Toki and Secretary, Department of Social Services (Social services second review)

[2021] AATA 1820

Toki and Secretary, Department of Social Services (Social services second review) [2021] AATA 1820 (18 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/4803

Re:Martin Toki

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:18 June 2021

Place:Sydney

In accordance with section 42B of the Administrative Appeals Tribunal Act 1975 (Cth), Mr Toki’s application for review of the decision of the Tribunal made 27 July 2020 is dismissed on the ground that it has no reasonable prospects of success.

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Deputy President J W Constance

Catchwords

PRACTICE AND PROCEDURE – DISMISSAL APPLICATION – whether application for review has no reasonable prospect of success – application for disability support pension – where statute provides that social security pension not payable when a person is in goal – where Applicant sentenced to a term of imprisonment due to expire in 2025 – where Applicant currently in psychiatric institution – where Applicant still under sentence – where statutory bar applies – no reasonable prospects of success – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B
Social Security Act 1991 (Cth) ss 23, 1158

CASES

Filsell and Comcare [2009] AATA 90
Franks v Secretary, Department of Family and Community Services (2002) 125 FCR 212
Garden v Secretary, Department of Family and Community Services (2001) 111 FCR 312

REASONS FOR DECISION

Deputy President J W Constance

18 June 2021

INTRODUCTION

1. In 2001 Mr Toki was sentenced to imprisonment for a period of 24 years, to expire on 17 September 2025. He is presently an inpatient at The Forensic Hospital in suburban Sydney.

2. In 2019, while he was in hospital, Mr Toki applied for a disability support pension which was refused. The refusal was upheld by the Social Security and Child Support Division of the Tribunal. Mr Toki has now applied for a review of that Division’s decision.

3. The Respondent has applied to have the application for review dismissed on the ground that it has no reasonable prospects of success before the Tribunal. Section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) makes provision for such an application.

4. For the reasons which follow I have decided that Mr Toki’s application for review should be dismissed.

   FACTS

5. The following statement of facts is reproduced from the Applicant’s Statement of Issues, Facts and Contentions[1] and is not in dispute. I am satisfied that the statement of the following facts is accurate:

   3. Mr Toki was convicted of murder of his former partner on 10 November 2000. His sentence expires on 17 September 2025 and the non-parole period expired on 17 September 2019.

   4. In 2006, Mr Toki set fires whilst incarcerated in Goulburn Gaol.

   5. On 16 April 2009, Mr Toki was found not guilty by reason of mental illness on two charges of maliciously damage property by fire/explosion and arson

   6. Due to his Forensic patient status, Mr Toki was subject to a ‘Time Limited Order’ for transfer to the Forensic Hospital by 17 September 2019.

   7. Mr Toki was admitted to The Forensic Hospital on the 5^th of August 2019.

   8. Mr Toki applied for the Disability Support Pension on the 20^th of September 2019.

   [1] Dated 15 December 2020.

   LEGISLATION

   Social Security Act 1991 (Cth)

6. Section 1158 of the Act provides, in part:

   Some social security payments not payable during period in gaol or in psychiatric confinement following criminal charge

   An instalment of a social security pension, a social security benefit, a parenting payment, a carer allowance, a mobility allowance or a pensioner education supplement is not payable to a person in respect of a day on which the person is:

   (a) in gaol; ………. .

7. Subsection 23(1) includes a disability support pension in the definition of a social security pension.

8. Subsection 23(5) of the Act relevantly provides that for the purpose of this Act, a person is in gaol if:

   (a)the person is being lawfully detained (in prison or elsewhere) while under sentence for conviction of an offence and not on release on parole or licence …… .

9. In accordance with section 42 and clause 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth), eligibility for a disability support pension is to be determined as at the date the application for the pension is made or within a period of 13 weeks thereafter; in this case, in the period 20 September 2019 to 20 December 2019. I shall refer to this as the relevant period.

   Administrative Appeals Tribunal Act 1975 (Cth)

10. Subsection 42B(1) provides:

    (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.

    ISSUES

11. The following issues require determination.

    (1)Was Mr Toki in gaol during the relevant period following his application for a disability support pension made on 20 September 2019?

    (2)If so, should the Tribunal exercise the power to dismiss Mr Toki’s application for a review of the decision made by the Tribunal in the Social Security and Child Support Division on 27 July 2020?

    MR TOKI’S ARGUMENT

12. It was argued on behalf of Mr Toki:

    There was no firm relationship between his psychiatric confinement at The Forensic Hospital at the time of his application for Social Security payment and the previous sentences he was serving in gaol. Mr Toki’s psychiatric confinement at The Forensic Hospital was as a result of his Non Guilty by Reason of Mental Illness verdict and his admission to the hospital had been as a result of a Time Limited Order due to his Forensic Mental Health Status. His admission and treatment at The Forensic Hospital is clearly as a direct result of his Not Guilty by reason of Mental Illness finding and not as a result of the original sentence. There is no strong relationship between his psychiatric confinement at The Forensic Hospital and his previous sentences. Therefore, the applicant contends that Section 1158 (i)(a)(ii) is, by its own terms, inapplicable and does not bar his entitlement to a pension.[2]

    [2] Applicant’s Statement of Issues, Facts and Contentions dated 15 December 2020.

    CONSIDERATION

    Issue 1: Was Mr Toki in gaol during the relevant period following his application for a disability support pension made on 20 September 2019?

13. The relevant definition of in gaol has several elements:

    ·the person is being lawfully detained;

    ·the detention is in prison or elsewhere;

    ·the person is under sentence for a conviction of an offence during the period of detention; and

    ·the person is not on release on parole or licence.

14. It is not in dispute that Mr Toki is being lawfully detained at The Forensic Hospital and was so detained during the relevant period. Further it is not in dispute that during the whole of the relevant period, Mr Toki was under sentence for the offence of murder and will remain under this sentence until 17 September 2025.

15. Mr Toki is not on release on parole or licence. Although he became eligible for parole on 17 September 2019, parole has not been granted, nor has he been released on licence.

16. On this analysis Mr Toki was in gaol for the whole of the relevant period in accordance with section 1158 of the Social Security Act and cannot be paid the pension he seeks in respect of any day during the relevant period. I do not accept Mr Toki’s argument to the contrary as there is no reason to depart from the plain meaning of the words of the Statute by adding a requirement that there be a causal connection between his detention in a particular place and the offence for which he remains under sentence.

17. I find support for the conclusion I have reached the judgement of Gray J in Garden v Secretary, Department of Family and Community Services[3]:

    [24] The legislative assumption is that a sentence will be served either in a prison or in some other place of detention. In either case, the removal of the right to social security benefits by the Social Security Act is intended to follow. If the legislation be viewed in this way, it matters not that a person might be transferred back and forth between a prison and a hospital, depending upon variations in his or her mental condition. Throughout the time of detention, the person will be either imprisoned or detained in a place other than a prison while serving the sentence imposed by the court following conviction for an offence.

    [25] It is therefore incorrect to say, as Einfeld J did in Blunn v Bulsey, that there must be more than just a temporal coincidence between the detention and the conviction. In my view, the temporal coincidence between the detention and the continuation of a sentence of imprisonment imposed following a conviction is of primary importance. To be lawful, detention in a place other than a prison must result from the exercise of a power to detain. In the case of a prisoner transferred to a place other than a prison because of his or her mental condition, the detention will usually only be lawful because the person continues to serve a sentence of imprisonment.

    This reasoning was approved by the Full Court of the Federal Court in Franks v Secretary, Department of Family and Community Services.[4]

    Issue 2: Should the Tribunal exercise the power to dismiss Mr Toki’s application for a review of the decision made by the Tribunal in the Social Security and Child Support Division on 27 July 2020?

    [3] (2001) 111 FCR 312 at [24]-[25].

    [4] (2002) 125 FCR 212 at [40]-[42].

18. In Filsell and Comcare[5], Deputy President Jarvis considered the application of section 42B in detail. In his reasons for decision he said, in part:

    (d) However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since 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.

    [5] [2009] AATA 90 at [33].

19. I am satisfied that Mr Toki’s has no reasonable prospects of success. Section 1158 of the Social Security Act does not give the Tribunal any discretion. If the required facts are shown to have existed in the relevant period for consideration of Mr Toki’s pension request, a payment cannot be made. Unfortunately for Mr Toki, that is the case here.

    CONCLUSION

20. In accordance with section 42B of the Administrative Appeals Tribunal Act 1975 (Cth), Mr Toki’s application for review of the decision of the Tribunal made 27 July 2020 will be dismissed on the ground that it has no reasonable prospects of success.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated: 18 June 2021

Date(s) of hearing:	25 February 2021
Advocate for the Applicant:	N Casella
Solicitors for the Respondent:	G Heggen, Services Australia