Young v Secretary, Department of Family and Community Services

[2004] FCAFC 143

FEDERAL COURT OF AUSTRALIA

Young v Secretary, Department Of Family & Community Services
[2004] FCAFC 143

SOCIAL WELFARE – appeal from a decision of single judge of Federal Court – no error of law – appeal dismissed

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Social Security Act 1991 (Cth) s 1224

PAUL CHARLES YOUNG v SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

V 906 OF 2003

MARSHALL, FINKELSTEIN AND JACOBSON JJ
26 MAY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 906 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:	PAUL CHARLES YOUNG APPELLANT
AND:	SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES RESPONDENT
JUDGES:	MARSHALL, FINKELSTEIN AND JACOBSON JJ
DATE OF ORDER:	25 MAY 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 906 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:	PAUL CHARLES YOUNG APPELLANT
AND:	SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES RESPONDENT
JUDGES:	MARSHALL, FINKELSTEIN AND JACOBSON JJ
DATE:	26 MAY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1. This is an appeal from a judgment of Gray J (“the primary judge”) given on 5 September 2003 dismissing an appeal from the Administrative Appeals Tribunal (“the AAT”) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

2. On 25 May 2004 the Court ordered that the appeal be dismissed with costs. What follows are our reasons for making those orders.

3. The AAT had decided that the amount of rent assistance paid by Centrelink to the appellant in respect of a property at Dunolly was payable to the Commonwealth under s 1224 of the Social Security Act 1991 (Cth) (“the Act”) as a debt due, because the appellant had made false statements or false representations to obtain the rent assistance.

4. The principle ground of appeal was that the AAT’s decision was unreasonable in the Wednesbury sense and that the primary judge should have so found.

5. The appellant also contended that certain of the AAT’s findings of fact were wrong and should not have been made. He submitted that this was an error of law, which should have been recognised by the primary judge.

6. Rent assistance is payable to a person to help cover the costs of rent if:

   “(a)     the person is not an ineligible homeowner; and

   …

   (b)the person pays, or is liable to pay, rent (other than Government rent) in respect of the period; and

   (c)the rent is payable at a rate of more than the rent threshold rate.”

7. There is a definition of “homeowner” in s 11(4) of the Act as follows:

   “(a)     a person who is not a member of a couple is a homeowner if:

   (i)the person has a right or interest in the person’s principal home; and

   (ii)the person’s right or interest in the home gives the person reasonable security of tenure in the home.”

   Under s 11(8), if a person has a legal interest in a property, he is to be taken to have a right or interest that gives him “reasonable security of tenure” unless the Secretary, or the Tribunal standing in the shoes of the Secretary, is satisfied that the “right or interest” does not give him “reasonable security of tenure”.

8. If any one of the conditions referred to at [6] is not satisfied, rent assistance is not payable. If as a result of false statements or representations Centrelink provides rent assistance, in the mistaken belief that the three conditions have been satisfied, then the amount of assistance so provided is repayable as a debt due to the Commonwealth under s 1224(1) of the Act.

9. The AAT had before it both written and oral evidence dealing with whether the appellant paid or was liable to pay rent for the Dunolly property. The oral evidence was that of the appellant himself. The AAT also had evidence on the question whether the appellant was a “homeowner” within the meaning of s 11(4). Principally the evidence was that supplied by the appellant.

10. It was not in dispute that the appellant, under a pseudonym, was the registered proprietor of the Dunolly property. His case was twofold. First, he had no security of tenure because he held the property on trust. He gave evidence to the AAT of the creation of several successive trusts, both oral and written. Second, he contended that he actually paid rent. He also gave evidence about the manner in which he allegedly paid rent. Again, it was not in dispute that there were no regular payments of rent. Importantly, the principal basis for alleging that rent was paid was the appellant’s contention that payments made for or in respect of the property be treated as rent, however unusual that arrangement may be.

11. Relevantly the AAT made the following findings:

    ·The appellant never paid any rent for the Dunolly property;

    ·The appellant was not liable to pay rent for the property;

    ·The appellant resided on the Dunolly property, which was his property.

12. Upon these findings the AAT was not satisfied that the appellant’s right or interest in the property did not give him security of tenure.

13. Unless the appellant was able to satisfy the Court that there was a question of law and a consequent error of law arising out of these findings, the appeal must fail.

14. Here the appellant is in immediate difficulty. In the course of submissions the appellant conceded that the evidence before the AAT as to payment of rent was “inconclusive”. He also said that there was some evidence that rent was paid and agreed that this issue was one on which reasonable minds could differ.

15. The appellant’s description of the evidence accords with the description given to it by the AAT and with the relevant extracts that appear in the reasons for decision of the AAT. It necessarily follows that the AAT’s reasons cannot be described as so unreasonable that no reasonable Tribunal would arrive at them.

16. On the question whether rent was payable, as distinct from having been paid, it was open to the AAT, on the evidence before it, to reach the state of non-satisfaction which it did under s 11(8). It was entitled to do so substantially, which it did, on the evidence concerning the payment of rent and on the evidence before it about the creation of the alleged trusts.

17. As to the appellant’s complaint about the AAT’s alleged wrong findings of fact, the position is clear. A mere factual error cannot constitute an error of law.

18. During the course of his reply, the appellant raised a question concerning alleged bias on the part of the AAT. For the reasons given by the primary judge at [41] to [47] of his reasons, with which we respectfully agree, there is no substance in this complaint.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Finkelstein and Jacobson.

Associate:

Dated:             26 May 2004

The appellant appeared in person.
Counsel for the Respondent:	Ms J Macdonnell
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 May 2004
Date of Judgment:	26 May 2004