Yao And Secretary, Department of Education, Employment and Workplace Relations

[2010] AATA 516

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 516

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1364

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Qing Quan Yao

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date29 June 2010

PlaceSydney

Decision For the reasons given orally at the conclusion of the Hearing on Tuesday 29 June 2010, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 this matter is DISMISSED.

................... [sgd].........................

M D Allen, Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart Allowance; eight-week preclusion period not imposed.  Outcome of proceedings would have no practical effect.  Application for review dismissed as frivolous and vexatious.

LEGISLATION

Social Security Act 1991 Ss 624, 629

Administrative Appeals Tribunal Act 1975 Ss42B(1)

CASES

Re Williams v Australian Electoral Commission and Anor (1995) 38 ALD 366

REASONS FOR DECISION

12 July 2010 Senior Member MD Allen  

1. At the conclusion of this hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision,

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:  .............................… [sgd].......................................

K. Lynch, Associate

Date of Hearing  29 June 2010
Date of Decision  29 June 2010
Date of Written Reasons  12 July 2010
Representative for the Applicant           Mr Yao (self)

Solicitor for the Respondent  Ms Sharma, Centrelink

Advocacy Services

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR ALLEN:    By application made the 3^rd day of April 2009, the Applicant sought review of a decision by the Social Security Appeals Tribunal.  The decision subject to review was a decision to impose on the Applicant an eight-week preclusion period relating to his Newstart Allowance. 

It is unnecessary for these reasons to canvas why the eight-week preclusion period was imposed.  This morning, Ms Sharma, who appears for the Respondent, informed me that in fact at no time has the eight-week preclusion period been imposed upon the Applicant.  In other words, to date he has not been penalised by withholding from him the money which would have been paid to him over an eight-week period.  There was apparently a fortnight period where some deductions were made, but they have been reimbursed. 

From the commencement of the academic year 2010, the Applicant has been in receipt of Austudy.  I am informed by Ms Sharma that the eight-week non-payment period of NewStart Allowance cannot be deducted from the Applicant’s Austudy. 

The net result is, whether the decision under review is affirmed or set aside, the Applicant will not suffer any advantage or disadvantage. He has been paid during the eight-week preclusion period and there no longer exists any mechanism by which that eight-week period payments can be recovered from him. Subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) states inter alia:

“Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious, dismiss the application.” 

As to what is frivolous and vexatious, this Tribunal consisting of the then President and Deputy Presidents Beaumont and Hill J said in Re Williams v Australian Electoral Commission and Another (1995) 38 ALD 366 at 374:

“It is difficult to categorise this case into any of the accepted heads of vexatiousness, even the collateral-purpose head does not sit easily with a situation where the applicant genuinely believes in the legitimacy of the collateral object which he is seeking.  Perhaps this provides a good reason for not stultifying the situations in which the proceedings will be found to be vexatious by requiring that they fall within preordained categories.  In this case, the outcome of the proceedings, whether successful to the applicant or otherwise, will be devoid of any practical effect.”

As far as I can ascertain, and I accept what Ms Sharma has told me, whatever the outcome of today’s proceedings might be, they will be of no practical effect to the Applicant or, indeed, to the Respondent. Consequently, pursuant to subsection 42B(1) of the AAT Act, this matter is DISMISSED.