Andelman and Secretary, Department of Family, Community Services and Indigenous Affairs

[2007] AATA 1951

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1951

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2007/1613

GENERAL ADMINISTRATIVE DIVISION		)
Re		MIKHAIL ANDELMAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S E Frost, Member

Date of Decision                 1 November 2007

Date of Written Reasons  14 November 2007

Place  Sydney

Decision For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal is not allowing reinstatement of the application pursuant to section 42A(10) of the Administrative Appeals Tribunal Act 1975.

…........SGD....  ....................

S E Frost

Member

REASONS FOR DECISION

14 November 2007            S E  Frost, Member

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the Member’s reasons were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub-section 43(2A) of the Administrative Appeals Act 1975, requested the Tribunal to furnish to him a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the decision.

3.      The transcript is annexed and furnished to the Applicant and to the Respondent as it is the reason’s for the Tribunal’s decision.

I certify that the 3 preceding paragraphs are a true copy of the reasons for the decision herein of Member Frost

Signed:         ........ ..........SGD.............................
  Associate: Felicia Daniele

Date/s of Hearing  1 November 2007
Date of Decision  1 November 2007      
Applicant   Mikhail Andelman    
Representative for the Respondent        Centrelink Legal Services

DRAFT JUDGMENT  
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No 2007/1613
By MR S.E. FROST, Member
ANDELMAN and SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

SYDNEY, 1 NOVEMBER 2007

MR FROST: I am deciding not to allow reinstatement of the application and I will state briefly my reasons for that. For the application to be reinstated, it would have to be reinstated under section 42A(10) of the Administrative Appeals Tribunal Act, and in my view, it should not be reinstated under that provision.

That provision requires an examination by the tribunal of the question whether it appears to the tribunal that an application has been dismissed in error, and it seems to me that that is a very similar test to the question whether the tribunal is satisfied that the application has been dismissed in error, and that is a position that I should reach only if, in my view, I am satisfied on the balance of probabilities that that is the case.

There is some doubt as to whether Mr Andelman actually wanted the substantive application dismissed when he attended the registries counter in September, but I do take into account that he has had no trouble this morning expressing his view quite clearly, expressing his arguments quite clearly in English, not always with the assistance of the interpreter.  I am inclined to infer from that that when he was represented during the hearing before Senior Member Kelly earlier in the year – he was represented by a solicitor – I infer that he had no trouble giving proper instructions to his representative, and many of the matters that he has raised this morning, I am sure, will have been raised with his representative, and therefore, I’m inclined to think that the case that was presented on his behalf was presented competently and as strongly as it could possibly have been. 

I am therefore not satisfied that the application was dismissed in error, because I would have expected on the part of the registry officers that if there had been any misunderstanding of what Mr Andelman was trying to achieve on 10 September when he attended that officers would have been very careful to ensure that they were complying with his wishes and that the document that resulted on that day, that Mr Andelman signed, was a document that contained the information that he wanted it to contain.

The secretary’s representative this morning has indicated that, even if I were satisfied that the application had been dismissed in error, the discretion that is given to the tribunal to reinstate the application should be exercised only after some consideration of the merits of the case, and it seems clear enough from what the secretary’s representatives have indicated to me this morning about the impression of the senior member who was presiding about the prospects of success and the difficulties and problems with the evidence that had been presented at the hearing – I stress again that that was a hearing at which Mr Andelman was represented by a solicitor, presumably competent in running a case in this tribunal – as a result of those misgivings of the senior member, it is my view that the merits are more in the secretary’s favour than in Mr Andelman’s favour, and for that reason, even if it did appear to me that the application had been dismissed in error, that if I did take into account the merits, I would be almost bound not to allow reinstatement of the application.

I do understand that the matter has been stressful for Mr Andelman and I do recognise the difficulties that he’s experienced, including the difficulties he has experienced in running the matter with the tribunal, but in the circumstances, I’m not satisfied that the application was dismissed in error, and also not satisfied that the merits would warrant reinstatement in any event, my decision is that the matter will not be reinstated under section 42A(10) and as a result, that is the end of the matter, and on that basis, the tribunal is adjourned.