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

This matter concerned an application for an extension of time to seek review of a decision by the Secretary of the Department of Social Services to reject Mr Habibi's claim for a Disability Support Pension. Mr Habibi, who arrived in Australia from New Zealand on a Special Category Visa, had his claim rejected on the basis that he was not severely disabled. The decision was affirmed on internal review and by the Social Security Appeals Tribunal. Mr Habibi subsequently sought to appeal this decision to the Administrative Appeals Tribunal, but did so approximately ten weeks outside the prescribed 28-day time limit.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant Mr Habibi an extension of time to lodge his appeal. In determining this, the Tribunal was required to consider established principles for extension of time applications, including the need for an acceptable explanation for the delay, the fairness and equity of granting an extension, any prejudice to the respondent, and the merits of the substantive application. The Tribunal also had to consider the eligibility criteria for a Disability Support Pension, particularly as it related to Mr Habibi's status as a non-protected Special Category Visa holder and the provisions of the Social Security (International Agreements) Act 1999.

The Tribunal reasoned that for Mr Habibi to be eligible for a Disability Support Pension, he must satisfy the requirements of section 94(1) of the Social Security Act 1991, which includes having a certain period of qualifying Australian residence or meeting specific criteria related to his residency status. As Mr Habibi held a non-protected Special Category Visa and was not an Australian resident as defined by the Act, his claim was subject to the Social Security (International Agreements) Act 1999. The Tribunal concluded that Mr Habibi did not suffer from a severe disability as defined by the relevant Agreement, meaning his substantive application had no prospects of success.

Given that the substantive matter had no prospects of success, and taking into account all the information before it, the Tribunal was not satisfied that it was reasonable in all the circumstances to grant the extension of time. Accordingly, the application for an extension of time was refused. The Tribunal noted that Mr Habibi could re-apply for a Disability Support Pension at any time, particularly if his condition deteriorated or he obtained new evidence regarding his working ability.