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

This matter concerned an application by Mr Jayawardhena for an extension of time to lodge an application for review of a decision by the Secretary, Department of Social Services, regarding a debt for Newstart allowance. The dispute arose after Centrelink determined Mr Jayawardhena had been overpaid $6,055.28 due to undeclared income between September 2017 and November 2018. While an internal review reduced the debt, a subsequent Administrative Appeals Tribunal (AAT) decision in August 2019 set aside the departmental decision and remitted the matter for recalculation, finding that the debt amount was not accurately calculated based on available payslip information. A further recalculation in October 2019 resulted in a revised debt of $5,292.38. The present decision was made by Ms Anna Burke AO Member of the Tribunal.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to extend the time for Mr Jayawardhena to make an application for review of the decision. This required the Tribunal to consider the provisions of section 29(7) of the relevant Act, which grants the Tribunal a broad discretion to extend time if satisfied it is reasonable to do so, even if the prescribed time has expired. The Tribunal was guided by principles established in *Hunter Valley Developments Pty Ltd; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment* (1984) 3 FCR 433, which indicate that while no onus is strictly placed on the applicant, the Tribunal must be positively satisfied that granting an extension is proper. Key considerations include an acceptable explanation for any delay and whether it is fair and equitable to extend time, acknowledging that the prescribed period is not to be ignored.

The Tribunal reasoned that it possessed a broad discretion under section 29(7) of the Act to grant an extension of time if satisfied it was reasonable in the circumstances. Applying the principles from *Hunter Valley Developments*, the Tribunal found that Mr Jayawardhena had provided a plausible explanation for the short delay in lodging his application. While the prospects of success on the merits of his case were not described as great, they were not considered hopeless. The Tribunal was satisfied that granting the extension of time was reasonable in all the circumstances and not against the public interest.