Elbehidi v Secretary, Department of Employment

In the matter of Elbehidi v Secretary, Department of Employment, the Federal Circuit Court was asked to review a decision by the Administrative Appeals Tribunal (AAT). The applicant, Mr. Elbehidi, sought a Newstart Allowance after closing his unprofitable pizza business, Pharaoh’s Gourmet Pizza. The Tribunal found that he was not eligible for the allowance because he was not unemployed as per the ordinary meaning of the term under the Social Security Act. The applicant appealed the Tribunal's decision, arguing that he was unemployed due to his business not making a profit. The legal issues before the Court involved the interpretation of the term "unemployed" and whether the Tribunal had the discretion to treat the applicant as unemployed under section 595 of the Act.

The Court considered the ordinary meaning of "unemployed" and noted that the applicant was self-employed, working six days a week in his pizza business. The Court upheld the Tribunal's finding that the applicant was not unemployed as he had work, even though it was not profitable. The Court also addressed the applicant's argument based on his tax returns, concluding that the returns showed he had an income from his business, albeit with losses. The Court further examined whether the Tribunal had discretion under section 595 to treat the applicant as unemployed. It held that the Tribunal was correct in finding that the applicant's self-employment was not occasional or incidental, and therefore, the exercise of discretion was unwarranted.

The Court dismissed the appeal and affirmed the Tribunal's decision. The applicant was not considered unemployed because he was self-employed and worked more than 30 hours per week in his pizza business. The Court also noted that even if the Tribunal had the discretion to treat the applicant as unemployed, it was not exercised in the circumstances of this case. The orders of the Court were that the appeal be dismissed.