Liang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 1080

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1080

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4790

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Ren De Liang

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal M D Allen

Date25 November 2010

PlaceSydney

Decision

Upon hearing the Applicant and the Solicitor for the Respondent, the Tribunal is satisfied that this application for review is frivolous or vexatious. For the reasons given orally, this application is DISMISSED pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975.

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

M D Allen, Senior Member  

CATCHWORDS

SOCIAL SECURITY – Claim for disability support pension at single rate reviewed by Authorised Review Officer and a decision was made in Applicant’s favour.  Decision upheld by SSAT.  Tribunal cannot make a more favourable determination.  Application dismissed as frivolous or vexatious.

LEGISLATION

Administrative Appeals Tribunal Act 1975 Ss 42B(1), 43(2A)

Social Security Act 1991 s24

CASES

Attorney-General v Wentworth (1988) 14 NSWLR 481

REASONS FOR DECISION

13 July 2010 M D Allen, Senior Member            

1. By Direction dated 25 November 2010 I dismissed this application for review pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) on the grounds that it was frivolous or vexatious.

2. On 23 December 2010 the Applicant requested written reasons for my decision pursuant to subsection 43(2A) AAT Act.

3.      By Application made on 4 November 2009, the Applicant sought review of a decision of the Social Security Appeals Tribunal (“SSAT”) of 27 September 2010 that affirmed a prior decision by a Centrelink Authorised Review Officer to set aside a decision not to pay the Applicant’s disability support pension (“DSP”) at the single rate while he was outside Australia, and substitute a new decision that the Applicant was to continue to be paid at the single rate pursuant to section 24 of the Social Security Act 1999.

4.      The matter was listed before me on 25 November 2010 for a Directions Hearing where, with the assistance of an interpreter, I informed the Applicant that as the SSAT had upheld the decision of Centrelink to set aside the suspension of his DSP payments and as he had suffered no loss, the Tribunal could not make a more favourable decision for the Applicant.

5.      The Applicant advised the Tribunal that he was unhappy with Centrelink’s classification of his residence status as a refugee rather than as an Australian citizen.  This compliant is not reviewable by this Tribunal and the Applicant was advised to have it resolved directly with Centrelink or to approach the Federal ombudsman.

6.      With no effective relief to be granted to the Applicant, to proceed to a hearing would be a waste of time and money.  I refer to the test for determining whether proceedings are vexatious which was discussed by Roden J in Attorney-General v Wentworth (1988) NSWLR 481 at 491:

“It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds.  I believe that the test may be expressed in the following terms:

1. …
2…

3.  They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”

7. The Tribunal is satisfied this application for review is frivolous and vexation and is DISMISSED pursuant to section 42B(1) of the Act.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         .............[sgd]................................
  K. Lynch, Associate

Date of Direction Hearing  25 November 2010
Date of Decision  25 November 2010 
Date of Written Reasons  1 February 2011
Representative for the Applicant               Mr Ren De Liang (self)
Representative for the Respondent        Centrelink Advocacy Branch