Dobson v Dobson
[2019] FCCA 488
•6 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOBSON v DOBSON & ANOR | [2019] FCCA 488 |
| Catchwords: CHILD SUPPORT – Review of a decision of the Administrative Appeals Tribunal – where Applicant did not comply with directions of Tribunal to provide evidence – whether Tribunal decision to dismiss was reasonable – no jurisdictional error –application dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss.42A, 33, 37 |
| Cases cited: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 |
| Applicant: | MS DOBSON |
| First Respondent: | MR DOBSON |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLG 2021 of 2018 |
| Judgment of: | Judge Hartnett |
| Hearing dates: | 2 November 2018 4 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 March 2019 |
REPRESENTATION
| The Applicant: | In Person |
| The First Respondent: | In Person |
| Solicitor acting as Counsel for the Second Respondent: | Ms Nicholson |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the costs of the Second Respondent fixed in the sum of $7,200 together with the costs thrown away of the application in a case filed 13 December 2018 in the sum of $550 (making a total sum of $7,750).
IT IS NOTED that publication of this judgment under the pseudonym Dobson v Dobson & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2021 of 2018
| MS DOBSON |
Applicant
And
| MR DOBSON |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
The Applicant filed an application in a case on 13 December 2018 seeking to re-open these proceedings for the purpose of adducing further evidence. That application was heard on 4 February 2019 and dismissed, with the costs of the Respondents reserved.
In a notice of appeal (child support) filed on 12 July 2018, the Applicant appealed from decisions of the Administrative Appeals Tribunal (Social Services and Child Support Division) (‘the Tribunal’) dated 14 June 2018, in review proceedings:-
a)2018/HC013241, affirming an objection decision dated 20 December 2017 (‘objection decision’); and
b)2017/MC013167 and 2018/HC013266, dismissing the applications for a review (‘dismissal decision’) pursuant to s.42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), together the review proceedings (‘review proceedings’).
The grounds of appeal as set out in the notice of appeal filed are as follows:-
“1. The SSAT erred in law in failing to consider all relevant factors pursuant to section 117 of the Child Support (Assessment) Act 1989 (the Assessment Act), namely hardship that would be caused to the children by the determination (section 117(4)(g)(i)),
2. The SSAT erred in law in failing to consider all relevant factors pursuant to section 117 of the Assessment Act, namely the hardship that would be caused to the carer entitled to child support by making the determination (section 117(4)(g)(i)),
3. The SSAT erred in law in failing to make a determination which was just and equitable as regards the children, in that it failed to have regard to the hardship that would be caused by the making of the determination (section 117(1)(b)(ii)(A)),
4. The SSAT erred in law in failing to make a determination which was just and equitable as regards the carer entitled to child support, in that it failed to have regards to the hardship to the carer entitled to child support that would be caused by the making of the determination (section 117(1)(b)(ii)(A)),
5. The SSAT erred in law in failing to make a determination which was just and equitable as regards the carer entitled to child support, in that it failed to have regards to the hardship to the carer entitled to child support that would be caused by the making of the determination (section 117(4(b),4(c),4(da),4(f) & 4(g)(i)),
6. The SSAT erred in the discharge of its duties and exercise of its jurisdiction to make a determination that was just and equitable as regards to the children, in failing to make necessary and obvious inquiries as to the critical facts and effect of its determination, in circumstances where the effect of the determination could be to cause hardship to the children and the carer, that would be caused by the making of the determination (section 56, 57, 58 and 58A-D),
7. The SSAT erred in the discharge of its duties and exercise of its jurisdiction to make a determination that was just and equitable as regards to the children, in failing to make necessary and obvious inquiries as to the critical facts and effect of its determination, in circumstances where the SSAT applied incorrect facts or sequence of facts, that were obtained from the Second Respondent, and was referred to in its decisions,
8. The Applicant was denied procedural fairness and the SSAT erred in law in failing to act reasonably and erred in the discharge of its duties and exercise of its jurisdiction to make a determination that was just and equitable as regards to the children, in failing to make necessary and obvious inquiries as to the critical facts and effects of any or all of, the First Respondent's documents, prior to the dismissal of the Review Appeal Hearing.
9. The Applicant was denied procedural fairness, in that despite the First Respondent admitting that he had not received any documents that were presented before the SSAT during the Review Appeal Hearing, the SSAT did not reasonably afford the opportunity for adjournment of the Review Appeal Hearing to provide an opportunity for all parties to obtain further documents to place relevant material before it and to participate fully in the Review Appeal Hearing.
10. The Applicant was denied procedural fairness, in that the SSAT did not put her on notice that she could request an adjournment during the Review Appeal Hearing on 14 June 2018, for an opportunity to seek all the necessary relevant original Tax and Bank statements directly from the Australian Tax Office and/or Banks, and to place the relevant material before it. The Applicant had expressly stated under Oath during the Review Appeal Hearing on 14 June 2018, that she was unable to and/or was being denied access to the original Tax Returns and Bank Statements by her accountant because he was a creditor to her Bankrupt Estate and the relevant bank accounts and home loans were closed.
The Applicant had expressly stated under Oath that she had complied to the Directions of the SSAT, to the best of her ability to access relevant materials for which she was able to and had provided to the SSAT, in accordance to the SSAT Directions,
11. The Applicant was denied procedural fairness and the SSAT erred in law in failing to act reasonably to make a determination that was just and equitable as regards to the children and the carer, by making necessary and obvious inquiries of the Applicant as to the critical facts and effects of the Applicant's Financial Statements that were sworn under Oath during the Federal Circuit Court proceedings MLC4941/2014, as part of the SSAT's decisions to dismiss the Review Appeal Hearing on 14 June 2018.
12. The Applicant was denied procedural fairness and the SSAT erred in law in failing to act reasonably to make a determination that was just and equitable as regards to the children and the carer's hardship, by conducting the Review Appeal Hearing on 14 June 2018 as a “witch-hunt” for any and all unreasonable and unjust excuses to exercise its duties and jurisdiction, for dismissal of the Appeal, prior to its reasonable consideration of all relevant factors pursuant to section 117 of the Child Support (Assessment) Act 1989 (the Assessment Act).”
The Applicant relied upon affidavits sworn by her on 12 July 2018, 3 October 2018 and 15 October 2018, together with written submissions dated 19 October 2018.
Each of the First and Second Respondents seek dismissal of the Applicant’s application. The Second Respondent relied upon an affidavit of Ms Danielle Nicholson sworn on 29 October 2018, Ms Nicholson being a solicitor employed in the firm Sparke Helmore Lawyers, solicitors for the Second Respondent, and submissions dated 26 October 2018.
The Applicant seeks orders to set aside decisions of the Tribunal made on 14 June 2018 and posted on 19 June 2018, together with orders to set aside decisions of the Tribunal made on 14 June 2018 and posted on 20 June 2018. The Applicant seeks further that the matter be remitted to the Tribunal for rehearing according to law and that a costs order be made against the First and Second Respondents.
The First and Second Respondents submit to the Court that there is no error of law in either of the Tribunal’s decisions and that the Court should order the dismissal of the application. The Second Respondent seeks costs.
Background
The Applicant and the First Respondent (‘the Respondent’) are the separated parents of [X], born … 2008, and who is now aged nearly 11 years and [Y], born … 2010 and who is now aged approximately eight and a half years (‘the children’). The child support case has been in place since 30 April 2014. The children have been in the primary care of the Applicant throughout the child support case. The Respondent is the parent liable to pay child support. He has regular care of the children.
The Applicant filed three separate applications for review in the Tribunal however, in determining the review proceedings, the Tribunal:-
a)issued joint directions in relation to review proceedings 2018/HC013266 and 2017/MC013167 on 19 April 2018;
b)listed all three review proceedings for final hearing on 14 June 2018;
c)made two decisions, namely, the objections decision and the dismissal decision.
Background to proceeding 2018/HC013241
This background is set out in the following paragraphs.
On 3 November 2015, the Applicant informed the Second Respondent that her 2014/2015 financial year (‘FY’) adjusted taxable income would equate to $20,000 (‘income estimate’). On 20 November 2015, that declaration was accepted by the Second Respondent and applied to the child support assessment for the period 1 December 2015 to 28 February 2017.
On 19 October 2016, a system error arising from the Applicant lodging her tax returns, applied a 2014/2015 default income of $47,219 (two thirds the male total average weekly earnings) as the Applicant’s income for the period 1 December 2015 to 30 November 2016.
On 1 September 2017, the Applicant’s 2014/2015 FY income tax declaration of $20,000 was re-instated and applied to the child support assessment for the period 1 December 2015 to 30 November 2016. On 4 October 2017, the Applicant objected to the 1 September 2017 decision.
On 20 December 2017, an objections officer disallowed the objection (‘the income declaration December objection decision’). The officer found that the Second Respondent was required to use the last relevant year of income to calculate a child support assessment pursuant to ss.38 and 45 of the Child Support (Assessment) Act1989 (Cth) (‘the Assessment Act’), and that the last relevant year of income for the period commencing 1 December 2015 was FY 2014/2015.
The objections officer found that when the relevant period commenced, the Applicant’s Australian Taxation Office (‘ATO’) supplied income was not available and that at that date, the most suitable amount to reflect the Applicant’s 2014/2015 FY income was her declared amount of $20,000. The officer found that the Second Respondent could not use the ATO assessments for the 2014/2015 FY for the period 1 December 2015 to 30 November 2016, as they were received after that period expired. In this regard the Court notes that on 24 April 2017 the ATO assessed the Applicant’s 2014/2015 adjusted taxable income. On 10 May 2017 the ATO issued an amended assessment and calculated the Applicant’s 2014/2015 taxable income to be $13,229. This figure could not be used to update the child support period 2014/2015 because the Second Respondent did not receive those details as to the Applicant’s income until after the child support period 2014/2015 had expired.
On 4 January 2018, the Applicant applied to the Tribunal for review of the income declaration December objection decision.
On 20 April 2018, the Tribunal invited the Applicant and the Respondent to attend a hearing before it scheduled to commence at 10.00am on 14 June 2018, which the Applicant and the Respondent attended. Both the Applicant and the Respondent gave evidence in those proceedings. The Tribunal received into evidence documents marked 1 to 258 produced by the Department of Human Services – Child Support (‘the Department’) pursuant to s.37(1) of the AAT Act.
The Tribunal set out in its Decision and Reasons for Decision (‘the Decision Record’) at paragraph 8 that the issue to be determined by the Tribunal was “whether [the Applicant’s] adjusted taxable income for the financial year ending 30 June 2015 should have been determined in accordance with information provided by her on 3 November 2015” to the effect that her income for the financial year ended 30 June 2015 was $20,000. The Tribunal concluded that the Applicant’s adjusted taxable income for the financial year ended 30 June 2015 should have been determined by reference to the information provided by her on 3 November 2015. In a decision dated 14 June 2018, the Tribunal affirmed the income declaration December objection decision.
The Tribunal found that the Applicant’s taxable income for the FY ending 30 June 2015 was not assessed until April 2017, with a tax assessment issued on 24 April 2017 and amended on 10 May 2017. It noted that the Second Respondent had used the Applicant’s income estimate of $20,000 for the purpose of the administrative assessment of child support.
The Tribunal found that pursuant to s.58A(1) of the Assessment Act, an administrative assessment of child support made on the basis of a determination under s.58 of the Assessment Act must be amended when a person’s adjusted taxable income for the last FY is ascertained.
The Tribunal found that when the Applicant’s adjusted taxable income was first assessed in April 2017, the last relevant year of income was FY 2015/2016, not FY 2014/2015; accordingly, s.58A(1) of the Assessment Act did not require the Applicant’s adjusted taxable income for FY 2014/2015 to be amended.
The Tribunal found that none of the criteria in s.58A(2) of the Assessment Act providing for retrospective determination were satisfied; that the Applicant had been unable to point to any other basis for a retrospective determination; and that her adjusted taxable income for FY 2014/2015 should have been determined by reference to the information provided by her on 3 November 2015.
Background to proceeding 2017/MC013167
On 2 November 2015, the Applicant applied to the Second Respondent under Pt.6A of the Assessment Act and by reference to s.98C(1)(b) thereof, which includes the grounds for departure set out in s.117(2) of the Assessment Act for a cause of action (‘COA’) under reasons 2, 3 and 8A (the costs of maintaining a child are significantly affected by high costs associated with the child’s special needs; the costs of maintaining a child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended; the parents’ income, property and financial resources make the child support assessment unfair). The Respondent cross-applied on the basis of reasons 5, 7 and 8A (the child support assessment is unfair because the payer has paid or transferred money, goods or property to the child, the payee or a third party for the benefit of the child; the parents’ necessary expenses significantly affect their capacity to support the child).
On 17 February 2016, a delegate of the Second Respondent (a case officer) found reasons 3 and 8A were established on the Applicant’s COA, and reason 8A on the cross-application of the Respondent, but refused the applications under s.98E of the Assessment Act, as the issues raised were too complex.
On 9 May 2017, the Applicant applied to the Second Respondent for an extension of time to object to the 17 February 2016 decision, which was initially refused, before being set aside and granted by a differently constituted Tribunal on 9 November 2017.
On 20 December 2017, a delegate (an objections officer) of the Second Respondent found that reason 3 (costs of the children’s private schooling) and 8A in respect of both parties’ applications were made out (‘the COA December objection decision’). The delegate found that it would be just and equitable and otherwise proper to set the Applicant’s adjusted taxable income at $55,952 per annum for the period of 2 November 2015 to 31 December 2016 and the Respondent’s adjusted taxable income at $110,000 per annum for the period 2 November 2015 to 31 December 2016.
On 20 December 2017, the Applicant applied to the Tribunal for review of the COA December objection decision.
Background to proceeding 2018/HC013266
On 9 May 2017, the Applicant applied to the Second Respondent for a COA under reason 8A (the parents’ income, property and financial resources make the child support assessment unfair).
On 27 October 2017, a delegate (case officer) of the Second Respondent found that reason 8A was made out and set the Respondent’s adjusted taxable income at $101,378 from 1 July 2017 to 31 December 2018. On 8 November 2017, the Applicant objected to the 27 October 2017 COA decision.
On 5 January 2018, a delegate (objections officer) of the Second Respondent allowed the objection (‘the COA January objection decision’). The delegate found that although the Applicant sought a COA going back to 30 April 2014, the Assessment Act prevented the delegate from changing the assessment any earlier than November 2015, and that a recent COA objection decision made in 2017 had changed the Respondent’s adjusted taxable income until the end of 2016. The delegate consequently found that it was only open to consider the period from 1 January 2017 onwards. The delegate found that reason 8A was established, and found it just and equitable and otherwise proper to set the Respondent’s adjusted taxable income at $104,237 from 1 January 2017 until 31 December 2018.
On 8 January 2018, the Applicant applied to the Tribunal for review of the COA January objection decision.
All of the evidence as to the background matters as referred to above is contained in the affidavit of Ms Danielle Nicholson sworn on 29 October 2018 and is accepted by the Court.
Tribunal proceedings 2018/HC013266 and 2017/MC013167
On 10 April 2018, the Tribunal invited the Applicant and Respondent to attend a telephone directions hearing before it in relation to proceedings 2018/HC013266 and 2017/MC013167, on 19 April 2018 at 9.00am.
On 19 April 2018, the Tribunal issued directions in both matters pursuant to s.33 of the AAT Act (‘the directions’), which required, amongst other things, that the Applicant provide specified evidence to the Tribunal by 10 May 2018, including:-
a)financial statements for any company or trust in which the Applicant has or has had an interest for the financial years ending 30 June 2015, 30 June 2016 and 30 June 2017;
b)taxation returns and notices of assessment for any company or trust in which the Applicant has or has had an interest for the financial years ending 30 June 2015, 30 June 2016 and 30 June 2017;
c)personal taxation returns and notices of assessment for the financial years ending 30 June 2015, 30 June 2016 and 30 June 2017;
d)complete statements for all bank accounts in which the Applicant has or has had an interest since 1 May 2014;
e)complete statements for all loans, including credit cards, in the Applicant’s name since 1 May 2014;
f)complete statements for all bank, credit or loan accounts from which the Applicant has derived any benefit since 1 May 2014; and
g)invoices and receipts for any out-of-the-ordinary costs incurred for the children since 1 May 2014.
On 20 April 2018, the Tribunal invited the Applicant and Respondent to attend a joint hearing of the proceedings scheduled to commence at 10.00am on 14 June 2018, which the parties attended.
In a decision dated 14 June 2018, the Tribunal dismissed the applications for review by reason of the Applicant’s failure, within a reasonable time, to comply with the directions made on 19 April 2018 pursuant to s.42A(5) of the AAT Act.
Decision Record
It is useful to set out the Decision and Reasons for Decision of 14 June 2018 in full in these reasons. The Decision and Reasons for decision, being the dismissal of the applications for review, were as follows:-
“1. The Tribunal is satisfied that [the Applicant] failed within a reasonable time to comply with the direction of a Tribunal.
2. Pursuant to subsection 42A(5) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the applications for review.
3. The reasons for this decision are set out in the following paragraphs.
4. These applications for review relate to decisions made by objections officers at the Department of Human Services - Child Support to depart from the administrative assessment of child support from 2 November 2015 until 31 December 2018. The principal issue arising for determination is whether the administrative assessment results in an unjust and inequitable determination of the level of financial support to be provided by [the Respondent] because of the income, property and financial resources of the parents. During that period, the administrative assessment had been based on adjusted taxable incomes for [the Applicant] of no more than $30,000 per annum.
5. On 19 April 2018, the Tribunal issued directions for [the Applicant] to produce specified documents by 10 May 2018. Both the Tribunal’s covering letter to [the Applicant] enclosing those directions and a note to the directions advised her of the possibility of her application being dismissed if she failed to comply with the directions.
6. On 17 May 2018, [the Applicant] produced a number of documents to the Tribunal. However, she did not wholly comply with the Tribunal’s directions. In particular, she did not produce the following documents:
· Personal taxation returns and Notices of Assessment for the financial year ending 30 June 2015 and 30 June 2016;
· Any statements for her ING bank account numbers … , from which substantial funds had been transferred into her everyday account;
· Statements for any AMP accounts after 1 July 2014;
· Statements for her credit card after 10 July 2014;
· Statements for her NAB credit card after 3 July 2014;
· Statements for her NAB home loan after 30 June 2014.
7. The result of [the Applicant’s] non-compliance is that the Tribunal is unable to ascertain the income, property and financial resources available to her. From July 2014 to April 2017, she has produced no bank statements relating to her personal expenditure. During that period, she swore in documents filed in the Federal Circuit Court of Australia that her weekly personal expenditure was $3,208 in April 2015 and $3,418 in May 2016, or approximately $170,000 per annum.
8. Her failure to produce statements for all of her ING bank accounts leaves the Tribunal unable to ascertain the source of all funds deposited into her everyday account which averaged approximately $11,000 per month between May 2017 and March 2018.
9. At the hearing, [the Applicant] gave evidence that she considered that she had complied with directions, aside from the direction to provide receipts for out of the ordinary living costs incurred for the children. When asked about specific documents that she had not produced, she explained on several occasions that she had ‘done the best she could’. She did not seek an adjournment of the hearing to enable her to comply with the directions.
10. [the Applicant’s] lack of compliance with the Tribunal’s directions leaves it unable to assess her income, property and financial resources; central issues arising for determination in her application.”
The Court notes that the Tribunal did, in fact, have before it the notices of assessment for the financial years ending 30 June 2015 and 30 June 2016, but is of the view that error of fact was not a material error when considering the extent of the Applicant’s non-production and the totality of the Tribunal’s reasons, read as a whole.
Consideration
The notice of appeal does not identify any questions of law going to this judicial review application. It contains 12 grounds of appeal in the nature of submissions. Additional grounds were raised in the Applicant’s submissions filed on 19 October 2018.
In response to these alleged grounds of appeal, the Court finds that none of these grounds can be made out. The Tribunal did all that it was required to do. It invited the Applicant and the Respondent to attend a directions hearing and provide specified documents as listed in the Tribunal direction; invited the Applicant and the Respondent to attend and give evidence at the final hearing; and provided the Applicant with a short adjournment during the final hearing to allow her to cross-check the documents she had provided to the Tribunal with those on the Tribunal file.
The transcript of the Tribunal hearing on 14 June 2018 is before the Court in evidence and annexed to the affidavit of the Applicant sworn 3 October 2018 marked annexure “#P-1 to #P-23”. It is clear from that transcript that the Applicant was asked in respect of one application before the Tribunal whether there were any other documents that she relied upon, to which she responded “No, not for this application.” [1] That answer was given in respect of review number 2018/HC013241.
[1] Transcript, page 6 line 5.
In respect of the remaining two applications, which the Tribunal dealt with together, the Tribunal raised a preliminary issue with the Applicant, whether it was:-
“…[her] position that [she’s] complied with the tribunal’s directions save for the direction to provide receipts for out of the ordinary costs; is that right?
The response was “As best as I can, yes.” [2]
[2] Transcript, pages 10 – 11.
Thereafter, the Tribunal asked of the Applicant, in respect of the documents that she had been ordered to produce, where such documents appeared before the Tribunal. The apparent lack of disclosure lead the Tribunal to say to the Applicant:-
“…This is why I asked you at the start, are you satisfied with what’s in that bundle? Is everything that you’ve sent in?”[3]
The Applicant responded:-
“I said I haven’t had time to read through the bundle. I’m satisfied with my financial that you asked me to read.”[4]
Thereafter, the following exchanges occurred:-
[3] Transcript, page 14 line 44.
[4] Transcript, page 14 line 45.
“[Tribunal member]: … The obligation is on you, in accordance with my directions.
[The Applicant]: And I do believe that I have done that so – would you like me to pull up an email to what I sent to the AAT?
[Tribunal member]: Yes.
…
[Tribunal member]: …You haven’t complied with the tribunal’s directions. I’m not satisfied I can properly assess your financial circumstances, a matter that I’m required to take into account in both of these applications. You were given a warning at the directions hearing and indeed in writing with the directions, that it’s open to me to dismiss your applications if you don’t comply with my directions. Why shouldn’t I dismiss your applications?
[The Applicant]: I have complied as best as I can, sir, for that. And I provided – I do believe that I provided all the materials that has been asked.”[5]
[5] Transcript, pages 14-16.
Following from these exchanges the Tribunal member gave the Applicant an adjournment of a short period of time in order for her to cross-check her emails. What followed were the following exchanges:-
“[Tribunal member]: I take it you’ve had enough time to look through those documents?” [6]
[The Applicant]: I had as much time as I needed today. I guess it was all very confusing but apparently it didn’t get attached to the emails from what I can see. But I can show you the account on my phone if necessary.” [7]
[6] Transcript, page 17, line 45.
[7] Transcript, page 18, line 1.
The Tribunal proceeded to again stress to the Applicant that various of the documents required to be produced by her had not been so produced. The Tribunal asked of the Applicant:-
“…is there anything else you wanted to say about whether I should dismiss your application because of your non-compliance?”
The response was “I assert that I have compliance as best I can.” [8]
[8] Transcript page 19, lines 10, 15.
The Tribunal proceeded to request of the Respondent as to anything he wished to say, to which he indicated that as the Applicant’s financial position could not be accurately assessed, he “…would ask that the applications in whole be dismissed.” [9]
[9] Transcript, page 19, line 45.
Thereafter, the Tribunal asked of the Applicant in respect of the issue before the Tribunal, being her non-compliance with the Tribunal’s directions “Is there anything further you wish to say about that topic?”[10] To which the Applicant responded:-
“Again, I just re-assert that I have provided as best as I can with regards to documents that are in my possession.”
[10] Transcript, page 21, line 10.
The Applicant did not request an extension of time of the Tribunal to comply with the Tribunal’s directions and nor did she request any further adjournment of the final hearing.
As submitted by the Second Respondent, to the extent that the Applicant alleges that the Tribunal attempted to “coerce” a false admission from her that she had failed to comply with the Tribunal’s directions, that allegation has no basis in fact by reference to the transcript evidence. The Tribunal asked the Applicant on five separate occasions whether she had complied with the directions and/or why the Tribunal should not dismiss the applications for non-compliance with the directions. The Applicant was afforded an opportunity to respond on each occasion.
No denial of procedural fairness or failure to accord natural justice to the Applicant occurred and nor was there any failure to allow the Applicant to comment, as claimed by the Applicant. These grounds have no basis on which to succeed.
An allegation of bias is a serious allegation which must be firmly and distinctly made and clearly proven. [11] This ground also cannot succeed. There is no evidence before the Court to indicate that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on the decision,[12] nor is there any evidence to suggest, let alone establish, that the Tribunal had a pre-existing state of mind which disabled it from undertaking or rendered it unwilling to undertake a proper evaluation of the matter. [13]
[11] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 69.
[12] Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425, 27-32
[13] Above n 8, 35, 72.
The Tribunal’s dismissal decision was clearly based and stated to be based on the Applicant’s failure to comply with the Tribunal’s directions and produce all relevant financial information such that the Tribunal could assess the Applicant’s income, property and financial resources. These were critical issues in the consideration and determination required to be undertaken by the Tribunal.
The Tribunal has a discretionary power to adjourn a review under s.40(1)(c) of the Assessment Act and/or to dismiss an application where an applicant fails to comply with a direction of the Tribunal within a reasonable time under s.42A(5) of the Assessment Act. Such power must be exercised reasonably. In the circumstances of this proceeding, the Tribunal did exercise its powers reasonably, as is evident in the transcript evidence. Further, I agree with the submission of the Second Respondent that there was nothing unreasonable in the Tribunal’s decision to dismiss the applications without proceeding to review the underlying decisions in circumstances where the Applicant had reasonable time to comply with the directions; the documents subject to the directions were all relevant to the Tribunal’s review; the Applicant was not bankrupted until 11 August 2016 and there was no reason provided as to why she was unable to provide copies of financial documents pertaining to the period 1 July 2014 to the date of bankruptcy; and the Applicant was on notice that the applications may be dismissed without further review if she failed to comply with the directions. The Applicant’s submission that there was no evidence upon which the Tribunal’s finding could have been based is not supported by the evidence. That ground cannot be made out.
The Applicant alleges the Tribunal failed to follow correct procedure and improperly used its power in dismissing the applications in review proceedings 2018/HC013266 and 2017/MC013167.
Section 42A(5) of the AAT Act is, relevantly, as follows:-
“…Dismissal if applicant fails to proceed or fails to comply with Tribunal's direction
(5) If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.”
The Tribunal had regard to the evidence before it and found that the Applicant had not wholly complied with the Tribunal directions and had failed to produce a range of critical material and documents. The Tribunal was under no obligation to uncritically accept the Applicant’s explanations. [14] On the evidence before it, the findings made by the Tribunal were clearly open to it, and the Tribunal was entitled to proceed as it did.
[14] Randhawa, H.S. v the Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 535.
I agree with the Second Respondent that the Applicant’s allegation that the Tribunal should have made further inquiries as set out by the Applicant is misconceived. It is well-established that the Tribunal is not under a general duty or obligation to inquire.[15] Pursuant to s.33(1)(c) of the AAT Act, the Tribunal had a discretion to “…inform itself of any matter in such manner as it considers appropriate.” The exercise of this discretion does not create an obligation or duty upon the Tribunal. The Tribunal correctly identified and considered the decisions which the Applicant sought review of before it.
[15] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
I agree with the Second Respondent that the Tribunal correctly identified and applied the applicable law in considering and affirming the income declaration December objection decision. No error of a jurisdictional kind is disclosed in this regard.
None of the identified grounds of appeal can succeed. Accordingly, the application shall be dismissed, with the Applicant to pay the Second Respondent’s costs, fixed in a sum of $7,200.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 6 March 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Civil Procedure
Legal Concepts
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Appeal
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Jurisdiction
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Judicial Review
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Costs
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Procedural Fairness
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