SAM SUKUMARAN and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 928

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 928

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1873

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAM SUKUMARAN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S E Frost, Senior Member

Date2 December 2009  

PlaceSydney

Decision The application for reinstatement is refused.

....................[sgd]..........................

S E Frost
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE - Application for review dismissed pursuant to section 42A(2)– request made by Applicant for application to be reinstated – significant delay between dismissal and reinstatement request – original claim had no prospect of success – application for reinstatement refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975: s 42A(2),(8), (9), (10)
Social Security Act 1991: s 1035

REASONS FOR DECISION

2 December 2009 Mr S E Frost, Senior Member       

1.      On 2 May 2008 the applicant filed an application for review of a decision of the Social Security Appeals Tribunal (SSAT).  The SSAT had affirmed a Centrelink decision to reject the applicant’s claim for mobility allowance. 

2.      The matter was listed for hearing in this Tribunal on 30 September 2008.  The applicant attended by telephone and the respondent Secretary was represented by Ms Lee, who attended in person.  It very quickly became apparent that the hearing could not be conducted efficiently unless the applicant attended in person.  The hearing was adjourned, and it was indicated to the applicant that the hearing would be resumed, with the applicant attending in person, at a venue close to his home.

3.      In due course the hearing was listed to resume at the Auburn RSL Club on 2 February 2009.  In accordance with standard procedure, a listing notice was sent to the applicant to inform him of the date and venue of the resumed hearing.

4.      The resumed hearing set down for 2 February 2009 was scheduled to commence at 10 a.m.  By 10:30 a.m. the applicant had still not arrived at the RSL Club.  An attempt was made to contact the applicant by telephone but the call went unanswered.

5. Ms Lee asked me to dismiss the application. Having regard to the fact that the applicant had been given appropriate notice of the time and place of the resumed hearing, and that the applicant had failed to appear at the hearing, either in person or by a representative, I dismissed the application under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

The reinstatement application

6.      The applicant wrote a letter dated 5 August 2009 (that is, six months after the dismissal), addressed to an officer of the Tribunal registry.  The letter has been taken as a written application to have the matter reinstated.

7.      The Secretary opposes reinstatement.

Consideration of the reinstatement application

8. Three subsections of section 42A of the AAT Act are relevant to the application for reinstatement. They are subsections (8), (9) and (10), which provide as follows:

Reinstatement of application

(8)If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.

(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.

9. There are two ways in which an application can be reinstated. The first way applies only to the case where the application was dismissed under s 42A(2). It can be triggered if the applicant applies for reinstatement within 28 days after receiving notification of the dismissal. The second way applies irrespective of the provision under which the matter was dismissed. It can be triggered if it appears to the Tribunal that the application was dismissed in error.

10. The use of the word “may” in both s 42A(9) and s 42A(10) indicates that reinstatement under either provision depends on the exercise of a discretion on the part of the Tribunal. Subsection (9) provides that the exercise of the discretion is dependent on the further requirement that the Tribunal “considers it appropriate” to reinstate the application. Subsection (10) does not specifically contain that further requirement, but it must be assumed that it is an implied requirement. The Tribunal would hardly be expected to reinstate an application, even one dismissed in error, unless it considered reinstatement to be an appropriate course in the circumstances.

11.     I do not consider it appropriate to reinstate Mr Sukumaran’s application.  I have reached that conclusion because Mr Sukumaran’s application is bound to fail.  In fact, the futility of his case was one of the factors that I took into account when I exercised my discretion to dismiss his application on 2 February 2009. 

12. The decision under review relates to a claim that he made in October 2007 for mobility allowance. The rules for qualification for mobility allowance are set out in s 1035 of the Social Security Act 1991 (the SS Act). That is a long and complex provision, but, in summary, it has five broad criteria:

(i)    The person must satisfy the “travel test” (see [13] below); and

(ii)  The person must be a handicapped person; and

(iii) The person must be an Australian resident; and

(iv) The Secretary must be of the opinion that the person is unable, as a result of the person’s physical or mental disability, to use public transport without substantial assistance; and

(v)  The person must be either:

(a)engaged, in the Secretary’s opinion, in a specified level of gainful employment; or

(b)undertaking, in the Secretary’s opinion, a specified level of vocational training; or

(c)receiving newstart allowance, youth allowance or austudy payment, and required to satisfy the activity test; or

(d)undertaking, in the Secretary’s opinion, job search activities under an agreement between the Secretary and a nominated service provider, or under the Competitive Employment Placement and Training Program; or

(e)engaged, in the Secretary’s opinion, in a specified level of voluntary work, approved by the Secretary, for charitable, welfare or community organisations; or

(f)undertaking, in the Secretary’s opinion, a specified combination of gainful employment, vocational training and/or voluntary work.

13.     A person satisfies the “travel test” if the person is required to travel to and from the person’s home for the purpose of undertaking gainful employment, vocational training, job search activities or voluntary work.

14.     If there were any indication that Mr Sukumaran, at or around the time that he made his claim, was undertaking one of the activities set out in [12](v)(a) to (f) above, then there may be some utility in reinstating his application.  However, he has not been able to provide any such evidence.  In fact, Ms Lee has undertaken a thorough search of Centrelink’s records in relation to Mr Sukumaran, and she has satisfied herself that none of those criteria were satisfied at the relevant time. 

15.     On 19 November 2009, I conducted a hearing, at the facility where Mr Sukumaran currently resides, to help me determine whether his application should be reinstated.  At that hearing I asked Mr Sukumaran about his circumstances in October 2007. 

16.     He said that he was not employed at the time, having retired from the workforce in 1995.  That means that he cannot satisfy the test in [12](v)(a).

17.     He does not claim that he was undertaking vocational training, and so he cannot satisfy the test in [12](v)(b).

18.     He was not receiving newstart allowance, youth allowance or austudy payment.  That means that he cannot satisfy the test in [12](v)(c).

19.     Centrelink’s records indicate that he has not been registered with a job network provider since at least 2004, and tehrefore there has been no activity agreement in place.  That means that he cannot satisfy the test in [12](v)(d).

20.     He was not undertaking any qualifying voluntary work and so he cannot satisfy the test in [12](v)(e).

21.     Since he cannot satisfy any of the tests in [12](v)(a) to (e), it follows that he cannot satisfy the test in [12](v)(f).

22.     My recent reconsideration of Mr Sukumaran’s circumstances as they were in October 2007 has confirmed that his claim for mobility allowance has no prospects of success. 

23.     For completeness, I should also note the timing of Mr Sukumaran’s reinstatement application.  The application was originally dismissed on 2 February 2009.  Notice of the dismissal was sent to him on that day, although Mr Sukumaran claims not to have received that notice until 17 June 2009.  The address to which the notice of dismissal was sent is the only address held for Mr Sukumaran in the Tribunal’s records.  It is also the address which had been his contact address for Centrelink purposes since 2001, although it has been changed more recently (but several months after the dismissal notice was sent).  However, even if his claim of late receipt of notice is accepted, he did not apply for reinstatement until 6 August 2009, a further 50 days after he claims to have received the notice. 

24. It seems to me that Mr Sukumaran’s application for reinstatement cannot be a valid application under s 42A(8) of the AAT Act because it was not made “within 28 days after receiving notification that the application [had] been dismissed”. The extension of time provision, s 29(7) of the Act, has no application to a case such as this since that provision is concerned with extending the time within which a person may make “an application to the Tribunal for a review of a decision”. In the context in which that provision appears, and notwithstanding the broad scope of the word “decision” (s 3(3) of the AAT Act), it is clear that s 29(7) has no relevance to an application for reinstatement under s 42A of the Act.

25. Mr Sukumaran’s application for reinstatement must therefore be considered under s 42A(10), rather than s 42A(8). That provision has, as a threshold requirement, that “it appears to the Tribunal that the application has been dismissed in error”. It does not appear to me that the application was dismissed in error, but even if I am wrong with that, I do not consider it appropriate to reinstate the application for the reasons I have already stated.

26.     The application for reinstatement is refused.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Senior Member

Signed:         .................[sgd]..............................................................
  Associate

Date of reinstatement hearing           19 November 2009
Date of Decision   2 December 2009
Applicant self-represented   
Representative of the Respondent  Ms Phyllis Lee, Centrelink Legal Services