Uka v Secretary, Department of Family and Community Services

[2003] FCA 1396

FEDERAL COURT OF AUSTRALIA

Uka v Secretary, Department of Family and Community Services
[2003] FCA 1396

ADMINISTRATIVE LAW - social security – appeal from the Administrative Appeals Tribunal - decision against applicant for advance payment of disability support pension – applicant received an earlier advance payment less than 12 months before – earlier advance payment not repaid – applicant not qualified to receive another advance payment – no discretion to remove disqualification

Administrative Appeals Tribunal Act 1975 (Cth), s 44(1)
Social Security Act 1991 (Cth), s 1061A

JAMES MADUKA UKA v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
V 1024 of 2003

KENNY J
25 NOVEMBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1024 OF 2003

BETWEEN:	JAMES MADUKA UKA APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT
JUDGE:	KENNY J
DATE OF ORDER:	25 NOVEMBER 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application, in the nature of an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), be dismissed.

2.There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 1024 OF 2003

BETWEEN:	JAMES MADUKA UKA APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	KENNY J
DATE:	25 NOVEMBER 2003
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

1. This is an appeal, brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), from a decision of the Administrative Appeals Tribunal (“AAT”) given on 7 November 2003.

   factual background

2. The applicant is 46 years old and is a disability support pensioner.  In May 2003, he received an advance payment of $500 against future disability support pension payments.  Centrelink is recovering this amount at the rate of $38.50 per fortnight.  On 30 September 2003, the applicant again made an application to Centrelink for a further advance payment of $1,300.  Centrelink rejected this application because the applicant was not entitled to a further advance payment until 12 months had expired since his last advance payment in May 2003.  The applicant disagreed with this decision and requested a review.

3. On 1 October 2003, an authorised review officer affirmed the original decision. The applicant lodged an appeal with the Social Security Appeals Tribunal (“SSAT”). On 16 October 2003, the SSAT affirmed the decision under review. The applicant sought review of the SSAT’s decision in the AAT. On 7 November 2003, the AAT, constituted by Mr J R Handley, Senior Member, affirmed the decision under review. The applicant makes application to this Court under s 44(1) of the AAT Act, which provides that:

   “A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”

   the appeal

4. The applicant’s Notice of Appeal lists three errors by the AAT in the grounds of appeal:

   “(a)     Absence of discretion;

   (b)Personal security reasons (health, violence, threats connected with the decision etc);

   (c)       Severe financial difficulty.”

   The applicant seeks orders in the following terms:

   “(a)     that the original decision be overturned;

   (b)that the whole decision be completely reviewed, including its effects on my person, emotion and overall well-being.”

5. In his Notice of Appeal, the applicant relies on the following:

   “As the original decision is connected with my disability I therefore do request that the court consider the nature of my disability, including its source (diagnosis), origin, effects and damages so far sustained from that disability, plus the need for compensation if any and proper rehabilitation.

   I strongly believe, I am in a desperate situation to obtain the earliest possible date for this hearing, due to the fact that I am experiencing severe accommodation problems (almost non-existent).

   Serious exposure to adverse street talks and comments, commonly referred to as windblow and most time a serious hostile community.  Overwheming discriminatory attitudes including computer related discrimination and computer assisted sexual harassment.

   Lack of contacts and inability to re-establish ties with old friends and families.”

   the legislative framework

6. The Social Security Act 1991 (“the Act”) provides, in s 1061A, for an advance payment of a social security entitlement. Subsection 1061A(4) stipulates that a person is not qualified for an advance payment in the following circumstances:

   “(a)the maximum amount of advance payment to which the person would be entitled under Division 4 is less than $250; or

   (b)the person has received an advance payment, or an instalment of an advance payment, of a social security entitlement and has not fully repaid the advance payment; or

   (c)the person has received the amount of an advance payment in a single lump sum, or has received the first instalment of such an amount, on or after 1 January 1997, and the period of 12 months from the day the lump sum or instalment was paid has not elapsed; or

   (d)the person owes a debt to the Commonwealth (whether arising under this Act or not) that is recoverable under Part 5.2 by means of deductions from the person’s social security payment.”

   the aat’s decision

7. The AAT considered the circumstances in which the applicant made his application for an advance payment.  It considered the evidence before it, including the applicant’s evidence as to his personal circumstances.  The Tribunal referred to the applicant’s claims to experience social tension and to his claims that he had been the subject of discrimination with respect to employment, housing and socialising.  According to the Tribunal’s reasons for decision, the applicant told the Tribunal he was unable to manage his financial affairs and the pension was insufficient to meet day-to-day living expenses.  The applicant also suffered from problems associated with gambling.  The applicant informed the Tribunal that he believed the only means to resolve his financial and emotional difficulties was to leave Australia.

8. The AAT held that there was no discretion under s 1061A(4) to make the advance payment sought by the applicant in the circumstances that then existed. No error of law appears in this decision. The AAT considered all the material before it and asked itself the correct question as to whether the applicant was qualified for an advanced payment. The Tribunal answered this question by reference to the matters it was bound to consider and to no others.

9. By virtue of s 1061A(4), the applicant was not qualified for an advance payment. First, a period of 12 months had not elapsed from the date of the last advance payment in May 2003: see s 1061A(4)(c). Secondly, the applicant had not fully repaid the advance payment that had been made in May 2003: see s 1061A(4)(b). (This, it appears, remains the case.) By reason of s 1061A(4)(b) and (c), the applicant was disqualified from receiving a further advance payment. Section 1061A(4)(d) may also have prevented him from receiving such a payment.

10. It is apparent from the terms of s 1061A(4) that there is no discretion to make an advance payment to a person who is not qualified to receive such a payment. Notwithstanding the matters to which the applicant referred, including his personal security and financial difficulty, it was not open to Centrelink to make a further advance payment to him. As I sought to explain to the applicant at the hearing, s 1061A(4) deprives the decision-maker of any discretion to make an advance payment in the circumstances set out in s 1061A(4) of the Act. If any of the circumstances referred to in s 1061(4)(a) to (d) are shown to exist, then a person is disqualified from receiving an advance payment.

11. For these reasons, the appeal should be dismissed.

12. At the hearing of the application, the respondent explained that, whilst there appeared to be no provision in the Act that would assist the applicant directly in the way he sought, there were, perhaps, other matters to be considered to his benefit. I adjourned the hearing for discussions to occur between the applicant and representatives of the respondent. Counsel for the respondent subsequently informed me that those discussions had been fruitful and there was to be a further meeting with the applicant on 1 December at 12 o’clock. Counsel further informed the Court that the respondent was not pursuing an application for costs.

13. Accordingly, the appeal will be dismissed, with no order as to costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated:            25 November 2003

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Ms S Pryde, Australian Government Solicitor
Date of Hearing:	25 November 2003
Date of Judgment:	25 November 2003