Kanapathipillai and Secretary, Department of Social Services (Social services second review)
[2022] AATA 4124
•2 December 2022
Kanapathipillai and Secretary, Department of Social Services (Social services second review) [2022] AATA 4124 (2 December 2022)
Division:GENERAL DIVISION
File Number(s): 2022/8556
Re:Suhumar Kanapathipillai
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
Decision
Tribunal:Chris Puplick AM, Senior Member
Date:2 December 2022
Place:Sydney
The application for an extension of time is refused.
.................................[sgd]....................................
Chris Puplick AM, Senior Member
Catchwords
PRACTICE AND PROCEDURE – application for an extension of time – disability support pension – further request for portability extension – no cogent reasons for delay – no merits or reasonable prospects of success – extension of time refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Evidence Act 1995 (Cth) s 161
Social Security Act 1991 (Cth) ss 1215, 1217, 1218AAA, 1218C
Cases
Berkelaar and Comcare [1997] AATA 12015
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v A’Hearn (1993) 45 FCR 441
Dolan and Comcare (1993) 29 ALD 887
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516
O’Gorman and Comcare (Compensation) [2017] AATA 2192
Pohahau v Minister for Home Affairs [2019] FCA 1243
Secretary, Department of Family and Community Services v Roberts (2003) 73 ALD 412
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195
SPWX v Secretary, Department of Social Services [2020] AATA 3883
REASONS FOR DECISION
Chris Puplick AM, Senior Member
2 December 2022
This is an application for an extension of time (EOT) to lodge an appeal against a decision of the Social Services and Child Support Division of this Tribunal (AAT1) which was made on 9 June 2022. The application for review was lodged on 18 October 2022 and the application for the extension of time was lodged on 20 October 2022.
The EOT application was heard by this Tribunal on 17 November 2022 by telephone. The Applicant, Mr Suhumar Kanapathipillai was in Sri Lanka and the hearing was facilitated with the assistance of an interpreter in the Tamil language.
Mr Suhumar Kanapathipillai was granted the Disability Support Pension (DSP) in October 2019.
On 7 March 2020 he departed Australia for Sri Lanka to visit his aged mother. On 18 March 2020, the Federal Government issued “Do Not Travel” directions for all Australians intending to depart Australia, as a result of the COVID-19 pandemic. The Government also advised all Australians overseas who wished to return to Australia “to do so as soon as possible, as commercial flights might become quickly limited”.
It was after this date that international borders began to close as a result of the COVID-19 pandemic and flights between Sri Lanka and Australia became particularly scarce. Those that did operate were particularly expensive.
In addition, in the period from about May 2022 the political and security situation in Sri Lanka became particularly fraught, with the collapse of both its government, its economy and its currency. The private residency of the Prime Minister was invaded and trashed by mobs, and he eventually fled the country. While the economy continues to be in a state of collapse, some sense of public order has since been restored.
The DSP is paid under provisions of the Social Security Act 1991 (Cth) (the Act) which also provides in section 1215 that recipients may continue to be paid the DSP while they are absent from Australia (“portability”). Section 1217 of the Act specifies that, in relation to the DSP, the maximum duration of this portability period is 28 days.
However, section 1218C of the Act goes on to provide that, in the circumstances set out in that section, the portability period may be extended:
SOCIAL SECURITY ACT 1991 - SECT 1218C
Extension of person's portability period--general
(1) The Secretary may extend the person's portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:
(a) a serious accident involving the person or a family member of the person;
(b) a serious illness of the person or a family member of the person;
(c) the hospitalisation of the person or a family member of the person;
…
(2) The Secretary must not extend the person's portability period under subsection (1) unless:
(a) the event occurred or began during the period of absence;
It is not necessary to go into granular detail, suffice to say that on five separate occasions, after the Applicant’s DSP had been repeatedly cancelled because of his continued absence overseas, he sought further extensions of the portability period and eventually the Social Services and Child Support Division of this Tribunal (AAT1), on 9 June 2022, granted yet a further extension to 15 December 2021.
The basis upon which the Applicant sought these extensions was that, in the first instance, flights back from Sri Lanka to Australia were either non-existent or of exorbitant cost (in the vicinity of $A8,000.00); secondly that he was unable to fly as a result of personal ill-health (fatty liver condition) and thirdly that he needed, as the eldest son in the family, to provide care for his aged mother.
The extension of the several portability periods resulted in DSP payments being made to the Applicant while he was overseas totalling in excess of $23,500.00.
As was well known to the Applicant as a result of his previous engagements with the Department of Social Services (the Respondent) and this Tribunal, he had a period of 28 days in which to apply for review against the 9 June 2022 decision of the AAT1.[1] That time expired on 7 July 2022. However, it was not until 14 October 2022 that such an application was lodged, and it was accompanied on 20 October 2022 with a formal application for an extension of time (EOT) to allow the otherwise out of date application to go forward.
[1] Administrative Appeals Tribunal Act 1975 (Cth) s 29(2).
Two points are to be noted here. First, the decision of the Tribunal of 9 June 2022 was emailed to both himself and to his nominated representative (Yogarajah Kanapathipillai) at their nominated email addresses on the same day. Section 161 of the Evidence Act 1995 (Cth) deems that such correspondence was received on the day it was sent. Secondly, the EOT application form prepared by the Applicant’s representative but signed by the Applicant himself indicates receipt of the Tribunal’s decision on “09/06/2022”.
There is a clear body of law establishing that extensions of time to appeal against administrative decisions are not to be granted unless the particular circumstances of the case warrant it.
Principles for considering Extensions of Time
Extensions of time are not granted by the Tribunal as a matter of course and cogent reasons need to be advanced for them being granted.
McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor [2] gave four reasons why such limitations are an important part of the legal process. His Honour noted that:
First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
[2] (1996) 186 CLR 541 at [552]-[553]. Footnotes and citations omitted.
It is generally accepted that the “check-list” outlined by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment [3] should be taken as the guide by this Tribunal in determining EOT matters.
[3] (1984) 3 FCR 344.
That list provides as follows:
·an applicant must show an “acceptable explanation of the delay” and this it is “fair and equitable in the circumstances” to extend time;
·a distinction is to be made between an applicant who has “rested on his rights” and allowed 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;
·any prejudice to the respondent caused by the delay;
·whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;
·the merits of the substantial application; and
·“considerations of fairness as between the applicant and other persons” in a similar position.
There is no hard-and-fast rule related to the length of time by which an application falls outside the prescribed lime limits serving as a guide as to whether or not an extension of time may be granted, although the Full Federal Court in Singh made it clear that “the length of delay is a relevant factor”.[4]
[4] Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20].
In the matter of Roberts, the application was only one day beyond the statutory limit and the Tribunal stated:
In many cases an extension of 1 day would not be opposed and an order to that effect would be made by the Tribunal quite readily. The brevity of the extension sought does not, however, lead automatically to an order extending the time just as the fact that a lengthy period of time has passed does not automatically lead to the refusal of such an order. [5]
[5] Secretary, Department of Family and Community Services v Roberts (2003) 73 ALD 412 at [16]. Also Dolan and Comcare (1993) 29 ALD 887 at 888.
In Roberts with just one day delay the extension of time was refused whereas in Berkelaar, where the time delay was five years, an extension of time was granted.[6] In 2020 the Tribunal saw fit to grant and extension of time to an applicant who had lodged her request well in excess of eight years after the appealable decision because although “the delay in this matter is very substantial”, nevertheless “the issues sough to be considered in a review are also of importance.”[7]
[6] Berkelaar and Comcare [1997] AATA 12015.
[7] SPWX v Secretary, Department of Social Services [2020] AATA 3883 at [49].
Reasons and Merit
In effect, the two most critical elements for the Tribunal to consider in an EOT application are usually whether a reasonable explanation exists for the delay, (although “an acceptable explanation for the delay” is not “an essential precondition to the exercise of that discretion although it is to be expected that such an explanation will normally be given”)[8] and whether the application has a reasonable expectation of being successful were it to proceed to a full merits-based review.
[8] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.
None of the other factors in Wilcox J’s “check-list” has been raised by the Respondent as concerns, nor do they appear relevant in the circumstances of the present case.
The question of how to adjudge the latter point was set out by Wigney J in the following terms:
It will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success. Such a finding should ordinarily only be made where the grounds of the application on their face appear to have little or no prospects of success and there is no need for any detailed argument in respect of the merits. It follows that an assessment of the prospects of success on an extension of time application should not ordinarily travel “beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review. [9]
[9] Pohahau v Minister for Home Affairs [2019] FCA 1243 at [35]. Citations omitted.
The level of examination which should be undertaken by the Tribunal, of the grounds upon which the appeal itself is based, were summarised by the High Court in Jackamarra:[10]
The understanding of counsel for the appellant as to how the Court would examine "the merits" was consistent with the practice of the courts in a number of common law jurisdictions dealing with applications to extend the time for appealing. In R v Secretary of State for the Home Department; Ex parte Mehta, for example, Lord Denning MR said:
"We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time."
[10] Jackamarra v Krakouer (1998) 195 CLR 516 at [3]. Citations omitted.
Reasons for delay
The only reason advanced by the Applicant for delay was a claim that he did not receive the Tribunal’s decision until some weeks (if not longer, as the Applicant was unable to provide a specific date) after 9 June 2022. The Tribunal does not accept this explanation. The decision was emailed to two nominated addresses on that date and the Evidence Act deems it to have been received on that date. Even more compelling is that both the Applicant and his nominated representative have appended their signatures to a document declaring that the decision in question was received on 9 June 2022.
There is no other reason proffered for the delay and the reason proffered is not accepted by the Tribunal.
Merits of the application
In his submissions at the hearing the Applicant made it clear that the ONLY basis of his non-return to Australia, and hence his application for an extension of the portability period was to care for his mother.
No reliance at all was placed on the non-availability or expense of airfares and it was established before the Tribunal that there are currently several international carriers operating between Sri Lanka and Australia, with airfares in the range of $1500.00-$2500.00 readily available.
It is also a matter of public record that the political situation in Sri Lanka has now stabilized and that the violence to which the Applicant referred in previous submissions is no longer an impediment to his return.
Finally, no case was advanced that the Applicant suffers any such degree of ill-health as would preclude his return to Australia by air.
In relation to his mother’s condition, the Applicant claims that she suffers from cardiac problems and that her movements are restricted, moreover she has some signs of cognitive impairment. This is attested to by a letter “issued on request” by a Consultant Obstetrician and Gynecologist at the Siloam Health Service Centre in Batticaloa on 17 October 2022. It is hardly surprising that the Applicant’s mother might exhibit such symptoms given that she is 93 years of age.
The Applicant told the Tribunal that, as the eldest son in the family, he had the responsibility to be present at the time of his mother’s death in order to perform the last rites for her and that he was conscious of the fact that he had been unable to do this for his late father who passed away aged 100 years. Of course, there is no way in which any rational calculation can be made of when the unfortunate date of his mother’s passing might occur, but in his application, the Applicant has sought an extension of the portability period to 18 April 2023.
Section 1218C (as set out above) provides that portability arrangements may be extended where an absence from Australia is caused by the illness or hospitalization of a member of the applicant’s family, provided that such illness or hospitalization “occurred or began during the period of absence”. This is clearly not the case in relation to the Applicant’s mother’s cardiac condition nor the onset of any cognitive impairment. It does not appear that his mother is currently hospitalised as the Applicant referred to her as living in her own small home, nor that she is incapable of a degree of independent living. It does not appear that anyone else lives with her on a permanent basis and the Applicant himself certainly does not. There is no evidence before the Tribunal as to whether or not there are other members of the family in Sri Lanka capable of providing care to the Applicant’s mother, but his self-description as “the eldest son” suggests that this might be the case.
The Respondent presses the point that the Act makes it clear that portability arrangements are normally expected to be in place for a limited period of time and are not expected to operate on some sort of “permanent” basis.
In 2012 the Act was amended by passage of the Social Security and Other Legislation Amendment (Disability Support Pension Participation Reforms) Act (Cth) which inserted a new section (s 1218AAA) providing that “unlimited portability for DSP” could be provided in exceptional circumstances where the recipient of DSP was themselves “severely impaired” and is otherwise prevented from returning to Australia.
Clearly this is not the case with the Applicant. He is not (to the best of the Tribunal’s knowledge) severely impaired, nor is he physically restrained from returning to Australia. He has simply chosen not to do so.
What in fact confronts the Tribunal in this matter is a clash of values and law.
The Applicant posits that he needs to remain in Sri Lanka to care for his mother and to perform her funerary rites at some stage in the indefinite future. His position vis-à-vis his family and cultural responsibilities is absolutely understandable.
On the other hand, the law provides that payment of pensions to persons residing outside Australia have to conform with legislative arrangements and qualifications surrounding and defining portability.
The act of caring for his mother does not constitute a qualification recognised by section 1218C of the Act.
Previous extensions of the portability period for the Applicant’s DSP have recognised, faute de mieux, that circumstances were such, at the relevant time, that the Applicant could not reasonably be expected to return to Australia. That is no longer the case. The only impediment to the Applicant’s return is his own decision not to.
Were an application for extension of time to be granted, and the matter to come before the Tribunal, it would be bound to fail when tested on its merits. As such it would be an unacceptable waste of the time and resources of all parties to allow it to go forward.
In any event, granting the EOT would not mean an immediate determination of the substantial application – that might still be several months into the future and there is some utility in the Applicant being required to face up to the circumstances of his case at the earliest possible date.
Other reasons
The Responded has raised other matters identified in the Hunter Valley check list for consideration by the Tribunal however, given its findings on the questions of reason for delay and merits of the application, it is not necessary to give them further consideration.
DECISION
The application for an extension of time is refused.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 2 December 2022
Date(s) of hearing: 17 November 2022 Applicant: In person Solicitors for the Respondent: Mr G Lozynsky, Services Australia
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