Fahy v Administrative Appeals Tribunal

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FEDERAL COURT OF AUSTRALIA

Fahy v Administrative Appeals Tribunal [2024] FCA 170

Appeal from: Fahy and Secretary, Department of Social Services (Social services second review) [2021] AATA 3258
File number: VID 577 of 2021
Judgment of: SNADEN J
Date of judgment: 4 March 2024
Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal (AAT) – where AAT affirmed decision of an authorised review officer not to grant Parenting Payment from date sought – where appellant alleged unreceived claim had been posted – whether AAT decision was affected by any error of law – appeal dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Social Security (Administration) Act1999 (Cth) ss 11, 12, 13, 15, 16, 34, 41, 42, sch 2

Social Security Act1991 (Cth) ss 18, 23, 500

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Equal Opportunity Act 2010 (Vic)
Cases cited:

EBZ20 v ECA20 [2022] FCA 1098

Isbester v Knox City Council (2015) 255 CLR 135

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Onassys v Comcare [2022] FCA 90

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 62
Date of last submissions: 5 June 2023 – second respondent
6 June 2023 – appellant
Date of hearing: 5 June 2023

ORDERS

VID 577 of 2021
BETWEEN:

LAREE FAHY

Appellant
AND:

ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

SECRETARY, DEPARTMENT OF SOCIAL SERVICES

Second Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

4 MARCH 2024

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the second respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN‑COSTS).

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

SNADEN J:

  1. On 20 September 2017, the appellant, Ms Fahy, commenced (but did not complete) an online claim form for a type of social security benefit known as a “parenting payment” (hereafter, the “Parenting Payment”), which provides income support payment for a young child’s main carer.  Ms Fahy alleges that, on that same date, she printed out, hand‑completed and posted to Centrelink (the Commonwealth agency responsible for administering the Parenting Payment scheme) a completed Parenting Payment claim form.

  2. More than two‑and‑a‑half years later, Ms Fahy cancelled the online Parenting Payment claim that she had previously commenced, then completed and submitted a new one.  A month later (on 5 May 2020), her claim was accepted with effect from 23 March 2020 (I shall refer to that acceptance hereafter as, the “Decision”).

  3. The following events transpired after the Decision, namely:

    (1)on 26 May 2020, Ms Fahy requested an internal review of the Decision, contending that she should have been granted the Parenting Payment from 20 September 2017 onwards;

    (2)on 4 November 2020, an officer authorised by the second respondent (the “Secretary”) to review…

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Details
Case
[2024] FCA 170
Decision Date

CaseChat Overview and Summary

In the Federal Court, Ms. Fahy appealed the decision of the Administrative Appeals Tribunal (AAT) affirming the Secretary's decision not to grant her Parenting Payment from the date she sought. Ms. Fahy claimed that her application for the payment had been posted on 20 September 2017, but was allegedly not received. The legal issues in the case were whether the AAT's decision was affected by any error of law and if Ms. Fahy was denied natural justice or procedural fairness.

The court found that the AAT did not take into account irrelevant considerations in making its decision. Ms. Fahy argued that the AAT should have considered her alleged unreceived claim that was supposedly posted, but the court held that the AAT was entitled not to accept this narrative based on the material before it. The court also found that the AAT did consider the communications Ms. Fahy had with Centrelink and that it was not necessary for the AAT to consider the telephone record and generic correspondence from Centrelink on 20 September 2017, as they did not bear upon whether or not the claim form was posted.

The court dismissed Ms. Fahy's appeal and held that there was no error of law in the AAT's decision. As a result, the usual order for costs will be made, and Ms. Fahy must pay the second respondent's costs of the appeal.

ORDERS:

1. The appeal be dismissed.
2. The appellant pay the second respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN‑COSTS).

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the second respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN‑COSTS).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

More than two‑and‑a‑half years later, Ms Fahy cancelled the online Parenting Payment claim that she had previously commenced, then completed and submitted a new one. A month later (on 5 May 2020), her claim was accepted with effect from 23 March 2020 (I shall refer to that acceptance hereafter as, the “Decision”). The following events transpired after the Decision, namely:(1)on 26 May 2020, Ms Fahy requested an internal review of the Decision, contending that she should have been granted the Parenting Payment from 20 September 2017 onwards;(2)on 4 November 2020, an officer authorised by the second respondent (the “Secretary”) to review the Decision decided, on review, to affirm it (I shall refer to that affirmation hereafter as, the “ARO’s Decision”);(3)On 9 December 2020, Ms Fahy filed an application for review of the ARO’s Decision with the Administrative Appeals Tribunal (the “AAT”)—specifically, in its Social Services and Child Support Division;(4)on 5 March 2021, the AAT affirmed the ARO’s Decision (hereafter, the “First AAT Decision”);(5)on 11 March 2021, Ms Fahy lodged an application for review of the First AAT Decision with the General Division of the AAT; and(6)on 9 September 2021, the General Division of the AAT:(a)determined that Ms Fahy should be granted the Parenting Payment with effect from 4 February 2020; and, thus,(b)set aside the First AAT Decision and remitted the matter to the Secretary for reconsideration,(I shall refer to that decision, hereafter, as the “Second AAT Decision”). By a further amended notice of appeal from a tribunal dated 15 March 2022 (hereafter, “the Application”), Ms Fahy moves the court for relief in the form (amongst others) of a finding that her Parenting Payment claim was made under Schedule 2 and s 16 of the Social Security (Administration) Act1999 (Cth) (hereafter, the “Administration Act”) on 20 September 2017, and that she should receive additional payments by reason of that. For the reasons that follow, the Application will be dismissed, with costs.THE STATUTORY FRAMEWORK Section 18 of the Social Security Act1991 (Cth) (hereafter, the “SS Act”) defines (and defined) “parenting payment”:18 Parenting payment definitions In this Act, unless the contrary intention appears:…parenting payment means:(a) pension PP (single); or …pension PP (single) means parenting payment whose rate is worked out under the Pension PP (Single) Rate Calculator in section 1068A. … Section 23(1) of the SS Act defines “social security pension” to include parenting payments, “social security payment” to include social security pensions, and “income support payment” to also include social security pensions:23 Dictionary (1) In this Act, unless the contrary intention appears: …social security payment means:(a) a social security pension; or… social security pension means:…(e) a pension PP (single); or …income support payment means a payment of:…(b) a social security pension; or ….

Ratio Decidendi

Legal Principle Established

It follows that I do not accept that the AAT, in making the Second AAT Decision, took account of irrelevant considerations.RELEVANT CONSIDERATIONS Ms Fahy contends that the AAT ought to have considered “the fact that I would have come across the un‑posted claim addressed to Centrelink at a later date and then proceeded to post it”. It’s failure to do so, she says, amounts to an error of law, which this court should correct on appeal. Plainly, there is no reason to doubt that Ms Fahy believes—fervently so—that, had she not posted her claim as she alleges, she would later have come to be aware of that. That, though, is an invitation to indulge a hypothetical. As has already been addressed (in the context of legal unreasonableness), the AAT was entitled on the material before it not to accept that narrative. There is no relevant want of consideration. Ms Fahy then submits that the AAT ignored the communications that she had with Centrelink on 28 June 2018 and 31 August 2018. As has been observed, the AAT did consider those communications. That it did not make of them what Ms Fahy wanted it to make of them is, respectfully, neither here nor there. Its consideration of what was advanced cannot be doubted. No error of law is exposed. Ms Fahy next submits that the AAT:…[chose] to ignore certain corroborating evidence yet again. Namely, the telephone record of 20 September 2017 and the generic correspondence from Centrelink of that same day regarding my eligibility for payment and concession card. I cannot see how that could be described as relevantly “corroborating”. The AAT found that Ms Fahy had downloaded, printed, and completed a hard copy claim form; but that it had not been posted. That Ms Fahy had a telephone call with somebody from Centrelink, or received generic correspondence from Centrelink on 20 September 2017, could not permissibly bear upon whether or not the claim form was posted. The AAT did not, and did not need to, consider what Ms Fahy complains went unconsidered. The Second AAT Decision did not fail to take into account relevant considerations as alleged.DISPOSITION Ms Fahy has not established that the Second AAT Decision was affected by any error of law, or that she was denied natural justice or procedural fairness. The appeal must be dismissed. There is no reason why the usual order for costs ought not be made and it will be.