Hurdowar and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 342

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 342

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1410

GENERAL ADMINISTRATIVE DIVISION		)
Re		RESHAN HURDOWAR

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date18 April 2008

PlaceAdelaide

Decision The application under s 41 of the Administrative Appeals Tribunal Act 1975 to stay a decision of the Social Security Appeals Tribunal dated 20 February 2008 is dismissed.

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

J G SHORT
  (Member)

CATCHWORDS

PRACTICE AND PROCEDURE – stay order – financial hardship – likelihood of recovery – prospect of success of application – stay order refused

Administrative Appeals Tribunal Act 1975 ss 41(1), 41(2)

Re Repatriation Commission and Delkou (1985) 8 ALD 454

REASONS FOR DECISION

18 April 2008   Mr J G Short (Member)        

1. Reshan Hurdowar (the applicant) contends that it is appropriate in the circumstances of this case for the Tribunal to exercise its discretion prescribed in s 41(2) of the Administrative Appeals Tribunal Act 1975 (the Act) to stay the effect of a decision made by the Social Security Appeals Tribunal (the SSAT) on 20 February 2008 determining that there were three participation failures in a 12 month period, being 15 December 2006, 4 June 2007 and 9 November 2007 and that as a consequence, one non-payment period of eight weeks should be applied.

2.      Mr Hurdowar said that he still has approximately four or five weeks remaining of the eight week non-payment period and that he has no source of income. 

3.      Mr Hurdowar said that his parents are providing him with accommodation, food and minimal spending money.  He said that he will have to repay them at some time.  He also said that he finds it difficult to get to Job Network interviews while he is not receiving any income.

4.      The respondent (the Department) indicated that although recovery of any overpaid sums could be made through withholdings during periods when Mr Hurdowar may be in receipt of benefit/allowance, the possibility of recovery becomes more difficult if Mr Hurdowar is able to find employment.

5.      Mr Hurdowar suggested that his appeal was based primarily on a dispute in relation to a suggested participation failure on 9 November 2007.  Mr Hurdowar said that he thought it was unreasonable to expect him to attend an interview during a non-payment period.  Mr Hurdowar also suggested that the decision may be inappropriate as the suggested participation failures, on 15 December 2006, 4 June 2007 and 9 November 2007, did not fall within a 12 month period from the date the SSAT made its decision on 20 February 2008.  Perusal of the legislation suggests that the 12 month period is triggered by the most recent breach, in this case 9 November 2007, and consequently the date suggested by the SSAT as dates of participation failures do fall within the required 12 month period.  Mr Hurdowar also suggested that decisions may not have been made by Centrelink in respect of the alleged participation failures.  This appears unlikely. 

consideration

6. I start from a consideration of s 41(1) of the Act. This section reads as follows:

““41(1) Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.”

The clear intent is that the lodgement of an appeal to this Tribunal should not affect the implementation of a decision made by the SSAT.

7. The Tribunal has however been granted power in the appropriate circumstances, to stay the implementation of a decision. Section 41(2) of the Act reads as follows:

“41(2)   The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”

Section 41(2) aims to ensure, to the extent desirable, that the effect of a successful appeal to this Tribunal is not rendered nugatory by events or payments made during the time leading up to the consideration of an appeal.

8.      In Re Repatriation Commission and Delkou (1985) 8 ALD 454 Deputy President Hall suggested that in considering a stay application one should consider the following matters:

·any hardship a party may suffer by reason of the grant or refusal to grant a stay; 

·the likelihood of recovery by the Commonwealth of monies paid under the determination sought to be stayed; and

·the prospect of success of the application for review.

9.      I have considered all of the circumstances raised by the parties.  I am not satisfied that any hardship Mr Hurdowar has experienced or may experience, either in isolation or in combination with any other factor, including his chances of success at the ultimate hearing of his appeal, are sufficient to persuade me that it would be desirable to stay the effect of the SSAT’s decision.  The application is dismissed.  

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         .....................................................................................
  Associate

Date of Hearing  18 April 2008
Date of Decision  18 April 2008
Advocate for the Applicant       In person

Advocate for the Respondent   Ms J Kitto

Centrelink Legal Services Branch