Tran v Singh

Case [2018] FCA 1512

FEDERAL COURT OF AUSTRALIA

Tran v Singh [2018] FCA 1512

File number: NSD 99 of 2018
Judge: GLEESON J
Date of judgment: 12 October 2018
Catchwords: SOCIAL SECURITY – whether to grant extension of time to appeal from decision of Administrative Appeals Tribunal to affirm decision that applicant’s newstart allowance was correctly cancelled – where applicant refused to enter Employment Pathway Plan required in accordance with Social Security Act 1999 (Cth) s 605(1), disqualifying himself from receipt of newstart allowance per s 603(1) – no error of law identified – application dismissed  
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 42C, 44

Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010) ss 18, 31

Social Security (Administration) Act 1999 ss 42B, 80, 593, 605

Social Security Act 1991 ss 593, 605
Cases cited:

Jackamarra (an Infant) v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Jamal v Secretary, Department of Social Services [2017] FCA 916

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
Date of hearing: 23 July 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 61
Counsel for the Applicant: The applicant appeared in person
Solicitor for the Respondent: Ms S He of Mills Oakley

ORDERS

NSD 99 of 2018
BETWEEN:

HUU LONG TRAN

Applicant
AND:

PRAVEEN SINGH

First respondent

SECRETARY, DEPARTMENT OF JOBS AND SMALL BUSINESS
Second respondent

JUDGE:

GLEESON J

DATE OF ORDER:

12 OCTOBER 2018

THE COURT ORDERS THAT:

1.Pursuant to r 9.05 of the Federal Court Rules 2011, the Secretary, Department of Jobs and Small Business be joined as a second respondent to the proceeding.

2.The application for an extension of time to appeal from the decision of the Administrative Appeals Tribunal dated 29 July 2016 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GLEESON J:

  1. This is an application for an extension of time to appeal from a decision of the Administrative Appeals Tribunal (“AAT”) dated 29 July 2016 (“AAT’s July 2016 decision”), affirming a decision of the Social Services and Child Support Division (“SSCSD”) of the AAT made on 10 February 2016 (“SSCSD decision”).

  2. The SSCSD decision affirmed a decision of an authorised review officer, an officer authorised to review decisions made by the Department of Human Services (now the Department of Jobs and Small Business) (“Department”) made on or about 16 November 2015 that the newstart allowance of the applicant (“Mr Tran”) was correctly cancelled from 29 January 2015.

  3. The main issue on the application was whether Mr Tran’s proposed appeal from the AAT’s July 2016 decision has any merit, because there may be a question of law arising in connection with the AAT’s conclusion that Mr Tran’s newstart allowance was correctly cancelled from 29 January 2015.

  4. By s 44(1) of the Administrative Appeals…

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Details
AGLC
Tran v Singh [2018] FCA 1512
Case
[2018] FCA 1512
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Mr Tran sought an extension of time to appeal the decision of the Administrative Appeals Tribunal (AAT) affirming the decision of the Social Security and Child Support Division (SSCSD) of the Department of Human Services to cancel his newstart allowance. Mr Tran had been receiving newstart allowance since 1998 but the payment was cancelled on 29 January 2015 after he refused to enter an Employment Pathway Plan (EPP) at a scheduled appointment with Mission Australia Employment Solutions, as required by s 605(1) of the Social Security Act 1999 (Cth). The AAT found that Mr Tran was not qualified to receive newstart allowance on 29 January 2015 because he refused to enter the EPP, and subsequently dismissed his appeal on 29 July 2016.

The court was required to decide whether to grant Mr Tran an extension of time to appeal from the AAT's decision. The primary legal issue was whether Mr Tran's refusal to enter the EPP on 29 January 2015 was a valid reason to disqualify him from receiving newstart allowance under s 603(1) of the SSA. The court had to consider whether there was an error of law in the AAT's decision or if the AAT had correctly applied the law to the facts. The court also had to consider whether there were exceptional circumstances that warranted an extension of time to appeal.

The court held that there was no error of law in the AAT's decision and dismissed Mr Tran's application for an extension of time to appeal. The court found that Mr Tran had not identified any error of law in the AAT's decision, and the AAT had correctly applied the law to the facts. The court also found that Mr Tran's refusal to enter the EPP was a valid reason to disqualify him from receiving newstart allowance under s 603(1) of the SSA. The court held that there were no exceptional circumstances that warranted an extension of time to appeal.

The court dismissed Mr Tran's application for an extension of time to appeal and ordered that the Secretary, Department of Jobs and Small Business be joined as a second respondent to the proceeding. The court also ordered that the application for an extension of time to appeal from the decision of the AAT dated 29 July 2016 be dismissed.

Orders

Orders of the court

1. Pursuant to r 9.05 of the Federal Court Rules 2011, the Secretary, Department of Jobs and Small Business be joined as a second respondent to the proceeding.

2. The application for an extension of time to appeal from the decision of the Administrative Appeals Tribunal dated 29 July 2016 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Section 605 of the SSA is entitled “Newstart Employment Pathways Plans – requirement”. Section 605(1) provides:(1)If a Newstart Employment Pathway Plan is not in force in relation to a person, the Secretary may require the person to enter into such a plan if:(a)the person is receiving, or has made a claim for, a newstart allowance; or(b)the Department is contacted by or on behalf of the person in relation to a claim for a newstart allowance.BACKGROUND TO APPLICATION FOR AN EXTENSION OF TIME Mr Tran started receiving newstart allowance in 1998. The AAT found that, on 29 January 2015, Mr Tran attended a “scheduled connection appointment” at Mission Australia Employment Solutions, in Bankstown, New South Wales. At the appointment, Mr Tran was informed that he was required to enter into an EPP which included a requirement for him to participate in “Work for the Dole”. Mr Tran refused to sign the EPP on the basis that the work would not be “within [his] preferred industry of financial services”, resulting in a “connection failure”. The SSCSD decision record states that it was undisputed that Mr Tran refused to enter an EPP on 29 January 2015. A Department record dated 12 February 2015 records a message from Mr Tran saying, relevantly (errors in original):On 29 January 2015, Mr Elvedin topcagic meeting me try again required enter Employment Pathway same before appeals to Tribunal. His has oppressive paid voluntary Work for Dole Incorrect Classification of job Seeker that is unsuitable for my skills, experience or qualification Management Accountability of Financial Services the work would require enlistment in the Defence Force or the Reserves. I have not required to satisfy the activity test it would wrong under “Social Security Law Act 1991” unsuitable employment offer, that may appeal to Centrelink on 16 July 2014 currently procedure ongoing appeal to “Administrative Appeals Tribunal (AAT)” process hold review and then made decision. By letter dated 28 February 2015, Mr Tran was informed that his newstart allowance had been cancelled from 29 January 2015 “because you have not reported” (“cancellation decision”). On 16 June 2015, pursuant to s 42C(2) of the AAT Act, the AAT set aside a decision of the Social Security Appeals Tribunal dated 3 December 2014 and, in substitution, decided that Mr Tran was entitled to be paid newstart allowance for the period 16 July 2014 to 27 August 2014 inclusive. By letter dated 16 November 2015, an authorised review officer (“ARO”) informed Mr Tran of the results of her review of the cancellation decision. The ARO determined that the newstart allowance was correctly cancelled from 29 January 2015 as Mr Tran was “not connected with a Job Services Australia provider and therefore [was] not qualified to receive newstart allowance”. The ARO also concluded that Mr Tran had a “connection failure” on 29 January 2015 and a “reconnection failure”, apparently by reason of a failure to attend a reconnection appointment on 17 or 18 February 2015. Subdivision C of Div 3A of the Administration Act concerns “connection failures” and “reconnection failures”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 3 March 2016, Mr Tran lodged an application for review of the SSCSD decision. In the documents lodged with the AAT for the review of the SSCSD decision, the Department noted, the sole issue to be considered was “[w]hether the Applicant’s Newstart Allowance was correctly cancelled from 29 January 2015”.AAT’s July 2016 decision At para 15 of its decision, the AAT identified the determinative issue as whether, on 29 January 2015, Mr Tran was qualified for payment of newstart allowance. At para 20, the AAT recorded Mr Tran’s statement that he refused to enter the EPP on 29 January 2015 because he considered that the work he was being offered was unsuitable for his particular skills and qualifications in financial services. At para 25, the AAT recorded that Mr Tran’s principal contention in written submissions appeared to be that:Mr Tran believes that “Work for the Dole” is unsuitable for his “particular skills, experience or qualification of Management Accountability and Financial Services Profession”. At paras 26 to 28, the AAT noted that s 593 of the SSA sets out the qualification requirements for newstart allowance, and noted the terms of ss 593(1)(c) and (e). At para 29, the AAT noted that s 605(1)(a) provides that, if a Newstart EPP is not in force in relation to a person, the Secretary may require the person to enter into such a plan if the person is receiving, or has made a claim for, a newstart allowance. At para 30, the AAT observed that a consequence of ss 593 and 605 of the SSA is that the Secretary may require a person to enter an EPP in order to qualify for newstart allowance. At paras 32 and 33, the AAT concluded:In my view, the fact that Mr Tran refused to enter an EPP on 29 January 2015 and in the subsequent 4 weeks means that he was not “prepared to enter” such a plan, and therefore, did not satisfy s 593(1)(c) of the Act. Also, he could not satisfy s 593(1)(e) of the Act. It follows that on 29 January 2015 Mr Tran was, prima facie, not qualified for newstart allowance. The AAT then considered the operation of Div 3A of the Administration Act in the particular circumstances. As stated in s 42B, as it stood at the time of the AAT’s July 2016 decision, the object of Div 3A is “to encourage people to participate in employment and engage with employment services. It is also the object of this Division to secure compliance with a person’s obligations and requirements in relation to participation payments, and to ensure that those who do not comply are re-engaged with employment services as quickly as possible”. This aspect of the AAT’s decision does not arise from the SSCSD decision, which did not make any finding of a “connection failure” or a “reconnection failure”. PROPOSED APPEAL Mr Tran’s application for an extension of time to appeal is supported by an affidavit affirmed by him on 18 January 2018. The available documents also include a draft notice of appeal received by the Court and stamped 1 February 2018.

Ratio Decidendi

Legal Principle Established

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