Theo and Secretary, Department of Family and Community Services

[2006] AATA 1126

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
QUEENSLAND DISTRICT REGISTRY		NO. Q208 OF 2006
BETWEEN:	SOLON THEO Applicant
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Respondent
MEMBER:	THE HONOURABLE JUSTICE GREENWOOD
DATE OF ORDER:	23 NOVEMBER 2006
WHERE MADE:	BRISBANE

REINSTATEMENT DECISION [2006] AATA 1126

THE TRIBUNAL:

1.Pursuant to Section 42A(10) of the Administrative Appeals Tribunal Act 1975, the Tribunal reinstates Application No. Q208/2006, Solon Theo v Secretary, Department of Family and Community Services and directs that the application be listed for further argument at 10.00am on Friday, 1 December 2006 as to the form of order to be made arising out of the Tribunal’s conclusions and reasoning consequent upon the hearing of the application for review, reflected in the Reasons for Decision of the Tribunal published on 13 November 2006. 

CATCHWORDS

SOCIAL SECURITY – Reinstatement of dismissed application.

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

1. On 13 November 2006, the Tribunal made a decision arising out of a hearing of an application made to the Tribunal by Mr Solon Theo for review of a decision of the Respondent to refuse Mr Theo a social security pension in the form of an age pension pursuant to the provisions of the Social Security (Administration) Act 1999 (Cth) (‘Administration Act’) and the Social Security Act 1991 (Cth).

2. The general administration of the ‘social security law’ (s 5, Administration Act) including claims made for the grant of social security payments is vested, subject to the direction of the Minister, in the Secretary of the Department of Family and Community Services. 

3. The decision of the Tribunal is in these terms:

   ‘THE TRIBUNAL:

   Dismisses Application No. Q2004/823 remitted to the Tribunal by order of Spender J for reconsideration (Theo v Secretary, Department of Family and Community Services [2006] FCA 279), now bearing Application No. Q208/2006.’

4. The decision of the Tribunal was made in the light of written reasons also published on 13 November 2006. 

5. The Tribunal’s decision to dismiss Mr Theo’s application in the light of the exposed Reasons for Decision was intended to give effect to or affirmation of the decision the subject of the application for review. The operation of the decision under review, having regard to s 41(1) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), was not affected by Mr Theo’s application to the Tribunal for a review of the decision and nor did the application to the Tribunal prevent the taking of action to implement the decision.

6. However, the Tribunal considers the decision of the Tribunal together with paragraph 45 of the Reasons for Decision reflect an error in the sense that the Tribunal in exercising the powers and discretions conferred by the relevant enactment on the person who made the decision is directed, having regard to the conclusions reached and reasons identified in the Reasons for Decision, to ‘make a decision in writing (a) affirming the decision under review’ (s 43(1)(a)). A decision to dismiss Mr Theo’s application for review notwithstanding the extant character of the decision under review of the Respondent by force of s 41(1) of the AAT Act, does not expressly, consistent with s 43(1)(a) of the AAT Act, provide for an affirmation of the decision under review.

7. Accordingly, pursuant to s 42A(10) of the AAT Act, the Tribunal reinstates Application No. Q208/2006 and makes the following direction. The application is to be listed for further argument as to the form of order to be made arising out of the Tribunal’s conclusions and reasoning consequent upon the hearing of the application for review of the Respondent’s decision, reflected in the Reasons for Decision of the Tribunal published on 13 November 2006.

8. Section 42A(10) of the AAT Act is in these terms:

   ‘If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.’

9. The reinstated Application is to be listed at 10.00am on Friday, 1 December 2006. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:       23 November 2006