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

Taylor; Secretary, Department of Social Services and (Social services second review) [2020] AATA 5230 (3 December 2020)
Division:GENERAL DIVISION
File Numbers: 2020/6378 & 2020/6454
Re:Secretary, Department of Social Services
APPLICANT

Janina TaylorAnd
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:3 December 2020
Date of written reasons: 24 December 2020
Place:Sydney

(a)(2020/6454) The Tribunal extends (until 16 October 2020) the time for application for review of the jobseeker payment decision, pursuant to subsection 29(7) of the AAT Act.
(b)(2020/6378) The parenting payment decision is stayed, pursuant to subsection 41(2) of the AAT Act.

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Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – substance and form – whether Tribunal decision containing two reviewable decisions is a single reviewable decision for the purposes of a second level review in the Tribunal – decision should be regarded as two separate decisions – where extension of time required for one of the reviewable decisions
EXTENSION OF TIME – principles to be applied – reasons for delay – merits of substantive application – jobseeker payment – potential inconsistency with associated matter under review if extension of time not granted – extension of time granted
STAY – application for a stay of decision – parenting payment – merits of substantive application – reasonable prospects of success – prejudice to the applicant and public interest if stay refused – stay granted
LEGISLATION
Administrative Appeals TribunalAct 1975 (Cth) ss 29, 41
CASES
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307 (“Lawlor”).
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217.
Smedley and Repatriation Commission [1988] AATA 776.
WRITTEN REASONS FOR ORAL DECISION
Emeritus Professor P A Fairall, Senior Member
24 December 2020
INTERLOCUTORY APPLICATIONS

The present matters, dealt with by the Tribunal by way of an interlocutory hearing on 3 December 2020, concern applications, made by the Secretary, Department of Social Services (Secretary) for the grant of an extension of time and the grant of a stay, following the Secretary’s applications for review in the General Division of the Administrative Appeals Tribunal (AAT2) of two decisions of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 14 September 2020.
The AAT1’s decisions were in respect of two claims made by the respondent, Ms Taylor, for jobseeker payment (jobseeker payment decision)[1] and parenting payment (single) (parenting payment decision).[2] These decisions are discussed in more detail in the background section below.
[1] This matter was given AAT1 matter reference 2020/S152378.
[2] This matter was given AAT1 matter reference 2020/S152547.
The applications
The Secretary’s applications sought to obtain:
(a)an extension of time to apply for review of the jobseeker payment decision;[3] and
(b)a stay in respect of the separate parenting payment decision.[4]
[3] This matter was given AAT2 matter reference 2020/6454.
[4] This matter was given AAT2 matter reference 2020/6378.
At the conclusion of the interlocutory hearing, I gave an oral decision in favour of the Secretary in both applications. That is, I decided to grant the extension of time and to grant the stay.
AAT1 decision – two separate decisions?
Dr Thompson, for the Secretary, noted that I had found that in its decision of 14 September 2020 the AAT1 made not one but two decisions. The question of whether the AAT1’s decision was properly characterised as one decision or two decisions had arisen as a point of contention in the case, as being relevant to whether the Secretary was required to apply for an extension of time in respect of the jobseeker payment decision in the review by the AAT2.
The Secretary requested written reasons for my decision, as parties before the Tribunal are entitled to do. I therefore provide my reasons.
BACKGROUND
The respondent in these proceedings, Ms Taylor, is a New Zealand citizen. She was, until July 2019, engaged in full time employment. On 11 July 2019, she was made redundant and received an early termination payment (ETP) of $120,341.68.
On 15 July 2019, Ms Taylor applied for parenting payment single, under the Social Security Act 1991 (Cth) (the Act).
On 31 July 2019, she applied for Newstart allowance (now known as jobseeker payment).
On 5 August 2019, Centrelink (now known as Services Australia) decided that she was not eligible to receive parenting payment. As a New Zealand citizen, she needed to be a protected Special Category Visa (SCV) holder in order to qualify for parenting payment.
Centrelink found that Ms Taylor was not a protected SCV holder as she needed to have been in Australia on 26 February 2001, or for twelve months in the preceding 24 months, pursuant to subsection 7(2A) of the Act.
Ms Taylor appealed to the AAT1 against the finding that she was not a protected SCV holder.
On 25 June 2020, Centrelink approved her claim for jobseeker payment, with a commencement date of 8 October 2020. When a person receives an ETP, an income maintenance period is calculated. This period determines the earliest start date to receive a particular payment, in this case jobseeker payment.
In relation to jobseeker payment, section 1068-G7AH of the Act provides:
If:
(a) a person's employment has been terminated; and
(b) the person receives a termination payment (whether as a lump sum payment, as a payment that is one of a series of regular payments or otherwise);
the person is taken to have received ordinary income for a period (the income maintenance period) equal to the period to which the payment relates.
Ms Taylor challenged the commencement date determined by Centrelink for her jobseeker payment and applied to the Tribunal for review of the start date.
On 14 September 2020, the AAT1 made decisions in respect of both matters, which I summarise below.
(a)The parenting payment claim 2020/S152547 (referred to above as the parenting payment decision):
The decision under review [taken on 5 August 2019] is set aside, and the matter is sent back to … Centrelink with the direction that Ms Taylor is a protected SCV holder.
(b)The jobseeker payment claim 2020/S152378 (referred to above as the jobseeker payment decision):
The decision under review [taken on 25 June 2020] is set aside and the matter is sent back to … Centrelink with the direction that Ms Taylor’s termination payment was $102,638.95.
The reduced ETP amount of $102,638.95 (as opposed to $120,341.68) was arrived at by deducting certain costs incurred by Ms Taylor that resulted from the early termination of a motor vehicle novated lease following her retrenchment.
I note as an aside that a determination that Ms Taylor is eligible to receive parenting payment (contrary to Centrelink’s initial determination) will require the calculation of an income maintenance period because of the ETP she received on 11 July 2019. Both parenting and jobseeker payments require the calculation of an income maintenance period in the event that the recipient has received an early termination payment. This commonality is something that bears upon disposition of the present applications.
On 14 October 2020, the Secretary’s legal representative filed a Form 1 Application for Review of Decision, a Form 6 Request for a Stay Order, a copy of the AAT1 decision dated 14 September 2020, and a copy of a letter dated 14 October 2020, sent to Ms Taylor, informing her of the Secretary’s appeal.
The Form 1 described the contested decision as follows:
The decision was made by the Administrative Appeals Tribunal (Social Services and Child Support Division) on 14 September 2020 and received by Services Australia on 16 September 2020. The AAT1 set aside the decision under review and in substitution, determined that the respondent was a protected Special Category Visa (SCV) holder.
The stated reason for the application was that:
The Tribunal erred in finding that the respondent was a protected SCV holder.
The contested finding relating to the protected SCV holder issue was related exclusively to the parenting payment decision.
Later that same day, 14 October 2020, the Secretary sent a confirmatory email to the Sydney Registry of the AAT2 (Registry), stating (in part):
Please note that the Secretary is only appealing decision 2020/S152547.
The next day, this position altered. On 15 October 2020, the Secretary sent a letter to Ms Taylor, stating:
Our letter to you dated 14 October 2020 indicated that the Secretary was appealing the AAT1 decision in relation to your residency status. Please be advised that the Secretary will be appealing both aspects of the AAT1 decision, being:
a) The decision that you are a protected Special Category Visa holder; and
b) The decision to reduce your Income Maintenance Period by reducing your termination payment to $102,638.95.
On 16 October 2020, the Secretary sent a further email to the Registry, stating:
Please see the attached correspondence to the Respondent dated 15 October 2020, confirming that the Secretary seeks to appeal both aspects of the AAT1 decision dated 14 September 2020 in the de novo review.
On 20 October 2020, the Registry advised the Secretary’s legal representative that the application to review the jobseeker payment decision could not proceed unless the Tribunal granted an extension of time.
Is it necessary for the Secretary to apply for an extension of time?
Dr Thompson, for the Secretary, submitted that the advice received from the Registry that an extension of time was required was incorrect. The application was not, he said, out of time. He argued that there was only one decision, namely, the decision made by the AAT1 on 14 September 2020, and that the Secretary had lodged an application for review within time on 14 October 2020 in respect of that single decision.
Dr Thompson’s oral submission was supported by a very lengthy written submission. In the written submission, the “single decision” made by the AAT1 on 14 September 2020 was said to contain “two decisions – one relating to residency, and the other relating to the start date of jobseeker payment in connection to an income maintenance period”. The submission went on:
The Secretary’s Application for Review did not specifically state all objections taken to the single decision. That is, the Application for Review did not also state that the Secretary took issue with that part of the single decision relating to the income maintenance period regarding the start date of jobseeker payment.
During the interlocutory hearing, I noted that the Secretary’s submission was somewhat at odds with the formal structure of the decision adopted by the AAT1, which refers to “Decisions” (plural) and identifies each decision by a different case reference. I also note that the opening paragraph of that decision (in part) states:
These applications are about two decisions made by … Centrelink.
2020/S152378
A decision made on 25 June 2020 … to commence payment of jobseeker allowance to [the Respondent] from 8 October 2020 …
2020S152547
A decision made on 5 August 2019 … to reject Ms Taylor’s claim for parenting payment …
Dr Thomson accepted that the AAT1 had described the case as being about “two decisions” made by Centrelink. Nevertheless, he argued that, for procedural purposes, the AAT1’s disposition of each of those matters was a single decision of the AAT1. In other words, it was a single decision about two decisions.
I note the email dated 14 October 2020 from the Secretary’s legal representative to Ms Taylor and the Registry to the effect that “the Secretary is only appealing decision 2020/S152547” (being the parenting payment decision). This certainly suggests that, at this time, the Secretary regarded each of the matters disposed of by the AAT1 as distinct decisions.
As noted above, this position changed the following day, when the Secretary informed Ms Taylor (by letter to Ms Taylor dated 15 October 2020, which was sent to the Registry on 16 October 2020) that the Secretary intended to challenge “both” decisions.
In my view, the lengthy written submission does not adequately explain why the Tribunal should regard the Secretary’s email of 14 October 2020 as consistent with the Secretary’s view that, for procedural purposes, there is a single decision.
The written submission argues that if the jurisdiction of the Tribunal is properly engaged to review a decision, no part of the decision is off limits, citing Smedley and Repatriation Commission [1988] AATA 776. This reasoning assumes what it needs to prove, namely, that the “decision” made on 14 September 2020 by the AAT1 is merely one decision. Smedley does not assist the applicant, and nor for that matter does the famous Lawlor decision, referred to by Dr Thompson in oral argument, where it was held in the early days of the Tribunal that a “decision” that was made beyond jurisdiction was nevertheless a “decision” for the purposes of section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), and reviewable by the Tribunal.
In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, Gageler, Keane, and Nettle JJ said:
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd has been aptly described as a "landmark decision" in the early history of the Administrative Appeals Tribunal. The Full Court of the Federal Court there construed the reference in s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) to a "decision" in respect of which an enactment might provide for review by that Tribunal as a reference to nothing more than "a decision in fact made, regardless of whether or not it is a legally effective decision". The fundamental reason for adopting that construction was fulfilment of the evident legislative purpose of the conferral of jurisdiction on the Tribunal "to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task": "[i]f administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review" and "technicality would be introduced at the outset". In the context of the Administrative Appeals Tribunal, that construction has not since been doubted.
There is no issue in this case as to whether the decision in question was a “legally effective decision", and no dispute that a decision was in fact made by the AAT1 on 14 September 2020 relating to each of Ms Taylor’s claims.
The fact that the AAT1 made a decision on 14 September 2020 relating to Ms Taylor does not detract from the contention that two independent and distinct decisions were made, each associated with a separate docket number.
In advising the Registry and Ms Taylor that “the Secretary is only appealing decision 2020/S152547”, the Secretary’s legal representative was proceeding on the same footing. This self-imposed restriction was removed the following day. It is hard to see how this can be said to fall within the ratio of Lawlor.
Nor can it be said that the jobseeker payment decision forms such an integral or indivisible part of the parenting payment decision, so that one can realistically say that the two decisions, described by the AAT1 as separate decisions, are in fact “one decision”.
There is an important policy reason why the Secretary’s argument should fail. In the circumstances of this case, the email from the Secretary dated 14 October 2020 indicated that the jobseeker payment decision was not under challenge.
A litigant is entitled to understand the nature of the case he or she is required to defend. If the case is widened after the deadline for the filing of relevant materials, it is appropriate that the Tribunal is involved in some supervisory role to ensure fairness between the parties. In this case, the applicant sought to widen the matters in issue in the forthcoming hearing after the relevant deadline had expired, and it is entirely appropriate that the normal processes for applying for an extension of time for review of an administrative decision should be followed.
THE EXTENSION OF TIME
As noted above, on 20 October 2020, the Registry advised the Secretary that an application for review of the decision made by the AAT1 relating to the jobseeker payment was out of time, and that it would be necessary to apply for an extension of time.
Ordinarily, pursuant to paragraph 29(2) of the AAT Act, an application for a review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant.
Pursuant to subsection 29(7) of the AAT Act, the Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so”.
In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J identified the principles to be applied in determining an application for an extension of time.
These principles are not to be applied mechanically, and the overriding consideration is whether it is “reasonable in all the circumstances” to grant the extension.
These principles are as follows:
(a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;
(b)a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
(c)any prejudice to the respondent caused by the delay;
(d)whether the respondent or the general public would suffer any prejudice as a result of the extension;
(e)the merits of the substantial application;
(f)“[c]onsiderations of fairness as between the applicant and other persons” in a similar position.
Reasons for delay
I note that in this case the Secretary’s delay in seeking a review of the AAT1 decision was, at most, two days, and the Secretary has provided an acceptable reason for the delay. It is apparent that there was some confusion as to whether each of the decisions made by the AAT1 on 14 September 2020 was, for procedural purposes, to be regarded as a separate decision.
The Secretary has good prospects of challenging the reduced income maintenance period determined by the AAT1. As noted previously, the reduced ETP amount ($102,638.95 as opposed to $120,341.68) was arrived at by deducting certain costs incurred by Ms Taylor resulting from the early termination of a motor vehicle novated lease arrangement following her retrenchment. It is not immediately clear that such a deduction is provided for under the relevant statutory provisions.
There is another more pressing reason for granting an extension of time in relation to the jobseeker application. Refusal of an extension of time would “lock in” the ETP amount at $102,638.95, with an associated income maintenance period.
If the Tribunal finds in due course that Ms Taylor is eligible for parenting payment (on the basis that she is a protected SCV holder), it will need to determine the applicable ETP for parenting payment purposes. The Tribunal is bound by neither the Centrelink determination nor the AAT1 decision. It may uphold the AAT1 calculation ($102,638.95), or it may settle on some other sum, including possibly the original Centrelink calculation of $120,341.68.
This raises the potential for an inconsistency in the income maintenance periods arising from one ETP payment but relevant to separate benefits. The orderly administration of the social security system is not served by this possible outcome. A potential conflict can be avoided by granting an extension of time in relation to the jobseeker payment matter.
Extension of time should be granted

For these reasons, I find it reasonable in all the circumstances to grant the extension of time.
THE STAY
Regarding the grant of a stay in respect of the parenting payment decision, I note that pursuant to subsection 41(2) of the AAT Act, the Tribunal may, after taking into account the interests of any persons who may be affected by the review, make such orders staying the operation or implementation of the decision, as the Tribunal considers appropriate for the ‘purpose of securing the effectiveness of the hearing and determination of the application for review.’
In seeking a stay, the Secretary’s representative stated that:
1. The Tribunal erred in finding that the respondent was a protected SCV holder.
2. The Secretary’s application for review has strong prospects of success.
3. Any payments made to the respondent upon implementation of the decision will become a debt to the Commonwealth should the decision be set aside by the Administrative Appeals Tribunal (General Division).
4. There is a public interest in avoiding overpayments of public monies in circumstances where there are significant questions as to the respondent’s qualification for payment.
5. The Commonwealth may face difficulty and/or delay in the recovery of monies if the decision is implemented.
Consideration of the Secretary’s arguments regarding the stay
Based on the information presently before the Tribunal, there is an arguable case that Ms Taylor does not qualify as a protected SCV holder. The new information provided to the Tribunal relating to Ms Taylor’s absences from the country may well be fatal to her claim for parenting payment. On the other hand, she pointed to an interesting argument that she was actually in Australia on 26 February 2001, the relevant date for assessing protected SCV status.
Ms Taylor told the Tribunal that she departed Australia very late on the evening of 26 February 2001 and that she may well have been in Australia throughout the whole of 26 February 2001, in which case she was eligible for parenting payment.
Despite this intriguing possibility, I consider that the Secretary has reasonable prospects of challenging the AAT1 decision relating to Ms Taylor’s protected SCV status and eligibility for parenting payment.
There is little to be gained from setting the stage for future recovery action by the Commonwealth. The public interest is not served by providing payments that are, on balance, not due.
Based on the material before the Tribunal relating to Ms Taylor’s overseas travel, the Commonwealth will be prejudiced if a stay is not granted. I do not think that it is in the public interest or in Ms Taylor’s interests to accumulate a debt that may ultimately need to be repaid.
The AAT1’s decision is two separate decisions
I have rejected the argument that the decision in question is a single decision of the AAT1. I favour the view that there are two separate decisions. Nevertheless, the decisions are interconnected by the need to determine an income maintenance period in both cases. For the purpose of securing the effectiveness of the future hearings and the determination of the applications for review, it is desirable for the parenting payment decision to be stayed pending the hearing of both matters.
I accept that this is not a logical necessity. There is no logical reason why Ms Taylor should not enjoy the fruits of the favourable parenting payment decision, pending the outcome of the Tribunal hearing on both matters. However, it is desirable for the status quo to be preserved until that decision is made, given that the calculation of the income maintenance period is relevant to both decisions.
Stay should be granted
I consider that it is appropriate to grant a stay under subsection 41(2) of the AAT Act, for the purpose of securing the effectiveness of the hearings and determination of the applications for review.
SUMMARY OF REASONS
For these reasons:
(a)(2020/6454) The Tribunal extends (until 16 October 2020) the time for application for review of the jobseeker payment decision, pursuant to subsection 29(7) of the AAT Act.
(b)(2020/6378) The parenting payment decision is stayed, pursuant to subsection 41(2) of the AAT Act.

I certify that the preceding 64 (sixty four) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate
Dated: 24 December 2020

Date of hearing: 3 December 2020

Solicitor for the Applicant: Dr Thompson, Services Australia

Respondent: Self-represented

[2020] AATA 5230

3 December 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Stay of Proceedings

Date of hearing:	3 December 2020
Solicitor for the Applicant:	Dr Thompson, Services Australia
Respondent:	Self-represented