The Tribunal, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975, dismisses the application.

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PRACTICE AND PROCEDURE − application for dismissal of application for review - whether Tribunal satisfied that application "has no reasonable prospect of success" - general principles - application for review of decision that applicant not eligible for advance under Fair Entitlements Guarantee Act 2012 (Cth) has failed to make "effective claim" - application for review dismissed pursuant to Administrative Appeals Tribunal Act 1975 (Cth), s 42B(1)(b)

Administrative Appeals Tribunal Act 1975 - sections 2A, 42B and 43

Fair Entitlements Guarantee Act 2012 − sections 3, 5, 10, 14 and 40

Paraponiaris and Secretary, Department of Employment [2015] AATA 895

Browne and Secretary, Department of Employment [2015] AATA 978

1. This proceeding derives from an application for review (the "substantive application") of a decision of the Secretary, Department of Employment (the "Secretary") that the Applicant, Mr Brian Mills, is not eligible for an advance under the Fair Entitlements Guarantee Act 2012 (Cth) (the "FEG Act"), as affirmed on internal review.
2. The Secretary applied for Mr Mills' substantive application to be dismissed pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act") on the basis that Mr Mill's substantive application "has no reasonable prospects of success".
3. On 29 January 2016, the Tribunal made a decision under s 42B of the AAT Act in the following terms:

The Tribunal is satisfied that the application for review of the decision has no reasonable prospects of success.

Pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.

1. On that occasion the Tribunal, in accordance with s 43(2) of the AAT Act, gave reasons orally for this decision.
2. On 25 February 2016, the Tribunal received a written request from the Secretary's representative for a written statement of the Tribunal's reasons for its abovementioned oral decision of 2 December 2015.
3. A written statement of the Tribunal's reasons for its decision of 29 January is provided below.

1. Subsection 14(1) of the FEG Act provides that to be effective for the purposes of the FEG Act, a claim for an advance must be made in a form approved by the Secretary, be accompanied by any documents required by the Secretary and be made in accordance with subsection (2). Under subsection 14(2), a claim for an advance must be made before the end of 12 months after the person's employment with the employer ends, or an "insolvency event" happens to the employer - whichever is later.
2. Mr Mills' employment with his former employer ended on 28 June 2013 (T3d).
3. For the purposes of the FEG Act, an "insolvency event" occurred in relation to Mr Mills' former employer on 4 October 2013, when a liquidator was appointed to that company (ST1). This is the "later date" for the purposes of section 14(1) of the FEG Act.
4. On 15 June 2015, the Secretary received a claim from Mr Mills (T3 at 13) for an advance under the FEG Act. The evidence shows that the claim form was filed more than 12 months after the insolvency event and was not accompanied by a document required by the Secretary, being the certified documentary evidence that Mr Mills was an Australian citizen.
5. A delegate of the Secretary made a decision under subsection 15(1) of the FEG Act that Mr Mills was not eligible for an advance (T5).
6. The basis on which the delegate decided that Mr Mills was not eligible for an advance was that he did not make an effective claim in accordance with ss 14 and 10(1)(h) of the FEG Act because (T5):
   1. he did not make a claim within 12 months of the later of:
      • an insolvency event happening to the employer; or
      • his employment ending (s 14(2)); and
   2. his claim was not accompanied by documents required by the Secretary, being certified evidence of his Australian citizenship (s 14(1 )(b)). In relation to this issue, the evidence shows that Mr Mills did submit copies of his birth certificate and passport but this copy was not certified as a "true copy" of the original document by a person authorised to do so.
7. Mr Mills applied for internal review of this original decision under section 38 of the FEG Act (T6).
8. A delegate of the Secretary then affirmed the original decision (T11).
9. The Secretary contended before this Tribunal that the FEG Act contains strict requirements for the making of an effective claim for advance and that Mr Mills did not make an effective claim within the statutory timeframe. As there is no discretion in relation to these requirements, it was further contended that Mr Mills' application should be dismissed pursuant to section 42B(1)(b) of the AAT Act on the basis that the application has no reasonable prospect of success. In effect, the Secretary argued that because the Tribunal has no direction under the FEG Act to permit the late filing of certified documents after the 12 month period, there is nothing the Tribunal can do to assist Mr Mills.

1. Section 42B of the AAT Act was amended by the Tribunals Amalgamation Act 2015, with effect from 1 July 2015. Section 42B now provides as follows:

42B Power of Tribunal if a proceeding is frivolous, vexatious etc.

(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) has no reasonable prospect of success; or

(c) is otherwise an abuse of the process of the Tribunal.

(2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

(3) The direction has effect despite any other provision of this Act or any other Act.

1. The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 states that the amendments were intended to modernise the language of section 42B and clarify the policy surrounding the grounds for dismissal. The proposed new grounds were considered to be similar to dismissal powers available to other bodies, and "would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate."

1. There are two objects of the FEG Act. These are set out in section 3. The first is to provide for the Commonwealth to pay advances on account of unpaid employment entitlements of former employees of employers in cases where:

1. the employers are insolvent or bankrupt; and
2. the end of the employment of the former employees was connected with that insolvency or bankruptcy; and
3. the former employees cannot get payment of the entitlements from other sources.

1. The second object of the FEG Act is to allow the Commonwealth to recover the advances through the winding up or bankruptcy of the employers and from other payments the former employees may receive for the entitlements.
2. A person is eligible for an advance under the FEG Act if the Secretary is satisfied of all of the matters listed in subsection 10(1) of the FEG Act. One of those matters, contained in paragraph 10(1)(h), is that an effective claim (see section 14) "that the person is eligible for the advance has been made to the [Secretary] by or on behalf of the person". As such, a person is not eligible for an advance under that Act in the absence of an "effective claim".
3. The requirements for making an "effective claim" are set out in section 14 of the FEG Act, which relevantly provides as follows:

(1) To be effective for the purposes of this Act, a claim that a person is eligible for an advance for the person's employment by an employer must

(a) be in a form approved by the Secretary; and

(b) be accompanied by any documents required by the Secretary; and

(c) be made in accordance with subsection (2), and with subsection (3) if it applies.

(2) The claim must be made before the end of 12 months after the later of the following events:

(a) an insolvency event happens to the employer;

(b) the person's employment by the employer ends.

(3) However, if the employer is or was a bankrupt, the claim must be or have been made before the discharge of the employer's bankruptcy. ...

1. The meaning of the expression "documents required by the Secretary" in section 14(1)(b) above is discussed below at paragraphs 30-31.
2. The term "insolvency event", which is used in paragraph 14(2)(a) above, is defined in section 5 of the FEG Act, which provides that an "insolvency event" occurs to an employer of a person:

(a) when a liquidator of the employer is appointed (provisionally or otherwise) under the Corporations Act 2001; or

(b) when the employer becomes a bankrupt under the Bankruptcy Act 1966; or

(c) if the person is or was employed for a partnership by 2 or more of the partners - at the first time an event described in paragraph (a) or (b) happens, or has happened, to all of the partners by whom the person is or was employed.

1. In relation to the 12 month time limit for making a claim, the FEG Act does not give the Secretary (or the Tribunal on review) any power to extend the period of time for making a claim, whether in exceptional circumstances or otherwise.

General Principles in Relation to 42B Dismissal Applications

The facts in this matter closely resemble the facts in two earlier AAT decisions in Paraponiaris and Secretary, Department of Employment [2015] AATA 895 and Browne and Secretary, Department of Employment [2015] AATA 978.

1. In Paraponiaris, Deputy President Alpins provides a very useful summary of the key principles relevant to the Tribunal's powers under section 42B. In that regard, the Tribunal notes the following:
   1. _The exercise of the Tribunal's power to dismiss proceedings under s 42B, being a power to dismiss a proceeding summarily, "must always be attended with caution" and "is not to be exercised lightly" (_Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24], [60]; see also Re Williams and Australian Electoral Commission _[1995] AATA 160; (1995) 38 ALD 366 at 372), as ordinarily a party ought not be denied the opportunity to put their case and have it heard in the usual way; the expression "no reasonable prospect" prescribes a standard describing "a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to [hearing] in the ordinary way" (_Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57], cited with approval in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]).
   2. The requirement that the Tribunal be satisfied that the application "has no reasonable prospect of success" necessarily involves a consideration of the merits in the sense that it requires a finding that the application lacks any prospect of success which can properly be said to meet the standard of being a reasonable one (see Duncan v Fayle _[2004] FCA 723; (2004) 138 FCR 510 at [22] per French J). The Tribunal's discretion to dismiss an application for review under s 42B(1) of the AAT Act is enlivened in circumstances where the Tribunal forms the view that the application, upon a practical judgment as to the expected ultimate outcome of the proceeding, suffers from the requisite deficiency described in s 42B(1)(b), which will depend upon the nature of the issues raised by the application, particularly whether the case involves resolution of issues of fact, law or both (_Spencer at [25]-[26]).
   3. _Where the application for review requires resolution of a real issue or issues of fact (or law and fact, or mixed law and fact), the Tribunal cannot properly be satisfied that the application "has no reasonable prospect of success" for the purposes of s 42(1)(b) - it is not enough that the Tribunal has formed the view that the applicant is unlikely to succeed in respect of such issues (_Spencer at [25]-26]; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J).

1. In considering whether it is satisfied that the application has no reasonable prospect of success for the purpose of s 42B(1)(b), the Tribunal should turn its mind to the ways in which it might disturb the decision under review in a manner favourable to the applicant upon exercising its powers under s 43 of the AAT Act, given that it is required to arrive at the correct or preferable decision.
2. The Tribunal's power to dismiss an application within the terms of s 42B(1)(b) of the AAT Act is governed by the wider statutory context, particularly the Tribunal's obligation, in carrying out its functions, to pursue the objective of providing a mechanism of review that has the qualities enumerated in s 2A of the AAT Act. I note that those qualities were recently expanded in the substituted provision contained in the Tribunals Amalgamation Act 2015 (Cth).
3. The Tribunal's power to dismiss an application under s 42B(1)(b) reflects the fact that in such circumstances "it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing" (see Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198 at [33]).

Documents Required by the Secretary by the Relevant Date

1. The evidence shows that Mr Mills' online claim form was received by the Department of Employment (the "Department") on 15 June 2015 (T3 at 13). Mr Mills' employment ended on 28 June 2013 (see T3d at 26) and an insolvency event happened to the employer when a liquidator was appointed on 4 October 2013 (see ST1), which was an insolvency event as defined in s 5 of the FEG Act. Accordingly, as 4 October 2013 was the later of these two dates, the claim was required to be made within 12 months of 4 October 2013.
2. Unfortunately, Mr Mills' claim was not made until 15 June 2015 (T3 at 13). The claim was thus not made within the required time limit.
3. Further, in order for Mr Mills' claim to be "effective", paragraph 14(1)(b) of the FEG Act required that it also be "accompanied by any documents required by the Secretary".
4. The online form completed by Mr Mills (T3) includes question "B4", which reads: "were you an Australian citizen at the time your employment ended?" In answer to that question, Mr Mills checked the box marked "Yes". The online claim incorporates an automated "system response" to a positive answer, as follows: "It is mandatory that you provide certified documentary evidence to support your claim." The "help text" which appears when a claimant clicks on an icon next to question B4 states:

If you answer 'Yes", acceptable evidence to prove citizenship includes a certified copy of one of the following categories of documents:

• Australian passport (including a certified copy of the page which includes your name, date of birth and photograph) issued before the time your employment ended.
• Australian Birth Certificate. However, please note if you were born after 20 August 1986, your birth certificate alone is not evidence of Australian citizenship and you will need to provide further certified evidence to verify that you are an Australian citizen. This may include certified copies of documents proving that at least one of your parents was an Australian citizen at the time of your birth. Go to www.citizenship.gov.au/current/ for more information about additional documents that may be provided to prove citizenship.
• Certificate of Australian Citizenship (or other Australian citizenship documentation which verifies that you were an Australian citizen at the time your employment ended). For examples of other documents that may prove Australian citizenship please go to www.citizenship.gov.au/current/proof of citizenship/. Please note your driver's licence is not evidence of citizenship.

Information about how to have your documents certified is included in the Help menu.

1. Clearly then, in order to lodge an effective claim, Mr Mills was required to provide a certified copy of one of the following documents:
   • an Australian passport current at the end of his employment; or
   • a birth certificate; or,
   • a certificate of Australian citizenship issued prior to the end of his employment.
2. Unfortunately, Mr Mills' claim was not accompanied by any of these documents, as he provided uncertified copies only of his birth certificate and passport (T3h at 58-59).
3. This means that Mr Mills' claim was not accompanied by a document required by the Secretary as per section 14(1)(b) of the FEG Act.

1. The core issue in relation to the facts outlined above is whether Mr Mills made an "effective claim" within the required timeframe for financial assistance in the form of an advance under the FEG Act.
2. Mr Mills was unrepresented before this Tribunal and did not provide written submissions in relation to the Secretary's 42B dismissal application. It appears from the evidence filed by Mr Mills that his main reasons for not complying with what is statutorily required of him is that he was not advised of the 12 month requirement and he was having difficulty receiving information form the liquidators (T6a at 64). The thrust of Mr Mills' evidence was summarised and analysed by the Secretary as follows:

The applicant has made various claims about his understanding of these requirements, the information that he says he was given, and the reasons why he lodged his claim late. While the respondent disputes some of the applicant's claims, the respondent submits that it is not necessary for, and it is not open to, the Tribunal to make findings about these matters. The Tribunal's jurisdiction is only to decide whether the applicant is eligible for an advance under s 15(1) of the FEG Act, which requires him to have made an effective claim in accordance with ss 14 and 10(1)(h) the FEG Act. The respondent submits that the only available decision is that the applicant is not eligible for an advance as he did not make an effective claim under the FEG Act.

1. The Tribunal agrees with this summary. Although the Tribunal is not unsympathetic to the concerns raised by Mr Mills, as noted above, subsection 14(1) of the FEG Act makes it clear that a claim will not be effective unless it is accompanied by any required documents and is made within the statutory timeframe. Mr Mills did not make a claim within the effective period and did not provide the required certified documentation to support his claim that he was an Australian citizen.
2. Before this Tribunal, Mr Mills asked the Tribunal to exercise discretion and allow him to file the required certified documentation now - well after the statutorily required 12 month period.
3. In relation to this issue (ie, whether the statute permits some sort of discretionary override of the statutory requirements), the Tribunal is guided by the words of Deputy President Alpins in Paraponiaris (above), in which she writes:
   1. It is necessary to ascertain "the ordinary and grammatical sense of the statutory words" (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 31 per French CJ; emphasis added). Section 14 is to be read as a whole. The use of tenses in s 14(1) is quite deliberate - the expressions "be in a form approved" and "be accompanied by any documents required" are to be read in the context of the expression "be made" in para (c) of s 14(1) and the temporal requirement in s 14(2) (emphasis added). To be an effective claim, a claim must be made within the prescribed time, in the prescribed form and must be accompanied by the prescribed documents....
   2. I cannot discern any source of a power or discretion, whether express or implied, and whether in the terms of s 14, other provisions of the Act or some other legislation, by which the Secretary might depart from those requirements in the case of a particular claimant.
   3. Furthermore, I can see no express or implied power or discretion by which the time limit for the making of a claim prescribed by s 14(2) might be extended and thus give rise to a real issue as to whether an "effective claim" might be said to have been made for the purposes of s 14 in some other way (whether by Mr Paraponiaris' subsequent correspondence or otherwise), leaving aside the question of whether the application could be said to have a real prospect of success in that regard in any event.
   4. Moreover, the Tribunal's powers of review under s 43(1) of the AAT Act do not afford any discrete source of power or discretion by which Mr Paraponiaris might somehow be relieved from the consequences of his claim's failure to satisfy the terms of s 14(1)(b).
4. On the evidence, Mr Mills' claim was not effective as the required certified documentation was filed late. It is clear that the Act does not permit the Secretary or the Tribunal any discretion to extend the time period for making an effective claim. Under the FEG Act, a person will only be eligible for an advance if the Secretary is satisfied that an effective claim has been made and on time. If the Secretary is not satisfied that the claim is effective in accordance with section 14, the Secretary cannot be satisfied that the person is eligible for an advance.
5. In the circumstances, the Secretary, or the Tribunal standing in the Secretary's shoes, is simply not empowered to accept a claim for an advance after the expiry of the statutory timeframe, regardless of whether a claimant is able to supply the required documentation after that date. While this might seem inherently unfair, this is what the statute mandates. There is no flexibility in this regard. To again quote Deputy President Alpins in Paraponiaris (above), unfortunately for Mr Mills, "the legislative intention evinced by the strict terms of s 14 is directed towards the attainment of a balance between the objects expressed in s 3 of the Act, which are countervailing to the extent that the first favours former employees while the second is directed to allowing the Commonwealth to recover public funds paid out to such employees."
6. The Tribunal has also considered whether Mr Mills' substantive application raises any other issue of fact or law beyond those canvassed before the Tribunal which might found a reasonable prospect of success. The Tribunal finds that it does not do so.

1. For the above reasons, the Tribunal finds that Mr Mills' substantive application should be dismissed pursuant to section 42B of the AAT Act as the substantive application has no reasonable prospects for success. It would be futile and indeed wasteful for the substantive application to continue as there is nothing the Tribunal can do to assist Mr Mills. In that regard, the dismissal of the substantive application is also consistent with section 2A of the Tribunal's governing statute, which requires the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

1. The Tribunal, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975, dismisses the application.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

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