Alnaser and Secretary, Department of Social Services (Social services second review)

[2018] AATA 3698

Alnaser and Secretary, Department of Social Services (Social services second review) [2018] AATA 3698 (3 October 2018)

Division:GENERAL DIVISION

File Number:           2018/2412

Re:Hamadali Alnaser

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member M East

Date:3 October 2018

Place:Perth

The Tribunal refuses to grant the Applicant’s application for an extension of time, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), to lodge an application for review of a decision made by the Secretary, Department of Social Services on 18 January 2018.

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Member M East

CATCHWORDS

EXTENSION OF TIME APPLICATION –relevant factors when considering an application for an extension of time – poor prospects of success – lack of explanation of delay – applicant rested on his rights – need to prevent disruption to established practices – application refused

LEGISLATION

Administrative Appeals Tribunal 1975 (Cth) – s 2A(b), s 2A(d), s 29(1)(d), s 29(2), s 29(7)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

CASES

Brown v Commissioner of Taxation [1999] FCA 563

Comcare v A’Hearn (1993) 119 ALR 85
Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 276
Hickey v Australian Telecommunications Commission (1983) 47 ALR 517
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; 58 ALR 305
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Lucic v Nolan (1982) 45 ALR 411
Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76
Re Johnson and Commonwealth [1990] AATA 1
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113
Seiler and Others v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
Zizza v Commissioner of Taxation [1999] FCA 848

REASONS FOR DECISION

Member M East

3 October 2018

THE APPLICATION

1. The Applicant, Mr Alnaser, in his substantive application, is seeking review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 18 January 2018.  The AAT1 decision affirmed the decision of the Secretary, Department of Social Services to not pay him Disability Support Pension for an indefinite period whilst outside Australia.

2. Mr Alnaser lodged an application for review on 4 May 2018, seeking review of the AAT1 decision (the Reviewable Decision).

3. Mr Alnaser lodged an application for an extension of time; the document is dated 7 May 2018. However, Tribunal records show receipt of this application on 10 May 2018,

   THE ISSUE

4. The issue for determination by the Administrative Appeals Tribunal (the Tribunal) is whether it should exercise its discretion under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to extend the time for Mr Alnaser to make an application for review of the Secretary’s decision.

5. The Respondent opposes the extension of time application.

   EVIDENCE

6. The application for extension of time was heard by the Tribunal on 21 September 2018. Mr Alnaser represented himself, and was assisted by an Arabic interpreter. The Respondent was represented by Ms Inglis from the Department of Human Services. 

7. The Applicant also gave oral evidence at the hearing.

   RELEVANT LEGAL PRINCIPLES FOR AN EXTENSION OF TIME

8. An application for review of a decision must be lodged with the Tribunal within 28 days of the applicant receiving notice of the decision: s 29(1)(d) and s 29(2) of the AAT Act.

9. Section 29(7) of the AAT Act provides that:

   The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

10. Section 29(7) of the AAT Act does not set out any principles which the Tribunal can refer to in order to be “satisfied that it is reasonable in all the circumstances” to extend the time for making an application.  However, relevant principles which the Tribunal may apply in assessing whether it is reasonable to grant an extension of time have been judicially considered.  

11. A frequently cited authority is Hunter Valley Developments Pty Ltd and Others v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; 58 ALR 305 (Hunter Valley), in which the Federal Court considered whether to grant an extension of time to allow the applicants to bring an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). In Hunter Valley, Wilcox J (at 310-311) set out principles that were intended to be “non-exhaustive guidelines” (see Brown v Commissioner of Taxation [1999] FCA 563 per Hill J at [32]-[34]) which may be relevant when considering whether to grant an extension of time. As stated by Wilcox J in Hunter Valley (at 310), the principles were intended “… to guide, not in any exhaustive manner, the exercise of the court’s discretion.”

12. These principles are substantially similar to those applied in decisions concerning s 29(2) of the AAT Act, such as Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 where President O’Connor J applied the following principles considered by Deputy President Todd in Re Johnson and Commonwealth [1990] AATA 1 at [17]:

    (a)Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.

    (b)It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.

    (c)Any prejudice to the respondent that would be caused by granting the extension of time is relevant.

    (d)Any wider prejudice to the general public in terms of disruption to established practices is relevant.

    (e)The merits of the substantial application are relevant.

    (f)Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

13. Some flexibility is permitted in applying the principles. The facts and circumstances of a particular case may warrant particular attention being given to one or more of the principles over others, some of which may be less relevant, or not relevant at all. In Zizza v Commissioner of Taxation [1999] FCA 848 the Full Court of the Federal Court, when discussing the principles set out by Wilcox J in Hunter Valley, observed (at [13]) that: “It would be an error to regard the summary as complete, or to treat each of the six principles it contains as necessarily applicable to any particular application for extension of time, especially an application under different legislation”.

14. Additionally, whether an applicant has an acceptable explanation for the delay will be relevant, but “… there is no rule that such an explanation is an essential precondition” to the success of the application for an extension of time (Comcare v A’Hearn (1993) 119 ALR 85 at 88).

    CONSIDERATION

15. In determining whether an extension of time should be granted , the relevant factors the Tribunal should consider include:

    ·the length of the delay;

    ·the explanation of the delay and whether that explanation is satisfactory;

    ·whether the Applicant was aware of his appeal rights and whether he rested on those rights;

    ·any prejudice to the Respondent or the general public arising from an extension of time;

    ·the merits of the substantive application; and

    ·alternative avenues of relief.

    Length of the delay

16. Mr Alnaser’s application for review was lodged with the Tribunal on or around 7 - 10 May 2018.  Mr Anaser gave oral evidence that he received the AAT1 decision sometime between 18 and 23 January 2018. The application for review and extension of time application was lodged in excess of 60 days out of time.

17. The Tribunal notes the following statement of French J (as he then was) in Seiler and Others v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 (at 96). His Honour stated the following in the context of an extension of time application for review under the ADJR Act:

    The exercise of the discretion to extend time… must be informed by the purposes served by the statutory limitation and associated dispensing power. The limitation is directed to achieving certainty and finality in administrative decision-making. In the ordinary course, where a reviewable decision is taken, and the review procedure is not instituted within the prescribed period, the decision-maker is entitled to proceed on the basis that the decision stands and will not be called into question by way of judicial review. Finality and certainty are not ends in themselves, but means to the end of efficient administration.

18. The length of the delay, being more than 60 days is significant, and to grant an extension after such a time may be inconsistent with the principle that there should be certainty and finality in administrative decision making. This weighs against the Tribunal exercising its discretion to grant an extension of time.

    Explanation for delay and awareness of appeal rights

19. Mr Alnaser provided no explanation for his delay in submitting his application for review of the Reviewable Decision.

20. At the hearing Mr Alnaser gave evidence that he thought the Respondent had taken a long time to provide its decision and he did not know that he had to do anything further.  Ms Inglis submitted that information regarding review rights was provided to Mr Alnaser with the AAT1 decision.  She said the Secretary acknowledged Mr Alnaser’s limited English, however, noted the Tribunal had interpreter services available to assist him if required.

21. In the Tribunal’s view, the explanations given by Mr Alnaser for his delay are insufficient.

22. Such a delay without sufficient explanation provided by the Applicant weighs against the Tribunal exercising its discretion to grant an extension of time.

    Prejudice to the Respondent or the General Public

23. The absence of prejudice is not itself enough to justify the granting of an extension (Lucic v Nolan (1982) 45 ALR 411 at 416; Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 523 cited in Hunter Valley at 311).

24. As noted by Deputy President Todd in Re Johnson and Commonwealth [1990] AATA 1 at [17] (see paragraph 12 above), any wider prejudice to the general public in terms of disruption to established practices is also a relevant consideration for the Tribunal in considering whether or not to grant an extension of time. The Tribunal further notes an objective of the AAT Act is to promote “…public trust and confidence in the decision-making of the Tribunal” (s 2A(d) of the AAT Act). If the Tribunal grants lengthy extensions of time, this confidence may be undermined. Fairness as between the Applicant and other persons in a like position is also relevant. For example, applicants who have previously been denied review by the Tribunal, and others who may not have sought review at all because the statutory time limit had passed.

25. A further objective of the Tribunal is to provide a mechanism of review that is “fair, just, economical, informal and quick” (s 2A(b) of the AAT Act). However, in this case, the delay is in excess of 60 days, which in the Tribunal’s opinion, is considerable and inconsistent with that objective. These factors weigh against the granting of the extension of time.

    Merits of the substantive application

26. As noted above, when deciding whether to grant an extension of time to an applicant, the Tribunal may consider the merits of the applicant’s substantive application. The Tribunal should not undertake a substantive review of the merits of the application (Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76), but, rather, should assess whether the applicant has an “arguable case” (Brown v Commissioner of Taxation [1999] FCA 563 at [56]).

27. The Tribunal has previously declined to grant an extension of time to an applicant in cases where it considers the applicant would have little prospect of success at a substantive hearing of the matter (see, for example, Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 and Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 276).

28. The Respondent contends Mr Alnaser’s application has limited prospects of success and that this weighs heavily against the granting of an extension of time.  The Respondent gave comprehensive submissions at the hearing addressing the merits of the substantive claim.

29. After outlining the requirements for Mr Alnaser to be successful in his claim for indefinite portability, Ms Inglis submitted the Secretary regarded Mr Alnaser as having three conditions which it regarded as permanent, namely ischaemic heart disease, a spinal condition and diabetes.

30. Regarding the ischaemic heart disease, Ms Inglis submitted that, based on the medical evidence and job capacity assessor (JCA) report, Mr Alnaser did not meet more than 10 points under Table 1.

31. Regarding the Applicant’s diabetes, Ms Inglis submitted that, based on the available medical evidence, Mr Alnaser did not rate more than 10 points under Table 1.

32. Regarding his spinal condition, Ms Inglis submitted the Secretary had concerns whether the condition was permanent, as previously noted by the AAT1 review.  Furthermore, based on the medical evidence and that of the JCA, the Secretary considered Mr Alnaser did not meet the descriptors for a severe impairment for his spinal condition.

33. Ms Inglis’ submissions were that the Applicant’s conditions of depression, hernia, gallbladder and bursitis were all not fully treated and stabilised, thus, those conditions should not be considered permanent.

34. The Tribunal has considered the evidence provided and the submissions of the Secretary and notes the various obstacles to the success of his claim, as outlined by Ms Inglis.  The Tribunal weighs this against Mr Alnaser’s own oral evidence and submissions in which he asserts he is suffering from all of these conditions and that he is not well.

35. The Tribunal finds that the prospects of success in Mr Alnaser’s substantive application are poor, and this weighs heavily against the granting of an extension of time.

    Alternative avenues of relief

36. The Tribunal will often have regard to whether there are any alternative avenues of relief available to an applicant when considering an extension of time application (see Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 at 18 and Kim and Minister for Immigration and Border Protection [2018] AATA 155 at 48).

37. The Tribunal notes the Applicant is not precluded from making future applications, and finds this consideration weighs in favour of the Tribunal not granting the application for extension of time.

    CONCLUSION

38. Having carefully weighed all the factors outlined above, the Tribunal finds that it is not reasonable in all the circumstances to grant an extension of time to allow Mr Alnaser to make an application for review of the Reviewable Decision.

    DECISION

39. For the reasons outlined above, the Tribunal refuses the Applicant’s application for an extension of time to lodge an application for review of the Reviewable Decision dated 18 January 2018.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Member M East

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Administrative Assistant Legal

Dated: 3 October 2018

Date of hearing:

21 September 2018

Applicant:

Counsel for the Respondent:

In person; Self-represented

Charlie Inglis

Solicitors for the Respondent:

Department of Human Services