Khan v Secretary of Department of Family and Community Services

[2005] FCA 873

FEDERAL COURT OF AUSTRALIA

Khan v Secretary of Department of Family and Community Services [2005] FCA 873

YOUMNA KHAN v SECRETARY OF DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
NSD 4 of 2005

WILCOX J
23 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 4 OF 2005

BETWEEN:	YOUMNA KHAN APPLICANT
AND:	SECRETARY OF DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	23 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        Leave be granted for Mr Sher Afzal Khan to appear for the applicant.

2.The application for extension of time to appeal be refused.

3.The proceeding be dismissed.

4.The applicant, Youmna Khan, pay the costs of the respondent, the Secretary of the Department of Family and Community Services.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 4 OF 2005

BETWEEN:	YOUMNA KHAN APPLICANT
AND:	SECRETARY OF DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	WILCOX
DATE:	23 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 4 January 2005, Youmna Khan filed in this Court a notice of appeal against a decision of the Administrative Appeals Tribunal (‘the Tribunal’) given on 30 November 2004.  It was not clear that this document identified a question of law.  Accordingly, a direction was made on 22 February 2005 for the filing of an amended notice of appeal clearly identifying the question of law relied on by the applicant.  An amended notice of appeal was filed on 1 April 2005.  The only ground set out in that document was stated in this way:

   ‘2.  The AAT Member made error in law to make the decision.  He has ignored the period I was entitled for benefit. 

   3.  The debt was raised by error of Centrelink Administration.’

2. The respondent to the proceeding, the Secretary of the Department of Family and Community Services, took the point that the original notice of appeal was filed out of time. Section 44(2A)(a) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) provides for an appeal to this court on a question of law to be instituted:

   ‘not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows.’

3. The 28 day period expired on 28 December 2004.  The original Notice of Appeal was filed on 4 January 2005, a week later.

4. At a directions hearing conducted on 13 April 2005, the solicitor for the respondent, Ms Dale Watson, whilst maintaining the point, recognised the Court’s power to extend time.  However, she submitted this power should not be exercised because no question of law had been identified.  Accordingly, any extension of time would be futile.  I reserved that matter for argument at the hearing.

5. When the matter was called for hearing today, the applicant’s husband, Mr Sher Afzal Khan, sought leave to appear on her behalf. I granted this leave and pointed out the importance of him identifying a question of law. I referred him to s 44(1) of the AAT Act, which provides that:

   ‘A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.’

   I explained to Mr Khan that this Court has no general appellate jurisdiction, in respect of Tribunal decisions, and no jurisdiction to review the Tribunal's findings of fact.

6. Prior to the hearing, Mr Khan filed a written submission.  This submission dealt, at some length, with the history of the matter.  It made clear that the applicant did not accept the Tribunal's findings of fact.  However, the question was whether there was an error of law.

7. After some discussion, it emerged that the applicant contended this was a case where the Tribunal reached a conclusion that was unsupported by any evidence.  Something approaching this had been, at least, suggested in the original notice of appeal.  The following statement was made:

   ‘There was no evidence for establishing I was earning any amount from Oriental Import and Export during the sickness benefit period in 1988.’

8. ‘Oriental Import and Export’ is a reference to a company called Oriental Import and Export Pty Ltd.  Material before the Tribunal showed that, during the relevant years, the company was trading and Mr and Mrs Khan were the sole shareholders.

9. The question before the Tribunal was whether Mrs Khan should be obliged to repay to Centrelink monies paid to her as sickness benefit between 2 April 1987 and 8 March 1988.  At that time, a person was qualified to receive a sickness benefit if he or she satisfied the Secretary that, throughout the relevant period, he or she was incapacitated for work by reason of sickness or accident (being an incapacity of a temporary nature) and, thereby, suffered a loss of salary, wages or other income; or, but for the incapacity, would be qualified to receive an unemployment benefit in respect of the relevant period. 

10. The claim made by the respondent, and accepted by the Tribunal, was that Mrs Khan did not meet either of these qualifications.  She had not demonstrated she suffered a loss of salary, wages or other income, or would have been entitled to unemployment benefit, in the relevant period.  The respondent contended she was engaged in the company’s business throughout the period. 

11. Exactly what income Mrs Khan took from the business during the relevant period is unclear.  However, there seems to be nothing to indicate a loss of income, as a result of the incapacity she claimed to have suffered in 1987 and 1988.  The company was trading profitably at that time.  During those years, Mr Khan was overseas for substantial periods of time.  It was suggested that, in his absence, Mrs Khan was running the business.

12. The material before the Tribunal might have led other decision‑makers to take a different view of the facts; perhaps some may have drawn a different inference from the documents.  However, it is impossible to hold that the Tribunal's decision was unsupported by evidence.  There was evidence that would justify the Tribunal finding that Mrs Khan had failed to demonstrate an entitlement to sickness benefit on either basis.

13. It is relevant to note that the Tribunal was not impressed with the evidence given to it by the applicant and her husband.  In para 24 of its reasons for decision, the Tribunal gave reasons for rejecting that evidence.  This was a conclusion of fact.  It is not reviewable in this Court.

14. Ms Watson may be correct in saying that no question of law has been identified.  However, even if I accept that there is an identified question of law (no evidence to support the Tribunal's conclusion), this ground of appeal must fail. 

15. I have considered the whole of the matter, on its merits, and, for this purpose, given Mr Khan a full opportunity to put his arguments in support of the appeal.  I preferred to take that course in a case where the lateness in filing was only a few days (and over the Christmas period at that) and the applicant is not legally represented.  If I were to grant an extension of time, and then deal with the appeal on its merits, I would come to the conclusion that the proceeding must be dismissed. 

16. Mr Khan indicated he had further documents, which were not available at the time of the Tribunal's hearing, which would assist the case.  I did not look at these documents.  It was not appropriate for me to do so.  The Court would not be justified in intervening in the case simply to allow the applicant to go back to the Tribunal with additional evidence. 

17. The dispute about repayment of the applicant’s sickness benefit has been going on for several years.  The case has been before the Social Securities Appeal Tribunal on two occasions and once before the Tribunal.  It would be strange for new material to come to light at this stage.  Be that as it may, no question of law arises.

18. I refuse the application for an extension of time to appeal.  The proceeding is dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             6 July 2005

Mr Sher Afzal Khan appeared for the applicant with leave of the Court.
Solicitor for the Respondent:	Ms D Watson of Australian Government Solicitor
Date of Hearing:	23 June 2005
Date of Judgment:	23 June 2005