Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CSK v Secretary, Department of Family and Community Services [2017] NSWCATAP 85 Hearing dates: On the papers Date of orders: 21 April 2017 Decision date: 21 April 2017 Jurisdiction: Appeal Panel Before: K O'Connor, AM, ADCJ,Deputy President, Appeals J Lucy, Senior Member Decision: Appeal dismissed Catchwords: ADMINISTRATIVE REVIEW – Jurisdiction – Decision to decline to assess suitability of prospective adoptive parents to adopt child. – Whether decision externally reviewable by Tribunal – Tribunal held not – appeal dismissed. Legislation Cited: Administrative Review Decisions Act 1997 Adoption Act 2000 Adoption Regulation 2015 Civil and Administrative Tribunal Act 2013 Cases Cited: BWO and BWP v Barnardos Australia [2015] NSWCATAD 216 BY v Director General, Attorney General's Department [2002] NSWADT 79 Category: Principal judgment Parties: CSK (First Appellant) CSL (Second Appellant) Secretary, Department of Family and Community Services (Respondent) File Number(s): 16/55539 Publication restriction: Section 65(1)(b) and (2) of the Civil and Administrative Tribunal Act 2013 apply to these proceedings. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: CSK v Secretary, Department of Family and Community Services [2016] NSWCATAD 292 Date of Decision: 14 December 2016 Before: S Higgins, Principal Member File Number(s): 1610578 Reasons for Decision 1. CSK and CSL applied to the Tribunal for review of an administrative decision made by a delegate of the Secretary, Department of Family and Community Services (the agency). In that regard the agency's notice of decision including a statement advising them that they had a right to apply to the Tribunal for external review. 2. After the matter reached the Tribunal, the agency objected to it being heard on the ground that the applicable legislation, properly construed, did not vest jurisdiction in the Tribunal to review the decision under notice. The Tribunal upheld the objection, and dismissed the review application. 3. CSK and CSL now appeal against that decision. They may appeal 'as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds': Civil and Administrative Tribunal Act 2013 (NCAT Act), s 80(2)(b). 4. An oral hearing of the appeal was fixed for 17 March 2017. However, prior to that date, the parties agreed that the issues could be adequately addressed on the basis of the written submissions filed by the parties and the underlying material. Accordingly, the Appeal Panel decided to dispense with an oral hearing, as permitted by s 50 of the NCAT Act. Factual Background 1. The factual background to the review application is explained more fully in the Tribunal decision. CSK is of Thai origin. She now lives in Australia and is married to CSK, the second appellant. They are both Australian citizens. They want to adopt CSK's niece, a Thai national, presently 17 years old. She resides with them and holds a temporary student visa. She turns 18 on 5th September 2017. 2. On 7 March 2016 CSK and CSL applied under the Adoption Act 2000 to the Supreme Court of NSW for an adoption order. In July 2016, as prospective adoptive parents, they applied to the Commonwealth for an adoption visa for their niece. Prospective adoptive parents are required to furnish with their application a statement from a 'competent authority' that approves them as suitable adoptive parents for the person the subject of the visa application. The respondent agency is a competent authority. 3. On 20 April 2016 the couple applied to the agency for a suitability assessment. They said in their application that they required this assessment for the purpose of both the Supreme Court application, and the Commonwealth adoption visa requirement. 4. So far as the Supreme Court is concerned, s 91 of the Adoption Act is relevant: 91 Report required before order made for adoption of child (1) The Court may not make an order for the adoption of a child under 18 years of age unless a report in writing concerning the proposed adoption has been provided to the Court by the applicant. (2) The report is to be accepted by the Court only if it has been prepared by the Secretary or an authorised person. (2A) In this section, an authorised person means any of the following: (a) an approved assessor, (b) the principal officer of an accredited adoption service provider (or delegate), (c) the principal officer of a designated agency (or delegate), (d) a suitably qualified person employed or nominated by an approved organisation to prepare reports in accordance with this section. (3) This section does not prevent the Secretary from making a report to the Court in relation to the adoption of a child before the Court if the Secretary considers it appropriate to do so. (4) The Court may require the Secretary to make a report in relation to an application for an adoption order made by a person other than the Secretary, but only if the child is under 18 years of age. (5) However, the Court is not to require the Secretary to make a report unless the Court considers that the Secretary should report on the case because of: (a) particular concerns about the safety, welfare or well-being of the child concerned, or (b) serious concerns about the reliability or independence of a report made by an authorised person concerning the case, or (c) other exceptional circumstances. (6) The Court may require the Secretary to make such a report within a period of 6 months after the date of the making of the application or such other period as the Court may, having regard to the circumstances of the case, specify. (6A) A principal officer of an accredited adoption service provider may delegate his or her function under subsection (2) to one or more employees of the accredited adoption service provider or of an affiliated foster care service, whom the principal officer considers to be appropriately qualified to exercise the function. (6B) A principal officer of a designated agency may delegate his or her function under subsection (2) to one or more employees of the agency, whom the principal officer considers to be appropriately qualified to exercise the function. (7) In this section: approved assessor means a person, or a person of a class, approved by the Secretary from time to time, by order in writing, to provide a report to the Court for the purposes of this section. approved organisation means an organisation approved by the Secretary from time to time, by order in writing, to provide a report to the Court for the purposes of this section. designated agency has the same meaning as in section 139 of the Children and Young Persons (Care and Protection) Act 1998. 1. Clause 46 of the Adoption Regulation 2015 gives the Secretary of the agency, as a 'relevant decision maker' for the purposes of the provision, the power to make assessments of suitability and to provide approvals. 46 Assessment of applicants for adoption (1) The relevant decision-maker may: (a) decline to assess, or (b) approve or approve subject to conditions, or (c) decline to approve, an applicant as suitable to adopt a child or a particular child. (2) Without limiting subclause (1), the relevant decision-maker may decline to assess, or decline to approve, an applicant or applicants as suitable to adopt a child if the applicant or applicants have made an application to another relevant decision-maker and that other decision-maker: (a) is assessing the suitability of the applicant or applicants to adopt the child or a particular child, or (b) has approved, or approved subject to conditions, the applicant or applicants as suitable to adopt a child or particular child. (3) In assessing the suitability of applicants to adopt, the relevant decision-maker is to have regard to the provisions of Part 1 of Chapter 4 of the Act (so far as they are relevant) and to the prescribed selection criteria. (4) If the relevant decision-maker is a principal officer, the relevant decision-maker may (instead of having regard to the prescribed selection criteria) have regard to any criteria to assess the suitability of applicants to adopt a child notified to the Secretary in accordance with clause 12 (2) of Schedule 1 and any information obtained or check conducted under clause 44. (5) In assessing the suitability of applicants to adopt, the relevant decision-maker must take into account whether any other person who resides at the home of the applicant is of good repute and is a fit and proper person to associate with a child, having regard to the information obtained and checks conducted in relation to the person under clause 44. (6) The relevant decision-maker must decline to approve an application made jointly by a husband and wife or by de facto partners if the relevant decision-maker determines that either of them is not suitable to adopt a child. (7) If the relevant decision-maker is a principal officer, he or she must: (a) promptly advise the Secretary of decisions taken by the decision-maker under subclause (1), and (b) provide the Secretary with such particulars relating to any such decision as the Secretary may require. 1. The agency decided to decline to deal with their application. It gave a variety of reasons. They included, one, that the agency did not get involved in intra-familial adoption decisions especially when they had become the subject of proceedings in the Supreme Court (unless there was a court order requiring the agency to provide a report); and, two, there were other competent authorities that could provide a report for visa purposes. 2. The history of the agency's decisions is set out at paragraphs [11]-[12] of the Tribunal's reasons. The first decision was made 7 September 2016, followed by an internal review decision 14 October 2016. 3. Ms Mary Maher, a senior child protection officer in the agency, made the internal review decision, and her reasons contained at their foot a notice advising the appellants that they could apply to the Tribunal for review of the decision. They lodged their application with the Tribunal on 19 September 2016. 4. The agency's legal representatives questioned whether the decision was reviewable by the Tribunal. The Tribunal upheld the agency's objection in its decision delivered 14 December 2016. 5. In their notice of appeal (20 December 2016), the appellants provided an update as to the status of their applications. The Commonwealth had refused to grant an adoption visa. They have appealed to the Commonwealth Administrative Appeals Tribunal for review of that decision, and the matter has yet to be listed as at 20 December 2016. They also explained that the matter is urgent, as their niece's eligibility for an adoption visa will close when she is no longer a child. They stated that their niece will turn 18 on 5 September 2017. As we understand the position, once their niece attains adulthood, the possibility of an adoption visa will not be available, with its conferral of a right of permanent residence. Grounds of Appeal 1. The appellants rely on their submissions accompanying the notice of appeal, and their submissions at first instance (25 October 2016). The agency relies on the submissions made in its Reply to the notice of appeal, and on the submissions made at first instance and endorsed by the Tribunal (21 October 2016). 2. The appellants' notice of appeal contains 11 grounds of appeal. The appellants answered 'no' in the notice of appeal to the standard question which asks whether the appellant seeks leave to appeal on other grounds. We have therefore examined the grounds of appeal on the basis that they seek to raise questions of law. 3. The grounds start with objections of various kinds to the fact that the Tribunal entertained an objection to jurisdiction. The Tribunal is bound to satisfy itself as to its jurisdiction in a matter. The Tribunal's competence to hear and determine an application, and to make orders binding on parties, is founded on jurisdiction. 4. The grounds then refer to the Tribunal's decision in another case, BWO and BWP v Barnardos Australia [2015] NSWCATAD 216, where the Tribunal ruled in a like matter that it did have jurisdiction. The Tribunal referred to that decision in its reasons, but chose not to follow it. The appellants submit that the Tribunal was wrong in that regard. 5. Finally the grounds criticise on various bases the merits of the agency's decision to decline to make a suitability assessment. 6. The appellants seek orders from the Appeal Panel setting aside the decision of the agency, and further orders that will enable them to obtain a positive suitability assessment, either from the agency or the Tribunal. 7. The agency's basic submission is that the provisions of Chapter 10 of the Adoption Act make it clear that there are two categories of reviewable administrative decision provided for by the adoption legislation: decisions that are only internally reviewable within the agency and cannot be referred to the Tribunal, and decisions that are both internally reviewable and externally reviewable by the Tribunal. 8. We will now set out s 189 and s 193 of the Adoption Act and cl 125 of the Adoption Regulation: Section 189 189 Reviewable decisions In this Chapter: "interested person" means a person entitled under this Chapter to apply to the relevant decision maker or Tribunal for a review of a decision. "relevant decision maker" means: (a) the Secretary, or (b) in the case of a decision made under or for the purposes of this Act by another person-that person. "reviewable decision" means: (a) a decision of the relevant decision maker that may be the subject of an application to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 for the purposes of section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 , or Note : Section 193 sets out the decisions of the Secretary and other relevant decision makers under this Act that are administratively reviewable by the Civil and Administrative Tribunal for the purposes of section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 . (b) any decision made under or for the purposes of this Act by the relevant decision maker that is a decision within a class of decisions prescribed by the regulations for the purposes of this definition. [A Note does not form part of the statute for interpretation purposes: as explained by the Tribunal below in its reasons.] Section 193 193 Decisions that are administratively reviewable by Civil and Administrative Tribunal (cf AC Act ss 14, 67A, AI Act s 36) (1) Each of the following decisions when made by the relevant decision maker is an administratively reviewable decision for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993: (a)–(d) (Repealed) (e) a failure or refusal to supply any adoption information to a person, or to authorise the Registrar or another information source to do so under Chapter 8, (f) a failure or refusal to enter the name of any person in a register under Chapter 8, (g) a failure or refusal to arrange a reunion or to take any action to locate a person under Part 5 of Chapter 8, (h) a failure or refusal to approach a person who has lodged a contact veto in accordance with a request made under section 161, (i) a decision made under or for the purposes of this Act by the relevant decision maker that is a decision within a class of decisions prescribed by the regulations for the purposes of this section. (2) Despite section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993, an application cannot be made to the Tribunal under that section until the decision concerned has been reviewed under section 192 (Internal review) of this Act. Clause 125: 125 Reviewable decisions (1) The following classes of decision of the Secretary or a principal officer are prescribed for the purposes of paragraph (b) of the definition of reviewable decision in section 189 of the Act: (a) a decision to decline to assess an applicant as suitable to adopt a child or a particular child, (b) a decision to decline to approve the applicant as suitable to adopt a child or a particular child, (c) a decision to revoke the approval of the applicant as suitable to adopt a child or a particular child, (d) a decision to approve the applicant as suitable to adopt a child or a particular child subject to conditions. 1. The agency repeats its submission below that Ms Maher was engaged in making a decision under cl 46 of the Adoption Regulation, and such a decision is only internally reviewable, being a decision of the kind that falls within category (b) of the definition of reviewable decision in s 189 of the Adoption Act and not within category (a) of the definition. Its submission is that s 193 describes the decisions that fall within category (a), and are therefore reviewable by the Tribunal, while cl 125 of the Adoption Regulation describes the decisions that fall within category (b) and are therefore only internally reviewable in the agency. (We leave aside from this discussion the questions of what decisions might be judicially reviewable in the Supreme Court.) Tribunal Reasons 1. In its reasons, the Tribunal's first conclusion was that the decision made by Ms Maher did not fall under cl 46 of the Adoption Regulation. As to why it was not a decision made pursuant to cl 46, the Tribunal said: In my opinion, the decision of Ms Maher is not a decision she made, or purports to have made, under cl 46 of the Adoption Regulation. 34 While she could have worded her decision in terms other than "decline", Ms Maher did not say her decision was made pursuant to that clause. Nor, in my opinion, did she purport to have made the decision pursuant to that clause. As Ms Maher explained in her reasons for decision, her decision was based on there being no policy or statutory requirement for the respondent to prepare a s 91 report or an assessment under Part 3 of Chapter 4 of the Adoption Act. Her reasoning was based on the fact that the applicants' adoption application to the Supreme Court was made in their individual capacity as prospective adoptive parents: Adoption Act, s 87(1)(a). As Ms Maher pointed out, because the applicants are relatives of CSK's niece, the respondent's consent to their adoption application was not required: Adoption Act, s 87(2). Nor did the assessment of prospective adoptive parents provisions in Part 3 of Chapter 4 of the Adoption Act and Part 3 of the Adoption Regulation apply. 35 Furthermore, s 91 did not place an obligation on the respondent to prepare a report for the Court, unless the respondent considers it appropriate to provide such a report (s 91(3), or the Supreme Court requires the respondent to do so (s 91(4)). As at the time of hearing this application, the respondent has not considered it appropriate to prepare such a report and the Supreme Court has not ordered the respondent to prepare the report, it will be for the applicants to obtain such a report from an "authorised person," as defined in s 91(2A). Hence the obligation, if any, at the time the applicants made their request to the respondent for a s 91 report was on the applicants. 36 My finding that the decision of the respondent the subject of review was not a decision made pursuant to clause 46 of the Adoption Regulation is sufficient to dispose of this application. However, in the event I am wrong I have also considered whether a decision under clause 46 of the Adoption Regulation is a decision that is reviewable by the Tribunal. 1. As we understand the Tribunal's analysis it therefore concluded that it was a decision that had no statutory source. This is a harsh outcome, as it means, effectively that an affected person neither has a right to review within the agency let alone a right of external review. 2. In its Reply to the appellants' notice of appeal, the agency stated that it did not support this conclusion. The agency considered that the primary decision was one made under cl 46, and the review decision was one to which the appellants were entitled under cl 125, read in conjunction with Chapter 10 of the Adoption Act. The agency only questioned whether the decision made on review was externally reviewable by the Tribunal. 3. While the Tribunal's reasons did not rely wholly on this point alone, it is certainly not fatal to the question of the appropriate statutory characterisation of a function performed by an agency that it did not stipulate in its reasons the precise source of the authority it was exercising when dealing with an application and making a decision on it. It may be apparent from the words used in the decision, and the matters with which it deals, that it is a decision made under an identifiable head of power. 4. We will determine this appeal on the basis that the reasons to be examined on the question of jurisdiction are those given in the alternative by the Tribunal, i.e. the reasons at paragraphs [37]-[53]. Consideration 1. We will not set out here the detail of the Tribunal's account of the provisions of the Administrative Review Decisions Act 1997 and the legislation relevant to the community services portfolio of government which, in combination, invest the Tribunal with its administrative review jurisdiction as relevant to this case. 2. BWO and BWP is relied upon by the appellants in support of the Tribunal having jurisdiction. In that case, the applicants to the Tribunal for review were the current temporary carers of a young child (aged 12 months who had been in their care since 11 days old). They wished to adopt the child. As the first step in that process they applied for permanent care of the child to the agency responsible for the welfare of the child (Barnardos). The agency decided 'not to proceed further with your application for permanent care with a view to adoption for [the child]'. The agency gave as its primary reason for not proceeding further the carers' inability to satisfy the agency as to the adequacy of their financial position applying the criteria relevant to adoption. 3. The Tribunal in that case characterised the decision as 'a decision to decline to assess an applicant as suitable to adopt a child', i.e. a decision of the kind now provided for by cl 46 (in that case the source of power was the equivalent provision in the previous regulation).The Tribunal decided that such a decision was administratively reviewable by the Tribunal. It did not refer to the dichotomy made by the definition of reviewable decision in s 189, nor to the related provisions, s 193 or the then equivalent of cl 125. 4. The Tribunal proceeded to examine the merits of the agency's decision, and set it aside, and ordered the agency to resume its consideration of the review applicants' application on the basis that they satisfied the financial criteria for adoption. 5. The present Tribunal noted the omissions in the earlier Tribunal's analysis, declined to follow the decision and decided to consider the issue afresh in light of the submissions made by the respondent agency in this case. This was the proper course. 6. This is therefore not a case of a 'prior considered ruling' meeting the description used in BY v Director General, Attorney General's Department [2002] NSWADT 79 where the President of that Tribunal said: 22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level. ... 23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case. ... 1. The grounds of appeal questioning the Tribunal's decision not to regard itself as bound by the decision in BWO and BWP are rejected. 2. In our view the reasons given by the Tribunal below for concluding that the agency's decision was not externally reviewable were sound. 3. First of all there is a dichotomy in the definition of 'reviewable decision' (s 189). Secondly, s 193 dovetails in its language with category (a) of the dichotomy. Thirdly, cl 125 dovetails with category (b) of the definition. The result is that a review applicant to the Tribunal under the adoption legislation must establish that the decision under notice belongs to category (a) of the definition, as amplified by s 193. 4. That was clearly not the case here. Either the decision had no identifiable source of statutory power and was not therefore one that fell into either category (a) (the analysis preferred by the Tribunal) or (b); or it was a decision of the kind to which cl 46 refers (the agency's position), and was only internally reviewable, being a category (b) decision because of the terms of cl 125 (the reasoning we prefer). 5. The same standards of internal review apply to both category (a) and category (b) decisions. Section 192 applies its internal review requirements to both classes of decision by requiring the standards to be observed in respect of any 'reviewable decision'. 6. In contrast s 193 does not deal with 'reviewable decisions'. It concerns itself with 'decisions that are administratively reviewable by the Tribunal'. Accordingly, in our view the Tribunal alternative reasons at [37]-[53] were correct. The Tribunal was without jurisdiction to review the decision to decline to assess the applicants' suitability. 7. The appeal must therefore be dismissed. Further Comment 1. As we have noted, the delegate in the agency thought her decision was externally reviewable. An earlier Tribunal reached the same conclusion. 2. The Act is less than crystal clear. 3. Consideration should be given to the use of clearer terms to distinguish between those of the agency's administrative decisions that are amenable only to internal review and those which fall within the jurisdiction of the Tribunal. An ordinary reader would, understandably we think, tend to treat 'reviewable' and 'administratively reviewable' as interchangeable terms, and not pick up the significance of the distinction found within the definition of 'reviewable decisions'. An ordinary reader would not readily discern that the Act makes a deliberate division between those decisions that can only be appealed within the agency and those can be examined by an independent tribunal. Order Appeal dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 08 May 2017 - At [5] date of birth corrected to '5th' At [7] amend assessment date to 'April' At [14] amend 'adoption' to 'an adoption visa' DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2017