Kruger And Secretary, Department of Social Services
[2013] AATA 806
•13 November 2013
[2013] AATA 806
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4148
Re
Irelna Kruger
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 13 November 2013 Place Brisbane The application is dismissed pursuant to s 69C of the Administrative Appeals Tribunal Act 1975 (Cth).
...................[Sgd].....................................................
Deputy President PE Hack SC
CATCHWORDS
PRACTICE AND PROCEDURE – application fee not paid – whether application fee payable – cancellation of parental leave pay – whether decision under social security law – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 69C
Administrative Appeals Tribunal Regulations 1976, regs 19, 19AA(6E), Item 9A of Sch 3
Paid Parental Leave Act 2010, s 45(2)
REASONS FOR DECISION
Deputy President PE Hack SC
13 November 2013
The applicant, Ms Irelna Kruger, lodged an application in the Tribunal on 19 August 2013 seeking a review of a decision of the Social Security Appeals Tribunal (SSAT) of 1 August 2013. By that decision the SSAT affirmed an earlier decision of Centrelink that Ms Kruger was not qualified to receive parental leave pay from 13 March 2013. These reasons though do not deal with the merits of that decision, they are concerned only with the question whether Ms Kruger, in seeking a review of that decision, was obliged to pay the fee prescribed by reg 19 of the Administrative Appeals Tribunal Regulations 1976.
In my view she was obliged to pay a fee. Given that she has not done so and has declined to seek the exercise of the discretion to permit payment of a reduced fee of $100 I have concluded that the application should be dismissed. My reasons for coming to that view follow.
Eligibility for parental leave pay is set out in s 31 of the Paid Parental Leave Act 2010 (Cth). It is sufficient for present purposes to say that one of the tests of eligibility is that “the person satisfies the Australian residency test”[1]. Section 45 sets out the circumstances under which a person satisfies the Australian residency test. It provides:
[1] See s 31(2)(c) of the Paid Parental Leave Act.
(1)A person satisfies the Australian residency test on a day if, on that day, the person:
(a)is an Australian resident; or
(b)is a special category visa holder residing in Australia; or
(c)satisfies subsection (2).
When a person satisfies this subsection
(2)A person satisfies this subsection if:
(a)the person is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act; and
(b)either:
(i)the person is in Australia; or
(ii)the person is temporarily absent from Australia for not more than 6 weeks and the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.
It is relevant to note that s 6 of the Paid Parental Leave Act provides that “Australian resident” has the same meaning as in the Social Security Act1991 (Cth).
The SSAT determined that Ms Kruger was not an Australian resident and did not satisfy s 45(2) of the Paid Parental Leave Act. Accordingly, it affirmed the decision that Ms Kruger was no longer eligible for parental leave pay.
As I have said, on 19 August 2013 Ms Kruger lodged an application in this Tribunal to review that decision. Regrettably when the application was lodged the Registry officer mistook the application as one to review a decision regarding parenting payment pursuant to Part 2.10 of the Social Security Act. As a consequence of that mistake the application was wrongly classified in the Tribunal’s case management system as one where no fee was payable on lodgement. Some weeks later, on 30 September 2013, this error was detected and a letter was forwarded to Ms Kruger advising her that a fee of $816 was payable. She was informed however that she might be eligible to pay a reduced fee of $100. Ms Kruger wrote to the Registry by letter of 13 October 2013 to enquire why the view had been taken that a fee was payable and why this had not been mentioned when the application had originally been lodged. Thereafter, there were discussions between Ms Kruger's representative, Mr Lowrie, and the District Registrar before the matter was referred to me by way of a directions hearing on 24 October 2013. At the conclusion of that hearing I ruled that a fee was payable.
Regulation 19 of the Administrative Appeals Tribunal Regulations is in these terms:
(1)Subject to this regulation, a fee of $777 (in this regulation called an application fee) is payable for lodging with the Tribunal of:
(a)an application for review of a decision, other than a relevant taxation decision within the meaning of Part IIIAA of the Act; or
(b)an application under subsection 28(1AC) of the Act; or
(c)an application under subsection 62(2) of the Freedom of Information Act 1982;
other than an application for review of a prescribed decision.
Note: This fee is subject to increase under regulation 19A.
(2)In this regulation, prescribed decision means:
(a)a decision specified in Schedule 3; or
(b)a decision reviewable under the Freedom of Information Act 1982, being a decision made in relation to a document that relates to a decision specified in Schedule 3.
The only relevant item in Schedule 3 is Item 9A, “A decision under the social security law within the meaning of subsection 23(17) of the Social Security Act 1991.” That subsection is in these terms:
A reference in this Act to the social security law is a reference to this Act, the Administration Act and any other Act that is expressed to form part of the social security law.
Mr Lowrie suggested that the decision which Ms Kruger sought to review was one under the Social Security Act and thus within the terms of Item 9A. That was so, he suggested, because the Paid Parental Leave Act incorporated definitions found in the Social Security Act. I do not agree.
The legislative authority for the payment of parental leave pay is the Paid Parental Leave Act. As a consequence, decisions regarding entitlement to parental leave pay are decisions “under” that Act; they are not decisions “under” the Social Security Act merely because the former act incorporates by reference definitions found in the latter act. For that reason I concluded that the application was one in respect of which a fee was payable.
It is, as I have said, regrettable that the original error in categorising the nature of the application was made. The error was explicable because very few applications have been received in this Registry for the review of decisions regarding parental leave pay. Nonetheless the error was detected and Ms Kruger was requested to pay the appropriate fee or to lodge an application to be considered for a fee reduction. She has done neither[2]. A combination of s 69C of the Administrative Appeals Tribunal Act and reg 19AA(6E) of the Administrative Appeals Tribunal Regulations made under that Act permit the dismissal of an application where a fee required to be paid is not paid within 6 weeks after an application is lodged. A considerably longer period has now elapsed. In the circumstances I will exercise that power and dismiss the application.
[2]The most recent email from Mr Lowrie makes it plain that Ms Kruger did not intend to pay the application fee.
I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC .................[Sgd].......................................................
Associate
Dated 13 November 2013
Date(s) of hearing 24 October 2013 Advocate for the Applicant Mr R Lowrie Advocate for the Respondent Mr A Burgess, Program Litigation and Review Branch, Department of Human Services
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