Balbir Singh v Secretary, Department of Social Services
[2024] FCA 1517
•20 December 2024
FEDERAL COURT OF AUSTRALIA
Balbir Singh v Secretary, Department of Social Services [2024] FCA 1517
Review of: Decision of Administrative Appeals Tribunal dated 27 February 2024 File number(s): VID 197 of 2024 Judgment of: O’CALLAGHAN J Date of judgment: 20 December 2024 Catchwords: ADMINISTRATIVE LAW – application for judicial review under section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – where application wholly devoid of merit – appeal dismissed with costs Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(c), 42B(1), 44(1)
Social Security Act 1991 (Cth) s 1061JIA
Social Security (Coronavirus Economic Response—2020 Measures No. 2) Determination 2020 (Cth)
Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 27 Date of hearing: 10 December 2024 Counsel for the Applicant: The applicant appeared by telephone Counsel for the Respondent: Mr B Dube of Sparke Helmore Lawyers Solicitors for the Respondent: Sparke Helmore Lawyers ORDERS
VID 197 of 2024 BETWEEN: JASBIR BALBIR SINGH
Applicant
AND: SECRETARY, DEPARTMENT OF SOCIAL SERVICES
Respondent
ORDER MADE BY:
O’CALLAGHAN J
DATE OF ORDER:
20 DECEMBER 2024
THE COURT ORDERS THAT:
1.The appeal be dismissed, with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J
Introduction
The applicant seeks to appeal a decision of the Administrative Appeals Tribunal (the Tribunal) in proceeding 2022/9279 made on 27 February 2024 by which it dismissed an application for review under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) because the application had no reasonable prospects of success.
The applicant now applies for judicial review of that decision under s 44(1) of the AAT Act.
The applicant says she was entitled to a “National Health Emergency Crisis Payment” (NHE Crisis Payment) in respect of a 14-day period in which she was in a period of self-isolation during the Coronavirus pandemic. The amount of that entitlement, and thus what is at stake, is no greater than $500.
The application required the respondent to instruct lawyers, who were then obliged to file and serve an appeal book that comprised over 600 pages and written submissions in response to a plethora of irrelevant material filed by the applicant. At the hearing, Mr B Dube of Sparke Helmore Lawyers appeared for the respondent. The applicant appeared, at her request, by telephone.
Given the Court’s obligation to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible, I will make my reasons for dismissing the application brief. The application is hopeless.
Background
On 29 October 2021, the applicant lodged a claim for a Disability Support Pension (DSP). This also included a claim for an NHE Crisis Payment.
On 18 February 2022, the applicant lodged a second claim for an NHE Crisis Payment under s 1061JIA of the Social Security Act 1991 (Cth). Although she included proof of negative COVID-19 tests dated 14 December and 25 December 2021, the respondent did not dispute that the applicant was in self-isolation as a result of advice from, or a requirement made by, the Commonwealth, a State or a Territory or a health professional. Accordingly, the applicant was taken to have been in a period of self-isolation from 14 December to 28 December 2021.
On 14 June 2022, a delegate of the respondent rejected the applicant’s claim for an NHE Crisis Payment on the basis that she did not make her claim within the required timeframe. Under paragraph 3.7.4.45 of the Social Security Guide (being the relevant Department of Social Services policy) an application for an NHE Crisis Payment is to be made within 14 days after the commencement of the quarantine or isolation period.
On 28 June 2022, an Authorised Review Officer (ARO) affirmed the delegate’s decision. The ARO found that the applicant did not apply for the NHE Crisis Payment within that 14-day period.
The applicant then applied to the Social Services and Child Support Division of the Tribunal (AAT1) and on 9 November 2022, it affirmed the ARO’s decision because she: (i) had not lodged her claim within 14 days of the commencement of her isolation period; and (ii) was not “in financial hardship” within the meaning of the Social Security (Coronavirus Economic Response—2020 Measures No. 2) Determination 2020 (Cth) (the Coronavirus Determination), so that even if she had lodged the claim within 14 days, she did not qualify for an NHE Crisis Payment in any event.
On 11 November 2022, the applicant applied to the General Division of the Tribunal (AAT2) for second review of the AAT1’s decision, and on 6 February 2023 the respondent sought an order under s 42B(1) of the AAT Act that the applicant’s application be dismissed on the basis that it had no reasonable prospects of success.
The AAT2 issued a direction under s 33(1)(c) of the AAT Act that the respondent lodge, by 23 January 2024, recordings of all telephone conversations between the applicant and Centrelink officers in the period 14 December 2021 to 14 June 2022, which it duly did.
On 27 February 2024, the AAT2 dismissed the second review application on the ground that it had no reasonable prospects of success. The AAT2 disagreed with the respondent’s submissions that the applicant was not entitled to an NHE Crisis Payment because her claim was not lodged within the 14-day timeframe, but found that the application could not succeed because she was not “in financial hardship” within the meaning of the Coronavirus Determination.
Reasons of the AAT2
The reasons of the AAT2 were relevantly as follows:
However, as set out above, the Coronavirus Determination requires that a claimant for NHECP must satisfy the Secretary (or the Tribunal, standing in the Secretary’s shoes) that the person is in financial hardship (cl. 6(a)).
In her DSP claim lodged on 18 February 2022, Miss Balbir Singh declared that she had a saving[s] bank account with a balance of $4,978 and her share of these funds was 100 per cent. She said she had no cash on hand. At the hearing, the Applicant said she had large debts, and the money is ‘owned’ by her parents. She said her parents were aged and did not have large financial reserves.
While the Tribunal may accept at face value the uncorroborated submissions from the Applicant that she has debts from her academic studies, it must also accept her declaration that at the time of her claim for NHECP she had almost $5,000 in a savings bank account that was wholly controlled by her. The possible source of these funds does not affect the fact that they were at the time financial assets within her complete control, as she declared.
It is notable that the Coronavirus Determination stipulates that a person must be in ‘financial hardship,’ not ‘severe financial hardship.’ The omission of the intensive adjective must be interpreted as lowering the bar for satisfaction that that requirement is met.
Section 19D of the Act is quoted above and states that a person is in ‘severe financial hardship’ for the purposes of qualifying for a crisis payment if their liquid assets value is less than the fortnightly rate of the social security pension or benefit payable to them. In this case, that is the DSP. Noting that the Coronavirus Determination stipulates ‘financial hardship,’ not ‘severe financial hardship,’ the Tribunal considers a reasonable interpretation of how to assess this in a particular case, which is in general conformity with the legislative intention of s 19D, is to double the amount of liquid assets available to a person, in respect of the rate of their relevant pension or benefit.
The Tribunal’s conclusion in this respect is bolstered by the fact that there was no other material proffered by the Applicant that might support or corroborate a conclusion that she was in financial hardship at the relevant time.
The Respondent submitted that at the time of the isolation period in December 2021 and the combined claim in February 2022, the Guide to Australian Government Payments listed the DSP rate for a single adult was $882.20 per fortnight. Given that the amount of savings available to the Applicant at this time was more than five times this fortnightly rate, the Tribunal finds, even applying the lower bar that the Coronavirus Determination envisages, that Miss Balbir Singh was not in ‘financial hardship’ at the time of the claim.
Therefore, in summary, the Tribunal makes the following findings. There was no claim for NHECP in October 2021 or subsequently until the Applicant’s combined claim for DSP and NHECP in February 2022. The crisis payment element of that claim cannot succeed because the Tribunal is satisfied that Miss Balbir Singh was not in financial hardship, which is a legislative requirement set out in the Coronavirus Determination, which is required to be met under s 1061JIA(2) of the Act.
The Tribunal is also satisfied that there is no reasonable prospect of success of the Applicant succeeding on Second Review. It is understandable, because of the many interactions with Centrelink that the Applicant had over the relevant period, that she may have genuinely thought she had lodged a NHECP claim before she did. I said in the hearing that the Member at First Review recorded in her reasons that she undertook a thorough exercise listening to recordings of the Applicant’s various conversations with Centrelink, which did not support her contention. I undertook a similar exercise at the urging of Miss Balbir Singh. The evidence from these recordings does not support her belief.
I am also satisfied, as a matter of fact, on the assets reported by Miss Balbir Singh, that she was not eligible for NHECP under the Coronavirus Determination when she made her claim because she was not in financial hardship. Therefore, there is no utility in the matter proceeding to a Second Review because there is no favourable relief that is available to the Applicant as someone not eligible for a payment.
DECISION
The application is dismissed under s 42B(1) of the AAT Act because the Tribunal is satisfied it has no reasonable prospect of success.
The appeal
The applicant then filed a notice of appeal in this Court.
She also filed a “statement of claim” dated 28 February 2024, and a further “statement of claim” (effectively her written submissions) dated 23 May 2024. In those submissions, the applicant advanced a number of lengthy grounds of appeal. The respondent, quite fairly, summarised them as follows:
(1)The AAT2 incorrectly interpreted a statute relevant to the decision.
(2)The applicant was denied procedural fairness by not being afforded the opportunity to review the telephone call recordings.
(3)The applicant was denied procedural fairness in the sense that there was apprehended bias.
(4)The decision was affected by fraud.
The applicant made oral submissions at the hearing.
Taking each ground of appeal in turn.
Whether the AAT2 incorrectly interpreted a statute relevant to the decision
The applicant did not identify which part of any statute was incorrectly interpreted in the AAT2 decision. In the absence of that, she has not demonstrated relevant error.
Whether the applicant was denied procedural fairness by not being afforded the opportunity to review and respond to the call recordings
As I have explained, the AAT2 issued a direction for the respondent to lodge all call recordings between the applicant and Centrelink officers in the period 14 December 2021 to 14 June 2022.
To the extent that the recordings may be considered relevant, the applicant was evidently privy to the conversations and had already presented her argument to the AAT2 in that regard. As noted in the AAT2’s decision, the applicant made lengthy submissions that she had several conversations with officers of Services Australia/Centrelink about her NHE Crisis Payment claim.
But whether or not the applicant contacted Centrelink about an NHE Crisis Payment claim was not material to the AAT2’s decision. And as the respondent said in her submissions filed on 23 May 2024, she was “unsure how these recordings that Centrelink have provided are even relevant now”.
At the hearing, the applicant asserted that the call recordings were incomplete, but that was mere assertion.
Whether the applicant was denied procedural fairness in the sense that there was apprehended bias
At the hearing, the applicant submitted:
… section 13 [of the Social Security (Administration) Act 1999 (Cth)] should have been applied to me, even in this case, and thus I believe that procedural fairness has been denied to me by the Administrative Appeals Tribunal as well as natural justice because I’ve been treated with bias in the sense that I’m an injured citizen, and yet I’ve been oppressed with restrictive time limits of just 14 days, when, in fact, in contradiction, Services Australia took six months to even decide a COVID crisis payment for a citizen who’s on a disability support payment and, in fact, informed me that my DSP payment had already been paid to me, and it wouldn’t have ever been noticed if my typist didn’t actually pick it up.
That is not a ground of bias recognised by the law. Compare Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Whether there was an improper exercise of power, or abuse of process or fraud
The applicant submitted that this ground was made out because the AAT2 was wrong to say that she was not in financial hardship as required by the Coronavirus Determination. But the only financial evidence that she pointed to (at Appeal Book pages 195, 262 and 285) post-dated the 14-day period in which she was in isolation by several months or years. It thus could not show error in the reasons of AAT2 set out above. Those reasons are dispositive – the applicant was not entitled to an NHE Crisis Payment, whether she applied for it within 14 days of finishing her period of self-isolation or within some longer period, because the evidence demonstrated that she was not at the relevant time “in financial hardship”.
Disposition
The appeal must be dismissed with costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices O’Callaghan. Associate:
Dated: 20 December 2024
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