Noy v Secretary, Department of Social Services
[2021] FCA 83
•11 February 2021
FEDERAL COURT OF AUSTRALIA
Noy v Secretary, Department of Social Services [2021] FCA 83
Appeal from: Application for review of a decision by the Administrative Appeals Tribunal made on 30 April 2019 File number: VID 566 of 2019 Judgment of: SNADEN J Date of judgment: 11 February 2021 Catchwords: SOCIAL SECURITY - appeal from a decision of the Administrative Appeals Tribunal (AAT) – AAT affirmed a decision rejecting the applicant’s age pension application – whether the applicant was a “member of a couple” – whether the AAT failed to take into account relevant evidence – whether the AAT misapplied s 24 of the Social Security Act 1991 (Cth) – whether the decision of the AAT was legally unreasonable – application dismissed
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) – s 44
Social Security Act 1991 (Cth) – ss 4 and 24
Cases cited: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576
House v R (1936) 55 CLR 499
Jess v Scott (1986) 12 FCR 187
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
P v Child Support Registrar (2013) 138 ALD 563
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Singh and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Wu v Attorney General (1997) 79 FCR 303
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 37 Date of last submissions: 6 November 2019 (applicant)
25 November 2019 (respondent)Date of hearing: Determined on the papers Solicitor for the Applicant: The applicant filed submissions on his own behalf Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
VID 566 of 2019 BETWEEN: MARTIN JOHN NOY
Applicant
AND: SECRETARY, DEPARTMENT OF SOCIAL SERVICES
Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
11 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant pay the respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
On 19 July 2017, the applicant applied to the Commonwealth agency known as Centrelink for age pension benefits. In that paperwork, he recorded certain information about his domestic living arrangements, including that he lived with a woman, Ms Comben, whom he described therein as his “Ex-Partner as from 2009”. He also recorded that he had previously lived with Ms Comben at another address; that he had previously lived with her as a couple; that he continued to share with her the parenting or guardianship of their daughter; and that he and Ms Comben continued to hold joint financial commitments in the form of a home loan account (or possibly more than one such account).
Those circumstances had a bearing on the applicant’s claim to age pension benefits. Under the Social Security Act 1991 (Cth) (hereafter, the “SS Act”), that claim fell to be assessed, in part, by reference to whether or not he was a “member of a couple” (and, if he was, to the income of his partner). Over the months subsequent to his application, the applicant and Ms Comben provided additional details to Centrelink about the nature of their relationship (the particulars of which need not here be recited).
On 20 December 2017 (and, for reasons not immediately apparent or material, again on 4 September 2018), Centrelink determined that the applicant was a “member of a couple”. His age pension application thereafter depended, in part, upon his providing details of Ms Comben’s income. Those details he did not provide, apparently for want of being able to do so. On 10 April 2018—and in default of his providing that information—Centrelink rejected his age pension application. It appears (again, for reasons that are neither apparent nor material) to have done so a second time on 13 July 2018.
The applicant sought to have the rejection of his age pension application reviewed. By a letter dated 18 September 2018, a Centrelink authorised review officer (or “ARO”) affirmed the decisions of 20 December 2017, 10 April 2018, 13 July 2018 and 4 September 2018.
Thereafter, the applicant applied to have that affirmation reviewed by the Administrative Appeals Tribunal (hereafter, the “Tribunal”). By a decision dated 16 November 2018, the Social Services and Child Support Division of the Tribunal affirmed the ARO’s decision. The applicant thereupon sought to have that affirmation reviewed by the Tribunal’s General Division. By a written decision dated 30 April 2019, the General Division affirmed the decision of the Tribunal’s Social Services and Child Support Division. Written reasons for that decision (hereafter, the “Tribunal’s Decision”) were published on 31 October 2019.
It is the Tribunal’s Decision that assumes present prominence. By a notice filed in this court and dated 24 May 2019, the applicant appeals that decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (hereafter, the “AAT Act”).
After resolution of an initial issue concerning service of the notice of appeal upon the respondent, the matter became the subject of case management orders, which were made on 19 July 2019 and 21 October 2019. Those orders made provision for, amongst other things, the filing and service of written submissions and the preparation of an appeal book, all of which was attended to by the end of calendar year 2019.
In early April of 2020, attempts were made by my chambers to have the appeal listed for hearing. Given the advent of the COVID-19 pandemic a matter of weeks earlier, it was necessary to undertake that hearing by remote means. Initially, the court explored the possibility of a telephone hearing in June of 2020. The applicant declined that invitation, along with a subsequent invitation to have the matter heard via the Microsoft Teams software platform (on both occasions for technology-related reasons). In September 2020, at the height of the lockdown that was imposed upon Melbourne (where my chambers are based), the parties were invited to indicate their consent to my determining the appeal on the papers. That was agreed to in October (when Melbourne remained in lockdown and the return to in-person hearings seemed anything but imminent). On the applicant’s part, that consent was indicated on 6 October 2020. I record my gratitude to the parties for the sensible way in which they approached the difficult circumstances that confronted them.
For the reasons that follow, the appeal must be dismissed with the usual order as to costs.
STATUTORY FRAMEWORK
Section 44 of the AAT Act relevantly provides as follows:
44 Appeals to Federal Court of Australia from decisions of the Tribunal
Appeal on question of law
(1)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.
…
Powers of Federal Court
(4)The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.
(5)Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.
…
As might be apparent from the summary detailed above, the applicant’s claim to age pension benefits rests in part upon whether or not he is a “member of a couple” for the purposes of the SS Act. Section 4 of the SS Act relevantly provides (and, at all material times, provided) as follows:
4Family relationships definitions—couples
…
(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
...
(b) all of the following conditions are met:
(i)the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii)the person is not legally married to the partner;
(iii)the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v)the person and the partner are not within a prohibited relationship.
Member of a couple—criteria for forming opinion about relationship
(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i)any joint responsibility for providing care or support of children; and
(ii)the living arrangements of the people; and
(iii)the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i)whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d)any sexual relationship between the people;
(e)the nature of the people’s commitment to each other, including:
(i)the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship or a de facto relationship.
(3A)The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
…
It is not necessary to replicate s 24 of the SS Act. It suffices to note that it permits the respondent to make, for the purposes of the SS Act (and in identified circumstances), a determination that a person is not to be treated as a “member of a couple”.
THE GROUNDS OF APPEAL
The applicant has been self-represented throughout the course of the appeal. Intending no disrespect, his hand-written notice of appeal of 24 May 2019 is difficult to comprehend. Under the heading, “Findings of fact that the Court is asked to make”, the applicant recorded:
1.Does the Act require No 2, the other member of the deemed couple[,] to support No 1
2.Is the other member compelled to supply required documents
Earlier, under the heading “Questions of law”, the applicant recorded:
I presented an Affidavit to the contrary. The Act appears to be flawed as there is no required follow up.
Under the heading, “Orders sought”, the applicant recorded:
1.The Minister is able to determine in accord to section 24 of the Act.
Under the heading, “Grounds relied on”, the applicant recorded:
I am not a member of a couple. I have sworn an Affidavit accordingly.
On 1 July 2019, the applicant attempted to file an amended notice of appeal. In the absence of a grant of (much less an application for) leave to that end, that document was not accepted for filing. By her written submissions in the appeal, the respondent—apparently unaware that the document was rejected by the court’s registry—indicated her opposition to the applicant’s having leave to rely upon that amended notice. Given the nature of the initial appeal notice, it is unsafe not to afford that document at least some attention. It is convenient to replicate the relevant parts of it in full (errors in original):
Questions of law
1.As I am deemed to be a member of a couple then should not the other member have obligations place on her?
2.I would like the court to make a finding that there needs to be a safety net in Place allowing decisions to be made on merit.
Findings of fact that the Court is asked to make
1.The court may be able to request the Secretary to apply Section 24 of the Social Security Act based on merit and circumstances.
2.I do not now have another option.
Orders sought
1.Section 24 of the Act to be applied.
…
Grounds relied on
1.The Act provides the main guide line regarding social Security Law however every circumstance cannot be covered in the Act therefore fair judgement needs to be able to be applied. I am unable to look after my affairs regarding cost of living there is no other alternative for me but to appeal.
2.I have a school aged daughter and cannot afford to help her funds-wise. She is not far off deciding her future studies. She has excellent capability however may not be able to realise her possibilities unless I can contribute. I have grandchildren, and I would like to be able to have some input in their future, as things are at present I am unable to even visit them just to see their progression.
Again, intending no disrespect, it is difficult to discern from either of his notices the nature of the appeal that the applicant hopes to prosecute. The Tribunal’s conclusion that the applicant was a “member of a couple” for the purposes of the SS Act was based on factual conclusions that, save for extreme cases, would be beyond the jurisdiction of this court to review. Absent some error of law, those factual conclusions were for the Tribunal to draw and cannot be disturbed on appeal. It is apparent that the applicant disagrees with the Tribunal’s conclusion (and the other administrative conclusions that preceded it, each of which held) that he is a member of a couple. What is less clear is the error of law upon which he suggests that this court might seize in assisting him to realise the outcome that he wishes to realise.
The applicant’s written submissions do not much assist on that front (I say, again, with all due respect). Instead, they outline his dissatisfaction with the Tribunal’s Decision, his confusion about the operation of the SS Act, and the consequences that have befallen him in light of his inability to access age pension benefits.
Given the challenges under which the applicant labours as a self-represented litigant, it is appropriate that the court should mount some attempt to frame for itself questions of law that might found the proper exercise of its jurisdiction to impugn the Tribunal’s Decision: see, in that regard, P v Child Support Registrar (2013) 138 ALD 563, 576 [53] (Wigney J), which was referred to with approval in Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315, 353 [103] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). Helpfully—and in recognition of that reality—the respondent’s submissions identified three questions of law that the appeal could properly (and with appropriate generosity) be construed as raising, namely:
(1)whether the Tribunal failed to take account of relevant evidence;
(2)whether the Tribunal misapplied s 24 of the SS Act; and
(3)whether the Tribunal’s decision was legally unreasonable.
Notwithstanding the want of clarity in the terms in which it is stated, I propose to approach the appeal as though it raises each of those questions.
FAILURE TO TAKE ACCOUNT OF RELEVANT EVIDENCE
The written reasons for the Tribunal’s Decision record its conclusion about the applicant’s relationship with Ms Comben as follows:
24.Having regard to all of the evidence before it, the Tribunal is satisfied that the applicant and Ms Comben are not living separately and apart nor are they living separately under one roof. While there are indicia that lean both ways, on balance, the Tribunal is satisfied that the applicant and Ms Comben continue to live together as a de facto couple although it is acknowledged that the relationship is not a close and intimate one.
The indicia to which that passage refers were the subject of earlier and lengthy analysis in the Tribunal’s Decision. Amongst other things, the Tribunal noted that:
(1)the applicant and Ms Comben were not legally married, but that they had (according to the applicant himself) shared a de facto relationship between 2001 and 2009, after which they continued to live separately in the same premises (Tribunal’s Decision, [9]);
(2)the applicant and Ms Comben had “…integrated financial relations, including joint property ownership and joint bank accounts” (Tribunal’s Decision, [10]);
(3)the applicant’s relationship with Ms Comben was “…not sexual…and ha[d] become more distant over time” (Tribunal’s Decision, [19]);
(4)the applicant attended to his own meals and laundry requirements, and did most of his own grocery shopping, save that he occasionally ate meals with Ms Comben and shared “staples” with her (Tribunal’s Decision, [19(b)]);
(5)the applicant and Ms Comben rarely engaged in social activities together (Tribunal’s Decision, [19(d)]);
(6)the applicant and Ms Comben were joint mortgagors in respect of two properties, at least one of which was the subject of refinancing arrangements as recently as 2015 (Tribunal’s Decision, [21(c) and (d)]);
(7)the applicant and Ms Comben jointly received rent payments related to one of the two mortgaged properties (Tribunal’s Decision, [21(e)]);
(8)the applicant and Ms Comben cooperate significantly in the raising of their daughter (who also lives at the same premises), which the applicant described as necessary to maintain a sense of family life for their daughter’s benefit (Tribunal’s Decision, [21(j)]); and
(9)the applicant and Ms Comben have limited the extent to which they have communicated their separation to others (Tribunal’s Decision, [22]).
The Tribunal’s analysis of the nature of the applicant’s relationship with Ms Comben was consistent with the requirements of s 4(3) of the SS Act. The Tribunal was required to and did consider the totality of their relationship, conscious that no single circumstance was necessarily determinative of its nature. The Tribunal’s task was to paint a picture from the accumulation of detail, giving consideration as appropriate both to circumstances inclining in favour of the conclusion that it reached, as well as those inclining against: Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546, 555-556 [46]-[47] (French J).
The applicant complains that the Tribunal’s Decision was inconsistent with affidavit evidence that he gave, by which he denied (little more than summarily) that he and Ms Comben were a couple. In relation to that complaint, the respondent submitted as follows:
While the Tribunal does not specifically mention the Applicant’s affidavit, the Respondent contends that it is clear from the Tribunal’s written reasons that it had regard to the Applicant’s evidence regarding his relationship with Ms Comben and his living arrangements. The Tribunal found, however, that despite the Applicant’s view that he was not a member of a couple—and having regard to the relevant factors outlined in section 4(3) of the Act—the evidence suggested that for the purposes of the Act the Applicant was a member of a couple.
With respect, that submission is unimpeachable and I accept it. Read fairly, the Tribunal’s Decision cannot be impugned on the basis that there was a failure to take account of the applicant’s evidence. It was plain that the applicant maintained—and that the Tribunal understood that he maintained—that he and Ms Comben were not a couple. Equally plain, however, is that the Tribunal did not accept that. The applicant’s complaint is, in truth, a call to this court to overturn the Tribunal’s Decision on its factual merits, rather than for reason of legal error. One might understand why the applicant would so submit; but that submission does not beseech a proper exercise of the court’s jurisdiction on appeal.
The Tribunal did not err in law by failing to take account of relevant evidence.
MISAPPLICATION OF S 24 OF THE SS ACT
By its decision, the Tribunal correctly recognised that one of the issues for it to determine was “whether a discretion should be exercised under section 24 of the [SS] Act to not treat the applicant as a member of a couple for the purposes of the Act”.
The Tribunal determined that it should not make such a determination under s 24 of the SS Act. It is convenient to replicate the passage from the Tribunal’s Decision that identifies why that course was taken:
28.The Tribunal has considered all of the applicant’s circumstances and having done so is not satisfied that a special reason exists for the applicant to be treated as not being a member of couple that would justify the exercise of the discretion. In particular the Tribunal acknowledges the following:
(a)as described earlier in these reasons, the Tribunal is satisfied that there is a considerable pooling of the joint resources of the applicant and Ms Comben.
(b)while the applicant may have experienced some difficulty in accessing what he considers to be his proper entitlement to joint assets owned by himself and Ms Comben the Tribunal is not satisfied that the applicant has taken all reasonable steps that are available to him to access such assets.
(c)the applicant suffers from ongoing health issues including anxiety and depression as well as having difficulty with his back and knee. This has given rise to a need for medication and health services and has also limited his capacity to take up employment in order to supplement his income.
(d)the applicant is experiencing some difficulty in securing consistent income through his greyhound activities. While he was previously securing quite significant income through his greyhound activities, which involve breeding, training and racing, the Tribunal is satisfied that income from those activities is at best inconsistent and more recently has been very limited.
(e)the Tribunal acknowledges that the applicant has had difficulty in meeting some personal expenses including medical expenses or expenses associated with his vehicle repair and registration although the Tribunal is satisfied that his general day to day needs are being met through the pooling of resources with Ms Comben.
(f)the applicant feels some genuine pressure to contribute more financially to the family and is concerned about the impact his inability to contribute more significantly from a financial perspective is having on his relationship with his children as well as Ms Comben’s relationship with his children.
29.While the Tribunal, like the Department, has not had the benefit of information regarding the true position of the applicant and Ms Comben’s joint financial position, there is certainly evidence before the Tribunal of the existence of significant joint assets. There was also evidence that Ms Comben continues to be employed and receive a regular income and that from time to time the applicant has earned significant income from his greyhound activities although, again, the Tribunal accepts that more recently that has been very limited.
30.As stated earlier in these reasons, the Tribunal is satisfied that, on balance, the applicant continues to live as a member of a de facto couple with Ms Comben. While the Tribunal recognises that the applicant feels some considerable pressure to contribute more financially than he is presently able to and that he feels that he is entitled to a greater share of the joint assets owned by both himself and Ms Comben, the fact is that he continues to enjoy the benefit of a significant degree of resource pooling. In those circumstances it would not be appropriate to exercise a discretion under section 24 in favour of the applicant entitling him to be treated as being single for the purpose of an assessment of his entitlement to the age pension.
31.While some of the applicant’s circumstances are difficult and present a significant challenge for him personally the fact is he has chosen to maintain those circumstances of his own free will. The Tribunal is not satisfied that there is a substantive practical impediment which would prevent the applicant from securing his own financial independence should he wish to do so. The fact is the applicant chooses to maintain the status quo. In saying that, the Tribunal acknowledges that he does so for quite noble reasons including a desire to not engage in an acrimonious family breakup and to maintain a sense of a loving and supportive family environment for his daughter.
32.For these reasons, the Tribunal does not consider that a special reason exists to exercise the discretion under section 24.
The discretion conferred by s 24 of the SS Act to determine that a person not be treated as a member of a couple is conditioned upon satisfaction that there is a “special reason” that inclines to that end. The SS Act does not define what might or might not qualify as a “special reason”. The relevant discretion is, then, broad and substantially unfettered; although it is not without boundaries, as the authorities demonstrate. A statutory discretion conditioned upon the existence of a “special reason” is “…a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule”: Jess v Scott (1986) 12 FCR 187, 195 (Lockhart, Sheppard and Burchett JJ). “Special”, in that sense, “…derives almost all of its meaning from its context”: Wu v Attorney General (1997) 79 FCR 303, 307 (Burchett J), citing Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576, 578-579 (Burchett J).
In order that he might impugn the Tribunal’s discretion not to make a determination under s 24 of the SS Act, the applicant would need to demonstrate that it erred in any one or more of the ways famously outlined by the High Court in House v R (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
By his written submissions, the applicant did not descend to analysis at that level. Analysing the Tribunal’s Decision myself, I can discern no error in the manner in which the Tribunal approached the exercise of its discretion. Impugning a discretionary decision is a difficult task at the best of times; it is more difficult still when, as here, the discretion in question is as broad as the one for which s 24 of the SS Act provides. Again, the applicant’s real complaint is not so much that the Tribunal’s discretion miscarried; but, rather and more simply, that he would have had it exercised in a different manner. That is not a basis upon which the decision might properly be impugned.
The Tribunal did not misconstrue its function under s 24 of the SS Act.
LEGAL UNREASONABLENESS
It is well accepted that, unless the contrary intention appears, the exercise of a discretionary power conferred by a statute is conditioned by a requirement that the power be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”), 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J). In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (Allsop CJ, Griffiths and Wigney JJ), this court——referring to Li, Singh and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ) and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 [43] (Allsop CJ, Robertson and Mortimer JJ)—observed (at 172 [65]) that:
…the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
In this case, there was ample foundation (see above, [23]) upon which the Tribunal could reasonably reach the conclusion that it did (namely, that the applicant was a member of a couple). That evidential foundation might well also have been capable of sustaining the contrary conclusion that the applicant urged the Tribunal to accept; but a decision will not properly be impugned as legally unreasonable merely because one outcome has been chosen over another. It is simply not the case that the only conclusion reasonably open to the Tribunal on the material with which it was provided was to find that the applicant was not a member of a couple.
The Tribunal’s Decision was not a product of legal unreasonableness.
CONCLUSION
The applicant has not established that the Tribunal’s Decision is tainted by an error of law. The appeal should (and will), on that basis, be dismissed with the usual order as to costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 11 February 2021
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