to “set aside the decision under review” as stated in the earlier decision, then it ought to have also decided that a “terminating event did not occur and that I was still eligible to recieve (sic) child support payments”. This being the case the paying parent should be made liable for child support payments for the full duration of the court order.
This submission is consistent with the apparent and reasonable belief of the applicant that the AAT would, in effect, continue in its decision-making approach down the path it had already adopted in the decision of 6 May 2010, confirm its decision of 6 May 2010 setting aside the SSAT decision, and find as a matter of law that a terminating event had not occurred on 15 April 2009.
In my view the applicant was denied procedural fairness by the AAT.
Was the AAT’s decision irrational or illogical?
In its submissions the second respondent accepts that what has been termed illogicality or irrationality on the part of a decision-maker raises a question of law. The leading Australian authority in this respect is the decision of the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. There Crennan and Bell JJ observed:
130. In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Similarly in that case Gummow ACJ and Kiefel J at [40] noted earlier comments of Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 recognising that a determination should not bear the defects of being irrational, illogical and not based on findings or inferences of fact supported by logical grounds. Their Honours however observed that characterising a decision as bearing these defects is not to be done lightly (at [40]).
The second respondent’s key submission against this ground of appeal is that the AAT made no finding that the applicant had an average of three days care per week of the child, and even if evidence was before the AAT that the child stayed with the applicant on average three nights per week this did not constitute three days per week and therefore more than 35% care. In my view however, this submission cannot be substantiated. As I observed earlier in this judgment, the reasons for decision of 6 May 2010 indicate that the AAT did accept that the child stayed with the applicant at least three nights per week as claimed by the applicant, Ms X and Mr Y. Any attempted distinction between the applicant caring for the child three days per week rather than three nights per week is hollow and artificial in the circumstances.
On the basis that the AAT accepted that the applicant cared for the child at least three nights per week during the period after 15 April 2009, the logical conclusion is that the applicant’s care of the child exceeded 35%, and indeed constituted almost 43% of the child’s care. To that extent, the applicant appeared to be a “shared carer” of the child for the purposes of s 5(3) of the Child Support Act.
As I explain later in this judgment, it was open to the AAT to reconsider its decision in its entirety following a process in which the parties were accorded procedural fairness. However this did not occur. Instead, the AAT on 23 July 2010 simply found that “the evidence of the mother…does not satisfy the Tribunal that she had care to that extent”. This abrupt and unexplained rejection of evidence which had been previously accepted appears, with respect, capricious and arbitrary.
The decision of the AAT of 23 July 2010 was, to that extent, irrational or illogical.
Did the AAT lack power to make the decision?
In summary, the applicant submits that the AAT’s addendum decision of 23 July 2010 was a nullity, and that the decision of 6 May 2010 should stand. This is because:
·Originally, the Child Support Registrar decided that the order of 15 April 2009 did not constitute a “terminating event” which ended the second respondent’s liability for child support.
·The SSAT then decided that a “terminating event” had occurred.
·The obligation of the AAT was to decide whether a terminating event had occurred. It did so, in that it set aside the decision of the SSAT that a terminating event had occurred. There was no jurisdictional error in the AAT deciding to set aside the SSAT’s decision that no terminating event had occurred.
·Accordingly, and having communicated its decision to the parties, the AAT was not free to make a new decision.
In para 2 of its decision of 23 July 2010 the AAT observed:
Since [6 May 2010] the Child Support Registrar has written to the District Registrar of the Tribunal suggesting that the Tribunal did not in fact decide the question which was required to be decided, namely whether the SSAT decision was the correct decision. The Child Support Registrar suggests [footnote: Relying on MIMA v Bhandwaj (sic) (2002) 209 CLR 597], correctly in my view, that if, in truth, the Tribunal had failed to exercise its jurisdiction there was ‘no decision at all’ and it was open to the Tribunal to now make a decision.
The power of administrative decision-makers to revisit, including both vary and revoke, decisions has been the subject of a extensive academic discussion (I note, for example, Campbell E, “Revocation and Variation of Administrative Decisions” (1996) 22 Monash U L Rev 30; Orr R and Briese R, “Don’t think twice? Can administrative decision-makers change their mind?” (2002) AIAL Forum No 35 11; The Hon Justice Garry Downes AM, “Finality of Administrative Decisions” Hartigan Memorial Lecture, Brisbane, 30 November 2005 speeches/downes/ HartiganLectureNovember2005.htm). More particularly the power was considered in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, where the key issue for determination was whether an administrative decision-maker in jurisdictional error was able to remake its decision.
The proceedings in Bhardwaj concerned an appeal to the Immigration Review Tribunal (as it then was) under the Migration Act 1958 (Cth) from a decision of a delegate of the Minister to cancel the student visa of Mr Bhardwaj. The day before the hearing, the Tribunal received a letter from Mr Bhardwaj requesting an adjournment on the grounds of illness. Not having seen the letter, at the hearing on 15 and 16 September 1998 the Tribunal affirmed the delegate’s decision. Mr Bhardwaj’s agent was notified on 17 September 1998. Upon the letter subsequently being brought to the Tribunal’s attention, a new hearing date was arranged, at which the Tribunal heard Mr Bhardwaj’s explanation for the conduct which had resulted in the cancellation of his visa. The Tribunal accepted that explanation, and on 22 October 1998 revoked the cancellation of Mr Bhardwaj’s visa by a new decision. The Minister sought judicial review of the Tribunal’s decision.
By majority the High Court found that the relevant statutory scheme allowed the Tribunal to remake its original decision because that decision was made in jurisdictional error and was invalid. In so finding, the majority deemed that the Tribunal had failed to discharge its statutory function in making the original decision. Gaudron and Gummow JJ observed:
if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [53], cf Gleeson CJ at [14], Hayne J at [141-[142], Callinan J at [163])
Outside of the application of the slip rule (enacted as s 43AA AAT Act for the purposes of decisions of the AAT), the Courts have traditionally recognised the power of administrative decision-makers to re-make their own orders made in error (see, for example, Ridge v Baldwin [1964] AC 40 at 79, Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 103 ALR 661 at 671). In light of the reasoning of the majority in Bhardwaj, whether an administrative decision-maker can “remake” its own decision depends on factors including:
·whether the relevant statute empowers the decision-maker to do so (or at least does not prohibit the decision-maker from doing so) (Bhardwaj at [8]); and
·whether the original decision was attended by jurisdictional error (for example, failure of the tribunal to discharge its statutory function), rather than a non-jurisdictional error (Bhardwaj at [51]-[53], [67], [149], [152]-[153], [162]).
As has been observed elsewhere however, this is also not a process to be followed lightly (cf Downes J in Re Michael and Secretary, Department of Employment, Science and Training (2006) 90 ALD 457 at [17]).
In these proceedings it appears that the decision made by the AAT on 6 May 2010 was incomplete. The decision of that date was that the SSAT decision should be set aside, based primarily on the view taken by the AAT of the extent of the applicant’s care of the child after 28 October 2009. It is common ground, and indeed was recognised by the AAT subsequently, that the AAT should also have had regard to the effect of the Children’s Court order of 15 April 2009 and the extent of the applicant’s care of the child after that date. To that extent the decision of the AAT of 6 May 2010 was undoubtedly affected by jurisdictional error. Subsequently, to adopt an observation of Gleeson CJ in Bhardwaj:
When it learned of its own administrative error, the Tribunal recognised that it had not performed its functions and proceeded to do so. (Bhardwaj at [14])
There are no provisions in the AAT Act preventing the AAT from making a subsequent decision in these circumstances. That in my view the decision of 23 July 2010 is attended by errors warranting an order of this Court setting it aside does not abrogate the power of the AAT to make that decision in substitution of its earlier decision of 6 May 2010. In my view the AAT did have power to make the decision of 23 July 2010.
Conclusion
In conclusion, the merits of this applicant’s case are such that an extension of time in which to lodge a notice of appeal from the decision of the AAT ought be granted.
Further, as in my view:
·the AAT made an error of law in failing to provide adequate reasons;
·the applicant was denied procedural fairness; and
·the AAT’s decision was irrational;
the appeal should be allowed, the decision of the AAT dated 23 July 2010 set aside, and the matter remitted to the AAT to be decided according to law.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 22 October 2010
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