Rahman v Secretary, Department of Education, Employment and Workplace Relations
[2008] FCA 1634
•4 November 2008
FEDERAL COURT OF AUSTRALIA
Rahman v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1634
MOHAMMAD TABIBAR RAHMAN v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
NSD 1012 of 2008
COWDROY J
4 NOVEMBER 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1012 of 2008
BETWEEN: MOHAMMAD TABIBAR RAHMAN
Applicant
AND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
4 NOVEMBER 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The Applicant pay the costs of the Respondent in the amount of $4,000 pursuant to O 62 r 4(2)(c) of the Federal Court Rules (Cth).
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1012 of 2008
BETWEEN: MOHAMMAD TABIBAR RAHMAN
Applicant
AND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
JUDGE:
COWDROY J
DATE:
4 NOVEMBER 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By Application for an Order of Review filed on 7 July 2008 the applicant challenges two decisions of the respondent and invokes the jurisdiction of this Court pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) and s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’). The applicant is not legally represented.
FACTS
On 8 November 2007 the applicant received an offer of admission to the graduate program of study at the Australian National University to undertake the program Graduate Certificate of Australian Migration Law and Practice on a full-time and part-time basis, such program to commence on 25 February 2008. On 7 February 2008 the respondent received an application for Austudy from the applicant.
On 27 March 2008 such application was rejected upon the ground that the value of the applicant’s assets was above the allowable limit. The applicant challenges such decision.
The applicant complained to Centrelink, being the department of the respondent having the administration of Austudy. Centrelink responded to such complaint by an undated letter which provided details of the reasons for the rejection as follows:
Your claim was rejected because the total value of your assessed assets exceeded the assets value limit prescribed for Austudy.
The assets value limit for a single Austudy recipient who is a homeowner is $166,750. We have determined the total value of your assets to be $307,268. This includes financial assets of $127,197, real estate valued at $172,971, household contents of $5,000 and a motor vehicle of $2,100. Under s 573 of the Social Security Act 1991 Austudy is not payable if the value of a person’s assets exceeds the assets value limit. As a claim can be granted only if the delegate is satisfied that Austudy is payable, your claim had to be rejected.
The applicant has regarded the response to his complaint as a second decision of the respondent, even though such letter essentially provides details of the decision made on 27 March 2008.
The applicant has provided written submissions to the Court which, together with his application, raise numerous matters. The applicant claims that an ‘unlawful act, transgress and abuse of power’ has occurred; that the rules of natural justice have been breached; that the respondent made the decision of 27 March 2008 ‘based on forgery and false instruments’ relating to the applicant’s financial assets; and that the decision of 27 March 2008 ‘involves an error of law and must be void as the determination was affected by into [sic] corroboration of false instruments’ relating to the financial assets of the applicant. The applicant also submits that the respondent’s decision constitutes an attempt to disadvantage the applicant’s Austudy claim ‘by making a statement known to be false or misleading “in a material particular” or made with reckless disregard as to whether it is’.
The applicant has provided two affidavits in support of his application.
FINDINGS
Section 5 of the ADJR Act provides the right for a person who is aggrieved by a decision to which the ADJR Act applies to make application to the Federal Court or to the Federal Magistrates Court for an order of review upon the grounds enumerated in that section. However, s 10(2)(b) of the ADJR Act relevantly provides:
(b) the Federal Court or the Federal Magistrates Court may, in its discretion, refuse to grant an application under section 5… that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:
(i) …
(ii)that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.
The Court’s power to decline to entertain an application was considered by Branson J in McGowan v Migration Agents Registration Authority (2003) 129 FCR 118. In those proceedings the applicants sought review under the ADJR Act and alternative relief pursuant to s 39B of the Judiciary Act. As to the claim by the applicants made pursuant to s 39B of the Judiciary Act, her Honour observed that the Court may refuse to exercise the jurisdiction granted to it under s 39B of the Judiciary Act on discretionary grounds. As to the claim by the applicants under the ADJR Act, her Honour observed at [49]:
In the circumstances of this case, the discretion vested in the Court by s 10(2)(b)(ii) of the ADJR Act is conditional on the Court finding that adequate provision is made by a law, other than the ADJR Act, under which the applicant is entitled to seek review by a court, tribunal, authority or person of the decision of the respondent.
Her Honour declined to grant relief on the basis that adequate provision was made by the Migration Act 1958 (Cth) under which the applicants in those proceedings were entitled to seek a review before the Administrative Appeals Tribunal.
In Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission and Others (2008) 166 FCR 108 Gray and North JJ observed at [55] that prerogative writs might be refused in the discretion of the Court when it would be futile to grant them. Their Honours at [55] added ‘[t]hey may also be refused on the ground that some other course exists which would achieve the result sought to be achieved by the remedies’.
In the respondent’s undated letter which provided clarification of the reason for the rejection of the Austudy claim, the applicant was advised as follows:
As advised in our letter of 27 March 2008, you can ask for an Authorised Review Officer (ARO) to look at this decision if you disagree with it. The ARO will not have previously been involved in the decision concerning your Austudy claim. The ARO can change the decision if it is wrong, or if they agree with the decision they can tell you how to appeal to the Social Security Appeals Tribunal (SSAT). Remember, if you do not ask for the decision to be reviewed within 13 weeks of the letter of 27 March 2008, any change to that decision can only take effect from the date you ask for a review.
Under the Social Security (Administration) Act 1999 (Cth) (‘the Social Security Act’) the applicant has the option of seeking review by an Authorised Review Officer: see ss 129 and 135. If the review proves to be unfavourable to the applicant, he is entitled to appeal to the Social Security Appeals Tribunal: see s 142 of the Social Security Act. From that tribunal the applicant is entitled to seek review in the Administrative Appeals Tribunal: see s 179 of the Social Security Act.
The applicant provided no satisfactory explanation for not seeking to exercise such rights of review and instead has sought to appeal directly to this Court. The Court in the exercise of its discretion considers that it should decline to grant any relief in view of the procedures which exist enabling the applicant to appeal and which the applicant has sought to bypass. The Court declines to exercise its jurisdiction.
Having regard to the content of the affidavit of Dale Jennifer Watson and having considered the work that has been given to this matter by the respondent, the Court is satisfied that the amount of $4,000 which is sought represents an appropriate award for costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 4 November 2008
Solicitor for the Respondent: Australian Government Solicitor Counsel for the Applicant: The Applicant appeared in person.
Date of Hearing: 4 November 2008 Date of Judgment: 4 November 2008
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