Kane and Naylor and Anor
[2015] FCCA 2075
•6 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KANE & NAYLOR & ANOR | [2015] FCCA 2075 |
| Catchwords: CHILD SUPPORT – Administrative Appeals Tribunal (Social Services and Child Support Division) – appeal from a decision of the AAT in a child support first review – no error of law found. |
| Legislation: Administrative Appeals Tribunal Act 1975, s.44 Child Support (Assessment) Act 1989, s.117 Child Support (Registration and Collection) Act 1988, ss.110B, 110G, 110K |
| Child Support Registrar & Crowley and Anor [2015] FamCAFC 76 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198 Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Waterford v Commonwealth (1987) 163 CLR 54 |
| Applicant: | MR KANE |
| First Respondent: | MS NAYLOR |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRC 8796 of 2010 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 29 May 2015 |
| Date of Last Submission: | 10 July 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 6 August 2015 |
REPRESENTATION
| Counsel for the Appellant: | Ms McMahon |
| Solicitors for the Appellant: | Boe William Anderson |
| The First Respondent appeared in person |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
That the Further (Amended) Notice of Appeal (Child Support) filed 1 May 2015 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Kane & Naylor & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 8796 of 2010
| MR KANE |
Applicant
And
| MS NAYLOR |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from a decision of the Social Security Appeals Tribunal (as it then was) (“the Tribunal”).
The grounds for appeal are set out in the Further (Amended) Notice of Appeal (Child Support) filed 1 May 2015. They are:
“[1] The Tribunal erred in law by taking into account the irrelevant opinion of the first respondent as to signs of ill health (physical or mental)
[2] The Tribunal erred in law by asking itself the wrong questions insofar as it dealt with the evidence of the applicant.
[3] The Tribunal erred in law by denying the applicant procedural fairness in the exercise of its powers pursuant to Part 4, Division 4 of the Social Security (Administration) Act 1999.”
The Addendum to the Further (Amended) Notice of Appeal (Child Support) filed 1 May 2015 amended ground 3 to read as follows:
“[3] The Tribunal erred in law by denying the applicant procedural fairness in the exercise of its powers
pursuant to Part 4, Division 4 of the Social Security (Administration) Act 1999under Part VIIA of the Child Support (Registration and Collection) Act 1988.”
Background
The factual background to this matter is adequately summarised in the submission of the Child Support Registrar filed 22 May 2015, at paragraphs 8 – 33 (inclusive) of those submissions:
“SSAT decision
[8] The First Respondent, Ms Naylor, and the Applicant, Mr Kane are the parents of X, Y and Z (SSAT decision at [1]). The child support assessment for the children was registered on 29 June 2005.
[9] The administrative assessment of child support for the period commencing on 1 September 2013 required Mr Kane to pay the annual rate of $10,300. This was based on the parents’ 2012/2013 adjusted taxable incomes: $69,588 for Mr Kane, and $40,223 for Ms Naylor (SSAT decision at [2]).
[10] On 21 October 2013, Mr Kane applied for a departure from the administrative assessment for the period from 1 August 2010 to ‘ongoing’. Mr Kane said he believed that Ms Naylor’s actual income must be higher than around $40,000, given that she had recently purchased a home for some $423,000. She would need a higher income to service a loan for such a property. He suggested she was salary sacrificing to reduce her taxable income. He asked the Child Support Agency to find out what income Ms Naylor had declared to her bank to obtain the loan, and use that income in the child support assessment (SSAT decision at [3]).
[11] Ms Naylor cross-applied on the basis that Mr Kane had additional financial resources available to him because his partner and her son were contributing to his living costs (SSAT decision at [4]).
[12] On 11 December 2013, a Senior Case Officer refused to make a departure from the administrative assessment (SSAT decision at [5]).
[13] On 20 December 2013, Mr Kane resigned from his job with effect from the close of business on 6 January 2014. Mr Kane told the SSAT that he remains unemployed (SSAT decision at [6]).
[14] On 3 January 2014, Mr Kane objected to the Senior Case Officer’s decision. On 14 March 2014 an Objections Officer allowed the objection and made a departure from the administrative assessment for a short period. The Objections Officer set Mr Kane’s adjusted taxable income at nil for the period 28 February to 5 March 2014. The rationale for this timeframe was that leave payments that Mr Kane received when this employment ended supplied him with the equivalent of his former income for the period to 27 February 2014, and then from 6 March 2014 Mr Kane had lodged a current income estimate of nil. The annual rate, based on an income of nil for Mr Kane went down to $346 (SSAT decision at [7]).
[15] Ms Naylor applied to the SSAT for a review of the objection decision. She contended that Mr Kane should be assessed on an earning capacity basis, such that he is treated as still having the income he had in his previous employment. Mr Kane, on the other hand, agreed with the Objections Officer’s decision (SSAT decision at [8]).
[16] By its decision of 26 June 2014, the SSAT decided to set aside the objection decision and substituted a new decision that for the period 15 January 2014 to 31 July 2015 (SSAT decision at page 11):
Mr Kane’s adjusted taxable income is set at $69,588;
Ms Naylor’s adjusted taxable income is set at $47,865;
The annual rate of child support is to be varied to the rate that would be payable on these incomes under the child support formula if Y and Z (and not X) were the only children of the assessment.
[17] Significantly for the purposes of this appeal, the SSAT decision set the Applicant’s adjusted table (sic) income at $69,588 for the period, based on an assessment of his earning capacity.”
SSAT’s reasons for decision
[18] The Registrar submits that the SSAT correctly summarised the issues it had to determine as being (SSAT decision at [11]):
[18.1] whether a ground for departure from the administrative assessment exits
[18.2] whether a departure from the administrative assessment would be just and equitable
[18.3] whether a departure from the administrative assessment would be otherwise proper.
[19] In addressing the first issue, the SSAT found that a ground of departure was established under ss 117(7B)(b)(ii) and (c) of the Assessment Act as the Applicant’s resignation was not justified on the basis of his state of health and he did not demonstrate that affecting the administrative assessment of child support was not a major purpose of his resignation (SSAT decision at [12]-[28]).
[20] The evidence before the SSAT when determining whether the Applicant’s resignation was justified on the basis of his state of health included two short letters from Dr T, General Practitioner, dated 24 October 2013 and 21 May 2014 and the Applicant’s oral evidence to the SSAT (SSAT decision at [17]-[19]). Dr T’s first letter did not state that Mr Kane was unable to continue his job. The most it said was that the job was affecting his health, and that it would be in his best interests to change the employment. The second letter says that Mr Kane’s ability to work and seek employment is affected, but it does not explain whether the effect is substantial (SSAT decision at [22]).
[21] The evidence relied upon by the Applicant before the SSAT did not provide details of the medical conditions the Applicant suffered from, in what way or ways they affected the Applicant’s capacity to work, or to what extent his capacity to work was affected. The Applicant was unwilling to disclose details of his state of health unless they could be withheld from the First Respondent (SSAT decision at [19]).
[22] The SSAT determined that because of the need for procedural fairness, it would not be appropriate to take evidence from the Applicant or Dr T that would be withheld from the First Respondent. The SSAT brought to the Applicant’s attention that if he refused to provide details about his medical conditions and how they affect his work capacity, the SSAT may not be satisfied that his resignation was justified on the basis of his state of health. The SSAT also pointed out that non-disclosure orders had been made earlier in the course of the review proceedings. Despite this, the Applicant declined to provide any further details of his conditions and how his capacity was affected (SSAT decision at [20]).
[23] The SSAT also heard oral evidence from the First Respondent who said that she had occasion to observe the Applicant, for example, when dropping the children off for contact. The First Respondent said she had not seen any sign of ill health, physical or mental, though she did infer from the Applicant’s casual dress that he had quite a bit of time off work in 2013. The First Respondent was also aware that the Applicant had been taking the children on outings to cinemas and theme parks (SSAT decision at [21]).
[24] The SSAT found that, on the basis of the available evidence, it was not satisfied on the balance of probabilities that the Applicant was ill to the extent that he had to resign. Consequently, the SSAT held that the Applicant’s resignation was not justified on the basis of his state of health (SSAT decision at [23]).
[25] The SSAT then considered whether the Applicant had demonstrated that it was not a major purpose of his decision to resign to affect child support. The SSAT considered a Child Support Agency file note dated 17 September 2013 which showed that the Applicant was contemplating leaving work for health reasons. However, the SSAT determined that the fact that the Applicant made this enquiry did not establish that he later resigned for health reasons. Having rejected the Applicant’s sole explanation of why he resigned, namely, ill health, the SSAT did not accept the Applicant’s assertion that he resigned for a purpose other than affecting the child support assessment (SSAT decision at [24]-[25]).
[26] The SSAT considered that there were special circumstances in this case in that the Applicant, without justification, resigned from a job and became unemployed (SSAT decision at [27]).
[27] The SSAT then found that it would be just and equitable to depart from the administrative assessment following a consideration of the relevant factors outlined under s 117(4) of the Assessment Act (SSAT decision at [65]-[72]).
[28] This specific aspect of the SSAT’s decision was made on the basis of the following findings of fact:
[28.1] The two younger children attend state schools and do not have any special needs or unusual costs (SSAT decision at [31]).
[28.2] On the current minimal rate of child support, the First Respondent is unable to afford discretionary items for the children, such as holidays, sports and movie outings (SSAT decision at [32]).
[28.3] X has been in paid employment, normally earning $377.65 a week, since some time in January 2014 (SSAT decision at [33]).
[28.4] X primarily lives with the First Respondent but stays with her parents three nights per fortnight while she works night duty (SSAT decision at [36]-[38]).
[28.5] The First Respondent earned $46,481 over 11.5 months according to a payslip dated 18 June 2014 (SSAT decision at [43]).
[28.6] The First Respondent is making weekly payments for ‘mortgage’ to her parents but it is an arrangement with a degree of latitude if needed (SSAT decision at [56]-[58]).
[29] After considering the Applicant’s financial circumstances, the SSAT determined that the Applicant should be treated as if he still has an adjusted taxable income of $69,588. The start date for this income figure in the departure decision was 15 January 2014 and this income figure was to apply until 31 July 2015 (SSAT decision at [66]-[67]).
[30] The SSAT also determined that, in light of the increase in the First Respondent’s income, it was appropriate to set her income at the 2013/2014 level of $46,865. The appropriate period in the SSAT’s view was 15 January 2014 to 31 July 2015. The increase was based on applying a 19% increase calculated from a payslip dated 18 June 2014. This is because the earnings in the year to date were equivalent to approximately $48,500 over twelve months (SSAT decision at [45] and [69]).
[31] The SSAT also considered that it was appropriate to, in effect, eliminate the child support for X for the period 15 January 2014 to 31 July 2015 as X began paid employment from mid-January 2014. This was achieved by specifying that the rate of child support to be paid is the rate that would be payable if Z and Y were the only children of the assessment (SSAT decision at [70]).
[32] The SSAT then found that it would be otherwise proper to depart from the administrative assessment following a consideration of the relevant factors outlined under s 117(5) of the Assessment Act (SSAT decision at [73]-[76]).
[33] The SSAT determined that the proposed departure determination, for the most part, increased the rate of child support to be paid by the Applicant. This would reduce the First Respondent’s entitlement to a family tax benefit. Consequently, increasing the rate of child support would appropriately shift more of the cost of raising the children from the community to the parents (SSAT decision at [74]).”
[Footnotes omitted.]
The Nature of the Appeal
The right to appeal is provided to the appellant pursuant to s.110B of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Collection Act”) and is limited to an appeal “on a question of law”.
Halligan FM (as he then was) in LDME & JMA (SSAT Appeal) [2007] FMCAfam 712, noted that there is a connection between the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and the Child Support legislation. His Honour observed at paragraph [21]:
“[21] … in determining the meaning and operation of provisions of Division 3 [of Part VII of the Collection Act, which includes ss 110B and 110G], decisions as to the meaning and operation of equivalent provisions of s.44 will provide valuable guidance.”
Appeal on a question of law is, as noted in the submissions of the Child Support Registrar, is more limited in scope than an appeal that involves a question of law (Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at [31]).
The point is, where an appeal lies on a question of law, the subject matter of the appeal is the question of law.
The Full Court of the Federal Court of Australia in Rana v Repatriation Commission (2011) 126 ALD 1 at [11] – [14] noted:
“[11] … The need for a notice of appeal to specify a question of law is not just a matter of pleading. In the absence of a question of law there is no subject matter for the appeal and the Court has no jurisdiction to entertain the proceeding.
…
[14] [When scrutinising the grounds specified in a notice of appeal] care must be taken … not to visit on a respondent party a judicially attractive question of law which the notice does not fairly raise, there is authority which would support the reading as a whole and in context of a notice of appeal so as to give precision to an inelegantly specified question of law: Ergon Energy Corporation Ltd v Federal Commissioner of Taxation [2006] FCAFC 125; (2006) 153 FCR 551 at [50] per Sundberg and Kenny JJ.”
The Full Court of the Family Court have also considered the nature of the appeal in the Child Support Registrar & Crowley and Anor [2015] FamCAFC 76 at [24] and [26], where their Honours noted:
“[24] A consequence of the confined nature of appeals from the Tribunal to the FCCA is a requirement that the grounds of appeal to that court be drawn with particular precision and with a precision which bears that restriction firmly in mind.
…
[26] The grounds of appeal from the decision of the Tribunal with which the primary Judge was concerned here exhibit a failure to appreciate the confined nature of the appeal to the FCCA from a decision of the Tribunal. Many of the grounds assert errors of fact not law and such errors of law as were asserted were not pleaded with clarity and precision. Indeed, a proper analysis of the grounds by his Honour could have permitted the appeal against the decision of the Tribunal to have been dismissed peremptorily on that basis.”
The Leave to Adduce Further Evidence
The appellant seeks to adduce evidence filed in an affidavit on 1 May 2015. The evidence is a series of annexures that set out medical certificates, letters from doctors and reports of doctors. This material was not before the Tribunal.
The Child Support Registrar relied on Waterford v Commonwealth (1987) 163 CLR 54 at [28] which held that evidence may not be received under s.44(8) of the AAT Act (analogous to s.110G(2) of the Collection Act) for the purpose of demonstrating that the Tribunal made an error or errors of fact:
“… The error of law which an [applicant] must rely on to succeed must arise on the facts as the A.AT. (sic) has found them to be or it must vitiate the findings made or it must have led the A.AT. (sic) to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact. …”
This was supported by a further decision of Rana v Repatriation Commission (supra) at paragraph [20]. The Full Court of the Federal Court said there was “a limited scope for the reception of further evidence” in a s.44 appeal. The Court went on to explain:
“[20] … The further evidence must, as the Full Court observed in Phillips’ Case [Phillips v Commissioner for Superannuation [2005] FCAFC 2], have a tendency, if admitted, to demonstrate an error of law. … In contrast, further evidence which touched on a matter of evaluative judgment on the factual merits of a claim would not be admissible, save perhaps exceptionally for the very limited purpose of underscoring why it was that, in the event that a question of law were answered as an applicant contended, a remitter of the matter to the Tribunal for rehearing would not be an exercise in futility.”
The present affidavit of Mr Kane, filed 1 May 2015, falls into the category described by his Honour, Brennan J, in Waterford v Commonwealth (supra).
The evidence in that affidavit relates to the appellant’s medical condition. It really goes to supplementing the facts that were before the Member. If, on perusal of that, there was a view that the Member made a wrong finding of fact, that would not be something that was appealable.
Therefore the appellant, in my view, cannot supplement the record by adducing fresh evidence to demonstrate an error of fact. As a consequence, I will not give leave to the appellant to adduce the evidence of Mr Kane.
Ground 1
Ground 1 reads as follows:
“[1] The Tribunal erred in law by taking into account the irrelevant opinion of the first respondent as to signs of ill health (physical or mental)”
The submissions of the appellant filed 1 May 2015 note that the Member requested of the first respondent “Do you have any knowledge about Mr Kane’s health?”. The first respondent replied “No, I do not”.
At paragraph [21] of the reasons for decision, the Member recorded the opinion of the respondent and in particular, noted that she had “… not seen any sign of ill health, physical or mental …”. The Member noted that the first respondent is “a (occupation omitted)”.
The Law
I accept the submission of the Child Support Registrar, who cited the Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at [287] where the Court observed that statements of reasons should be read benignly, without “an eye keenly attuned to the perception of error”.
I note that the High Court has considered relevancy grounds and indicated that they only apply where the decision maker was bound to take the omitted factor into account, or forbidden to consider an included fact.
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, the Court recorded:
“(a) The ground of failure to take into account a relevant consideration can only be made out if a decision·maker fails to take into account a consideration which he is bound to take into account in making that decision … The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [[1948] 1 KB 223 at 228], that a decision-maker must take into account those matters which he “ought to have regard to” should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion “must call his own attention to the matters which he is bound to consider”.”
Section 117(7B)(b) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) does not require the Court to have regard, or to disregard, any particular matters when determining whether a parent’s change in working pattern is not justified on the basis of the parent’s state of health.
In the present case, the first respondent’s evidence is set out as part of the Tribunal’s consideration about whether the appellant’s resignation was justified on the basis of the appellant’s state of health. The Tribunal expressly referred to the evidence from the doctor as being scant, when the Tribunal rejected the appellant’s assertion that he was too unwell to continue his job.
The Tribunal then went on to consider the available evidence, which would have included the first respondent’s evidence of what she observed on the appellant, and concluded that it did not provide a basis to satisfy the Tribunal on the basis of probability that the appellant was ill to the extent that he had to resign.
I am satisfied that there was no prohibition on considering that evidence and there is no error of law demonstrated.
Ground 2
Ground 2 reads as follows:
“[2] The Tribunal erred in law by asking itself the wrong questions insofar as it dealt with the evidence of the applicant.”
The appellant submits that the error is clear when regard is had to the other material that was available to the Member. Paragraph [13] of the submissions of counsel for the appellant states:
“[13] The error is clear when regard is had to the other material that was available to the Member. The applicant explained that he:
1. only has a ‘year 12 certificate’ as his educational qualifications;
2. obtained a traineeship with the organisation that became Centrelink (P-79, L12);
3. worked for the same organisation for 21 years (P-79, L16);
4. his health had deteriorated “to the point where I am currently not able to work at the moment” (P-79, L17);
5. he had purchased a property in August 2013 (P-96, L41).”
The appellant’s counsel submits that the employment history of the appellant and his financial circumstances and commitments were relevant matters to take into account in evaluating his assertion as to his reason for ceasing his employment. Counsel submits that rejecting the assertion only on the basis of medical evidence was an error of law.
I note the assertion that a decision was against the evidence and the weight of evidence does not give rise to a question of law (Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198).
The threshold necessary to establish that a decision was so unreasonable that no logical, reason, rational decision maker could arrive at the same decision on the same evidence is very high. This is borne out by the High Court’s decision in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [129] – [133]:
“[129] It can be acknowledged that the contemporary invocation of “illogicality” or “irrationality” as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in Applicant S20, as a reaction to the ouster of the review ground of “Wednesbury unreasonableness” in immigration law. Equally it may be that the development of “irrationality” as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of “illogicality” or “irrationality” must mean something other than emphatic disagreement as explained above by reference to Eshetu and Applicant S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do “illogicality” and “irrationality” fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is “clearly unjust”, “arbitrary”, “capricious” or “Wednesbury unreasonable”?
[130] In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Was the Tribunal’s fact finding “illogical” or “irrational”?
[132] Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal’s finding that the first respondent’s return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.
[133] However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. There was evidence that the first respondent was married with four children and that he regularly visited Pakistan to see his family after the time at which he said he commenced, as he put it, “the practice of homosexuality” in the UAE. In particular, he visited his family for three weeks before coming to Australia. During the time when he said he engaged in the “practice of homosexuality” in the UAE, and when he visited the United Kingdom, the evidence was that under both civil law and Shari’a in the UAE homosexual activity was criminalised. The first respondent also gave comprehensive evidence of homosexual activity in the UAE which was uncorroborated. The Tribunal saw the first respondent give evidence and sought answers and explanations from him. Such was the evidentiary context in which the Tribunal determined that the first respondent’s conduct, first in returning to Pakistan and secondly in failing to seek asylum in the United Kingdom, was conduct which was inconsistent with his claimed fears of persecution as a result of homosexuality.”
[Footnotes omitted.]
The decision maker took into account:
a)The appellant’s employment history at paragraph [17];
b)The circumstances generally of his resignation and the state of his health at the time, at paragraphs [17], [18] and [22];
c)The evidence of his current state of health at paragraphs [17] and [20];
d)The reasons for not providing additional evidence at paragraphs [19] and [20]; and
e)His financial circumstances and commitments at paragraphs [61] – [64].
I am not persuaded that the Tribunal made an error of law by failing to take into account all relevant considerations, given the analysis that the Member provided of the factors that were considered.
Ground 3
Ground 3 reads as follows:
“[3] The Tribunal erred in law by denying the applicant procedural fairness in the exercise of its powers under Part VIIA of the Child Support (Registration and Collection) Act 1988.”
The Tribunal was considering letters from the general practitioner Dr T, dated 24 October 2013 and 21 May 2014. The Tribunal goes on at paragraphs [19] and [20] to say:
“[19] It can be seen that the letters are brief, and give no details of what the conditions are, in what way or ways they affect Mr Kane’s capacity to work, and to what extent his capacity is affected. It is apparent from Mr Kane’s oral evidence that the doctor avoided specifying the conditions at Mr Kane’s request. Mr Kane told the Tribunal he does not want Ms Naylor to know the nature of his conditions. He said he is worried that she would pass the information on to the children, and use the information against him in family law proceedings. He said he would be happy to disclose the details to the Tribunal, in the absence of Ms Naylor, if he was sure she could not obtain the details under a freedom of information request. He would also be happy for the Tribunal to obtain the information from his doctor on the same basis.
[20] Because of the need for procedural fairness, it would not be appropriate for the Tribunal to take evidence from Mr Kane or his doctor that was to be withheld from Ms Naylor. The Tribunal told Mr Kane that it would not be taking evidence in such a manner, and it brought to his attention that if he refused to provide details about his medical conditions and how they affect his work capacity, the Tribunal may not be able to be satisfied that his resignation was justified on the basis of his state of health. The Tribunal also pointed out to Mr Kane that non-disclosure orders made earlier in the course of the review proceeding prohibited the release of information obtained at a hearing by a party to other persons. The Tribunal had also pointed out to Mr Kane the shortcomings of the first medical report at the telephone directions hearing. Despite all this, Mr Kane declined to provide any details, although in his closing submissions he mentioned that was (sic) having trouble walking ‘today’.”
It is noted, in the documents that were produced under s.110K, that the Tribunal issued directions requiring the appellant to provide the following before close of business on 3 June 2014:
“Any further letter/s or statement/s that Mr Kane wishes to provide from his doctor, other health professionals, and/or supervisor/s about why he left his previous employment, whether he could have transferred to another job with the same employer, and any current restrictions on his capacity to engage in employment.”
It is noted, the Child Support Registrar provides authority to support his submissions at paragraphs [113] and [114] of his submissions:
“[113] Greenwood J in Wecker v Secretary, Department of Education Science and Training (2008) 168 FCR 272; affirmed that the general law relating to the obligation of a decision-maker to make inquiries when reaching a decision applied also to the AAT, and would seem pertinent to the position of the SSAT. The frequently cited statement of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 was applied:
It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court finds that the sounder course would have been to make inquiries. But in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.
[114] Flick J made the following observations in SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22 at 29 in regard to the Refugee Review Tribunal but they would again seem pertinent to the position of the SSAT also:
Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce… And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual.”
In the present case, the appellant had a non-disclosure order, made earlier in the course of the review proceedings, that would have prevented the first respondent from using the material in any other forum. The Member provided an indication of the deficiencies in the available evidence, the importance of obtaining further evidence, and the topics the further evidence should address. The Member further detailed the potential adverse consequences for the appellant, should no further evidence be adduced. Furthermore, the Member indicated to the appellant that he had limited appeal rights. The Member also informed the appellant of the capacity to require a person to produce evidence but the appellant said that he did not want the Member to do that in relation to his medical evidence.
In my view, the appellant cannot now turn around and say that the Member should have used its own powers to obtain evidence from the doctors that the appellant specifically indicated he did not want produced.
I am satisfied that the appellant has failed to demonstrate that there is an error of law on the basis of failing to afford the appellant procedural fairness. In the face of the appellant’s request that the information obtained from his doctor not be shared with the first respondent, the Member was in a position where the Member could not comply with that request. Even when the Member indicated that he, himself, could obtain the information, the appellant sought that the Member not do that.
I am therefore not persuaded that this forms a basis for an appeal now.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Associate:
Date: 6 August 2015
2
15
4