AZC20 v Minister for Immigration, Citizen

austlii:cth/ARTA/2025/688

ARTA|2025-06-03|Before: General Member J

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General information, not legal advice.

At a glance

Source facts

Court

ARTA

Decision date

2025-06-03

Before

General Member J

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

The Applicant is a participant of the National Disability Insurance Scheme (NDIS). By application dated 19 September 2024, she sought review of a decision made by a delegate of the Chief Executive Officer of the Respondent (Respondent) on 23 August 2024 regarding her statement of participant supports made under the National Disability Insurance Scheme Act 2013 (NDIS Act). The review application was transferred to this Tribunal when the Administrative Appeals Tribunal (AAT) was abolished in October 2024.[1] The complicating factor in this review is that the Applicant's former plan, which was varied by the reviewable decision, was 'replaced'[2] by a new plan on 13 September 2024 and again on 15 January 2025 and 16 May 2025. As will be obvious from the dates referred to, the first superseding decision was made prior to the application for review being made to the Tribunal.[3] The Respondent initially argued that this meant that the Tribunal did not have jurisdiction. The Tribunal disagrees with that initial proposition. Rather, the Tribunal is unable to make a decision that would be of any practical benefit so far as the earlier decisions are concerned. The Respondent, through counsel this morning, accepted this to be correct. For that reason, the application for review will be dismissed on the ground that it is frivolous. So far as the most recent decisions are concerned, the applicant has failed to prosecute the review, and the balance of the review application will be dismissed on that basis.

[2]

The Applicant suffers from Sporadic Inclusion Body Myositis, which is a progressive muscle disorder.[4] She has had symptoms since 2009, but the muscular condition was formally diagnosed in 2018.[5]
The Applicant became a participant of the NDIS on 21 February 2017.
On 21 June 2024, the Respondent relevantly approved a new plan with 12 months' duration.[6]
On 26 June 2024, the Applicant sought internal review of that decision under s 100(2) of the NDIS Act.[7]
On 23 August 2024, the internal reviewer made a decision under s 100(6)(b) of the NDIS Act to vary the Applicant's plan.[8]
On 17 September 2024, the Applicant requested that the Respondent re-assess her plan under s 48(2) of the NDIS Act.[9] On the same day, the Respondent agreed to re-assess the plan under s 48(3)(b) of the NDIS Act.[10]
In the event, the Respondent now says that the original plan decision, as varied on 23 August 2024, was replaced by a new plan decision on 13 September 2024, relevantly making the plan 'self-managed'.[11]
On 19 September 2024, the Applicant made an application under s 29 of the Administrative Appeals Tribunal Act 1975 (repealed) and s 103(1) of the NDIS Act, seeking review of the internal review decision dated 23 August 2024.[12]
The parties appeared before the Tribunal at a conference on 13 December 2024. The Tribunal declines to consider the Respondent's summary of what occurred at that ADR process.[13]
However, it should be noted that on 13 March 2025, the Respondent advised the Tribunal that a third plan decision was made in January 2025, purportedly by consent and under s 48 of the NDIS Act.
The Tribunal was informed today that a fourth plan decision was made in May 2025.
The Tribunal has considerable difficulty with the parties varying reviewable decisions without the Tribunal's consent.[14] Nevertheless, the Tribunal accepts that the NDIS Act contemplates various circumstances where a plan may be reviewed, varied or altered including when a review of that plan is on foot.[15]
The Tribunal has jurisdiction to consider the third and fourth plans plan by reason of s 103(2)(e) of the NDIS Act.
The Tribunal understands from the Respondent that the Applicant is generally content with the third and fourth plan decisions. Nevertheless, she has not withdrawn her application for review.
The Respondent initially sought that the Tribunal dismiss the review application under s 97 of the ART Act on 13 March 2025.
The matter was listed for interlocutory hearing before me on 3 June 2025.

[4]

The Tribunal is an independent mechanism of review, whose jurisdiction is entirely statutory.[18] It conducts merits review of 'reviewable decisions', which are decisions that other enactments provide may be reviewed by the Tribunal.[19] In this case, that is the NDIS Act.
This authority to decide is in contrast with the jurisdiction of several federal courts, who are respectively conferred jurisdiction by Parliament with respect to matters mentioned in ss 75 and 76 of the Constitution. Those courts require the existence of a 'matter', being 'the subject matter itself as defined by reference to the heads of jurisdiction [in ss 75 and 76], and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy'.[20]
The Tribunal accepts that the Applicant would struggle in a court to demonstrate that there is some 'immediate right, duty or liability to be established' with respect to the reviewable decision in this matter. However, this Tribunal's jurisdiction relates to decisions that are in fact made under other enactments and which are designated as 'reviewable', regardless of whether they are legally effective decisions.[21]
For those reasons, the Tribunal rejects the Respondent's initial argument that it does not have jurisdiction to review the decision dated 23 August 2024 because it has been 'superseded' by more recent administrative decisions.
In Re Robertson and Decision-Maker [2025] ARTA 22 at [9]-[13], I referred to authority regarding the powers of dismissal under s 101 of the ART Act and other equivalent provisions. Relevantly, in Re Reddish and Civil Aviation Safety Authority [1999] AATA 721, Deputy President Blow held that an application may be dismissed as 'frivolous' if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant ([33]).
Whilst the Tribunal has jurisdiction with respect to the reviewable decision, it accepts that it would be futile for the Tribunal to make any decision under s 105 of the ART Act with respect to it, given that the plan to which that decision relates is no longer in force and has been replaced.
The most recent successor plan decisions are reviewable by the Tribunal by reason of s 103(2) of the NDIS Act. However, the Applicant has failed to proceed with her review application, including because she has not responded to the Respondent's dismissal application or correspondence since March 2025 and because she failed to appear at the interlocutory hearing.
The principles governing the former s 42A(5)(a) of the AAT Act, which is in relevantly identical terms to s 100 of the ART Act, were summarised in Re Wolfe and Telstra Corporation Ltd [2009] AATA 767 at [18].
The Tribunal is satisfied that the Applicant is no longer pursuing her application for review so far as it relates to her present plans approved in 2025.
For those reasons, the application for review including the deemed application for review of the more recent decisions, will be dismissed under ss 100 and 101 of the ART Act.

AZC20 v Minister for Immigration, Citizen

At a glance

Court

Decision date

Before

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Judgment (15 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (9)

Ross and National Disability Insurance Agency (Practice and Procedure) [2025] ARTA 688 (3 June 2025)