Habibi and Secretary, Department of Social Services (Social services second review)
[2016] AATA 584
•10 August 2016
Habibi and Secretary, Department of Social Services (Social services second review) [2016] AATA 584 (10 August 2016)
Division
GENERAL DIVISION
File Number(s)
2016/3114
Re
Hamidullah Habibi
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A Poljak
Date 10 August 2016 Place Sydney The Applicant’s request for an extension of time to lodge a review application is refused.
...........................[sgd].............................................
Senior Member A Poljak
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – disability support pension – reasons for delay – prospects of success – Agreement on Social Security between the Government of Australia and the Government of New Zealand – whether “totally unable” to work for the next two years – extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 29
Social Security Act 1991, s 94
Social Security (Administration) Act 1999
Social Security (International Agreements) Act 1999, s 6, Sch 3
CASES
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Comcare v A’Hearn (1993) FCA 498; 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (2013) 213 FCR 532
REASONS FOR DECISION
Senior Member A Poljak
10 August 2016
INTRODUCTION
On 4 March 2016, the Administrative Appeals Tribunal, Social Services and Child Support Division (“SSCSD”) affirmed the decision of the Department of Human Services (“the Department”) to reject the applicant’s claim for the disability support pension (“DSP”). Mr Habibi seeks review of this decision (“substantive matter”).
These interlocutory proceedings concern an application for an extension of time with respect to the substantive matter, pursuant to section 29 of the Administrative Appeals Tribunal Act 1975 (“ the AAT Act”).
The Secretary opposes the extension of time sought.
BACKGROUND
On 21 July 2015, Mr Habibi arrived in Australia, from New Zealand, as the holder of a Special Category Visa (subclass 444) (temporary) (“SCV Visa”).
On 31 July 2015, Mr Habibi applied for DSP (“the claim”).
On 9 September 2015, the claim was rejected on the basis that Mr Habibi was not severely disabled. The decision was affirmed on internal review and by the SSCSD.
On 15 June 2016, Mr Habibi filed a claim for review of the substantive matter, approximately ten weeks outside of the 28 day time limit for lodging appeals.
PRINCIPLES TO BE APPLIED FOR AN EXTENSION OF TIME APPLICATION
Ordinarily, an application for review of a decision must be lodged with the Tribunal within 28 days from the day on which the decision is given to the applicant pursuant to subsection 29(2)(a) of the AAT Act.
The Tribunal may extend the time for lodging an application if it “is satisfied that it is reasonable in all the circumstances to do so” pursuant to section 29(7) of the AAT Act.
The principles to be applied in determining an application for an extension of time are well-known. In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J said, at [348] and [349], that the principles guiding the exercise of the discretion could be distilled from the authorities as including, “although not in any exhaustive manner”:
(a)it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, and 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”, allowing 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 is a material factor militating against granting an extension;
(d)the mere absence of prejudice is not enough to justify an extension; the “unsettling of other people” or of established practices is “likely to prove fatal to the application”;
(e)the merits of the substantial application are properly to be taken into account;
(f)“Considerations of fairness as between the applicant and other persons” in a similar position are relevant.
These principles are not to be applied mechanically. For example, an “acceptable explanation for the delay” is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given: Comcare v A’Hearn (1993) FCA 498; 45 FCR 441.
The principles in Hunter Valley Developments have been considered in subsequent cases and expanded on, or modified, according to the particular case. Relevant to these proceedings, in Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [18], Cowdroy J cited McInnis FM in Phillips v Australian Girls’ Choir Pty Ltd and Anor [2001] FMCA 109 at [10]:
In the light of A’Hearn’s case, it is clear that … it should not be any longer regarded as law that the inexcusable delay on the part of the 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.
All of the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all the circumstances to grant the extension.
DELAY
Mr Habibi told the Tribunal at hearing that he filed his application for review late because he was new to the country and struggled with language difficulties and his health problems. Ultimately, Mr Habibi sought legal advice from legal aid, which assisted him with his application for review, albeit out of time.
Mr Habibi was self-represented at hearing with the aid of a Dari interpreter. It was plain at the hearing that Mr Habibi’s knowledge of the English language is very poor as he was only able to communicate through the interpreter.
The length of delay involved in an application may be a relevant consideration. In this matter, Mr Habibi’s significant language difficulties may very well have posed challenging. Given the circumstances I accept that the delay in not unreasonable. That then leaves the question of merit.
MERITS OF SUBSTANTIVE MATTER
The Secretary contends that Mr Habibi’s prospects of success in the substantive matter are very poor.
Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a view as to the prospects of Mr Habibi’s application for review.
A claim for a disability support pension must be made in accordance with the Social Security (Administration) Act 1999 (Cth) (“Administration Act”). This provides, amongst other things, for the manner in which a claim for a social security payment is to be made. To be eligible for a disability support pension, a claimant must satisfy s 94(1) of the Social Security Act 1991 (Cth) (“Social Security Act”).
Section 94(1)(e) of the Act relevantly provides that, to qualify for payment:
(e)the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
The phrase “qualifying Australian residence” is defined in s 7(1) as having the meaning given by s 7(5) of the Social Security Act. That subsection provides that:
A person has 10 years qualifying Australian residence if and only if:
(a)the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b)the person has been an Australian resident during more than one period and:
(i) at least one of those periods is 5 years or more; and
(ii) the aggregate of those periods exceeds 10 years.
Pursuant to s 7(1) of the Social Security Act, the term “Australian resident” has the meaning given by s 7(2). Section 7(2) provides that an “Australian resident” is a person who:
(a)resides in Australia; and
(b)is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
The respondent was not an Australian citizen. He was neither the holder of a permanent visa nor a “protected SCV holder.
A “protected SCV holder” has the meaning given by subsections (2A), (2B), (2C) and (2D) of the Social Security Act. A person is a protected SCV holder if the person (inter alia) was residing in Australia on 26 February 2001
Mr Habibi is of Afghan origin; born in Kabul. He escaped Afghanistan in 2001 and travelled by boat to Indonesia, where after time in Nauru, he was granted asylum in New Zealand. Mr Habibi has resided in New Zealand for 15 years and claims to be a New Zealand citizen.
Mr Habibi has recently moved to Australia from New Zealand on a SCV Visa, which is a non-protected SCV visa. As he is not an Australian resident as defined by the Social Security Act, his claim for the disability support pension is therefore subject to the Social Security (International Agreements) Act 1999 (Cth) (“the Act”). The Act forms part of the social security law pursuant to section 4.
Section 6 of the Act provides that the provisions of the Agreement “have effect despite anything in the social security law”, although “only in so far as the provision is in force and affects the operation of the social security law”. The term “social security law” includes the Social Security Act and the Administration Act.
By virtue of s 6 of the Act, where the provisions of the agreement are in force and affect the provisions of the Social Security Act or the Administration Act (or, indeed, any other part of the social security law), the provisions of the agreement override the provisions of those enactments. The effect of s 6 of the International Agreements Act is, in this way, to enact the overriding provisions of the Agreement as part of the law of Australia; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (2013) 213 FCR 532 at [39].
Schedule 3 of the Act provides an Agreement on Social Security between the Government of Australia and the Government of New Zealand (“the Agreement”). For the purposes of this Agreement an Australian disability support pension benefit is limited to cases where a person has a severe disability.
Article 3 provides that the Agreement applies to any person who is or has been an Australian resident; or is or has been a New Zealand resident. No person shall be entitled to claim a disability support pension under this Agreement unless he or she has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand pursuant to article 12, paragraph 4 of the Agreement.
At hearing, Mr Habibi gave oral evidence that he first moved to New Zealand in 2001 and lived there for 15 years and was in fact a New Zealand citizen. I am of the view that he may well have accumulated an aggregate of more than 10 years of residence in New Zealand and satisfies the requirement in article 12 of the Agreement.
The meaning of an Australian resident is defined in article 5, paragraph 1 of the Agreement and sets out a number of factors which must be taken into account when deciding whether a person is residing in Australia. It provides:
“Australian resident” has the meaning given to that term in the social security law of Australia but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia. In deciding whether a person is residing in Australia, regard must be had to the following factors:
(a)the nature of the accommodation used by the person in Australia;
(b)the nature and extent of the family relationships the person has in Australia;
(c)the nature and extent of the person’s employment, business or financial ties with Australia;
(d)the nature and extent of the person’s assets located in Australia;
(e)the frequency and duration of the person’s travel outside Australia; and
(f)any other matter relevant to determining whether the person intends to remain permanently in Australia;
and “residence in Australia” has a corresponding meaning. (emphasis added)
No evidence was provided at hearing in relation to Mr Habibi’s residence in Australia and this would certainly be an issue to explore on determination of the substantive matter (if an extension of time is granted) or for any future claims for DSP. I am unable to make a conclusive finding on this issue based on the limited evidence before me. For the purposes of this interlocutory hearing, in determining merit, I will assume that Mr Habibi may satisfy the residency requirements. The determinative question is then whether Mr Habibi suffers from a severe disability as defined in the Agreement.
Article 2 of the Agreement provides:
[1] Except as provided under paragraph 2, this Agreement shall apply to the following laws, as amended at the date of signature of this Agreement, and to any legislation that subsequently amends, supplements, consolidates or replaces them:
(a) in relation to Australia: the Acts forming the social security law in so
far as those Acts provide for, apply to or affect the following benefits:
…
(ii) disability support pension;
…
[2] For the purposes of this Agreement an Australian disability support pension and a New Zealand invalid’s benefit shall be limited to cases where:
(a)the person is severely disabled;
(b)the person was a resident of one of the Parties at the date of severe disablement; and
(c)the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time. (emphasis added)
The effect of article 2(1)(a)(ii) is that a person (who falls within article 3) may, under the Agreement, claim a disability pension for which the Social Security Act makes provision.
“Severely disabled” is defined in the Agreement at article 1, paragraph 1(l) which provides:
“severely disabled” means a person who:
(i) has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(aa) to work for at least the next 2 years; and
(bb) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(ii) is permanently blind. (emphasis added)
In Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (2013) 213 FCR 532 at [60], [61], [64] the Full Federal Court held:
[60] Article 2 of the Agreement shows what Art 12(4) contemplates by a person becoming “entitled to claim a disability support pension under th[e] Agreement”. The effect of Art 2(1)(a)(ii) is that a person (who falls within Art 3) may, under the Agreement, claim a disability pension for which the Social Security Act makes provision. The effect of Art 12(4) is that where a person has “accumulated an aggregate of more than 10 years residence in Australia and/or New Zealand” that person can seek a disability support pension as of right, providing he or she satisfies Art 2(2) (and any other relevant provision of the social security law that has not been overridden by the Agreement).
[61] Article 2(2), not Art 12(4), is the provision of the Agreement that limits, in express terms, the availability of a disability support pension under the Agreement….
[64] A disability support pension is only available under the Agreement where a person is severely disabled, in accordance with Art 2(2)(a), and otherwise satisfied the residence requirements in Art 2(2). Where a person has an impairment sufficient to qualify as severely disabled, it is unsurprising that Art 12(4) treats residence in Australia and New Zealand as equivalent, in order, as the preamble states, “to enhance … equitable access” to disability support pensions. The position of a severely disabled person necessarily attracts unique considerations and calls for special provision, in order to meet this object. (emphasis added)
In other words, the disability support pension is only available to Mr Habibi if he is severely disabled as defined by the Agreement. Pursuant to section 6 of the Act, section 94 of the Social Security Act is limited by the express terms in article 2 of the Agreement. The Agreement prevails.
Based on the evidence before me, Mr Habibi claims to suffer from cervical pains, diabetes type 2 with hypertension, post-traumatic stress disorder (“PTSD”), depression, lower back pain and restless leg syndrome. Medical evidence supporting Mr Habibi’s claim is summarised in the Job Capacity Assessment (“JCA”) report dated 8 September 2015 and in a number of medical reports provided at hearing by Mr Habibi.
In order for Mr Habibi’s conditions to be classed as severe disabilities within the meaning on the Agreement, the condition(s) must make him, without taking into account any other factor, totally unable to work for at least the next two years; and unable to benefit within the next two years from participation in a program of assistance or a rehabilitation program.
Significantly, the JCA records that Mr Habibi has a baseline capacity to work 8-14 hours a week, and a capacity within two years with intervention of 15-22 hours per week.
Dr Safi, opines in his report dated 28 April 2016, that Mr Habibi is unfit for any type of employment. He does not however opine about whether Mr Habibi is totally unable to work, how long he is unfit for any type of employment and whether or not he would benefit from a program of support or rehabilitation.
In the report of psychiatrist Dr Taylor, dated 17 April 2016, Mr Habibi is diagnosed with PTSD and major depressive disorder. Dr Taylor does not opine about how the conditions impact on Mr Habibi’s working ability.
Based on the evidence before me, there is nothing to suggest that Mr Habibi is totally unable to work for the next two years and unable to benefit, within the next two years, from participation in a program of assistance or a rehabilitation program.
Accordingly, I am of the view that Mr Habibi does not suffer from a severe disability as defined by the Agreement. It follows that the substantive matter has no prospects of success.
CONCLUSION
Taking into account all of the information before me, I am not satisfied that it is reasonable in all the circumstances to grant the extension of time.
Mr Habibi may re-apply for DSP at any time. Particularly if his condition(s) deteriorate or he obtains evidence about his working ability.
The extension of time application is refused.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak. ...........................[sgd].............................................
Associate
Dated 10 August 2016
Date(s) of hearing 21 July 2016 Applicant In person Solicitors for the Respondent Dr S Thompson, Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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Standing
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Statutory Construction
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