Mulder and Secretary, Department of Family and Community Services

[2003] AATA 874

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 874

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2001/424

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JACK DENIS MULDER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date5 September 2003

PlaceCanberra

Decision The decision under review is affirmed.

...............(sgd)...............................

Mr S. Webb, Member 

CATCHWORDS

SOCIAL SECURITY - Newstart Allowance - qualification – permanent residence - whether proper application lodged - whether unemployment benefit correctly cancelled - whether unemployment benefit arrears payable - matter heard by previous Tribunals - whether new evidence – decision affirmed

LEGISLATION

Social Security Act 1947 sections 116, 168, 183

Social Security (Administration) Act 1999 section 109

CASELAW

Re Mulder and Secretary, Department of Family and Community Services [1999] AATA 817

Re Mulder and Department of Family and Community Services [2000] AATA 452

Bogaards v McMahon (1988) 15 ALD 313

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

R v Lawrence [1982] AC 510

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344

REASONS FOR DECISION

September 2003 Mr S. Webb, Member        

1.      This application by Mr Jack Mulder (“the Applicant”) is for review of the decision of the Social Security Appeals Tribunal (“SSAT”) on 11 September 2001 to (T2, folio 2):

“…affirm the decision to cancel Mr Mulder’s unemployment benefit on 27 August 2000 [sic – 1990].  In respect of the Department of Social Security’s failure to pay Mr Mulder unemployment benefit in the period 25 February 1991 to 8 January 1993, the Tribunal decided there was no decision to be reviewed.”

These matters were considered by an authorised review officer (“ARO”) on 27 March 2001.  The ARO stated in his decision (T68 folios 158 to 160):

“There are two decisions which you have requested be reviewed and I will deal with them separately.

­Appeal S118234 – payment of claim for unemployment benefits for period from 23/02/91 and 08/01/93.

This matter has been given a recent appeal number for administrative purposes, however, I believe this matter has already been dealt with.  It has been the subject of review by the Social Securities Tribunal (SSAT) and the Administrative Appeals Tribunal (AAT), Deputy President A M Blow OAM QC., published his decision on 08/06/00.

As such, I have no jurisdiction to review this matter.

Appeal S118233 – payment of unemployment benefits for the period from 17/08/90 to 05/12/90, following cancellation.

…

…What I have to consider is, whether or not, a request was made by you for a review of this decision within three months of being notified of the decision.

…

There is no record of you requesting such a review until you made this request in your letter dated 22/11/00.  In view of this, I agree with the decision not to pay you unemployment benefits for the period 07/08/90 [sic – 17/08/90] to 05/12/90.”

2.      A hearing before the Tribunal was held in Canberra on 22 April 2003 at which the Applicant represented himself and Mr John Kenny represented the Secretary, Department of Family and Community Services (“the Respondent”).

3.      The following exhibits were tendered in evidence.

EXHIBIT	DESCRIPTION	DATE
T1 – T69 pp1-162	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
A1	Letter to Ms Sue Vardon by Mr Trevor Mobbs.	8 February 2002
A2	Letter to Centrelink by Mr J D Mulder.	13 February 2003
A3	Letter to Mr J D Mulder by Senator Kay Patterson.	16 May 2001
A4	File note by Mr Andrew Chambers.	5 December 2000
A5	Applicant’s bundle of documents.
A6	Social Security interview form number 00062 with annotations.
A7	Two letters to Mr Jack Mulder from the Department of Social Security, one dated 11/4/90.
A8	Social Security Unemployment Benefit Claim form in the name of Robert Miller.	25 February 1991
A9	Social Security Application for Payment of Unemployment Benefit form signed by R D Miller.	25 March 1991
A10	Applicant’s Statement of Issues.	1 September 2002
R1	Letter to Mr Mulder by Mr Gary Hardgrave.	29 January 2002
R2	Respondent’s Statement of Facts and Contentions and cover note.	6 May 2002

4.      At the conclusion of the hearing, the Tribunal permitted the Applicant to provide further written submissions on or before 30 May 2003 and the Respondent to provide submissions in response by 13 June 2003.  The Applicant requested additional time in which to lodge his submission on two occasions.  A telephone directions hearing before the Tribunal was held on 18 August 2003 during which the Applicant informed the Tribunal he no longer intended to make further submissions.

ISSUES BEFORE THE TRIBUNAL

5.      The issues agitated by the Applicant in this matter are:

(a)whether the decision to cancel the his unemployment benefit on 27 August 1990 was correct and, if not, whether he is entitled to payment of unemployment benefit in arrears for the period 17 August 1990 to 5 December 1990 (T52); and

(b)whether he is entitled to be paid unemployment benefit for the period 25 February 1991 to 5 February 1993 (T49).

6.      A preliminary question of jurisdiction arises.  The first matter for determination concerns the decision to cancel payment of unemployment benefit to the Applicant on 27 August 1990, following a decision of the SSAT in his favour on 31 July 1990.  The latter decision was appealed by the Department of Social Security to the Administrative Appeals Tribunal and was set aside by Senior Member Beddoe in an oral decision on 23 May 1991.  On 8 November 1997, the Applicant lodged a further appeal against the decision to cancel his unemployment benefit on 27 August 1990 with the SSAT.  On 19 November 1997, the SSAT decided it did not have jurisdiction to decide this matter as it had previously been dealt with by the AAT in 1991.  The Applicant appealed this decision to the AAT and Senior Member Allen said in Re Mulder and Secretary, Department of Family and Community Services [1999] AATA 817 at paragraphs 12 to 14:

“12.     The second decision of the Social Security Appeals Tribunal related to a non-payment of unemployment benefit after a, what is termed, favourable decision of the Social Security Appeals Tribunal on 31 July 1990.  The fact is the Applicant did have in his favour a decision of the Social Security Appeals Tribunal.

13.      That decision was itself appealed by the Respondent, the Department of Social Security to the Administrative Appeals Tribunal and on 23 May 1991, Senior Member Beddoe, in an oral decision set aside a decision of the Social Security Appeals Tribunal.  That means of course that unemployment benefit was not payable to the Applicant but in any event there is no authority in this Tribunal to review a decision of itself.

14.     In other words, I have no jurisdiction to enter into any form of review of the decision of Senior Member Beddoe made the 23 May 1991.  If the Applicant wishes to seek further review of that decision, he must appeal it to the Federal Court.  I would only mention that the decision having been made in 1991, he is well out of time in relation to that appeal.  However, there is no decision which I am in a position to either affirm or set aside.”

7.      The second matter for determination concerns the Applicant’s eligibility for unemployment benefit in the period from 25 February 1991 to 8 January 1993.  It is a fact that the Applicant lodged a fraudulent claim in the name of Robert Miller, allegedly his identical twin brother, in consequence of which he was prosecuted and required to repay a debt to the Commonwealth.  The Applicant’s claims concerning his eligibility for unemployment benefit during this period were dealt with by Deputy President Blow in Re Mulder and Department of Family and Community Services [2000] AATA 452.

8.      In the present case, the Applicant is seeking again to agitate these same matters that he has raised and to challenge decisions that he has pursued on appeal before previous Tribunals without success.  The question whether the Tribunal has power to review decisions that have already been the subject of review by the Tribunal, and decided therefor, has been considered by the courts and previous Tribunals; see Bogaards v McMahon (1988) 15 ALD 313 and Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309. In the words of O’Connor J in Re Mulheron (supra) at [8]:

“The Tribunal is estopped from entertaining further applications from review of a decision where an earlier application for review of the same decision has been disposed of by a decision on the merits or a consent decision.”

9.      The Applicant alleges that the decisions of previous Tribunals may have been based on information that was not accurate, relevant, up-to-date or complete, or that may have been misleading.  The Applicant’s case, in essence, in relation to the first ground of review, was that his unemployment benefit was incorrectly cancelled on the basis that he was an illegal immigrant.  He has gone to significant efforts over time to rectify what he perceives as a series of consequential wrongs that have been agitated in at least 17 appeals before the Tribunal over a 12 year period, some of which remain on foot.  It is neither necessary nor appropriate to discuss the ambit of claims brought in these various cases over time.  It is, however, relevant to note the observations of the Honourable Gary Hardgrave MP in relation to the instant case in a letter to the Applicant dated 29 January 2002 (Exhibit R1):

“I can confirm that the Department of Immigration and Multicultural and Indigenous Affairs holds no information that indicates you have lost the Australian Citizenship you acquired on 13 October 1977.  I can also confirm that all alerts within the Department’s computerised records were removed in November 2000, as were alerts in the Department of Foreign Affairs and Trade’s passport system.

As you are no doubt by now aware, when you became an Australian citizen in 1977, according to Dutch law you simultaneously lost your Dutch citizenship.

On several occasions over the period 1988-1991 you entered and departed Australia using a Dutch travel document with an Australian visitor visa as the authority for entry and departure.  Australian citizens entering Australia are required to present their Australian passport or prescribed other evidence of their identity and Australian citizenship.  Your actions in travelling without an Australian passport created the circumstances whereby reasonable doubts arose that you may have reacquired Dutch citizenship, thereby losing your Australian citizenship.

It was not until the Dutch Consul-General in Sydney confirmed in writing on 24 October 2000 that you had not reacquired Dutch citizenship after acquiring Australian citizenship in 1977, that the doubts about your citizenship were allayed and action to remove all alerts about your citizenship status could be taken.”

10.     The effluxion of time is an impediment to the investigation of matters that occurred more than 12 years ago and is prejudicial to both parties.  The documentary record is incomplete and the Applicant’s recollections, by his admission, have become less clear.

11.     The Applicant refused to give oral evidence and refused to provide relevant documents he claimed were in his possession in support of his claims.  Failure to provide relevant oral evidence or to tender relevant documentary materials may be detrimental to the Applicant’s case.  Nonetheless, in the absence of such additional evidence, the Tribunal must proceed to determine the issues on the evidence before it.

12.     The new evidence on which the Applicant relied in this case concerns his Australian citizenship, particularly a statement by the Dutch Consul-General on 24 October 2000 that he had not been granted Dutch citizenship at any time subsequent to him relinquishing that nationality on the grant of Australian citizenship on 13 October 1977 (T51) and confirmation by the Department of Immigration and Multicultural Affairs that the Applicant has been a permanent Australian resident since his arrival on 18 March 1970 (T66). 

13.     The Respondent, for its part, failed to comply with Tribunal directions in a timely manner, thereby significantly delaying progress in this matter prior to the hearing.  This behaviour is both obstructive and detrimental to the satisfactory resolution of the matters in issue in this case.   It is contrary to the General Practice Direction and at odds with the Commonwealth’s responsibility to behave as a model litigant.

14.     The Respondent informed the Tribunal that significant efforts have been made to up-date files held by the Department concerning the Applicant in response to matters pursued by the Applicant under the Freedom of Information Act 1991.

CANCELLATION OF UNEMPLOYMENT BENEFIT ON 27 AUGUST 1990

15.     The Applicant’s submission, at its heart, is concerned with his categorisation as an “illegal immigrant” and the consequential cancellation of unemployment benefit on 27 August 1990 (Exhibit A5).  The reason given for the cancellation of his unemployment benefit, which was confirmed on review, concerned his Australian residency (T10). 

16.     It is a fact that the Applicant entered Australia on 7 June 1990 on a temporary visitor visa (T28, folio 59) using a Dutch passport (T4) to which he was not entitled as an Australian citizen.  The Applicant steadfastly refused to explain how he came to be in possession of the Dutch passport number 806127T, but explained that he used the Dutch passport because he had not been able to obtain an Australian passport to that date.  The Tribunal notes there is evidence that the Applicant previously used a different Dutch passport, number L276506, to enter Australia on 18 March 1970 (Exhibit A3) and in subsequent immigration transactions used a different Dutch passport, number 712748 (T28).   Nonetheless, despite the open questions concerning the Applicant’s use of Dutch passports, there is no evidence before the Tribunal that he relinquished his Australian citizenship.  The evidence is that an Australian citizen using a foreign passport to enter Australia would require a visitor’s visa but would not be bound by its terms on entry (T31).

17.     It is curious in this case that questions concerning the Applicant’s citizenship and his use of Dutch passports, even though he relinquished his Dutch citizenship on taking out Australian citizenship on 13 October 1977, have not been clarified by the Department of Immigration and Multicultural Affairs.

18.     The Respondent conceded, in the absence of evidence to the contrary, that the Applicant was a citizen of Australia and was entitled to reside permanently in Australia at all relevant times (T60, T61, T65 and T66).  It is unfortunate for the Applicant that this concession does not assist his claim for payment of unemployment benefit in arrears for the period 27 August 1990 to 1 December 1990. 

19. Section 183 of the Social Security Act 1947 (“the 1947 Act”) provides that where a person applies for review of a decision more than three months after notice of the decision, and the decision under review is varied or set aside, the review decision takes effect from the date of the application for review. Section 109 of the Social Security (Administration) Act 1999 (“the SSA Act”) has similar effect. It follows, therefore, that even if the Tribunal were to find the Applicant’s unemployment benefit was incorrectly cancelled in August 1990, no arrears would be payable.

20.     In any event, the Tribunal notes the application for review is significantly out of time.  The Tribunal is satisfied that the Applicant chose not to seek review of the decision to cancel his unemployment benefit, as was his right at that time.  Written notice of the decision to cancel the Applicant’s unemployment benefit on 27 August 1990 was sent to his (then) last known address (T10) in which reference was made to a telephone conversation with the Applicant on 24 August 1990.  He did not seek review of the decision to cancel his unemployment benefit within the three-month period specified at section 168 of the 1947 Act.  The Tribunal is mindful of the general rule that “where there is delay the whole quality of justice deteriorates” (R v Lawrence [1982] AC 510 at 517) and is not satisfied that the Applicant’s failure to lodge a request for review of the decision within the requisite time has a reasonable excuse that would warrant the granting of an extension of time (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and Hunter Valley Developments v Minister for Home Affairs and Environment (1984) 3 FCR 344).

21.     On its face, and in the absence of evidence to the contrary, it would appear that the Applicant may have satisfied the residency qualification for unemployment benefit in August 1990, despite doubts at the time concerning his residency status which were due, in substantial part, to his own actions using Dutch passports for immigration purposes.  However, carefully considering all the evidence, there is an insufficiency of evidence to determine, to the Tribunal’s satisfaction, whether in fact the Applicant satisfied the qualifying criteria set out at section 116 of the 1947 Act on 27 August 1990 and was entitled to continue to receive unemployment benefit during the period in question.

22.     The fact is that the Applicant has agitated the substantive issues in this case on previous occasions.  Evidence of Australian residency, alone, is not sufficient to determine whether the Applicant was qualified for unemployment benefit during the period in question as all other qualifying requirements must be satisfied.  There is insufficient evidence to determine whether he was so qualified.  Nonetheless, the Tribunal has no jurisdiction to review a decision that has been conclusively dealt with by the Tribunal on a previous occasion.  Even if that were not so, the Tribunal is satisfied on the evidence that there are not sufficient grounds to grant an extension of time for review of the decision in question that was made on 27 August 1990.

UNEMPLOYMENT BENEFIT CLAIM FOR THE PERIOD 25 FEBRUARY 1991 TO 5 FEBRUARY 1993

23.     Matters relating to the Applicant’s claims concerning his entitlement to be paid unemployment benefit during the period 25 February 1991 to 5 February 1993 were agitated and considered in detail by Deputy President Blow in Re Mulder and Department of Family and Community Services (supra), and there is nothing to permit or warrant their reconsideration in these proceedings.  The facts and findings concerning the Applicant’s fraudulent claims of unemployment benefit during the period in question are not disturbed in any way by evidence tendered in this case.

24.     The Applicant submitted that he lodged a claim for unemployment benefit on 25 February 1991 at the single rate in his own name at Frankston, having arrived in Australia on 22 February 1991.  There is no evidence before the Tribunal to corroborate this assertion.  The Tribunal does not accept the Applicant’s uncorroborated allegation and is not satisfied that any such claim was made.  Even had he done so, there is no evidence that he sought review of the alleged decision to reject that claim.  In the absence of a legitimate claim and evidence that a decision was made and subsequently reviewed, there is no determination or decision for review within the Tribunal’s jurisdiction.

25.     The Applicant tendered evidence of his fraudulent claim for unemployment benefit allegedly at the single rate in the name of Robert Miller (Exhibit A8 and A9), submitting that he could claim unemployment benefit in any name.  In his submission, he was driven to claim in the name of Robert Miller because his claim in his own name had been rejected for lack of an Australian Passport.  The Tribunal finds these submissions are devoid of merit.  In the first instance, there is no evidence to support the Applicant’s assertion he lodged a claim for unemployment benefit in his own name on or about 25 February 1991 and, in the second instance, his application in the name of Robert Miller was fraudulent and, in the third instance, he did not take any action to correct his fraudulent claim on being issued with an Australian passport on 21 March 1991 (T13).  The Tribunal notes the conclusions of Deputy President Blow in Re Mulder and Department of Family and Community Services (supra) at paragraph 29:

“I am satisfied that all of the payments to which the decisions under review relate were received as a result of the applicant representing himself to be his twin brother and deceiving departmental officers into believing that he was supporting Hermina Miller and her child.  I am satisfied that, although these monies were paid into accounts in the name of the twin brother, each of those accounts was at all relevant times controlled by the applicant, and was simply used by him as a vehicle by which he obtained all the relevant payments.”

26.     The Applicant lodged a claim in his own name for payment of unemployment benefit in the period 25 February 1991 to 5 February 1993 on 18 August 2000 (T49), alleging that he satisfied all of the qualifying criteria.  Considering all the evidence, the Tribunal is not satisfied there is sufficient evidence to find the Applicant was so qualified during the period in question. 

27. In any event, even if the Tribunal accepted that the claim was compliant with the statutory requirements and the Applicant satisfied each of the qualification criteria for unemployment benefit, about which the Tribunal makes no such findings, the claim must fail. The way in which the start day in relation to a successful claim is to be worked out is set out at Schedule 2 of the SSA Act. Applying these provisions, the earliest start day the Applicant could achieve in relation to his claim would be the date on which the claim was made, that is 18 August 2000.

CONCLUSION

28.     Considering all of the evidence, the submissions of the parties, the relevant caselaw and legislation, the Tribunal is satisfied that there is insufficient evidence to support the Applicant’s contention that his unemployment benefit was incorrectly cancelled on 27 August 1990 and that he was entitled to payment of unemployment benefit during the period 25 February 1991 to 8 January 1993.  However, the Tribunal has no jurisdiction to review decisions that the Tribunal has previously and conclusively dealt with on the merits.  If the Applicant wants the decisions of Deputy President Blow, Senior Member Allen and Senior Member Beddoe reviewed he must make application to the Federal Court.

29.     The Tribunal is satisfied that the Applicant did not claim unemployment benefit in his own name on or about 25 February 1991 and, if he did, he did not pursue his right of review thereafter.  On the available evidence, there is no decision within the Tribunal’s jurisdiction to review.

30.     The Tribunal finds no merit in the Applicant’s claim on 18 August 2000 for unemployment benefit in the period from 25 February 1991 to 5 February 1993.  Not only is there no decision in relation to that application for the Tribunal to review but the claim must fail in any event because there is no provision within the social security legislation to permit such a retrospective claim.

31.     The Tribunal notes the Respondent’s observation that the decision to cancel the Applicant’s unemployment benefit on 27 August 1990 may not have been made “if we had known then what we know now”.  In any event, the Applicant must fail in his claim for payment of unemployment benefit in arrears for the periods in question.

32.     This being the case, the decisions under review must be affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         C. Gregson
  Associate

Date/s of Hearing  22 April 2003
Date of Decision  5 September 2003
Solicitor for the Applicant          Self-Represented
Advocate for the Respondent   Mr J Kelly