Nakad and Secretary, Department of Social Services (Social services second review) [2019] AATA 39 (22 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6909
Re:Najwah Nakad
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:22 January 2019
Place:Sydney
The application for an extension of time is refused.
...........................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time – explanation for delay – whether Applicant rested on rights - where prejudice would be incurred by respondent and public by allowing extension of time –merits of substantive application – extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Social Security Act 1991(Cth)
CASES
Angelakos v Department of Employment and Workplace Relations [2007] FCA 25
Berkelaar v Comcare [3 July 1997] AAT V97/447
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Dranichnikov v Centrelink [2003] FCAFC 133
Jamal v Secretary, Department of Social Services [2018] FCA 513
McKenzie and Secretary, Department of Social Security [1998] AATA 841
Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142
SECONDARY MATERIALS
Social Security (Assurances of Support) Determination 2018
Social Security Guide
REASONS FOR DECISION
Chris Puplick AM, Senior Member
22 January 2019
APPLICATION FOR EXTENSION OF TIME
BACKGROUND
On 4 November 2005 Ms Najwah Nakad (the Applicant) made an application to provide an Assurance of Support (AoS) in support of her uncle and aunt, Mr Mikhael Chatah and Mrs Marie Chatah. The application was accepted and became effective as of 16 November 2005.
The terms of the AoS were to the effect that, for a ten year period, the Applicant would be liable to repay to the Commonwealth any specified social security payments made to either Mr or Mrs Chatah during that period.
Mr and Mrs Chatah were granted visas (subclass 143) in December 2005 and arrived in Australia (from Lebanon) on 5 January 2006. This had the effect of bringing the AoS into operation for a period commencing on the date of their arrival, 5 January 2006 for the ten years up to and including 4 January 2016.
The effect of an AoS is that the person giving that assurance undertakes to support the nominated person(s) for the specified period of time before that person(s) becomes eligible to receive any specified benefits from the Commonwealth. If, in that period of time they do receive such benefits, then the Assurer is liable to repay that amount to the Commonwealth.
The Applicant’s uncle, Mikhael Chatah was granted Special Benefit (SpB) from 22 December 2011.
SpB is a discretionary income support payment that provides financial assistance to people who, due to reasons beyond their control, are in financial hardship and unable to earn a sufficient livelihood for themselves and their dependants.
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- AGLC
- Nakad and Secretary, Department of Social Services (Social services second review) [2019] AATA 39
- Case
- [2019] AATA 39
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether to grant Nakad an extension of time to pursue her application. This required the Tribunal to consider the merits of her substantive application, the explanation for the delay, and whether granting an extension would cause prejudice to the respondent and the public.
The Tribunal reasoned that while the merits of an application are not always a primary consideration for an extension of time, an application lacking substance or reasonable prospects of success could be dismissed at any stage. In this instance, the Tribunal concluded that Nakad's application had no realistic prospects of success on the merits. The facts established that Nakad signed the Assurance of Support, a recoverable debt was created, and there were no "special circumstances" to justify the Secretary waiving the debt. The Tribunal found Nakad's circumstances were not sufficiently unique or distinguishable to qualify as special circumstances or to override the Act's intention for debt recovery. Consequently, the application for an extension of time was refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Even where the Tribunal has questioned whether or not the merits of an application should even be considered: “there is a very real question whether the prospects of success are a relevant consideration”[17] it is conceded that in relation to “an application which is… lacking in substance (or) has no reasonable prospect of success ….(the Tribunal) may dismiss that application at any stage of the proceeding.”[18][17] Rust-oleum Australia Pty Ltd v Australian Pesticides and Veterinary Medicines Authority [2017] AATA 298 at [34] per Deputy President Forgie[18] Ibid at [footnote 30].CONSIDERATIONS Unfortunately for the Applicant, and appreciating her feelings that she has been treated unfairly because of the actions of others, the Tribunal cannot but conclude that there are no realistic prospects of success with her application on the merits. The facts are1. The Applicant signed the necessary Assurance of Support;2. A recoverable debt was created as a result of her Assuree’s receipt of Specified Benefit payments within the time limits of that AoS;3. There appear to be no “special circumstances” which would justify the Secretary waiving the debt.[19] The Applicant’s circumstances do not appear to be so unique or distinguishable[20] as to qualify as “special circumstances” or to justify setting aside the Act’s clear intention that debts should be recovered.[21][19] It should be noted that the Secretary does have a more general power to waive debts under section 1236(1A) of the Act where the debtor has no capacity to pay (s.1236(1A)(a)) or where the cost of recovery makes that action not cost effective (s. 1236(1A)(d)).[20] Dranichnikov v Centrelink [2003] FCAFC 133.[21] Angelakos v Department of Employment and Workplace Relations [2007] FCA 25. Despite the other limbs of the Hunter Valley test not being against the Applicant, failure on this critical point must be fatal to her case. This however does not deprive the Applicant of the right to seek further review of the determination through the processes outlined by the Secretary. That is an option entirely within her own determination.DECISION The application for an extension of time is refused.