Popov and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 205

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 205

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2011/0003

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAVA POPOV

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 28 March 2011

Place Brisbane

Decision  The application is dismissed.

....................[SGD]..........................

Senior Member

CATCHWORDS

SOCIAL SECURITY — disability support pension — age pension — whether there is a reviewable decision — whether the Administrative Appeals Tribunal has jurisdiction — application dismissed.

Social Security Act 1991, s 1220

Social Security (Administration) Act1999, s 179

Administrative Appeals Tribunal Act 1975, s 3(3)

REASONS FOR DECISION

28 March 2011  Senior Member Bernard J McCabe        

1.      The outcome of this case depends on whether Centrelink has made a decision that is capable of being reviewed by the Tribunal. If there is no reviewable decision, the Tribunal is powerless to do anything about it.

2.      The Social Security Appeals Tribunal (“the SSAT”) formed the view that there was no reviewable decision. I think it was right to do so. I explain my reasons below.

The factual background

3.      Mr Sava Popov has been receiving the disability support pension (DSP) but he has recently reached the age where he can apply for the age pension. He is an Australian citizen but there is a dispute over the time during which he has resided in this country. It seems he has spent a good deal of time in his native Serbia. Mr Popov now wants to return to Serbia to live. He asked Centrelink whether he was able to receive his pension if he left Australia. Centrelink staff orally advised him that the pension would not become portable until 7 May 2012 because he had not resided in Australia for long enough. Mr Popov asked for an internal review of the advice. It was confirmed in a decision by the authorised review officer on 5 October 2010. That view was confirmed by the SSAT.

4.      

The requirement that a former resident of Australia return and live here for at least two years before becoming eligible for a portable pension is found in s 1220 of the Social Security Act 1991. If Centrelink’s understanding of Mr Popov’s residence status is correct, one could confidently predict that his age pension would cease being payable once he left the country. But he had not left the country at the time of the decision; he had merely foreshadowed an intention to do so. Has Centrelink done anything more than predict or advise what its decision would likely be if

Mr Popov moved overseas as he foreshadowed? Centrelink argues, in effect, that the “decision” which is the subject of this application is really nothing more than advice offered in response to a hypothetical question.

5. Section 179 of the Social Security (Administration) Act 1999 creates a right of appeal from the SSAT to this Tribunal. The appeal lies in respect of a decision that has been affirmed, varied or set aside by the SSAT. ‘Decision’ is defined in the Social Security Act by reference to s 3(3) of the Administrative Appeals Tribunal Act 1975. That provision defines ‘decision’ in an inclusive way as follows:

Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:

(a)  making, suspending, revoking or refusing to make an order or determination;

(b)  giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)  issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)  imposing a condition or restriction;

(e)  making a declaration, demand or requirement;

(f)  retaining, or refusing to deliver up, an article; or

(g)  doing or refusing to do any other act or thing.

6. I accept the definition is not exhaustive. Its imprecision is probably inevitable: the concept is, to some extent, a fluid one. One cannot apply the definition in s 3(3) in a mechanical way. One must look past the language used by the parties to consider the substance of what has been done. But even with those caveats, I do not think the purported decision in this case passes muster. There is no legal consequence flowing from what has been said. At most, Centrelink officers have predicted a decision that would be made if matters unfold as expected. The reviewable decision would only come, if at all, when Centrelink decided to refuse or cancel the pension. That has not yet occurred, and may never occur.

Conclusion

7.      The application is premature. I am not satisfied there is a reviewable decision that would attract the jurisdiction of the Tribunal. The application must therefore be dismissed.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ...................[SGD]........................................................
  Kerri Smith, Associate

Date of Hearing  Hearing on Papers
Date of Decision  28 March 2011