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

Gyory and Secretary, Department of Social Services (Social services second review) [2024] AATA 67 (25 January 2024)
Division:GENERAL DIVISION
File Numbers: 2023/8095, 2023/8097
Re:Attila Gyory
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal: Senior Member D. J. Morris
Date:25 January 2024
Place:Melbourne

1.Pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Tribunal dismisses applications 2023/8095 and 2023/8097 because the Tribunal is satisfied the applications are misconceived.
2.The application for a stay order brought by the Applicant on 12 January 2023 in relation to applications 2023/8095 and 2023/8097 under s 41(2) of the AAT Act is refused.

.........................[SGN]...............................................
Senior Member D. J. Morris
CATCHWORDS
PRACTICE AND PROCEDURE – application by the Respondent for applications to be dismissed – submission from respondent that applications have no reasonable prospect of success – discretionary powers in s 42B of AAT Act – utility of applications – relief that is available to applicant – whether applications for Second Review being brought for collateral purpose – grievances with respondent’s department – applicant concedes First Review decisions were correct – applications dismissed as misconceived.
PRACTICE AND PROCEDURE – Tribunal held hearing to consider application for dismissal – decision reserved – applicant requested stay of proceedings – reasons for stay request relate to issues not relevant to reviewable decisions or within jurisdiction of Tribunal – abuse of process of Tribunal - stay request refused as rendered nugatory by dismissal of application.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Tribunals Amalgamation Act 2015 (Cth)
CASES
Williams and Australian Electoral Commission and the Greens (Party Joined); Re: (1995) 38 ALD 366
REASONS FOR DECISION
Senior Member D. J. Morris
25 January 2024
INTRODUCTION

On 21 September 2023, the Social Services and Child Support Division of this Tribunal (‘First Review’) made two decisions in relation to applications brought by Dr Gyory. The first decision was to affirm a decision made by an Authorised Review Officer (‘ARO’) of Services Australia (also called Centrelink), an agency of the Department of Social Services (‘the Department’) on 3 August 2023 to reject Dr Gyory’s claim for special benefit. This is application 2023/8097.
The second decision made at First Review was to set aside a decision of an ARO on 10 July 2023 to suspend Dr Gyory’s Jobseeker Payment and to substitute a new decision that it should not have been suspended from 3 May 2023. This is application 2023/8095.
Dr Gyory applied for Second Review by the General Division of the Tribunal of these First Review decisions, as he is entitled to do.
On 13 November 2023, the Respondent contacted the Tribunal and advised that the Secretary of the Department would be seeking a dismissal hearing. On 15 November 2023 the Respondent advised the Tribunal that the grounds for seeking dismissal would be that, under s 42B of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), the Respondent considered that Dr Gyory’s applications have either no prospect of success or are lacking in substance.
On 1 December 2023, the Respondent lodged written submissions seeking dismissal. On 5 December 2023, the Applicant lodged written submissions with the Tribunal.
HEARING ON DISMISSAL APPLICATION
A hearing was held at the Tribunal’s Melbourne Registry on 6 December 2023. Dr Gyory represented himself and made submissions. Mr Tim de Uray, Deputy General Counsel, Services Australia, represented the Respondent. At the conclusion of the hearing, the Tribunal reserved its decision.
On 12 January 2024 Dr Gyory lodged an application with the Tribunal requesting, under s 41(2) of the AAT Act, that the First Review decision be stayed in operation. On 19 January 2024, the Tribunal advised the Applicant that as the reserved decision regarding the request for dismissal was imminent, consideration of his request for a stay order would be incorporated into that reserved decision.
BACKGROUND
Special benefit claim
Dr Gyory applied for special benefit on 13 January 2020. On 31 January 2020, an officer of Services Australia rejected the claim. There was initially no internal review of this decision but subsequently, on 3 August 2023, an ARO who is an officer of the Department not involved in the original decision, reviewed and affirmed the rejection decision.
Suspension of Jobseeker Payment
Dr Gyory was in receipt of Jobseeker Payment and on 8 May 2023 an officer of Centrelink decided to suspend that payment from 3 May 2023. On 10 July 2023, an ARO affirmed that decision.
FIRST REVIEW
It is useful to set out some of the factual background which was in the First Review decision and was not in contest between the parties. Section 729 of the Social Security Act 1991 (‘the Act’) provides that a person is qualified for special benefit when the Secretary of the Department determines that it should be granted. Special benefit is a discretionary payment which is available to a person who is not able to receive any other income support payment (see s 729(2)).
The First Review referred to Department records which show that Dr Gyory was assessed for Newstart Allowance (now called Jobseeker Payment) on 26 February 2020 and was granted Newstart Allowance on 4 March 2020. The Tribunal Member accepted that Dr Gyory was unemployed on 13 January 2020, the day he applied for special benefit, and that he otherwise met the Newstart Allowance qualifications set out in s 593 of the Act.
The First Review found that Centrelink correctly exercised the discretion not to pay Dr Gyory special benefit on the basis that another social security benefit was payable to him at the relevant time and, accordingly, affirmed the decision to reject the Applicant’s claim for special benefit.
In regard to the suspension of Jobseeker Payment in May 2023, the First Review noted:
On 9 May 2023, Centrelink wrote to Dr Gyory to state that his jobseeker payment had been stopped from 3 May 2023 because he did not go to, or was late for, an appointment [arranged] by his provider on 4 May 2023. The letter noted that Dr Gyory needed to contact his employment services [provider] to discuss his absence and that, if he did not make contact, his payment may be cancelled. The letter was addressed to “Dr Attila [redacted] Gyory, No Fixed Address, Melbourne Vic 3000.”
The learned Member noted that Dr Gyory’s Jobseeker Payment was restored on 16 May 2023 and that he received his regular payment on 17 May 2023. Accordingly, while the payment was suspended for a short period, there was no practical impact on Dr Gyory’s payments because they were restored before the next date they were due to be paid.
While the learned Member did not accept that an online diary had not been set out for Dr Gyory, she did accept that the Applicant was unaware of the appointment that had been made for him (and that missing the appointment without valid excuse triggered the suspension of his benefit). Given the particular circumstances of the Applicant, the First Review found that it was appropriate that the discretion available in s 42AF(1) of the Social Security (Administration) Act 1999 be exercised such that Dr Gyory’s Jobseeker Payment should not have been suspended, even though he did not attend the appointment arranged for him on 4 May 2023. The First Review therefore set aside the decision to suspend Jobseeker Payment.
SUBMISSIONS BY DEPARTMENT
Mr de Uray told the Tribunal that the Respondent agreed, in relation to the suspension of the Jobseeker Payment, that the First Review was correct – it should not have been suspended as letters could not have reached Dr Gyory because Centrelink did not have his address.
Mr de Uray noted that Dr Gyory in his submissions has sought remedies which are outside the jurisdiction of the Tribunal, such as compensation, writs of certiorari and mandamus and writs of prohibition. Mr de Uray noted that the Applicant had indicated he was seeking compensation to the tune of $1 million and that various issues Dr Gyory seeks to ventilate relating to how he perceives he has been treated by the Department and its agencies cannot be determined by the Tribunal.
Mr de Uray submitted that the Respondent’s view was that the Applicant had very limited prospects of success in regard to challenging the special benefit decision, and the Jobseeker Payment suspension decision, which was in his favour.
SUBMISSIONS BY APPLICANT
In his application for Second Review, the Applicant sought:
A writ of certiorari ‘in regard to records Centrelink kept purporting to be about the Applicant herein, except as a record of the misconduct of Centrelink and its linked agencies herein;
A writ of prohibition ‘preventing Centrelink from referring to those “records;”
That Centrelink pay, or cause to be paid to the Applicant within 10 (ten) days, the sum of $1 million dollars.
Dr Gyory said he was forced to apply for Newstart Allowance (now Jobseeker Payment). He said, “I am not concerned about the special benefit, that is way in the past.”
Dr Gyory said in respect of the submissions from the Respondent that he has no real prospect of success, a hearing of the substantive matter would determine that.
He told the Tribunal:
“I am just cleaning up the mess of the last four years. I apologise for the form of the orders I sought. I did include in my submissions orders that have the effect of writs of certiorari, mandamus and prohibition. The First Review underestimated the number of times and repetition and aggressive nature of the Department. The First Review was right but not nuanced enough to make the Department realize what it was doing was wrong.”
(Emphasis added)
In response to a direct remark from the Tribunal that there was no power for the Tribunal to award compensation, Dr Gyory said he had not made a claim under the Commonwealth’s Scheme for Compensation for Detriment caused by Defective Administration (‘CDDA’). In response to a direct question from the Tribunal about whether he has a telephone, Dr Gyory responded, “Of course not.”
CONSIDERATION: SHOULD MATTERS BE DISMISSED?
Dr Gyory was born in Australia in 1959 and is an Australian citizen. He told the Tribunal that he formerly practised as a medical practitioner. He left Australia in April 2012 and returned in November 2019. He told the Tribunal that he went to Hungary and intended only to be absent for a short period, but the actions of the ACT Government and the Australian Health Practitioner Regulation Agency (‘AHPRA’) caused him to be ‘exiled,’ so he was away from Australia for a much longer period.
Dr Gyory told the Tribunal that, while he was abroad, his Australian passport expired. He said he contacted the Australian Embassy in Vienna about how to renew it, but said he did not get a response.
Dr Gyory then said he applied for and was granted a Subclass 651 visitor visa for the period 16 October 2019 to 9 February 2020. As mentioned above, he applied for special benefit on 13 January 2020.
It is passing strange to the Tribunal that Dr Gyory, being an Australian citizen by birth, was granted any class of visa to re-enter Australia. But he was, and he travelled back to Australia on a Hungarian passport with the visa. Unfortunately, the consequence of this error was that it led an ARO into deciding that a Subclass 651 visitor visa does not provide Australian residence status and that Dr Gyory was not entitled to any payments whilst the holder of it. In a vacuum, that is a correct conclusion about the status of a holder of such a visitor visa. But in this case because of the administrative error in the Department of Home Affairs (maybe unknowingly) issuing such a visa to an Australian citizen, it had a consequential effect of misleading the ARO about the migration status of Dr Gyory.
Mr de Uray rightly told the Tribunal that it was not in contest that the Secretary accepted Dr Gyory has always been an Australian citizen.
However, this early error also had an effect in relation to the claim for special benefit because Dr Gyory, being a citizen with the right to permanently reside, and who was then unemployed, was entitled to another social security payment. He in fact applied for Newstart Allowance on 26 February 2020 and after the usual one-week waiting period he was paid that benefit from 4 March 2020. On 20 March 2020, all; recipients of Newstart Allowance on 20 March 2020 were transferred to Jobseeker Payment.
Section 42B of the AAT Act provides:
Power of Tribunal if a proceeding is frivolous, vexatious, etc.
(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.
Before 2015, this part of the AAT Act gave a discretionary power for an application to be dismissed if the Tribunal was satisfied that it was a vexatious application. In the Tribunals Amalgamation Act 2015 (Cth), the Parliament amended this section and expanded the range of reasons that might be cited in terms of a discretionary dismissal. The Explanatory Memorandum in relation to the Tribunals Amalgamation Bill relevantly stated:
This amendment would modernise the language of existing paragraph 42B(1)(a) and clarify the policy surrounding the grounds for dismissal. The proposed new grounds are similar to dismissal powers available to other bodies. For example Rule 26.01 of the Federal Court Rules 2011 allow for summary judgment on matters which have no reasonable prospect of success, or are an abuse of process. Similarly, section 47 of the Queensland Civil and Administrative Tribunal Act 2009 provides for dismissal of applications where the application is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. These powers would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.
This explanation of the range of reasons was desirable, because applicants can bring perfectly reasonable applications to the Tribunal which, because of a change in the position of a party, or some other supervening event, no longer have substance. It gave the Tribunal wider scope to consider whether a matter should be dismissed, depending on the particular circumstances. For a proceeding to be to be ‘vexatious,’ there needs to be, in the Tribunal’s view, a mental element on behalf of the party bringing it.
In this matter, it would appear from his written and oral submissions that Dr Gyory has a long-standing dispute with the ACT Government and with AHPRA. He said that it was their actions which caused him to be ‘displaced’ in Hungary from 2012 to 2019. The Tribunal notes this, but it is not relevant to the matters which I must consider.
The Tribunal notes the pivotal oral submission of Dr Gyory that he considered that the First Review decision was ‘right’ but ‘not nuanced.’ The reason the Tribunal gleans he considered it was not ‘nuanced’ was that the Member at First Review did not offer commentary on other treatment he says he had been subjected to by Centrelink.
Where an Applicant accepts that a First Review decision was correct, but has lodged a Second Review application because he felt the Member should have expressed the decision differently, the Tribunal is inclined to the view that such an application as misconceived. Some might submit it is frivolous, but I do not make that finding because, again, such a conclusion must be based on an assessment of a mental element or an intention on the part of the Applicant.
I accept that Dr Gyory has been frustrated by his dealings with Centrelink but, as I have set out above, it was not all Centrelink’s fault. Purely on the face of it, without knowledge of Dr Gyory’s citizenship and given he had applied for a visa on his Hungarian passport, the officers of Centrelink proceeded down a path which categorised his entitlement (or not) for special benefit.
But the fact remains that the officer, as delegate of the Secretary, was correct to reject the claim for special benefit. The note to s 729(1) of the Act clearly states:
Special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment.
And ss 729(2)(a) and (b) of the Act restrict the Secretary to granting special benefit only to persons where no pension or benefit is payable to the person.
Dr Gyory was, in fact, eligible for another benefit, and began receiving it on 4 March 2020.
In regard to the First Review’s other decision, where the learned Member set aside the short suspension of the Applicant’s Jobseeker Payment for not attending an appointment, there was no effect on Dr Gyory because the suspension was imposed, and was lifted, between regular payments to him which were not disrupted. This short suspension was then set aside at First Review.
The Tribunal finds, therefore, that the First Review decisions were, as the Applicant concedes and the Respondent submits, correct. The claim for special benefit was correctly rejected because Gr Gyory was not eligible for it The suspension of Jobseeker Payment was lifted so as to have no practical effect on Dr Gyory, and so there is no utility in him seeking a Second Review of that decision, which was in his favour.
The Tribunal has held in the past that it is not proper for a person to bring a matter to the Tribunal for a collateral purpose. The leading case is Re: Williams and Australian Electoral Commission and the Greens (Party Joined) (1995) 38 ALD 366 (‘Williams’). In Williams, the Tribunal’s President, Justice Mathews, and two judicial Deputy Presidents, Justices Hill and Beaumont, constituted the Tribunal. Relevantly, Their Honours said, at [40]:
In this case the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect. Nor is there any reputation at stake or “face” to be saved. The interest which gave the applicant standing to commence the proceedings has long ceased to exist. He has no legitimate interest in pursuing them further. Accordingly, in our opinion, whilst the proceedings were not instituted vexatiously, they have become vexatious … It would impose unnecessary expense and hardship upon the respondent and the Greens if the case were to proceed further. Accordingly, we consider that the application should be dismissed as requested.
In this case, the Tribunal might conclude that the collateral purpose that Dr Gyory is seeking a Second Review (when he says he agrees with the First Review decisions) is that he is frustrated by the way he says he has been treated in his interactions with Centrelink. While that may be accepted, that does not have a material effect on either of the decisions under review.
The purpose of a Second Review should not be, in this case, where the Applicant concedes the First Review findings were ‘right,’ to allow him to have ‘another go’ at the Respondent’s Department in order to vent frustration. If the Applicant feels that he has been treated improperly in terms of public administration, there are avenues available to him to approach the Commonwealth Ombudsman or make an application under the CDDA. In relation to the latter, in spite of what the Applicant submitted, before the Tribunal was a letter (sent by email to Dr Gyory) from a case manager responsible for the CDDA dated 16 October 2023, so it would appear the Applicant has indeed made a claim in this respect and had been invited that day to discuss a ‘Preliminary Statement of Facts and Evidence’ with an officer.
STAY REQUEST

On 12 January 2024 Dr Gyory lodged a request for a stay order with the Tribunal. In the section headed Briefly describe the decision, he wrote:
Persisting and ongoing Decision to continue illegal and abusive linkages to so-called “Provider” over 4 years; AND to d.e.w.r. since May 2023; AND to Abuse and Threatening in person.
In Section 3 of the form, which is headed Describe the order you want, he wrote:
– SUSPEND {illegal, fraudulent and abusive} linkage to so-called “Provider;”
– SUSPEND {illegal, fraudulent and abusive and threatening} linkage to d.e.w.r. { ORDER The Agency and centrelink to SUSPEND both of the above.
In the section, State the grounds for the request, Dr Gyory wrote:
The GROUNDS are self-evident above; AND have been detailed in several letters to the Agency, Centrelink and Counsel, INCLUDING Today.
AND as described in camera AND written submissions of January 1^st and 3^rd and this week. Agency engaging in criminal abuse deliberately, false and misleading statements for 4 years.
The Respondent, in an email to the Tribunal dated 18 January 2024, submitted that there is no utility in the Applicant seeking a stay of the two decisions the subject of his application for Second Review. Mr de Uray submitted that the subject matter of the Applicant’s request for a stay does not appear to be in connexion with the First Review decisions but rather covers broader issues and extraneous actions purportedly taken by the Department of Education and Services Australia.
CONSIDERATION: STAY REQUEST
Section 41(2) of the AAT Act confers on the Tribunal a discretionary power to order a stay in the implementation of a decision which is the subject of a review before the Tribunal for the purpose of securing the effectiveness of the hearing and the determination of the application for review. Before making such a decision, the Tribunal must take into account the interests of any persons who may be affected by the review.
In his request of 12 January 2024, Dr Gyory appears to be asking the Tribunal to make orders relating to the administrative conduct of the Department in its contact with him, in particular it would seem in relation to his employment service provider. In this, the Applicant is asking the Tribunal to exercise a power that it does not have. The powers to stay the implementation of a reviewable decision in s 41(2) are narrow: they relate only to a particular decision which has been brought to the Tribunal for review. The Tribunal does not have jurisdiction to adjudicate or otherwise make orders about the operations of a government agency or department. If Dr Gyory has grievances about his employment service provider and the provider’s contact with him, that is something he should take up directly with Centrelink. It is not part of the decisions he asked the Tribunal to review at First and Second Review.
Apart from the basis for seeking a stay order being misconceived, for completeness it is necessary to make clear that there is no utility in the Tribunal making such an order in either of the two First Review decisions, because in the case of the rejection of Dr Gyory’s claim for special benefit, ‘staying’ a rejection does not have the effect of conferring a grant. That point is especially relevant in this case where the Applicant was not eligible for the grant of special benefit. In the other decision, which was to set aside a short suspension of the Applicant’s Jobseeker Payment, staying the First Review’s decision which was in favour of Dr Gyory (and which he agreed was correct) would have no effect whatsoever, because the shortness of the suspension did not interrupt his payment of the benefit.
As the Tribunal has decided to dismiss the applications for being misconceived, any residual purpose that may have existed in relation to staying the operation of the decisions is rendered nugatory in any event.
DECISIONS
Pursuant to s 42B(1)(a) of the AAT Act, the Tribunal dismisses applications 2023/8095 and 2023/8097 because the Tribunal is satisfied the applications are misconceived.
The application for a stay order brought by the Applicant on 12 January 2023 in relation to applications 2023/8095 and 2023/8097 under s 41(2) of the AAT Act is refused.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...........................[SGN].............................................
Associate
Dated: 25 January 2024

Date of hearing: 6 December 2023

Applicant: Dr Attila Gyory

Counsel for the Respondent: Mr Tim de Uray

Solicitors for the Respondent: Services Australia- Legal Services Division

[2024] AATA 67

25 January 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Abuse of Process

Jurisdiction

Procedural Fairness

Stay of Proceedings

Appeal

Date of hearing:	6 December 2023
Applicant:	Dr Attila Gyory
Counsel for the Respondent:	Mr Tim de Uray
Solicitors for the Respondent:	Services Australia- Legal Services Division