Lee and Secretary, Department of Social Services (Social services second review)
[2023] AATA 393
•16 March 2023
Lee and Secretary, Department of Social Services (Social services second review) [2023] AATA 393 (16 March 2023)
Division:GENERAL DIVISION
File Number: 2022/6321
Re:Jeremy Lee
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Decision
Tribunal:Member D Mitchell
Date:16 March 2023
Place:Brisbane
The Tribunal dismisses the application for review pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
................................[SGD].........................................
Member D Mitchell
Catchwords
SOCIAL SECURITY – Suspension of JobSeeker Payment – failure to enter into an employment pathway plan – failure rectified – payments resumed from date of suspension
PRACTICE AND PROCEDURE – jurisdiction of the Tribunal – was a reviewable decision made by the Respondent – no reviewable decision – application dismissed
PRACTICE AND PROCEDURE – role of the Tribunal – application for dismissal of application for review – on the basis of being frivolous – no utility in review – no practical benefit available to the Applicant – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)Cases
Director-General of Social Security v Hales [1983] FCA 81; (1983) 78 FLR 373
Flahive and Comcare (Compensation) [2021] AATA 2444
Inguanzo and Secretary, Department of Social Services [2022] AATA 4343
McCarthy and Building Practitioners Board [2016] AATA 1029
Reddish and Civil Aviation Safety Authority [1999] AATA 721
Rundle and Civil Aviation Safety Authority [2002] AATA 349
Shah and Child Support Registrar (Child Support) [2020] AATA 2644
Stanley and Minister for Foreign Affairs [2018] AATA 982
Stenhouse and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57
REASONS FOR DECISION
Member D Mitchell
16 March 2023
Introduction
On 1 August 2022, Mr Jeremy Lee (the Applicant) sought a second-tier review[1] of a decision made by the Social Services and Child Support Division (SSCSD)[2] on 27 April 2022.[3]
[1] T Documents, T1, pages 1-4, Application for review.
[2] T Documents, T2, pages 5-7, Decision of the SSCSD.
[3] It is noted that the SSCSD decision was not dispatched to the Applicant until 6 July 2022: T Documents, T1, page 3, Application for review.
BACKGROUND
The decision the Applicant is seeking to have reviewed relates to a decision made by the Respondent on 15 September 2021 to suspend his payment of JobSeeker Payments (JSP) from 7 September 2021 on the basis that he had not entered into a Job or Participation Plan.[4]
[4] T Documents, T6, pages 26-27, Your JobSeeker Payment has been stopped, T12, pages 55-56, Centrelink customer records and T13, page 87, Centrelink file notes.
On 21 September 2021, the Applicant sought an internal review of that decision and sought to have his social security payment reinstated.[5]
[5] T Documents, T10, pages 43-44, Email from Applicant to Centrelink.
On 11 October 2021, the Applicant agreed and signed an employment pathway plan and his JSP were reinstated with effect from 7 September 2021.[6] In effect, meaning that the Applicant was subsequently in receipt of his entitlement of JSP for the full period in question.
[6] T Documents, T12, page 63, Centrelink customer records.
On 14 December 2021, an Authorised Review Officer (ARO) found that there was nothing to review as the original decision had been varied such that the Applicant’s payments were no longer suspended.[7] The ARO provided:[8]
A formal review was requested of the decision made on 15 September 2021 to suspend your JobSeeker Payment from 7 September 2021.
On 15 September 2021 your JobSeeker Payment was suspended from 7 September 2021 because you did not enter into a Job or Participation Plan when you were asked to do so on 13 September 2021.
I have investigated your review request and have found that the decision was finalised on 11 October 2021 with no financial penalty as you met the requirement Max Employment, Gympie gave you.
Services Australia does not have the legal authority to undertake a formal review of the decision. This is because the law specifically excludes it.
However, you may wish to contact the Commonwealth Ombudsman about this decision. Please see below for their contact details.
[7] T Documents, T8, pages 30-32, ARO decision and notes.
[8] T Documents, T8, page 30, ARO decision.
The ARO notes provided the following reasons for their decision:[9]
I have reviewed decision of 15.9.2021 to suspend JCA 7.9.2021. On 15 September 2021 the customer’s JobSeeker Payment was suspended from 7 September 2021 because he did not enter into a Job or Participation Plan when asked to do so on 13 September 2021. I have investigated the review request and have found that the decision was finalised on 11 October 2021 with no financial penalty as customer met the requirement Max Employment, Gympie gave him. There is nothing for an ARO to review pursuant to section 126 of the Social Security (Administration) Act 1999. ARO no jurisdiction letter uploaded to customer record (ARODEC, AROEVD).
[9] T Documents, T8, page 32, ARO notes.
On 21 December 2021, the Applicant applied to the SSCSD for further review of that decision.[10]
[10] T Documents, T10, pages 35-52, Application for Review of Decision (SSCSD) and attachments.
On 27 April 2022, the SSCSD affirmed the ARO decision.[11] The SSCSD stated:[12]
12During the hearing, when the Tribunal suggested that there was no longer a reviewable decision before it, [the Applicant] submitted that the Tribunal could review suspensions of benefits. As in his written submission, [the Applicant] was of the view that the Tribunal had the power to review decisions concerning procedures to be followed concerning entitlements and enforcement provisions.
13The Tribunal does not accept [the Applicant’s] submissions on its powers. The Tribunal no longer had a decision to suspend [the Applicant’s] jobseeker payments when he refused to sign the documentation. The issue had been resolved and the suspension lifted and back payments made. Furthermore, the legislation makes it clear that the Tribunal does not have the power to determine if the procedures adopted for a person to qualify for a particular type of benefit under social security legislation are legal and appropriate.
14The dispute concerning [the Applicant’s] payments was resolved before the ARO decision and is no longer ongoing.
15The Tribunal notes that [the Applicant] is concerned about the requirements generally imposed on recipients of jobseeker and other benefits to sign off on documents and follow certain procedures. However, the Tribunal is not in the position to re-analyse processes followed where the issue in dispute has been resolved. Nor does it have a general power to oversee the implementation of social security legislation.
[11] T Documents, T2, pages 5-7, Decision of the SSCSD.
[12] T Documents, T2, page 7, paragraphs 12-15, Decision of the SSCSD.
On 1 August 2022, the Applicant applied to this Tribunal for further review (second review).[13] The Applicant outlined his reason for seeking review as being primarily because he did not think the SSCSD decision was a decision as in his view it did not consider both parties’ reasoning or apply judgment or even understand that there was a decision to be reviewed.[14]
[13] T Documents, T1, pages 1-4, Application for review.
[14] T Documents, T1, pages 1-4, Application for review.
On 21 October 2022, the Respondent sought that the Tribunal conduct a Telephone Interlocutory Hearing to consider dismissing the Applicant’s application pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the application was frivolous. The Respondent provided written submissions in that regard, dated 3 November 2022.[15]
[15] Respondent’s Dismissal Submissions dated 3 November 2022.
A Telephone Interlocutory Dismissal Hearing was conducted in this matter on
5 December 2022.
At the Telephone Interlocutory Dismissal Hearing, the Tribunal raised issues in relation to its jurisdiction to consider the application, particularly in circumstances where it appeared that no reviewable decision had actually been made.
The Parties were asked to provide written submissions in relation to the Tribunal’s jurisdiction. On 16 December 2022 the Respondent filed written submissions,[16] which were followed by written submissions filed by the Applicant on 6 January 2023.[17]
[16] Respondent’s Jurisdiction Submissions dated 16 December 2022.
[17] Applicant’s Jurisdiction Submissions dated 6 January 2023.
issues
The present issues before the Tribunal are:
(a)whether there is a reviewable decision that enlivens the Tribunal’s jurisdiction to hear the application; and if so
(b)whether the Tribunal should exercise its discretion to dismiss the Applicant’s application for review pursuant to section 42B(1)(a) of the AAT Act.
jurisdiction of the Tribunal
The Tribunal’s role is to undertake an independent merits review of administrative decisions for which it has jurisdiction to hear.
The bounds of the Tribunal’s decision-making powers are found in section 43 of the AAT Act which provides:
1.For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)Affirming the decision under review;
(b)Varying the decision under review; or
(c)Setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any direction or recommendations of the Tribunal.
The Tribunal cannot make a decision that is outside of the law that is in place. Concerns raised with regard to the administration of social security laws that do not fall within the Tribunal’s jurisdiction are not a matter for the Tribunal to determine.
‘Decision’ is defined in section 3(3) of the AAT Act and provides that unless the contrary intention appears, a reference to a ‘decision’ includes reference to:
(a)making, suspending, revoking or refusing to make an order or determination;
(b)giving suspending, revoking or refusing to give a certificate, direction approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.
The Respondent drew the Tribunal’s attention to the decision in Director-General of Social Security v Hales [1983] FCA 81; (1983) 78 FLR 373 where Lockhart J stated:
The definition of “decision” in sub-s.3(3) seeks to embrace them all by its ambulatory character. One cannot therefore look to the definition in sub-s.3(3) to determine definitively the meaning of the decision “decision”. It must take its colour and content from the enactment which is the source of the decision itself. No narrow or pedantic approach is called for in determining whether a decision falls within the scope of the review of the Administrative Appeals Tribunal. The multiplicity of statutes which continue to grow and confer jurisdiction on the Administrative Appeals Tribunal, and the manifold and diverse circumstances which attract the power of the decision maker, all call for a liberal approach to the definition of the word “decision”…it is necessary to examine the Act which confers jurisdiction on the Administrative Appeals Tribunal and the administrative framework in which it operates to determine whether there is a “decision” susceptible of review under the Administrative Appeals Tribunal Act.
Section 25 of the AAT Act sets out the jurisdiction of the Tribunal as follows:
1Enactment may provide for applications for review of decisions
An enactment may provide that applications may be made to the Tribunal:
(a)for review of a decision made in the exercise of powers conferred by that enactment; or
(b)for the review of decision made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
…….
As explained by Senior Member Constance (as he then was) in Re Staats and National Archives of Australia [2009] AATA 598; (2009) 50 AAR 147 at 149-150:
It is clear from the wording of section 25 of the Administrative Appeals Tribunal Act that the Tribunal can only review a decision if it is given the jurisdiction to do so by a specific provision of another enactment. It is essential to look very carefully at the provisions of the enactment said to give rise to the jurisdiction to review to make sure that the jurisdiction extends to the particular decision in respect of which a review is sought.
As such, the Tribunal is limited to reviewing decisions if it is given the jurisdiction to do so by a specific provision of an enactment. In the present matter the enabling statute is the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Part 4 of the Administration Act deals with internal reviews of decisions with Part 4A dealing with both first and second reviews by the Tribunal.
Relevantly, section 142 of the Administration Act provides:
1Subject to section 144, application may be made to the AAT for review (AAT first review) of:
(a)a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer made under section 126 or 135; or
(b)a decision under this Act made personally by the Secretary or the Chief Executive Centrelink.
4For the purposes of subsection (1), the decision made by the Secretary, the Chief Executive Centrelink or the authorised review officer is taken to be:
(a)if the Secretary, the Chief Executive Centrelink or the authorised review officer affirms a decision —that decision as affirmed; and
(b)if the Secretary, the Chief Executive Centrelink or the authorised review officer varies a decision —that decision as varied; and
(c)if the Secretary, the Chief Executive Centrelink or the authorised review officer sets a decision aside and substitutes a new decision —the new decision.
Section 126 of the Administration Act provides that the Secretary may review a decision under the social security law, whether a person has applied for a review or not, if they are satisfied that there is sufficient reason to review the decision and may either affirm, vary or set aside and substitute a new decision.
Section 135 of the Administration Act applies to review of decisions following an application for review made pursuant to section 129 and provides that the Secretary, the Chief Executive or Centrelink or an authorised review officer must review the decision and either affirm, vary or set aside and substitute a new decision.
Section 179 of the Administration Act provides:
1Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
2For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
(a)if an AAT first review affirms a decision —that decision as affirmed; or
(b)if an AAT first review varies a decision —that decision as varied; or
(c)if an AAT first review sets a decision aside and substitutes a new decision--the new decision; or
(d)if an AAT first review sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT —the directions or recommendations of the AAT.
parties’ jurisdiction submissions
The Respondent submitted that a decision had not been made by the ARO, and as such, the ability to seek a first-tier review by the Tribunal and for that matter, a subsequent second-tier review, is not available to the Applicant.[18] The Respondent provided the following submissions in support of its contention that the Tribunal does not have jurisdiction to hear the present application:[19]
[18] Respondent’s Jurisdiction Submissions dated 16 December 2022.
[19] Respondent’s Jurisdiction Submissions dated 16 December 2022.
21.As the Secretary understands the matter, the Applicant had sought review of the decision to suspend his job seeker payment on the basis that he disagreed with having to enter into an employment pathway plan.
22.The Secretary further understands and notes that it is not in dispute, that the ARO considered they did not have authority to consider the Applicant’s request for review. It has become apparent since the part hearing on 5 December 2022, that the Applicant’s request for review relies on whether s 605(1) of the SS Act applied (as it was in September 2021).
23.The Secretary contends that s 593 of the SS Act sets out the qualification requirements for jobseeker. Of relevance, to qualify for jobseeker payment (during a period), a person satisfies the Secretary throughout that period, amongst other matters, if they are unemployed. The qualification requirements also require the person to satisfy the activity test and if subsection 605(1) applies to a person, at all times, during the period when a jobseeker employment pathway plan is not in force, the person is prepared to enter into such a plan.
24.Subsection 605(1) of the SS Act provides that if a jobseeker employment pathway plan is not in force in relation a person, the Secretary may require the person to enter into such a plan if, the person is receiving or has made a claim for jobseeker payment. Further, that if a jobseeker employment pathway plan is in force, the Secretary may require the person to enter into another plan instead of the existing one.
25.The Secretary contends that s 605(1) applied to the Applicant as he was required to enter into a jobseeker employment pathway plan. The Secretary further contends that the Applicant’s failure to enter into the jobseeker employment pathway plan resulted in a mutual obligation failure and his jobseeker payment was appropriately suspended pursuant to s 42AL of the Administration Act.
…….
27.Notwithstanding, the Secretary contends that following the application for review by the Applicant, the ARO had not turned their mind to s 593 or s 605(1) of the Act (as it was in September 2021) and in those circumstances had not reviewed the decision as required by s 135(1)(a) of the SSA Act. Accordingly, the ARO could not have affirmed, varied or set aside the decision as required by ss 135(1)(b)(i)(ii) or (iii) of the SSA Act.
28.In those circumstances, the Secretary contends that s 142(1)(a) of the SSA Act was not met when the Applicant lodged his application for review to the AAT1 and the AAT1 could not have exercised all powers conferred on it under subsection 43(1) of the AAT Act.
29.Accordingly, the Secretary contends that s 179(1) of the SSA Act was met when the Applicant lodged his application for review to this Tribunal and this Tribunal (similarly to the AAT1) cannot exercise all powers conferred by the SS Act under subsection 43(1) of the AAT Act and the application ought to be dismissed.
The Applicant submitted that a decision had been made because his social security payment was suspended from 7 September 2021 until 11 October 2021. The Applicant provided the following:[20]
[20] Applicant’s Jurisdiction Submissions dated 6 January 2023.
Submissions.
1. The Secretary is attempting to prevent her Decision being reviewed by claiming that there was no decision. This is a nonsense.
- Centrelink made a Decision to refuse me social security unless I signed an unaltered, unnegotiated Job Plan as confirmed in the Centrelink letter of 8Dec2021:
I have received your application for a formal Review of the decision made on 13Sep2021 not to pay you jobseeker payment
- Once an Applicant of social security has applied for social security, Centrelink (and the Commonwealth) cannot take any action - for or against - that applicant without a Decision being made.
i.e. Centrelink is obliged by law to consider an application and then Decide what action to take.
- If the Tribunal allows Centrelink to argue that no Decision was made to deprive me of social security, then it must also argue that no Decision was made to provide me social security.
- I applied for social security over a year prior to 13Sep2021 and was granted a Newstart payment. This approval of my application for a social security payment necessarily involves a decision. And once I am a recognised recipient of a payment, that payment can only be stopped after a decision has been made to stop it.
- The two clearest decisions Centrelink makes in relation to a recipient of social security is the decision to approve an applicant’s payment, and the decision to stop that applicant’s payment.
- In making the decision to provide me a social security payment, Centrelink collected information relevant to my application, considered whether I qualified for payment, then decided to grant me payment (or not).
- Similarly, in making the decision to stop my social security payment, Centrelink considered that I refused to sign a Job Plan and decided that they should take the action of refusing to pay me social security until I did.
- Centrelink is the only agency legally empowered to pay me Newstart and the only agency empowered to stop my payment.
Employment Service Providers (ESPs) cannot start or stop people’s payments because a private business cannot exercise control over social security.
- Centrelink’s letter of 14Dec2021 confirms that my payment was stopped because I refused to sign a Job Plan:
On 15Sep2021 your Jobseeker payment was suspended… because you did not [sign a Job Plan] when you were asked to… on 13Sep2021.
- Centrelink asked me to sign a Job Plan, understood that I refused to sign it, then decided to stop my payment on that basis. In their own words Centrelink clarifies that a decision was taken to stop my payment.
That is a reviewable decision.
……
… The Secretary has wasted over a year denying they made a decision to stop my social security payment, and passed-up the opportunity to review their decision in a calculated attempt to avoid AAT review.
It would be an unjust for the Tribunal to give Centrelink another opportunity to delay further.
The Secretary’s claim that no detriment was caused by the decision to suspend payment, is a repudiation of the obvious. The decision to suspend payment undermines people’s ability to provide for themselves and immediately delivers social insecurity. That is a very powerful weapon which was and is continually used by Centrelink to coerce compliance from people.
The Secretary would better understand the detriment caused by her decision if she was poor, had no alternative income and her social security payment was stopped.
consideration on jurisdiction
The Applicant quite rightly states that a decision was made and in fact a number of decisions were made, firstly to suspend his JSP and then to reinstate it. As set out above, however, the Tribunal’s jurisdiction does not extend to reviewing all decisions made by government agencies. The Tribunal’s jurisdiction is limited to reviewing a decision if it is given the jurisdiction to do so by a specific provision of another enactment.
It is, as stated in Re Staats and National Archives of Australia [2009] AATA 598; (2009) 50 AAR 149 at 149-150, “…essential to look very carefully at the provisions of the enactment said to give rise to the jurisdiction to review to make sure that the jurisdiction extends to the particular decision in respect of which a review is sought.”
As such, while the Tribunal acknowledges the Applicant’s continued dissatisfaction with the decision making process in question, it is the Administration Act that outlines the Tribunal’s jurisdiction to consider the matter. To that end, the Tribunal agrees with the submissions made by the Respondent.
The decision of the ARO clearly provides that they formed the view that the Respondent did not have jurisdiction to review the 15 September 2021 decision to suspend the Applicant’s JSP as the decision was finalised on 11 October 2021 when his JSP’s were reinstated from the suspension date. The evidence before the Tribunal demonstrates that a review of decision was not undertaken in accordance with section 135 of the Administration Act.
Consequently, the Tribunal finds that there was no jurisdiction for the SSCSD to review the ARO decision as a decision had not been made by the ARO to either affirm, vary or set aside and substitute a new decision as required to enliven the review rights provided by section 142 of the Administration Act.
It, therefore, logically flows that this Tribunal does not have jurisdiction to consider this application. The Tribunal’s jurisdiction to undertake a second review has not been enlivened by section 179 of the Administration Act in circumstances where the SSCSD did not have jurisdiction to consider the matter on first review.
It is noted that section 179 of the Administration Act together with section 43(1) of the AAT Act are drafted on the assumption that the SSCSD had jurisdiction and has made a reviewable decision. Where the SSCSD did not have jurisdiction, its decision is one that cannot be affirmed, varied or set aside by this Tribunal.[21]
[21] Inguanzo and Secretary, Department of Social Services [2022] AATA 4343.
For those reasons, the Tribunal finds, that there is no reviewable decision before it and as such it does not have jurisdiction to hear the application. Consequently, the Tribunal dismisses the application pursuant to section 42A(4) of the AAT Act.
in the alternative should the application be dismissed pursuant to section 42B(1) of the aAT Act?
For completeness, if the Tribunal is wrong in finding it does not have jurisdiction to hear the application, it has considered whether or not the application should be dismissed as being frivolous.
As Senior Member McCabe, as he was then known, pointed out in the decision of Stenhouse and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57 at [4]:
The expression “frivolous or vexatious” is often misunderstood. In one sense, the words are unfortunate: an applicant might suppose the Tribunal is not taking his or her complaint seriously if it is described as being “frivolous”. That word has a particular meaning when it is used in the Act. It means the application is futile or pointless, most obviously because the Tribunal is not able to assist the applicant in a meaningful way. …
Section 42B(1) of the AAT Act provides that:
1The Tribunal may dismiss an application for the review of a decision, at any stage of the proceedings, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospects of success; or
(c)is otherwise an abuse of the process of the Tribunal.
Whether an application for review is frivolous, vexatious, misconceived or lacking in substance has been considered by the Tribunal on numerous occasions. The Tribunal’s decision in Reddish and Civil Aviation Safety Authority [1999] AATA 721 (Reddish) sets out the principle that an application for review made to the Tribunal may be dismissed as being frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the Applicant.
The Tribunal at [33] said:
… The cases of Gowing, Surf Air and Williams are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant. Plainly this Tribunal will not be able to make a decision that will be of any practical benefit to the applicant, and it would be a waste of everyone's time and money for any of these three applications to be allowed to remain on foot. …
This view has continued to be applied in subsequent Tribunal decisions.[22]
[22] For example, see: Rundle and Civil Aviation Safety Authority [2002] AATA 349; McCarthy and Building Practitioners Board [2016] AATA 1029; Stanley and Minister for Foreign Affairs [2018] AATA 982; Shah and Child Support Registrar (Child Support) [2020] AATA 2644 and Flahive and Comcare (Compensation) [2021] AATA 2444.
The Respondent submitted that the application is frivolous and should be dismissed on the basis that no practical outcome can be achieved by the Applicant in pursuing the application.[23]
[23] Respondent’s Dismissal Submissions dated 3 November 2022.
The Respondent provided the following overview of the statutory framework for suspension of JSP:[24]
12Section 42AA of the Social Security (Administration) Act 1999 (the Administration Act) sets outs the Secretary’s requirement to take action to ensure that people meet their obligations in relation to participation payments which include JSP.
13Section 42AC of the Administration Act provides that a person commits a mutual obligation failure when the person is in receipt of a participation payment and fails to comply with a requirement to enter into an employment pathway plan.
14Section 42AF provides that if a person commits a mutual obligation failure, the Secretary must determine that the participation payment is not payable to the person for a period and take action.
15The payment suspension periods are determined in accordance with section 42AL of the Administration Act. Relevantly, the suspension period begins at the start of the instalment period in which the person commits the mutual obligation failure and ends immediately before the day the person complies with the reconnection requirement or an earlier date if determined appropriate by the Secretary.
16On 13 September 2021 the Applicant committed a mutual obligation failure and the payment of JSP to the applicant was suspended with effect from 7 September 2021.
17On 11 October 2021, the Applicant signed an employment pathway plan and a determination was made to end that suspension period with effect from 7 September 2021.
[24] Respondent’s Dismissal Submissions dated 3 November 2022.
The Respondent submitted that:[25]
… following the Applicant’s compliance with his mutual obligations under the Act, the payment of JSP was reinstated. Further, the Secretary determined it was appropriate to give effect to the reinstatement from the date of suspension. Accordingly, the Applicant has received his maximum entitlement to JSP, and no detriment continues to flow from the original suspension decision. Accordingly, the Secretary contends there can be no practical utility to this application for review.
[25] Respondent’s Dismissal Submissions dated 3 November 2022.
The Applicant provided an outline of the submissions he made at the Telephone Interlocutory Hearing on 12 December 2022. The Applicant’s submissions are consistent with the views that have been extracted above in this decision and will not be repeated at this juncture, short to say that the Applicant’s primary issue seems to be that he disagrees with the mutual obligation requirements that are linked to the payment of JSP and sees them as unlawful and as a form of harassment.[26]
[26] Applicant’s Outline of Submissions regarding dismissal filed on 12 December 2022.
The Tribunal understands, albeit simply put, that the Applicant’s concerns lie primarily around the decision making process of the Respondent and the way in which the social security laws require social security recipients meet certain obligations to ensure that they continue to receive their social security benefits.
Whilst the Applicant is entitled to have his opinion on the requirements placed on social security recipients by the social security laws and how those laws are then administered, such matters are not matters for the Tribunal to be involved in. The role of the Tribunal is, as set out above, to review decisions for which it has jurisdiction to do so. Its role does not extend to adhocly reviewing the social security law as made or how it is administered.
As such, while acknowledging the Applicant does not accept that the matter to which his application relates has been resolved, the Tribunal finds that as his JSP were reinstated from the date of suspension, the Tribunal is unable to make a decision that would be of any practical benefit to the Applicant.
Consequently, the Tribunal considers that if it did have jurisdiction to consider the application, it would be futile for the proceedings to continue and in such circumstances, it would be appropriate to exercise the discretion provided by section 42B(1)(b) of the AAT Act to dismiss the application.
DECISION
The Tribunal does not have jurisdiction to consider this application.
Consequently, pursuant to section 42A(4) of the AAT Act the application for review is dismissed.
| I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell |
........................[SGD].............................
Associate
Dated: 16 March 2023
Date of hearing:
Date of last submission:
5 December 2022
6 January 2023
Applicant: By phone Solicitors for the Respondent: Ms Jasmine Forsyth
Mills Oakley Solicitors
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