Moncrieff; Secretary, Department of Social Services and (Social services second review)
[2022] AATA 4052
•29 November 2022
Moncrieff; Secretary, Department of Social Services and (Social services second review) [2022] AATA 4052 (29 November 2022)
Division:GENERAL DIVISION
File Number: 2021/5598
Re:Secretary, Department of Social Services
APPLICANT
AndRoslyn Moncrieff
RESPONDENT
Decision
Tribunal:Member D Mitchell
Date:29 November 2022
Place:Brisbane
The Tribunal has jurisdiction to undertake a de novo review of the reviewable decision.
.............................[SGD].................................
Member D Mitchell
Catchwords
PRACTICE AND PROCEDURE – jurisdiction – power to review entire decision afresh – where Social Services and Child Support Division decision was made pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) – decision under review to be heard afresh
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Social Security Act 1991 (Cth)
Social Security Administration Act 1999 (Cth)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Alobeidy and Secretary, Department of Social Services [2021] AATA 4479
BHP Petroleum (Bass Strait) Pty Ltd v Jenkins (1993) 115 ALR 179
Commonwealth v Horsfall (2010) 185 FCR 66; (2010) 115 ALD 344; [2010] FCA 443
Civil Aviation Safety Authority v Allan [2001] FCA 1064; (2001) 114 FCR 14
Collector of Customs v LCN (Wholesale) Pty Ltd (1989) 19 ALD 341
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Jia and Secretary, Department of Social Services (2017) 159 ALD 348
Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430; [2021] HCA 1
Minister for Immigration and Multicultural Affairs v Amani [1999] FCA 1040
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Otter Gold Mines Ltd v Australian Securities Commission [1997] FCA 1199
Re Aslanidis andSecretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) 51 AAR 577; [2010] AATA 429
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Re Cloros and Secretary, Department of Social Services [2014] AATA 300; (2014) 63 AAR 447
Re Davey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 888
Re Imielski and Secretary, Department of Social Services (Social services second review) (2021) 173 ALD 625; [2021] AATA 208
Re Pearson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1077
Re Samachetty and Secretary, Department of Social Services (Social services second review) [2020] AATA 3730
Re Secretary, Department of Family and Community Services and Owen [2002] AATA 1201
Secretary, Department of Social Security v Sevel and O’Connell (1992) 38 FCR 540; 28 ALD 626; 110 ALR 627
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
Sutherland, Peter and Allan Anforth, Social Security and Family Assistance Law (The Federation Press, 4th ed, 2022)
REASONS FOR DECISION
Member D Mitchell
29 November 2022
Introduction
On 13 December 2018, Ms Roslyn Moncrieff (the Respondent) lodged a claim for disability support pension (DSP).[1]
[1] T Documents, T17, pages 102-111, Dr Matthew Bryant’s medical report.
As a result of a lengthy and now further complicated process, the Respondent has received two different decisions of the Social Services and Child Support Division (SSCSD) of the Tribunal in relation to her eligibility for DSP arising from that claim.[2]
[2] Secretary’s Jurisdiction Submissions, Annexure B and T Documents, T2, pages 4-14, Decision of the SSCSD dated 6 July 2021.
As a consequence, the Applicant (the Secretary of the Department of Social Services) has sought a second-tier review by the General Division of the Tribunal of the most recent decision of the SSCSD.[3]
[3] T Documents, T1, pages 1-3, Application for Review.
Issues in relation to the Tribunal’s jurisdiction concerning the application presently before it have been raised for determination.
The parties provided written submissions in this regard and provided oral submissions at an interlocutory telephone hearing conducted on 14 July 2022.[4]
[4] The Tribunal received the Secretary’s Jurisdiction Submissions on 4 July 2022 and the Respondent’s Jurisdictions Submissions on 11 July 2022.
BACKGROUND
The Respondent lodged a claim for DSP on 13 December 2018.[5]
[5] T Documents, T17, pages 102-111, Claim for DSP: Medical Evidence Checklist.
On 15 April 2019, a Job Capacity Assessment (JCA) report recommended that the Respondent’s:[6]
(i)fibromyalgia was fully diagnosed, fully treated and fully stabilised and could be assigned 5 points under Table 1 of the Impairment Tables;[7]
(ii)Chronic Obstructive Airways Disease (COAD) was fully diagnosed, fully treated and fully stabilised and could be assigned 0 points under Table 1 of the Impairment Tables;
(iii)lower limb deficiencies were fully diagnosed and fully treated but were not fully stabilised and could not be assigned an impairment rating; and
(iv)work capacity within two years with intervention was 15 to 22 hours per week.
[6] T Documents, T22, pages 120-127, Job Capacity Assessment Report dated 15 April 2019.
[7] Reference to Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables).
On 1 May 2019, the Respondent’s claim for DSP was rejected on the basis that she did not have an impairment rating of 20 points or more under the Impairment Tables.[8]
[8] T Documents, T23, pages 128-129, Letter from Services Australia to the Respondent rejecting her claim for DSP.
The Respondent provided further information and sought an internal review of that decision.[9]
[9] T Documents, T24, pages 130-131, Dr Natalia Smithson’s medical report dated 9 May 2019 and T25, pages 132-134, Dr Natalia Smithson’s medical report dated 20 September 2019.
On 13 May 2020, an assessor provided a JCA Report recommending that the Respondent’s:[10]
(i)fibromyalgia was fully diagnosed, fully treated and fully stabilised and could be assigned 10 points under Table 1 and 0 points under Table 2 of the Impairment Tables;
(ii)COAD was fully diagnosed, fully treated and fully stabilised and could be assigned 0 points under Table 1 of the Impairment Tables;
(iii)lower limb deficiencies were fully diagnosed, fully treated and fully stabilised and could be assigned 5 points under Table 3 of the Impairment Tables; and
(iv)work capacity within two years with intervention was 15 to 22 hours per week.
[10] T Documents, T27, pages 137-146, Job Capacity Assessment Report dated 13 May 2020.
On 18 June 2020, an authorised review officer (ARO) affirmed the decision to reject the Respondent’s claim for DSP on the basis that she did not have an impairment rating of 20 points or more on the Impairment Tables.[11]
[11] Secretary’s Jurisdiction Submissions, Annexure A.
The Respondent sought further review of the decision to refuse her claim for DSP and on
1 October 2020, the SSCSD found that (First SSCSD Decision):[12]
(i)the Respondent’s fibromyalgia, chronic obstructive airways disease and lower limb deficiencies were fully diagnosed, fully treated and fully stabilised; and
(ii)could be assigned 10 points under Table 1 and 5 points under Tables 2 and 4 of the Impairment Tables.
[12] Secretary’s Jurisdiction Submissions, Annexure B.
As a result, the SSCSD provided that:[13]
The decision under review is set aside and the matter remitted to Centrelink with directions that Centrelink give further consideration to [the Respondent’s] continuing inability to work at the time of claim in accordance with paragraphs 33-41 of this decision.
This means the application is partly successful.
[13] Secretary’s Jurisdiction Submissions, Annexure B.
In paragraphs 33-41 of its decision, the SSCSD made it clear that it did not have sufficient evidence before it to determine whether the Respondent had met the program of support (POS) requirements and provided at [40]:[14]
If [the Respondent] had not met the requirements for active participation in a program of support, then she cannot have a continuing inability to work. If she had met the requirements, the tribunal is of the view that, given the inconsistency between the JCA assessment of her work capacity and Dr Smithson’s opinion, further consideration is warranted and the opinion of Max Employment may assist in determining [the Respondent’s] work capacity at the time. The tribunal is of the view that [the Respondent’s] leave records lend some weight to her claim that she is unable to sustain work of 15 or more hours per week.
[14] Secretary’s Jurisdiction Submissions, Annexure B.
On 23 October 2020, the Applicant recorded receipt of the First SSCSD Decision and took steps for a further JCA report to be sought to determine POS and Work Capacities.[15] Subsequently, on 26 October 2020, the Applicant sought a further JCA report outlining the following instructions:[16]
Interview requirements: See below for AAT instructions: Please refer the customer for a JCDA to determine POS and Work Capacities as per AAT conclusion: The tribunal has been unable to determine whether or not [the Respondent] had a continuing inability to work at the time of claim.
[15] T Documents, T40, page 263, DL and selected customer contact notes for the period 13.12.18 to 01.04.21.
[16] T Documents, T29, page 149, Job Capacity Assessment Report dated 27 October 2020.
In a JCA report dated 27 October 2020, the Assessor recommended that:[17]
(i)the Respondent’s fibromyalgia, chronic obstructive airways disease and lower limb deficiencies were fully diagnosed, fully treated and fully stabilised;
(ii)could be assigned 10 points under Table 1, 5 points under Tables 2 and 4 and 0 points under Table 3 of the Impairment Tables;
(iii)the Respondent had a work capacity within two years with intervention of 15 to 22 hours per week, doing moderate less-skilled work such as a gatekeeper, console operator, cash register operator, ticket salesperson or door greeter; and
(iv)the Respondent had participated in 190 days of a program of support in the three year period immediately preceding lodgement of her claim for DSP and therefore did not meet the active participation criteria.
[17] T Documents, T29, pages 149-159, Job Capacity Assessment Report dated 27 October 2020.
The Applicant recorded on 29 October 2020 that the First SSCSD Decision had been received and implemented.[18]
[18] T Documents, T40, page 264, DL and selected customer contact notes for the period 13.12.18 to 01.04.21.
On 6 November 2020, the Applicant wrote to the Respondent advising her that whilst she had been given 20 points under three impairment tables, she had not met the program of support requirements and as such, her appeal was only partly successful.[19]
[19] T Documents, T28, pages 147-148, Letter from Services Australia to the Respondent.
On 19 November 2020, the Respondent contacted the Applicant and was advised on
24 November 2020 that she could appeal the decision to “AAT2” (referring to a Tier 2 review by the General Division of the Tribunal) and was provided with the relevant telephone number.[20]
[20] T Documents, T40, page 266, DL and selected customer contact notes for the period 13.12.18 to 01.04.21.
On 24 November 2020, it was recorded that the Respondent contacted the Applicant seeking assistance as she said that the Tribunal had told her to contact Centrelink as the First SSCSD Decision had been referred back to them.[21] It was further recorded that after a number of unsuccessful attempts were made to contact one another, the Applicant on
16 December 2020 reiterated its advice that the Respondent needed to contact the Tribunal to follow up further appeal of the decision.[22]
[21] T Documents, T40, page 267, DL and selected customer contact notes for the period 13.12.18 to 01.04.21.
[22] T Documents, T40, page 269, DL and selected customer contact notes for the period 13.12.18 to 01.04.21.
On 13 January 2021, it was recorded that the Respondent contacted the Applicant requesting an ARO review of the decision made in relation to her not meeting the POS so that she could then take that decision to the Tribunal.[23]
[23] T Documents, T40, page 270, DL and selected customer contact notes for the period 13.12.18 to 01.04.21.
On 1 April 2021, an ARO reviewed and affirmed the decision made on 6 November 2020 to reject the Respondent’s claim for DSP.[24] The ARO provided:[25]
[24] T Documents, T35, pages 168-178, Decision and notes of Authorised Review Officer.
[25] T Documents, T35, page 168, Decision and notes of Authorised Review Officer.
Your review outcome
After carefully considering all relevant information, I have not changed the decision. This is because you do not have a work capacity of less than 15 hours per week.
Key findings:
· You have not actively participated in a Program of Support in the 3 years prior to claiming Disability Support Pension.
· Your conditions will not stop you from working at least 15 hours per week for the next 2 years.
The accompanying ARO notes to that decision comprehensively set out the information taken into account and gave consideration to the First SSCSD Decision of 1 October 2020.[26] In considering the evidence relating to function against the Impairment Tables, the ARO, after outlining the First SSCSD Decision with regards to the assignment of impairment ratings, noted:[27]
This is consistent with most recent JCA dated 27/10/2020 which reviewed the original decision in light of AAT findings and considered all relevant evidence pursuant to the claimant period of 13/12/2018 – 14/03/2019.
[26] T Documents, T35, pages 171-178, Decision and notes of Authorised Review Officer.
[27] T Documents, T35, pages 172-173, Decision and notes of Authorised Review Officer.
In considering the POS requirements, the ARO outlined how they reached their decision that those requirements were not met. The ARO noted that the matters taken into consideration included those directed by the First SSCSD Decision, the JCA report and further reporting to the ARO by Respondent.[28]
[28] T Documents, T35, pages 173-178, Decision and notes of Authorised Review Officer.
On 16 April 2021, the Respondent lodged an application for review of that decision with the SSCSD.[29]
[29] T Documents, T36, pages 179-180, Request for Statement.
Having not previously been involved in the Respondent’s DSP claim process,[30] on
[30] As advised by Ms Cone at the interlocutory hearing, Transcript page 11.
1 July 2021, Ms Beveridge of Townsville Community Law Inc lodged submissions to the SSCSD on behalf of the Respondent (who was at that time the Applicant of those proceedings).[31] The submissions as summarised by the Applicant:[32]
[31] T Documents, T38, page 182-190, Email from Townsville Community Law to SSCSD marked A1-A9.
[32] Secretary’s Jurisdiction Submissions, page 3, paragraph 13.
a.Identify that the decision under review is that made by the Agency
6 November 2020 (T38, 183 at [1]);b.Contend that the COAD condition should be assigned 20 points under Table 1 (T38, 183 at [3(b)]);
c.Contend that the Respondent had a continuing inability to work 15 or more hours per week within two years as a result of her medical conditions (T38, 183 at [3(d)]; and
d.Contend that the program of support requirement does not apply by reason that 20 points should be assigned under Table 1 (T38, 183, at [3(c)].
27.On 6 July 2021, the SSCSD, having approached the Respondent’s application for review in line with the submissions made on her behalf, considered whether the Respondent met the requirements of sections 94(1)(a), 94(1)(b) and 94(1)(c) of the Social Security Act 1991 (Cth) (the Act).[33] The SSCSD found that (Second SSCSD Decision):
(i)the Respondent’s fibromyalgia, chronic obstructive airways disease and lower limb deficiencies were fully diagnosed, fully treated and fully stabilised;
(ii)together, the Respondent’s fibromyalgia and chronic obstructive airways disease could be assigned 20 points under Table 1 and 5 points under Tables 2 and 4 of the Impairment Tables;
(iii)the Respondent’s lower limb deficiencies could be assigned 0 points under Table 3 of the Impairment Tables; and
(iv)the Respondent’s work capacity would not be 15 hours or more per week for the next two years as a result of her medical conditions and she therefore had a continuing inability to work.
[33] T Documents, T2, pages 4-14, Decision of the SSCSD dated 6 July 2021.
As a result, the SSCSD provided that:[34]
The decision under review is set aside and the matter is sent back to the Chief Executive Centrelink for reconsideration in accordance with the direction that Mrs Moncrieff satisfies the medical requirements for disability support pension in paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 (the Act). This means that subject to all the other requirements of the Act being met, [the Respondent] is eligible to receive the disability support pension.
[34] T Documents, T2, pages 4-14, Decision of the SSCSD dated 6 July 2021
On 9 August 2021, the Applicant applied to this Tribunal for review of the Second SSCSD Decision.[35]
[35] T Documents, T1, pages 1-3, Application for Review.
On 22 June 2022, the Applicant sought that a jurisdiction interlocutory hearing be conducted on the basis that:[36]
The Respondent’s medical qualification under s 94(1) of the Social Security Act 1991 (the Act) to receive the DSP is at the heart of the dispute between the parties. However a question arises about whether all of the elements of s 94(1) were before the Tribunal in respect of the second AAT1 application, or if the only question remaining to be determined by that stage was whether the Respondent had a continuing inability to work as is required by s 94(1)(c).
[36] Secretary’s jurisdiction submissions, Page 4, paragraph 16.
A telephone Interlocutory Jurisdiction Hearing was conducted in this matter on
14 July 2022.
issues
The present issue before the Tribunal is whether the Tribunal has jurisdiction to review the decision to refuse the Respondent’s claim for DSP in totality or whether it is limited by the directions and recommendations made by the First SSCSD Decision.
applicant’s submissions
The Applicant submitted that the Tribunal’s jurisdiction in this matter is limited to considering whether the Respondent has a continuing inability to work pursuant to section 94(1)(c) of the Act in circumstances where she does not have a severe impairment, meaning that the Tribunal is limited to considering the decision that resulted from the First SSCSD Decision.
In support of such submissions, the Applicant made reference to the High Court decision in Minister for Immigration and Border Protection v Makasa [2021] HCA 1 (Makasa) which stated:
50. Looking to the generic operation of the AAT Act, an intention not to allow further re-exercise of a power by a primary decision-maker after re-exercise of that power by the AAT under s 43(1)(b) or (c)(i) of the AAT Act on review of an earlier exercise of power by the primary decision-maker is inherent in the nature of the merits review function for which it is the design of s 43 of the AAT Act to make provision. The merits review function of the AAT is "to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review". The function of the AAT, in other words, is "to do over again" that which was done by the primary decision-maker. The function would be reduced to a mockery were the subject-matter of the decision made by the AAT on review able to be revisited by the primary decision-maker in the unqualified re-exercise of the same statutory power already re-exercised by the AAT in the conduct of the review.
51.The object of s 43(6) of the AAT Act, in deeming a decision made by the AAT under s 43(1)(b) or (c)(i) in variation of or substitution for the decision under review to be a decision of the primary decision-maker, is to bring finality to the administrative decision-making process. Like any other legal fiction, the deeming effected by s 43(6) of the AAT Act cannot be taken to have a legal operation beyond that required to achieve the object of its enactment. Section 43(6) cannot be taken so far as to be read as requiring an exercise of power by the AAT to be treated as no more than an exercise of power by the primary decision-maker which the primary decision-maker is able by operation of s 33(1) of the AI Act simply to re-exercise.
[Footnotes omitted]
The Applicant further submitted:[37]
[37] Secretary’s jurisdiction submissions, pages 6-8, paragraphs 26-39.
26.The weight of authority favours the view that a direction made under s 43(1)(c)(ii) of the AAT Act is binding on the parties (Minister for Immigration and Multicultural Affairs v Amani [1999] FCA 1040; Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139).
27.Through the operation of s 43(6) of the AAT Act, the first AAT1 decision is deemed to be the decision of the primary decision-maker, however following the reasoning in Makasa, that decision is not then open to further merits review as though it were an original decision. Rather, s 179(2)(d) of the Administration Act requires that in respect of a set aside decision where the matter is remitted back to the Secretary for reconsideration in accordance with any directions or recommendations, an application for second review be made to the Tribunal in respect of the directions or recommendations made.
28.No second review application about the directions or recommendations made in the first AAT1 decision has been lodged, and the directions explicitly refer to relevant paragraphs within the reasons for decision where the Tribunal makes findings about the Respondent’s ability to satisfy the requirements in ss 94(1)(a) and (b) of the Act.
29.The Secretary contends that upon making the first AAT1 decision, to the extent that it has dealt with ss 94(1)(a) and (b) of the Act the Social Services and Child Support Division of the Tribunal became functus officio on 1 October 2020. Those issues are only capable of being agitated in the General Division on an application for further review of that decision.
The subsequent Agency decision
30.The Secretary notes the power to perform own-motion reviews of decisions provided by s 126(2) of the Administration Act where the Secretary is satisfied that there is sufficient reason to do so.
31.In the circumstances of this case, the Secretary submits that the further decision on the Respondent’s qualification for DSP made on 6 November 2020 in respect of the 13 December 2018 claim arose as a result of the implementation of the Tribunal’s directions in the first AAT1 decision, and is not a result of an own-motion review. The subsequent decision of the ARO made on 1 April 2021 does not create an entirely new decision chain that was capable of re-enlivening the AAT1’s jurisdiction to consider the Respondent’s ability to meet s 94(1)(b) requirements in different terms to those already decided in the first AAT1 decision.
32.After the first AAT1 decision was made, the Secretary submits that there was no power for any decision-maker within the Agency to reconsider the issue of whether – and how – the Respondent could satisfy the requirements of ss 94(1)(a) and (b) of the Act. The parameters for determining whether the Respondent had a continuing inability to work had also been set. To the extent that a decision made after the first AAT1 decision purports to decide these issues anew, it is made beyond power and has no effect.
33.The Secretary notes the reasons of Downes P who in Re Michael and Secretary, Department of Employment, Science and Training (2006) 90 ALD 457 held (at [17]):
‘…it will only be appropriate for tribunal decisions to be reconsidered pursuant to the Bhardwaj principle when an impugned decision was obviously wrong and when the cause of the error is some administrative or similar mistake. In all but the rarest of cases, tribunal decisions must be treated as final and subject only to reconsideration for error of law on appeal.’
34.There is no suggestion that the first AAT1 decision was obviously wrong and thereby infected with legal error in a Bhardwaj sense meaning that all aspects of the Respondent’s ability to meet the requirements of s 94(1) could be revisited.
The second AAT1 decision
35.The Secretary contends the second AAT1 decision exceeded its jurisdiction when it essentially remade a decision regarding the Respondent’s impairment ratings under paragraph 94(1)(b) of the Act that already been made by the first AAT1 decision.
36.The decision under review for the second AAT1 was the ARO decision of
1 April 2021 which affirmed the rejection decision of 6 November 2020.37.Although the decision on 6 November 2020 and the ARO decision 1 April 2021 referred to the Respondent’s impairment ratings, these decisions essentially reflected and implemented the findings made by the first AAT1 decision. The only issue that had not been determined by the first AAT1 decision and had been remitted for reconsideration was the issue of whether the Respondent had a continuing inability to work in accordance with paragraph 94(1)(c) of the Act. The Secretary contends this was therefore the only issue that was able to be determined by the Agency, ARO and second AAT1.
38.In this matter, the Secretary notes that an application for review to this Tribunal has only been made in respect of the second AAT1 decision, which the Secretary contends only had jurisdiction to consider whether the Respondent satisfied 94(1)(c) of the Act.
39.The Secretary would therefore contend that if the Respondent wishes to dispute the impairment ratings assigned by the first AAT1 decision in relation to 94(1)(b) of the Act, it would be open for the Respondent to make an application for review to this Tribunal for review of the first AAT1 decision, noting that an extension of time application would also be required.
respondent’s submissions
The Respondent submitted that the Tribunal has jurisdiction to undertake a full de novo review of the Second SSCSD decision made on 6 July 2021.[38]
[38] Respondent’s Jurisdiction Submissions, page 1, paragraph 3.
In support of that submission, the Respondent submitted the following:[39]
[39] Respondent’s Jurisdictions Submissions, pages 2-4, paragraphs 9-31.
9.The Respondent considers the first decision made by the AAT1 to be a decision made in accordance with 43(1)(c)(ii) and relies on the principles set out by the Federal Court in Minister for Immigration and Multicultural Affairs v Amani [1999] FCA 1040 (Amani).
10.In Amani, Lee J found (at [12]) that a determination by the Tribunal to remit to the original decision maker must:
…be taken to have, at least, set aside the decision under review, without substituting a new decision therefor. The entire matter of the application is remitted to the primary decision-maker for reconsideration and re-determination.
11. By remitting the matter, the AAT1 commenced a process whereby the Agency could, and did, instigate their own de novo review if such a process was in accordance with relevant laws.
De novo review exercise by the Agency
12.As a matter of practicality, the post-remittal Job Capacity Assessment (JCA) carried out on 27 October 2020 (T150-159) was a de novo review of all the elements of 94(1) of the Social Security Act 1991 (the Act).
13.The assessor did not simply reflect on the findings of AAT1 (first decision), and abide by them, rather they turned their mind to and made findings on each of the eligibility criteria for the Disability Support Pension (DSP) under section 94 of the Act.
14.To determine eligibility criteria under paragraphs 94(1)(a) and (b) the JCA reviewed the medical evidence in detail and decided which conditions were fully diagnosed, treated and stabilised within the relevant period. Further, to determine the Respondent’s impairment rating, the JCA had reference to the previous JCA, the available evidence and a consultation with a contributing assessor. To be clear about the extent and nature of the ODM’s de novo review, the AAT1 (first decision) is not recorded within the supporting reasons of the JCA (T155) even though the ODM’s determination reflects that reached by the AAT1 (first decision).
15.Although the decision was in line with the AAT1 (first decision), the investigation by the JCA into the elements of sub-section 94(1) demonstrate the Agency did not consider itself constrained by the AAT1 (first decision) findings in relation to paragraphs 94(1)(a) and (b) and or the remitted matters.
16.Similarly, the ARO also conducted a de novo review of the ODM’s decision, affirming the decision, and again reaching a decision consistent with the first decision of AAT1 (first decision).
17.It is arguable that by virtue of the nature and scope of the de novo review by the ODM and ARO, the AAT1 (second decision) had no other option but to conduct de novo review at the second hearing and, accordingly went on to consider all aspects of sub-section 94(1) in its review.
The nature of the AAT1 (second decision)
18.The AAT1 (second decision), and indeed the ODM and ARO’s reviews, can be distinguished from the High Court’s decision in Minister for Immigration and Border Protection v Makasa [2021] HCA 1 (Makasa).
19.The central point of divergence is the nature and context of the decisions. In Makasa, consideration was centred around the finality of decisions made by the Tribunal in the context of a discretionary exercise of power by the Minister for Immigration and Border Protection.
20.The factual matrix of the matter before this Tribunal is both legally and materially different. This matter does not involve consideration of the exercise of ministerial discretion, but rather the obligations on the Agency making a decision that has been remitted to them and not yet finally decided.
21.Further, while it is accepted that where the Tribunal has made a final decision, that power should not be re-exercised by the original decision maker, section 43(1)(c)(ii) of the AAT Act allows the Tribunal to direct the original decision maker to reconsider the matter ‘in accordance with any directions or recommendations of the Tribunal’. This means that the decision is not a ‘final’ decision in the sense that it would enliven the principle as set out in Makasa.
22.In this sense, ‘the matter’ before the ODM, the ARO and AAT1 (second decision) necessarily involved de novo review of all, interconnected grounds of eligibility set out under section 94(1). Importantly in this case, the de novo reviews conducted by the ODM and ARO did what the AAT1 (first decision) had not done – that is reached a final decision on eligibility for DSP.
23.Once the ODM, and in turn the ARO reached finality through de novo review, the AAT1 (second decision) was obliged to conduct its own de novo review and arrive at the correct and preferable decision – which was to find section 94 was satisfied in its entirety.
24.The Federal Court in Amani considered the meaning of “directions or recommendations” within the Migration Act 1958 and found (at [17]):
Where the paragraph refers to "directions or recommendations" the Tribunal may make, the directions contemplated are not directions in the sense of a binding order issued by a body empowered to compel parties to whom the order is directed. (See: Benson v Benson (1941) P 90.) It should be assumed that this provision in the Act refers to directions in the sense of assistance, guidance, instruction or aid to administrative functions. (See: Shorter Oxford English Dictionary (3rd Ed), (Oxford: Clarendon Press, 1973), at 556.) It is intended to be a facultative measure, in an emphatic recommendation, not a binding order. It is a directory provision, not mandatory.
25. If the ODM did not determine the matter as directed in the remittal, whether at all, or in a timely manner, the AAT1 would once again have had jurisdiction to make its own determination, arguably about the Agency’s conduct and the Respondent’s continuing inability to work.
Legislation to be construed beneficially
26.Relevantly, within the scheme of social security laws, it is important to consider whether a certain interpretation will be beneficial. Any ambiguity in the operation of decision-making powers post-remittal must be construed in a favourable light: Bull v Attorney-General (NSW) (1913) 17 CLR 370.
27.Given the review process has allowed the Respondent to reach the correct and preferable decision, as demonstrated by the fact that the Respondent was granted DSP from a fresh claim made in 2021, a beneficial construction of the relevant provisions might err on ensuring that decision-makers could decide on eligibility globally under section 94 of the Act. To properly do so, all elements need to be considered due to their interconnected nature.
28.If the Tribunal is minded to find that AAT1 (second hearing) did not have jurisdiction to decide any elements outside of paragraph 94(1)(c), it follows that the consideration of the matter by the Agency from 27 October 2020 was ultra vires in its entirety, and the matter would need to be re-considered by the Agency from the point of remittal. The actions of AAT1 (second hearing) cannot be dissected from the prior ARO and ODM processes.
29.Pragmatically, this would result in considerable practical consequences for all parties and a resulting burden on the administration of justice.
30.Given that the AAT1 (first decision) decided sections 94(1)(a) and (b) while remitting section 94(1)(c) to Centrelink, it would then require all future applicants who receive similar decisions to apply to this Tribunal within the 28-day time limit, and likely before the Agency has been able to act on the decision from the AAT1 and provide their decision. Not doing so would result in all applicants having to apply for an extension of time after receiving the Agency’s decision. This would lead to a manifestly complex and technocratic outcome for all parties.
31.It might also lead to the Tribunal being asked to conduct merits review on decisions that have not been finalised, or on carved out sections of a decision while the Agency is considering the ‘other’ matter that has been remitted. This is clearly antithetical to the objects of the AAT Act, the referring legislation and proper construction of beneficial law.
THE LAW
The Tribunal’s role is to undertake an independent merits review of administrative decisions for which it has jurisdiction.
The Tribunal stands in the shoes of the original decision maker and considers the matter afresh. The Tribunal exercises the power or powers as conferred upon the primary decision maker for the purpose of making the decision under review, considers the evidence before it and proceeds de novo to make the correct and preferable decision in accordance with law.[40]
[40] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; Secretary, Department of Social Security v Sevel and O’Connell (1992) 38 FCR 540; 28 ALD 626; 110 ALR 627; Otter Gold Mines Ltd v Australian Securities Commission [1997] FCA 1199; Shi v Migration Agents Registration Authority (2008) 235 CLR 286; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250.
The Tribunal does not have general review powers, rather it derives its jurisdiction to review decision specified as reviewable by the Tribunal predominately in a Commonwealth Act.
Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) confers the Tribunal’s jurisdiction to review certain decisions and relevantly provides:
(1) An 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.
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(3) Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:
a) shall specify the person or person to whose decisions the provision applies;
b) may be expressed to apply to all decision of a person, or to a class of such decision; and
c) may specific conditions subject to which applications may be made.
In this matter, the enactment conferring jurisdiction on the Tribunal in relation to the review of an application for DSP is the Social Security (Administration) Act 1999 (Cth) (Administration Act). Section 179 of the Administration Act provides:
(1) Application 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.
(2)For 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.
Section 43(1) of the AAT Act relevantly 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 directions or recommendations of the Tribunal.
Context was given to the decisions made by the Tribunal pursuant to section 43(1) of the AAT Act in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 (Lawlor) at 175 by Brennan J, who stated:[41]
The Tribunal is not a primary administrator. It is not the original repository of powers and discretions under an enactment. When it makes an order under s43(1) to take effect under the "relevant enactment", the grant to the Tribunal of the original repository's powers and discretions makes its order effective under the enactment. Not all of the orders for which s43(1) provides are orders which draw upon the original grant of powers and discretions. A decision by the Tribunal pursuant to s43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal's order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s43 (1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.
[Emphasis added]
[41] Applied in Collector of Customs v LCN (Wholesale) Pty Ltd (1989) 19 ALD 341; BHP Petroleum (Bass Strait) Pty Ltd v Jenkins (1993) 115 ALR 179.
There are a number of precedents that set out, in making a decision under section 43(1)(c)(ii) of the AAT Act, the Tribunal is shaping the nature of the reconsideration, however the decision maker still has power to reach an independent decision.[42]
[42] Civil Aviation Safety Authority v Allan [2001] FCA 1064; (2001) 114 FCR 14; Commonwealth v Horsfall (2010) 185 FCR 66; (2010) 115 ALD 344; [2010] FCA 443; Collector of Customs v LCN (Wholesale) Pty Ltd (1989) 19 ALD 341; BHP Petroleum (Bass Strait) Pty Ltd v Jenkins (1993) 115 ALR 179.
In Minister for Immigration and Multicultural Affairs v Amani [1999] FCA 1040 (Amani), the Federal Court considered a decision in relation to a protection visa made by the Refugee Review Tribunal (RRT) under section 415(2)(c) of the Migration Act 1958 (Cth) (Migration Act). The RRT made a decision to remit the matter for reconsideration in accordance with such directions or recommendations. The decision by Lee J is directly relevant to the matter at hand. Sections 415(2)(c) and 415(3) of the Migration Act, as were then in place, are consistent with sections 43(1)(c)(ii) and 43(6) of the AAT Act. In Amani, Lee J found that directions or recommendations made by a decision under section 415(2)(c) of the Migration Act were not binding on the primary decision maker and that such decisions were not to be taken to be decisions of the Minister in the same way that decisions to vary or set aside and substitute would. Lee J provided at [10]-[18]:
[10] Section 415(3) provides that if the Tribunal varies a decision, or sets aside a decision and substitutes a new decision, the decision as varied, or substituted, is taken to be a decision of the Minister. Neither the affirming of a decision nor the remitting of a matter for reconsideration is "taken to be" a decision of the Minister. …..
[11] With regard to a direction that a prescribed matter be remitted for "reconsideration" in accordance with such directions or recommendations of the Tribunal as are permitted by the Regulations, the question arises as to the effect of such a direction by the Tribunal.
[12] A determination of the Tribunal in the terms described in para 415(2)(c), remitting an application for a protection visa to a primary decision-maker for reconsideration, must be taken to have, at least, set aside the decision under review, without substituting a new decision therefor. The entire matter of the application is remitted to the primary decision-maker for reconsideration and re-determination. Presumably, that re-determination by the Minister, or delegate, would be an "RRT-reviewable decision" under s 411 of the Act.
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[15] What is the intended effect under the Act of such a direction? It cannot have the effect of an order made by this Court under s 481 of the Act which binds the parties to the application as the order of a superior court of record. It is an administrative direction which has such force as the Act may provide, a question to be determined by construction of the Act.
[16] Reconsideration of the matter must entail consideration by the decision-maker of such material as is put before that person, or is obtained by that person, in the exercise of powers and discretions provided by the Act. The material before the decision-maker when the decision-maker reconsiders the application for a protection visa may differ in significant respects from material available when a decision was made on the application by another decision-maker on an earlier occasion. Therefore, it could not have been contemplated by the Act that a decision of the Tribunal to remit an application for reconsideration will bind the eventual decision-maker as to what findings of fact may be made or how a discretion available to that person may be exercised.
[17] Counsel for the Minister conceded that in some circumstances, for example, where there is fresh material which suggests that there are changed circumstances in the country of nationality, or that the application is fraudulent, it could not be argued that the direction of the Tribunal could bind the Minister. However, the word "directions" as used in para 415(2)(c) cannot be taken to have variable meaning according to circumstances. Where the paragraph refers to "directions or recommendations" the Tribunal may make, the directions contemplated are not directions in the sense of a binding order issued by a body empowered to compel parties to whom the order is directed. (See: Benson v Benson (1941) P 90.) It should be assumed that this provision in the Act refers to directions in the sense of assistance, guidance, instruction or aid to administrative functions. (See: Shorter Oxford English Dictionary (3rd Ed), (Oxford: Clarendon Press, 1973), at 556.) It is intended to be a facultative measure, in the nature of an emphatic recommendation, not a binding order. It is a directory provision, not mandatory.
[18] It would follow that a decision to remit to the Minister an application for a visa for reconsideration in accordance with directions made by the Tribunal, will not have the effect under the Act of fettering, or limiting, the exercise of the Minister's powers or discretions in determining the application. …..
Section 43(6) of the AAT Act relevantly provides:
(6)A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person shall, for all purposes (other than the purposes of applications to the Tribunal for the review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
It is noted that section 43(6) of the AAT Act effectively makes reference to those decision of the Tribunal made under sections 43(1)(b) and 43(1)(c)(i) where the Tribunal varies or substitutes a decision as becoming the decision of the original decision maker whose decision is under review, adding finality to the decision making process of the primary decision maker. It does not extend to circumstances where the Tribunal has made a decision under section 43(1)(c)(ii) to set aside a decision and remit the matter to the decision maker for reconsideration with any directions or recommendations of the Tribunal.
The Applicant drew the Tribunal’s attention to Makasa as set out at paragraphs 34 and 35 above. The Tribunal does not consider, however, that this case assists the Applicant’s submissions. In Makasa, the High Court specifically made reference only to decisions made by the Tribunal pursuant to section 43(1)(b) and 43(1)(c)(i) of the AAT Act. The Tribunal agrees with the High Court in Makasa that in those circumstances, if the primary decision maker was to re-exercise the same statutory power already re-exercised by the Tribunal in the conduct of the review, it would make the decision of the Tribunal pointless.
The High Court in Makasa further discussed the finality of the administrative decision making process and said, at [51]:
The object of s 43(6) of the AAT Act, in deeming a decision made by the AAT under s 43(1)(b) or (c)(i) in variation of or substitution for the decision under review to be a decision of the primary decision-maker, is to bring finality to the administrative decision-making process.
The issue before this Tribunal, however, relates to decisions made under section 43(1)(c)(ii) of the AAT Act, such decisions do not bring finality to the administrative decision making process.
consideration
In accordance with Lawlor, the Tribunal accepts the proposition that a decision made pursuant to section 43(1)(c)(ii) of the AAT Act is effectively a decision by the Tribunal not to exercise the original powers and discretions granted to it and effectively requires the primary decision maker to reconsider the matter afresh. The Tribunal accepts the proposition that, as it is not a court, the directions and recommendations made by the Tribunal pursuant to section 43(1)(c)(ii) of the AAT Act are not binding upon the primary decision maker and form but a guide to their further decision making process.
Consequently, and in accordance with section 43(6) of the AAT Act, the Tribunal considers that any subsequent decisions made as a result of a Tribunal decision made pursuant to section 43(1)(c)(ii) of the AAT Act are not taken to be decisions of the Tribunal. They are decisions made by the primary decision maker who considers the decision under review afresh, in a new exercise of their powers and discretions. Being a new decision, it must then travel the usual review pathways.
The Tribunal notes that the approach taken by the Tribunal in relation to the effect of decisions made by the SSCSD pursuant to section 43(1)(c)(ii) of the AAT Act to remit the matter back to the Secretary for reconsideration in accordance with any directions or recommendations made has differed.[43] To that extent, it is evident that the Secretary’s own view on this matter does not appear to be settled.[44]
[43] See discussion at Peter Sutherland and Allan Anforth, Social Security and Family Assistance Law (The Federation Press, 4th ed, 2022) pages 767-768 at [179.04 SSA].
[44] Jia and Secretary, Department of Social Services [2017] AATA 1593 at [23]; Alobeidy and Secretary, Department of Social Services [2021] AATA 4479 at [27].
The primary issue has been surrounding whether upon second review being sought, the Tribunal’s jurisdiction is limited to the subject of the directions and recommendations made by the SSCSD decision (the first review decision) or extends to reviewing all aspects of the SSCSD’s decision. The Tribunal, over time based on the facts before it, submissions of the Secretary and various applicants has found that either it had jurisdiction:
(a)to review the whole matter before the SSCSD only;
(b)to review the whole matter before the SSCSD and the resulting decision of the Secretary as part of the one review; or
(c)was restricted to reviewing the matter to the extent of the directions or recommendations made.[45]
[45] Re Secretary, Department of Family and Community Services and Owen [2002] AATA 1201; Re Pearson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1077; Re Aslanidis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) 51 AAR 577; [2010] AATA 429; Re Cloros and Secretary, Department of Social Services [2014] AATA 300; (2014) 63 AAR 447; Re Davey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 888; Jia and Secretary, Department of Social Services (2017) 159 ALD 348; Re Samachetty and Secretary, Department of Social Services (Social services second review) [2020] AATA 3730; Re Imielski and Secretary, Department of Social Services (Social services second review) (2021) 173 ALD 625; [2021] AATA 208; Alobeidy and Secretary, Department of Social Services [2021] AATA 4479.
This Tribunal’s interpretation of its jurisdiction in relation to decisions made by the SSCSD pursuant to section 43(1)(c)(ii) of the AAT Act is that section 179 of the Administration Act provides that the decision under review is the recommendations and directions made by the SSCSD. As such, where a party seeks a second review of such a decision by this Tribunal, its jurisdiction would extend to reviewing everything to which the recommendations and directions made by the SSCSD relate. The scope of what was before the SSCSD in making its recommendations and directions will be a matter determined by the facts of each case, however the Tribunal agrees with the proposition put by Deputy President Kendall (as he then was) in Jia and Secretary, Department of Social Services (2017) 159 ALD 348 (Jia) that such a review would allow for a de novo review to the extent consistent with the matters before the SSCSD that led to the formation of the recommendations and directions.
As such, in the present case, as neither party sought review of the First SSCSD Decision, that decision was effectively accepted by the Respondent and implemented afresh by the Applicant. Consequently, the decision made on 6 November 2020 by the Applicant was properly required to have been subjected to review by an ARO and then by the SSCSD in accordance with section 179 of the Administration Act before it would become reviewable by this Tribunal.
Given the discussion of the law set out above, the Tribunal does not accept the Applicant’s submissions that in reviewing the decision dated 6 November 2020, the ARO and SSCSD (in making the Second SSCSD Decision) were confined to only considering the directions made by the First SSCSD Decision as the primary decision maker was not so confined. For the reasons outlined above, the Tribunal’s view is that in remitting the matter to the Applicant pursuant to section 43(1)(c)(ii) of the AAT Act, the First SSCSD Decision did not exercise the powers and discretions placed upon it.
As such, the Applicant was required to consider the matter afresh, taking into consideration the directions made in the First SSCSD Decision. While in this case the Tribunal acknowledges that on such an occasion, the primary decision maker and ARO adopted the recommendations of the SSCSD, the evidence before this Tribunal clearly shows that both decision makers and the intervening JCA turned their minds afresh to all DSP eligibility requirements.
The Tribunal finds that in the present matter, it has jurisdiction to undertake a de novo review, and is in no way restricted by the directions or recommendations made in either the First or Second SSCSD Decisions.
DECISION
The Tribunal has jurisdiction to undertake a de novo review of the reviewable decision.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
...................................[SGD].....................................
Associate
Dated: 29 November 2022
Date of hearing: 14 July 2022 Solicitors for the Applicant: Ms Maleah Underhill
Services AustraliaSolicitors for the Respondent: Ms Abby Cone
Townsville Community Law
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