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

[2022] AATA 4664

Landberg and Secretary, Department of Social Services (Social services second review) [2022] AATA 4664 (16 December 2022)

Division:GENERAL DIVISION

File Number:          2022/8770

Re:Robert Landberg

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:R Cameron, Senior Member

Date of decision:     16 December 2022

Date of reasons:     18 January 2023

Place:Melbourne

The application for an extension of time is refused.

..............................[sgd]..........................................

R Cameron, Senior Member

Catchwords

EXTENSION OF TIME – principles to be applied – Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 – length of delay – no acceptable explanation for delay – prejudice to the respondent and general public – merits of substantive matter – extension of time refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) ss 29(2), 29(7)
Electronic Transactions Act 1999 (Cth) s 14A(1)
Social Security Act 1991 (Cth) ss 1223, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth) s 68(2)
Social Security (International Agreements) Act 1999 (Cth)

Cases

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435

REASONS FOR DECISION

R Cameron, Senior Member

17 January 2023

INTRODUCTION

1. The applicant seeks an extension of time to review a decision made by the Social Services and Child Support Division of this Tribunal on 15 July 2021 (‘the reviewable decision’).

2. After an interlocutory hearing on 16 December 2022, the Tribunal by reasons given orally refused the application made by the applicant for an extension of time to review the reviewable decision. The applicant, as he was entitled to do, has requested written reasons for such refusal.

3. The reviewable decision affirmed a previous decision made by a Centrelink Authorised Review Officer (‘ARO’) on 11 May 2021, which confirmed a previous decision to:

   (a)cancel the applicant’s disability support pension (‘DSP’) from 29 October 2012; and

   (b)raise and recover a debt due by the applicant of $3,721.72 for the period from 29 October 2012 to 30 January 2013.

4. It was not disputed by the applicant that a copy of the reviewable decision was sent to him, with an attached letter from the Registrar of the Tribunal, by email on 26 July 2021. Therefore, under s 14A(1) of the Electronic Transactions Act 1999, he was deemed to have received the reviewable decision on that day.

5. Under s 29(2) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), the prescribed time within which the applicant was required to make an application to the Tribunal to review the reviewable decision was within 28 days of his receipt of it. Accordingly, the applicant was required to lodge the application on or before 23 August 2021.

6. Regrettably, the applicant did not lodge this application with the Tribunal until 22 October 2022. This means the application was approximately one year and two months after the deadline created by s 29(2) of the AAT Act had expired.

   THE TRIBUNAL’S POWER TO EXTEND TIME FOR MAKING AN APPLICATION UNDER S 29(7) OF THE AAT ACT

7. Section 29(7) of the AAT Act confers upon the Tribunal the discretion to extend time for making an application. The section provides as follows:

   The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

8. The approach to be adopted by the Tribunal when applying s 29(7) of the AAT Act, and similar Acts, has been the subject of much consideration by this Tribunal and the Federal Court of Australia in several decisions. A frequently applied decision which identifies the factors to be considered in the exercise by the Tribunal of a discretion such as that conferred by s 29(7) is that of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen.[1] The factors to be considered are:

   (a)that it is a precondition to the exercise of discretion in his favour that the applicant for an extension show an acceptable explanation of the delay. Whilst special circumstances need not be shown, the application will not be granted unless the Tribunal is positively satisfied that it is proper to do so. The prescribed period of 28 days is not to be ignored. Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained;

   (b)the length of the delay;

   (c)any prejudice to the respondent or the general public; and

   (d)whether the substantive application has reasonable prospects of success.

   [1] (1984) 3 FCR 344.

   Length of the delay

9. The applicant offered the following explanation for the delay in making his application:

   I received the decision of the first AAT review while I was stranded overseas during the COVID-19 pandemic, under duress, and suffering higher levels of anxiety than normal from a Centrelink-recognised anxiety disorder, resulting in the use of higher levels than normal of medication at that time. This resulted in me not even being aware that I had the option of a second review, nor of the timeframe in which it should normally be requested. I was not verbally made aware of my right to a second review of the AAT, but it was only appended as an attachment to an email. My Internet access to my email was also not reliable much of the time.[2]

   [2] This explanation was provided by the applicant in his application lodged with the Tribunal on 22 October 2022. The explanation was offered in response to the request in the application form, ‘Outline your reasons for applying for an extension of time, including why you did not apply within the time limit’.

10. A copy of the letter of 26 July 2021 sent by the Tribunal Registrar to the applicant by email was in evidence before the Tribunal.[3] Amongst other things, that letter of 26 July 2021 stated as follows:

    You may apply to the AAT for second review of the decision. An application for second review must be made online or in writing. Information about how to apply is available at or by calling us on 1800 228 333.

    There are time limits for making an application for review (28 days after giving of the document setting out the terms of the AAT’s decision).

    [3] Document A 6 of the T documents at page 42A.

11. With respect to the applicant’s contention that he was ‘stranded overseas during the COVID-19 pandemic’, some observations should be made. He arrived in Australia on 1 March 2021 and departed on 9 June 2021.[4] During that period whilst he was in Australia, he sought the ARO review and, subsequently, sought further review of the ARO decision.

    [4] Document A 12 of the T documents at page 150.

12. It should also be noted that the applicant appeared at the hearing of the reviewable decision on 15 July 2021 by way of a teleconference. Being overseas clearly was no hindrance to him participating in that process.

13. Upon his return to Australia on 4 December 2021 (after the reviewable decision had been made), the applicant further contacted the respondent agency on 29 occasions prior to making this application with the Tribunal for an extension of time on 22 October 2022.

14. Given this history, the Tribunal concludes that the applicant has not given an adequate explanation for his failure to lodge an application for review of the reviewable decision within the prescribed time. Additionally, by reason of the history outlined above, the Tribunal considers that the applicant’s application for an extension of time, made approximately 1 year and 2 months after expiry of the prescribed time, was in all the circumstances unreasonable. Further, the Tribunal considers that the applicant has also failed to give an adequate explanation for the lengthy delay on his part in making the application for an extension of time.

15. The applicant was not stranded overseas during the COVID-19 pandemic as he contends. As noted, he returned to Australia on 1 March 2021 and departed 9 June 2021 whilst the COVID-19 pandemic restrictions were in place.

16. Further, insofar as the applicant contends that he was suffering from higher levels of anxiety than normal, which in some way prevented him from making the application within time or, alternatively, making an application for an extension of time within a reasonable time, the Tribunal cannot accept this contention. The applicant presented as someone who was acutely alive to protecting his interests. It is further evinced by the fact that, as stated above, the applicant contacted the agency some 29 times before he made the application for the extension of time on 22 October 2022. This is hardly the conduct of someone who is so profoundly affected by high levels of anxiety, as he contends, that would have prevented him from making such an application. It is also not the conduct of someone who would not be alive to protecting his interests and unaware of his obligations to make the application for review within the prescribed time.

17. Finally, the letter from the Registrar of the Tribunal to the applicant which was attached to the email of 26 July 2021 was written in clear and unequivocal language. It seems hard to accept, having observed the applicant and noted his conduct recorded above, that he would not have read and understood the contents of that letter and acted as required. Even if he overlooked it, which the Tribunal finds to be unlikely, it seems inconceivable that he would have waited for approximately 1 year and 2 months to make the application when he did.

18. With respect to the applicant’s contention that his Internet access was also not reliable much of the time, several observations should be made. Firstly, he has not contended that he had no access to the Internet. It is apparent that however unreliable such access may have been, he nonetheless from time to time was able to successfully access the Internet and make contact with Australia. Additionally, if the Internet was unreliable, he could have notified the respondent by other means, particularly post and/or telephone, that he fully intended to seek an extension of time at the earliest possible opportunity, therefore reserving his rights. For instance, there was evidence before the Tribunal that the applicant had contacted the respondent agency from Turkey by way of email and post.[5] In that contact, he expressed concerns about the ‘future reliability of the Turkish Postal Service’. He requested that the respondent agency notify him upon receipt of documents mailed to it from Turkey by post. In the same email, a further request was made that the agency make a note of his temporary mobile phone number when in Turkey. This is yet a further example of the applicant’s acute alertness at all times to protecting his position.

    [5] See document A 11 at pages 65-66.

19. In any event, he returned to Australia on 4 December 2021 and waited approximately 10 months before making the application for extension of time. Once he had returned to Australia during that 10-month time lapse no issues concerning access to the Internet arose. For these reasons, once again the Tribunal cannot accept that the applicant has given an adequate explanation for the delay. This is particularly for the 10-month period that elapsed between 4 December 2021 and 22 October 2022 before this application was made. At the very least, he appears to have rested on his rights during this 10-month period.

20. Not much more should be recorded concerning the length of the delay in making this application for an extension of time, other than to observe that it is excessive in all circumstances. In this setting, the Tribunal refers to and repeats the matters articulated above concerning the history of the matter.

    Whether there is any prejudice to the respondent or the general public

21. On the question of prejudice, the respondent agency relies upon two grounds.

22. Firstly, it contends that it would suffer prejudice if an extension of time were to be granted on the grounds that its ability to defend the application is detrimentally affected. The detriment relied upon is what it contends are difficulties in procuring relevant and contemporaneous evidence including documentary evidence. This detriment it contends has arisen because of the substantial delay on the part of the applicant in agitating his claims against it. The respondent points to the fact that the applicant took over eight years to seek ARO review of the amended original decision, as noted above.

23. Whilst the respondent did not identify specifically what evidence and classes or categories of documentary evidence it would have difficulty procuring, the Tribunal nonetheless accepts that the significant delay on the part of the applicant in agitating his claims against it, more likely than not, would cause some prejudice to the respondent in resisting those claims for the reasons claimed.

24. The other ground of prejudice relied upon by the respondent is described as a wider prejudice to the general public. It contends that the public interest is best served by a timely end to the appeal process. It says the time limits are imposed to ensure there is a predictable and orderly disposition of such appeal process. As a corollary of this argument, it also submits that a public interest consideration arises in favour of those applicants who comply with the limits prescribed in the AAT Act. Therefore, these public interest considerations weigh against the grant of an extension of time as sought.

25. The Tribunal considers that whilst it can be contended that it is in the public interest that there is an end to the review process, it does not consider that this contention weighs particularly strongly against the applicant.

    Whether there are reasonable prospects of success

26. As for the question of whether the substantive application has reasonable prospects for success, it should be observed at the outset that when considering this question, the Tribunal should not undertake a ‘mini trial’ of the application or otherwise a merits review of the decision concerned.

27. The material before the Tribunal indicates that the applicant’s DSP was properly cancelled as and from 29 October 2012. There is no real need to undertake a detailed examination of the evidence. However, it is apparent that on that date, whilst residing in Malaysia, he had commenced working at the Chinese Tapei School on full-time hours.[6] By reason of this fact, the applicant did not fall within the definition of ‘severely disabled’, which was a requirement under the applicable international agreement for the purposes of qualification for the DSP.

    [6] Document A 11 of the T documents at page 62. It contains a note of a phone call between the applicant and an officer of the respondent agency on 31 January 2013. The Tribunal did not understand the contents of this note of the phone call to be in dispute.

28. Under s 1223 of the Social Security Act 1991 (‘the Act’), if a person receives a payment or benefit to which they are otherwise not entitled, that payment becomes a debt due to the Commonwealth.

29. The question then becomes whether the applicant is entitled to a write-off or waiver of the debt due by him to the Commonwealth under several sections of the Act.

30. Section 1237A of the Act requires the Secretary to waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment that gave rise to that proportion of the debt. The Tribunal considers that this section cannot be relied upon by the applicant as there is simply no evidence of an administrative error in the relevant sense. The debt due by the applicant arose as a result of his failure to inform the agency about his travel and commencement of working full-time hours. It was this failure that led to the overpayment.

31. Section 1236 of the Act confers a discretion on the Secretary to write off the debt if and only if:

    (a)the debt is irrecoverable at law; or

    (b)the debtor has no capacity to repay the debt; or

    (c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

    (d)it is not cost-effective for the Commonwealth to take action to recover the debt.

32. The Tribunal observes that the debt is not irrecoverable at law within the meaning of the section. Further, on the evidence before the Tribunal, it cannot be said that the applicant has no capacity to repay the debt. He is in receipt of the maximum rate of parenting payment single and the family tax benefit. The applicant’s whereabouts are known. Given these facts the discretion conferred by this section upon the Secretary to write off the debt is not enlivened.

33. Section 1237AAD of the Act gives the Secretary a discretion to waive the right to recover all or part of the debt in special circumstances. However, the discretion conferred by this section does not apply in circumstances where the recipient of the benefit knowingly failed or omitted to comply with a provision of this Act, the Social Security (Administration) Act 1999 (‘the Administration Act’) or the Social Security Act 1947.

34. In the reviewable decision, the Tribunal as constituted, concluded that the applicant knew he was required to inform Centrelink of his circumstances and deliberately chose not to do so.[7]

    [7] Paragraph 20 of the decision of the Social Services and Child Support Division of 15 July 2021.

35. The applicant contends that in the reviewable decision the Tribunal as constituted misconstrued the word ‘knowingly’ in s 1237AAD of the Act. He submits that he is able to satisfy the Secretary that he did not ‘knowingly’ incur the current debt and, therefore, there is a power to waive the debt under this section. He contends that, upon its proper construction the word, ‘knowingly’ requires a deliberate intention to commit an act contrary to what is known to be true, not just an act of accidental disregard, or a mistaken understanding. Therefore, making a ‘deliberate’ choice (and not mere negligence or oversight) is a factor to be considered, so long as the choice was not done with reckless indifference.[8] As the Tribunal understands the applicant’s contention, it is that the debt was incurred ‘accidentally and by oversight’ whilst he was in Malaysia at the relevant time. He relied upon five reasons why this was said to have occurred.[9]

    [8] The Tribunal refers to ‘An additional submission subsequent to the first AAT Tribunal’ lodged by the applicant and forming part of document A 1 of the T documents, particularly at paragraphs [18] and [21]. However, the entire section of the submission headed ‘Section 1237AAD – Was the term "knowingly" interpreted correctly by the tribunal?’ Should also be referred to.

    [9] Paragraphs [28] to [32] of the applicant's document entitled ‘An additional submission subsequent to the first AAT Tribunal’ are referred to for the details of these reasons.

36. The respondent referred the Tribunal to a passage from a decision of Deputy President Forgie concerning the term ‘knowingly’ within the meaning of s 1237AAD in Re Callaghan and Secretary, Department of Social Security.[10] The Tribunal agrees that this passage from the decision of Deputy President Forgie contains an accurate analysis as to how the term is to be applied when construing s 1237AAD. It is as follows:

    There is nothing in section 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.

    [10] (1996) 45 ALD 435 at [48].

1. The respondent agency contends that there is substantial evidence to establish that the applicant knowingly failed to comply with provisions of the applicable legislation. It submits that the applicant was well appraised of the qualification requirements for a portable DSP.

2. From 8 July 2011, the respondent agency sent to the applicant notices under s 68(2) of the Administration Act. These notices, amongst other things informed the applicant that he was required to notify the respondent agency of any changes in circumstances, including if he commenced work. There was no suggestion that the applicant did not receive these notices or comprehend the contents.

3. There is evidence before the Tribunal in the documents lodged under s 37 of the AAT Act, the T documents, which establishes that between the dates of 6 January 2009 to his departure from Australia on 11 November 2011, the applicant made contact with the respondent agency approximately 69 times concerning the subject of DSP portability.[11]

   [11] Document A 11 of the T documents at pages 59-106 are referred to. These documents form what is described as "Online Document Recording Archive". This archive is a business record in which entries are made by the officer of the respondent agency each time they had contact with the applicant. This was usually by telephone. The contents of the entries in those documents are referred to in their entirety for their full force and effect.

4. Amongst other things, the entries in the Online Document Recording Archive record that on many occasions the applicant asked the officer of the respondent agency questions relating to the following subject matter:

   (a)the requirements for DSP portability under applicable international agreements;

   (b)the meaning of the term ‘severely disabled’;

   (c)whether he was allowed to work overseas;

   (d)why would he be cancelled if he worked overseas;

   (e)the definition of the term ‘work’;

   (f)did the ‘return to work’ provisions apply overseas were he to commence work;

   (g)what policy is used to assess his qualification for DSP portability; and

   (h)which countries have international agreements with Australia.

5. The Online Document Recording Archive reveals that the offices of the respondent agency advised the applicant on several occasions in response to his enquiries as follows:

   (a)his DSP is only portable for 13 weeks unless he is paid under an international agreement;

   (b)he needs to meet the definition of ‘severely disabled’ in order to remain qualified under international agreement, which is defined as ‘totally unable to work for at least 2 years’;

   (c)if he works overseas then he may no longer qualify as severely disabled;

   (d)residency decisions are a ‘notifiable event’;

   (e)volunteer work or open employment is treated the same whether in Australia or overseas; and

   (f)return to work provisions are overridden by principles under international agreements.[12]

   [12] The summary of subject matter discussed in the conversations referred to in this paragraph is derived from paragraph 54 of the respondent agency’s Outline of Submissions filed on 5 December 2022. It is an accurate reproduction of the substance of the contents of the entries contained in the Online Document Recording Archive. The Tribunal sees no reason not to reproduce them in this way for the purposes of convenience.

6. On 14 September 2011, following a telephone conversation between the applicant and an officer of the respondent agency, that agency sent to the applicant a letter which, amongst other things, explained the operation of various parts of the Social Security (International Agreements) Act 1999 in so far as it related to payment of the DSP outside Australia.[13] The letter advised that the DSP was payable for the ‘severely disabled’. In other words, to qualify for the DSP the applicant had to remain or be assessed as ‘severely disabled’.

   [13] Document A 13 of the T documents at page 160.

7. When one considers the totality of the evidence that is before the Tribunal as observed above, it is open to the Tribunal to find that the applicant had actual knowledge of his obligation to inform the respondent agency when he commenced working full-time. Therefore, it is also open to the Tribunal to find that the applicant knowingly failed to inform the respondent agency that he had commenced working full-time. In these circumstances, the discretion vested in the Secretary by s 1237AAD of the Act to waive the right to recover the debt is not enlivened.

8. By reason of the foregoing consideration, the Tribunal concludes that the applicant has limited prospects of success.

   CONCLUSION AND DECISION

9. In conclusion, the Tribunal reiterates that the applicant has failed to provide an acceptable explanation for his delay in bringing this application. It is a lengthy delay, and there is a prejudice to the respondent by reason of the delay in bringing this application. Furthermore, any application brought by the applicant would have limited prospects of success. All these considerations weigh against the applicant. Therefore, the Tribunal is not satisfied that it is reasonable in all the circumstances to extend the time for the applicant to make his application.

10. Accordingly, for the reasons explained above, the application for an extension of time under s 29(7) of the AAT Act to seek review of the reviewable decision is refused.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

..............[sgd]..................................

Associate

Dated: 18 January 2023

Date of hearing:

16 December 2022

Applicant:

Advocate for the Respondent:

Self-represented

J Henderson

Solicitor for the Respondent:

Services Australia