Federal Court (Full Court). This non-migration decision which might have consequences for migration decisions. Can it be said that a decision under s 11(6) of the CERP Rules not to exercise the "later time" discretion, made in the context of a decision that a person is not entitled to a jobkeeper payment because they did not have an ABN on 12 March 2020, does not fall within s 13(2)(a) of the CERP Act? If so, did s 43 of the AAT Act nevertheless give the Tribunal the power to exercise the "later time" discretion?
The relevant history of events is as follows:
On 20 April 2020, the Respondent lodged an application for a jobkeeper payment, namely a "Coronavirus economic response payment" authorised under the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) (CERP Rules) made by the Treasurer under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) (CERP Act). The Commissioner of Taxation administers the CERP Rules.
One of the criteria for the jookeeper payment was contained in s 11(6) of the CERP Rules, which provided (emphasis in original):
An entity is not entitled to a jobkeeper payment under this section unless the entity had an ABN on 12 March 2020 (or a later time allowed by the Commissioner), and the requirement in subsection (7) or (8) is satisfied.
The words "or a later time allowed by the Commissioner" are referred to by the Full Court of the Federal Court (FCAFC) as the "later time" discretion.
On 6 May 2020, the Commissioner responded informing the Respondent that he was not eligible for the jobkeeper payment because he did not have an ABN on 12 March 2020.
On 8 May 2020, the Respondent completed a form titled “Jobkeeper application for Commissioner’s discretion in respect of an eligible business participant”.
On 22 May 2020, the Commissioner responded with a decision contained in a letter, which included:
You aren’t eligible for JobKeeper
...
On 8 May 2020, you applied for the Commissioner to exercise his discretion to allow an entity further time to meet certain eligibility requirements for the JobKeeper payment.
Our decision
You aren’t eligible for JobKeeper because you had no ABN on 12 March 2020.
Reasons for our decision
You requested further time to meet the requirement to have had an ABN on 12 March 2020.
We haven’t granted your request for further time because your ABN was not active as at 12 March 2020. Your ABN was cancelled as you advised you had ceased sole trader activities.
More recently you have conducted business activities without an active ABN although you were entitled to hold one. Operating a business without an ABN has adverse tax consequences such as no-ABN withholding, which may result in tax being withheld from certain payments to you at a rate as high as 47%.
One of the requirements of JobKeeper eligibility is that you hold an active ABN, as you had not satisfied this requirement and the re-activation occurred after this date, you have not met the eligibility criteria.
If you don’t agree with our decision you may object to it within 60 days. You need to include a detailed explanation of why you think our decision is wrong in your objection. For more information on lodging an objection visit ato.gov.au/howtoobject
The FCAFC said as follows:
38. The letter recorded the right on the part of [the Respondent] to lodge an objection to the decision. The reference to appeal rights did not distinguish between the element of the decision about whether [the Respondent] had an ABN on 12 March 2020 and the “later time” discretion.
Section 13 of the CERP Act provided:
13 Review of the Commissioner’s decision
(1) An entity who is dissatisfied with a decision covered by subsection (2) may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953.
(2) This subsection covers the following decisions of the Commissioner under this Act:
(a) a decision that the entity is not entitled to a Coronavirus economic response payment for a period
...
On 10 June 2020, the Respondent lodged an objection to the decision of 22 May 2020.
The FCAFC described the subsequent events as follows:
42. On 14 July 2020, the Commissioner disallowed in full Mr Apted’s objection to the Commissioner’s decision of 22 May 2020. Under the heading “Conclusion”, the reasons for decision state:
We have determined that you do not meet the eligibility requirements to receive a JobKeeper payment for a business participant.
Therefore, you are not eligible to claim JobKeeper for a business participant.
43. The document then discusses the exercise of the Commissioner’s discretion to allow extra time under the heading “Commissioner’s Discretion”. The discussion begins with the following:
This section does not form part of your objection decision as the application of the Commissioner’s discretion in relation to JobKeeper does not carry objection rights nor does it form part of your objection decision.
On 22 July 2020, the Respondent applied to the Administrative Appeals Tribunal under s 14ZZ of the Taxation Administration Act 1953 for review of the objection decision.
On 21 December 2020, the Tribunal exercised the "later time" discretion in favour of the Respondent and thus set aside the objection decision.
The Commissioner then made an application to the Federal Court under s 44 of the AAT Act for judicial review of the Tribunal's decision and the matter was decided by the FCAFC.
Some of the questions to the FCAFC were as follows:
Question 1: Was it necessary for the Commission to join the Tribunal as the Second Respondent to the judicial review proceedings?
Question 2: Can it be said that, "while the AAT Act provides the model for administrate review, it is not the source of the Tribunal’s jurisdiction to conduct a review" and that, "rather, as s 25 of the AAT Act contemplates, the source of the Tribunal’s jurisdiction comes from statutes which confer jurisdiction on the Tribunal to review particular administrative decisions"?
Question 3: Can it be said that a decision under s 11(6) of the CERP Rules not to exercise the "later time" discretion, made in the context of a decision that a person is not entitled to a jobkeeper payment because they did not have an ABN on 12 March 2020, does not fall within s 13(2)(a) of the CERP Act as "a decision that the entity is not entitled to a Coronavirus economic response payment for a period”, with the result that the Tribunal was limited to determining whether the Respondent had an ABN on 12 March 2020 and was not entitled to exercise the "later time" discretion itself?
Question 4: If the answer to Question 2 is "yes", did s 43 of the AAT Act nevertheless give the Tribunal the power to exercise the "later time" discretion?
The FCAFC answered those questions as follows: