Azimullah and National Disability Insurance Agency

[2021] AATA 4363

Azimullah and National Disability Insurance Agency [2021] AATA 4363 (26 November 2021)

Division:GENERAL DIVISION

File Number(s):      2021/3760

Re:Mohammed Azimullah  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:26 November 2021

Place:Sydney

The application for an extension of time is refused.

.............................[SGD]................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – application to Tribunal not within time – whether reasonable in all the circumstances – explanation for delay – whether substantive application has merit – extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

BACKGROUND

1. On 12 February 2021 the National Disability Insurance Agency, the Respondent, decided under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (the Act), to confirm a decision under subsection 20(a) of the Act dated 22 January 2021. I will refer to the 12 February 2021 decision as the reviewable decision.

2. On 7 June 2021, the Applicant applied to the Tribunal for a review of the reviewable decision. The application was filed 87 days outside of the 28-day period pursuant to subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) and so an extension of time to make the application was necessary.

3. The Respondent notified the Tribunal and the Applicant on 13 August 2021 that the Respondent opposed the Applicant’s request for an extension of time and the Tribunal listed interlocutory hearings to deal with the extension of time application.

4. The Applicant did not attend the first interlocutory hearing on 31 August 2021 despite the Tribunal’s attempts to contact him and the Tribunal re-listed the hearing on 24 November 2021 to provide the Applicant an opportunity to participate.

5. The extension of time application was heard at the interlocutory hearing, which the Applicant attended, on 24 November 2021.

   ISSUE

6. The issue is whether the extension of time should be refused.

   DISCUSSION

7. At the hearing the Applicant confirmed that he was suffering from a range of physical and mental disabilities.

8. He said that he had not understood the communication from the Tribunal by email on 30 August 2021 explaining the purpose of the interlocutory hearing (as listed the first time) and thought that the matter was “finished”. He said this made him feel very depressed and it was not until he went to his doctor and the doctor explained the Tribunal’s communication to him that he understood that the matter was still on foot.

9. He said that he wanted to pursue his claim for support but was hampered by his disabilities including significant depression and anxiety.

10. At the hearing it became clear that the Applicant’s chance of success in any appeal against the reviewable decision was very limited if indeed he had any chance of success.

11. The Applicant provided some medical evidence as part of his application for review. A letter from his specialist Dr McKechnie dated 13 July 2021 indicated clearly that the Applicant’s condition was temporary rather than permanent. It was not entirely clear whether the position had changed but it seemed at least likely that, based on his current situation, the Applicant may be able to obtain evidence that his condition was permanent.

12. In all of the circumstances, given the extensive delays and the unsatisfactory nature of the Applicant’s current medical evidence and the fact that the situation may have changed since the date of Dr McKechnie’s letter, it became apparent that it was in the interests of all parties that the extension of time be refused.

13. The Applicant’s best chance of success in making a claim for the supports he considers to be necessary clearly lies in his making a new application with supporting medical evidence.

14. I am not satisfied that it is reasonable in the circumstances to grant an extension of time. The correct and preferable decision is to refuse the extension of time.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate

Dated: 26 November 2021

Date of hearing:	24 November 2021
Applicant:	Self-represented
Solicitors for the Respondent:	C Gan, National Disability Insurance Agency