Siddiqi and Secretary, Department of Family and Community Servic Es

[2003] AATA 306

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 306

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/52

GENERAL  ADMINISTRATIVE DIVISION

Re:         ASIM SIDDIQI

Applicant

And:SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       M.J. Carstairs, Member

Date:             19 March 2003

Place:            Melbourne

Decision:For reasons given orally at the hearing, the Tribunal decides that it does not have jurisdiction to review the application lodged on 14 January 2003. 

(sgd) M.J. Carstairs

Member

SOCIAL SECURITY ‑ newstart allowance ‑ whether claim ‑ whether decision made on a claim

Administrative Appeals Tribunal Act 1975 ss3(3), 25(1), 43(1)

Social Security (Administration) Act 1999 s179(1)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167

Re Parke and Repatriation Commission (1985) 2 RPD 404

Re Young and Telstra Corporation (1993) 32 ALD 307

REASONS FOR DECISION

19 March 2003  M.J. Carstairs, Member

1.      This is an application by Asim Siddiqi (the applicant) for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 18 November 2002.  The SSAT decided that it had no jurisdiction to review a decision relating to the applicant as no decision had been made.  In doing so, the SSAT agreed with a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent), who, on 22 June 2002, had decided that there was no jurisdiction to review a decision; but who had reviewed the procedures that took place when the applicant had attended Centrelink to make a claim.

2.      At the hearing the applicant represented himself.  Ms K Navarro, a Centrelink advocate, represented the respondent.

3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) as well as a Statement of Facts and Contentions lodged by the respondent on 18 March 2003.

BACKGROUND

4.      The applicant was born in Australia on 16 May 1960.  In December 1960 he left Australia for Pakistan, with his parents.  He returned to Australia on 6 October 2001.  He is an aeronautical engineer and now works with the Department of Defence.  However, when he returned, he was without employment and sought the assistance of Centrelink.

5.      According to the SSAT decision, the applicant lodged a claim for special benefit on 18 October 2001, and the claim was rejected on 29 October 2001, because he did not meet the residence requirement for that payment (T3).  When he sought review of that decision, an authorised review office decided that the decision to reject the claim for special benefit was incorrect (T7).  The authorised review officer said that the applicant was eligible for that payment, subject to him providing bank balances to satisfy a level of funds test that also applied for special benefit.

6.      The applicant continued to be dissatisfied about his first attendance at the Centrelink office in October 2001, when he had been told that he was not eligible for newstart allowance and that he should not claim that payment.  He was encouraged by the Centrelink officer to claim special benefit and discouraged from claiming newstart allowance.  The applicant has not disputed that he made no claim for newstart allowance.

7.      When the applicant then sought review, the authorised review officer stated that though there was no formal claim for newstart, and therefore no decision to review, she would review the procedures that had been undertaken.  She would also provide the applicant with the relevant legislation supporting the information given to him at the Centrelink office in October 2001, that he was not eligible for newstart allowance.  The authorised review officer explained that newstart allowance was a payment that required a waiting period of 104 weeks before eligibility, whereas special benefit was not.  The decision of the authorised review officer, however was that she lacked jurisdiction to review a decision as no original decision had been made. 

8.      As stated above, the SSAT’s formal decision agreed with the authorised review officer, namely that in the absence of a claim for newstart allowance, there was no decision that was capable of review.  In other words there was no jurisdiction.  The applicant sought review with this Tribunal on 16 January 2003.

EVIDENCE

9.      The applicant provided an extensive submission (T9) to the SSAT setting out the basis of his concerns, which included that he had attempted to obtain the relevant claim form to apply for newstart allowance.  He wished to challenge the suggestion that he was a newly arrived resident.  However, he stated he was not allowed to make that claim.  He stated (T9) that he suffered severe hardship in the four months when he received no Centrelink payment and stated that he was disadvantaged when seeking work, as employment assistance was based on the receipt of a payment from Centrelink.

10.     The applicant gave oral evidence that he considered that Centrelink had dealt with him poorly and that rules were being misinterpreted in his case.  He said that he did not enter Australia, he was born here, and that the provisions were intended to apply to migrants, not to cases such as his own where he was born in Australia.  He said that he intended to take his concerns further through the Ombudsman’s office.

CONSIDERATION OF THE ISSUES

11.     The applicant submitted that the Tribunal should find jurisdiction, as it was necessary that someone have the jurisdiction to make the findings about his entitlement and about the treatment that he had received.  Ms Navarro submitted that the main issue from the respondent’s perspective was that the applicant had not been in Australia for 104 weeks and therefore the newstart allowance was not payable to him, though he was otherwise qualified for it.  In her Statement of Facts and Contentions, Ms Navarro outlined the issues :

§     Whether the Tribunal had jurisdiction to hear the applicant;

§Whether the applicant was residentially qualified for newstart allowance; and

§     Whether such allowance was payable to him.

12. In regard to the first point Ms Navarro submitted that without a claim for newstart allowance, there was no decision made that could be reviewed by the Tribunal. She submitted that even if a claim could be deemed, the only provision that allowed this was s15(1) of the Social Security (Administration) Act 1999, which had no application in this case.

13.     The first issue for the Tribunal in carrying out a review is that jurisdiction be established.  In other decisions the Tribunal has held that the definition of decision should not be read in any narrow sense, given that the legislation is beneficial: ReYoung and TelstraCorporation (1993) 32 ALD 307. However, it is necessary that a decision have the nature of a final and effective action: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The advice given to the applicant that he was not eligible for newstart allowance, followed by the refusal to give him the newstart allowance claim form and the act of giving him another claim form (ie for special benefit) does not have the character of final and effective action.

14. Section 179(1) of the Social Security (Administration) Act 1999 provides:

179(1)  If:

(a)       a decision has been reviewed by the SSAT; and

(b)       the decision has been affirmed, varied or set aside by the SSAT;

application may be made to the AAT for review of the decision of the SSAT.

…

15. The AAT Act provides at s25:

25(1)  An enactment may provide that applications may be made to the Tribunal:

(a)for review of decisions made in the exercise of powers conferred by that enactment; or

(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

…

(4)      The Tribunal has power to review any decision in respect of which application is made to it under any enactment.

…

16. Section 43(1) of the AAT Act provides:

43(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)      affirming the decision under review;

(b)      varying the decision under review; or

(c)      setting aside the decision under review and:

(i)making a decision in substitution for the decision so set aside; or

(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

…

17. Section 3(3) of the AAT Act provides:

3(3)     A reference in this Act to a decision includes a reference to:

(a)making, suspending, revoking or refusing to make an order or determination;

…or

(g)doing or refusing to do any other act or thing.

…

18. In this case no decision has been made. Furthermore, there has been no review of a decision by the SSAT, which is a necessary precursor to the Tribunal having jurisdiction, as set out in s179(1) of the Social Security (Administration) Act 1999.  The Tribunal has no general review power, nor does it have a general decision-making power, as it is not the original repository of powers under any enactment: Re Brian Lawlor and Collector of Customs (New South Wales) (1978) 1 ALD 167. If a matter has not been the subject of a decision by a primary decision maker the Tribunal cannot assume to make a decision upon it. That is the case here.

19. Subsection 25(1)(a) of the AAT Act provides that application may be made for review of a decision made in the exercise of powers conferred by enactment and ss25(4) gives the Tribunal power to review any decision in respect of which application is made to it under any enactment.  Section 25(3) is of particular importance. It provides that:

25(3)       Where an enactment makes provision in accordance with subsection (1), that enactment:

(a)shall specify the person or persons to whose decisions the provision applies;

(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and

(c)may specify conditions subject to which applications may be made.

…

20.     Parliament has made clear that the powers of review are defined and circumscribed by the enactment making provision for review.  As stated by the Tribunal in Re Parke and Repatriation Commission (1985) 2 RPD 404:

The Tribunal derives its jurisdiction from Commonwealth legislation and its powers are conferred in specific terms. Unless it has power so conferred on it, it can do nothing.  It has no roving commission to investigate governmental decisions generally…

21.     It is important for the limits of jurisdiction to be observed.  While the authorised review officer has, quite properly, addressed the applicant’s concerns about the process in which he felt his case was wrongly dealt with, she clearly sets out that the advice remained correct and that the applicant was not eligible for newstart allowance.

22.     If a Centrelink officer considers that a person is eligible for one payment and not for another, this is merely advice, it is not a decision under the Act.  In the absence of such a decision there is no power in the Tribunal to conduct a review.  The Tribunal notes that the SSAT, whilst acknowledging its lack of jurisdiction, set out in full the relevant legislative provisions and the reasoning why the applicant was eligible to be paid special benefit but not newstart allowance.  That analysis of the legislation was comprehensive and correct.  It also set out for the applicant the history of the amendments that have brought the legislation to its present position.  However, the SSAT correctly decided that it had no jurisdiction to review a decision.

DECISION

23.     The Tribunal decides that it does not have jurisdiction to review the application of the applicant lodged on 14 January 2003.

I certify that the twenty‑three [23] preceding paragraphs are a true copy of the reasons for the decision of:

M.J. Carstairs, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  19 March 2003

Date of decision:  19 March 2003
Advocate for applicant:                Self‑represented
Advocate for respondent:            Ms. K. Navarro, Centrelink advocate