Chen and Secretary, Department of Social Services (Social services second review)
[2023] AATA 344
•8 March 2023
Chen and Secretary, Department of Social Services (Social services second review) [2023] AATA 344 (8 March 2023)
Division:GENERAL DIVISION
File Number: 2022/3250
Re:Xueying Chen
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Decision
Tribunal:Dr L Bygrave, Member
Date:8 March 2023
Place:Sydney
The General Division of the Administrative Appeals Tribunal (the Tribunal) does not have jurisdiction to review the decision made in the Social Services and Child Support Division of the Tribunal on 19 April 2022 that was to dismiss the application of Ms Xueying Chen pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Dr L Bygrave, 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 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) – relevant material, legislation and cases considered – application dismissed – decision not reviewable – no jurisdiction.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Paid Parental Leave Act 2010 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Tribunals Amalgamation Act 2015 (Cth)Cases
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Duncan v Fayle [2004] FCA 723
Feasey and Riggs (Child support) [2022] AATA 4303
Kristoffersen and Secretary, Department of Social Services (Social services second review) [2018] AATA 524
Mulipola and National Disability Insurance Agency [2021] AATA 4442
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167
Secretary, Department of Social Security v Guiseppe Alvaro [1994] FCA 1124
Spencer v Commonwealth of Australia [2010] HCA 28
SPWX and Secretary, Department of Social Services (Social services second review) [2022] AATA 2486
Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling; Secretary, Department of Social Services and (Social services second review) [2018] AATA 3865Secondary Materials
D Pearce (2020) Administrative Appeals Tribunal (5th edition)
REASONS FOR DECISION
Dr L Bygrave, Member
8 March 2023
Introduction
This matter is about whether the General Division of the Administrative Appeals Tribunal (AAT second review) has jurisdiction to review the decision made on 19 April 2022 in the Social Services and Child Support Division of the Tribunal (AAT first review or AAT1) that was to dismiss the application of the Applicant, Ms Xueying Chen, pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
A chronology of events relating to Ms Chen’s application to the Tribunal is as follows:
·9 May 2016: Ms Chen was granted a skilled nominated (subclass 190) permanent visa.
·21 February 2021: Ms Chen travelled overseas.
·28 April 2021: Ms Chen was granted a resident return (subclass 155) permanent visa.
·28 April 2021: Ms Chen lodged a claim online for parental leave pay and family tax benefit with Services Australia.
·12 May 2021: Ms Chen gave birth to her child overseas.
·8 August 2021: Services Australia wrote to Ms Chen advising that:
oshe cannot be paid parental leave pay because she does ‘not meet the Australian residence requirements for this payment’;[1] and
[1] T documents, 50.
oshe cannot be paid family tax benefit because she has ‘gone overseas permanently’.[2]
[2] T documents, 52.
·23 August 2021: Ms Chen requested a formal review by Services Australia of the decisions to refuse her claims for paid parental leave and family tax benefit. In relation to her claim for paid parental leave, Ms Chen’s written request for a review set out her circumstances and identified particular sections in the Paid Parental Leave Act 2010 (Cth) (the PPL Act) and the Social Security Act 1991 (Cth) (the SS Act) regarding the Australian residence requirements.[3] In relation to her claim for family tax benefit, Ms Chen’s written request for a review set out her circumstances and identified particular sections in the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) and the SS Act regarding the Australian residence requirements.[4]
[3] T documents, 57-58.
[4] T documents, 55-56.
·11 November 2021: An Authorised Review Officer from Services Australia (ARO) affirmed the decisions made on 8 August 2021 to reject Ms Chen’s claims for parental leave pay and family tax benefit (the ARO decision). This decision stated that Ms Chen did not meet the Australian residency requirements for family tax benefit and parental leave pay because she has ‘been overseas for more than 6 weeks’.[5]
·4 February 2022: Ms Chen lodged an application for review of the ARO decision regarding her claim for parental leave pay with the AAT1 as she disagreed with the ARO decision that she did ‘not meet Australian residency requirements’ and that a person is ineligible for parental leave pay ‘if they are overseas for more than 6 weeks’.[6]
·19 April 2022: The AAT1 considered Ms Chen’s claims for payment of parental leave pay and family tax benefit that she made on 28 April 2021 and gave an oral decision. The final paragraph of the AAT1 written reasons, which was based on the oral decision, stated:
Careful review of [the legislation] confirm that neither benefit can be paid given the extended absence [of Ms Chen] from Australia. The tribunal carefully explored whether there were any discretions in the laws that would enable it to take into account the submissions before it. As no discretions exist, the tribunal dismisses the application as there are no reasonable prospects of success [with a footnote reference to ‘Section 42B(1b)’ [sic] of the AAT Act]. [7]
·20 April 2022: Ms Chen emailed the Tribunal requesting a review of the AAT1 decision.
·1 June 2022: The Respondent wrote to the General Division of the Tribunal to seek dismissal of Ms Chen’s application for review under paragraph 42B(1)(b) of the AAT Act on the basis that the application has no reasonable prospects of success.
·8 June 2022: The Respondent withdrew the request to dismiss Ms Chen’s application under section 42B of the AAT Act.
·4 August 2022: The Respondent wrote to the General Division of the Tribunal requesting an interlocutory hearing to consider the issue as to whether the Tribunal has jurisdiction to hear the substantive matter.
[5] T documents, 75.
[6] T documents, 79.
[7] T documents, 4. This is the oral decision; the AAT1 later provided written reasons also dated 19 April 2021, which included the quoted paragraph and footnote reference.
An interlocutory hearing was held by telephone on 27 October 2022; both the Applicant and the Respondent, the Secretary, Department of Social Services, had legal representation. Written submissions were lodged from the Respondent dated 1 August 2022 and the Applicant dated 21 October 2022. The Tribunal subsequently requested the parties to provide further written submissions and these were filed by the Applicant on 9 February 2023 and by the Respondent on 20 February 2023.
relevant legislation
Section 25 of the AAT Act sets out the Tribunal’s jurisdiction to review decisions: relevantly, subsection 25(1) states:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment…
This means the Tribunal only has jurisdiction to review decisions when this is provided by enabling legislation and does not have a ‘power to review decisions generally’.[8]
[8] Kerferd and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 675 (17 September 2012), [2].
At the interlocutory hearing, the Applicant’s legal representative confirmed Ms Chen solely seeks review of the decision to refuse her claim for paid parental leave and not her claim for family tax benefit. I have therefore only set out below the legislation that is relevant to the Tribunal’s jurisdiction to review a person’s claim for paid parental leave.
Section 237 of the PPL Act sets out the provisions for applications to the General Division of the Tribunal:[9]
[9] I note section 237 of the PPL Act is almost identical to section 179 of the Social Security (Administration) Act 1999 (Cth).
Applications for AAT second review
(1) An application may be made to the AAT for review (AAT second review) of a decision of the AAT under subsection 43(1) of the AAT Act on AAT first review in relation to a claimant decision.
(2) For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
(a) if the AAT affirmed a claimant decision – that decision as affirmed; and
(b) if the AAT varied a claimant decision – that decision as varied; and
(c) if the AAT set a claimant decision aside and substituted a new decision – the new decision; and
(d) if the AAT set a claimant decision aside and sent the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT – the directions or recommendations of the AAT. [emphasis in original]
These provisions in the PPL Act are consistent with subsection 43(1) of the AAT Act, which similarly states:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Subsection 3(3) of the AAT Act provides the following interpretation of ‘a decision’:
(3) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing.
Section 6 of the PPL Act states that a ‘“decision” has the same meaning as in the AAT Act’. [emphasis in original]
For completeness, I also set out below the procedural powers of the Tribunal contained in Part IV, Division 5 of the AAT Act that could have relevance to the question of whether the General Division has jurisdiction to hear Ms Chen’s application for review.
Section 42A of the AAT Act outlines circumstances for the ‘discontinuance, dismissal, reinstatement etc.’ of an application. I have considered these provisions and am satisfied that none of these circumstances apply or are relevant to the situation where the Social Services and Child Support Division of the Tribunal has dismissed an application under section 42B of the AAT Act.
Section 42B of the AAT Act – the provision applied by the AAT1 on 19 April 2021 – states:
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
(2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(3) The direction has effect despite any other provision of this Act or any other Act. [emphasis added]
Section 42D of the AAT Act allows the Tribunal to remit matters to the decision-maker for further consideration; subsection 42D(1) states:
(1) At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Consideration
At the interlocutory hearing, the legal representatives of the Applicant and the Respondent stated that:
·the question of jurisdiction that has arisen from the AAT1 deciding to dismiss an application under subsection 42B(1) of the AAT Act has not been considered previously and, consequently, there is no available case law to provide guidance; and
·the only reported decisions to dismiss an application in accordance with section 42B have been made by the General Division of the Tribunal.
The Applicant and the Respondent do not dispute – and I concur – that the decision made on the AAT first review dated 19 April 2021 was not made under section 43 of the AAT Act because the AAT1 decision did not affirm, vary or set aside the decision under review.
I have considered the submissions made by the legal representatives of the Respondent and the Applicant, and set out below my consideration and reasoning as to whether the General Division of the Tribunal has jurisdiction to review the decision of the AAT1 made on 19 April 2021.
1. Regard the AAT1 decision as though it was made under section 43 of the AAT Act
The Applicant and the Respondent proposed that the General Division of the Tribunal could decide to treat the decision made by the AAT1 on 19 April 2021 to dismiss Ms Chen’s application under section 42B(1) of the AAT Act as ‘essentially affirm[ing] the decision under review’ and submitted this approach could allow the General Division to accept jurisdiction and hear Ms Chen’s application for review.
Compelling and consonant arguments to support this pragmatic approach were made by the parties. These included an observation that the AAT1 decision had written reasons that identified the facts and relevant legislation, and had an effect similar to the AAT1 making a decision to affirm the decision under review. Indeed, I accept that the last sentence of the AAT1 decision could have been written as, ‘As no discretions exist, the Tribunal affirms the decisions under review’, rather than ‘As no discretions exist, the Tribunal dismisses the application as there are no reasonable prospects of success’ (with a footnote reference to paragraph 42B(1)(b) of the AAT Act).
The Applicant’s legal representative further highlighted that adopting this approach would be consistent with section 2A of the AAT Act that states the Tribunal, in carrying out its functions, must pursue the objective of providing a mechanism of review that is:
·accessible, fair, just, economical, informal and quick;
·proportionate to the importance and complexity of the matter; and
·promotes public trust and confidence in the decision‑making of the Tribunal.
I accept the AAT1 decision made on 19 April 2022 to dismiss the Applicant’s application under subsection 42B(1) of the AAT Act has similar characteristics to the AAT1 deciding to affirm the decision under review in accordance with section 43. However, for the following reasons, I cannot find that the AAT1 decision should be treated as though it was made under section 43 of the AAT Act either as a matter of form or of substance.
First, both section 237 of the PPL Act and subsection 43(1) of the AAT Act state that for a decision to be reviewed by the General Division of the Tribunal, a decision shall have been made to affirm, vary or set aside the decision under review. In particular, subsection 237(1) of the PPL Act only provides for an application to be made to the General Division of the Tribunal for review of a decision made by the AAT1 under subsection 43(1) of the AAT Act. I am satisfied there is no provision anywhere in the PPL Act or the AAT Act that allows the General Division to review a decision by the AAT1 to dismiss an application under section 42B of the AAT Act.
Although I am not bound by another Tribunal decision, I note that this finding is consistent with the decision in SPWX and Secretary, Department of Social Services (Social services second review) (SPWX), in which Member Burke determined the General Division’s jurisdiction to hear an application was not enlivened as the AAT1 had not made a decision to affirm, vary or set aside the decision under review.[10]
[10] [2022] AATA 2486, [16].
Second, an application dismissed summarily under section 42B of the AAT Act is a final decision as it effectively ‘disposes of the application’.[11] This is consistent with the case law; for example, his Honour French J (as he then was) in Duncan v Fayle found that the decision to dismiss the application under section 42B ‘was a decision by the Tribunal finally disposing of the proceeding’, which meant the decision was ‘amenable to appeal for error of law under s 44 of the [AAT] Act’.[12] (I discuss the implications of this below.)
[11] D Pearce (2020) Administrative Appeals Tribunal (5th edition), [15.26].
[12] [2004] FCA 723 (4 June 2004), [23].
In arriving at this conclusion, I have considered the accepted jurisprudence about the framework of administrative decision-making to be undertaken by the General Division of the Tribunal and the interpretation of a ‘reviewable decision’: an overview of this framework is set out in the decision of Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling; Secretary, Department of Social Services and (Social services second review) made by Deputy President McCabe and I in 2018.[13]
[13] [2018] AATA 3865, [21]-[27].
I have had particular and careful regard to the accepted and highly-regarded authorities of Re Brian Lawlor Automotive Pty Ltd and Collector of Customs[14] and (on appeal to the Full Court) Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (Lawlor).[15] In Lawlor, his Honour Bowen CJ interpreted the operation of section 25 of the AAT Act and determined a reviewable decision was one made in the ‘purported exercise of powers conferred’ by the applicable enactment.[16]
[14] (New South Wales) (1978) 1 ALD 167.
[15] [1979] FCA 21.
[16] [1979] FCA 21, [12], [16].
I have also considered the decision of the Full Federal Court in Secretary, Department of Social Security v Guiseppe Alvaro, which deliberated the effect of an ‘invalid’ decision on the process of administrative decision-making as follows:
In the hierarchy of reviews from original decision-maker to the AAT it was not necessary that there be at the outset an original decision that was in all respects validly made, and at each level of review thereafter another decision that was in all respects validly made. The person or tribunal to whom application for each of the reviews was made had jurisdiction to undertake that review so long as the preceding decision-maker had made what purported to be a decision in exercise of powers conferred by the Act affecting the interests of the person seeking review. It mattered not whether the ground of complaint made about the preceding decision was merely that it is wrong on the merits, or that in law it was not an effective decision because it was made by someone without authority, or in excess of authority, or for improper purposes, or was vitiated through procedural irregularity such as a failure to accord natural justice.[17] [emphasis added]
[17] [1994] FCA 1124, [16].
However, in my view, Ms Chen’s application for review to the General Division must be distinguished on the facts from this jurisprudence. This is because I cannot be satisfied there is a ‘reviewable decision’ in circumstances where the AAT1 has not made a decision pursuant to section 43 of the AAT Act (or section 237 of the PPL Act) and has dismissed Ms Chen’s application under section 42B, effectively and finally disposing of the matter.
2. Remit the decision under subsection 42D(1) of the AAT Act
Subsection 42D(1) of the AAT Act provides that the General Division of the Tribunal may, at any stage of a proceeding for review of a decision, remit the decision ‘to the person who made it’ for reconsideration of the decision by the person.
Reported decisions in the Tribunal that have been made prior to and post the amalgamation of the Tribunal in 2015 identify two circumstances where section 42D of the AAT Act has been utilised: first, where evidence has emerged in the course of a hearing that may affect the decision and it is desirable for the decision-maker to be given the opportunity to consider the material further; and second, where a significant issue is raised by an applicant during the course of a hearing and the respondent has not had a chance to consider it.[18] I consider that neither of these circumstances arise in this question about jurisdiction.
[18] D Pearce (2020) Administrative Appeals Tribunal (5th edition), [15.31].
At my request, representatives for the Applicant and the Respondent provided further written submissions about the possible applicability of subsection 42D of the AAT Act to this particular circumstance.
The Respondent’s submissions acknowledged that, while there is:
no “express” legislative bar to the AAT2 remitting a matter to the AAT1 to correct an obvious jurisdictional error or other irregularity in a proceeding…, [w]hether the AAT2 can remit the decision to the AAT1 under s 42D of the AAT Act is problematic with reference to s 3 [definition of ‘person who made the decision’] of the AAT Act.[19]
[19] Respondent’s Supplementary Submissions, 20 February 2023, [15]-[17], [20].
The Applicant’s submission referred extensively to and concurred with the recent Tribunal decision of Feasey and Riggs (Child support), which set out the limited case law and suggested ‘the person who made the decision’ would be ‘the original decision-maker’, that is, either the Secretary, the Chief Executive Centrelink or the ARO.[20]
[20] [2022] AATA 4303, [34], also [41]-[42].
I agree with these submissions of the parties and the decision in Feasey and Riggs (Child support). It is also my view that the language in the statute prevents the General Division of the Tribunal to remit a matter to the AAT1 pursuant to section 42D of the Act in circumstances where no decision has been made by the AAT1 to affirm, vary or set aside the decision under review in accordance with section 43 of the AAT Act. I again observe that this conclusion is consistent with the decision in SPWX.
I further note that the General Division making an order under section 42D of the AAT Act to remit the matter would seem to be manifestly inconsistent with the statutory framework of administrative decision-making by the Tribunal because the decision by the AAT1 to dismiss the application under section 42B has effectively and finally disposed of the matter.
conclusion
Based on my reasons set out above, I am not satisfied the General Division of the Tribunal has jurisdiction to hear Ms Chen’s application to review the AAT1 decision made on 19 April 2022.
The Tribunal dismissing an application under section 42B of the AAT Act is enacting a power that is final. This is deliberate as the summary dismissal of an application allows the Tribunal to deal with applications that are vexatious or lack substance or are an abuse of Tribunal process at any stage of a proceeding. However, the courts – including the High Court in Spencer v Commonwealth of Australia[21] – have consistently warned that the power to dismiss an application under section 42B of the AAT Act should be exercised with caution and the Tribunal should have a high degree of certainty about the ultimate outcome.[22]
[21] [2010] HCA 28 at [24], [60].
[22] A review of case law is in Kristoffersen and Secretary, Department of Social Services (Social services second review) [2018] AATA 524 (15 March 2018), [10] and Mulipola and National Disability Insurance Agency [2021] AATA 4442 (30 November 2021), [7]-[12].
I acknowledge that, on the basis of this decision, there are significant ramifications for applicants where the AAT1 utilises the power under section 42B of the AAT Act to dismiss an application. I outline these below.
1. Applicants cannot seek review in the General Division of the Tribunal
Where the AAT1 dismisses an application under section 42B of the AAT Act, an applicant is precluded from seeking review in the General Division of the Tribunal, effectively quashing their right to second review because the AAT1 has not made a decision pursuant to section 43 of the AAT Act.
This is clearly an inequitable outcome because an applicant who has had their matter dismissed under section 42B of the AAT Act cannot seek review to the General Division of the Tribunal while an applicant who has had their matter determined in accordance with section 43 can make an application for AAT second review.
2. Affording procedural fairness to an applicant
Subsection 39(1) of the AAT Act states that ‘the Tribunal shall ensure that every party to a proceeding…is given a reasonable opportunity to present his or her case’. Where this does not occur because an application has been dismissed by the AAT1 under section 42B of the AAT Act, there may be implications in terms of whether an applicant has been afforded procedural fairness.
In this matter, the Applicant’s legal representative observed that Ms Chen was not provided any notice by the AAT1 about the possible summary dismissal of her application. This raised concerns for Ms Chen as, in her view, she provided submissions about the facts of her situation and the provisions of the PPL Act that were not properly considered by the ARO or at the AAT1; in particular, that she remained overseas due to COVID-19 travel restrictions and waiting for visas for her child and husband, and had not departed Australia permanently.
I also note the circumstances of dismissing an application under section 42B of the AAT Act in the AAT1 contrasts with the General Division, where (typically) the process would involve:
(a)a respondent party making an application to the Tribunal for a matter to be dismissed and providing reasons in writing;
(b)an applicant being informed of this application in writing; and
(c)an interlocutory hearing being held to provide an applicant with the opportunity to respond to the respondent’s application.
3. Applicant’s appeal rights – judicial review
The AAT1 finally disposing of an application under section 42B of the AAT Act means the only option for an applicant to obtain relief is to seek judicial review.
The legal representatives for the Applicant and the Respondent submitted that it would be ‘manifestly inconsistent’ with both section 2A of the AAT Act and the statutory framework that provides a two-tier review system to require Ms Chen to seek judicial review rather than to have her application reviewed on the merits by the General Division of the Tribunal.
I agree. Clearly, an outcome that requires Ms Chen to seek judicial review in relation to her claim for paid parental leave is likely to be resource-intensive and inconsistent with the accepted jurisprudence about how the Tribunal is expected to approach administrative decision-making.
While I acknowledge these issues, unfortunately the statute provides no assistance. I observe that, given there is no prior case law, this anomalous situation may not have been contemplated in amendments made by the Tribunals Amalgamation Act 2015 (Cth) and may need to be considered in future legislative review.
Decision
The General Division of the Tribunal does not have jurisdiction to review the decision made in the Social Services and Child Support Division of the Tribunal on 19 April 2022 that was to dismiss the application of Ms Chen pursuant to paragraph 42B(1)(b) of the AAT Act.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
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Associate
Dated: 8 March 2023
Date(s) of hearing: 27 October 2022 Date final submissions received: 20 February 2023 Counsel for the Applicant: Ms R Graycar Solicitor for the Applicant: Ms N Ross, Welfare Rights Centre Solicitors for the Respondent: Mr M Gauci, Hunt & Hunt and Mr T Chang, Services Australia
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