Serpinli v Secretary, Department of Social Services

1. The notice of appeal dated 8 October 2018 be dismissed.
2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 The applicant appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal) dated 19 September 2018 refusing an application for reinstatement. 2 It is difficult on the face of the documents filed by the applicant, who appeared for himself at the hearing this morning and below, to understand the procedural history of the matter or the grounds of the application. 3 The notice of appeal from a tribunal dated 8 October 2018 stated as follows (errors in the original): That I believe the AAT's decision not fair and incorrectly interpreted. It would be good to show my evidence and I'd like to tell my information properly. I haven't had that chance in AAT. …I've already provide some evidence to AAT. I would like to provide more. 4 The applicant also filed a further document dated 16 August 2019 which says: I would like to talk about, information I have provided in the past, I would like to talk about some more new evidence, also about some phone calls, social workers, other Centrelink people I have saw them in the past and present spoke to them face to face, lost documentation I have provided, payments and Tribunal decision they took against me. If there is something in relation to my issue with Centrelink that I would like to talk in front of the Judge. Such as Department of Social Service send some papers some of the information there and some is missing never existed and finally some Centrelink workers offers. 5 The solicitors for the respondent Secretary filed helpful and detailed submissions explaining the relevant factual background and procedural history, and explaining why, even if the grounds of the application are to be read as favourably as possible to the applicant, the application must be dismissed. 6 I turn now to that procedural history. 7 On 31 January 2018 the Administrative Appeals Tribunal Social Services and Child Support Divisions affirmed earlier decisions made by the respondent which found that the applicant owed a debt, in the sum of $16,837.90, for Austudy paid to the applicant between 9 March 2016 to 11 January 2017 and student start-up scholarships paid to the applicant between 24 February 2016 to 27 July 2016; and that this debt could not be waived or written off. The applicant sought review of this decision. 8 The matter was listed for hearing on 13 September 2018. 9 The applicant failed to attend the hearing, and the application for review was dismissed pursuant to s 42A(2) of the AAT Act. 10 On 14 September 2018, the applicant emailed the Tribunal and attached a medical certificate signed by a general practitioner dated 12 September which asserted that the applicant was "suffering from medical illness" and was "unable to do his/her usual work/duty/study" on 13 September 2019. 11 On 19 September 2018, an interlocutory hearing was convened to hear the applicant's request pursuant to s 42A(9) of the AAT Act for reinstatement. 12 The hearing occupied approximately 80 minutes. The transcript of the hearing, which I have read, was in the evidence before me. 13 As the transcript reveals, the Tribunal refused the applicant's request for reinstatement because he was not satisfied that the applicant had provided a reasonable excuse for failing to appear; he was not satisfied the applicant had a reasonable case to argue; and he lacked credibility. 14 I turn now to the appeal. 15 As a model litigant, the respondent agrees that on a generous reading of the applicant's case it may be posited that the Tribunal made an error of law in the exercise of its discretion in deciding whether or not to reinstate the applicant's application under s 42A(9) of the AAT Act. 16 Rule 33.19 of the Federal Court Rules 2011 (Cth) states: If the Tribunal did not give reasons in writing for its decision, the Applicant must: (a) obtain from the Tribunal, in accordance with section 43(2A) of the AAT Act, a statement in writing of the reasons for its decision; and (b) send a copy of the statement to the Registry within 10 days after receiving it. 17 The respondent's solicitor emailed the applicant on 26 September 2019 advising him of this requirement. The applicant has not provided a copy of the Tribunal's written reasons. The appeal was conducted on the basis of the transcript. 18 Section 42A(2) of the AAT Act states: If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may: (a) if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision. … 19 Section 42A(7) of the AAT Act provides: Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be. 20 Section 42A(8A) states: If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application. 21 Section 42A(9) of the AAT Act states as follows: If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances. 22 The respondent agreed that that the notice of appeal may be construed to raise the following questions of law: (1) whether the Tribunal misinterpreted the test in determining whether or not to reinstate the application in accordance with s 42A(9) of the AAT Act; (2) whether the Tribunal failed to take into account evidence the applicant sought to provide; and (3) whether the Tribunal failed to afford the applicant procedural fairness. 23 Taking each in turn.