Kang v Secretary, Department of Social Services [2017] FCA 895

FEDERAL COURT OF AUSTRALIA

Kang v Secretary, Department of Social Services [2017] FCA 895 Appeal from: Kang and Secretary, Department of Social Services (Social services second review) [2016] AATA 829

File number: WAD 547 of 2016

Judge: MCKERRACHER J

Date of judgment: 4 August 2017

Catchwords: ADMINISTRATIVE LAW - On appeal from the Administrative Appeals Tribunal – decision to revoke disability support pension – where applicant held to be an attributable stakeholder pursuant to s 1207X of the Social Security Act 1991 (Cth) – where 100% of Trust assets attributed to the applicant personally pursuant to s 1207X of the Act – whether Tribunal failed to carry out a merits review – whether Tribunal failed to take into account mandatory relevant considerations – whether the matter should be remitted to the Tribunal – whether there is still discretion yet to be exercised by the Tribunal.

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43(1), 43(2B), 44(1), 44(4), 44(5) Social Security Act 1991 (Cth) ss 1207C, 1208E, 1207P, 1208U, 1207V, 1207V(1), 1207X, 1207X(2), 1207X(5) Social Security (Attributable Stakeholders and Attribution Percentages) Principles 2000 (Cth) Pts 2, 3 ss 7, 10, 11, 19, 20

Cases cited: Comcare v Power [2015] FCA 1502 McKenzie v Repatriation Commission (2014) 142 ALD 332 Minister of Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration Ethnic Affairs v Conyngham (1986) 11 FCR 528 Minister of Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575 Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Selway v Minister for Infrastructure, Transport, Regional Development & Local Government [2011] FCA 43 Telstra Corporation Limited v Hunter [2016] FCA 318 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480