Edwards and Department of Health and Ageing

[2008] AATA 874

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 874

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1902

GENERAL ADMINISTRATIVE DIVISION		)
Re		THOMAS EDWARDS

Applicant

And DEPARTMENT OF HEALTH AND AGEING

Respondent

DECISION

Tribunal MS N BELL, Senior Member

Date 2 October 2008

PlaceSydney

Decision The application under section 41 of the Administrative Appeals Tribunal Act 1975 to stay a decision of the Department of Health and Ageing dated 3 March 2004 is refused.

........................SGD......................

MS N BELL, Senior Member  

CATCHWORDS

PRACTICE AND PROCEDURE – stay order – financial hardship – likelihood of recovery of overpaid sums – prospect of success of application – stay order refused.

Administrative Appeals Tribunal Act 1975 ss 41(1), 41(2)

Freedom of Information Act 1982; section 48, 58 and 61

Re Alexander and Migration Agents Registration Board [1995] AATA 261 ;( 1995) 40 ALD 99

Shi v Migration Institute of Australia Ltd and Another [2003] FCA 1304; (2003) 134 FCR 326

Civil Aviation Safety Authority v Hotop [2005] FCA 1023

Bashari and Ors and Minister for Immigration and Multicultural Affairs [2006] AATA 839       

Kurukkal v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146

REASONS FOR DECISION

2 October 2007 MS N BELL, Senior Member        

1.In March 2001 Thomas Edwards entered into a contract with the Commonwealth of Australia for a Medical Rural Bonded Scholarship Scheme (the Scholarship).  After studying for two years at the University of Sydney, Mr Edwards withdrew from the Scholarship and was released from the contract, without any requirement to repay funds.  However, on 3 March 2004, a First Assistant Secretary of the Department of Health and Ageing wrote to the Dean of Medicine at the University of Sydney advising of Mr Edwards’ withdrawal from the Scholarship and asking that Mr Edwards not be provided with a standard entry place should he seek to continue to study medicine at the University of Sydney.  The letter also stated that if the request was not acceded to then a Scholarship place would be permanently removed from the University of Sydney.

2.Mr Edwards applied to the Department, under the Freedom of Information Act 1982 (FOI Act), to have the 3 March 2004 letter amended under section 48 of the FOI Act which allows for a person to apply to have a document amended where the document contains personal information about the person which is, among other things, “incomplete, incorrect, out of date or misleading.”  The Department decided to refuse to amend the letter, and affirmed that decision on 5 June 2008.  Mr Edwards applied to this Tribunal for review of that decision.  That application is yet to be heard.

3.In the meantime, Mr Edwards applied to the Tribunal for a stay on the decision under review (the decision to not amend the 3 March 2004 letter).  The Department opposed the stay application.

4.Section 41(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides:

41 (2)   The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

5.Mr Edwards argued for a stay order on a number of grounds:

(i)The letter makes a number of assertions that are not supported by reference to legislation.  It is therefore open to question;

(ii)Section 58 of the FOI Act augments the power of the Tribunal (including the power conferred on it by section 41(2) of the AAT Act) to deal with all aspects of an application for review of a decision under that Act;

(iii)Under section 61 of the FOI Act there is an onus on the Respondent to establish that a decision on a request under that Act was justified;

(iv)The letter will be relied on by the University of Sydney in similar freedom of information amendment proceedings before the New South Wales Administrative Decisions Tribunal (ADT) and the Administrative Appeals Tribunal (the AAT) will have no power to affect the outcome in the ADT should the AAT reach a conclusion favourable to Mr Edwards in these proceedings;

(v)The letter has been used by the University of Sydney to keep Mr Edwards from continuing his studies there.

6.The nature of the decision under review, that is, a decision to in effect to do nothing, gave rise to submissions and references to cases on the question of whether the Tribunal may, under section 41(2) of the AAT Act, make an order that is positive in nature or whether it is restricted to making an order that simply maintains the position as it was before the decision under review was made.

7.The Department relied on the decision of Deputy President McMahon in Re Alexander and Migration Agents Registration Board[1] to the effect that the power under section 41(2) of the AAT Act is not intended to place an applicant in a different position to the one he was in prior to the reviewable decision, but rather “to enable the Tribunal to preserve the status quo, so as to ensure that a continuum which is broken by a reviewable decision may be reinstated in order to secure the ultimate effectiveness of the hearing”. Deputy President McMahon characterised the power as negative in its effect and not positive. I was also referred to the judgment of Tamberlin J in Shi v Migration Institute of Australia Ltd and Another[2] in which his Honour found, in a case where a decision not to renew a registration would result in the cessation of a deemed right, that the effect of the decision under review was to break the “continuum” and failure to grant a stay would diminish the effectiveness of the hearing and determination of the application for review.

[1][1995] AATA 261, (1995) 40 ALD 99

[2] [2003] FCA 1304;(2003) 134 FCR 326

8.Mr Edwards referred me to the decision of Deputy President Forgie in Kurukkal v Minister for Immigration and Multicultural and Indigenous Affairs[3] as authority for the proposition that an applicant’s rights should not be rendered nugatory by a decision under review.  The decision is not inconsistent with that proposition, but I note that Deputy President Forgie declined to grant the stay sought.  Mr Edwards also referred me to the judgment of Siopis J in Civil Aviation Safety Authority v Hotop[4] in which his Honour held that Alexander is not authority for the proposition that “as a matter of construction section 41(2) of the AAT Act precludes the Tribunal from making orders that would have a positive effect”. His Honour further noted that, in the circumstances of Alexander, the making of a positive order “was not necessary to secure the effective hearing and determination of the application for review.”

[3] [2004] AATA 146

[4] [2005] FCA 1023

9.I note that in all of the decisions and judgments referred to above, the question of the effectiveness of the hearing and the determination of the application for review was a primary consideration.  And so it is in this application for a stay order.

10.The decision under review was a decision not to amend a letter written in 2004.  The letter in its current form has been in existence for four years.  The decision is not one which requires any form of implementation.  It produces no change to the status quo prior to the decision, either directly or indirectly.  If a stay on the decision were to be granted, some form of orders as to amendments to be made would have to be formulated.  The orders sought by Mr Edwards include the redaction of parts of the letter.

11.The irremediable prejudice that Mr Edwards says would flow from the letter remaining in its current form until the determination of the substantive application is that it could be relied on by the University of Sydney in similar freedom of information amendment proceedings in another forum.   The mere reliance on the letter by a party to proceedings does not establish that Mr Edwards’ rights will be adversely and irrevocably affected by it.  It will be open to Mr Edwards to make submissions about the correctness of the letter and to adduce evidence to contradict it in the ADT proceedings.  The continued existence of the letter in its current form will not render the proceedings before the AAT ineffective. 

12.The other prejudice that Mr Edwards said was caused to him by the letter is that it has been used by the University of Sydney to keep him from continuing his studies.  If so, this has been the case since the letter was first written in 2004.  It is not a situation brought about by the Department’s decision not to amend the letter.  Rather, it is the status quo existing before the reviewable decision was made.

13.As to Mr Edwards’ submissions with respect to section 58 of the FOI Act, I agree with the submission made on behalf of the Department that section 58 of the FOI Act gives the Tribunal power to review any decision that has been made by an agency or Minister in relation to a request and to decide any matter that, under that Act, could have been decided by an agency or Minister. It does not give the AAT power beyond that. The power to stay the operation or implementation of a decision is conferred by section 41(2) of the AAT Act. It is not affected or augmented by section 58 of the FOI Act.

14.I also note, in relation to Mr Edwards’ submission as to an onus of proof, that in Bashari and Ors and Minister for Immigration and Multicultural Affairs,[5] Deputy President Forgie concluded that section 61 of the FOI Act does not impose a burden of proof on the Minister or on an applicant when a decision under section 48 of the FOI Act refusing to amend a record of personal information is being reviewed.  In any event, I do not consider that the existence or otherwise of a burden of proof has any impact on whether an order staying the operation or implementation of such a decision should be made.  I note that, in further, unrequested, written submissions filed by Mr Edwards on 11 and 26 September, after the hearing of the stay application had concluded, he sought to expand on this argument.  I remain of the view that the issue of an onus has no bearing on the question of whether a stay should be granted.

[5] [2006] AATA 839 ( 2 October 2006)

15.I note that Mr Edwards also sought to expand on others of his arguments in these additional written submissions.  In particular, he sought to raise an argument as to the unconstitutionality of the letter of 3 March 2004 and of some aspects of the Scholarship generally.  These are matters that he may raise in the context of his substantive application.  It remains the case that the decision under review has made no change to Mr Edwards’ position or rights as they were prior to the decision being made.  The continued existence of the letter in its current form will not render the proceedings before the AAT ineffective. 

16.For these reasons, I do not consider it desirable to stay the operation or implementation of the decision under review and I refuse Mr Edwards’ application for a stay order.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Senior Member

Signed:         .................................sgd....................................................
  Associate: Felicia Daniele

Date/s of Hearing  9 September 2008
Date of Decision  2 October 2008
Solicitor for the Applicant          Self-Represented
Solicitor for the Respondent     Mr J Davidson, Australian Government Solicitor