Nguyen and Secretary, Department of Social Services (Social services second review) - [2021] AATA 1844

Nguyen and Secretary, Department of Social Services (Social services second review) [2021] AATA 1844 (14 May 2021)
Division:GENERAL DIVISION
File Number(s): 2020/7573-4
Re:Lai Thi Nguyen
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:14 May 2021
Place:Melbourne

The application for an extension of time is refused.
.............................[sgd]............................................
The Hon. Matthew Groom, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for extension of time – appeal of application to raise and recover parenting payment and Newstart Allowance debt – consideration of extent of delay and whether applicant rested on rights – consideration of merit in substantive application – extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
CASES
Brisbane South Regional Health Authority Taylor (1996) 186 CLR 541
Department of Employment and Workplace Relations and Ruan and Anor, Re [2007] AATA 1758
Haldane-Stevenson v Director-General of Social Security (1985) 7 ALD 467
Hunter Valley Developments Pty Ltd and Others and Cohen [1984] FCA 176
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Nguyen [2007] AATA 2075
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
14 May 2021
Introduction

This matter involves an application for extension of time to lodge an application for review of a decision made by the Administrative Appeals Tribunal (Social Services & Child Support Division) (the “AAT1”) made on 3 April 2018.
The AAT1’s decision was to affirm two earlier decisions (the “original decisions”) made by the Department on 29 August 2014 to raise and recover a parenting payment debt of $91,569.06 for the period from 8 March 2006 to 31 December 2012 (the “first debt”) and to raise and recover a Newstart Allowance debt of $10,054.02 for the period from 1 March 2013 to 27 January 2014 (the “second debt”).
The original decisions were the subject of a review by the Authorised Review Officer (the “ARO”). On 29 November 2017 the ARO affirmed the decisions to raise and recover the debts.
On 9 January 2018 the applicant sought a review of the ARO decision in the AAT1.
On 3 April 2018 the AAT1 affirmed the original decisions.
In making its decision the AAT1 concluded that it was satisfied that the applicant had received undisclosed cash deposits into her personal bank accounts totalling nearly $600,000. The applicant had argued that the undisclosed amounts were made up of winnings from gambling and should not be considered as income. The AAT1 rejected the applicant’s argument and concluded that it was satisfied that the undisclosed deposits were correctly considered as income for the purposes of the social security income test set out in the Social Security Act 1991 (Cth) (“Social Security Act”). The AAT1 also concluded that it did not consider there to be any other reason why the debts should not be recovered.
The Tribunal is satisfied that a letter notifying the applicant of the outcome of the AAT1 decision was sent to the applicant on or about 3 April 2018.
A hearing to consider the extension of time application was held on 29 January 2021. Following the hearing the parties were given the opportunity to make further post-hearing submissions to the Tribunal. The applicant’s daughter, Lelinda Nguyen, acted as the applicant’s representative at the hearing.
Issue
Section 29(2) the Administrative Appeals Tribunal Act 1975 (the “AAT Act”) provides that the prescribed time for lodging an application for review is within 28 days after notice of a decision is given to the applicant.
The applicant has conceded that she received notification of the decision on 16 April 2018.
Accordingly, in applying the 28 day prescribed period the applicant was required to lodge an application for review with the Tribunal by no later than 17 May 2018.
The applicant did not lodge her application for review with the Tribunal until 16 November 2020 which is approximately two and a half years outside the statutory appeal period.
Therefore, the issue before the Tribunal is whether it is reasonable in all the circumstances to grant the application for an extension of time under section 29(7) of the AAT Act.
Contentions and consideration
The applicant does not seek to dispute the amount of the debts as such. Rather the applicant contends that each of the debts should not have been raised on the basis that the undisclosed income on which the respondent relies to justify the debts was in fact proceeds from gambling which should not be treated as income for the purpose of the Social Security Act.
Further, the applicant contends that her failure to lodge her applications for review within the prescribed time period was reasonable in all the circumstances particularly having regard to her limited English and difficult personal circumstances at the time. The applicant’s explanation for the delay is dealt with in further detail later in these reasons.
The respondent contends that it would be an inappropriate use of the Tribunal’s discretion under section 29(7) the AAT Act to grant the application for an extension of time on the basis that the applicant’s substantive argument has no merit and no reasonable prospects of success. In this regard the respondent contends that it is well-established law that gambling proceeds of the kind the applicant relies on in this matter to explain the undisclosed income into her accounts should be treated as income for the purpose of the Social Security Act.
Further, the respondent contends that the applicant’s explanation for bringing her application in respect of these matters outside of the prescribed time period is not a reasonable one. The respondent contends that the applicant was familiar with appeal processes before the Tribunal having previously appealed the earlier decisions to the AAT1 and also that she had the benefit of her daughter’s assistance in understanding the outcome of the AAT1 decision and her appeal rights in respect of that decision. In addition, the respondent contends that the applicant’s personal circumstances more broadly do not provide an adequate explanation for the delay.
In giving consideration to this matter the Tribunal has had regard to the well-established principles set out by the Federal Court’s decision in Hunter Valley Developments Pty Ltd and Others and Cohen [1984] FCA 176. In that decision the Court stated:
… Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained… It is a pre-condition to the exercise of the discretion in his favour that the application of an extension of time show and ’acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.
The Tribunal accepts the respondent’s contention that there are strong public interest grounds that underpin enacted limitation periods including the importance that disputes are resolved in a timely manner. As the High Court stated in Brisbane South Regional Health Authority and Taylor (1996) 186 CLR 541:
… The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible…. In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore is an arbitrary cut-off point unrelated to the demands of justice for the general welfare of society. It represents the legislature’s judgement that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action been defeated. Against this background, I do not see any warrant for treating provisions that provide an extension of time for commencing an action is having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; and extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires particular categories of cases may sometimes be overridden by the facts of an individual case… But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.
Explanation for delay
By any reasonable measure the applicant’s delay in bringing her application for review of the AAT1’s decision of approximately two and a half years out of time is very significant.
The Tribunal accepts the respondent’s contention that, given the very significant lapse of time, the respondent had a reasonable basis for believing that the matter was at an end prior to the application for review being lodged on 16 November 2020.
The applicant’s daughter contends that while her mother received the notification letter from the AAT1 on 16 April 2018, as a consequence of her limited English she did not understand the content of the notification letter and more specifically did not understand she had a further right of appeal and the prescribed time frame for lodging that appeal.
The applicant’s daughter contends that her mother was not in a position to reach out to her to seek assistance in understanding the content of the notification letter due to her very difficult personal circumstances including her traumatic life, her experience being the victim of domestic abuse and her poor physical and mental health. The applicant’s daughter told the Tribunal that her mother had given her one page of the notification letter at the time it was received which made clear the outcome of the AAT1 decision but did not set out the appeal rights. She told the Tribunal that her mother did not provide her with the balance of the documentation because she had misplaced it. She told the Tribunal that she had been reluctant to press the point with her mother because her mother was stressed at the outcome of the decision and that she did not want to add to her mother’s stress. She told the Tribunal that she only became fully aware of the applicant’s further appeal rights in 2020. She told the Tribunal that her mother understands basic English but that for formal documentation such as the notification letter she would usually ask for an interpreter to assist with her mother’s understanding.
The applicant told the Tribunal that the reason she did not ask for her daughter’s help in understanding the notification letter or taking other steps to understand her situation was because she was very stressed and was not in good health at that time.
The Tribunal does not accept the applicant’s explanation as an adequate or persuasive explanation for what was a very significant delay in lodging her applications for review.
The Tribunal accepts that the applicant has limited English and also that she has experienced a traumatic life including being the subject of domestic abuse and has also suffered ongoing poor physical and mental health.
Notwithstanding these difficult personal circumstances, the applicant was able to effectively participate in the AAT1 review process. On the materials before it the Tribunal is satisfied that she did so with practical assistance of her daughter Lelinda.
The Tribunal is satisfied that on receiving the notification letter the applicant was under an obligation to take reasonable steps to understand the content of the letter which the Tribunal is satisfied set out both the outcome of the AAT1 decision and also her further appeal rights.
The Tribunal is satisfied that the applicant chose not to do so until relatively recently and certainly well beyond the prescribed period for lodging her appeal that had lapsed.
Further, while the Tribunal accepts the applicant’s very difficult broader circumstances it is not satisfied based on all the material before it that they provide a satisfactory explanation as to why the applicant waited such an lengthy period of time before seeking her daughter’s assistance in understanding the content of the notification letter and her appeal rights. In the Tribunal’s view it is difficult to reconcile the contention that the applicant was so impacted by her personal circumstances that she was unable to reach out for assistance from her daughter in understanding the content of the notification letter with the evidence before it of the applicant having previously engaged in extensive gambling activities and also of the applicant having previously engaged in interactions with Centrelink over an extended period and also in the appeal process with the AAT1 itself.
In the Tribunal’s view, the applicant has elected not to take steps reasonably available to her to understand the content of the notification letter and her appeal rights at a time that would have enabled her to lodge her applications for further review within time, or at the very least, substantially earlier than she did. In that sense the Tribunal accepts the respondent’s contention that the applicant has, in effect, rested on her rights.
The Tribunal also accepts the respondent’s contention that it would be prejudiced to a reasonable degree if a decision was made to grant the extension of time in these circumstances. Any decision to grant an extension of time would necessarily involve the respondent incurring additional costs and the sheer passage of time would make it more difficult for the respondent to present evidence in relation to the events that took place in some instances as long as 14 years ago.
The Tribunal is satisfied that in these circumstances it would not be reasonable to the exercise of the discretion to grant the extension of time.
Merits of the substantive applications
The applicant made clear in her submissions, as well as through her daughter acting as her representative, that her central argument in respect of the substantive applications is that the undisclosed income into her accounts was made up of proceeds from gambling. The applicant contends that such proceeds should not be treated as income.
The Tribunal is satisfied that given the significant quantum of undisclosed deposits into the applicant’s accounts, which by the applicant’s own submissions were acknowledged as being proceeds from gambling, that those proceeds are properly treated as income for the purpose of the Social Security Act.
In this respect the Tribunal notes that the income test for the Social Security Act is different to that which is applied in other contexts. Income is defined in section 8(1)(a) of the Social Security Act to mean an income amount earned, derived or received by the person for the person’s own use or benefit. Income amount is defined exhaustively to mean:
(a)valuable consideration; or
(b)personal earnings;
(c)moneys; or
(d)profits;
(whether of a capital nature or not).
Income in this sense has been recognised as having a broader meaning than may be applied in other contexts, for example for income tax purposes. As recognised by the Full Court of the Federal Court in Haldane-Stevenson v Director-General of Social Security (1985) 7 ALD 467 where the Court noted when considering the definition of income in the Social Security Act as it was then:
However, there is underlying this submission the fallacy that the terms ’personal earnings’ ‘moneys’, ‘valuable consideration’ and ‘profits’ refer to discrete categories of income. The terms are not used by way of separation or contradistinction but are complementary to each other. The term ‘personal earnings’ is particularly appropriate to the circumstances where a pensioner is in employment and the term ‘profits’ is appropriate where the income-learning activities clearly a trade or business. But there will be many circumstances were a pensioner outside an employment situation will receive earnings and yet not engage in a trade or business. The Act does not require any distinction to be drawn between personal earnings and profits. In each case, the Act is concerned with net return.
Specifically in the context of gambling receipts, there have been numerous cases that have recognised such receipts as falling within the meaning of ‘ordinary income’ for the purposes of the Social Security Act. For example, in Secretary, Department of Employment and Workplace Relations and Ruan and Anor [2007] AATA 1758 the Tribunal concluded that all of the applicant’s gambling receipts were part of his ‘ordinary income’ for the purposes of the Social Security Act. Similarly in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Nguyen [2007] AATA 2075 the Tribunal found various lump sum amounts of gambling proceeds paid into a bank account after gambling sessions to constitute income for the purposes of the Social Security Act.
In the Tribunal’s view no facts or circumstances have been contended by the applicant that would cause the Tribunal to consider there to be a substantive argument on the part of the applicant that the undisclosed gambling proceeds to which she refers should be excluded from the definition of income for the purposes of the Social Security Act. Nor has the applicant presented any other compelling or persuasive argument as to why the amounts of undisclosed income received into her bank accounts should not be treated as income for Social Security Act purposes. Nor has the applicant presented any other compelling reason why the debts the subject of the substantive applications should not otherwise be recoverable.
For these reasons, the Tribunal is satisfied, on the basis of the material before it, that the applicant’s argument in respect of the substantive applications has no reasonable prospect of success. The Tribunal is satisfied that this consideration further reinforces the Tribunal’s conclusion that it would be unreasonable in all of the circumstances to exercise the discretion to extend time to allow the applicant to lodge the substantive applications outside of the prescribed time period.
Decision
The application for an extension of time is refused.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

..........................[sgd]..............................................
Associate
Dated: 14 May 2021

Date of hearing: 29 January 2021

Date final submissions received: 12 February 2021

Advocate for the Applicant: L. Nguyen

Advocate for the Respondent: B. Sparkes

Date of hearing:	29 January 2021
Date final submissions received:	12 February 2021
Advocate for the Applicant:	L. Nguyen
Advocate for the Respondent:	B. Sparkes