RHKL and Secretary, Department of Social Services (Social security second review)
[2025] ARTA 1053
•21 July 2025
RHKL and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1053 (21 July 2025)
Applicant/s: RHKL
Respondent: Secretary, Department of Social Services
Tribunal Number: 2023/4234
Tribunal:Senior Member T Simon
Place:Sydney
Date:21 July 2025
Decision:The Tribunal refuses to reinstate the application.
Pursuant to section 70 of the Administrative Review Tribunal Act 2024 (Cth), the disclosure of the applicant’s name, the other party’s name and other identifying details are prohibited for the purposes of publication.
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999 (Cth).
Note: The Tribunal is prohibited in certain types of matters from disclosing certain identifiers when publishing reasons for decision. The above order has been made to comply with that requirement.
21 July 2025
Catchwords
PRACTICE AND PROCEDURE – Social Services – reinstatement application – dismissal for non-appearance – whether there was a reasonable explanation for the non-appearance – whether the substantive application for review has merits – whether the reinstatement would prejudice the Respondent – reinstatement application refused
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)Social Security (Administration) Act 1999 (Cth)
Cases
JTBJ and Secretary, Department of Social Services [2025] ARTA 464
White and Secretary, Department of Families, Community Services and Indigenous AffairsStatement of Reasons
On 14 July 2022 Services Australia – Centrelink (Centrelink) decided to reject the applicant’s claim for disability support pension. The applicant made an application for first review of the decision. On 2 March 2022 the Tribunal affirmed Centrelink’s decision. On 14 June 2023, the applicant made this application for second review of the decision. On 20 December 2024, the second review application was dismissed because the applicant did not appear at a hearing. The applicant sought reinstatement of the application on 8 January 2025. This decision and reasons deal with the reinstatement application.
The hearing was held on 16 July 2025. The applicant attended the Tribunal hearing by telephone and gave oral evidence. The respondent also appeared, through a representative, by telephone.
The Tribunal had before it the reinstatement application from the applicant. The respondent had provided:
-A bundle of documents totalling 301 pages provided on 14 July 2023 (T-Documents).
-Further documents provided on 20 November 2024 enclosing a medical certificate (supplementary documents)
-Written submissions in relation to the reinstatement application together with attachments dated 1 July 2025.
The Tribunal also had before it the directions made by the Tribunal in the substantive proceedings.
Having considered the material provided and the oral evidence and submissions of the parties, the Tribunal has decided to refuse to reinstate the application.
General principles in relation to reinstatement applications
The substantive application was dismissed pursuant to s 99 of the Administrative Review Tribunal Act 2024 (Cth) because the applicant did not appear at the directions hearing and the Tribunal was satisfied that the applicant received appropriate notice of the date, time and place of the directions hearing.
Section 102(7)(b) of the Administrative Review Tribunal Act 2024 (Cth) that a party may apply for reinstatement of an application in circumstances where a matter was dismissed under s 99 for non-appearance by the applicant. A party has 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows) to apply for the reinstatement application.
The applicant did not make the application for reinstatement within 28 days of the matter being dismissed.
Subsection 102(9) of the Administrative Review Tribunal Act 2024 (Cth)provides:
(9) If a party applies under subsection (7) and the Tribunal considers it appropriate to reinstate the application, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
In that regard ss 102(9) provides a discretion as to whether to reinstate an application. The subsection does not give any guidance as to the way in which the Tribunal should exercise its discretion or the factors which the Tribunal may consider.
The objectives of the Tribunal are set out in s 9 of the Administrative Review Tribunal Act 2024 (Cth)as follows:
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; and
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c) is accessible and responsive to the diverse needs of parties to proceedings; and
(d) improves the transparency and quality of government decision - making; and
(e) promotes public trust and confidence in the Tribunal.
In White and Secretary, Department of Families, Community Services and Indigenous Affairs,[1] the Administrative Appeals Tribunal considered a similar reinstatement provision that was contained in s 42A of the Administrative Appeals Tribunal Act 1975 and the principles that may apply.
[1] [2007] AATA 1712; (2007) 97 ALD 204; (2007) 46 AAR 208.
After considering the principles set out in White and other cases of the Administrative Appeals Tribunal, President Kyrou in JTBJ and Secretary, Department of Social Services,[2] stated at [76]:
It is not in contention that the power to reinstate in s 102(6) of the ART Act is discretionary. In the context of s 42A(10) of the AAT Act, a number of cases have explained some of the discretionary considerations that may be relevant to the exercise of that discretion. One of the considerations is a balancing of any prejudice to the applicant if a reinstatement order is not granted against any prejudice to the respondent if such an order is granted. Another consideration is the merits of the application for review, in the sense that a reinstatement order should not be granted if, based on a high-level (rather than detailed) assessment, it appears that a reinstatement order would be inutile because the application for review is bound to fail.
[2] [2025] ARTA 464.
JTBJ considered the reinstatement of an application pursuant to s 102(6) of the Administrative Review Tribunal Act 2024 (Cth), in circumstances where it was submitted that the application had been dismissed in error rather than dismissed for non-appearance by the applicant. However, the factors set out in JTBJ remain relevant.
Having considered the objectives set out is s 9 and the general principles set out in White and JTBJ, the Tribunal considers the following factors to be relevant (although not exhaustive) when considering whether to reinstate an application that has been dismissed for non-appearance:
(i)The reason for the applicant’s non-appearance at the time the hearing was dismissed.
(ii)The prejudice that would be caused to the respondent if the application was reinstated.
(iii)The general merits of the substantive review.
CONSIDERATION
The reason for the applicant’s non-appearance
On 12 December 2024, the Tribunal listed the matter for a hearing by telephone on 20 December 2024 at 2pm. The notice stated it was ‘serviced by email and express post’.
On 20 December 2024, the Tribunal dismissed the review application under section 99 of the Administrative Review Act as the applicant did not appear at the hearing. The Tribunal relevantly stated the following in the reasons for dismissal:
1. The Tribunal had before it a copy of the directions hearing notice addressed to [the applicant] and noting that it was sent by express email to his residential address at [address] QLD 4620. The notice is dated 12 December 2024. Ms Henderson who appeared for the respondent confirmed that was the address they had for the applicant on record. The notice includes the date, time and place of the directions hearing and that the directions hearing will be by telephone. On the basis of that notice, the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the directions hearing.
2. Further the notice informed the applicant:
‘What happens if you do not attend?
If you cannot attend at the time listed above, you should advise us as soon as possible.
If an applicant or an applicant’s representative fails to attend, the Tribunal may dismiss the application under section 99 of the Administrative Review Tribunal Act
3. There is no record that the applicant contacted the Registry to inform the Tribunal that he could not attend the directions hearing. At the hearing, the Registry attempted to contact the applicant on his phone 3 times and each time it went to voicemail.
4. This matter had had a long procedural history. In the most recent directions made by the Tribunal on 23 July 2024, the applicant was required to provide a report prepared by Dr Cuneen on or before 11 November 2024. The Tribunal did not receive any report and the respondent confirmed they also had not received the report. The respondent also informed the Tribunal that the applicant had not attended an appointment with Dr Cuneen because he was unwell. The applicant had previously been assisted by Legal Aid. On 19 November 2024 Legal aid lodged a notice with the Tribunal that they had ceased to act for the applicant. The respondent has had no recent communications with the applicant.
5. On the basis that the applicant was provided with notice of the directions hearing and he has not made an application to adjourn the matter and has failed to comply with directions of the Tribunal made on 23 July 2024, the Tribunal has decided to dismiss the matter pursuant to s 99 of the Administrative Review Tribunal Act 2024.
On 8 January 2025, the applicant used his neighbour’s email address and internet connection to make a reinstatement application and relevantly stated the following:
… Unfortunately, I was unaware of my scheduled phone appointment with you and, as a result, was unable to attend. I live in an area with very poor phone reception, which made it impossible for me to receive the call. Additionally, I do not have mail delivered directly to my home and instead collect it from the post office, which may have contributed to my unawareness of the appointment.
To complicate matters further, I am currently bedridden due to a fractured back, which has made it extremely challenging to manage communication and appointments effectively.
I kindly request that my application be reinstated and considered, given the circumstances.
Please do not hesitate to contact me via phone or email to discuss this matter further or
provide details of the next steps I need to take.
Thank you for your understanding and assistance.
I am sending this from my neighbours email address at … and you are welcome to cc him in the email on as well as I cant get into emails and computer illiterate Having considered that material and the applicant’s evidence, the Tribunal is satisfied that the applicant was unaware of the hearing on 20 December 2024. The Tribunal did send the notice of the hearing to the applicant. However, the Tribunal is satisfied that the applicant was unaware of the hearing because of the remote region in which the applicant lives and the difficulties he has accessing his mail. The applicant has no access to the internet and his phone reception is limited. On that basis that Tribunal accepts that he has a reasonable explanation as to why he did not attend the hearing on 20 December 2024.
The prejudice that would be caused to the respondent if the application was reinstated.
Any reinstated application would require a respondent to participate in the reinstated proceedings. The respondent has not identified any further reason as to why it would be prejudiced if the matter was reinstated. On that basis the Tribunal finds that the respondent would suffer little prejudice if the proceedings were reinstated.
The general merits of the substantive review
In JTBJ the Tribunal explained that the assessment of the merits of the case should be based on a high-level assessment, and it would appear ‘that a reinstatement order would be inutile because the application for review is bound to fail’.
The applicant submitted the claim for disability support pension on 2 March 2022 in relation to his major depressive disorder.[3] On 28 June 2022, the applicant participated in a job capacity assessment that was conducted by a registered psychologist who was assisted by a registered occupational therapist[4]. In relation to the applicant’s condition the assessors found that no impairment ratings could be assigned in relation to the applicant’s alcohol dependence and psychological disorder or chronic obstructive airways disease, right shoulder disorder, and neck and knee osteoarthritis. That was because none of the conditions were fully diagnosed, treated and stabilised. The job capacity assessor considered that the applicant had a baseline work capacity of between 8 and 15 hours per week, and a capacity for work of between 15 and 22 hours per week within two years, following relevant intervention for his disabilities.
[3] T documents pp 166-172.
[4] T documents pp 186 -196.
On 14 July 2022, Centrelink decided to reject the applicant’s claim for disability support pension on the basis he did not qualify.[5]
[5] T documents pp 197 -198.
On 16 January 2023, the applicant requested a first review of the decision in the Tribunal and on 1 May 2023 the Tribunal affirmed Centrelink’s decision.[6]
[6] T documents pp 5 -15.
The applicant subsequently lodged an application for second review of the decision on 14 June 2023.[7]
[7] T documents pp 1 – 4.
On 23 July 2024, the parties were directed provide the following:
On or before 11 November 2024, the Applicant must give to the Tribunal and the other party a copy of the report prepared by Dr Cuneen, Occupational Physician, together with a copy of the briefing letter.
On or before 5 December 2024, the Respondent advise the Tribunal whether the parties have reached agreement and if not, provide agreed draft directions for further progress.
The respondent has included, as an attachment to their submissions, an email dated 19 November 2024. That email was sent from a legal representative for Legal Aid Queensland who had been acting for the applicant. The legal representative informed both the respondent and the Tribunal that:
Unfortunately [the applicant] was and remains too infirm and unwell to attend the appointment and, it is required by the physician that the appointment be in person.
We advise that we no longer hold instructions to act for the Applicant. We thank the
Tribunal for its ongoing patience in the circumstances.
We have advised the Secretary’s representative of the matters in this email.
At the hearing the applicant stated that he could not attend the appointment for the occupational physician due to having injured his back. When asked if he would be attending a future assessment, he stated that he was uncertain if he would be as he had difficulty travelling with his back.
The applicant detailed further conditions he now has including an injured back and throat cancer. Any conditions which came into existence after the qualification period (13 week after the claim for disability support pension was made)[8] would not be relevant to the review.
[8] Schedule 2, Part 2, subclause 4(1) of the Social Security (Administration) Act 1999
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[9] the Tribunal stated (at [34]):
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
[9] [2012] AATA 922.
Medical information that comes into being after the qualification period will only be relevant to the extent that they refer to the applicant’s conditions during the qualification period.
It has been over three years since the applicant made the application for disability support pension. The Tribunal has reviewed the evidence that was presented on first review and the supplementary material that has been provided by the respondent. The Tribunal has also read the decision of the Tribunal at first review in which the Tribunal found that the various medical conditions, attracted no points when assessed against the impairment tables. The Tribunal informed the applicant in the decision on first review that:
[the applicant] may consider testing his eligibility for disability support pension
again, with further up-to-date evidence from a psychiatrist or psychologist
involved in the management of his psychological disturbance, as well as from
relevant specialists involved in the management of his shoulder, neck and hand
pain, and his left knee pain and instability, (for instance an orthopaedic surgeon
and/or a rheumatologist), and his difficulty breathing, (for instance a respiratory
specialist).
The applicant has not provided further medical evidence which would indicate that that he would have been eligible for the disability support pension at the time he made his claim. Moreover, he indicated at the hearing that he was not sure that he would be able to get such evidence.
At the hearing, the applicant also expressed disappointment and frustration that his disability support pension claim had not been accepted. He stated that he had worked all his life, and he could no longer work. Those are not matters which would be relevant to determining whether the applicant qualified for the disability support pension at the time he made the claim.
The applicant could not demonstrate any other reason which would result in a decision that he was eligible for disability support pension in when he made the claim on 2 March 2022.
The Tribunal is satisfied on a high-level assessment that the reinstatement of the application would be inutile because the application for review is bound to fail.
Conclusion
Weighing up the relevant factors, the Tribunal does not grant the application to reinstate the second review application.
The Tribunal accepts that the applicant was unaware of the hearing on 20 December 2024 and that there would be no significant prejudice to the respondent if the matter were to proceed. However, the Tribunal finds that on a high-level assessment the substantive review proceedings have little merit. The applicant has already had an internal review of the decision and first review of the decision, both of which have been unsuccessful. The second review application is bound to fail.
On that basis, the application for reinstatement of the application is refused.
DECISION
The Tribunal refuses to reinstate the application
Date(s) of hearing: 16 July 2025 Applicant: By telephone Solicitors for the Respondent: M Kopic, Services Australia
1
3
0