Lee and Secretary, Department of Social Services (Social services second review)

[2018] AATA 3615

Lee and Secretary, Department of Social Services (Social services second review) [2018] AATA 3615 (24 September 2018)

Division:GENERAL DIVISION

File Number:  2018/4960

Re:Joanna Nging Thor Ly Lee

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:24 September 2018

Date of written reasons:        24 September 2018

Place:Brisbane

The application for review is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

............................[sgd]............................................

Senior Member Theodore Tavoularis

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – where Applicant previously withdrew her case before the Tribunal – where Tribunal refused to reinstate her application – where Applicant lodged fresh application for review of previous Tribunal matter – whether Tribunal has jurisdiction to hear appeals against its own decisions – Tribunal has no such jurisdiction – application for review dismissed

LEGISLATION

Administrative Appeals Act 1975 (Cth), ss 25, 42A, Part IVA

CASES

Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 1309

Negri v Secretary, Department of Social Services

(2016) 246 FCR 1

Rana and Defence Force Retirement and Death Benefits Authority

[2009] AATA 404

Re Bienstein and Commonwealth Ombudsman

[2003] AATA 1197

Re Dennis and Secretary, Department of Transport

(1979) 2 ALD 255

Re Laird and Australian Broadcasting Tribunal

[1979] AATA 52

Re McLindin and Acting Commissioner for Superannuation

(1979) 2 ALD 261

REASONS FOR DECISION

Senior Member Theodore Tavoularis

24 September 2018

INTRODUCTION

1. On 25 July 2018, Miss Joanna Nging Thor Ly Lee (“the Applicant”) attended a hearing before this Tribunal (although differently-constituted), at the end of which she withdrew her application for review. That matter had the Tribunal file number 2017/7054 and was an application for review of a decision to raise and recover a substantial debt against the Applicant.

2. Shortly after submitting her written withdrawal form to the Tribunal, the Applicant submitted a letter in which she sought to revoke her withdrawal. This request was refused by the Tribunal as, under s 42A(8) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), applications for reinstatement after an application is withdrawn cannot be made by the applicant to the Tribunal. The Applicant subsequently written to the Tribunal, seeking for her application to be reinstated. This case is the latest iteration of that request.

3. On 3 September 2018, the Applicant submitted an online application for review form to the Tribunal. On that form, she listed the review number of the decision of which she sought review as 2017/7054. She further identified its date as being 25 July 2018. In answer to the question “Why do you claim the decision is wrong?”, the Applicant wrote:

   Regarding the Notice of Withdrawal form AAT asked my to signed [sic] on the listing hearing room on 25/7/2018 AND my application of the appeal with Secretary, Department of Social Services decision of the alleged debts against my name and records.

4. It is clear that in the present application, the Applicant seeks for Tribunal matter number 2017/7054, an application which she withdrew, to be reviewed. The question presently before me is whether or not the Tribunal has jurisdiction to do that.

5. On 24 September 2018, an interlocutory hearing on the question of jurisdiction was held. The Applicant appeared by telephone. At the interlocutory hearing, the Applicant asked if Mr Jonathan Mander-Jones could speak on her behalf. I assented to this request.

6. Mr Mander-Jones raised a number of points, seeking to impugn the validity of the Applicant’s withdrawal. Regardless of how well-made those points may have been, they did not go to the question at hand: whether or not the Tribunal has jurisdiction to hear this application. For reasons given orally at the interlocutory hearing, I dismissed this application for review. These reasons elaborate on those oral reasons, but do not depart from their substance.[1]

   [1] Cf Negri v Secretary, Department of Social Services (2016) 246 FCR 1 at [27] (Bromberg J).

   DOES THE TRIBUNAL HAVE JURISDICTION IN THIS CASE?

7. The Tribunal’s jurisdiction is established according to ss 25(1) and 25(3) of the AAT Act, which relevantly provide:

   1An enactment may provide that applications may be made to the Tribunal:

   (a)for review of decisions made in the exercise of powers conferred by that enactment; or

   (b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

   …

   3Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:

   (a)shall specify the person or persons to whose decisions the provision applies;

   (b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and

   (c)may specify conditions subject to which applications may be made.

8. Thus, in general terms, for the Tribunal to have jurisdiction to hear a matter:

   (a)An enactment must provide for applications to be made to the Tribunal;

   (b)It must provide for those applications as being for review of decisions made under that enactment; and

   (c)Subject to ss 25(5) and 25(5A) of the AAT Act, there must in fact have been a decision made under that enactment.

9. Crucially, s 25 of the AAT Act means that the Tribunal does not have general or inherent jurisdiction; its power to hear claims is limited to reviewing decisions under enactments where there are explicit statutory review rights to the Tribunal.[2] The Tribunal must interpret these provisions strictly.[3] Contrary to Mr Mander-Jones’ submissions, it cannot find it has jurisdiction or allow an application to be heard merely because it is fair – although I hasten to add that I make no finding as to whether it would be fair for this review to occur. To hear a matter where no enactment empowers the Tribunal to do so would be to overstep the Tribunal’s powers and commit a gross jurisdictional error. I will not do so.

   [2] See, e.g. Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309.

   [3] See Re McLindin and Acting Commissioner for Superannuation (1979) 2 ALD 261; Re Dennis and Secretary, Department of Transport (1979) 2 ALD 255; Rana and Defence Force Retirement and Death Benefits Authority [2009] AATA 404; Re Bienstein and Commonwealth Ombudsman [2003] AATA 1197; Re Laird and Australian Broadcasting Tribunal [1979] AATA 52.

10. While this is the framework within which the Tribunal must make its decision, it does not answer the question of whether the Tribunal has jurisdiction in this instance. I will now turn to answering that question.

11. The Applicant withdrew her application in Tribunal matter number 2017/7054 under s 42A(1A) of the AAT Act. Pursuant to s 42A(1B), upon receiving a withdrawal, the Tribunal is taken to have dismissed the application without proceeding to review the decision. I note that the withdrawal form signed by the Applicant includes a notice to this effect. As mentioned above, ss 42A(8)-(10) provide for applications for review to be reinstated in certain circumstances. However, the Applicant was found by the Tribunal to be unable to rely on s 42A(8) – which provides for reinstatement where the Tribunal is taken to have dismissed an application under s 42A(1B) – as s 42A(8) explicitly excludes applicants from being able to apply for reinstatement if they have withdrawn their cases. Accordingly, the Tribunal in matter number 2017/7054 found it did not have the power to reinstate the application.

12. As a technical matter, it is unclear to me which decision the Applicant seeks to be reviewed in this case: her decision to withdraw her application under s 42A(1A), the fact the Tribunal is taken to have dismissed her application under s 42A(1B), or the Tribunal’s refusal to reinstate the application on the grounds it was unable to.

13. Whichever decision the Applicant seeks to be reviewed, the enactment which provides the framework and power for each of the three possible decisions is the AAT Act. The AAT Act does not provide for the Tribunal to review decisions made in exercise of powers under the AAT Act. Rather, it provides for review by the Federal Court or the Federal Circuit Court.[4]

    [4] See Administrative Appeals Act 1975 (Cth), Part IVA.

14. It is clear to me that there is no relevant enactment which empowers the Tribunal to review its decisions of the kind made in Tribunal matter number 2017/7054. Accordingly, I find that the Tribunal does not have jurisdiction to hear this matter.

    CONCLUSION

15. Accordingly, I dismiss this application for review under s 42A(4) of the AAT Act.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..........................[sgd]..............................................

Associate

Dated: 24 September 2018

Date of hearing:	24 September 2018
Advocate for the Applicant:	Mr Jonathan Mander-Jones