Dranichnikov v Centrelink

[2002] FCA 1361

FEDERAL COURT OF AUSTRALIA

Dranichnikov v Centrelink [2002] FCA 1361

SERGEY DRANICHNIKOV AND OLGA DRANICHNIKOV v CENTRELINK AND BRIAN McKENNA in his capacity as a Centrelink Recovery Officer

Q 148 OF 2002

DOWSETT J
25 OCTOBER 2002
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 148 OF 2002

BETWEEN:

SERGEY DRANICHNIKOV
FIRST APPLICANT

OLGA DRANICHNIKOV
SECOND APPLICANT

AND:

CENTRELINK
FIRST RESPONDENT

BRIAN McKENNA in his capacity as a Centrelink Recovery Officer
SECOND RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

25 OCTOBER 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        Paragraph 2 of the amended application for an order of review be struck out.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 148 OF 2002

BETWEEN:

SERGEY DRANICHNIKOV
FIRST APPLICANT

OLGA DRANICHNIKOV
SECOND APPLICANT

AND:

CENTRELINK
FIRST RESPONDENT

BRIAN McKENNA in his capacity as a Centrelink Recovery Officer
SECOND RESPONDENT

JUDGE:	DOWSETT J
DATE:	25 OCTOBER 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In the present application for judicial review, the applicants seek review of three separate decisions, one allegedly made on 16 August 2002, one allegedly made on 10 September 2002, and one allegedly made on 28 August 2002.  At the outset of proceedings today, counsel for the respondents applied to strike out par 2 of the amended application (relating to the “decision” of 10 September) upon the basis that it was clearly demonstrable that there was no decision against which any application for review could be made.  I initially proceeded upon the basis that I would dispose of that application first.  However, at some stage, it seemed to me that it might be better if we were to allow the parties to make full submissions as to the merits of the application for review.  That was an unfortunate decision on my part.  It turned out that the applicants wished to make quite extensive submissions concerning the application of various treaties to the domestic law of Australia.  It struck me, as I listened to the submissions, that it was really not possible to apply those arguments to the “decision” of 10 September simply because of the patent absence of any substance on which they could operate.  In the interests of saving time, I therefore thought it appropriate to revert to my original position of determining separately the question of whether or not there was a decision which could be reviewed.  I propose to dispose of that question now.  The relevant paragraph of the application is as follows:

   The decision of Mr P. Salter, Centrelink Customer Office made on 10 September 2002 that the First Applicant and the Second Applicant are not eligible to any payments or concession through Centrelink, because the application for a Protection Visa of Sergey Dranichnikov has not been finally determined. 

2. This refers to a series of events which occurred on 10 September.  They commenced when Mrs Dranichnikov faxed a letter of 10 September 2002 to the Centrelink office.  In that application, she set out the financial and immigration circumstances of herself and her family, commencing the letter with the words:

   I seek from your office the financial or some other assistance due to following circumstances.

3. At the end of the letter she said:

   Under the above circumstances, I found myself and our family in the extremely hard financial situation.  Therefore, may I ask your agency for any benefits for our family: Special Benefit, or Sickness Allowance or Health Care Card or Parenting Payment or Rental Assistance or Family Tax Benefit (for my husband) or Rent Assistance or other payments or benefits applicable to the above circumstances.

4. On the same day, Mrs Dranichnikov went to the office of Centrelink and, referring to her letter, asked what the outcome was or perhaps, for advice;  it is not entirely clear which.  She was told that because of her visa status, she was not entitled to relief.  She apparently required reasons in writing or a written decision and so wrote out and handed to the staff another letter, referring to her earlier letter.  The earlier letter is exhibit PFK 16 to Mr Kanowski’s affidavit.  The later letter is annexure D to the applicants’ joint affidavit filed herein by leave today.

5. As a result, the relevant officer of the department prepared a letter which appears as exhibit PFK 17 to Mr Kanowski’s affidavit and as annexure F to the joint affidavit of the applicants filed on 16 October 2002.  It is to this effect:

   You have requested a letter about possible payments or concessions that you or your husband may be entitled to from Centrelink. 

   You and your husband both have bridging visas sub class 010.  Under Social Security Law, neither you or your husband qualify for any payments or concessions from Centrelink while you are the holders of these visas. 

   Please advise if you or your husband are granted a different visa sub class to test you or your husband’s eligibility to any payments or concessions with that visa. 

   This is an information notice given under the Social Security Law. 

   If you would like to talk about this letter, please phone us on the number at the top of the letter.

6. Subsequently, application forms for various classes of financial support were sent to the applicants.  I am told that they have made applications for financial relief, which applications have not yet been resolved.  Nonetheless, and for reasons which are very difficult to understand, the applicants have sought review of the alleged decision of 10 September.  It seems to me that neither letter written by Mrs Dranichnikov on the 10th could properly be characterised as an application for any specific benefit.  They were rather inquiries for information.  Certainly, the replies appear to be attempts to provide information.  

7. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337, Mason CJ said:

   That answer is that a reviewable ‘decision’ is one for which provision is made by or under a statute.  That will generally but not always entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.  A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision might accurately be described as a decision under an enactment.  Another essential quality of a reviewable decision is that it be a substantive determination. 

8. At one stage in proceedings, the applicants suggested that there had been a decision to refuse to give Mrs Dranichnikov an application form for appropriate financial relief.  That raises the question of how one would identify the benefit to which such a form should have related.  In any event, in her evidence, Mrs Dranichnikov did not really suggest that she had asked for a form, but rather that she had asked for advice as to what payments might be available to her.  In my view, a request for advice cannot be characterised as an application pursuant to which a decision must be made under a statute.  I am of the view, that no decision was made on 10 September 2002 which could be the subject matter of judicial review. 

9. The present application also seeks review of conduct associated with a decision pursuant to s 6 of the Administrative Decisions Judicial Review Act 1977 (Cth). I cannot see that such an application takes the matter any further, at least as concerns the decision of 10 September. In my view, there is no subject matter to which the review sought in par 2 of the application can attach. That paragraph should be struck out.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             5 November 2002

The First Applicant appeared in person.
The Second Applicant appeared in person.
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	25 October 2002
Date of Judgment:	25 October 2002