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

[2020] AATA 1992

Lauder and Secretary, Department of Social Services (Social services second review) [2020] AATA 1992 (11 May 2020)

Division:GENERAL DIVISION

File Number(s):      2020/1640

Re:Tray-C Lauder

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:11 May 2020

Date of written reasons:        11 June 2020

Place:Brisbane

The application for an extension of time is refused.

.............................[SGD]...........................................

Member D Mitchell

CATCHWORDS

EXTENSION OF TIME - Application for Review of Decision filed out of time – Application for Extension of Time considered – Extension of Time Refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

CASES

Hunter Valley Developments Pty Ltd & Ors v The Hon. Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176

REASONS FOR DECISION

Member D Mitchell

Provided Orally:       11 May 2020
Written reasons:      11 June 2020

INTRODUCTION

1. On 16 March 2020, the Tribunal received an application for review and an extension of time application to lodge that application from Ms Tray-C Lauder (the Applicant).

2. In the application forms the Applicant indicated she was seeking a review of a decision which she received on 30 January 2013. 

3. The Applicant’s application for review and associated application seeking an extension of time to lodge that application appear to relate to a decision of the Social Security Appeals Tribunal (SSAT) made on 24 January 2013 which affirmed a decision to raise and recover a debt of $4,047.95 for overpayment of Parenting Payment for the period 1 May 2008 to 27 May 2009.

4. On 1 April 2020, the Respondent filed a submission opposing the Applicant’s extension of time application.

5. An Interlocutory Hearing was scheduled to occur at 1 pm on 14 April 2020. At that Interlocutory Hearing the Applicant advised the Tribunal that she had not received the Respondent’s submissions.  The Tribunal adjourned the Interlocutory Hearing and requested that the Respondent express post the submission to the Applicant and a further Interlocutory Hearing was scheduled for 11 am on 7 May 2020. The Applicant requested that this Interlocutory Hearing be vacated and rescheduled.

6. Consequently, the Interlocutory Hearing was scheduled for 12.00 pm on 11 May 2020.  Both the Applicant and Respondent participated in the Interlocutory Hearing by phone.

7. The Respondent confirmed that they had express‑posted their submissions to the Applicant, at the address she provided on her application forms and that they had confirmation from the tracking number that the Applicant received those documents on 20 April 2020, well in advance of the Interlocutory Hearing.

8. Approximately, twenty minutes after the commencement of the Interlocutory Hearing, the Applicant indicated she would be disconnecting from the Interlocutory Hearing and that the Tribunal would need to call her back at a later date.  The Tribunal advised her that it would be making a decision at the conclusion of the Interlocutory Hearing and proceeded to do so in the Applicant’s absence.

9. The issue before the Tribunal was whether or not the Applicant should be granted and extension of time to lodge her application for review in relation to the decision of the SSAT made on 24 January 2013.

10. Pursuant to section 29(7) of the Administrative Appeals Act 1975 (Cth) (AAT Act) the Tribunal refused the Applicant’s application for an extension of time to lodge her application for review of the decision made by the SSAT on 24 January 2013 and provided the reasons for decision as set out below.

    REASONS FOR DECISION

11. Section 29(2) of the AAT Act outlines that an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision.  However, section 29(7) of the AAT Act permits the Tribunal to extend the time for the making of an application to the Tribunal if it is satisfied that it is reasonable in all the circumstances to extend the time for the applicant to make an application for review of the decision.

12. In this matter the Applicant filed her application for review of a SSAT decision made on 24 January 2013, and the application for an extension of time with this Tribunal on 16 March 2020.  An Interlocutory Hearing was held by telephone on 11 May 2020. 

13. At the Interlocutory Hearing, the Applicant, despite the Tribunal’s best attempts, was not willing to discuss the material before the Tribunal.  She was not willing to discuss her application.  The Applicant expressed concerns in how long the matter had been going on, some eight years from her viewpoint.  She also expressed concerns with her interactions with government agencies, Centrelink and the Tribunal.  The Tribunal attempted to address those concerns and tried to take the Applicant to the information submitted by her in relation to the application.  The Tribunal went through the cover email that initially submitted her applications, and that was as far as the matter proceeded.  After nearly 20 minutes of the Applicant talking without providing the opportunity for the Tribunal to ask questions or discuss the substantive matter, the Applicant terminated the call. 

14. In considering the Applicant’s application for an extension of time to lodge her application, the principles to which the Tribunal had regard to are those outlined in the Federal Court’s decision of Hunter Valley Developments Pty Ltd & Ors v The Hon. Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176.

    Length of Delay

15. In relation to the length of delay, the SSAT decision was posted to the Applicant on 30 January 2013, and that date was also the date the Applicant recorded as the date that she received the decision.  Allowing time for the ordinary course of postal mail to arrive, the Tribunal accepts that this would mean that this application for review was lodged approximately seven years out of time.  The Tribunal considers this to be a substantial delay in this matter. 

    Explanation for delay and awareness of appeal rights

16. In considering whether there was an acceptable explanation for the delay in making an application for review and awareness of appeal rights, the Tribunal was unable to canvass this with the Applicant directly, however notes that on her application for an extension of time to make an application for review, she provided the reason as being, “because on 15 November 2018 the same review was raised from 2013.”  In the brief description of the decision section of the extension of time application, the Applicant provide: “…the legislation that I used in the 2013 decision is the legislation my local council used to waiver the - I think it’s $5000 of property developer fees”.  The Tribunal considers that the Applicant was clearly indicating that the decision she was seeking review of was that made by the SSAT in 2013. 

17. The Tribunal observes that Parliament has provided in legislation a 28 day time limit to indicate the need for finality in decision‑making.  The Tribunal is not satisfied that the Applicant’s explanation for the delay in lodging her application for review is satisfactory.

18. Further, the SSAT in their correspondence to the Applicant enclosing their reasons for decision on 30 January 2013 would have reasonably been expected to outline that the Applicant had 28 days to make an application to the AAT for review of its decision.  The Tribunal is satisfied that the Applicant may have been aware of her review rights and has had the opportunity to seek further review at any stage over the last seven years.  She did not indicate that there was any reason that would prevent her from doing so.

    Prejudice or unfairness and alternative avenues of relief

19. In considering whether any prejudice or unfairness arises in relation to granting or not granting the Applicant’s extension of time application, the Tribunal, refers to the general position that once a decision is made and a review period provided, beyond that period there is an expectation that the matter is finalised. 

20. In relation to the situation of the Applicant, in this circumstance the Tribunal is satisfied that by refusing to grant her request for an extension of time it would not affect her ability to seek a different repayment arrangement with Centrelink, or if her circumstances have changed to request review of the recovery action of the debt. 

    Prospects of success

21. In considering the merits of the Applicant’s application for review and potential prospects of success, should the extension of time be granted, the Tribunal notes that across the Applicant’s request for review and her extension of time for making a review application, there appears to be some confusion in relation to what it is she is seeking to have reviewed.  The Applicant made reference to a decision made in November 2018 relating to a debt of $5142.80, however outlined the decision she wanted reviewed was that that she received on the 30 January 2013.  She provided the SSAT number that related to that decision.  The Tribunal notes that the reviewable decision from 24 January 2013 related to the raising and recovery of a parenting payment debt of some $4047.95 for the period of 1 May 2008 to 27 May 2009.  As such there is a substantive difference between the two amounts that may be in question.  The Tribunal also notes that in the Applicant’s reasons for making the application, she also talks about a baby bonus that was paid to her in 2008 and how that may interact. 

22. As such the difficulty for the Tribunal is that the Applicant was not willing to engage in discussions in relation to the applications that she had made to the Tribunal or to address any of the previous outlined confusion. 

23. The Tribunal sought clarification from the Respondent as to whether or not they were aware of any such decisions having been made in November 2018. The Respondent told the Tribunal that a further debt had been raised, however it had not yet been through the Respondent’s internal review process. 

24. As such, if the Tribunal was to consider the reviewable decision as outlined in the Applicant’s application being that made on 24 January 2013, the Applicant would need to establish that the parenting payment debt was incorrectly calculated and there were reasons not to recover that debt. 

25. It is not appropriate for the Tribunal to embark on a substantive hearing, so as such, at this stage, it cannot be said that the Applicant’s application has no prospects for success at all.  However, on the face of the SSAT decision, and in the absence of new evidence, the proposed application appears to have limited prospects of success. 

26. If the Tribunal had have been able to establish with the Applicant that the decision she was actually seeking to be reviewed was that made in November 2018, the Tribunal would be in a similar situation, in that it would not yet potentially have jurisdiction to hear that matter if it has in fact not gone through the internal review processes.

27. Therefore, regardless of which decision it is that the Applicant was truly seeking to be reviewed, the prospects of success before this Tribunal appear to be very limited based on the facts that are currently before the Tribunal.

28. Based on all of the information presently before the Tribunal, and taking into consideration the principles in place as to when an extension of time to make an application for review of a decision should be granted, the Tribunal on this occasion refuses the Applicant’s application for an extension of time to lodge her application for review.

    DECISION

29. Accordingly, the Applicant’s application for an extension of time to make an application for review is refused.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

................................[SGD]........................................

Associate

Dated: 11 June 2020

Date of hearing:	11 May 2020
Applicant:	By phone
Advocate for the Respondent:	By phone, Samuel Harvey
Solicitors for the Respondent:	Services Australia