Christoforou and Secretary, Department of Social Services (Social services second review) - [2022] AATA 2837

Christoforou and Secretary, Department of Social Services (Social services second review) [2022] AATA 2837 (19 August 2022)
Division:GENERAL DIVISION
File Numbers: 2021/5327
2021/5331

Re:Giannoula Christoforou
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Senior Member D. J. Morris
Date:19 August 2022
Date of written reasons: 31 August 2022
Place:Melbourne

The Tribunal dismissed the application under section 42A(4) of the Administrative AppealsTribunal Act 1975 as it is satisfied the decision is not reviewable.
........................................................................
Senior Member D. J. Morris
Catchwords
PRACTICE AND PROCEDURE application made on behalf of applicant by her representative – applicant dies after lodging application but before hearing – consideration of nature of decision – distinction between matter which extinguishes on death of an applicant and matter which may devolve – matter does not extinguish on death of applicant – potential relief or remedy available – proof of standing of affected party and fresh application required – information sought by Tribunal not provided – applicant’s representative unlikely now to proceed – provisions of AAT Act considered
SOCIAL SECURITY – where applicant was on carer payment and age pension – where applicant also in receipt of spouse benefit superannuation pension – where superannuation income not taken into account in calculating rate of payments – where debt arose – where steps taken to recover debt – where applicant sought review by authorised review officer – where applicant sought further review by Social Services and Child Support Division of Tribunal – where Tribunal affirmed authorised review officer’s decision – where applicant’s son sought review by General Division of Tribunal on behalf of applicant – where applicant died – where applicant’s son sought to continue the proceeding – standing as personal representative ceases on death of person represented – where executor of estate could be joined as affected party – where proof not provided that applicant’s son is executor of estate – where now likely applicant’s son cannot pursue matter – application dismissed as Tribunal satisfied decision not reviewable – written reasons provided
Legislation
Administrative Appeals Act 1975 (Cth), ss 2A, 3, 25, 27, 30, 31, 32, 37, 42A, 42B, 43
Social Security Act 1991 (Cth), s 1237AAD
Social Security (Administration) Act 1999 (Cth), s 179
Cases
Andreatta and Commissioner for Superannuation; Re: (1991) 23 ALD 326
Bates and Secretary, Department of Employment; Re: [2016] AATA 250
Brian Lawler Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Estate of Sarah Wheatley and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs; Re: [2005] AATA 231
Phung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 821
Murray (Estate of M.J. Beaton) and Secretary, Department of Families, Community Services and Indigenous Affairs; Re: [2007] AATA 1286
Secretary, Department of Social Services and Estate of the Late Ashley Pauling; Re: [2018] AATA 870
Secretary, Department of Social Services and Executor of the Estate of the late Raymond Allen Smith; Re: [2020] AATA 806
Secretary, Department of Social Services and Ms Wendy Halliday as Administrator of the Estate of the Late Ashley Pauling; Re: [2018] AATA 3865
V120/00A v Minister for Immigration and Multicultural Affairs [2002] FCA 264
Whitney and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs; Re: [2011] AATA 902
Secondary Materials
Pearce, Dennis; Administrative Appeals Tribunal (5^th Edition); LexisNexis (2020)
REASONS FOR DECISION
Senior Member D. J. Morris
31 August 2022
INTRODUCTION

This matter concerns a case where the Applicant, through her nominee, applied for a ‘second-tier review’ of a decision of the Social Services and Child Support Division of this Tribunal (the ‘first-tier review’). Before the hearing, the Applicant sadly died. The Applicant’s nominee sought to continue the matter. For the reasons that follow, on 19 August 2022 the Tribunal decided to dismiss the application.
The application to the General Division for second-tier review was made on 4 August 2021. I held a directions hearing on the matter on 19 August 2022. Given that the Respondent was the only party represented at the directions hearing, the Tribunal undertook to provide written reasons for the decision. In accordance with section 43(2B) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), these reasons include finding on material questions of fact and refer to evidence on which those findings were based.
The Respondent lodged documents under section 37 of the AAT Act on 10 August 2021. These will be referred to as ‘TD’ in these reasons.
The Respondent also lodged submissions on 8 March 2022, with attachments being (a) a Centrelink file note dated 22 October 2021 and (b) a ‘debt screen’ relating to the Applicant. These were taken into account.
BACKGROUND
The Applicant was in receipt of carer payment from February 2006. On 13 July 2017, following the death of her husband, she was transferred to age pension (TD, p 53).
From 7 April 2017, the Applicant started receiving a ‘spouse benefit’ defined benefit superannuation pension of $13,706.16 gross a year from the Commonwealth Superannuation Scheme (‘CSS pension’). The Applicant’s late husband was a CSS pensioner, and a CSS pension spouse benefit entitlement arose on his death (TD, pp 21-23).
On 29 August 2018, a Centrelink officer contacted the Applicant by phone. The Applicant authorised her daughter-in-law, ‘SL’ to speak on her behalf. SL confirmed that the Applicant was receiving a CSS pension but ‘thought Centrelink already knew about it’. The officer checked the age pension claims and recorded that there was no mention of the CSS pension (TD, p 91). The records show that SL contacted Centrelink on 31 August 2018 and provided additional information.
On 28 November 2018, the Department made a decision to raise and recover a carer payment and age pension debt to the Commonwealth for the period 5 April 2017 to 28 August 2018 on the basis that the Applicant’s CSS pension was not taken into account in calculating her rate of payment for these social security benefits.
The Applicant, through her nominee, sought a review of the decision to raise the debt. An authorised review officer (‘ARO’) of the Department undertook a review and contacted the CSS, which confirmed that the Applicant had become a recipient of a CSS pension after the death of her husband and provided advice of the amount of the CSS pension.
The papers (TD, pp 73-74) indicate that the Department was advised of the death of the Applicant’s husband on 4 May 2017, and she was advised to notify the Department within fourteen days if she received any payments as a beneficiary of her late husband’s superannuation. The CSS pension was granted on 24 May 2017 (TD, p 23), but, although this was disputed by the Applicant’s representative, there was no record that the Applicant or her nominee had told the Department of this change in her circumstances.
An officer of the Commonwealth Superannuation Scheme wrote to the Applicant (TD, p 19) on 22 June 2018, advising her that her CSS pension had been indexed in line with the Consumer Price Index and the new net fortnightly CSS pension would be $542.59.
The ARO conducted a review and wrote to the Applicant on 22 April 2021 (TD, p 13). The ARO noted that the Department had sent several letters to the Applicant between 15 September 2016 and 29 August 2018, reminding her that she must tell the Department within 14 days if there was a change in her circumstances which included her receiving a superannuation pension. The ARO confirmed a carer payment debt of $1,472.42 for the period 7 April 2017 to 12 July 2017 and an age pension debt of $6,956.17 for the period 13 July 2017 to 28 August 2018 as the recipient had failed to advise of the CSS pension being paid from 7 April 2017.
Tribunal’s first-tier review
Before me was the 7 July 2021 decision of Member Halstead of the Social Services and Child Support Division of this Tribunal (‘the first-tier review’). At that hearing, the Applicant’s son, ‘MC’, told the Tribunal that information about the CSS pension was provided to the Department on 24 May 2017, but the learned Member found there was no evidence available in the records of the Department to confirm that occurred. The learned Member said that the earliest record showing advice of the CSS pension from the Applicant was 31 August 2018. (That is strictly true, but the Applicant’s daughter-in-law had confirmed the CSS pension two days earlier in a telephone discussion initiated by Centrelink.).
The learned Member considered the debt waiver provisions in the legislation and found that the debts arose from a failure to provide timely advice to the Department about the CSS pension and not from any administrative error. He noted that the Applicant continued to receive age pension and is therefore taken to have the capacity to repay the debts by periodic deduction (which was then occurring). The learned Member noted that the Applicant was very unwell and the advice from MC that she did not have the mental capacity to represent herself at the hearing. MC also advised the Tribunal that the Applicant now required constant care. Having considered the evidence, the Tribunal decided that there was nothing sufficiently unusual, uncommon, or out of the ordinary about this matter that could be accepted as special circumstances that make it desirable to waive the debts.
The Tribunal, at first-tier review, found that the debts had arisen because income received by the Applicant was not taken into account when the rates of carer payment and age pension were originally calculated for the relevant periods and that the debts were to be recovered as there were no grounds for waiver.
Application for second-tier review
As mentioned above, on 4 August 2021, the Applicant applied, through her representative, MC, for a ‘second-tier review’ by the General Division of the Tribunal, as she was entitled to do. In that application, MC stated (as written):
The tribunal has missed key evidence of page 6/7/8/9 that letter was handed to Centerlink as there is 2 copies of letter stating when my mother was to get her late husband[’]s superannuation and that was going to back dated. We have handed this letter to them twice. We advised Centerlink straight away as soon as we got lette[r] 24/05/17.
The Tribunal notes that owing to periodic deductions from the Applicant’s social security benefits, the Respondent advised that the debt had now been reduced to $3,811.17.
First directions hearing
On 11 March 2022, the Tribunal held a telephone directions hearing. The Applicant was represented by MC and the Secretary by Ms Aarabi Raveendiran of the Litigation Branch of Services Australia (which is part of the Department).
At the hearing, MC advised the Tribunal that the Applicant, his mother, had died on 21 October 2021. The Tribunal expressed condolences. MC said that he wished to pursue the second-tier review. MC advised the Tribunal that he was the executor of the Applicant’s estate.
The Tribunal explained to MC that his standing as the representative of his mother ceased on her death. I further explained that it may be that he is an affected party in the matter if he provides proof that he is the executor of the Applicant’s estate. The Respondent submitted that the appropriate course of action was for MC to lodge a fresh application for second-tier review in his own name, and provide a copy of the Applicant’s Will and letters of administration, or other relevant legal documentation, as proof that he has standing as the executor. MC told the Tribunal that the process of granting probate was “about halfway through” and that he would contact his mother’s solicitors and obtain a copy of the Will and letters of administration to provide to the Tribunal and the Respondent.
During the hearing, I noted that the Respondent had intimated that discussions had been underway between the parties about a settlement. MC said he had been unable to attend to this because of the Covid-19 pandemic and his mother’s death. Ms Raveendiran said that the offer of settlement was ‘on hold’ now the Department had received advice of the Applicant’s demise, but that these discussions could be recommenced once there was evidence that MC had standing as an affected party in relation to the estate. I reminded parties that any discussions they had been engaged in about the debt were between themselves and are not the business of the Tribunal. The Respondent offered to send a fresh copy of an application form to MC, and MC provided his email address to enable that to happen.
On 16 March 2022, the Respondent sent MC an application form to enable him to lodge a fresh application for review and also a request for a copy of the Will and any letter from the Applicant’s solicitors or other document confirming that he is the executor of his mother’s estate.
On 24 July 2022, the Respondent wrote to the Tribunal, noting that MC had been asked to provide a copy of the Applicant’s Will and probate and that he had not done so, despite several follow up emails. The Respondent requested that the matter be listed for a dismissal hearing.
On 26 July 2022, at my direction, the Tribunal’s associate attempted to contact MC by telephone without success. The Tribunal’s associate sent an email to MC reminding him that at the last directions hearing he had undertaken to provide a copy of the Will and asked him to contact Ms Raveendiran in relation to the matter.
Second directions hearing
On 9 August 2022, the Respondent requested that the matter be listed for a dismissal hearing. The Tribunal listed the matter for a directions hearing by telephone on 19 August 2022 and both parties were advised of the date and time.
The Tribunal held the directions hearing to consider the Respondent’s request that the matter be dismissed. MC did not participate in the directions hearing, and the Tribunal noted that efforts by the Tribunal’s associate to contact him by telephone had not been successful.
Ms Raveendiran told the Tribunal that she had been able to speak to MC’s wife, SL, in the previous few days. SL had advised her that her husband had suffered a significant health episode since the first directions hearing and could no longer pursue the matter. Ms Raveendiran asked SL whether she could take it that MC would not be making a fresh application, and SL said she “can’t see it happening”. SL told Ms Raveendiran that she did not want the Department or the Tribunal to contact MC any further.
LEGISLATION
Section 27(1) of the AAT Act relevantly provides:
Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision.
Section 30 of the AAT Act concerns parties to proceeding before the Tribunal. Sections 30(1A) and 31 of the Act concerns affected parties. These sections relevantly state:
30 Parties to proceeding before the Tribunal
…
Parties
(1) Subject to paragraph 42A(2)(b), the parties to a proceeding before the Tribunal for a review of a decision are:
(a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;
(b)the person who made the decision;
(c) if the Attorney-General intervenes in the proceeding under section 30A – the Attorney-General; and
(d) any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A)
Person whose interests are affected may apply to be a party
(1A) Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.
…
31 Tribunal to determine persons whose interests are affected by decision
(1) Where it is necessary for the purposes of this Act to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.
Section 32 of the AAT Act provides that parties may appear in person or be represented by another person.
When an applicant dies
The Act does not contain specific provisions for a case where an Applicant has lodged an application for review but dies before the finalisation of his or her application. The Courts and the Tribunal have considered instances of this occurring in the past and have concluded that whether the Tribunal can continue its review when an applicant dies depends on whether the decision under review relates to a right or entitlement that would devolve to the Applicant’s estate upon their death.
Emeritus Professor Dennis Pearce, AO, in Administrative Appeals Tribunal (5^h Edition), discusses this situation (at p 117):
Death of Party to Proceeding
7.10 No provision is made in the AAT Act relating to what is to happen with an application if the applicant dies after it has been commenced. The matter was fully considered in Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326 (some earlier decisions not being followed). The AAT ruled that where the statutory entitlement that the applicant was pursuing before the AAT was not capable of devolving onto another on death, the death of the applicant would extinguish the availability of the entitlement and with it the power of the AAT to make an order in relation to the original decision. On the other hand, where the entitlement does devolve on death, the person to whom it devolves is entitled to continue the application but must apply to be made a party to the proceedings. Until such an application is made, the AAT has no jurisdiction to review the decision. The decision in Andreatta was followed in Re Estate of the Late Ashley Pauling and Secretary, Department of Social Services [2018] AATA 870 even though the need to make the application was acknowledged as being likely to cause distress for the person to whom the right devolved.
The issue arose also in Re Bates and Secretary, Department of Employment [2016] AATA 250. The Tribunal there was not satisfied that a claim for compensation under the Fair Entitlements Guarantee Act 2012 (Cth) ‘devolved’ in law to the personal representative of the deceased applicant. However, it concluded that the legislation did enable the personal representative to claim the payment of an amount owing under the Act. This is a significant approach to the resolution of the rights of the parties that must be taken into account.
Therefore, where a statutory entitlement is specific to the Applicant and does not devolve upon his or her death, the death extinguishes the entitlement and the power of the relevant decision-maker (including the Tribunal) with respect to it. For example, if a person brings to the Tribunal a decision to refuse them a social security payment, and the person dies before the Tribunal finalises the matter, the potential entitlement to the payment extinguishes, and so there is nothing before the Tribunal to decide. In such a case, no relief can be given to the person.
Another example of where an entitlement extinguishes on the death of an applicant is if the application for review relates to the refusal of a visa, or the cancellation of a visa or the refusal to revoke the mandatory cancellation of a visa. In such a case, the potential entitlement extinguishes because the Courts have found that a visa is a ‘personal licence’ which is not transferrable to another person: Phung v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 821, per Ryan J, at [5], where His Honour stated:
A visa is a purely personal licence: it is a permission under a statute to remain in Australia, granted by the Minister; s 29(1). A bare visa confers no rights on other persons. Following Mr Phung’s death, any visa held by him, or to which he may have been entitled, no longer has any effect and can confer no legal rights upon anyone else that could form the subject matter of a proceeding in this Court.

In the case referred to by Professor Pearce, Re: Andreatta and Commissioner forSuperannuation (1991) 23 ALD 326 (‘Andreatta’), the Tribunal (Deputy President Todd, Member Dr B. H. Travers and Member Attwood) was considering an application brought by Mr Andreatta relating to access to superannuation funds owing to his medical conditions. The matter had been heard and the decision reserved. Mr Andreatta then died, and the question arose as to what procedure the Tribunal should follow. The Australian Government Solicitor lodged a submission inviting the Tribunal not to follow earlier decisions which had held that the Tribunal may, upon the death of an applicant, proceed to complete the review without the substitution of any legal personal representative. The Tribunal accepted that submission.
In Andreatta, the Tribunal relevantly set out the Respondent’s submission, at [3]:
The Tribunal should not follow earlier decisions of the Tribunal in which it has been held that, notwithstanding the death of the applicant after the conclusion of the hearing, the Tribunal has, without more, the power to deliver a decision…
….
A distinction should be drawn between the entitlement that is the subject of a proceeding before the AAT and the person in whose name the proceeding is brought. Whether or not a statutory entitlement devolves upon the death of a person depends on the language of the statute under which that right arose…
…
Where the statutory entitlement that is the subject of the proceeding does not devolve upon the death of an applicant, then the death of the applicant will extinguish the availability of that entitlement and, with it, the power of any decision-maker (which, by ss 43(1) Administrative Appeals Tribunal Act 1975 (“the AAT Act”) includes the power of the AAT upon review) to decide that the entitlement is properly payable to the applicant…
…
Where the statutory entitlement that is the subject of the proceeding does devolve upon the death of an applicant, then the person whom the statutory entitlement devolves must make application pursuant to ss 30(1A) AAT Act to be made a party to the proceeding. Unless and until such application is made the Tribunal will have no jurisdiction to review the decision…
(References to authorities omitted.)
And, at [6]:
Subsequently, the solicitors for the estate, who had acted for Mr Andreatta in these proceedings until his death, informed the Tribunal that a grant of probate had been made to Mr Michael Joseph Higgins who sought to become a party to proceedings. On 15 March 1991 the Tribunal, being satisfied that the personal representative of Giancinto Andreatta deceased was a person whose interests were affected by the decision of the respondent of which the applicant had sought review, ordered pursuant to s. 30(1A) of the AAT Act that Michael Joseph Higgins be made a party to the proceedings. For convenience, we shall however continue to refer to the late Mr Andreatta as “the applicant”.
Thus, the Tribunal paused its consideration of the matter until it was satisfied that an affected party had an interest and had ordered that person be joined. The Tribunal then finalised the proceedings and made a decision.
The reasoning in Andreatta was expressly approved by the Federal Court of Australia in V120/00A v Minister for Immigration and Multicultural Affairs [2002] FCA 264, see Kenny J, at [53].
A matter is not automatically dismissed upon the death of an applicant, and the provisions for dismissal contained in sections 42A and 42B of the AAT Act apply. Pursuant to sections 27 and 30 of the AAT Act, set out above, the executor or administrator of an Applicant’s estate may apply to be joined as a party to the proceedings but, unless this occurs, the Tribunal may not be able to proceed to review the decision before it.
Respondent’s submissions
The Respondent submitted that the decision under review must relate to a right or entitlement that would devolve to the Applicant’s estate upon her death. The Respondent further submitted that MC needs to be a person whose interests are affected by the decision under review and, if so, he needs to apply to be joined as a party to the proceeding on foot. The Respondent submitted that if the Tribunal is satisfied that MC is a person whose interests are affected by the decision under review, the Tribunal may grant an order to join him as a party to proceedings.
The Respondent submitted that as the matter relates to a debt to the Commonwealth that remains recoverable, notwithstanding the Applicant’s death, from her estate, there are two possible outcomes. The first is that if the Tribunal upholds the first-tier decision, the Department may recover the debt from the Applicant’s estate. Alternatively, if the application is successful to either set aside or vary the debt, an entitlement, including potentially a refund of the amount of debt so far recovered, would devolve to the estate. The Respondent therefore submitted (rightly) that the executor of the Applicant’s estate has interests affected by the decision under review.
The Respondent helpfully drew my attention to some previous decisions by the Tribunal. In Re: Whitney and Secretary, Department of Family and Community Services [2005] AATA 231 (‘Whitney’), Senior Member Bell was considering a case where a recipient of social security benefits had died, but for several years her death had not been notified to the Department. In that case, the matter turned on whether the applicant’s son, who admitted that he had received funds which had continued to be paid to his deceased mother, had consented to repay them. It was not strictly concerned with the death of Mrs Whitney.
In Re:Estate of Sarah Wheatley and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 902, Member Wulf was considering an application brought by the estate of Mrs Wheatley, who had been overpaid pension entitlements. In that case, the Tribunal had evidence that Mrs Wheatley’s son was the executor of her estate.
In Re: Murray (Estate of M. J. Beaton) and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1286, the Tribunal had proof that Mrs Murray was an executrix of her late father, Mr Beaton’s, estate, and ordered that she be an affected party.
In the case of Re: Secretary, Department of Social Services and Executor for the Estate of the late Raymond Allen Smith [2020] AATA 806, Member Grigg (as she then was) took into evidence a copy of the Will of the late Mr Smith which showed that his son was the executor and ordered that he was an affected party.
While some of these cases have similar factual bases to this matter, they are all distinguishable because in each case the Tribunal had evidence which satisfied it of the standing of the person bringing the matter for review and this allowed the matter to be finalised. But except for Whitney, the Tribunal first took steps, as outlined in Andreatta, to order that a new affected party became the effective applicant.
In Re: Secretary, Department of Social Services and Estate of the late Ashley Pauling [2018] AATA 870, a recipient who was in receipt of a disability support pension (‘DSP’), had then received a lump sum compensation payment. The Department applied a compensation preclusion period and cancelled Miss Pauling’s DSP. Miss Pauling sought review by the Social Services and Child Support Division of the Tribunal. She authorised her carer, Mr Kelly, to represent her. Before the hearing, the Tribunal was advised that Miss Pauling had died, but Mr Kelly requested that the matter continue and be decided on the papers. The Member decided that the matter transferred to Miss Pauling’s estate and proceeded to make a decision halving the compensation preclusion period, which meant a substantial financial refund to Miss Pauling’s estate.
The Secretary sought a review by the General Division of the Tribunal and contended that the Member at first tier did not have jurisdiction to make the decision because the applicant had died and no affected party had been joined. The matter was complicated because the executrix of Miss Pauling’s estate (her mother, Ms Wendy Halliday) had given Mr Kelly a letter authorising him to represent the estate at the second-tier review. Member Bygrave did not need to consider the jurisdiction question because she found, consistent with the reasoning in Andreatta, that Mr Kelly did not have standing because he had not been joined as an affected party. It was understood that it was a distressing time for Miss Pauling’s mother, but nonetheless, the executrix needed to make an application under section 30(1A) of the Act to be joined. Mr Kelly was not an affected party.
Ms Halliday subsequently lodged her own application that she was an affected party. She was joined to the proceedings as an affected party as the administrator of Miss Pauling’s estate by an order of the Tribunal. Ms Halliday authorised Mr Kelly to represent her at the substantive hearing. In Re: Secretary, Department of Social Services and Ms Wendy Halliday as Administrator of the Estate of the Late Ashley Pauling [2018] AATA 3865, Deputy President McCabe and Member Bygrave then proceeded to consider the application brought by the Secretary. Relevantly, the Tribunal rejected the Secretary’s submissions that because Miss Pauling had died before the first-tier decision was made, there was ‘no decision’ to review. The Tribunal decided, with respect correctly, that notwithstanding a jurisdictional error, there was nonetheless a reviewable decision to consider, because the decision-maker (in this case, the Member at first tier) intended to make a decision exercising a purported power (citing, at [25], the approach of Brennan J in Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167). This allowed the Tribunal to place itself in the shoes of the original decision-maker, and it proceeded to finalise the matter.
So, where an applicant lodges an application with the Tribunal, and he or she dies before the matter is heard, or after it has been heard, but before it is finalised if there is an affected party, that party should lodge a fresh application in their own name making their case (and furnishing whatever proof might be relevant, such as a Will or appointment as executor). If satisfied, the Tribunal can then join the affected party by an order under section 30(1A) of the Act and finalise the matter. But the Tribunal must be satisfied of two things: that the person is an affected party and that the death has not extinguished the substantive matter brought for review.
Is the Applicant’s son an affected party?
At the first directions hearing, I explained to MC that his standing as his mother’s representative (with the ability to bring an application on her behalf) ceased on her death on 21 October 2021. When MC said he nonetheless wanted to pursue the matter to second-tier review, I explained that what he needed to do was provide proof that he is the executor, and that evidence that would satisfy the Tribunal would be a copy of his late mother’s Will, letters of administration, a letter from his solicitor or other document confirming that he is her executor. MC undertook to do that.
I also explained that, once he had lodged a fresh application with the Tribunal in his own name, together with proof of his standing as executor, I would be able to issue an order joining him as an affected party. That would permit any settlement discussions that had been suspended between him and the Department to resume. If those discussions did not reach an amicable resolution, the Tribunal would be able to list the matter for substantive hearing.
MC did not provide a copy of the Will or any other proof that he is executor. The Tribunal has no reason to doubt his oral submission to the hearing that he is, indeed, the executor and noted that his wife, SL, advised the Department that he was on 22 October 2021 (Centrelink file note attached to Respondent’s submissions dated 22 October 2021).
However, for the Tribunal to make an order that MC is an affected party requires the Tribunal to exercise a discretion under section 30(1A) and section 31 of the AAT Act. I consider that exercising this discretion first requires that the Tribunal be positively satisfied that the person is affected (i.e., has standing), and that requires documentary proof.
In addition, MC has not lodged a fresh application for review, which was the other thing necessary for him to continue his quest to have the debt raised and (part) recovered from his late mother reviewed. The Tribunal does not have any power to compel a person to lodge an application for review, nor can it deem that an application has been lodged, in the absence of any other positive indication from MC. Even if I accept MC is likely to be the executor, in the absence of these things, the Tribunal cannot of its own motion join MC as an affected party.
Although the Tribunal does not have any first-hand evidence that MC is not now able to continue the matter because of a significant health setback, the Tribunal accepts the oral submission of Ms Raveendiran on behalf of the Respondent that this is what SL conveyed to her.
Finding
The Tribunal finds on the evidence before it that MC may be an affected party in this matter, but documentary proof would be required before he could be ordered to be an affected party. Until then, there is no affected party.
What is the appropriate course to take?
The Tribunal has examined the powers in the Act relating to discontinuance and dismissal of an application. Section 42A(1) provides that, where all parties to an application before the Tribunal consent, the Tribunal may dismiss the application without proceeding to review the decision, or if it has started a review, without completing the review. That provision is not available in this case, because the Applicant has died, and the standing of her representative to act on her behalf ceased on her death.
Section 42A(1A) provides that a person who has made an application may at any time notify the Tribunal that the application is discontinued or withdrawn. For the same reason, that provision is not available in this case.
Section 42A(2) provides that if a party fails to appear at a directions hearing, an alternative dispute resolution process or a hearing, the Tribunal may dismiss the application without proceeding to review the decision. Section 42A(7) of the Act conditions the use of this power by requiring the Tribunal to be satisfied that appropriate notice was given to the person who failed to appear at the time and place of the directions hearing, alternative dispute resolution process or hearing.
I consider it would be inapposite to use this section where an applicant has died. The Parliament clearly intended this provision to be linked to a circumstance where a person makes a conscious decision not to continue to participate in a matter before the Tribunal, not to a case of death.
Section 42A(5) provides that the Tribunal may dismiss a matter if an applicant fails within a reasonable time to proceed with the application or comply with a direction in relation to the application. This is also not apposite to this matter because, having told the Tribunal at the March directions hearing he wants to continue the matter, I am not satisfied that MC failed within a reasonable time to proceed with the application (being the one brought by his mother), and the Tribunal did not issue any direction at the first directions hearing. What the Tribunal did was explain that, if he now wanted to pursue the matter notwithstanding the sad death of his mother, he needed to take certain steps. They were not directions, and it was a matter for MC as to whether he took those steps.
Section 42B of the AAT Act provides, relevantly:
Power of Tribunal if a proceeding is frivolous, vexatious etc.
(1) The Tribunal may dismiss an application for 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.
The Respondent did not make any submissions that section 42B is relevant in this matter. The Tribunal does not find that this section offers a solution. The original application was not frivolous, nor vexatious, and nor did it lack substance. It cannot be said that, if the Tribunal proceeded to a second-tier review where the parties had the opportunity to put on further evidence, that the matter the Applicant brought has no reasonable prospect of success. The decision to lodge an application for second-tier review in this matter is an entitlement provided for in section 179 of the Social Security (Administration) Act 1999 and so it also cannot be said to be an abuse of the process of the Tribunal.
DISPOSITION
The Tribunal has decided that the appropriate course to take in this case is for the matter to be dismissed, and the appropriate provision of the Act is section 42A(4). That section reads:
Dismissal if decision is not reviewable
The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
Dismissals under section 42A(4) of the Act commonly occur in cases where a person has sought review by the Tribunal of a decision made under state legislation, or sometimes by a university or local government body or corporation. Sometimes this provision is used when there is a relevant enactment (see section 25 of the Act and, for the definition of ‘enactment’, section 3) but that enactment does not confer a review power on the Tribunal of the specific decision at issue. That is not the case here because three things are potentially reviewable: (a) whether there is a debt; (b) whether the debt has been correctly calculated; and (c) whether any special circumstances may be found to apply which make it desirable for the Tribunal to waive any part of the debt (under the provisions of section 1237AAD of the Social SecurityAct 1991). These are all questions regularly considered before the Tribunal, at first- and second-tier review.
However, the practical reality is that this is a case whether there is, now, no applicant. The person who was the Applicant’s representative ceased to have that standing on her death, because he could no longer act in her personal interests. There is still a substantive matter that may be relevant to the disposition of the Applicant’s estate because the residue of the debt owing to the Commonwealth at the time of the death of the Applicant becomes a debt payable by the estate. It is still possible that the Tribunal might, at second-tier review, come to a different conclusion than the Member did at the first-tier review about the special circumstances provisions and the debt.
Because MC did not lodge an application in his own name, as he agreed he would at the first directions hearing, and because he has not provided proof that he is the executor or otherwise an affected party, I find that I am unable to consider the application brought in the name of the Applicant any further.
Section 2A of the AAT Act sets out the objective of the Tribunal. One element of the objective is that the mechanism of review must be fair. That includes being fair to the Respondent. It is not desirable for this matter to remain in limbo. The correct course is that it be dismissed as not able to be reviewed by the Tribunal. No administrative relief can now be potentially given to the Applicant, and any relief to the estate is speculatory, given the lack of information before the Tribunal. In these circumstances, I have decided the matter should be dismissed under section 42A(4). The consequence is that the decision of the Social Services and Child Support Division of the Tribunal of 7 July 2021 is undisturbed.

I consider that this decision is consistent with the reasoning in Andreatta that said, unless and until a person to whom a statutory entitlement devolves has made an application pursuant to section 30(1A) of the AAT Act to be joined as an affected party to the proceeding, the Tribunal will have no jurisdiction to review the decision. I consider that the statutory entitlement in this context includes the age pension and carer payments paid to the late Applicant, and consequently, the debt the Respondent has raised for overpayment of that entitlement.
Should MC’s health improve, or should another person lodge an application with the Tribunal with proof that they are an affected party, then the substantive matter could be reinstated by the provisions in the AAT Act found at section 42(10). That allows the reinstatement of an application where it ‘appears to have been dismissed in error’. The Tribunal considers that a benevolent interpretation of this provision might encompass, given the medical circumstances which the Tribunal has been informed now attend MC, that he was unable to provide material to the Tribunal which he or another person may subsequently provide. It would also include the possibility that there may be another executor of the Applicant’s estate of whom the Tribunal is unaware.
DECISION
The Tribunal dismisses the application under section 42A(4) of the AAT Act as it is satisfied that the decision is not reviewable.

74.

75. I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 31 August 2022

Date of the interlocutory hearing:

19 August 2022

Applicant:

Represented by nominee

Advocate for the Respondent:

Ms Aarabi Raveendiran

Solicitors for the Respondent:

Services Australia

Date of the interlocutory hearing:	19 August 2022
Applicant:	Represented by nominee
Advocate for the Respondent:	Ms Aarabi Raveendiran
Solicitors for the Respondent:	Services Australia