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

[2012] AATA 684

2012 [AATA] 684

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3671
Re	Van-Lam Nguyen
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

ORDER

Tribunal	Mr Conrad Ermert, Member
Date of order	5 October 2012
Date of written reasons	5 October 2012
Place	Melbourne

Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal refuses to stay the operation of the decision under review. .

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

Mr Conrad Ermert, Member

CATCHWORDS 

Disability support pension - decision of SSAT to cease payment of DSP - application to stay decision - interests of persons affected by an order - hardship suffered by refusal of stay - likelihood of recovery of moneys - prospect of success of application for review - extension of time for application for review

LEGISLATION

Administrative Appeals Tribunal Act 1975 sections 37 and 41

Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011

CASES    

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA 880 (17 August 2010)

Repatriation commission and Delkou (1985) 8 ALD 454

Anastasiadis and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1065
Secretary, Department of Social Security and Collins (1991) 26 ALD 344

REASONS FOR ORDER

Mr Conrad Ermert, Member

5 October 2012

INTRODUCTION

1. Mr Nguyen, the applicant, has been receiving disability support pension (DSP) since 11 October 2007.  Since January 2008 Mr Nguyen has spent the majority of his time in Vietnam. 

2. On 1 July 2011 legislative changes were introduced by way of the Families, Housing, Community Servies and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011. The amending legislation was intended to close a loophole that allowed continued payment of DSP to people who live permanently overseas but return to Australia every 13 weeks in order to retain their pension.  On 1 September 2011 Centrelink, the service provider for the respondent, sent Mr Nguyen a notice about these legislative changes. 

3. On 5 March 2012 a Centrelink officer decided to cancel Mr Nguyen’s DSP on the basis that Mr Nguyen was no longer residing in Australia on a permanent basis.  On 6 March 2012 Mr Nguyen sought a review of the decision.  The decision was affirmed on 18 May 2012 by a Centrelink authorised review officer (ARO).  On 25 June 2012 the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision.  On 23 August 2012 Mr Nguyen lodged an application with this Tribunal seeking review of the SSAT decision. Mr Nguyen claimed that he received notice of the SSAT decision on 17 August 2012. 

4. Mr Nguyen has also applied for a stay of the SSAT decision until the matter has been reviewed by this Tribunal.  This matter is a consideration of the stay application.

   THE HEARING

5. Mr Nguyen attended the hearing and gave evidence under oath. Mr Andrew Carson, an advocate from the Centrelink Program Litigation and Review Branch, represented the respondent. I took into evidence the documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (the T-documents) and a Medical Report Disability Support Pension dated 11 September 2012.

   THE EVIDENCE

6. Mr Nguyen testified that he was in Vietnam when his DSP payments stopped.  He said that when he contacted Centrelink, a Centrelink officer told him that he would have to return to Australia within the 13 week period to retain his eligibility to DSP. 

7. In answer to questions from Mr Carson, Mr Nguyen said:

   ·he returned to Australia on 5 September 2012;

   ·he has seen a doctor in Australia since his return;

   ·he married in Vietnam and when in Vietnam he lives with his wife;

   ·when in Australia he does not pay rent;

   ·he has been granted provisional Newstart Allowance and a health care card;

   ·he received the notice advising him of changes to the DSP legislation;

   ·he currently does not have a return ticket to Vietnam;

   ·fares to Vietnam cost about $300 one way;

   ·his trips to Vietnam have been paid for by his brother and out of his savings; and

   ·treatments by an Australian doctor cost him $70 to $80 a visit.

8. Mr Nguyen said that he needs treatment every day for his back.  He said he has no money and cannot afford treatment in Australia.  He said he has gone to doctors in Australia but they only give him medicines for pain.

9. Mr Nguyen said his wife has just had a baby and is sick.  He said he has no money to care for the baby.  He said he has applied to bring his wife and child to Australia.  Mr Nguyen said his wife will be able to work in Australia and will support him.  He said he will then be able to afford to go to hospital for treatment to his back. 

   THE LEGISLATION

10. Section 41(2) of the AAT Act provides that the Tribunal may make an order staying the implementation of a decision:

    ... if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected ... by the order. 

    CONSIDERATION

11. The Federal Court in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouritidis [2010] FCA 880 (17 August 2010) referred to Repatriation Commission and Delkou (1985) 8 ALD 454 where the Tribunal considered the following factors in determining whether a stay order ought to be made:

    ·any hardship which a party to the review may suffer by reason of the grant of refusal of a stay;

    ·the likelihood of recovery by the Commonwealth of moneys to be paid under the determination sought to be stayed;

    ·the prospect of success of the application for review.

    Prospect of Success

12. I need to consider the prospect of success of Mr Nguyen’s application for review.  In its reasons for decision in Anastasiadis and Secretary, Department of Employment and Workplace Relations [2007] AATA 1065 the Tribunal said at paragraph 11:

    As there was no further evidentiary or factual material produced to support the applicant’s claim at the hearing of this application, the applicant must demonstrate that the decision of the SSAT was wrong in law.  In other words, the applicant must demonstrate that the SSAT’s decision was obviously incorrect on its face (see Re Secretary, Department of Social Security and Collins (1991) 26 ALD 344 at 346-347)

13. From Mr Nguyen’s evidence it is clear that the key facts of Mr Nguyen’s circumstances, as recorded in the SSAT reasons for decision, remain unchanged.  Those facts are:

    ·he does not own property in Australia;

    ·when in Australia he resides rent-free with his (ex-wife’s) brother-in-law;

    ·although he has children residing in Australia, they are adults and he has minimal contact with them;

    ·in Vietnam he resides in a property rented by his wife,

    ·his wife works in Vietnam;

    ·he has minimal financial, employment and business ties with Australia; and

    ·between January 2008 and June 2012 he spent 1,353 days in Vietnam and only 139 days in Australia.

14. Evidence presented to this hearing that may not have been available to the SSAT is that Mr Nguyen married in Vietnam in November 2011 and he has submitted an application for his wife to join him in Australia.  I do not consider the fact of Mr Nguyen’s marriage as support for his claim.  It can equally be taken to indicate a closer relationship to Vietnam than to Australia.

15. Mr Nguyen’s application to bring his wife to Australia may be an indication of an intention to treat Australia as home.  As such, it may be relevant in the consideration of an application to review the SSAT decision.  However, the success of such an application and its effect on the outcome of a review are uncertain.  Accordingly, I consider that Mr Nguyen’s prospects of success with an application for review also remain uncertain.

    Recovery of Moneys by the Commonwealth

16. In regard to the recovery of moneys paid under a stay order, Mr Carson submitted that Mr Nguyen was already in considerable debt.  If Mr Nguyen’s appeal was not successful, a stay order would create an additional debt, the recovery of which would be uncertain; particularly if Mr Nguyen was not residing in Australia.

17. As Mr Nguyen’s prospects for success remain uncertain, I consider it a real possibility that a stay order would create an additional debt burden on Mr Nguyen.  I accept Mr Carson’s contentions that the recovery of such additional debt by the Commonwealth would be uncertain.  

    Financial Hardship

18. In regard to financial hardship, Mr Nguyen testified that he owed approximately $10,000 on his credit card and his Australian bank account showed a debit of about $917 as at 6 September 2012.  Mr Carson contended that Mr Nguyen’s financial circumstances had recently improved as he was now receiving Newstart Allowance and he has a health care card.  Mr Carson also pointed out that while living in Australia Mr Nguyen does not pay rent. 

19. I accept Mr Carson’s contention that Mr Nguyen’s circumstances are partially improved.  I consider that his circumstances are manageable for the present and that Mr Nguyen will not be suffering a hardship by reason of a refusal of the stay application. 

    CONCLUSION

20. I now turn to section 41(2) of the AAT Act. There is a real possibility of an additional debt arising from an unsuccessful appeal against the SSAT decision. In his present financial circumstances, I consider it to be not in Mr Nguyen’s interests to take on the prospect of an additional debt burden for the future. Accordingly, I am not satisfied that it is in Mr Nguyen’s interests to make an order staying the operation of the SSAT decision. Furthermore, the recovery of a debt from Mr Nguyen may be difficult and therefore a stay order would not be in the interests of the respondent either.

    EXTENSION OF TIME

21. Nevertheless, I consider that it is in Mr Nguyen’s interests for the substantive application to review the SSAT decision be heard as soon as practicable. I note that he submitted an application on 23 August 2012.  Although this is outside the 28-day period allowed for such applications; Mr Carson told the Tribunal that the respondent does not contest an application by Mr Nguyen for an extension of time for his application for review to be lodged.

    ORDER

22. The Tribunal refuses to make an order to stay the application of the decision under review.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the order herein of Mr C. Ermert, Member

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

Associate

Dated 5 October 2012

Date of hearing	18 September 2012
Applicant	In person
Advocate for the Respondent	Mr Andrew Carson, Program Litigation and Review Branch, Department of Human Services