Khazma v Dept of Family and Community Services

[2000] FCA 534

FEDERAL COURT OF AUSTRALIA

Khazma v Dept of Family & Community Services [2000] FCA 534

SOCIAL SECURITY – no question of principle.

ABDOUL KHAZMA V DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

NO. N 39 OF 2000

JUDGE:         BEAUMONT J
DATE:           17 APRIL 2000
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 39 OF 2000

BETWEEN:	ABDOUL KHAZMA APPLICANT
AND:	DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	17 APRIL 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        Costs reserved.

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	N 39 OF 2000

BETWEEN:	ABDOUL KHAZMA APPLICANT
AND:	DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	BEAUMONT J
DATE:	17 APRIL 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. This is an appeal brought under s 44 of the Administrative Appeals Tribunal Act 1975 seeking review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 23 December 1999.  In that decision, the Tribunal affirmed a decision of the Social Securities Appeals Tribunal made on 11 January 1999 which had affirmed a previous decision of the Secretary of the Department’s delegate to cancel the applicant’s disability support pension. 

2. By s 146 of the Social Security Act 1991 (“the Act”), it is provided that if the Secretary is satisfied that disability support pension is being, or has been, paid to a person to whom it is not, or was not, payable under that Act, the Secretary is to determine that the pension is to be cancelled or suspended. The decision of the Secretary’s delegate was grounded on the failure of the applicant to qualify under the provisions of s 94 of the Act. Relevantly, s 94(1)(b) provides that a person is qualified for disability support pension if the person’s impairment is of twenty points or more under the Impairment Tables. The impairment tables are contained in Schedule 1B of the Act.

3. The questions of law said to be raised on the appeal are stated by the applicant in his notice of appeal dated 14 January 2000.  The applicant has at all times been unrepresented, but I will deal with the matters raised in the notice of appeal in the context of the general background to the matter which has been outlined in the respondent’s written submissions, dated 14 April 2000, which have been marked “1” for identification. 

4. The first question of law said to be raised in the appeal by the applicant is:

   “The decision is not right.  After the accident, I have had problems in my back, legs, left ankle and neck.  I also have hearing problems.  More than the physical injuries, the accident affected me more mentally.”

5. In my opinion, this issue could only raise a question of law if it could be demonstrated that the Tribunal either failed to address the correct legal question or that its decision was perverse, in the sense that no reasonable Tribunal could reasonably have come to such a conclusion.  With the benefit of submissions from both parties and after reading the reasons of the Tribunal the subject of the appeal, I am of the view that neither of the supposed legal errors has been demonstrated in the present case.  The questions sought to be agitated in this part of the notice of appeal are, in their character, questions of fact only, and are not within this Court’s jurisdiction.

6. The second ground of appeal is as follows:

   “I was on a pension (due to the accident) for 10 years before they took me off the pension.  Their doctor said that I was fit for 8 hours work per week.  My doctor said that I was not fit for work.  They didn’t take my doctor’s opinion into account.”

7. Again, I am of the opinion that no question of law arises here.  These were factual issues which were actually addressed by the Tribunal, and resolved in the course of its reasoning process.

8. The third ground of appeal is as follows:

   “When I went for the first Tribunal hearing, I had no medical reports.  They gave me time to get a specialist report and in a subsequent hearing, I produced a medical report.  This report said that I was unfit for work.  At the hearing, they ignored this report and took a very long time to make a decision.  Two months later they handed down the decision.”

9. So far as this ground relies upon a medical opinion to the effect that the applicant was unfit for work, it raises a similar issue of fact to those issues that I have previously considered.  That is to say, no question of law is thereby tendered. 

10. However, the reference to “a very long time to make a decision” could raise possibly a question of law if there was some factual basis for it.  But, as this ground goes on to state that the decision was given two months later, in my opinion, there was no breach of the rules of natural justice in this connection.

11. The final ground of appeal raised is as follows:

    “The Tribunal didn’t give me enough time to prepare my case.  They rushed through the hearing and didn’t give me a fair go.”

12. It appears that the hearing of the matter before the Tribunal took place on 11 October 1999.  The hearing itself took something over an hour.  However, before that hearing there were a number of preliminary conferences.  There was a conference held on 27 April 1999.  On 15 June 1999, and 30 July 1999, there were telephone conferences.  In each of those preliminary conferences, the issues to be canvassed at the hearing were discussed.  In my opinion, there is no foundation at all for the suggestion that the Tribunal denied the applicant natural justice in any of these respects. 

13. It must follow, therefore, that the application must be dismissed. 

14. I reserve costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             May 2000

Solicitor for the Applicant:	Applicant appeared in person
Solicitor for the Respondent:	Mr G Peek, Australian Government Solicitor
Date of Hearing:	17 April 2000
Date of Judgment:	17 April 2000