MATEREK v Dfacs - [2003] FMCA 14

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MATEREK v DFACS

[2003] FMCA 14

ADMINISTRATIVE LAW – Whether misinterpretation of legislation error of law – reference to policy of respondent relevant question of law – relevance of alleged assurance by representative of respondent.

COSTS – Relevance of willingness of respondent to forego costs if application withdrawn before final hearing.

Administrative Appeals Tribunal Act 1975, s.44

Waterford v Commonwealth of Australia [1987] 163 CLR 54
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) (Fed C of A Full Court 62 of 1992, 29 April 1994 unreported)
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334, 35 ALR 186
Yusuf v Minister for Immigration and Multicultural Affairs (2001) 206 CLR at 323

Applicant:

KRISTYNA MATEREK

Respondent:

SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

File No:

MZ 567 of 2002

Delivered on:

8 January 2003

Delivered at:

Melbourne

Hearing Date:

8 January 2003

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr J. Lenczner

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the notice of appeal be dismissed.
The applicant shall pay the respondent's costs of the application, including reserved costs, if any, before the transfer of the application by the Federal Court in accordance with the Federal Court Scale and thereafter costs to be paid, including any reserved costs, pursuant to schedule 1 of the Federal Magistrates Court Rules with all costs to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules.
Certify pursuant to rule 21.15 of the Federal Magistrates Court Rules that it was reasonable for the respondent to employ an advocate to appear in these proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 567 of 2002

KRISTYNA MATEREK

Applicant

And

SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application filed by KRISTYNA MATEREK (the Applicant) on 3 May 2002 seeking to appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) from a decision made by the Administrative Appeals Tribunal (the AAT) on 8 April 2002. The application was filed in the Federal Court of Australia on the date to which I referred and was then subsequently transferred to this court by order of the Federal Court made on 11 June 2002.
The matter was then before this court on a number of occasions when it was further adjourned. I note for the record that on 2 August 2002 the application was adjourned for further directions on 23 August 2002. On 23 August 2002 the matter was further adjourned to 18 November 2002 and then on 18 November 2002 the matter adjourned for hearing this day.
It is noted that throughout the time that the application was before this court the applicant, who has been assisted by an interpreter in this application, has not been represented. It is also evident when the matter has been before the court, that the applicant has not obtained legal advice in relation to this application and has indicated, and I accept for the present purposes, that she has not obtained the benefit of legal advice as a result of her not being able to afford that advice.
Hence, the task of the court in considering the merits of this application is made more difficult by the fact that the applicant is both unrepresented and is not fluent in the English language. It is an extremely difficult process for the Court to adjudicate matters of this kind, particularly where the application relates to the principles which apply in determining whether or not there is a question of law which can be said to truly arise from the decision of the tribunal which is the subject of this appeal.
In the circumstances I have made due allowance for the fact that the applicant is unrepresented and is not fluent in the English language and have done my best to determine the true nature of the questions of law said to arise from the decision of the AAT.
In brief terms, it is common ground that the matter that was before the tribunal, which was the subject of a decision on 8 April 2002, was an application by this applicant for review of a decision by the Social Security Appeals Tribunal (the SSAT) dated 17 October 2001. That tribunal had affirmed a decision by the respondent dated 13 August 2001 whereby the respondent refused to grant a discretionary extension of a disability support pension to the applicant and decided that the applicant was not severely disabled at the time of her departure from Australia on 11 October 2000.
It seems to be common ground, both before this court and indeed before the AAT, that the applicant had been in receipt of a disability support pension from 5 October 1995. As indicated, she departed Australia for Poland on 11 October 2000 and at that time had a return ticket for 16 January 2001.
By 10 April 2001 the applicant had been overseas for a period of some 26 weeks. There is some dispute about whether she then requested an extension of the disability support pension. But in any event, it was considered that there was such an application and the respondent made a decision that there would not be an extension of the disability support pension to the applicant. At that time the decision by the respondent to reject what was said to be a request for extension of the pension was made on the basis that there was no evidence that the applicant's medical condition had deteriorated to such an extent that she could not return to Australia. She was assessed as being not severely disabled for the purposes of the legislation.
In her application, which was filed, as I indicated, in the Federal Court on 3 May 2002, the applicant states in relation to questions of law the following:
“The tribunal erred in law in assessment of pension deductions because of time spent overseas/interpretation of the relevant Act”.
An outline of submissions by the Respondent was filed pursuant to orders made by the court on 18 November 2002. I further received a typed outline of submissions from the applicant dated 5 January 2003 which likewise had been filed with the court pursuant to the order made on 18 November 2002.
In the outline of submissions of the applicant it is clear to me that a number of the issues raised in that document and in oral submissions before this court this day may fairly be construed as submissions relating to issues of fact. It should further be noted that during the course of her submissions this day, in particular by way of reply to those submissions made by counsel for the respondent, the applicant expressed what I accept to be the sincerely-held view that the AAT had based its decision on facts which were not correct.
When considering an application of this kind it is appropriate that the court has regard to s 44 of the AAT Act. That section provides that the appeal to this court in relation to proceedings before the tribunal is an application or an appeal on a question of law. Counsel for the respondent referred me to the often quoted authority of the High Court in the matter of Waterford v Commonwealth of Australia [1987] 163 CLR 54 where at page 70 his Honour Brennan J says the following:
“A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia from any decision of the tribunal in that proceeding but only ‘on a question of law’. The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT 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.”
In the present case I am satisfied that the material provided by the applicant, including the written submissions, are mostly submissions which relate to what are perceived to be errors of fact by the applicant. To that extent, it is clear, in my view, that having characterised each of those submissions, without reciting them in detail, that the application in the circumstances would necessarily fail.
One matter, however, that has arisen during the course of submissions is of some concern to that court, and that is, the way in which the tribunal had interpreted the legislation and in particular section 23(4)B of the Social Security Act 1991 (the Act). It is clear to me that when a court is considering an application of this kind, and particularly where the applicant has not had the benefit of legal advice and requires an interpreter to assist her with the proceedings, that there is a duty on a court to at least consider whether or not there has been what might be described as an error of law identified either in the material by way of the application or the submissions made by both parties.
Accepting that there is that duty of the court, it seemed to me during the course of submissions that at least potentially one error that may have emerged from the consideration of the issues by the AAT was the way in which it interpreted s.23(4)B of the Act. In paragraph 6 of the tribunal's reasons for its decision it states the following:
“The relevant legislation is the Social Security Act 1991. Section 1217 provides that a person may be paid DSP while outside Australia for up to 26 weeks or longer if he or she was severely disabled at the time of departure. Section 23(4)B defines "severely disabled" as being unable to work for the next two years up to eight hours per week. Section 1218C of the Act enables the Secretary to the Department of Family and Community Services to extend the portability period if the person is unable to return to Australia because of events such as serious illness.”
Section 23(4)B of the Act provides as follows:
“For the purpose of this act a person is severely disabled if: (a) a physical impairment, a psychiatric impairment, an intellectual impairment or two or all of such impairments of the person make the person, without taking into account any other factor, totally unable: (i) to work for at least the next two years; and (ii) unable to benefit within the next two years from participation in a program of assistance or a rehabilitation program.
It is clear from the reading of that section that the legislation does not in fact define what is meant by "severely disabled" in the manner described by the tribunal; that is, the legislation does not define "severely disabled" as being “unable to work for the next two years up to eight hours per week”. (emphasis added)
The reference in fact to the concept of ‘up to eight hours per week’ was introduced by a policy of the respondent referred to by the decision of the respondent which appears at page 84 of the appeal book. In that document the author correctly, in my view, sets out what section 23(4)B defines as being "severely disabled" and goes on to say the following:
“The policy that Centrelink uses says that if you can't do any type of work for 8 hours a week, then you can be accepted as severely disabled (Chapter 1.S.110 of the Guide to the Interpretation of the Act).
I accept for the purposes of the present application that that policy was in existence at all relevant times and that it was a policy that is indeed relevant to the consideration of the present application. Indeed, if the policy of the respondent had not been taken into account or had been misapplied, then the failure to recognise the existence and the content of that policy may well constitute a relevant fact which the tribunal would otherwise be bound to consider. Indeed a misconstruction of terms or misunderstanding of any policy may, in my view, constitute a failure to take into account a relevant factor which certainly would have the potential of vitiating the tribunal's decision. I refer to Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) (Fed C of A Full Court 62 of 1992, 29 April 1994 unreported).
In the present case it is clear to me that what effectively the AAT has done is to combine both the definition of "severely disabled" and the policy to which I have referred as being effectively a workable definition. Ironically, if one were to strictly interpret the legislative provision to which I have referred, then the suggestion of an inability to work for up to eight hours per week would not be relevant given that the section specifically refers to a person being severely disabled if that person is totally unable to work for at least the next two years and unable to benefit within the next two years from participation in a program of assistance or a rehabilitation program.
It seems clear, in my view, that on a proper analysis of the AAT’s reasons that it has in one sense, therefore, misinterpreted the legislation. A misinterpretation of the legislation clearly is a factor which otherwise may well amount to an error of law. I refer to Kuswardana v Minister for Immigration and Ethnic Affairs (1981)

54 FLR 334, 35 ALR 186.
In the present case there was, however, evidence upon which the AAT could rely and properly take into account in the consideration of those factors which the AAT ought to take into account in reaching a decision as to whether or not it should affirm the decision under review. In particular, there was medical evidence before the AAT by way of a treating doctor's report which appears at page 56 of the appeal book. It is noteworthy that that pro forma report appears to relate to general issues without specifically identifying the precise tests set out in section 23(4)B of the Act.
Nevertheless, the proforma document which was before the AAT would enable the AAT to properly reach a decision, having regard to the relevant facts, in applying what I would refer to as a combination of the interpretation of the relevant section and the policy which, as I have indicated, it is bound to take into account in any event.
It was, in my view, having regard to the medical evidence to which I have referred, open to the AAT to therefore draw the conclusion that it did draw that the applicant was working for one day a week before her departure for Poland on 11 October 2000 and to otherwise make the decision it made based upon the conclusions drawn in paragraph 7 of its reasons for decision. In that paragraph the AAT said:
“7.The applicant was working one day a week before her departure for Poland on 11 October 2000. Her treating doctor stated he did not treat her for anxiety or neurosis, and there is no medical evidence that would indicate that she was incapable of working for 8 hours a week at the time of her departure. Therefore, the Tribunal finds that at the time of her departure the applicant was not severely disabled.”
The AAT goes on to find, to the extent that it is necessary, that there was no evidence that while overseas the applicant suffered from a serious illness or other event that prevented her from returning to Australia. That refers to other relevant legislative provisions which the AAT was obliged to consider in the course of its decision.
As I have indicated, it is somewhat ironic that I in a sense by incorrectly referring to the definition provided in the legislation and combining what appears to be the policy with the statutory definition the AAT in any event has applied what might be regarded as a more lenient test to be regarded as relevant to the applicant in the particular circumstances of this case.
Nevertheless the AAT has not, in my view, in considering the material, fallen into error of a kind which would vitiate its decision. In particular, it seems to me that what the AAT has done is to set out its findings on facts which, as I have indicated, were open to it. Even if I were to be satisfied that the AAT made an error of fact on an application of this kind for the reasons I have given and relying upon the decision of the High Court in Waterford, it is not for this court to consider then setting aside the tribunal's decision or otherwise allowing the appeal.
I was referred during the course of submissions by counsel for the respondent to the High Court decision in the matter of Yusuf v Minister for Immigration and Multicultural Affairs (2001) 206 CLR at 323. In particular I was referred to the decision at page 346 where in part the court says:
“A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that section 430(1)(c) (of the Migration Act 1958) obliges the tribunal to do is to set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.”
It seems to me in the present case that effectively what the AAT has done, albeit by interpolating the definition of what is meant by "severely disabled" in the manner I have described, is to make findings of fact of the relevant material which it was bound to do in the exercise of its powers.
Therefore it is clear that on the material before me there is no error of law.
One other matter which was raised by the applicant was her concern that she was given assurances by the respondent or those purporting to represent the respondent as to her conduct whilst overseas and what might occur in relation to her pension entitlement. I note for the record that a number of those matters which have now been raised by the applicant in her outline of submissions and in oral submissions were substantially similar to information provided by the applicant at the hearing before the SSAT. That information appears at page 8 of the appeal book.
Regardless of what the applicant may have been told, it seems clear that there was some communication by the applicant with the respondent and that communication was at least communication which could properly be interpreted as a request for a discretionary extension of her pension and that occurred on 10 April 2001.
Whether or not the applicant was given assurances of a kind she described is not, in my view, relevant in terms of supporting an application for appeal in this case. Any representation, if indeed made as alleged, by persons purporting to represent the respondent could not override or indeed take precedence over the statutory duties, powers and obligations of the respondent pursuant to the Social Security legislation. In any event, I am satisfied that the alleged assurances were indeed agitated to the extent that they needed to be agitated before the AAT. I am also satisfied that in the circumstances the AAT in discharging its duty did not need to analyse each and every one of those allegations in detail in order to provide a proper basis for its decision or reach the conclusion it reached in its decision on 8 April 2002.
In all the circumstances I am satisfied that in the present case there has been no error of law demonstrated of a kind which would entitle this court to make an order under section 44 of the AAT Act. It follows, therefore, that the order of the court should be that the application filed by the applicant on 3 May 2002 should be dismissed.

Costs

In this matter after I had indicated that the order of the court would be that the notice of appeal filed 3 May 2002 would be dismissed, Counsel for the respondent on instructions for and on behalf of the respondent sought an order that the applicant should pay the respondent's costs. I should note that as this matter has been docketed to me since its transfer from the Federal Court and there have been on a number of occasions adjournments of this application and the record will show that on a number of occasions the respondent, when the matter had been previously listed, had indicated that if it were to be withdrawn or discontinued there would be no order for costs sought.

That matter, as I recall, was explained at least on two occasions in the presence of the applicant. The willingness to forego costs at earlier directions hearings is a relevant factor to consider in exercising the discretion of the Court to award costs at the final hearing.
In the present case I can see no reason why, both having regard to the respondent’s willingness to forego costs at an early stage and the nature of an application of this kind, that the normal rule should apply and that costs should follow the event. There have been no reasons advanced for and on behalf of the applicant which would indicate to this court that I should not award costs. In my view, it is appropriate that costs should follow the event.
The orders of the Court shall be as follows:
(1)That the notice of appeal be dismissed.
(2)The applicant shall pay the respondent's costs of the application, including reserved costs, if any, before the transfer of the application by the Federal Court in accordance with the Federal Court Scale and thereafter costs to be paid, including any reserved costs, pursuant to schedule 1 of the Federal Magistrates Court Rules with all costs to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules.
(3)Certify pursuant to rule 21.15 of the Federal Magistrates Court Rules that it was reasonable for the respondent to employ an advocate to appear in these proceedings.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 8 January 2003