Hassan v Secretary, Department of Family and Community Services
[1999] FCA 1720
•10 DECEMBER 1999
FEDERAL COURT OF AUSTRALIA
Hassan v Secretary, Department of Family & Community Services FCA [1999] 1720
SOCIAL SECURITY – Migration Act provided for regulations requiring “maintenance guarantees” to be given in relation to persons seeking to enter or remain in Australia – Where maintenance provided to a person by the Commonwealth while maintenance guarantee in force, Commonwealth empowered to recover amount as a debt – Applicant gives “assurance of support” in respect of mother – Special benefit paid to mother during subsistence of assurance of support – Recovery proceedings by Commonwealth against applicant ‑ Whether regulation requiring provision of “assurance of support” beyond power conferred by Act ‑ Meaning of “guarantee” ‑ Whether assurance of support a “maintenance guarantee”.
Migration Act 1958 s 67(1)(c)
Migration Regulations regs 21, 22
Migration (1989) Regulations reg 165
Social Security Act 1991 s 1237AADRe Paterson and Secretary, Department of Employment, Education and Training (1993) 30 ALD 755 mentioned
Sunbird Plaza Pty Ltd v Molony (1988) CLR 245 distinguished
Permanent Trustee Co of New South Wales Ltd v Hinks (1934) 34 SR (NSW) 130 distinguished
Jowitt v Callaghan (1938) 38 SR (NSW) 512 distinguished
Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 mentioned
Re Jonsson and Marine Council (No 2) (1990) 12 AAR 323 mentioned
Heisler v Anglo‑Dal Ltd [1954] 1 WLR 1273 considered
Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 mentioned
Allina Pty Ltd v Federal Commissioner of Taxation (1991) 99 ALR 295 applied
Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577 appliedRACHID HASSAN v SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
VG 723 OF 1998
SUNDBERG J
10 DECEMBER 1999
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 723 OF 1998
BETWEEN:
RACHID HASSAN
ApplicantAND:
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
RespondentJUDGE:
SUNDBERG J
DATE OF ORDER:
10 DECEMBER 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT the application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 723 OF 1998
BETWEEN:
RACHID HASSAN
ApplicantAND:
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
JUDGE:
SUNDBERG J
DATE:
10 DECEMBER 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
BACKGROUND
The applicant’s mother, Mrs Kurdie El Hawli, arrived in Australia on 3 November 1985 on a temporary entrance visa. On 6 January 1986 the applicant signed an Assurance of Support under Part IV of the Migration Regulations which is in part as follows:
“I undertake to provide to the person(s) named above during the period of this Assurance:
·adequate accommodation, as required
·adequate food, clothing, medical care and incidental living needs, as required
·information and advice to assist in settlement in Australia.
I also understand and agree:
·that when Special Benefit is provided by the Commonwealth … to the person named above during the validity of this Assurance, the funds paid shall be deemed to have resulted from a breach of this undertaking and I will repay those funds
·that action may be taken in a court to recover such funds expended as a debt due
·that this Assurance is given, with effect from the date of entry to Australia of the person(s) named above … for a period of 10 years ….
I solemnly and sincerely declare:
…
·that this Assurance of Support is given for the purposes of Part IV of the Migration Regulations ….”
The “person(s) named above” was the applicant’s mother.
On 18 January 1989 the mother applied for special benefit under Division 6 of Part VII of the Social Services Act 1947. In her application she said:
“I have no one to support me and I am too old and sick to work. There is no other way I could get support.
…
I live with my son Ahmed with five children. Ahmed supported me since coming to Australia.”
In a more detailed statement accompanying the application she said:
“My son Rachid El Hawli signed an assurance of support for me to come to Australia he supported me for the first year after I arrived here. Since then he has had nothing to do with me. I was staying between my other sons and daughters. I have been staying with my son Ahmed El Hawli. Ahmed was employed until recently and he was able to look after me and buy every day necessities for me eg food, clothing, bathroom items, medicines. Now that Ahmed is unemployed he can no longer afford to support me as he has his wife and five children to support. Ahmed has spoken with the other members of the family to see if they could assist financially with my support, but not one of them is prepared to help. As I am a sick woman they don’t want me living with them as it puts too much strain on their families. Ahmed has been good to me but I need special food because I am not well. Ahmed has purchased this for me, I also need medication which is expensive. As Ahmed is unemployed he cannot afford to purchase these things for me …. I am aware that any special benefit paid to me is a debt in Rachid’s name.”
Special benefit was paid to the mother from 18 January 1989 to 19 December 1991. On 27 July 1997 a delegate of the Department of Family and Community Services made a decision to raise and recover from the applicant a debt of $20,936.14, the amount paid to the mother during the above period. The amount was later reduced to $20,241.14 after an internal review. On a review of this decision by the Social Security Appeals Tribunal, the Tribunal decided that the balance of the debt owed by the applicant be waived pursuant to s 1237 of the Social Security Act 1991. The respondent applied to the Administrative Appeals Tribunal for a review of that decision. The Tribunal set the decision aside and determined that the sum of $20,241.14 was an outstanding debt owed to the Commonwealth by the applicant under the Assurance of Support. The applicant appeals to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”).
THE LEGISLATION
As at 6 January 1986, when the applicant signed the Assurance of Support, s 67(1)(c) of the Migration Act 1958 empowered the Governor‑General to make regulations
“requiring maintenance guarantees to be given, in such circumstances as are prescribed or as the Minister thinks fit, in relation to persons seeking to enter, or remain in, Australia and providing for the enforcement of such guarantees and the imposition on persons who give such guarantees of liabilities in respect of the maintenance of, and other expenditure in connexion with, the persons in respect of whom the guarantees are given ….”
In the form it took on 6 January 1986 reg 21 of the Migration Regulations was as follows:
“(1)The Minister may, in such circumstances as he thinks fit, require maintenance guarantees to be given in relation to persons seeking to enter or remain in Australia.
(2)A maintenance guarantee shall be given in such form and for such period as the Minister determines.”
Regulation 22 was in part as follows:
“(1)Where, during the period for which a maintenance guarantee under this Part has been given in respect of a person, maintenance of that person has been provided by the Commonwealth …, or the funds of the Commonwealth … have been otherwise expended, either directly or indirectly, in respect of the maintenance of that person, an amount equal to the value of the maintenance provided or the funds so expended … is a debt due and payable to the Commonwealth … by the person who gave the maintenance guarantee.
(2)A debt due and payable under the last preceding sub‑regulation may be sued for and recovered in a court of competent jurisdiction by the Commonwealth ….”
Regulation 20(1) defined “the maintenance of a person” so as to include a special benefit payable under Division 6 of Part VII of the Social Services Act 1947. The Statute Law (Miscellaneous Provisions) Act 1987 amended s 67(1)(c) of the Migration Act by substituting “assurances of support” for “maintenance guarantees” and making consequential amendments. By Statutory Rule No 314 of 1987 the expressions “assurances of support” and “assurance of support” replaced “maintenance guarantees” and “maintenance guarantee” in regs 21 and 22 of the Migration Regulations. A maintenance guarantee given under Part IV of the Regulations in force immediately before the commencement of Statutory Rule No 314 was continued in force after that commencement as if it were an assurance of support given under Part IV as amended by that Rule: reg 12.
The Migration Regulations were replaced by the Migration (Criteria and General) Regulations (Statutory Rule No 365 of 1989). By the Migration (Criteria and General) Regulations (Amendment) (Statutory Rule No 414 of 1989) the Migration (Criteria and General) Regulations were renamed the Migration Regulations and a new Part 6 ‑ Assurances of Support – was inserted. Part 6 consisted of regs 163 to 166. Regulations 163 to 165 were in substantially the same terms as regs 20 to 22 of the earlier Regulations. Regulation 166(1) provided, so far as presently material, that reg 165 applied in relation to maintenance guarantees given before the commencement of the Migration (Criteria and General) Regulations (Amendment) in accordance with regulations that were in force under any of the Acts repealed by the Migration Act as if those maintenance guarantees were assurances of support. By the Migration Regulations (Amendment) (Statutory Rule No 418 of 1991) a new Part 6 was inserted into the Migration Regulations. Regulation 163B provided that an assurance of support that, as at the end of 19 December 1991, had been in force for not less than two years had no effect on or after 20 December 1991. The expression “assurance of support” was defined in reg 163 to include:
“(b) a maintenance guarantee that:
(i)was given before 18 December 1989 under regulations that were in force under the Act or under any of the Acts repealed by the Act; and
(ii)is expressed, or otherwise purports, to have effect after 19 December 1991.”
Although the Migration (Criteria and General) Regulations were renamed the Migration Regulations by the Migration (Criteria and General) Regulations (Amendment), the renamed Regulations are referred to in later Regulations as the Migration (1989) Regulations. It may be that they were renamed by regulations I have not unearthed. The significance of this appears in paragraph 8. I will hereafter call the renamed Regulations the Migration (1989) Regulations.
The effect of the foregoing is that if the document signed by the applicant on 6 January 1986 is a “maintenance guarantee” for the purposes of s 67(1)(c) of the Migration Act in the form it took on that date, it remained in effect as an “assurance of support” until 19 December 1991.
Section 1227 of the Social Security Act 1991 provides that if a person is liable to pay an assurance of support debt, the debt is a debt due to the Commonwealth. The expression “assurance of support debt” is defined in s 23(1) to include:
“a debt due and payable by a person to the Commonwealth, or a liability of a person to the Commonwealth, because of the operation of:
(a)subregulation 165(1) of the Migration (1989) Regulations as in force on or before 19 December 1991
…
in respect of the payment to another person of:
…
(f)special benefit under Part 2.15 of this Act; or
…
(i) special benefit under section 129 of the 1947 Act.”
The expression “assurance of support” is defined to include an assurance of support within the meaning of the Migration (1989) Regulations. The “1947 Act” is the Social Services Act 1947.
Section 1237 AAD provides:
“The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i)making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.”
EVIDENCE BEFORE THE TRIBUNAL
The only oral evidence before the Tribunal was that given by the applicant. It was to the following effect. He came to Australia in 1968 from Lebanon. Shortly after his arrival his four brothers and two sisters also migrated to Australia. All the applicant’s siblings lived within a short distance of his house in Newport. Following her arrival in Australia, the applicant’s mother spent most of her time at his house, but she regularly visited and stayed overnight with her other children. When she was staying with the other children, they were responsible for her upkeep, though the applicant offered her assistance which she always refused. Otherwise he was basically responsible for her upkeep. After the applicant’s last sister arrived in Australia in 1987 or 1988, the mother spent most of her time assisting the daughter in the upkeep of her household whilst the daughter worked. The applicant was uncertain as to when he became aware that his mother was receiving special benefit, but thought it was in 1991. He believed that his mother was assisted in making her application by a niece or nephew. The applicant thought he received a letter from the Department in 1991 informing him that he owed $19,700 on account of special benefit paid to his mother in the period 18 January 1989 to 19 December 1991. At the time his mother signed the Assurance of Support the applicant explained to her that if she applied for social security benefits, he would have to make repayments to the Department. He believed that she understood this, but that she had been influenced by advice from other members of the family who told her she had a right to receive social security. His relationship with his mother remained excellent, and he saw her at least twice a week. Whenever he saw her he offered her assistance with goods or money, but she told him she did not need help. She had not told him she needed special medication or special food. He was not aware that she had stated in her application for special benefit that she required special food and special medication. Had he known his mother had applied for special benefit, he would have told her that this was not in accordance with the law, and that it was his responsibility to provide for her assistance. The applicant said that everything in his mother’s application for special benefit was wrong. It was “all lies”. His mother could neither read nor write and would have had no knowledge of what was stated in the application. In view of the applicant’s evidence that the contents of his mother’s application was all lies, the Tribunal invited the parties to call further evidence. Neither wished to do so.
TRIBUNAL’S REASONING
The applicant’s counsel submitted to the Tribunal that reg 165(1) of the Migration (1989) Regulations was invalid on the ground that an assurance of support is not a “maintenance guarantee” for the purposes of s 67(1)(c) because there was no primary liability to which the assurance was ancillary. It will be necessary to examine the argument more fully later. The Tribunal declined to determine the validity of reg 165(1). It regarded its task as being to review the decision of the primary decision‑maker and not to determine whether or not the regulation was invalid. It quoted with approval from Re Paterson and Secretary, Department of Employment, Education and Training (1993) 30 ALD 755 at 758, where the Tribunal said:
“Whether the decision is made pursuant to a provision of an Act or pursuant to the provisions of a Regulation made under the authority of an Act, it is equally correct to say that this Tribunal can review only the decision and not the validity of the legislation, original or subordinate, which authorises it.”
Given that the Tribunal would not entertain the invalidity submission, it saw the only question before it as being whether the debt should be waived or written off. It will be recalled that s 1237AAD empowers the Secretary to waive the right to recover a debt if satisfied, amongst other things, that “the debt did not result wholly or partly from the debtor or another person knowingly … making a false statement or false representation”. The Tribunal, standing in the shoes of the Secretary, was not so satisfied. It said:
“In view of Mr Hassan’s evidence as to the veracity of the claims in the application for Special Benefit, both parties were requested to address whether or not the discretion of the Secretary to waive a debt under s 1237AAD was negated. The applicant in further submissions argued that s 1237AAD was not attracted in view of false statements and/or false representations made in the application for Special Benefit.
On the evidence before the Tribunal, and given that both parties declined the offer to call further evidence from Mrs Kurdie El‑Hawli or her adviser at the time she made application for Special Benefit, the Tribunal must rely on the oral evidence under oath of Mr Hassan. He declared the content of the statement accompanying [the] application for Special Benefit to be all lies. He denied all aspects of this statement. The Tribunal is uncertain as to who made these statements, namely whether it [was] Mrs Kurdie El‑Hawli or a niece of Mr Hassan. However, the only inference that can be drawn on the evidence before the Tribunal is that the contents of the statement were either a false statement or a false representation. In light of this, the discretion of the Secretary to waive the right to recovery of all or part of the debt is negated. There is no discretion to waive.”
GROUNDS OF APPEAL
Validity of the regulation
Before the Tribunal the attack was on reg 165 of the Migration (1989) Regulations which is in essentially the same terms as reg 22 of the Migration Regulations that were in force when the applicant signed the Assurance of Support. Before the Court both regs 22 and 165 were claimed to be invalid. It was submitted that the word “guarantee” in the expression “maintenance guarantee” in s 67(1)(c) of the Migration Act has its ordinary meaning – a binding promise by one person to be answerable for the debt or obligation of another if that other defaults. It was said that a guarantee is predicated upon the existence of an obligation owed by a principal debtor. Reference was made to Sunbird Plaza Pty Ltd v Molony (1988) CLR 245, Permanent Trustee Co of New South Wales Ltd v Hinks (1934) 34 SR (NSW) 130 and Jowitt v Callaghan (1938) 38 SR (NSW) 512. In the last‑mentioned case Jordan CJ, with whom Davidson and Nicholas JJ agreed, said (at 516‑517):
“A contract of guarantee or suretyship is a contract between two persons which is intended by them to secure the performance of the obligation of a third person to one of them. The existence, present or future, of the obligation of a third person, and an intention in the parties to the contract to secure the performance of that obligation, are essential features of a contract of guarantee.”
Assurances of Support do not make an applicant answerable for the obligation of another upon default. The assurer has a primary and not a conditional liability. Accordingly, it was said, the regulation is ultra vires, and could not support recovery under s 1227 of the Social Security Act.
The applicant contended that the Tribunal erred in law in holding that it “could not determine the validity of” reg 165. The questions for the Tribunal were whether the applicant was liable to pay an assurance of support debt, and if he was, whether it should be waived under s 1237AAD. The submission that appears to have been put by the applicant on the first question was that because the regulation was invalid, the Assurance of Support was void and did not give rise to an assurance of support debt for the purposes of s 1227 of the Social Security Act.
I was referred to cases in which the Tribunal had considered whether it has power to determine the validity of statutes and subordinate legislation. Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 is the leading example in relation to statutes, and Re Paterson (referred to in par 11) and Re Jonsson and Marine Council (No 2) (1990) 12 AAR 323 are examples in relation to subordinate legislation. The questions of principle that would guide the Court in determining whether the Tribunal has power to make such determinations, and if so, whether it is obliged to exercise the power, were not explored in argument, partly because, on the respondents’ view of the case, it was not necessary for me to decide the questions. In the absence of full argument I would not want to decide those important questions, and it is in fact unnecessary for me to do so. If the Tribunal had power to decide whether reg 165 was invalid, and made an error of law in failing to exercise it, I would not have set aside its decision and remitted the matter for determination of the question, because the submission that reg 165 is beyond power is so devoid of merit that it would be pointless to require the Tribunal to deal with it. Further, the parties were anxious that I decide the issue, thereby avoiding further proceedings in the Tribunal.
It is plain from the context in which s 67(1) appears that the word “guarantee” in the expression “maintenance guarantee” is not used in the sense it has in the expression “contract of guarantee”. One of the ordinary meanings of “guarantee” is a promise to do something. Thus the Macquarie Dictionary (3rd ed) gives these meanings of the word, in addition to the meaning contended for by the applicant:
“2.a promise or assurance, especially one given in writing by a manufacturer that something is of a specified quality, and generally including an undertaking to make good any defects under certain conditions.
…
11.to engage (to do something).
…
13. to promise.”
Heisler v Anglo‑Dal Ltd [1954] 1 WLR 1273 is an example of the use of “guarantee” in a commercial contract as meaning simply a promise by one of the contracting parties. As Somervell LJ said at 1276, the word is often used not in its legal sense, but as meaning simply an undertaking by the contracting party. The meaning will always be influenced by the context in which the word appears. Section 67(1)(c) evinces a legislative concern to ensure that someone assumes liability for the maintenance of persons seeking to enter or remain in Australia. In that context, especially as the word “guarantee” appears in the expression “maintenance guarantee”, it has the natural meaning of a promise or assurance to maintain the person in question.
It was contended for the applicant that the 1987 amendment to s 67(1)(c), which substituted for the words “maintenance guarantee” the words “assurance of support”, confirms that the word “guarantee” in the section before its amendment had its “ordinary legal meaning”. In an appropriate case courts will examine a later statute to determine whether it throws light on the interpretation of an earlier one. See for example Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70. But it is an appropriate course only where the words of the earlier statute are ambiguous. Little assistance is to be gained from a later statute when the words of the earlier one are clear. See Allina Pty Ltd v Federal Commissioner of Taxation (1991) 99 ALR 295 at 303. The expression “maintenance guarantee” in s 67(1)(c) before the amendment is not ambiguous simply because the word “guarantee” has more than one meaning. For the reasons I have given, the context makes clear that a maintenance guarantee is simply a promise to maintain someone. Further, care must be exercised to ensure that the words of the later statute have not been inserted to remove possible doubts as to the meaning of the earlier provision. See Allina at 303 and Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577 at 612. That I think was the case with the amendment to s 67(1)(c).
The Assurance of Support does not comply with s 67(1)(c)
On the assumption that reg 22 and reg 165 were validly made pursuant to s 67(1)(c), it was contended that the Assurance of Support signed by the applicant was not effective because it was not a “guarantee”. The argument was the same as that advanced to support the submission that the regulations were invalid. This contention was put to the Tribunal, but was not dealt with by it. Its failure to do so was an error of law. But for the reasons I have given, there is no substance in the submission, and there is no point in remitting the matter to the Tribunal for it to consider the point.
It was not common ground that a debt was due
In the course of its reasons the Tribunal said that both parties agreed that there was a debt due to the Commonwealth by the applicant, and that the question was whether the debt should be waived or written off. For the applicant it was contended that he had not so agreed, and that it was an error of law for the Tribunal to have proceeded as if he had. The Tribunal’s verbiage may have been imprecise, but it seems to me to have meant that since it did not have power to determine the validity of reg 165, and since the applicant did not otherwise contend there was no debt owing, the only question was one of waiver. That this is the case is confirmed by the way in which the case was conducted before the Tribunal. The applicant filed written submissions on the guarantee point. The respondent filed submissions dealing with that point, with the Tribunal’s power to entertain the invalidity argument, and with waiver. The only point made on waiver was that there were no special circumstances for the purposes of s 1237AAD(b). The issue about false statements (s 1237AAD(a)(i)) did not arise until it was raised by the Tribunal in the course of the hearing. The Tribunal invited written submissions on this point. The applicant filed written submissions dealing with waiver in which he said he did not “concede” the respondent’s contentions as to jurisdiction or as to the meaning of “guarantee”, but that if they were sound, there were exceptional circumstances to justify waiver of the debt. It was submitted that “there is a sound basis for waiver of the debt” and that the “debt should be waived”. The submission then reverted to the guarantee and jurisdiction issues, and concluded:
“2.7In these circumstances it is submitted the Tribunal whether it finds exceptional circumstances or not should find that the regulation is invalid.
2.8If the Tribunal is unable to arrive at that conclusion it is submitted it is still open as already been submitted that either the circumstances herein are:
(i)exceptional; and/or
(ii)the decision to pursue a recovery by this means is an improper purpose which the Tribunal should not condone.”
There was no suggestion that if the guarantee argument failed, there was no debt. The contentions about exceptional circumstances and improper purpose assumed the existence of the debt. The respondent then filed submissions dealing with false statements. The applicant replied on false statements, and the respondent replied on false statements and special circumstances.
Once the Tribunal had decided it would not go into the invalidity question, as it understood the respondent’s argument, the remaining issue was whether the debt should be waived. It is true, as I have said, that the Tribunal failed to consider the guarantee argument on the assumption that reg 165 was valid. I have dealt with that issue. The Tribunal may have overstated the matter by saying it was “agreed” that there was a debt due. It could perhaps more accurately have said that the case was conducted on the basis that if the regulation was valid, the applicant was liable to pay the debt unless it was to be waived. But that is a matter of semantics, and the Tribunal is not to be held to have made an error of law by reason of infelicitous language when the import of what it has said is clear and not inaccurate.
“knowingly”
It was conceded by the applicant that there was evidence before the Tribunal that the mother’s statement was not true. It was however submitted that there was no evidence that the statement was made “knowingly”, that is to say knowing the statement to be false. The Tribunal accepted the applicant’s evidence that his mother’s statement was “all lies”. It thus accepted, amongst other things, that the mother was not ill, did not require special foods or medication, and was supported by her family, and that her statement to the contrary was false. It must follow from the rejection of her evidence that she knew the statements she made were untrue. The statement was written by an officer of the Department. But it was read to the mother in Arabic by an interpreter, and the mother then signed it with a cross. In these circumstances, the statement was made by the mother. There is no room for the view that the untrue statement was made by the niece and that the mother was unaware of its falsity.
The Tribunal did not expressly deal with the “knowingly” issue. However, the Tribunal was aware of the terms of s 1237AAD(a). It had set out the provision in its reasons. The parties’ written submissions canvassed the issue. Doubtless the reason the Tribunal did not separately deal with it lies in the fact, as I have said, that the Tribunal’s finding that the mother’s statement was all lies carried with it that she was aware of its falsity. The Tribunal should have dealt with the “knowingly” component of s 1237AAD(a) in its reasons, but its failure to do so expressly is not, in the circumstances, an error of law.
It was faintly suggested that there was no evidence that the debt resulted wholly or partly from the false statement. There is nothing in this point. It is a proper inference that had the mother not made the false statements, she would not have received special benefit. In order to obtain the benefit the mother had to fill in a box containing her “reason for claiming” special benefit. She said she had no‑one to support her and there was no other way to obtain support. This was then amplified in her written statement. It is appropriate to infer that had she not made the untrue statements the benefit would not have been paid.
Complaint was made about the Tribunal’s conclusion that “the only inference that can be drawn on the evidence is that the contents of the statement was either a false statement or a false representation”. It was not contended that the inference the Tribunal drew was not an available one. It was only that there were others available – that the statement was mistaken, that the mother believed the statement to be true, that one of the Departmental officers taking the statement made the false or mistaken statement, and that the interpreter made the false or mistaken statement. I do not regard any of these inferences as open on the evidence. The last two are far‑fetched. But even if, contrary to my view, the other inferences were available, that is not to the point, since it was not challenged that the inference drawn was also available.
Natural justice
The final ground of review is that in requiring the applicant to answer certain questions in English, the Tribunal denied him procedural fairness. The great bulk of the applicant’s evidence was given through an interpreter. But the Tribunal ruled that evidence regarding business relationships could be given in English because it related to the applicant’s ability to carry on business in a basically English‑speaking community. He had conducted milk bar businesses in Melbourne for about fifteen years, and his English was adequate for that purpose. He was told that if he had any difficulty understanding a question, he could resort to the interpreter. He did have difficulty, the interpreter intervened, and the balance of the applicant’s evidence was given through an interpreter. The “English interval” occupied four out of sixty‑one pages of transcript, and nothing that was said in the course of it harmed the applicant’s case. In the circumstances, what transpired did not constitute a denial of procedural fairness.
CONCLUSION
Only one of the grounds of review has been made out. For the reasons I have given, had the Tribunal considered the guarantee argument (on the assumption that reg 165 was valid) it could only have rejected it. It is thus pointless for the matter to be remitted to the Tribunal in order that it determine that issue. For the same reason, if the Tribunal erred in failing to decide the invalidity question, there would be no point in requiring it to decide it. As I have said, the parties wanted me to rule on the guarantee argument (which is the same argument raised by both grounds of review) so as to avoid the need to return to the Tribunal. The application must be dismissed. I think it appropriate in the circumstances that the parties bear their own costs. Although the applicant has established an error of law on the part of the Tribunal in not dealing with the guarantee argument, that argument has no merit.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.
Associate:
Dated: 10 December 1999
Counsel for the Applicant:
Dr K L Emerton
Solicitors for the Applicant:
Slater & Gordon
Counsel for the Respondent:
Mr J Lenczner
Solicitors for the Respondent:
Blake Dawson Waldron
Date of Hearing:
25 October 1999
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