Doan v Secretary, Department of Family & Community Services [2006] FCA 19 (30 January 2006)

Last Updated: 30 January 2006

FEDERAL COURT OF AUSTRALIA

Doan v Secretary, Department of Family & Community Services [2006] FCA 19

CHERIE LAURA TONG DOAN v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

VID 1408 OF 2005



SUNDBERG J
30 JANUARY 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1408 OF 2005

BETWEEN:	CHERIE LAURA TONG DOAN APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	30 JANUARY 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for an extension of time within which to lodge a notice of appeal from the decision of the Administrative Appeals Tribunal be dismissed.
2. The applicant pay the respondent’s costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1408 OF 2005

BETWEEN:	CHERIE LAURA TONG DOAN APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	SUNDBERG J
DATE:	30 JANUARY 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 On 9 November 2004 a Centrelink officer decided to cancel the applicant’s Newstart Allowance (NA) which had been paid from 1 March 2004 pursuant to the Social Security Act 1991 (Cth). The Authorised Review Officer (ARO) decided that from that date the applicant had been a full time student and was thus not entitled to NA. The ARO’s decision was affirmed by the Social Security Appeals Tribunal (SSAT). On 8 March 2005 the applicant sought review of the SSAT’s decision in the Administrative Appeals Tribunal (the Tribunal).

2 On 20 July 2005 the Tribunal received an email from the applicant stating that she "would like to cancel" her application to the Tribunal. This request was repeated in a letter of the same date. The Tribunal treated this request as a notification that the application was either discontinued or withdrawn. On 22 July the Tribunal informed the applicant that her application had been dismissed pursuant to s 42A(1B) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act).

3 On 4 August the applicant sent the Tribunal an email requesting it to "reopen" her application. The request was repeated in a letter of the same date and in a later letter. It was treated by the Tribunal as a request to reinstate the application. The ground upon which reinstatement was sought was that the applicant asserted an entitlement to a benefit between 9 November 2004 and 12 March 2005 which had not been paid.

4 The application for reinstatement was unsuccessful. After setting out the facts recorded at [1] to [3], the Tribunal said:

"... any entitlement to benefits beyond 9 November 2004 have not been reviewed by the SSAT. ... Until this issue is decided and reviewed by the SSAT, this Tribunal has no jurisdiction.

There was nothing before the SSAT concerning qualifications for benefit for the period 9 November 2004 to 12 March 2005 which is now asserted by Ms Doan. Because that was not before the SSAT, it is not a matter which is capable of review by this Tribunal.

Applications can only be reinstated pursuant to s 42A(10) of the Act if an application was dismissed ‘in error’. For the above reasons the application was not dismissed ‘in error’ but rather, at Ms Doan’s request.

If Ms Doan asserts an entitlement to a benefit beyond 9 November 2004, she should, as was suggested during the hearing on 3 October 2005, approach her local Centrelink Office. In the event that an adverse decision is made she is entitled to seek a review of that decision by the SSAT in a new application."

5 The applicant was not satisfied with the Tribunal’s decision, but failed to lodge a notice of appeal within the prescribed time. She has sought an extension of time in which to file a notice. Her case for an extension is that she could not file within time because she had a medical problem during the 28 days following the Tribunal’s decision. She has produced a medical certificate from an unnamed medical practitioner stating that she attended St James Avenue Medical Centre on 21 October 2005 suffering from a fractured ankle and would be unfit for work from that date until 2 December 2005.

6 The applicant’s draft notice of appeal describes the question of law raised by the appeal as

"Based on my intention to get work, I was eligible for Newstart Allowance for semester 02/2004 (26 July 2004-08 November 2004)."

Under the heading Orders Sought appears:

"Review Centrelink’s decision on my payment for semester 2/2004 ...."

In a later draft notice of appeal filed pursuant to directions, the applicant sets out what she describes as the evidence showing first that she intended to obtain work and that she had attempted to negotiate "the work agreements to get the best chance to gain job(s)". She also says:

"I focus on the period of time from 26 July 2004 to 08 November 2004 (semester 2/2004) and I do not agree with Centrelink’s decision on payment for this period because in this period there was an important event for strong evidence to gain work (attending the job interview on 30 September 200 in Mt Gambier, a remote area too far from Adelaide). Therefore I request for a review of Centrelink’s decision on my payment from 26 July 04 to 08 November 04."

7 The draft notice also states that a "detailed report" will be sent to the Court prior to the hearing of the application for an extension of time. This report is dated 22 January 2006. It elaborates the material described in [6], and concludes with essentially the same information as that quoted at the conclusion of [6]. It is in the form of a letter. It is not a sworn document. Further, it was not provided to the respondent. I have accordingly not taken it into account.

8 It is apparent from the above that the applicant seeks an extension of time within which to review the Tribunal’s decision of 3 October 2005 in order to have Centrelink’s decision to cancel NA from 26 July 2004 to 8 November 2004 set aside. However, the correctness of that decision was not a matter that was before the Tribunal on 3 October 2005. Because an extension of time will not enable the applicant to obtain the relief she seeks, the application for an extension is refused.

9 Even if the application were to be treated as seeking to review the Tribunal’s decision that it had no jurisdiction to consider her entitlement to NA in respect of the period 9 November 2004 to 12 March 2005, the application for an extension of time would be refused. The Tribunal was clearly correct, for the reason it gave, in concluding that it lacked jurisdiction to entertain that question. In those circumstances it would not be proper to grant an extension of time.

10 The application is dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated: 30 January 2006

The applicant appeared in person.

Solicitor for the Respondent:	P Hefferman, Australian Government Solicitor
Date of Hearing:	30 January 2006
Date of Judgment:	30 January 2006