KEBRON GEBREMARIAM and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 529

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 529

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1693

GENERAL ADMINISTRATIVE DIVISION		)
Re		KEBRON GEBREMARIAM

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date27 May 2009

PlaceBrisbane

Decision The Tribunal refuses to grant the applicant an extension of time in which to lodge his application for review.

......................[Sgd]........................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Application for extension of time – Whether it is reasonable in all the circumstances to grant extension – Not reasonable in all the circumstances – Application refused

Administrative Appeals Tribunal Act 1975 (Cth) s 29(7)

Social Security Act 1991 (Cth) s 1237AAD

Hunter Valley Developments Pty Ltd v Cohen (1984) 11 ALD 447

REASONS FOR DECISION

27 May 2009 Senior Member Bernard J McCabe         

1.      This is an application to determine whether Mr Kebron Gebremariam, the applicant, should be granted an extension of time in which to lodge an application for review of a decision by the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs, the respondent, to raise and recover a special benefit debt in the amount of $14,061.66.

2.      

Some 19 months passed between the time the respondent decided to raise and recover the special benefit debt and the date on which Mr Gebremariam sought to file his application with the Tribunal. The respondent made its decision on

26 September 2007. The Social Security Appeals Tribunal (“SSAT”) affirmed that decision on 2 August 2008. The SSAT despatched a copy of its decision to

Mr Gebremariam on 10 September 2008. While it is not clear when he received the SSAT decision, it is clear that he sought to file an application in this Tribunal on

22 April 2009. He lodged an application for an extension of time for review of the decision at the same time.

3.      The Tribunal convened a hearing by telephone on 27 May 2009 to determine whether Mr Gebremariam’s application for an extension of time should be granted. I gave an oral decision at the conclusion of the hearing, directing the application should be refused. The respondent subsequently requested written reasons.

The law

4. Subsection 29(7) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) provides that the Tribunal may grant an extension of time to lodge an application for review if it is reasonable in all the circumstances. The Tribunal’s power to grant an extension of time is discretionary. However, the power should only be exercised if it is reasonable in the circumstances. Essentially, the Tribunal must engage in a balancing exercise, considering the matters raised by the parties for or against granting the extension.

5. The AAT Act does not specify which matters may be taken into account when the Tribunal is deciding whether to exercise the power. The Federal Court decision in Hunter Valley Developments Pty Ltd v Cohen (1984) 11 ALD 447, however, sets out some matters which may be considered when deciding whether an extension of time ought to be granted. These matters include:

• the length of, and reason for, the delay;
• the prejudice to the applicant and the respondent; and
• the merits of the applicant’s case.

6.      The parties spoke to these and other matters during the hearing.

The length of, and reason for, the delay

7.      Mr Gebremariam pointed to three things to explain the length of, and reason for, the delay in lodging his application with the Tribunal. First, he said he had to work. Second, he referred to court proceedings that were taking place about the time the SSAT proceedings concluded. Third, he said he felt so pained by the SSAT decision that he needed to travel overseas to recuperate. Mr Gebremariam explained that he needed to finish each of these things before he could commence the next.

8.      The respondent disputed the adequacy of the applicant’s explanation, particularly the applicant’s remarks about the court proceedings. In relation to the court proceedings, the respondent advised the Tribunal that:

·     the applicant was prosecuted for fraud in 2008. The fraud proceedings ran side-by-side with the SSAT proceedings but concluded after the SSAT proceedings (ie the SSAT proceedings were concluded in August 2008 but the prosecution did not conclude until November 2008).

·     the applicant was represented in the fraud proceedings. I note the applicant contested this point, arguing that he was not adequately represented. Specifically, he said that his lawyer arrived at court about 45 minutes late on the day of the hearing.

·     the court had regard to his mental health, despite the applicant’s claim to the contrary. The respondent claimed that the court adjourned to obtain medical evidence of the applicant’s mental health when the court considered what penalty to impose. Ultimately, the court sentenced the applicant to approximately 200 hours of community service, rather than a term of imprisonment, and ordered him to pay costs.

9.      I also questioned the applicant about his explanation. I asked why he did not appeal the decision once the fraud proceedings had concluded. The applicant replied that he was too busy completing the community service order and left Australia as soon as he had done so. That was about December 2008. When I asked him why he left Australia, he answered he needed to “get away”. He explained his disappointment with the decision. The applicant also spoke about how he had lost confidence in the Australian system. He came to Australia in search of a better quality of life. He said he had suffered greatly while he has been here. He was homeless for a period. He suffers from a mental illness as well. He said he has been denied access to medical and other benefits by the respondent. The applicant returned to Australia in February 2009. When I asked the applicant why he waited so long after his return to lodge an application for review, he repeated that he had lost confidence in the system.

The prejudice to the applicant and the respondent

10.     The applicant did not identify any particular prejudice he would suffer if the application for an extension of time were refused. He did note, however, that he had lost his blue card and was currently unemployed.

11.     The respondent submitted that it was not prejudiced by the applicant’s delay, except in so far as Commonwealth resources would be expended if the applicant were allowed to proceed with his application.

12.     I asked the parties to comment on the applicant’s current social security arrangements.

·     The applicant said that he is being paid approximately $300 per fortnight. I asked the respondent to confirm the accuracy of that figure, which it could not do at the time. I briefly adjourned the hearing to provide the respondent with an opportunity to do so. Upon resuming the hearing, the respondent informed the Tribunal that the Centrelink database states that the applicant receives $350.05 per fortnight. The respondent advised it was withholding $55 per fortnight, comprising $15 for the debt and $40.95 for a child support liability. The applicant added that the respondent was withholding $80 per fortnight until he complained to it last month. The applicant also said that, after he paid for his medical expenses, approximately $200 per month, he had only small amount of money left over from each of his payments.

·     The respondent said that the Centrelink database does not show the applicant receiving any other social security payments. The respondent indicated that the database contains no record of the applicant being partnered or having children. The applicant disputed this, accusing the respondent of lying. The respondent suggested to the applicant that he go to a Centrelink office if the information Centrelink had was incorrect and ask what other payments he might be entitled to. The applicant refused, stating that he does not need Centrelink’s help, he just needs a job.

Merits of the applicant’s case

13. The respondent submitted that the merits of the applicant’s case are weak. While the respondent acknowledged that the applicant’s case may involve the consideration of the exercise of the discretion in s 1237AAD of the Social Security Act 1991 (“the Act”), in the respondent’s view the applicant enjoyed only a limited prospect of success. The respondent said that the applicant would be better served by going to a Centrelink office to discuss whether he would be entitled to other payments.

Other factors

14.     In addition to the matters canvassed above, I invited the parties to tell me anything else they considered to be relevant. Mr Gebremariam took the opportunity to remind me that his mental health was never considered, he is unemployed and he has been denied access to the respondent’s services. He also discussed his personal circumstances:

• He informed me that he has three children, who are aged between one and four.
• He has a partner, who I was told does not work but may be receiving social security benefits.
• He told me that he owns his own home, but he is in the process of paying it off.

Should the applicant be granted an extension of time?

15.     I noted earlier that the Tribunal may grant an extension of time provided that the Tribunal is satisfied that it is reasonable in all the circumstances of the case. I am not satisfied that the discretion ought to be exercised in the applicant’s favour. My reasons for this conclusion are as follows.

16.     Mr Gebremariam sought to file his application in the Tribunal after a lengthy delay. I accept parties are sometimes overcome by the vicissitudes of life, resulting in delays in filing their applications for review. But I am not satisfied Mr Gebremariam offered a reasonable excuse for the delay in this case. Even so, I do not think the applicant’s failure to provide a reasonable excuse for the delay is fatal, by itself, to his application for an extension of time.

17.     Although I do not consider there would be any real prejudice to the respondent if I were to grant Mr Gebremariam’s application, I do not think there would be any great prejudice to the applicant if I were to refuse it. Mr Gebremariam is currently receiving benefits. He may also be entitled to claim other social security benefits.

18. I am of the view that the merits of the applicant’s case are weak. There is no dispute that a debt arose. The only issue to be considered, if the extension of time application were to be granted, is whether there were any special circumstances the applicant could rely on under s 1237AAD of the Act. Mr Gebremariam’s mental health might be considered within the ambit of special circumstances. But I also note the comments about special circumstances at the SSAT hearing. The debt appears to have arisen through fraud. This would prevent recovery under s 1237AAD. Ultimately, I do not think the applicant enjoys a reasonable prospect of success if I were to allow his application to proceed to hearing.

19.     On balance, I do not think that it would reasonable in the circumstances of the case to grant the applicant an extension.

Conclusion

20.     The Tribunal refuses an extension of time to lodge an application for review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:.............................[Sgd].................................................
  Michael Buckingham, Associate

Date of Hearing  27 May 2009
Date of Decision  27 May 2009
Date of Written Reasons          16 July 2009
Applicant was self-represented
Advocate for the respondent     Mr P Flintoft, Centrelink