Hasan v Commissioner of State Revenue

[2001] NSWADT 204

CITATION:	Hasan -v- Commissioner of State Revenue [2001] NSWADT 204
DIVISION:	General Division
PARTIES:	APPLICANT Nazmul Hasan RESPONDENT Commissioner of State Revenue
FILE NUMBER:	013207
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	09/20/2001
DATE OF DECISION:	12/03/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	first home owners grant - approval of application - First Home Owners Grant Act - first home owners grant - approval of application
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 First Home Owners Grant Act 2000
CASES CITED:	Fiegert and Edwards -v- Chief Commissioner, Office of State Revenue [2001] NSWADT 177
REPRESENTATION:	APPLICANT In person RESPONDENT D Martin, agent
ORDERS:	The Chief Commissioner's decision not to approve the applicant's application for a First Home Owners Grant is affirmed.

Introduction

1 On 28 August 2001 Mr Hasan lodged an application with the Tribunal requesting a review of a decision of the Chief Commissioner, Office of State Revenue (Chief Commissioner). The decision was not to approve his application under the First Home Owner Grant Scheme (FHOGS). The Chief Commissioner refused the applicant’s application because he did not meet a requirement of the First Home Owners Act 2000 (FHOG Act) that the contract for purchase of the property be made on or after 1 July 2000. Mr Hasan’s contract was made on 1 March 2000.

2 On 25 May 2001, Mr Hasan wrote to the Chief Commissioner objecting to his decision and seeking a review of that decision. On review, the Chief Commissioner affirmed that Mr Hasan was not eligible for the grant.

3 With the consent of the parties, this matter was decided "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act).


Relevant legislation
4 The FHOG Act requires an applicant to comply with certain eligibility criteria. Section 7(1)(a) states that:
(1) A first home owner grant is payable on an application under this Act if:
(a) the applicant or, if there are 2 or more of them, each of the applicants complies with the eligibility criteria, and
(b) the transaction for which the grant is sought:
(i) is an eligible transaction, and
(ii) has been completed.
(2) Despite subsection (1) (a), an applicant need not comply with the eligibility criteria to the extent the applicant is exempted from compliance by section 9 (2) or 12 (2) or both.
(3) Despite subsection (1) (b), a first home owner grant is payable before completion of the relevant eligible transaction, as authorised by section 20.
(4) Only one first home owner grant is payable for the same eligible transaction.
5 The exemptions in s 9(2) and s 12(2) relate to residency and citizenship and do not apply to the circumstances of this case.

6 An "eligible transaction" is defined in s 13(1)(a) to include "a contract made on or after 1 July 2000 for the purchase of a home in New South Wales."

7 Section 17 of the FHOG Act requires the Chief Commissioner to pay the grant if he or she is satisfied that a grant is payable. There is provision in the Act for an applicant to object to the Chief Commissioner’s decision if he or she is dissatisfied with that decision: s 25.

8 Section 26 allows the Chief Commissioner to allow or disallow the objection. That section sates that:

After considering an objection, the Chief Commissioner may:
(a) allow the objection in whole or in part or may disallow the objection, and
(b) accordingly reverse, vary or confirm the decision (the original decision) to which the objection was made.
Issue
9 The issue in this case is whether the Chief Commissioner (and the Tribunal) can allow the objection and give the applicants the grant even though they do not meet one of the eligibility criterion set out in the legislation.

Applicant’s submission
10 Mr Hasan agreed that his contract was not an eligible transaction because it was not made on or after 1 July 2000. It was made on 1 March 2000. He submitted that one of the aims of the FHOG scheme is to help offset the impact of the GST. Because he has been affected by the introduction of GST, he argues that he should be entitled to the grant.

Reasons and decision
11 In Fiegert and Edwards -v- Chief Commissioner, Office of State Revenue [2001] NSWADT 177 (26 October 2001) I rejected a submission that s 26 of the FHOG Act gives the Chief Commissioner an unfettered discretion to allow or disallow an objection. I concluded that an applicant’s eligibility for the grant is a condition precedent to the Commissioner exercising the discretion under s 26.

12 I can appreciate that the applicant feels that he has been treated unfairly in being denied the grant. Nevertheless, parliament has legislated to provide a cut off date for eligible transactions and neither the Chief Commissioner nor the Tribunal has discretion to change that date or to give Mr Hasan the grant when he does not meet the eligibility criteria. The Tribunal’s role is to apply the legislation as enacted by parliament. My interpretation of that legislation is that the applicant is not eligible for the grant and that eligibility is a condition precedent to the Commissioner exercising the discretion under s 26. In those circumstances, the Tribunal has no choice but to affirm the Commissioner’s decision not to give the grant to the applicant.


Orders
13 The Chief Commissioner’s decision not to approve the applicant’s application for a First Home Owners Grant is affirmed.