Sesalim and Secretary, Department of Social Services (Social services second review)

[2018] AATA 384

Sesalim and Secretary, Department of Social Services (Social services second review) [2018] AATA 384 (2 March 2018)

Division:General Division

File Number:          2018/0843

Re:DEAN SESALIM

APPLICANT

AndSECRETARY, DEPARTMENT OF SOCIAL SERVICES

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date:2 March 2018  

Place:Melbourne

Although the Tribunal does not have any obligation to give reasons for decisions made in the course of its case management, reasons are given for declining the applicant’s request for an expedited hearing.

[sgd]
S A FORGIE
Deputy President

PRACTICE AND PROCEDURE – administrative case management decision – request for reasons – explanation given but no obligation to give reasons for a decision made on a procedural step in the proceedings that does not resolve an issue.

Administrative Appeals Tribunal Act 1975 ss 25, 33, 35, 36D, 37, 42A, 42B, 43

Administrative Decisions (Judicial Review) Act 1977 ss 3, 5, 6, 7, 13

Social Security Act 1991 s 94-1
Social Security (Administration) Act 1999 s 179(1)

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 64 ALJR 462; 94 ALR 11

Lamb v Moss [1983] FCA 254; (1983) 76 FLR 296; 49 ALR 533; 5 ALD 446

REASONS FOR DECISION

Deputy President S A Forgie

1. A delegate of the Secretary of the Department of Social Services (Secretary) cancelled Mr Dean Sesalim’s entitlement to be paid Disability Support Pension (DSP) on the basis that he was not qualified to receive it.  The delegate also decided that, even if he were qualified for DSP, Mr Sesalim was not entitled to unlimited portability while overseas.  On 6 February 2018, the Secretary’s decision was reviewed in the Social Services and Child Support Division of this Tribunal (AAT first review).  The Tribunal decided that Mr Sesalim was qualified for DSP but that he was not entitled to indefinite or unlimited portability.  He received the decision on 16 February 2018.  On 19 February 2018, Mr Sesalim lodged an application for review and asked for an expedited review of the AAT first review decision because of:

   “… financial difficulty and the need to remain overseas pass my current allowable portability limit to receive care and treatment because of my medical conditions.

   I was granted expedited review of the first review but I received the decision 6 weeks after the hearing.

   …”[1]

   [1] Email dated 19 February 2018

1. On 23 February 2018, Mr Sesalim was notified of my decision not to expedite his application at the level of the AAT second review.  After being notified of my decision, he advised the Tribunal’s Registry that would not participate in any conference (alternative dispute resolution process) with the Secretary or her representatives.  He has now asked for reasons for my decision.  Although I do not have any obligation to give written reasons for my decision, I have prepared them and set them out below.  I also give reasons for my conclusion that I am not obliged to do so.

   NO ENTITLEMENT TO REASONS

1. Mr Sesalim has an entitlement to be given, and the Tribunal an obligation to give, reasons if there is a statutory provision to that effect.  The only possible sources of those provisions is the Administrative Appeals Tribunal Act 1975 (AAT Act) or the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).

Administrative Appeals Tribunal Act 1975

1. The Tribunal has jurisdiction to review a decision only if an enactment, including a regulation, provides that an application may be made to the Tribunal for its review. That is the effect of ss 25(1), (2) and (3) of the Administrative Appeals Tribunal Act 1975 (AAT Act). 

1. In the case of Mr Sesalim’s matter, s 179(1) of the Social Security (Administration) Act 1999 (SSA Act) provides that an application may be made to the Tribunal for AAT second review of a decision made by the Tribunal following AAT first review. For the purposes of s 179(1), the decision made on AAT first review is taken to be the decision that was made by the Tribunal on AAT first review.[2] The effect of that decision was to set aside the Secretary’s decision cancelling Mr Sesalim’s DSP and to remit the matter to the Secretary with a direction that Mr Sesalim satisfies the qualifications set out in s 94(1) of the Social Security Act 1991 (SS Act) but that he is not eligible to be paid DSP on an unlimited basis whilst overseas.

   [2] Social Security (Administration) Act 1999; s 179(2)(d)

1. Once the Tribunal has undertaken AAT second review, it is required to make a decision in writing. Its decision must be a decision either affirming or varying the decision under review or setting aside that decision and either substituting a decision or remitting the matter for reconsideration in accordance with any directions or recommendations it made. Once it has made its decision, the Tribunal must give a copy of its decision to each party in the proceeding: s 43(3).

1. The Tribunal’s decision and its reasons for decision are two separate things just as a court’s judgement and reasons for judgment are two separate things. In the case of the Tribunal, s 43(2) of the AAT Act provides:

   “Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.”[3]

The choice whether to give reasons orally or in writing is that of the Tribunal.  If it chooses to give oral reasons, a party to the proceeding may ask for a statement in writing of the reasons but must do so within 28 days after the day on which a copy of the decision is given to that party.[4]  The Tribunal has 28 days after receiving the request within which to give a statement in writing of its reasons.[5]  That statement must include its findings on material questions of fact and refer to the evidence or other material on which the findings were based.[6]

[3] The content of those reasons must include the Tribunal’s findings on material questions of fact and a reference to the evidence or other material on which those findings were based: AAT Act; s 43(2B).

[4] AAT Act; s 43(2A)

[5] AAT Act; s 43(2A)

[6] AAT Act; s 43(2B)

1. My decision was an administrative decision relating to Mr Sesalim’s request for an expedited hearing and so to the Tribunal’s management of its cases. I was not reviewing the Secretary’s decision. Therefore, I am under no obligation to give reasons under s 43(2) of the AAT Act.

Administrative Decisions (Judicial Review) Act 1977

1. Section 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) provides:

   “Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Circuit Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.” 

1. Applications may be made under ss 5, 6 or 7 of the ADJR Act. Taking s 5(1) as an example, “A person who is aggrieved by a decision to which this Act applies … may apply to the Federal Court … for an order in respect of the decision …” on one or more of the grounds that are then specified.  A “decision to which this Act applies” is defined in s 3(1) to mean “… a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not …) …” under an enactment as defined in s 3(1) but excluding decisions made by the Governor-General or a decision included in any of the classes of decision set out in Schedule 1 to the ADJR Act.

2. Section 5 of the ADJR Act was considered by the High Court in Australian Broadcasting Tribunal v Bond[7] (Bond). Mason CJ, with whom Brennan and Deane JJ concurred, found that, quite apart from the way in which it is used in s 5, the word “decision” has a variety of potential meanings. He looked to the fact that the ADJR Act is a remedial statute. Its being a remedial statute indicates that no narrow view should be taken of the word “decision”.  An examination of its provisions, though, suggested that the word should have a relatively limited field of operation.  The relevant policy provisions are competing.  Mason CJ weighed them:

   “… On the one hand, the purposes of the A.D.(J.R.) Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes.  On the other hand, in so far as the ambit of the concept of ‘decision’ is extended, there is a greater risk that the efficient administration of government will be impaired.  Although Bowen C.J. and Lockhart J. appeared to emphasize the first of these considerations in Australian National University v Burns …, there comes a point when the second must prevail, as their Honours implicitly acknowledged.  To interpret a ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.

   The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations.  That answer is that a reviewable ‘decision’ is one for which provision is made by or under a statute.  That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.  A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

   Another essential quality of a reviewable decision is that it be a substantive determination. …

   If ‘decision’ were to embrace procedural determinations, then there would be little scope for review of ‘conduct’, a concept which appears to be essentially procedural in character.  To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality.  Then it is the ‘conduct’ of the hearing in refusing an adjournment that is the subject of review.  To treat the refusal of an adjournment in this way is more consistent with the concept of ‘conduct’ than with the notion of ‘decision under an enactment.’.”[8]

   [7] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 64 ALJR 462; 94 ALR 11; Mason CJ, Brennan, Deane, Toohey and Gaudron JJ

   [8] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11 at [31]-[34]; 336-338; 10-11; 23-24

1. Mason CJ made it clear that a reviewable decision need not be one which ultimately determined all of the issues when he referred to Lamb v Moss.[9]   His Honour said:

   “          Lest it should be thought otherwise, I should say that, to the extent in Lamb v Moss that the magistrate decided that a prima facie case had been established and that he would proceed with the committal proceedings, a reviewable decision had been made.  That decision was one for which s 41(2) of the Justices Act 1902 (NSW) specifically provided. The decision resolved an important substantive issue to be determined before the ultimate decision could be made under s 41(6) of that Act whether to commit the defendant for trial or discharge him from custody.”[10]

   [9] [1983] FCA 254; (1983) 76 FLR 296; 49 ALR 533; 5 ALD 446

   [10] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11 at [36]; 338; 12; 24

1. Some hearings do not lead to review of a decision and a final decision under s 43 of the AAT Act but they can arguably be said to resolve a substantive issue and would lead to an entitlement to reasons. A decision on an application for a stay under s 41 of the AAT Act would be an example. It resolves the issue of whether the decision under review continues to operate and be in effect during the proceedings for its review. Procedural matters, however, do not resolve any substantive issue and my decision was concerned solely with case management issues. I did not make any form of decision that resolved any substantive issue. There was no decision of the sort in relation to which a person could seek review under s 5 of the ADJR Act.

1. Section 6 of the ADJR Act would not support an application for review. It relates to conduct for the purpose of making a decision. My conduct in making the case management decision was not conduct for the purpose of making a decision per se.  Neither was it conduct that amounted to failure to make a decision.  That is so because it was not a proceeding directed to the resolution of the substantive matter.  It was, instead, directed to the way in which the application would be managed in taking it to a point where the AAT first review decision could be reviewed at AAT second review and a decision made.

1. For these reasons, I am not obliged to give reasons under either the AAT Act or the ADJR Act. I will, however, give brief reasons for not expediting the application.

REASONS FOR CASE MANAGEMENT DECISION

1. The Tribunal exercises its powers in one or other of seven Divisions although others may be prescribed.[11]  An application for AAT second review is dealt with in its General Division.  Certain administrative processes are followed on receipt of an application in that Division.  Those processes have been developed to ensure that the Tribunal fulfils its obligations under the AAT Act and the particular enactment that has provided that an application may be made to it for review of a decision.  So, for example, when an application is made to the Tribunal, the Tribunal’s Registry sends a written notice that the application has been received.  It sends that written notice to the applicant, the decision-maker and any other person who is made a party to the application by virtue of the enactment that provided that the application might be made.[12]

   [11] AAT Act; s 17A

   [12] AAT Act; s 29AC(1)

1. Receipt of that notice by the decision-maker imposes an obligation on him or her to lodge documents as required under s 37 of the AAT Act. A period of 28 days from the date of receipt of the notice is allowed for the lodgement of those documents although that period may be extended.

1. Various interim applications may be made consequential upon the application for review’s having been lodged.  As the making of an application for review does not affect the operation or implementation of the decision of which review is sought,[13] s 41(2) provides that a party to the proceeding may request the Tribunal to stay the operation or implementation of the decision.  The Tribunal’s Registry has processes in place to manage such an application so that notice is given to the other party or parties and both are given an opportunity to be heard or to make submissions before the Tribunal makes a decision.

   [13] AAT Act; s 41(1)

1. I have given only a small set of examples of the administrative processes that must be followed in the Tribunal’s Registry. Each application that has not been finalised either by the Tribunal’s making a decision on the merits whether by consent or after a hearing, withdrawal of the application or dismissal under ss 42A or 42B moves through the various processes as those processes are applicable to the needs of the application.

1. Mr Sesalim has said that he will not attend an alternative dispute process provided for in s 34A.  Given his statement, there would be little point in referring the application to a conference.  That is not necessarily the view that I would take if another applicant were to make that statement.  Each case depends on an assessment of whether there may be some benefit in holding a conference.  That benefit may take a number of forms e.g. giving the parties an opportunity to better understand the issues raised by the decision, to identify further evidentiary material that may be required or enquiries that should be made, to gain insight into each other’s position and to put a human face to the other party and even to reach a decision by consent.

1. Mr Sesalim’s case will automatically progress through the stages more quickly than would have been the case if I had referred it to a conference. On the material that I have, however, I am not prepared to shorten the time within which the Secretary must comply with her obligations under s 37 of the AAT Act. I am not prepared to put it ahead of other social security cases that are awaiting hearing in the General Division.

1. The reason for my not being prepared to do that lies in the fact that Mr Sesalim has not given me a proper basis to do so.  He has said that he is in financial difficulty and needs to remain overseas in order to receive care and treatment because of his conditions.  Although he states that he needs to remain overseas, I do not know where he is located at the moment.  He gave a suburban Melbourne address as his residential address on his application form and an email address.  The Tribunal also has a mobile telephone number.  He appeared by telephone at the AAT first review. 

1. If he is in Australia, he should be in receipt of DSP because the Secretary has not applied under s 41 of the AAT Act for a stay of the operation or implementation of the AAT first review.  If she does so, the timing of the hearing will become a relevant factor as will the effect on his financial position if the stay were to be granted. 

1. The AAT first review found that Mr Sesalim suffers from Post Traumatic Stress Disorder (PTSD) and neck pain and found that they attracted 20 or more points under the Impairment Tables.  Mr Sesalim has not provided any information as to the care and treatment that he can receive overseas for PTSD and neck pain that requires his application to be given an expedited hearing. 

1. In the absence of any reason for expediting the hearing, I decided to allow matters to take their normal course but omitting referral to a conference. Therefore, the documents that the Secretary must lodge under s 37 of the AAT Act are expected on or about 20 March 2018. As matters stand and uninformed by those documents or by the Secretary’s position and whether further information is required, I expect to list Mr Sesalim’s application for hearing in April or May 2018.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A  Forgie

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

Associate

Dated:  2 March 2018

Date of case management decision:	23 February 2018
Self-represented Applicant:	Mr Dean Sesalim