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

[2023] AATA 3670

Estanillo and Secretary, Department of Social Services (Social services second review) [2023] AATA 3670 (10 November 2023)

Division:GENERAL DIVISION

File Number(s):     2023/6621

Re:John Estanillo  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:10 November 2023

Place:Canberra

Application for extension of time dismissed.

…………………[SGD]…………………………

Mr S. Webb, Member

Catchwords

PRACTICE AND PROCEDURE – application for review of AAT first review decision – prescribed period – application for review outside the prescribed period – no adequate explanation for delay – failure to comply with Tribunal direction within a reasonable time – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 ss 29, 42A

REASONS FOR DECISION

Mr S. Webb, Member

7 November 2023

1. John Estanillo lodged an application for an extension of time in which to apply for review of an AAT first review decision, in respect of family tax benefit and schoolkids bonus overpayment debts, in various periods from 1 July 2013 to 13 September 2016.

2. The AAT first review decision was made on 4 February 2021. Reasons were given orally at the hearing.

3. Mr Estanillo was given written notice of the decision on 4 February 2021.

4. Mr Estanillo lodged an application for review of the AAT first review decision on 7 September 2023, in which he set out reasons for the application:

   Evidence of my personal situation was not taken into account, I have now obtained statutory declarations from witnesses proving my circumstance during this period of time when my previous partner claimed family allowance.

5. Mr Estanillo’s application included an application for grant of an extension of time. In the application, Mr Estanillo gave the following reason for the delay in applying for review:

   Personal phycological [sic] health reasons, COVID.

6. On 12 September 2023, the Respondent was given notice of Mr Estanillo’s application.

7. On 26 September 2023, the Respondent lodged a notice opposing Mr Estanillo’s application for grant of additional time.

8. On 28 September 2023, the Tribunal issued directions requiring Mr Estanillo to provide further information in support of his application by 12 October 2023. Mr Estanillo failed to do so.

9. On 18 October 2023, the Tribunal varied its earlier direction to allow Mr Estanillo more time, until 20 October 2023, to provide further and better information in support of his application. Mr Estanillo failed to comply with this direction. Since then, more than 2 weeks have elapsed. Mr Estanillo has not yet complied with the direction.

10. On 30 October 2023, the Respondent provided written submissions in support of its opposition to Mr Estanillo’s application for grant of an extension of time.

11. I am satisfied Mr Estanillo has had reasonable time in which to comply with the direction of the Tribunal. He has failed to do so and he has not engaged in any further communication with the Tribunal. In these circumstances, the precondition to exercise of the power conferred by s 42A(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act)is satisfied, and the discretion to dismiss Mr Estanillo’s application is engaged.

12. In consideration of all the circumstances, including Mr Estanillo’s failure to comply with the Tribunal’s direction within a reasonable time and his failure to communicate an intention to proceed with the application, I am satisfied it is appropriate to exercise the discretion to dismiss his application.

13. For this reason, his application is dismissed under s 42A(5)(b) of the AAT Act.

14. I note, ordinarily, Mr Estanillo’s application for additional time under s 29(7) of the AAT Act would not be determined without first hearing the Respondent’s objection under s 29(10). On the present materials, Mr Estanillo’s application would be unlikely to succeed as he has not given an adequate explanation for the delay of more than 31 months. Nevertheless, in the present circumstances, it is not necessary to hear his application for additional time, as the application is dismissed on other grounds.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member.

.....................[SGD]..............................................

Associate

Dated: 10 November 2023

Date final submissions received:	30 October 2023
Applicant:	Self-Represented
Solicitor for the Respondent:	George Lozynsky, Services Australia