Nolan and Secretary, Department of Education

This matter concerned an application for review of a decision by the Secretary, Department of Education, to cancel the applicant's child care subsidy. The cancellation was based on immunisation requirements, which the applicant's child had not yet met due to illness. The applicant was not notified of the cancellation at the time, and only later became aware that the subsidy was not being received. Although the child subsequently met the immunisation requirements and the subsidy was eventually granted with some back payment, an authorised review officer had affirmed the initial cancellation decision. The applicant sought a second review of this affirmation, but lodged the application significantly out of time.

The Administrative Appeals Tribunal (AAT) was required to determine whether to extend the time for the applicant to lodge her application for a second review. In considering this, the Tribunal had to assess various factors, including the extent of the delay, the explanation for it, any prejudice to the respondent or the public interest, whether the applicant had rested on her rights, the merits of the substantive application, and the availability of alternative avenues of relief. A key question also arose as to whether the respondent's failure to notify the applicant of the cancellation decision rendered that decision void.

The Tribunal applied the principles for extending time as outlined in *Hunter Valley Developments Pty Ltd v Cohen*, considering the applicant's delay of just over one year. While acknowledging this was a significant delay, the Tribunal was satisfied that a misunderstanding regarding the avenues of review, exacerbated by communication from the applicant's local Member of Parliament, explained the lateness. The Tribunal accepted that the respondent was not prejudiced by the delay, beyond the general principle that there should be an end to appeal processes. Crucially, the Tribunal formed a preliminary view that the applicant had a strong case that the original cancellation decision was void due to the respondent's failure to follow mandatory legislative requirements.

Consequently, the Tribunal extended the time for the applicant to lodge her application for a second review, finding it to be in the interests of justice. This preliminary finding was based on the strong merits of the applicant's case that the cancellation decision was void from its inception, meaning the subsidy should have been restored from that date as if the cancellation had never occurred.