O’NEILL and CHILD SUPPORT REGISTRAR

[2010] AATA 237

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 237

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3498

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALAN O’NEILL

Applicant

And CHILD SUPPORT REGISTRAR

Respondent

DECISION

Tribunal Senior Member K Bean

Date1 April 2010

PlaceAdelaide

Decision The application for an order pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 is refused.

..............................................

K BEAN
  (Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – Application for stay of decision not to revoke departure prohibition order – No jurisdiction to review decision to impose departure prohibition order – Tribunal has no power to grant an order which would have any practical effect – Application for stay refused

Child Support (Assessment) Act 1989 (Cth)
Administrative Appeals Tribunal Act 1975 s 41

Child Support (Registration and Collection) Act 1988 ss 72D(1), 72I, 72L, 72M, 72T, 74

Re PG Laird and Australian Broadcasting Tribunal (AAT 190, 10 May 1979)
Shi v Migration Institute of Australia & Anor (2003) 78 ALD 281
Re Alexander and Migration Agents’ Registration Board (1995) 40 ALD 99

REASONS FOR DECISION

1 April 2010   Senior Member K Bean

1.      The applicant, Mr Alan O’Neill, is an inventor and the holder of an Australian Distinguished Talent permanent visa, granted in October 2006.  He has two children as a result of his relationship with an ex de facto partner.[1]  He was first assessed for child support on 28 February 2005 under the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act). As at October 2007, he had a child support debt of $9,873.97 (consisting of $9,511.16 maintenance and $362.81 late payment penalty).[2]

[1] T docs, T19, p 98

[2] T docs, T3, p 12

2. Having regard to that debt, on 4 October 2007 a delegate of the Registrar of the Child Support Agency (the Agency) issued a departure prohibition order (DPO) pursuant to s 72D(1) of the Child Support (Registration and Collection) Act 1988 (the Collection Act).[3]  The effect of that order was that Mr O’Neill was prevented from leaving Australia, unless the order was revoked or a departure authorisation certificate (DAC) was granted.

[3] T docs, T2, p 11

3.      Following discussions with Mr O’Neill, on 22 February 2008, a decision was made by an officer of the Agency not to revoke the DPO. 

4.      On 28 July 2009, Mr O’Neill filed an application to this Tribunal seeking review of the decision imposing the DPO.  However, following communications between the parties and with the Tribunal in relation to the Tribunal’s jurisdiction, on 17 September 2009 he filed an Amended Application for Review in relation to “decisions to revoke a departure prohibition order, which was granted against me on 4 October 2007”.  The respondent subsequently identified a particular decision not to revoke the DPO, dated 22 February 2008, and did not object to an extension of time being granted to enable review of that decision, which subsequently occurred.  The T documents and s 37 statement have accordingly been prepared in relation to that decision.

5.      On 8 September 2009, prior to the Amended Application being filed, the applicant had applied for a stay of the DPO dated 4 October 2007, and the application for a stay was listed for hearing before me on 17 February 2010. Although on its face the application for a stay was made in relation to the DPO decision, consistently with the procedural history set out above, both parties approached the matter on the basis that the reviewable decision was the decision of 22 February 2008, and the stay application related to that decision.

6.      In these circumstances, I am prepared to treat the application before me as an application to stay the decision of 22 February 2008.[4]

[4] See Administrative Appeals Tribunal Regulations, Reg 7A

issue

7.      The issue currently before me is whether a stay should be granted in relation to the decision under review.  As part of my consideration of that issue however, it will also be necessary for me to consider whether the Tribunal has jurisdiction to review the decision to impose a DPO, on 4 October 2007, as it was that decision which was originally the subject of the applicant’s application for review (and his stay application).

legislation

8. The Tribunal’s power to grant a stay is conferred by s 41 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which relevantly provides as follows:

“41(1)Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

(2)The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), 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 review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”

the evidence and contentions

9.      In the context of this application, Mr O’Neill put forward very detailed and well-reasoned arguments, most of which were directed to the merits of the original decision to impose the DPO, and the decision not to revoke it.  In essence he argued that a close examination of the evidence would reveal that there was no proper basis for the decision to impose the DPO, or the decision not to revoke it, primarily for the following reasons:

(a)he now had four children in Australia and was not a flight risk;

(b)it was in no-one’s interests for the DPO to be imposed, since, by reason of his highly specialist qualifications and unusual line of work, this was currently having the effect of preventing him from earning an income, or at the very least drastically reducing his earning capacity; and

(c)whilst he acknowledged a mechanism by which he could travel overseas notwithstanding the DPO (by applying for the issue of a DAC) he submitted that this procedure was not adapted to his circumstances, for a variety of reasons.  These included the fact that the Agency tended only to issue DACs upon the guarantee of some payment being made to it as a result of any travel, and the DAC procedure was also cumbersome and to some degree circular in his case.  He explained that he would not wish to organise business meetings overseas unless his travel was guaranteed and yet the DAC procedure required him to provide details of any meeting in advance in order for the DAC to be granted. 

10.     Mr O’Neill also placed detailed evidence before me intended to support these contentions.

11.     In relation to the question of my power to issue a stay which would be of practical utility to him, Mr O’Neill put a number of alternative arguments.  First, he said that his application was to stay the DPO itself, and not the decision not to revoke.[5]  He contended that:

“The issuing of a stay on the DPO is a possible action before the AAT because of the direct and intimate link between Decisions ‘To’ and ‘Not To’ Revoke a DPO, and the DPO itself.  Whilst it can be argued that a stay on the DPO goes to the operation of the original decision, it also clearly goes to the historical, current and future operation of a Decision ‘To’ or ‘Not To’ Revoke the DPO, which is clearly in the jurisdiction and power of the AAT.”

[5] Further submissions of the applicant, received 3 October 2009

12.     He also argued that, because one outcome of his substantive application to review the decision not to revoke the DPO was revocation of the DPO, it followed that the Tribunal should have power to achieve that result on an interim basis, pending final hearing of the matter.  As an alternative to staying the operation of the DPO, he submitted that the Tribunal should order the respondent to grant a DAC with no requirement as to payment of the debt and with no security deposit.

13.     In relation to the desirability of a stay being granted, Mr O’Neill submitted that it was desirable that the DPO be stayed on the following grounds:

“(a)To temporarily allow me to travel to secure the possibility of work and to secure the effectiveness of the hearing and the outcome of the review.

(b)      To temporarily restore a common law right that has been clearly removed,           ….”[6]

[6] Further submissions of the applicant, received 3 October 2009       

14.     Mr O’Neill also argued that a stay which allowed him to travel would assist him in demonstrating that reversal of the decision under review would enable him to return to work.

15.     The respondent made short oral submissions at the hearing and also provided further written submissions after the hearing.  In relation to utility, the respondent submitted that a decision staying the decision not to revoke the DPO would not allow the applicant to travel outside Australia, and would therefore be of little utility.[7] In relation to desirability, the respondent contended that, having regard to the relevant statutory scheme, it would not be desirable or appropriate for a stay to be granted. The respondent submitted that, rather than seeking a stay of the decision not to revoke the DPO, the applicant should avail himself of the procedure available under the Collection Act and apply for a DAC. Alternatively, the respondent submitted that it was open to him to make a fresh revocation application.

[7] Submissions of respondent dated 1 March 2010

consideration

16.     Having regard to the above framework, there are effectively two issues to be determined in the context of this application.  The first is whether I have power to grant a stay of the kind sought by the applicant and the second is whether it is desirable to do so. 

Does the Tribunal have power to grant an effective stay?  

17.     As outlined above, in substance the decision the applicant wishes to challenge is the decision to grant the DPO on 4 October 2007.  However, the difficulty confronting him in challenging that decision is that this Tribunal has no jurisdiction to review that decision.   

18.     It is well established that this Tribunal, unlike a court, has no inherent jurisdiction to review administrative decisions, and that its jurisdiction must be derived from legislation other than the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) : see for example Re PG Laird and Australian Broadcasting Tribunal (AAT 190, 10 May 1979).

19. In the present case, the relevant legislation is the Collection Act.  Under that Act, the Tribunal is given jurisdiction to review a limited number of decisions. Most relevantly, pursuant to s 72T applications may be made to this Tribunal for review of decisions of the Registrar under s 72I relating to revocation or variation of DPOs, and ss 72L or 72M, relating to DACs.

20. However, the power to impose a DPO is conferred by s 72D of the Collection Act and there is no provision in the Collection Act or elsewhere which confers jurisdiction on this Tribunal to review a decision made pursuant to s 72D.

21.     As I understand the position, it is for this reason that the applicant has amended his substantive application so as to seek review of a decision not to revoke the DPO, and not the decision to impose the DPO. 

22.     As this Tribunal has no jurisdiction to review the decision to impose the DPO, it of course follows that I also have no power to stay that decision directly.  However, the applicant nevertheless contends that, in the context of reviewing the decision not to revoke the DPO, the Tribunal may make a stay order which has the practical effect of staying or reversing the DPO.

23. I accept that, in some circumstances, the Tribunal may make an order pursuant to s 41 of the AAT Act which appears to have “positive effect”. For example, orders have been made pursuant to s 41(2) which have the effect of continuing a registration in circumstances where a reviewable decision has been made not to renew the registration, and it would otherwise have lapsed.[8] 

[8] See Shi v Migration Institute of Australia & Anor (2003) 78 ALD 281

24.     I am not satisfied, however, that the Tribunal has power to make such an order where this would fundamentally alter the status quo which pertained prior to the making of the reviewable decision.  To that extent, it appears to me that the remarks of Deputy President McMahon in Re Alexander and Migration Agents’ Registration Board (1995) 40 ALD 99 are apposite. In that matter, the Deputy President observed as follows:

“The question, therefore, is whether this Tribunal has power to stay or otherwise affect the operation of the decision to refuse registration.  In my opinion it does not.

Power is given to enable the Tribunal to preserve the status quo, so as to ensure that a continuum which is broken by a reviewable decision may be reinstated in order to secure the ultimate effectiveness of the hearing.  Here there is no such continuum.

Prior to the operative decision, the applicant was not registered under Part 3.  After the operative decision, he continued to be unregistered under Part 3.  What the applicant is to have this Tribunal substitute, as a temporary decision, an order granting him registration under Part 3 without investigation of the merits.  In my view this Tribunal has no such power.”[9]

[9] At 102 – 103

25.     It appears to me that similar observations can be made in this matter.  Prior to the decision under review being made, namely the decision not to revoke the DPO, the DPO was in place and prevented Mr O’Neill from travelling overseas.  Therefore the decision not to revoke the DPO had no practical impact on that state of affairs.  Nevertheless, in the context of reviewing that decision, Mr O’Neill asks the Tribunal to effectively reverse the DPO.  In my view, that is not something the Tribunal has power to do.  The Tribunal would have power to stay the decision not to revoke the DPO, however, staying that decision would simply have the result that that decision would be taken not to have been made, which would leave the DPO in place.  This would have no practical effect and for that reason it would be of no utility to make such an order.

26.     The applicant also contended that, if it found it could not stay the DPO, the Tribunal should require the Agency to issue a DAC on particular terms.  However, the Tribunal’s jurisdiction is limited to reviewing the decision the subject of the application for review and in that context I have no power to require the Agency to issue a DAC.

27.     In these circumstances, I have concluded that the Tribunal has no power to make an order which would have any practical effect.  It is therefore not necessary for me to proceed to address the question of whether, if there was power, it would be desirable to make such an order.

28.     As the Tribunal does not have power to make an order which would have any practical effect, I have decided not to grant the stay order sought by Mr O’Neill.

decision

29. The application for an order pursuant to s 41(2) of the AAT Act is refused.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

Signed:         ............J Coulthard...........................................
  Associate

Date of Hearing  17 February 2010
Date of Decision  1 April 2010
Advocate for the Applicant       Self-represented
Counsel for the Respondent     Ms A Linacre
Solicitor for the Respondent     Clayton Utz