Wilson and Secretary, Department of Employment, Skills, Small and Family Business [2020] AATA 121

Tribunal: Member D Mitchell

The AAT dismissed an application for a second-tier review of two decisions in our Social Services and Child Support Division (SSCSD), finding both were frivolous or otherwise an abuse of the process of the Tribunal. However, the Tribunal decided a third application from the applicant should be heard.

The power to summarily dismiss an application is a part of administrative law that aims to prevent matters without merit going ahead. The question for the AAT in this decision was whether the applications were frivolous, had no reasonable prospects of success or were otherwise an abuse of the process of the Tribunal because they asked the AAT to step outside of its independent merits review role.

The SSCSD had already given the applicant two favourable reviews. In one, we set aside a decision of the Department of Employment, Skills, Small and Family Business (the Department) to impose an activity test breach and reduce his Newstart payment. In another, although we affirmed the Department’s decision that he was not entitled to a higher rate of Austudy, the debt that was raised as a consequence had already been waived.

In its decision, the Tribunal noted the dismissal power[1] is often misunderstood. The word ‘frivolous’ has a particular meaning when it is used in the law, it can mean ‘…the application is futile or pointless, most obviously because the Tribunal is not able to assist the applicant in a meaningful way’.[2]

The applicant sought review of these decisions largely because he was dissatisfied with how he was treated by officers of the Department. In dismissing the first and last applications under this power the AAT commented that the decision did not diminish the applicant’s concerns but found there were alternative mechanisms to deal with them. The application relating to his rate of Austudy also contained some elements beyond the review powers of the AAT, but deserved to be considered and could move to a full hearing.

Read the full decision

N.B. The applicant was ultimately unsuccessful in his substantive claim with the AAT upholding the SSCSD’s decision that he was not entitled to a higher rate of Austudy.