Roe and Creswick and Anor (SSAT Appeal)
[2014] FCCA 2196
•23 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROE & CRESWICK & ANOR (SSAT APPEAL) | [2014] FCCA 2196 |
| Catchwords: CHILD SUPPORT – Review of decision from SSAT – no error of law found. |
| Legislation: Child Support (Assessment) Act 1989, s.117 Child Support (Registration & Collection) Act 1988, ss.103C, 103N, 110K |
| Carrigan & Fredericks (SSAT Appeal) (2011) 45 Fam LR 657 Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 |
| Applicant: | MR ROE |
| First Respondent: | MS CRESWICK |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | ROC 607 of 2012 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 15 August 2014 |
| Date of Last Submission: | 15 August 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 23 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Galloway |
| Solicitors for the Applicant: | Madden Solicitors |
| Counsel for the First Respondent: | Dr Sayers |
| Solicitors for the First Respondent: | Harrington Family Lawyers |
| Solicitors for the Second Respondent: | Department of Human Services |
ORDERS
That the Amended Notice of Appeal (Child Support) filed 21 July 2014 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Roe & Creswick & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
ROC 607 of 2012
| MR ROE |
Applicant
And
| MS CRESWICK |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal of the decision of the Social Security Appeals Tribunal (“the SSAT”). The decision was handed down on 27 March 2014. The date of the decision was 25 March 2014.
The appellant in the appeal is Mr Roe. The first respondent is Ms Creswick and the second respondent is the Child Support Registrar. The parties are the parents of a child, X, born (omitted) 2001. X is presently thirteen.
It is the appellant’s submission that the SSAT:
a)Has failed to consider relevant evidence;
b)Has failed to afford procedural fairness;
c)That certain findings made by the decision maker were unreasonable and against logic; and
d)That the decision of the SSAT was affected by bias.
The Background
The background in relation to this matter is summarised in the decision of the SSAT. There does not seem to be any contest about those findings. The background relevantly is:
“[1] Ms Creswick and Mr Roe are the parents of X (born (omitted) 2001) of whom Ms Creswick has 58% care and Mr Roe 42%.
[2] On 12 November 2012, Mr Roe advised the Child Support Registrar (the Registrar) that he had ceased work to be a stay at home dad; had no sources of income and was being supported by his wife who worked fulltime.
[3] On 29 November 2012, the Registrar assessed child support for X from 12 November 2012 to 31 December 2013 based on Mr Roe’s income estimate of $0.
[4] On 4 June 2014 (following contact with the Registrar as to what she should do if she believed that Mr Roe was working and how to complete the Application to Change your Assessment form), Ms Creswick sought a departure determination on the basis of Mr Roe’s income, property, financial resources and earning capacity (Reason 8 of the form).
[5] On 15 July 2013, a senior case officer determined that Mr Roe’s adjusted taxable is $276,372 for the period 1 July 2013 to 31 October 2016.
[6] On 22 July 2013, Mr Roe objected to the decision of the senior case officer.
[7] On 31 October 2013, a delegate of the Registrar determined that Mr Roe’s income was the self-support amount of $21,622 for the period 1 July 2013 to 31 August 2013; the self-support amount of $22,379 for the period 1 September 2013 to 30 November 2013; and that “thereafter the normal provisions of the Child Support (Assessment) Act 1989 [the Assessment Act] apply and will rely on [Mr Roe’s] 2013 adjusted taxable income of $64,856 and [Ms Creswick’s] “2013-14 estimated income of $26,749”. This determination created an overpayment of $953.58 by Mr Roe to Ms Creswick.
[8] On 28 November 2013, Ms Creswick applied to the SSAT for review of the decision on Mr Roe’s objection. Ms Creswick served a copy of this application and supporting documents (45 pages) on Mr Roe who sent a response (marked B1-83) to the SSAT.
[9] On 15 January 2014, a delegate of the SSAT Principal Member convened a directions hearing. Pursuant to directions made by the Principal Member, documents marked A1-83 were received from Ms Creswick and documents marked B84-114 from Mr Roe. As a result of the issues of notices issued by me to the Registrar under subsection 103L(1) of the Child Support (Registration and Collection) Act 1988 (the Collection Act), documents marked C1-186, D1-4 and O1-13 were received from the Registrar. As a result of a notice issued under subsection 103K(1) of the Collection Act, documents marked O14-O60 were received from Ms A.
[10] The application for review was heard by me on 3 March 2014. At my request, Ms A provided further documents which were marked O61-O76. These documents were redacted by Ms A or Mr Roe without my leave. In response to directions made by me on 13 March 2014, Mr Roe provided information and made written submissions on exhibit C (which I discovered that the registry had omitted to send to the parties). These documents were marked exhibit B115-117. Ms Creswick advised the SSAT that she did not wish to make submission on exhibit C.”
[Footnotes omitted.]
The Material before the SSAT and on Appeal
I have considered the following material:
a)The notice of appeal filed 24 April 2014;
b)The amended notice of appeal filed 21 July 2014;
c)The affidavit filed 23 July 2014;
d)The first respondent’s outline of submissions filed 1 August 2014;
e)The second respondent’s submissions filed 8 August 2014; and
f)The appellant’s submissions filed 15 August 2014.
I have also considered exhibit 1, which was the s.110K documents tendered by the second respondent.
The Grounds for Appeal
The applicant contends as follows in the Amended Notice of Appeal (Child Support) filed 21 July 2014:
“Orders sought:
[1] The Appeal be allowed.
[2] The Decision of the Social Security Appeals Tribunal dated 25 March 2014 be set aside.
[3] The determination of the delegate of the Registrar dated 31 October 2013 be confirmed.
Grounds of Appeal
[1] The Social Security Appeals Tribunal erred in law in failing to consider the evidence that the Respondent received rental income from the property at Property V and in failing to require Mr G to give oral evidence.
[2] The Social Security Appeals Tribunal erred in law in failing to accord procedural fairness to the Applicant by:
(a) conducting the hearing prior to the Applicant being provided with the documents provided by (omitted) Ltd referred to as Exhibit C in the Directions made by the Social Security Appeals Tribunal on 13 March 2014; and
(b) failing to require the Respondent to provide un-redacted copies of her bank statements to the Applicant.
[3] The Social Security Appeals Tribunal erred in law in finding that:-
(a) the Applicant could become an officeholder of (omitted) Pty Ltd at will;
(b) the shareholding in (omitted) Pty Ltd would change if the Applicant so requested;
(c) the amounts charged for “(omitted) Pty Ltd” on the tax invoices issued by (omitted) Pty Ltd since July 2012 refer to work done by the Applicant;
(d) the pre-tax profits of (omitted) Pty Ltd for 2012-13 were over $300,000.00;
(e) the total billings in respect of the Applicant in 2012-13 were $426,500.00; …
(f) the total billings in respect of the Applicant in the first half of 2013-14 were $183,000.00; and
(g) any software developed for use by (omitted) Pty Ltd during that period (2005 to 30 June 2009) was developed by the Applicant.
as those findings were not open on the evidence, were unreasonable and against logic.
[4] The Social Security Appeals Tribunal erred in law in determining that the Applicant’s adjusted taxable income was $300,000.00 from 1 July 2012 as that determination was not open on the evidence, was unreasonable and against logic.
[5] … The decision of the Social Security Appeals Tribunal was affected by bias.”
The Legal Framework
The legal framework is set out in Carrigan & Fredericks (SSAT Appeal) (2011) 45 Fam LR 657:
“The nature and legislative basis of appeals to this court from the SSAT
[94] The nature of an appeal to this court, from a decision of the SSAT, is governed by the provisions of Division 3 of Part VIIA of the Collection Act, in particular section 110B, which reads as follows:
“A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.”
[95] This court is authorised to hear such appeals from the SSAT by virtue of the provisions of section 110E of the Collection Act. Pursuant to section 110F of the Collection Act, having determined any such appeal, I am authorised to make any order, which I believe is appropriate but particularly may:
· affirm or set aside the decision of the SSAT; or
· remit the case to be heard again by the SSAT, either with or without the hearing of further evidence.
[96] The first question to consider is what is the nature of an appeal on a “question of law”? The provisions of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 have significantly reformed the review process in respect of administrative decisions of the Child Support Registrar. The legislation has inaugurated an independent process of review through the SSAT. This process is external of the Agency’s processes and is administrative in nature.
[97] Pursuant to the provisions of section 110B, any further appeal from the SSAT is limited in nature. It is limited only to an examination of how the SSAT applied or failed to apply the applicable principles of law, which were relevant to the determination of the appeal issue which came before it.
[98] As such, an appeal to this court, pursuant to section 110B, does not constitute a rehearing on the merits of the case nor should this court, other than in exceptional circumstances, challenge findings of fact made by the SSAT.
[99] The power of this court, in an appeal from the SSAT, to make finding of facts is limited by the provisions of section 110G of the Collection Act. The court may make a finding only if the following two provisos are satisfied:
· Such a finding of fact is not inconsistent with findings of fact made by the SSAT – other than findings made by the SSAT as a result of an error of law.
· It is convenient for the court to make such findings of fact.
[100] Pursuant to section 110G(2) for the purpose of making such findings of fact the court may either have regard to the evidence given in proceedings before the SSAT itself or receive further evidence. However, it is clear that the power to receive further evidence is dependant upon the court discerning an error of law in the decision of the SSAT, which is subject to appeal.
[101] Essentially, this court, in its appellant jurisdiction from the SSAT, must be careful not to allow evidence to be adduced in the hope advocated by any appellant that an error of law will thus be demonstrated.
[102] Accordingly, this court should not be concerned as to whether or not it would have come to the same conclusion as the SSAT did, but only whether the SSAT erred in law, as it is only in “exceptional circumstances” that the decision of the Tribunal should not be the final decision.
[103] It is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision.
[104] As such, I should be cautious to approach the decision of the SSAT with “an eye [which is] too keenly attuned to perception of error”. Rather I should take a commonsense approach to what the SSAT was saying in its decision and the reasons why it did said what it said.
[105] An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:
· fails to construe properly the legislative provisions applicable;
· identifies the wrong issues or asks itself the wrong questions;
· ignores relevant material or relies on irrelevant material;
· fails to accord procedural fairness to the party before it;
· makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.
[106] As Gleeson C.J. pointed out in Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 [(2003) 198ALR]:
“To describe reasoning as illogical, or unreasonable or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision maker, and to identify the legal principal or statutory provision that attracts the suggested consequence.”
[107] In Collector of Customs v Pressure Tanker Pty Ltd and Pazzolanic Enterprises Pty Ltd [[1993] 43 FCR 280], the Full Court of the Federal Court, in respect of the Administrative Appeals Tribunal, characterised the nature of an appeal, restricted to a question of law, from a fact finding and decision making tribunal as follows:
“… the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”
[108] In summary, an appeal on a question of law:
· is not a review on the merits or a rehearing;
· as such, an appeal on a question of law is not one in which findings of fact, per se, can be called into question;
· however, bearing in mind the statutory intent implicit in Part VIII of the Collection Act and the purpose of the Federal Magistrates Court itself, in dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented;
· in reviewing a decision of the SSAT for error, the court should not examine the decision in question with an eye “keenly attuned to the perception of error”.”
[Footnotes omitted.]
Ground 1
The applicant’s first ground of appeal can be separated into two separate limbs. The applicant asserts that the SSAT erred in law by:
a)Failing to consider evidence that the applicant received rental income from the Property V property; and
b)Not requiring the applicant’s partner to give oral evidence.
The error would be, with respect to the first limb, a failure of the decision maker to consider a relevant piece of evidence which may give rise to a question of law. I accept the submission of the Child Support Registrar, that it is not sustainable in the face of the specific finding made by the SSAT at paragraph 80:
“[80] … there are no special circumstances and I do not consider that it is appropriate to have regard to the rental income derived by Mr Harrington who has no duty to maintain X. …”
In fact, the decision maker goes on through paragraphs 80 – 85 to give reasons for that conclusion. Furthermore, the rental income referred to by the SSAT, was the income derived from the Property V property.[1] I accept the submission of the Child Support Registrar, that the finding was made pursuant to s.117(7K)(b)(i) of the Child Support (Assessment) Act 1989 (“the Assessment Act”) and was one of fact, not law.
[1] See s.110K documents; exhibit C36 – C39 and A81-A83.
As to the second complaint, it is submitted by the Child Support Registrar that the procedural fairness, in the context of the proceedings before the SSAT, must be viewed within the particular statutory framework as set out in the Child Support (Registration & Collection) Act 1988 (“the Collection Act”). He refers to Kioa v West [1985] HCA 81 at paragraphs 32 – 35 to support that submission:
“[32] Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, Kitto J. pointed out (at pp 503-504) that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on “'the particular statutory framework.” What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 552-553; National Companies and Securities Commission v. The News Corporation Ltd. [1984] HCA 29; (1984) 58 ALJR 308, at pp 314, 318; [1984] HCA 29; 52 ALR 417, at pp 427-428, 434).
[33] In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations (cf. Salemi (No. 2), at p.451, per Jacobs J.).
[34] When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.
[35] Notwithstanding the characteristics of the power and the elements in the statutory framework which were thought in Salemi (No. 2) and Ratu to indicate an intention to displace the principles of natural justice in relation to s.18, I do not think that it can now be said that the Migration Act as it has been amended wholly displaces the duty to act fairly in accordance with the doctrine of natural justice. In one very important respect there has been a radical legislative change. The exercise of the power is susceptible of judicial review and an element in that review is the obligation, on request, to furnish a statement setting out material findings of fact, referring to the evidence and other materials, and giving the reasons for the decision. In the light of this it can scarcely be suggested now that the existence of an obligation to comply with the requirements of procedural fairness is inconsistent with the statutory framework or that it will entail administrative inconvenience which is destructive of the statutory objects. In this new setting the remaining considerations which influenced the Court in the two earlier decisions are not sufficient to displace the obligation to follow fair procedures.”
I note that s.103N of the Collection Act provides:
“103N Hearing procedure
(1) The SSAT, in reviewing a decision under this Part:
(a) is not bound by legal technicalities, legal forms or rules of evidence; and
(b) is to act as speedily as a proper consideration of the review allows.
(2) The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.
Note: The SSAT Principal Member may give directions as to the procedure to be followed in connection with reviews (see section 103ZA).”
I have considered the transcript I was referred to by Mr Galloway of Counsel, for the applicant, and I note the decision maker, in an exercise of her discretion, did not consider the oral evidence of Mr Harrington necessary to the review, given the documentary evidence that had been submitted[2]. I note also that the applicant was afforded an opportunity, following the hearing, to make further written submissions[3].
[2] See SSAT transcript, pages 3 – 5.
[3] See directions of the SSAT Principal Member dated 14 March 2014, B115 – 117.
There was no failure to afford the applicant procedural fairness by not requiring the mother’s partner to give oral evidence because the decision maker did not consider the evidence necessary and gave reasons for that decision.
Ground 2
The applicant submits that the SSAT erred in law in failing to afford procedural fairness to the applicant by:
a)Conducting the hearing prior to the applicant being provided with documents provided by (omitted) Ltd, referred to as exhibit C in the directions made the SSAT on 13 March 2014; and
b)Failing to require the respondent to provide un-redacted copies of her bank statements to the applicant.
Counsel for the applicant submitted that the applicant did not have the benefit of the material from (omitted) Ltd during the course of the oral hearing on 3 March 2014. He was therefore unaware of the documents referred to in Ground of Appeal 1. It is submitted that because he did not have these documents, he was deprived of the opportunity to ask that the Principal Member question the respondent and Mr Harrington on those documents.
The reasons for judgment, at paragraph 10, note that directions were made on 13 March 2014 that allowed the applicant, Mr Roe, to make written submissions on the documents (exhibit C), because it was discovered that the registry had omitted to send these documents to the parties. Mr Roe availed himself of that opportunity of the Collection Act.
I note, in the transcript at page 4, line 15, the Member says:
“… Okay. Well let me – I will be coming to the material which has been sent to you, but let me tell you at the moment there is some material which, to my regret, I discovered this morning the registry had not sent to you, but which will be sent to you after this hearing. Now, that material consists of some documents that were obtained by the tribunal through the Child Support Registrar from (omitted) Ltd, and those documents related to any property, applications for loans, mortgages, in relation to Ms Creswick and Mr Harrington, and I, of course, have a copy, and, as I said, you will be sent one, and I can tell you that the documentation provided by (omitted) Ltd shows the acquisition of a property by Mr Harrington for which the full costs of that property, purchase price and transaction, were borrowed.”
I am satisfied that the applicant was given an opportunity to make oral and written submissions, as he is entitled to do so under s.103C(1) of the Collection Act, and the approach taken by the decision maker was consistent with the procedure set out in s.103N of the Collection Act.
With respect to the second complaint, the redaction of the information on the first respondent’s bank statements, the sitting Member, during the hearing, took some evidence in relation to that. The information that was redacted related to bank account numbers and payroll numbers only. The applicant made numerous submissions in relation to this concern, including an assertion that the first respondent had other accounts. These allegations were put to the first respondent by the decision maker.
I am therefore not persuaded that there has been a failure to accord procedural fairness in the circumstances of the two scenarios set out in Ground 2.
Ground 3
In Ground 3 it is submitted that the SSAT erred in law in finding that:
a)The applicant could become an officeholder of (omitted) Pty Ltd at will;
b)The shareholding in (omitted) Pty Ltd would change if the applicant so requested;
c)The amounts charged for “(omitted) Pty Ltd” on the tax invoices issued by (omitted) Pty Ltd since July 2012 refer to work done by the applicant;
d)The pre-tax profits of (omitted) Pty Ltd for 2012-13 were over $300,000.00;
e)The total billings in respect of the applicant in 2012-13 were $426,500.00;
f)The total billings in respect of the applicant for the first half of 2013-14 were $183,000.00; and
g)Any software developed for use by (omitted) Pty Ltd during that period, 2005 – 30 June 2009, was developed by the applicant.
It is submitted by the applicant that these findings were not open on the evidence, were unreasonable and were against logic.
The applicant relies on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 and submits that the guidelines provided by the Court in relation to procedural fairness, in the context of evidentiary material, are relevant to the present case. Their Honours stated at paragraph 47:
“[47] … But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
It is submitted by counsel for the applicant that the finding that the applicant could become an officeholder of (omitted) Pty Ltd, or change the shareholdings at will was not available on the evidence. There was no evidence as to what voting rights the I class share gave. It was also submitted that Ms A, Mr Roe’s partner, was the only officeholder and it is for the board of directors to determine what, if any, changes are made to the shareholding of the company. It was submitted that the Principal Member did not question Ms A about whether or not she would vote in support of the applicant becoming an officeholder or change the shareholders in the company, nor did she question the applicant on these topics. It is submitted that there was no evidence to support these conclusions.
The SSAT found that the amount charged to “(omitted) Pty Ltd” on the tax invoices issued by (omitted) Pty Ltd since July 2012 refers to work done by the applicant. I note this proposition was put to Ms A and rejected. It was also put to the applicant who rejected it. However it is argued there was no request for either witness to explain why their evidence should be accepted. It is submitted that, in her evidence, Ms A described the experience and qualifications she had relevant to the works being undertaken by (omitted) Pty Ltd in the years under review[4]. It was not put to her that she did not in fact do the work, nor was it put to her that she was not responsible for most of the works undertaken by the company offsite. It was also submitted that the evidence of the applicant, that the word processing template for the tax invoices for (omitted) Pty Ltd automatically generated the initials “(omitted) Pty Ltd” for works done by non-contractors, was not challenged by the Principal Member and the applicant was not given an opportunity to explain why his explanation should be accepted.
[4] See page 15 and pages 51-53.
It was submitted by the applicant that the findings in relation to the “(omitted) Pty Ltd” are challenged in grounds of appeal 3(e) and 3(f).
The finding that the pre-tax profits of (omitted) Pty Ltd were over $300,000.00[5] is based on the finding that the only expenses of (omitted) Pty Ltd were the payments to the three contractor (omitted). The applicant submits that this ignores the commercial reality, the official documents of the company and the evidence of Ms A and is not based on any evidence at all. It was further submitted that it was never put to Ms A or the applicant that the only expenses of (omitted) Pty Ltd were the payments made to the three contractor (omitted).
[5] See Ground of appeal 3(d).
In the case of Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 the Full Court of the Family Court summarised the relevant principles to be applied in an appeal to this Court on a question of law from a decision of the SSAT as follows:
“[54] The following principles emerge from these authorities and have relevance to our decision as to whether the Federal Magistrate erred in his review of the SSAT decision in a manner which requires our intervention:
· The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law (Al-Miahi).
· The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law (Al-Miahi).
· A wrong finding of fact is not an error of law (Al-Miahi).
· A finding of fact based on reasoning that is “demonstrably unsound” or on an “illogical course” or a “faulty process” of reasoning is not an error of law (Al-Miahi).
· Judicial review is not to be over-zealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons of an administrative decision maker must not be turned into a reconsideration of the merits of the decision (Wu Shan Liang).
· Section 103X(3)(b) of the Registration and Collection Act (by analogy with s 430 of the Migration Act) requires the SSAT to do no more than set out the findings which it did make on facts which it considered material to the decision which it made (Yusuf).”
The applicant’s argument in relation to Ground 3(a) is that the SSAT erred in finding that he could become an officeholder of the company at will. The SSAT found, at paragraph 63 of the reasons for the decision, as follows:
a)The applicant resigned from the company due to child support considerations;
b)The applicant presently held no office in the company; and
c)The situation was entirely of his own making and he could change it at will.
The applicant’s second complaint at Ground 3(b) was that the SSAT erred in finding that a shareholding in the company would change if the applicant so requested. I note, and it is submitted by the Child Support Registrar, that there was evidence before the SSAT that circumstances were reversed between the applicant and Ms A, and the shareholding in the company was indeed changed to enable the payments of dividends to Ms A when that was a convenient course. That is set out in paragraph 50 of the reasons for decision.
With respect to these two sub grounds, the failure of the applicant to discharge his duty of providing disclosure as to his financial circumstances, inclusive of his voting rights in (omitted) Pty Ltd, cannot be used as a criticism of the findings made inferentially from the absence of that information. I am satisfied that the SSAT drew reasonable inferences based on common knowledge and commercial practice in circumstances where the applicant refused, neglected or otherwise failed to provide relevant information as to the voting rights and entitlements in (omitted) Pty Ltd. Furthermore, the topic of the shareholdings, as well as the rights and entitlements of the shareholders and also the reasons for the applicant’s resignation as a director of (omitted) Pty Ltd, were raised and the transcript discloses that at pages 41, 70 and 71.
I am not satisfied therefore that there is any error of law demonstrated in Ground 3(a) or 3(b).
With respect to the findings in relation to the “(omitted) Pty Ltd” initials in Ground 3(c), the SSAT invited and received explanations from both the applicant and Ms A[6]. The SSAT was required to make findings as to whether it accepted those explanations and the SSAT rejected the explanations that were given. The reasoning can be seen in the reasons for decision at paragraphs 25, 26, 53, 55, 61 and 62 and, in my view, the SSAT would not be required to give a further opportunity for explanation as to why these initials appeared on the invoices. I am therefore not satisfied that an error of law has been demonstrated.
[6] See transcript, pages 13 and 58.
The complaints in relation to Grounds 3(d), (e) and (f) relate to the SSAT erring in finding the pre-tax profits of the company were over $300,000.00 in 2012-13 and the total billings in respect of the applicant were $426,500.00 in 2012-13 and $183,000.00 in the first half of 2013-14. These findings were discussed in the reasons at paragraphs 66, 67 and 69 and they were based on the documentary evidence that the SSAT had before it, including the company’s financial statements, bank statements, invoices and the oral testimony of Ms A. I am satisfied that no error of law is demonstrated with respect to those Grounds.
The submission that there was an error of law in Ground 3(g) on the basis of a finding that any software developed for use by the company between 2005 and 30 June 2009 was developed by the applicant. The SSAT made this finding in circumstances where Ms A:
a)Was not an employee or contractor of the company from its establishment on 20 June 2009;
b)Had not declared any income from the company in her tax returns prior to 2009; and
c)Had been issued with a preference share for cash flow reasons which would have been unnecessary had she been an employee of the company at the time.
A further basis for the appeal in Ground 3, is that the applicant was denied procedural fairness in the SSAT in that the SSAT did not:
a)Ask for an explanation from either the applicant or the respondent as to why it should accept their evidence that “(omitted) Pty Ltd”, as expressed in the company’s invoices, referred to the applicant or that it was automatically generated as part of the word processing template;
b)Put to Ms A that she did not do the work or was not responsible for most of the work conducted by the company;
c)Question the applicant on his experience with computer software or his ability to perform work offsite for the company; and
d)Put to the applicant or Ms A that the only expenses of the company were the payments made to the three contract (omitted).
The Child Support Registrar referred me to the applicable principles as summarised by French CJ and Kiefel J in the Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at paragraph 9:
“[9] … Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.”
[Footnotes omitted.]
I accept the submission of the Child Support Registrar that the applicant was aware, or should have been aware, that one of the issues very much before the SSAT was whether, given his income, property and financial resources, the administrative assessment of the child support resulted in an unjust or inequitable level of child support payable for the child[7]. This necessarily included an examination of his relationship with the company and any financial benefit or earning capacity he derived from the company. Further, this issue was not unique to the review performed by the SSAT, but had been the subject of earlier decisions made by the Registrar and the objections officer[8].
[7] Henriques & Hatzis & Anor (SSAT Appeal) [2014] FCCA 1194 at paragraph 159.
[8] See paragraph 4 of the reasons for decision.
I accept the submissions of the Child Support Registrar that the applicant’s complaints are without substance and the findings were open on the material. I am fortified in coming to that decision in circumstances where the applicant has elected not to provide full and frank disclosure that resulted in the decision maker drawing inferences about a number of matters.
Judge Brown, in Henriques & Hatzis & Anor (SSAT Appeal) [2014] FCCA 1194 at paragraphs 184 – 185 observed:
“[184] The duty to make a full and frank disclosure of one’s financial circumstances has been described as “fundamental to the whole operation of the Family Law Act in financial cases…” I would characterise proceeding relating to the provision of financial support for children in a similar light. In such cases, it is fundamental to the rule of law that any fact finding tribunal be in a position to consider all aspects of the financial circumstances of the parties concerned.
[185] If a party elects not to be frank as directed, he or she chooses to do so at his or her own peril. In such circumstances, it cannot be the responsibility of the decision maker to protect such a person from the consequences of such behaviour. As was observed in SZBEL, to do otherwise may attract the criticism that the tribunal in question is partial.”
I therefore dismiss the application in relation to Ground 3.
Ground 4
The applicant submits that the SSAT erred in law in determining that the applicant’s adjusted taxable income was $300,000.00 from 1 July 2012, as that determination was not open on the evidence, was unreasonable and against logic. The applicant relies on the submissions in Ground 3 to support that Ground.
The SSAT found that the applicant’s earning capacity exceeded $300,000.00 per annum from 1 July 2012. The Child Support Registrar relies on the submissions that were set out in Ground 3 but further submits that in exercising power under s.98(g) of the Assessment Act, the SSAT in fact varied the applicant’s adjusted taxable income to accord with his earning capacity of $300,000.00 per annum. This determination, it was submitted by the Child Support Registrar, was open because the SSAT made the following findings of fact:
a)That the administrative assessment of child support based on the applicant’s estimate of his income in the amount of $0 produced an unjust and inequitable amount of financial support for his child; and
b)With regard to s.117(4) and (5) factors, the particular determination proposed was just and equitable and otherwise proper.
The Child Support Registrar submits that in varying the applicant’s adjusted taxable income to accord with his earning capacity, the SSAT was simply discharging its duty. The fact that the applicant disagrees with the result does not amount to an error of law.
The first respondent mother submits that the findings made by the SSAT were reasonable, logical and open on the evidence. I was referred to exhibits O18 and O37 – O59. At paragraph 62 of the reasons, the decision maker makes a finding of fact that the amounts charged by “(omitted) Pty Ltd” on the tax invoices issued by (omitted) Pty Ltd since July 2012 refer to work done by the applicant. The applicant provided the SSAT with a self-prepared profit and loss statement (exhibit O18). The Member found that the expenses on O18 were overstated (expenses of $625,089.00). The Member asked the applicant and Ms A about the manner in which the business was conducted and the use of the three consultants. She then considered the primary evidence, including tax invoices rendered by the business (exhibits O25 – O36, O62 and O64 – O76) and found that the three (omitted) were paid a total of $477,840.00. She then considered how much the business paid in GST (paragraph 67 of her reasons). She noted that the telephone number and email address listed on the tax invoices belonged to and were answered by the applicant (paragraph 61 of the reasons). Exhibit O18 listed the business’s revenue as $781,117.00. By deducting the amounts paid to the consultant (omitted), the Member arrived at a figure for pre-tax profits of (omitted) Pty Ltd for 2012-13 as being over $300,000.00.
The decision maker made findings that the applicant changed his working pattern in 2012 where he went from well-paid employment to working for his company (omitted) Pty Ltd without salary or dividends, but with some financial benefits. The applicant’s decision to resign was not justified by his caring responsibilities for the child and the decision maker found that the applicant did not demonstrate that it was not a major purpose of his decision to leave his employment to affect the administrative assessment of child support. She comes to that conclusion at paragraph 68 of the reasons. The Member examined the applicant’s earning capacity and found it amounted to (omitted) Pty Ltd’s billings for his services. The total billings for 2012-13 for (omitted) Pty Ltd that she attributed to the applicant were $426,500.00 exclusive of GST. This was set out in paragraph 69 of her reasons and based on exhibits O35 – O52.
I consider, as set out above, that it was available on the evidence to make the finding it did in relation to the applicant’s income.
Ground 5
The applicant submits that the Principal Registrar was affected by bias. The applicant sets out extracts from the transcript that he submits are aggressive and condescending. In particular he refers to page 4, lines 7-10 and lines 15 – 35:
“MS MACDONNELL: Mr Roe, the property or income of a person who’s not liable to pay child support isn’t relevant, so there would need to be some basis on which you could point out to me why I should – why I should be asking Mr Harrington matters about any property owned by him.
…
MS MACDONNELL: Okay. Well let me – I will be coming to the material which has been sent to you, but let me tell you at the moment there is some material which, to my regret, I discovered this morning the registry had not sent to you, but which will be sent to you after this hearing. Now, that material consists of some documents that were obtained by the tribunal through the Child Support Registrar from (omitted) Ltd, and those documents related to any property, applications for loans, mortgages, in relation to Ms Creswick and Mr Harrington, and I, of course, have a copy, and, as I said, you will be sent one, and I can tell you that the documentation provided by (omitted) Ltd shows the acquisition of a property by Mr Harrington for which the full costs of that property, purchase price and transaction, were borrowed.
MR ROE: Mm.
MS MACDONNELL: So there is - - -
MR ROE: Well, I’m sorry, member, you’ve got me …..
MS MACDONNELL: Well, I’m letting you know that I have evidence before me and I had said I will after the hearing provide you with a copy that shows 100 per cent that there’s no room for questions to be asked as to whether - - -”
He also refers to page 81, lines 8 – 38 of the transcript:
“MS MACDONNELL: So, Mr Roe, I mean, what’s the issue?
MR ROE: Well - - -
MS MACDONNELL: Mr Harrington is clearly employed, and his income is not relevant, and if he has a credit card and if he’s making payments to his credit card from any other source that’s his money, what’s the issue?
MR ROE: My concern is, Member, that there are three credit cards listed against their joint account that – where payments are coming out so I’m asking the question it is those – none of those three other than a (omitted) MasterCard, Ms Creswick is a signatory to.
MS MACDONNELL: And I’m still not following your point.
MR ROE: There’s additional money coming in from somewhere. It does not come – it’s into his single account, and then it gets transferred onto the credit card. There is no evidence to support that, Member, that there is – it’s just a – along with I know my son has an account at the (omitted) Ltd which Ms Creswick is a signatory to. That was not provided either. I’m asking the question whether or not all accounts were listed that she has access to or financial capacity to gain from, plus there are none of their normal living expenses – not all living expenses are accounted for on this, such as electricity, rates. There’s an absence of normal day-to-day expenses which leads me to believe that there is another account or accounts.
MS MACDONNELL: Well, Mr Harrington may well have an account, but you’re not suggesting that that should be - - -
MR ROE: No, Member, I’m suggesting that not all information was provided.
MS MACDONNELL: Well, information about his account wasn’t required.”
He further refers to page 84, line 11 to page 85, line 3 of the transcript:
“MR ROE: Just another final question, Member. The proceeds from the sale of Property R and then the purchase of the house at Property S, there is a sizeable difference, some $280,000 difference from memory. One was sold for about 400,000. The other one was bought for mid to high 200s. That money has just seemed to have evaporated. It doesn’t – her buying and selling of houses that has resulted in net gain that money does not seem to be accounted for anywhere.
MS MACDONNELL: But you’re talking about – when was that house – when was the Property R sold again, Ms Creswick?
MS CRESWICK: 2009.
MS MACDONNELL: So that’s not going to be within the purview of the decision that I’m reviewing.
MR ROE: It is, member, respectfully – that money is still - - -
MS MACDONNELL: It still existed and was earning interest, but where is there any evidence to suggest that?
MR ROE: Well that’s what I’m saying, Member. Just on – just analysing the buying and selling and the information that’s available from (omitted) whereby Ms Creswick has listed her statement of financial circumstances back then, they only had a loan of $90,000. They worked away, presumably, with some 200,000 or $150,000, and then miraculously they’re able to – Gary is able to purchase a house for $200,000. It’s just there’s a big chunk of money missing, and what I’m – I suppose what I’m putting to the member is has any investigations or enquiries been done of accounts held by Ms Creswick or that she’s a signatory to.
MS MACDONNELL: Well, it’s - - -
MR ROE: And a lot of information has been blotted out and repelled that doesn’t agree with the statement of financial circumstances at all. And the submission or the …..
MS MACDONNELL: But it’s not a case of that this tribunal has to investigate each and everything. Something that was sold in 2009, unless there is some basis for pointing to there being some sum retained from that that is earning an income - - -”
He says that I need to compare this with how the decision maker treated the respondent and referred me to the transcript at page 78, lines 13 – 33:
“MS MACDONNELL: So I’m trying to follow your point. The first is an account and it’s showing the full 24 pages up to 15 – 24, 25, 26 – up to 15 January ’14 which – I see, that’s just out of order – 18, 19 and then it’s 1, 2 and 3, 4, 23.
MR ROE: Sorry, Member, I don’t believe it’s out of order because there is page 1 right at the start. So if you look at the SSAT summary at page 53 - - -
MS MACDONNELL: Yeah it just looks like somebody has copied it and not quite put it in the right order. There’s - - -
MR ROE: Why just – it makes no sense to me why ….. are different and why ….. block out. And as I – I sent an email through to the SSAT. I’m not sure if you received that, Member.
MS MACDONNELL: All your – we’d have a complete record of all communications would be in the electronic record but - - -
MR ROE: Yes.
MS MACDONNELL: - - - were these in the order that you provided them, Ms Creswick?”
He says that there is a clear predetermination of the issue at page 13 of the transcript, set out in paragraph 37 of the submissions:
“[37] The Principal Member demonstrated a clear pre-determination of an important issue very early in the hearing in the following exchange (Transcript at P-13):-
MS MACDONNELL: Yes. Your name’s not mentioned as one of the persons who is doing any of the work on the strategy review. There’s no billing in respect of you.
MS A: It comes under the (omitted) Pty Ltd section. Is that what you’re meaning?
MS MACDONNELL: Well, you point me to an invoice where there is something charged for work done by you. Could you do that?
MS A: Page 053.
MS MACDONNELL: Yes. 053 and ---
MS A: (omitted) Pty Ltd.
MS MACDONNELL: They’re not your initials.
MS A: That’s the company’s initials.
MS MACDONNELL: Yes, well we know that the – the company’s initials, but it’s a taxable supply and it’s listed under staff time and clearly there are the initials of persons doing the work.
MS A: No, it’s the initials of the company.
MS MACDONNELL: Ms ---
MS A: …..
MS MACDONNELL: Ms A, it’s – I am asking you to consider carefully – do you maintain that you are charging your work as being charged for on all of those invoices under Mr Roe’s initials?”
The applicant submits that the transcript itself reveals that the applicant and his witnesses were questioned extensively in the transcript (pages 9 – 74), whereas the respondent was barely questioned (pages 75 – 77). Counsel for the applicant therefore submits that a fair-minded lay person would apprehend bias on the part of the Principal Member. The test is set out in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at paragraphs 21 – 27:
“[21] A denial of procedural fairness on the part of an administrative tribunal, such as the Tribunal, may result in jurisdictional error justifying an order that a decision be set aside: cf. Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [17], 204 CLR 82 at 91 per Gaudron and Gummow JJ. See also: [2000] HCA 57 at [169] to [170], 204 CLR at 143 per Hayne J.
[22] Where the denial of procedural fairness relied upon is an alleged reasonable apprehension of bias on the part of the decision-maker, such an apprehension must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. Although his Honour was there addressing the position of judicial officers when stating that “it is important that justice must be seen to be done”, that observation is equally applicable to decisions such as those made by the Tribunal. Similarly, it is equally important to recognise that such an allegation must not be too readily acceded to lest it encourages parties to seek to have their applications heard and resolved “by someone thought to be more likely to decide the case in their favour”: Id. Such an allegation must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [69], 205 CLR 507 at 531 per Gleeson CJ and Gummow J. It is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet”: Jones v Australian Competition and Consumer Commission [2002] FCA 1054 at [100], 76 ALD 424 at 441 per Weinberg J. An appeal from this decision was allowed, but no reservation was expressed by the Full Court as to his Honour’s observations in respect to the allegation as to bias: Jones v Australian Competition and Consumer Commission [2003] FCAFC 164, 131 FCR 216.
[23] It is, accordingly, necessary for a Court to apply “realistic criteria”: Kwan v Kang [2003] NSWCA 336 at [77] per Sheller, Ipp and Tobias JJA. See also: Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd [2004] FCA 1537 at [21] and [54] per Crennan J; Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164 at [31], 119 ALD 565 at 574 per Bromberg J.
[24] The application of such generally expressed propositions must necessarily take into account the legislative or other context in which a decision is being made. With specific reference to a decision of the Tribunal, Allsop J (as his Honour then was) observed in NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, 214 ALR 264 at 269:
[19]… The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
Moore and Tamberlin JJ agreed with Allsop J. “Robust and forthright testing of the appellant’s claims by the Tribunal”, it has similarly been said, “does not sustain a finding of apprehended bias”: SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17] per Barker J. See also: NAOX v Minister for Immigration and Citizenship [2009] FCA 1056 at [41] to [43], 112 ALD 54 at 61 per Spender J; SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125 at [47] per Logan J; SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045 at [18], 117 ALD 524 at 527 per Flick J.
[25] In a judicial context, Kirby J has recognised that “the approach of [the High Court] has now travelled beyond the apparent approbation of judicial silence…”: Antoun v R [2006] HCA 2 at [32], 224 ALR 51 at 59. His Honour there said that “[j]ust as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views”: [2006] HCA 2 at [32], 224 ALR 51 at 60. In the very different administrative context of the Tribunal, a recognition of the prospect that a fact or issue of importance may emerge during the administrative process or during a hearing or interview has been elevated such that an opportunity to be heard may be denied where a claimant is not alerted to (for example) “specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt”: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [47], 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Such a requirement of procedural fairness has, obviously enough, been recognised in administrative decision-making contexts extending well beyond the processing of refugee applications: e.g., Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591–592, Northrop, Miles and French JJ; Kioa v West (1985) 159 CLR 550 at 587.
[26] An opportunity to be heard, it is thereby recognised, may fall short of a meaningful hearing if a claimant is provided with mere time and access to a decision-maker but with no awareness of the issues which the decision-maker considers fundamental or potentially fundamental to his claim.
[27] Although there is no requirement imposed upon administrative decision-makers to continuously disclose a process of reasoning (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [48], 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ), it should be recognised that the proper expression of tentative views by an administrative decision-maker may actually enhance the fairness of the administrative process by alerting a claimant to perceived deficiencies in the claim being made and affording an opportunity to the claimant to address those perceived deficiencies. The difficulty in any given case is to identify those cases in which a decision-maker is expressing tentative views and thereby enhancing the ability of a claimant to be properly heard as opposed to those cases where the expression of views by a decision-maker either gives rise to a reasonable apprehension that they are really not prepared to change those views no matter what may be further said by a claimant or in fact evidences a closed mind. The reasonable apprehension that a decision-maker has reached a fixed conclusion before the completion of a hearing is enough to vitiate the administrative process.”
The first respondent mother argues in her submissions at paragraph 31, that in respect of the transcript:
“[31] As to the specific examples given by the Appellant:
(1) At Transcript p.4, lines 7-10, the member both simply stated her understanding of the law and invited the Appellant to direct her to why she may be in error.
(2) At Transcript p.4, lines 15-35, the member both attempts to perfect an oversight on the part of (sic) Registry and attempts to assist the parties by giving them her first impression of what the relevant documents tend to prove.
(3) At Transcript pp.81-82, the member is attempting to understand, and invites the Appellant to explain, the proposition which is being advanced in his case as to the relevance of Mr Harrington’s financial circumstances.
(4) At Transcript pp.84-85, the member both explains to the Appellant what he has to do to make the line of questioning relevant and invites him to take her to that part of the evidence which provide the required foundation, (sic)
(5) At Transcript p 78, the member is intervening between 2 self-represented parties and clarifying the provenance of documents provided by one party and said to be relevant by the other.
(6) At Transcript pp.13-14, the member is seeking clarification as to the use made by the (omitted) business of the tax invoices/staff time headings in the relevant documents and the witness ultimately goes on to give her evidence/explanation as to what the ‘(omitted)initials signify (without adverse comment or judgment being passed by the member).”
I accept that the examples in the transcript do not demonstrate the Member being aggressive and condescending to the applicant. I had only the written transcript, I did not hear the tone in which statements were made. However on the face of the document, I am not satisfied that they demonstrate an aggressive and condescending tone and nor do they demonstrate that the Member had already determined either the matter generally, or an important point prior to receiving all of the evidence and argument.
I note that the Child Support Registrar submits that it is necessary to take into account the legislative context in which the decision is made and he refers to SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship (supra) at paragraph 24. The Child Support Registrar argues that the SSAT is an inquisitorial tribunal and that, pursuant to s.103N of the Collection Act, may inform itself on any matter relevant, in any manner it considers appropriate. As the Full Court went on to say in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship (supra):
“[24] … “Robust and forthright testing of the appellant’s claims by the Tribunal”, it has similarly been said, “does not sustain a finding of apprehended bias”: SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17] per Barker J.”
I am therefore satisfied that the evidence does not support the allegation of an apprehension of bias.
Conclusion
The appeal is dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 23 October 2014.
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