Tobin and National Disability Insurance Agency - [2023] AATA 318

Tobin and National Disability Insurance Agency [2023] AATA 318 (8 February 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/2972
Re:Emma Tobin
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision

Tribunal:The Honourable Pru Goward AO, Senior Member
Date:8 February 2023
Place:Sydney

The Tribunal dismisses the Applicant’s request for a review of a decision under subsection 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

The Honourable Pru Goward AO, Senior Member

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME (NDIS) – No reasonable prospect of success – failure to attend hearing – residency requirements – temporary visa – special category visa – Australian resident

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Migration Act 1958 (Cth)

Cases

Kristofferson and Secretary, Department of Social Services [2018] AATA 524

REASONS FOR DECISION

The Honourable Pru Goward AO, Senior Member

8 February 2023

INTRODUCTION

Born on 28 June 1980, the Applicant, Ms Emma Tobin, is a 42-year-old female who applied for access to the National Disability Insurance Scheme (NDIS).
On 15 February 2022, a delegate of the Chief Executive Officer of the Respondent made a decision under subsection 20(1)(a) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) that the Applicant did not meet the access requirements under section 21 of the NDIS Act (the reviewable decision).
On 22 February 2022, the Applicant requested an internal review of the reviewable decision under subsection 100(2) of the NDIS Act.
On 1 April 2022, an internal review decided under subsection 100(6) of the NDIS Act to confirm the reviewable decision (internal review decision).
On 11 April 2022, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the internal review decision.
The Applicant submitted that the Tribunal would dismiss the application for review because such application has no reasonable prospect of success under subsection 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).
The Applicant failed to appear at the interlocutory hearing listed, with her agreement, for 31 January 2023.
ISSUES
Section 23 of the NDIS Act sets out the criteria for access to the NDIS. Specifically, a person, known as the prospective participant in the NDIS, must meet the residence requirements.
Pursuant to subsection 23(1) of the NDIS Act, the residency requirements stipulate that the person (in this case, the Applicant) must be an Australian resident holding either an Australian citizenship, a permanent visa or a protected special category visa (‘SCV’).
The Applicant provided evidence that she holds a New Zealand Citizen Family Relationship (Temporary) (subclass 461) visa and a UK passport, which remains valid until 13 July 2025.
The NDIA is unable to waive the residency requirements, as prescribed by legislation.
The primary issue here is whether the Tribunal is able to dismiss this application for review on the grounds of subsection 42B(1)(b) of the AAT Act, where the application has no reasonable prospect of success.
Notably, the Applicant has delayed these proceedings since 23 June 2022, when the first telephone conference was listed. It was then vacated because the Applicant was admitted to Gordon Private Hospital from 12 May 2022 to 17 June 2022. The telephone conference was then relisted for 9 September 2022. At the Applicant’s request, the hearing was adjourned for four weeks. On 8 October 2022, the Applicant advised that she was currently in hospital and due to commence a pain management program. She asked for the adjourned hearing to be held in December 2022. On 9 November 2022, the Respondent provided available dates for a hearing in December 2022, but the Applicant advised that she would be away and sought a hearing date in January 2023. On 24 November 2022, the Respondent advised the Registry that the date of 31 January 2023 had been agreed upon. The Applicant was copied into that correspondence. On 13 December 2022, the Applicant advised that the period between late January and February would suit her schedule better but her email did not indicate that she would be unavailable on the hearing date of 31 January 2023. Therefore, the hearing commenced on 31 January 2023, but the Applicant failed to appear without prior notice. Overall, three conferences did not materialise as the Applicant failed to attend and a dismissal application was also vacated on medical grounds.
A further issue is whether the Tribunal can dismiss this application on the grounds of non-attendance pursuant to subsection 42A(2) of the AAT Act.
BACKGROUND
The Applicant has provided evidence to the NDIA that she is an Irish citizen holding a UK passport. Such evidence has been provided to the Tribunal and has not been disputed.
The Applicant stated that she has been living in Australia for over 11 years and notwithstanding her inability to find a job due to injury, advised that she is ineligible for Centrelink or Disability benefits as a result of her visa.
The Applicant described her visa as temporary but considered herself as a permanent resident.
The Applicant has sought support from the NDIS in the absence of family and a social network in Australia.
The Applicant appears to have suffered from physical injuries but has also required in-hospital mental health services at Gordon Private Hospital and pain management.
RELEVANT LEGISLATION AND POLICY
Section 23 of the NDIS Act requires that NDIS applicants must meet the residence requirements. For completion, these are met if the applicant:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a [SCV] holder who is a protected SCV holder; and
(c) satisfies the other requirements that are prescribed by the National Disability Insurance Scheme rules.
Section 9 of the NDIS Act stipulates that a permanent visa has the meaning in the Migration Act 1958 (Cth) (‘Migration Act’) and a SCV also has the meaning in the Migration Act.
Subsection 30(1) of the Migration Act provides that a permanent visa allows the person to remain in Australia indefinitely.
Subsection 32(2) of the Migration Act provides that:
a criterion for a special category visa is that the Minister is satisfied the applicant is:
(a) A non-citizen:
(i)who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and
(ii)is neither a behaviour concern non-citizen nor a health concern non-citizen…
Subsection 42B(1)(b) of the AAT Act allows the Tribunal to dismiss an application without further hearing if the application has no reasonable prospect of success.
Subsection 42A(2) allows the Tribunal to dismiss an application on grounds of non-attendance, either in person or by a representative at a directions hearing.

RELEVANT CASE LAW

Regarding subsection 42B(1)(b) of the AAT Act, the Respondent relies upon Kristoffersen and Secretary, Department of Social Services [2018] AATA 524. This case has drawn upon several other cases to, in the Respondent’s words, “succinctly state[d] the parameters [of that power] to comprise of the following:
(a) The power to summarily dismiss a proceeding must be attended with caution and not exercised lightly;
(b) The test of “no reasonable prospect success” sets a higher standard than that followed under the previous form of s 42B(1), where the power to dismiss was limited to an application that the Tribunal was satisfied as being frivolous or vexatious;
(c) For the Tribunal to be satisfied of “no real prospect” of success of a given application, there must exist “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to [hearing] in the ordinary way”;
(d) Reaching (or not reaching) the “no prospect of success” standard involves an assessment of an application’s merits to ascertain whether it can reasonably sustain any reasonable contention or line of argument.
(e) The threshold of satisfaction of the “no prospect of success” standard is not reached if the Tribunal apprehends that it is unlikely that an Applicant will succeed on a question of law or fact (or both).”
The Tribunal accepts that these are relevant and appropriate considerations, or parameters, if the Tribunal is to be satisfied that there is no reasonable prospect of success, based on the relevant law and facts of the Applicant’s case.
The Applicant has provided no submissions, including reference to alternative case law upon which she seeks to rely.
Regarding the Tribunal’s power to dismiss the application on grounds of non-attendance by the Applicant under subsection 42A(2) of the AAT Act, as the Respondent has not made submissions on these grounds, the Tribunal will therefore consider the dismissal only on the facts of the case.
EVIDENCE
The Applicant contends that she has been an Australian resident for eleven years. The Respondent accepts this claim and therefore the Tribunal finds that the Applicant meets the requirements as stipulated in subsection 23(1)(a) of the NDIS Act, that is, she resides in Australia.
The Applicant does not dispute the fact that she is not an Australian citizen. Her UK passport expires on 13 July 2025. This is an usual test of citizenship and she failed to provide an Australian passport as proof of dual citizenship. The Tribunal consequently considers that there is no evidence that the Applicant is an Australian citizen.
The Respondent submits that the Applicant does not satisfy subsection 23(1)(b)(ii) of the NDIS Act as the Applicant is not a holder of a permanent visa. Subsection 30(1) of the Migration Act relevantly provides that a permanent visa allows a visa holder to remain indefinitely in Australia.
The Applicant does not dispute the fact that her visa is temporary. In her application for review, she says that she is ‘on a temporary visa (461 visa which I applied for on my own rights)’ and admits that she is 'not eligible for Centrelink or Disability benefits due to [her] visa type'. Rather, she contends that she is a long-term resident, in need of support ‘to get back on her feet’. The Applicant also argues that ‘I would consider myself a permanent resident-so the lines are blurred about my status’.
The Applicant advises that she was granted a temporary visa (461) allowing her to reside in Australia. The Applicant contends, despite her official visa status, that she is a permanent resident because she has lived in Australia for 11 years and cannot ‘physically’ return to Ireland.
The Tribunal finds that there is no evidence that the Applicant has a permanent visa to reside in Australia.
The Respondent contends that there is no evidence that the Applicant holds a SCV and is a protected SCV holder. In the Respondent’s Submissions on Dismissal of Application pursuant to subsection 42B(1)(b), it is contended that :
Section 9 of the NDIS Act relevantly provides that a person is a protected SCV holder if:
(a) the person was in Australia on 26 February 2001, and was a [SCV] holder on that day; or
(b) the person had been in Australia for a period of, or for periods totalling, 12 months during the 2 years immediately before 26 February 2001, and returned to Australia after that day.
The Applicant has stated that she has been living in Australia for 11 years. However, she would nonetheless still not fall within this category as no evidence establishes that she arrived in Australia or on before 26 February 2001, pursuant to section 9 of the NDIS Act, nor that she held a SCV at that time.
The Respondent submits that the Tribunal could not be satisfied that the Applicant was a SCV holder on 26 February 2001, or had been in Australia for periods totalling 12 months immediately before 26 February 2001, and returned to Australia after that date to satisfy subsection 23(1)(b)(iii) of the NDIS Act.
The Applicant makes no claim to have held a SCV.
The Tribunal finds that there is no evidence that establishes that the Applicant has a SCV which would entitle her to remain in Australia indefinitely.
The Applicant failed to appear at the interlocutory hearing scheduled on 31 January 2023, which was agreed upon in December 2022. The Tribunal notes that the Applicant had previously sought, on medical grounds, to delay a hearing or not to appear at a scheduled conference on four previous occasions.
The Tribunal finds that the Applicant failed to appear at the interlocutory hearing scheduled for 31 January 2023.
CONCLUSION
Although the Applicant meets the requirements of subsection 23(1)(a) of the NDIS Act, having found that she resides in Australia, in the absence of evidence that the Applicant meets the three residency requirements of subsection 23(1)(b) of the NDIS Act, the Tribunal concludes that it is not necessary to proceed to a full hearing in this matter. Substantively, the Tribunal is satisfied that, where, as identified in Kristoffersen and Secretary, Department of Social Services [2018] AATA 524, that ‘the Tribunal apprehends that it is unlikely that an Applicant will succeed on a question of law or fact (or both)’, such requirements have been satisfied.
Further, as the Applicant did not attend the interlocutory hearing scheduled for 31 January 2023, the Tribunal consequently dismisses her application under subsection 42A(2), noting that this had not been sought by the Respondent.
DECISION
The Tribunal dismisses the application for review of the reviewable decision under subsection 42B(1)(b) of the AAT Act.
I certify that the preceding 45
(forty five) paragraphs are a
true copy of the reasons for
the decision herein of the
Honourable Pru Goward
AO, Senior Member

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

Associate

Dated: 8 February 2023

Date(s) of hearing: 31 January 2023

Applicant: Emma Tobin

Solicitor for the Respondent: Ms Jacky Vetter, HWL Ebsworth Lawyers