Bofilios and Secretary, Department of Social Services (Social services second review)

[2021] AATA 2104

Bofilios and Secretary, Department of Social Services (Social services second review) [2021] AATA 2104 (26 February 2021)

Division:GENERAL DIVISION

File Number(s):      2020/8039

Re:Michael Bofilios

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member A Durkin

Date:26 February 2021

Place:Adelaide

The application for a stay of an order made by the first tier of this Tribunal, under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), is refused.

.........................[Sgnd]...............................................

Member A Durkin

Catchwords

STAY APPLICATION – application filed for second tier review of order – whether stay of order should be granted – “payment pending review” – issue of potentially significant debt if AAT 2 decision affirms original decision – stay refused – non-publication or non-disclosure of certain information requested – request refused

Legislation

Administrative Appeals Tribunal Act 1975(Cth)

Secondary Material

Guides to Social Policy Law: Social Security Guide

REASONS FOR DECISION

Member A Durkin

1. The applicant has made an application for an order under s 41(2) of the Administrative Appeals Tribunal Act1975 (Cth) (the “Act”) seeking a stay of the operation of an order made by this Tribunal (“AAT 1”) on 16 November 2020 which affirmed a decision by an Authorised Review Officer (“ARO”), effective 5 March 2020, that the applicant was a member of a “couple”.

2. That order has consequences for the rate of Disability Support Pension (“DSP”) payable to the applicant.

3. The applicant has filed, on 11 December 2020, an application for a second-tier review (“AAT 2”) of the order made on 16 November 2020.

4. The Social Security Guide, at paragraph 6.8, prescribes that a person who has made an application for a second tier review can ask this Tribunal for a stay of the first tier in order to ensure payment of benefit continues at the former rate (“payment pending review”).

BACKGROUND

1. On 25 February 2020 Centrelink determined that Mr Bofilios was a member of a couple with one Ms Malykhina. 

2. Mr Bofilios has been and is in receipt of a DSP on account of his blindness.

3. In the first tier review, the decision of this Tribunal, made 16 November 2020, affirmed the decision of the ARO made 22 April 2020; which affirmed the decision made by Centrelink by varying the date on which it would take effect from 5 November 2019 to 5 March 2020.

4. In the decision of this Tribunal made 16 November 2020, Member Rieper, under the heading of “Consideration”, sets forth the evidence received during that first tier review relating to the financial aspects of the relationship between Mr Bofilios and Ms Malykhina and the nature of their household including the social and sexual aspects of their relationship. The Tribunal does not need to canvass those materials for the purpose of this stay application.

CONSIDERATION

1. The stay power is to be exercised for the broad purpose of “securing the effectiveness of the hearing and determination” of the application. In past decisions[1] of this Tribunal it has been held that s 41(2) of the Act invites consideration of issues such as:

   (a)whether the appeal would be rendered nugatory if a stay were not granted;

   (b)the prospects of success or otherwise of the substantive application;

   (c)any prejudice to a party if the stay is granted or not granted and the interests of persons affected by the review.
   
   

   [1]  Kurukkal and Minister of Immigration and Multicultural Indigenous Affairs (2004) AATA 146;

   Protection Association of Australia Inc and Minister for the Environment and Heritage (2006) AATA 29;

   World Audio Limited and Auscoast Broadcasting Pty Ltd and Australian Communications and Media Authority (2016) AATA   177

2. The respondent made submissions to this Tribunal in respect of the stay order sought and those submissions addressed the relevant factors in consideration of whether a stay order ought, or ought not, to be made.

1. As to whether the appeal would be rendered nugatory, the Tribunal accepts the submission of the respondent that the staying of the decision of AAT 1 would have no practical effect because the then prevailing decision would be that of the ARO, as affirmed by AAT 1.   In such circumstances this Tribunal accepts that a stay order would be futile if granted.

2. In consideration of whether to make an order staying the operation of AAT 1 the Tribunal does not seek to rehear and re-determine the subject application for itself.

3. In consideration of the application for a stay, however, the Tribunal does not apprehend that the applicant has a strong case for review.

4. At the telephone hearing on 22 January 2021, on the question of the prospects of success of this application, the applicant asserted that some documents (not otherwise identified) were incorrect.  The applicant acknowledged that the document before the Tribunal as “Attachment A Relationship details (SS284)” was correct in terms of its contents. The Tribunal was satisfied that the applicant, with the assistance of his mother, was able to put his case for a stay order adequately, and indeed capably, before the Tribunal.

5. The Department was represented at the telephone hearing by Mr Visser who strongly urged the Tribunal to consider that, should the application for AAT 2 review be unsuccessful, the applicant potentially would be left with a significant debt.  The Tribunal understood that there was a hearing to be conducted on 1 March 2021, but was advised that this was a preliminary conference and that there was no present indication as to when the substantive hearing would take place.  The Tribunal was advised that the period between conference and hearing is “usually a few months”. 

6. The applicant submitted that at AAT 1 Member Reiper took into account irrelevant material, though this material was not identified to the Tribunal.
   
   

7. On the question of financial hardship should an order not be stayed, the applicant acknowledged that he “won’t starve” though one-quarter of his income would be withdrawn should he begin to be paid his DSP at a “couples rate”.  He acknowledged that he had been in arrears of his mortgage in the past though he had since made those payments up.

8. The applicant explained to the Tribunal that if his AAT 2 review was unsuccessful then he would in consequence have a debt to the Department. He stated that he would have 40 years to pay this back.  Mr Visser, for the respondent, submitted that the respondent does not wish the applicant to accrue a debt because he would be then in an even worse financial position. The Tribunal considers this was a submission of substance.

9. The Tribunal accepts that should it not make a stay order, the applicant would not receive “payment pending review”.  This would be prejudicial to his present financial circumstances. But, if the stay is granted and his AAT 2 review application is unsuccessful, the consequential raising of a debt against him would perhaps be even more financially prejudicial to the applicant.

10. Section 41(2) of the Act requires that the Tribunal consider whether it is “desirable” to make the stay order “taking into account the interests of any persons who may be affected by the review”.

11. In all of the above circumstances the Tribunal is not persuaded that a stay order would be desirable.

12. Further, at the telephone hearing on 22 January 2021, Mr Bofilios requested that certain material contained in the papers before the Tribunal describing the circumstances of the present dispute ought to be made confidential.

13. Mr Visser for the respondent observed that the hearing of matters of this kind are generally conducted in public.  The applicant made the submission that other people are mentioned including his son, his father and Ms Malykhina, for instance.  Their Medicare numbers were to hand, he observed.  Their dates of birth were to hand, he observed.  That this information is before the Tribunal in this case, and in others, is part of a public record. It is highly unlikely that any nefarious use would be made of this information.  Nothing was submitted to the Tribunal to demonstrate that the present application and dispute were any different to any other applications that have come before this Tribunal.

1. Though in some respects the information that the applicant seeks to be made confidential is “public” in the sense that all hearings before the AAT are notionally public it is highly unlikely that a member of the public would seek to or could obtain access to the relevant materials.

2. Accordingly, the Tribunal does not exercise its powers under s 35(3) of the Act to make any order for non-publication or non-disclosure.
   
   

FORMAL DECISION

1. The application for a stay is refused.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Member A Durkin.

   ……………[Sgnd]……………………

  Administrative Assistant Legal

  Dated: 26 February 2021

Date of hearing: 22 January 2021

Advocate for the Applicant: Mr Michael Bofilios

Advocate for the Respondent: Mr Christian Visser