Henry Chandra and Secretary, Department of Social Services
[2014] AATA 774
•24 October 2014
[2014] AATA 774
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2333
Re
Henry Chandra
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr D Letcher QC, Senior Member Date 24 October 2014 Place Sydney The Tribunal refuses the application under section 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge this application for review of a decision.
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Mr D Letcher QC, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – explanation of delay – merits of substantive application – application refused
LEGISLATION
A New Tax System (Family Assistance) Act 1999 ss 3(1), 21(1), 36(2)
Family Assistance (Administration) Act 1999
Administrative Appeals Tribunal Act 1975 s 29(2), 29(8)
Evidence Act 1995 s 63, 160
Social Security Act 1991 s 7(3)CASES
Comcare v A’Hearn (1993) 119 ALR 85
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176
Kuljic and Secretary, Department of Social Security (1994) 33 ALD 121
REASONS FOR DECISION
Mr D Letcher QC, Senior Member
24 October 2014
This is an application by the applicant, Mr Chandra, for an extension of time to lodge an application for review of a decision.
On 1 May 2013 the applicant lodged an application for baby bonus under the A New Tax System (Family Assistance) Act 1999 (“the Act”) and the Family Assistance (Administration) Act 1999 (“the Administration Act”) in respect of his daughter, born in the United States on 7 August 2012.
That application was rejected by Centrelink initially and upon internal review, which was then affirmed by the Social Security Appeals Tribunal (“SSAT”). The applicant seeks review of this decision with this Tribunal.
Section 29(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) provides that any application for review by the Tribunal is to be lodged within 28 days of receipt by the applicant of the reviewable decision. The Tribunal has a discretionary power to extend the time for making an application and under section 29(8) of the AAT Act that power may be exercised even though the 28-day time limit has already expired.
The applicant’s application for review and an application to extend time to lodge the application for review were received by the Tribunal on 8 May 2014, some three weeks after the 28-day time limit expired.
The SSAT’s decision was dated 26 February 2014 and marked as “posted” on 10 March 2014. Section 63 of the Evidence Act 1995 provides that when an agency records the posting of an item, the item is deemed to have been posted. Section 160 of the same Act deems receipt of the item four workings days after the day of posting. The 28-day time limit runs from the day after date of receipt and in this case the last day for lodging an application was 16 April 2014.
The SSAT’s decision was posted to the Australian address Mr Chandra had provided, which was his father’s address in Sydney. In the meantime he had returned to his home in Utah in the United States. He said that once his father had received the decision, he posted it to him in Utah. However it did not arrive until late in March 2014.
Mr Chandra’s wife telephoned the Tribunal prior to the deadline and requested the applications forms. The forms were signed on 28 April 2014 and returned to the Tribunal by international post, arriving only on 8 May 2014 (about 3 weeks after the time limit expired on 16 April 2014).
Case law has established a number of principles to be observed in assessing an application for an extension of time. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176, Wilcox J said that a court should be positively satisfied that it is proper to grant the extension. He required an “acceptable explanation” and evidence that it was “fair and equitable in the circumstances”. Factors relevant to those circumstances include the merits of the substantive application, any prejudice to a defendant, fairness to other persons in a similar situation, and consideration of the public interest, which could include the desirability of ending litigation and avoiding unnecessary legal expenses.
In regards to the merits of the substantive application, if the application for which an extension is sought has little chance of success, then this is to be taken into account as a matter of equity and public interest. Although the merits of the substantive application are not the only factor to be taken into account, but if there is some fatal flaw in the case and the application shows “no prospects of success it would be futile to grant an extension of time and most unjust to subject the respondent to the cost” (Kuljic and Secretary, Department of Social Security (1994) 33 ALD 121). In the present case, if the applicant cannot establish that he was an Australian resident at the relevant time then his application is without any prospects of success.
EXPLANATION OF DELAY
The applicant explained that the delay in obtaining, signing and returning the application forms was because he thought that post was the only available method of lodging his application with the Tribunal. I have difficulty in accepting this statement. The applicant is a sophisticated man. Although his explanation for the delay is a possible version of events, it does not satisfy me as an acceptable explanation. However, the Full Federal Court in Comcare v A’Hearn (1993) 119 ALR 85 held that an acceptable explanation is not a prerequisite to the exercise of the Tribunal’s discretion to grant an extension. Instead the Full Court held that an explanation is only one of the factors to be taken into account in considering an application for an extension of time. In that matter an experienced firm of litigation solicitors provided no explanation for an “inexcusable delay” in its office but this of itself did not bar the application.
MERITS OF THE SUBSTANTIVE APPLICATION
Mr Chandra is a dual Australian and United States citizen. He qualifies for the baby bonus if at the date of the child’s birth or within 26 weeks of that date he was an Australian resident who is eligible for family tax benefit (FTB) (sections 21(1)(b)(i) and 36(2)(b) of the Act).
There is no dispute as to whether the applicant’s daughter was an FTB child, as she has always lived with the applicant (section 22(2)(c) of the Act).
The main issue in the substantive application is whether Mr Chandra was an Australian resident at the relevant time, being 7 August 2012 to 7 February 2013.
Section 3(1) of the Act provides that “Australian resident” has the same meaning as it does for the purposes of the Social Security Act 1991. Section 7(3) of that Act provides:
In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(d) the nature and extent of the person’s assets located in Australia; and
(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.
If the applicant was not an Australian resident during the relevant time then he is not eligible for the baby bonus and his claim could not succeed because he does not meet this mandatory statutory requirement. There is no discretion to excuse or ignore this requirement.
Accommodation
Throughout the relevant period (7 August 2012 to 7 February 2013) the applicant was living with his wife and two children in Utah, where he had lived for the preceding 20 years. At that time the only accommodation open to him in Australia was to alternate between his mother and fathers’ residences in different suburbs of Sydney.
At the relevant time the applicant owned a one-third share with his mother and sister in a house at Ryde. His sister lived in the house. He did not stay there during his visit to Sydney in 2013.
On previous occasions when he had visited Sydney in 2006, 2008 and 2009, he stayed for periods of no more than two to three months.
In early 2014 the property at Ryde was sold and his mother and brother bought a house at Chippendale. His sister now lives in this property. Mr Chandra explained that this property encompasses a self-contained one bedroom flat which could possibly be occupied by the applicant, his wife and two children if they returned to Australia.
I find that the applicant had no fixed accommodation of a suitable size with any security at any time during the relevant time.
Nature and extent of family relationships in Australia
The applicant is an Australian citizen and his wife has permanent resident status in Australia. He has close family relationships in Australia as his mother, father, two sisters, brother and extended family live in Australia and he maintains contact with them. He has no family in America.
At the relevant time the applicant shared ownership of an investment property with his mother and sister and his mother had access to his credit union account.
Assets in Australia
As outlined above, the applicant owned a one-third interest in a property and held a credit union account in his name at the relevant time. These were his only assets in Australia.
He presently has no assets in Australia.
Frequency and duration of travel outside Australia
The applicant lived and worked in the United States for 20 years before the relevant period, with five or six visits to Australia. The applicant has a United States “Green Card” (work permit) and United States citizenship.
Other matters
The applicant says he intends to return to Australia to live here permanently. He says that he had that intention during the relevant period but the Australian economy “tanked” while he was considering the move. He has not returned because he is concerned about lack of work prospects. He had a large number of established clients in the United States for his photography and music businesses. He said that he believed the Australian economy was still “teetering” and it would be very hard to find work. The applicant said that his motive for applying for the baby bonus was so there would be “something to sustain the family” until he found work in Australia.
I am not satisfied that during the relevant period the applicant had a settled, definite intention to return and live permanently in Australia.
DISCUSSION AND CONCLUSIONS
I find that at the relevant time the applicant had no fixed or secure accommodation in Australia, no employment, business or financial ties or assets of any substance, and no pattern of living in Australia.
The applicant may have had an intention to return to Australia at some indefinite time in the future when he considered that economic conditions were advantageous but he had no formulated plans for establishing a permanent home in Australia at the relevant time.
For the above reasons, I find that throughout the relevant period the applicant was not an Australian resident within the meaning of the Act. Consequently the application for review could not succeed and the discretion to grant an extension of time should not be exercised.
DECISION
The Applicant’s application to extend time for lodging an application for review is refused.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Mr D Letcher QC, Senior Member .............................[SGD]...........................................
Associate
Dated 24 October 2014
Date of hearing 1 September 2014 Applicant In person Solicitors for the Respondent Department of Human Services
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