Prodan and Secretary, Department of Family and Community Services - [2002] AATA 1134

DECISION AND REASONS FOR DECISION [2002] AATA 1134

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/694

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ILE PRODAN ALICE PRODAN
  Applicants
           And    SECRTARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date5 November 2002
PlaceBrisbane

Decision The Tribunal orders that the application in so far as it relates to the decision of the respondent to refuse the applicant's claim for special benefits under the Social Security Act 1991 be dismissed for want of jurisdiction. The Tribunal directs that the application in so far as it relates to the decision of the respondent in relation to the applicant's request for documents under the Freedom of Information Act 1982 proceed to hearing before the Tribunal on a date to be fixed.

....................(Sgd)....................
Mr B J McCabe
Member
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – whether Tribunal has jurisdiction to review matter – whether reviewable decision exists

Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
Freedom of Information Act 1982

REASONS FOR DECISION

5 November 2002 Mr B J McCabe, Member

Introduction

Mr Ilie Prodan asked the Tribunal to review decisions made by the respondent in relation to his application for income support payments. He says he made an application to Centrelink on 3 September 2001 seeking a special benefit and a supporting parent's benefit. Centrelink was unable to locate that application, and another application was lodged in April 2002. It is not clear who lodged that application: Mr Prodan says he did not. That application only sought special benefits.
The respondent rejected the application made in April 2002 because Mr Prodan was not an Australian resident and did not hold an appropriate visa. That requirement is imposed under s 729 of the Social Security Act 1991. In a letter to Mr Prodan dated 20 June 2002, setting out reasons for the decision, the Authorised Review Officer from Centrelink said the respondent would have made the same decision in relation to the earlier application claiming special benefits as the applicant was not an Australian resident or holder of an appropriate vias at the time of that application either.
Mr Prodan approached the Social Security Appeals Tribunal (SSAT) but he explained his application to the SSAT and the application to the Administrative Appeals Tribunal were proceeding "in parallel". It turned out the SSAT only delivered a decision in relation to the matter on 4 October 2002 – after the application to the Tribunal had been filed. Neither party was aware of the SSAT's decision when the directions hearing in this matter was held. The SSAT had affirmed the original decision.
Mr Prodan also suspects parts of his file were lost or destroyed. He apparently made an application under the Freedom of Information Act 1982 seeking access to his file, but he is not satisfied that he was provided with all the documents. He says three Centrelink officers engaged in misconduct. He referred to a conspiracy between the Department of Immigration and Centrelink in his letter to the District Registrar of this Tribunal dated 6 September 2002. He wants the Attorney-General to intervene in the hearing pursuant to s 30A of the Administrative Appeals Tribunal Act 1975 in light of all this. He also wants the Tribunal to instruct the respondent to reconstruct his file and deal with his application of 3 September 2001 because he is an Australian resident. Mr Prodan says this matter is very urgent as he is starving and eating out of rubbish cans. He is very annoyed by what he perceives to be the delay in dealing with his application, and he is angry at the alleged misconduct.
The respondent said the Tribunal does not have jurisdiction to review the decision on Mr Prodan's application for special benefits because the matter had not been finalised by the SSAT when the applicant commenced proceedings before the Tribunal. Mr McQuinlan, for the Secretary, conceded the decision in relation to the Freedom of Information Act 1982 (FOI) application was properly before the Tribunal and could be heard in due course. He said that complaints against Centrelink officers should be directed to other agencies, including the Ombudsman.
These matters were considered by the Tribunal in the course of a telephone hearing of jurisdiction held on 14 October 2002. Mr Prodan represented himself, and he addressed the Tribunal with the assistance of an interpreter. Mr McQuinlan appeared on behalf of the respondent.
The first part of Mr Prodan's claim is the application for income support payments. Centrelink's decision related to the application made in April. Mr Prodan says Centrelink should have dealt with the earlier application. He says he has a copy of that application, and Mr McQuinlan asked him to provide a copy to Centrelink as soon as possible so that the file could be reconstructed.
Part Four of the Social Security (Administration) Act 1999 sets out a review process to be followed by an applicant who disputes a Centrelink decision in relation to the payment of a benefit. The first step is to seek an internal review of the decision by the Secretary: s 129. A decision on the objection is then made by the Secretary or by an Authorised Review Officer: s 135. If the applicant disagrees with that decision, he or she may then approach the SSAT: s 142. If the applicant is dissatisfied with the SSAT decision, he or she may then – and only then – apply to the Administrative Appeals Tribunal: s 179. The Tribunal may not intervene at some earlier point and take over the review before the appeal process before the SSAT has been completed. That much is clear from s181, which says:
"The AAT may only review a decision that has been reviewed by the SSAT."
It does not matter whether the presiding member of the Tribunal has sympathy for the applicant, or believes the applicant has a good case. The Tribunal (and the applicant and respondent) must follow the process set out in the Social Security (Administration) Act 1999. Since the SSAT had not reached a decision when the application to the Tribunal was filed, the Tribunal has no jurisdiction or power to deal with the case, regardless of its merits. That is the law.
The proper course for Mr Prodan is to make a fresh application to the Tribunal if he is dissatisfied with the decision of the SSAT.
Mr Prodan was unhappy with the suggestion he should go back to the SSAT when that possibility was raised during the course of the hearing. He said the question marks over this Tribunal's jurisdiction should have been raised with him and explained in writing. But that was done in the letter from the District Registrar dated 27 August 2002. That is not the first occasion on which Mr Prodan's appeal rights were explained to him. The letter from the Authorised Review Officer dated 20 June 2002 makes it clear that if he had a complaint he should appeal to the SSAT and thereafter to this Tribunal.
It follows I have no power to direct the respondent to reconsider its decision to refuse payment of benefits.
As Mr McQuinlan noted, the Tribunal does have the power to deal with the decision in relation to the Freedom of Information application. Decisions made in relation to FOI applications are not dealt with by the SSAT: they come straight to the Tribunal. I understand Mr Prodan has been provided with a formal notice stating that no further documents are available. If Mr Prodan wishes to persist with this claim, it may be set down for hearing in due course once all of the formalities have been completed.
It is unclear which documents are supposed to be missing from the file apart from the application of 3 September 2001. Mr Prodan says he has a date-stamped copy of that application, and he agreed to provide Centrelink with a copy. If Centrelink is able to reconstruct its file with the documents provided by Mr Prodan, the FOI application might be resolved without any further dispute.
If Mr Prodan does proceed with the FOI matter, the allegations of misconduct might arise during the course of a hearing. If misconduct is established, the findings would presumably be referred to the relevant authorities for their attention. In the meantime, Mr Prodan is free to raise his allegations with whomever he wishes. A complaint to the Ombudsman is the obvious course.
Mr Prodan wishes to involve the Attorney-General. The Attorney's power to intervene under s 30A of the Administrative Appeals Tribunal Act 1975 is a procedural device to ensure there is no dispute about standing should the Attorney identify a matter of special interest that arises out of what is otherwise a private dispute. But the decision to intervene is a matter for the Attorney, not the Tribunal. I have no power to direct that he be joined to the proceedings.
Conclusion
For the reasons given, I direct that the application in so far as it relates to the refusal to pay income support be dismissed for want of jurisdiction. The applicant is however at liberty to proceed with his claim relating to the decision on his application made pursuant to the Freedom of Information Act 1982.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed:         Sarah Oliver
  Associate
Date of Hearing  14 October 2002
Date of Decision  5 November 2002
The Applicant Appeared In Person
Solicitor for the Respondent    Mr R McQuinlan, Departmental Advocate