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

[2020] AATA 1853

Chouman and Secretary, Department of Social Services (Social services second review) [2020] AATA 1853 (19 June 2020)

Division:GENERAL DIVISION

File Number(s):      2020/2055

Re:Jinan Chouman

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:19 June 2020

Place:Sydney

The application for an extension of time is refused.

................................[sgd]................................

Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – extension of time application – whether there is an acceptable explanation for delay – whether Respondent is prejudiced by delay – whether Applicant rested on her rights – considerations of fairness between Applicant and others in a similar situation – whether substantive application has merits – qualification for carer payment – cessation of care beyond allowable period – cancellation of carer payment – waiver of debt arising from error – waiver of debt in special circumstances – writing off debt – prejudice to the public – whether it is reasonable in all the circumstances to grant the extension – extension of time application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Evidence Act 1995 (Cth) ss 160, 182

Social Security Act 1991 (Cth) ss 198, 198AC, 1223, 1236, 1237A, 1237AAD

Social Security (Administration) Act 1999 (Cth) s 80

CASES

BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Jamal v Secretary, Department of Social Services [2018] FCA 513

Parker v R [2002] FCAFC 133

Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109

REASONS FOR DECISION

Chris Puplick AM, Senior Member

19 June 2020

1. Ms Jinan Chouman (Applicant) has applied to this Tribunal for an extension of time (EOT) to make an application for a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1). The AAT1 affirmed a decision by a delegate of the Secretary (Respondent) in the then-Department of Human Services (Centrelink), now Services Australia, to cancel her carer payment and recover certain debts incurred by way of overpayment.

2. The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that applications for a review of AAT1 decisions must be made within 28 days of the receipt of the decision by an applicant.[1] In this case the decision of the AAT1 was made on 21 January 2020 but for some reason the Applicant was not notified of its decision until a letter was sent to her dated 30 January 2020.

   [1] Administrative Appeals Tribunal Act 1975 (Cth) s 29(2).

3. There is some dispute as to what should be taken as the 28^th day after 30 January 2020.

4. The Respondent claims that the letter of 30 January 2020 should be taken to have been received by the Applicant by 5 February 2020, being four working days after the date of postage. In this respect she cites section 160 of the Evidence Act 1995 (Cth) (Evidence Act).[2]

   [2] Respondent’s outline of submissions dated 14 May 2020 (outline of submissions) at [16].

5. However, that section reads:

   Postal articles

   1It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the seventh working day after having been posted. (Emphasis added)

   2This section does not apply if:

   (a)the proceeding relates to a contract; and

   (b)all the parties to the proceeding are parties to the contract; and

   (c)subsection (1) is inconsistent with a term of the contract.

   3In this section:

   working day means a day that is not:

   (a)a Saturday or a Sunday; or

   (b)a public holiday or a bank holiday in the place to which the postal article was addressed.

   Note: Section 182 gives this section a wider application in relation to postal articles sent by a Commonwealth agency.

6. The Note in section 160, which references section 182 of the Evidence Act, does not appear to be relevant to the present matter.

7. The Tribunal thus reads the presumption provided for in the Evidence Act as meaning that the date of receipt was 10 February 2020, being the seventh working day after the date of postage on 30 January 2020.

8. Under the Respondent’s timeline, the 28^th day after receipt would be 4 March 2020. However, under the preferred and adopted timeline of the Tribunal it is 9 March 2020.

9. In any event the Applicant lodged her application for a review by the General Division of the Tribunal (AAT2) and an EOT application on 24 March 2020. The Tribunal takes this to be out of time by a period of 15 days. Even if the Respondent is correct that the application was 20 days out of time, the difference in this instance is immaterial.

   EXTENSION OF TIME PRINCIPLES

10. When considering EOT applications, the Tribunal is bound by judicial authority as to the factors which it should take into account in deciding whether or not to grant such applications.

11. Time limits are important for the reasons outlined by McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor. His Honour gave four reasons why such limitations are an important part of the legal process. His Honour noted that:

    …First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.

    …The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.[3]

    [3] (1996) 186 CLR 541, 552-553. Footnotes and citations omitted.

12. While acknowledging that applications received out of time will generally not be accepted, it is also generally accepted that the “checklist” outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[4] should be taken as the guide by this Tribunal in determining EOT matters.

    [4] (1984) 3 FCR 344.

13. That list provides as follows:

    (a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

    (b)a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

    (c)any prejudice to the respondent caused by the delay;

    (d)whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;

    (e)the merits of the substantial application; and

    (f)“[c]onsiderations of fairness as between the applicant and other persons” in a similar position.

14. This checklist has been endorsed in many further decisions of the courts, albeit on occasion with slight variations or modifications.[5] However, the Tribunal has accepted that this checklist effectively covers all the matters to which the Tribunal should have regard.

    [5] Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411; Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109; BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326, [3]; Parker v R [2002] FCAFC 133, [6].

15. In this instance there are two items which merit particular consideration: whether there is an acceptable explanation for the delay and whether the application for review itself has any reasonable prospect of success at a full merits hearing.

16. It is clear that the Applicant has not rested on her rights; she has been active in the pursuit of her case. The delay is sufficiently short that no real prejudice would result for the Respondent or the general public.

    Explanation of delay

17. The Applicant told the Tribunal that during early March she was under considerable pressure with her caring responsibilities for her mother (Mrs Hasna Chouman), her ill father and two small children as a single parent, all compounded by the imposition of restrictions associated with Australia’s response to the COVID-19 pandemic.

18. While, in normal circumstances, the Tribunal might not accord weight to a claim of managing family responsibilities as sufficient to establish an “acceptable explanation” for the delay in the Applicant making an application for review, in these fraught times the Tribunal is inclined to be more sympathetic to such claims. The Respondent herself acknowledges that the delay “is not a significant delay”.[6] The Tribunal is therefore prepared to accept that there was an acceptable explanation in this case.

    [6] Outline of submissions at [17].

    Merits of the substantial application

19. The initial decision to cancel the Applicant’s carer payment and recover a debt for overpayment was made by the Respondent on 4 October 2019. The Applicant sought an internal review of this decision which was affirmed by a departmental Authorised Review Officer (ARO) on 14 November 2019.

20. These decisions were based on the following facts, as set out by the Respondent in her outline of submissions:

    6The summary of the factual matters giving rise to the original decisions, as found by the ARO and summarised by the AAT1 at [5] of the Decision are:

    (a)the Applicant had been receiving a carer payment for caring for her mother, Mrs Hasna Chouman (Mrs Chouman) since 20 August 2012;

    (b)Mrs Chouman departed from Australia on 30 December 2018 without the Applicant and returned on 7 February 2019. This totalled 37 respite days in the 2019 calendar year; and

    (c)the Applicant commenced employment in excess of 25 hours per week, including travel to and from work, with employer SSI from 7 August 2019 meaning Mrs Chouman was absent from the Applicant's care.

    7As such, the Applicant exceeded 63 days of respite care as of 2 September 2019 due to the combined days Mrs Chouman was overseas without the Applicant, and from the date of 7 August 2019 when the Applicant commenced working in excess of 25 hours per week.

    8The Applicant received a carer payment of $332.13 in the debt period. The carer payment was cancelled from 2 September 2019 as the Applicant had exceeded 63 days respite care in the calendar year.

21. The relevant legislative provisions regarding eligibility for carer payment are to be found in ss 198(1) and 198AC of the Social Security Act 1991 (Cth) (Act) and the cancellation or suspension of such payment are authorised by section 80 of the Social Security (Administration) Act 1999 (Cth).

22. The AAT1 examined the findings of the ARO and confirmed them in its decision of 21 January 2020.

23. The AAT1 decision also confirmed that the Applicant had acknowledged to the Tribunal that she had failed to advise Centrelink of the effective change in carer arrangements arising from her mother’s overseas absence for the relevant period in 2019,[7] something which she repeated when questioned in this Tribunal hearing. The Applicant believed that her mother had advised Centrelink of her travel plans, and hence she herself did not have to advise Centrelink any further.

    [7] Decision of the Social Services and Child Support Division dated 21 January 2020, Chouman and Secretary and Chief Executive Centrelink, 2019/S143824 at [15] and [17].

24. The combined effect of her mother’s overseas absence and the Applicant’s commencement of, and continued, employment meant that her mother was not in her care in excess of the allowable 63 days per calendar year.

25. There is, thus, no doubt that the Respondent was correct in cancelling the carer payment and that, as a result, a recoverable debt of $332.13 was correctly raised to the Commonwealth under section 1223 of the Act.

26. The decision of the AAT1 went on to consider whether or not there were any circumstances which would lead to this debt being waived under sections 1237A or 1237AAD, or written off under section 1236, of the Act. The AAT1, after careful examination and after hearing evidence from the Applicant, determined that there were not.

27. Before this Tribunal the Applicant offered no evidence as to why the debt, which had been raised correctly, should be waived or written off. The Applicant did not advance any arguments based on the criteria set out in the Act, for example that the debt arose as a result of the sole administrative error of the Respondent, that there were errors in the way in which the debt had been calculated, that there were any special circumstances which would cause it to be waived nor that she did not have the capacity to repay the debt.

    DISCUSSION

28. If an EOT is granted in any matter there must be a presumption that were the matter to be heard by the AAT2, some possibility exists of the AAT1 decision being set aside or varied. In the event that there is no prima facie case that this course of action would be open to this Tribunal, it would not be in the interests of any of the parties for the matter to be allowed to continue.

29. It would not be in the interests of the Applicant because, with no prospect of success on the merits, the final resolution of this matter would likely be delayed for many months were an EOT granted and the proceedings kept on foot. If the debt were allowed to persist it is unclear as to whether or not interest might accrue on it thereby, at least marginally increasing it and making repayment more difficult for the Applicant.

30. It would also not be in the interests of the Tribunal or the public, as outlined by Bromwich J:

    The last relevant principle set out in Hunter Valley Developments was that the merits of the substantive appeal should to be taken into account. Her Honour followed the view expressed by Mortimer J in MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; 242 FCR 585 at [62], upheld by the Full Court in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478, to the effect that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court.[8]

    [8] Jamal v Secretary, Department of Social Services [2018] FCA 513, [6].

31. Applying another of the Hunter Valley Developments principles, to allow this application to go forward would be to violate the principle that the Tribunal should give “considerations of fairness as between the applicant and other persons” in a similar position. It is the commonplace practice to refuse extensions of time for applications lacking substantial merit.

32. The Tribunal is not satisfied in this case that it is reasonable in all the circumstances to extend the time for the Applicant to make an application for review.

    DECISION

33. For the reasons stated above the application for an extension of time is refused.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate

Dated: 19 June 2020

Date(s) of hearing:	19 May 2020
Applicant:	In person (by telephone)
Solicitors for the Respondent:	Ms C Campbell, Services Australia