MSQT and Child Support Registrar

[2017] AATA 583

MSQT and Child Support Registrar [2017] AATA 583 (2 May 2017)

Division:General Division

File Number:           2016/6963

Re:MSQT

APPLICANT

AndChild Support Registrar

RESPONDENT

DECISION

Tribunal: Senior Member A Poljak

Date:2 May 2017

Place:Sydney

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

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

Senior Member A Poljak

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – whether Tribunal has jurisdiction to review decision of the Social Security and Child Support Division refusing an extension of time request to lodge an objection with the Child Support Registrar – no jurisdiction – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s29, 42a, 44, 44AAA

Child Support (Registration and Collection) Act 1988 (Cth) ss 80A, 81, 82, 83, 89, 91, 96A

REASONS FOR DECISION

Senior Member A Poljak

2 May 2017

1. The applicant seeks review of the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) dated 1 November 2016 (the “Application”).

2. In its decision, the SSCSD affirmed the decision of the Child Support Registrar (the “Registrar”) dated 28 July 2016, to refuse the applicants application for an extension of time to lodge an objection under section 82 of the Child Support (Registration and Collection) Act 1988 (Cth) (“CSRC Act”).

3. The applicant sought to object to a decision of the Registrar dated 19 February 2009, by which the Register accepted an application for an administrative assessment of child support from the applicant’s former wife.

4. These proceedings concern whether the Tribunal has jurisdiction to review the decision of the SSCSD.

   Relevant Legislative Provisions

5. Part VII of the CSRC Act outlines the procedure for which internal objections may be made for certain decisions. The object of this Part is to provide for internal reconsideration of decisions of the Registrar before the decisions may be reviewed by the Administrative Appeals Tribunal (“AAT”). Section 80 identifies a number of decisions against which objections may be lodged. If a person objects to a decision, the Registrar is required to reconsider the decision under this Part.

6. Section 80A specifies who may lodge objections against care percentage decisions, namely, (a) the carer entitled to child support; (b) the liable parent.

7. Pursuant to section 81 of the CSRC Act, an objection to a decision must be lodged by a person within 28 days after notice of a decision has been served on the person. Section 82(1) provides that “a person may lodge an objection under this Part after the period for lodging such an objection has ended if, at the time of lodging the objection or a later time, the person applies to the Registrar to consider the objection despite the period ending”.

8. Section 83 of the CSRC Act deals with how applications for extensions of time for lodging objections are to be considered. Section 83(1) relevantly provides:

   (1) If an application is sent to the Registrar under section 82 in relation to an objection under this Part, the Registrar must:

   (a)consider the application; and

   (b)within 60 days after the application is received by the Registrar:

   (i)     either grant or refuse the application; and

   (ii)    if the application is granted—deal with the objection under subsection 87(1). (Emphasis added)

9. In this case, the application for an extension to lodge an objection was refused.

10. Part VIIA, division 2 of the CSRC Act deals with applications for AAT first review. Section 89 sets out the limited decisions of the Registrar which may be the subject of a review application to the AAT. Relevantly, one of which is a decision under subsection 83(1) on an application for an extension of time.

11. Section 29(1)(d) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) generally requires an application for review of a decision to be made within a 28 day period of the person being given a copy of the decision.

12. Section 91 of the CSRC Act provides:

    (1)  If the period for applying for AAT first review has ended, a person may make an application for AAT first review that includes a written application (the extension application) requesting the AAT to consider the application for AAT first review despite the ending of the period. (Original emphasis)

13. In this case, it appears that the application for AAT first review was lodged within time and as such, no application for an extension of time under section 91 was necessary.

14. In regards to the jurisdiction of this Tribunal, section 96A provides:

    An application may be made to the AAT for review (AAT second review) of the following decisions of the AAT:

    (a)a decision under section 92 to refuse an extension application;

    (b)a decision under subsection 43(1) of the AAT Act on AAT first review of a care percentage decision;

    (c)a decision under subsection 95N(2) to make, or not to make, a determination.

    Consideration

15. Having considered the provisions of the CSRC Act and the AAT Act, I agree with the Registrar that an application may be made to this Tribunal for review of a decision to refuse an extension of time for a person to make an application for AAT first review under section 92 of the CSRC Act, not for review of a decision to refuse an extension of time for lodging an objection with the Registrar under section 83 of the CSRC Act.

16. Since the decision sought to be reviewed in these proceedings is one made by the Registrar under section 83(1) of the CSRC Act, and reviewed and affirmed by the SSCSD under section 89, this Tribunal does not have jurisdiction to review the decision pursuant to s96A.

17. The proper course for the applicant in seeking review of the SSCSD decision is to appeal to the Federal Circuit Court of Australia or the Federal Court of Australia on a question of law; sections 44 and 44AAA of the AAT Act.

18. Accordingly, the applicant’s application for review is dismissed pursuant to section 42A(4) of the AAT Act.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 2 May 2017

Date of hearing:	27 March 2017
Applicant:	In person
Solicitors for the Respondent:	Mr A Baril, Department of Human Services