ABDI HASSEN and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 628

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 628

ADMINISTRATIVE APPEALS TRIBUNAL                No.  2009/2595                     

GENERAL  ADMINISTRATIVE  DIVISION
Re		ABDI HASSEN

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

  Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:29 July 2009

Place:Melbourne

Decision: For reasons given orally at the hearing the Tribunal sets aside the decision under review and Mr Hassen is not subject to an eight week newstart allowance non-payment period.

(sgd) G.D. Friedman

Senior Member

TRANSCRIPT OF PROCEEDINGS

O/N 113200

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. 2009/2595

HASSEN

and

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

MELBOURNE

9.31 AM, WEDNESDAY, 29 JULY 2009

MR A. HASSEN appears in person

MR T. NOONAN appears for the respondent

EXTRACT OF PROCEEDINGS

MR FRIEDMAN:   Well, I have heard evidence from Mr Hassen and I have read the document ST3, which is, in some ways, contradictory;  it’s vague;  the person who made the notes there is not with the organisation any longer.  The activity agreement which was purported to – even on 18 March – was not signed.  Mr Hassen states that he didn’t receive any messages and didn’t ring back and he said that he didn’t tell that to the SSAT because – until he received the documents – the T documents from the respondent.  He really wasn’t aware of all of the background.  I’m inclined to prefer Mr Hassen’s version of that particular event and, in my view, he didn’t receive adequate notification of the appointment on 30 April, and therefore his non-attendance does not constitute a participation failure.  Mr Noonan, am I required to find that that constitutes a reasonable excuse?

MR NOONAN:    I will just have to check that, sir – section 624.

MR FRIEDMAN:   It would seem to me that there is, Mr Noonan, no dispute that Mr Hassen did not attend;  therefore, I – under section 624, I would need to be satisfied that he did have a reasonable excuse under the Social Security Reasonable Excuse Determination 2006, and given my conclusions that he didn’t receive notification, and that the matters contained in section 4 of the determination are not exhaustive, then unless you can persuade me that I am incorrect, then failure to notify him of the appointment would constitute a reasonable excuse.

MR NOONAN:   Yes, I would think, sir, without even going to the Reasonable Excuse Determination, I think you are entitled to find that, no notification, no failure.

MR FRIEDMAN:   All right.

MR NOONAN:   Probably won’t have to go to the reasonable excuse.

MR FRIEDMAN:   Yes, all right.  Well, that will be my ruling on that particular matter.  Accordingly, then, regardless of my findings on the second and third participating failures, he has not committed three within a 12-month period;  would that be correct, Mr Noonan?

MR NOONAN:   Yes, I think so, sir.

MR FRIEDMAN:   Yes.  In that case, I am satisfied there have not been three participating failures, so that section 629(1) of the Act does not apply.   That is the relevant section that deals with non-payment of Newstart Allowance for a period of eight weeks.  Accordingly, I am going to set aside the decision under review.  Mr Hassen, do you understand what I have just said?  I have found in your favour because I accept your evidence that you did not receive notification of the first alleged failure and I have found that the notes of Kangan Batman are contradictory and vague and I have also found the person is not available to – who made those notes – is not available to give evidence, and I have accepted your explanation.  So whether I find the second and third ones proved or not, doesn’t really matter because at most you have only had two out of three.

MR HASSEN:   Yes.

MR FRIEDMAN:   So I have set aside the decision and that means your eight week suspension of payments does not apply.  Now, you can talk to Mr Noonan about what that means in practice after I have left.

END OF EXTRACT