Secretary, Department of Employment, Education, Training & Youth Affairs v Allen [1999] FCA 25

FEDERAL COURT OF AUSTRALIA Secretary, Department of Employment, Education, Training & Youth Affairs v Allen [1999] FCA 25 ADMINISTRATIVE LAW – SOCIAL SECURITY – ABSTUDY Scheme – effect of garnishee and waiver provisions of Student and Youth Assistance Act 1973 (Cth) in application to non-statutory scheme – administrator's task under statute of deciding what overpayment there was before applying garnishee provision – rights of internal review and review by Social Security Appeals Tribunal ("SSAT") – appeal to Administrative Appeals Tribunal ("AAT") – effect, on application to SSAT and AAT, of section denying them, when reviewing on the merits, the discretion of the original decision-maker – availability nevertheless of power to determine sum due and power of waiver. Student and Youth Assistance Act 1973 (Cth), ss 3, 42, 43, 289, 302, 304, 309, 316, 323, 324 Walker v Secretary, Department of Social Security (1997) 75 FCR 493, applied Secretary, Department of Social Security v Riley (1987) 17 FCR 99, distinguished SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION TRAINING & YOUTH AFFAIRS v MASON ALLEN, SENIOR MEMBER, ADMINISTRATIVE APPEALS TRIBUNAL and DOMINIC KANAK NG 249 OF 1998 EINFELD, CARR AND LEHANE JJ 28 JANUARY 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 249 OF 1998

BETWEEN: SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING & YOUTH AFFAIRS

Appellant

AND: MASON ALLEN, SENIOR MEMBER, ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

DOMINIC KANAK

Second Respondent

JUDGES: EINFELD, CARR AND LEHANE JJ

DATE OF ORDER: 12 NOVEMBER 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.