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

[2024] AATA 3213

Gyory and Secretary, Department of Social Services (Social services second review) [2024] AATA 3213 (24 April 2024)

Division:                  GENERAL DIVISION

File Number(s):      2024/0399

Re:  Atilla Gyory

APPLICANT

And  Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:                  R Cameron Senior Member

Date:  24 April 2024

Place:  Melbourne

Pursuant to section 42(A) 4 of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal dismisses the application.

............[sgd]..................................................

R Cameron Senior Member

Catchwords

DISMISSAL – non-reviewable decision – reasons for application not relevant to reviewable decisions or within jurisdiction of Tribunal.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth).

REASONS FOR DECISION

R Cameron Senior Member 24 April 2024

INTRODUCTION.

1.The applicant lodged an application in the Tribunal on 12 January 2024 (“the application”) seeking review of a decision of the Social Services & Child Support Division of this Tribunal on 15 December 2023 (“the reviewable decision”).

2.The reviewable decision concluded that the applicant’s application for review of a decision made on a date not specified in relation to the scheme for “Compensation for Detriment caused by Defective Administration” was not reviewable by the Tribunal. Accordingly, the application was dismissed pursuant to section 42A (4A) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”).

3.Subsequently, on 11 April 2024, the Tribunal being satisfied that the reviewable decision, the subject of the application, was not further reviewable by the Tribunal, dismissed the application under section 42A (4) of the AAT Act.

4.The applicant, as he was entitled to do, has sought reasons in writing for the decision of 11 April 2024 dismissing the application. These reasons are produced in response to that request.

SOME OBSERVATIONS ON THE APPLICATION.

5.It is appropriate to make some observations concerning the content of the application.

6.Firstly, nowhere in the application is a decision of the respondent or the Department identified for which the applicant ultimately seeks review. This is surprising indeed.

7.In “Section 3-Reasons for the Application” 10 grounds are relied upon to contend that the Member of this Tribunal in making the reviewable decision “erred”. Those grounds are referred to in their entirety for their full force and effect. However, some reference should be made to several of them and some of the references to conduct on the part of the respondent Department.

8.Several of the reasons relied upon by the applicant in Section 3 of the application are plainly wrong. For instance, it is contended that the member erred in maintaining that the agency’s decision (which decision was not identified) was made under the CDDA, was not made under Social Security Law and the decision was not made by the agency.

9.Other reasons furnished are clearly not within the Tribunal’s jurisdiction. For instance, in ground 6 it contends that the Member making the reviewable decision further erred “in not condemning” the conduct identified therein. A similar ground is contained in paragraph 6 “and not condemning the agency”. Clearly, the Tribunal in determining this application is not conducting judicial review of the reviewable decision. Additionally, it does not have jurisdiction to “condemn” a decision maker. It sits in administrative review in the shoes of the original decision maker.

10.In short, it is not possible to discern from the application what decision of the respondent Department review is sought. Further, much of the relief sought by the applicant is not within the Tribunal’s jurisdiction.

THE DOCUMENTARY MATERIAL LODGED BY THE APPLICANT WITH THE TRIBUNAL AND SUPPORT OF THE APPLICATION AND WHAT IT REVEALS.

11.On 30 January 2024, in support of the application, the applicant lodged seven documents. Those documents are as follows:

(a)61 pages of documents commencing with an email of 23 August 2023 apparently sent by the applicant to the Registrar of this Tribunal in Melbourne. Unfortunately, there is no index or other guide to these documents to assist the Tribunal to understand or follow them. Amongst other things, this bundle of documents included numerous emails sent by the applicant to a variety of recipients together with their responses. There are a series of photographs of a person, together with sundry screenshots of various documents, including documents, such as standard Centrelink forms, completed by the applicant. It should also be observed, that amongst these documents was a “Compensation Application” completed by the applicant on 17 August 2023. Other documents include an email from the office of a Member of the House of Representatives Mr Zimmerman to the applicant and a letter of 29 June 2012 addressed to Minter Ellison lawyers, who appeared to be acting for the applicant at that time, from the Australian Health Practitioner Regulation Agency. Having carefully read this bundle of documents, which were not easy to follow, the Tribunal could find no decision made by the respondent Department which is possibly reviewable by it.

(b)6 pages of documents, under cover of an email of 30 January 2024, with the subject “2024/0399 Evidence #3…FW 3 Correspondence from AAT”. An examination of that documentation does not reveal the existence of any decision made by the respondent Department that would otherwise be reviewable. At best, there are several emails that contain material on the nature of submissions. It is not otherwise at all clear, what if anything this document establishes.

(c)15 pages under cover of an email of 30 January 2024 with the subject “Re- 2024/0399-Re: Gyory and Secretary, Department of Social Services-General Correspondence”. Insofar as one can properly comprehend and construe that material, it largely comprises of contentions or submissions. Those submissions refer to, amongst other things, “a so-called “decision” by the Agency which is in dispute was clearly made by the Agency, under Social Security Law, as they made clear themselves.”1 Once again, within this bundle of documents there is no document originating from the respondent Department containing a decision that could possibly be reviewable by this Tribunal.

1 This reference is at page 4 of the bundle of documents.

(d)A document comprising 3 pages headed “Notice Acknowledging Facts and Issues”. That document contains some extremely inflammatory and emotive comments that make very extreme allegations of outrageous conduct by various parties, including that “AHPRA is a Prime Perpetrator of the Severe and Ongoing Violence, State Terror and crimes…. Likewise regarding (a Senator and Government Minister, who the Tribunal shall not name) and the ACT Government”. Similarly, to the other documents produced and referred to above, there is no document originating from the respondent Department containing a decision that could possibly be reviewable by this Tribunal. Indeed, no specific decision is identified in that document.

(e)A blank “Compensation Application” prepared by Services Australia. The form is used to claim compensation from Services Australia for loss or injury that may have been suffered by a claimant as a result of negligence or defective administration by that agency. Clearly, it does not assist the applicant or identify a decision that is in any way reviewable by this Tribunal.

(f)A screenshot of the “myGov” Internet homepage with a reference to the Compensation Application form (SS509). Other than to observe that this document does not assist the applicant or identify a decision reviewable by this Tribunal nothing further arises from this document.

(g)Finally, a screenshot of a “Compensation Application” form from Services Australia. For the same reasons referred to with respect to the previous document this document does not assist the applicant.

CONSIDERATION.

12.Section 42A (4) of the AAT Act confers a discretion on the Tribunal to dismiss an application without preceding to the review of the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.

13.The Tribunal with respect to this application is satisfied that “the decision” (if indeed there is one) is not reviewable by the Tribunal. Put another way, the Tribunal is satisfied on the material before it that the application is incompetent. It does so for several reasons.

14.It should be recorded that in paragraph 2 of the reviewable decision of a Member of this Tribunal it is stated, amongst other things that, “Centrelink had told the AAT that the decision in relation to which Dr Gyory sought review, was not reviewable by the Social Services & Child Support division of the AAT”. If indeed, there is a decision which has been made by the respondent Department, this conclusion still is the case.

15.Further, for the reasons outlined above, particularly with respect to the content of the application and the extensive documentation that the applicant has lodged with the Tribunal, there is no evidence before it which establishes that any decision, let alone a decision reviewable by this Tribunal, has been made by the respondent Department.

16.The applicant has had ample opportunity to provide to the Tribunal evidence of a decision which is reviewable by this Tribunal, together with the section or sections from an appropriate Active Parliament conferring jurisdiction on this Tribunal to review, having been made by the respondent Department. Presumably, if the applicant was in possession of a decision of this type, particularly if it is in writing, he would have lodged it with the Tribunal.

17.Finally, by way of completion, the respondent as a model litigant, had a decision been made by it which was otherwise reviewable by this Tribunal which affected the applicant, one would have expected it to have been produced. It has, as noted above, advised to the contrary. The Tribunal in the light of all the other matters addressed above is also entitled to take this fact into account in deciding whether to exercise the discretion conferred upon it by s 42A (4) of the AAT Act. It is a factor that is also relied upon in reaching the state of satisfaction required by that section.

CONCLUSION AND DECISION.

18.For all these reasons, the Tribunal concludes that there is no decision made by the respondent Department that is reviewable by it. Having reached this conclusion the tribunal is satisfied that it is appropriate to dismiss the application without proceeding to review under s 42A (4) of the AAT Act.

I certify that the preceding 18 (eight- teen) paragraphs are a true copy of

the reasons for the decision herein of R Cameron, Senior Member

.........................[SGD]........................

Associate

Dated: 24 April 2024