EDF v Commissioner of Victims Rights

[2020] NSWCATAD 80

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	EDF v Commissioner of Victims Rights [2020] NSWCATAD 80
Hearing dates:	17 January 2020
Date of orders:	12 March 2020
Decision date:	12 March 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	(1)   The decision of the Senior Assessor dated 1 October 2019 is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the following directions: (a) On 18 December 2018, the Application for Victims Support was lodged on behalf of EDF and it was therefore lodged within the time permitted by s 40 of the Act; and (b)   On the balance of probabilities, an act of violence was perpetrated against EDF on 10 March 2017. (2)   The Application for Administrative Review is dismissed.
Catchwords:	VICTIMS RIGHTS AND SUPPORT – administrative review – Time for lodgement of Application – Matter remitted to Respondent for reconsideration
Legislation Cited:	Victims Rights and Support Act 2013 Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013
Cases Cited:	Hong Ye v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 468, at 471 Abidin v Minister for Immigration & Multicultural Affairs [2002] FCA 236 Francis v City of Ringwood (1978) 54 LGRA 323
Texts Cited:	Oxford English Dictionary
Category:	Principal judgment
Parties:	EDF (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: EDF’s Mother (Applicant) Victims Services (Respondent)
File Number(s):	2019/00350219
Publication restriction:	A non-publication Order is made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) (NSW) in respect of the names of private individuals, and other information which might identify them.

REASONS FOR DECISION

1. These proceedings were commenced by an Application for Administrative Review (‘the Application”) filed on 5 November 2019, in which the Applicant sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Victims Support. The Applicant is known by the pseudonym ‘EDF’.

Background

Application for Victims Support

2. The parties now agree that on 18 December 2018, EDF’s Mother lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 (“the Act”) on behalf of EDF, which alleged that he was the primary victim of an act of violence in the nature of an assault that was perpetrated on 11 March 2017, at a McDonalds Restaurant in Liverpool NSW, as follows:

I was standing at McDonalds when a group of middle eastern boys started being aggressive started pushing, punching and kicking me. I fell back hit my head on a McDonalds bollard. I had cuts to my eye, a head injury. I was on the floor and they kicked me.

3. The Application alleged that EDF suffered both physical and psychological injuries as a result of the act of violence and that he sought financial assistance for immediate needs and a recognition payment.

4. The act of violence was reported to NSW Police at Liverpool on 10 March 2017. This indicates that on 10 March 2017, the Applicant attended the McDonalds Restaurant at Warwick Farm, New South Wales, with other witnesses. On arriving, they entered the restaurant and purchased their order and then seated themselves at a table near to the front windows. While eating, the Applicant noticed a group of males seated in the outside seated area and that they were looking at him through the window. He went outside to speak with them and to ask why they were looking at him.. After a brief conversation with them, he re-entered the restaurant and resumed his seat. However, the group of males began to bang on the window, which drew his attention and he again went outside to speak with them. At the conclusion of that conversation, he told the group of males to “fuck off”. The group of males then began to attack him, punching and kicking him to the head and body. He fell to the ground. His witnesses then attempted to help him. Patrons of the restaurant then called Police, who attended the scene. However, by the time Police arrived, the group of males had left and they could not be located. Police spoke to the victim, witnesses and staff and arranged for the CCTV footage to be copied. The Applicant told Police that he did not want to make a statement or go to court, as he did not know who the group of males were and he did not want them to know about him or where he lived. He said that he had no time to go to Court. After interviewing witnesses, Police ascertained that one of the group of males was known to a witness. Police observed that the Applicant had a small cut to his left eye and swelling. Redness to his face and head and bruising. They obtained photographs of the injuries. The witnesses also refused to provide statements to Police.

Decision at First Instance

5. On 21 June 2019, an Assessor (Client Claims) issued a Notice of decision, which dismissed the Application on the basis that it was lodged out of time.

6. I note that a copy of this decision was sent to EDF’s Mother by way of email on 2 July 2019.

Internal review

7. On 19 September 2019, EDF’s Mother applied for an internal review of the Assessor’s decision on the basis that the Application was not lodged out of time. She stated, relevantly:

In November 2018 I telephoned Victims Services and asked how we go about lodging a form. The service advisor sent through a form via email and advised that I complete it and post it through and I will get an email in around 3 months.

The form was posted on the 18th of December 2018 via Australia Post.

In March I followed up on the form via telephone only to be told that it was not received and they have nothing on the system regarding this and it is more than likely it got lost in the mail. The advisor only then suggested it may be safer to email it and I sent through a copy in the mail again.

I then received a telephone call soon after to say that my lodgement is 1 week out of time and that the advisor will get someone to relook into the matter.

On the 21st of June I then received a Notice of Decision to say again that it is 1 week out of time.

My son was a victim of nasty attack/assault and he does comply for Victims Services and I knew nothing about until my neighbour who is a Community Service Officer told me about it in late 2018 and said to call Victims Services.

I have contemplated on writing to the Ombudsman, however at this point in time my plea for goodwill to overturn the decision is with you…

8. On 1 October 2019, a Senior Assessor issued a Notice of Review Decision, which determined that Application was lodged outside the time limits under s 40 of the Act and the Application was dismissed.

9. I note that a copy of the Senior Assessor’s decision was posted to EDF’s Mother under cover of a letter from the Respondent dated 2 October 2019 and a copy was also sent to her by way of email that day.

Application for administrative review

10. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

11. The current application for administrative review raised the following grounds:

Lodgement of original claim lodged in December 2018 according to Victims Services was not received. I relodged form in March. Victims Services is now saying I am 1 week late and not paying my claim. It is ludicrous. It seems to be their word against mine.

12. The matter came before Senior Member McAteer for Directions on 6 December 2019, when EDF’s Mother appeared in person and Mr Ting appeared for the Respondent.

13. The Respondent had filed documents provided under s 58 of the ADR Act. Senior Member McAteer ordered the applicant to file and serve all evidence relied upon in respect of the issue concerning when the application to Victims Services was received prior to 12 March 2019 (the threshold issue), on or before 3 January 2020. He ordered the Respondent to file and serve all evidence in reply and written submissions on or before 15 January 2020. He also extended the time for the Respondent to lodge the Application for Administrative Review to 7 November 2019 and made a non-publication order under s 64 (1) (a) of the Civil and Administrative Decisions Tribunal Act 2013 (the CAT Act). Finally, he ordered that if the Tribunal decides that the Application for Victims Support was received before 12 March 2019, the matter will be remitted to Victims Services and the application for administrative review will be dismissed. He listed the matter for hearing on 17 January 2020.

14. On 17 January 2020, EDF’s Mother appeared on behalf of the Applicant and Ms Sabesan appeared for Victims Services. I ordered the Respondent to file and serve a summary of its legal arguments on or before 31 January 2020 and I ordered the Applicant to file and serve a summary of his legal arguments on or before 14 February 2020.

15. On 14 January 2020, the Respondent lodged its summary of legal arguments dated 10 January 2020. The Respondent argued to the effect that:

• The Tribunal had power to administratively review the decision of the Senior Assessor dated 1 October 2019;

• There was no record that it received an Application for Victims Support by post before it was lodged on 18 March 2019;

• The Application was lodged outside the 2-year permitted timeframe from the date of the Act of violence;

• Section 40 of the Act does not provide it with a discretion to extend the time for lodgement of the Application; and

• The Application for Victims Support was not duly made.

16. The Respondent referred to the4 decision of the Full Federal Court of Australia in Hong Ye v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 468, at 471:

What will suffice to satisfy that requirement that a document be “lodged” with a registry? The word “lodge” appears to us to have no special or technical meaning. It is then to be given its ordinary meaning. A reference to the Oxford English Dictionary shows that the word has a number of meanings but two appear apposite. They are:

c Deposit in a specified place of custody or security

e Deposit in court or with an official a formal statement (a complaint, objection, etc); bring forward, allege, (an objection etc).

In accordance with these meanings an application to review will be “lodged” when it comes into the possession of the Registry or the staff of a Registry. The means by which possession is obtained does not matter. It could come about when an application is delivered into the hands of the Registry staff or, if the application is posted, when it is received by the Registry.

17. The Respondent argued that this approach was confirmed by the Federal Court of Australia in Abidin v Minister for Immigration & Multicultural Affairs [2002] FCA 236 at [11]:

In our opinion, an application is not lodged until it comes into the possession of the Registry or the staff of the Registry. This is the inevitable result of the ordinary meaning of the words of the provision (Francis v City of Ringwood (1978) LGRA 323).

18. The Respondent argued that as the delegate had no option but to dismiss the Application for Victims Support, this was the “correct and preferable” decision.

19. On 17 January 2020, EDF’s Mother lodged a bundle of documents with the Tribunal. Further, on 31 January 2020, she sent an email to the Tribunal, which stated, relevantly:

I refer to the above mentioned matter and wish to advise after several telephone conversations and emails with Sijithra Sabesan Fund Solicitor for the Commissioner for Victims Services NSW to reach a settlement. A settlement could not be agreed.

1. The Commissioner for Victims Services agreed to accept the Application being 18th December 2018. I agreed.

2. That the Application be re-assessed “start from scratch” not agreed. The application was assessed on the 21st June 2019 by Assessor M Najjarine and her findings were “The application for financial support and a recognition payment be dismissed as lodged out of time.”

Further an Internal Review by Senior Assessor Baker on the 1st October 2019 consideration point 21. On the review “Considered on a balance of probabilities, I am satisfied that an act of violence was perpetrated against (EDF) on the 10th March 2017.”

Therefore I do not understand and am confused why it should be remitted to the Commissioner for consideration once again and my understanding is the application should be paid accordingly and it any further medical evidence is required.

3. The date of the assault being the 10th of March 2017 not 11th March 2017 a statutory declaration and police report will be attached with my submissions…

20. While I have considered all of the documents included in the bundle lodged by EDF’s Mother, I do not consider it necessary to refer to each and every one of those documents. This is particularly the case with respect to the statutory declaration as to the date of the act of violence, as I note that the Respondent has determined that an act of violence occurred on the date asserted in that declaration.

21. On 31 January 2020, the Respondent wrote to the Tribunal advising that it was lodging further submissions because settlement negotiations between the parties had failed. The Respondent stated, relevantly:

1. On 17 January 2020, the matter was part heard and the Tribunal made orders that the Commissioner file further submissions by 31 January 2020.

2. The parties to date have been engaged in settlement discussions. On 31 January 2020, the applicant informed the respondent via email that she no longer accepted the settlement.

Application accepted

3. As background, the application was dismissed by the Commissioner on the grounds it was not filed within time as per s 40 of the Victims Rights and Support Act 2013 (the Act).

4. The alleged act of violence occurred on 11 March 2017. The Commissioner accepts that the applicant submitted the application within time under s 40 of the Act, that is on 18 December 2018.

5. As the Commissioner has not had an opportunity to determine the application, the correct and preferable decision is to remit the matter to Victims Services to make a determination, as per s 65 of the Administrative Decisions Review Act 1997.

Consideration

Dispense with oral hearing

22. Pursuant to s 50 (2) of the CAT Act, the Tribunal determined that the threshold issue for determination, which was whether the Application for Victims Support as lodged within the time permitted by s 40 of the Act could be adequately determined in the absence of the parties by considering their written submissions and other evidence lodged with the Tribunal. I therefore dispensed with a formal hearing and reserved the matter for determination on the papers effective from 14 February 2020.

Section 40 of the Act

23. I note that the parties agree that the Application for Victims Support was lodged on 18 December 2018. As this was within the period of 2 years after 10 March 2017, I am satisfied that the Application was lodged within time and I find accordingly.

Act of Violence

24. Section 23 (1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.

25. “Act of violence” is defined in s 19 (1) of the Act as follows (relevantly):

(1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:

(a) that has apparently occurred in the course of the commission of an offence, and

(b) that has involved violent conduct against one or more persons, and

(c) that has resulted in injury or death to one or more of those persons.

(2) For the avoidance of doubt, the reference to an offence in subsection (1)(a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment…

26. The onus is on EDF to prove his allegations of assault on the balance of probabilities. I note that on 1 October 2019, the Senior Assessor determined, for the purposes of deciding whether the Application was lodged within time, that on the balance of probabilities, an act of violence was perpetrated against EDF on 10 March 2017.

27. The Tribunal therefore finds on the balance of probabilities that an act of violence was perpetrated against EDF on 10 March 2017.

28. However, the Senior Assessor found, and correctly in my view, that no medical supporting evidence had been lodged with Victims Services and she stated that if the Application for Victims Support was lodged within time, a medical, dental or counselling report would be required.

Injury

29. Section 20 of the Act defines “injury” as meaning “actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property.”

30. The Senior Assessor noted that the Police observed that EDF had a small cut to his left eye and swelling to that area as well as redness and swelling to his face and head. However, there is no medical evidence and/or photographic evidence of EDF’s injuries in the evidence before me and I am unable to determine what, if any, injuries resulted from the act of violence.

Correct and preferable decision

31. The Tribunal is required by s 63 (1) of the ADR Act to decide what is the correct and preferable decision having regard to the material before it.

32. In the current Application for Administrative Review, EDF has requested the Tribunal to determine his Application for Victims Support. While this Tribunal has power to administratively review a decision made by the Respondent with respect to the approval or non-approval of a recognition payment, I note that the Respondent has not made an administratively reviewable decision to approve or not approve victims support in the form of a recognition payment. Further, if the Respondent had made such a decision, there is no evidence before me that establishes, on the balance of probabilities, the injuries that resulted from the act of violence.

33. For these reasons, I am satisfied that the correct and preferable decision is that the decision of the Senior Assessor dated 1 October 2019 should be set aside and the matter should be remitted to the Respondent for reconsideration in accordance with the following directions:

1. On 18 December 2018, the Application for Victims Support was lodged on behalf of EDF and it was therefore lodged within the time permitted by s 40 of the Act; and

2. On the balance of probabilities, an act of violence was perpetrated against EDF on 10 March 2017.

Orders

34. I make the following orders:

1. The decision of the Senior Assessor dated 1 October 2019 is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the following directions:

1. On 18 December 2018, the Application for Victims Support was lodged on behalf of EDF and it was therefore lodged within the time permitted by s 40 of the Act; and

2. On the balance of probabilities, an act of violence was perpetrated against EDF on 10 March 2017.

2. The Application for Administrative Review is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 12 March 2020