Jaksic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 610
•15 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 610
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6144
GENERAL ADMINISTRATIVE DIVISION ) Re DRAGAN JAKSIC Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S E Frost, Member Date15 July 2008
PlaceSydney
Decision The application for reinstatement is refused. .................[sgd].............................
Mr S E Frost
Member
CATCHWORDS
PRACTICE AND PROCEDURE – social security – disability support pension – application for reinstatement of dismissed application – applicant claimed discrimination against him – applicant claimed he was insulted by Centrelink – applicant claimed payment in compensation for alleged discrimination and insult - Tribunal does not have jurisdiction to review applicant’s claims – application for reinstatement refused
Administrative Appeals Tribunal Act 1975 – Sections 3(3) – “decision”; 42A(2), 42A(8), 42A(9), 42A(10)
Social Security Act 1991 – Section 23
Social Security (Administration) Act 1999 – Sections 3(2), 181
REASONS FOR DECISION
15 July 2008 Mr S E Frost, Member Introduction
1. On 28 March 2008 the Tribunal dismissed this application under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The applicant has now applied for reinstatement of his application.
Background and History
2. The brief background is that the applicant, who had been in receipt of the disability support pension (DSP), left Australia in May 2005 to take up residence in Serbia. Because the DSP has a 13 week “portability period”, the applicant continued to be paid the DSP until the end of August 2005.
3. When it came to Centrelink's attention that the applicant had been working in Serbia, Centrelink determined that there had been an overpayment of the DSP and it asked for repayment of the amount overpaid. Although the applicant made the repayment, he disputed Centrelink's decision. The decision was ultimately reviewed by the Social Security Appeals Tribunal (SSAT) and on 22 January 2007, the SSAT affirmed the original decision.
4. In its reasons, the SSAT made reference to the fact that the applicant could not continue to receive the DSP while he lived in Serbia since there is no international social security agreement between Australia and that country. It noted that, on the other hand, there is such an agreement with Croatia (which the applicant had visited briefly after the expiration of the 13 week portability period) and that if the applicant lived in Croatia, rather than Serbia, he might continue to receive some pension support.
5. Although the applicant accepted the SSAT's decision in relation to the cancellation of the DSP and the recovery of the overpayment, he wrote to the SSAT on 12 November 2007 in the following terms:
I would like to appeal against Centrelink decision that I can reclaim DSP through Croatia or Australia.
It is discrimination because of the fact that I live in Serbia. There is no possibility to lodge the claim through Serbian institutions. There is no agreement.
I have Centrelink decision confirmed by ARO [Authorised Review Officer]. Are you going to protect me against discrimination please?
6. Apparently in response to that letter, the SSAT wrote to the applicant on 20 November 2007 in the following terms:
WE CANNOT CONSIDER YOUR APPEAL
We have received an appeal from you. However, our records show that this matter has already been decided by this Tribunal.
What happens now?
If you disagree with the Tribunal's decision, you have the right to take the matter further and lodge an appeal with the Administrative Appeals Tribunal (AAT). …
7. Accepting that invitation, the applicant wrote to the AAT on 4 December 2007, as follows:
Dear Sir/Madam
I can not reapply to DSP because of the discrimination. There is no social security agreement with Serbia, but there is one with Croatia. (Or, go back to Australia.)
I am disabled and unemployed, on no income.
SSAT obviously refuses to do the discrimination appeal. So, they discriminate me as well.
I never appealed to them re discrimination, but it was on another case (cancellation the pension). So, the matter could not been decided "already," in "their records."
I respect their previous decision to cancel my DSP. Now, SSAT refuses to decide discrimination.
This time I appeal to the AAT against the decision not to have agreement with Serbia. As Australian citizen I am deprived of reapplying to DSP through Serbian institutions.
8. That application was not without its problems.
9. Even if it is accepted that the applicant's letter dated 4 December 2007 to the AAT amounts to an application to review the decision of the SSAT dated 22 January 2007 (a doubtful proposition, given the applicant’s statement that he "respect[ed] their previous decision to cancel my DSP"), it was several months out of time and was not accompanied by an application for extension of time.
10. It might be argued, in the alternative, that the applicant's letter dated 4 December 2007 should be regarded as an appeal against the SSAT's decision not to entertain his "appeal" to it dated 20 November 2007. However, this is also problematic. While the SSAT's decision not to entertain his appeal to it is properly regarded as a "decision" within s 3(3) of the AAT Act, and specifically paragraph (g) – “doing or refusing to do any other act or thing" – and while this definition of "decision” applies for the purposes of the Social Security Act 1991 (s 23 of that Act) and the Social Security (Administration) Act 1999 (s 3(2) of that Act), s 181 of the latter Act provides that the AAT "may only review a decision that has been reviewed by the SSAT". Clearly, the decision of the SSAT not to entertain his appeal has not itself been reviewed by the SSAT, and there does not seem to be any provision enabling such a review. It therefore appears that on this alternative argument, the applicant's approach to the AAT is not competent.
11. When the Tribunal notified the Secretary on 18 December 2007 that it had received this correspondence from the applicant, the Secretary expressed the view that the Tribunal did not have jurisdiction to decide the application. The Tribunal sent a letter to the applicant on 16 January 2008, inviting the applicant to contact the Tribunal by 22 February 2008 and "tell us why you think the Tribunal has the power to review the decision".
12. The applicant's response was contained in his letter dated 24 January 2008, which said the following:
…
Neither Centrelink nor SSAT answered to me when I asked about discrimination.
From Centrelink letters that advised that a person needs to be residing in Australia or living in a country with agreement on social security, (which were written on 24/Apr/07, 30/July/07 and 1/Nov/07), to claim a DSP, I concluded that I was not able to do so. I was prevented to claim a payment simply because I live in Serbia, or country without an agreement.
As Australian citizen who lives in Serbia, I do not have the same right or possibility as one who lives in Croatia or Australia.
As I was not satisfied with their answers, and later with their silence, I appealed to you, that is AAT, because I was instructed so by Centrelink letters. (or SSAT advice, to be correct).
As I am in a need, and AAT is above SSAT, and I follow the admin procedure, in my view you have the jurisdiction to decide my appeal.
Initially, there was an agreement. After the break up of Socialist Federative Republic of Yugoslavia, the successor of all int’l agreements was Federative Republic of Yugoslavia (“Savezna Republika Yugoslavia”).
After the break up of “SRJ”, new country “Serbia and Montenegro” as successor was formed. After the break up of that country and secession of Montenegro, Serbia remained (Republika Srbija) as successor. Therefore, all int’l agreements should have remained.
But, Australia decided to have agreement with newly formed Croatia only. Australia decided not to continue with Serbia & Montenegro, nor with Serbia.
On the other hand, Australia through AAT provides services to all Australians, regardless of where they live.
You sent to me document "Additional Information Sheet for Overseas Applicants". From that paper I can see that Admin Appeals Tribunal does not discriminate on the country of residence.
Also, I received two application packages few months ago. (They contained claim form and guide for Croatian disability pension, written in Croatian and English.) In my opinion it is totally useless for me.
Firstly, how can it be completed with Belgrade doctors and institutions?
Secondly, I do not live in Australia nor Croatia, so I can not claim a pension. So, what was the purpose of those packages? I found it insulting and inappropriate. What are you going to do about that?
…
13. The matter, originally set down for a telephone conference on 13 March 2008, was instead listed for an “interlocutory hearing” by telephone, to determine the jurisdiction question. This hearing was to take place on 27 March 2008. The applicant, although given adequate notice of the hearing, failed to attend by telephone. In view of the applicant’s failure to attend, but also considering that the Tribunal clearly lacked jurisdiction, I dismissed the application under s 42A(2) of the AAT Act.
14. The applicant then wrote to the Tribunal on 4 April 2008, claiming that I had "made a mistake". He noted that the “conference” had been listed for “13 March 2008 and not 28 [sic] March 2008” and asked that the application be reinstated. The Secretary opposed that application. The matter was then listed for a further “interlocutory hearing” on 24 June 2008, with the applicant to attend by telephone, to consider the reinstatement application.
15. In the interim, the applicant forwarded three further items of correspondence. The first, dated 7 May 2008, noted that he had received a letter from the Secretary’s representative, dated 24 April 2008, and which he said was “full of irrelevant historic facts". The letter to which he referred contains the Secretary's submissions in relation to the reinstatement application.
16. The second item of correspondence was dated 31 May 2008, and was in the following terms:
Dear Sir/Madam
I received your [listing notice] dated 20 May 2008.
Respondent obviously does not respect the Court.
I regard you as my representative.
…
Respondent, also, deliberately lies to mislead. Copy of their letter 21/Apr/06 enclosed. Please, be aware. They did not want to answer that letter.
17. (The respondent's letter dated 21 April 2006 is a notice to the applicant of "Cancellation of your Disability Support Pension" which noted that Centrelink had cancelled his DSP because the amount assessed as his income was "above the allowable limit".)
18. The third item of correspondence was dated 4 June 2008, and was in the following terms:
Dear Sir/Madam
1In my letter 24/Jan/08 I explained the discrimination. I also discredited the respondent.
2In my letter 31/May/08 I discredited the respondent again.
3In my letter 7/May/08 I explained the reasons for money.
4I don’t pay tax, don't own real estate and I don't own business. 3 copies enclosed.
5I found respondent discriminating and insulting.
I ask for $A 2.3 mil ($A2 300 000) payout.
19. The reinstatement hearing took place on 24 June 2008. Ms Sharma appeared in person for the Secretary and the applicant participated by telephone.
20. At the outset I asked the applicant to explain to me why he thought his application should be reinstated. I understood from his response that there were three bases to his claim for reinstatement – and I think it is fair to say that they are also the arguments that he would raise on the substantive application if I were to order reinstatement. I summarised them for him as:
(1)that he had been discriminated against – on the basis that he had been treated differently, as an Australian of Serbian origin, from the way that an Australian of Croatian origin would be treated;
(2)that the SSAT had not considered the discrimination question; and
(3)that he had received an "insulting letter" from Centrelink (in this he seems to be referring to the letter dated 21 April 2006, mentioned in [17] above).
21. The applicant agreed with my summary, but thought that points (1) and (2) merged into the one issue.
22. During the hearing I also emphasised to the applicant that this Tribunal has no power to order the payment to him of $2.3 million, or indeed any amount, in the circumstances he has outlined.
Should the application be reinstated?
23. Because the application was dismissed under s 42A(2) of the AAT Act, the applicant is entitled, by s 42A(8), to apply within 28 days for reinstatement of the application. In that circumstance, the Tribunal may reinstate the application "if it considers it appropriate to do so": s 42A(9).
24. In addition to that provision, the Tribunal may, either on the application of a party or on its own initiative, reinstate an application "if it appears to the Tribunal that an application has been dismissed in error": s 42A(10).
25. First, in relation to s 42A(9), I do not consider it appropriate to reinstate the application. The three bases on which the applicant urges reinstatement, and which represent the bases on which he would support the substantive application, disclose no arguable case. Fundamentally, the applicant is aggrieved by two things – the failure of the Australian government to secure an agreement with the Serbian government in relation to the provision of social security benefits; and the allegedly "insulting" treatment he has received from Centrelink. Neither of those matters is a "decision" capable of review in this Tribunal. In fact, no decisions that are capable of review in this Tribunal have been made since the decision of the SSAT dated 22 January 2007 – and that is a decision that the applicant says he respects, and of which he has not sought review.
26. As far as s 42A(10) is concerned, even if I were satisfied that the application had been dismissed in error (which I am not), I would not reinstate it for the reasons just expressed.
Conclusion
27. The application for reinstatement is refused.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member
Signed: ...................[sgd].............................................................
AssociateDate/s of Hearing 24 June 2008
Date of Decision 15 July 2008
Advocate for the Applicant Self-represented
Solicitor for the Respondent Ms P Sharma, Centrelink Legal Services
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