Ristic and Secretary, Department of Social Services (Social services second review)
[2017] AATA 2
•11 January 2017
Ristic and Secretary, Department of Social Services (Social services second review) [2017] AATA 2 (11 January 2017)
Division:GENERAL DIVISION
File Number: 2015/5745
Re:Dusan Ristic
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Brigadier AG Warner, Member
Date:11 January 2017
Place:Perth
The applicant’s application for reinstatement of an application for review of a decision of the Social Services and Child Support Division of this Tribunal dated 8 October 2015 is refused.
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Brigadier AG Warner, Member
CATCHWORDS
PRACTICE AND PROCEDURE – reinstatement of application – whether original application dismissed in error – whether circumstances warrant exercise of discretion – Tribunal has no power to reinstate application – application for reinstatement of application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 - s 42A
CASES
Re White and Secretary, Department of Families, Community Services and Indigenous Affairs; (2007) 97 ALD 204; [2007] AATA 1712
Schramm and Repatriation Commission [1998] AATA 300
Re The Taxpayer and Commissioner of Taxation; (200) 68 ALD 143; [2002] AATA 523
Tismanaru and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1322
White and Repatriation Commission [2005] AATA 75REASONS FOR DECISION
Brigadier AG Warner, Member
11 January 2017
INTRODUCTION
Mr Ristic’s substantive application seeks review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) dated 8 October 2015. The decision at first review affirmed a decision of the Department of Social Services (the Department) of 29 May 2015 to cancel Mr Ristic’s Disability Support Pension (DSP).
Mr Ristic’s substantive application was withdrawn at his request and subsequently dismissed by the Tribunal. He now seeks reinstatement of the application.
Mr Ristic attended the interlocutory hearing on 23 November 2016. He was assisted by an interpreter.
BACKGROUND
Mr Ristic was born in 1954, and was in receipt of DSP from December 2004 until July 2015.
On 29 May 2015, the Department cancelled Mr Ristic’s DSP on the basis that he was no longer qualified as his spinal condition, mental health condition, hypothyroidism and diabetes did not attract the necessary 20 points under the relevant impairment tables and he did not have a continuing inability to work (Exhibit 6 att B).
An Authorised Review Officer (ARO) affirmed the original decision on 23 June 2015.
In affirming the original decision on 8 October 2015, AAT1 determined that Mr Ristic’s spinal condition attracted 5 points under Table 4, and that as his mental health condition was not fully diagnosed, treated and stabilised it could not be assigned an impairment rating. AAT1 also found Mr Ristic’s hypothyroidism and diabetes could not be assigned impairment ratings because of insufficient medical evidence and absence of functional impairment (Exhibit 6 att A).
On 2 November 2015, Mr Ristic applied to this Tribunal for review of the AAT1 decision (Exhibit 6 att D). However, on 23 November 2015, Mr Ristic advised the Tribunal that he wished to withdraw his application and gave no reason for his request. On that same date, the Tribunal issued a notice confirming that Mr Ristic’s application had been dismissed as provided for by s 42A(1B) of the Administrative Appeals Tribunal Act 1975 (the Act).
On 8 December 2015, Mr Ristic lodged an application for an extension of time to appeal the AAT1 decision of 8 October 2015 (Exhibit 6 att E). On 17 February 2016, Mr Ristic withdrew the extension of time application, and did not provide a reason for the withdrawal. The Tribunal, pursuant to s 42A(1B) of the Act, dismissed the application with effect the same date.
On 16 September 2016, Mr Ristic requested reinstatement of his substantive application on the basis that:
1) The application was withdrawn be (sic) me as I was not able to gather all necessary medical reports to support my case and argument.
2) To provide reports from all Dr’s (sic) and specialists requires substantial time.
3) My lack of understanding of the process contributed to the withdrawal and non-adherence of tribunal rules (Exhibit 3).
Mr Ristic expanded on these reasons for reinstatement of his application in a further letter dated 7 October 2016, in which he said:
Thank you for providing me with a copy of the Respondents response to my application where they have opposed the reinstatement of my application.
Within the respondent’s response, they mention that I have had options to pursue my appeal rights and that a substantive amount of time has elapsed. Furthermore, they mention that my prospects of success are limited. The reason why time has elapsed and why the application was withdrawn is because a substantial amount of time was needed to gather all of the necessary documentation to support my application.
So whilst an amount of time has elapsed, I did require documentation from specialists and to gain these there are substantial wait times as you no doubt are aware. So contrary to the Respondents assertions that the likelihood of success is limited, I believe that if I am able to provide all of the necessary specialists reports that the likelihood of success is strong.
Now that I have all of the necessary documentation, I am in a better position to support my application and I am able to proceed. To approve my application will not be detrimental to the Department of Social Services, however to reject my application would be detrimental to me as I would not have been afforded an opportunity to adequately present my situation.
I trust that the tribunal will in the very least approve my application and afford me the opportunity to substantiate my case. I look forward to hearing from the tribunal in relation to any future hearings and the next process in these proceedings (Exhibit 5).
The Secretary opposes the re-instatement of Mr Ristic’s application (Exhibit 4).
ISSUE
Mr Ristic has applied for an order to reinstate his original application for review of a decision to cancel his DSP. The issue before the Tribunal is whether the application was dismissed in error, and if so, whether the circumstances of the case warrant the exercise of the discretion to reinstate the application.
RELEVANT LEGISLATION
Section 42A of the Act deals with the manner of applying to the Tribunal for a reinstatement of an application:
Reinstatement of application
(8) If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8A) If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8B) For the purposes of subsections (8) and (8A), the period is:
(a) 28 days after the party receives notification that the application has been dismissed; or
(b) if the party requests an extension—such longer period as the Tribunal, in special circumstances, allows.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
EVIDENCE
The Tribunal had before it the following evidence:
·Notice of Withdrawal dated 25 November 2015 (Exhibit 1);
·Medical Report by Dr Aminath Laafira dated 19 July 2016 (Exhibit 2);
·Application for Reinstatement Letter from Mr Dusan Ristic dated 13 September 2016 (Exhibit 3);
·Secretary’s Notice of Opposition dated 30 September 2016 (Exhibit 4);
·Letter from Mr Dusan Ristic dated 7 October 2016 (Exhibit 5);
·Secretary’s Outline of Submissions dated 10 November 2016, including Attachments A-G (Exhibit 6);
·The oral evidence of Dr Lingam Sam; and
·The oral evidence of the applicant.
CONSIDERATION
Re-instatement
The respondent’s written outline of submissions considers, correctly in the Tribunal’s view, the power of the Tribunal to reinstate Mr Ristic’s application. The respondent concludes that: “subsection 42A(10) is relevant, however, the discretion to reinstate under this provision is confined to the Tribunal identifying an error in the dismissal of the applicant’s application” (Exhibit 6 paras 16-22). The Tribunal agrees.
The respondent provides the following examples of dismissals in error:
· Where the Tribunal dismissed an application in the belief that each party had consented to dismissal: Schramm and Repatriation Commission [1998] AATA 300 at [52];
· Where the Tribunal dismissed an application because the applicant failed to comply with directions to lodge further material, even though the applicant may have been able to proceed on the material already before the Tribunal: The Taxpayer and Commissioner of Taxation [2002] AATA 523 at [7]; and
· Where the Tribunal dismissed an application on the erroneous belief that service of a listing notice had been effected: Tismanaru and Minister for Immigration and Multicultural Affairs [2002] AATA 1322 at [48] (Exhibit 6 para 26).
Further guidance on the applicability of s 42A(10) to Mr Ristic’s circumstances in the present proceedings is found in a number of cases cited by the respondent (Exhibit 6 paras 23-25, 27). This guidance can be summarised as follows:
·“Dismissed in error” comprehends any error in the application of s 42A that led to the dismissal;
·For the discretion in sub-section 42A(10) to be invoked, there must be an error which bears some relation to the dismissal;
·The error must be related to the dismissal rather than broader or peripheral circumstances; and
·An unwise withdrawal of an application does not constitute dismissal in error.
Before the Tribunal, Mr Ristic submitted that the cancellation of his DSP was not fair and that he may not have been properly understood because of his English language limitations. He said that he felt desperate about his health conditions, was putting on weight, and needed to take more than 20 tablets every day. Mr Ristic told the Tribunal that he dreaded the thought of becoming paralysed and would prefer death.
In addition to a medical report dated 19 September 2015 (Exhibit 6 att C), Dr Lingam Sam gave evidence by telephone conference at the hearing. Dr Sam’s oral evidence confirmed and updated the written report. The tenor of Dr Sam’s evidence is as follows:
·Mr Ristic’s health had deteriorated during the last 18 months. He was taking more medication including three monthly pain-killing injections for his neck and back. He is intolerant to cold.
·Mr Ristic has been seen by psychiatrists Dr James Baker and Dr Stephen Proud. Dr Sam has recommended mental health counselling, but doubts that such counselling would facilitate a return to work because of Mr Ristic’s aggregate conditions. Dr Sam also recommended treatment for chronic pain.
·Mr Ristic had undergone surgery recently and further procedures were imminent.
·Mr Ristic is not presently fit for rehabilitation or any work.
However the oral evidence from both witnesses provided little information relevant to the issue of reinstatement. Rather, the focus was on Mr Ristic’s deteriorating medical condition and his qualification for the DSP.
There is no evidence before the Tribunal that Mr Ristic made other than conscious decisions to withdraw his application on 23 November 2015 and subsequently his extension of time application on 17 February 2016. The Tribunal is unable to identify an error in the Tribunal’s dismissal of these applications of the nature necessary to invoke the discretion provided in s 42A(10) of the Act.
The Tribunal concludes that in relation to Mr Ristic’s application for reinstatement of his substantive application for review, there is no power to reinstate the application pursuant to s 42A(10) of the Act. In so doing, the Tribunal notes the conclusion of Deputy President Forgie in the matter of Re White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712; (2007) 97 ALD 204:
My conclusion that there is no error within the meaning of s 42A(10) is an end of the matter. The Tribunal has no power to reinstate an application and so no discretion to do so unless there is such an error (at 43).
Justice of the circumstances
Had the Tribunal found an error in the dismissal of Mr Ristic’s application, which it did not, it would then be necessary to consider whether the circumstances of the application warrant the exercise of the discretion to reinstate the application. That consideration would be similar to that employed when the Tribunal considers an extension of time application.
In the present matter the factors to be considered include – length of delay, awareness of appeal rights and explanation for the delay, prospects for success, and alternative avenues of relief. Having regard to the evidence before the Tribunal relative to these factors, the Tribunal notes:
· The delay is substantial. Mr Ristic’s DSP was cancelled with effect 10 July 2015, the AAT1 decision was made on 8 October 2015, and there was a gap of seven months between the withdrawal of his application for an extension of time and his present application for reinstatement of his application;
· Mr Ristic’s original application for review of the AAT1 decision and his subsequent application for an extension of time demonstrate an awareness of his appeal rights.
· Mr Ristic’s medical conditions attracted only 5 impairment points. Although in his oral evidence Dr Sam detailed deterioration in Mr Ristic’s condition, increased functional impairment and lack of fitness for work, his opinion did not relate to the relevant DSP date of cancellation and would be most unlikely to disturb the original decision. It seems to the Tribunal that the prospects for success of the original application are very limited; and
· The respondent contends that if Mr Ristic’s conditions have deteriorated since cancellation of his DSP, the appropriate avenue of relief is a new DSP claim so that his circumstances can be assessed afresh. The Tribunal notes that Ms Barton explained this option in some detail during the hearing.
The Tribunal concludes that had it found an error in the dismissal of Mr Rustic’s application, which it did not, the circumstances do not warrant the exercise of the discretion to reinstate his application for review.
CONCLUSION
Having regard to the evidence before it and all of the circumstances of this matter, the Tribunal finds that there was no error within the meaning of s 42A(10) of the Act in the Tribunal’s dismissal of Mr Ristic’s application, and consequently the Tribunal has no power to reinstate the application and no discretion to do so.
DECISION
The Tribunal refuses to reinstate Mr Ristic’s application for review of a decision of the Social Services and Child Support Division of this Tribunal dated, 8 October 2015.
I certify that the preceding 28 (twenty eight) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member
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Administrative Assistant
Dated: 11 January 2017
Date of hearing: 23 November 2016 Applicant: In person Representative for the
Respondent:Ms A Barton
Department of Human Services
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