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

This matter concerned an appeal by the Secretary, Department of Social Services, from a decision of the Administrative Appeals Tribunal (AAT) first review. The dispute centred on whether the Respondent qualified for an age pension, specifically whether he was an Australian resident at the time he lodged his claim. The AAT second review was brought before the Tribunal to determine the nature of the AAT first review decision and its implications for the ongoing assessment of the Respondent's claim.

The primary legal issue before the Tribunal was to ascertain the precise nature of the AAT first review decision, given the ambiguity in its wording. This was crucial for determining the scope of the Tribunal's jurisdiction under section 179 of the *Social Security (Administration) Act 1999* (Cth). The Tribunal had to decide whether the AAT first review decision fell under section 179(2)(c) (setting aside and substituting a new decision) or section 179(2)(d) (setting aside and remitting for reconsideration).

The Tribunal reasoned that while the wording of the AAT first review decision was imprecise, it clearly fell within the scope of section 43(1) of the *Administrative Appeals Tribunal Act 1975* (Cth), thus establishing the Tribunal's jurisdiction. Observing the concluding remarks of the AAT first review, which stated the Respondent was an Australian resident and that his claim should be remitted to the Secretary for assessment, the Tribunal inferred that the AAT first review likely intended to set aside the original decision and remit the matter to the Secretary with a direction regarding the Respondent's residency status. Consequently, the Tribunal considered the AAT first review decision to be most consistent with section 179(2)(d) of the *Social Security (Administration) Act 1999* (Cth). The Tribunal indicated that even if it reached a similar conclusion in favour of the Respondent, it would need to vary the AAT first review decision to correct its wording. The Reviewable Decision before the Tribunal was therefore identified as the ARO Decision of 29 January 2020, as set aside by the AAT first review on 31 March 2020.