Biletskyy and Secretary, Department of Social Services (Social services second review) - [2023] AATA 1062

Biletskyy and Secretary, Department of Social Services (Social services second review) [2023] AATA 1062 (4 April 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9729
Re:Mr Andriy Biletskyy
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:4 April 2023
Place:Melbourne

The Tribunal finds it has jurisdiction to review this matter.
..........................[sgd]..............................................
Ms A E Burke AO, Member
Catchwords
PRACTICE AND PROCEDURE – interlocutory application – jurisdiction – whether the General Division (AAT2) has jurisdiction to review a decision made by the Social Services and Child Support Division (AAT1) to dismiss an application for no reasonable prospects of success pursuant to paragraph 42(4) of the Administrative Appeals Tribunal Act 1975 (Cth)– decision reviewable.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Allan v Transurban City Link Ltd (1999) 95 FCR 553
Allan v Transurban City Link Ltd (2001) 208 CLR 167
Dudzinski and Department of Family and Community Services [1998] AATA 860
Fogg and Secretary, Department of Social Services [2019] AATA 1099
Secretary, Department of Social Security and Saracik (1993) 30 ALD 567
SRRRRR and SRTTTT and Commissioner of Taxation [2008] AATA 181
Secondary Materials
Guides to Social Policy Law: Social Security Guide (version 1.306, updated 3 April 2023)
REASONS FOR DECISION
Ms A E Burke AO, Member
4 April 2023

Mr Biletskyy is seeking a review of the decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) in November 2022 to dismiss his application pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) because it was satisfied that the decision was not reviewable by the Tribunal.
On 7 October 2019, Mr Biletskyy submitted an application to provide an assurance of support for his mother (Mrs Biletska), as part of her application for a class 143 Contributory Parent permanent visa.
On 13 January 2020, Mr Biletskyy lodged a $10,000 bank guarantee with the Commonwealth Bank.
On 30 January 2020, Services Australia (the Agency) issued Mr Biletskyy a notice advising him that his application for an assurance of support for Mrs Biletska had been accepted. The notice stated that:
Your responsibilities
Your responsibilities as an assurer will start when the visa applicant arrives in Australia or is granted the Assurance of Support affected visa.
You are responsible for providing support to the assure listed above, so there is no need for them to claim payments from us.
…
If you do not provide support
If you are unable or unwilling to provide support or it is unreasonable for the support to be accepted and certain recoverable income support payments are made to your assuree during the Assurance of Support period, you will accrue a debt. You will be liable to repay the full amount of that debt approximately every 12 months.
If a term deposition has been provided, in the first instance this will be used to recover any Assurance of Support debts you owe us
On 24 February 2020, Mrs Biletska was granted a class 143 Contributory Parent permanent visa subject to a 10-year period of the Assurance of Support.
On 2 August 2021 Mrs Biletska made a claim for special benefit (SB).
On 10 August 2021, the Agency requested that Mr Biletskyy complete a ‘MOD AR Assurance of Support’ form because Mrs Biletska had applied for an Assurance of Support scheme recoverable income support payment.
On 11 August 2021, the Agency issued a further notice to the Applicant in which it was confirmed that his application for an assurance of support for Mrs Biletska had been accepted and would commence from 24 February 2020 to 23 February 2030. The notice stated:
What you need to know
If you cannot provide adequate financial support during this period, you will need to pay us back the full amount of any recoverable payments we make to Iryna Biletska. We will recover this from the bank guarantee held by the Commonwealth Bank of Australia.
On 21 September 2021 the Agency granted Mrs Biletska’s claim for SB from 2 August 2021
On 22 September 2021, the Agency sent a letter to Mr Biletskyy advising him that Mrs Biletska would be paid SB from 2 August 2021. The notice stated:
We are writing to advise that your assuree Iryna Biletska will be paid Special Benefit from 2 August 2021 during the assurance of support period.
On 17 October 2021, Mr Biletskyy completed an ‘Assurance of Support Review for Assurer’ form stating that he was providing support to Mrs Biletska.
On 2 November 2021, the Agency issued a notice to Mr Biletskyy regarding a review of his assurance of support for Mrs Biletska. The Agency requested further information to decide whether Mrs Biletska still required SB.
On 7 November and 14 December 2021, Mr Biletskyy completed an ‘Assurance of Support Review for Assurer’ form stating that he was providing support to Mrs Biletska.
On 10 February 2022 Mrs Biletska ceased living with Mr Biletskyy.
On 3 June 2022, Mr Biletskyy completed an ‘Assurance of Support Review for Assurer’ form stating that he provided support to Mrs Biletska until 10 February 2022.
On 1 July 2022, Mr Biletskyy requested a review of the decision to grant SB to Mrs Biletska.
On 2 August 2022, the Agency wrote to Mr Biletskyy to advise:
Assurance of support debt accrual
We are writing to you about the Special Benefit that we started paying during the assurance of support period to your assuree Iryna Biletska from 2 August 2021. We are still providing payment.
This is because you have told us that you were unable to provide support for them. You will need to pay us back any Special Benefit made to Iryna Biletska during the assurance of support period of 24 February 2020 to 23 February 2030.
We will write to you every 3 months while these payments are being made to remind you of the accruing debt.
What you need to know
These amounts will be recovered every 12 months from the bank guarantee and term deposit provided.
If no funds remain in the bank guarantee and term deposit, you will have to contact us to set up alternative payment arrangements
On 5 August 2022, an Authorised Review Officer (ARO) affirmed the original decision to grant Mrs Biletska SB from 2 August 2021. The ARO decision states:
In our conversation, and in the evidence you provided to us, you outlined the support you provided to your mother. You told me you were always prepared to support your mother, and you provided anything they required if they asked for it. You told me you were not given the chance to respond to the granting of Special Benefit to your mother. You also told me that when you did provide evidence to us, it was not considered.
After considering the available evidence, I am satisfied the correct decision was made to grant Special Benefit to Mrs Biiletska. Although you outlined to me the support you were providing to your mother, I am not satisfied they were receiving an adequate level of support.
In November 2022, the AAT1 dismissed the application for review under subsection 42A(4) of the AAT Act. The AAT1 Member found:
What is the decision in this case and why is that important?
10. Section 25 of the Administrative Appeals Act 1975 (AAT Act), provides for which decisions can be reviewed by the Tribunal. It states that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment.
11. The review of decisions made by Services Australia – Centrelink, is provided for under section 142 of the Social Security (Administration) Act 1999 (Administration Act). It states:
Reviewable decisions
(1) Subject to section 144, application may be made to the AAT for review (AAT first review) of:
(a) a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer made under section 126 or 135; or
(b) a decision under this Act made personally by the Secretary or the Chief Executive Centrelink.
(4) For the purposes of subsection (1), the decision made by the Secretary, the Chief
Executive Centrelink or the authorised review officer is taken to be:
(a) if the Secretary, the Chief Executive Centrelink or the authorised review officer affirms a decision--that decision as affirmed; and
(b) if the Secretary, the Chief Executive Centrelink or the authorised review officer varies a decision--that decision as varied; and
(c) if the Secretary, the Chief Executive Centrelink or the authorised review officer sets a decision aside and substitutes a new decision--the new decision.
12. Section 126 of the Administration Act provides for the Secretary to review certain decisions; and section 135 of the Administration Act provides that if a person applies for the review of a reviewable decision, the Secretary, Chief Executive Centrelink, or an authorised review officer, must review the decision and either affirm, vary or set aside the decision and substitute a new decision. The Tribunal notes that section 144 of the Administration Act sets out the decisions that the Tribunal cannot review.
13. The effect of sections 126, 135 and 142 of the Administration Act is that before a decision can be reviewed by the Tribunal, it must be the subject of an internal review by the Secretary, or the Chief Executive Centrelink, or an authorised review officer – depending on what decision it is.
14. In this case, at the request of Mr Biletskyy, a Centrelink authorised review officer reviewed the decision to grant special benefit to Mrs Biletska and decided to affirm it.
15. While Mr Biletskyy may wish the Tribunal to review other matters, the Tribunal has no jurisdiction to look at matters beyond whether Mrs Biletska has been granted special benefit or not. This is because the decision that was made and reviewed by Centrelink was that Mrs Biletska was to be granted special benefit. The Tribunal has no authority, based on the evidence before it, to review any of the other matters that Mr Biletskyy is asking the Tribunal to review because it does not appear that any of those matters, even if they were reviewable, have been the subject of any internal review.
Is this decision otherwise reviewable by the Tribunal in this case (i.e. does Mr Biletskyy have standing)?
16. Subsection 42A(4) of the AAT Act, provides that the Tribunal can dismiss a decision should the Tribunal be “satisfied that the decision is not reviewable by the Tribunal”.
17. According to section 27 of the AAT Act, an application for a review of a decision may be made by or on behalf of a person “whose interests are affected by the decision”.
18. In this case, Mr Biletskyy is, in part, requesting the review of a decision regarding the entitlement of another person to a social security payment.
22…Mr Biletskyy is not directly affected by Mrs Biletska being granted special benefit. The Tribunal finds that Mr Biletskyy is indirectly affected by the decision to pay special benefit to Mrs Biletska and may become directly affected by the decision in the future, should a debt be raised against him.
23. The Tribunal concludes that should that occur, then there would be a decision that would affect Mr Biletskyy’s interests, and he would then have standing to request a review of that decision.
On 20 November 2022, the Applicant requested review by the General Division of the Tribunal (AAT2).
ISSUE
Whether the AAT on second review has jurisdiction to review the decision made in November 2022 at first review by the AAT1 to dismiss Mr Biletskyy’s application pursuant to paragraph 42A(4) of the AAT Act.
CONTENTIONS
Mr Biletskyy
Mr Biletskyy told the Tribunal that in September 2022 he sought review of the ARO's decision at the AAT1 and he was advised that his hearing was scheduled for 16 November 2022, which he was prepared for. However, Mr Biletskyy said that he was notified on 9 November 2022 that his application had been dismissed by Member H. Moreland on the grounds of "no relevance" and "no standing", relying on the decision of Dudzinski and Department of Family and Community Services [1998] AATA 860 (‘Dudzinski’).
Mr Biletskyy submitted that the AAT1 had dismissed his application in error.
Mr Biletskyy contended that the Member’s determination at AAT1 which stated his application "relate to matters that are either not relevant to the decision at hand, or to which he has no standing" was incorrect. Mr Biletskyy submitted that, given the AAT is defined as the channel to review Centrelink decisions, and the second step of the review process after an ARO, there is no genuine possibility that his complaint against the ARO's decision can be "not relevant to the decision at hand", and the question of standing is clearly not applicable.
Mr Biletskyy contended the AAT was the organization which has the duty to review the ARO’s decision and he submitted therefore that the dismissal by the AAT1 was a direct dereliction of this duty. Mr Biletskyy contended that this has deprived him and his family of legal protection.
Respondent
The Respondent submitted the AAT1 had found that it did not have jurisdiction to consider Mr Biletskyy’s submissions because the submissions were considered to be irrelevant to the decision to grant Mrs Biletska SB as the Applicant lacked standing.
The Respondent took the Tribunal to subsection 27(1) of the AAT Act which outlines circumstances in which a person may apply for review:
Persons who may apply to Tribunal
Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision
The Respondent submitted that the meaning of a person “whose interests are affected by a decision” in respect of subsection 27(1) of the AAT Act was discussed in the Full Federal Court decision of Allan v Transurban City Link Ltd (1999) 95 FCR 55 3and then by the High Court on appeal in Allan v Transurban City Link Ltd (2001) 208 CLR 167. The Full Federal Court decision provided the following summary in respect of standing at 565 [50]:
In summary, the question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant. There will be a question of degree involved in many cases.
On appeal to the High Court of Australia, the majority opinion discussed standing and relevantly noted at 174 [15]-[17] that:
The expression "affected by" and cognate terms appear in a range of laws of the Commonwealth. This is not the occasion for a disquisition on that topic. It is necessary to answer the questions posed above in respect of s119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as "standing". "Standing" is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies.
In Re McHattan and Collector of Customs (NSW), Brennan J stated that "[a]cross the pool of sundry interest, the ripples of affection may widely extend". However, as Davies J pointed out in Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd, Brennan J "did not propose that any ripple of affection would be sufficient to support an interest". A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. The present case involves such a statute. The starting point, as indicated by several authorities in the Full Court of the Federal Court, is the construction of the Authority Act with regard to its subject, scope and purpose.
Transurban correctly submitted that the phrase in s119(1) of the Authority Act "who is affected by a reviewable decision" has an ambulatory operation. What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself.
The Respondent submitted the decisions of the Full Federal Court and the High Court provides that when determining standing, the Tribunal should first give consideration to the relevant statute from which the review arises, and then determine whether there is a satisfactory link from the effect of the possible outcome of the decision under review to the person’s interest.
The Respondent submitted in this case Mr Biletskyy sought review with the Agency of the decision to grant SB to Mrs Biletska pursuant to subsection 129(1) of the Social Security (Administration) Act 1999 (the Administration Act). That provision provides that a person affected by a decision under the social security law can apply to the Secretary for a review of that decision.
The Respondent submitted the AAT1 concluded that Mr Biletskyy lacked standing because his interests were not affected. In making that finding the Tribunal relied on the decision in Dudzinski. In Dudzinski the Applicant’s rate for Newstart allowance was reduced and her husband sought to be joined as a party on the basis that the family income was reduced. Deputy President Forgie found that Mr Dudzinski’s interests were not sufficiently affected and commented that the social security payment was that of the person and not an entitlement of their spouse. The AAT1 found this to be an analogous case to the current matter and noted that while the decision about the granting of SB might result in Mr Biletskyy having a debt, until such a debt was raised, Mr Biletskyy’s interest were not sufficiently affected because the decision was about granting Mrs Biletskyy’s benefit, not Mr Biletskyy’s debt.
The Respondent submitted in Secretary, Department of Social Security and Saracik (1993) 30 ALD 567 (‘Saracik’) the Tribunal gave consideration to whether an assurance of support debt should be waived in circumstances where the person who gave the assurance of support was not notified that the assured was being granted a benefit. The Tribunal in Saracik concluded that this failure to notify meant that the Applicant had special circumstances for a debt waiver, because Mr Saracik was not afforded an opportunity to provide the assured support or inform the Agency that the SB should not be granted because they were already providing that support. Saracik therefore suggests that an assurer’s interests are directly affected by the decision to grant SB and that they do have some part in the decision for the granting of the payment.
The Respondent contended it was open for the AAT2 to find that Mr Biletskyy had standing to apply for review of the decision to grant Mrs Biletska SB. The Respondent submitted that:
(a)Mr Biletskyy’s interest in this case is that he is liable for any payment of social security to Mrs Biletska;
(b)he is affected by the grant decision because it will create a liability for him to repay any amount of social security paid to Mrs Biletska; and
(c)if he is unable to challenge the granting of the benefit, then he will be unable to challenge the basis of the debt, except in terms of the accuracy of its calculation and its recovery.
CONSIDERATION
Standing

The Tribunal concurs with the Respondent’s submission that only a person whose interests have been affected by a decision has standing to seek review of that decision pursuant to subsection 27(1) of the AAT Act. Subsection 31(1) of the AAT Act empowers the Tribunal to determine whether a person’s interests have been affected, thereby giving them standing.
The Tribunal finds Mr Biletskyy has standing in this matter as his interest are affected by the decision. The Tribunal relied upon the ARO’s determination which affirmed the decision to grant Mrs Biletska SB:
After considering the available evidence, I am satisfied the correct decision was made to grant Special Benefit to Ms Biletska. Although you outlined to me the support you were providing to your mother, I am not satisfied they were receiving an adequate level of support.
This means that Services Australia will keep a record of the amount of Special Benefit paid to Ms Biletska and will send you letters informing you of the accruing debt.
The Tribunal was also informed by the decision in the Commonwealth Ombudsman’s investigation of Mr Biletskyy’s complaint about Centrelink. The Ombudsman found:
As stated by the Centrelink Authorised Review Officer (ARO) on 1 August 2022, Centrelink starting paying your mother Special Beneﬁt because she lodged a claim for it.
The agency made this decision, and initiated the payments, after considering and weighing all available evidence.
Centrelink acted consistently with its procedures by advising you of the payment grant in August 2021 and provided you with an opportunity to submit evidence that you were ﬁnancially supporting your mother.
At approximately 3-monthly intervals, Centrelink conducted a review of your mother’s Special Beneﬁt payments, requested information from you to support the review, and assessed the evidence you provided.
In this context, review means Centrelink considered whether there has been any change in the Special Beneﬁt recipients’ circumstances, and whether they were still eligible for the payment and receiving the correct payment amount.
At each 3-monthly review, Centrelink considered the evidence on hand and formed the view that it was appropriate to continue paying your mother Special Beneﬁt.
I understand that you disagree with outcome of the ARO review. If this is the case, then, as stated in the decision letter, you have the right to apply for an external review of this decision by the Administrative Appeals Tribunal (AAT). This is the most appropriate pathway if you wish to pursue this matter further, as the AAT has the power to overturn Centrelink’s decisions. By comparison, our Oﬃce has powers of recommendation only. We generally decline to investigate a complaints where there is a more appropriate review pathway available.
The Tribunal notes that SB is a discretionary payment where Centrelink determines that an individual has no other means of support. The Social Security Guide (the Guide) provides an overview of SB at 1.2.6.10:
SpB [SB] is a discretionary income support payment that provides financial assistance to people who, due to reasons beyond their control, are in financial hardship and unable to earn a sufficient livelihood for themselves and their dependants.
To receive SpB, it must be established that the person is not eligible for any other pension or allowance. The circumstances under which it is granted and the amount paid are determined by a delegate of the Secretary of the Department.
The Tribunal finds that Mr Biletskyy has standing to apply for review of the decision to grant Mrs Biletska SB as the delegate’s determination was based in some part on the extent to which Mr Biletskyy was providing support to Mrs Biletska and he should not be denied the ability to press his claim at the AAT.
Jurisdiction
At all times it should be understood that the purpose of the Tribunal is to conduct an independent merits review. The Tribunal stands in the place of, and is empowered to exercise, all of the relevant powers and discretions of the original decision-maker in respect of the decision under review. The Tribunal hears the matter de novo, in light of the evidence before it, to make the correct or preferable decision. As stated by the Tribunal in Fogg and Secretary, Department of Social Services [2019] AATA 1099 at [22]:
The hearing before the Tribunal is a hearing de novo, that is, it is not a traditional Court appeal. The matter is heard afresh and the Tribunal is not bound by any decisions that have been made previously by the ARO or SSCSD in relation to the matter. To limit the scope of the Tribunal's review is inconsistent with a de novo review. Once an application has been made to the Tribunal, all of the issues relevant to the matter are "alive" for determination… Once it is before this Tribunal all relevant matters can be considered and determined differently…
The AAT Act clearly articulates at section 2A that the Tribunal’s objective is to provide a mechanism of review that is, among other things, accessible, economic, quick and proportionate to the importance and complexity of the matter. As Deputy President Walker emphasised in SRRRRR and SRTTTT and Commissioner of Taxation [2008] AATA 181 at [25], “the relevant question is what course of action will involve the most efficient disposition of the issues at the least cost in the future”.
The Tribunal finds the AAT1 dismissal decision of November 2022 is, in effect, a decision to affirm under subsection 43(1)(a) of the AAT Act. As a decision has been made, the AAT2 has jurisdiction to review the substantive matter. The Tribunal finds that this is the most efficient disposition of the issue at the least cost, to ensure the objectives of the AAT Act are upheld.
DECISION
The Tribunal finds it has jurisdiction to review this matter.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the written reasons for the decision herein of Ms A E Burke AO, Member

.....................[sgd]....................................
Associate
Dated: 4 April 2023

Date of hearing: 27 March 2023

Applicant: Self-Represented

Solicitors for the Respondent: Ms Vincci Chan
Services Australia

Date of hearing:	27 March 2023
Applicant:	Self-Represented
Solicitors for the Respondent:	Ms Vincci Chan Services Australia