Marzena Piekarska and Janusz Piekarska and Secretary, Department of Social Services

[2015] AATA 324

[2015] AATA  324

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2015/0780-81
Re	Marzena Piekarska and Janusz Piekarska
APPLICANTS
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham, Senior Member
Date	14 May 2015
Place	Hobart

The application for an extension of time is refused.

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Ms A F Cunningham, Senior Member

CATCHWORDS

Practice and Procedure – applications for extension of time - lack of merit in substantive applications - applications refused

LEGISLATION

Social Security Act 1991 (the Act)

CASES

Hunter Valley Developments v Minister for Home Affairs and Environment (1984 3 FCR 344)

Johnson and Commonwealth (5 January 1990 No. 5619)

Kuljic v Secretary, Department of Social Security (1994) 33 ALD121 (at 122)

REASONS FOR INTERLOCUTORY DECISION

Ms A F Cunningham, Senior Member

1. The applicants have sought an extension of time to lodge applications for review of decisions made by the respondent concerning payment of their pensions whilst they continue to reside in Poland.

2. On 12 December 2014 decisions were made by the Social Security Appeals Tribunal (SSAT) which affirmed decisions under review not to extend payment of Mr Piekarska’s disability support pension or Mrs Piekarska’s carer’s payment and carer’s allowance. The decisions were posted on 19 December 2014.

3. The applications for review of the SSAT decisions dated 23 January 2015 were received by the Tribunal on 16 February 2015. The applications state that notice of the SSAT’s decision was received on 8 January 2015.   The applicants submitted applications for an extension of time in which to lodge an application for review of the SSAT’s decision on 10 March 2015 contending that their applications for review were sent on 23 January 2015.

4. The applications for an extension of time to lodge the applications for review are opposed by the respondent principally on the basis that there is a lack of merit in the substantive applications for review of the decisions of the SSAT. It is not in contention that the applicants received a copy of the SSAT’s decisions on or about 8 January 2015. Accordingly the date for the lodgement of an appeal would fall on or around 5 February 2015. As the applications for review were received on 16^th of February 2015, the applications for extensions of time relate to a period of some 11 days.

5. The applications for an extension of time were heard via telephone link to the applicants in Poland. Mrs Piekarska represented herself and appeared on behalf of her husband. Mr Sparkes appeared on behalf of the respondent. A written statement opposing the applications for an extension of time was received from the respondent.

6. An application for an extension of time is considered in accordance with the provisions of subsection 29 (7) of the Administrative Appeals Tribunal Act 1975 on the basis that:

   “The Tribunal is satisfied that it is reasonable in all of the circumstances” to extend the time.”

7. The Full Court in Hunter Valley Developments v Minister for Home Affairs and Environment (1984 3 FCR 344 (at paragrahs 18 and 19) stated the following with respect to the Court’s consideration of an application to extend time:

   “Although the section does not place any onus upon the applicant for extension an application has to be made. Special circumstances need not be shown that the Court will not grant the application unless 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 the proceedings outside that period will not be entertained. It is a precondition to the exercise in his favour that the applicant for an extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time.…”

8. In re Johnson and Commonwealth (5 January 1990, No. 5619) the Tribunal held that, prima facie, applications outside the prescribed period of time should not be entertained. The Tribunal went on to state that relevant factors to be considered in the granting of an application are:

   (i)Whether or not the applicant rested on his/her rights or took action to make the decision maker aware that the decision was contested;

   (ii)Any prejudice to the respondent that would be caused by granting the extension of time;

   (iii)Any wider prejudice to the general public in terms of disruption to establish practices;

   (iv)The merits of the substantive application; and

   (v)Fairness in granting extension of time between the applicants and other persons in a like position.

9. The Tribunal notes and accepts the respondent’s submissions made with respect to each of the above factors and agrees that apart from the issue concerning the merits of the substantive application, none of these factors would strongly support a refusal of the application to extend time.

   MERITS OF THE SUBSTANTIVE APPLICATION

10. In Mr Piekarska’s application for review of decision he states in “the reason for application” is “to finalise all legal matters and care for my mother.” In Mrs Piekarska’s application for review of decision she states “the reasons for application as “continue payment of carer and carer allowance to care for Janusz Piekarska”.

11. The decision of the SSAT records that Mr Piekarska has been paid disability support pension (DSP) since 29 of June 2005 and that Mrs Piekarska has been paid carer allowance since 15 March 2004 and carer payment since 13 September 2004. On 5 April 2014 Mr and Mrs Piekarska left Australia to travel to Poland. On 3 June 2014 and again on 18 July 2014 Centrelink decided to extend Mr Piekarska’s portability period firstly, until to June 2014 and then until 15 August 2014. Mrs Piekarska’s portability period was extended on 29 July 2014 until 15 August 2014.

12. On 28 October 2014 a Centrelink departmental employee decided not to exercise the discretion to further extend the portability period for Mr Piekarska’s DSP pension and Mrs Piekarska’s carer payment and carer allowance beyond 15 August 2014. Centrelink’s decision has since been affirmed by an Authorised Review Officer and the SSAT on the basis that their circumstances did not satisfy the legislative provisions of subsection 1218C (1) of the Social Security Act 1991 (the Act).

13. In her oral submissions to the Tribunal Mrs Piekarska said that it has taken some time for them to finalise arrangements for the future care of Mr Piekarska’s mother in Poland. Mr Piekarska’s mother was formerly cared for by Mr Piekarska’s brother who passed away on 20 May 2014. It is now over 12 months since Mr and Mrs Piekarska departed Poland. Mrs Piekarska contended that they need financial support in order to pay for their return trip to Australia and are hoping that this may be provided by the Commonwealth Government in the form of restoring their Social Security pensions.

14. The reasons advanced by Mrs Piekarska for not having returned to Australia do not appear to satisfy any of the criteria of subsection 1218C (1) of the Act.  This is the only provision that affords a discretion to extend a person’s portability period where the person is unable to return to Australia. It is clear that the legislature intends that the payment of social security benefits to persons outside of Australia be for a limited period of time in this case, a period of six weeks, which will only be extended in a limited range of circumstances which prevent the person from returning to Australia. A lack of funds and difficulties in finalising carer arrangements for Mr Piekarska’s mother in Poland do not fall within the listed criteria.

15. Whilst the Tribunal has some sympathy with the applicants’ circumstances, a decision to extend the time for the making of an application for review must take into account the prospects of success of the review application. The responsibility to satisfy the Tribunal as to this rests with the applicants.   As stated by Von Doussa J in Kuljic v Secretary,Department of Social Security (1994) 33 ALD 121 (at 122):

    “One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal.  If consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.”

16. Although the delay in the submission of their applications for review is relatively short, any extension of the prescribed period of 28 days should only be entertained where the applicants are able to satisfy the Tribunal that it is reasonable in all of the circumstances to do so. As the Tribunal considers that there is little, if any prospect of a successful review of the respondent’s decisions, the Tribunal determines that the applications for an extension of time should be refused.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the interlocutory decision herein of Ms A F Cunningham, Senior Member

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Administrative Assistant

Dated

Date of hearing	28 April 2015
Applicants	In person
Solicitors for the Respondent	Mr B Sparkes, Program Litigation and Review Branch