Salah (formerly HGMZ) v Secretary, Department of Social Services
[2022] FCAFC 186
•7 November 2022
FEDERAL COURT OF AUSTRALIA
Salah (formerly HGMZ) v Secretary, Department of Social Services [2022] FCAFC 186
Appeal from: HGMZ v Secretary, Department of Social Services [2021] FCA 280 File number: NSD 357 of 2021 Judgment of: RARES, KATZMANN AND CHEESEMAN JJ Date of judgment: 7 November 2022 Catchwords: ADMINISTRATIVE LAW – appeal on question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – where appellant challenges Tribunal’s findings of fact – where recipient of social security benefits settled motor vehicle accident claim for compensation including claim for economic loss or loss of commercial opportunity – where benefit recipient disputed liability to repay lump sum to Commonwealth under s 17 and Pt 3.14 of the Social Security Act 1991 (Cth) – whether judgment sum included compensation for economic loss – whether ‘special circumstances’ under s 1184K(1) existed to reduce or eliminate liability to repay lump sum – where notice of appeal under s 44(1) failed to state any question of law – where grounds of appeal cavilled with Tribunal’s credibility-based findings of fact – where no error in primary judgment identified – Held: appeal dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG
Health and Other Services (Compensation) Act 1995 (Cth) s 33A
Migration Act 1958 (Cth) s 91X
Social Security Act 1991 (Cth) ss 17, 1184K, Pt 3.14
Federal Court Rules 2011
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Coulton v Holcombe (1986) 162 CLR 1
ETA067 v Republic of Nauru (2018) 360 ALR 228
Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Secretary, Department of Family and Community Services v Chamberlain (2002) 116 FCR 348
Waterford v Commonwealth (1987) 163 CLR 54
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 47 Date of hearing: 7 November 2022 Counsel for the Appellant: Mr A Strik Solicitor for the Appellant: Stewart Law Solicitor for the Respondent: Dr S Thompson of Sparke Helmore Lawyers ORDERS
NSD 357 of 2021 BETWEEN: ELHAM SALAH
Appellant
AND: SECRETARY, DEPARTMENT OF SOCIAL SERVICES
Respondent
ORDER MADE BY:
RARES, KATZMANN AND CHEESEMAN JJ
DATE OF ORDER:
7 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The name “Elham Salah” be substituted as the name of the appellant.
2.In proceeding NSD612/2020, the name “Elham Salah” be substituted as the name of the applicant.
3.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)RARES J:
This is an appeal from the orders of a judge of the Court dismissing an appeal from the decision of the Administrative Appeals Tribunal purporting to be on a question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). On 27 April 2020, the Tribunal affirmed the decision of its Social Services and Child Support Division that, in turn, had affirmed a decision of a delegate of the respondent, the Secretary, Department of Social Services, in the Department’s capacity as Centrelink, that, under s 17 and Pt 3.14 of the Social Security Act 1991 (Cth), the appellant’s receipt of compensation as a result of a consent judgment for $135,000 in the District Court of New South Wales rendered her liable to repay to the Commonwealth a lump sum calculated as $31,142.86. The appellant had received a disability support pension since January 2008. The Tribunal was not satisfied that there were “special circumstances” within the meaning of s 1184K(1) of the Social Security Act to warrant the reduction or elimination of the appellant’s obligation to pay the lump sum. Section 1184K(1) provided:
1184K Secretary may disregard some payments
(1)For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:
(a) not having been made; or
(b) not liable to be made;
if the Secretary thinks it is appropriate to do so in the special circumstances of the case.
The appellant had been involved in a number of motor vehicle accidents for which she had also received compensation, prior to the consent judgment in the District Court. The motor vehicle accident for which she obtained the consent judgment occurred on 16 May 2013 when a bus hit the appellant’s vehicle.
On 17 August 2017, the appellant personally signed the terms of the consent judgment which was a settlement of her claim for personal injury. That claim included that she had lost, as a result of the injury, the commercial opportunity to take up employment in the United Arab Emirates (UAE) at a salary of USD120,000 per annum.
The Social Security Act provided that a person was liable to repay a lump sum if he or she had been paid a pension and later received compensation for, among other matters, personal injury, in respect of loss of earnings or loss of earning capacity in respect of overlapping time periods, such as the appellant did when she received $135,000 as the judgment sum. Because the appellant was paid her pension during the period in which she claimed to have lost the opportunity to work in the UAE and she recovered the judgment sum in settlement of her claim for compensation in respect of that loss, she became liable to pay the lump sum to the Commonwealth as worked out in accordance with statutory formulae in the Social Security Act.
THE UNJUSTIFIED PSEUDONYM
The Court inquired of the parties before the hearing of the appeal as to the basis upon which the appellant could be entitled to a pseudonym, having regard that the provisions of ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) and the principle of open justice. The appellant had commenced the proceeding before the primary judge seeking an extension of time because she was late in filing through no substantive fault of her own. The application for an extension of time was intituled in her own name, but for reasons that do not appear on the Court file, she was assigned a pseudonym which remained both through the proceeding before the primary judge and until this morning in the appeal.
The parties could not explain how or why the appellant had the pseudonym. As a result, we ordered that the name of the appellant, Elham Salah, be substituted for the pseudonym both in this appeal and in the proceeding below for the reasons Rares, Perry and Hespe JJ gave in Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160.
It is important to recognise that administrative proceedings are ordinarily private and do not attract public scrutiny. Administrative bodies may well be entitled to offer pseudonyms to persons who seek to pursue remedies, including those that the Tribunal may give. However, it does not appear that the appellant had a pseudonym in the Tribunal.
A person who wishes to litigate a proceeding before a court of law does so in light of, and subject to, the principle of open justice. Suppression or non-publication orders, including the use of pseudonyms, must be applied only in circumstances where such an order is necessary in the interests of justice (Dickason v Dickason (1913) 17 CLR 50 at 51 per Barton ACJ, with whom Isaacs, Gavan Duffy, Powers and Rich JJ agreed) or the person’s circumstances otherwise satisfy one or more of the grounds in s 37AG(1) of the Federal Court Act or a pseudonym is required by statute, such as s 91X of the Migration Act 1958 (Cth).
THE TRIBUNAL’S DECISION
The Tribunal found that the judgment sum included the receipt of compensation as damages within the meaning of s 17(2) of the Social Security Act and so the appellant had become liable to repay the lump sum. It also was not satisfied that there were “special circumstances” in her case that enlivened the discretion of the Secretary under s 1184K(1).
The Tribunal gave careful and lucid reasons that identified the basis on which the lump sum had been calculated correctly, about which there is no dispute. It commenced its reasons finding, with some reluctance, that the appellant was an unreliable witness. At various points in its reasons, it made more adverse findings in respect of her credibility on particular issues. It set out the relevant provisions of the Act and identified the two issues for it to determine as being, first, whether there was lump sum payment of “compensation” attracting the obligation to repay the lump sum and, secondly, whether any “special circumstances” existed that would warrant the exercise of the discretion in s 1184K(1) to reduce all or some of the amount of the lump sum that the appellant would otherwise have had to pay.
The Tribunal found that the appellant was a lawyer by training. It found that she was an experienced litigant, as a result of her having been involved in a number of motor vehicle accidents for which she had previously sought and obtained compensation, commencing in May 1995. It found that she had received $20,000 for an accident in October 1997 and another $175,000 in April 2008 in respect of injuries to her back and chest.
The Tribunal carefully considered whether to accept her assertion to it that she was unaware that any part of her claim for which she obtained the consent judgment involved damages for economic loss or loss of income. The Tribunal found that she was aware of this and particularly relied upon the fact that the consent judgment was arrived at following a mediation in the District Court. It found that the appellant had claimed, in her particulars of loss of income filed in 2015, that she had suffered a loss of income because she had been unable to take up the job offer in the UAE because of her injuries. It also noted that she had relied in the District Court proceeding on an affidavit made by her prospective employer, that she filed, explaining the circumstances of the job offer. It found that the appellant personally had signed the consent judgment, the terms of which relevantly included:
6.The plaintiff acknowledges that they were informed by the defendant’s insurer before the making of the offer of settlement contained in these terms that there may be a liability to pay amounts to the Commonwealth in line with the Health and Other Services (Compensation) Act 1995 (Cth) or the Health and Other Services (Compensation) Care Charges Act 1995 (Cth).
…
9.The plaintiff acknowledges that they were notified by the defendant’s insurer before they accepted the offer of settlement contained in these terms of the insurer’s intention to make an advance payment to the Commonwealth under s 33A of the Health and Other Services (Compensation) Act 1995 (Cth).
The Tribunal made the following findings:
43.Given her previous experience in being compensated for similar accidents where economic loss was not a consideration, it is possible that the Applicant underestimated the extent to which the introduction of economic loss might impact her net payment. However, given the strength of the documentary evidence the Tribunal does not accept the Applicant was unaware of the claim for damages for lost income that was made on her behalf. Nor is it accepted by the Tribunal that the claim was submitted without her cooperation and assistance.
44.There is every indication that she is a savvy and engaged litigant. The Tribunal finds that the Applicant was entirely aware of the terms of settlement that were included in the Consent Judgement [sic].
(emphasis added)
The Tribunal found that the judgment sum included an amount in respect of the appellant’s lost capacity to earn income which was a compensation payment within the meaning of s 17(2) of the Social Security Act and, as a result, the appellant became liable to pay the lump sum to the Commonwealth.
The Tribunal considered whether the appellant’s case fell within the meaning of “special circumstances” so as to attract the exercise of the discretion under section 1184K(1). It referred to decisions of the Full Court and single judges of this Court on that question, including that of Kiefel J in Secretary, Department of Family and Community Services v Chamberlain (2002) 116 FCR 348 at 355 [33], where her Honour said:
In the present case, the Tribunal considered that the application of the formulae was unfair to the applicant because she would have to pay more than she had received by way of compensation for economic loss, indeed twice as much. That factor will however be present in most cases and is an aspect of the application of the formulae. In my view it cannot, by itself, amount to a special circumstance, one out of the ordinary.
It found that the appellant lived with her husband and had received, on the basis that they were separated under the same roof, social security payments at the higher single rate of a disability support pension that, by the time of the hearing, had become an age pension.
The Tribunal noted that the appellant had claimed that there had been a change in her circumstances following the consent judgment that had added to her anticipated medical costs. That was because, soon after, in October 2017, she had yet another car accident. She asserted to the Tribunal, but it did not accept, that had she known that she may have been liable to repay the lump sum to the Commonwealth she would not have entered into the consent judgment, given her legal and other expenses she incurred in the conduct of the District Court case.
The Tribunal found that, at the time of its hearing, the appellant was considering taking proceedings in respect of the 2017 accident. It considered a statement of her financial circumstances and a breakdown of what she claimed to have been the costs she had incurred following the accident. The Tribunal found that the appellant had presented a considerable amount of material about her dissatisfaction with her legal representation in the District Court, despite her lawyers having heavily discounted their fees so as to leave her with both enough money to repay the lump sum and a not insignificant sum to retain after that. Nonetheless, it found that the appellant had made a formal complaint with the Office of the Legal Services Commissioner, regarding her legal representation, that the Commissioner dismissed without review.
The Tribunal dealt with her claim about medical costs as follows:
65.The Applicant submits that she requires surgeries which will cost over $80,000. She has provided some evidence of medical expenses incurred to date. Mindful that the accident occurred in 2013, there is a surgical estimate fee of $4,368 for the Applicant to have surgery on her shoulder and her wrist, $625 for hand and wrist surgery and $1500 for an anaesthetist. The ARO recorded in their 2017 decision that medical receipts totalling just $1,812 had been provided. There is no evidence before the Tribunal that the Applicant has spent anywhere near the quoted figure on medical expenses, or that she intends to.
66.Additional material was presented to the Tribunal between hearings and I note that the medical evidence provided was oriented towards building a case for legal action relating to the 2017 accident rather than seeking treatment for her injuries. There is scant detail regarding additional medical costs which the Applicant has incurred relating to the accident for which she was provided a significant amount of compensation.
(emphasis added)
The Tribunal concluded:
67.The Applicant made a claim following a motor vehicle accident and it was settled by mutual consent for $135,000 which included compensation for lost earnings. As is usual in such matters, a considerable portion of that settlement went to her lawyer. The Applicant had been compensated in similar circumstances previously but never had it included a component for economic loss. However, it was clearly stated in the settlement agreement and other documents that the economic loss component triggered a requirement that she draw on those funds before receiving income support from the social security system.
(emphasis added)
The Tribunal found that the amount of money the appellant had received in her own hands as a result of the consent judgment was far less than she was hoping, but was still a considerable sum, and:
70.I have considered the Applicant’s claims that special circumstances exist to justify disregarding any or all of the compensation payment in order to reduce or waive the preclusion period – including financial hardship, medical expenses, her lack of knowledge about the economic loss component to her settlement, her legal fees and obligations to her children. Based on the evidence, it is my conclusion that these circumstances do not, individually or cumulatively, amount to special circumstances and that the preclusion period applies in full.
(emphasis added)
THE PROCEEDING BEFORE THE PRIMARY JUDGE
When the proceeding came before the primary judge, the appellant’s notice of appeal on a question of law under s 44(1) of the AAT Act progressed through various emanations of her and her lawyers’ attempts to file a pleading that complied with the Federal Court Rules 2011. Regrettably, as his Honour noted, the ultimate further amended notice of appeal from a Tribunal, on which the hearing proceeded before the primary judge, failed to articulate any question of law in respect of which the appeal was brought, despite the requirements in s 44(1) of the AAT Act and r 33.12 that it do so. His Honour, however, approached the matter as a question of substance, and not of form (in accordance with the reasons given by Allsop CJ, Kenny, Besanko, Robertson, and Mortimer JJ in Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at 360–361 [126] and 384 [200]), despite the incompetent drafting of the notice of appeal by the appellant’s then lawyers.
The primary judge distilled two questions of law, namely, first, whether any kind of economic loss had been included in the judgment sum, and, secondly, whether the appellant had made out to the Tribunal that there were special circumstances that could be taken into account when making a finding in respect of s 1184K(1) and, in particular, whether the Tribunal had relied impermissibly upon s 33A of the Health and Other Services (Compensation) Act 1995 (Cth) when finding that the appellant had knowledge of the terms of the consent judgment.
His Honour identified a further issue that the appellant’s then solicitor had sought to raise as a “novel” and new argument, namely, that the Court ought embrace an expanded doctrine of legal unreasonableness that employed structured proportionality as a guiding principle when reviewing the Tribunal’s decision. His Honour refused to entertain the new ground, and there is no appeal from that ruling.
His Honour also refused the appellant’s application to vary the suppression order, although he did not identify any source for its original imposition, but, rather, appears to have proceeded on the assumption that it had been imposed on a proper basis.
The primary judge explained why it was necessary to state a question of law in a notice of appeal under s 44(1) of the AAT Act. His reasons demonstrated how palpably the appellant’s lawyers’ attempts had failed to do so. His Honour then proceeded to deal with the two questions of law which he had identified.
The primary judge concluded that the appellant confronted the insurmountable difficulty that the Tribunal’s findings as to her knowledge of the likelihood that she would become obliged to repay money to the Commonwealth were findings of fact. He reviewed the Tribunal’s reasons and found that no question of law arose because its factual findings of which she complained were open on the material before it. Next, his Honour held that the Tribunal’s findings on which it concluded that it was not satisfied that there were special circumstances to enliven its discretion under s 1184K(1) of the Social Security Act were also findings of fact. He held that those findings were not open to challenge on any of the bases claimed, including its finding that the appellant knew that she may be liable to repay money to the Commonwealth that she received from the consent judgment.
His Honour correctly rejected the argument that the Tribunal failed to give sufficient reasons. He held that the Tribunal had addressed the relevant questions and given adequate reasons for its decision why it was not prepared to find that there were special circumstances in the appellant’s case warranting the exercise of the discretion under s 1184K(1) of the Social Security Act. Accordingly, the primary judge dismissed the appeal below with costs.
THIS APPEAL
The appellant filed an amended notice of appeal in this Court that is barely comprehensible. It failed to state in any intelligible way, first, a ground of appeal that specified an error in the decision of the primary judge or, secondly, any question of law the subject of her appeal under s 44(1) of the AAT Act that the primary judge failed to discern in the decision of the Tribunal. Despite being drafted by a solicitor, both the notice of appeal and the appellant’s submissions in support of it did not specify any basis on which it could be argued that his Honour made any error. Counsel who appeared today for the appellant did not prepare either of those rambling documents, but valiantly tried to articulate an appeal point. For reasons that follow, he failed in that difficult endeavour.
Essentially, the appellant’s arguments in the written submissions, which counsel largely abandoned in oral submissions today, took issue with many of the Tribunal’s findings of fact.
The notice of appeal sought to raise, as it acknowledged, a new first ground not put before his Honour, namely that the Tribunal applied a wrong test in determining that the appellant was an unreliable witness. The particulars of that ground were that the Tribunal assessed the question of her unreliability by identifying indicators of a witness who was not credible, and that, as a result, later in its reasons, it found her evidence, including medical reports that she had supplied, were not reliable and did not give them proper consideration. The notice of appeal pleaded that “the error would have been discovered if it were raised before the Learned Trial Judge”.
The Full Court was not prepared to allow the first new ground to be litigated. First, it is hopeless. It invites the Court to do no more than engage in merits review as to the Tribunal’s credibility-based findings. Secondly, and more importantly, in Coulton v Holcombe (1986) 162 CLR 1 at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ said that:
To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
(emphasis added)
This Court on numerous occasions has refused to allow new grounds to be taken on appeal when they were not raised below, especially where the appellant was legally represented below and there is no explanation or justification for the proposed new ground not having been taken in the proceeding below. Here, the appellant was legally represented in the proceeding below and the proposed ground lacks any merit.
The second ground asserted that the primary judge erred in wrongly characterising the appellant’s argument concerning special circumstances and ought to have looked at whether the Tribunal had applied the correct approach in considering the appellant’s circumstances and then correctly applied the Departmental policy on the application of s 1184K(1) of the Social Security Act. The second part of ground two made an endarkened reference to s 33A of the Health and Other Services (Compensation) Act as not being related to the issue of special circumstances, but counsel abandoned this part of the ground during the course of the hearing, rendering its further consideration unnecessary.
The third ground asserted that his Honour erred in his expression of the questions of law that he attempted to discern from the further amended notice of appeal below and asserted that there were two more questions being: first, whether the Tribunal had failed to take into account relevant considerations when exercising the discretion under s 1184K(1); and, secondly, whether the Tribunal’s decision “was affected by an inadequacy of reasons”.
The fourth ground asserted that the primary judge erred, first, in concluding that the Tribunal had relied on the entirety of the material before it and, secondly, by failing to find that it unreasonably concluded that it was not satisfied that there were special circumstances.
CONSIDERATION
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ, in a well-known passage, cautioned that a court should not be concerned with an administrative decision-maker’s looseness of language or unhappy phrasing and should not consider the decision-maker’s reasons by construing them “minutely and finely with an eye keenly attuned to the perception of error”. Their Honours said:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [see McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616 per Spender, Foster and O’Loughlin JJ]. In the present content, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin [(1990) 170 CLR 1 at 35–36]:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
(emphasis added)
In Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 153–154 [44], Gleeson CJ, Gummow, Kirby and Hayne JJ said:
When stating the position in Quin [170 CLR at 36], Brennan J also stressed:
“The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
However, in Australia this situation is the product not of any doctrine of “deference”, but of basic principles of administrative law respecting the exercise of discretionary powers. Mason J spoke to similar effect in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 25 at 40] when he observed:
“The limited role of a court [in] reviewing the exercise of an administrative discretion must constantly be borne in mind.”
Nor, as Brennan J pointed out in Waterford v The Commonwealth [(1987) 163 CLR 54 at 77], is there an “error of law simply in making a wrong finding of fact”.
(emphasis added)
The Full Court, in Haritos 233 FCR at 383 [192], held that legally erroneous fact-finding can be a question of law, but only where the decision can be vitiated on the facts as found by the Tribunal or its failure to make a finding that it was legally obliged to make, applying what Brennan J said in Waterford v Commonwealth (1987) 163 CLR 54 at 77 immediately before saying that “[t]here is no error of law simply in making a wrong finding of fact”.
In ETA067 v Republic of Nauru (2018) 360 ALR 228 at 231 [14], Bell, Keane and Gordon JJ held:
[T]here is a distinction [see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 605–606 [31] per French CJ and Kiefel J] between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims [Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] per McHugh, Gummow and Hayne JJ], and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant’s claim [Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at 447–448 [51]–[52] per Kenny, Griffiths and Mortimer JJ] or that would be dispositive of the review [Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 [46] per French, Sackville and Hely JJ].
As French, Sackville and Hely JJ said in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 [46]:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.
…
The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. … Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
(emphasis added)
In essence, the appellant argued that the Tribunal failed to make findings in her favour based on contested evidence before it. The grounds of appeal that she advanced in oral argument today amounted to no more than cavilling with the Tribunal’s credibility-based findings of fact that, as the learned primary judge held, were open to it on the material before it. The Tribunal’s reasons were substantive, adequately addressed the issues it had to decide and lucidly explained why it did not accept the appellant’s claims. The assessment of credibility is quintessentially a matter that the Parliament has left for an administrative decision-maker in the position of the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] per McHugh J.
Here, the Tribunal commenced its reasons by identifying its finding as to the appellant’s general unreliability. Later it came to deal with specific instances about which the appellant gave evidence and made more severe findings as to her credibility in respect of particular evidence, such as finding that she knew of the potential for the consent judgment to give rise to an obligation on her part to make a payment to the Commonwealth. It did not accept the appellant’s claims that she was ignorant of, and had not been told by her lawyers about, that prospect. As the Tribunal said, there was not only the appellant’s oral evidence before it, but substantial documentary material, including her own signature on the consent judgment, that expressly referred to her knowledge of that possibility.
Likewise, in relation to the appellant’s claims that there were special circumstances, including the potential medical expenses that she might have had to pay as a result of her most recent October 2017 motor vehicle accident, the Tribunal found that she had provided scant detail about the medical costs that she had actually incurred relating to the accident for which she had received a significant amount of compensation (see [19] above). It made other findings in relation to her expenditures out of her earlier compensation payments, including buying an expensive car from the $175,000 payment she had received some years earlier. It came to its conclusion, having correctly identified the legal basis on which it had to act, and taking into account the appellant’s claims, that it was not satisfied that, individually or cumulatively, the matters on which the appellant relied amounted to special circumstances within the meaning of s 1184K(1). As the primary judge correctly held, that finding was open to it and no question of law arose on which an appeal under s 44(1) of the AAT Act could succeed.
CONCLUSION
It is not possible to identify any question of law that arises on the material before his Honour or us. There is no error in the primary judge’s reasons or disposition of those unmeritorious arguments. The appeal is entirely without merit, and ought be dismissed with costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 28 November 2022
REASONS FOR JUDGMENT
KATZMANN J:
I agree.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Katzmann. Associate:
Dated: 28 November 2022
REASONS FOR JUDGMENT
CHEESEMAN J:
I agree.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman. Associate:
Dated: 28 November 2022
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Appeal
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Jurisdiction
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Judicial Review
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Natural Justice & Procedural Fairness
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