Herring v Secretary Department of Families, Community Services and Indigenous Affairs [2007] FCA 1537

FEDERAL COURT OF AUSTRALIA

Herring v Secretary Department of Families, Community Services and Indigenous Affairs [2007] FCA 1537

CICERO HERRING v SECRETARY DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS NSD 915 OF 2007

ALLSOP J

9 OCTOBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 915 OF 2007

BETWEEN: CICERO HERRING

Applicant

AND: SECRETARY DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

JUDGE: ALLSOP J

DATE OF ORDER: 9 OCTOBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. To the extent necessary, time be extended to the applicant to file any application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to the decision of the Administrative Appeals Tribunal made on 2 May 2007 up to and including 25 June 2007. 2. The amended application be dismissed. 3. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 915 OF 2007

BETWEEN: CICERO HERRING

Applicant

AND: SECRETARY DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

JUDGE: ALLSOP J

DATE: 9 OCTOBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 The applicant, Mr Cicero Herring, complains about the approach of the Administrative Appeals Tribunal (the "AAT") to an appeal before it from the Social Services Appeals Tribunal (the "SSAT"). The complaint is found in a document filed on 25 June 2007 which is a combined amended notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act") and application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "AD(JR) Act"). 2 Strictly, the application under the AD(JR) Act requires leave. In all the circumstances, I think that an additional and unnecessary layer of complexity would be added to the proceeding if I did not grant leave. I therefore propose to do so. 3 Before identifying the gist of the complaint as argued before me, a little background is necessary. Mr Herring came to Australia from the United States of America. In 2001, Mr Herring came into receipt of an age pension from the Government of the United States. There is no issue but that he is entitled to receive that pension, the precise amount of which is irrelevant for this application. The commencement of receipt of the US pension led to the reduction of payments that Mr Herring was receiving from the Australian Government through Centrelink up to 2001. No complaint is, or has been, made by Mr Herring about this initial impact of the receipt of the US pension. 4 In 2003, Mr Herring became entitled to receive an age pension from the Australian Government under the relevant social security legislation. The calculation of that Australian pension was affected by his receipt of the US pension. Though the receipt of the latter did not disentitle him to any Australian age pension, it did reduce the amount. It is unnecessary to deal with the precise sums and legislative provisions involved in these calculations. 5 Mr Herring did however make certain complaints in relation to his pensions. He made a complaint about the exchange rate at which his US pension was being converted. An Authorised Reviewing Officer ("ARO") and the SSAT dealt with this complaint. It is not presently relevant. 6 By letter dated 22 May 2006 to Centrelink at Maroubra, Mr Herring made an application for "CFP as outlined at section 23, p 3 of the Social Security Act 1991 and compensation in lui [sic] of denied equal treatment as to the International Agreement Between Australia and the United States of America". The Social Security Act 1991 (Cth), s 23 contains a definition of "comparable foreign payment" to which Mr Herring was referring by the initials "CFP". That phrase was defined as follows: Comparable foreign payment means a payment-type that is: