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

This matter concerned an application to the Administrative Appeals Tribunal (AAT) for a second review of a decision concerning the applicant's entitlement to an Australian Disability Support Pension (DSP) and Age Pension (AP). The dispute arose from the respondent's determination that the applicant had been overpaid these pensions due to the inclusion of Polish pension payments as assessable income. The applicant also raised allegations concerning breaches of the European General Data Protection Regulation and the Racial Discrimination Act 1975 (Cth), and sought the waiver of the debt.

The primary legal issues before the Tribunal were whether the applicant had been overpaid his Australian pensions, the quantum of any recoverable debt, and whether the debt should be waived due to sole administrative error or special circumstances. The Tribunal was also required to consider its own jurisdiction, specifically whether it could review the entirety of the debt or only a portion thereof, given the procedural history.

The Tribunal reasoned that its jurisdiction was limited by section 179 of the Social Security (Administration) Act 1999 (Cth) to reviewing the decision of the first instance AAT. In this instance, the first AAT had set aside the original debt decision and remitted the matter back to the Secretary for reconsideration, resulting in a further debt being established. Consequently, the Tribunal held that it only had jurisdiction to review the portion of the debt that was before the first AAT, which amounted to $12,004.46, and not the subsequently recalculated amount. The Tribunal did not make findings on the allegations of breaches of the GDPR or the Racial Discrimination Act, nor did it make findings regarding waiver of the debt, as these matters were outside its jurisdictional scope in these proceedings.