Paschke and Secretary, Department of Social Services (Social services second review)
[2024] AATA 241
•26 February 2024
Paschke and Secretary, Department of Social Services (Social services second review) [2024] AATA 241 (26 February 2024)
Division:GENERAL DIVISION
File Number: 2024/0609
Re:Winfried Paschke
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:26 February 2024
Place:Melbourne
The Tribunal has does not have jurisdiction to hear the application and dismisses it under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
.........................[sgd]...............................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
PRACTICE AND PROCEDURE – Applicant seeks review of general policy of Services Australia – decision made by Authorised Review Officer – Applicant did not seek review of Authorised Review Officer decision by AAT1 – issue of jurisdiction arises – parties consent to jurisdiction being determined on the papers – no jurisdiction – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security (Administration) Act 1999 (Cth)CASES
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Paschke v Secretary, Department of Social Services [2023] FCA 6
Paschke v Secretary, Department of Social Services [2023] FCAFC 143Shi v Migration Agents Registration Authority (2008) 235 CLR 286,
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
26 February 2024
INTRODUCTION
Mr Winfried Paschke has asked the Tribunal to review an internal policy of the Respondent relating to the valuation of realty in the context of determining Age Pension entitlements (“assessable curtilage”). He claims this policy is flawed and beyond statutory authority. Soon after receiving his application, the Tribunal notified Mr Paschke that a question of jurisdiction arose. He has requested, and the Respondent has consented, to the Tribunal deciding the issue of jurisdiction without holding a hearing, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).
Both parties made written submissions. In Mr Paschke’s case, he lodged emails containing written submissions and attachments on 18, 19, 20, and 22 February 2024. The Respondent lodged written submissions dated 22 February 2024. For the reasons that follow, the Tribunal has decided it does not have jurisdiction to hear Mr Paschke’s application and dismisses it pursuant to s 42A(4) of the AAT Act.
BACKGROUND
Mr Paschke was granted Age Pension on 10 April 2007. The Respondent subsequently reduced his pension on 11 August 2011 because of the value of a property he owned, which the Australian Valuation Office assessed to be worth $369,000 (“original decision”).
Mr Paschke asked the Respondent to review this decision and succeeded in having the value of the property revised, consistent with the valuation he preferred by his local council. On 12 January 2012 an Authorised Review Officer (“ARO”) set aside the original decision and substituted the decision that the property value was $310,000 with effect from 6 September 2011. Mr Paschke was subsequently entitled to arrears on his age pension for the period 6 September 2011 to 2 January 2012. He did not seek a first review of this decision before the Social Services and Child Support Division of this Tribunal (“AAT1”) under s 142 of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”).
A decade later, Mr Paschke filed an originating application before the Federal Court, seeking to initiate a representative proceeding on behalf of 2657 persons who he claims had their age pension cancelled because of an assessable amount for curtilage. Justice Colvin dismissed this application on 12 January 2023.[1]
[1] Paschke v Secretary, Department of Social Services [2023] FCA 6.
Mr Paschke sought an extension of time and leave to appeal Justice Colvin’s decision, but on 24 August 2023 the Full Court of the Australian Federal Court dismissed his application.[2] Costs in both Federal Court proceedings were awarded against Mr Paschke.
[2] Paschke v Secretary, Department of Social Services [2023] FCAFC 143.
On 7 January 2024, Mr Paschke stated the following when seeking a second review by the General Division of this Tribunal (“AAT2”):
‘What I am asking the Tribunal to review is an administrative decision/direction issued by the then Secretary of the Department of Human Services and now continued by Services Australia. This decision/direction applies to thousands of people, it is not an individual decision.
Because it is a policy decision/direction it cannot be reviewed by an Authorised Review Officer and my many attempts to have the DHS/Services Australia review this policy decision/direction were ignored.
…
Briefly describe the decision
• It is an internal departmental decision/policy directing departmental officers to determine the value of a particular item of Real Estate when the Responsible Authority, by their own admission to the Commonwealth Ombudsman, does not have the power to value assets’
LEGISLATIVE FRAMEWORK AND ITS APPLICATION TO MR NEVILLE
The Tribunal’s jurisdiction under s 25(1) of the AAT Act is limited to review of decisions made in the exercise of powers conferred by a Commonwealth statute, or by another statute having effect under that law.[3] The relevant statute in the present matter is the Administration Act. Divisions 2 and 3 of that Act provide for two tiers of review in this Tribunal. Pursuant to s 179(1) of the Administration Act, a decision by AAT1 is a necessary precondition to enliven the jurisdiction of AAT2.
[3] cf Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 312, 334; Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 324 at [132].
TRIBUNAL CONSIDERATION
No application was made by Mr Paschke in 2012 for AAT1 to review the ARO decision, which was in his favour. As there is no AAT1 decision, the jurisdiction of AAT2 has never been enlivened.
DECISION
It follows that the General Division of this Tribunal does not have jurisdiction to hear Mr Paschke’s application and dismisses it under s 42A(4) of the AAT Act
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
………[sgd]………………………….
Associate
Dated: 26 February 2024
Date of hearing: Not applicable. Matter decided on the papers Advocate for the Applicant: Mr Paschke – self represented Advocate for the Respondent: Ms Sarah Nguyen
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