Molnar and Secretary, Department of Family and Community Services

[2002] AATA 704

DECISION AND REASONS FOR DECISION [2002] AATA 704

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2001/371

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      Bill Molnar  
  Applicant
           And    Secretary, Department of Family and Community Services        
  Respondent

DECISION

Tribunal       Mr G A Mowbray    

Date17 July 2002

PlaceCanberra

Decision      The Tribunal refuses to exercise its discretion to grant an extension of time under section 29(7) of the Administrative Appeals Tribunal Act 1975.
  ..............................................
  Member
CATCHWORDS
PRACTICE AND PROCEDURE – Extension of time – no acceptable explanation for delay – little chance of substantive application succeeding

Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315; 58 ALR 305; 3 FCR 344
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; 14 AAR 42.

REASONS FOR DECISION

15 August 2002      Mr G A Mowbray                

1. On 4 September 2001 the Tribunal received a letter in Hungarian dated 28 August 2001 from Mr Bill Molnar.  Mr Molnar is currently living in Hungary.  Upon translation the letter was treated as an application for review of a decision of the Social Security Appeals Tribunal (SSAT) made on 13 August 1999. That decision had affirmed a decision by Centrelink to cancel Mr Molnar's disability support pension.  The written reasons of the SSAT decision were dated 27 August 1999.  A copy of these reasons was enclosed in a letter to Mr Molnar from the Registrar of the SSAT also dated 27 August 1999.

2. On 25 October 2001 the Tribunal received a letter from Centrelink on behalf of the Secretary of the Department of Family and Community Services stating that the Secretary objected to an extension of time being granted to Mr Molnar to lodge an application with the Tribunal.  Mr Molnar was notified of this by the Tribunal and asked to make an application for extension of time.

3. In the course of an ongoing exchange the Tribunal has since received several more letters in Hungarian from Mr Molnar, dated 24 October 2001, 27 November 2001, 17 February 2002 (including an extension of time application) and 16 April 2002.  The Secretary was provided with copies of these and invited to make any further submissions on the extension of time application.  Additional submissions were made by the Secretary in a letter dated 12 July 2002.  Both parties were advised that the Tribunal intended to make a decision on the extension of time application based on the papers.  I have read and considered the written submissions of both Mr Molnar and the Secretary and on 17 July 2002 I made the decision for the reasons set out below.

4. Factors to be considered in extension of time applications were examined by Justice Wilcox in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315; 58 ALR 305; 3 FCR 344 and also by Justice O'Connor, the President of the Tribunal, in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; 14 AAR 42. In these reasons I have generally followed the formulation set out in Mulheron but the considerations in both cases are similar.

5. The starting point is that prima facie proceedings outside the time period prescribed by legislation, in this context the Administrative Appeals Tribunal Act 1975, will not be entertained. An extension of time will be granted if it is proper to do so. The Act prescribes a period of 28 days after the day on which a document setting out the terms of the SSAT's decision was furnished to Mr Molnar. In this case the time period would have expired at approximately the beginning of October 1999.

6. In my view Mr Molnar has not provided an acceptable explanation for the delay in lodging his application

• it is clear Mr Molnar was adequately informed of his appeal rights and the applicable time limit following the SSAT decision of 13 August 1999

• Mr Molnar has said he believes he appealed to the Tribunal in a letter to the Brisbane Registry of 4 September 2000.  However there is no record of that registry having ever received a letter from Mr Molnar.  Even if such a letter had been received it would still have been almost a year out of time

• notwithstanding the communication difficulties and inherent delays involved in sending and translating correspondence between Australia and Hungary there is a considerable period of delay unaccounted for.

1. It is relevant whether Mr Molnar rested on his rights or took action to make Centrelink aware its decision was still being contested following the SSAT's decision.  It was not until May 2000 that Mr Molnar made Centrelink aware he was interested in appealing further.

2. Prejudice to the respondent or to the wider public are relevant factors.  Despite the Secretary's submissions I do not accept that there would be any real prejudice in this matter if I were to grant an extension of time.

3. More importantly Mr Molnar has little chance of succeeding in his substantive application for review. After he had been absent from Australia for 12 months his disability support pension was cancelled under section 1213A(2) of the Social Security Act 1991 which at the relevant time stated

   "If:
   (a) a person is receiving a disability support pension granted on or after 12 November 1991; and
   (b) the person leaves Australia on or after that day; and
   (c) the Secretary decides that the person is not severely disabled when leaving; and
   (d) the person continues to be absent from Australia for a period of 12 months;

   the person ceases to be qualified for disability support pension on the day after the 12 month period ends."

4. To succeed in his application Mr Molnar would need evidence that he was severely disabled at the time of his departure from Australia in 1997.  At the relevant time the Social Security Act 1991 defined "severely disabled" in section 23(4B)

   "For the purposes of this Act, a person is severely disabled if:
   (a) a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:

   (i) to work at least for the next 2 years; and
   (ii) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

   (b) the person is permanently blind."

5. On the papers there does not appear to be any evidence of severe disability at the time of Mr Molnar's departure from Australia.  There is some new medical evidence that was not before the SSAT but it relates to Mr Molnar's condition while in Hungary.

6. Having weighed all of these considerations and having examined the evidence before me, I am of the view this is not an appropriate case for exercise of the Tribunal's discretion to grant an extension of time under section 29(7) of the Administrative Appeals Tribunal Act 1975.

   I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray

   Signed:         .....................................................................................
     Associate

   Date of Decision  17 July 2002
   Date of Written Reasons         15 August 2002
   Solicitor for the Applicant         Self-represented
   Solicitor for the Respondent    Ms Rhonda Bradley, Centrelink Advocate