BYKP and Secretary, Department of Employment and Workplace Relations (Social services)

[2023] AATA 21

BYKP and Secretary, Department of Employment and Workplace Relations (Social services) [2023] AATA 21 (12 January 2023)

Division:                  GENERAL DIVISION

File Number:          2022/9653

Re:  BYKP

APPLICANT

AndSecretary, Department of Employment and Workplace Relations

RESPONDENT

Decision

Tribunal:Senior Member A. Nikolic, AM CSC

Date:12 January 2023

Date of written reasons:        17 January 2023

Place:Melbourne

The Tribunal is satisfied that the application is not reviewable and dismisses it pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

.........................[sgd]......................................

Senior Member A. Nikolic, AM CSC

Catchwords

PRACTICE AND PROCEDURE – Cancellation of JobSeeker payment – application for second review by General Division of Tribunal – where no Authorised Review Officer decision by Respondent or first review by Social Services and Child Support Division at time of application – where Authorised Review Officer of Respondent subsequently decided to affirm cancellation of payment – no jurisdiction for second review – application dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 35, 42

Social Security (Administration) Act 1999 (Cth), ss 142, 179

Cases

Negri v Secretary, Department of Social Services (2016) 246 FCR 1

REASONS FOR DECISION

Senior Member A. Nikolic, AM CSC

17 January 2023

INTRODUCTION

1. On 23 November 2022, the Applicant applied to the Tribunal for review of a decision to cancel his Jobseeker payment from 17 November 2022. The Respondent contends that the application should be dismissed because the Tribunal does not have jurisdiction to hear it.

2. On 12 January 2023 an interlocutory hearing was held by telephone to address the question of jurisdiction. The Applicant was self-represented. The Respondent was represented by Ms Aarabi Raveendiran, a legal officer from Services Australia.

3. The Tribunal decided in the circumstances of this case to make an order under section 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth). This was unopposed by the Respondent. The order restricts publication of the Applicant’s name, who is therefore referred to as ‘BYKP’.

4. At the conclusion of the hearing on 12 January 2023 the Tribunal made a decision and gave oral reasons. On 13 January 2023 BYKP requested a statement in writing of the reasons for decision. This now follows, consistent with the requirements of section 43(2B) of the Administrative Appeals Tribunal Act (‘AAT Act’). The Tribunal adopts the reasoning of Bromberg J in Negri,[1]  regarding the extent to which the Tribunal can elaborate upon ex tempore reasons in written reasons:

   ‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’

   [1] Negri v Secretary, Department of Social Services (2016) 246 FCR 1, [27].

   CONSIDERATION

5. When BYKP lodged his review application with the Tribunal on 23 November 2022, an Authorised Review Officer (ARO) of the Respondent had yet to complete an internal review into the cancellation of his JobSeeker Payment. It was not until 12 December 2022, approximately three weeks after the Applicant’s review application was lodged, that a Departmental ARO decided to affirm the JobSeeker cancellation. The Applicant was advised of his review rights in this letter, which enabled him to apply for a review by the Social Services and Child Support Division of this Tribunal; commonly referred to as ‘AAT Tier 1’. ARO and AAT Tier 1 reviews are essential preconditions for the Tribunal’s General Division to have the power to undertake an ‘AAT Second Tier Review’ of certain social security decisions.

6. The following was explained to the Applicant on 12 January 2023:

   (a)The Tribunal is not a court and can only undertake merits review of applications where a Commonwealth law gives it the power to do so. The relevant law in this matter is the Social Security (Administration) Act 1999 (Cth) (‘the Act’). The Applicant insisted on several occasions that the Tribunal did have jurisdiction to undertake the review he requested but did not refer to any legislative provision in support of this view.

   (b)Section 142 of the Act details the types of decisions AAT Tier 1 can review, which includes cancellation of a JobSeeker payment. The Applicant has been eligible to apply for an AAT1 Review since 12 December 2022.

   (c)Section 179 of the Act provides that a person can apply for an AAT Second Tier Review of an AAT Tier 1 decision. The Tribunal’s jurisdiction does not arise, however, in circumstances where an AAT Tier 1 Review has not been undertaken.

   (d)The Applicant was informed several times that his review rights can be pursued by lodging an AAT Tier 1 application, and the required form was emailed to him.

   CONCLUSION

7. In the absence of an AAT Tier 1 Review decision, the Tribunal has no jurisdiction to undertake the AAT Second Tier Review requested by the Applicant.

   DECISION

8. The Tribunal is satisfied that application 2022/9653 is not reviewable and dismisses it pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 8 (eight) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic, AM CSC

..................[sgd]......................................................

Associate

Dated: 17 January 2023

Date of interlocutory hearing:	12 January 2023
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Ms Aarabi Raveendiran
Solicitors for the Respondent:	Services Australia