Garrett and Secretary, Department of Social Services (Social services second review)

[2022] AATA 4719

Garrett and Secretary, Department of Social Services (Social services second review) [2022] AATA 4719 (30 November 2022)

Division:GENERAL DIVISION

File Number(s):      2022/8087

Re:Andrew Morton Garrett

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Senior Member J Rau SC

Date:30 November 2022

Place:Adelaide

Pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application for review and directs pursuant to s 42B(2) that the Applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal with regard to this matter.

....................[SGND]....................................................

Senior Member J Rau SC

Catchwords

DISMISSAL – Application or proceeding is frivolous and vexatious – section 42B of the AAT Act – Applicant sought review of an AAT1 Decision – Applicant being exempt from complying with job plan for a closed period – application is dismissed with directions

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

Senior Member J Rau SC

30 November 2022

1. In the matter presently before the Tribunal, the Applicant is applying for a second review of the decision made by the AAT Social Services and Child Support Division (“AAT1”) on 21 September 2022.

2. The issue in that case was whether the Applicant was exempt from complying with his job plan for a closed period between 5 April 2022 to 27 June 2022.

   BACKGROUND

3. On 5 April 2022, Centrelink informed the Applicant that a decision had been made that he was not eligible to be exempt from his mutual obligation requirements, because his incapacity to work or to do a suitable activity, was not temporary.

4. The Applicant sought a review of this decision and on the 26 May 2022, and Authorised Review Officer (“ARO”) found that the applicant was exempt from the activity test initial obligation requirements, for the period between 5 April 2022 and 27 June 2022, on the basis of a medical exemption. In simple terms, the Applicant obtained the decision that he was seeking.

5. On 6 June 2022, the Applicant applied to the AAT1 for review of the ARO’s decision. This application was itself unusual, in that the Applicant was ostensibly seeking to disturb the ARO’s favourable decision. It appears that this point was not raised at that time by the Respondent.

6. On 21 September 2022, AAT1 affirmed the ARO’s decision. It accepted that the Applicant would be unable to meet his job plan requirements for the period between 5 April 2022 and 27 June 2022.

7. The Applicant now seeks review of AAT1’s decision in his favour, confirming the ARO’s decision in his favour.

   LEGISLATION

8. The Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”) includes the following relevant provision which is coordinated by the Respondent:

   “(1) The Tribunal may dismiss an application for the 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.

   (2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

   (3)  The direction has effect despite any other provision of this Act or any other Act.”[1]

   [1] Section 42B of the Act.

9. The Respondent seeks an order pursuant to subsection (1) dismissing the application and a direction pursuant to subsection (2).

10. The terms of the direction sought by the Respondent pursuant to section 42B(2) are as follows:

    “The Applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal with regard to this matter.”[2]

    [2] Ibid, s 42B(2) of the Act.

    CONSIDERATION

11. In relation to the application pursuant to section 42B(1), the Applicant seeks to reagitate the question of whether he is entitled to be exempted from compliance with his job plan, for a closed period between 5 April 2022 and 27 June 2022.

12. The Applicant has the benefit of an initial determination in his favour by the ARO and a subsequent confirmation of that by AAT1.

13. Given the fact that the Applicant has been wholly successful in his application, not once but twice, the present proceedings are in the circumstances, frivolous, vexatious, misconceived and/or lacking in substance and would, if permitted to proceed, constitute an abuse of the processes of the Tribunal.

    DECISION

14. In these circumstances, I’m satisfied that it is appropriate to dismiss the present application pursuant to section 42B(1).

15. The second question is what the Tribunal should do in the circumstances of an application now having been made by the Respondent pursuant to section 42B(2).

16. Having regard to the Applicant’s conduct in attempting to agitate these proceedings in circumstances warranting their dismissal under section 42B(1), and having regard to the Applicant’s and the Respondent’s submissions, I have come to the view that it is appropriate for the Tribunal to make a direction under section 42B(2) in the following terms:

    “The Applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal with regard to this matter.”

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

................[SGND].................................

Associate

Dated: 30 November 2022

Dates of hearing:	18 and 26 October 2022
Advocate for the Applicants:	Self-represented
Advocate for the Respondent:	Christian Visser, Services Australia