FBA v Commissioner of Victims Rights
[2021] NSWCATAD 242
•16 August 2021
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: FBA v Commissioner of Victims Rights [2021] NSWCATAD 242 Hearing dates: 6 August 2021 Date of orders: 16 August 2021 Decision date: 16 August 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: (1) The name of the respondent is amended to “Commissioner of Victims Rights”.
(2) The application for administrative review of the Commissioner’s decisions dated 2 March 2021 and 27 April 2021, are dismissed for want of jurisdiction.
Catchwords: VICTIMS RIGHTS AND SUPPORT – administrative review – Financial Assistance - Jurisdiction of the Tribunal
Legislation Cited: Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013 (No. 2)
Cases Cited: BWL v Commissioner of Victims Rights [2016] NSWCATAD 242
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255
Texts Cited: Statutory Interpretation Australia (8th Edition Pearce and Geddes)
Category: Principal judgment Parties: FBA (Applicant)
Commissioner of Victims Rights (wrongly sued as NSW Victims Services) (Respondent)Representation: Solicitors:
Applicant (Self-Represented)
Victims Services (Respondent)
File Number(s): 2021/00186540 Publication restriction: A non-publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of private individuals, and other information which might identify them.
Judgment
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These proceedings relate to a claim for victims support by way of financial support lodged by the applicant known by the pseudonym FBA before the Commissioner of Victims Rights (“the Commissioner”).
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The application for victims support was lodged with the Commissioner on 21 March 2018 under the provisions of the Victims Rights and Support Act 2013 (“the Act”). In this application, FBA alleged that he was the primary victim of sexual assault that were perpetrated by an alleged offender, in Kensington, New South Wales, on 17 August 2016. He alleged that he suffered physical and psychological injuries as a result of the act of violence and claimed victims support comprising counselling, financial assistance and a recognition payment.
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On 16 July 2020, an Assessor - Client Claims determined that FBA had not satisfied the documentary evidence requirements under s 39 of the Act and dismissed the application for victims support.
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However, FBA sought an internal review of the Assessor’s decision and on 21/01/2021, a Senior Assessor determined that FBA was the primary victim of an act of violence and approved a Category B recognition payment in the sum of $10,000. However, the applications for financial assistance for immediate needs and economic loss were not approved.
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I note that FBA made a further claim for financial assistance, which was considered by an Assessor on 2 March 2021. The Assessor did not approve the claims and the reasons for decision state, relevantly:
Financial assistance for immediate needs
5. A primary victim can be approved financial assistance for immediate needs to cover the full or partial cost for basic and necessary items, services or treatment, that are required urgently, as a direct result of the act of violence, to secure their safety, health or wellbeing. A maximum amount of $5,000 can be approved.
…
7. (FBA) has requested reimbursement for a range of expenses which he indicates were incurred as a direct result of his experience of violence. I am unable to find a direct link and have declined payment of all of the above listed expenses. (FBA) has requested accommodation expenses both prior to and after the violence and those after the violence are some years after the violence occurred. I find that the expenses listed above have stemmed from the financial circumstances of (FBA) rather than the violence.
8. It is my understanding that the offender of the violence was expected to locate employment for (FBA) and when this did not occur after the violence was experienced, (FBA) chose to remain in Australia and request an amendment to his visa as a student. This choice removes the link to the violence.
9. Also, the expenses range from being incurred in Australia, New Zealand and the Philippines and given that many are related to (FBA’s) travel and immigration issues rather than directly stemming from the violence; I do not give approval.
Financial assistance for economic loss
10. A primary victim can be approved financial assistance for economic loss for treatment, loss of earnings and expenses incurred as a direct result of the act of violence.
Loss of actual earnings
11. The reference to ‘actual loss’ in clause 9 of the Regulation is not a reference to the actual difference in the amount of earnings received by an applicant before and after the act of violence. It is a requirement that an actual, rather than a potential or possible, source of income from employment was available to the applicant at the time that the act of violence occurred.
12. (FBA) has provided several documents in support of his request to be considered for payment of a loss of earnings. Regrettably, I find that his loss was potential rather than actual and the documents do not confirm that he was absent from a particular employer for a certain range of time that was not covered by leave entitlements and was supported by medical evidence which states that the absence was directly stemming from recovery time for the treatment of injuries caused by the act of violence.
13. Therefore, payment for a loss of earnings is not approved.
Out of pocket expenses
14. This category of support refers to the economic loss suffered by the applicant by paying for expenses. The requested expenses must be a direct result of the act of violence.
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16. For the same reasons as listed in paragraphs 7-9 above, I am unable to find direct links between these expenses and the violence and therefore do not give approval.
Medical and dental expenses
17. To claim for medical or dental expenses, the applicant must establish that the treatment is required as a direct result of the act of violence.
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19. Some of the above expenses were incurred by (FBA) as a result of his health insurance lapsing, again this removes the directness from the violence…
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FBA sought a review of that decision and on 27 April 2021, A/Senior Assessor Wilson issued a review decision, which did not approve financial assistance for immediate needs and economic loss. The review decision indicates that the A/Senior Assessor was not satisfied that the claimed expenses arose as a direct result of the act of violence. The A/Senior Assessor stated, relevantly:
22. (FBA) has claimed what appears to be every expense he has incurred since arriving in Australia. The reasoning behind this appears to be that, as the alleged offender and his organisation advised (him) that they would be supporting him in Australia, when this support was not provided and (FBA) left where he was staying, every cost incurred was due to the act of violence.
23. In the interests of clarity, I advise (FBA) that only costs incurred as a direct result of the alleged sexual touching or sexual assault may be supported. All other costs cannot be considered to arise directly out of the act of violence. I have outlined each of the expenses and why they weren’t incurred as a direct result of the act of violence below…
34. (FBA) has claimed that he has had a fractured work life since he arrived in Australia which has meant that he has incurred a loss of actual earnings.
35. In order for me to establish that (FBA) is eligible to receive financial assistance for loss of actual earnings the evidence must establish that (he):
Had an actual, rather than potential or possible, source of income from employment that was available to him at the time the act of violence occurred;
Was required to take time off work as a direct result of the act of violence; and
There was a loss of actual earnings for this period (i.e. that the period of absence was not covered by leave entitlements or money from another source such as Centrelink, workers compensation or income protection insurance).
36. I have carefully considered the available evidence, including (FBA’s) submissions that he did not work during 2016 as his Visa did not allow him to do so. As (he) was not entitled to work in Australia at the time of the act of violence, it cannot be established that he had an actual, rather than a potential or possible, source of income from employment that was available to him at the time the act of violence occurred. Because of this, I am not able to determine that (he) incurred a loss of actual earnings as a direct result of the act of violence…
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I note that a copy of the Review Decision was posted to FBA under cover of a letter from the Commissioner dated 27 April 2021. However, the date on which the letter was posted is not indicated in the documents before me.
Application for Administrative Review
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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.
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On 28 June 2021, FBA lodged the current Application for Administrative Review, which indicates that he received the Review Decision on 28 April 2021. Accordingly, I am satisfied that the current application has been filed with permitted timeframes.
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However, the application wrongly named the respondent as “NSW Victims Services”. Accordingly, I order that the name of the respondent be amended to “Commissioner of Victims Rights”.
Consideration
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The application sought administrative review of the decisions with respect to financial assistance for immediate needs and economic loss only.
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In making this decision I have considered all of the evidence that has been lodged by the applicant, although I have not specifically referred to all of the evidence in this decision.
Early determination of the application
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S 36 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) (“the CAT Act”) provides:
36 Guiding principle to be applied to practice and procedure
The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
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The matter was listed before the Tribunal for directions on 6 August 2021, when FBA appeared in person and the Commissioner was represented by Ms Dous. The Tribunal noted that the applicant did not seek a review of the recognition payment that the Commissioner had approved and informed the applicant that it did not have jurisdiction to determine the application. It invited the applicant to withdraw the application.
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The applicant declined to withdraw the application and stated that he wished the Tribunal to make a decision regarding its jurisdiction so that he could rely upon it in the future. For this reason, and in order to give effect to the Tribunal’s guiding principal under s 36 of the CAT Act, the Tribunal decided that it was appropriate for the application to proceed to hearing without further delay and that the matter should be determined on the papers under s 50 of the CAT Act. The parties did not object to this course of action.
Jurisdiction of the Tribunal
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While FBA sought administrative reviews of decisions that were made in relation to his claims for financial assistance for immediate needs and economic loss, in BMF v Commissioner of Victims Rights [2016] NSWCATAD 144, the Tribunal has previously determined that it lacks jurisdiction to administratively review of decisions regarding those claims. In particular, it stated, relevantly:
Jurisdiction with respect to financial assistance claims
48. I note that in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255 (“Project Blue Sky”) Brennan CJ held:
69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
49. I further refer to Statutory Interpretation Australia (8th Edition Pearce and Geddes) (at page 28), which provides:
Remedial or Beneficial Acts
The Courts have adopted the broad approach that where an Act is curing some ‘mischief’ or is granting a benefit to a person, the Act should be construed generously to ensure that the mischief is remedied or that the person is not denied the promised benefit.
50. Applying these principles to the current matter, I accept the submission made by BMF’s solicitors to the effect that financial support for immediate assistance and economic loss form an integral part of the package of victims’ support that is potentially available to a primary victim of an act of violence under the Scheme established by the Act.
51. However, s 51 of the Act expressly refers to an “applicant for a recognition payment” and “a decision with respect to a recognition payment” and I am not persuaded that Parliament intended that these references should also extend to provide a right of external administrative review to “an applicant for financial assistance”. It was open to Parliament to expressly confer this right with respect to such decisions, but it instead chose to distinguish between the various types of victims support provided for under the Victims Support Scheme and to restrict the right to seek external administrative review to decisions made with respect to a recognition payment.
52. I therefore reject the expansive interpretation of s 51 of the Act that has been proffered by BMF’s solicitors and find that his Tribunal does not have jurisdiction to conduct an administrative review the decisions made by the Respondent with respect to the applications for financial assistance under s 51 of the Act…
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For these reasons, the Tribunal is satisfied that it lacks jurisdiction to administratively review the Commissioner’s decisions dated 2 March 2021 and 27 April 2021, as these decisions relate to claims for financial assistance for immediate needs and economic loss.
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Therefore, the current application must be dismissed for want of jurisdiction.
Orders
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I make the following orders:
The name of the respondent is amended to “Commissioner of Victims Rights”.
The application for administrative review of the Commissioner’s decisions dated 2 March 2021 and 27 April 2021, are dismissed for want of jurisdiction.
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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: 16 August 2021
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