Lumona and Secretary, Department of Social Services
[2016] AATA 287
•5 May 2016
Lumona and Secretary, Department of Social Services [2016] AATA 287 (5 May 2016)
Division
GENERAL DIVISION
File Number
2016/1126
Re
Salima Lumona
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr I Thompson, Member
Date 5 May 2016 Place Adelaide The applicant’s application for an extension of time pursuant to section 29 of the Administrative Appeals Tribunal Act 1975 in which to seek review of the decision of the Social Security Appeals Tribunal dated 14 April 2015 is refused.
........................[Sgd]..........................................
Member I Thompson
CATCHWORDS
PRACTICE AND PROCEDURE – cancellation of parenting payment – extension of time –application for extension of time – whether reasonable in all the circumstances to extend time – application refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 29
CASES
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Gabor v Secretary, Department of Education, Employment and Workplace Relations (2010) FCA 706
Re Killoch and Van Oord Australia Pty Ltd [2015] AATA 457
Lukic v Nolan (1982) 45 ALR 411
Re Bassanese and Secretary, Department of Social Services [2015] AATA 700REASONS FOR DECISION
Member I Thompson
5 May 2016
INTRODUCTION
This matter concerns an application for an extension of time in which to seek review of a decision of the Social Security Appeals Tribunal (SSAT) made on 7 April 2015, and posted on 14 April 2015.
On 4 March 2016, Mrs Lumona lodged an application to the Tribunal for review of the decision made by the SSAT. Also on 4 March 2016, she made application to this Tribunal for extension of time for making an application for review of decision. That application is approximately 10 months outside the required time-frame. The Administrative Appeals Tribunal Act 1975 (the AAT Act) requires applications for review to be lodged within 28 days of the decision under review.
Accordingly, the only issue currently before the Tribunal is whether Mrs Lumona should be granted an extension of time for the filing of her application for review of the SSAT decision.
BACKGROUND FACTS
Mrs Lumona was receiving a parenting payment (partnered) (PPP). Her partner, Mr Kilozo was receiving Newstart allowance (NSA). On 22 September 2014, Centrelink cancelled the payment of NSA to Mr Kilozo, and cancelled the payment of PPP to Mrs Lumona, taking effect from 19 August 2014.
These cancellations were made after Mrs Lumona had advised Centrelink that she had commenced a family day care business from 20 January 2014. On the basis of certain profit and loss statements which she provided to Centrelink, it was determined that her annual income exceeded the allowable limit for her to receive PPP.
Both Mrs Lumona and Mr Kilozo sought an internal review of Centrelink’s decision. An authorised review officer (ARO) at Centrelink varied the original decision and decided that Mrs Lumona’s PPP should have been cancelled with effect from 20 January 2014. On 24 February 2015, both Mrs Lumona and Mr Kilozo applied to the SSAT for a further review. The sole issue for the SSAT was whether the cancellation decisions were correct. The SSAT determined that the cancellation decisions, backdated to 20 January 2014, were correct and the decisions under review were affirmed.
Mrs Lumona lodged the application to this Tribunal for review of her decision and stated that the reasons for the application were as follows: “The information I provided was not taken into account.” In her application for extension of time, Mrs Lumona stated her reasons for the application as follows: “To ask for help so that I can have another review on this because this issue affects my family a lot”.
EXTENSION OF TIME – THE LEGAL FRAMEWORK
Section 29(2) of the AAT Act requires that an application for review must generally be lodged within 28 days of the applicant receiving notice of the decision. However, s 29(7) enables the Tribunal to extend the time for lodging an application if it is satisfied that it is reasonable in all the circumstances to do so.
In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J stated that:
“the ‘prescribed period’ of 28 days is not to be ignored … indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained …”.
Also in Hunter Valley, Willcox J enunciated the principles that guide a decision to grant an extension of time. They include:-
(a)whether there is an acceptable explanation for the delay;
(b)whether the applicant has rested on his or her rights;
(c)whether the respondent or the general public would suffer any prejudice as a result of the extension;
(d)the merits of the case; and
(e)considerations of fairness as between the applicant and other persons in a similar position.
Further guidance about the principles is derived from the judgment of Blomberg J in Gabor v Secretary, Department of Education, Employment and Workplace Relations (2010] FCA 706, at [7] in the following terms:
(a)whilst special circumstances need not be shown, applications for an extension of time are not to be granted unless the Court is positively satisfied that it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an ‘acceptable explanation for the delay’, and it must be ‘fair and equitable in the circumstances’ to extend time.
(b)action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; a distinction is to be drawn between a person who has made it known that the finality of the decision is contested and a person who has allowed other parties to believe that the matter was finally concluded. The reason for this distinction includes the need for finality of disputes.
(c)any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
(d)however, the mere absence of prejudice is not enough to justify the grant of an extension;
(e)the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted; and
(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.”
The principles that were discussed in Gabor were in the context of s 44(2A) of the AAT Act rather than s 29. It is clear, however, that these principles are directly relevant in the context of s 29.
In the application of the principles, Senior Member Toohey pointed out in Killoch and Van Oord Australia Pty Ltd [2015] AATA 457 at [15] that:
“These principles are not to be applied mechanically. All of the circumstances of the case must be considered, the overriding consideration being whether it is ‘reasonable in all the circumstances’ to grant the extension.”
CONSIDERATION
The Tribunal conducted a hearing concerning the application for extension of time on 14 April 2016. Both Mrs Lumona and Mr Kilozo attended the hearing and supported one another during the making of submissions. A Swahili interpreter was present to assist them and the Tribunal. It became clear during the course of the hearing that Mrs Lumona’s understanding of spoken and written English is extremely limited. However, Mr Kilozo’s comprehension of written and spoken English was at least sufficient for him to understand the gist of conversations and the theme of correspondence. Plainly, the assistance of an interpreter was critical at the hearing. However, the comprehension of the English language in everyday activities is relevant to the understanding which Mr Kilozo and Mrs Lumona had of various items of correspondence which they received in relation to their Centrelink communications.
Each of the most relevant criteria relating to the application for extension of time will be considered in turn.
The extent of the delay and the reasons for it
As already indicated, the delay in lodging the application was in the order of 10 months. In the Secretary’s written submissions, it was suggested that such a long delay should ordinarily be accompanied by a satisfactory explanation. This is a reasonable proposition. Nonetheless, Mrs Lumona has not provided an explanation of any substance. Whilst making as generous allowances as possible for difficulties which both Mrs Lumona and Mr Kilozo may have had in interpreting the decision of the SSAT, the correspondence from the SSAT and the circumstances surrounding those matters, it can only be concluded that they did not place sufficient importance on the requirements regarding time limits. In their oral submission to the Tribunal, it appears that they were aware of the time limit, although they were probably not fully cognizant of the significance of that time limit. It seems more likely that the months passed and they simply made a decision to lodge the review application. Clearly they understood the decision of the SSAT, without necessarily fully comprehending the written reasons for the decision. However, they acknowledged receiving the decision in the mail together with the notification that a right of appeal to the Administrative Appeals Tribunal must be exercised within 28 days of the SSAT decision being delivered.
The length of the delay, as the Secretary contended, is significant. Both the length of the delay and unsatisfactory explanation about the reason for the delay, are factors that weigh against the extension of time being granted.
Prejudice
While the respondent did not assert significant prejudice would follow if the application was granted, the substantial delay presents some difficulty for the respondent having previously had the benefit, over many months, of apparent finality of the decision. It is noted, too, that in the absence of prejudice is not in itself sufficient to justify the grant of an extension: Lukic v Nolan (1982) 45 ALR 411.
Prospects of success
As Deputy President Bean stated in Bassanese and Secretary, Department of Social Services [2015] AATA 700 at [13]:
“… before granting an extension of time, it is appropriate for consideration to be given to whether the substantive application has any prospects of success. In particular, it is appropriate for the relevant decision-maker to consider whether there would be any purpose served by granting an extension of time. If the application appears hopeless, there may be no real utility in granting an extension of time and in those circumstances it would generally not be appropriate to do so.”
In the respondent’s written submissions, it was acknowledged that Mrs Lumona’s proposed appeal could not be said to have no prospect of success. However, the Secretary argued that there was no suggestion of a “particularly strong case”. The submission went on to say:-
“In order to succeed in her substantive application for review, the applicant would need to conclusively establish that her income is below the allowable limit. Both before the ARO and the SSAT, she has been unable to do so, as the various Profit and Loss Statements provided have been considered unreliable (see paragraphs 28, 29 and 33 of the SSAT decision). In the absence of any further financial information, Mrs Lumona will be hard-pressed to prove that her income was the amount asserted by her.”
It became clear during this hearing that Mrs Lumona and Mr Kilozo do not have further financial information at the moment and it is doubtful whether additional, reliable financial information could be provided in the foreseeable future. Given that the primary issue regarding the NSA and PPP payments was not about qualification for the payments as opposed to assessment of net business income, the Secretary’s submission would appear to be correct.
Mr Kilozo pointed to various paragraphs in the SSAT decision, and questioned their accuracy. They included matters relating to profit and loss statements, assessment of information which Centrelink had received, issues surrounding business expenses and estimates of business income. The SSAT analysed those records methodically and explained carefully the reasons for the findings. In the end, however, and in the absence of any new, substantive data, it is difficult to see how the proposed application for review would have any prospect of success.
Accordingly, this consideration concerning the prospects of success of the substantive application, also tends to militate against the granting of an extension of time.
Conclusion
The authorities indicate that there is a need for finality in administrative decision-making. The sense of finality enhances the certainty for all parties involved and other individuals in similar circumstances.
Taking into account all of the relevant factors, in particular the lengthy delay, the lack of explanation for the delay, and the likelihood that Mrs Lumona does not have reasonable prospects of succeeding in the substantive application should an extension of time be granted, there are no grounds and no purpose to be served in granting an extension of time to pursue the application for review.
DECISION
Mrs Lumona’s application for an extension of time pursuant to s 29 of the AAT Act in which to seek review of the decision of the SSAT dated 7 April 2015 is refused.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Mr I A Thompson, Member ......................[Sgd]............................................
Administrative Assistant
Dated 5 May 2016
Date(s) of hearing 14 April 2016 Applicant In person Advocate for the Respondent Mr A Hay Solicitors for the Respondent Department of Human Services
0
4
0