Yan and Secretary, Department of Social Services
[2014] AATA 294
•14 May 2014
[2014] AATA 294
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5366
Re
Jun Yan
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin QC, Deputy President
Date 14 May 2014 Place Sydney The application is dismissed for lack of jurisdiction.
........................[sgd]................................................
The Hon. Brian Tamberlin QC, Deputy President
CATCHWORDS
SOCIAL SECURITY – Appeal against refusal to extend time – Application made out of time – Whether Tribunal has jurisdiction to determine the matter – Tribunal only empowered to review decisions reviewed by the SSAT – No review undertaken by SSAT - Proceedings dismissed for lack of jurisdiction
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Boscolo v Secretary v Department of Social Security (1999) 90 FCR 531
Hunter Valley Development Pty Ltd v Minister for Home Affairs and the Environment (1984) 58 ALR 305
Kerferd and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 675Mason and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Hamer [2008] AATA 1105
REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President
14 May 2014
INTRODUCTION
The applicant seeks review of a decision by the Social Security Appeals Tribunal (SSAT) made on 25 September 2013.
The decision was not to proceed with an application for review because the application was not made within the 13 week period allowed under s111A of the Act entitled A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (‘The Family Act’) which provides:
S111A Review applications--time limits applicable to review by the SSAT of certain decisions
(1) Subject to subsection (2), a person affected:
(a) by a decision of a decision reviewer under Division 1 to affirm, vary or set aside a decision other than an excepted decision; or
(b) if a decision reviewer has decided, under Division 1, to set aside a decision (other than an excepted decision) and substitute another decision--by the decision so substituted;
must apply under section 111 for review by the SSAT of the decision affecting that person no later than 13 weeks after the person is notified of the decision of the decision reviewer.
(2) The SSAT may, if it determines that there are special circumstances that prevented the person from making an application under section 111 for review of a decision of the kind referred to in subsection (1) within the 13 weeks mentioned in subsection (1), permit a person to make the application after the end of that period and within such further period as the SSAT determines to be appropriate. (Emphasis added)
It is common ground that the application was made out of time and the SSAT was not satisfied that there were ‘special circumstances’ which prevented an application being made within time and accordingly the application was dismissed. The applicant seeks to appeal to this Tribunal against the SSAT decision not to extend time.
The respondent submits that this Tribunal has no jurisdiction to review the decision of the SSAT refusing to hear the application.
The SSAT considered the expression ‘special circumstances’ meant that there must be circumstances which, although not “unique”, are outside the usual run of events and, in so doing it followed the Federal Court decision in Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 (see also Boscolo v Secretary v Department of Social Security (1999) 90 FCR 531.
The jurisdiction of this Tribunal to review SSAT decisions is provided for in sections 179 and 181 of the Social Security (Administration) Act 1999 (Cth) (‘The SS Act’).
These sections provide:
179 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; and
(d) where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT—the directions or recommendations of the SSAT.
181 Review by AAT limited to decisions reviewed by SSAT
The AAT may only review a decision that has been reviewed by the SSAT. (Emphasis added).
The position therefore is that this Tribunal can only review a decision which has been reviewed by the SSAT and been affirmed, varied or set aside or sent back to the Secretary.
The refusal to extend the time in respect of the decision in Mr Yan’s substantive application was not a decision which has been reviewed by the SSAT. It was a decision made by the SSAT but it was not a “review” of any decision made by another decision-maker.
There is an important underlying distinction between a decision made by a person or body and a decision reviewed by a person or body. This is because a “review” requires an examination or reconsideration of the decision being considered whereas the “making” of a decision by a body does not necessarily involve any such examination or reconsideration.
The Oxford English Dictionary defines the expression ‘review’ as involving the act of looking over something again with a view to correction or improvement; a reconsideration of something; or a retrospective survey of past actions or the inspection or examination of a matter for a second time.
Under section 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘The Act’), this Tribunal has power to review any decision in respect of which an application is made to it under any enactment. Therefore to determine whether there is jurisdiction it is necessary to consider and apply the provisions of the legislation conferring the jurisdiction.
In this case we are concerned with the Family Act and the SS Act provisions referred to above which make it clear that it is only where there has been a review carried out by the SSAT that there can be an application for review to this Tribunal. The use of the word “only” makes it clear that the right of review is dependent on the existence of a review.
The time limitation provisions are directed to ensure that there is certainty in the administration process and it is therefore important that prescribed time limits should not be departed from lightly. There is a legitimate public expectation that time limits set out in statutory provisions will be adhered to so that interested parties will be able to manage their affairs, secure in the expectation that challenges will not be made and the position reversed: as Wilcox J pointed out in Hunter Valley Development Pty Ltd v Minister for Home Affairs and the Environment (1984) 58 ALR 305.
Reference was made in submissions to some general observations of President Downes J in Fuad and Telstra Corporation Limited [2004] AATA 1182, where his Honour said:
“All matters put before the decision-maker as part of a claim under the Act are before this Tribunal for review when an application for review is made, even though the decision may not address them in any particular way.”
The legislation, circumstances and subject matter “under consideration” in that case were quite different from those in the present case. It was not a case where there was an application for an extension of time. The above general observations were made in another different context and do not assist the Applicant in the present case because the decision by the SSAT not to hear the matter in this case was not a decision in respect of which the original claim for the baby bonus was reconsidered and the substantive decision was not argued on the merits before the original decision-maker.
I note that in several previous decisions of the Tribunal it has been held that this Tribunal does not have jurisdiction in relation to applications which have not been reviewed by the SSAT: see Mason and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Hamer [2008] AATA 1105; Kerferd and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 675, for reasons substantially in accordance with my reasons in this case.
Accordingly, the application by Mr Jun Yan before this Tribunal is dismissed for lack of jurisdiction for the above reasons given.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of The Hon Brian Tamberlin QC, Deputy President, ........................................................................
Associate
Dated 14 May 2014
Date of hearing 22 April 2014 Applicant In person Solicitors for the Respondent Department of Human Services
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