Al-Wazeer and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 114

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR DECISION [2008] AATA 114

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4333

GENERAL ADMINISTRATIVE DIVISION		)
Re		Khaled Al-Wazeer

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Deputy President P E Hack SC and Senior Member S Karas AO

Date4 February 2008

PlaceBrisbane

Decision THE TRIBUNAL DIRECTS that the application be dismissed pursuant to section 42A(2) of the Administrative Appeals Tribunal Act 1975, without the Tribunal proceeding to review the decision.

..............................................

Deputy President

WRITTEN REASONS FOR DECISION

4 February 2008 Deputy President P E Hack SC and
Senior Member S Karas AO         

1.This is an application by Mr Khaled Al-Wazeer in which he seeks to review a decision by Centrelink, made on 12 February 2007, to impose an eight week non-payment period for Newstart Allowance commencing 30 January 2007, due to three participation failures. That decision was affirmed by the Social Security Appeals Tribunal on 24 August 2007. From the outset of this Tribunal’s interlocutory procedures, Mr Al-Wazeer has been concerned to call as witnesses various Centrelink officials who have been part of the decision-making process and equally the Tribunal’s conference registrar has been at pains to stress to Mr Al-Wazeer the nature of the function that this Tribunal performs and the likely irrelevance of any evidence from Centrelink officials who made the decision about which Mr Al-Wazeer complains.

2.Mr Al-Wazeer ultimately complained about the conference registrar, and the Tribunal’s assistant registrar wrote to him on 14 December 2007, again explaining why it was not relevant to have regard to evidence of the original decision-makers. He was informed at that time that the hearing - which had at that stage been listed - would proceed, although the letter erroneously tells him that the listing was 4 February 2007 rather than 2008. In any event, the letter continued,

“You should appear at the hearing where you will be given an opportunity to explain to the tribunal why you would like to call any witnesses. The tribunal will then formally decide whether this request will be granted and whether the witnesses will be summonsed to appear and give evidence. If you do not appear at the hearing on 4 February 2007 [sic] your application may be dismissed for your non appearance at the hearing. It is in your interest to appear on that day if you wish you application to be dealt with by the tribunal.”

3.More recently, and as a consequence of communication from Mr Al-Wazeer to the Tribunal, I conducted a telephone directions hearing on 30 January 2008 where, again, I sought to explain to Mr Al-Wazeer the irrelevance of any evidence of original decision-makers. I also told Mr Al-Wazeer in the course of that hearing that if it became necessary to hear from any of those persons in the course of the hearing, we would contact them by telephone for the purposes of any evidence. Mr Al-Wazeer expressed his displeasure - in the course of that directions hearing - with the information I conveyed to him and indicated that he was not prepared to attend the hearing in those circumstances.

4.I explained to him - at least twice as I recall it - that if he failed to attend, that the Tribunal has discretion to dismiss the proceedings without determining the merits of the underlying decision - of the underlying application. Subsequently, Mr Al-Wazeer has again communicated with the Tribunal by email, making a claim that he did not intend to appear and was intending to seek to vindicate his position in the Federal Court of Australia. This morning, at the outset of the hearing, Mr Al-Wazeer has not appeared and, against the possibility that he may have had a change of heart, I had my associate contact him by telephone. He reiterated again that he does not intend to appear. In those circumstances, it appears to us that we ought to act, pursuant to section 42A, subsection (2) of the Administrative Appeals Tribunal Act 1975 and dismiss the proceedings, without proceeding to review the decision. That will be the order of the tribunal.

I certify that the 4 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Senior Member S Karas AO

Signed:         .....................................................................................
  Jacqueline Woods, Associate

Date of Hearing  4 February 2008
Date of Decision  4 February 2008
The Applicant did not appear       
Solicitor for the Respondent     Departmental Advocate