Jackson and Secretary, Department of Social Services (Social services second review)
[2022] AATA 112
•18 January 2022
Jackson and Secretary, Department of Social Services (Social services second review) [2022] AATA 112 (18 January 2022)
Division:GENERAL DIVISION
File Number(s): 2019/7482 & 2020/1195
Re:Aaran Jackson
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Brigadier AG Warner, AM LVO (Retd), Member
Date:18 January 2022
Place:Perth
The Applicant’s application for the re-instatement of an application for review of two decisions of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 8 November 2019 and 21 February 2020 is refused.
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Brigadier AG Warner, AM LVO (Retd), Member
CATCHWORDS
PRACTICE AND PROCEDURE – reinstatement of application – application dismissed because Applicant failed to appear – whether application dismissed in error – justice of the circumstances – whether appropriate to reinstate the application – lack of any medical evidence of accessibility issues – reinstatement application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 42A
A New Tax System (Family Assistance) (Administration) Act 1999 – s 84A
CASES
Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385
Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383
O’Loughlin and Secretary, Department of Families, Community Services and Indigenous Affairs and Anor [2007] AATA 1633
Re White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712; (2007) 97 ALD 204
Schramm and Repatriation Commission [1998] AATA 300
The Taxpayer and Commissioner of Taxation (2002) 68 ALD 143
Tismanaru and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1322
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
18 January 2022
INTRODUCTION
Mr Jackson’s substantive application seeks review of two decisions of the Social Services & Child Support Division of the Administrative Appeals Tribunal (the AAT1).
The first reviewable decision of AAT1 dated 8 November 2019 affirmed an earlier decision of an authorised review officer (ARO) of the Department of Human Services, now Services Australia (Centrelink), dated 15 August 2019, which set off Mr Jackson’s Family Tax Benefit (FTB) arrears against an outstanding debt (Exhibit R1, Attachment A).
The second reviewable decision of AAT1 dated 21 February 2020 affirmed an earlier decision of an ARO of Centrelink, dated 24 July 2012, which varied a pervious decision of Centrelink to raise and recover five Newstart allowance (NSA) debts, and one disability support pension (DSP) debt (Exhibit R1, Attachment A).
FTB is a two-part payment that helps eligible families with the cost of raising children. FTB Part A is a payment that is paid per child and the amount paid depends on family circumstances. Part B is a payment that is paid per family and can be paid to a single parent carer, a grandparent carer, or a member of a couple with one main income and is subject to an income test.
NSA was an income support payment that was available to people who were at least twenty-two years old but underage for the purpose of receiving a pension, were looking for work (there were some exceptions to this condition), and were under the income and assets test limits.
Mr Jackson’s substantive application was listed originally for Wednesday, 11 August 2021. However, Mr Jackson via an email dated 6 July 2021 requested that it be relisted to a Friday as he indicated that he has “only Fridays available on my calendar”, and on 28 July 2021 the Tribunal re-scheduled the hearing for Friday, 17 September 2021. Mr Jackson failed to appear for the hearing, and as the Tribunal was satisfied that Mr Jackson was given appropriate notice of the time and place of the hearing, the Tribunal dismissed the application pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) (Exhibit R1).
By email on 15 October 2021, Mr Jackson requested a reinstatement of his application (Exhibit A3). He stated:
i aaran did send a request to aat in writing to request adjournment on medical grounds prior to hearing
24 hours notice to argue the above point is satirical and unprofessional timeframe to work within.
i did send part of my reasons in writing to aat for reinstatement prior to yesterdays late night email.
i request further time for reinstatement assessment so that i may raise my concerns with the federal police that aat may not be paying particular proper due diligence to their general amd specific inboxes which disadvantages the australian community.
On 20 October 2021, the Tribunal sought a response from the Respondent on Mr Jackson’s application for reinstatement. In the submissions provided on 3 November 2021, the Respondent opposed Mr Jackson’s application for reinstatement (Exhibit R1).
On 3 November 2021 and 5 November 2021, Mr Jackson provided further emails to the Tribunal (Exhibits A1, A2). The tenor of these emails is detailed under paragraph [22] below.
An interlocutory hearing was conducted on 9 December 2021. Mr Jackson was self-represented, and the Respondent was represented by Ms Amy Simpson of Services Australia. The parties appeared via telephone conference. Mr Jackson gave oral evidence on affirmation.
On the morning of the hearing, the Tribunal was unable to contact Mr Jackson shortly before and at the scheduled start time. After a short interval, the Tribunal established telephone contact with Mr Jackson who said that he was at a Coles supermarket and that his mobile phone was low on charge. The Tribunal delayed the commencement of the hearing to allow Mr Jackson to return home, settle himself and establish a telephone connection on another phone.
BACKGROUND
Mr Jackson was in receipt of NSA from 12 May 2008, until he transferred to DSP on 17 July 2009.
On 24 July 2012, an ARO varied a previous decision of Centrelink and determined that Mr Jackson had five NSA debts totalling $5,201.38 and a DSP debt of $12,683.10.
On 3 July 2019, Mr Jackson was entitled to $1,116.90 of FTB arrears following a reconciliation of his FTB entitlement for the 2018/19 financial year period. Centrelink withheld the arrears and offset it against Mr Jackson’s DSP debt pursuant to s 84A of the A New Tax System (Family Assistance) (Administration) Act 1999. Mr Jackson sought a review of this decision.
On 15 August 2019, an ARO affirmed the decision to offset Mr Jackson’s FTB arrears. The AAT1 agreed with this finding on 8 November 2019.
On 11 December 2019, Mr Jackson requested a review of the ARO decision made on 24 July 2012 to raise and recover the FTB and DSP debt, the AAT1 affirmed the decision on 21 February 2020.
On 17 November 2019 and 29 February 2020, Mr Jackson applied for a review of both AAT1 decisions. These applications were later joined. The matter was listed for hearing on 17 September 2021. Mr Jackson failed to appear, and after a 30-minute waiting period, the Tribunal dismissed the application.
RELEVENT LEGISLATION
Section 42A of the AAT Act deals with discontinuance, dismissal and reinstatement of applications. In this case, the relevant subsections are as follows:
Dismissal if party fails to appear
(2)If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision; or
(b)in any other case--direct that the person who failed to appear shall cease to be a party to the proceeding.
…
Reinstatement of application
(8)If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8A)If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8B)For the purposes of subsections (8) and (8A), the period is:
(a)28 days after the party receives notification that the application has been dismissed; or
(b)if the party requests an extension--such longer period as the Tribunal, in special circumstances, allows.
(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.
Subsections (8) to (10) of s 42A of the AAT Act provide the only power that the Tribunal has to reinstate applications are for those that have been properly dismissed.
Subsections (8) and (9) are to be read together, with the effect that the power to reinstate an application under s 42A(9) of the AAT Act is only enlivened where the application has been dismissed under s 42A(2) of the AAT Act for the applicant’s failure to appear, (or if the application was dismissed under s 42A(1B) of the AAT Act and a party other than the applicant requests reinstatement).
HEARING AND EVIDENCE
The Tribunal had before it the following evidence:
· Applicant email dated 5 November 2021 (Exhibit A1);
· Applicant emails dated 3 November 2021 (Exhibit A2);
· Applicant email dated 15 October 2021 (Exhibit A3);
· Secretary’s Outline of Submissions dated 3 November 2021 (Exhibit R1); and
· The oral evidence of the Applicant.
In Exhibits A1 and A2, Mr Jackson mentions issues related to the consideration of reinstatement, threatens actions he will take if not successful in this interlocutory application, and extensively denigrates the Honourable Stuart Robert, MP, Minister for Employment, Workforce, Skills, Small and Family Business, and the Member for Fadden.
(a)Mr Jackson states that he would like Western Australia Police to provide evidence to the AAT regarding his accident, that the government position is politically motivated, and that “medical reasons spawning from covid19 and a newl [sic] diagnosed dissability [sic] From a very recent car crash” are the main reason for his application for reinstatement.
(b)Mr Jackson’s diatribe regarding Minister Robert includes, but is not limited to the following:
Though australians pay money to stuart robert mp the apostate of fadden
I do note that Stuart robert mp Does not practice [sic] what he preaches…
…Stuart Robert mp the apostate of fadden
Murderer of 2000 Australians
A God forsaken fink of a hideous Creature
I even received personal correspondence from the French president Who is eager to learn about how people with disabilities are treated under the liberals Especially The disaster prone Misguided Godless Stuart Robert mp
Hypocrite and twister of the Australian way of life.
(c)In relation to the potential outcome of his application for reinstatement, Mr Jackson states “I will forward all emails to the police…I will go to the federal court…I will go to the Governor General…”
Mr Jackson was loquacious and wide-ranging in his oral submissions during the hearing. Elements of those submissions are summarised as follows:
(a)Mr Jackson disputed the date of this interlocutory hearing, holding that he was advised that the hearing date was 17 December 2021. He wanted this noted in the event that the matter progressed to the Federal Court because he may have been disadvantaged by agreeing to proceed. He suggested that the problem “may be attributed to malicious activity in Cyberspace” (Transcript/5).
(b)Mr Jackson said that it is ideal for a person to attend whatever they have been asked to attend, but sometimes legitimate reasons prevent attendance. He said that this might be the case even if a person was invited to Mark Zuckerberg’s Hawaiian Islands, or offered a free trip to Disneyland, or invited to meet Paris Hilton in Rio de Janeiro or invited to see the Queen of England. He said that in relation to reasons for non-attendance, “there should never be a cap imposed on the patience of the government” (Transcript/9–12).
(c)Mr Jackson told the Tribunal why he was not represented (Transcript/11). He said that his local Citizens Advice Bureau had referred him to a welfare legal agency which advised: “We don’t have a clearance to have anyone sitting in a room with you to deal with the AAT and the Liberal government”. He also quoted the Australian Secret Intelligence Service as stating: “If what you say is true and the Liberal Party have refused funding for you to have a Legal Aid representative in the AAT hearings, then that is sad.”
(d)Mr Jackson told the Tribunal that he would make every attempt to attend the Tribunal in the future to achieve a healthy resolution of his matter. He said that “We’re living in such times when the government and the people should be promoting a symbiotic relationship. We need to work together because we are under severe threat from the dictators” (Transcript/13).
(e)Mr Jackson said that the most recent reason for his non-attendance at the hearing was his car accident (4 May 2021) where “some young fellow come up behind of me driving his mother’s car”. He said that he was unable to supply relevant medical evidence at this stage because “what the Insurance Commission classifies as legal and legitimate evidence will not be available until the end of February” (Transcript/10), however, he would not stop the government making enquiries about that matter (Transcript/12).
(f)Mr Jackson said that there was an accessibility issue at the date and time of the hearing. He told the Tribunal that “[m]aybe I can get up and go to the toilet now” and that “[m]aybe I can climb Mount Everest today”, but submitted that these things were not relevant as at the date and time of the hearing (Transcript/18). Mr Jackson also submitted that “some places don’t let me have my walking cane” (Transcript/14).
ISSUE
The Tribunal must decide whether to reinstate Mr Jackson’s application which was dismissed due to his failure to appear. This will include consideration of whether the application was dismissed in error, and if so, whether the circumstances of the case warrant the exercise of the discretion to reinstate the application.
CONSIDERATION
Was the application dismissed in error?
The Respondent contends there has been no error on the part of the Tribunal, and that it is not open to Mr Jackson to submit the application was “dismissed in error”. Accordingly, the Respondent contends that the discretion provided in s 42A(10) of the AAT Act cannot be exercised (Exhibit R1, para 25).
Section 42A(10) of the AAT Act, enables the Tribunal to reinstate an application if it “has been dismissed in error”. This is a discretionary, rather than mandatory, power to reinstate and the discretion under this provision is confined to the Tribunal identifying an error in the dismissal of Mr Jackson’s application.
Although an error pursuant to s 42A(10) of the AAT Act need not be an error of the Tribunal, it must be established that the Tribunal has dismissed the application and that the act of dismissal was attended with error. Error, in this context, will generally mean a belief in something untrue (Schramm and Repatriation Commission [1998] AATA 300 at [43]).
The Respondent cites Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383, at [29] in submitting that: “[t]he error must also go to the act of dismissal, rather than peripheral or broader circumstances”. In that case, the Full Court of the Federal Court “suggested that if a party’s representative misunderstood his or her instructions and caused a notice of discontinuance to be filed, then the application would have been dismissed in error” (Exhibit R1, para 20).
The Respondent relevantly provides, and the Tribunal has previously had regard to, further examples of dismissals in error (Exhibit R1, para 21):
a. Where the Tribunal dismissed an application in the belief that each party had consented to dismissal: Schramm and Repatriation Commission [1998] AATA 300, [52];
b. Where the Tribunal dismissed an application because the applicant failed to comply with directions to lodge further material, even though the applicant may have been able to proceed on the material already before the Tribunal: The Taxpayer and Commissioner of Taxation [2002] AATA 523, [7];
c. Where the Tribunal dismissed an application on the erroneous belief that service of a listing notice had been effected: Tismanaru and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1322, [48].
In the present matter, Mr Jackson’s hearing date was changed from 11 August 2021 at his request (para 6 above refers) and relisted to 17 September 2021. Mr Jackson has not claimed that he did not receive the listing notice dated 28 July 2021, nor has he stated that he was unaware that the hearing was scheduled for 17 September 2021. Rather, Mr Jackson claims that he previously sought an adjournment and notwithstanding this, the Tribunal used the wrong number to contact him after waiting for approximately 30 minutes for him to appear for his hearing. Mr Jackson has provided no evidence to corroborate this claim, and it is not supported by the Tribunal’s records.
The Tribunal notes that Mr Jackson via an email dated 26 August 2021 did requested an adjournment, he states “I am only free on Tuesday’s as my wife studies aged care on every other day”. However, the email did not mention anything about the accident or any medical incapacity or accessibility issues. In response, the Tribunal rejected Mr Jackson’s request and sent the following correspondence on 27 August 2021:
Dear Mr Jackson
We refer to the above matter and your correspondence received on 26 August 2021 requesting to vacate the upcoming hearing scheduled for 17 September 2021 at 10AM.
Please note that the Tribunal vacated the last hearing in order to accommodate your request to list a hearing on a Friday, as you specifically stated in your correspondence received on 6 July 2021 that "I only have fridays available on my calendar". On the contrary, in your recent correspondence you stated that "I am only free on Tuesday’s as my wife studies aged care on every other day".
Please be aware that the Tribunal cannot accommodate your request to vacate the upcoming hearing.
Therefore, please note that the hearing on 17 September 2021 at 10AM will go ahead as scheduled.
The Tribunal, therefore, concludes that Mr Jackson’s application was dismissed appropriately as Mr Jackson failed to attend the hearing without an explanation or evidence of a prior request for an adjournment due to his medical condition.
The Tribunal is unable to identify an error in the Tribunal’s dismissal of this application of the nature necessary to invoke the discretion provided in s 42A(10) of the AAT Act. Relevantly, the Tribunal notes the conclusion of Deputy President Forgie in the matter of Re White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712; (2007) 97 ALD 204 at [43] “[m]y conclusion that there is no error within the meaning of s 42A(10) is an end of the matter. The Tribunal has no power to reinstate an application and so no discretion to do so unless there is such an error.”
Justice of the circumstances
Had the Tribunal found an error in the dismissal of Mr Jackson’s application, which it did not, it would be necessary to consider whether the circumstances of the application warrant the exercise of the discretion to reinstate the application. Such a consideration would be similar to that employed when the Tribunal considers an extension of time application.
In the present matter the Tribunal considers the relevant factors to be Mr Jackson’s awareness of the hearing on 17 September 2021 and his explanation for failing to attend it, the prospects of success of the substantive application, and alternative avenues of relief. Having regard to the evidence before the Tribunal relative to these factors, the Tribunal notes:
(a)The evidence is, and he has not disputed, that Mr Jackson was aware of the date, place and time of his hearing. Mr Jackson’s explanation that he sought an adjournment due to his medical conditions is not corroborated with any medical or other evidence, and his later submissions that issues related to a car accident and an issue of accessibility explained his failure to appear are inconsistent and without corroboration. Taken in total, the Tribunal finds that Mr Jackson’s explanation for failing to appear is neither compelling nor satisfactory, and weighs against reinstatement of his application.
(b)It is not necessary or appropriate for the Tribunal to conduct a merits review of the AAT1 decisions (Exhibit R1, Attachment A) in this interlocutory stage. However, it is appropriate for the Tribunal to consider the prospects of the substantive application as part of its consideration of the justice of Mr Jackson’s circumstances. Perusal of the AAT1 decisions does not raise concerns that those decisions were made with other than appropriate and relevant regard to the facts and the legislation. Mr Jackson has not provided any further evidence relevant to those decisions, and the Tribunal notes that the AAT1 decisions were made on 8 November 2019 and 21 February 2020 respectively, well before the car accident of 4 May 2021 which figured prominently in Mr Jackson’s oral evidence. The Tribunal finds that Mr Jackson would face significant hurdles in progressing his substantive application.
(c)In respect to an alternative avenue of relief, the Respondent submits that: “If the Applicant’s circumstances had changed and he no longer had capacity to repay the debts, it is open for him to contact the Debt Recovery Team and request reconsideration of recovery of the debts” (Exhibit R1, para 26).
Is it appropriate to reinstate the application?
The Tribunal may reinstate the dismissed matter if it considers it appropriate to do so.
The Respondent contends that it is not appropriate to reinstate Mr Jackson’s matter for the following reasons (Exhibit R1, para 14):
a. …Pursuant to section 42A(7) of the AAT Act, the Applicant had notice of the listing for the Final Hearing from 28 July 2021. This notice also stated: “If an applicant or an applicant’s representative fails to attend, the Tribunal may dismiss the application under section 42A(2) of the AAT Act”…
b. A further conference was scheduled on 26 August 2021 so that the Registry could test the parties MS Teams capabilities. The Tribunal has confirmed that the Applicant was invited to attend this although it is unclear if he attended.
c. The Applicant has stated in his application that he sent a request to the AAT in writing, requesting an adjournment on medical grounds prior to the hearing. However, the Applicant has failed to provide any evidence to date which supports that he did this.
d. There has been a history of the Applicant failing to attend conferences as directed. Specifically, the Applicant has failed to attend on four occasions, being at the conferences listed 4 August 2020, 1 September 2020, 15 September 2020 and 18 February 2021.
e. Finally, it is not appropriate to reinstate the application in circumstances where it would be unfair to all other Applicants that adhere to directions of the Tribunal.
(Original emphasis.)
Mr Jackson did not dispute these contentions during the present interlocutory hearing. However, the Tribunal notes that only the Respondent was required to attend the conference scheduled for 26 August 2021 in order to conduct a MS Teams capability test (referred in para 37 above) as the Respondent’s representative is located in Canberra and therefore, their attendance was required via MS Teams. On the contrary, Mr Jackson was not required to attend the conference as he is located in Perth and he was to attend the hearing in person. Further, had the Tribunal not persevered in attempts to establish contact with Mr Jackson so as to facilitate the consideration of his application for reinstatement, he would have failed to attend again (see para 11 above).
In his email dated 15 October 2021 (Exhibit A3), Mr Jackson explained his reason for failing to attend the Tribunal hearing was that he had sent the AAT a request to adjourn the matter on medical grounds. During the hearing he submitted that a recent car accident (4 May 2021) (see para 23(e) above) and accessibility issues (see para 23(f) above) had prevented his attendance. The Tribunal notes that the car accident predates both the date of dismissal and the original date of listing on 11 August 2021, yet prior to this interlocutory hearing Mr Jackson had not raised the issue of the car accident or accessibility in relation to his ability to attend the hearing. The present reinstatement hearing was conducted by telephone conference, and it was open to Mr Jackson to request a similar participation for the hearing on 17 September 2021.
The Respondent cites two authorities, relevantly in the Tribunal’s view, in support of the Respondent’s contention that reinstatement is not appropriate in this matter (Exhibit R1 para 15 and 16):
15.In Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772, the Applicant’s application to the AAT was dismissed pursuant to s 42A(2) of the AAT Act as he failed to appear at the final hearing. Similar to the circumstances in this case, the Applicant gave differing explanations as to the reasons that he was unable to attend and upon a review of an extension of time, the primary Judge found that the differing explanations weighed against finding in favour of the Applicant.
16.Likewise, in O'Loughlin and Secretary, Department of Families, Community Services and Indigenous Affairs and Anor [2007] AATA 1633, the Tribunal refused to grant an Applicant’s application for reinstatement following her failing to proceed with her application in a reasonable time. The Member in this matter found that the lack of reasonable explanation weighed against granting the reinstatement application.
CONCLUSION
The Tribunal is satisfied that Mr Jackson’s application was not dismissed in error, and having careful regard to all the material before it and considering the justice of the circumstances of this application, the Tribunal finds that it is not appropriate to reinstate Mr Jackson’s application.
DECISION
It follows from the above that Mr Jackson’s application for the re-instatement of an application for review of two decisions of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 8 November 2019 and 21 February 2020 is refused.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM LVO (Retd), Member
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Associate
Dated: 18 January 2022
Date of hearing: 9 December 2021 Applicant: Self-Represented Counsel for the Respondent: Amy Simpson Solicitors for the Respondent: Services Australia
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