FEDERAL COURT OF AUSTRALIA

Lui v Secretary, Department of Education, Employment and Workplace Relations [2011] FCA 1482

THE COURT ORDERS THAT:

1.    The appeal be dismissed as incompetent.

2.    The applicant pay the respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    In this proceeding, the applicant seeks to appeal the decision of the Administrative Appeals Tribunal (the AAT) given on 25 October 2011. The respondent contends the appeal is incompetent on the basis that the notice of appeal filed by the applicant does not disclose a question of law as required by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act).

2    I shall briefly summarise the background facts. On 23 June 2011 the applicant was granted a Newstart allowance by Centrelink. Very soon after, however, an officer within Centrelink decided to cancel the allowance. It was suggested by the respondent that shortly thereafter the applicant sought to have the decision to cancel the allowance reconsidered. Whether or not any request for the reconsideration of that particular decision was made is not clear. In any event, nothing turns on this. The applicant lodged an application for review of the decision cancelling his Newstart allowance with the Social Security Appeals Tribunal (the SSAT). On 17 August 2011, the SSAT decided that it did not have jurisdiction to review the Centrelink decision, as internal review had not been sought.

3    On 26 August 2011, the original decision was affirmed, following internal reconsideration within Centrelink.

4    On 19 September 2011, the applicant lodged an application with the AAT to review the decision of the SSAT. On 25 October 2011, the AAT held that it lacked jurisdiction to review the original decision.

5    In explaining why it lacked jurisdiction, the AAT referred to s 129(1) and 135(1) of the Social Security Administration Act 1999 (the Administration Act) which refer to the right of a person affected by a decision made by an officer under the social security law to apply to the Secretary for a review of that decision. Upon receipt of such an application, “the Secretary, the Chief Executive Centrelink or an authorised review officer” must then review the relevant decision.

6    The AAT also referred to s 142 of the Administration Act, which relevantly provides that if a decision has been reviewed by the Secretary, the Chief Executive Centrelink or an authorised review officer, and has been affirmed, varied or set aside, a person whose interests are affected by the latter decision may apply to the SSAT to have such a decision reviewed.

7    In the present case, the SSAT held that it lacked jurisdiction to deal with the applicant’s complaints, because an authorised review officer had not reviewed the original decision prior to the applicant lodging his application for review. The AAT then noted that under s 179 of the Administration Act, it only had jurisdiction to review a decision made under social security law after such a decision had been reviewed and affirmed, varied or set aside by the SSAT.

8    The notice of appeal filed by the applicant does not attempt to indentify any error of law affecting the decision of the AAT, whereby it held that it did not have jurisdiction to review the decision cancelling the applicant’s Newstart allowance. Indeed, that part of the notice of appeal, in which questions of law are to be identified, has been left blank. The orders sought by the applicant, as specified in the notice of appeal, are as follows:

1.    The applicant requests the Federal Court of Australia to declare that a contract exists between the parties.

2.    The applicant requests the Federal Court of Australia to order the respondent to pay the applicants costs.

9    The grounds relied upon raise various factual matters in a discursive manner, and are directed to the question of whether the applicant has breached a contract, which the applicant claims was made between the Commonwealth and himself. They do not identify any relevant question of law affecting the AAT’s decision of 25 October 2011, holding that, under the relevant statutory framework, the AAT lacked jurisdiction to review the relevant decision.

10    In addition to filing his notice of appeal, the applicant has filed a number of affidavits and written submissions. These include a written submission which I directed the applicant to file for the purpose of providing him with a further opportunity to identify any error of law affecting the AAT’s decision. Again, during the course of oral submissions before me today, the applicant was invited on more than one occasion to identify any error of law that he says affected the AATs decision. Apart from presenting arguments directed to the question of whether or not there was a contract made between the Commonwealth and himself, the applicant has not advanced any meaningful argument which would enable me to find that his appeal is competent or that it has any prospects of success.

11    In the result, I am satisfied that the appeal does not give rise to any relevant question of law, and it is therefore incompetent. The appeal will be dismissed with costs.

Associate:

Dated:    22 December 2011