Furqan and Secretary, Department of Education, Skills and Employment (Social services second review)

Furqan and Secretary, Department of Education, Skills and Employment (Social services second review) [2021] AATA 2916 (12 August 2021)
Division:GENERAL DIVISION
File Number: 2021/5100
Re:Munira Furqan
APPLICANT

AndSecretary, Department of Education, Skills and Employment
RESPONDENT

REASONS FOR DECISION
Tribunal:               Member R West
Date of decision:  12 August 2021
Date of written reasons:        18 August 2021
Place:Melbourne

The Tribunal made an oral decision on 12 August 2021 pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 extending the time for the making of the application for review in this matter to 27 July 2021. The following are the written reasons for that decision.
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Member R West

Catchwords
CHILD CARE SUBSIDY – appeal lodged out of time – application for extension of time under s 29(7) of the AAT Act – application not opposed – arguable ground of appeal – no prejudice to the Respondent – extension of time granted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999
Family Assistance (Immunisation Principles and Vaccination Schedules) (DSS) Determination 2018
Cases
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176 (5 July 1984)
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 (17 October 2008)
REASONS FOR DECISION
Member West
[date of written reasons]

The decision that the Applicant seeks to review is the decision of the Social Services and Child Support Division of the Tribunal, dated 7 June 2021 (2021/M158605) (Decision) in which the Tribunal considered an appeal from the decision of Services Australia (Centrelink) that the Applicant was not eligible to be paid Child Care Subsidy (CCS) for her child, F, from 7 October 2019 (AAT1 Review).
A written statement of the reasons for the Decision was received by the Applicant on

7 June 2021.
The Applicant lodged an application for the review of the Decision by the Tribunal on

27 July 2021, together with an application for an extension of time.
Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that the prescribed time for lodging an application with the AAT is within 28 days after notice of a decision is given to an Applicant.
The application for review of the Decision was required to be lodged with the Tribunal by

5 July 2021, and as such, the substantive application is 22 days out of time.
Subsection 29(7) of the AAT Act allows the Tribunal to extend the time for making an application for review if an application for an extension of time is made in writing by the Applicant. In this case, the Applicant lodged a written application for an extension of time, together with her application for review, on 27 July 2021.
Under s 29(7) the Tribunal may grant an extension of time if it is satisfied that it is reasonable in all the circumstances to do so.
The Respondent confirmed in written communication with the Tribunal on 9 August 2021 that the application for an extension of time was not opposed by the Respondent.
A hearing in relation to the application for an extension of time was held by telephone on

12 August 2021. The Applicant was represented by her husband, Furqan Ansari. The Respondent did not enter an appearance.
The Applicant stated that the reason for the delay in making the application for review was that the Applicant misunderstood the wording of the Decision and assumed that the review was continuing. When advised of the correct position the Applicant then lodged the application for review.
Relevant Considerations
The Federal Court has confirmed the prima facie rule that proceedings commenced outside the 28-day period should not be entertained. In relation to the discretion to extend time under s 29(7), the Court said:
It is a pre-condition to the exercise of the discretion in his favour that the application of an extension of time show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.[1]
[1] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176 (5 July 1984) at [18].
The relevant considerations for the exercise of the discretion may be summarised as follows: [2]
(a)there is no onus of proof upon an applicant for an extension of time but special circumstances need not be shown, and the Tribunal should not grant the application unless positively satisfied it is proper to do so;
(b)it is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay be given but such an explanation will normally be given and is a relevant matter to be considered;
(c)action taken by the applicant other than making an application to the Tribunal is relevant in assessing the adequacy of the explanation for the delay;
(d)it is relevant to consider whether the applicant has rested on their rights;
(e)any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a relevant consideration, but the absence of prejudice is not enough to justify the grant of an extension;
(f)it is appropriate to take the merits of the substantial application into account; and
(g)considerations of fairness as between the applicant and other persons in a similar position may be relevant.
[2]See Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 (17 October 2008).
Assessment
The background to the Decision is that the Applicant was in receipt of a CCS in relation to her child F who turned four years old on 3 July 2019. The CCS was cancelled from 7 October 2019 on the grounds that by that date F had not satisfied the relevant immunisation requirements. The Tribunal in the AAT1 Review found that the child received the required immunisation on 7 November 2019 and that immunisation was delayed due to the child’s illness and a doctor’s recommendation.
The statutory provisions relevant to the substantive review application are found within the family assistance law, in particular the A New Tax System (Family Assistance) Act 1999 (Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (Administration Act).
Section 85BA of the Act provides that the eligibility for CCS for a child for a session of care provided by an approved child care service, includes a requirement that the child must meet the immunisation requirements set out in s 6 of the Act.
Section 6 may be satisfied if:
(a)the child is immunised as required by the Family Assistance (Immunisation Principles and Vaccination Schedules) (DSS) Determination 2018 (Determination);[3] or
(b)a medical practitioner certifies that immunisation is contraindicated, the child has developed natural immunity or is participating in a vaccine study;[4] or
(c)vaccines are temporarily unavailable;[5] or
(d)the child was vaccinated overseas.[6]
[3] A New Tax System (Family Assistance) Act 1999 s 6(2).
[4] Ibid s 6(3).
[5] Ibid s 6(4).
[6] Ibis s 6(5).
Otherwise, under s 6(6), the Secretary may determine that the immunisation requirements are met by applying the principles set out in sections 10, 11, 12, 13 and 14 of the Determination. Section 10 relates to a refusal to consent to vaccination by a person with care of the child. Section 11 relates to situations where there is a risk of family violence if the child is vaccinated. Section 12 concerns permanent humanitarian visa holders.

Section 13 concerns unacceptable risks to the child or other persons as confirmed by the Commonwealth Chief Medical Officer. Section 14 concerns children who were born between 1 January 2017 and 1 February 2018.
The Applicant confirmed that the grounds stated in ss 6(3), (4) and (5) of the Act were not relevant to the substantive application for review, and further that the Applicant did not rely on any of the principles in sections 10,11,12, or 14 of the Determination.
The Applicant stated that the basis of the substantive application for review of the Decision was Section 13 of the Determination which provides that the requirements of the section are met if:
(a)a listed medical practitioner has certified in writing, in a form and manner, if any, required by the Secretary, that, for the reasons set out in the certificate, immunisation of the child would result in an unacceptable risk of physical harm to the child or a person administering a vaccination to the child; and
(b)the Commonwealth Chief Medical Officer has certified in writing that he or she agrees with the listed medical practitioner.
The Applicant stated that on review she would rely on the opinion of the child’s doctor that immunisation of the child at the relevant time involved an unacceptable risk to the child. While the Applicant was unable to make out this ground in the AAT1 Review, it is open to the Applicant to raise it before the Tribunal in these proceedings. The Tribunal is satisfied that the Applicant has an arguable ground of appeal, subject to presenting the appropriate evidence to substantiate the medical opinion and obtaining confirmation by the Chief Medical Officer.
The Tribunal accepts the Applicant’s explanation for the delay in lodging the application for review and, noting that the Respondent did not oppose the extension of time, the Tribunal is satisfied that an extension of time would not cause prejudice to the Respondent.
The Tribunal is satisfied that the brief period of delay in lodging the application for review does not provide a sufficient reason to deny the Applicant the ability to exercise the right of review afforded by the Act and it is reasonable in all the circumstances to grant the extension of time.
Decision
Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 the Tribunal extends the time for the making of the application for review in this matter to 27 July 2021.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the written reasons of the decision of Member R West

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Associate
Dated: 18 August 2021

Date of Interlocutory Hearing: 12 August 2021

Representative for the Applicant:

Representative for the Respondent:

Mr Furqan Ansari

No appearance entered

[2021] AATA 2916

12 August 2021

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Appeal

Procedural Fairness

Judicial Review

Standing

Statutory Construction