Qeuin and Secretary, Department of Social Services (Social security) - [2025] ARTA 760

Qeuin and Secretary, Department of Social Services (Social security) [2025] ARTA 760 (21 March 2025)

Applicant/s: Mr Qeuin

Respondent: Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number: 2024/S192162
Tribunal: General Member B Walters
Place:Sydney
Date:21 March 2025

Decision:The Tribunal sets aside:
1.The decision to suspend Mr Qeuin’s jobseeker payment from 20 March 2024; and
2.The decision to cancel Mr Qeuin’s jobseeker payment from 19 April 2024.

In substitution, the Tribunal decides that jobseeker payment remained payable to Mr Qeuin from 20 March 2024.

CATCHWORDS

SOCIAL SECURITY – JobSeeker Payment – suspension and cancellation – failure to attend appointment or reconnect with job services provider – no record of notification of appointment – telephone call at time of appointment and business details provided on form – business activity but no income – limited English language skills and ability to understand and comply with requirements – cancellation letter sent less than 4 weeks after notification of reconnection requirement – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

This review is about whether Mr Qeuin’s jobseeker payment was correctly cancelled by Services Australia (Centrelink) on 19 April 2024.
According to Centrelink, Mr Qeuin was required to attend an appointment with [Provider] on 21 March 2024 at 1 pm.[1] [Provider] reported to Centrelink that Mr Qeuin did not attend this appointment.[2]
[1] Page 56 of the hearing papers.
[2] Page 59 of the hearing papers.
Centrelink wrote to Mr Qeuin on 26 March 2024 and advised that his payment had been suspended from 20 March 2024 and that he needed to reconnect with [Provider], or his payment might be cancelled.[3]
[3] Page 34 of the hearing papers.
Centrelink cancelled Mr Qeuin’s jobseeker payment from 19 April 2024 on the basis that he had not reconnected with [Provider] by that date.[4]
[4] Page 85 of the hearing papers.
On 3 June 2024, Mr Qeuin contacted Centrelink by phone and requested a review.[5] On 30 August 2024, a Centrelink authorised review officer (ARO) affirmed the decision.
[5] Page 74 of the hearing papers.
On 21 November 2024, Mr Qeuin sought further independent review from the Administrative Review Tribunal (the Tribunal).
A hearing was conducted on 3 March 2025. Mr Qeuin and his partner, [Ms A], appeared by telephone and gave evidence on affirmation. Before the Tribunal were 90 pages of relevant documents, provided by Centrelink (the hearing papers), a copy of which had been provided to Mr Qeuin prior to the hearing. The Tribunal also had regard to documents provided by Mr Qeuin, numbered A1 to A44.

ISSUES

The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security (Administration) (Reasonable Excuse – Participation Payments) Determination 2018) (the Determination).
The issues which arise in this case are:
·      Whether Mr Qeuin’s jobseeker payment should have been suspended from 20 March 2024; and
·      Whether Mr Qeuin’s jobseeker payment should have been cancelled from 19 April 2024; and
·      The date that a favourable determination by the Tribunal, if any, takes effect.

CONSIDERATION

In relation to the decision, the ARO wrote:[6]
Reasons for the outcome
To be paid JobSeeker Payment you need to participate in activities and appointments to help you find work. Your Job Plan of 13 January 2023 lists these activities.
You did not attend an appointment with your provider on 21 March 2024. Following this, you were advised on 26 March 2024 that you needed to reconnect with your provider, otherwise your JobSeeker Payment would be cancelled.
You did not reconnect with your provider by 19 April 2024 and your payment was correctly cancelled from 19 April 2024.
[6] Page 17 of the hearing papers.
Jobseeker payment is defined at subclause 1(1) of Schedule 1 to the Administration Act as a participation payment.
Paragraph 42AC(1)(c) of the Administration Act provides that a person commits a mutual obligation failure if they are receiving a participation payment and they fail to attend, or to be punctual for, an appointment that they are required to attend by:
(i) a notice under subsection 63(2); or
(ii) an employment pathway plan that is in force in relation to the person.
The hearing papers include a copy of a job plan for Mr Qeuin which is undated and not signed. However, a copy signed by Mr Qeuin on 13 January 2023 was provided to the Tribunal by Mr Qeuin and is numbered A22. Accordingly, the Tribunal finds that Mr Qeuin entered into this job plan on 13 January 2023. The job plan states:
Mutual Obligation Requirements
I agree to:
·     meet my points target (including any minimum job search requirement) as displayed on my homepage or as advised by my Provider. I will accurately report tasks and activities through my homepage or to my provider.
·     attend and act appropriately during any compulsory appointments.
·     take responsibility to accurately record or report my attendance at my requirements.
·     follow up on job opportunities and referrals I am referred to by my provider.
·     attend and act appropriately during a job interview/(s).
·     accept any offer of a suitable job and not voluntarily leave a suitable job.
The job plan also states that it is “an Employment Pathway Plan for the purpose of the Social Security Act 1991 and the Social Security (Administration) Act 1999”.
Mr Qeuin’s job plan does not contain a requirement for Mr Qeuin to attend [Provider] for an appointment on specified dates. It follows that Mr Qeuin will incur a mutual obligation failure pursuant to subparagraph 42AC(1)(c)(i) if he fails to attend an appointment he is required to attend by a notice issued under subsection 63(2) of the Act.
Paragraph 63(2)(c) of the Act provides that Centrelink may notify a person that they are required to attend a particular place for a particular purpose. Pursuant to subsection 63(5), Centrelink may notify the person by sending the notice by prepaid post addressed to the person or in any other way Centrelink considers appropriate.
The appointment history screen at page 56 of the hearing papers contains a record of the appointment on 21 March 2024 at 1:00pm with a note that Mr Qeuin did not attend and did not have a valid reason for non-attendance. The referral date is 8 March 2024. However, there is little evidence in the hearing papers that Mr Qeuin was advised of a requirement to attend an appointment on 21 March 2024.
A document titled non compliance event report for provider appointment failure to attend (demerit) is included in the hearing papers. This document tends to suggest that a notification in relation to the appointment set for 21 March 2024 was created on 8 March 2024 but does not confirm the manner in which the notification was given. In this regard, the record reads:
Notification: * [Not found]
The record suggests that a reminder about the appointment on 21 March 2024 may have been sent to Mr Qeuin on 20 March 2024, the day before the appointment, but is not clear in this regard.
Centrelink wrote to Mr Qeuin on 26 March 2024 stating that his jobseeker payment had been stopped from 20 March 2024 because he did not attend an appointment arranged with his employment services provider on 21 March 2024.[7] The letter told Mr Qeuin that he needed to call his employment services provider to discuss the reasons he did not attend his appointment and what he needed to do to have his payment restored. The letter said:
If you do not call your provider and meet the requirement they have given you, your payment may be cancelled.
[7] Page 83 of the hearing papers.
An internal record from Mr Qeuin’s Centrelink file dated 25 March 2024 reads:
JobSeeker Payment suspended from 20 MAR 2024 for not complying with a compulsory requirement arranged by an employment service provider. If the jobseeker has not already done so, they must contact [Provider, Town] on [Phone number]
Payment will auto restore when the provider advises the requirement has been met or a decision is made to cease compliance action.
This decision has been made under section 42AL of the SS(A)A.
At hearing, Mr Qeuin stated that he had called [Provider] at 10:30am on 21 March 2024. Variously, Mr Qeuin and [Ms A] suggested that Mr Qeuin was not required to attend the appointment because he had submitted a Mod F business details form to Centrelink that day, because he was working at the time of the appointment and/or that he had a right to call before an appointment to advise that he could not attend.[8]
[8] See pages 21 to 26 and 28 of the hearing papers.
Where a person commits a mutual obligation failure, paragraph 42AF(1)(a) of the Administration Act gives Centrelink a discretion to determine that their jobseeker payment is not payable in accordance with section 42AL.
Under section 42AL, a person’s jobseeker payment is generally not payable (i.e. suspended) from the start of the instalment period in which the mutual obligation failure occurred. Subsection 42AL(3) provides that the suspension of the person’s payment ends from when the person complies with a reconnection requirement imposed under subsection 42AM(1), or, at an earlier time at Centrelink’s discretion. Generally, back pay of the payment is payable to the person, subject to the social security law.[9]
[9] Subsection 42AL(4).
In relation to the discretion under paragraph 42AF(1)(a), section 42AI of the Administration Act and section 5 of the Determination set out matters that must be considered when determining if a person has a reasonable excuse for committing a mutual obligation failure. These include whether the person was undertaking paid work at the time of the failure, and the literacy and language skills of the person. Regarding the latter, an example is offered, stating:
If the person is unable to comprehend a requirement or an instruction, despite the requirement or instruction being delivered in a form that the person is most likely to comprehend.
The effect of section 42AJ is that, in relation to a mutual obligation failure where a person does not attend an appointment with an employment services provider, the person does not have a reasonable excuse unless they notified their employment services provider before their appointment, unless it was not reasonable to expect the person to do this, in the circumstances.
Having regard to Mr Qeuin’s evidence, the Tribunal is satisfied that he was notified of the requirement to attend the appointment with [Provider] on 21 March 2024. At hearing, Mr Qeuin told the Tribunal that he did not attend his appointment with [Provider] on 21 March 2024 because he wanted to continue his [activity].
The Mod F business details form that Mr Qeuin provided to Centrelink on 21 March 2024 indicated that his business was not operating, that he was no longer working in the business and that he did not intend to resume work in the business.[10] Though it is not directly relevant to Mr Qeuin’s activities on 21 March 2024, the Tribunal notes that Mr Qeuin would later provide to Centrelink on 3 June 2024 a profit and loss statement for the period 23 March 2024 to 3 June 2024, which indicated the gross business income for the period of the statement was $0.[11]
[10] Pages 25 and 26 of the hearing papers.
[11] Page 37 of the hearing papers.
Additional context can be drawn from notes recorded by the ARO of a discussion with [Ms A] on 30 August 2024 at page 78 of the hearing papers:
Nom said that cus was doing [activity] and no income and he could not attend appointments, I asked if his business is still active she said yes and he is not earning any income, cus was supposed to go overseas for [activity events] but since he is sick he is not able to go overseas for the purpose of his business. He is not making money currently.
Having regard to the available evidence, the Tribunal is not satisfied that Mr Qeuin was unable to attend his appointment with [Provider] on 21 March 2024 because he was undertaking paid work.
However, the Tribunal observed that Mr Qeuin struggled to participate in the hearing without the assistance of an interpreter. When asked why, if she was supporting Mr Qeuin with the conduct of his appeal, she had not requested an interpreter to assist him to participate in the hearing, [Ms A] explained that Mr Qeuin does not trust interpreters. [Ms A] told the Tribunal that Mr Qeuin understands only basic English words and Mr Qeuin was able to indicate that he shared this view. The Tribunal considers that this evidence from Mr Qeuin and [Ms A] was genuine. Further, it is consistent with evidence before the Tribunal that Mr Qeuin completed Certificate I in Spoken and Written English on 28 February 2024.[12] Mr Qeuin’s academic transcript from TAFE NSW shows that he was deemed competent to listen to and engage in short simple social conversations and spoken transactions.[13] This level of English language competency is consistent with the Tribunal’s observations of Mr Qeuin’s level of English language skill at hearing.
[12] See A22.
[13] See A23.
On this background, the Tribunal is satisfied that Mr Qeuin’s English language skills have had a substantial adverse impact on his ability to understand and comply with his mutual obligation requirements. The Tribunal finds that Mr Qeuin had a reasonable excuse for failing to attend his appointment on 21 March 2024 and will set aside the decision to suspend his jobseeker payment from 20 March 2024.
Further, section 42AM requires that if Centrelink determines that jobseeker payment is not payable to a person under section 42AF then Centrelink must notify the person of the reconnection requirement and the effect of not complying with the reconnection requirement. Paragraph 42AM(3)(b) requires that Centrelink cancel the person’s payment if they fail to comply with the reconnection requirement within 4 weeks after Centrelink gave notice of it.
On 19 April 2024, Centrelink wrote to Mr Qeuin and advised that his jobseeker payment had been cancelled:[14]
You were asked to attend a new appointment or meet your mutual obligation requirements to start getting your payment again.
As you did not do this and it has been more than 4 weeks since you were asked to. Your JobSeeker Payment has been cancelled from 19 April 2024.
[14] Page 85 of the hearing papers.
However, by 19 April 2024 it had not yet been 4 weeks since Mr Qeuin was notified of his reconnection requirement on 26 March 2024.
There was no basis to cancel his jobseeker payment for the reasons stated in Centrelink’s letter dated 19 April 2024. The Tribunal will set this decision aside.
Section 109 of the Administration Act sets out provisions for determining the date of effect of a favourable determination resulting from review. Relevantly, where a person is notified of a decision made in relation to a person's social security payment and within 13 weeks they request a review of that decision, then a favourable determination on review takes effect from the day on which the determination embodying the original decision took effect.[15]
[15] Subsection 109(1) of the Administration Act.
In Philp and SDEEWR [2009] AATA 857, the AAT said:[16]
As is now widely recognised in decisions of this Tribunal, a broad view ought to be taken of what constitutes an application for review, particularly in this jurisdiction.
[16] At [20].
Mr Qeuin was notified of the suspension of his jobseeker payment by letter dated 26 March 2024.[17] He was later notified of the cancellation of his payment by letter dated 19 April 2024.[18]
[17] Page 83 of the hearing papers.
[18] Page 85 of the hearing papers.
Mr Qeuin contacted Centrelink by phone on 3 June 2024 and sought a review.[19] This request for review was made within 13 weeks of the notices sent to Mr Qeuin advising of the suspension and cancellation of his jobseeker payment. Accordingly, the decision of the Tribunal takes effect from the dates of these original determinations.
[19] Page 74 of the hearing papers.

DECISION
The Tribunal sets aside:

The decision to suspend Mr Qeuin’s jobseeker payment from 20 March 2024; and
The decision to cancel Mr Qeuin’s jobseeker payment from 19 April 2024.

In substitution, the Tribunal decides that jobseeker payment remained payable to Mr Qeuin from 20 March 2024.

Date(s) of hearing:

Monday, 3 March 2025