NPXL and Secretary, Department of Social Services (Social services second review) - [2020] AATA 1891

NPXL and Secretary, Department of Social Services (Social services second review) [2020] AATA 1891 (23 June 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1954
Re:NPXL
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:23 June 2020
Place:Sydney

The application for an extension of time is refused.
...........................[sgd]...........................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – whether there is an acceptable explanation for delay – whether Respondent is prejudiced by delay – whether Applicant rested on her rights – considerations of fairness between Applicant and others in a similar situation – whether substantive application has merits – overpayment of Newstart Allowance and Sickness Allowance – recalculation of debt – waiver of debt in special circumstances – jurisdiction for second review of a first review decision to set aside and remit – prejudice to the public – whether it is reasonable in all the circumstances to grant the extension – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Evidence Act 1995 (Cth) s 160
Social Security (Administration) Act 1999 (Cth) ss 179, 196
Tribunals Amalgamation Act 2015 (Cth) sch 3 cl 66
CASES
Aslanidis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 429
BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Davey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 888
Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516
Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886
Parker v R [2002] FCAFC 133
Pearson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1077
Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109
Pohahau v Minister for Home Affairs [2019] FCA 1243
Re Secretary, Department of Family and Community Services and Owen and Another (2002) 71 ALD 784
REASONS FOR DECISION
Chris Puplick AM, Senior Member
23 June 2020
THE APPLICATION

NPXL (Applicant) has applied to this Tribunal to be granted an extension of time (EOT) to lodge an application for review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) which was made on 20 September 2019.
That decision set aside a decision by an Authorised Review Officer (ARO), a delegate of the Secretary of the Department of Social Services (Respondent), dated 27 June 2019 affirming an earlier departmental decision to recover monies from the Applicant on the basis that she had been overpaid Newstart Allowance and Sickness Allowance.
The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that applications for a review of AAT1 decisions must be made within 28 days of the receipt of the decision by an applicant.[1] In this case the decision under review was posted to the Applicant on 30 September 2019. Section 160 of the Evidence Act 1995 (Cth) provides that the date of receipt of such correspondence shall be taken to be seven working days after postage. This means that the day on which the Applicant is presumed to have received notification of the AAT1’s decision was 9 October 2019, and 28 days after that was 6 November 2019.
[1] Administrative Appeals Tribunal Act 1975 (Cth) s 29(2).
The Applicant did not lodge an application for review until 2 April 2020. As the application is out of time, it cannot proceed without an EOT being granted under section 29(7) of the AAT Act and this was applied for by the Applicant on 19 April 2020.
What the Applicant has sought in her substantive application is a review of the amount which the Department claims she owes as a result of her being overpaid and which was recalculated following the decision made by the AAT1, and that, in any event, any debt be waived.
In most instances the Tribunal would, on receipt of such an application for review, proceed to consider it taking into account a number of principles which have been established by the courts for such considerations.
However, an important jurisdictional issue has been raised by the Respondent. In effect, the Respondent asserts that were an EOT to be granted and the matter placed before the Tribunal for a review by the General Division of the Tribunal (AAT2), the AAT2 would not have the jurisdiction to hear the matters which the Applicant seeks to have reviewed.
Nevertheless, before addressing that specific matter which arises in the context of considering the possible future outcomes before the Tribunal, it is necessary to examine the wider issues concerning EOT applications.
EXTENSION OF TIME PRINCIPLES
When considering EOT applications, the Tribunal is bound by court authority as to the factors which it should take into account in deciding whether or not to grant such applications.
Time limits are important for the reasons outlined by McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor. His Honour gave four reasons why such limitations are an important part of the legal process. His Honour noted that:
…First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
…The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.[2]
[2] (1996) 186 CLR 541, 552-553. Footnotes and citations omitted.
While acknowledging that applications received out of time will generally not be accepted, it is also generally accepted that the “checklist” outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[3] should be taken as the guide by this Tribunal in determining EOT matters.
[3] (1984) 3 FCR 344, 348-349.
That list provides as follows:
(a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;
(b)a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
(c)any prejudice to the respondent caused by the delay;
(d)whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;
(e)the merits of the substantial application; and
(f)“[c]onsiderations of fairness as between the applicant and other persons” in a similar position.
This checklist has been endorsed in many further decisions of the courts, albeit on occasion with slight variations or modifications.[4] However, the Tribunal has accepted that this checklist effectively covers all the matters to which the Tribunal should have regard.
[4] Hillman and Australian Postal Corporation (Compensation) [2017] AATA 1411; Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109; BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326, [3]; Parker v R [2002] FCAFC 133, [6].
The Applicant has not rested on her rights; she has been active in the pursuit of her case on the basis of what she (incorrectly) understood to be the decision of the AAT1 and the process that was to follow after the decision of the AAT1. The time of delay is not so great that acceptance of this late application would result in real prejudice to the Respondent or the general public.
In this particular instance there are two items which merit particular consideration: whether there was an acceptable explanation for the delay and whether the substantive application for review itself has any reasonable prospect of success at a full merits hearing.
Explanation of the delay
In her EOT application, the Applicant states her reasons as follows:
I wasn’t sure I needed to apply for a second hearing as I had been waiting for further decision from the AAT after Centrelink obtained further income details as requested by my AAT officer who deferred her decision pending the income details received. I have also been under a lot of personal stress caring for my daughter after her having brain tumour removed in August 2019. My anxiety & depression increased since this debt was raised & I have many sleepless nights & days not coping.
…
I received information regarding her decision, which is included in this application: stating that she had reserved her decision pending further income information received from my Employers which I gave Centrelink permission to obtain from my employers as I had no reason to hide anything or believe that I had incorrectly reported my income.
The Tribunal can well understand that the Applicant may have been confused about the immediate result of the AAT1 decision which was to set aside the ARO’s decision and remit the matter for further investigation and recalculation of the debt. It may not have been made clear to the Applicant that this concluded the review process before the AAT1 and that the next steps were in the hands of the Respondent resulting, eventually, in the issuance of a revised debt determination.
In discussions at the hearing, the Respondent indicated that it had some sympathy for the Applicant in terms of her understanding of the processes involved and exactly what she expected the next steps to be, especially focused on any further determination emanating from the Tribunal itself.
In respect to all of these matters the Tribunal finds that there was an acceptable explanation for the delay.
Merits of the substantial application
The question of what matters are to be considered, and how they are to be assessed in addressing the merits of the substantive application, have been examined by a number of authorities.
In Kuljic, von Doussa J stated:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.[5]
[5] Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 886, [6].
In Pohahau, Wigney J stated:
It will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success. Such a finding should ordinarily only be made where the grounds of the application on their face appear to have little or no prospects of success and there is no need for any detailed argument in respect of the merits. It follows that an assessment of the prospects of success on an extension of time application should not ordinarily travel “beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review.[6]
[6] Pohahau v Minister for Home Affairs [2019] FCA 1243, [35]. Citations omitted.
In Jackamarra, the High Court quoted with approval the remarks of Lord Denning MR in R v Secretary for the Home Department; Ex parte Mehta where His Lordship said:
We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.[7]
[7] Jackamarra v Krakouer (1998) 195 CLR 516, 519 per Brennan CJ and McHugh J and 540 per Kirby J.
Applying these principles, the Tribunal notes that the evidence before it shows conclusively that, prior to the AAT1 decision and the Respondent undertaking further investigations as to the Applicant’s actual income, the Applicant’s declarations of income to the Department for calculation of her social security entitlements were, at all material times, incomplete and inaccurate. On some occasions income was overstated and on others understated. In many instances income does not appear to have been declared at all.[8] The Tribunal does not make any finding to the effect that the inaccuracy or inadequacy of the reporting was in any way intentional or deliberately misleading.
[8] Annexure A to the Respondent’s outline of submissions dated 14 May 2020 (Outline of submissions) sets out in considerable detail all income sources obtained from the Applicant’s several employers by way of compulsory notices issued under section 196 of the Social Security (Administration) Act 1999 (Cth) (Administration Act).
Should the relevant matter for this Tribunal have been a review of the recalculated debt, the Tribunal would therefore have been bound to come to a conclusion that were the Applicant seeking to have her recalculated debt to the Commonwealth reviewed, there would have been little likelihood of success. This is the case because the mechanical exercise of calculating entitlements, and hence any resulting debt, would have been unchallengeable on the basis of the information obtained from all employers relating to her income.
On the other hand, especially given that the recalculated debt was increased as a result of the AAT1 determination, there may have been a case to be argued as to whether or not the AAT1 was correct in finding that there were no special circumstances warranting the waiver of the debt.
It is at this point that the matter of jurisdiction arises.
The precise decision of the AAT1 was:
The Tribunal sets aside the decision under review and remits the matter to the Secretary for further investigations as to the actual income of NPXL on a fortnightly basis during the debt period followed by a recalculation of the debt. (Emphasis added)
The reason for the remittal was that the AAT1 itself was unable to determine, based on the evidence before it, the Applicant’s fortnightly earnings in the period prior to 19 December 2016 such as to allow it to make its own calculations of any debt arising from overpayments.
It is important to note that the AAT1 made it quite clear that the “debt period” in question was from 15 January 2013 to 6 February 2017.
Precisely, it stated:
This review is about whether NPXL has been overpaid newstart allowance (NSA) and sickness allowance (SKA) for the period 15 January 2013 to 6 February 2017 (the debt period) and if so, whether recovery of all or part of the debt should be waived.
When the matter was remitted to the Department on 20 September 2019 the Respondent undertook a revision of payments to the Applicant based upon income records which it compulsorily obtained from her various employers.
This led to her debt being recalculated from $9,020.87 to $13,702.68.
However the period of this overpayment, and hence debt determination, was from 17 July 2012 to 6 February 2017.
This is not the “debt period” as clearly defined by the AAT1 and to which it referred in its remittal decision. It includes a period for which evidence was not before the AAT1 nor to which it turned its mind in making its decision.
Hence, the amount of the debt and the period over which it was calculated is different from that which was before the AAT1. While it might have been expected as a result of the AAT1 remittal determination and the consequent investigations into the Applicant’s income that a new debt amount and period would result, it is unhelpful for an AAT2 review of the merits of the Applicant’s substantive application that the Respondent was unable to provide the Tribunal with the recalculated debt amount as it relates to the debt period, which was the period referred to specifically in the AAT1’s remittal decision.
In considering the jurisdiction for a second review by the Tribunal in this matter, the Respondent submits that:
If an extension of time were granted, the Applicant cannot seek review of the recalculated debt amounts in any event. Paragraph 179(2)(d) of the [Social Security] (Administration) Act (1999) limits the application for review such that only the directions of the AAT1 and its decision regarding recoverability can be considered by the Tribunal.[9]
[9] Outline of submissions at [60].
In support of its position the Respondent draws attention to the following cases:
·Re Secretary, Department of Family and Community Services and Owen and Another (2002) 71 ALD 784 (Owen)
·Davey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 888 (Davey)
·Aslanidis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 429 (Aslanidis)
·Pearson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1077 (Pearson).
Before considering these decisions, it is important to set out the text of the relevant section of the Social Security (Administration) Act 1999 (Cth) (Administration Act) both in its current and previous iterations. Currently:
179 Application for AAT second review
(1) Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
(2) For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
(a) if an AAT first review affirms a decision – that decision as affirmed; or
(b) if an AAT first review varies a decision – that decision as varied; or
(c) if an AAT first review sets a decision aside and substitutes a new decision – the new decision; or
(d) if an AAT first review sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT – the directions or recommendations of the AAT.[10]
[10] The current iteration of section 179 in the Administration Act came into effect on 1 July 2015 as a result of the Tribunals Amalgamation Act 2015 (Cth) sch 3 cl 66 which repealed and substituted the provision in its original form.
The previous version of the Administration Act to which the decisions refer is in substantially the same terms as the current version. The relevant provisions were as follows:
179 Review of decisions by AAT
(1) If:
(a) a decision has been reviewed by the SSAT; and
(b) the decision has been affirmed, varied or set aside by the SSAT;
application may be made to the AAT for review of the decision of the SSAT.
(2) For the purposes of subsection (1), the decision made by the SSAT is taken to be:
(a) where the SSAT affirms a decision – that decision as affirmed; and
(b) where the SSAT varies a decision – that decision as varied; and
(c) where the SSAT sets a decision aside and substitutes a new decision – the new decision; and
(d) where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT – the directions or recommendations of the SSAT.

References to the SSAT relate to the then Social Security Appeals Tribunal which, as a result of the Tribunals Amalgamation Act2015 (Cth), was incorporated into the AAT.
The relevant issue of jurisdiction arises under section 179(2)(d) as the present matter relates to a decision which was set aside and sent back (remitted) to the Secretary for reconsideration in accordance with directions or recommendations of the Tribunal.
The authorities cited provide:
(a)in Owen:
[6] Section 179(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides that if a decision has been reviewed by the SSAT and the decision has been affirmed, varied, or set aside by the SSAT, then application may be made to this Administrative Appeals Tribunal (the tribunal) for review of the decision of the SSAT.
[7] Section 179(2) relevantly defines the decision of the SSAT for the purposes of subs (1) as set out in para (d):
(d) where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any direction or recommendations of the SSAT – the directions or recommendations of the SSAT.
[8] The hearing proceeded on the basis that this tribunal was confined to a review of the directions of the SSAT and could not therefore deal with the respondents’ submissions about other aspects of the calculation of assets not relevant to the directions of the SSAT.
[9] It was conceded for the applicant that if this tribunal decided to set aside the directions the matters would still have to go back to the applicant for reconsideration and that it would be open to the secretary to consider representations made by the respondents in relation to matters not relevant to the directions of the SSAT. In its statement of facts and contentions, the applicant has conceded that certain adjustments need to be made.
(b)in Davey:
[3] The applications to the Administrative Appeals Tribunal (AAT) for review by Mr and Mrs Davey were in relation to the SSAT decision. The ambit of the Tribunal’s capacity to review SSAT decisions is provided for in the Social Security (Administration) Act 1999…
[4] The present matters fall within s 179(2)(d) of that provision. This means that the only aspect of the SSAT’s decision that may be reviewed are the SSAT’s directions to the respondent. The Tribunal, on the present application by Mr and Mrs Davey, is not able to review the merits of the decisions relating to whether or not overpayments were made to Mr and/or Mrs Davey, whether any debts were properly raised against them and, if so, whether any such debts may be waived.
(c)in Aslanidis:
[20] I have considered this issue with particular care having regard to the inconvenience which would flow from a conclusion that this Tribunal does not have jurisdiction in the context of the current application to consider whether the now recalculated debts owed by Mr and Mrs Aslanidis should be waived or written-off, in part or in full. As the question of jurisdiction only arose at the hearing, evidence was given and full submissions made directed at the question of whether the debts should be waived or written-off and it would in some respects be unfortunate if this Tribunal could not proceed to determine those issues.
[21] On analysis, there are in effect two questions to be determined in this context. The first is the precise effect of s 179(2), and the second is the correct construction of the SSAT’s decision in light of its Reasons.
[22] In relation to the first issue … the respondent conceded, correctly in my view, that if the SSAT’s decision was taken to be what is set out under the heading “Decision of the Tribunal”, then by virtue of s 179(2), this Tribunal’s jurisdiction was limited to reviewing its recommendations/directions. Resolution of this issue therefore turns ultimately on construction of the SSAT’s decision.
(d)in Pearson:
[12] In respect of the pension bonus decision, the decision made by the SSAT was to affirm that decision. Consequently, that is the decision to be reviewed by this tribunal. However, in respect of the disputed aged pension decision, the decision falls within paragraph (d). Therefore, the only part of that decision that is reviewable are the directions or the recommendations made by the SSAT. Had the SSAT affirmed the decision not to grant the pension or, varied it, or set it aside and substituted a new decision, that decision would have been reviewable. However, as the SSAT went on to remit the matter to Centrelink with directions or recommendations, only the directions or recommendations made by the SSAT are reviewable.
However, the “direction” of the Tribunal was for an investigation of the Applicant’s actual income during the “debt period”. The Respondent did not do this, it made its recalculations for a period which included the debt period but which went beyond it by stretching back a further six months. In the narrowest sense, the directions or recommendations of the AAT1 were not followed – they were amplified and expanded by the Respondent.
This course of action leaves the Tribunal profoundly concerned in terms of the ability of the Respondent to avoid the scrutiny of the Tribunal which is provided for in legislation by taking a Tribunal decision which involves remittal with directions and creating therefrom an entirely new situation for an applicant. The opportunity to have that new determination reviewed, resulting as it does directly from a Tribunal decision, then reverts to the internal processes of the Department, requiring in the first instance a request for a review to it and a determination by an ARO before it could possibly again be reviewed by the Tribunal.
This could well result in an endless circularity of Tribunal remittals, departmental reconsiderations, ARO reviews, AAT1 reviews and AAT2 reviews being potentially aborted by resort to section 179. This would not be a satisfactory outcome for any of the parties.
The Tribunal would feel uneasy having to decline to consider the Applicant’s substantive application for review on purely jurisdictional grounds, although it is bound to do so in accordance with the provision of the Administration Act and previous decisions of the Tribunal as cited above.
However, regardless of that, the Tribunal would not have granted an EOT on the basis that the application would have had no significant chance of success based upon the income data currently placed in evidence before the AAT2 and in the absence of any evidence of special circumstances justifying a waiver of the debt not previously considered and dismissed by the AAT1.
The Tribunal’s acceptance of the Respondent’s submissions as to the effect and application of section 179(2)(d) must inevitably lead to a conclusion of want of relevant jurisdiction and hence the futility of allowing the matter to proceed further.
Given that at the time of the AAT1’s decision that Tribunal, in fact, did not have before it the Applicant’s complete income information so as to allow it to determine if the debt calculations of the Department were accurate, the correct and preferable decision was inevitably for the AAT1 to set aside the reviewable decision and remit the matter for further investigations as to the Applicant’s income to assist in recalculation of the debt. However, the decision of the AAT1 was specifically:
The Tribunal sets aside the decision under review and remits the matter to the Secretary for further investigations as to the actual income of NPXL on a fortnightly basis during the debt period followed by a recalculation of the debt.[11] (Emphasis added)
[11] Social Services and Child Support Division decision dated 20 September 2019 – Review number 2019/S138762 at 4.
The AAT1 decision was confined to reconsideration of the correct debt in the defined debt period (15 January 2013 to 6 February 2017) but the Respondent took it as enabling it to make a recalculation of debt for a period which was more extensive than the debt period as defined. The Tribunal has already expressed its concern at the adoption of this course of action by the Respondent and the consequent effect upon this Tribunal’s capacity to review the original decision of either the ARO or the AAT1.
For the sake of completeness, applying another of the Hunter Valley Developments principles, to allow this application to go forward would be to violate the principle that the Tribunal should give “considerations of fairness as between the applicant and other persons” in a similar. It is the commonplace practice to refuse extensions of time for applications lacking substantial merit.
For the reasons stated above, the Tribunal therefore is not satisfied that it is reasonable in all the circumstances to extend time for the Applicant to apply for a second review of, essentially, the directions and recommendations made by the AAT1 on first review, albeit they were not followed exactly by the Respondent.
DECISION
The application for an extension of time is refused.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 23 June 2020

Date(s) of hearing: 19 May 2020

Applicant: In person (By telephone)

Solicitors for the Respondent: Mr G Lozynsky, Services Australia

Date(s) of hearing:	19 May 2020
Applicant:	In person (By telephone)
Solicitors for the Respondent:	Mr G Lozynsky, Services Australia