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

The Administrative Appeals Tribunal considered a request for a stay of a decision concerning the suspension of carer payment and carer allowance. The applicant, Mr Tran, had his payments suspended from 13 February 2024 after entering custody on 12 February 2024. The applicant sought a second review by the Tribunal and requested a stay of the suspension decision.

The primary legal issue before the Tribunal was whether to grant a stay of the operative decision to suspend the carer payment and carer allowance, pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth). This required the Tribunal to consider what constituted the "decision" for the purpose of a stay and whether granting a stay would be desirable to secure the effectiveness of the hearing and determination of the application for review.

The Tribunal determined that the operative decision for the purpose of a stay was the decision to suspend the payments, not a subsequent affirmation of that decision. However, the Tribunal found that granting a stay would serve no purpose. This was because Mr Tran had remained in custody for more than 13 weeks, resulting in the automatic cancellation of his carer payment and carer allowance by operation of law. The Tribunal noted that it would be more inclined to grant a stay if the applicant had an arguable case and had not been incarcerated or had since been released, neither of which applied in this instance. The Tribunal also agreed with a previous Member's finding that it lacked jurisdiction to review the subsequent cancellation decision.

Consequently, the Tribunal refused the applicant's request for a stay of the implementation of the reviewable decision.