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

[2018] AATA 4219

Lee and Secretary, Department of Social Services (Social services second review) [2018] AATA 4219 (13 November 2018)

Division:GENERAL DIVISION

File Number:           2018/5178

Re:Austmon Lee

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member M East

Date:13 November 2018

Place:Perth

The Tribunal refuses to grant Mr Lee’s application for an extension of time to lodge an application for review of a decision made by the Social Security & Child Support Division of the Administrative Appeals Tribunal (AAT1).

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Member M East

CATCHWORDS

EXTENSION OF TIME APPLICATION – relevant factors when considering an application for an extension of time – poor prospects of success – lack of explanation of delay – applicant rested on his rights – need to prevent disruption to established practices – application refused

LEGISLATION

Administrative Appeals Tribunal 1975 (Cth) – s 2A(b), s 2A(d), s 29(1)(d), s 29(2), s 29(7)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

CASES

Brown v Commissioner of Taxation [1999] FCA 563

Comcare v A’Hearn (1993) 119 ALR 85
Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 276
Hickey v Australian Telecommunications Commission (1983) 47 ALR 517
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; 58 ALR 305
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Lucic v Nolan (1982) 45 ALR 411
Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76
Re Johnson and Commonwealth [1990] AATA 1
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113
Seiler and Others v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
Zizza v Commissioner of Taxation [1999] FCA 848

REASONS FOR DECISION

Member M East

13 November 2018

1. Mr Lee, in his substantive application, is seeking review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 27 November 2017 (the Reviewable Decision).  The AAT1 decision affirmed the 14 May 2012 decision of a Centrelink Authorised Review Officer (ARO) to raise and recover from Mr Lee an Austudy debt of $13,063.80.

2. Mr Lee lodged an application for review on 12 September 2018, seeking review of the AAT1 decision (the Reviewable Decision).

3. Mr Lee lodged an application for an extension of time on 13 September 2018.

   THE ISSUE

4. The issue for determination by the Administrative Appeals Tribunal (Tribunal) is whether it should exercise its discretion under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to extend the time for Mr Lee to make an application for review of the Reviewable Decision.

5. The Respondent opposes the extension of time application.

   EVIDENCE

6. The application for extension of time was heard by the Tribunal on 2 November 2018.  Mr Lee represented himself and the Respondent was represented by Ms Moore from the Department of Human Services.

7. The following exhibits were tendered:

   ·an email from Mr Lee to the Tribunal dated 12 September 2018 (Exhibit A1);

   ·the application for extension of time dated 13 September 2018 (Exhibit A2);

   ·A TAFE receipt dated 17 December 2009 (Exhibit A3);

   ·Mr Lee’s transcript of academic record from TAFE (Exhibit A4); and

   ·the Respondent’s Outline of Submissions with attachments A – K (Exhibit R1).

8. Mr Lee also gave oral evidence at the hearing.

   RELEVANT LEGAL PRINCIPLES FOR AN EXTENSION OF TIME

9. Pursuant to s 29(1)(d) and s 29(2) of the AAT Act, an application for review of a decision must be lodged with the Tribunal within 28 days of the applicant receiving notice of the decision.

10. Section 29(7) of the AAT Act provides that:

    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.

11. Section 29(7) of the AAT Act does not set out any principles which the Tribunal can refer to in order to be “satisfied that it is reasonable in all the circumstances” to extend the time for making an application. However, relevant principles which the Tribunal may apply in assessing whether it is reasonable to grant an extension of time have been judicially considered.

12. A frequently cited authority is Hunter Valley Developments Pty Ltd and Others v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley), in which the Federal Court considered whether to grant an extension of time to allow the applicants to bring an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). In Hunter Valley, Wilcox J set out principles that were intended to be “non-exhaustive guidelines” (see Brown v Commissioner of Taxation [1999] FCA 563 per Hill J at [32]-[34]) which may be relevant when considering whether to grant an extension of time. As stated by Wilcox J in Hunter Valley (at 310), the principles were intended “… to guide, not in any exhaustive manner, the exercise of the court’s discretion.”

13. These principles are substantially similar to those applied in decisions concerning s 29(2) of the AAT Act, such as Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309, where President O’Connor J applied the following principles considered by Deputy President Todd in Re Johnson and Commonwealth [1990] AATA 1 at [17]:

    (a) Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.

    (b) It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.

    (c) Any prejudice to the respondent that would be caused by granting the extension of time is relevant.

    (d) Any wider prejudice to the general public in terms of disruption to established practices is relevant.

    (e) The merits of the substantial application are relevant.

    (f) Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.

14. Some flexibility is permitted in applying the principles. The facts and circumstances of a particular case may warrant particular attention being given to one or more of the principles over others, some of which may be less relevant, or not relevant at all. In Zizza v Commissioner of Taxation [1999] FCA 848 the Full Court of the Federal Court, when discussing the principles set out in Hunter Valley, observed (at [13]) that “It would be an error to regard the summary as complete, or to treat each of the six principles it contains as necessarily applicable to any particular application for extension of time, especially an application under different legislation”.

15. Additionally, whether an applicant has an acceptable explanation for the delay will be relevant, but “… there is no rule that such an explanation is an essential precondition” to the success of the application for an extension of time (Comcare v A’Hearn (1993) 119 ALR 85 at 88).

    CONSIDERATION

16. In determining whether an extension of time should be granted, the relevant factors the Tribunal should consider include:

    ·the length of the delay;

    ·the explanation of the delay and whether that explanation is satisfactory;

    ·whether Mr Lee was aware of his appeal rights and whether he rested on those rights;

    ·any prejudice to the Respondent or the general public arising from an extension of time;

    ·the merits of the substantive application; and

    ·alternative avenues of relief.

    Length of the delay

17. Mr Lee’s application for review was lodged with the Tribunal on 12 September 2018.  On his application for extension of time, he stated that he received the Reviewable Decision on 18 September 2017.  The Tribunal questioned Mr Lee as to whether this was correct as the decision itself was dated 27 November 2017.  Mr Lee said he was uncertain as to the date he received the Reviewable Decision.  The Respondent’s submission was that the Reviewable Decision was emailed to Mr Lee on 4 December 2017. 

18. The application for review was required to be lodged on or by 1 January 2018, however Mr Lee did not lodge his application for review until 12 September 2018.

19. The application for review and extension of time application was lodged in excess of 250 days outside the prescribed period of 28 days, pursuant to s 29(2) of the AAT Act.

20. The length of the delay, being more than 250 days is significant, and to grant an extension after such a time may be inconsistent with the principle that there should be certainty and finality in administrative decision making.  This weighs against the Tribunal exercising its discretion to grant an extension of time.

    Explanation for delay

21. Mr Lee, in his application for an extension of time, said he had “provided transcript, enrolment letter and payments invoice in related to the course.” Further, the application stated “Not fair, justifiable as I had to repay back, living expenses, food stamps, etc for the whole year when I was involved in studying”.  Mr Lee contended that he had suffered hardship and “compensated ruin life as I can’t finish my studies that prevented graduation’ and ‘Can’t find jobs without proper certification”.

22. At the hearing, Mr Lee said he was travelling overseas all the time and therefore it wasn’t a “big issue” for him.  He also said he was quite busy doing freelance work for his IT business, travelling overseas to visit friends and also searching for a fiancé in either Malaysia or Australia.

23. The Tribunal’s view is that the explanations given by Mr Lee for his delay are insufficient.

24. Such a delay, without sufficient explanation provided by Mr Lee, weighs against the Tribunal exercising its discretion to grant an extension of time.

    Awareness of appeal rights

25. Mr Lee did not submit that he was unaware of his appeal rights. Furthermore, enquiries were made during the hearing regarding Mr Lee’s ability to understand and communicate in English. Mr Lee confirmed that he did not require the services of an interpreter.

26. Mr Lee was advised of his right of review of the decision by the Tribunal when he was sent the decision made by AAT1. Information regarding time limits for applying for a review was also provided at this time.

27. The Tribunal finds that this weighs against it exercising its discretion in Mr Lee’s favour.

    Prejudice to the Respondent or the General Public

28. The absence of prejudice is not itself enough to justify the granting of an extension (Lucic v Nolan (1982) 45 ALR 411 at 416; Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 523 cited in Hunter Valley at 311).

29. As noted by Deputy President Todd in Re Johnson and Commonwealth [1990] AATA 1 at [17] (see paragraph [13] above), any wider prejudice to the general public in terms of disruption to established practices is also a relevant consideration for the Tribunal in considering whether or not to grant an extension of time. The Tribunal further notes an objective of the Tribunal is to promote “…public trust and confidence in the decision-making of the Tribunal” (s 2A(d) of the AAT Act). If the Tribunal grants lengthy extensions of time, this confidence may be undermined. Fairness as between Mr Lee and other persons in a like position is also relevant. For example, applicants who have previously been denied review by the Tribunal, and others who may not have sought review at all because the statutory time limit had passed.

30. A further objective of the Tribunal is to provide a mechanism of review that is “fair, just, economical, informal and quick” (s 2A(b) of the AAT Act). However, the delay in this case is in excess of 250 days, which in the Tribunal’s opinion, is considerable and inconsistent with that objective. These factors weigh against the granting of the extension of time.

    Merits of the substantive application

31. As noted above, when deciding whether to grant an extension of time to an applicant, the Tribunal may consider the merits of Mr Lee’s substantive application. The Tribunal should not undertake a substantive review of the merits of the application (Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76), but, rather, should assess whether the applicant has an “arguable case” (Brown v Commissioner of Taxation [1999] FCA 563 at [56]).

32. The Tribunal has previously declined to grant an extension of time to an applicant in cases where it considers the applicant would have little prospect of success at a substantive hearing of the matter (see, for example, Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 and Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 276).

33. The Respondent contends that Mr Lee’s application has limited prospects of success and that this weighs heavily against the granting of an extension of time. 

34. The evidence provided by Mr Lee regarding his studies indicates that he was not engaging in study for the relevant period and therefore the debt was properly raised.  The Respondent argues that there are no grounds for waiver or write off of the debt.

35. The Tribunal finds that the prospects of success in Mr Lee’s substantive application are poor and this weighs heavily against the granting of an extension of time.

    Alternative avenues of relief

36. The Tribunal will often have regard to whether there are any alternative avenues of relief available to an applicant when considering an extension of time application (see Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 at [18] and Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [48]).

37. The Tribunal notes that Mr Lee is not able to make further applications seeking review of the Reviewable Decision.  However, he is able to make arrangements with the Department regarding debt repayment options.

38. The Tribunal finds this consideration to be neutral in considering whether the Tribunal should grant the application for extension of time.

    CONCLUSION

39. Having carefully weighed all the factors outlined above, the Tribunal finds that it is not reasonable in all the circumstances to grant an extension of time to allow Mr Lee to make an application for review of the Reviewable Decision.

    DECISION

40. For the reasons outlined above, the Tribunal refuses Mr Lee’s application for an extension of time to lodge an application for review of the Reviewable Decision dated 27 November 2017.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Member M East

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Administrative Assistant Legal

Dated: 13 November 2018

Date of hearing:	2 November 2018
Applicant:	By phone
Representative for the Respondent:	Sally Moore
Solicitors for the Respondent:	Department of Human Services