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

[2019] AATA 644

Chamma; Secretary, Department of Social Services and (Social services second review) [2019] AATA 644 (4 April 2019)

ReviewNumber:       2018/5672

Division:GENERAL DIVISION

File Number(s):      2018/5672-5676

Re:Secretary, Department of Social Services

APPLICANT

AndKhader Chamma

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:4 April 2019

Place:Sydney

Pursuant to subsections 41(2) & (6) of the Administrative Appeals Tribunal Act 1975 (Cth):

1.The operation of the decision of the Social Services & Child Support Division of the Tribunal dated 27 August 2018, is stayed until the decision of the Tribunal on the substantive proceedings comes into operation or until further order; and

2.Order 1 is subject to the condition that no debt recovery action be taken against the respondent until the finalisation of the substantive proceedings or until further order.

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

Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – application to stay decision – substantive proceedings concern debt to the Commonwealth – whether applicant was a member of a couple –factors relevant to the granting of a stay – prospects of success – prejudice to the parties – public interest – stay application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 41

Social Security Act 1991 (Cth) s 4

CASES

Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065

REASONS FOR DECISION

Senior Member A Poljak

4 April 2019

1. The Secretary seeks to review a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) made on 27 August 2018, which set aside a decision of the Department of Human Services (“Department”) and in substitution decided that Mr Chamma, the respondent, was not a member of a couple with Sara Al Hussein from 11 October 2011 to 25 January 2014 (“substantive proceedings”).

2. This interlocutory proceeding concerns an application for an order under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AATAct”) staying the operation of the decision until final determination of the substantive proceedings before this Tribunal.

3. The respondent opposes the granting of a stay order.

   POWER TO GRANT A STAY

4. Section 41(1) of the AAT Act provides that the making of an application to the Tribunal for a review of a decision does not affect the operation or implementation of the decision under review. In other words, the decision under review has full effect until and unless it is set aside or replaced.

5. The Tribunal may, after taking into account the interests of any persons who may be affected by the review, make orders staying the operation or implementation of the decision pursuant to section 41(2) of the AAT Act, as it considers appropriate for the ‘purpose of securing the effectiveness of the hearing and determination of the application for review.’

6. In Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065 at [6]-[7], the Tribunal summarised the well-established relevant factors and principles which may be considered when determining a stay application:

   [6] The decision whether to grant a Stay is entirely discretionary. It follows that an applicant does not have an automatic right to a Stay. Given the effect of s 41(1) of the AAT Act, it must necessarily be inferred that the reviewable decision, the decision of the SSAT in this case, is correct until proven otherwise. Further, the general principle applied by the courts that, prima facie, the successful party has the right to the fruits of a judgement should also apply in the case of Tribunal decisions. In the courts, an applicant for a Stay is required to show that there are special circumstances which would justify the stay of execution of the judgement. (emphasis added)

   [7] The matters which are considered by the courts to constitute special circumstances are similar to those enunciated by the Tribunal when dealing with Stay applications. Deputy President G.D. Walker in Re Secretary, Department of Workplace Relations and Nicholas [2006] AATA 497 at [21] and Senior Member B.J. McCabe in Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485 at [5] set out the following factors which may need to be considered in determining whether a Stay should be granted.

   (a) The prospects of success or the merits of the applicant’s case on review.

   (b) Whether there will be prejudice to the parties or anyone else if a Stay were not granted.

   (c) Whether it is in the public interest to grant a Stay.

   (d) That the review application, if successful, would be rendered nugatory or pointless if the Stay was not granted.

   PROSPECTS OF SUCCESS

7. The Secretary contends that there are strong prospects of success of finding that the respondent and Mrs Al Hussein were a member of a couple during the period 11 October 2011 to 25 January 2014.

8. The respondent disagrees and states that he has further evidence in support of his case. He also advises that at the hearing of the substantive proceedings he would be calling numerous witnesses who will attest that he was not a member of a couple with Mrs Al Hussein during the relevant period. 

9. Although it is neither necessary nor appropriate for me to determine the substantive matter in this interlocutory proceeding, it is relevant for me to form a view as to the prospects of the Secretary’s application for review.

10. Section 4(3) of the Social Security Act 1991 (Cth) states that in forming an opinion about the relationship between two people, the Secretary is to have regard to the circumstances of the relationship, including, amongst other things, the following relevant matters:

    (a)the financial aspects of the relationship;

    (b)the nature of the household;

    (c)the social aspects of the relationship;

    (d)any sexual relationship between the parties; and

    (e)the nature of the commitment to each other.

11. While I note that the respondent intends to provide further evidence at the hearing of the substantive proceedings, the current evidence which is available does go to a number of the relevant matters listed above. Specifically, records from the Department of Immigration and Border Protection show that both the respondent and Mrs Al Hussein travelled overseas in late 2011 and early 2012; Departmental records indicate that the respondent and Mrs Al Hussein lived together during the relevant period; Mrs Al Hussein gave birth to her third son with the respondent in March 2014; and statutory declarations of the respondent and Mrs Al Hussein filed with the Department of Immigration and Citizenship in January 2014 for a subclass 309 permanent spouse visa, in which they declare that they ‘are in a loving and caring relationship’ and have been together since 2007.

12. Without making any specific findings, on the available evidence I am satisfied that the Secretary has reasonable prospects of success in the substantive proceedings.

    PREJUDICE TO THE PARTIES AND THE PUBLIC INTEREST

13. The Secretary contends that it will be prejudiced in the event that the stay is not granted by the Tribunal because if the decision of the SSCSD were to be implemented, any amount of carer payment, parenting payment and family tax benefit paid to the respondent would be debts due to the Commonwealth should the substantive application prove to be successful. The Secretary submits that costs to be incurred are of an administrative nature. Additionally, the Secretary contends that it is in the public interest to avoid overpayments of public monies in circumstances where there are questions regarding the respondent’s qualification for payment.

14. The implementation of the SSCSD’s decision does not affect the respondent’s current payments; it only relates to payments that have already been paid during the period 11 October 2011 to 25 January 2014. In this instance prejudice to the Secretary is in regards to administrative matters. At hearing, the Secretary advised they would concede to a condition of the stay order that no debt recovery action is taken against the respondent until the finalisation of the substantive proceedings. The granting of the stay order with this condition is of no detriment to the respondent.

    DECISION

15. For the reasons detailed above, the application for a stay is granted with a condition that no debt recovery action be taken against respondent until the finalisation of the substantive proceedings or until further order.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated:  4 April 2019

Date(s) of hearing:	2 April 2019
Solicitors for the Applicant:	E Ulrick, Department of Human Services
Respondent:	In person