Wu v Secretary, Department of Social Services [2016] FCA 1061

FEDERAL COURT OF AUSTRALIA

Wu v Secretary, Department of Social Services [2016] FCA 1061 Appeal from: Wu v Secretary, Department of Social Services [2016] AATA 226

File number: VID 371 of 2016

Judge: MURPHY J

Date of judgment: 19 August 2016

Legislation: Social Security Act 1991

Cases cited: Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1; [2003] HCA 30

Date of hearing: 19 August 2016

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 12

Counsel for the Applicant: The Applicant did not appear

Solicitor for the Respondent: Mr N Nguyen of Sparke Helmore

ORDERS VID 371 of 2016

BETWEEN: YONG HUA WU Applicant

AND: SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent

JUDGE: MURPHY J DATE OF ORDER: 19 AUGUST 2016

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The Applicant pay the Respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(revised from transcript)

MURPHY J: 1 In this proceeding the applicant appeals from a decision of the Administrative Appeals Tribunal ("Tribunal") on 8 April 2016 in which the Tribunal affirmed a decision to cancel the applicant's Disability Support Pension payments, which he had received since 1997. 2 Pursuant to s 94 of the Social Security Act 1991 ("the Act") the Tribunal's task was to decide whether the applicant suffered from a physical, intellectual or psychiatric impairment which gave him an impairment of 20 points or more under the Impairment Tables, and had a continuing inability to work. The Tribunal accepted that the applicant suffered from hearing loss, hepatitis B and tuberculosis/calcification, and considered that his hearing loss was severe or profound. On the basis of the evidence of the applicant and his ex-wife/carer and a substantial body of medical evidence the Tribunal concluded that the applicant's total impairment rating was 10 impairment points, not the required 20 points. 3 The appeal came before me for the first case management conference on 15 June 2016 and the applicant appeared for himself. The applicant has no legal training and had apparently drafted the Notice of Appeal himself. In the course of the case management conference I informed the applicant of my preliminary view that the appeal as framed was incompetent as it did not properly state any question of law. 4 I gave leave to the applicant to file an Amended Notice of Appeal by 12 August 2016 and I made a referral for him to receive pro bono assistance to do so. I relisted the case management conference for 19 August 2016 at 9:30 am. 5 The applicant did not file an Amended Notice of Appeal. On 16 August 2016 the respondent filed a Notice of Objection to Competency. 6 There was no appearance by the applicant at the case management conference today at 9:30 am. Against the possibility that the applicant was somehow delayed I allowed more time for him to appear. I requested my assistant to telephone his home on the telephone number provided, but the call was answered by a person who could not speak English and the conversation could not continue. 7 The matter was called on at 9.50 am. There was no appearance for the applicant, and he did not contact chambers or the Court to explain or justify his non-appearance. Nor has he done so since the hearing. 8 The respondent applied for an order dismissing the appeal under: (a) rule 33.33 of the Federal Court Rules 2011 (Cth) ("the Rules") which provides that if an applicant is absent when an appeal is called on for hearing the opposing party may apply for an order that the appeal be dismissed; and/or (b) rule 33.22 which provides that a party may apply to the Court for an order that an appeal be dismissed for failure to comply with a direction of the Court, in this case the direction to file an Amended Notice of Appeal. 9 In my view an order dismissing the appeal pursuant to rules 33.22 and 33.33 is appropriate. I can see no reason why costs should not follow the event. 10 I am confirmed in this conclusion by my view that the Notice of Appeal does not articulate any question of law with sufficient precision: see Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 ("Haritos") at [91] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). In the Notice of Appeal the alleged question of law is that the Tribunal's decision is "not based on facts". The grounds relied on are that the Tribunal's decision is unfair, unjust and "no [sic] according to my medical evidence…" 11 Read fairly, the notice invites a review of the merits of the Tribunal's decision on the medical evidence before it, rather than alleging any question of law: see Haritos at [104] citing with approval the observations of Mortimer J in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]-[77]. It may be an error of law to make a decision which is irrational, illogical and not based upon findings or inferences of fact supported by logical grounds, but the allegation is not particularised and no such defect is apparent on the face of the Tribunal's decision: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1; [2003] HCA 30 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [40] (Gummow ACJ and Kiefel J), [130] (Crennan and Bell JJ). As it is framed the Notice of Appeal only raises a question of fact. 12 I made the attached orders. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.