Mohammed and Secretary, Department of Employment
[2014] AATA 611
•14 August 2014
[2014] AATA 611
DivisionGENERAL ADMINISTRATIVE DIVISION
File Number 2014/3476
Re Osman Mohammed
APPLICANT
And Secretary, Department of Employment
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 14 August 2014
Date of Written Reasons 28 August 2014
Place Melbourne
Decision
The Tribunal refuses the applicant’s application to extend the time within which he may lodge an application for review of the respondent’s decision dated 8 May 2014 refusing his application for assistance under the Fair Entitlements Guarantee Act 2012.
..[sgd] S A Forgie…
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time – applicable principles – applicant could not satisfy eligibility criteria under Fair Entitlements Guarantee Act 2012 – no prospects of success – application refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975; sections 2A, 29, 33, 40, 43, 44
Administrative Decisions (Judicial Review) Act 1977; section 11
Corporations Act 2001
Evidence Act 1995; sections 3, 5, 163
Fair Entitlements Guarantee Act 2012; sections 3, 5, 10, 11 to 13, 14, 40
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; section 3, Schedule 2, Part 3, Item 11(1)
Federal Circuit Court of Australia Act 1999
Federal Court of Australia Act 1976
Migration Act 1958; sections 5, 30, 31, 32, 36
Taxation Administration Act 1953
Workplace Relations Act 1996Migration Regulations 1994; regulations 1.07, 2.02, 1222, Schedule 1, Schedule 2, Item 866.511
Workplace Relations Regulations 2006; Part 19, Divisions 3 and 4CASES
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
Brown v Federal Commissioner of Taxation [1999] FCA 1198; (1999) 99 ATC 4852; 42 ATR 672
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Chalk v Commissioner for Superannuation [1994] FCA 1063; (1994) 50 FCR 150; 33 ALD 420; 19 AAR 450
Comcare v A’ Hearn (1993) 45 FCR 441; 119 ALR 85
Fair Work Ombudsman v Shafi Investments Pty Ltd (CAN 129 261 347), Younus Mohammed and Mahmood Mohammed MLG 878/2011
Fair Work Ombudsman v Shafi Investments Pty Ltd & Ors [2012] FMCA 1150
Federal Commissioner of Taxation v Brown [1999] FCA 1198
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
Phillips v Australian Girls’ Choir Pty Ltd v Anor [2001] FMCA 109
Windshuttle v Commissioner of Taxation [1993] FCA 553; (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88REASONS FOR DECISION
Mr Osman Mohammed has applied for an extension of time within which to lodge an application for review of a decision made by a delegate of the Secretary of the Department of Employment (Secretary) dated 8 May 2014. In that decision, the Secretary decided that Mr Mohammed is not entitled to assistance under the Fair Entitlements Guarantee Act 2012 (FEG Act). In doing so, the delegate effectively affirmed an earlier decision dated 24 March 2014 refusing Mr Mohammed’s claim. On 2 June 2014, Mr Mohammed applied for an extension of time within which to apply for review of the decision. A decision extending time until 1 July 2014 was made by another member of the Tribunal. He did so on 27 June 2014 after receiving notification on 24 June 2014 that the Secretary did not object to the extension of time. In a letter dated the same day, the Tribunal advised Mr Mohammed that the time had been extended. Unfortunately, 27 June 2014 was a Friday and 1 July 2014 was the following Tuesday. Assuming that the letter was delivered on Monday, 30 June 2014, I accept Mr Mohammed’s statement that he did not check his mail box until some time after 1 July 2014 had passed. By that time the extended time for lodging his application had also passed. On 8 July 2014, he requested a further extension. The Secretary has now opposed my granting that extension.
Although I acknowledge that Mr Mohammed was not given a proper opportunity to lodge his application for review once the extension had been granted, I have not granted his further application for an extension within which to lodge it. I have reached that conclusion on the basis that he has no reasonable prospects of succeeding even if he were permitted to lodge an application. I will explain my reasons for reaching that conclusion below. In essence, they are that he cannot, on any view, satisfy the requirements of s 10(1)(g) of the FEG Act. In order to satisfy the requirements of that provision, he had to hold either a permanent visa or a special category visa or be an Australian citizen. He did not meet those requirements because he held a Vocational Education and Training Sector Visa (TU), Subclass 572. That is a temporary visa.[1]
[1] Migration Act 1958 (Migration Act); ss 30 and 31(1) and Migration Regulations 1994 (Migration Regulations); rr 1.07 and 2.02, 1222 and Schedule 1, and Schedule 2.
BACKGROUND
On the basis of Mr Mohammed’s affidavit affirmed on 21 May 2012 in proceedings in the Federal Magistrates Court of Australia (FMC),[2] I find that he came to Australia from India and entered on a dependent visa. At the time, his wife had been granted a subclass 572 visa being a Vocational Education Sector student visa. He was permitted to work only 20 hours each week.
[2] Fair Work Ombudsman v Shafi Investments Pty Ltd (ACN 129 261 347), Younus Mohammed and Mahmood Mohammed MLG 878/2011.
At the time, his brothers in law, Mr Younus Mohammed and Mr Mahmood Mohammed, operated a take away food franchise under the name of “Ali Baba Kebabs and Wraps”. They did so through the company, Shafi Investments Pty Ltd (Shafi Investments), of which his brother in law, Mr Younus Mohammed, was both its Director and Secretary.[3] Mr Mohammed was employed by Shafi Investments from approximately 9 April 2008 until either May or July 2009 when it was terminated.[4] I make these findings on the basis of his affidavit in the FMC, his claim under the FEG Act and his Workplace Complaint Form lodged with the Fair Work Ombudsman (FWO).
[3] ASIC’s Current and Historical Extract relating to Shafi Investments.
[4] Mr Mohammed referred to the date on which his employment was terminated as 26 May in his Workplace Complaint Form lodged with the Fair Work Ombudsman, as 29 May 2009 in his affidavit in the proceedings in the FMC and as 26 July 2009 in his claim under the FEG Act. The difference in dates is of no consequence.
On 8 April 2011, Mr Mohammed was granted a Protection (Class XA) Visa Subclass 866. That is a permanent visa under the Migration Act 1958 (Migration Act) and the Regulations made under it.[5]
[5] Migration Act; ss 30, 31(2) and 36 and Migration Regulations 1994 (Migration Regulations); r 1.07 and Schedule 2, Item 866.511.
As a result of the termination of his employment by Shafi Investments, Mr Mohammed approached the FWO. On 27 June 2011, the FWO lodged an application in the FMC seeking a declaration that Shafi Investments had contravened various provisions of the Workplace Relations Act 1996 (WR Act)[6] and that Mr Younus Mohammed and Mr Mahmood Mohammed were involved in those contraventions. The FWO alleged that Shafi Investments had been in breach by failing to pay Mr Mohammed the basic period rate of pay in the Australian Pay and Classification Scale, failing to pay him on a weekly or fortnightly basis, failing to pay him accrued leave on termination of the employment and failing to provide him with unpaid meal breaks of at least 30 minutes duration after five hours work. The FWO also sought a declaration that Shafi Investments had failed to keep records relating to Mr Mohammed in accordance with Divisions 3 and 4 of Part 19 of the Workplace Relations Regulations 2006.[7] The FMC made those declarations on 10 December 2012 and ordered the FWO to provide draft orders with respect to the amounts payable to the Complainant and the matter is to be relisted to deal with the matter of penalty.[8]
[6] Although the WR Act was repealed with effect from 30 June 2009, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW Transitional Act) provides that “The WR Act continues to apply, on and after the WR Act repeal day, in relation to conduct that occurred before the WR Act repeal day.”: FW Transitional Act; s 3; Schedule 2, Part 3, Item 11(1).
[7] Part 19 is entitled “Records Relating to Employees and Pay Slips”
[8] Fair Work Ombudsman v Shafi Investments Pty Ltd & Ors [2012] FMCA 1150
On 20 February 2013, the FMC made various orders under the WR Act. Among them, was an order that Mr Younus Mohammed pay the sum of $22,000.00 as an aggregate penalty for his involvement in the contraventions and that his brother, Mr Mahmood Mohammed, pay $14,000.00. Both were directed to pay those sums to Mr Mohammed.
On the basis of the records of the Federal Court on the Commonwealth Courts Portal and on the Current and Historical Extract from the records maintained by the Australian Securities and Investments Commission (ASIC), I find that Shafi Investments was wound up by order of the Federal Court on 13 December 2013. Mr Paul Burness of Worrells Insolvency was appointed as its liquidator.
On 22 January 2014, Mr Mohammed lodged a claim under the FEG Act for unpaid wages. There is no suggestion that his claim was not an “effective claim” within the meaning of s 14 of the FEG Act. It appears to be in the form approved by the Secretary, accompanied by documents required by the Secretary and made before 12 months had passed from the insolvency event that had occurred to Shafi Investments i.e. the appointment of a liquidator under the Corporations Act 2001.[9] He claimed a total of $48,000.00 for 52 weeks’ work.[10] A delegate of the Secretary refused his claim and, although the decision was varied on internal review, the practical outcome was the same. Mr Mohammed’s claim was refused.
[9] FEG Act; s 5, paragraph (a) of definition of “insolvency event”.
[10] Entitlements under the FEG Act relate to the “wages entitlement period”, which is a 13 week period: FEG Act; s 5.
LEGISLATIVE FRAMEWORK
The FEG Act is described in its Long Title as:
“An Act to provide financial assistance for workers who have not been fully paid for work done for insolvents of bankrupts, and for related purposes”.
Those objects are developed in s 3 when it provides that:
“The main objects of this Act are:
(a)to provide for the Commonwealth to pay advances on account of unpaid employment entitlements of former employees of employers in cases where:
(i)the employers are insolvent or bankrupt; and
(ii)the end of the employment of the former employees was connected with that insolvency or bankruptcy; and
(iii)the former employees cannot get payment of the entitlements from other sources; and
(b)to allow the Commonwealth to recover the advances through the winding up or bankruptcy of the employers and from other payments the former employees receive for the entitlements.”
Although broadly stated, it is clear from the remaining provisions of the FEG Act that not every employee of every insolvent or bankrupt employer is entitled to an advance from the Commonwealth even if the end of their employment was connected with that insolvency or bankruptcy and even if they cannot get payment of entitlements from other sources. The conditions of eligibility for an advance are prescribed by s 10. A reading of that section underlines the fact that eligibility for an advance is much more confined than a reading of the Long Title or of the objects set out in s 3 would suggest. Section 10(1) provides:
“A person is eligible for an advance if the Secretary is satisfied of all of the following:
(a)the person’s employment by a particular employer has ended;
(b)after the commencement of this section, an insolvency event happened to the employer;
(c)the end of the employment:
(i)was due to the insolvency of the employer; or
(ii)occurred less than 6 months before the appointment of an insolvency practitioner[[11]] for the employer; or
[11] An “insolvency practitioner for an employer” includes a liquidator of the employer: FEG Act; s 5, paragraph (a). A “liquidator means a liquidator appointed (provisionally or otherwise) under the Corporations Act 2001”: FEG Act; s 5.
(iii) occurred on or after the appointment of an insolvency practitioner for the employer;
(d)the person is (or would, apart from the discharge of the bankruptcy of the employer, be) owed one or more debts wholly or partly attributable to all or part of one or more employment entitlements;
(e)the person has taken steps, so far as reasonable, to prove those debts in the winding up of or bankruptcy of the employer;
(f)if the person was owed any of those debts before the insolvency event happened, the person took reasonable steps before that event to be paid those debts;
(g)when the employment ended, the person was an Australian citizen or, under the Migration Act 1958, the holder of a permanent visa[[12]] or a special category visa;[[13]]
(h)an effective claim (see section 14) that the person is eligible for the advance has been made to the Secretary by or on behalf of the person.
Note: …”
Sections 11 to 13 exclude certain person’s from eligibility despite their otherwise meeting the conditions in s 10(1). Those exclusions are not relevant in this case.
[12] A “permanent visa” is one of the two kinds of visa issued under the Migration Act 1958 (Migration Act); ss 5(1) and 30(1). It permits its holder to remain in Australia indefinitely.
[13] A “special category visa” is a temporary visa that may only be issued if the Minister is satisfied that the applicant is a current New Zealand citizen holding a current New Zealand passport: Migration Act; ss 5(1) and 32.
CONSIDERATION
Under s 29(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), Mr Mohammed had a period of 28 days within which to lodge his application seeking review of the Secretary’s decision. That period of 28 days is calculated from the time he was given the letter dated 8 May 2014 setting out the Secretary’s decision. Section 29(7) of the AAT Act permits that time to be extended when it provides:
“The Tribunal may, upon an 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.”
I will begin with the principles identified by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[14] (Hunter Valley). I will then adapt them to the specific circumstances of the legislative context in which the Secretary made the decision of which Mr Mohammed seeks review. Following that, I will consider the circumstances of this case in relation to them.
[14] (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315
Principles identified in Hunter Valley Developments Pty Ltd v Cohen
When considering an application for an extension of the time allowed by the lodgement of an application in the Tribunal, regard has frequently been had to the principles set out by Wilcox J Hunter Valley. While they are relevant, it must be remembered that Wilcox J developed those principles in the context of an application for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) rather than s 29 of the AAT Act. Section 11(1)(c) permits an application to be lodged “… within such further time as the court concerned … allows.” Section 11 does not set out any criteria to be followed in exercising the Court’s discretion but, having regard to judgments given by other Judges of the Federal Court at first instance, he distilled six factors that are relevant in deciding whether the discretion to extend time should be exercised.
The first factor he developed[15] was later modified by the Full Court of the Federal Court in Comcare v A’Hearn[16] although in the context of the AAT Act rather than that of the ADJR Act. Allowing for that modification, the factors were summarised by Federal Magistrate McInnis, as he then was, in Phillips v Australian Girls’ Choir Pty Ltd & Anor[17] (Phillips) when he said:
[15] It read in part that “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 …”: (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315 at 348; 310-311; 320
[16] (1993) 45 FCR 441; 119 ALR 85
[17] [2001] FMCA 109
“ 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 [sic] 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:
1. 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) 43 ALR 535 at 550).
2. 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) 1 VR 297 at 302).
3. 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) 42 ALR 283 at 287).
4. 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 p 287).
5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416).
6. 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).
7. 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).”[18]
[18] [2001] FMCA 109 at [10]. In Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [18]-[19], Cowdroy J approved and applied these factors in the context of s 44(2A)(a) of the AAT Act. Section 44(2A) provides that an appeal instituted under ss 44(1) or (2) shall be instituted within the time set out in s 44(2A)(a) and in such manner as is prescribed by the Rules of Court made under the Federal Court of Australia Act 1976.
Principles must be adapted to the particular legislative context
It is important to remember that the legislative context in which Wilcox J developed these principles was that of the ADJR Act. It was a context in which there is no legislative guidance as to the exercise of the discretion. That is a context unlike that in this Tribunal where Parliament has directed that the Tribunal has power to extend the time if “it is reasonable in all the circumstances to do so.” Regard must also be had to s 2A of the AAT Act. It does not have an equivalent in the Federal Court of Australia Act 1976 or in the Federal Circuit Court of Australia Act 1999. They apply to the two Courts that would be expected to hear an application under the ADJR Act. It provides that:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
The apparent strengths or weaknesses of any applicant’s case are the subject of factor 6 in McInnis FM’s summary in Phillips and were earlier included by Wilcox J in the Hunter Valley case in his list. The particular application for an extension of time will be relevant in deciding how those strengths and weaknesses are “properly to be taken into account”. The authorities establish that a consideration of the merits of the substantive or substantial application does not translate into a requirement to undertake a full consideration of the merits of a substantive application were time extended and it were to be lodged. Von Doussa J explained their relevance of issues relating to the merits of the substantial application in Windshuttle v Commissioner of Taxation.[19] His Honour said:
“The issue which the AAT was required to consider was whether, for the purposes of the exercise of the discretion under s 188A [of the Income Tax Assessment Act 1936], the applicant’s case had prospects of success, and what those prospects were. It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends. In other words the assertions can, if the parties so choose, be treated as pleadings are treated where an application is made to strike out an action on the ground that the pleadings disclose no cause of action. On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence. That is left for the trial if there is an arguable case on the pleadings. It would, of course, have been open before the AAT for the Commissioner to attack the history of the transaction asserted by the applicant. If it could have been demonstrated that an essential part of that history was wrong, that would go directly to the prospects of success to the objection. However the Commissioner chose not to attach [sic] the veracity of the facts alleged by the applicant, and this is understandable having regard to judicial pronouncements to the effect that where the issue is whether leave should be given to extend time it is inappropriate for the tribunal concerned to embark on a full scale trial of the merits of the underlying question which will be agitated only if time is extended. See Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 at 130, Repatriation Commission v Tuite (1992) 37 FCR 571 at 577. It would not be appropriate on an application to extend time to seek to attack the facts alleged on the ground that the credit of the applicant, or that of supporting witnesses, should not be accepted. Arguments of that kind are best left for later consideration if and when an extension of time is granted. Only where there is some obvious and easily demonstrated flaw in the applicant's case would it be appropriate to challenge the factual basis for the asserted claim on an application to extend time.”[20]
[19] [1993] FCA 553; (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88
[20] [1993] FCA 553; (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88 at [26]; 243-244; 4999 and 95 and approved by Federal Commissioner of Taxation v Brown [1999] FCA 1198 at [12] per Drummond, Sackville and Hely JJ
In the later case of Brown v Federal Commissioner of Taxation,[21] Hill J commented upon the relevance of particular principles set out in the Hunter Valley case to an application for an extension of time under the Taxation Administration Act1953. The taxpayer had sought an extension of time within which to lodge an objection from an assessment but the Commissioner of Taxation (Commissioner) had refused it. The Tribunal affirmed the Commissioner’s decision and the taxpayer appealed to the Federal Court. Against that background, Hill J said:
“… there is much to be said for the view that the merits of the objection are of less concern when an application for an extension of time to object is under consideration than would be the case where judicial review of an administrative decision is sought. For it is only after the objection is lodged within the time which is extended that the Commissioner is placed under a duty to consider the objection and allow or disallow it or allow it in part. I do not wish to be taken as saying that the merits of the objection are totally irrelevant. For present purposes I am prepared to accept the view of von Doussa J in Windshuttle [v Deputy Federal Commissioner of Taxation (1993) 93 ATC 4992] that an applicant should show that he or she has an arguable case. No doubt if the objection on the face of it is one which is frivolous or bound to fail as a matter of law it would be a futility to permit an extension of time to enable it to be considered. But this points to quite a low threshold. What is involved is whether the objection on its face discloses a case which is arguable, not whether having regard to other matters, including evidence which may not even be known to the taxpayer at the time of making the application, the case is one that the taxpayer will or will probably lose.”[22]
[21] (1999) 99 ATC 4852; 42 ATR 672; [1999] FCA 1198
[22] (1999) 99 ATC 4516; (1999) 42 ATR 118; [1999] FCA 563 at at 4527; 131; [56]
While his Honour’s comments were noted on appeal, the Full Court made no particular observation other than to clarify the Tribunal’s power to have regard to the apparent strengths and weaknesses of the taxpayer’s case.[23] It said:
“ We wish to make it clear, however, that the AAT is not precluded from taking into account the apparent strength or weakness of taxpayer’s case, when determining whether an extension of time should be granted, if the overall circumstances are such that the apparent strength or weakness of that case is properly to be regarded as a material consideration. In the present case, for example, while the AAT should not have resolved the application by rejecting the taxpayer’s evidence as unworthy of belief, it could have taken into account the obvious difficulties confronting the taxpayer’s claim when deciding whether, in the light of all the circumstances, an extension of time was appropriate. The AAT might well have concluded that, having regard to the taxpayer’s delay in lodging the application, the fact that he had been prepared at one stage to accept that the assessed amount was income and the contemporaneous documentary evidence casting doubt upon his claims, the case did not warrant an extension of time. But this is not the basis on which the AAT chose to proceed.”[24]
[23] Federal Commissioner of Taxation v Brown (1999) 99 ATC 4852; 42 ATR 672; [1999] FCA 1198
[24] Federal Commissioner of Taxation v Brown (1999) 99 ATC 4852; 42 ATR 672; [1999] FCA 1198 at 4860; 680-681; [28]
The spirit in which an application for an extension should be approached is a matter that Davies J, with whom Black CJ agreed, considered in Chalk v Commissioner for Superannuation.[25] He said:
“ Most provisions which authorise an extension of time are instances of beneficial legislation which, accordingly, should be applied beneficially. With respect to such discretions in rules of court, Reynolds, Hutley and Bowen JJA said, in Outboard Marine Australia Pty Ltd v Byrnes: Bauknecht (Third Party) [1974] 1 NSWLR 27 at 30:
‘We appreciate that the rules of court, particularly those relating to time, should never be allowed to be an instrument of tyranny. They do, however, have purposes, one of which is that the parties may know where they stand and regulate their affairs accordingly. It is also appreciated that where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time.’
Those remarks indicate the importance of forming a view as to whether it is in the interests of justice that time be extended...”[26]
[25] [1994] FCA 1063; (1994) 50 FCR 150; 33 ALD 420; 19 AAR 450
[26] [1994] FCA 1063; (1994) 50 FCR 150; 33 ALD 420; 19 AAR 450 at [23]; 155; 425; 455-456. Similar sentiments were expressed by McHugh J in the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 at 553-554; 9-10.
Applying the principles in this case
If it were not the view that I have reached regarding the merits of Mr Mohammed’s application and its prospects of success, I would have no hesitation in extending the time within which he may lodge his application. He lodged his first application for an extension of time on 2 June 2014 and so well within the time permitted for lodgement of his application for review had he chosen to take that course initially. Although the time was extended by a decision dated 27 June 2014 to the date he had chosen, 1 July 2014, he could not realistically be expected to have lodged his application by then even if he had received notice of the extension on 30 June 2014, which he did not. Whether the letter was delivered by that time is unknown.[27] By his actions, Mr Mohammed has kept the Secretary informed that he does not accept the decision and seeks to have it reviewed. The Secretary is not disadvantaged by any delay which has been minimal in any event. It could not be said that other claimants under the FEG Act are disadvantaged.
[27] In the absence of any evidence to raise doubt on the presumption that it was received earlier, s 163(1) of the Evidence Act 1995 (Evidence Act) provides that “A letter from a Commonwealth agency addressed to a person at a specified address is presumed … to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.” Section 163 applies to proceedings in the Tribunal for it is one of the provisions specified in s 5 of the Evidence Act as applying in an “Australian court”. Clearly, the Tribunal is not a court and nor is it required to apply the laws of evidence: AAT Act, s 33(1)(c). It is, however, “a … body authorised by an Australian law … to hear, receive and examine evidence” (Evidence Act, s 3(1), Dictionary, Part 1) and so coming within paragraph (e) of the definition of an “Australian court” for the purposes of the extended application of the Evidence Act. That conclusion follows from the fact that the Tribunal “may … take evidence on oath or affirmation” (AAT Act, s 40(1)(a)), may summon a person to give evidence (AAT Act, ss 40(1A)(a) and (b)) and must examine that evidence if it is to meet its obligation, when giving written reasons, to “… include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.” (AAT Act, s 43(2B)).
The prospects of success of his application have, however, proved a stumbling block for me. The provisions of s 10 of the FEG Act are written in mandatory terms. A person is eligible for an advance if the Secretary is satisfied of the eight criteria that follow. The Secretary must be satisfied of all eight of them and not just the majority of them or some of them. Some, Mr Mohammed clearly meets but there is at least one that he clearly does not and it will not be changed by further evidence. That is the criterion that, at the time his employment ended (i.e. either May or July 2009), he was an Australian citizen or, under the Migration Act, the holder of a permanent visa or a special category visa. As he is not a New Zealander, he cannot be the holder of a special category visa.[28] He is not an Australian citizen. Certainly, as from 8 April 2011, he has been the holder of a permanent visa in the form of a Protection (Class XA) Visa Subclass 866, he did not hold that in July 2009 and so not at the time when his employment with his employer, Shafi Investments ended. Before that time, he held a Vocational Education and Training Sector Visa (TU), Subclass 572 visa. That is a temporary visa.[29]
[28] See [11] above
[29] See FN 1 above
This alone means that Mr Mohammed cannot succeed on a review of the decision. To grant his application for an extension in these circumstances and to allow him to direct his efforts towards gathering and presenting material to show that he meets all or any of the other seven criteria in s 10(1) would not be consistent with the exhortation in s 2A of the AAT Act to the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. It would be none of those things to him and none to the Secretary who would need to allocate resources to the matter.
For these reasons, I refuse Mr Mohammed’s application to extend time within which to lodge an application for review of the Secretary’s decision dated 8 May 2014 affirming an earlier decision dated 24 March 2014.
I certify that the twenty four preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: ……[sgd]...................................................
Leah Berardi Associate
Date of Hearing 14 August 2014
Date of Decision 14 August 2014
Date of Written Reasons 28 August 2014
Self-represented Applicant Mr Osman Mohammed
Solicitor for the Respondent Mr Tigiilagi Eteuati
Clayton Utz
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