Xie and National Disability Insurance Agency (NDIS)
[2025] ARTA 193
•12 February 2025
Xie and National Disability Insurance Agency (NDIS) [2025] ARTA 193 (12 February 2025)
Applicant/s: Yunzhong Xie
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/0940
Tribunal:General Member L Proske
Place:Adelaide
Date:12 February 2025
Interlocutory Decision: The Applicant’s recusal application is refused.
...................[SGND].....................................................
General Member L Proske
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme – application for recusal – no actual or apprehended bias – recusal application refused
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024Cases
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17
Charisteas v Charisteas [2021] HCA 29
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors [2023] HCA 15
DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270
Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591Statement of Reasons
BACKGROUND
The Applicant (Mr Xie) made an application to the Administrative Appeals Tribunal (AAT) on 16 February 2024 for review of a decision made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (Respondent) on 23 January 2024. That decision confirmed a previous decision made by the Respondent on 13 October 2023 that Mr Xie did not meet the access criteria to become a participant of the National Disability Insurance Scheme (NDIS).
The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former AAT.[1] Mr Xie’s review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.[2] In this Statement of Reasons, the ART will hereafter be referred to as ‘the Tribunal’.
[1] s 8 of the Administrative Review Tribunal Act 2024 (ART Act).
[2] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
This matter has been constituted to me and is listed for a substantive hearing on 23 and 24 April 2025. This is the second interlocutory decision I have made in this matter since it was constituted to me. The first interlocutory decision related to an objection made by Ms Xie to the Respondent inspecting documents produced under summons. For reasons given orally at the conclusion of the interlocutory hearing on 14 November 2024, I decided the Respondent could inspect the documents produced under summons.
On 15 January 2025, Mr Xie attended the Adelaide Registry of the Tribunal in person and raised concerns with Registry staff in relation to the presiding General Member. I understood Mr Xie was requesting that I recuse myself (recusal application). I made a Direction on 20 January 2025 requiring Mr Xie to file a written outline or submission explaining the reasons for his recusal application, and for the Respondent to file submissions in reply.
In an email dated 21 January 2025, Mr Xie outlined the reasons for his recusal application. On 31 January 2025, the Respondent filed written submissions regarding Ms Xie’s recusal application. The Respondent noted they did not take a position in relation to Mr Xie’s recusal application and their submissions were prepared to assist the Tribunal. An interlocutory hearing was held on 3 February 2025 however it was adjourned soon after it commenced due to concerns in relation to the interpreting. A further interlocutory hearing was held on 10 February 2025, with a different interpreter in attendance.
At the interlocutory hearing on 10 February 2025, I explained to Mr Xie the legal test for recusal. Mr Xie provided further particulars of the reasons for his recusal request. The Respondent elected to rely on their written submissions and did not make oral submissions.
Having considered the material referred to at paragraph [5], and oral submissions made by Mr Xie at the interlocutory hearing on 10 February 2025, I have decided to refuse Mr Xie’s recusal application. The reasons for this decision are detailed below.
CONSIDERATION
Section 37(1) of the Administrative Review Tribunal Act 2024 (ART Act) provides that the President may direct that a member or members constitute the Tribunal for the purposes of a proceeding in the Tribunal. When so directed, a member has a duty to hear and determine an application for review.[3] That duty is however constrained by a fundamental tenet that a review will be heard and determined by an independent and impartial tribunal.[4] Actual bias or an apprehension of bias will require a presiding member to recuse themselves for the purposes of a proceeding.[5]
[3] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 (Ebner), [19].
[4] Ebner, [22].
[5] Ebner, [5]-[6]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors [2023] HCA 5 (QYFM), [26].
Actual bias requires that one is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented.[6] An apprehension of bias will be established where a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[7] The question of whether there is an apprehension of bias is one of possibility not probability.[8]
[6] Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, [72].
[7] Ebner, [6], [83].
[8] Ebner, [7].
Mr Xie has provided written and oral submissions explaining the reasons for his recusal application. In summary, Mr Xie asserts the following matters might lead me to decide his matter otherwise than on its legal and factual merits:[9]
a) An individual he did not know attended the interlocutory hearing on 14 November 2024. He formally requested the removal of that individual from the interlocutory hearing. He contends I forcefully denied that request without providing valid reasons and asserts that raises serious concerns about procedural fairness and transparency. He also contends it was apparent to him that I was familiar with that individual and asserts this suggests potential bias.
b) He raised several grounds on which he objected to the Respondent being allowed to inspect medical records produced under summons. He contends those grounds were not addressed in detail, he was not given sufficient time to challenge evidence presented by the Respondent, and I provided no legal basis for my decision to allow the Respondent to inspect the medical records produced under summons. He asserts this was a violation of his right to due process.
c) Consideration of his application was transferred to the Melbourne Registry without explanation or his consent. He asserts this may create an imbalance in favour of the Respondent and cause him undue hardship.
d) A Direction issued to him did not include my signature, which he contends does not comply with relevant legal and procedural requirements. He asserts this raises concerns about the proper handling of his matter.
e) The Respondent has not complied with Directions made by the Tribunal, and that non-compliance has not been properly addressed.
[9] Ebner, [8].
Ms Rosetzky appeared as the Respondent’s legal representative at the interlocutory hearing held on 14 November 2024. Ms Rosetzky’s appearance and role were explained to Mr Xie with the assistance of an interpreter. Mr Xie objected to Ms Rosetzky’s appearance on the basis that Ms Kijagulu was the Respondent’s legal representative with whom he had previously had dealings. Section 66(1) of the ART Act provides that a party to a proceeding in the Tribunal may choose another person to represent the party in the proceeding. I did not consider any circumstance arose to permit me making an order that the Respondent not be represented by Ms Rosetzky at the interlocutory hearing.[10] My refusal to make such an order was consistent with the ART Act. I have no personal or professional association with Ms Rosetzky. My communication with both Mr Xie and Ms Rosetzky during the interlocutory hearing was courteous but could not reasonably be construed as familiar.
[10] s 66(3) of the ART Act.
Both parties were directed to provide written submissions in advance of the interlocutory hearing on 14 November 2024. During the interlocutory hearing on 14 November 2024, which was facilitated by an interpreter, Mr Xie made oral submissions in support of his objection, the Respondent made oral submissions in support of them being given leave to inspect documents produced under summons, and Mr Xie was then given an opportunity to make further oral submissions having heard from the Respondent. The interlocutory hearing was conducted in a way that was procedurally fair to both parties. At the conclusion of the interlocutory hearing, I delivered oral reasons for my decision to allow the Respondent to inspect documents produced under summons, and those oral reasons were interpreted in full. I made no findings in relation to Mr Xie’s credibility and the interlocutory issue that was determined did not require any consideration of whether Mr Xie meets the access criteria to become a participant of the NDIS.[11] Other concerns raised by Mr Xie in relation to the interlocutory hearing held on 14 November 2024 appear to go to his disagreement with the interlocutory decision I made at the conclusion of that case event.
[11] DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270, [15] as cited in Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591, [69].
It has been directed that I constitute the Tribunal for the purpose of this proceeding in the Tribunal. I am in the Adelaide Registry of the Tribunal. Mr Xie’s concern that consideration of his application has been transferred to the Melbourne Registry of the Tribunal appears to be based on a misunderstanding.
It is standard Tribunal procedure that directions made by a member of the Tribunal, when issued to a party to a proceeding, are marked ‘SGND’ and do not include a member’s actual signature.
I have given directions on several occasions in relation to the procedure to be followed for this proceeding.[12] All parties must comply with such directions.[13] Paragraph 4.31 of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 (Practice Direction) sets out what a party or a party’s representative must do if they form a view that they will not be able to comply with a direction made by the Tribunal. Paragraph 4.32 of the Practice Direction sets out factors the Tribunal will generally consider in deciding whether to grant an extension of time. The Respondent has on occasion requested an extension of time during this proceeding. My consideration of those requests and Mr Xie’s objection to those, has been conducted in a manner consistent with Paragraph 4.32 of the Practice Direction. The Respondent has complied with directions as made, or as varied following my decision to grant an extension of time for compliance.
[12] s 79(1) of the ART Act.
[13] Paragraph 4.29 of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024.
I find there is no logical connection between those matters raised by Mr Xie as outlined at paragraph [10], either individually or cumulatively, and Mr Xie’s assertion I may decide his matter otherwise than on its legal and factual merits.[14] Mr Xie’s concerns do not establish actual bias, nor based on those concerns could I find that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide, that being whether Mr Xie meets the access criteria to become a participant of the NDIS.[15] For these reasons, Mr Xie’s recusal application is refused.
[14] Ebner, [8]; Charisteas v Charisteas [2021] HCA 29, [11]; QYFM, [38].
[15] Ebner, [6].
DECISION
The Applicant’s recusal application is refused.
I certify that the preceding seventeen (17)
paragraphs are a true copy of the reasons
for the decision herein of General Member L Proske
………[SGND]……………………..
Associate
Dated: 12 February 2025
Date of interlocutory hearing: 10 February 2025
Applicant: Self-represented
Solicitor for the Respondent: Ms Ella Rosetzky, Maddocks Lawyers
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