El-Haouli and Secretary, Department of Family and Community Services
[2004] AATA 993
•22 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 993
ADMINISTRATIVE APPEALS TRIBUNAL)
) Nº V2004/413GENERAL ADMINISTRATIVE DIVISION)
Re: NADA EL-HAOULI
Applicant
And:SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member Date22 September 2004
PlaceMelbourne
Decision The Tribunal refuses the application for an extension of time in which to apply for review of a decision of the Social Security Appeals Tribunal made on 28 January 2004.
The Tribunal recommends and requests that consideration be given to making an ex gratia payment of maternity allowance to Mrs El-Haouli.
[sgd] Joan Dwyer
Senior Member
SOCIAL SECURITY – extension of time – application for review by Tribunal one month out of time – Hunter Valley considerations – applicant visited Centrelink within time but no appointment made to speak with her with interpreter until out of time – good reason for delay and respondent aware applicant contested finality of decision – no prospect of success in application for review because application for maternity allowance out of time and not meeting criteria for extension – harsh effects of maternity allowance provisions – applicant unable to apply for maternity allowance within time as overseas because of illness of husband – unable to return in time because of lack of help from Embassy and other administrative and practical delays beyond applicant’s control – recommendation that consideration be given to ex gratia payment of maternity allowance – application for extension of time refused.
A New Tax System (Family Assistance)(Administration) Act 1999 s 39(2), s 39(3)
Administrative Appeals Tribunal Act 1975 s 27(2), s 29(7)
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305
REASONS FOR DECISION
22 September 2004 Mrs J Dwyer, Senior Member 1. This is an application for an extension of time in which to apply for review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 28 January 2004 and furnished to Mrs El-Haouli on or about 4 February 2004. The SSAT decision affirmed a decision refusing Mrs El-Haouli’s application for maternity allowance under the Family Assistance (Administration) Act 1999 (“the Family Assistance Act”), in respect of her twins Aya and Manar, born in Lebanon on 26 December 2002.
2. There seems to be some confusion as to the appropriate English transcription of Mrs El-Haouli’s name. The SSAT decision and the Centrelink records received in evidence spell her surname “El-Hawli”. However, documents lodged by her, or on her behalf, such as her application for review by this Tribunal, her application for an extension of time and her affidavit of 23 August 2004, spell her surname “El-Haouli”. Accordingly, the title of these proceedings has been amended to show the applicant as Mrs Nada El-Haouli.
3. Mrs El‑Haouli appeared by telephone with the assistance of Mr Khayat, an Arabic interpreter. Ms Paul, an advocate with Centrelink, appeared for the Secretary of the Department of Family and Community Services (“the Secretary”). The Tribunal had before it the following relevant documents:-
(i)The SSAT decision made on 28 January 2004;
(ii)Mrs El-Haouli’s application for review by the Administrative Appeals Tribunal (“AAT”), lodged on 5 April 2004;
(iii)Mrs El-Haouli’s application, dated 26 April 2004, seeking an extension of time in which to lodge the application for AAT review;
(iv)A letter from Mrs El‑Haouli addressed ‘To whom it may concern’, and received by the Tribunal on 10 May 2004; and
(v)A letter from Centrelink dated 18 May 2004 objecting, on behalf of the Secretary, to the requested extension of time and setting out the Secretary’s reasons for objecting.
4. During the hearing, Ms Paul obtained printouts of various Centrelink screens showing Mrs El‑Haouli’s contact with Centrelink seeking assistance in lodging her application for review by this Tribunal. That bundle of eight pages including a cover sheet was taken into evidence as exhibit R1.
5. The Tribunal also received an affidavit from Mrs El-Haouli (A1), lodged by leave of the Tribunal on 23 August 2004. A copy was sent to Ms Paul together with a letter allowing the Secretary 14 days to make a submission in response to it. No response was received.
6. Section 27(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) provides that an application for review should be lodged within 28 days of the date the decision is “furnished” or provided to the applicant. Section 29(7) of the AAT Act gives the Tribunal power to extend that time upon application in writing. It is that power which is being considered in this decision.
7. A list of relevant factors to be considered in an application for an extension of time are set out in the decision of Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 58 ALR 305. The ultimate question is whether it is fair and equitable in the circumstances to extend time. In reaching a decision on that issue the following factors are relevant:
(a)the explanation for the delay;
(b)any action taken to make the decision‑maker aware that the finality of the decision is contested;
(c)any prejudice or problems arising because of the delay;
(d)whether the extension of time would unsettle other people or established practices;
(e)the merits or chance of success of the application to review a decision; and
(f)considerations of fairness to other people in a similar position.
(a) the explanation for the delay & (b) action taken to make the decision-maker aware that the finality of the decision is contested
8. In her evidence, Mrs El‑Haouli said that, about a week after receiving a copy of the decision of the SSAT, she went to her local Centrelink office to ask how to apply to review that decision. She said she was told the staff could not communicate with her without an interpreter, and the first available interpreter appointment was more than a month later.
9. At the Tribunal’s request, Ms Paul obtained a print out of the Centrelink screens showing contact with Mrs El‑Haouli about the SSAT decision. Those screens (R1) show that Centrelink was advised electronically of the decision on 2 February 2004. I find, on that evidence, that Mrs El‑Haouli was probably advised by letter on about 4 February 2004. That means that under s 29(2) of the AAT Act she should have lodged her application with the AAT by 4 March 2004. As stated in paragraph 3 of these reasons, her application was lodged on 5 April 2004.
10. The Centrelink screen printouts show that Mrs El‑Haouli contacted Centrelink by phone on 25 February 2004. The printouts confirm that an appointment was made for her with an Arabic interpreter on 23 March 2004 at 11.15 am and that Mrs El-Haouli attended that interview.
11. The Centrelink screen printouts confirm that Mrs El‑Haouli contacted Centrelink when she was still within time to lodge her application for review. By the time she attended the first available appointment with an interpreter she was already out of time. That is unfortunate and most unsatisfactory.
12. I find that Mrs El-Haouli’s evidence and the evidence obtained from the screen printouts provide a good explanation of Mrs El-Haouli’s delay in lodging her application with the Tribunal. That evidence also shows that, by going to her local Centrelink office, Mrs El-Haouli took action to make the respondent aware that she contested the finality of the SSAT decision. Those matters go some way towards indicating that an extension of time should be granted to her. It is, however, also necessary to consider the other relevant factors.
(c) any prejudice or problems arising because of the delay
13. Ms Paul conceded that the delay of one month in lodging the application for review did not give rise to any prejudice or problems.
(d) whether the extension of time would unsettle other people or established practices
14. There was no evidence that the grant of an extension of time would unsettle other people or established practices.
15. In its objection to Mrs El-Haouli’s application for an extension of time, the respondent submitted that, “[a]s a general proposition, it is in the public interest that there be an end to the appeal process. Time limits are imposed to ensure there is an orderly conclusion to the process”. While that is correct, the extension of time provisions are there because there will be situations where the public interest is better served by extending the time limit, rather than by depriving a person of the opportunity to seek a remedy. Where the application was lodged late because there was no access to legal advice or interpreters’ services within time, the public interest could well call for an exercise of the discretion to extend time.
(e) the merits or prospects of success in the application for review
16. As the SSAT pointed out in its decision, the relevant legislation, A New Tax System (Family Assistance)(Administration) Act 1999 (“the Family Assistance Act”) provides in s 39(2) that, subject to s 39(3), a claim for family allowance must be lodged within 26 weeks of the birth of the child. There is no general provision allowing for an extension of time in special circumstances. The only provision allowing an extension to that period is s 39(3), which provides:
Section 39 - Restrictions on claiming
…
3)If the Secretary is satisfied that the claimant was unable to make a claim for payment of maternity allowance in normal circumstances because of severe illness associated with the birth of the child concerned, the Secretary may extend the period of 26 weeks mentioned in subsection (2) to such longer period as the Secretary considers appropriate.
…
17. Mrs El-Haouli lodged a claim for maternity allowance in respect of the twins on 19 August 2003, 33 weeks after their birth. In its decision, the SSAT said that it had asked Mrs El‑Haouli whether she and the twins were healthy after the birth, and she had said that they were. At the hearing, I asked her whether she had suffered any illness after the birth and she said, “In all honesty I did not” or words to that effect.
18. Thus, even if I were to extend the time for Mrs El‑Haouli to lodge her application with this Tribunal, there is no way she could succeed in showing an entitlement to maternity allowance under the Family Assistance Act. There is therefore no point in granting the extension. I will, as I said during the hearing, refuse the application for an extension of time.
19. However, Mrs El‑Haouli’s circumstances demonstrate that s 39(2) and s 39(3) of the Family Assistance Act can operate harshly. Mrs El-Haouli said that her husband had cancer and schizophrenia. Those diagnoses are confirmed in the exhibits lodged with her affidavit of 23 August 2004. The documents also show that he has suffered from chronic depression and psychosis.
20. Mrs El‑Haouli gave evidence that the family travelled to Lebanon, when she was four months pregnant, seeking medical treatment for her husband. They took with them their seven children.
21. Mrs El-Haouli said that, after the twins were born, she had gone to the Australian Embassy in Beirut to apply for maternity allowance. She said that she was told the Embassy in Beirut could not help her, and she would have to wait until she returned to Australia to apply for maternity allowance. She said in her affidavit (A1) that a woman at the embassy told her it was “none of their business”.
22. Mrs El-Haouli gave evidence that the family had to wait to return to Australia, first, until they obtained passports for the twins and then until they found a flight with sufficient seats for their family of 11. Until she returned to Australia, she could not lodge an application for maternity allowance. She said in her affidavit (A1) that she and her husband applied for passports for the twins at the Australian Embassy in Beirut, but they were told they had to be registered as citizens before they could obtain their passports. She said she had to wait for documents to be translated before she could register the twins as citizens. The whole process of obtaining passports for them took about 3 months. Mrs El-Haouli said that the family left Lebanon on the first available flight that they could all get on together, after the children’s passports were issued. The copies of the twins’ passports attached to her affidavit show that they were issued on 30 July 2003, and that the family departed Lebanon on 13 August 2003.
23. I gave Mrs El-Haouli leave to provide some more detail as to her husband’s severe illnesses and as to the other delays mentioned by her in her evidence. I told her that if she sent that material to the Tribunal, and if it seemed appropriate, I would recommend and request that consideration be given to an ex gratia payment of maternity allowance.
24. I consider that Mrs El-Haouli’s evidence, including the affidavit and annexures she lodged with the Tribunal, establish that she faced very significant difficulties which were not in any way due to her failures, but which meant that she was unable to make a claim for payment of maternity allowance within the prescribed time. Those reasons were associated with her husband’s severe illnesses, with the fact that, due to her husband’s illness, the twins were born overseas, and with the difficulties she had obtaining assistance from the Australian Embassy in Beirut. There were also other administrative and practical delays in obtaining citizenship and passports for the twins and in obtaining seats on a flight for a family of 11.
25. While Mr El‑Haouli’s illness and the difficulties Mrs El‑Haouli faced in making her claims are not “severe illness associated with the birth of the child”, as specified in s 39(3), Mr El‑Haouli’s illnesses are severe, and the difficulties the family faced in returning to Australia within the 26 weeks specified in s 39(2) of the Family Assistance Act do provide a very reasonable explanation for the delay in lodging the claim 33 weeks after the birth of her twins, rather than within 26 weeks.
26. I will refuse the application for an extension of time. However, I consider this is an appropriate matter in which to recommend and request that consideration be given to making an ex gratia payment of maternity allowance to Mrs El-Haouli.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer.
Signed: Josephine McKay
AssociateDate/s of Hearing 9 July 2004
Date of Decision 22 September 2004
Representative of Applicant Self
Advocate for the Respondent Ms K Paul
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