Rahman v Secretary, Department of Employment and Workplace Relations

[2007] FCA 1013

FEDERAL COURT OF AUSTRALIA

Rahman v Secretary, Department of Employment and Workplace Relations [2007] FCA 1013

MOHAMMAD TABIBAR RAHMAN v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS AND SECRETARY, CENTRELINK AGENCY, DEPARTMENT OF HUMAN SERVICES
NSD 2336 OF 2006

MOORE J
5 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2336 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

MOHAMMAD TABIBAR RAHMAN
Applicant

AND:

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
First Respondent

SECRETARY, CENTRELINK AGENCY, DEPARTMENT OF HUMAN SERVICES
Second Respondent

JUDGE:

MOORE J

DATE OF ORDER:

5 JULY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The second respondent be removed as a party to the proceedings.

2.The application of 29 November 2006 be dismissed.

3.The notice of motion of 6 December 2006 be dismissed.

4.The applicant pay the first respondent's costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2336 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

MOHAMMAD TABIBAR RAHMAN
Applicant

AND:

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
First Respondent

SECRETARY, CENTRELINK AGENCY, DEPARTMENT OF HUMAN SERVICES
Second Respondent

JUDGE:	MOORE J
DATE:	5 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In February 2006, Mr Rahman's parenting payment was cancelled by Centrelink because his assets had been assessed as exceeding the assets value limit.  That decision was affirmed by the Social Security Appeals Tribunal ("SSAT") and the Administrative Appeals Tribunal ("AAT").  On 29 November 2006, Mr Rahman filed an application, by way of a notice of appeal, in this Court seeking to challenge the AAT's decision.  By notice of motion filed 8 January 2007, the Secretary of the Department of Employment and Workplace Relations seeks orders that the notice of appeal be struck out or dismissed as incompetent and that the entity named as the second respondent to the notice of appeal be removed as a party. 

2. The first respondent has informed the Court that the entity described as the second respondent to the notice of appeal, "Secretary, Centrelink Agency, Department of Human Services", does not exist.  The Secretary of the Department of Human Services and the Chief Executive Officer of Centrelink have filed appearances on the basis that the appellant may have intended to refer to either or both of these persons, although they have not been formally joined as parties. 

   Background

3. Mr Rahman was a single parent with two children who was in receipt of a parenting payment (single). His assets included his own home which was unencumbered and an investment property at Holsworthy bought in November 2002 for $349,000 and subject to a mortgage. On 16 December 2004, Centrelink cancelled his payments on the basis that his assets exceeded the then assets value limit of $153,000. That limit is prescribed for the purposes of s 500Q of the SS Act. The decision of Centrelink was ultimately set aside by the AAT on 16 January 2005. The AAT valued his assets at $151,026 as at the date of cancellation, and found the Holsworthy property was valued at $330,000. Some time after the cancellation of 16 December 2004, Mr Rahman provided Centrelink with a new valuation of the property as $300,000 as at November 2005. Centrelink then sought a valuation through a valuer of the Australian Valuation Office ("AVO"). The valuation, dated 31 January 2006, valued the property at $350,000. Centrelink valued his assets at $179,458, which was in excess of the then allowable limit of $157,000. As a result, Centrelink cancelled his payments a second time, on 10 February 2006. An internal review followed, which affirmed the decision of 10 February 2006. It found that the property was valued at $340,000, and valued Mr Rahman's assets at $169,780. On 2 June 2006, the SSAT affirmed Centrelink's cancellation decision. It determined that the total value of his assets was $165,242.50.

4. On 13 November 2006, the AAT handed down a decision affirming Centrelink's decision of 10 February 2006. Mr Rahman took issue with the fact that Centrelink had cancelled his payments after the Tribunal had set aside Centrelink's earlier decision to cancel the payments. The Tribunal noted that Centrelink had powers and responsibilities to monitor and review entitlements under social security law, including broad powers to review a decision on its own motion: see s 126 of the Social Security (Administration) Act 1999 (Cth) ("SSA Act"). The Tribunal also observed that the first AAT decision had not made any findings as to the value of assets as at the date of the hearing but had rather confined itself to the value as at the date of cancellation by Centrelink. The reassessment which was the basis of the second cancellation had also been prompted by the new valuation which Mr Rahman himself had provided to Centrelink.

5. In relation to the value of the property, the Tribunal preferred the evidence, submitted by Centrelink, of an AVO valuation of $340,000 as at 18 April 2006.  In preferring this valuation, the Tribunal noted that it was by a registered valuer, did not contain the qualifications present in some of the reports relied on by Mr Rahman, it was detailed, and it clearly established the basis for the valuation.  The Tribunal assessed his total assets at $168,402.85, which exceeded the limit of $157,000.  It noted also that had it accepted Mr Rahman's valuations of $330,000, he would still have exceeded the limit.

6. Centrelink also contended before the Tribunal that funds of over $140,000 held by Mr Rahman in a mortgage offset account, according to recently obtained statements, were to be included in Mr Rahman's total assets.  Mr Rahman claimed that these funds were borrowed from family and friends following loss of his job in 2003.  The Tribunal considered his evidence in this respect was "unlikely".  However, it was unnecessary to include these funds in the assessment of his assets because his assets as determined by the Tribunal already exceeded the assets value limit.

   The notice of appeal

7. Mr Rahman is unrepresented.  The notice of appeal is 21 pages in length.  It identified three decisions as being those from which appeal was sought, being decisions of Centrelink, the SSAT and the AAT.  However, the notice of appeal was made under O 53 r 2 of the Federal Court Rules, which provides for appeals from the AAT.  Much of the notice of appeal is difficult to follow.  Under the heading "The Questions of Law", it lists a number of statutes.  The next section, headed "Concern", makes various allegations about the AAT, SSAT and Centrelink, including allegations of corruption and claims that the Tribunal members lacked "functional legal expertise" and were "not legally qualified with legal experience".  The nine pages which follow contain mostly extracts of legislation. 

8. The next section is headed "Order sought". Five orders are identified. The first is an order pursuant to s 22 of the Federal Court of Australia Act 1976 (Cth) setting aside the decision of the AAT of 13 November 2006. The second order sought is for an order pursuant to s 23 of the Federal Court Act to issue writs or interlocutory orders under ss 203 and 204 of the SSA Act. The third order sought is the costs of the proceedings. The fourth order sought is "cost for psychological stress and mental tortures since 2004". The fifth order is for any other costs the Court thinks "most appropriate in these long standing proceedings".

9. The section which follows is headed "Grounds" and is eight pages in length. This section is difficult to follow. In part it summarises the applicant's dealings with Centrelink since it first cancelled his parenting payment in December 2004. There is a claim that in cancelling his payment a second time, Centrelink "failed to follow and abused" a number of sections of the SS Act and SSA Act. It also claims that the SSAT and AAT ignored the evidence which the applicant provided regarding the valuation of the property, other assets and liabilities. There is a list of 28 questions and statements, interspersed with extracts of legislation. The questions relate to the decisions of Centrelink, the SSAT and the AAT. By way of example, one such question is:

   On what basis of Evidence Act 1995, did the Tribunal Members AAAT&SSAT determined and validate the value of the appellant's property is $350,000 and $340,000 and uphold for decisions $340,000, when on 16 January 2006, AAT's judgment confirmed the value is $330,000 on 2004 and $300,000 for November 2005, with an effect decline of property values with increase of interest rate twice by the federal Reserve Bank of Australia (Documents in the File)?

10. Under the same section, the application goes on to make a number of other claims and pose other questions, which appear to relate to Centrelink's reliance on a valuation provided by the AVO.

11. Mr Rahman has also filed a number of other documents. One is a notice of motion filed 6 December 2006 seeking "convictions" under the SSA Act, which reflects the second order sought in the notice of appeal. The applicant has also filed a document entitled "notice of amendments", the intended effect of which appears to be to name additional respondents to the motion, the additional respondents being identified as "Chief Executive Officer, Centrelink, Agency of the Department of Human Services, Department of Employment and Workplace Relations and other Commonwealth Departments". Six individuals who in the notice of motion appeared under the heading "name each party affected by orders sought" would, by virtue of the notice of amendments, appear as parties against whom Mr Rahman moves the Court. Those individuals appear to be four officers of Centrelink, and two officers of the AVO.

    The notice of motion

12. Only the Secretary of the Department of Employment and Workplace Relations was a respondent to the AAT decision.  The first respondent sought an order that the second respondent be removed as a party to the proceedings.  That order should be made.

13. The second order sought by the first respondent was that the notice of appeal be struck out as incompetent on the basis that the notice of appeal did not set out any questions of law as required by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"). The first respondent submitted that the applicant had not attempted to frame any question of law for the Court to determine. Rather, he had referred to a number of statutes and then, under the heading "Concern", set out a number of generalised complaints about an earlier review process. It was submitted that as currently framed, the notice of appeal did not engage the Court's jurisdiction and should be dismissed: see Birdseye v Australian Securities and Investment Commission (2004) 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290, and Comcare v Etheridge (2006) 149 FCR 522.

14. The third order sought, in the alternative, was that in so far as the notice of appeal sought orders other than the setting aside of the AAT decision handed down on 13 November 2006 and the remittal of the matter back to the AAT, the notice of appeal be dismissed as incompetent on the basis that no jurisdictional basis was pleaded for the other relief sought.  The appellant appeared to challenge actions and to seek relief in relation to matters outside the scope of any appeal from the AAT. 

15. The fourth order sought by the first respondent, in the alternative, was that in so far as the notice of appeal seeks to appeal from decisions of the SSAT and Centrelink, it be dismissed as incompetent on the basis that the Federal Court has jurisdiction under s 44 of the AAT Act only in relation to a decision of the AAT. If the appellant relied on some other source of jurisdiction for review of those decisions, he should identify the basis on which the Court has jurisdiction to consider those issues. The first respondent submitted that even if some jurisdictional basis for review of Centrelink's decision of 10 February 2006 to cancel the visa could be made out, the Court should decline to exercise jurisdiction to grant relief as that decision had been the subject of full merits review by the AAT and had essentially been rendered irrelevant by that decision. The AAT had assessed Mr Rahman's assets as at the date of the AAT decision, not as at the date of Centrelink's decision.

16. One of the orders sought by the appellant was damages.  The first respondent submitted that no basis for damages had been identified.

17. The first respondent's submissions about the AAT decision were as follows. The AAT had identified the issue as being whether the appellant's total assets exceeded the assets value limit for the purposes of s 500Q of the SS Act. The essential matter was the value of Mr Rahman's investment property. Mr Rahman had provided a valuation of $300,000 and Centrelink had provided one of $350,000. Both were independent valuations. The AAT made a finding of fact preferring the valuation submitted by Centrelink, the reasons for which were provided. This led to the calculation that his assets exceeded the limit for receipt of the payments. The AAT decision therefore turned on a finding of fact, and the appellant has not identified any question of law grounding an appeal from the AAT.

    The applicant's submissions

18. The applicant filed written submission and made oral submission at the hearing.  The applicant's written submissions were difficult to follow and contained a mix of propositions, extracts of legislation and case references.  The written submissions assert that the AAT:

    … totally failed to provide procedural fairness and have failed to take into account the relevant facts, documented evidences and failed to apply the appropriate laws and have regard to an irrelevant matter and applied their own self-made law or have applied their own interpretation of laws, or the decision may have been so unreasonable that no reasonable decision maker could have to it.

19. At the hearing, the applicant said that the notice of appeal was intended as an appeal against the AAT decision of 13 November 2006 under s 44 of the AAT Act, as well as under sections of other Acts, and he referred specifically to the Judiciary Act 1903 (Cth). When asked where in the notice of appeal or supporting affidavit the question of law was identified, the applicant referred to the list of legislation which appears in the notice of appeal and to his rights under s 44 of the AAT Act. When asked where the applicant had identified the legal error made by the AAT, he referred again to s 44 and various procedural matters, but went on to assert that he had "Categorically mentioned questions of the law from the AAT". It emerged from the discussion at the hearing that the applicant had a number of complaints about the Centrelink decision. A number of these matters were also raised in his filed documents. The complaints included that Centrelink had cancelled his payments without notice, had obtained a valuation of his property without his permission or authorisation, that Centrelink had gone on to cancel his payment a second time just days after the AAT had set aside an earlier decision to cancel his payment, and that the valuation that Centrelink relied upon was provided by the ATO. He also claimed that the AAT had proceeded on the erroneous assumption that he was a pensioner and therefore potentially entitled to parenting payment, whereas he should be on NewStart allowance because he lost his job. He said he could not be a single parent because he was a widower.

    Consideration

20. The notice of appeal should be struck out or dismissed as incompetent for the reasons the respondent has given. In so far as the notice of appeal seeks orders that the decision of the AAT of 13 November 2006 be set aside, the applicant has not set out any question of law for the purposes of s 44 of the AAT Act. Order 53 r 3 of the Federal Court Rules sets out the form of notice of appeal when an appeal is brought against a decision of the AAT on a question of law. The requirements are, inter alia, that the notice of appeal shall state "the question or questions of law to be raised on the appeal" and "briefly, but specifically, the grounds relied upon in support of the order sought". In Birdseye, Branson and Stone JJ (with whom Marshall J agreed in this regard) made the following comments regarding the form of notice of appeal required by the Federal Court Rules (at [18]):

    In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on appeal from the tribunal should be stated with precision as a pure question of law.  It is the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal…

21. The notice of appeal in this case falls well short of those requirements.  What the applicant has done is to identify various legislation which may be relevant to his application, set out at some length certain provisions of that legislation, and to make some assertions and general complaints about the decisions of the Centrelink, the SSAT and the AAT.  To the extent that the applicant has attempted to identify any appealable errors on the part of the AAT, they were in terms verbose, repetitive and difficult to understand.  In other respects, they were in terms so general as to be meaningless (as in the case of those mentioned at [18]), at least in the absence of any intelligible grounds having been identified.

22. Some allowance must be made both for the fact that the applicant is not legally represented (although he claimed at the hearing that he had legal training) and for the evident fact that his first language was not English.  However, even allowing some latitude in these respects, there is nothing in the material the applicant has filed that can sensibly be accepted as a question of law upon which an appeal might be founded, nor grounds linking the questions of law to the facts, such as to satisfy the requirements of the Rules.  

23. In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Gummow J said:

    Section 44 of the AAT Act is expressed in narrower terms than the old s 196 of the Tax Act. This provided for appeals from the Board of Review which “involved” a question of law. The result was that if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law … This no longer will be the case with appeals brought to this court under s 44 of the AAT Act. The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself … [citations omitted]

24. Those observations have been cited with approval in a number of cases, including by Branson and Stone JJ in Birdseye at [10] and [16]. The final sentence of the passage cited above underscores the importance of an applicant articulating the question or questions of law raised in the appeal. It is essential to identify a question of law in order to enliven the Court's jurisdiction and to define the scope of the appeal. It is not the role of the Court to sift through the notice of appeal and other material which the applicant has filed, much of which is almost incomprehensible, and decipher what possible questions of law he might be seeking to raise or which grounds of appeal could possibly be inferred.

1. The second order sought by the applicant in the notice of appeal was for the Court to issue writs or for interlocutory orders under certain provisions of the SSA Act, namely ss 203 and 204, which proscribe offences under the Act. The notice of appeal also referred to s 23 of the Federal Court Act which provides that the Court has power, in relation to matters in which it has jurisdiction, to make orders and issue writs as the Court thinks appropriate. As the respondent submitted, no jurisdiction has been identified. The applicant's notice of motion, which also seeks under provisions of the SSA Act, being the sections referred to in the notice of appeal as well as ss 205 and 206, also does not disclose any jurisdictional basis for the orders sought. It should be noted in this context that s 39B(1A)(c) of the Judiciary Act 1903 (Cth) specifically excludes criminal matters from the Court's original jurisdiction. The applicant's notice of motion is incompetent and should be dismissed.

2. Similarly, no jurisdictional basis has been pleaded for the damages claimed by the applicant and the notice of appeal is incompetent in this respect.

3. It is clear from the documents the applicant has filed, and from what was said by the applicant at the hearing, that the applicant seeks to challenge not only the decision of the AAT but also decisions of Centrelink and the SSAT. The Court's jurisdiction under s 44 of the AAT Act is limited to decisions of the AAT. In his written submissions, the applicant referred to s 5 of the Administrative Decisions (Judicial Review) Act 1977 Act (Cth). He also mentioned the Judiciary Act at the hearing. However, there was no mention of either Act in the notice of appeal and there has been no attempt to lay a comprehensible foundation to exercise jurisdiction under either of these Acts.

4. The applicant's application of 29 November 2006 and notice of motion of 6 December 2006, should be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        5 July 2007

The Applicant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	24 May 2007
Date of Judgment:	5 July 2007