Huisman and Secretary, Department of Employment and Workplace Relations

[2005] AATA 885

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 885

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1477

GENERAL ADMINISTRATIVE DIVISION		)
Re		EDDY ALBERT HUISMAN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr M A Griffin, Member

Date9 September 2005

PlaceSydney

Decision The request for reinstatement of the application is refused.  

..............................................

M A Griffin
  Member

CATCHWORDS

Practice and Procedure – request for reinstatement of application – no error in dismissal of application – no reasonable prospects of success in the circumstances of the particular case

Administrative Appeals Tribunal Act 1975 section 42A

Social Security Act 1991

Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385

Re Schramm and Repatriation Commission (1998) 54 ALD 501

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383

REASONS FOR DECISION

9 September 2005   Mr M A Griffin, Member   

1.      Mr Huisman receives the disability support pension.  In early 2004 he planned to leave Australia permanently to live in India where he intended to work for a charitable organisation. On 1 July 2004, amendments to the Social Security Act 1991 affecting the portability of the disability support pension came into effect. The result was that the disability support pension became payable only for a period of 13 weeks after the recipient left Australia. Mr Huisman had applied for his Indian visa some time before the introduction of the legislative change but did not receive the visa until some days following on 9 July 2004. On 13 July 2004 Mr Huisman advised Centrelink that he would leave Australia on 31 July 2004. On that same day he was advised that his disability support pension would only be payable for a period of 13 weeks. Mr Huisman sought review of that decision. On 19 August 2004 an authorised review officer affirmed the decision. Mr Huisman applied to the Social Security Appeals Tribunal (“SSAT”) on 23 August 2004 for a review of that decision.

2.      On 26 October 2004, the SSAT decided to affirm the decision under review. Mr Huisman then applied to this Tribunal for review of the SSAT decision. On 8 February 2005 the Tribunal received a written notice signed by Mr Huisman in the following terms:

“The Applicant does not wish to proceed with the application and hereby notifies the Tribunal that this matter is withdrawn in accordance with section 42A(1A) of the Administrative Appeals Tribunal Act 1975.”

3.      On 10 February 2005 the Tribunal wrote to Mr Huisman confirming receipt of his request and advising that “under section 42A(1B) of the Administrative Appeals Tribunal Act, the effect of the notification is that the Tribunal has dismissed the application without proceeding to review the decision”.

4.      On 20 May 2005 the Tribunal received a handwritten notice from Mr Huisman headed “re: Re-instatement of application”.

5. Mr Huisman’s request for reinstatement was heard by the Tribunal on 1 August 2005. At the reinstatement hearing, Mr Huisman appeared by telephone and represented himself. Mr Lozynsky represented the Respondent department. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents) and the exhibits tendered by the parties.

evidence

6.      Mr Huisman said that he had originally withdrawn his application so as not to waste time and money on the part of himself and the Commonwealth.  He said he subsequently applied for an act of grace payment but when that was refused he decided to reinstate his application before this Tribunal.  He said that he was concerned about the involvement of certain officers within the Department in respect of his application and previous work history.  He said “there is some deliberate tricky legal legality”.  He said that the decision was like some “Nazi regime like decision”.  I asked Mr Huisman if he was alleging some impropriety on the part of public service members involved in the decision making process.  He said that he was.  I asked him if he could provide details and evidence in support of that allegation.  He said that he was unable to do so, it was just a feeling that he had. 

7.      I asked Mr Huisman why his application should be reinstated.  He said that the act of grace payment had been refused and that it was unfair.  He said that he had done nothing wrong and that this had all happened “because of a delay of the Indian charity”.  He said that he was aware during the delay in the processing of his visa by the Indian authorities of the impending change in the legislation which would affect portability.  He said an officer at Centrelink warned him of the proposed legislative change.  He said that the officer told him of this in about April or May.  He was shown a record at T21 page 54 and he agreed that he had been informed of the impending legislative change on 6 April 2004.  He said “I had everything organised, it was just the visa and that was delayed, not by Centrelink or me”.  He said it was the introduction of the legislation that had penalised him and caused him to unfairly be unable to take his pension and live in India.  He said that prior to this he had been delayed some 18 months waiting for a decision by Comsuper on his superannuation entitlements.  He said “I feel that at whatever cost they want to keep me here”.

legislation

8. Section 42A of the Administrative Appeals Tribunal Act 1975 (“the Act”) deals with the discontinuance, dismissal, reinstatement, etc of an application. The section relevantly provides:

“Deemed dismissal—applicant discontinues or withdraws application

(1A) A person who has made an application to the Tribunal for a 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.

(1B) If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.

…

Reinstatement of application

(8) If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.

(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

(10) 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.”

consideration of issues

9. Subsections 42A(8) and (9) of the Act relate to the reinstatement of an application that has been dismissed under section 42A(2) for failure of an Applicant to appear at proceedings before the Tribunal. Section 42A(10) is not restricted to dismissals pursuant to section 42A(2). This legislative provision was described by the Full Court of the Federal Court in Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385 as a slip rule to overcome a situation where there has been administrative error on the part of the Tribunal (Brehoi at 390). Another Full Court judgement Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383 stated the error did not need to be on the part of the Tribunal in order to enliven the Tribunal’s power under section 42A(10). Subsections 42A(8) and (9) do not apply to Mr Huisman as there was no failure to appear on his behalf under section 42A(2). This leaves consideration of section 42A (10) and the question of error.

10.     On the evidence available, there is no suggestion of error on the part of the Tribunal in any way, nor does there appear to be any error on the part of Mr Huisman in withdrawing his application.  The refusal by the delegate to make an act of grace payment is not an error for the purposes of the relevant section.  Mr Huisman’s vague claims as to impropriety on the part of an unknown Commonwealth officer are not relevant to the question of error in the dismissal of his application pursuant to his written notice of withdrawal.

11.     Even if there was an error on the part of the Tribunal or Mr Huisman which resulted in the dismissal of Mr Huisman’s application, it would still be necessary for the Tribunal to be satisfied that reinstatement was appropriate in the circumstances of the particular case (see re Schramm and Repatriation Commission (1998) 54 ALD 501). The prospects for the success of Mr Huisman’s original application are relevant to the exercise of the discretion to reinstate in a case were section 42A(10) of the Act is applicable. For the sake of certainty I will consider those issues.

12.     On his own evidence Mr Huisman accepts that he had notice of the impending legislative change as of 6 April 2004. On his evidence the Indian Consulate was prepared to grant him a one year visa almost immediately. However, he elected for reasons of financial economy to apply for a five year visa which required consideration by another officer in the Indian Consulate. That matter was delayed until after the change of legislation came into effect on 1 July 2004. On his evidence Mr Huisman agreed that this was not the fault of Centrelink. He says that the unfairness lies in the introduction of the legislation during the period of the delay by the Indian consulate authorities. The relevant sections of the Social Security Act 1991 are unequivocal and allow no discretion in the exercise of the decision-makers responsibility. As of 1 July 2004 the disability support pension is portable for a maximum of 13 weeks unless, inter alia, the person is terminally ill. There is no evidence that Mr Huisman’s medical condition brings him within the definition of terminally ill. It follows from this that, as decided by the SSAT, there is no discretion available to set aside or vary the decision in this case.  Consequently the Tribunal cannot be satisfied that reinstatement would be appropriate in the circumstances of this particular case.

13.       In all of the circumstances, there has been no error on the part of the Tribunal in the dismissal of the original application.  Reinstatement is not appropriate in these circumstances as Mr Huisman’s case cannot be said, even taken at its highest, to be arguable, given that there is no discretionary power available to the Tribunal under the current legislation with respect to the portability of his pension. 

decision

14.     The request for reinstatement of the application is refused.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Griffin, Member

Signed:         A. Garcia           .....................................................................................

Associate

Date/s of Hearing  1 August 2005
Date of Decision  9 September 2005
Representative for the Applicant               self-represented        
Representative for the Respondent          Mr G Lozynsky