DJEBARRA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2011] AATA 746
•25 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 746
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2011/3364, 2011/3475-76
GENERAL ADMINISTRATIVE DIVISION ) & 2011/3478 Re ROBERT AMER DJEBARRA Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member K Bean Date25 October 2011
PlaceAdelaide
Decision Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal decides not to grant Mr Djebarra an extension of time for the making of applications for review of the decisions of the SSAT dated 28 August 2007 in SSAT applications A27400, A27514 and A27515 and 4 July 2008 in SSAT application A28425.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – Proceedings – Application for extension of time – Significant delay – Previous applications to AAT dismissed for non-attendance – Absence of acceptable explanation for delay – Some prejudice – Poor prospects on the merits – Extension of time refused.
Administrative Appeals Tribunal Act 1975 ss 29(7), 42A(2), 42A(8), 44(2A)
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Brown v Federal Commissioner of Taxation (1999) 42 ATR 118Lukac v Linfox Armaguard Pty Ltd & Anor [2010] FCA 740
REASONS FOR DECISION
25 October 2011 Senior Member K Bean introduction
1. The applicant, Mr Djebarra, has accumulated a number of significant debts to Centrelink. Those debts have arisen from the fact that, during 2005 and 2006 whilst he was in receipt of Disability Support Pension (DSP), amounts of money totalling approximately $300,000 passed through one of his bank accounts without explanation or notification to Centrelink. Once Centrelink became aware of these amounts, they were treated as undeclared “income” received by Mr Djebarra with the result that he was found not to have been entitled to the amount of DSP he received during the relevant periods, and a number of debts were raised against him.
2. In respect of two of the debts, for the periods 6 May 2005 to 4 March 2006 and 7 August 2006 to 30 March 2007 respectively, Mr Djebarra sought review of the relevant decisions, culminating in applications to this Tribunal for review of three decisions of the Social Security Appeals Tribunal (SSAT). Ultimately however, Mr Djebarra did not pursue his applications in this Tribunal for review of those decisions and each of the relevant AAT applications was dismissed following his failure to attend the hearing of the matters on 29 May 2008.
3. More than three years later, on 19 August 2011, Mr Djebarra lodged an application with this Tribunal seeking an extension of time to allow him to pursue further applications for review in respect of the same SSAT decisions of which he had previously sought review, together with a more recent SSAT decision affirming a debt of $1,636.74.
4. As s 29 of the Administrative Appeals Tribunal Act 1975 (AAT Act) requires an application for review to be lodged within 28 days of the decision of which review is sought, Mr Djebarra’s applications cannot proceed unless he is granted an extension of time pursuant to s 29(7) of the AAT Act.
the issue
5. The issue currently before me is whether Mr Djebarra should be granted an extension of time pursuant to s 29(7) of the AAT Act to seek review of any of the four SSAT decisions the subject of his application, being the SSAT decisions in appeals A27514, A27515 and A27400 dated 28 August 2007 and A28425 dated 4 July 2008.
background
6. Mr Djebarra is currently 68 years old. He arrived in Australia in 1972 from Algeria and was granted DSP from 19 August 2002.
7. As referred to above, during 2005 and 2006, substantial amounts of money were deposited into one of Mr Djebarra’s accounts with the Arab Bank. However Mr Djebarra did not advise Centrelink of these deposits within the required time frame.
8. Having become aware of the deposits, on 11 April 2007, a delegate of the respondent decided to raise and recover two debts arising from an overpayment of DSP to Mr Djebarra, being an amount of $8,659.66 for the period 6 May 2005 to 4 March 2006[1] and an amount of $7,688.33 for the period 7 August 2006 to 30 March 2007.
[1] SSAT decision in appeal numbers A27514 and A27515, dated 28 August 2007.
9. Mr Djebarra sought review of those decisions and on 19 July 2007, an Authorised Review Officer (ARO) decided to affirm the decision to raise and recover a debt arising from an overpayment of DSP of an amount of $8,659.66 for the period 6 May 2005 to 4 March 2006. The ARO also decided to vary the decision to raise a debt of $7,688.33 arising from an overpayment of DSP for the period 7 August 2006 to 30 March 2007, finding that a deposit of $20,000 made into Mr Djebarra’s bank account on 16 May 2005 should also be counted as income and the debt should be recalculated accordingly.
10. On 5 July 2007, Mr Djebarra applied for review of those decisions to the SSAT.
11. On 28 August 2007, the SSAT decided to affirm the decisions under review. The reasons for that decision included a finding by the SSAT that during the period 16 May 2005 to 4 March 2006, amounts totalling to $255,000 were deposited into Mr Djebarra’s Arab bank account and during August 2006 amounts totalling $51,663.51 were deposited into the account, however Mr Djebarra did not advise Centrelink of any of these deposits within 14 days as required[2].
[2] SSAT decision, A27514 and A27515, page 8.
12. The SSAT also concluded that the debt amount of $8,659.66 for the period 6 May 2005 to 4 March 2006 was correctly calculated and that there were no grounds to waive or write-off all or part of the debt. With respect to the overpayment amount of $7,688.33 for the period 7 August 2006 to 30 March 2007, the SSAT agreed with the ARO’s conclusion that this amount should be recalculated to take account of a deposit of $20,000 made into Mr Djebarra’s bank account on 16 May 2005. That debt was subsequently recalculated with the recalculated amount being $9,842.16.
13. On 28 August 2007, the SSAT also made a further decision to affirm decisions made by Centrelink to recover the debts arising from overpayments of DSP to Mr Djebarra, of $8,659.66 and $9,842.16 respectively, whilst the debts were still being reviewed[3].
[3] SSAT decision, A27400.
14. On 4 July 2008, following a request for review by Mr Djebarra, the SSAT made a further decision affirming a decision by an ARO to raise and recover a debt of $1,636.74 in respect of an additional overpayment of DSP during the period 30 August 2006 to 2 January 2007[4]. That decision was made on the basis of findings by the SSAT that DSP was not payable to Mr Djebarra between 7 August 2006 and 30 March 2007 and therefore he was not entitled to receive a lump sum of $1,636.74 for arrears paid to him on 19 February 2007. The SSAT found that this payment was made to Mr Djebarra solely as a result of an administrative error by Centrelink, however as Mr Djebarra did not receive the payment in good faith, the overpayment should be recovered.
[4] SSAT decision A28425, 4 July 2008.
15. In respect of the earlier SSAT decisions, in applications A27400, A27514 and A27515, Mr Djebarra applied for review of those decisions by this Tribunal in 2007, and those applications became AAT matters 2007/4389, 2007/4804 and 2007/5684. Those matters were set down for hearing on 29 May 2008, however Mr Djebarra failed to attend that hearing having previously written to the Tribunal advising that he refused to attend hearings of his appeals at any time. Accordingly on 29 May 2008, the Tribunal dismissed those applications pursuant to s 42A(2) of the AAT Act.
16. Mr Djebarra has not previously sought review of the SSAT decision in application A28425, relating to the debt of $1,636.74.
mr djebarra’s evidence
17. Mr Djebarra gave evidence in support of his application for an extension of time, explaining that one of the reasons he had decided to challenge the relevant decisions again was that he wanted to buy a unit, but was having difficulty borrowing money because of the debts.
18. Mr Djebarra also said that his health was poor and he was currently taking eight different medications each day. He said he had a heart problem and was also suffering from diabetes.
19. In explaining the large amounts which had passed through his bank account and which gave rise to his debts, he put forward a number of different explanations. One of the explanations he put forward was that he had had a row with his son, as a result of which his son had put $51,000 into his bank account with a view to incriminating him.
20. Consistently with what he had told the SSAT, Mr Djebarra also made reference to the fact that most of the funds which had passed through his bank account were part of an inheritance from a family friend intended for his children. Mr Djebarra told the SSAT in 2007 that in 2005 a family friend, Mr Jean Louis, gave an inheritance of $340,000 to Mr Djebarra’s children and that this amount was paid into Mr Djebarra’s son’s bank account. Mr Djebarra said that his son had then transferred various amounts into Mr Djebarra’s Arab bank account for transfer to his family in Algeria. Mr Djebarra further told the SSAT that he had made arrangements to authorise his children in Algeria to withdraw the money from the account. His evidence before me was broadly consistent with what he told the SSAT in 2007 and he also said that the amount of $20,000 paid into his account on 16 May 2005 was subsequently transferred to Algeria for his daughter’s wedding.
21. Mr Djebarra acknowledged that approximately $350,000 had passed through his Arab bank account and he had not told Centrelink about any of this money.
consideration
22. Although Mr Djebarra previously had applications on foot in this Tribunal in respect of three of the SSAT decisions the subject of his current application, I am satisfied that I nevertheless have jurisdiction to grant an extension of time for him to seek review of those decisions again, if I consider an extension of time to be warranted[5].
[5] See Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
23. For completeness, I also note that Mr Djebarra has not sought reinstatement of the earlier applications which were dismissed and did not do so within 28 days as required by s 42A(8) of the AAT Act. On the material before me, there are no grounds upon which the previous applications could potentially be reinstated.
24. Under s 29(7) of the AAT Act, the Tribunal has the power to extend the time for filing an application for review if “it is reasonable in all the circumstances to do so”.
25. Generally, to extend time the Tribunal must consider that there is an acceptable explanation for the delay and it is fair and equitable in the circumstances to extend time: per Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344. The applicable principles were summarised by Cowdroy J in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, by reference to an earlier decision of Federal Magistrate McInnis, as follows:
“18. … In Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109 Federal Magistrate McInnis considered the nature of the discretion contained in s 44(2A)(a) of the AAT Act, and said at [10]:
‘In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).
2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).
3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287).
4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287).
5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).
7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).
Such principles were applied by Gray J in Pham v Commonwealth of Australia [2002] FCA 669, although in the context of s 46PO(2) of the Human Rightsand Equal Opportunity Commission Act 1986 (Cth).’
19 The Court respectfully approves of McInnis FM’s articulation of the principles in relation to the discretion contained in s 44(2A)(a) of the AAT Act.”
26. The applicable principles were discussed here in the context of s 44(2A)(a) of the AAT Act rather than s 29. It is clear from the relevant authorities however that whilst they ought not be followed in a “slavish” way, these principles are also relevant in the context of s 29[6]. Other matters which have also been found to be relevant in the context of s 29 include the fact that there was a significant issue to be determined, the potential financial loss to an applicant, the length of the delay and ignorance of appeal rights[7].
[6] Brown v Federal Commissioner of Taxation (1999) 42 ATR 118.
[7] Pearce, D., Administrative Appeals Tribunal, Butterworths (2nd Edition, 2007), pp 56-62, [5.6]-[5.20].
27. Whilst the merits of the substantial application are clearly a relevant consideration, recent authorities have also suggested that caution should be exercised in reaching a view on the merits of an application in the context of an extension of time application and that a court or tribunal should be “slow to reject an application for an extension of time for no reason other than that the appeal, if prosecuted, would be unlikely – even very unlikely – to succeed”[8].
[8] See Lukac v Linfox Armaguard Pty Ltd & Anor [2010] FCA 740 at [12]-[13] and the authorities there referred to.
28. Before proceeding to discuss the application of the relevant criteria in this matter, I should expressly acknowledge that there are in effect four separate decisions in respect of which Mr Djebarra seeks an extension of time and there are some differences between those decisions as to the considerations which are relevant to whether an extension of time should be granted. For example, the decision in SSAT matter A28425 (relating to the debt of $1,636.74) has not previously been the subject of an application for review to this Tribunal, and the delay in that matter is also less than in the other matters, given that that decision was made on 4 July 2008. However, as there is also a large overlap in the considerations relevant to each application, I propose to consider the application of the most relevant criteria to each application concurrently.
Has Mr Djebarra provided an acceptable explanation for the delay?
29. As noted above, the most recent SSAT decision of which Mr Djebarra seeks review was made on 4 July 2008 and dispatched on 16 July 2008. Mr Djebarra’s application was received by the Tribunal on 19 August 2011, so the delay in respect of that application is approximately three years. In respect of the other SSAT decisions, his previous applications for review were dismissed on 29 May 2008, so in practical terms the delay in him seeking to reactivate those matters is approximately three years and three months.
30. Mr Djebarra has to some extent explained why he has now sought to reactivate these matters, by reference in particular to the difficulties he is having in borrowing money. However, he has not explained why, having regard to the applicable 28 day time limit, he did not seek to challenge SSAT decision A28425 earlier, and nor has he satisfactorily explained why, having chosen not to pursue his previous AAT applications in 2008, he has waited three years before seeking to reactivate those matters.
31. In these circumstances, I do not consider that Mr Djebarra has provided an acceptable explanation for his delay in seeking to challenge SSAT decision A28425, or in seeking to challenge again the SSAT decisions the subject of his earlier AAT applications. Therefore reference to this criterion militates against an extension of time being granted in any of the four applications.
Prejudice
32. Mr Visser, who appeared as advocate for the respondent, submitted that if an extension of time was granted, some prejudice would be suffered by the respondent as a result of Mr Djebarra’s delay in pursuing these matters. He referred in particular to the memory of relevant investigators, possible difficulties which would be encountered in locating all written records, the risk that some records may have been disposed of and the fact that Mr Djebarra’s own memory of the relevant events appeared to be poor and diminishing with time.
33. I note that Mr Djebarra acknowledged in his evidence that he had difficulty recalling some of the relevant events and transactions and I accept Mr Visser’s submission that if an extension of time were granted, the respondent would be likely to suffer some prejudice in respect of all four matters.
34. Accordingly, reference to this criterion also militates against an extension of time being granted.
Other actions taken by the applicant
35. There is nothing before me to suggest that Mr Djebarra has taken any other action to contest the correctness of the SSAT’s decisions subsequent to abandoning his previous AAT proceedings. Therefore reference to this criterion also militates against an extension of time being granted in any of the four applications.
Fairness
36. In relation to this criterion, Mr Visser pointed out that, having regard to his previous AAT applications, Mr Djebarra was clearly aware of his ability to challenge the relevant decisions in this Tribunal. Ms Visser also submitted that it was open to him to proceed with his previous applications and he had simply chosen not to do so. In these circumstances, Mr Visser submitted that considerations of fairness as between Mr Djebarra and other applicants would militate against an extension of time being granted.
37. I accept that submission, in particular with regard to the three applications Mr Djebarra previously had on foot and which he chose to abandon. I also consider that considerations of fairness as between Mr Djebarra and other applicants would militate against an extension of time being granted in respect of the most recent SSAT decision, having regard to the three year delay in Mr Djebarra lodging that application, his clear understanding of his rights and the lack of an acceptable explanation for his delay in seeking to challenge that decision.
The merits of the substantive application
38. There is limited material before me directed to the substantive merits of Mr Djebarra’s applications and it is not appropriate in any event that I canvass the merits of the applications in great detail. It is significant however that Mr Djebarra does not dispute the main factual bases upon which the SSAT reached its conclusions. For example, he does not dispute that more than $300,000 was deposited into his account from 16 May 2005 to 21 August 2006[9].
[9] SSAT decisions A27514 and A27515, p 7.
39. Mr Djebarra continues to assert, as he did before the SSAT, that he was using his Arab bank account to transfer money to his two children in Algeria and that most of this money formed part of an inheritance received from a friend. However, he has not provided any documentation in support of these claims, or indicated that he would be in a position to do so if this matter proceeded to a substantive hearing. At the hearing before me, he indicated that he was not intending to call his son or the relevant family friend, Mr Louis, to give evidence.
40. In relation to the overpayment of $1,636.74, Mr Djebarra did not contend before me that he received that money in good faith or believed he was entitled to it.
41. Having regard to these matters, I consider that Mr Djebarra has relatively poor prospects of succeeding in each of the four applications in respect of which he seeks an extension of time. Most significantly, on the material before me, I consider that he has relatively poor prospects of establishing that the large amounts of money which passed through his bank account in 2005 and 2006 did not constitute “income” within the meaning of the Social Security Act 1991.
Overall assessment
42. Having had regard to the applicable criteria, I have concluded that most of these militate against an extension of time being granted and that it is not appropriate that an extension of time be granted in any of the four applications. In reaching that conclusion I have had particular regard to the length of the delay in Mr Djebarra seeking to pursue these matters, being three years or more in each case, together with the lack of an acceptable explanation for that delay. I have also had regard to the fact that on the material before me, Mr Djebarra has poor prospects of succeeding in any of the applications and that some prejudice would be occasioned to the respondent if an extension of time was granted.
43. In the case of applications 2011/3475-6 and 2011/3478 (which relate to the earlier SSAT decisions), I have also had regard to the fact that Mr Djebarra previously had applications on foot in this Tribunal seeking review of the decisions the subject of those applications, which he effectively abandoned in 2008 when he declined to attend the listed hearing. In my view, that is also a circumstance which militates significantly against an extension of time being granted in respect of those applications. In effect, Mr Djebarra had his opportunity to seek review of those decisions and chose not to take advantage of that opportunity.
decision
44. Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal decides not to grant Mr Djebarra an extension of time for the making of applications for review of the decisions of the SSAT dated 28 August 2007 in SSAT applications A27400, A27514 and A27515 and 4 July 2008 in SSAT application A28425.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: .....................................................................................
AssociateDate of Hearing 14 September 2011
Date of Decision 25 October 2011
Advocate for the Applicant Self representedAdvocate for the Respondent Mr C Visser
Program Litigation and Review Branch
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