Bellia and Secretary, Department of Social Services (Social security second review)
[2015] AATA 859
•10 November 2015
Bellia and Secretary, Department of Social Services (Social security second review) [2015] AATA 859 (10 November 2015)
Division
GENERAL DIVISION
File Number(s)
2015/5315
Re
Nazareno Bellia
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member Taglieri
Date 10 November 2015 Place
Hobart
The Tribunal refuses to grant an extension of time to appeal.
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Ms S Taglieri, Member
CATCHWORDS
Application to extend time to appeal; appeal over 5 months out of time; whether delay satisfactorily explained and if appeal had arguable merit; whether in interests of justice to allow extension of time; extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975, section 27
Social Security (Administration) Act 1999, section 29
Social Security (International Agreements) Act 1999, schedule 6
Social Security Act 1991, section 7(3)
CASES
Alderfeary v Secretary, Department of Education, Employment and Workplace Relations 2012 FCA 633
Re Maha Hafza v Director-General of Social Security [1985] FCA 164
Yager v The Queen [1977] HCA 10; (1977) 139 CLR 28 at 43
REASONS FOR DECISION
Member Taglieri
This is an application pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (“the Act”). It seeks an extension of time (“EOT”) to apply to the Tribunal to review a decision by the Social Security Appeals Tribunal (“the SSAT”) dated 15 April 2015, which affirmed the Respondent’s decision that the Applicant was unable to apply for an Age Pension because he was not an Australian resident or in Australia at the time of his application[1].
[1] A requirement of section 29 of the Social Security (Administration) Act 1999
The Applicant must persuade the Tribunal to grant an EOT, as he did not apply to this Tribunal within 28 days of the SSAT decision.[2]
[2] Section 29(2) of the AAT Act
The principles to be applied when determining whether an EOT should be granted are the subject of many authorities. In Alderfeary v Secretary, Department of Education, Employment and Workplace Relations[3], McKerracher J succinctly referred to some of those authorities with approval in the context of the power to grant extension of time contained in section 29(7) of the Act[4].
[3] [2012] FCA 633
[4] Paragraphs 20 to 21 and 27 to 30
The principles can be summarised as whether:
A. there has been a satisfactory explanation for the delay;
B. the review being sought has some arguable merit;
C. there is prejudice to the Respondent in granting the extension of time;
D. justice requires the extension to be permitted.
The above principles are not necessarily mutually exclusive and may not all be of equal importance in any given application for extension of time, but if relevant must be considered and have been.
The Applicant’s explanation for delay is contained in section 4 of the application filed by him and dated 18 October 2015. The application also attached a letter from Michelle Thompson, a Member of the Parliament of Edinburgh West, who appears to be the elected Member of Parliament where the Applicant has habitually lived.
The Applicant gave oral evidence during the hearing of this application. He said that he was so down and upset when his application had been rejected by the SSAT that he decided he was finished with it, meaning pursuing the application any further.
He said he put it out of his mind, so not to be upset anymore. This evidence was consistent with what he said in section 4 of his application dated 18 October, that the Applicant “thought there was no point in appealing”.
The Applicant also gave evidence that he went to Malta in May 2015 and while there received a letter dated 7 July 2015 from the electoral office of Malta about his eligibility to vote. After this he spoke to persons in the Friends of Malta Association about his refused application for Age Pension. From what those persons told him, he was encouraged that he did have a case for receiving an Age Pension from Australia.
The Tribunal sought clarification from the Applicant about the precise time he had first spoken to someone about further pursuing the claim for Age Pension and whether he knew of the 28 day time limit for appealing the SSAT decision. The Applicant openly admitted he knew of the time limit, but was less clear about when he first discussed the SSAT decision with anyone about potentially appealing it. He said he could not recall.
The Applicant also told the Tribunal that he had been encouraged to take legal advice by the persons he spoke with while in Malta in July 2015, but he decided not to do that and instead conferred with his local MP in Scotland.
The Respondent opposes the EOT. It essentially relies on two grounds, namely that the Applicant has failed to satisfactorily explain his delay in seeking to appeal and that the Applicant’s substantive case has no arguable merit. Counsel for the Respondent during the hearing submitted that although it did not claim any specific prejudice due to the delay, prejudice and injustice to those members of the public who acted on appeal rights within time limits, was a factor.
CONSIDERATION
The evidence of the Applicant establishes on the balance of probabilities that he well knew and understood he only had 28 days to appeal the SSAT decision, and decided he would not do so.
It is also clear from his evidence that sometime in July 2015, he decided to appeal because of hopes or confidence that had been instilled in him by persons he spoke with in Malta and later his local MP in the UK, Ms Thompson.
There is no specific evidence about when Mr Bellia spoke with Ms Thompson, but I find from the evidence given to the Tribunal that it was after July 2015. This is based on the Applicant saying that he had been encouraged while in Malta in July 2015 to seek legal advice, but had chosen not to do that, but instead to confer with his local MP when he returned to Scotland. Ms Thompson’s letter is dated 29 September 2015, so it is highly likely he discussed a potential appeal with her between July and September 2015.
The Tribunal is not satisfied that the delay between receiving the decision of the SSAT and applying for an EOT to this Tribunal to appeal that decision has been satisfactorily explained.
It is apparent that the Applicant initially decided he would not appeal. Although he may not have had any legal or other advice at the time he made that decision, there was no evidence given to me that he sought to get that advice before abandoning his appeal rights, by choosing not to appeal within a time limit known to him.
The letter from Ms Thompson alludes to an argument that the Applicant may be treated as a resident of Malta for the purposes of a double taxation agreement. It seems he seek to then argue that pursuant to the International Agreement between Australia and Malta (“IA”)[5], a Maltese Resident, he is treated as an Australian Resident for the purposes of eligibility to apply for Age Pension within in section 29 of the Social Security (Administration) Act 1999.
[5] Schedule 6 of the Social Security (International Agreements) Act 1999
As to merit of these arguments, the Respondent says that the SSAT arrived at the correct decision. It argues that “resident of Malta” is not defined by the IA, so by virtue of paragraph 2 of Article 1 of the IA, the definition in section 7 of the Social Security Act 1991 must be applied to establish if the Applicant was resident in Malta, when he applied for the Age Pension.
By reference to the meaning of residency in section 7(3) of the Social Security Act 1991, the Respondent says that the SSAT was correct to conclude that the Applicant was not resident in Malta.
On this application, it is not the function of the Tribunal to scrutinise all the evidence that may be put at the hearing of the merits of an application to review the SSAT decision. Rather, it is to assess whether it is reasonably arguable that the decision of the SSAT was wrong. If the arguments sought to be advanced are hopeless and without arguable merit, this weighs against granting an extension of time.
To establish residence in Malta at the time of application for Age Pension, the Applicant seeks to rely on a deeming provision in a double tax agreement which he says applies because of having property, a bank account, concessional status and assets in both Malta and Scotland.
For his deemed residency argument to have arguable merit, the Tribunal would need to be persuaded that:
(a)Article 4 of the double taxation agreement applies to conclusively decide residency under the Social Security laws; and
(b)The relevant facts demonstrate that the Applicant had a habitual abode in both countries.
I do not regard proposition A as valid. The question of whether the Applicant was an Australian Resident must be decided pursuant to the provisions of the Social Security Act 1991 and relevant authorities. That is clear from the terms of paragraph 2 of the IA and also the authorities of the Federal Court of Australia, cited by the Respondent in its Statement in opposition to the extension of time application.
The Tribunal notes with approval, what was said by the Federal Court in Re Maha Hafza v Director-General of Social Security[6], per Wilcox J who rejected the argument that the definition of resident under the taxation law applied when determining issues arising under the Social Security laws of Australia:
‘The definition of ‘resident’ and ‘resident of Australia’ in s.6 of [the Tax Act] was—as that section stated—a definition for the purposes of that Act. Except in a case where it had been incorporated by express words or by necessary implication, it did not operate to control the meaning of the word ‘resident’, or a cognate thereof, in a different statute’: see Yager v The Queen [1977] HCA 10; (1977) 139 CLR 28 at 43.
[6] [1985] FCA 164
CONCLUSION
The Applicant decided not to appeal, but later reconsidered some five months out of time. The delay in between has not been satisfactorily explained and being upset is insufficient explanation for choosing not to pursue appeal rights within the known time limit.
Further, the Applicant’s case on appeal, is said to be put on the basis of deemed Maltese residence under a double taxation agreement, and is without arguable merit, as it fails to recognise the necessity to apply the meaning of Residency under the Social Security Act 1991.
The Tribunal is of the view that it is not in the overall interest of justice to allow the extension of time.
The application for extension of time to appeal is refused.
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34. I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri, Member
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Administrative Assistant
Dated
Date of hearing 2 November 2015 Applicant Self- Represented (by telephone) Solicitors for the Respondent Mr Mark Hester, Program Litigation and Review Branch (by telephone)
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