BFMB and Secretary, Department of Social Services (Social security second review)

[2025] ARTA 335

BFMB and Secretary, Department of Social Services (Social security second review) [2025] ARTA 335 (1 April 2025)

Applicant/s:  BFMB

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2024/6949

Tribunal:Senior Member M Kennedy

Place:Adelaide

Date:1 April 2025

Decision:The application for an extension of time is refused.

Statement made on 01 April 2025 at 3:50pm

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 161(1B)-161(1C) of the A New Tax System (Family Assistance) (Administration) Act 1999

Catchwords

Application for extension of time to apply for review – social services second review – no adequate explanation for delay – merits of the proposed application poor – application refused

Legislation
Administrative Review Tribunal Act 2024 – section 19

Cases

Englezos v Secretary, Department of Social Services [2023] FCA 31

Statement of Reasons

1. On 5 July 2024, the Administrative Appeals Tribunal (AAT) affirmed Centrelink’s decisions to raise and recover family assistance debts and one disability support pension debt in respect of Mr BFMB.  The family assistance debts had been raised because it had come to Centrelink’s attention that Mr BFMB’s son had not been in his care for periods when he had been paid family assistance, and in relation to the disability support pension, Mr BFMB had been paid for periods when he was in gaol.

2. On 5 December 2024, Mr BFMB lodged an application for review of the decision in the Administrative Review Tribunal, and also applied for an application for an extension of time.

3. The Secretary of the Department of Social Services opposes the granting of the extension of time.

4. A hearing was convened on 25 March 2025 to consider Mr BFMB’s application for an extension of time.

5. The decision of the AAT of 5 July 2024 is, subject to the question of an extension of time, a decision that is amenable to social services second review in the ART: section 131C of the Administrative Review Tribunal Act 2024 (the ART Act), and the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.

6. Applications for review in the ART must be made within the period prescribed by the Administrative Review Tribunal Rules 2024 (the ART Rules).  Subsection 5(3) of the ART Rules prescribe a period that ends on the day that ends 28 days after the day an applicant is given a statement of reasons as the appeal period.  Mr BFMB stated in his application  for an extension of time that he received the decision of the AAT on 8 July 2024, and I so find.

7. Mr BFMB lodged his application for review on 5 December 2024, well outside the prescribed appeal period.

8. At the hearing, Mr BFMB asserted that he must have lodged his application earlier than that.  I afforded Mr BFMB an opportunity to lodge any evidence of an earlier lodgement or lodgement of an application for second review by 28 March 2025, but no further evidence was provided within the time afforded.  The only evidence of lodgement of an application for second review either in the AAT or the ART is the lodgement of 5 December 2024, accompanied by the application for an extension of time, and I find that to be the date Mr BFMB lodged his application for second review.

9. Section 19 of the Administrative Review Tribunal Act2024 provides for an applicant to apply to the Tribunal to extend the period within which the applicant may apply to the Tribunal for review of the decision, and the Tribunal may, by order, extend the period if the Tribunal considers that it is reasonable in all the circumstances to do so.

10. As I am satisfied Mr BFMB lodged his application for review to the ART well outside the prescribed appeal period, I am satisfied he requires the extension of time he seeks.

    Should an extension of time be granted?

11. The legislation provides that the Tribunal may extend time if satisfied that it is reasonable in all the circumstances to do so.  I will consider the question of whether it is reasonable in all the circumstances to extend time by reference to the distillation of authority recently provided by the Federal Court of Australia in Englezos v Secretary, Department of Social Services (Englezos).[1]In that matter, Collier J said at [32]–[33]:

    The principles governing the Court’s discretion to grant an extension of time are well settled. In summary, the Court will have regard to:

    (1) Whether there is an adequate explanation for the delay on behalf of the Applicant;

    (2) Prejudice to be faced by the parties;

    (3) Merits of the proposed grounds of appeal.

    [1] [2023] FCA 31.

12. I make two further observations by reference to the authorities.

13. First, the court had observed in Englezos that even where a litigant is in person, the person is not inherently exempt from the rules, and that timelines prescribed in the relevant legislation are not ‘merely aspirational guidelines’, referring to a similar observation made by Derrington J in BLD16 v Minister for Immigration and Border Protection.[2]

    [2] [2017] FCA 1400

14. Second, where a proposed application for review does not enjoy reasonable prospects of success, it would not be an appropriate exercise of discretion to grant the extension of time.  In this regard, in Gallo v Dawson (1990) 64 ALJR 459 it was observed:

    In order to determine whether the rules [imposing time limits] will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time ...

    When the application is for an extension of time … it is always necessary to consider the prospects of the applicant succeeding in the appeal.

15. As to the explanation for the delay, in his application for an extension of time, Mr BFMB attributed the delay to the closure of the 3G network, and his inability to make or receive phone calls.  I have accessed information from the website of the Department of Infrastructure, Transport, Regional Development, Communication and the Arts to identify that the 3G network was switched off for Telstra and Optus in November 2024, outside the time within which Mr BFMB could have lodged his application for review without requiring an extension of time.  I disclosed that information to Mr BFMB, who accepted that timing sounded right.

16. In explaining to Mr BFMB therefore that the closure of the 3G network did not explain why he had not lodged his application for second review within the prescribed timeframe, Mr BFMB elaborated on difficulties he had with his phone connection.  It was during this discussion that Mr BFMB suggested he had actually lodged his application earlier (of which there is no evidence) and also that the problem was at the Tribunal’s end, associated with the abolition of the AAT and the commencement of the Administrative Review Tribunal (14 October 2024).  I do not accept that the application was lodged earlier than 5 December 2024 in the absence of evidence, and nor do I accept that the transition from the AAT to the Administrative Review Tribunal in October 2024 is relevant to the question of the reasons for Mr BFMB’s delay in lodging his application within 28 days of 8 July 2024.

17. The Secretary contends that there is no adequate reason for the delay, noting that the closure of the 3G network was advertised in advance, and the applicant had multiple other means of making contact with the AAT to lodge his application.  The Secretary further contends that the delay is very substantial.

18. I am not satisfied there is an adequate explanation for the delay between Mr BFMB receiving the statement of reasons of the AAT and lodging his application for second review.

19. As to the merits of the matter, I note that the AAT had identified family assistance debts for the 2020/21 year, the 2021/22 year, the 2022/23 year and a disability support pension debt.

20. Turning first the family assistance debts, the AAT found that Mr BFMB’s son had been placed into juvenile detention on 15 July 2020 and released on 30 November 2020, and that Mr BFMB himself was in prison from 30 September 2020 to 2 December 2020, with further periods of incarceration for both Mr BFMB and his son in the 2022/23 financial year.  The AAT noted that Mr BFMB was not contending that his son was in his care during these periods.  At the hearing of the extension of time, Mr BFMB said his son was always in his care, but then conceded that he was not in his care when either his son or he was in prison, but that he should not have been paid by Centrelink when he was in prison.

21. Returning to the reasons of the AAT, the AAT identified periods when neither Mr BFMB nor his son were incarcerated, finding that for certain periods contributing to the debt, Mr BFMB’s son was in the care of his grandmother.  I understand therefore Mr BFMB’s case on the merits in part to include an assertion that the factual findings of the AAT in this regard are wrong.

22. I observed that the AAT had recognised that Mr BFMB had wished to establish that his son was in his care instead of his grandmother’s care for certain periods, and to that end had provided Mr BFMB with an opportunity to provide supporting evidence, and then extended the deadline for that material to be provided, and then made a decision without any such material being provided by Mr BFMB.  In raising this with Mr BFMB, Mr BFMB considered he should not have to prove when his own son was in his care.  To the extent that Mr BFMB would maintain that view in second review proceedings of this nature, his prospects of establishing different facts in this regard are poor.  In that regard, I further note that the AAT’s findings were based on evidence of the NSW Department of Community and Justice in relation to his son’s living arrangements at various times.

23. It does not appear to be the case that Mr BFMB’s son’s grandmother was joined as a party to the review at the AAT.  It is not clear why that is so, given her interests would have been affected by any decision changing the period(s) when Mr BFMB’s son was understood to be in her care.  In the event that the matter were to proceed to a second review, procedural fairness may require Mr BFMB’s son’s grandmother to be joined.

24. Further as to the issue of the factual findings relating to the periods when Mr BFMB’s son was in his care as opposed to his grandmother’s care, I accept that further and different evidence may indeed result in a change to the decision – and to that extent, without knowing what that evidence might be, there could be merit in Mr BFMB’s case proceeding.  However, any weight in favour of granting the extension of time Mr BFMB seeks is reduced by recognising that the AAT clearly afforded Mr BFMB with the opportunity to provide that evidence in those proceedings, and he did not take up that opportunity then.  In my view, that weighs against granting an extension of time to seek second review for that purpose.  I did not, in any event, understand Mr BFMB to intend to lodge further evidence in that regard given his remarks, and so on balance I conclude that there are poor prospects of the factual findings regarding the care of Mr BFMB’s son changing.

25. Finally, as to merit, I see limited scope for the decision to change in relation to the AAT’s consideration of waiver of the debt in relation to administrative error.  In relation to family assistance debts, the AAT correctly identifies that ultimately waiver for sole administrative error requires a decision‑maker to be satisfied that repayment of the debt would cause severe financial hardship, and further identifies that the debt has been essentially paid.  For completeness, I observe that the AAT accepted that a duplicate payment of family assistance for 2021/22 was attributable solely to administrative error on the part of the Commonwealth and received by Mr BFMB in good faith.  I consider Mr BFMB has poor prospects of establishing that repayment of a debt that has been paid would place him in severe financial hardship.

26. In relation to the disability support pension debt, on the facts of the matter which do not appear to be in dispute as to Mr BFMB’s incarceration, I consider Mr BFMB has poor prospects of establishing that a delay of 8 days in cancelling his pension upon his incarceration is administrative error on the part of the Commonwealth.

27. As to discretionary waiver in special circumstances, I am conscious that it is always possible that circumstances would come to light that might justify the exercise of the discretion to waive recovery of the debt in special circumstances, and in that sense it is not possible to conclude that any such consideration would lack merit.  However, the nature of that discretion is such that Centrelink may exercise it at any time, and the possibility of a favourable exercise of that discretion does not, in my view, provide sufficient merit to justify of itself the grant of an extension of time.

28. For the purposes of an extension of time application, having considered all aspects of the matter Mr BFMB wishes to pursue in the Tribunal, I am not satisfied that his application has merit.

29. As to prejudice to be faced by the parties, the Secretary submitted the prejudice it faces includes difficulty in obtaining relevant and reliable documentary or witness evidence.  I have not found that submission persuasive in light of Centrelink’s resources.

30. The Secretary’s further contentions as to the general prejudice encountered when proceedings cannot be considered complete after the expiry of prescribed timeframes carry more weight in my view.

31. I consider that the commencement of a second review process would bring with it a degree of cost associated with the Secretary’s participation.  In this regard, the cost to the Commonwealth associated with the matter proceeding is not without some significance, but the weight to be attached to this consideration turns on my assessment of the merits of the matter.  I do not consider it is appropriate to grant an extension of time imposing a cost of the Secretary in participation where the application lacks merit.

32. Finally as to prejudice, I have taken into account the possibility that a third party may need to be joined to the application if it were to proceed.  There is nothing to indicate that party is aware of the controversy, and I consider that inviting participation at this late stage may be unwelcome and stressful.  This carries some weight against granting the application in my view.

33. On balance, as I am not satisfied there is an adequate explanation for the substantial delay, and the matter fundamentally lacks merit, I have concluded that it is not reasonable in all the circumstances to extend time.  I will therefore refuse the application to extend time.

    DECISION

34. The application for an extension of time is refused.