NHYG and Child Support Registrar (Child support second review)
[2020] AATA 2653
•10 July 2020
NHYG and Child Support Registrar (Child support second review) [2020] AATA 2653 (10 July 2020)
Division:GENERAL DIVISION
File Number: 2019/5955
Re:NHYG
APPLICANT
AndChild Support Registrar
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 10 July 2020
Place:Melbourne
The Tribunal decides that:
it does not have jurisdiction to review a child support assessment made by the respondent in relation to the applicant on 10 September 2019;
and notes that:
under Item 3 of section 26 of the Administrative Appeals Tribunal Regulations 2015, the applicant is entitled to a refund of the amount of $932 being the amount of the prescribed fee she paid when she made her application to the Tribunal.
………[sgd]………………………..
Deputy President S A Forgie
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords
PRACTICE AND PROCEDURE – whether applicant entitled to refund of application fee paid on lodgement of application for AAT second review – analysis of application fee provisions – analysis of decision of which applicant sought review – applicant lodged application under a misapprehension of inter-relationship between AAT first review decision and subsequent determination made by Child Support Registrar – application and documents lodged with application for AAT second review showed no application made for review of any decision reviewable by AAT second review – Tribunal does not have jurisdiction – Tribunal notes that applicant is entitled to fee refund
Legislation
Access to Justice (Federal Jurisdiction) Amendment Act 2012
Acts Interpretation Act 1901
Administrative Appeals Tribunal Act 1975; s 2A; s 29; s 42A; s 69C
Administrative Appeals Regulations 1976; r 19
Administrative Appeals Tribunal Regulation 2015; s 20; s 22; s 26; s 28
Australian Security Intelligence Organisation Act 1979; s 54
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
Migration Act 1958; s 501; s 501CA
Taxation Administration Act 1953
Tribunal Amalgamation 2015
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 46 FLR 409; 2 ALD 60
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194; 174 ALR 585
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618
Minister for Immigration and Multicultural Affairs v Eshutu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; 73 ALJR 746
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324
Tasker v Fullwood [1978] 1 NSWLR 20
TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496
Wacando v The Commonwealth (1981) 148 CLR 1; 37 ALR 317
Secondary materials
Chambers 21st Century Dictionary, 1999, reprinted 2004
Black’s Law Dictionary; 5th edition, 1979, West Publishing Co
Macquarie Dictionary; 5th edition,2009, Macquarie Dictionary Publishers Pty Ltd
REASONS FOR DECISION
Deputy President S A Forgie
A decision was made on 21 August 2019 by a member of the Tribunal’s Social Security and Child Support Division (SSCSD) (AAT first review) reviewing a decision that had been made by the Child Support Registrar (Registrar) disallowing NHYG’s objection to a care percentage determination relating to the care of her son. The determination had been made under the Child Support (Assessment) Act 1989 (CSA Act). AAT first review determined that NHYG had 100% of the care of her son and his father 0% with effect from 8 February 2019. On 10 September 2019, the Registrar issued a child support assessment to NHYG on the basis that she had 0% of the care of her son and her daughter and that their father had 100% of their care. NHYG was to pay to the children’s father a final annual child support amount of $15,002. Thinking that the Registrar’s assessment followed on from AAT first review’s decision in the previous month, NHYG lodged an application for review attaching both the AAT first review’s decision and the Registrar’s assessment. She did so on 19 September 2019 and paid a prescribed fee of $932 on lodgement.
When the facts were analysed, it appears that NHYG had thought that the Registrar’s child support assessment was intended to implement AAT first review’s review of the care percentage determination but had ignored it. She was not correct in her assessment because the Registrar’s child support assessment was made on the basis of the care arrangements in place for the period from 13 May 2018 to 25 June 2018. When this was clarified, NHYG sought review of neither AAT first review’s decision nor the Registrar’s subsequent child support assessment.
The issue then became whether NHYG could be refunded the prescribed fee she had paid following lodgement of her application. No provision is made for review of a decision regarding the refund of prescribed fees but, when matter is taken to its essence, the matter is one of jurisdiction. That is within my power to consider. I have come to the view that the prescribed fee can be refunded because she did not lodge an application for review of a decision that is reviewable by the Tribunal i.e. the Registrar’s child support assessment dated 10 September 2019. That is a decision to which she could have lodged an objection with the Registrar and then applied for review by AAT first review. Only after receiving a decision from AAT first review was NHYG entitled to make an application to AAT second review at the Tribunal. As her application was made in respect of a decision that the Tribunal has no authority to review it could not be regarded as an application that had been made to it. Therefore, there was no basis on which she could be required to pay a prescribed fee and the whole of the sum of $932 should be refunded to her. I have set out my reasons below for reaching this conclusion.
BACKGROUND
Object of the CSA Act
The principal object of the CSA Act is to ensure that children receive a proper level of financial support from their parents. The level of financial support provided by their parents is determined with reference to matters such as their capacity to provide financial support, the cost of children and the determines the financial support payable by parents for their children. The CSA Act sets out various avenues by which the level of financial support, child support as it is known, is determined. One avenue an administrative assessment of child support by the Child Support Registrar (Registrar). An application for an administrative assessment of child support may be made under Part 4 of the CSA Act. The Registrar must decide whether the application has been properly made. If properly made, Division 2 of Part 5 sets out six formulae used for assessing the annual rate of child support. Among other factors, those formulae require each parent’s or responsible person’s percentage of care for a child for the relevant day to be determined. Division 4 of Part 5 provides that a responsible person’s percentage of care is determined by the Registrar i.e. a “care percentage determination”.
Care percentage determinations made in relation to NHYG’s son
Initially, care arrangements for NHYG’s son had been the subject of a court order dated 26 June 2018 in proceedings between her and her son’s father. Having regard to that order, the Registrar had made a care percentage determination of the amount of time for which NHYG cared for her son, for whom she sought child support, and the amount of time he was cared for by his father. The Registrar decided that the care percentage determination to be applied in assessing child support would be 80% of care to NHYG and 20% to her son’s father.
NHYG wanted her son to continue to see his father but that had not happened since the first half of 2019. She had taken proceedings in the Federal Circuit Court in relation to their daughter, who had not been returned to her care after Australia Day 2019. An order made by Judge Small on 14 February 2019 related only to their daughter and not to their son. On 6 March 2019 NHYG had advised the Registrar that the care arrangements were no longer taking place and that, since 23 January 2019, she had cared for her son 100% of the time. The Registrar made a care percentage determination on 7 March 2019 and did so in the same 80%:20% as before.
NHYG sought review of care percentage determination
As she was entitled to do under s 80A of Part VII of the Child Support (Registration and Collection) Act 1988 (CSRC Act), NHYG sought review of the care percentage determination. She did so by first objecting to the care percentage determination and doing so within the time limit provided for by s 81 of the CSRC Act. The Registrar made a decision under s 87(1) and disallowed her objection to the care percentage determination.
NHYG then applied to the Tribunal for AAT first review of the Registrar’s decision to disallow the objection. AAT first review was provided for in Item 1 of s 89. Following its review, the AAT first set aside the Registrar’s decision and substituted a decision allowing the objection to the original determination. In its place, AAT first review made a new care percentage determination that NHYG had 100% care of her son and his father had 0% with effect from 8 February 2019. AAT first review’s decision was made under s 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act).[1] Section 96A(b) of the CSRC Act provides that an application may be made to the Tribunal, or AAT second review, for review of a decision made under s 43(1) of the AAT Act on AAT first review of a care percentage decision.
[1] Section 43(1) of the AAT Act provides that: “For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing; (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
The AAT first review made its decision on 21 August 2019, as I have said. On 10 September 2019, the Registrar calculated an amount of child support of $15,002 payable by NHYG to her son’s father. The assessment period was 13 May 2018 to 25 June 2018. The calculations were made on the basis of NHYG’s having 0% care of her son. Putting aside the calculations for their daughter, the Registrar’s conclusion was that NHYG was obliged to pay her son’s father child support for their son and he was not obliged to pay any to her.
Under Item 11 of s 80(1) of the CSRC Act, NHYG was entitled to object to “the particulars of an administrative assessment”. The expression “administrative assessment” has the same meaning as it does in the CS Act[2] where it “…means assessment (other than assessment for the purposes of a notional assessment) under Part 5.”[3] NHYG had not objected and so had no decision of the Registrar on which to make an application for review to the AAT first review.
[2] CSRC Act; s 4(1)
[3] CS Act; s 5(1)
NHYG applied to the Tribunal, or AAT second review, attaching a copy of the decision made by AAT first review on 21 August 2019 together with a copy of the letter dated 10 September 2019 written by the Registrar. When the application form asked her for the date of the decision of which she sought review, NHYG wrote “10 September 2019”. Her reasons for claiming that the decision was wrong were:
“On 21 Aug 2019, a decision was made that I have 100% care for my son … , as he is staying with me and going to … [school]. His father … who lives in … has not been visiting fortnightly to see … as he has been doing in the past few years. He stopped towards the end of January 2019. See AAT letter attached. It explains the decision made. Yesterday I received a letter from CSA giving a totally different scenario. Where my care is 0% for … Contrary to the decisions made by … and Child Support Registrar. I am left to wonder why I should pay Child Support to … yet my son … is living with me. And has not stopped at any one time living with me. The only change is the father does not regularly visit him. As stipulated in the letter from AAT. I am not sure why the contradictory letter from CSA has been sent to me, please help.”
Payment of prescribed fee
NHYG paid a prescribed fee of $932 when she lodged her application.
Jurisdiction hearing listed and subsequent discussions between the parties
I listed the matter for a hearing to determine whether the Tribunal had jurisdiction to consider whether NHYG’s application was for review of AAT first review’s decision or of the Registrar’s child support assessment. Before it was held on 9 October 2019, the Registrar asked that the hearing be vacated so that there could be discussions with NHYG. The outcome of those discussions was that the Registrar clarified that the letter dated 10 September 2019 had related to an earlier period and not to the period covered by the AAT first review. The fact that the Registrar’s letter had followed so closely on the decision of the AAT first review had been confusing. Once that had been clarified, NHYG did not wish to, or have any need to, pursue her application. The issue then became how best to resolve the application and whether she could recover the prescribed fee she had paid and whose refund she requested.
WHEN AN APPLICATION MAY BE MADE TO THE TRIBUNAL
Section 25(1) of the AAT Act provides:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”[4]
[4] AAT Act; s 25(1). Regulations may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment: AAT Act; s 25(2).
I have referred to relevant provisions of the CSRC Act, which provide for review of decisions made in relation to NHYG in this matter. They all share a common pattern. NHYG could only make an application to the Tribunal, or AAT second review, if she had first objected to the determination or assessment she was dissatisfied with and then applied for, and received, a decision from AAT first review.
PRESCRIBED FEES: when are they payable, at what rate are they payable and when are they refundable?
General outline
Section 29 of the AAT Act sets out how to apply for review of a decision. An application to the Tribunal for review of a decision “must be accompanied by any prescribed fee”.[5] Section 70(2) goes on to provide that the regulations may prescribe fees to be payable in respect of applications to the Tribunal, payable in respect of the taxation of costs ordered by the Tribunal to be paid and for, or in relation to the refund, in whole or in part, of fees so paid where the proceeding terminates in a manner favourable to the applicant.[6] The regulations may also provide for prescribing fees to be payable in respect of proceedings before the Tribunal and for, or in relation to, the waiver (in whole or in part) of such fees.
[5] AAT Act; s 29(1)(b)
[6] AAT Act; s 70(2)
Prescribed fees
I will set out only the provisions of the Administrative Appeals Tribunal Regulation 2015 (AATR 2015) that are relevant in this matter. Although AATR 2015 refer to their component parts as “sections”, I will refer to them as “regulations” in order to avoid confusion between them and the sections of the AAT Act.
Regulation 22 provides that no fee is prescribed (and so not payable) in respect of an application for review of a decision specified in the table it sets out. A decision referred to in s 89 of the CSRC Act is among the decisions specified in the table where the application is for AAT first review of the decision.[7] That meant that NHYG was not required to pay a prescribed fee when she lodged an application for AAT first review of the Registrar’s decision. As a decision made by AAT first review is not among the decisions specified in the table, a fee is prescribed in respect of an application for review of the decision made by AAT first review in relation to the Registrar’s care percentage determination. The amount of the fee that is payable is determined by reference to rr 20 and 21 of the AAT Regulations.
[7] AAT Regulations; r 22; Item
Regulation 20(1) prescribes the standard fee in respect of:
“(a) an application for review of a decision (other than an application referred to in subsection (1A) or (2) or section 22); or
(b)an application under subsection 28(1AC) of the Act; or
(c)an application under subsection 62(2) of the Freedom of Information Act 1982.
Note:The fee is indexed under section [i.e. regulation] 27.”
Regulations 20(1A) and (2) prescribe different fees in respect of an application for review of a taxation decision. A fee of $500 adjusted to reflect indexation under r 27 is prescribed in respect of an application for review of a small business taxation decision other than an application referred to in r 20(2). That is the effect of r 20(1A).
In summary, r 20(2) prescribes a lower fee of $91, as adjusted under r 27, in respect of an application for review of three types of decisions made under the Taxation Administration Act 1953 (TA Act). The first type includes applications for review of a reviewable objection decision made under Part IVC of the TA Act provided that the applicant states, either at the time of making the application or at a later time, that the amount of tax in dispute is less than $5,000.[8] The second type includes a reviewable objection decision under Part IVC of the TA Act relating to an application made by an applicant under s 340-5 of Schedule 1 to that legislation.[9] The third type relates to an application made for review of a decision refusing a request for an extension of time within which to make a taxation objection under s 14ZX of the TA Act.[10] The AAT first review is not a decision made under the TA Act.
[8] AAT Regulations; r 20(2)(a)
[9] AAT Regulations; r 20(2)(b0
[10] AAT Regulations; r 20(2)(c)
If the fee prescribed under r 20(1), (1A) or (2) exceeds $100 and the circumstances in r 21 exist, then a fee of $100 is prescribed in place of the higher fee.[11] The circumstances do not relate to those of NHYG. Therefore, she was not entitled to pay a concessional fee of $100 and had to pay the full prescribed fee that was, at the time, $932.
[11] AAT Regulations; r 20(3)
When is a prescribed fee payable?
A. Prescribed fees and their payment before 1 July 2015
Before its amendment by the Tribunal Amalgamation 2015 (TA Act), there was no requirement in the AAT Act of the sort now appearing in s 29(1)(b) i.e. there was no requirement that an application to the Tribunal for review of a decision “must be accompanied by any prescribed fee”.[12] The language of an application being “accompanied by” certain material was used in ss 29(1)(c) and (cb) but not in s 29(1) in relation to the lodgement of an application. Sections 29(1)(c) and (cb) required that applications in respect of decisions made under ss 54(1) and 54(2) of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) were “accompanied by” certain documents but they have no relevance in this context.
[12] AAT Act; s 29(1)(b)
Reference was made in ss 24AC and 24AD to the payment of a “standard application fee” and to a “lower application fee” in relation to applications for review of relevant taxation decisions. Before 1 July 2015, the only other references in the AAT Act to the payment of a fee payable in respect of applications made for the review of decisions before 1 July 2015 were found in ss 69C and s 70(2) and (3). Section 70(1) bestowed a general regulation making power. Sections 70(2) and (3) were concerned with regulations prescribing fees:
“Without limiting the generality of subsection (1):
(a)the regulations may make provision:
(i)prescribing fees to be payable in respect of the applications to the Tribunal; and
(ia)prescribing fees to be payable in respect of the taxation of costs ordered by the Tribunal to be paid; and
(ii)for or in relation to the refund, in whole or in part, of fees so paid where the proceeding terminates in a manner favourable to the applicant; and
(b)regulations prescribing fees may:
(i)prescribe fees in respect of a particular class or classes of applications only; and
(ii)prescribe different fees in respect of different classes of applications.
(3)Without limiting the generality of subsection (1), the regulations may make provision:
(a)prescribing fees to be payable in respect of proceedings before the Tribunal; and
(b)for, or in relation to, the waiver (in whole or in part) of such fees.”
Section 69C provided:
“(1) The Tribunal may dismiss an application to the Tribunal if:
(a)regulations under section 70 prescribe a fee to be payable in respect of the application; and
(b)the fee has not been paid by the time worked out under regulations under section 70.”
Before their repeal and replacement by AATR 2015 on 1 July 2015, prescribed fees were the subject of the Administrative Appeals Regulations 1976 (AATR 1976) and, in particular, of rr 19, 19AA, 19A, 19B and 20 of AATR 1976. Regulations 19(6B), (6C) and (6D) set out when the fee was payable and related matters:
“(6B) The fee for lodging an application is payable when the application is lodged.
(6C)If the fee is not paid at that time, the Tribunal is not required to deal with the application unless, and until, the fee is paid.
(6D)If the fee is not paid within 6 weeks after an application is lodged, the Tribunal may dismiss the application under section 69C of the Act.”
The language of r 19(6B) was compatible with that of ss 70(2) and (3) and of s 69C of the AAT Act as it was in force 1 July 2015. Each referred to a prescribed fee’s being “payable”. The word “payable” refers to something “that can or must be paid”[13] and may also signify an obligation to pay.[14] Sections 69C and 70 are clearly drafted in terms of imposing an obligation when it refers to a prescribed fee’s being “payable”. The obligation is not to pay the prescribed fee immediately but there were options open to the Tribunal if the prescribed fee were not paid. The options were not to deal with the application or, if not paid within six weeks of the application’s lodgement, to dismiss the application.
[13] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
[14] Macquarie Dictionary; 5th edition,2009, Macquarie Dictionary Publishers Pty Ltd and Black’s Law Dictionary; 5th edition, 1979, West Publishing Co
B.Prescribed fees and their payment after 1 July 2015
In this context, only the amendment made to s 29 by the TA Act to s 29(1)(b) is of consequence. Section 29(1)(b) was repealed and replaced with a provision requiring that an application “must be accompanied by any prescribed fee”.[15] No relevant amendment was made to s 69C although s 69C(2) was added to exclude applications for review of a decision that is reviewable in the Tribunal’s Migration and Refugee Division. The AATR 2015 made to come into operation on 1 July 2015 at the same time as s 29(1)(b). Although structured differently, they continued to provide for the same substantive consequences as had AATR 1976 if an application is not accompanied by the prescribed fee. Regulation 24 of AATR 2015 provides:
“(1) If an application is not accompanied by the prescribed fee, the Tribunal is not required to deal with the application unless, and until, the fee is paid.
(2)For the purposes of paragraph 69C(1)(b) of the Act, the time by which the fee must be paid is the end of the 6 weeks starting on the day the application is lodged.
Note:The Tribunal may dismiss the application under that section if the fee is not paid by that time.”
[15] TA Act; s 3; Schedule 1; Item 46
Is an application made if a prescribed fee that is payable is not paid?
Read on its own, s 29(1)(b) as it now stands might be read as requiring the payment of a prescribed fee before it can be said that an application has been made. The word “must” conveys a sense of duty or obligation.[16] It is a word used again in s 29 in the context of a statement of reasons for the application. Unless the application is made in respect of decisions made under ss 54(1) and 54(2) of the ASIO Act, it “must contain a statement of the reasons for the application”.[17] An application made in respect of decisions made under ss 54(1) and 54(2) of the ASIO Act “must be accompanied by …” documents set out in ss 29(ca) or 29(cb). The word “must” is also used in s 29(1)(a) when it provides that “… an application to the Tribunal for a review of a decision … must be made … in writing; or … if the decision is reviewable in the Social Security and Child Support Division – in writing or by making an oral application …”.[18]
[16] Chambers
[17] AAT Act; s 29(1)(c)
[18] AAT Act; s 29(1)(a)
A. Principles relevant to determining whether compliance necessary
Does the use of the word “must” signify that an application is not taken to have been made if there has been non-compliance with ss 29(1)(b) or with the other subsections specifying criteria with which an application for review of a decision “must” comply? Alternatively, is an application still taken to have been made even though there has been non-compliance. The answer lies in following the principles set out by the New South Wales Court of Appeal in Tasker v Fullwood:[19]
“… (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the
validity of the act would be preserved notwithstanding non-compliance: …
(3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: … (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: … (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: ….”[20]
[19] [1978] 1 NSWLR 20; Hope, Glass and Samuels JJA
[20] [1978] 1 NSWLR 20 at 23-24 (citations omitted)
The Court of Appeal’s approach was approved by the majority of the High Court in Project Blue Sky v Australian Broadcasting Authority[21] when they said:
“… [A] court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’ … [Tasker v Fullwood].”[22]
[21] [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490; McHugh, Gummow, Kirby and Hayne JJ; Brennan CJ dissenting
[22] [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 at 390; 516-517 (citations omitted)
B. Application of principles
The Long Title of the AAT Act states that its purpose was to establish the Tribunal but a more nuanced statement is found in the statement of the Tribunal’s objective in s 2A:
Part of the subject matter includes s 2A of the AAT Act when it provides:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.”
Provisions of this sort have been described as “general exhortatoryprovisions”.[23] They are intended to be facilitative and not restrictive.[24] They cannot be more than that because the objectives that are to be pursued are necessarily relative concepts. They are determined by the nature and complexity of the issues raised by the application for review and the decision under review. Those considerations mean that it will be possible in some instances to achieve an outcome that realises each and every objective but it is not always possible to do so. It may be possible to achieve fairness, justice and informality but at the cost of speed. It may be possible to achieve speed but at the cost of fairness and justice. Whether that balance is permitted, depends on a consideration of the AAT Act as a whole together with the terms of the relevant enactment under which an application is made to the Tribunal.
[23] Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324 per Lindgren J
[24] Minister for Immigration and Multicultural Affairs v Eshutu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; 73 ALJR 746 at [49]; 628; 588; 301; 754-755 per Gleeson CJ and McHugh J and [158]; 659; 613; 326; 773 per Hayne J and see also similar views expressed by Gaudron and Kirby JJ at [69]-[77]; 633-635; 592-594; 305-307;757-759
In the particular context of s 29(1), which provides how an application is made, the objective of being accessible gains some prominence and particularly so when regard is had to two other matters. The first of those matters is s 69C. When read with s 69C(1), s 29(1)(b) cannot be understood as requiring the prescribed fee to be paid at the same time as the application is lodged so that is “accompanied” by it. If non-payment of a prescribed fee meant that no application had been made, there would be no requirement for s 69C(1) to provide for an application’s dismissal for the non-payment of the prescribed fee. There would be no need to provide for a power of dismissal if there were no application to dismiss. It seems to me that, in requiring that the application must be accompanied by the prescribed fee, s 29(1)(b) is not imposing an obligation to pay that prescribed fee at the time of lodgement. It is imposing an obligation to pay a prescribed fee at some time in the future. That time in the future is not indeterminate for regulations made under s 70 may, as they do in r 24(2), specify when the prescribed fee has to be paid by i.e. by a date six weeks starting on the day that the application is lodged.
The second matter to which I have had regard is s 29(1)(d) of the AAT Act. It provides:
“An application to the Tribunal for a review of a decision”
(a)-(cb) …
(d)if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) or (5A) – shall be lodged with the Tribunal within the prescribed time.” (emphasis added)
The requirement that an application “shall” be made signifies, in its context, an obligation to make an application within the prescribed time in particular circumstances.[25] Its use is to be contrasted with the use “must” in expressing the other requirements for making an application. It seems to me that Parliament’s choice to use “must” to express some requirements and “shall” to express that in s 29(1)(d) is to underline the position that an application cannot be made if it has not been lodged within expression of obligation. That reading is consistent with s 29(7), which provides for an extension of time for the making of an application:
“The Tribunal may, upon application in writing by a person, extend the time for making by that person of an application to the Tribunal for review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.” (emphasis added)[26]
[25] Chambers
[26] When no time is prescribed for lodging an application and the Tribunal is of the opinion that it was not made within a reasonable time after a decision was made and it is not of the opinion that there are special circumstances justifying it in doing so, the Tribunal “shall … refuse to entertain an application for review …”: AAT Act; ss 29(4), (5) and (6). That is to say, the Tribunal is obliged to refuse to consider (i.e. “entertain” (Chambers)) an application.
Having regard to the variations in language in which the requirements of s 29(1) are expressed in an enactment, one of whose objectives is accessibility, and which confers a discretionary power on the Tribunal to dismiss an application if the relevant prescribed fee has not been paid within a six week period, I have come to the conclusion that an application is made within the meaning of s 29 even if the application is not accompanied by any prescribed fee that is payable.
Consequences of non-payment of a prescribed fee
The consequences of non-payment of a prescribed fee are set out in s 69C of the AAT Act and in r 24 of the AATR 2015. Both provisions are inherently discretionary. Regulation 24(1) is provides that the Tribunal “… is not required to deal with the application unless, and until, the fee is paid.” Regulation 24(1) does not state that the Tribunal must not deal with the application. It simply states that it is not required to do so. That is a discretionary power. Section 69C(1) provides that the Tribunal “… may dismiss an application if …” a prescribed fee has not been paid within the time worked out under the regulations. Section 69C was inserted in the AAT Act with effect from 11 June 2013.[27] That was long after the insertion of s 33(2A) in the Acts Interpretation Act 1901 (AI Act), which provides:
“Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at that discretion of the person, court or body.”[28]
[27] Access to Justice (Federal Jurisdiction) Amendment Act 2012; s 3, Schedule 5, Item 2 and, for commencement, see s 2(1); Item 5
[28] Section 33(2A) was inserted in the AI Act by the Statute Law (Miscellaneous Provisions) Act 1987 (SLMP Act); s 3; Schedule 1. It commenced operation on 18 December 1987; SLMP Act; s 2(1)
It has long been established that the circumstances in which a statutory power may be exercised and any limits on that power must be found in the enactment conferring the power, its subject matter and its object, as well as its underlying policy.[29] This is an approach consistent with the modern approach to statutory interpretation as discussed by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd.[30] Equally, the scope of any discretion given to a decision-maker under an enactment depends on the latitude of the subject matter, scope and purpose of the Act and of the particular power conferred on the decision-maker.[31]
[29]Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J
[30] (1997) 187 CLR 384; 141 ALR 618 at 408; 634-5 (footnotes omitted) per Brennan CJ, Dawson, Toohey and Gummow JJ, and see also Wacando v The Commonwealth (1981) 148 CLR 1; 37 ALR 317 at 25-26; 335-6 per Mason J and TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496 at 507-508
[31]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194; 174 ALR 585 at 205; 591 and see also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 46 FLR 409; 2 ALD 60 at 590; 420; 70 per Bowen CJ and Deane J and 602; 80 per Smithers J
When the discretionary powers given under s 69C and r 24 of AATR 2015 are considered, the objective of being accessible takes on particular importance as do being fair and promoting public trust and confidence in the decision-making of the Tribunal. Certainly, an application fee is not payable when review is sought of the decisions described in r 22 of AATR 2015. Regulation 21 sets out the circumstances in which a concessional fee of $100 is payable rather than a prescribed fee that would otherwise be payable. There will, however, be circumstances in which a person wishing to apply for review of a decision will not be able to pay even $100 or, if he or she can pay it, does not have ready access to his or her funds. Those circumstances may arise, for example, in the context of the review of decisions made under ss 501 or 501CA of the Migration Act 1958 by a person in immigration detention. They are not included among the decisions listed in r 22 of AATR 2015 as decisions for which a prescribed fee is not payable in respect of an application for review. The person’s inability to pay the prescribed fee would be a relevant factor in deciding whether to exercise the discretions provided for in r 24(1) of AATR 2015 and s 69C of the AAT Act.
WHEN IS A PRESCRIBED FEE REFUNDABLE?
If a prescribed fee is payable and it is in fact paid, it is only refundable if the circumstances meet one or other of the nine sets of criteria set out in r 26 of AATR 2015. Item 6, for example, provides that all but $100 of a fee of $920, as adjusted and payable under r 20(1) or of a fee of $500, as adjusted and payable under r 20(1A), is refunded if the Registrar certifies that a proceeding in respect of the application has terminated in a manner favourable to the applicant. What is generally understood by Item 6 is that the Tribunal has made a decision with the consent of the parties under either ss 34D or 42C of the AAT Act or the Tribunal has made a decision under s 43 and the outcome is more favourable to the applicant than the decision of which the applicant sought review.
If an applicant withdraws his or her application under s 42A(1A) or consents to a dismissal of the application under s 42A(1), that is not regarded as coming within the description in Item 6. In so far as a proceeding in respect of the applicant’s application is concerned, the decision of which review has been sought remains as it was. That is not a termination in a manner favourable to the applicant. It is not so even if, quite apart from the proceedings in the Tribunal, the parties have reached another agreement settling matters between them.
Dismissal of an application under s 42A(2) when a party fails to appear at a directions hearing, alternative dispute resolution process or hearing and under s 42A(5) for failure to proceed with an application or to comply with the Tribunal’s direction do not come within Item 6.
Dismissal under s 42A(4) is a different matter. Section 42A(4) provides:
“The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.”
That situation may arise in two circumstances. One arises if the decision was reviewable but the person who made the application was not entitled to make that application either because he or she was not a person whose interests are affected by the decision within the meaning of s 27 or because the enactment providing that an application could be made limits those who may apply to a more specific group.[32] The other arises if the decision of which review was sought was not reviewable.
[32] Section 25(6) of the AAT Act provides that an enactment providing for applications to be made to the Tribunal may modify, exclude or add to its provisions.
Items 2 and 3 of r 26 of AATR 2015 provides for a refund in these circumstances:
Refund amounts
Item
Fee
Circumstance
Refund amount
…
…
…
…
2
the person paid a fee referred to in this Part
the person is not entitled to apply for review by the Tribunal
the amount paid
3
the person paid a fee referred to in this Part
the decision to which the application relates is not subject to review by the Tribunal
the amount paid
…
…
…
…
WHEN IS A DECISION IN RESPECT OF A PRESCRIBED FEE REVIEWABLE?
Regulation 28(1) of AATR 2015 provides that a person may apply to the Tribunal for review of only two types of decision. One is a decision not to make an order under r 21(h) i.e. not to make an order that, having regard to the applicant’s income, expenses, liabilities and assets, the Registrar considers that payment of an amount would cause, or has caused, financial hardship to the applicant. The other is a decision not to order that only one fee is payable under s 23. No provision is made for refusal to refund a prescribed fee under r 26.[33]
[33] If refunds were ever to be an issue, an applicant would have other avenues to pursue including approaching the Commonwealth Ombudsman.
WAS A PRESCRIBED FEE PAYABLE WHEN NHYG LODGED HER APPLICATION?
The answer to the question I have asked in the heading to this section is determined by reference to whether she lodged an application for review of a decision that is reviewable by the Tribunal. On my understanding of her application, NHYG applied for review of the Registrar’s child support assessment and not for review of the decision by the AAT first review. As she had not objected to the Registrar’s child support assessment, the steps leading to the Registrar’s decision on objection and its review by AAT first review had not been taken. Until they had been taken, there was no decision that was reviewable by the Tribunal or AAT second review. Therefore, no prescribed fee was payable and NHYG is entitled to a refund in full of the prescribed fee she paid.
DECISION
For the reasons I have given, I decide that the Tribunal does not have jurisdiction to review a child support assessment made by the respondent in relation to the applicant on 10 September 2019. I also note that under Item 3 of r 26 of AATR 2015, the NHYG is entitled to a refund of the amount of $932 being the amount of the prescribed fee she paid when she made her application to the Tribunal.
| I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
...............[sgd].......................................................
Associate
Date of decision: 10 July 2020
| Heard on the papers: | 10 June 2020 |
| Applicant’s solicitor: | Self-represented |
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