Bonser and Secretary Department of Family and Community Services

[2003] AATA 1161

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1161

ADMINISTRATIVE APPEALS TRIBUNAL      )

)         No N2003/1501

GENERAL ADMINISTRATIVE   DIVISION		)
Re		LAUREN BONSER

Applicant

And SECRETARY DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Member

Date28 October 2003

PlaceSydney

Decision Pursuant to section 33 of the Administrative Appeals Tribunal Act1975, the Tribunal decides, for the reasons given orally, not to exercise the discretion to grant an extension of time for the Applicant pursuant to section 29(7) of the Act, for the lodgment of an application for reviewable decision dated 7 August 2003.

[Sgd]  Ms N Bell        Member  

ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N03/1501
By  MS N.P. BELL, Member
BONSER and SECRETARY, DEPARTMENT
OF FAMILY & COMMUNITY SERVICES
SYDNEY, TUESDAY, 28 OCTOBER 2003

MS BELL:  In considering whether to grant an extension of time, the Tribunal applies the principles in the Federal Court decision of Hunter Valley Developments Pty Limited v Cohen..  There are a number of criteria that arise from that decision and they are most notably that the Applicant should provide a reasonable explanation for the delay; second, that the Applicant should have taken action other than this application to make the decision maker aware that he or she contests the finality of the decision; third, that the Respondent should not be unduly prejudiced if the time is extended and; fourth, the merits of the substantive application are properly to be taken into account in considering whether an extension is to be granted.

In this case, the delay by the applicant in lodging an application for review is a mere 11 days.  There is no evidence of prejudice to the respondent arising out of that minor delay nor is it asserted by the respondent that such prejudice exists.  I accept the applicant's reasons as put forward by Ms Hills for the delay as being a combination of the applicant, currently aged 17, having broken her arm and the Applicant's mother, Ms Hills being absent for work during the crucial period.

I also accept Ms Hills' evidence that the applicant relies on her assistance in her dealings with Centrelink and in the process of review and in the case of a 17, year old school student, that is entirely understandable.  In this way, I am satisfied that there is an adequate explanation for the delay in lodging the application for review, that the period of the delay is minor and that the delay of itself causes no prejudice to the Respondent.  The question of the merits of the substantive application remains to be considered.

In doing that, I have had regard to the decision of the Federal Court in Kuljick v the Secretary of the Department of Social Security which was cited in the submission of the respondent and to the Federal Court's decision in Moody v the Department of Defence.  As noted in Moody:

"Any assessment of the merits of a case should be conducted with caution."

In this case, there is no dispute as to the facts. At the time of the claim and the original decision to not grant a Healthcare card to the applicant, she was 16 years old, financially dependent on her parents and a secondary school student. The qualifications for a Healthcare card are set out in section 1061Z0 of the Social Security Act 1991. The effect of that provision and particularly subsection 3 is that among other things, if a person is a family tax benefit child, as the applicant is, and over the age of 16 years and is a secondary school student then the person is not qualified to receive a Healthcare card.

Ms Hills, on behalf of the applicant noted that the applicant's case is special in that she suffers from insulin dependent diabetes and requires daily blood tests and insulin injections.  The costs associated with the treatment required by the applicant are significantly higher without the benefit of a Healthcare card.  I acknowledge that the legislation operates so as to render the applicant, merely by virtue of her having turned 16, ineligible to receive the Healthcare card.  I sympathise with the applicant's view and that of Ms Hills that the legislation creates an apparently unjustified gap in its coverage and does not take account of circumstances such as those of the Applicant. 

However, the Tribunal is bound to apply the law as it stands and its power standing in the shoes of the original decision maker is limited to that. There is no discretion available to any decision maker in these circumstances.  It follows that the substantive application has no prospects of success.  That being so, and as said by Von Doussa J in Kuljick:

"It would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the cost of defending a pointless appeal."

I would also add that it would be unfair and unjust to the applicant to grant an extension of time to pursue an application and create an expectation of possible success where that application has no prospects of success.  That is not to mention the time and effort involved in pursuing an application in this Tribunal.  For these reasons I refuse to grant the application for extension of time.