Linck and Secretary, Department of Social Services (Social services second review) - [2021] AATA 28

Linck and Secretary, Department of Social Services (Social services second review) [2021] AATA 28 (20 January 2021)
Division:GENERAL DIVISION
File Number(s): 2020/5046
Re:Simon Linck
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries AO
Date:20 January 2021
Place:Canberra

Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 the Tribunal grants Mr Linck’s application for an extension of time to 20 August 2020 for making an application for review of a decision of the Social Services and Child Support Division dated 12 May 2020.
........................................................................
Deputy President Gary Humphries AO
Catchwords
PRACTICE AND PROCEDURE – extension of time – Social Services – disability support pension – decision to not pay the disability support pension while the Applicant was outside of Australia – portability provisions of Social Security Act – decision affirmed by Social Services and Child Support Division of this Tribunal at Tier 1 – application for review of Tier 1 decision made outside the prescribed time – whether it is reasonable in all the circumstances to grant the extension of time – where application for review is made out of time because the applicant withdrew his previous application and could not have it re-instated – explanation for the delay reasonable – delay insignificant – meaning of “eligible medical treatment” – eligible medical treatment considered by Tribunal at Tier 1 may not have been the treatment claimed by the applicant – application granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 42A
Social Security Act 1991 ss 1217, 1218AA, 1218AAA and 1218C
Cases
Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449
Bell and Deputy Commissioner of Taxation [2001] AATA 598
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516
Comcare v A'Hearn [1993] FCA 498
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Jackamarra v Krakouer [1998] HCA 27
Kalafatis and Commissioner of Taxation [2012] AATA 150
Mulheron and Australian Telecommunications Corporation [1991] AATA 673
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109
Re Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment [1984] FCA 176
Simon and Australian Capital Territory [2019] AATA 527
Tismanaru and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1322
Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 811
Zablotsky and Secretary, Department of Social Services [2019] AATA 4367
Secondary Materials
Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4^th edition, 2015)
Explanatory Memorandum, Administrative Appeals Tribunal Amendment Bill 1992 (Cth)
Social Security Guide
REASONS FOR DECISION
Deputy President Gary Humphries AO
20 January 2021
INTRODUCTION

Mr Simon Linck has been diagnosed with squamous cell carcinoma of the head and neck (particularly the tongue). He is reportedly very ill; his father, who has been his advocate throughout these proceedings, has recently advised that his illness is in the terminal phase.
He has lodged an application with the Tribunal for merits review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) made on 12 May 2020, affirming a decision of Services Australia (the Agency) that he could not be paid the Disability Support Pension (DSP) while outside of Australia in 2019. However, his present application was outside the 28-day timeframe provided for under s 29(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), and he therefore seeks an extension of time to 20 August 2020, an extension of some 59 days on the period provided by the statute.
BACKGROUND
The application for merits review of the AAT1 decision for which Mr Linck seeks an extension of time is in fact the second application he has made for merits review. The background is as follows.
Mr Linck has been in receipt of DSP since 31 May 2006. During 2019 he spent several periods in Germany obtaining treatment for his cancer, including 16 June–8 July and 25 August–9 September. On 18 September 2020, the Agency decided that DSP was not payable to him while he was outside Australia during those periods. This decision was affirmed by an Authorised Review Officer on 9 January 2020 and by the AAT1 on 12 May 2020. On 26 May 2020, Mr Linck lodged an application for second-tier review of the AAT1 decision in the Tribunal.
On the morning of 10 July 2020 an email was sent by Mr Linck’s father advising that Simon has decided, after careful consideration of all the correspondence that has consumed a lot of his time over the past 11 months, to withdraw from any further proceedings.[1] Accordingly, the application was dismissed pursuant to s 42A(1B) of the AAT Act, on the basis that the application had been discontinued or withdrawn (subsection (1A)). However, later still that same day a further email was sent by Mr Linck’s father advising that after further consideration however [Simon] had a change of heart and requests that proceeding remain open. About 22 hours separated the first and second emails of Mr Linck senior.
[1] In this decision, italicised text generally denotes a direct quotation.
On 13 July 2020, the Tribunal purported to reinstate Mr Linck’s application for merits review. The Secretary subsequently wrote to the Tribunal, submitting that it had no power to reinstate the application in the absence of any material error in its dismissal on 10 July 2020. The Secretary contended that the power to reinstate relevantly derives from s 42A(10), which provides that an application may be reinstated only if it appears to the Tribunal that the application has been dismissed in error. The Secretary contended that a change of heart did not constitute such an error.
An interlocutory hearing was subsequently held where the Tribunal received submissions from Mr Linck and the Secretary with regard to the Tribunal’s power to reinstate an application in these circumstances. After further consideration, on 13 August 2020 the Tribunal accepted that section 42A did not permit reinstatement of Mr Linck’s application. The purported reinstatement on 13 July 2020 was, accordingly, a nullity. Mr Linck was advised that he would be required to submit a fresh application if he wished to pursue merits review of the decision made by the AAT1 on 12 May 2020.
Mr Linck made a second application for merits review of the AAT1 decision on 20 August 2020, together with an application for extension of time to do so. The Secretary opposes the extension of time on two bases. First, she submits that an application dismissed pursuant to s 42A should be taken to be concluded and that a second application in respect of the same matter cannot be considered. Secondly, she argues that, in the event the Tribunal considers that it has the power to consider a second application, this application does not satisfy the general principles applying to an extension of time, and should be refused.
DOES THE TRIBUNAL HAVE THE POWER TO CONSIDER A SECOND APPLICATION FOR MERITS REVIEW?
The Secretary noted a line of authorities which suggest that the Tribunal has jurisdiction to consider a fresh application for merits review, notwithstanding that an earlier application for review of the same decision had been dismissed. She submitted, however, that this line of authorities is inconsistent with the clear statutory intention of s 42A, namely, that applications dismissed by the Tribunal should be taken to be concluded and should only be reopened in very specific circumstances, as set out that section. This line of authorities effectively rendered the reinstatement provisions in the AAT Act redundant. Where an application before the Tribunal is dismissed (whether by way of withdrawal or otherwise), it is appropriate for the matter to be dealt with by way of reinstatement rather than an extension of time and a fresh application, she argued.
In support of these contentions, the Secretary noted that the Explanatory Memorandum to the bill which first introduced the reinstatement provisions into the AAT Act relevantly stated:
Following the approach suggested in Manoli the granting of a reinstatement would have been decided on the same principles as would have been advanced and tested in an extension of time application.
The reinstatement option would be more in accordance with the objectives of the Tribunal to review matters in a fashion which is “fair, just, economical, informal and quick”.
She referred also to the Tribunal’s decision in Zablotsky and Secretary, Department of Social Services [2019] AATA 4367, where Senior Member Puplick observed:
Reinstatement may operate as an alternative to the more lengthy multi-stage process of an aggrieved party seeking to reinstate or revive proceedings by way of making an extension of time application (under section 29(7) of the Administrative Appeals Tribunal Act 1975) to lodge a fresh appeal against a reviewable decision.
The Secretary referred also to Tismanaru and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1322. There, Deputy President Purvis QC, having reinstated an application, made these observations:
52. In view of the decision reached by the Tribunal as to the application of section 42A(10), it is not necessary for it to consider the existence or otherwise of a power to extend time. It was submitted on behalf of the Respondent that the Tribunal has no jurisdiction in respect of any fresh application brought by an Applicant to review a decision that was the subject of review on an initial application, because any fresh application would in effect be a second application, not competent and a nullity. Reliance was made in this regard to Re Pham and Minister for Immigration and Multicultural and Indigenous Affairs (2000) AATA 1159 at para 8 and Re Huynh and Minister for Immigration and Multicultural and Indigenous Affairs (2001) AATA 31 at para 5.
53. A fresh application, it is said, is not competent because where the Tribunal dismisses an application under section 42A(2) the proceedings to which the application relates is taken to be concluded unless reinstated under section 42A(9) or (10).
54. There would seem to the Tribunal to be merit in the submission made on behalf of the Respondent. Where an application is dismissed pursuant to section 42A(2) and not able to be reinstated by reason of the non-existence of the prerequisites referred to in section 42A(9) and (10), the matter is deemed to be concluded. If an application for an extension of time was competent then this would in effect mean that a second application could be made referable to the same subject the latter having already been before the Tribunal and "completed". If the Tribunal had power to extend the time, it would have been so extended.
Reference was made also to Bell and Deputy Commissioner of Taxation [2001] AATA 598, where Senior Member Ettinger considered that certain provisions of the Taxation Administration Act 1953 precluded an extension of time application under s 29(7) of the AAT Act. The principles at work in these cases, the Secretary argued, suggest that a dismissal under subsection 42A(1B) should be taken to have the same degree of finality as a dismissal under paragraph 42A(2)(a) or subsection 42A(5), which also involve dismissal without the Tribunal proceeding to review the matter. An applicant cannot seek to bypass the reinstatement provisions in section 42A by lodging a fresh application for review and seeking an extension of time to do so.
The line of authorities referred to by the Secretary which pull in the opposite direction include Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 811. In that decision Member Webb decided as follows:
24. The next question is whether the Tribunal has jurisdiction to entertain her 2008 application.
25. If, as in this case, an application has been dismissed and it has not been reinstated, the Tribunal’s power in relation to that application is spent; the Tribunal in those circumstances is functus officio. However, it does not follow that the Tribunal’s powers in relation to the decision under challenge are exhausted. Those powers are unlikely to have been spent unless there has been a review on the merits or a consent decision within the meaning of s43 of the AAT Act. No such review or decision has occurred in this case.
26. Proceeding on the basis that Mrs Wicke-Fitzgerald’s letter is a fresh application, it is necessary to determine whether a cause of action estoppel is raised by res judicata.[14] If so, the Tribunal has no jurisdiction to consider the application. If not, and the application is out of time, it is necessary to consider whether it is appropriate to grant an extension of time.
27. The dismissal of an application by operation of subs 42A(1B), without reviewing the merits of the subject decision, is to be distinguished from the disposal of an application under applicable sections of Division 3 or Division 6 of the AAT Act. In either such case the application is decided with finality, whether by consent or at hearing; the decision of the Tribunal can be said to have ‘passed into judgement’ and is concluded. In those circumstances it is doubtful whether the Tribunal has power to entertain further litigation of that same settled matter, on the basis of cause of action estoppel on res judicata or even if there is power, whether the power would be exercised to permit any such relitigation. There are numerous decisions of the Tribunal, relying on settled Federal Court and High Court authority, resisting such relitigation. I see no reason to depart from those authorities in this case.
28. That, however, is not the end of the matter. As can be seen, the dismissal of Mrs Wicke-Fitzgerald’s application did not involve any decision of the Tribunal; it was a technical matter that did not involve any consideration of the merits pursuant to subs 42A(1B). In such cases the jurisdiction of the Tribunal is not wanting and the fresh application may be entertained subject to considerations of time.
29. Carefully considering the changed circumstances that have given rise to Mrs Wicke-Fitzgerald’s application and the extensive authorities to which reference has been made, I am satisfied that the Tribunal has jurisdiction to receive her recent application and no cause of action estoppel arises. Simply put, Mrs Wicke-Fitzgerald’s 2005 application was not ‘heard’ and no decision was made under either Division 3 or Division 6 of the AAT Act. There is no res judicata.
[References omitted.]
To similar effect, Deputy President Forgie in Kalafatis and Commissioner of Taxation [2012] AATA 150 observed, in relation to a purported withdrawal of an application:
57. If a notice is ambiguous, it is proper to ask what an applicant intended but care must be taken to go no further. It is not proper for the Tribunal to question an applicant as to why he or she has lodged a withdrawal. If later asked by an applicant who is regretting a decision to withdraw, it could, however, properly draw the attention of the applicant to the possibility of applying for an extension of time to lodge another application for the Tribunal would not have reviewed the decision and so would not have exhausted its powers or be functus officio. Assuming its power to extend time under s 29(7) of the AAT Act has not been modified, any decision made by the Tribunal to extend time would look at all the circumstances including the decision to withdraw the first application.
[Emphasis added.]
These decisions are consistent with the view of the President of the Tribunal in Mulheron and Australian Telecommunications Corporation [1991] AATA 673, where her Honour set down the following principles in interpreting s 42A:
DOES THE TRIBUNAL HAVE JURISDICTION TO ENTERTAIN APPLICATIONS FOR REVIEW OF DECISIONS IN RESPECT OF WHICH AN EARLIER APPLICATION FOR REVIEW HAS BEEN DISMISSED?
8. The Tribunal is estopped from entertaining further applications for review of a decision where an earlier application for review of the same decision has been disposed of by a decision on the merits or a consent decision. The High Court in Administration of Papua New Guinea v Daera Guba [1973] HCA 59; (1973-1974) 130 CLR 353 discussed whether a decision of a Land Board appointed under the Land Ordinance 1911 (PNG) could raise a cause of action estoppel. [This and other cases on estoppel discussed.]
…
11. Daera Guba and Bogaards v McMahon do not however address the effect of a dismissal under s 42A. Nor in my opinion is Bailey v Mahnoff (above) of any assistance as it is relevant only to the reinstatement of an application and not to second applications. A number of early Australian cases suggest that where a matter is dismissed on a technical ground or for failure to comply with a court order or statutory requirement a second application or a fresh action will be entertained. [Cases discussed.] Taken together these cases support the principle that where a first application is not disposed of on its merits or by consent a second application can be entertained; however, none of the reports of these cases contain full reasoning on this point and it is therefore difficult to draw any general propositions from these cases which are helpful here.
…
13. The issue ultimately falls to be determined under the AAT Act. The AAT Act uses the term "decision" in subsections 43(1) and 34(2). Gibbs J observed in the Daera Guba case (above) that the word "decision" prima facie connoted that the Land Board in that case was to make a binding determination. Whether the same connotation arises in the AAT Act is not clear; indeed, Deane J observed in Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80 at 101 that the word is clearly used in the narrow sense of the operative or ultimate decision of the Tribunal in ss 43 and 43A, but is used in a different sense in s 42. What is of greater significance is that the phrase "dismiss the application" rather than the word "decision" is used in s 42A. Had the legislature intended dismissal to have the same result as a decision it presumably would have in my view used the same language.
14. The distinction between a decision and a dismissal of an application was raised by Deputy President Thompson in Re Nolan and Minister for Immigration and Ethnic Affairs (Decision No 3557, unreported, 29 August 1987):
"Section 42A provides simply for the dismissal of an application. Such dismissal results in the termination of the proceedings on the application; consequently the decision of which review was sought remains unchanged. But no decision is made to affirm the decision under review, as may be made after the hearing of an application for review" (at page 2).
It follows that
"the Tribunal may have exercised all of its powers in relation to a particular application when it dismisses it but it does not follow that it has exercised all of its powers in relation to review of a decision. It follows that the applicant may bring a fresh application to review that decision." (Re Nicholson and Secretary, Department of Social Security [1990] AATA 212; (1991) 21 ALD 537 at 544 per Deputy President Forgie)
15. In my view this is an accurate statement of the effect of dismissal under section 42A. in support of this I note that if the parties consent, a decision can be affirmed. It seems unlikely that the legislature would have provided two means of obtaining an identical result and I consider that this conclusion is consistent with the purpose of the AAT Act. The Tribunal's proceedings are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the AAT Act and other Acts and a proper consideration of the matters before the Tribunal permit (s 33(1)(b)). The Tribunal is also required to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case (s 39). These provisions are manifestations of an underlying policy in the Act that the Tribunal should provide substantial review on the merits and not allow undue technicalities to prevent this happening.
16. The competing policy considerations that applicants should not be allowed to affect the Tribunal's processes by failing to take reasonable steps to allow their application to be determined on the merits (for instance, by failing to attend preliminary conferences or hearings), that matters be disposed with once and for all and that litigation not be prolonged are important. However, as Deputy President Forgie pointed out in Re Nicholson and Secretary, Department of Social …to allow a fresh application in such circumstances does not give an applicant whose application has been dismissed a right to bring endless fresh applications. As in this case, where an application is dismissed and a second application is brought the second application will generally be lodged after the prescribed time has elapsed. Accordingly, the Tribunal will have a discretion as to whether to extend the time for making an application and these policy objectives can be achieved by the exercise of discretionary power which takes into account the particular circumstances of the application.
[Emphasis added.]

Although the form of s 42A discussed by O’Connor J is different to the form it currently takes, in my assessment the relevant principles set out by her Honour remain applicable. This is also apparently the view of Prof Pearce: see Administrative Appeals Tribunal, 4th edition, 15.19.[2] It is not clear that there is anything in the decisions in Zablotsky or Bell that in fact depart from these principles, and the extent to which the obiter dictum in Tismanaru does, it should, in my respectful opinion, be disregarded.
[2] Although he there refers to the effect of dismissal under s 42B, there appears to be no reason why the same principles would not apply to dismissal under s 42A. In fact he quotes Mulheron in support of his view.
Nothing is required to embellish the reasoning of O’Connor J, although one further observation is warranted. The effect of the Secretary’s submission – that a dismissal under s 42A exhausts the Tribunal’s jurisdiction – could operate so as to prevent an application brought within time, and not subject to extension of time considerations, from receiving merits review. If an applicant, say, lodged an application, had it dismissed on the basis of withdrawal and then brought a second application before the statutory period for seeking review had expired, they would be precluded, under the Secretary’s postulation, from merits review. That result would have to be viewed as perverse.
The Tribunal finds that it has jurisdiction to consider Mr Linck’s application for an extension of time.
SHOULD MR LINCK BE GRANTED AN EXTENSION OF TIME UNDER S 29(7)?
Section 29(7) of the AAT Act 1975 permits the Tribunal to grant an extension of time to lodge an application to review a reviewable decision if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. The discretion granted to the Tribunal here is very wide.[3]
[3] This and the following four paragraphs follow the Tribunal's enunciation of the principles regarding extension of time in Svatos and Australian Capital Territory [2020] AATA 1413.
In Re Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment [1984] FCA 176 Wilcox J articulated the foundational criteria to be considered in an application for an extension of time to seek judicial review under the Administrative Decisions (Judicial Review) Act 1975 of a decision (at [18]-[23]):
18. (a) Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at p 416) It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at p 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).
19. (b) Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at p 287) and a case where the decision maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (Morling J, 3 April 1984, not reported) at p 18 with Lucic at pp 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at p 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at p 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528.
20. (c) Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at p 287, Duff at pp 484-485, Hickey at pp 525-527 and Wedesweiller at pp 533-534.
21. (d) However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at p 18, Lucic at p 416, Hickey at p 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon p 550, Becerra pp12-13) or of established practices (Douglas p 19) is likely to prove fatal to the application.
22. (e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic p 417, Chapman p 6.
23. (f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion: Wedesweiller at pp 534-535.
These principles were further refined in Comcare v A'Hearn[1993] FCA 498. In that case, the Full Federal Court upheld the decision of a primary judge who upheld an appeal from the Tribunal, which had refused an application for an extension of time within which to review a decision of Comcare. The court found (at [11]) that:
In our view the primary judge was correct in concluding that the reasons for decision reveal an error of law on the part of the Tribunal. The error was that the Tribunal considered that what is found was an inexcusable delay on the part of the solicitors could not constitute an acceptable explanation for the delay in making the application.
The court added (at [15]):
We note that the Tribunal used language that might be taken to suggest that it is a pre-condition for success in such an application that an acceptable explanation for the delay must be given. Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition…
The Federal Magistrates Court in Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109, summarised the new position following A’Hearn as follows (at [10]):
In the light of A'Hearn's case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it's fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn's case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court's discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
·There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The “prescribed period” of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550).
·It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal [1993] VicRp 21: (1992) 1 VR 297 at 302).
·Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff [1982] FCA 124: (1982) 42 ALR 283 at 287).
·Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p287).
·The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
·The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417).
·Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528; [1983] FCA 94).
In Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [48] the Federal Court condensed these considerations as:
·the explanation of the delay;
·any prejudice to the respondent; and
·whether the applicant has an arguable case.
The Secretary contended that, in this case, the factors for consideration include:
(a)length of delay;
(b)awareness of appeal rights and explanation for the delay;
(c)prejudice to the general public;
(d)prospects of success; and
(e)alternative avenues of relief.
She observed that these principles apply where an application for review has previously been withdrawn and a fresh application for review of the same decision has been lodged (see, for example, Simon and Australian Capital Territory [2019] AATA 527).
Factors other than prospects of success
The Secretary put some weight on several considerations she said were relevant to the extension of time. With respect to the length of delay in bringing the second application, she contended that a delay of 59 days is not insignificant when regard is had to the statutory context, and it would not be reasonable in the circumstances to grant an extension of that length. There is, she said, a public interest in the efficient conduct of merits review processes, such that timely decisions can be made and acted upon with finality. With respect to Mr Linck’s explanation for the delay, she asserted that the reason cited by him in his extension of time application form were insufficiently clear; thus, the Applicant has not provided a sufficient reason for requiring an extension of time of nearly eight weeks.
Additionally, she said that Mr Linck was fully aware of his appeal rights, by virtue of the chronology of the proceedings. Under the heading of “Prejudice”, she conceded that there was no prejudice to her from the extension of time application, but maintained that it is in the public interest that there is an end to the appeal process.
With great respect, the arguments advanced under these headings appear to the Tribunal to be weak and insubstantial. The Secretary cannot plausibly claim, for example, to be unenlightened about Mr Linck’s reasons for requiring an extension of time, since she was involved in the earlier interlocutory proceedings where those reasons were clearly articulated. To ignore those proceedings and instead to rely on some deficiency in the form he completed is an excessive resort to formality which does the Secretary no credit. Similarly, to focus on the nominal 59-day delay and on the public interest in bringing matters to a conclusion overlooks an important distinction emphasised by Wilcox J in Hunter Valley Developments at [19]:
A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision maker aware that he contests the finality of the decision (who has not "rested on his rights" …) and a case where the decision maker was allowed to believe that the matter was finally concluded.
It is to be remembered here that Mr Linck has prosecuted his intention to have second tier merits review in the Tribunal with vigour at almost every stage of these proceedings. The one departure from that approach was on 10 July 2020 when, over the space of a few hours, he in turn appeared to lose heart and then revived his quest for merits review. But for those few hours, Mr Linck has given every impression of being a man who has not rested on his rights. But for that brief interlude in July, the Secretary could not possibly have imagined that this matter was finally concluded. She cited several cases in which the Tribunal had declined to grant an extension of time where the applicant was fully aware of the right to seek review of the decision in question and did nothing. Patently, this is not a case where the applicant did nothing, and as such the Secretary’s reliance on those cases is mystifying.
The most extraordinary argument advanced by the Secretary, however, relates to alternative avenues of relief available to Mr Linck. Reference was made to Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516, in support of the proposition that where a refusal of an extension of time would shut an applicant out, finally and entirely, from particular relief, this may weigh in favour of an extension. In this context, she argued that an application for reinstatement of Mr Linck’s original application is the appropriate mechanism for obtaining the relief that the Applicant seeks. She then contended:
The fact that the Tribunal has concluded it is unable to reinstate the application does not remove this an alternative avenue of relief; it is open to the Applicant to continue to agitate his application for reinstatement if he choses [sic] to do so (including by way of an appeal to the Federal Court of Australia if he believes there has been an error of law).
Further, the Secretary notes that the Applicant’s representative has previously made complaints about the way that this matter has been handled by various staff members of the Agency. If the Applicant feels that he has suffered determine [sic – detriment?] as a result of defective administration by officers of the Agency, it is open to him to explore a claim through the Scheme for Compensation for Detriment Caused by Defective Administration.
It is to be remembered that, in the earlier interlocutory proceedings, the Secretary argued – persuasively and successfully – that there is no avenue open to Mr Linck to reinstate his original application because no relevant error has occurred allowing the application to be reinstated pursuant to s 42A(10). To now argue that an extension of time should not be granted because Mr Linck has the alternative option of appealing that decision to the Federal Court borders on the bizarre.
The argument proceeds on the basis of a fundamental misunderstanding of what is involved in assessing what alternative avenues of relief are available to Mr Linck, in relation to his application for an extension of time. When the Tribunal turns to his prospects of success in the substantive application, its task (as will be seen) is to make a rough but realistic assessment of his likelihood of success. This involves looking behind the construction of a contention to its substance. An argument which may be available to him notionally but which, on a frank assessment, is unlikely to succeed will not assist him in demonstrating that he has reasonable prospects of success. Precisely the same exercise is required in assessing alternative avenues of relief. Proposing an alternative which is notionally available but which in substance is remote or fanciful does not establish that he has an alternative avenue of relief. And frankly, the prospects of an appeal to the Federal Court are indeed fanciful – for the very reasons already advanced by the Secretary.
The same is true of the argument that he might seek redress from the defective administration scheme. When, at the interlocutory hearing, the Secretary was asked what defective administration could give rise to this alternative avenue, she said that she was unable to offer legal advice to the applicant and referred the question to him. This seems a strange response, given that the assertion about access to the scheme is the Secretary’s, not Mr Linck’s. Since no flesh was placed on the bones of this argument, the Tribunal cannot determine that access to the scheme provides an alternative avenue of relief for Mr Linck.
Prospects of success
In the midst of several arguments of dubious quality, only one, in the Tribunal’s assessment, invited serious scrutiny: the prospects which Mr Linck’s substantive application might enjoy if the extension of time were granted.
For the purposes of the present exercise an extensive analysis of the merits of Mr Linck’s case is not required; rather they are to be assessed in a fairly rough and ready way: Jackamarra v Krakouer [1998] HCA 27 at [9]. It is well-established, however, that an extension of time will not be granted – even where an application is just a few days out of time – if the substance of the application is so poor as to make the hearing of it an exercise in futility. In relation to the granting by the Federal Court of an extension of time to bring an appeal, Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 made the following observations at [62]:
As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time.
Similar considerations apply in the context of merits review by the Tribunal.
Mr Linck’s substantive application contends that the Agency was wrong to deny him DSP payments while he was outside Australia between June and September of 2019. The Secretary maintains that such payments may only be paid to a recipient while overseas if they meet the relevant requirements, outlined in ss 1217, 1218AA, 1218AAA and 1218C of the Social Security Act 1991 (the SS Act).
Section 1217 of the SS Act provides that a person receiving DSP can continue to receive DSP payments for a total portability period of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose within a 12-month rolling period. Portability can continue beyond that period if an allowable absence, of the kind specified in the table in the section, occurs. It is common ground that the allowable absence which Mr Linck seeks is for eligible medical treatment. However, Mr Linck disputes that only one 28-day period of portability exists for overseas travel.

Section 1212 defines eligible medical treatment to mean medical treatment of a kind that is not available to the person in Australia. The Social Security Guide provides the following guidance on the definition of eligible medical treatment (at 7.1.2.20):
Eligible medical treatment, in relation to a recipient, means medical treatment of a kind that is not available to the recipient in Australia. It could include specialised or new types of surgery such as transplants or other kinds of treatment. Such a determination would be guided by the opinions of registered Australian medical practitioners. However, treatment does not necessarily satisfy the definition of eligible medical treatment just because a doctor approves or recommends the treatment. For example, iridology, herbal treatment, faith healing and similar treatments are not considered to be eligible medical treatment.
The Secretary contended, and the Tribunal accepts, that official documents designed to assist in statutory interpretation, such as the Social Security Guide, should be followed and applied by the Tribunal unless there are cogent reasons not to do so: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Mr Linck’s case was characterised by the Secretary in the following terms. He was in Germany for two periods in 2019 obtaining medical treatment. He was eligible for DSP portability only if that medical treatment was eligible medical treatment pursuant to s 1212 of the SS Act. The medical treatment he was obtaining a Germany was immunotherapy, and this treatment did not qualify as eligible medical treatment because it was available in Australia. The evidence was that the drug by which this treatment was delivered – pembrolizumab – had not been listed on the Pharmaceutical Benefits Scheme for subsidised supply but was nonetheless available in Australia if certain circumstances were met. Mr Linck is now receiving immunotherapy via that drug in Australia, confirmation that it had always been available in Australia and as such he was not required to travel to Germany to receive it. This characterisation of his case was the one considered by the Tribunal in AAT1, where it affirmed that, since immunotherapy in the form of pembrolizumab was available in Australia, the treatment in Germany had not been eligible medical treatment.
However, in his written application for second-tier review, and before me, Mr Linck framed his case in somewhat different terms to that characterised by the Secretary and considered by AAT1. His case was that the eligible medical treatment for which he was making his claim was Electro Chemical Treatment (ECT), which is a form of surgery, he said, which was undertaken in Germany for the removal of the tumour in his tongue. He said that the surgery is done in stages to limit damage to the tongue – hence his need for two separate periods in Germany. The immunotherapy which he presently receives in Australia is intended to be undertaken following ECT, for the purpose of preventing the tumour from returning. Mr Linck said that ECT was not available in Australia, which is the reason he travelled to Germany to receive it. In fact, he said, he never received pembrolizumab infusion in Germany, so it cannot constitute the eligible medical treatment for which he travelled there.
The Secretary confessed at the hearing to being taken somewhat by surprise by this argument. The way in which Mr Linck presented his argument, both in the written application and before the Tribunal, may have contributed to that confusion since he made extensive reference to the availability (or, on his contention, non-availability) of pembrolizumab in Australia. In fact it might fairly be said that his argument was double barrelled: he contended that neither ECT nor pembrolizumab infusion was “available” to him in Australia during 2019. Notwithstanding that conflation on his part, the Tribunal is confident that his argument is, essentially, that the eligible medical treatment for which he went overseas was ECT, not immunotherapy.
I am satisfied that the Tribunal at AAT1 considered fairly and comprehensively whether immunotherapy was available in Australia to Mr Linck in its decision of 12 May 2020. However, it is also reasonably clear that it did not consider an argument in relation to ECT. Since the transcript of the AAT1 was not before me at the interlocutory hearing, the reason for that omission is not apparent. It is possible that the argument was not presented explicitly by Mr Linck. Nonetheless, on the basis of what was put before me in the interlocutory hearing the argument must be considered to have some prospect of success. If ECT is treatment which was not available in Australia in 2019, then it may qualify as eligible medical treatment. The documentation presently before me is silent on this question. A document completed by Dr Peter Vickers, Mr Linck’s treating oral and maxillofacial surgeon, makes reference to Mr Linck desiring immunotherapy but appears to distinguish it from surgery. The document, on one reading, suggests that surgery, as well as immunotherapy, is available through the public health system in Australia, but on another reading may not be.
On the basis that Mr Linck has diligently prosecuted his desire for second-tier review (putting aside a lapse of a few hours), has no realistic alternative avenues of relief and has some prospects of success in his substantive application, the Tribunal considers that the extension of time of 59 days he seeks should be granted.
I have instructed the Registrar to make immediate arrangements for the substantive application to be heard, on the basis of the parlous state of Mr Linck’s health.
DECISION
The Tribunal grants Mr Linck’s application for an extension of time to 20 August 2020 for making an application for review of a decision of the Social Services and Child Support Division dated 12 May 2020.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO

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Associate
Dated: 20 January 2020

Date(s) of interlocutory hearing: 9 October 2020

Applicant:

Solicitor for Respondent:

In person

Ms Laura Hinwood, Services Australia