Doan and Secretary, Department of Family and Community Services

[2005] AATA 977

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 977

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2005/201

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CHERIE DOAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date5 October 2005

PlaceMelbourne

Decision For reasons given orally the application to reinstate is refused.

..............................................

Senior Member

PRACTICE – application withdrawn – deemed dismissal – request to reinstate – no error made in dismissal – application refused

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

5 October 2005

1.      On 20 July 2005 the Tribunal received an email from Ms Doan advising that Centrelink had made a decision which was in her favour.  She stated in the email that she “would like to cancel my application to the Administrative Appeals Tribunal”.  A similar request was made in the letter of 20 July, received on 25 July.

2. The District Registrar of the Tribunal interpreted the request by Ms Doan as notification that the application was either discontinued or withdrawn. When such notification is given pursuant to s42A (1A) of the Administrative Appeals Tribunal Act 1975 (the Act), the application is deemed to have been dismissed without proceeding to review (refer subsection 1B).  Ms Doan was notified by letter from the District Registrar on 22 July that her application was dismissed by force of the legislation.

3.      On 4 August 2005, Ms Doan wrote to the Tribunal by email, and made a request to “reopen” her application.  That was subsequently confirmed by letter of the same date and by another letter dated 4 September 2005.

4.      The correspondence from the applicant was treated as a request to reinstate the application, and a hearing was convened on 3 October 2005.  At the conclusion I decided that the application should not be reinstated and gave oral reasons.  Ms Doan requested written reasons.  This decision is therefore made pursuant to that request.

5.      The circumstances of the initial application to the Tribunal may be briefly summarised as follows.

6.      Ms Doan sought review of a decision that was made by the Social Security Appeals Tribunal (the SSAT) on 3 March 2005.  The SSAT was then reviewing a decision made by a Centrelink officer on 9 November 2004 to cancel Newstart Allowance (NA) which had been paid from 1 March 2004.  The Authorised Review Officer (ARO) decided that from 1 March 2004, Ms Doan had been a full time student and did not have an entitlement to NA.  The SSAT decided to affirm the decision made by the ARO.

7.      Subsequent to the decision of the SSAT, a decision was made by another Centrelink officer to raise an overpayment of NA consequent upon the decision made by the SSAT.  Proceedings were commenced in this Tribunal to challenge the decision of the SSAT which was confined only to the decision concerning cancellation.  Later, upon internal review, another Centrelink officer decided to waive the amounts calculated as overpaid.  The reasons for that decision are not relevant to this decision, save that, upon being notified by Centrelink that the amounts overpaid had been waived, Ms Doan requested that her application before this Tribunal be “cancelled” (refer earlier).

8.      Ms Doan has requested that her application be reinstated because she asserts an entitlement to a benefit between 9 November 2004 and 12 March 2005 which has not been paid.

9.      The papers lodged with the Tribunal by the respondent confirm:

(i)        a decision was made to cancel benefits from 1 March 2004;

(ii)       this was the decision reviewed and affirmed by the SSAT;

(iii)Centrelink subsequent to the SSAT decision raised an overpayment for two discrete periods – 3 March to 4 July 2003 and 1 March 2004 to 8 November 2004;

(iv)the decisions raising an overpayment were not the subject of the SSAT review;

(v)when the overpayments were waived, Ms Doan requested her application in this Tribunal be “cancelled”;

(vi)any entitlement to benefits beyond 9 November 2004 have not been reviewed by the SSAT.  I cannot find any decision made by Centrelink concerning qualification beyond that date.  Until this issue is decided and reviewed by the SSAT, this Tribunal has no jurisdiction.

10.     There was nothing before the SSAT concerning qualifications for benefit for the period 9 November 2004 to 12 March 2005 which is now asserted by Ms Doan.  Because that was not before the SSAT, it is not a matter which is capable of review by this Tribunal.

11. Applications can only be reinstated pursuant to s42A (10) of the Act if an application was dismissed “in error”.  For the above reasons the application was not dismissed “in error” but rather, at Ms Doan’s request

12.     If Ms Doan asserts an entitlement to a benefit beyond 9 November 2004, she should, as was suggested during the hearing on 3 October 2005, approach her local Centrelink Office.  In the event that an adverse decision is made, she is entitled to seek a review of that decision by the SSAT in a new application.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         .....................................................................................
  Personal Assistant

Date of Hearing  3 October 2005
Date of Decision  5 October 2005
Solicitor for the Applicant          Self Represented
Departmental Advocate            Ms K Navarro