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High Court of Australia Transcripts |
Last Updated: 11 July 2023
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Melbourne No M25 of 2023
B e t w e e n -
MOHAMMED AHAMED
Plaintiff
and
SECRETARY OF DEPARTMENT OF HUMAN SERVICES
First Defendant
JUSTICE BROMBERG, A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
Second Defendant
JUSTICE KERR, A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
Third Defendant
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA BY VIDEO CONNECTION
ON FRIDAY, 7 JULY 2023, AT 9.29 AM
Copyright in the High Court of Australia
____________________
HER HONOUR: By an application for constitutional or other writs
filed on 1 May 2023, the plaintiff seeks orders in the nature of certiorari
and
mandamus and other relief. For the reasons that I now publish, I dismiss
the application. I make the following orders:
I publish
these orders and I direct that the reasons as published be incorporated into the
transcript.
On 1 May 2023, the plaintiff filed an application for constitutional or other writs in the original jurisdiction of this Court. By that application, the plaintiff seeks relief directed to the first defendant, the Secretary of the Department of Human Services (“the Secretary”), and to quash the judgments of two judges of the Federal Court of Australia: the second defendant[1] (Bromberg J) and the third defendant[2] (Kerr J). The relief sought concerns the plaintiff’s entitlements to various forms of government payments, namely the disability support pension (“DSP”) at the single rate (as opposed to the partnered rate), rent assistance, and the pension education supplement. All of the claims are historical, except for a claim for payment of the single rate of the DSP from “17 April 2018 and onwards”. The plaintiff sought
extensions of time evidently intended to obtain an enlargement of the time for filing the application[3].
Background facts
The plaintiff was granted the DSP at the single rate in November 2012. In February 2015, he married his second wife (“wife”) in Bangladesh. In November 2015, the plaintiff advised Centrelink (which was then the service provider for the Department of Human Services) of his marriage, but that his wife remained in Bangladesh indefinitely. Centrelink advised him that he would nevertheless continue to be paid the single rate of the DSP, as his wife was not residentially qualified to receive a payment and the plaintiff met the criteria for financial difficulty.
In December 2015, the plaintiff left Australia to complete a year of study in Bangladesh. In June 2016, by reason of the length of the plaintiff’s absence from Australia, the Secretary cancelled the plaintiff’s rent assistance, though the plaintiff continued to receive the DSP. In July 2016, while the plaintiff was still in Bangladesh, his wife was granted a subclass 309 (provisional partner) visa, which provided her with the right to work in Australia.
In February 2017, the plaintiff returned to Australia but did not advise the Secretary of his change in address, nor that he was paying rent. On 5 April 2017, the plaintiff’s wife arrived in Australia and commenced living with the plaintiff. On 5 January 2018, the plaintiff’s wife gave birth to their son. On 15 January 2018, the plaintiff advised Centrelink of a change in his address and that he had been paying the rent at that address since his return to Australia in February 2017. In February 2018, the plaintiff applied for the family tax benefit (“FTB”).
On 7 August 2018, the Secretary made a decision that the plaintiff was a member of a couple and had been incorrectly paid the DSP at the single rate between 5 April 2017 (being the date of his wife’s arrival in Australia) and 16 April 2018, such that he owed a debt to the Commonwealth of $6,795.88 (“the debt decision”). That debt represented the difference between the single rate and the partnered rate of the DSP during that period.
In September 2018, the plaintiff was granted the FTB which included rent assistance, with backpay dated from the son’s birth on 5 January 2018. In doing so, the Secretary made a further decision that the plaintiff was not entitled to be back paid rent assistance from a date earlier than 5 January 2018 (“the rent assistance decision”). On 7 December 2018, an authorised review officer of the Secretary’s Appeal Branch affirmed both the debt decision and the rent assistance decision.
Since he was notified of the debt decision, the plaintiff has taken various steps including legal proceedings to pursue his claims to have the debt decision set aside, for back paid rent assistance and for other amounts. Ultimately, the debt decision was set aside but the plaintiff’s claim for back paid rent assistance was unsuccessful. The plaintiff continues to pursue his claim for back paid rent assistance in his application to this Court.
Centrelink records show that, on 13 March 2019, the plaintiff commenced two appeals in the Administrative Appeals Tribunal (“the Tribunal”), which appear to have concerned the authorised review officer’s decisions in relation to the debt decision and the rent assistance decision. On 1 April 2019, the plaintiff made an inquiry about a “third review”, and was told that it had been “amalgamated”, apparently with one of the other two reviews, and that his “AAT request on the 13.03.19 [was] still pending”. The documentary evidence does not identify the subject matter of the “third review” but, as explained below, the plaintiff alleges that it concerned a claim for the DSP at the single rate after 17 April 2018.
On 22 May 2019, the Social Services & Child Support Division of the Tribunal affirmed the authorised review officer’s decision affirming the debt decision and the rent assistance decision.
On 13 December 2019, on a second tier review[4], the General Division of the Tribunal affirmed the decision of the Social Services & Child Support Division concerning the rent assistance decision, but set aside the decision concerning the debt decision, remitting it to the Secretary to waive $2,000 of the debt on the basis of a finding of special circumstances[5]. For reasons which will become apparent, it must be noted that the Tribunal’s decision does not refer to any decision by the Secretary nor by an authorised review officer concerning a contention by the plaintiff of an entitlement to the DSP at the single rate after 16 April 2018. The Tribunal found that the plaintiff was a member of a couple during the period 5 April 2017 to 16 April 2018. The Tribunal also found that that the plaintiff and his wife had separated sometime after 20 September 2018. This finding raises a question about whether, sometime after 20 September 2018, the plaintiff was no longer a member of a couple with his wife.
On 20 May 2020, a judge of what was then the Federal Circuit Court of Australia allowed the plaintiff’s appeal from the Tribunal’s 13 December 2019 decision, and remitted the matter to the Tribunal for rehearing according to law[6]. That judgment shows that the plaintiff raised questions of law concerning the debt decision and the rent assistance decision. In addition, the plaintiff raised, as a purported question of law, whether he should receive the single rate of the DSP during the period April 2017 until 28 April 2019 based on special circumstances. This period includes but extends beyond the period covered by the debt decision. The Federal Circuit Court incorrectly recorded that the Tribunal had considered whether the plaintiff should not be treated as a member of a couple for social security purposes during the period April 2017 until 28 April 2019. To the contrary, the Tribunal had found only that the plaintiff was a member of a couple for those purposes during the period 5 April 2017 to 16 April 2018. The documentary evidence does not identify any decision concerning the plaintiff’s entitlement to the single rate of the DSP during the period 17 April 2018 to 28 April 2019 (nor, for that matter, any later period).
Following the Federal Circuit Court’s decision, the Secretary effectively conceded the plaintiff’s claim in relation to the debt decision. Accordingly, on 4 December 2020, the Tribunal on remittal ordered that the authorised review officer’s decision affirming the debt decision be set aside. The Tribunal affirmed the decision of the Social Services & Child Support Division of the Tribunal concerning the rent assistance decision. Although the Tribunal recorded the questions of law raised by the plaintiff on his appeal to the Federal Circuit Court, including the question concerning his entitlement to the single rate of the DSP covering the period “April 2017 to 28 April 2019”, the Tribunal’s reasons again identified no decision concerning the plaintiff’s entitlement to the single rate of the DSP during the period 17 April 2018 to 28 April 2019 and contained no discussion of that issue.
Relief sought against the Secretary
The relief presently sought against the Secretary seeks payments comprising: (1) the single rate of the DSP from 17 April 2018 onwards; (2) rent assistance from 15 June 2016 until January 2018; (3) “[f]ull four weeks payment once the 12-month period ends in 2016” for the period 1 January 2017 to 28 January 2017; (4) the pension education supplement from 2016 to 2018; and (5) “full” DSP payment for the year 2016.
The application for this relief is misconceived. This Court’s relevant jurisdiction is in a matter in which a writ of mandamus is sought against an officer of the Commonwealth[7]. Mandamus compels the performance of an unperformed public duty[8]. In substance, the plaintiff seeks a writ of mandamus compelling the Secretary to perform a duty to pay particular benefits to him, but has identified no relevant unperformed duty or duties requiring the Secretary to do so. For example, although the plaintiff relies upon s 24 of the Social Security Act 1991 (Cth) and suggests that the “third review” concerned a decision under that section, s 24 provides for the Secretary to make a determination in writing that a person is not to be treated as a member of a couple for the purposes of the Act if certain pre‑conditions to making that determination are satisfied. Section 24 does not impose a duty upon the Secretary to pay benefits. Further, the plaintiff’s complaints in the application about his alleged unpaid entitlement to the single rate of the DSP from 17 April 2018 onwards are directed to an alleged failure by the Tribunal or Kerr J to address this issue. Those complaints do not provide support for an order compelling the Secretary to make a payment or payments to the plaintiff.
Underlying the plaintiff’s application appears to be a complaint that the Secretary decided not to pay him the single rate of the DSP beyond 17 April 2018 and that, by his “third review”, he sought a review of that decision which was not addressed by the Tribunal in its 4 December 2020 decision. However, the materials provided to this Court do not identify any such decision, nor any jurisdiction of the Tribunal to address such a decision. The materials do not support a contention that the Secretary has an unperformed duty to make a payment of the single rate of the DSP from 17 April 2018 onwards, or at any time.
Relief directed to judgment of Kerr J
It is convenient to address the plaintiff’s application insofar as it is directed to Kerr J’s judgment before addressing the application insofar as it is directed to Bromberg J’s judgment because Kerr J’s judgment was given earlier in time, and both were directed to the same controversy, being the plaintiff’s contentions that the Tribunal had erred in its decision dated 4 December 2020.
On 23 November 2021, Kerr J dismissed as incompetent the plaintiff’s purported appeal from the Tribunal’s decision for failure to identify question of law as required by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Concerning the plaintiff’s assertion of an entitlement to the single rate of the DSP between April 2017 and 28 April 2019, the issue had been resolved by the Secretary’s concession in relation to the debt decision for the period April 2017 to 16 April 2018. For the balance of the period, it appears from Kerr J’s judgment that the plaintiff did not identify an error of law by the Tribunal in failing to address this claim and his Honour did not discern any such error of law[9]. Subsequently, the plaintiff sought an extension of time and leave to appeal from Kerr J’s judgment in the exercise of the Federal Court’s appellate jurisdiction.
It is unnecessary to address this aspect of the plaintiff’s application in any more detail. The facts set out above demonstrate that the application for a constitutional writ directed to quashing Kerr J’s judgment is an abuse of process because it seeks impermissibly to relitigate the plaintiff’s application for an extension of time and leave to appeal from the judgment of Kerr J[10].
Relief directed to judgment of Bromberg J
On 12 October 2022, Bromberg J refused the plaintiff’s application for an extension of time and leave to appeal from the judgment of Kerr J[11]. Applying the usual principles[12], his Honour accepted that the plaintiff had provided an explanation for his six-month delay, and that there would be no prejudice to the Secretary should an extension of time be granted, but concluded that Kerr J’s judgment was not attended with sufficient doubt to warrant its reconsideration and therefore to warrant a grant of leave to appeal. The plaintiff’s proposed grounds of appeal did not address why Kerr J was wrong to determine that no question of law was disclosed by his amended notice of appeal; instead, they alleged that Kerr J failed to identify various alleged errors made by the Tribunal, which was misconceived[13]. It would have been “entirely speculative” for Kerr J to have determined that the first articulated question, concerning the plaintiff’s entitlement to the single rate of the DSP from April 2017 to 28 April 2019, raised a “failure to consider” type of legal error[14] in light of the “very general and uninformative nature of the questions and grounds” specified by the plaintiff[15]. Bromberg J observed that the plaintiff failed to appreciate that the jurisdiction of the Federal Court was confined in the way that it was: the plaintiff was “not to be punished for that lack of understanding but he must, nevertheless, bear the consequences of it”[16].
Writs of certiorari are available in certain circumstances to correct jurisdictional error by a judge of the Federal Court, being an “officer of the Commonwealth” within the meaning of s 75(v) of the Constitution[17].
In his application to this Court, the plaintiff alleges that Bromberg J’s judgment was affected by impermissible bias because his Honour knew of errors in Kerr J’s judgment, and because his Honour failed to follow the Full Court’s decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata[18]. The plaintiff further contends that Bromberg J dismissed the application “without looking into jurisdictional error” made by either the Tribunal or Kerr J.
The plaintiff’s complaints do not disclose an arguable case of apprehended or actual bias[19]. The decision in Parata concerned, broadly speaking, whether a defective notice of a decision under the Migration Act 1958 (Cth) set the statutory time frame running during which the respondent could seek review of the decision. The plaintiff appears to analogise that case to what he contends was the Secretary’s decision to send notices concerning the cancellation of his rent assistance to the wrong address. But that is beside the point: Bromberg J applied settled principles to reach a decision to refuse an extension of time and leave to appeal from Kerr J’s judgment, which concerned whether the plaintiff’s amended notice of appeal articulated questions of law. His Honour’s omission to refer to Parata does not indicate any possible failure to address the plaintiff’s case other than on its merits, or any basis for a reasonable apprehension of such a failure.
The remainder of the plaintiff’s complaints reduce to a contention that Bromberg J was affected by bias, whether apprehended or actual, because he decided in a manner adverse to the plaintiff. That contention has no merit.
Conclusion
In the absence of any arguable claim for relief, it would be futile to grant the enlargement of time necessary for the plaintiff’s application to proceed.
Under r 25.09.1 of the High Court Rules 2004 (Cth), I order that the application be dismissed without listing it for a hearing. For the avoidance of doubt, I refuse to grant the plaintiff’s application for an enlargement of time to file the application. The plaintiff should pay the costs of the first defendant.
Adjourn the Court, please.
AT 9.30 AM THE MATTER WAS CONCLUDED
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URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2023/94.html