Yao v Administrative Appeals Tribunal

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FEDERAL COURT OF AUSTRALIA

Yao v Administrative Appeals Tribunal [2011] FCA 11

Citation: Yao v Administrative Appeals Tribunal [2011] FCA 11
Appeal from: Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 516
Parties: QING QANG YAO v ADMINISTRATIVE APPEALS TRIBUNAL and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
File number: NSD 919 of 2010
Judge: KATZMANN J
Date of judgment: 19 January 2011
Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal dismissing the applicant’s application as frivolous or vexatious – where the outcome was held to be devoid of any practical effect – whether error in the AAT’s decision – whether convenient for the Court to make findings of fact - Administrative Appeals Tribunal Act 1975 (Cth), ss 42B(1), 44(7)
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 42B(1), 44(7)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 10(2)(b)(ii)
Social Security (Administration) Act 1999 (Cth) ss 131, 145
Social Security Act 1991 (Cth) s 629
Social Security Legislation Amendment (Employment Services Reform) Act 2009  
Cases cited:

Croker v Secretary, Department of Education, Employment and Workplace Relations (No 3) [2008] FCA 1473
Duncan v Hotop [2004] FCA 274
Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3
Kioa v West (1985) 159 CLR 550
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Re Williams and Australian Electoral Commission (1995) 38 ALD 366

Ugur v Commissioner of the Australian Federal Police [2010] FCA 303

Date of hearing: 6 October 2010
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 47
Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter
Solicitor for the Respondents: Ms D Watson of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 919 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

QING QANG YAO
Applicant
AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Second Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

19 JANUARY 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The applicant is to pay the second respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 919 of 2010
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

QING QANG YAO
Applicant
AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Second Respondent

JUDGE:

KATZMANN J

DATE:

19 JANUARY 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Background

  1. The applicant, Mr Yao, is in receipt of social security benefits.  For some time until February 2010 Centrelink paid him a newstart allowance, a benefit payable to the unemployed, generally speaking where they are actively seeking and willing to undertake paid work.  On 8 February 2010, instead of…

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Details
Case
[2011] FCA 11
Decision Date

CaseChat Overview and Summary

In the case of Yao v Administrative Appeals Tribunal, the applicant sought to challenge a decision of the AAT to dismiss his application as frivolous or vexatious. The applicant argued that the AAT erred by selectively quoting from previous case law, failing to consider relevant judgments, and making a decision without sufficient evidence. The central issue before the court was whether the AAT had made an error in its decision to dismiss the applicant’s application as frivolous or vexatious, and if it was appropriate for the court to make findings of fact in this context.

The court examined whether the AAT’s decision to dismiss the application was justified. It noted that the AAT had concluded that the outcome of the proceedings would be devoid of any practical effect for the applicant, as he had not been penalised by the eight-week preclusion period in question. The court found that there was no legitimate purpose in pursuing the application before the AAT, and thus upheld the AAT's decision. It was held that although the power to dismiss under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is to be exercised cautiously and sparingly, this was a proper case in which to do so.

Consequently, the appeal was dismissed. The applicant was ordered to pay the costs of the second respondent.

Orders

Orders of the court

1. The appeal is dismissed.

2. The applicant is to pay the second respondent’s costs.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I propose to deal with the grounds in a different order than that listed in the application.Error of law/making a decision without evidence Mr Yao submitted that the Senior Member erred by selectively quoting from Re Williams and Australian Electoral Commission (1995) 38 ALD 366 (“Williams”). He also argued that the AAT erred because it refused to follow a judgment of this Court to which he and the Secretary drew the Senior Member’s attention. That was Croker v Secretary, Department of Education, Employment and Workplace Relations (No 3) [2008] FCA 1473. He complained, too, that the Senior Member made his decision without evidence, specifically, that he had no evidence that the applicant had been paid during the eight-week preclusion period and that there no longer exists any mechanism by which the eight-week period payments can be recovered from him. In Williams the AAT held at 374:[38]It is difficult to categorise this case into any of the accepted heads of vexatiousness. Even the ``collateral purpose'’ head does not sit easily with a situation where the applicant genuinely believes in the legitimacy of the collateral object which he is seeking. Perhaps this provides a good reason for not stultifying the situations in which proceedings will be found to be vexatious by requiring that they fall within pre-ordained categories. At the same time, it is important to re-affirm that the power to dismiss under this head must be exercised cautiously and sparingly.[39]In this case the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect. Nor is there any reputation at stake or ``face'’ to be saved. The interest which gave the applicant standing to commence the proceedings has long since ceased to exist. He has no legitimate interest in pursuing them further. Accordingly, in our opinion, while the proceedings were not instituted vexatiously, they have become vexatious. They have been thus ever since 22 December 1992, when the only interest of the applicant which could possibly have been affected by the disputed decision, ceased to exist. It would impose unnecessary expense and hardship upon the respondent and the Greens if the case were to proceed further. Accordingly, we consider that the application should be dismissed as requested.(Emphasis added) Mr Yao pointed to the AAT’s failure to quote these passages in their entirety and, in particular, to cite or otherwise refer to the sentences emboldened above. Alternatively, he claims the passages were “chunked by Auscript”, which I took to mean removed by Auscript from the transcript. There is no question that the proceeding was not brought frivolously or vexatiously. At the time the applicant applied for review to the AAT he had a legitimate interest to pursue. He identified that interest in his written submissions in this way (without alteration):Those legitimate interests included set aside the decisions of SSAT applying three participation failures and applying eight week non-payment period to the applicant.

Decision

Reasons for decision

The applicant claims (without alteration):(1)An order that set aside the decision of Senior Member M.D. Allen made on 29 June 2010.(2)An order that set aside the decision of SSAT that applies eight-week period payment to the applicant.(3)An order that set aside the decision of SSAT that applies three participation failures to the applicant on 30 May 2008, 22 July 2008 and 11 August 2008.The AAT decision The AAT’s reasons were delivered ex tempore. They were short. It is therefore convenient to set them out in full:By application made the 3rd day of April 2009, the Applicant sought review of a decision by the Social Security Appeals Tribunal. The decision subject to review was a decision to impose on the Applicant an eight-week preclusion period relating to his Newstart Allowance. It is unnecessary for these reasons to canvas why the eight-week preclusion period was imposed. This morning, Ms Sharma, who appears for the Respondent, informed me that in fact at no time has the eight-week preclusion period been imposed upon the Applicant. In other words, to date he has not been penalised by withholding from him the money which would have been paid to him over an eight-week period. There was apparently a fortnight period where some deductions were made, but they have been reimbursed. From the commencement of the academic year 2010, the Applicant has been in receipt of Austudy. I am informed by Ms Sharma that the eight-week non-payment period of Newstart Allowance cannot be deducted from the Applicant’s Austudy. The net result is, whether the decision under review is affirmed or set aside, the Applicant will not suffer any advantage or disadvantage. He has been paid during the eight-week preclusion period and there no longer exists any mechanism by which that eight-week period payments can be recovered from him. Subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) states inter alia:“Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious, dismiss the application.” As to what is frivolous and vexatious, this Tribunal consisting of the then President and Deputy Presidents Beaumont and Hill J said in Re Williams v Australian Electoral Commission and Another (1995) 38 ALD 366 at 374:“It is difficult to categorise this case into any of the accepted heads of vexatiousness, even the collateral-purpose head does not sit easily with a situation where the applicant genuinely believes in the legitimacy of the collateral object which he is seeking. Perhaps this provides a good reason for not stultifying the situations in which the proceedings will be found to be vexatious by requiring that they fall within preordained categories. In this case, the outcome of the proceedings, whether successful to the applicant or otherwise, will be devoid of any practical effect.”As far as I can ascertain, and I accept what Ms Sharma has told me, whatever the outcome of today’s proceedings might be, they will be of no practical effect to the Applicant or, indeed, to the Respondent. Consequently, pursuant to subsection 42B(1) of the AAT Act, this matter is DISMISSED.The grounds

Ratio Decidendi

Legal Principle Established

It is not self-evident that Mr Yao’s reputation was adversely affected by the decision of the SSAT or that he had “face to be saved”. Mr Yao told the Court he was concerned that he would be prejudiced in his future dealings with job network agencies because of his record of participation failures, including through the imposition of stricter activity agreements. Mr Yao’s concern is understandable, but it is entirely speculative. The difficulty for Mr Yao in any event, however, is that a failure to take into account a relevant consideration will only vitiate a decision if the consideration was one which the AAT was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J. As I indicated earlier, Williams is not authority for the proposition that the AAT is bound to take reputation into account in the exercise of the power to dismiss under s 42B(1) of the AAT Act and I was taken to no other authority to support such a proposition. I therefore accept the Secretary’s submission that, although reputation may be relevant to whether the outcome of an application for review would be futile, it is not a matter that the AAT was bound to take into account. Taking irrelevant considerations into account The issue raised by the respondent was the utility of the application. As the foregoing discussion shows, that was not irrelevant to the exercise of the AAT’s power. Conclusion I am satisfied that there was no legitimate purpose in pursuing the application before the AAT and that the AAT was justified in dismissing it on that account. Although the power to dismiss under s 42B(1) is to be exercised cautiously and sparingly, this was a proper case in which to do so. Accordingly, the appeal should be dismissed with costs.