Chen v Secretary, DEEWR
[2009] FMCA 576
•10 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHEN v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS & ANOR | [2009] FMCA 576 |
| ADMINISTRATIVE LAW – Appeal from AAT decision – application to Tribunal for review of Newstart Allowance decisions – de‑listing of application for want of jurisdiction – appealable decision made by Tribunal – ambit of Tribunal’s jurisdiction governed by previous application to SSAT – later Centrelink decisions superseded any decision reviewable by SSAT and AAT – application to Tribunal frivolous or vexatious – application to Court dismissed on ground of futility. |
| Administrative Appeals Tribunal Act 1975 (Cth), ss.3(3)(g), 42A(4), 42A(5)(b), 42B, 44, 44(1), 44(4) Administrative Decisions (Judicial Review) Act 1977 (Cth), s.11 Social Security Act 1991 (Cth), s.603A(1) Social Security (Administration) Act 1999 (Cth), ss.126, 126(4), 142, 142(1)(b), 179, 181 |
| Cooper v Comcare (2002) 118 FCR 157 Re Frazzetto & Australian & Overseas Telecommunications Corporation (1994) 19 AAR 174 Re Williams & Australian Electoral Commission (1995) 21 AAR 467 Secretary, Department of Health & Ageing v Marnotta Pty Ltd (2005) 41 AAR 444 Yao v Secretary, Department of Employment & Workplace Relations (2007) 93 ALD 577, [2007] FMCA 63 |
| Applicant: | YI CHEN |
| First Respondent: | SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 363 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 10 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 10 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms A Nanson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs as agreed or taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 363 of 2009
| YI CHEN |
Applicant
And
| SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mr Chen has a grievance in relation to the actions of Centrelink when requiring him to lodge fortnightly applications for Newstart Allowance over a period after payments of Newstart Allowance were cancelled or suspended on 23 November 2006. This has led him to appeal to the Social Security Appeals Tribunal, the Administrative Appeals Tribunal and the Federal Court. His application to that Court is now before me.
The decision to suspend Mr Chen’s payments in November 2006 is poorly, if at all, recorded in the documents from Centrelink which are in evidence. The decision‑maker subsequently affirmed the decision, and the letter dated 30 January 2007 which conveyed this to Mr Chen commenced with this description of the decision:
I am the person who made the decision of 23 November 2006 not to pay you Newstart Allowance.
Nowhere in the subsequent consideration in administrative tribunals is the legislative source of the decision ever identified, and it has not been identified in the parties’ submissions to me today. As will appear, I have decided that it is not necessary for me to call for further submissions in relation to this, nor to explore the complex provisions of the Social Security Act 1991 (Cth) empowering the refusal or suspension of Newstart Allowance payments and the imposition of suspension or reduction periods. I referred to some of these provisions in Yao v Secretary, Dept of Employment & Workplace Relations (2007) 93 ALD 577, [2007] FMCA 63.
The background to the decision was that Mr Chen had been receiving Newstart Allowance from early in 2006, albeit with some disputes with Centrelink. He had been required to participate in a workplace excellence course under an activity agreement signed by him. The course started on 13 November 2006 and was intended to last for five weeks. In the course of the second week, the persons supervising his participation formed a view that he had spent too long revising his curriculum vitae, rather than looking for suitable employment. This led to the 23 November 2006 decision, which was affirmed on 30 January 2007. It would seem that Mr Chen’s allowance remained suspended during that period, and subsequently.
The ARO’s decision
Mr Chen exercised rights of appeal to an authorised review officer (“ARO”) exercising the Secretary’s powers of review under s.126 of the Social Security (Administration) Act 1999 (Cth). The ARO made a decision favourable to Mr Chen, recording in a file note:
Customer has had a participation failure applied for failing to comply with activity agreement with JNM. This was because at the JNM they thought he was spending too much time on his resume. It appears that the JNM did not want to assist Mr Chen with his resume. From the standard of Mr Chen’s letter of appeal the JNM (work directions) should have been spending a great deal of time assisting him with his resume. It appears to me that the JNM might have been neglecting their duty to assist Mr Chen because the standard of written English demonstrated would indicate that they should not have expected him to complete his resume at home.
The ARO’s decision was notified to Mr Chen by letter dated 9 March 2007, in which the ARO told him:
I am an Authorised Review Officer, an independent senior officer authorised to review decisions made by Centrelink. I have reviewed the decision made on 23/11/06 to apply a participation failure for failing to comply with an activity agreement.
After carefully looking at your case I have decided that the decision should be set aside. This means your appeal was successful and the participation failure will be revoked.
I have asked the Hurstville Centrelink office to send you Newstart continuation forms to cover the period from when your payment was cancelled until now. You will be required to complete the forms and lodge them at Hurstville Centrelink.
You will have to include on the form at least 4 jobs you have applied for in each fortnight. Under social security law you are required to look for any suitable work.
To assist you in understanding what is considered suitable employment the Department of Employment and Workplace Relations has the following policy which Centrelink has to apply.
In order to satisfy the activity test, jobseekers must be actively seeking and willing to undertake any paid work that is not unsuitable. Job search activities will be the primary activity for most recipients of working age payments. To satisfy the activity test jobseekers must seek work in a variety of fields, not just those in which they have qualifications or experience.
I have attached information on what is unsuitable work.
I have given a copy of my decision to our Hurstville Customer Service Centre. I have asked that office to implement the decision. You should contact that office if you want to know more about your case.
Subsequent Centrelink decisions
Following receipt of that letter, Mr Chen telephoned and attended at the Hurstville office of Centrelink on a number of occasions. It is clear that a breakdown of communication occurred. In particular, Mr Chen did not understand, or disagreed with, the ARO’s apparent requirement that he should complete fortnightly applications for Newstart Allowance, known as SU19s, for the preceding period back to November. As well as disputing the types of work which he should be required to look for while getting Newstart Allowance, he disagreed that he could fill out forms retrospectively so as to include job applications over the past period.
The file shows that he did eventually submit SU19 fortnightly forms covering the period from November 2006 until 24 January 2007, and during March 2007 he received allowance payments for that period. However, he continued to dispute with Centrelink officers the implementation of the ARO decision for the subsequent period, in so far as Mr Chen understood it to have required him to complete those parts of SU19s, which in Question 3 required him to answer the question: “did you look for work in the period?”, and to give details of up to four employers whom he had contacted in each fortnight.
I note that the SU19s also had other questions that needed to be completed before eligibility for Newstart Allowance could be determined, such as whether he had worked in each of the relevant fortnightly periods, whether he was living with a partner, whether he was unfit for work or study, details of his addresses, and his participation in other activities. The SU19s also contain declarations in relation to compliance with other legislative requirements.
After many exchanges, a meeting at the Hurstville office is recorded on Centrelink documents as occurring on 20 April 2007. It is recorded:
Customer contacted HURSTVILLE on 20 APR 2007 regarding General Enquiry for Newstart Allowance. Information was obtained via Counter Statement using Personal – In Office. Document created by HHP on 20 APR 2007.
Customer attended centrelink to hand form for the period 11/01/07 until the 25/01/07. i advised customer that he has other outstanding forms to complete and i was going to print them out for him and he must have 4 jobs on each form. the customer started to argue and asked he had been asked to come here. I advised him that graham (aro) had told him that he was to attend centrelink, have forms printed out and put 4 job efforts on each form (see doc 18/04/07). The customer continued asking the same question. Peter Groves the aro here at hurstville come over and dealt with the above (he has spoken to the above many times on the phone explaining what was required). Peter advised the customer that firstly we needed bank statements for the last 4 months (from jan‑til present) to show us how he has been surviving or been supported while not in receipt of centrelink benefits. Peter explained to mr Chen that we needed the bank statements to verify that he has not been receiving any other source of income in that period he was not in receipt of benefits and also how he has been surviving. secondly Peter advised the customer that he will need to complete the outstanding su19’s but there was no need to put any job efforts. Peter also advised the customer that he has been informed several times by himself and by graham regarding the bank statements.
After much effort Peter advised the customer we needed the following. he advised him to come after 2 and to only see himself and harass no one else
1.bank statements for the last 4 months (jan‑til present)
2.statement on how he was surviving since jan or who was supporting him
3.the outstanding su19’s with no job efforts.
I again repeated the above to the customer, verbally and also wrote them down on a piece of paper.
After peter and myself had this discussion with the customer and peter returned to his desk, the customer advised me that he will not be wasting his time and will not return the above documents. the customer advised he will appeal again.
the customer was extremely difficult and would not listen to what myself or peter were advising him.
This appears to me clearly to record that an ARO on that occasion, being a different ARO than the ARO who had addressed the matter on 9 March 2007, decided and told Mr Chen that, although he had to submit all the fortnightly SU19s for the preceding period from January, with all questions answered, he would not be required to complete Question 3 in relation to his looking for work in each past fortnight, before the forms would be acceptable to Centrelink for payment of arrears of Newstart Allowance. It is a record which has been in Mr Chen’s possession as part of the ‘T documents’ before the AAT.
The precise location of the powers of an officer of Centrelink exercising the statutory powers of the Secretary to make these decisions are not clear to me, and this has not been clarified in the parties’ submissions to me. However, it is clear that under s.126 of the Social Security (Administration) Act 1999 (Cth) the Secretary has a general power to review decisions, and in the course of setting aside a decision can “if satisfied that it is reasonable to do so”, determine that an event which was required to have occurred is taken to have occurred even if it did not (see s.126(4)). In effect, this gives a dispensing power in relation to compliance with statutory requirements for past periods. If statutory power were required, it was this power which may have been exercised in Mr Chen’s case on 20 April 2007 in relation to the requirement of evidence of job searching over the retrospective period up until 20 April 2007, when Mr Chen had been in dispute or confused about Centrelink requirements as to SU19s.
This interpretation of the records of Centrelink was later presented by the Secretary’s representative to the Administrative Appeals Tribunal (“AAT”), in a submission given to it and Mr Chen on 4 January 2008. He said:
8)On 20 April 2007 Mr Chen was issued with continuation forms for the periods up until 18 April 2007. Mr Chen attempted to lodge the forms but was unable to provide the required 4 job applications for each form, or the required bank transactions. An ARO discussed the matter with Mr Chen agreeing to forego the recording of job applications, but details of his bank transactions and how he had been supporting himself were still required. Mr Chen declined to provide the requested information (T40/pp126‑7).
Unfortunately, Mr Chen appears not to have understood the outcome of the 20 April 2007 interview on that day, nor over the months and years which have followed. His submissions to me today show that he still does not understand what he was told on that day. Even when I tried to explain it to him in clear language, using an interpreter, he appeared not to understand the clear effect of the Centrelink records and the Secretary’s submission to the AAT.
The SSAT application
After the 20 April 2007 meeting, Mr Chen appealed to the SSAT, and refused to lodge any SU19s with Centrelink for either the past or, it would seem, the continuing period. His application to the Social Security Appeals Tribunal (“SSAT”) is not in the documents before me, but is referred to in a decision of the SSAT with a date of dispatch of 10 July 2007. According to the Tribunal, and there is nothing in the material before me to cause me to doubt its statements, the decision which was brought to the Tribunal under review pursuant to s.142 of the Social Security (Administration) Act was not the most recent decision communicated by the ARO at Hurstville on 20 April 2007, but the decision of the ARO which had been communicated to Mr Chen in the letter of 9 March 2007.
It was therefore only that decision, and not the later actions of Centrelink, which the SSAT acquired jurisdiction to review the merits of. This is clear in the terms of s.142 which gives a right of appeal only in relation to an identified decision which “has been reviewed by the Secretary, the CEO or an authorised review officer under section 126 or 135”. Putting aside the utility of Mr Chen’s appeal to the SSAT, his right to appeal did encompass the ARO’s March decision, notwithstanding that it had in its terms ‘set aside’ the suspension or termination of Newstart Allowance, and this is made clear in s.142(1)(b). The SSAT’s jurisdiction thus allows someone to challenge a favourable decision of an ARO, seeking to make its terms more favourable, if the legislation permits this.
The SSAT interviewed Mr Chen, and dispatched a decision on 10 July 2007. From its written reasons, it appears to me that the SSAT concluded that Mr Chen was requesting review of the statement of the ARO in his March letter, in bold, which appeared to Mr Chen to require him to lodge Newstart continuation forms showing work searching in each fortnight over the period prior to the ARO’s letter.
However, the SSAT for reasons which are obscure to me, took the opinion that the original decision reviewed by the ARO had been a decision “to impose a participation breach of 8 weeks for failure to comply with an activity agreement”. The Tribunal took the view that the ARO had been addressing only the statutory requirements to submit forms over an eight week period from November 2006 to January 2007, notwithstanding the unqualified terms of the original decision and the ARO’s letter. Its decision therefore does not appear to address the making of requirements on Mr Chen in relation to a period subsequent to January 2007.
The SSAT addressed the Secretary’s powers to dispense with the requirement to be satisfied that an applicant for Newstart Allowance was actively seeking work over each fortnight, but concluded that there was nothing in the material before it which suggested that the necessary conditions existed for dispensing with that requirement under s.603A(1) of the Social Security Act. That dispensing power required the Secretary to be satisfied that there were special circumstances beyond the person’s control, or which made it unreasonable to expect the person to comply with the activity test over a particular period. The Tribunal said that it therefore affirmed the ARO’s decision “that Mr Chen must now satisfy the activity test for the period in question in order to be paid newstart allowance”.
The Tribunal does not appear to have addressed, and it is unclear whether it was aware of, the events of 20 April 2007 in the interview at the Hurstville office. It did not refer to the fact that payments to Mr Chen for the eight week period from November had been made, and that compliance with any requirements for that period made in the 9 March 2007 ARO letter had become academic since Mr Chen had later lodged forms which had been accepted for that period. It did not recognise that Mr Chen had an unsatisfied grievance that he had been required to prove job searching in the period between January and April 2007, and did not consider whether this was within its jurisdiction when reviewing the ARO decision of 9 March 2007.
The AAT application
Mr Chen was not happy with how the SSAT addressed his grievance, since he understood it to have affirmed something which he thought the ARO had directed in his March letter. That is, that in all SU19s submitted both for past and continuing fortnights, including the period after January 2007, Mr Chen was required to show that he had looked for work in every fortnight by seeking employment from at least four employers.
Mr Chen filed an appeal to the AAT on 2 August 2007. His application identified the decision of the SSAT as the decision which he wanted the AAT to review under s.179 of the Social Security (Administration) Act. The AAT has jurisdiction only to review a decision which has been reviewed by the SSAT, and it is expressly precluded by s.181 from reviewing a decision which has not been reviewed by the SSAT. Thus, to the extent that Mr Chen had grievances arising from the outcome of his interview on 20 April 2007, those grievances could not be addressed by the AAT, except to the extent that they overlapped with Mr Chen’s outstanding grievances with the 9 March 2007 ARO letter.
Mr Chen gave the following reasons for his application to the AAT:
I think I have rights to get my money back.
1.4 jobs request (Activity test) is not proper and beyond my control during appealing time.
2.Irrelevant request (such as bank statement) make the problem complicated.
The respondent to the application sought an interlocutory hearing on whether Mr Chen’s application was within the AAT’s jurisdiction. Its written submission outlined the background events, and submitted:
11)The applicant is asking this Tribunal to decide that his newstart allowance payment should be paid from 25 January 2007. This is not the original decision, the essence of the original decision is that the applicant incurred a participation failure as part of the activity test on 23 November 2006.
12)The ARO set aside this decision finding that the participation failure should be revoked (T39). A decision in turn affirmed by the SSAT (T2).
13)On 22 and 23 March 2007 the applicant was paid newstart allowance from 30 November 2006 up until 24 January 2007. The applicant has not been paid newstart allowance since then as he has declined to lodge fortnightly continuation forms, as required by section 68 of the Social Security Act 1991 sent and given to him.
14)The only decision reviewed in this case is the decision on 23 November 2006 that a participation failure had occurred. Any decision relating to continuation of the applicant’s payments as he has not lodged continuation forms as required has not been reviewed by the SSAT under section 149 of the Social Security (Administration) Act 1999.
15)It is respectfully submitted therefore that pursuant to section 179 of the Social Security (Administration) Act 1999 the decision that the applicant is asking this Tribunal to review is not reviewable by this Tribunal as it is not related to the decision decided by the SSAT. That the applicant has ceased to receive his newstart payment is not related to the SSAT’s decision.
The application for summary dismissal of the application to the AAT was listed before Senior Member Allen on 8 January 2008. A transcript of the proceedings is in evidence. It is clear from that transcript that, by the end of the hearing, the Senior Member had formed the opinion both that the application was not within the Tribunal’s jurisdiction, and also that, if it were within jurisdiction, it should be dismissed summarily under s.42B of the Administrative Appeals Tribunal Act 1975 (Cth) on the ground that it was frivolous or vexatious, due to Mr Chen having received arrears up to 24 January 2007, and the decision of another ARO on 20 April 2007 not to insist upon full completion of the SU19s for the subsequent arrears period.
Subsequent to the hearing, the AAT issued a written decision which it labelled ‘a direction’, and is in the following terms:
Being satisfied that the Tribunal has no jurisdiction in this Application for Review, the Tribunal directs the Registrar not set down the matter for hearing.
NOTES TO DIRECTION
1.Failure by a party to comply with this direction is likely to result in this matter being listed for a directions hearing at which the party will be required to explain the failure to comply.
2.Failure by an applicant to comply with this direction may result in that party being asked to show cause why the application should not be dismissed. Paragraph 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal may dismiss an application where an applicant fails within a reasonable time to comply with a direction made by the Tribunal in relation to that application.
3.Failure by a party to comply with this direction will not necessarily result in a delay to the listing, or the adjournment, of a [preliminary conference/conciliation/ mediation/case appraisal/neutral evaluation] but may affect its conduct and may be brought into account in any order for costs made by the Tribunal.
4.If you do not believe that you will be able to comply with any timeframe (or other aspect) of this direction you should make application to the Tribunal for an extension of time to comply (or other such variation of the direction). Such application should be made sufficiently early for the Tribunal to consider the request prior to the expiration of the deadline imposed by the direction.
This is a confusing document in the circumstances, particularly in the absence of a statement of reasons published by Mr Allen. In its terms, it does not convey a final dismissal of the proceeding on the ground of lack of jurisdiction, and the reference in its ‘notes’ to s.42A(5)(b) is misleading. That provision allows the Tribunal to dismiss an application for non‑compliance with a direction, but no relevant ‘direction’ was being conveyed to Mr Chen. Nor was the ‘direction’ an invitation to show cause under s.42A(4), since the Tribunal appears to have formed the view that Mr Chen had already been required to demonstrate a reviewable decision and had failed to do so.
In my opinion, the written direction which is dated 8 January 2008 amounted to a final decision by the Tribunal disposing of Mr Chen’s application, when it is considered in the circumstances now shown by the transcript. In effect, the Tribunal refused to exercise jurisdiction and revealed no disposition to reconsider its opinion that it lacked jurisdiction. I consider that it thereby made a decision described in s.3(3)(g) of the Administrative Appeals Tribunal Act 1975 (Cth), and Mr Chen acquired a right of appeal to the Federal Court from its ‘decision’ under s.44(1) of the AAT Act.
Mr Allen’s reasons for declining jurisdiction must be discerned from the transcript of his exchanges with Mr Chen. It appears that the Centrelink papers suggested to him, as they have suggested to me, that Mr Chen was in effect challenging a requirement found in the ARO’s 9 March 2007 letter which was no longer insisted upon. That is, that his retrospective SU19s should show four job search efforts every fortnight in the arrears period. Mr Allen put this to Mr Chen but, as today at the hearing before me, Mr Chen showed no understanding of what was being put to him.
After further exchanges, the transcript concluded:
MR ALLEN: And there’s also the question of the bank statement. Look, Mr Chen, it’s quite simple.
MR CHEN: Yes.
MR ALLEN: A decision has been made at Hurstville that you haven’t lodged the proper SU documents, the SU19s. Secondly, they also want to see your bank statements. That decision has not been reviewed by an authorised review officer and because it hasn’t been reviewed by an authorised review officer, or the Social Security Appeals Tribunal, I have got no jurisdiction to review it. Now what you have to do, I’m telling you now what you have to do. You have to go to the Hurstville office and lodge a form with them, and keep a copy yourself, and say very simply, “I want an ARO to review the decision not to pay me Newstart after 24 January 2007.”
THE INTERPRETER: Can I say something here?
MR ALLEN: Yes.
THE INTERPRETER: The decision of the review, authorised review officer has never been implemented.
MR ALLEN: I disagree with that. I think it was implemented because no activity breach was imposed on you and you were paid up until 24 January 2007. Now, my decision is that as that decision was made and has been reviewed, even if I had grounds here, I would consider a further review to be frivolous and vexatious because even if I set aside the decision of 23 November 2006, you couldn’t get any more than you’ve got already in relation to that decision. What you must do now is, as I told you, go back to Hurstville and ask for the review of the decision not to pay you after 24 January.
The Federal Court application
After receiving the AAT’s direction, Mr Chen remained unhappy, and sought assistance from a variety of sources including the Ombudsman’s Office, before being referred to the Federal Court. I note that there is no evidence that he was advised by the AAT that he had a right of appeal or judicial review of the directions made by Mr Allen. He filed, presumably with the assistance of someone at the Federal Court Registry, an application for extension of time to appeal from the AAT on 20 February 2008.
At one stage I was concerned whether a judicial review jurisdiction arose under s.44 of the AAT Act, or under s.11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in its application to interlocutory decisions of the Tribunal. However, for reasons I have given above, I have decided that the former jurisdiction was available to Mr Chen, and this was not ultimately contested by the respondents. In any event, the same considerations as to extension of time, legal merits, and discretionary relief, would apply under both jurisdictions.
As to an extension of time, the period by which Mr Chen was out of time is unclear, but it cannot have been a very long period, and his affidavit refers, albeit tersely, to some good reasons for overlooking his short delay. Ultimately, the respondents did not oppose the granting of an extension of time, and I made such an order in the course of the hearing before me. I then directed the immediate filing and return of the notice of appeal which had been foreshadowed by Mr Chen.
In the Federal Court, Mr Chen’s application was listed several times before Flick J, and was referred to a Registrar for a mediation. This was adjourned several times, and was unsuccessful. Flick J then made an order in chambers on 10 February 2009, transferring the proceeding to this Court.
At a directions hearing on 13 March 2009, I adverted to the possible doubt about jurisdiction under the AAT Act, and made directions allowing the application to be alternatively considered under the ADJR Act, including by joining the AAT as a respondent for that purpose. I also gave directions to elicit the reasons for the Tribunal’s written direction, which was all that Mr Chen had been given in writing. I set the matter down for hearing today, both on issues of extension of time and, if time were extended, for an immediate final hearing on the merits.
Mr Chen has appeared and represented himself. At the conclusion of the proceedings when I foreshadowed my orders he sought an adjournment to get more legal advice, but I declined that adjournment. It appeared to me that he has had ample opportunity to get legal assistance. I saw little further prospect of his being able to obtain legal assistance to present his grievances to the Court.
Mr Chen’s notice of appeal is an unsatisfactory document, since it does not identify any question of law raised on the appeal. However, the contention is made in it that “AAT has jurisdiction and need to make a decision for my application”, and I consider that it should be regarded as raising a question of law, being whether the AAT had jurisdiction to review a decision made under an enactment in the course of the conduct of Centrelink which was brought before it by Mr Chen’s application to the Tribunal, being a decision which had previously been within the review jurisdiction of the SSAT in Mr Chen’s appeal to that Tribunal.
Consideration
Unfortunately, Mr Chen’s submissions did not address the provisions of the Social Security (Administration) Act and the AAT Act governing the AAT’s jurisdiction, and I doubt that he comprehended the jurisdictional distinctions which I attempted to explain to him. He maintained a belief that the AAT must have been able to review whatever it was he disagreed with in the actions of Centrelink over the whole of the period since November 2006 up until April 2007 and continuing.
As I have explained above, the jurisdictions of both the SSAT and the AAT were governed by the ambit of the decision of the ARO communicated in the letter of 9 March 2007. Mr Chen’s grievances concerning later decisions made by officers of Centrelink were not encompassed within his appeal to the SSAT, and therefore the AAT did not have power to review them.
Mr Chen’s grievance raised by his AAT application was, or included, his perception that he had been required by the ARO’s March 2007 letter to complete SU19s showing the required job search efforts over the whole past period continuing up to the date of the ARO’s decision. He understood from the ARO’s letter that he was being so required. In my opinion, its terms appeared to do this.
Whether that requirement by the ARO reflected an exercise of statutory power by a delegate of the Secretary is open to doubt. That part of his letter might be regarded as merely administrative advice to Mr Chen, on what he should do to gain the benefits of the favourable decision of the ARO, which had set aside the previous decision to cease or suspend Newstart payments, so as to obtain payment of arrears. If so, then Mr Chen did not have a grievance capable of being reviewed by a merits tribunal, but would have other administrative remedies, including under the Ombudsman Act.
However, this was not a view of the matter which has previously been taken by the Secretary, the SSAT, the AAT, or the first respondent’s representative before me. There was, in the submissions and material before me, no exploration of the provisions of the Social Security Act governing the powers of the Secretary in relation to the suspension and restoration of Newstart payments, in relation to the requirement of evidence such as is obtained in SU19s, and in relation to the payment of arrears after a successful appeal to an ARO. I therefore am not in a position to make a ruling upon whether the ARO’s letter recorded an exercise of statutory powers, when appearing to require Mr Chen to include in his retrospective SU19s evidence of searching for at least four jobs every fortnight. I shall assume, in favour of Mr Chen, that it did so.
It is unclear from the reasons of the SSAT whether they took that view of the ARO’s letter. On my reading of their reasons, they thought that there was, in effect, an exercise by the ARO of a statutory power refusing to dispense with the ‘activity test’ requirement reflected in the SU19s, but they understood that this related only to an eight week period expiring in January 2007. If so, the SSAT might not have fully addressed Mr Chen’s appeal, since it also related to the subsequent period which also appeared to be addressed by the ARO’s letter.
For his part, Mr Allen in the AAT, appears to have based his opinion on the AAT’s jurisdiction, upon the premise that the SSAT correctly understood the matter before them to be confined to an eight week period, and upon the manifest fact that Mr Chen had no remaining grievance about being required to lodge SU19s for that period, since he had done this, and been paid allowance for that period. On this view, Mr Chen’s application for review by the AAT raised only his grievances about a period subsequent to January 2007, which could have only concerned decisions which had not been reviewed by the SSAT and were beyond its jurisdiction.
However, Mr Allen’s opinion as to the AAT’s jurisdiction may have erred, if the SSAT was incorrect when confining its attention to only the eight week period. It is arguable for Mr Chen that the AAT’s jurisdiction included the power to consider whether the matter before the SSAT encompassed a requirement for SU19s extending beyond January 2007, and, if it did, to address whether that requirement reflected the correct or preferable exercise of statutory powers which were available to the ARO in March 2007. It is clear, that Mr Chen retained a grievance, which was covered by the terms of his application to the AAT, arising from the statements in the ARO’s 9 March 2007 letter which suggested a requirement on him to show that he met the activity test retrospectively up to that date and into the future.
These issues as to the statutory powers being exercised by the ARO, the ambit of his exercise of powers, and the resultant effects on the jurisdiction of the SSAT and AAT are not simple, and the documents before the Court present them in a most unsatisfactory manner for judicial determination. I have decided that I do not need to arrive at firm conclusions about them.
What is clear, in my opinion, is that it would be futile for the Court now to make any orders directing the AAT to exercise jurisdiction in relation to Mr Chen’s application to the Tribunal. Assuming that the ARO did make a decision to exercise a statutory power to require Mr Chen to evidence satisfaction of the activity test in retrospective SU19’s up to and beyond March 2007, and assuming that the SSAT and the AAT erroneously failed to appreciate that Mr Chen’s appeals to them encompassed such a decision, it was a decision which by the time of his application to the AAT no longer had any operative effect on Mr Chen’s retrospective and future Newstart Allowance entitlements under the Social Security Act, whether for a past or a future period.
This was because, as I have set out above, subsequent decisions were made by another ARO at Hurstville on 20 April 2007, that Mr Chen did not need to include ‘job searches’ in any retrospective SU19’s, and made new decisions in relation to what would be required from Mr Chen in relation to future SU19’s. All the grievances which Mr Chen had taken to the AAT therefore related to subsequent decisions of delegates of the Secretary, which were not reviewable by the AAT within the matter constituted by the March ARO decision and the SSAT appeal from it. This included any new requirement conveyed to Mr Chen on 20 April 2007, that he should provide evidence as to his assets and income over the relevant periods.
In this uncontested situation, there would have been no purpose in the AAT embarking upon a review of the requirement for job searches made in the ARO’s letter of 9 March 2007. Nor is there any purpose in the Court now directing it to embark upon such a review. Mr Allen’s alternative opinion about Mr Chen’s application before the AAT was correct. Mr Chen’s application to it, if it was within jurisdiction, would inevitably have been dismissed summarily under s.42B of the AAT Act on the ground that the application “is frivolous or vexatious”, in the sense that it lacked any practical utility (cf. Re Williams & Australian Electoral Commission (1995) 21 AAR 467 at 476, Cooper v Comcare (2002) 118 FCR 157 at [27], Re Frazzetto & Australian & Overseas Telecommunications Corporation (1994) 19 AAR 174 at 177, and Secretary, Department of Health & Ageing v Marnotta Pty Ltd (2005) 41 AAR 444 at [48]).
For that reason, I have decided that, even if the AAT erred in its opinion about its jurisdiction in the present matter, Mr Chen’s appeal to this Court should be dismissed under the Court’s discretion in s.44(4) of the AAT Act on the ground that it would be futile to grant any relief.
In relation to costs, I consider that the ordinary principle should be applied: that the unsuccessful applicant should pay the legal costs of the first respondent. My reasons for dismissing the application should have been apparent to Mr Chen from the documents and submissions which were before the AAT. I clearly put him on notice, with the assistance of a Mandarin interpreter, when fixing the matter for hearing that he was running the risk of an adverse costs order if he proceeded with his application and did not succeed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 25 June 2009
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