Auer; Secretary, Department of Family and Community Services

[2004] AATA 375

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 375

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/164

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And WILLIBALD AUER

Respondent

INTERLOCUTORY DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date8 April 2004

PlaceHobart

Decision The Tribunal grants the Secretary's application for the stay.

[Sgd Mary Imlach]

Senior Member

CATCHWORDS

Social Security – disability support pension – stay of SSAT decision.

Administrative Appeals Tribunal Act 1975 - ss13(1) and (3), 41(2)

Social Security International Agreements Act 1999 – Schedule 10

Re Commonwealth of Australia and Quirke (1986) 9 ALD 92

Re Repatriation Commission and Delkou (1986) 8 ALD 454

REASONS FOR INTERLOCUTORY DECISION

8 April 2004 Miss Mary Imlach (Senior Member)         

1. This is an application pursuant to s41(2) of the Administrative Appeals Tribunal Act 1975 by the Secretary, Department of Family and Community Services (“the applicant”) for a stay relating to an application lodged with the Tribunal for review of a decision of the Social Security Appeals Tribunal (SSAT) of 18 September 2003.   The decision of SSAT related to a decision of Centrelink in 2002 to cancel disability support pension of Willibald Auer (“the respondent”).   The respondent is resident overseas.

2.      Mr Brian Sparkes appeared for the applicant and Mr Greg Sando for the respondent.

Contentions

3.      The applicant cited a number of cases in its statement of case, including the leading discussion of the matter to be found in Re Repatriation Commission and Delkou (1985) 8 ALD 454. Mr Sparkes referred to the decision Commonwealth of Australia v Quirke (1986) 9 ALD 92, where the Tribunal considered three factors as appropriate and proper to take into account in determining whether there should be a stay of decision under review. These factors are:

a.The likely prospect of recovery by the Commonwealth of the compensation paid to the respondent pursuant to the determination in favour of the respondent in the event that the determination was not upheld on review.

b.The prospect of success of the Commonwealth’s application for review of the determination; and

c.The hardship that might result if the stay order were made.

4.      The applicant claimed that if the stay were not granted, payments in the order of several thousand dollars covering 18 months arrears, and on-going payments pending the determination of the application would be paid to the respondent with little prospect of recovery.    In the event that the application for review is successful then the result would be that the respondent would not be entitled to a disability support pension.    That being the case, the Commonwealth would not be able to recover from the respondent by way of withholding payments, the standard and normal way of recovering debts from social security recipients.

5.      The applicant referred to an overpayment due to the Commonwealth by Mr Auer of $808.38.

6. The applicant contended that the SSAT had made a manifest error of law in deciding that SSAT had not taken s13(2) of the Social Security International Agreements Act 1999 into account in its decision .

7.      Evidence to support the applicant’s contention that the respondent would not suffer hardship if a stay were granted was submitted.   The respondent is a homeowner receiving an Austrian pension of $38,948.00 per annum from 1 September 2002, the date on which he separated from his wife and at the time of the original decision was receiving $51,500.00 pa from Austria.

8. The respondent contended that s14(2) of the Social Security International Agreements Act 1999 and subsection (3) of Article 7 of the Austrian agreement seemed to be contrary.

9. Mr Sando contended that s6(1) of the Act overrides s13(2) in relation to the ceiling rate applicable to the pension paid to the respondent. It was submitted that the respondent had the means and income to repay the debt to the Commonwealth, should one arise.

Decision

10.     The test whether to make a stay order is whether it is desirable to do so in the circumstances of each case.   The Tribunal finds in this instance that the applicant has established the three principal factors enunciated in Re Repatriation Commission and Delkou.    These factors which are the conditions for granting a stay are –

a)    That a party to the review should not suffer any hardship by reason of the grant or refusal of a stay.

b)    The likelihood of recovery by the Commonwealth of moneys to be paid under the determination sought to be stayed; and

c)    The prospect of success of the application for review.

11.     Referring to the first factor, the records of Centrelink reveal that the respondent is the owner of his home and is the recipient of an Austrian old age pension of $38,948.00 per annum which is more than three times the rate of a similar pension paid to an Australian age pensioner.

12.     The applicant contended that as Mr Auer is overseas it is problematic that any moneys would be recovered from him, if its application for review were successful.   The respondent would not be entitled to any payment of disability support pension, and the applicant would be unable to recover its moneys in the normal way by withholding payments.    Evidence was submitted by the applicant that there was an outstanding debt owed to Centrelink by the respondent in the sum of $808.38.   The debt had existed for almost two years.   The applicant has raised the doubt that if the stay were not granted it is unlikely that moneys  paid to Mr Auer would be recovered.

13.     Finally, the applicant had to establish that there is some prospect that its application for review to the Tribunal would be successful.   The applicant claimed that SSAT had made a manifest error of law in deciding as it did and that the applicant as set out in paragraphs 2 to 7 of its statement of case, would be challenging the decision of the SSAT on the basis that it did not consider the application of subsection 2 of section 13 of the Social Security International Agreements Act 1999..

14.     The Tribunal grants the Secretary’s application  for the stay.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach (Senior Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  Matter decided on the papers.
Date of Decision  8 April 2004