Nisha Sanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 427

[2012] AATA  427

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1138
Re	Nisha Sanson
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

Decision

Tribunal	M D Allen, Senior Member
Date	27 June 2012
Place	Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the decision under review is AFFIRMED.

.............[SGD]......................

M D Allen, Senior Member

Catchwords

FAMILY TAX BENEFITS – Claim for FTB rejected for financial years ended 30 June 2003 to 2009 inclusive – claims lodged out of time – no legislative discretion to extend time to lodge claims – claims not effective – decision under review affirmed.

Legislation

A New Tax System (Family Assistance) (Administration) Act 1999, Ss 10(2)(b), 13.

WRITTEN REASONS FOR DECISION

M D Allen, Senior Member

6 July 2012

1. At the conclusion of the hearing of this matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision.

2. The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that the preceding 3 (three) paragraphs and the following are a true copy of the reasons for the decision herein of M D Allen, Senior Member.

..................[SGD]................................

Associate

Dated  6 July 2012

Date of hearing	27 June 2012
Date of written reasons	6 July 2012
Applicant	In person
Advocate for the Respondent	Centrelink Legal Services

EXTRACT OF TRANSCRIPT PROCEEDINGS

1. MR ALLEN:   By application made 26 March 2012 the Applicant sought review of a decision by the Social Security Appeals Tribunal made 14 March 2012 affirming a prior determination by Centrelink to reject the Applicant’s claim for Family Tax Benefit for the years ended 30 June 2003, 2004, 2005, 2006, 2007, 2008 and 2009. 

2. The facts of the matter are straightforward. Indeed, I would refer particularly to a letter by Mr Noor Dean, a solicitor, which is dated 10 November 2011 and is document T10 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. That letter refers to the facts which have been accepted, as I understand it, by Centrelink. Briefly they are that the child was born in June 2001. The child’s biological parents are Monatini and Anaseini Veatupu. At the time of the child’s birth her biological parents handed her to the current Applicant, Mrs Nisha Sanson and her husband David Sanson to be raised as their child.

3. That child is the fifth child of the Veatupu children and as I understand it, it is not uncommon in the Tongan community that parents who have several children will pass to close relatives one of their children to be raised by them, the relatives, as their own.  This is what happened in this case.  Nisha Sanson is the sister of the child’s biological father.  She and her husband have no children and therefore the child was given to them by the biological parents to be raised as their own. 

4. David and Nisha Sanson cared for the child from the time of her birth until she was of some 10 years of age.  At that time there were some unfortunate differences which arose between Mr and Mrs Sanson and the child’s biological parents, so in what has been described, and I agree, as a reprehensible decision, the biological parents reclaimed custody of the child. 

5. Prior to this time Mrs Sanson had not made any claims for Family Tax Benefit.  On advice she then did so, making claims for the years ended 30 June 2003 to the year 30 June 2011. 

6. On 7 October claims were made in respect of the years ending 30 June 2010 and 30 June 2011.  Those claims were granted. 

7. The claims for the years 2003 to 2009 inclusive were rejected.  Those claims were made on 2 December 2011.  The reason the claims were rejected is that they were out of time.  Paragraph 10(2)(b) of the A New Tax System (Family Assistance)(Administration) Act (1999) (“the Act”) reads, inter alia:

   A claim for payment for Family Tax Benefit for a past period is not effective if the period falls wholly within one income year but the claim is made after the end of the two income years immediately following that income year.

8. That section is, as I see it, entirely straightforward.  I would simply mention for completeness’ sake section 13 of the Act which provides that if a claim is not effective it is taken not to have been made.  Either way, pursuant to section 10 of the Act, as the claims for the years 2003 to 2009 inclusive were not made within a period of two years after the end of the period, they cannot be granted and there are no ameliorating provisions within the Act which would allow me to extend time in any way.

9. That being so, the decision under review is affirmed.

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