Federal Court of Australia

Snow v Secretary, Department of Social Security [2024] FCA 608

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    Prior to 18 May 2010, the applicant was a beneficiary, along with others, of a discretionary trust known as the Mardick Trust established by his father. On 18 May 2010, the applicant became the sole trustee and sole beneficiary of the Trust.

2    The applicant was granted an Age Pension on 15 January 2010, with effect from 23 December 2009.

3    On 15 August 2017, the applicant was notified of a decision by an officer of the Department of Human Services to reduce the applicant’s Age Pension entitlement as a result of income received from the Trust. The decision was subsequently affirmed by an authorised review officer of the Department on 13 September 2017.

4    Following a request for review, the decision was affirmed by the Social Security and Child Support Division of the Administrative Appeals Tribunal on 1 June 2018.

5    The applicant lodged an application for review in the General Division of the Tribunal. On 3 March 2022, the Tribunal set aside the decision and ordered that the matter be remitted to the Department with a direction that any pension arrears be calculated as from August 2017 and paid to the applicant in accordance with the Tribunal’s reasons.

6    On 31 March 2022, the applicant commenced this appeal from the Tribunal’s decision pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

7    It was central to the applicant’s case before the Tribunal that he was entitled to arrears from a much earlier time than August 2017. It is that part of the outcome that he challenges in this Court under s 44 of the AAT Act.

8    At the conclusion of the first day of hearing, the applicant was granted leave to file further written submissions (amended submissions). The applicant filed his amended submissions on 21 March 2023, and also applied to be heard orally on those submissions.

9    On 23 May 2023, the applicant filed two interlocutory applications and two supporting affidavits affirmed that same day, annexing a second supplementary notice of appeal and further supplementary amended submissions.

10    On 25 May 2023, the applicant filed another further interlocutory application together with a supporting affidavit in which he sought leave to adduce further evidence in the form of documents.

11    At the resumed hearing, no objection was taken by the respondent to the filing of the second supplementary notice of appeal nor the further supplementary amended submissions and leave was granted accordingly. The respondent however, opposed the adducing of further evidence and the applicant’s application to do so was refused.

12    After the hearing, on 16 June 2023, the applicant filed and served post-hearing submissions.

13    It is for the reasons which follow, that the appeal is dismissed.

background

14    On 13 April 1984, the applicant’s father established the Trust of which there were several beneficiaries. Following the death of his parents, and subsequent litigation in the Supreme Court of South Australia, a Deed was executed in 2009 by which the applicant and his two siblings entered into a settlement agreement. The result of that Deed was that from 18 May 2010, the applicant became both the sole beneficiary and the sole trustee of the Trust.

15    On 29 May 2017, the applicant lodged financial statements for the Trust for the 2015/2016 financial year with the Department following which an officer of the Department made the decision based on the 2016 attributed income of $20,454 from the Trust.

The Tribunal’s decision

16    In a preliminary ruling dated 29 October 2021, the Tribunal found that the applicant was entitled to payment of his pension arrears from August 2017 onwards.

17    In reaching that conclusion, the Tribunal noted that the respondent had conceded that because the applicant was both the sole beneficiary and the sole trustee of the Trust, the Trust became “invalid” on 18 May 2010. The Tribunal accepted that concession on the basis that it is a principle of trust law that a sole trustee may not hold property in trust simply for himself or herself.

18    When the applicant applied for his pension in 2009, a 100% interest in the assets of the Trust was attributed to him by Centrelink on the basis the Trust was valid and enforceable. The Tribunal Member noted as from the grant of pension, including after 18 May 2010, that financial statements for the Trust were prepared on an annual basis, and that the applicant believed that the Trust continued to exist.

19    The Tribunal Member summarised the applicant’s evidence before the Tribunal to the effect that in 2014 the applicant spoke with a “complex assessment officer” from Centrelink as he was concerned at that time that he might not be receiving all of his pension entitlement. The discussion led to no change in the pension amount the applicant was paid and he did not take any action formally to seek an internal review of the level of pension he was receiving: Reasons [23]-[25].

20    In 2015, the applicant had planned to take the matter up again with Centrelink but decided not to. In August 2017, he formally asked for an internal review for the first time.

21    In 2018, the Trust was dissolved, and from that point on the applicant was paid his pension entitlement on the basis that all assets formerly held by him as trustee of the Trust were now held by him in his own right.

The issues before the Tribunal

22    The Tribunal Member identified the issues before the Tribunal as being:

(1)    How far back the Tribunal might extend its jurisdiction in its review;

(2)    What effect, if any, did the extinguishment of the Trust have on the applicant’s pension entitlements;

(3)    Whether the Trust was an “exempt lump sum”, such that it should never have been taken into account in calculating the pension; and

(4)    Whether the applicant in fact sought review of the decision to take the income received from the Trust into account in calculating the arrears payable.

How far back the Tribunal might extend its jurisdiction in its review

23    The applicant submitted his pension entitlements should be reviewed from 2010, or any event before 2017.

24    The respondent submitted before the Tribunal Member that the Tribunal’s jurisdiction was limited by reference to the point at which the applicant sought an internal review, namely August 2017.

25    The Tribunal noted and accepted the respondent’s concession that the applicant would have been paid a higher pension if he had been considered to own the assets of the Trust in his own right.

26    In addressing the issue of whether the applicant had requested a review prior to 18 August 2017, the Tribunal Member surveyed the evidence, finding that the applicant had not done so and that it was not until 18 August 2017 that the applicant sought a review in relation to the decision reached on 15 August 2017.

27    Insofar as the applicant gave evidence of that “interaction he had with Centrelink in 2014”, the Tribunal Member found that the applicant had sought an explanation in 2014 of how his pension entitlement was calculated. Specifically, the Tribunal Member did not believe that the applicant intended to seek an internal review in 2014. In making that finding, the Tribunal Member set out cogent reasons as to why he formed that view.

28    The applicant had submitted to the Tribunal Member that the Centrelink officer he spoke with in 2014 should have informed him that the Trust was invalid. The Tribunal rejected that submission, finding that it was not the officer’s role to investigate the validity or otherwise of the Trust.

29    It was on that basis that the Tribunal Member found that his jurisdiction is to be limited by s 109 of the Social Security (Administration) Act 1999 (Cth) to the date the applicant first asked for a review, and that the applicant’s legal entitlement to any arrears of pension went back to August 2017 and not any earlier.

What effect, if any, did the extinguishment of the Trust have on the applicant’s pension entitlements

30    In light of the concession by the respondent that the extinguishment of the Trust had a practical effect on the applicant’s pension entitlements and that the respondent was to recalculate the applicant’s entitlement from 2017, this question did not arise.

Whether the Trust was an “exempt lump sum”, such that it should never have been taken into account in calculating the pension

31    The applicant submitted before the Tribunal that the Trust was an “exempt lump sum” for the purposes of s 8(11) of the Social Security Act 1991 (Cth).

32    The Tribunal did not accept this submission, finding that the Trust was not a “bequest”. In reaching that finding, the Tribunal Member noted that upon the death of the applicant’s father, who was one of the trustees of the Trust, legal ownership of the Trust’s assets passed to the remaining corporate trustee such that there was no change in the ownership of the Trust assets. On that basis, any entitlement of the applicant as a beneficiary under the Trust did not come to him as a bequest under his father’s will.

Whether the applicant in fact sought review of the decision to take income from the Trust into account in calculating the arrears payable

33    Finally, the Tribunal addressed the applicant’s submission that it had power, standing in the shoes of the decision-maker, to exercise the Secretary’s power under s 126 of the Administration Act, to conduct a review of earlier decisions, as far back as 2009. The Tribunal considered that as a matter of law, its jurisdiction was limited to reviewing the decision made on 15 August 2017. However, in a form not adverse to the applicant, it turned its mind to whether it should make a recommendation in its decision that the Secretary might do so. Ultimately, after weighing up the matters for and against making such a recommendation, it decided not to.

34    As I have already noted, the Tribunal ordered that the Authorised Review Officer’s decision be set aside, and that any arrears of the applicant’s pension from August 2017 onwards be calculated and paid to the applicant.

Grounds of appeal

35    The second supplementary notice of appeal identifies a number of questions which the applicant contends are questions of law. In substance those questions may be reduced to the following questions:

(a)    What is the date upon which the Trust ceased to exist?

(b)    Was the Trust a bequest?

(c)    If the Trust was a bequest, was it an exempt lump sum within the meaning of s 8(11)(d) of the Social Security Act?

(d)    Was income received from the Trust an exempt lump sum?

(e)    Did the applicant make a request for a review pursuant to s 129 of the Administration Act prior to 15 August 2017, and if so when?

(f)    What is the proper construction of s 109(5) of the Administration Act?

(g)    Does the Tribunal have power to initiate a review pursuant to s 126 of the Administration Act on the basis that the original decision-maker has that power? and

(h)    Did the Tribunal fail to comply with its obligations pursuant to s 2A of the AAT Act?

36    The applicant identifies under each question of law one or more of the following grounds of appeal by which he contends the Tribunal:

(1)    Failed to take into account relevant considerations.

(2)    Failed to consider relevant evidence.

(3)    Exercised various discretionary powers in bad faith.

(4)    Misconstrued ss 109(5) and 126 of the Administration Act.

(5)    Acted in bad faith by refusing to grant a review under s 126 of the Administration Act.

principles

37    The following principles arise in this matter.

Question of law

38    On an appeal under s 44 of the AAT Act, it is a question, or questions, of law which enliven the Court’s jurisdiction. Since Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315, [62] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ), it is no longer necessary to identify a “pure” question of law to invoke the Court’s jurisdiction to hear an “appeal” under s 44(1) of the AAT Act. Although the Full Court also held that it was of great importance for the statement of the question of law to be stated with sufficient precision, it also held that whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form. Nonetheless, it remains the case that an appeal under s 44 of the AAT Act must precisely identify the question, or questions, of law in the notice of appeal: r 33.12 of the Federal Court Rules 2011 (Cth).

39    A notice of appeal will be deficient if the asserted questions do no more than “invite the Court to embark on a broad and hypothetical enquiry as to the construction and operation of statutory provisions”: Screen Australia v EME Productions No 1 Pty Ltd [2012] FCAFC 19; (2012) 200 FCR 282, [24] (Keane CJ, Finn and Gilmour JJ).

Failure to take into account relevant considerations

40    Failure to take into account a relevant consideration can only be made out as a ground of review if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making that decision. If the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40 (Mason J); Price v Elder [2000] FCA 133; (2000) 97 FCR 218 at 221 [13] (Black CJ, Sackville and Emmett JJ); Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at 452 (Gleeson CJ and McHugh J).

Failure to consider relevant evidence

41    The obligation to give reasons and to set out findings on any material questions of fact (s 43(2B) of the AAT Act) does not extend to a line-by-line refutation of all the evidence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405, [65] (McHugh J), cited in Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105, [64] (Gordon, Robertson and Griffiths JJ).

The parties’ submissions and consideration

Ground one - What is the date upon which the Trust ceased to exist?

42    The applicant submits that the Tribunal failed to take into consideration a decision of Centrelink’s Complex Assessment Officer dated 14 January 2010, that the date of commencement of the age pension for the applicant was 23 December 2009. On that basis, the applicant contends the Court should decide the effective date the Trust ceased to exist as being 23 December 2009.

43    The respondent submits that the applicant is inviting the Court to make a finding of fact which is inconsistent with the Tribunal’s findings that the Trust ceased to exist as from 18 May 2010.

44    In addressing this question, the Tribunal considered the position at law noting that, since the applicant became the sole trustee and sole beneficiary of the Trust on 18 May 2010, he thereby held property on trust simply for himself. Under those circumstances, the legal title to the Trust fund merged with the equitable title at that point in time, making the applicant, as trustee, absolute owner: DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14; (1982) 149 CLR 431, 463. Accordingly, the Tribunal accepted the applicant’s submission advanced before the Tribunal (as opposed to that advanced on appeal) and found that the Trust ceased to exist on 18 May 2010.

45    I accept the respondent’s submission that the applicant is inviting the Court to make a finding of fact which is inconsistent with the Tribunal’s findings but it is also addressing a question of law, which is when did the Trust cease to exist? Pursuant to s 44(7) of the AAT Act, the Court may make findings of fact which are not inconsistent with findings of fact made by the Tribunal, (other than findings made by the Tribunal as a result of an error of law). The finding contended for by the applicant is inconsistent with the Tribunal’s findings, but importantly, the Tribunal’s finding does not result from an error of law.

46    Accordingly, I do not accept the applicant’s contention as to the date the Trust ceased to exist.

47    The applicant also submits that the Tribunal took into account what the applicant described as “concocted discussions” between the applicant and the Complex Assessment Officer in 2014.

48    Relying on that submission, the applicant submits the “concocted discussions” are irrelevant, that the Tribunal made a decision so unreasonable that no reasonable person having heard and read the evidence could have exercised that power, and that the Tribunal exercised its discretionary power in bad faith.

49    The Tribunal Member specifically considered the 2014 discussions which was the subject of evidence by the applicant. It is difficult to see why these discussions were “concocted” or for that matter irrelevant, given the applicant’s contention that the circumstances comprised a request for a review. It follows that I do not accept that submission.

50    The applicant submits the Tribunal has confused discussions between himself and a Complex Assessment Officer on 4 November 2014 with the meeting on 14 January 2010. The Tribunal Member recorded that the applicant gave evidence that he spoke with a Complex Assessment Officer in 2014, at which time he queried whether he might not be receiving all of his pension entitlement. The Tribunal Member found that the applicant took no steps in relation to requesting a review of his pension entitlement until August 2017.

51    The Tribunal Member noted that the applicant pressed a submission that he ought to have been advised by the Complex Assessment Officer in 2014 that the Trust was invalid from 2010. The Tribunal Member specifically rejected that submission noting that the applicant presented at Centrelink with a Trust the applicant believed was valid and operational in 2010 and again in 2014.

52    In essence, the applicant’s submission amounts to no more than a disagreement with the Tribunal Member’s factual findings.

53    I do not accept the applicant’s submission. The findings made by the Tribunal were based on its assessment of the material before it and there is no error in doing so.

54    Further, the respondent submits, and I accept, that there is no error of law simply in making a wrong finding of fact. The error of law upon which an applicant must rely on to succeed must arise on the facts as the Tribunal has found them to be, or it must vitiate the findings made, or it must have led the Tribunal to omit to make a finding that it was legally required to make: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77 (Brennan J).

55    Next, the applicant submits that the Tribunal failed to take into account, “… evidence that the Secretary and senior executive staff had professional obligations to ensure staff were properly trained and experienced and that sound management system[s] were in place to validate applications for pensions”.

56    Notwithstanding that the “evidence” comprised the applicant’s views as to the professional obligations of the Secretary and senior executive staff, it is plain that the issue was considered and rejected by the Tribunal.

57    The respondent submits that the applicant has not identified any mandatory relevant considerations which the Tribunal has failed to take into account. I accept that submission.

58    Next, in this ground as in others, the applicant advances a contention that the Tribunal Member acted in bad faith.

59    The respondent submits, and I accept, that these assertions are serious allegations in support of which the applicant has provided no probative evidence: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 [43]-[48] (Tamberlin, Mansfield and Jacobson JJ).

60    I have no hesitation in rejecting the contention that the Tribunal Member acted in bad faith whenever it is made by the applicant.

61    Finally, in this ground, the applicant contends the Tribunal Member’s decision was unreasonable.

62    In a well-known passage from Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135], Crennan and Bell JJ said:

… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. … (See also [130], [131])

63    Once again, the applicant’s contention as to unreasonableness rises no higher than a disagreement.

64    Ground one fails.

Ground two - Was the Trust a bequest?

65    The applicant contends the Trust was a bequest and therefore an exempt lump sum within the meaning of s 8(11) of the Social Security Act which provides:

(11)    An amount received by a person is an exempt lump sum if:

(a)    the amount is not a periodic amount (within the meaning of subsection (11A)); and

(b)    the amount is not a leave payment within the meaning of points 1067G - H20, 1067L - D16 and 1068 - G7AR; and

(c)    the amount is not income from remunerative work undertaken by the person; and

(d)    the amount is an amount, or class of amounts, determined by the Secretary to be an exempt lump sum.

Note:    Some examples of the kinds of lump sums that the Secretary may determine to be exempt lump sums include a lottery win or other windfall, a legacy or bequest, or a gift--if it is a one-off gift.

66    The applicant contends that the Tribunal erred in three respects:

(a)    It failed to take into account the applicant’s evidence that the Trust was always intended to be a bequest to the applicant and his two sisters as from the death of their father;

(b)    It failed to take into account the observation of Downes J in Strauss and Secretary, Department of Family and Community Services [2005] AATA 608, [34] as to what comprises an exempt lump sum as being a receipt over which the recipient has no control as to entitlement; and

(c)    The Tribunal’s exercise of discretionary power in bad faith.

67    I accept this ground raises a question of law.

68    As to the failure to take into account the applicant’s evidence, the Tribunal Member specifically considered the applicant’s contention that the Trust came to the applicant as a bequest, finding that on the material before him, upon the death of the applicant’s father, the legal ownership of the Trust assets passed to the surviving trustee such that the applicant’s entitlement as a beneficiary of the Trust did not change.

69    The applicant’s first contention is not made out.

70    As to the second contention, since there was no bequest, the observations of Downes J in Strauss do not assist the applicant.

71    The third contention that the Tribunal acted in bad faith fails for the reasons set out above.

72    It is for these reasons that ground two fails.

Ground three - If the Trust was a bequest, was it an exempt lump sum within the meaning of s 8(11)(d) of the Social Security Act?

73    Since the Trust was not a bequest, ground three fails.

Ground four - Was income received from the Trust an exempt lump sum?

74    The applicant contends:

(a)    The Tribunal failed to take into account evidence about the income and the use to which it was put; and

(b)    The Tribunal exercised discretionary power in bad faith.

75    I accept this ground raises a question of law.

76    The essence of the applicant’s contentions is that the Tribunal did not accept his submission that income from the Trust ought to have been excluded but rather accepted the respondent’s submission that there was a distinction between a bequest and any future income from it.

77    The Tribunal Member construed s 8(11) of the Social Security Act to determine the question of whether income from the trust came within that section. In determining it did not, the Tribunal Member was clearly correct and no error of law has been shown.

78    Ground four fails.

Ground five - Did the applicant make a request for a review pursuant to s 129 of the Administration Act prior to 18 August 2017, and if so when?

79    This ground raises a mixed question of fact and law.

80    The applicant contends that the Tribunal failed to take into account his evidence that:

(a)    It was virtually impossible to request a review of the 14 January 2010 decision to grant a rate of age pension because of failure to provide sufficient information;

(b)    The applicant’s conversation in November 2014 with a Complex Assessment Officer concerning his rate of pension declining is properly characterised as a request for an internal review within the meaning of s 129 of the Administration Act;

(c)    An authorised review officer who conducted the s 129 review in 2017 took into consideration the applicant’s records from 23 December 2009; and

(d)    The Tribunal exercised its power in bad faith.

81    In the applicant’s consolidated further amended submissions, the applicant adds a further ground which is that the Tribunal’s decision was unreasonable.

82    In addressing the question of when the applicant applied for a review, the Tribunal Member referred to a prior decision made by him in the Tribunal: Re Lewis and Sec, Department of Social Services [2015] AATA 898, at [26]-[27] in which the Tribunal Member did not doubt an application for review can be informal and that a single enquiry can amount to an application for review, but equally that not every enquiry at the Centrelink counter seeking clarification of an entitlement comprises such an application.

83    Ultimately, the Tribunal Member was not convinced that the distinction he drew in Re Lewis was incorrect and thereby directed his attention to the evidence before him as to whether the applicant had sought a review prior to 2017, however informally.

84    The Tribunal Member considered this question at length, finding that on the evidence before the Tribunal, there was no application for a review by the applicant prior to August 2017. The Tribunal Member observed the difference between, on the one hand Social Security recipients querying the calculation of entitlements with an officer, and on the other hand, a desire, albeit informally, for an internal review of the decision.

85    None of the submissions advanced by the applicant in support of this ground have merit. Ultimately, the Tribunal Member considered the evidence and found as a fact that the applicant made no application for a review prior to August 2017. In so doing, the Tribunal Member was careful in his consideration of the evidence and his consequent identification of the first time the applicant requested a review.

86    The Tribunal Member did not err in his approach in addressing this question and in making his findings.

87    Ground five fails.

Ground six - The proper construction of s 109(5) of the Administration Act?

88    The applicant contends the Tribunal misconstrued s 109(5) to mean that if a s 126 review was conducted, any entitlement is payable from the day the Secretary started work on the review rather than the day the Secretary determined the matter under review began.

89    On that basis, the applicant contends that the review should begin from 23 December 2009, with arrears being payable from that date.

90    I accept this ground raises a question of law.

91    Section 109(1)-(5) of the Administration Act provides:

(1)    If:

(a)    a decision (the original decision) is made in relation to a person’s social security payment; and

(b)    a notice is given to the person informing the person of the original decision; and

(c)    within 13 weeks after the notice is given, the person applies to the Secretary, under section   129, for review of the original decision; and

(d)    the favourable determination is made as a result of the application for review;

The favourable determination takes effect on the day on which the determination embodying the original decision took effect.

(2)    If:

(a)    a decision (the original decision) is made in relation to a person’s social security payment; and

(b)    a notice is given to the person informing the person of the original decision; and

(c)    more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and

(d)    the favourable determination is made as a result of the application for review;

The favourable determination takes effect on the day on which the application for review was made.

(3)    If:

(a)    a decision (the original decision) is made in relation to a person's social security payment; and

(b)    the person is not given notice of the original decision; and

(c)    the person applies to the Secretary, under section 129, for review of the original decision; and

(d)    the favourable determination is made as a result of the application for review;

The favourable determination takes effect on the day on which the determination embodying the original decision took effect.

(4)    If:

(a)    a decision (the original decision) is made in relation to a person's social security payment; and

(b)    the person is given a notice informing him or her of the original decision; and

(c)    the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and

(d)    as a result of the review, the favourable determination is made within 13 weeks after notice of the original decision was given to the person;

The favourable determination takes effect on the day on which the determination embodying the original decision took effect.

(5)    If:

(a)    a decision (the original decision) is made in relation to a person's social security payment; and

(b)    the person is given a notice informing him or her of the original decision; and

(c)    the Secretary reviews the decision under section 126 without any application under section 129 for review of the decision having been made; and

(d)    as a result of the review, the favourable determination is made more than 13 weeks after notice of the original decision was given to the person;

The favourable determination takes effect on the day on which the review was begun by the Secretary.

92    Section 126 of the Administration Act provides:

(1)    The Secretary may review, subject to subsection (2), a decision of an officer under the social security law if the Secretary is satisfied that there is sufficient reason to review the decision.

(2)    The Secretary may review a decision:

(a)    whether or not any person has applied for review of the decision; and

(b)    even if an application has been made to the AAT for review of the decision.

(3)    The Secretary may:

(a)    affirm a decision; or

(b)    vary a decision; or 

(c)    set a decision aside and substitute a new decision.

(4)    If:

(a)    the Secretary sets a decision aside under subsection (3); and

(b)    the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;

the Secretary may, if satisfied that it is reasonable to do so, determine that the event is taken to have occurred for the purposes of the social security law.

93    The Tribunal held that as a matter of law, its’ jurisdiction in respect of the applicant’s application was limited to reviewing the decision made on 15 August 2017 and did not extend to earlier decisions. The Tribunal Member also accepted that any payment of arrears it directed to be calculated and paid to the applicant must be limited to a period commencing in August 2017 given s 109 of the Administration Act and the date of the applicant’s request for review.

94    In the applicant’s consolidated further amended submissions, the applicant contends that:

(a)    On a proper construction, s 109(5) provided for s 126 to apply to the exclusion of s 109(1)-(4);

(b)    The Tribunal’s decision was unreasonable; and

(c)    The Tribunal exercised a discretionary power in bad faith.

95    As to the first contention, the Tribunal Member noted that s 109(5) limited the payment of arrears in any s 126 review to “the day on which the review was begun by the Secretary”. It was on that basis that the Tribunal Member found s 126 did not assist the applicant to have his pension entitlement recalculated from an earlier point in time. That was because the Tribunal Member had found that an application for a review by the applicant was first made on 18 August 2017.

96    The Tribunal Member was correct to so find and there is no merit in the applicant’s first contention.

97    As to the second and third contentions, both those contentions fail on the principles I have set out above.

Ground seven - Does the Tribunal have power to initiate a review pursuant to s 126 of the Administration Act on the basis that the original decision-maker has that power?

98    The applicant contended, once again, that the Tribunal exercised a power in bad faith. The applicant also contended the Tribunal had misconstrued its power to order a review pursuant to s 126.

99    I accept this ground raises a question of law.

100    There is no merit in the bad faith point.

101    As to the second contention, the Tribunal considered a submission that the Tribunal, insofar as it stood in the shoes of the Secretary, had the same powers as the Secretary and should order a review pursuant to s 126.

102    It is not clear why it is said by the applicant that the Tribunal misconstrued s 126. It is readily apparent from the reasons that the Tribunal held s 109(5) of the Administration Act limited the payment of arrears under a s 126 review to “the day on which the review was begun by the Secretary”. On that basis, the Tribunal found that the applicant’s reliance on s 126 did not assist the applicant’s position in having his pension entitlement recalculated from an earlier time.

103    That being the case, there is nothing put by the applicant which satisfies me that the Tribunal misconstrued s 126 and that it should have ordered the applicant’s pension be calculated from a point in time prior to August 2017.

104    Ground seven fails.

Ground eight - Did the Tribunal fail to comply with its obligations pursuant to s 2A of the Administrative Appeals Tribunal Act?

105    Section 2A of the ATT Act provides:

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

(a)    is accessible; and

(b)    is fair, just, economical, informal and quick; and

(c)    is proportionate to the importance and complexity of the matter; and

(d)    promotes public trust and confidence in the decision - making of the Tribunal.

106    The applicant contends the Tribunal Member did not act in accordance with s 2A.

107    In support of that contention, the applicant lists a number of complaints of a general nature. I do not consider this ground comprises a question of law. Nonetheless, even if it was, it is so vague and imprecise that it is unable to be addressed in any considered way: Haritos at [62].

108    Ground eight fails.

Conclusion

109    It is for these reasons that the appeal must be dismissed.

Associate:

Dated:    7 June 2024