GAP-AAA and GAP-AAB

Case [2024] ARTA 1

GAP-AAA and GAP-AAB; Child Support Registrar (Guidance and Appeals Panel) [2024] ARTA 1

Applicant:[GAP-AAA]

Respondents:  [GAP-AAB]; Child Support Registrar

Tribunal Number:                2024/BC027893

GAP Reference Number:    2024-001-026

Decision-maker:                  Justice Kyrou, President

Place:Melbourne

Date:6 December 2024

Decision:

1.The applicant’s application for an oral hearing of the application for referral to the Guidance and Appeals Panel of the Tribunal’s decision made on 25 October 2024 is refused.

2.The applicant’s application to refer the Tribunal’s decision made on 25 October 2024 to the Guidance and Appeals Panel is refused.

3.The applicant’s application to stay the operation of the Tribunal’s decision made on 25 October 2024 is refused.

................................[sgd]........................................

Justice Kyrou, President

Catchwords

PRACTICE AND PROCEDURE – application for referral of a Tribunal decision to the Guidance and Appeal Panel for further review – application for oral hearing of referral application – application for stay order – meaning of ‘may contain an error of fact or law’ – meaning of ‘materially affecting the Tribunal decision’ – discretionary considerations relevant for referral to the Guidance and Appeals Panel – application for oral hearing refused – application for referral refused – application for stay order refused

Legislation

Administrative Review Tribunal Act 2024

Cases

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506

Nathanson v Minister for Home Affairs (2022) 276 CLR 80

Secondary Materials

Revised Explanatory Memorandum, Administrative Review Tribunal Bill 2024

Names used in this published decision are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.


Statement of Reasons

INTRODUCTION

  1. These reasons deal with an application under s 124(1) of the Administrative Review Tribunal Act 2024 (‘ART Act’) by the applicant for referral, pursuant to s 128(1), to the Guidance and Appeals Panel (‘GAP’) of a decision made by the Tribunal on 25 October 2024 (‘Tribunal Decision’).[1]

    [1]The cover sheet to the Tribunal Decision is dated 11 October 2024. That is the date of the hearing rather than the date the Tribunal Decision was made.

  2. Section 128(1) of the ART Act provides that if a person applies to refer a Tribunal decision to the GAP, ‘the President may refer the Tribunal decision to the [GAP] or refuse the application.’ Section 128(2)(b) provides that the President ‘may refer the Tribunal decision to the [GAP] if the President is satisfied that … the Tribunal decision may contain an error of fact or law materially affecting the Tribunal decision.’ Section 128(2)(a) provides for referral to the GAP of Tribunal decisions which raise ‘an issue of significance to administrative decision-making’. These reasons are confined to s 128(2)(b) because s 128(2)(a) is not…

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AGLC
GAP-AAA and GAP-AAB [2024] ARTA 1
Case
[2024] ARTA 1
Decision Date

CaseChat Overview and Summary

In the case of GAP-AAA and GAP-AAB, the applicant sought referral of a decision made by a general member of the Administrative Appeals Tribunal (AAT) to the General Administrative Division (GAP) of the AAT, on the basis that the decision contained an error of fact or law materially affecting it. The applicant, who has sole care of three children, contested the decision that the parents did not have an expectation that the children would attend a particular Catholic school beyond Year 4. The applicant also argued that the AAT misinterpreted a statutory provision in making its decision. The applicant sought a stay of the AAT decision pending the outcome of the referral application.

The primary legal issues before the court were whether the AAT decision contained an error of fact or law materially affecting it, and whether a stay of the AAT decision should be granted pending the referral. The court examined the AAT decision for any material errors and considered the potential for irreversible prejudice to either party if a stay were not granted. The court also considered the statutory framework governing referrals to the GAP, including the broad discretion of the President of the AAT to decide whether to refer a decision to the GAP.

The court concluded that the AAT decision did not contain a material error of fact or law, as the outcome of the proceeding would have been the same even if the alleged errors had not been made. The court further held that a stay was not warranted, as the applicant had not demonstrated the kind of irreversible prejudice that would justify halting the implementation of the AAT decision. The court emphasised that the President of the AAT has a broad discretion to decide whether to refer a decision to the GAP, and that this discretion extends to situations where all statutory preconditions for referral are met. The court found that the applicant had not provided sufficient grounds to exercise this discretion in favour of a referral.

The court dismissed the applicant's referral application and did not grant a stay of the AAT decision.

Orders

Orders of the court

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Background

Background to the litigation

Of course, the considerations referred to at [‎31] above are not determinative. Where they are taken into account in a particular case, they must be considered alongside all other matters that are relevant in the circumstances of that case. FACTUAL AND PROCEDURAL BACKGROUND TO THE REFERRAL APPLICATION The applicant and first respondent (collectively ‘the parents’) are the parents of three children. The parents are separated and the applicant has 100% care of the children. A child support assessment for the children commenced on 17 March 2017. On 8 March 2024, a child support decision-maker made a decision to depart from the administrative assessment to take account of the children’s 2024 and 2025 school fees. On 3 May 2024, a child support objections officer set aside the 8 March 2024 decision and replaced it with a new decision that was less generous to the applicant. On 25 October 2024, a general member made the Tribunal Decision, which set aside the 3 May 2024 decision and substituted a new decision, which varied one aspect of the 3 May 2024 decision. At the heart of the dispute between the parents is whether they had an expectation that the children would attend a Catholic primary school to Year 4 and then another Catholic school from Year 5. There was considerable evidence about a particular Catholic school (which I will refer to as ‘the Catholic college’) for schooling for two of the children from Year 5. The Catholic college charged higher fees than the Catholic primary school at which all of the children commenced their schooling. The applicant enrolled the oldest child at the Catholic college at the beginning of 2024 to commence Year 5. In the Tribunal Decision, the general member found that the parents did not have the expectation referred to at [‎35] above. The Tribunal Decision (as was the case with the 3 May 2024 decision) had the effect of requiring the first respondent to meet 50% of the Catholic primary school fees that would have been incurred had the oldest child continued at that school in 2024 and 2025. On 30 October 2024, the applicant applied for referral to the GAP of the Tribunal Decision on the basis that it may contain an error of fact or law materially affecting it (‘Referral Application’). It is not clear whether the applicant also contends that the Tribunal Decision raises an issue of significance to administrative decision-making (see s 128(2)(a) of the ART Act). Insofar as the applicant does, that contention must be rejected, as the Tribunal Decision is very specific to the facts of this case. The Referral Application alleges that the Tribunal made numerous errors of fact. The key alleged error relates to the Tribunal’s finding that the parents did not have the expectation referred to at [‎35] above. The Referral Application also alleges that the Tribunal made an error of law by misinterpreting the meaning of the phrase ‘the costs of maintaining the child are significantly affected because the child is being cared for, educated or trained in the manner that was expected by his or her parents’ in s 117(2)(b)(ii) of the Child Support (Assessment) Act 1989.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The GAP Practice Direction requires the parties to provide detailed information and submissions to assist the President to decide whether to grant a referral application. Ordinarily, the information and submissions provided by the parties will be sufficient on their own to enable a decision to be made on the referral application and thus the interests of justice would not require an oral hearing.GRANTING AN ORDER STAYING A TRIBUNAL DECISION Section 127(1) of the ART Act provides that the making of a referral application does not affect the operation of the Tribunal decision the subject of the application or prevent the taking of action to implement it. Section 127(2) provides that, upon application by a party, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the Tribunal decision the subject of a referral application if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the referral application.[3] Section 127(7) requires the Tribunal to give the parties a reasonable opportunity to make submissions in relation to the making of a stay order before making such an order, and to take into account the interests of any person who may be affected by the decision affirmed, varied or set aside by the Tribunal decision. [3]The wording of s 127(2) is similar to that of s 32(2), which deals with a stay of a reviewable decision. Section 32(2) in turn is based on s 41(2) of the Administrative Appeals Tribunal Act 1975, in respect of which there is considerable case law. A stay order will not be granted as a matter of course. Section 127(2) of the ART Act makes it clear that the power to make such an order is discretionary. A precondition to the exercise of the discretion to grant a stay order is the existence of material before the Tribunal indicating that the effectiveness of the referral application will be adversely affected in the absence of a stay. The effectiveness of a referral application will be adversely affected if the party seeking a stay would suffer irreversible prejudice if the stay sought were not granted, such as where a successful outcome before the GAP would be rendered nugatory. The existence of such prejudice would militate in favour of granting a stay. The fact that the party seeking a stay is able to point to material indicating that the effectiveness of the referral application will be adversely affected in the absence of a stay does not necessarily mean that the Tribunal is required to exercise the discretion in favour of granting a stay order. That is because any prejudice to the party seeking a stay if the stay sought is not granted must be balanced against any prejudice to the party opposing a stay if the stay sought is granted. Thus, if the party opposing a stay would suffer irreversible prejudice if the stay sought is granted, that would militate against the granting of the stay. It follows that consideration of an application for a stay will involve an examination of any prejudice to the party seeking a stay if the stay sought is not granted and any prejudice to the party opposing a stay if the stay sought is granted.

Ratio Decidendi

Legal Principle Established

Accordingly, if a Tribunal decision contains an error of fact or law but it can be concluded that the outcome of the proceeding would have been the same had the Tribunal decision not contained the error of fact or law, that error cannot be said to have materially affected the Tribunal decision. DISCRETIONARY CONSIDERATIONS RELEVANT TO REFERRAL TO THE GAP A Tribunal decision cannot be referred to the GAP under s 128(2)(b) of the ART Act unless the President determines that the Tribunal decision may contain an error of fact or law materially affecting the Tribunal decision. However, the fact that these preconditions are met does not mean that the President must then refer the Tribunal decision to the GAP. The President retains a discretion to refuse to do so even where those preconditions are met. The existence of this discretion is apparent from the phrase ‘may refer’ in s 128(1) and (2), and is put beyond doubt by s 128(5), which provides: To avoid doubt, the President is not required to refer any decision of the Tribunal to the [GAP]. Section 128(4) of the ART Act provides that, in deciding whether to refer a Tribunal decision to the GAP, the President must have regard to the circumstances of the parties and any other matters that the President considers relevant. The reference to any other matters indicates that the President’s discretion to refuse to refer a Tribunal decision to the GAP, even if all the statutory preconditions for a referral are satisfied, is very broad. The breadth of the President’s discretion to refuse to refer a Tribunal decision to the GAP, even if all the statutory preconditions for a referral are satisfied, is emphasised in the Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (‘REM’). The REM relevantly states the following: 828. Even if the President is satisfied that the Tribunal decision meets either of these criteria, the President retains the discretion regarding referral and is not obliged to refer the Tribunal decision to the [GAP].…832. In deciding whether to refer a decision to the [GAP], the President must consider the circumstances of the parties, and any other matters they consider are relevant (subclause (4)). Factors that the President might consider could include (but are not limited to): the financial burden on a party to have a matter heard by the [GAP], the risk of trauma that further proceedings may have on a party, whether parties have adequate representation, concerns over the safety, health or confidentiality of a party, and any other concern.…835. Subclause (5) clarifies that the President is not required to refer any decision of the Tribunal to the [GAP]. Subclause (5) is an avoidance of doubt provision, which functions to underscore the considerations outlined above. This ensures the referral power may be exercised appropriately and proportionately when considering what types of matters are appropriate for [GAP] review, and what types of matters are better left to other review pathways. For example, complex taxation matters and certain regulatory matters may be more appropriately dealt with through judicial review.