YITBAREK And COMMONWEALTH OMBUDSMAN

[2011] AATA 503

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 503

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2429

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MEKONEN YITBAREK

Applicant

And COMMONWEALTH OMBUDSMAN

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date7 July 2011

PlaceMelbourne

Decision UPON APPLICATION of the applicant lodged on 21 June 2011 for review of a decision of the respondent AND UPON HEARING the parties IT IS DECIDED that the Tribunal has no jurisdiction in this matter.

(sgd) John Handley

Senior Member

PRACTICE AND PROCEDURE – Jurisdiction – decision by Commonwealth Ombudsman to cease investigation – whether reviewable decision.

Ombudsman Act 1976

REASONS FOR DECISION

22 July 2011 Senior Member Mr John Handley

1.On 21 June 2011, Mr Yitbarek lodged an application seeking review of a decision made by a review officer of the Commonwealth Ombudsman (the Ombudsman) on 11 August 2009.  The review officer decided to affirm a decision to discontinue an investigation into a complaint made by Mr Yitbarek against the Australian Taxation Office.

2.The application was listed for an interlocutory hearing on 7 July 2011 to determine whether the Tribunal did have jurisdiction to review the decision made by the review officer on 11 August 2011.

3.Mr Yitbarek appeared without representation and presented his submissions with the assistance of an interpreter.  Ms Hurley appeared on behalf of the respondent.  At the conclusion of the submissions, I delivered oral reasons.  I decided that the Tribunal did not have jurisdiction to review the decision made by the review officer.

4.Mr Yitbarek requested written reasons for that decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

5.The Tribunal’s power to review decisions is found in s 25 of the AAT Act and specifically in sub-sections (1) and (4). In broad terms, those sub-sections provide that the Tribunal has power to review decisions only where it is authorised to do so by another enactment. That is to say, the Tribunal does not have a power to review all decisions made by all Commonwealth departments, agencies or instrumentalities. For example, when it reviews decisions made by Centrelink, its power to do so is found in section 179 of the Social Security (Administration) Act 1999. If it is reviewing decisions made by the Repatriation Commission, the power to do so is found in section 175 of the Veterans’ Entitlements Act 1986.

6.There is nothing within the Ombudsman Act 1976 (the Act) which provides that applications may be made to the Tribunal to review decisions made by the Ombudsman.  There are provisions that allow the Tribunal to give advisory opinions.  However, these opinions will only be given if the Ombudsman or a principal officer refers a specific question to the Tribunal in accordance with sections 10A or 11 of the Act.  These provisions do not apply in this instance.

7.Accordingly, the Tribunal does not have jurisdiction to review decisions made by the Ombudsman.

8.It is for those reasons that I decided on 7 July 2011 that the Tribunal was not empowered to review the decision made by the review officer on 11 August 2009.

I certify that the eight [8] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

Signed:          Olympia Sarrinikolaou

Legal Assistant

Date of Hearing  7 July 2011
Date of Decision  7 July 2011
Date of written reasons                22 July 2011
Advocate for the Applicant          Self-represented

Advocate for the Respondent       Ms G. Hurley, Commonwealth Ombudsman