LHYD and Secretary, Department of Social Services (Social services second review) - [2021] AATA 1227

LHYD and Secretary, Department of Social Services (Social services second review) [2021] AATA 1227 (12 May 2021)
Division:GENERAL DIVISION
File Number:2020/7883
Re:LHYD
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:12 May 2021
Place:Perth

The Tribunal refuses, pursuant to section 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth), to reinstate the application lodged by the Applicant on 30 November 2020 which he withdrew on the same date.
......................[Sgd]..................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
PRACTICE AND PROCEDURE – application for reinstatement of withdrawn application – Applicant mistakenly believed he could apply for reinstatement after receiving advice – whether application dismissed in error – withdrawn application to seek review of a decision of the AAT1 which affirmed a decision of an Authorised Review Officer to reject the Applicant’s claim for Newstart Allowance – withdrawal possibly based on incorrect advice or advice misunderstood but no error – application for reinstatement refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29(1), 42A(1A), 42A(1B), 42A(2), 42A(8), 42A(8A), 42A(9), 42A(10)
Social Security Administration Act 1999 (Cth) – ss 12
CASES
Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367
Kabue and Minister for Home Affairs [2019] AATA 3753
Kalafatis and the Commissioner for Taxation [2012] AATA 150
White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
12 May 2021
BACKGROUND

On 30 November 2020, the Applicant’s representative (whom the Tribunal will refer to as AF), who is also his father, emailed the Tribunal’s Registry seeking to appeal a decision of the Tribunal’s Social Services & Child Support Division (AAT1) dated 12 November 2020.
The AAT1 decision affirmed a decision of an Authorised Review Officer, dated 22 September 2019, to cancel the Applicant’s Newstart Allowance (NSA). The payment was initially a Youth Allowance but was automatically transferred to an NSA when the Applicant turned 22, pursuant to s 12 of the Social Security Administration Act 1999 (Cth).
In his email to the Tribunal’s Registry dated 30 November 2020, AF stated, “I wish to apply for a second review”. The Registry correctly treated this email communication as an application for review pursuant to s 29(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
AF then continued to explain in the email that he had lodged a complaint with Centrelink’s CEO concerning Centrelink’s defective administration, and that he had been told by an investigator at Centrelink to make a compensation claim pursuant to the CDDA (Compensation for Detriment caused by Defective Administration scheme). AF further stated in his email that he was “not confident” that he could rely upon what the investigator told him. Further, AF stated that, “I believe that this matter can only be eventually resolved through the “AAT – Commonwealth Ombudsman – Parliamentary Committee” route and as such, would like to appeal for an extension of the 28 day time limit given to me to apply for a second AAT review”.
The Tribunal’s Registry then sent AF a standard letter by email on 30 November 2020 confirming that his application had been received and confirming what would happen next, and the steps in the review.
However later that day, AF sent another email to the Tribunal. In summary, in the email AF stated that what he thought he had asked for was an extension of time to seek a review in the future beyond the 28-day statutory period while he proceeded with the CDDA claim. This was because he thought that the CDDA claim could not proceed while Tribunal proceedings were in progress. He stated that this placed him in a difficult position because he did not know how long Centrelink would take to complete its investigation. AF stated:
As such and as this request (contrary to my intent) has already been registered with the Tribunal, I would like to withdraw it.
As advised by you, I will request for it to be “reinstated” if what the CL [Centrelink] investigator [name omitted] told me on 25 November 2020/11.15am that CL has committed an “administrative error” and that my son is liable for compensation, is not upheld and honoured.
(Emphasis added.)
In his evidence at the reinstatement hearing, AF explained that he had a conversation with an officer of the Tribunal on 30 November 2020 after he received acknowledgement from the Tribunal that his son’s application had been received. AF advised the Tribunal that following this conversation, he was under the impression that he would be able to ask for his application to be reinstated if he withdrew it. There was no record made by the Tribunal officer of this conversation and it is unclear whether AF was given incorrect advice, or whether he misunderstood the advice that was given.
The effect of this email is provided for in s 42A(1A) of the AAT Act which states:
(1A)A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
Further, s 42A(1B) of the AAT Act states:
(1B)If notification is given in accordance with subsection (1A) or (1AA),
the Tribunal is taken to have dismissed the application without proceeding to review the decision.
To summarise, the effect of these provisions is that following receipt of the Applicant’s email of 30 November 2020 which stated, “I would like to withdraw [the application]”, the Applicant’s Application for Review was taken to have been dismissed immediately when his withdrawal was received by the Tribunal.
The Applicant and the Respondent were both notified of the dismissal in letters from the Tribunal dated 1 December 2020. The letters confirmed that the Tribunal had received written notice from the Applicant that he wanted to withdraw his application and so the application had been dismissed with an effective date of 30 November 2020.
However, on 3 March 2021, AF sent a further email to the Tribunal’s Registry. In summary, the email stated that AF had been told by a Centrelink officer that he would be sent a letter from the CEO of Centrelink to assist with his CDDA claim. However, AF had subsequently found out that he had been given the wrong information and that such a letter would not be provided to him. He stated that, “As such, I would like to request for the 2^nd Review for my son to please be reinstated”.
The Respondent advised the Tribunal that they opposed the reinstatement application on 19 March 2021.
On 30 April 2019, an interlocutory hearing was held to hear the Applicant’s reinstatement application.
CAN THE APPLICATION BE REINSTATED?
Sections 42A(8) through to 42A(10) of the AAT Act set out the circumstances in which an Applicant may apply for reinstatement of an application for review with the Tribunal and the circumstances in which the Tribunal may reinstate an application. Sections 42A(8) through to 42A(10) of the AAT Act provide:
(8)If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8A)If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8B) For the purposes of subsections (8) and (8A), the period is:
(a)28 days after the party receives notification that the application has been dismissed; or
(b)if the party requests an extension--such longer period as the Tribunal, in special circumstances, allows.
(9)If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
Section 42A(8) of the AAT Act is not applicable because a party “other than the Applicant” may apply for reinstatement in the circumstances contemplated in that subsection, and here the Applicant is applying for reinstatement.
Section 42A(8A) of the AAT Act is also not applicable because it applies to dismissals in circumstances where a party fails to appear (under s 42A(2)).
Section 42A(9) of the AAT Act appears applicable at first glance because it provides, “If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances”. However this provision has been held only to apply to applications that have been dismissed under
s 42A(2) of the AAT Act for failing to appear, and not to a deemed dismissal under
s 42A(1B) of the AAT Act (Kalafatis and Commissioner of Taxation [2012] AATA 150 at [59] and [80]) (Kalafatis) and Kabue and Minister for Home Affairs [2019] AATA 3753 at [23]).
As noted by Deputy President Forgie in Kalafatis at [58], the only applicable provision in circumstances where an Applicant has voluntarily withdrawn an application and seeks to have it reinstated is s 42A(10) of the AAT Act on the basis that the application has been dismissed in error.
Thus, in order to reinstate the Applicant’s application, the Tribunal must be satisfied that the application has been dismissed in error.
In Goldie v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 367 the Full Court of the Federal Court adopted a broad interpretation of the word “error”, which is not limited to administrative errors. The Full Court stated at [27]-[28] that:
The stated condition for the exercise of the subs (10) power is that “it appears to the Tribunal that an application has been dismissed in error”. The subsection does not impose any qualification or limitation on the word “error”.
The only limitations that we can see in s.42A(10) are:
(i) that the Tribunal has dismissed the application; and
(ii) that the act of dismissal was attended with error.
(Emphasis added.)
There are some similarities with the facts of the current application and that of White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712 (White) where the Applicant, Mrs White, submitted a form withdrawing her application for review following an outreach conversation with the Tribunal’s Conference Registrar. Deputy President Forgie explained at [42]:
Mrs White did not make an error in sending the notice of withdrawal to the Tribunal. She knew what she was sending and that is so even though she later thought that she should not have sent it at all but should have continued with the review process. Whichever stream of authority is followed regarding the meaning of an “error” in s 42A(10), the error must bear some relation to the dismissal. There is no error of that kind in this case. That is so even though Mrs White thought that she had received advice from the Conference Registrar and that the Conference Registrar’s advice was incorrect.
As noted by the Respondent in written submissions, in White, Deputy President Forgie made a temporal distinction between the act of dismissal being attended with error and an act prior to dismissal (such as the provision of poor or incorrect advice) being attended with error. Regarding the current application, AF may have received incorrect advice from a Tribunal officer regarding the possibility of reinstatement, however that occurred prior to the act of dismissal. The dismissal itself was not made in error. AF did not make an error in his email when he stated, “I would like to withdraw [the application]”. He clearly intended to do so. Accordingly, his application was dismissed in accordance with s 42A(1B) of the AAT Act. The act of dismissal by the Tribunal was not attended by error because the Tribunal acted on an unequivocal withdrawal request from the Applicant’s representative. Consequently, the Tribunal cannot reinstate the application under s 42A(10) of the AAT Act.
CONCLUSION
If the Tribunal did find that the application was dismissed in error, reinstatement would not be automatic, and the Tribunal would need to consider whether to exercise discretion to reinstate the application (see White at [21]). The Respondent submitted that if the Tribunal decided that it did have the power to reinstate the application, the Tribunal should not exercise discretion to do so. This was on the basis that the Applicant would not have an arguable case if the matter proceeded to a substantive hearing. The Applicant’s representative, AF, made submissions to the Tribunal about the substantive merits of the Applicant’s application at the hearing, and in an email sent to the Tribunal after the hearing.
However, as the Tribunal has decided that it cannot reinstate the application pursuant to s 42A(10) of the AAT Act because the act of dismissal was not attended with error, it is not relevant for the Tribunal to consider the Applicant’s prospects of success if the application were to proceed to an AAT2 review.
The Tribunal understands that the Applicant’s representative, AF, will be disappointed by this outcome, and notes the frustration that AF expressed during the course of the hearing regarding his previous interactions with Centrelink. The Tribunal does, however, note that it is still open to AF to continue with the Applicant’s claim for compensation under the CDDA scheme.
DECISION
The Tribunal refuses, pursuant to section 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth), to reinstate the application lodged by the Applicant on 30 November 2020 which he withdrew on the same date.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.......[Sgd]...............................................................
Associate
Date: 12 May 2020

Date of hearing:

30 April 2020

Representative for the
Applicant:

Representative for the Respondent:

Represented by his father

Ms L Hannigan, Services Australia