Rahman v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 187

FEDERAL COURT OF AUSTRALIA

Rahman v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 187

Administrative Appeals Tribunal Act 1975 (Cth), s 44 Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5 Judiciary Act 1903 (Cth) s 39B(1A)(c) Social Security (Administration) Act 1999 (Cth), ss 23, 203, 204 Birdseye v Australian Securities & Investments Commission (2004) 76 ALR 321 referred to TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 referred to MOHAMMAD TABIBAR RAHMAN v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS NSD2336 OF 2006

EMMETT, STONE & JACOBSON JJ

5 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2336 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MOHAMMAD TABIBAR RAHMAN

Appellant

AND: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

JUDGES: EMMETT, STONE & JACOBSON JJ DATE OF ORDER: 5 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. To the extent that leave is required, leave be granted. 2. The appeal be dismissed 3. The appellant pay the respondent's costs of the appeal, including the reserved costs of 29 August 2007. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2336 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MOHAMMAD TABIBAR RAHMAN

Appellant

AND: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

JUDGES: EMMETT, STONE & JACOBSON JJ

DATE: 5 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT

EMMETT J: 1 There is some slight confusion about the nature of the proceeding before the Court today, which arises out of orders made by a judge of the Court on 5 July 2007. By those orders, the primary judge ordered that the second respondent be removed as a party and ordered that an application filed on 29 November 2006 be dismissed with costs. His Honour also ordered that a notice of motion filed by the applicant on 6 December 2006 be dismissed with costs. It appears that the applicant sought leave to appeal orallywhen the orders were made. However, there may be a question as to whether leave was required in circumstances when his Honour's orders disposed of the proceeding. 2 The proceeding was commenced on 29 November 2006 and was intended, it appears, to constitute an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from orders made by the Administrative Appeals Tribunal (the Tribunal). The basis for his Honour's orders, as is apparent from the reasons for judgment delivered on 5 July 2007, is that his Honour concluded that the Court had no jurisdiction to entertain the application. 3 The appellant, Mr Mohammad Rahman, was a single parent with two children. He was in receipt of Parenting Payments. His assets included his own home, which was unencumbered, and an investment property at Holsworthy bought by him in November 2002 for $349,000. The Holsworthy property was subject to a mortgage. There was a question as to the value of the Holsworthy property. 4 On 10 February 2006, Centrelink cancelled the payments that were being made to Mr Rahman. After an internal review, the decision of 10 February 2006 was affirmed. In the review, it was found that the Holsworthy property had a value of $340,000 and Mr Rahman's assets were valued at $169,780. On 2 June 2006, the Social Security Appeals Tribunal (the SSA Tribunal) affirmed Centrelink's cancellation decision. It determined that the total value of his assets was $165,242.50. 5 On 13 November 2006, the Administrative Appeals Tribunal (the Tribunal) affirmed Centrelink's decision of 10 February 2006. The Tribunal found that the value of the Holsworthy property, as at 18 April 2006, was $340,000. The Tribunal assessed Mr Rahman's total assets as $168,402.85, which exceeded the relevant limit of $157,000. It also noted that, had it accepted the valuation advanced by Mr Rahman of $330,000, his assets would still have exceeded the limit. 6 Mr Rahman filed a notice of appeal to the Federal Court of some 21 pages in length. It purported to be made under O 53, r 2 of the Federal Court Rules (the Rules), which deals with appeals from the Tribunal. The primary judge observed that much of the notice of appeal was difficult to follow. Under the heading, "Questions of Law", the purported notice of appeal listed a number of statutes. A section headed "Orders Sought" identifies five orders. The first is an order, pursuant to s 22 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), setting aside the decision of the Tribunal of 13 November 2006. The second is orders, under s 23 of the Federal Court Act, to issue writs or orders under ss 203 and 204 of the Social Security (Administration) Act 1999 (Cth) (the SSA Act). Those provisions prescribe offences under the Act. The third order claimed was for costs. The fourth order claimed costs for psychological stress and mental tortures. The fifth order was for any other costs that the Court thinks most appropriate. 7 The section of the notice of appeal that was headed "Grounds" is eight pages in length. As his Honour said, the section is difficult to follow. It summarises Mr Rahman's dealings with Centrelink since it first cancelled his Parenting Payments in December 2004. Mr Rahman was successful in having that decision reversed by the Tribunal but shortly afterwards, the payments were cancelled again. 8 In addition to his notice of appeal, Mr Rahman filed a notice of motion of 6 December 2006 seeking "convictions" under the SSA Act. That seems to be consistent with the second order sought in the notice of appeal. 9 Before the Tribunal, the Secretary of the Department of Employment and Workplace Relations was the only respondent. In the proceeding commenced in this Court, Mr Rahman joined, as second respondent, the Secretary, Centrelink Agency, Department of Human Services. The first respondent sought an order that that respondent be removed as a party on the basis that there is no such person or office. In addition, the first respondent sought an order that the proceeding be struck out as incompetent, on the basis that the notice of appeal did not set out any questions of law as required by s 44 of the AAT Act. The Secretary contended that Mr Rahman had not attempted to frame any question of law for the Court to determine and, therefore, as currently framed, the notice of appeal did not engage the Court's jurisdiction. 10 The Secretary also sought, in the alternative, an order that the proceeding be dismissed as incompetent insofar as it seeks to appeal from decisions of the SSA Tribunal and Centrelink. The Secretary contended that, even if there was some jurisdictional basis for review of Centrelink's decision of 10 February 2006 to cancel Mr Rahman's payments, the Court should decline to exercise jurisdiction to grant relief since there would be no utility in doing so. The argument was that there had been a full merits review by the Tribunal, which had rendered the Centrelink and SSA Tribunal decisions irrelevant. 11 So far as the Tribunal's decision is concerned, the primary contention of the Secretary was that the Tribunal made a finding of fact and Mr Rahman has not identified any ground constituting a question of law raised in the Tribunal's decision. The Tribunal made a finding of fact concerning the valuation submitted by Centrelink and the reasons for that finding were provided. Mr Rahman has not sought to ventilate any basis upon which he says that the valuation accepted by Centrelink involved any question of law. 12 The primary judge referred to Mr Rahman's written submissions and the oral submissions made at the hearing before his Honour. His Honour had regard to the fact that Mr Rahman is not legally qualified in this country and is unrepresented. His Honour observed again that Mr Rahman's written submissions were difficult to follow and contained a mixture of propositions, extracts of legislation and case references. When asked where, in the notice of appeal or supporting affidavit, the question of law was identified, Mr Rahman, according to the primary judge, referred to the list of legislative provisions that appears in the notice of appeal, and to his rights under s 44 of the AAT Act. 13 It emerged, in the course of the hearing before the primary judge, that Mr Rahman had a number of complaints about the Centrelink decision. The complaints included the following: · Centrelink had cancelled his Parenting Payments without notice, · Centrelink had obtained a valuation of the Holsworthy property without his permission or authorisation; · Centrelink had gone on to cancel his payment a second time just days after the Tribunal had set aside the earlier decision to cancel his parenting payments and; · the valuation that Centrelink relied upon was provided by the Australian Taxation Office. 14 His Honour concluded that the notice of appeal should be struck out or dismissed as incompetent for the reasons advanced by the Secretary. Insofar as the notice of appeal sought orders that the decision of the Tribunal of 13 November 2006 be set aside, his Honour considered that Mr Rahman had not set out any question of law for the purpose of s 44 of the AAT Act. 15 The requirements of the Rules are that a notice of appeal must state "the question or questions of law to be raised on the appeal", and "briefly but specifically, the grounds relied upon in support of the orders sought". Order 53 rule 3 discloses a clear intention that a question of law to be raised on appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that one should expect to find the links between the question of law, the circumstances of the particular case, and the orders sought on the appeal (see Birdseye v Australian Securities and Investments Commission (2004) 76 ALD 321. His Honour concluded that the notice of appeal filed by Mr Rahman fell well short of those requirements. 16 His Honour considered that, to the extent that the applicant had attempted to identify any appealable errors on the part of the Tribunal, they were in terms that were verbose, repetitive and difficult to understand. In other respects, his Honour considered that they were in terms so general as to be meaningless. His Honour referred again to the fact that Mr Rahman was not legally represented, and that it was evident that his first language is not English. His Honour considered that, even allowing some latitude in those respects, there was nothing in the material that had been filed by Mr Rahman that could sensibly be accepted as a question of law upon which an appeal might be founded; nor were there grounds linking the questions of law to the facts such as to satisfy the requirements of the Rules. 17 The existence of a question of law is not merely a qualifying condition to ground an appeal but is also the subject matter of the appeal itself (see TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175). It is essential to identify a question of law in order to enliven the Court's jurisdiction and to define the scope of an appeal. As his Honour observed, it is not the role of the Court to sift through a notice of appeal and other material that an applicant has filed. His Honour repeated his view that much of which had been filed by Mr Rahman was almost incomprehensible. His Honour considered that it was not the function of the Court to decipher what possible questions of law Mr Rahman might have been seeking to raise, or which grounds of appeal could possibly be inferred. Speaking for myself, I do not see any error in that approach. 18 As I have said, the second order sought by Mr Rahman in his notice of appeal was for the Court to issue writs or orders under ss 203 and 204 of the SSA Act, which prescribe offences. Mr Rahman's notice of motion and his notice of appeal disclose no jurisdictional basis for such orders. Mr Rahman has, from time to time, referred to the Judiciary Act 1903 (Cth) (the Judiciary Act), which provides that the Court has jurisdiction in relation to any matter arising under any federal statute. However, s 39B(1A)(c) of the Judiciary Act specifically excludes criminal matters from the Court's original jurisdiction. For that reason, his Honour concluded that Mr Rahman's notice of motion was incompetent and should be dismissed. Similarly, his Honour considered that no jurisdictional basis had been pleaded for the damages claimed by Mr Rahman and, therefore, concluded that the notice of appeal was incompetent in that respect. His Honour observed that the Court's jurisdiction under s 44 of the AAT Act is limited to decisions of the Tribunal. While Mr Rahman, in his written submissions, referred to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), he made no attempt before the primary judge to outline any basis upon which he was seeking judicial review under those provisions. 19 His Honour concluded, ultimately, that the proceeding, by way of notice of appeal and the notice of motion, should be dismissed with costs. 20 Mr Rahman has filed no notice of appeal nor, assuming that he needs leave, has he filed or produced a draft notice of appeal. He was invited orally to outline the grounds of appeal from the primary judge. My understanding of his oral recounting of his grounds is as follows: (1) The primary judge was absolutely wrong and did not specify under what provisions he made orders. (2) The primary judge misconstrued the law and the process. (3) The primary judge did not specify the basis upon which the proceedings should be dismissed against some parties. (4) The primary judge failed to deal with the parties who were absent for contempt. (5) The primary judge misconstrued s 192 of the SSA Act. (6) The Secretary did not make an order and his Honour did not say who made the order. (7) His Honour failed to afford Mr Rahman justice and, therefore, Mr Rahman should not be required to pay the costs. 21 Mr Rahman filed extensive written submissions, running to some 14 pages. They do not address grounds of appeal. I find them quite incomprehensible. They do not address the grounds to which Mr Rahman alluded in the course of oral argument this afternoon. I endeavoured to explain to Mr Rahman that the primary judge's conclusion was based on the proposition that the Court does not have jurisdiction to deal with an appeal from the Tribunal, except on a question of law. Mr Rahman was unable to formulate or identify the question of law that he says he wishes to raise. The reference to s 192 of the SSA Act is meaningless because that is not a provision to which the primary judge referred in the course of his reasons. 22 I can find nothing in the written submissions of Mr Rahman that indicates a question of law that would give jurisdiction to, or found jurisdiction for the Court in this proceeding. I do not consider that there was any error on the part of the primary judge. I certainly do not consider that the judgment and orders of the primary judge are attended with any doubt. Nevertheless, if leave is required, I would be disposed to give leave, only because of the finality of the proceeding. However, I would dismiss the appeal. 23 As I have said, it may well be that leave is not required. If leave is not required, I would dismiss the appeal. No notice of appeal has been filed but I would treat the submissions filed by Mr Rahman as a notice of appeal. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.