Tsolacis and Secretary to the Department of Family and Community Services

[2002] AATA 445

DECISION AND REASONS FOR DECISION [2002] AATA 445

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/261
GENERAL  ADMINISTRATIVE DIVISION
  Re:         GEORGE TSOLACIS
  Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             4 June 2002
Place:            Melbourne

Decision:For reasons given orally at the hearing, the Tribunal decides that the decision dated 27 February 2002 is not reviewable by the Tribunal. In accordance with s42A(4) of the Administrative Appeals Tribunal Act1975 the Tribunal dismisses the application.

(sgd) G.D. Friedman
  Member
PRACTICE AND PROCEDURE - jurisdiction - Social Security Appeals Tribunal - decision by Registrar to dismiss application - whether decision reviewable 
Administrative Appeals Tribunal Act 1975 s25, s42A(4)
Freedom of Information Act 1982
Social Security (Administration) Act 1999 s172, s179

REASONS FOR DECISION

4 June 2002  G.D. Friedman, Member

1. This is an application by George Tsolacis (the applicant) for review of a decision dated 27 February 2002 by the Registrar of the Social Security Appeals Tribunal (SSAT) to dismiss an application by the applicant for review of a decision by Centrelink.

2. At the hearing on 4 June 2002 on the question of whether the Tribunal has jurisdiction to consider the application, the applicant represented himself and Ms C. McInnes, an advocate for Centrelink, represented the Secretary to the Department of Family and Community Services (the respondent).
   BACKGROUND

3. The applicant was receiving Newstart Allowance when he commenced the Intensive Assistance program with Ascendance Pty Ltd on 4 May 2000.  That program ended in November 2000.  The applicant was referred to Salvation Army Employment Plus.  In June 2001 he was referred to Direct Recruitment.  On 8 May 2001 he was told that he must sign an Activity Agreement for a 12-month period.  On 23 October 2001 he lodged an application with the SSAT for review of the decision. On 15 January 2002 the matter was listed for hearing but did not proceed.  On 27 February 2002 the Registrar of the SSAT informed the applicant that his application was dismissed because the applicant did not contact the Registrar by 26 February 2002 to arrange for a suitable date and time for a hearing before the SSAT.

4. On 14 March 2002 the applicant lodged an application with the Tribunal for review of the decision by the Registrar.  
   EVIDENCE

5. The applicant told the Tribunal that the decision to dismiss his application was contrary to the wishes of the SSAT when it adjourned his hearing on 15 January 2002.  He said that he gave an approximate date to the Registrar for the adjourned hearing, as an exact date could not be fixed at the time because he was pursuing an application for documents under the Freedom of Information Act 1982.  The applicant explained that he had been denied natural justice because on the date that the application was dismissed the Registrar was aware that relevant documents had not been made available.

6. The applicant produced a copy of a letter dated 25 February 2002 written by him to the Registrar in which he explained that the documents he received under his FOI request were incomplete, so that a hearing date could not be fixed.  In the letter he suggested that a hearing in about February 2003 might be appropriate.
   CONSIDERATION OF THE ISSUES

7. Under s25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) the Tribunal has power to review any decision in respect of which application is made under an enactment.

8. The applicant submitted that the Tribunal has jurisdiction to review all decisions made by the SSAT.  He said that in this case the SSAT had made the following decisions:

   (a) the SSAT adjourned the hearing listed for 15 January 2002 and then dismissed the application;

   (b)       the Registrar acted contrary to the authority of the SSAT; and

   (c)the Registrar dismissed the application when all requirements set by the SSAT had been met by the applicant.

9. Ms McInnes stated that the decision to dismiss the application lodged with the SSAT by the applicant was made under s172 of the Social Security (Administration) Act 1999 (the SS(A) Act) which provides that:

   Dismissal of an application

   (1)       If:

   (a)a person makes an application to the SSAT for review of a decision; and

   (b)the Executive Director is satisfied:

   (i)after having communicated with the person; or

   (ii)after having made reasonable attempts to communicate with the person and having failed to do so;

   that the person does not intend to proceed with the application;

   the Executive Director may dismiss the application.

   (2)       If the Executive Director dismisses an application under subsection (1), the application is taken to have been withdrawn at the time at which the application was dismissed.

10. Ms McInnes referred the Tribunal to s179 of the SS(A) Act which provides that:

    Review of decisions by AAT

    (1)       If:

    (a)a decision has been reviewed by the SSAT; and

    (b)the decision has been affirmed, varied or set aside by the SSAT;

    application may be made to the AAT for review of the decision of the SSAT.

    (2)       For the purposes of subsection (1), the decision made by the SSAT is taken to be:

    (a)where the SSAT affirms a decision—that decision as affirmed; and

    (b)where the SSAT varies a decision—that decision as varied; and

    (c)where the SSAT sets a decision aside and substitutes a new decision—the new decision;

Ms McInnes submitted that the Tribunal does not have jurisdiction to hear the application lodged by the applicant because the decision by the Registrar was a decision under s172 of the SS(A) Act and was not a decision under s179, for which jurisdiction would be possible under this section and s25 of the AAT Act.

1. In reaching its decision the Tribunal takes into account relevant documents and submissions made at the hearing. The Tribunal accepts the submission by Ms McInnes that the Tribunal has no general review power and may review only those decisions in relation to which it has been given specific jurisdiction by legislation. In this case a decision by the Registrar of the SSAT under s172 of the SS(A) Act to dismiss the application is not a decision that has been reviewed by the SSAT and affirmed, varied or set aside under s179 of the Act. Therefore there is no jurisdiction for the Tribunal to consider the application for review.
    DECISION

2. For reasons given orally at the hearing, the Tribunal decides that the decision dated 27 February 2002 is not reviewable by the Tribunal. In accordance with s42A(4) of the Administrative Appeals Tribunal Act1975 the Tribunal dismisses the application.

   I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision of:
   G.D.Friedman, Member

   (sgd)       Natalie Horwood
                 Clerk

   Date of hearing:  4 June 2002

   Date of decision:  4 June 2002
   Advocate for applicant:               Self-represented

   Advocate for respondent:            Ms C. McInnes, Centrelink