Shinko Mori and Secretary, Department of Social Services

[2013] AATA 737

[2013] AATA 737

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/2892
Re	Shinko Mori
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr S. Webb, Member
Date	10 October 2013
Place	Canberra

Application for reinstatement refused.

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

Mr S. Webb, Member

PRACTICE AND PROCEDURE – application for reinstatement following previous settlement by consent – delay – no error in dismissal – application refused

Administrative Appeals Tribunal Act 1975, s 42A

Social Security (Administration) Act 1999, s 182

Cases

Secondary Materials

REASONS FOR DECISION

Mr S. Webb, Member

10 October 2013

1. Shinko Mori requested reinstatement of an application previously settled and dismissed by consent. The Secretary opposed the application.

2. The application came on for hearing before me on 10 October 2013. Having heard the parties, I gave an oral decision at the conclusion of the hearing. Ms Mori requested written reasons. Subsequently, the Secretary also requested written reasons. The following reasons reflect the reasons already given.

3. I note that after the hearing Ms Mori wrote to the Tribunal, and attended the Tribunal, to request that I carefully consider certain documents relating to the return of monies paid to her as a result of the settlement; the medical certificate of Dr Quach; and Part A of Exhibit 2, especially pages 3 to 7. I considered each of these documents (and all other documents before the Tribunal, including a number of submissions from Ms Mori) when making my decision.

4. The brief facts follow –

   (a)on 20 July 2011, Ms Mori applied for review of a decision of the Social Security Appeals Tribunal, affirming a decision made by the Secretary to raise and recover a debt in the amount of $2,446.23 in respect of earnings in 2008 that Ms Mori reported in June 2009;

   (b)on or about 15 September 2011 the Secretary served draft terms of settlement;

   (c)Ms Mori refused to accept the terms offered;

   (d)on 30 September 2011, relevant issues were discussed in a preliminary conference before a Tribunal Conference Registrar;

   (e)on 17 October 2011, apparently following discussions between a Departmental officer and Ms Mori’s friend and neighbour, Mr Mayple, the Secretary provided Ms Mori with further terms of settlement and clearly informed her that consent would lead to dismissal of her application before the Tribunal;

   (f)Ms Mori signed the draft terms of settlement and she also signed a consent for the Secretary to lodge the terms of agreement in the Tribunal;

   (g)on 28 October 2011, terms of settlement were filed in the Tribunal;

   (h)on 31 October 2011, notice of dismissal was sent to Ms Mori and to the Secretary;

   (i)on 2 September 2013, Ms Mori sought reinstatement of the application.

5. The issue is to be decided under s42A of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The discretion to reinstate an application is enlivened if the request for reinstatement is made within 28 days of notice of dismissal, or if the dismissal was in error.

6. Clearly, Ms Mori’s request for reinstatement was not made within 28 days of notice of dismissal. It follows that reinstatement may only be made under s 42A(10), in the case of error.

7. Ms Mori says that there are several errors. She maintains that she was unwell and that this affected her action to agree to terms of settlement. She says that she agreed to the terms of settlement in order to reduce her metal fatigue and stress. Furthermore, she said that she agreed to the terms and signed them in order to show appreciation and respect to her friendly neighbour, Mr Mayple, and to her friends in Japan, all of whom encouraged her to sign the draft terms. She told me that the terms of settlement do not address her primary goal in making the original application in July 2011, which was correcting incorrect records held by Centrelink in respect of her 2008 income reporting. This, she says, was an error on her part – she should not have accepted terms that did not address this objective. A further element of error, in her submission, may be that she misunderstood what the Tribunal can do in respect of amending records held by Centrelink. Finally, if I understand Ms Mori correctly, part of her complaint is that she was not properly informed about the reinstatement provisions of the AAT Act before or very soon after she signed the terms of settlement.

8. To my mind none of these submissions suggest that Ms Mori’s 2011 application was dismissed in error.

9. The present evidence does not establish that in October 2011 Ms Mori was so unwell that her mental faculties were affected to the extent that she did not understand or misconstrued the effect of signing the terms of settlement. The medical certificate of Dr Quach in Exhibit 1 dated 2 September 2013 does not establish that she was adversely affected by mental fatigue and stress, or other symptoms or phenomena, such that she was not fit or not capable of acting in a reasonable, rational manner when signing the terms. Her own sworn evidence is that she did understand what she was signing. It may be accepted that she was experiencing fatigue and stress at that time, and that she signed the terms of settlement to bring the matter to an end and, thereby, to reduce the level of her stress. But that does not expose any error infecting the dismissal.

10. At this point it is important to observe that under s 182(2) of the Social Security (Administration) Act 1999 (the Social Security Administration Act), in the event that the Secretary and a claimant agree to settle on terms in respect of the recovery of a debt, the proceedings in the Tribunal are taken to be dismissed. Thus, once signed terms of agreement were lodged in the Tribunal, the application was taken to be dismissed by operation of s 182(2) of the Social Security Administration Act. There is no error in the manner in which Ms Mori’s application was taken to have been dismissed.

11. Acting in a respectful manner to friends who have provided support and advice does not constitute an error unless there is some element of the support or advice that, itself, may constitute an error. In the present circumstances, no error can be seen in respect of the support and advice Ms Mori’s friends provided. Ms Mori may have come to disagree with the advice, but it is not established that she was coerced to sign the terms of settlement, or that the advice for her to sign was anything more than friendly support, not rising to the level of legal advice for example. However ill-advised it may have been for Ms Mori to act on informal advice she was given by her friends, doing so does not found an error that led to execution of the terms of settlement to which she had agreed. The content of Mr Mayple’s advice to Ms Mori is not clear on the present evidence and he was not called to give evidence. That notwithstanding, on Ms Mori’s evidence, Mr Mayple advised her to sign in order to reduce the level of stress. If that is correct, it does not reveal an error in the processes that led to dismissal of her application.

12. Ms Mori’s issues about amending allegedly incorrect Departmental records or not fully understanding the extent of the Tribunal’s jurisdiction or power do not expose an error in the procedures, circumstances or manner in which her 2011 application was dismissed. If there are errors in the Departmental records, and I make no finding on this point, it does not follow that her 2011 application enlivened the Tribunal’s jurisdiction to review decisions relating to the amendment of records under the Freedom of Information Act 1982. It did not. And it does not follow that the Tribunal was seized of power to order or require the Secretary to amend records pertaining to Ms Mori’s income reporting for 2008. It appears that Ms Mori and the Secretary are in agreement that the findings of the Social Security Appeals Tribunal in paragraph 24 of its decision are correct. These matters do not point to an error in the dismissal of Ms Mori’s application.

13. As regards Ms Mori’s assertion that she only became aware of the possibility of reinstatement after making her decision to sign the proposed terms, this does not expose an error in the dismissal of her application. There is no error in her failing to enquire about reinstatement options, or in the Tribunal failing or omitting to include such information in the notice of dismissal it issued on 31 October 2011, although it may be desirable for such information to be included in notices of this kind.

14. On her evidence, the Tribunal provided her with information about reinstatement options within several weeks of the notice of dismissal. It appears that the $1,000 reduction in her overpayment debt was refunded to her following settlement and dismissal of her application in the Tribunal, but she returned it to Centrelink. She told me that it is a matter of honour and respect – she has done nothing wrong and the record should reflect this. That may be so, but Ms Mori did not finally act to seek reinstatement until 2 September 2013. This delay does not suggest that Ms Mori was pressing her avowed desire to step back from the terms of settlement to which she had agreed, and that resulted in her application being dismissed.

15. Finally, I accept that Ms Mori now regrets the decision she made to sign the terms proposed to her by the Secretary, and that she wishes she had not done so. Unfortunately for her, regret at having done something, or wishing it was not done or could be undone, having had a change of heart, does not constitute an error for the purposes of s 42A(10).

16. In the absence of error, the Tribunal’s discretion to reinstate an application under s 42A(10) is not enlivened, and the application cannot be reinstated. For this reason, Ms Mori’s request for reinstatement of her 2011 application must be refused.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

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

Associate

Dated 11 October 2013

Date of hearing	10 October 2013
Applicant	In person
Advocate for the Respondent	Glenda Heggen
Solicitors for the Respondent	Program Litigation and Review Branch, Department of Human Services