Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2012] FCA 912

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2012] FCA 912 Citation: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2012] FCA 912

Parties: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS v ANDRO MAHROUS

File number: QUD 340 of 2012

Judge: COLLIER J

Date of judgment: 24 August 2012

Catchwords: PRACTICE AND PROCEDURE – application for review of Administrative Appeals Tribunal setting aside decision of Social Security Appeals Tribunal – satisfaction of residency requirement in s 94(1)(e)(ii) Social Security Act 1991 (Cth) – entitlement to disability support pension – entitlement to payments in arrears and future payments – application for stay of Tribunal decision establishing entitlement to pension pursuant to s 44A(2) Administrative Appeals Tribunal Act 1975 (Cth) pending appeal – principles relevant to power to stay decision under s 44A(2) – general entitlement to fruits of judgment – decisions at first instance not to be treated as merely provisional – Court has broad discretion to grant stay if warranted – whether stay necessary or appropriate to secure effectiveness of hearing and determination of appeal – whether moneys paid would be recoverable if appeal successful – whether financial hardship to pension recipient if stay ordered – whether reasonable prospects of success in appeal

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44A(2)(a) Social Security Act 1991 (Cth) s 94(1)(e)(ii) Social Security (International Agreements) Act 1999 (Cth) Art 12 cl 4 of Sch 3