Salvatorre Perla and Secretary, Department of Social Services
[2014] AATA 724
•24 September 2014
[2014] AATA 724
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/6543
Re
Salvatorre Perla
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 24 September 2014 Date of written reasons 3 October 2014 Place Brisbane The application is dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis it is frivolous.
........................................................................
Senior Member Bernard J McCabe
CATCHWORDS
APPLICATION FOR DISMISSAL – Application frivolous or vexatious – Applicant’s entitlement to Austudy paid at the higher rate – Failure to meet statutory criteria – No jurisdiction to decide claims of misleading or deceptive conduct – Natural justice – Role of the Tribunal conducting merits review – Application dismissed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 42B(1)(a); 43(1)
Social Security Act 1991 (Cth) ss 1067K; 1067L
Administrative Decisions (Judicial Review) Act 1977 (Cth)
REASONS FOR DECISION
Senior Member Bernard J McCabe
3 October 2014
The Secretary of the Department of Social Services has asked the Tribunal to exercise its power under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to dismiss Mr Salvatorre Perla’s application for review. The application for review relates to a decision by the Secretary to calculate Mr Perla’s Austudy entitlement on the basis he was not a long term income support student. The Secretary says Mr Perla’s application cannot possibly succeed, so it should be dismissed on the basis it is frivolous within the meaning of s 42B(1)(a).
The expression “frivolous or vexatious” is often misunderstood. For present purposes, it merely means the application is futile. Section 42B provides a mechanism by which the Tribunal can prevent applicants (and respondents and the Tribunal itself, for that matter) from wasting their time and resources on an application that cannot possibly succeed.
That said, I shall briefly outline the facts before I explain how the law compels the conclusion I have reached.
Mr Perla is studying law at university. He commenced his course of study on
9 July 2012. He was previously in receipt of Newstart allowance. He began receiving Newstart on 13 March 2012 and received those payments up until 9 July 2012 when he commenced full time studies and his payment was changed to Austudy. (Mr Perla had received Newstart payments in the past, but those payments were cancelled on 31 March 2011.) I understand there is no dispute about these dates.
At the dismissal hearing, Mr Perla claimed he spoke with a Centrelink officer who told him he would be eligible to be paid at a higher rate when he went on to Austudy because he was a long term income support student. Mr Perla said he relied on that information to arrange his studies and other commitments. But he was not paid at the higher rate. Centrelink decided he was not eligible to receive the higher rate of payments because he did not meet the statutory criteria. Mr Perla says he has incurred loss and damage as a consequence.
I am not in a position to make any findings about whether Mr Perla was misled about his entitlements, or whether he has incurred loss or damage as a consequence of being misled – but nor do I need to do so in order to deal with the application before me.
The Secretary says Mr Perla cannot possibly succeed in his application for review because the Tribunal is bound to apply the same criteria for eligibility that the Secretary applied. The relevant criterion for present purposes is found in ss 1067K and 1067L of the Social Security Act 1991 (Cth).
Section 1067L says a person can be paid Austudy at a higher rate where he or she is considered a long term income support student. That expression is defined in s 1067K as follows (I have edited the section to its essence for convenience):
(1) A person is a long term income support student if the person:
(b) does not have a dependent child; and
(c) is…:
(i) undertaking study (whether as a full-time student or as a concessional study-load student) in respect of a course of education that the person has commenced after turning 21; or
(d) has, for at least 26 weeks in the period of 39 weeks that ended when the person commenced to undertake the study…, been receiving one or more of the following:
(i) newstart allowance….
Mr Perla does not satisfy the criterion. There is no ambiguity or uncertainty on the point: in the 39 weeks that preceded the date on which he commenced study, he had been in receipt of Newstart for just under 17 weeks. That is not long enough. There is no discretion to waive the requirement. He is not entitled to receive the higher rate of payments, and the Secretary is not authorised to pay him even if the Secretary were to accept Mr Perla had been given bad advice.
That was all explained to Mr Perla in the Secretary’s written and oral submissions, but he was not satisfied. He insisted he was the victim of misleading or deceptive conduct and a breach of the rules of natural justice when the Centrelink officer told him he was entitled to be paid at the higher rate. He referred to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and insisted I would be in error if I failed to take into account what he had been told. He claimed he was told lies, and that the Centrelink officer who spoke to him was biased – and that the Secretary’s decision was therefore void.
I have already said I am not in a position to form a view as to whether Mr Perla was misled as he claims. But that does not matter. His submissions misunderstand the effect of merits review.
The fact an original decision is tainted by error does not prevent it from being a reviewable decision. If the Tribunal conducts its review correctly, the decision the Tribunal reaches – which will become the operative decision – is valid. Any error that tainted the original decision is effectively cured through the Tribunal’s processes.
But that is actually beside the point because Mr Perla has misunderstood the role of the Tribunal on review.
The AAT Act does not give me jurisdiction to adjudicate claims for misleading or deceptive conduct. I do not have the power to impose sanctions on the Secretary or order damages or provide other remedies. The Tribunal’s role is to reach the correct or preferable decision on the material before it. In making that decision, the Tribunal ordinarily exercises the same powers and discretions – and is bound by the same limits – as the original decision-maker. The review process usually concludes with the exercise of the powers in s 43. Section 43(1) entitles the Tribunal to affirm, vary or set aside the decision under review. If the application for review cannot be resolved through an exercise of the powers in that section, or if the application for review will certainly be resolved by exercising the power to affirm the decision, the process may be terminated using the power in s 42B.
Mr Perla’s application cannot possibly succeed. It is without merit and futile. There is no point in allowing it to proceed and waste valuable public resources. The application is dismissed pursuant to s 42B(1) of the AAT Act on the basis it is frivolous within the meaning of that section.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 3 October 2014
Dates of hearing 24 September 2014 Applicant By telephone Advocate for Respondent Ashley Burgess
Department of Human Services
2
0
0