' athe administrative law - appeal from decision of the Administrative ~ Facial fecurity Act 1947 ma Pep2als Trivenal affixemine decisimw iwder to reduce invalid pension of appellant - motion by respondent for dismissal of appeal as incompetent - whether notice of appeal discloses question of law Administrative Appeals Tribunal Act 1975 s.44(1) Social Security Act 1947 ss.6(1), 15A(1), 28 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR. R.D. NICHOLSON DEPUTY PRESIDENT MICHAEL WILLIAM NELSON v. THE SECRETARY, DEPARTMENT OF SOCIAL SECURITY No. WA G97 of 1986 FEDERAL COURT OF AUSTRALIA PRINCIPAL Os, ALGISTAY "on a ae at BOWEN C.d., TOOHEY & FRENCH JJ. PERTH 10 DECEMBER 1986 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G97 of 1986 ON APPEAL from the Administrative Appeals Tribunal constituted by Mr. R.D. Nicholson Deputy President BETWEEN: MICHAEL WILLIAM NELSON Applicant and THE SECRETARY, DEPARTMENT OF SOCTAL SECURITY Respondent MINUTE OF ORDER JUDGES MAKING ORDER: Bowen C.J., Toohey and French JJ. DATE OF ORDER: 10 December 1986 WHERE MADE: Perth THE COURT ORDERS THAT: The appeal is dismissed as incompetent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ft In! THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G97 of 1986 ON APPEAL from the Administrative Appeals Tribunal constituted by Mr. R.D. Nicholson Deputy President BETWEEN: MICHAEL WILLIAM NELSON Applicant and THE SECRETARY, DEPARTMENT OF SOCTAL SECURITY Respondent REASONS FOR JUDGMENT Nelson has appealed from a decision of the Administrative Appeals Tribunal. That decision affirmed a decision' of an officer of the Department of Social Security, made pursuant 'to s.28 of the Social Security Act 1947, to reduce the rate of Mr. Nelson's invalid pension. There 1s a motion by the respondent that the appeal be dismissed as incompetent. This turns on the requirement in sub-s.44(1) of the Administrative Appeals Tribunal Act 1975 that a , party to 4 proceeding before the Tribunal mav appeal to the Federal Court "on a question of law". In the respondent's submission, no question of law is disclosed by the notice of appeal or by a supplementary document filed by Mr. Nelson containing grounds of appeal. The notice of appeal sets out in four numbered paragraphs what are said to be the questions of law raised by the appeal. In our view none of the so called questions of law 1s ' raised by the appeal. Mr. Nelson's pension was reduced because of the view taken by the department to include in his income interest from bank accounts in the name of Kingdom Management Community. In affirming the departmental decision, the Tribunal said: "The invested funds on which interest is earned are maintained in an account styled as directed by the Applicant from time to time and for which the Applicant is the signatory. The Community is not an incorporated entity and has no separate legal existence. It is apparent it is subject to management and control by the Applicant. In the final analysis the Community is the Applicant. There is no legal separation between the Applicant and the Community. It follows that interest earned on funds invested in the name of the Community are likewise for the use and benefit of the Applicant". The matter came before the Tribunal pursuant to sub-s.15A(1) of the Social Security Act. The references in the notice of appeal to the Administrative Decisions (Judicial Review) ? Act 1977 mistake the nature of the jurisdiction exercised by the . Tribunal. The Tribunal was required to make the correct or preferable decision on the application before it and 1t concluded PeeWee Cn oe ts tar that the decision under review should be affirmed. The questions of law mentioned in the notice of appeal do not arise from the Tribunal s decision. The grounds of appeal range over a number of matters including the status of Kingdom Management Community as a religion. But the Tribunal's decision did not turn on the question whether the Community was a religious body. It turned on the application of the definition of "1ncome" in sub-s.6(1) of the Social Security Act which reads: "'income', in relation to a person, means' personal earnings, moneys, valuable consideration or profits earned, derived or received by that person for the person's own use or benefit by any means from any source whatsoever, within or outside Australia, and includes a periodical payment or benefit by way of gift or allowance, ..." The Tribunal concluded that interest earned on accounts in the name of Kinaqdom Management Community were moneys derived or received by Mr. Nelson for his own use or benefit and therefore constituted income within the meaning of the Act. This was a finding of fact and does not give rise to a question of law. In the course of Mr. Nelson's submissions, reference was made to the moneys invested in the name of Kingdom Management Community. For the most part these moneys were invested on fixed term with interest accruing quarterly and compounded thereafter. In its reasons for decision, the Tribunal spoke in general terms of interest earned un the accounts. No question appears to have arisen befure the Tribunal as to whether moneys were in fact derived or received by any person during the terms of the tnvestments and no such question was raised by the notice of appeal or by any ot the other documents filed on behalf of Mr. Nelson. We accept the submissions of the respondent that no question of law arises out of the Tribunal's decision and that none is disclosed by the notice of appeal or supporting documents. The appeal must therefore be dismissed as incompetent. I certify that this and the preceding 3 pages are a true copy of the reasons for judgment herein of the Court. Associate Dated: 10 December 1986 Counsel for the applicant: . Applicant appeared in person Counsel for the respondent: Ms. C. Francas instructed by Australian Government Solicitor Date of hearing: 9 December 1986