Girouard and Secretary, Department of Social Services (Social services second review)
[2023] AATA 669
•3 April 2023
Girouard and Secretary, Department of Social Services (Social services second review) [2023] AATA 669 (3 April 2023)
Division:GENERAL DIVISION
File Number: 2023/1226
Re:Vaughan Girouard
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member R West
Date:3 April 2023
Place:Melbourne
The Applicant’s application for a Stay Order pursuant to section 41 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) is refused.
...............................[SGD]........................................
Member R West
Catchwords
PRACTICE AND PROCEDURE – request for stay order – social security – disability support pension (DSP) – decision to deny indefinite portability of DSP – application to stay decision pending appeal – utility of a stay – factors relevant to the granting of a stay – stay application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)Cases
Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority, Re (1993) 31 ALD 380
Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146
Merage Group Pty Ltd and Australian Skills Quality Authority [2019] AATA 713
Scott and Australian Securities and Investments Commission, Re [2009] AATA 798
Wildlife Protection Association of Australia Inc and Minister for the Environment and Heritage [2006] AATA 29
WorldAudio Limited and AusCoast Broadcasting Pty Limited and Australian Communications and Media Authority [2006] AATA 177
REASONS FOR DECISION
Member R West
3 April 2023
Background
The Applicant was first granted a disability support pension (DSP) in July 2002 and, with some short breaks, has continued to be eligible for and to receive the DSP since that time. His last job capacity assessment was conducted on 13 October 2014 when he was assessed as having a severe impairment resulting from his conditions of autism and anxiety.
During the period 2018-2019 the Applicant travelled to the Philippines and returned on several occasions.
On 28 February 2019 a pathology report confirmed that the Applicant also has Klinefelter syndrome.
On 27 June 2019 the Applicant requested that he be granted indefinite portability of his DSP[1] as he intended to again travel to the Philippines. Under the provisions of the Social Security Act 1991, a recipient of the DSP is entitled to be paid the DSP for up to 28 days per year while outside Australia (portability period). The portability period may be extended under s 1218C if certain conditions are satisfied or it may be made unlimited if the conditions under s 1218AAA are satisfied.
[1] T37 at p.195.
On or about 8 December 2019 the Applicant departed Australia and travelled to the Philippines and took up residence on a remote island there. He has remained in the Philippines continuously since that date.
On 6 January 2019 the portability of the Applicant’s DSP was suspended,[2] but portability was subsequently granted for various specific periods up to 1 September 2022.
[2] T37 at p.258.
On 25 August 2022 Services Australia rejected the Applicant’s request for indefinite portability and for a further extension of portability.[3] The Applicant sought an internal review of this decision and on 2 September 2022 Services Australia agreed to pay the Applicant’s DSP pending the internal review.[4]
[3] T37 at p.239.
[4] T37 at p.244; T38 and p.309.
On 7 October 2022 an Authorised Review Officer (ARO) affirmed the decision to reject the Applicant’s request for indefinite portability but granted an extension of portability to
31 January 2023 (ARO Decision).[5] The Applicant sought review of the ARO Decision.[5] T32 at p.159.
On 27 January 2023 the Social Services and Child Support Division of this Tribunal affirmed the ARO Decision (Reviewable Decision).[6]
[6]T2 at p.5.
On 10 February 2023 the Applicant’s DSP was suspended for lack of portability.[7]
[7] T35 at p.175.
By application dated 19 February 2023 (Review Application), the Applicant applied for review of the Reviewable Decision.
On 24 February 2023 the Applicant lodged with the Tribunal a Request for Stay Order (Stay Application) seeking an order granting the Applicant indefinite portability of his DSP until he arrives back in Australia.
The Tribunal conducted a hearing by teleconference on 27 and 29 March 2023 in relation to the Stay Application. The Applicant was represented by his mother Ms Carla Smith. The Respondent was represented by Mr Will Sharpe, a solicitor with HWL Ebsworth.
In considering the Stay Application, the Tribunal has had regard to the documents produced to the Tribunal for the purpose of the Review Application pursuant to s 37 of the AAT Act
(T Documents), the documents lodged by Ms Smith on 23 March 2023, the written submissions of the Respondent and the oral submissions of Ms Smith.Principles
The power to impose a stay is contained in s 41(2) of the AAT Act which provides:
The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
The Applicant’s representative stressed in her submissions that the Applicant was in a very vulnerable position being isolated on a remote island in the Philippines suffering a severe impairment and with other health and psychological difficulties. She explained that there were various logistical and immigration issues to be resolved before he could return to Australia. She said that she needed to travel to the Philippines to assist him to do so but she had her own health problems and it would likely take at least three months to enable the Applicant to return to Australia. She explained that, in the interim, the suspension of the Applicant’s DSP had caused him financial hardship and that she had limited financial capacity to support him. She asserted that the Applicant faced homelessness.
The Tribunal has no reason to doubt that the Applicant faces a grave situation and that the suspension of his DSP represents a serious threat to his welfare. These issues may be matters which will be relevant in the final assessment of the Applicant’s Review Application. However, the issue currently before the Tribunal is the question of whether a stay should be granted under s 41(2) of the AAT Act.
The decision under review is the decision of the Social Services and Child Support Division of the Tribunal in the first review affirming the decision of the ARO to:
(a)extend the portability period under s 1218C to 31 January 2023; and
(b)to refuse to grant indefinite portability under s 1218AAA.
Section 41(2) provides for the Tribunal to stay the whole or such part of a decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
The Tribunal has determined that the following considerations may be taken into account when determining whether to exercise the power generally to grant a stay:
1The prospects of success;
2The consequences for the applicant of the refusal of a stay;
3The public interest;
4The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not;
5Whether the application for review would be rendered nugatory if a stay were not granted; and
6Other matters that are relevant include the length of time that the ban has been in place already and the gap between the day of the application and the day of the hearing of the application.[8]
Such principles were stated in Re Scott and Australian Securities and Investments Commission[9] and referred to by Cowdroy DP in Merage Group Pty Ltd and Australian Skills Quality Authority.[10]
[8] Merage Group Pty Ltd and Australian Skills Quality Authority [2019] AATA 713 at [27].
[9] [2009] AATA 798.
[10] [2019] AATA 713 at [28] and the cases there cited. See also Wildlife Protection Association of Australia Inc and Minister for the Environment and Heritage [2006] AATA 29 and WorldAudio Limited and AusCoast Broadcasting Pty Limited and Australian Communications and Media Authority [2006] AATA 177.
Significantly, before a stay is granted the Tribunal must determine whether it is “desirable” to do so after taking into account the interests of any persons who may be affected by the review. In Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority, the Tribunal said that the word 'desirable' connotes a 'positive aspiration' and that it is 'something worthy of achievement' rather than 'merely advisable'.[11]
[11] (1993) 31 ALD 380 at [47].
While the provisions of s 41(2) are not to be construed narrowly,[12] the power under s 41(2) is conferred on the Tribunal for the limited purpose of staying or otherwise limiting the operation of the decision under review.
[12] Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146 at [34].
In this case the decision to extend temporary portability to 31 January 2023 has ceased to operate by virtue of its own terms. If that part of the decision were to be stayed the stay order would have no actual effect since the decision has no operation beyond
31 January 2023.The part of the decision refusing to grant indefinite portability is a negative decision. The effect of a stay on a negative decision to refuse to grant an entitlement has no practical effect since the party subject to the decision has no entitlement to be restored by removing the effect of the decision. This can be contrasted with a situation where a person has a pre-existing entitlement which is removed by a decision. Then a stay on the decision would re-enliven the person’s entitlement pending the hearing of the appeal.
In the Applicant’s case, if the Tribunal were to grant a stay on the Reviewable Decision, the Applicant would be restored to the position he enjoyed prior to the ARO decision, namely with no entitlement to portability beyond 1 September 2022.
The form of order sought by the Applicant is in effect an interim order that he be granted portability pending his return to Australia. This could not be achieved by the exercise of the power to stay the operation of the decision under review pursuant to s 41(2) but instead would require the Tribunal to exercise the power available to the Respondent under s 1218C to make a new portability determination. The Tribunal does not have such power in the context of the current proceedings.
Having regard to these matters the Tribunal is satisfied that there is no utility in granting the Applicant a stay of the Reviewable Decision under s 41(2) and accordingly the Stay Application should be refused.
Decision
The application for a Stay Order, pursuant to section 41 of the AAT Act, is refused.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Member R West.
.............................[SGD]...........................................
Associate
Dated: 3 April 2023
Dates of interlocutory hearing: 27 and 29 March 2023 Advocate for the Applicant: Carla Smith Advocate for the Respondent: Will Sharpe Solicitors for the Respondent: HWL Ebsworth Lawyers
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