Cullen v Secretary, Department of Education, Skills & Employment
[2021] FCCA 1117
•24 May, 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Cullen v Secretary, Department of Education, Skills & Employment [2021] FCCA 1117
File number(s): BRG 624 of 2019 Judgment of: JUDGE JARRETT Date of judgment: 24 May, 2021 Catchwords: ADMINISTRATIVE LAW – Social security – appeal from decision of the Administrative Appeals Tribunal – decision of Administrative Appeals Tribunal affirmed decision of Social Services and Child Support Division of the Tribunal – Social Services and Child Support Division affirmed decision of Department of Human Services – original decision was made by the Department of Human Services affirmed on internal review to suspend Newstart payments.
ADMINISTRATIVE LAW – Social security – decision of Department to suspend Newstart payments – whether applicant committed work refusal failure – Tribunal determination that job was offered – Tribunal determination that job was suitable – whether question of law – whether Tribunal erred in law – whether breach of natural justice – no error of law – no breach – decision of Tribunal affirmed – application dismissed – costs.
Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss. 33A, 33A(1), 44(1)
Federal Circuit Court of Australia Rules 2001 (Cth) sch. 1
Federal Court of Australia Act 1976 (Cth) s. 32AB
Social Security (Administration) (Reasonable Excuse – Participation Payments) Determination 2018 (Cth), s. 5
Cases cited: Australian Postal Commission v Hayes (1989) 23 FCR 320
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Coulton v Comcare [2001] FCA 1313
Cullen and Secretary, Department of Social Services (Social services second review) [2019] AAT 777
Federal Commissioner of Taxation v Grbich (1993) 31 ALD 97
Federal Commissioner of Taxation v Seymour (2015) 65 AAR 443
Haritos v Commissioner of Taxation (2015) 233 FCR 315
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Seymour v Commissioner of Taxation (2016) 241 FCR 361
Sharma v LGSS Pty Ltd [2018] FCA 167
Sims v O’Sullivan [1952] SASR 179
Number of paragraphs: 76 Date of last submission/s: 20 February 2020 Date of hearing: 20 February 2020 Place: Brisbane The Applicant: Appeared in person Solicitor for the Respondent: Sparke Helmore ORDERS
BRG 624 of 2019 BETWEEN: STEPHEN CULLEN
Applicant
AND: SECRETARY, DEPARTMENT OF EDUCATION, SKILLS AND EMPLOYMENT
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
24 MAY 2021
THE COURT ORDERS THAT:
1.The name of the respondent be substituted with the name “Secretary, Department of Education, Skills and Employment”.
2.The amended application filed on 31 December, 2019 is dismissed.
3.The applicant pay the respondent’s costs in the fixed amount of $7,000.00.
REASONS FOR JUDGMENT
JUDGE JARRETT:
The applicant seeks that a decision of the Administrative Appeals Tribunal made on 1 May, 2019 which dismissed a review of a first review decision of the respondent made on 7 September, 2018 be set aside. That decision affirmed a primary decision to suspend the applicant’s Newstart Allowance. He asks that the application for review be remitted to the Tribunal to be heard and determined again. He also seeks costs.
The respondent seeks that Mr Cullen’s application be dismissed with costs.
The applicant filed an amended notice of appeal on 31 December, 2019. Attached to it was 26 pages of additional material comprising of medical evidence and invoices for legal fees. The respondent objected to that material. Some of the material was before the Tribunal when making the decision challenged in these proceedings and is included in the court book filed for the purposes of this hearing by the respondent. Some of it was not before the Tribunal. I accept the respondent’s submission that the material that was not before the Tribunal cannot be relevant to this application and any determination as to whether the Tribunal made an error of law. I have paid no regard to those documents.
THE CONTEXT OF THE PRESENT APPLICATION
The present application commenced in the Federal Court of Australia pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The application was transferred to this Court by an order made on 9 July, 2019 pursuant to s.32AB of the Federal Court of Australia Act 1976 (Cth).
According to his amended notice of appeal, Mr Cullen appeals from the findings that the Applicant:
a. Refused or failed to accept the offer of employment made to him on 29 August 2018;
b. The job offered to him on 29 August 2018 constituted suitable employment; and
c. Did not have reasonable excuse for refusing or failing to accept the offer of employment made to him on 29 August 2018.
An appeal made pursuant to s.44(1) of the Administrative Appeals Tribunal Act is on a question of law. It is an exercise of the Court’s original jurisdiction rather than an appeal proper. In the context of s.44(1) of the Tribunal Act, it is the question of law that is the subject matter of the appeal: Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [84] – [90]. In that case the Full Court of the Federal Court of Australia (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) said:
[62]. We now turn to consider the more general questions raised by the appeal in relation to s 44 of the Tribunal Act. In summary, our conclusions are as follows:
(1) The subject-matter of the Court’s jurisdiction under s 44 of the Tribunal Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.
(2) The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.
(3) The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.
(4) Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.
(5) In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.
(6) Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.
(7) A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.
(8) The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.
(9) In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.
(10) Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.
…
[94]. In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.
The Federal Court authorities have been decided in the context of the rules of that court which provide for a particular form to be utilised in such an appeal. Presently that is form 75. It requires the specification of the question or questions of law that are the subject of the appeal. It provides thereafter for specification of the grounds relied on in the application. These are two different matters and their relationship was addressed by Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 where, speaking of the former Federal Court Rules, they observed at [18] (my emphasis):
In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.
Although Birdseye was overruled in Haritos (as I have set out above), the ratio in Haritos says nothing about the emphasised sentence in the passage from Birdseye above. It continues to be applied. In Sharma v LGSS Pty Ltd [2018] FCA 167, Gleeson J observed at [30]:
The questions of law are to be stated separately from the grounds relied upon in support of the orders sought in the notice of appeal: P v Child Support Registrar [2013] FCA 1312 at [50] (“P”). In P at [51], Wigney J said:
The specification of the grounds relied upon in support of the orders sought should expose the links between the question of law, the circumstances of the particular case and the orders sought on the appeal: Birdseye [2003] FCAFC 232 at [17]-[18]. It is not legitimate to call in aid the grounds specified in the notice to read down the questions of law stated in the notice to what are truly questions of law. If the order sought is that the decision of the Tribunal be set aside, the grounds in support of that order should assume the resolution of the specified question of law in favour of the applicant and indicate, in a summary way, why that resolution requires the decision of the Tribunal to be set aside: Lambroglou at 524. Grounds drawn up in that way could not elucidate a question of law.
Thus, the subject matter of the review is the question or questions of law identified by the applicant for review and which emerges from the processes and reasons of the administrative decision maker. The review is confined to the questions of law so identified. The question or questions identified in the review application need not be “pure” questions of law, but might be seen as mixed questions of law and fact. But a question of law must be involved. The statement of the question of law is important, but a failure to so state the questions in the application for review is not fatal. It is the substance of the application which is important. The form prescribed by the Federal Circuit Court Rules 2001 (Cth) require the specification of the question or questions of law raised in the review separate from the grounds of appeal. Observance of these matters ensures that the merits of a case are dealt with, not by the Court, but by the Tribunal.
Mr Cullen specifies the questions of law that he argues arise in this appeal as follows:
1.The decision of the Tribunal should be set aside as the Tribunal made an error of law when it failed to afford the Applicant natural justice.
2.The decision of the Tribunal should be set aside as the Tribunal made an error of law when it found that the Applicant had committed a work refusal failure pursuant to s42AD of the Social Security (Administration) Act 1999 (Cth).
I will deal with each of these matters in turn, but first some background is necessary.
BACKGROUND
The applicant asserts that at the time of the decision he had been unemployed since 16 March, 2016. The evidence shows that he was the recipient of Newstart Allowance since 25 March, 2016. Prior to this he was self-employed for around 35 years, mainly in mining and “supplying bush rock and retaining walls to” clients in “South East Queensland”. He undertook a domestic water delivery business but soon stopped that business. He then began receiving a Newstart Allowance.
Receipt of Newstart Allowance carries with it certain obligations. The Tribunal set these out in some detail in its reasons for decision and I will repeat what was said about that later, but for present purposes, it is sufficient to record that if a recipient of such an Allowance refuses or fails to accept an offer of suitable employment, payment of the benefit may be suspended or cancelled.
In August, 2018 the applicant was referred for an employment opportunity at a fruit shop. He did not take up the opportunity and payment of his Newstart Allowance was suspended. The circumstances of that are as follows.
The discussion that was found by the Tribunal to be an offer of employment, which resulted in the present proceeding, occurred on 28 or 29 August, 2018. The applicant was apparently informed of a job opportunity by an employee Ms Lisa Clark at the “job provider” HELP Enterprises. The job was at the “Carrara market garden”. He was directed to the business owner Mr Abu-Dabat. The applicant asserts that he did not read the workplace summary for the employment opportunity, prior to meeting with the owner, something which he typically did not do and was not aware of the description/requirements of the role.
Upon arriving at the market, the applicant and Mr Abu-Dabat discussed the job on offer. It was a retail positon in a fruit shop owned by Mr Abu-Dabat. The question which taxed the Tribunal, in part, was whether there was an offer of employment made to the applicant at this meeting.
In his originating application filed 31 December, 2019 at page 5 the applicant says that he “was not offered a job there [rather] it was a job description”. Mr Abu-Dabat apparently informed Mr Cullen that “There’s a job in fruit shop”, which the applicant asserts was “a statement [but] not a job offer”. At page 5 Mr Cullen further describes the interaction with commentary:
2. Mr. Stephen. Cullen. I don't think it’s a suitable job for me i never work in fruit shop
3. Mr. Abu-Dabat So you don't want the job. This is a question not a job offer.
4. Stephen Cullen. Not really you will get some local who is suitable Then left and went home.
5. This is not refusal I don’t want the job due to inexperience in shop work and medical issues.
6. I was not offered a job that morning as Mr. Abu-Dabat. Said. This is a lie.
7. I was not told to be there at 11.30. I was not told about training. I was not told it’s 4 hr. a day and was not call mate by Mr. Abu- Dabat. These are lie.
8. Two days later when I try to clarify if it a job offer Mr. Abu-Dabat said I can’t have the job.
Recorded at pages 45 to 46 of the transcript of the Tribunal hearing, the applicant described the discussion to the Tribunal:
Mr Abu, Jehad… he comes up… he walks over. We walked over to – in front of the coffee shop. [Mr Abu-Dabat] says the job is working in the fruit shop. He said there’s a job in the fruit shop, and then I just said, I’ve never worked in a fruit shop. It’s like retail, and you do the checkout. I’m in earth moving and construction. I don’t think it’s a suitable job. I’d rather try and do the truck driving job… Now [Mr Abu-Dabat] doesn’t say anything about training, or it’s only four hours. He just says, so you don’t want the job? And I said, well, not really. It’s not – I’m thinking – I didn’t say I don’t think it’s suitable, or I’d do it if I had to. I just said, no, not really. Then, you know, I went home…
In the context of discussing an ankle injury, the applicant told the member the following (at page 53 of the transcript):
(Indistinct) it was still sore, so - and [Mr Abu-Dabat] hasn’t got any chairs in his fruit shop and he wants me to be able to stand up. That’s what I – when I went back I went to check what sort of conditions and what sort of work, and if there’s anything that I could say I couldn’t do there. Because (indistinct) it was basically a misunderstanding, or I think it was a set-up between him and [Ms Clarke]. It wasn’t a misunderstanding. I was just saying it’s not suitable at the time, but I could do it if I had to, like, I - knowing what was going to happen, like, “Yeah, right, I’ll do (indistinct)”, and same with driving a truck. I’ll drive your truck if you want to.
The applicant asserted that there was a discussion a couple of days after this between himself and Mr Abu-Dabat. He said to the Tribunal that it was when he returned to the fruit shop owned by Mr Abu-Dabat a couple days later that Mr Abu-Dabat described what the job entailed. The applicant asserts that he “went back [and] went to check what sort of conditions and what sort of work, and if there’s anything I could say I couldn’t do there” (page 53 of the transcript).
Mr Abu-Dabat gave evidence to the Tribunal. At page 56 to 57 of the transcript appears his evidence about the first meeting with the applicant. In response to the applicant’s queries about what sort of job Mr Abu-Dabat had “got for” him, Mr Abu-Dabat said:
It’s easy job. You serve customers, you know, behind the till, you stack the fruit on the shelving and stuff.” I said “Easy job”. He said “Well, there’s hundreds of people looking for that sort of work. Why don't you get someone else?” I said “Does that mean you don't want a job?” He said “No”. I said “All right, thank you very much”, and then he left. Then I have to report to the agency what happened, so I told them “This what happened”.
Mr Abu-Dabat gave evidence that in the days after the job discussion, the applicant:
… came over my house one night after hours. All I’ve seen him, open my sliding door, and said “Look, you telling lies about me and I’m going to sue you, I’m going to do this”. I said “Wait a minute”. I said “Look, you come into my house after hours. You open the door and you let yourself in.” I said “Get out of here or I’ll call the police" and he left, and I haven't heard much back and that was a bit of issue going on between the employment agency and him, and then he turn up a couple of weeks ago and start having a go at me again.
On 7 September, 2018 a decision was made by the Department of Human Services to suspend the applicant’s Newstart Allowance effective 17 August, 2018 for four weeks due to his failure to accept a reasonable job offer on 29 August, 2018. The applicant sought that this decision be reviewed by an authorised review officer. That review affirmed the decision of the Department on 12 September, 2018.
The applicant applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for a review of the internal review decision made by the Department. The Tribunal affirmed the decision under review on 19 November, 2018. The applicant sought a second review by the Tribunal, which affirmed the first review decision on 1 May, 2019. It is this most recent decision that is challenged in these proceedings.
The reasons for the Tribunal’s decision are contained in Cullen and Secretary, Department of Social Services (Social services second review) [2019] AAT 777 (1 May 2019). At paragraph 7 of that decision the Tribunal presented the issues as:
…whether the Applicant refused or failed to accept an offer of suitable employment on 29 August 2018 and, if so, had a reasonable excuse for refusing or failing to accept the offer.
The Tribunal member recited the law relevant to the determination as follows (footnotes omitted):
15. The relevant law in relation to the payment of NSA is found in the Social Security Act 1991 (the Act), Social Security (Administration) Act 1999 (the Administration Act) and Social Security (Administration)(Reasonable Excuse – Participation Payments) Determination 2018 (the Determination).
16. Sections 593, 601 and 605 of the Act provide that for a person to qualify for NSA [Newstart Allowance] they must meet any participation requirements or activity test requirements that apply to them.
17. The Administration Act sets out the definition of work refusal failure, the relevant compliance action and outcomes in relation to participation payments.
18. Section 44AA of the Administration Act provides that NSA is a participation payment.
19. Section 42AD of the Administration Act relevantly provides:
42AD Work refusal failures
A person commits a work refusal failure if:
(a) the person is receiving a participation payment; and
(aa) …. and
(b) the person refuses or fails to accept an offer of suitable employment.
Note: In certain circumstances a person is taken to be receiving a participation payment even if it is not payable to the person: see section 42AQ.
20. Section 42AG of the Administration Act relevantly states:
42AG Compliance action for work refusal failures
Usual rule
(2) If a person commits a work refusal failure, the Secretary must determine that the person’s participation payment is not payable to the person for a period (see section 42AL).
Special rule – no reasonable excuse
(3) However, if the person does not satisfy the Secretary that the person has a reasonable excuse for the work refusal failure (see section 42AI), the Secretary must determine that the person’s participation payment is cancelled (see section 42AP).
Note: Participation payments will not be payable to the person for the person’s post-cancellation non-payment period (see subsection 42AP(5)).
(4) A determination made under subsection (2) for a work refusal failure has effect despite any determination made under subsection (1) for the failure.
21. Section 42AI of the Administration Act refers to matters that must or must not be taken into account in determining what is a reasonable excuse:
42AI Reasonable excuses—matters that must or must not be taken into account
Matters to be taken into account
(1) The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether a person has a reasonable excuse for committing:
(a) a mutual obligation failure (see paragraph 42AF(2)(b)); or
(b) a work refusal failure (see subsection 42AG(2)).
(2) To avoid doubt, a determination under subsection (1) does not limit the matters that the Secretary may take into account in deciding whether the person has a reasonable excuse.
Matters not to be taken into account
(3) The Secretary may, by legislative instrument, determine matters that the Secretary must not take into account in deciding whether a person has a reasonable excuse for committing:
(a) a mutual obligation failure (see paragraph 42AF(2)(b)); or
(b) a work refusal failure (see subsection 42AG(2)).
22. Section 42AP of the Administration Act relevant provides:
42AP Cancelling participation payments
(1) This section applies if the Secretary determines under Subdivision C that the participation payment of a person who has committed a mutual obligation failure, a work refusal failure or an unemployment failure is cancelled.
When payments are cancelled
(2) For a mutual obligation failure or a work refusal failure, the participation payment is cancelled at the start of the following day (the cancellation day):
(a) The first day of the instalment period in which the person commits the failure (unless paragraph (b) applies);
(b) If the Secretary determines that a later instalment period is more appropriate – the first day of that later instalment period.
…………
(5) A participation payment (whether or not the same as the participation payment that was cancelled) is not payable to the person for the period (the post-cancellation non-payment period) of:
(a) 4 weeks beginning on the cancellation day ….
23. The Determination sets out the matters that must be taken into account and must not be taken into account, when deciding whether a person has a reasonable excuse for committing a work refusal failure.
24. Section 5 of the Determination sets out, for the purposes of subsection 42AI(1) of the Administration Act, the matters that must be taken into account in deciding whether a person has a reasonable excuse for committing a failure. These are set out in subsection 2 as follows:
(2) The matters are:
(a) the person did not have access to safe, secure and adequate housing, or was using emergency accommodation or a refuge, at the time of the failure;
(b) the literacy and language skills of the person;
Example for paragraph (b):
If the person is unable to comprehend a requirement or an instruction, despite the requirement or instruction being delivered in a form that the person is most likely to comprehend.
(c) an illness, injury, impairment or disability of the person;
(d) a cognitive, neurological, psychiatric or psychological impairment or mental illness of the person;
(e) a drug or alcohol dependency of the person;
(f) unforeseen family or caring responsibilities of the person;
(g) the person was subjected to criminal violence (including domestic violence and sexual assault);
(h) the person was adversely affected by the death of an immediate family member or close relative;
(i) the person was undertaking paid work at the time of the failure;
(j) the person was attending a job interview at the time of the failure.
The Tribunal received evidence from Ms Lisa Clark, described as a “Coach” at HELP Enterprises who was working with Mr Cullen to assist him to find employment. Ms Clark arranged a job interview for Mr Cullen with Mr Jehad Abu-Dabat, a local employer.
The Tribunal considered Mr Cullen’s oral evidence that when Mr Abu-Dabat asked him whether he wanted the job, the Applicant replied “not really”. It considered his claim that he did not refuse the job but said it was not suitable and would do it if he had to. It considered his claim that Mr Abu-Dabat did not offer him a job and it was a misunderstanding.
As to whether the applicant had in fact received a job offer, the Tribunal reasoned:
34. The evidence provided by the Applicant is somewhat contradictory in relation to whether or not he believed he had been offered a job, and whether he had refused such an offer or failed to accept such an offer of employment on 29 August 2018. What is clear is that the Applicant did not want to work in the fruit shop and did not leave Mr Abu-Dabat, as the perspective employer, with any doubt that he did not want the job.
35. The Tribunal prefers the evidence of Ms Clark and Mr Abu-Dabat in relation to the genuine offer of employment and the Applicant’s subsequent refusal or failure to accept the offer of employment. Both Ms Clark and Mr Abu-Dabat provided evidence that the second job seeker who attended Mr Abu-Dabat’s premises after the Applicant accepted the position and commenced the next day.
36. Accordingly, based on the evidence before the Tribunal, I find that the Applicant refused or failed to accept an offer of employment on 29 August 2018.
Turning to the question of whether the job offered was for suitable employment for the applicant, the Tribunal reasoned:
39. Based on the evidence before the Tribunal, I find that the job at the fruit and vegetable shop constituted suitable employment as the Applicant would have been provided with the required training, it was in a reasonable traveling vicinity of the Applicant’s home, and the duties would not require heavy lifting. The Tribunal is not persuaded by the Applicant’s contentions that the job was not suitable because he did not have relevant experience and he wanted employment in the mines which would be more suited to his past work experience.
40. I find that the Applicant committed a work refusal failure pursuant to section 42AD of the Administration Act by refusing or failing to accept the job he was offered at the fruit and vegetable shop, being a job that constituted suitable employment.
The Tribunal considered whether the applicant had a reasonable excuse for refusing or failing to accept the offer of employment made to him on about 29 August, 2018 by Mr Abu-Dabat. The Tribunal considered that the applicant had not raised any of the matters set out in s.5 of the Social Security (Administration) (Reasonable Excuse - Participation Payments) Determination 2018 as his reasons for failing to accept the offer of employment. It considered his contention that he had a reasonable excuse for not accepting the job offer because the job was not suitable and there was a misunderstanding. It considered the applicant’s reference to his health problems as being a reason was to why the job was not suitable but found that the applicant had not provided any corroborative evidence in relation to his conditions as at 29 June, 2018 or their overall impact on his ability to undertake the job in the fruit and vegetable shop. The Tribunal also found that the appellant had a challenging relationship with Ms Clark and there was some confusion on the applicant’s part in relation to his appointment on 29 August, 2018 and the job to which it related. However, notwithstanding that the Tribunal accepted that there was a misunderstanding in relation to what the job was for and when the interview was to take place, the Tribunal did not consider that the evidence of the applicant was consistent overall and it was not persuaded that the applicant had a reasonable excuse to refuse or fail to accept the offer of employment.
In fact, the Tribunal found that the applicant did not want the job because he did not think it was suitable and would have preferred to undertake the training required to secure a position in the mines. The Tribunal at paragraphs 41 to 50 of the decision considered that the applicant did not have a reasonable excuse for refusing or failing to accept the job. The Tribunal concluded:
51. … that the Applicant:
(a) refused or failed to accept the offer of employment made to him on 29 August 2018;
(b) the job offered to him on 29 August 2018 constituted suitable employment; and
(c) did not have a reasonable excuse for refusing or failing to accept the offer of employment made to him on 29 August 2018.
Accordingly, the Tribunal affirmed the decision under review.
THE FIRST QUESTION OF LAW
The applicant specifies his first question of law as:
The decision of the Tribunal should be set aside as the Tribunal made an error of law when it failed to afford the Applicant natural justice.
This is not a question of law. It is an assertion of error by the Tribunal of a type that the authorities referred to above have consistently said is insufficient to engage the jurisdiction of a court under s.44(1) of the Tribunal Act. Nonetheless, having regard to the applicant’s lack of legal assistance I will consider his grounds particularised in support of this question so as to determine if a question of law, in fact arises.
In support of the first question of law, the applicant specifies the following grounds:
In relation to Question of Law 1, the Tribunal made an error of law when it failed to afford the Applicant natural justice by:
a. Failing to consider the Applicant’s wish to cross-examine the Respondent’s witnesses in person, rather than via telephone link;
b. Interjecting the Respondent’s witnesses into the evidence of the Applicant;
c. Allowing the Respondent’s witnesses in cross examination to possess their statements of evidence; and
d. Restricting the time available to the Applicant to cross-examine the Respondent’s witnesses, to the time the Respondent indicated that the witnesses were available.
Ms Clark and Mr Abu-Dabat gave evidence at the hearing by telephone link. Recorded at page 20 of the transcript of the hearing, the applicant identified that the witnesses were giving evidence by telephone link and that he sought that the witnesses give evidence in person.
Pursuant to s.33A of the Tribunal Act, the Tribunal may permit a person to participate in a hearing by telephone link. It is an express power granted to the Tribunal to allow a person to participate in the hearings by communication equipment such as telephones: s.33A(1). In this case this permission was granted to the witnesses Ms Clark and Mr Abu-Dabat.
The applicant indicated his preference for his method of cross-examination by the following (T 7 – 8):
MR CULLEN: I want to give the background of what has gone on before this matter, and then the matter, and also to - I was hoping to question them; look them in the eye and question them what - you know, what they're up to.
MEMBER: This morning that will be on the phone. The process —
MR CULLEN: Yes, that's what I've been told - yes, I'm very disappointed.
MEMBER: I note that. So the process that we will follow this morning is I'll ask Mr McQuinlan to give us a brief overview of the respondent's position. Then we will talk to Ms Clarke, depending on time. Then----
The transcript does not reveal that there was any real consideration given to the applicant’s request to have the witnesses in person. The applicant’s justification to have them in person was so that he could “look them in the eye”. That of itself is not a sufficient justification for oral evidence, but Mr Cullen was not asked to elaborate.
The text of s.33A of the Tribunal Act does not presuppose that persons or witnesses will be able to participate in a hearing by telephone without their first being a determination or permission by the Tribunal for that to happen. The text of s.33A implies, in my view, that the starting point is that parties and witnesses will participate in a hearing in person. The Tribunal is given a discretionary power to allow or require a person to participate by telephone or some other electronic means of communication.
In this case, it appears that the Tribunal had determined that the witnesses would be cross-examined by telephone without seeking his views or any submissions from Mr Cullen about that. He expressed his disappointment about not being able to cross examine the witnesses in person.
However, the question ultimately is whether the Tribunal denied to Mr Cullen a reasonable opportunity to present his case and removing the opportunity for effective cross examination of Ms Clark or Mr Abu-Dabat by insisting they give their evidence over the telephone: eg: Federal Commissioner of Taxation v Grbich (1993) 31 ALD 97; Federal Commissioner of Taxation v Seymour (2015) 65 AAR 443 at [74] (appeal dismissed: Seymour v Commissioner of Taxation (2016) 241 FCR 361). More recently in Khalil v Minister for Home Affairs (2019) 271 FCR 326 in the context of an argument that the Tribunal had denied an applicant procedural fairness, the Full Federal Court said:
[31] Section 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (Tribunal Act) requires the Tribunal to ensure that every party to a proceeding before it is given a reasonable opportunity to present his or her case. That requirement is also at the heart of the obligation to afford natural justice which the law would in any event imply: Sullivan v Department of Transport (1978) 20 ALR 323 at 342; 1 ALD 383 at 402 (Sullivan) (Deane J, Fisher J agreeing). A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615; [2002] HCA 11 at [40] (Gaudron and Gummow JJ, citing Sullivan at ALR 343; ALD 403).
[32] What is reasonable will depend upon the circumstances of the case: Re Australian Railways Union; Ex parte Public Transport Commission (1993) 117 ALR 17 at 24. However, the duty of the Tribunal was to afford the applicant a reasonable opportunity to present his case, not the best possible opportunity that the Tribunal may have been capable of accommodating, or an adjournment to ‘a date as late as humanly possible’: Daw v Minister for Immigration and Citizenship [2012] FCA 705 (Daw) at [25], [30] (Edmonds J), affirmed in Daw v Minister for Immigration and Citizenship [2012] FCAFC 123 (Daw v Minister) (Flick, Nicholas and Robertson JJ). As that case illustrates, the question of whether or not an applicant has been given a reasonable opportunity to be heard depends on the course of the proceedings as a whole: see especially Daw at [24], quoted with approval in Daw v Minister at [11].
Here, the question which is presented by the facts, is whether the Tribunal’s failure to accede to Mr Cullen’s request for the respondent’s witnesses to be personally present for cross examination constituted a want of procedural fairness. A determination of that issue depends upon a finding as to the reasonableness of Mr Cullen’s request and whether there was any material disadvantage or prejudice to Mr Cullen by cross-examining Ms Clark and Mr Abu-Dabat over the telephone. An examination of the hearing, as it unfolded demonstrates that Mr Cullen’s expectation, or by implication request, that the witnesses would give their evidence in person was in the circumstances, unreasonable. Further, an examination of the hearing demonstrates that there was no prejudice to Mr Cullen by being required to cross-examine witnesses over the telephone.
Ms Clark was a job “coach” at HELP Enterprises, a jobseeker assistance organisation. On the morning of 29 August, 2018 she sent a text message to Mr Cullen about a job interview. The text message required Mr Cullen to contact Ms Clark at 9:30 am. Instead of doing that, however, he went to the organisation offering the job. The job interview itself was not until 11:30 am. Mr Cullen was sent away from the organisation offering the job and he went to the HELP office to see Ms Clark. Having regard to Mr Cullen’s evidence and his cross examination of Ms Clark, it is fair to say that Mr Cullen has a number of concerns about the way in which he says Ms Clark dealt with him. But those matters were not relevant to the issue that needed to be determined by the Tribunal. Mr Cullen’s cross examination of Ms Clark was largely about irrelevant matters. The transcript of the Tribunal hearing reveals the Tribunal member attempting on several occasions to redirect Mr Cullen’s efforts in cross-examining Ms Clark. The transcript makes it clear, however, that the Tribunal member had difficulty ascertaining the relevance of the cross-examination of Ms Clark, and her evidence more generally, to the particular issues that needed to be determined by the Tribunal.
The cross examination of Ms Clark was, in my view, ill directed to any issue that might have been relevant before the Tribunal. The impression I formed from reading Mr Cullen’s cross-examination of Ms Clark was that he was more interested in airing the many grievances he had against her (including the proposition that she had sexually harassed him when he attended at the HELP office on the morning of 29 August, 2018). None of those matters were to the point before the Tribunal.
In my view, even if the Tribunal was obliged to hear from Mr Cullen about whether Ms Clark could be cross-examined over the telephone and erred in not hearing from him about that matter, there was no practical injustice afforded to Mr Cullen because the matters about which Mr Cullen cross-examined Ms Clark were of, and could not have been, of any assistance to the Tribunal.
Mr Cullen was given the opportunity to cross examine Mr Abu-Dabat. Mr Abu-Dabat gave evidence in chief in accordance with a written statement that had been given to the Tribunal. In the course of cross-examining Mr Abu-Dabat about the conversation that occurred between Mr Cullen and Mr Abu-Dabat on 29 August, 2018, the following exchange occurred between Mr Cullen and Mr Abu-Dabat (my emphasis):
Next to the coffee shop?—That's correct, behind the coffee shop, and I said "Look, are you here for the job interview?" You said "Yes". Then you got the truck pass over, going back to the landscape yard. Straight away you said to me the exact word "I am not driving a bloody truck". I said "Well hang on a minute, I don’t even own that business". I said I don’t want you - "I'm not asking you to drive a truck", I said. Then you said "Oh, look at the dust coming out", like, you know, you got a little bit of dust. You said "Oh, that give me pain in the back". I said "Well, I'm not offering you a job at the landscape yard. The landscape yard has got nothing to do with me." Then you said to me "What job you've got for me?" and I said "Look, the job you're going to get is to work at the fruit shop". I said "I requested somebody to work in the fruit shop". You said "What sort of work is that?" I said "Look, serving customer, put stuff on the shelves, and bit tidying up the shop”.
Thereafter in his cross-examination, Mr Cullen took the emphasised portion of Mr Abu-Dabat’s evidence set out above out of context and became focused on the proposition that Mr Abu-Dabat was suggesting that Mr Cullen said that the dust that was observed gave Mr Cullen a pain in the back. From that proposition Mr Cullen attempted to extrapolate an argument that the position offered to him by Mr Abu-Dabat in the fruit shop was not suitable because he would be exposed to the dust from the passing traffic (on its way to the landscape yard) and that would give him a pain in the back.
However, reading what Mr Abu-Dabat said in his statement and his cross-examination in context, he did not claim that Mr Cullen said that the dust would cause him to have a pain in his back. The pain in the back is plainly a reference to driving a truck causing Mr Cullen a pain in his back.
The significant parts of the conversation that occurred between Mr Cullen and Mr Abu-Dabat on 29 August, 2018 were not challenged in cross-examination by Mr Cullen. That is not surprising because, on his own case, Mr Cullen accepted that he had been offered a job by Mr Abu-Dabat in the fruit shop and that he had refused it (see T 47, 54 and 70 for example).
Having regard to the cross examination of Mr Abu-Dabat is conducted by Mr Cullen, I am satisfied that there was no injustice caused to Mr Cullen by Mr Abu-Dabat giving his evidence in cross-examination over the telephone rather than in person.
There is nothing in this aspect of Mr Cullen’s complaint about the Tribunal’s conduct of the hearing.
As part of this ground, Mr Cullen suggests that the Tribunal fell into error because of “Interjecting the Respondent’s witnesses into the evidence of the Applicant”.
The respondent drew my attention to Coulton v Comcare [2001] FCA 1313. As was pointed out at [68] of that decision, provided the procedure adopted by the Tribunal did not deny to the applicant procedural fairness, it is not for this Court to impose its opinion as to the desirability of the course adopted: Australian Postal Commission v Hayes (1989) 23 FCR 320 at 326. At [69] the Court affirmed that the imposition of a witness is a matter of discretion for the person responsible for the conduct of the trial or hearing and will not be interfered with unless one party has been caused prejudice in the conduct of its claim or defence: Sims v O’Sullivan [1952] SASR 179 at 183.
Thus, the question here is whether Mr Cullen has been caused prejudice in the conduct of his claim by reason of the imposition of the respondent’s witnesses. The Secretary submits that there was no denial of procedural fairness by the evidence of the witnesses being imposed.
Despite his arguments to me, Mr Cullen did not identify how he was denied natural justice by the witnesses’ evidence being interposed or any prejudice caused to him by the course adopted by the Tribunal.
Whilst it is true that Ms Clark’s evidence was taken before that of Mr Cullen’s, Mr Abu-Dabat’s evidence was taken after Mr Cullen’s evidence-in-chief to the Tribunal but before he was cross-examined. There was no request by Mr Cullen to have the witnesses in any other order. In any event, there is nothing that appears from the transcript of the Tribunal’s hearing nor anything that fell from Mr Cullen in his submissions to me that suggests that by taking Ms Clark’s evidence before that of Mr Cullen he was prejudiced in any way. Nor was there any prejudice to Mr Cullen by having Mr Abu-Dabat’s evidence after Mr Cullen gave his evidence-in-chief but before he was cross-examined.
Further, Mr Cullen complains that the Tribunal fell into error because it allowed the Respondent’s witnesses to possess their statements of evidence when cross-examined. It is clear that both Mr Abu-Dabat and Ms Clark had their statements to hand when they gave their evidence. Indeed, Mr Abu-Dabat confirmed at the conclusion of his evidence-in-chief that he had it in his hand at that time. Thus, Mr Cullen knew before he commenced to cross-examine Mr Abu-Dabat, that he had his statement in front of him. Mr Cullen did not ask for that matter to be addressed by the Tribunal in any particular way. Moreover, given the lack of challenge to anything of substance said by either Mr Clark or Mr Abu-Dabat, the fact that they had their statements of evidence-in-chief in front of them when they were cross-examined by Mr Cullen does not reveal error by the Tribunal.
Mr Cullen complains that the Tribunal erred by “Restricting the time available to the Applicant to cross-examine the Respondent’s witnesses, to the time the Respondent indicated that the witnesses were available”. There are two propositions tied up with this complaint. The first is that there was a restriction on the time for the cross-examination of each of the witnesses imposed upon Mr Cullen. The second is that Mr Cullen could only cross-examine the witnesses when they were made available for that purpose to the Tribunal.
The second proposition is correct. The record reveals that arrangements were made by the respondent for Ms Clark and Mr Abu-Dabat to be available to give their evidence at particular times. However, there is nothing in the material to which I have been taken or anything said by Mr Cullen in submissions that suggests that because he needed to cross-examine those witnesses at those particular times, he was prejudiced in any way. To the extent that those witnesses were interposed in Mr Cullen’s case, as I have already indicated above, there was no prejudice to him by doing so.
As to the first proposition, there is nothing in the transcript of the Tribunal’s hearing to suggest that Mr Cullen was in any way limited in the amount of time that he could take to cross-examine either Ms Clark or Mr Abu-Dabat. In any event, even if he was so restricted, by and large the cross-examination was not directed to any particular issue that needed to be determined by the Tribunal and so any restriction that might have been placed on the length of cross-examination (and it does not appear that there was) did not prejudice Mr Cullen’s cross-examination of those witnesses.
The first question of law raised by the first purported question of law relied upon by Mr Cullen does not reveal any error in the Tribunal’s hearing process of reasons such as to attract relief from this court.
QUESTION TWO
Question two is in the following form:
The decision of the Tribunal should be set aside as the Tribunal made an error of law when it found that the Applicant had committed a work refusal failure pursuant to s42AD of the Social Security (Administration) Act 1999 (Cth).
This ground too, is not stated as a question but rather asserts an error of law by the Tribunal. No particulars or ground of review are given by Mr Cullen in support of this purported question. The particular error of law said to have been made was not identified by Mr Cullen.
The Tribunal found that the applicant was a participant in the Newstart Allowance scheme. Consequently, the applicant was required to apply for employment and if he was offered employment (or made a “a job offer”) for which he was suitable, then if he refused or failed to accept the job, he would have been subject to reprimand.
At the Tribunal hearing regarding the alleged job offer on 29 August, 2018, the applicant had essentially argued two points; first, that there was no job offered to him, and second, that the job was not suitable for someone with his health conditions. The Tribunal considered whether the applicant had been offered a suitable job at paragraphs 26-40 of its reasons.
As to the first matter, Mr Cullen asserted to the Tribunal that the discussion between himself and Mr Abu-Dabat involved the latter making a statement about the job and that when Mr Abu-Dabat asked him whether he wanted the job, Mr Cullen replied “not really”. Mr Cullen argued that he did not refuse the job but said it was not suitable and would do it if required. He argued that Mr Abu-Dabat did not offer him a job and it was a misunderstanding.
The respondent argued that there was a job offer through the discussions between the applicant and Mr Abu-Dabat, which was detailed in a “participation compliance workflows summary report”. It evidenced, along with oral evidence, that there was an offer and it was either refused or failed to be accepted.
The Tribunal rejected Mr Cullen’s case. It found that he had been offered employment by Mr Abu-Dabat. Indeed, Mr Cullen’s own evidence was consistent with that. To the extent that Mr Cullen suggested that he had not been offered a job by Mr Abu-Dabat because all that was said to him was “There is a job in the fruit shop.” the Tribunal rejected Mr Cullen’s argument and determined that the statements by Mr Abu-Dabat were an offer of employment. That finding was open to the Tribunal. At [34] of its reasons, the Tribunal found that Mr Cullen did “not want to work in the fruit shop and did not leave Mr Abu-Dabat with any doubt that he did not want the job”.
As to the second argument, the Tribunal rejected Mr Cullen’s case that the employment offered to him was not suitable. At paragraphs 37-39 of its reasons the Tribunal examined whether the job offer to Mr Cullen was suitable. The Tribunal made findings, in line with that advanced by the respondent and not contradicted by the applicant’s evidence, that the job “constituted suitable employment as the Applicant would have been provided with the required training, it was in a reasonable travelling vicinity of the Applicant’s home, and the duties would not require heavy lifting”: see paragraph 39. At paragraph 40 of its reasons the Tribunal found that the job was suitable for the applicant.
The Tribunal made no error of law in making these findings. I cannot find that the applicant was denied natural justice, or that the Tribunal otherwise erred, in connection with this ground.
Rather, I accept the respondent’s submission that the appeal to this Court is an impermissible request by Mr Cullen for the Court to undertake a merits review. I accept that so much is evident from the 34 points raised by Mr Cullen in the attachment to his amended notice of appeal apparently in response to evidence given by the witnesses at the hearing.
CONCLUSION
The application raises no questions of law and demonstrates no error of law by the Tribunal.
The respondent seeks costs in the amount of $7,000.00, a sum less than the amount to which he would be entitled under the scale of costs applicable to these proceedings set out in schedule 1 of the Federal Circuit Court Rules 2001 (Cth). There is no reason why costs should not follow the event.
The amended application filed on 31 December, 2019 must be dismissed with costs fixed in the sum of $7,000. I so order.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 24 May, 2021. Associate:
Dated: 24 May 2021
0
15
0