Skiba and Secretary, Department of Employment and Workplace Relations

[2023] AATA 538

Skiba and Secretary, Department of Employment and Workplace Relations [2023] AATA 538 (13 March 2023)

Division:GENERAL DIVISION

File Number(s):      2022/10696

Re:Zofia Skiba

APPLICANT

AndSecretary, Department of Employment and Workplace Relations

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:13 March 2023

Place:Sydney

The application is dismissed under section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

.....................................[SGD].....................................

Deputy President B W Rayment OAM KC

Catchwords

PRACTICE AND PROCEDURE – JobSeeker Payments suspended – suspension set aside on internal review – statement of reasons requested under section 28 of the Administrative Appeals Tribunal Act 1975 (Cth) – statement already provided – no applicable internal review decision – application dismissed under section 42A(4).

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Deputy President B W Rayment OAM KCs

13 March 2023

1. The applicant seeks an order under section 28 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) requiring reasons for an original decision apparently made on or about 23 September 2022 and apparently by Services Australia to stop payments of JobSeeker to the applicant.[1] The applicant was told on 27 September 2022 that her JobSeeker Payments were on hold.[2]

   [1] Annexure D to the Respondent’s Outline of Submissions dated 10 March 2023.

   [2] Ibid.

2. The applicant then made the current application for reasons for that decision on 27 October 2022.

3. A main difficulty facing the applicant is that the decision or decisions mentioned in [1] above had not been the subject of internal review. Section 28(1) of the Act permits “any person who is entitled to apply to the Tribunal for a review of the decision” to request the person who made the decision to give a statement in writing setting out the findings on material questions of fact and giving reasons for the decision. Section 28(1AC) of the Act provides that the Tribunal must decide whether the applicant was or was not entitled to be given the statement concerned.

4. The decision or decisions mentioned in [1] above were original decisions. The legislation affecting the respondent provides for internal review of that decision or those decisions.[3] Only if an internal review has taken place will there be a decision (known as a reviewable decision) in respect of which an application may be made to the Tribunal for a review.[4] The decision or decisions mentioned in [1] above were not reviewable decisions.

   [3] Social Security (Administration) Act 1999 (Cth), ss 126 and 135.

   [4] Ibid, s 142.

5. In fact, on 31 October 2022 a reviewable decision was made and that internal review decision was in favour of the applicant, whose JobSeeker Payments were restored, with retrospective effect.[5] On 14 November 2022 a demerit point formerly recorded by the department against the applicant was also removed.[6]

   [5] Annexure F to the Respondent’s Outline of Submissions dated 10 March 2023.

   [6] Respondent’s Outline of Submissions dated 10 March 2023, p 3.

6. It is therefore hard to understand why the applicant has pressed the present application today. She has already won her dispute. The applicant explained to me that she pressed the application because the same thing may happen again later. That does not confer jurisdiction on the Tribunal to make the order presently sought.

7. For reasons explained in [4] above, the present application is liable to be dismissed for lack of jurisdiction. The application is dismissed under section 42A(4) of the Act.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for the decision herein of Deputy President Brian Rayment

....................................[SGD]....................................

Associate

Dated: 13 March 2023

Date(s) of hearing:	13 March 2023
Solicitors for the Respondent:	Mr M Sheedy, Sparke Helmore Lawyers