Jasen and Secretary, Department of Social Services (Social services second review)
[2020] AATA 5346
•8 December 2020
Jasen and Secretary, Department of Social Services (Social services second review) [2020] AATA 5346 (8 December 2020)
Division:GENERAL DIVISION
File Number:2020/3039
Re:Carol Jasen
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Mr A Maryniak QC, Member
Date:8 December 2020
Date of written reasons: 8 January 2021
Place:Melbourne
The Tribunal DIRECTS that this application for review is limited to the determination of the statutory questions answered in the primary decision:
a)Whether any special circumstances exist to warrant the waiver of the debt under s 1237AAD of the Social Security Act 1991;
b)Whether the rate of recovery by withholdings from 21 July 2016 was correct.
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Mr A Maryniak QC, Member
Catchwords
PRACTICE AND PROCEDURE – interlocutory – scope of review – review of decision made by Social Security and Child Support Division – application for review limited to the determination of the statutory questions answered in the primary decision
Legislation
Social Security Act 1991 (Cth)
Cases
Commonwealth Bank Officers Superannuation Incorporation Pty Ltd v Federal Commissioner of Taxation [2003] FCA 794
Frugtniet v Australian Securities and Investments Commission [2019] 266 CLR 250
REASONS FOR DECISION
Mr A Maryniak QC, Member
8 January 2021
At the conclusion of the interlocutory hearing of this matter, the terms of this interlocutory decision and the reasons thereof were stated orally.
The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
An extract of the said transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.
I certify that the following 12 (twelve) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member
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Associate
Dated: 8 January 2021
Date of hearing: 8 December 2020 The Applicant: By telephone Advocate for the Respondent: Olivia Hicks Solicitors for the Respondent: Australian Government Solicitor ANNEXURE A
EXTRACT OF TRANSCRIPT OF PROCEEDINGS
MEMBER: Yes, thank you. I’m indebted to the parties for their written submissions on this point and the oral submissions provided this morning. The Tribunal does now intend to give its ruling.
This is the applicant’s application for review of a first tier decision of this Tribunal of 24 April 2020.
By way of background, on 5 February 2002 Centrelink raised and sought recovery of a Newstart allowance debt of $19,998.62. Subsequent reviews by this Tribunal and then the Federal Magistrates Court confirmed a debt of $17,710.59. That excess payment is a debt owing to the Commonwealth.
The applicant was granted the aged pension on 24 June 2016.
On 25 March 2019 this Tribunal refused an extension of time application seeking review of the varied 2002 decision, and this did not quash any decision.
The reasons for judgment of the Federal Magistrates Court of November 2007 stand, and the issues determined in that proceeding are res judicata. Relevantly, the Federal Magistrates Court rejected the applicant’s contention that the previous Tribunal misapplied section 1237A of the Social Security Act 1991 and it found that the waiver did not apply.
This procedural history of other applications informs the positioning of the necessary goalposts to be applied to the decision now under review, namely the decision of this Tribunal of 24 April 2020. The review decision is an eventual product of an undertaking made by the respondent at an interlocutory hearing on 21 March 2019. It addressed the applicability of any waiver pursuant to section 1237AAD of the Social Security Act, and not the previously determined section 1237A issue, and the correct rate of withholdings.
That is the extent and the nature of the review decision of 24 April 2020 which the applicant makes application for review to this Tribunal. This Tribunal has jurisdiction pursuant to section 179(1) of the Social Security (Administration) Act 1999, and the decision under review is taken to be the decision as affirmed by this Tribunal on 24 April 2020, pursuant to section 179(2)(a) of the Social Security Act.
On review this Tribunal is only empowered to exercise those powers exercised by the original decision-maker, here the respondent, for the purposes of reviewing a decision. The parameters of the review, that is its nature, cannot be altered; see Commonwealth Bank Officers Superannuation Incorporation Pty Ltd v Federal Commissioner of Taxation [2003] FCA 794, paragraphs 20 and 21; and Frugtniet v Australian Securities and Investments Commission [2019] 266 CLR 250 at paragraph 15.
The statutory questions for review remain consistent, and the only de novo aspect is that the same issues may be reviewed, informed by further tranches of relevant evidence if applicable.
The goalposts of the review are the statutory questions that the primary decision answers, that is pursuant to the 21 March 2019 undertaking, and they remain. Hence the issues which will be reviewed de novo by this Tribunal are the potential recovery of the debt by withholdings, and any potential waiver under section 1237AAD of the Social Security Act.
So in the circumstances the Tribunal will make the following directions:
The tribunal notes that this application for review is limited to the determination of the statutory questions answered in the primary decision: (a) whether any special circumstances exist to warrant a waiver of the debt under section 1237AAD of the Social Security Act 1991; and (b) whether the rate of recovery by withholdings from 21 June 2016 was correct.
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