The Applicant and Principal Member, Social Security Appeals Tribunal The Other Party

[2014] AATA 62

[2014] AATA 62

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/6207
Re	The Applicant
APPLICANT
And	Principal Member, Social Security Appeals Tribunal
RESPONDENT
And	The Other Party
OTHER PARTY

Decision

Tribunal

Senior Member J Toohey

Date of decision

Date of written reasons

7 February 2014

10 February 2014

Place

Sydney

The Tribunal has no jurisdiction to determine the application.

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Senior Member J Toohey

It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

Catchwords – PRACTICE AND PROCEDURE – JURISDICTION – whether Tribunal has jurisdiction to review decision of SSAT refusing to reinstate application after withdrawal – no jurisdiction

Legislation

Child Support (Registration and Collection) Act 1988 ss 89, 90, 91, 92, 100A(2), 100A(3)(a)

Administrative Appeals Tribunal Act 1975, s 25

REASONS FOR DECISION

Senior Member J Toohey

Introduction

1. The Applicant seeks review of a decision of the Principal Member of the Social Security Appeals Tribunal (SSAT) refusing to reinstate an application she had made previously, but withdrawn. 

2. I have to decide whether this tribunal has jurisdiction to review the SSAT’s decision. 

3. These written reasons reflect reasons given orally at a hearing on 7 February 2014.

The proceedings in the SSAT

1. The Applicant and the Other Party have two sons.  They are separated. On 3 May 2012, the Registrar of the Child Support Agency (CSA) made a decision under the Child Support (Registration and Collection) Act 1988 (CSRC Act) concerning child support payments for the period 2 March 2011 to 28 February 2013.

2. On 7 November 2012, the Applicant asked the SSAT to review the Registrar’s decision.  Her application was out of time but the SSAT granted her an extension of time to submit it.  The matter was listed for hearing on 29 April 2013 but, before then, the Applicant withdrew her application.  On 2 April 2013, the SSAT Principal Member dismissed the application in accordance with s 100A(2) of the CSRC Act.

3. On 16 September 2013, the Applicant asked the SSAT Principal Member to reinstate her application.  As more than 28 days had passed since her application had been dismissed, her application for reinstatement was out of time: s 100A(3)(a). 

The SSAT’s decision

1. On 6 November 2013, the SSAT Principal Member decided “to refuse [the Applicant’s] request for reinstatement of her application for review”.    

2. The Applicant submits that the SSAT’s decision was in fact a decision to refuse her an extension of time in which to seek reinstatement.

3. The distinction is critical because a decision refusing an extension of time is one that this tribunal can review; a decision refusing to reinstate an application that has been dismissed after it has been withdrawn is not. 

4. It is true that the decision referred to the Applicant’s application being out of time and to “a threshold issue of whether or not there should be an extension of time to extend the time for [the Applicant] to make her request to have her application for review reinstated.”

5. It is clear, however, from the provisions of the CSRC Act that the decision was one to refuse reinstatement.

Part VIIA of the CSRC Act – SSAT - review of certain decisions of the Registrar

1. By s 89 of the CSRC Act, a person may apply to the SSAT for review of specified decisions of the Registrar.

2. Section 90 provides that an application for review must be made within 28 days of being notified of the Registrar’s decision. 

3. By s 91, if the period for applying for review has ended, a person may apply to the SSAT Principal Member for an extension of time.  An application for an extension of time must be in writing and must give reasons for failing to apply for the review within 28 days. Section 92 describes how an application for an extension of time is to be dealt with.

4. What is clear so far is that an application for an extension of time may be made in order to apply for review of a decision of the Registrar of the CSA.  A different procedure applies where a person seeks to reinstate an application that has been withdrawn.

5. Section 100A provides that a person may at any time notify the SSAT that their application for review is discontinued or withdrawn.  Where such notice is given, the SSAT Principal Member is taken to have dismissed the application: s 100A(2).

6. Section 100A(3) and (4) provide:

   (3) If the SSAT Principal Member dismisses an application under subsection (2), a party to the review may:

   (a) within 28 days after receiving notification that the application has been dismissed; or

   (b) within such longer period as the SSAT Principal Member, in special circumstances, allows;

   request that the SSAT Principal Member reinstate the application.

   (4) If the SSAT Principal Member considers it appropriate to do so, he or she may reinstate the application and give such directions as he or she considers appropriate in the circumstances.

7. A request for reinstatement under s 100A(3) is no more than that; it is not an application for review of a decision by the Registrar and nor is it an application for an extension of time under s 91.  The SSAT Principal Member has discretion to allow a party to seek reinstatement more than 28 days after a matter being dismissed but her power under s 100A(4) is to reinstate, not to grant an extension of time for the purposes of seeking review of a decision of the Registrar. 

8. The SSAT’s reference to a “threshold issue” did not make its decision one to refuse an extension of time under s 92.  Because the Applicant’s application for reinstatement was out of time, the SSAT Principal Member had to consider whether to nevertheless allow her to request reinstatement.  In the end, she decided she should do neither.

The Tribunal’s jurisdiction

1. The Tribunal has no general power to review decisions: it may only review decisions in relation to which jurisdiction has been conferred on it by an enactment:  Administrative Appeals Tribunal Act 1975, s 25.

2. The Tribunal has power to review a number of decisions made by the SSAT under the CSRC Act but nowhere in the Act is it given power to review a decision refusing to reinstate an application that has dismissed under s 100A(2).

Conclusion

1. The Tribunal has no jurisdiction to review the decision of the SSAT made on 6 November 2013 refusing to reinstate the Applicant’s application for review.

23.       I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

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Associate

Dated 7 February 2014