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

[2015] AATA 719

Hrvat and Secretary, Department of Social Services (Social services second review) [2015] AATA 719 (17 September 2015)

Division	GENERAL DIVISION
File Number(s)	2015/3844
Re	Mustafa Hrvat
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	17 September 2015
Place	Sydney

The Tribunal refuses Mr Hrvat’s application for reinstatement of his application for review.

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Senior Member J F Toohey

CATCHWORDS – PRACTICE AND PROCEDURE – reinstatement – applicant withdrew application – whether error on the part of the Tribunal – reinstatement refused

Legislation

Administrative Appeals Tribunal Act 1975 s 42A

Cases

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 72 ALD 652

Re White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204

Mori and Secretary, Department of Social Services [2013] AATA 737

Mori and Secretary, Department of Social Services [2014] FCA 333

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. In October 2014, Mr Mustafa Hrvat applied for disability support pension.  Centrelink decided he did not qualify for the pension.  In May 2015, the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision.

2. On 2 June 2015, Mr Hrvat asked this Tribunal to review the SSAT’s decision.  On 1 July 2015, the SSAT, the Administrative Appeals Tribunal and the Commonwealth migration tribunals merged.  As a result, Mr Hrvat’s application for review is taken to be an application for “AAT second review”.

3. On 21 July 2015, Mr Hrvat and a representative of the Department of Social Services attended a preliminary conference conducted by a Conference Registrar.  The purpose was to discuss the issues involved in Mr Hrvat’s application and to see if any agreement could be reached between him and the Department. 

4. At the preliminary conference, Mr Hrvat signed a Notice of Withdrawal stating he did not wish to proceed with his application and that it was withdrawn.

   Application for reinstatement

5. Mr Hrvat says that, on the train on his way home from the preliminary conference, he regretted his decision to withdraw his application.  Next day, he contacted the Tribunal to say he wanted to proceed.  What happened next becomes confusing. 

6. The officer who spoke to Mr Hrvat apparently misunderstood his inquiry and thought he wanted to lodge an application for review of the SSAT’s decision.  The officer advised Mr Hrvat that his application was out of time and he would need to apply for an extension of time.  He sent Mr Hrvat an Application for Second Review of Decision form and an Application for Extension of Time for Making an Application for Review of Decision form.  On 30 July 2015, the Tribunal received Mr Hrvat’s completed application forms.

7. It is understandable that Mr Hrvat completed the forms he was sent.  I understand that the Department’s representative attempted to clarify the position with the Tribunal but was advised that, the application for an extension of time having been received, the Tribunal was required to deal with it. 

8. It was not until the hearing of the application for an extension of time on 26 August 2015 that it became clear that Mr Hrvat was in fact seeking to have his application reinstated.  After discussing the matter with Mr Hrvat and the Department’s representative, I adjourned to give each time to make written submissions.  Only the Department’s representative made written submissions.

   Relevant legislation

9. Section 42A of the Administrative Appeals Tribunal Act 1975 (the Act) concerns the discontinuance, dismissal and reinstatement of applications. Sub-sections 42A (8), (8A), (9) and (10) concern reinstatement.

10. Sub-sections 42A(8), (8A) and (9) concern reinstatement of an application after it has been dismissed under s 42A(2) of the Act for failure by the applicant to appear before the Tribunal. In such cases, the applicant may apply within 28 days of notification of the dismissal for reinstatement of the application, and the Tribunal may reinstate the application if it considers it appropriate to do so.

11. Mr Hrvat’s application was not dismissed under sub-section 42A(2). It follows that the power to reinstate the application in sub-section 42A(9) is not enlivened.

12. Sub-section 42A(10) concerns reinstatement of an application that has been dismissed in error. It provides:

    If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

    What happens when an application is withdrawn?

13. A person who has made an application for review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn: sub-section 42A(1A). If such notice is given, the Tribunal is taken to have dismissed the application without proceeding to a hearing: sub-section 42A(1B).

14. When Mr Hrvat signed the Notice of Withdrawal at the preliminary conference on 21 July 2015, his application was taken to have been dismissed.

    Can Mr Hrvat’s application be reinstated?

15. As the language of sub-section 42A(10) makes clear, the discretion to reinstate under that provision relies on the Tribunal identifying an error in the dismissal of the application.

16. Mr Hrvat claims he was “persuaded” at the preliminary conference to withdraw his application. He says when he discussed with the Department’s representative the average hours he was working each fortnight, she said his claim could not succeed.  He says the Conference Registrar and the Department’s representative were doing a lot of talking.  He did not understand and just wanted to get out.  He says when he was on the train home after the conference, he thought more about the hours he was working and realised they were not as many as had been discussed at the conference. 

17. Ms Fletcher, who was the Department’s representative at the preliminary conference and at the hearing on 26 August 2015, says Mr Hrvat was very reasonable at the conference and they had a good discussion.  She says the Conference Registrar explained the legislation to Mr Hrvat, in particular the effect that the hours he was working would have on his claim for disability support pension.  Ms Fletcher says she left the conference believing Mr Hrvat understood “everything”.

18. I am not satisfied that Mr Hrvat failed to understand the discussion at the preliminary conference.  There is nothing to suggest that he did not understand the terms or the effect of the Notice of Withdrawal that he signed at the preliminary conference.  At the hearing on 26 August 2015, Mr Hrvat described clearly that he “decided” to withdraw but then regretted doing so.  It was only when he was pressed that he said he realised later that he was working fewer hours than had been discussed. 

19. Even if Mr Hrvat did think more carefully on his way home and realised that he was working fewer hours than he had discussed at the preliminary conference, that is not to say that his application was dismissed in error. 

20. The meaning of dismissed in error was considered in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 72 ALD 652. Prior to this decision, there had been different views as to whether error in sub-section 42A(10) was limited to an administrative error on the part of the Tribunal. In Goldie the Full Federal Court decided that the expression dismissed in error comprehended any error in the application of s 42A that led to the dismissal.

21. For the discretion in sub-section 42A(10) to be invoked, there must be “an error” and it “must bear some relation to the dismissal”: Re White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204.  Where a Notice of Withdrawal signed by the applicant is received and the application is dismissed accordingly, there is no error in the dismissal. 

22. I am satisfied that Mr Hrvat understood the terms and effect of the Notice of Withdrawal when he signed it. The fact that he quickly regretted doing so does not mean there is any error for the purpose of sub-section 42A(1): see Mori and Secretary, Department of Social Services [2013] AATA 737 upheld by the Federal Court in Mori and Secretary, Department of Social Services [2014] FCA 333.

23. For these reasons, Mr Hrvat’s application for reinstatement is refused.

24.     I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 17 September 2015

Date(s) of hearing		26 August 2015
Representatives for the Applicant		Self-represented
Representatives for the Respondent	Ms Alicia Fletcher, Department of Human Services