Phromkamon and Secretary, Department of Social Services (Social services second review) - [2021] AATA 457

Phromkamon and Secretary, Department of Social Services (Social services second review) [2021] AATA 457 (22 February 2021)
Division:GENERAL DIVISION
File Number: 2021/0554
Re:Panmile Phromkamon
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member C.J. Furnell
Date:22 February 2021
Date of Written Reasons: 10 March 2021
Place:Melbourne

The Applicant’s application to extend the time for the making by her of an application for review of the AAT1 decision is refused.
.....................[sgd]..................................................
Senior Member
Catchwords
PRACTICE AND PROCEDURE – Austudy payment – application 22 months late – debt – limited English – Tribunal not satisfied – application refused
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Cases
Antonious v Comcare [2018] AATA 3968
Australian Appaloosa Association Ltd v Australian Securities and Investments Commission [2018] AATA 3173
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
BVG17 v BVH17 [2019] FCAFC 17; 268 FCR 448
Comcare v A’Hearn (1993) 45 FCR 441
Custodial Limited and Australian Securities and Investments Commission (2005) 88 ALD 510
Downing v Minister for Immigration and Border Protection [2019] FCA 1684
DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10
Frugtniet v Secretary, Department of Social Services [2017] FCA 1227
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 48 ALR 305
Hutchinson and Comcare (Compensation) [2018] AATA 4600
Lucic v Nolan (1982) 45 ALR 411
Makarov v Minister for Home Affairs [2020] FCA 734
Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415
MZZFQ v Minister for Immigration and Border Protection [2016] FCA 1133
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535
Saad v Secretary, Dept Of Social Services [2019] AATA 31
Secretary, Department of Family and Community Services and Roberts [2003] AATA 269
Swanton and Military Rehabilitation and Compensation Commission [2017] FCA 1142
SZTOR v Minister for Immigration & Border Protection [2019] FCA 349
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Twentyman v Secretary, Department of Social Services [2018] FCA 1892
Social Security, Secretary, Department of v Van Dan Boogaart (1995) 37 ALD 619
Wallis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 45
Wekerle v Department of Home Affairs [2020] FCA 1300
Windram and Secretary, Department of Social Services (Social services second review) [2017] AATA 804
Zizza v Commissioner of Taxation [1999] FCA 848
REASONS FOR DECISION
Senior Member C.J. Furnell
22 February 2021

On 8 March 2019 the Tribunal’s Social Services and Child Support Division decided to affirm an earlier decision of the Respondent to raise and recover from the Applicant a debt of $5,874.10 in respect of Austudy payments made in the period 15 July 2014 to 15 June 2015 (AAT1 decision).
The Applicant applied to the Tribunal for review of the AAT1 decision.
In her application the Applicant stated that she had received notice of the AAT1 decision on 8 March 2019. Given this, the prescribed time for making the application expired on or around 5 April 2019.[1] The application was, however, not lodged with the Tribunal until 1 February 2021, roughly 22 months late.
[1] Administrative Appeals Tribunal Act 1975, s29(1)(d) and 29(2).
The Applicant applied to have the time for the making of her application extended.
A hearing of the Applicant’s extension application was held on 22 February 2021. At the conclusion of the hearing, I decided to refuse her application. I provided reasons for that decision, orally. I now provide them in writing, at the Applicant’s request.
Before doing so, however, I should try to put to rest an issue which appeared to be troubling the Applicant. She appeared concerned that she was thought to have behaved dishonourably. In her evidence before me the Applicant displayed admirable candour. For instance, she accepted that she had incurred the Austudy debt. The impression I was left with was that she had done so simply as a consequence of being unaware of certain reporting requirements, not through any ill intent.
The Tribunal may extend the time for lodgement of an application for review if it “…is satisfied that it is reasonable in all the circumstances to do so.”[2]
[2] Administrative Appeals Tribunal Act 1975, s29(7).
Hence, the question in issue is whether I should be so satisfied in the case of the Applicant’s extension application.
For the reasons which follow, I was not (and am not) so satisfied.
ISSUES TO BE CONSIDERED IN ADDRESSING THE QUESTION IN ISSUE
While certainly not exhaustive,[3] certain principles or criteria are often considered in the context of extension of time applications, whether made in the context of s29(7)[4] or more generally[5].
[3] Zizza v Commissioner of Taxation [1999] FCA 848 at [17].
[4] Australian Appaloosa Association Ltd v Australian Securities and Investments Commission [2018] AATA 3173 at [27]; Antonious v Comcare [2018] AATA 3968 at [10]-[11]; Saad v Secretary, Dept Of Social Services [2019] AATA 31 at [12]. See also Zizza v Commissioner of Taxation [1999] FCA 848 at [17].
[5] Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 48 ALR 305 at [349]-[350]; MZZFQ v Minister for Immigration and Border Protection [2016] FCA 1133 at [10]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; BVG17 v BVH17 [2019] FCAFC 17 at [34].
In Twentyman[6] it was said that the “…principles governing the exercise of the Court’s discretion to grant an extension of time are well established. The Court must have regard to factors such as the length of, and reasons for, the delay, any prejudice to the respondent, and the merits – or lack thereof – of the proposed grounds of appeal.”
[6] Twentyman v Secretary, Department of Social Services [2018] FCA 1892 at [64].
In Downing[7] the factors of relevance to an extension of time application made in a context analogous to that currently under consideration were said to be “in summary…as follows:
(1) While there is no requirement to show special circumstances, an extension should not be granted unless the court is satisfied that it is proper to do so. The prescribed period is not to be ignored.

(2) An acceptable reason for the delay is normally required.

(3) Any prejudice to the other parties, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension. But the mere absence of prejudice is not enough to justify an extension.

[7] Downing v Minister for Immigration and Border Protection [2019] FCA 1684 at [5].
(4) The merits of the application or appeal that will proceed if an extension of time is granted should be taken into account”
More recently, in Wekerle[8] it was said that relevant “…considerations in assessing whether an extension of time for the filing of an application should be granted include the length of the delay, any explanation for the delay, any prejudice to the respondent and whether the application for review would have any prospect of success if the extension were granted.”
[8] Wekerle v Department of Home Affairs [2020] FCA 1300 at [6].
I turn now to consider how the principles or factors mentioned in these decisions apply in the current context.
LENGTH OF THE DELAY
It is not open to the Tribunal to simply ignore the fact that the legislature has prescribed a limited time within which to make review applications of the type sought to be pursued by the Applicant.[9]
[9] Hunter Valley at 310; Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 530; Secretary, Department of Family and Community Services and Roberts [2003] AATA 269 at [10]; Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540.
Indeed, it is “…a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained.”[10]
[10] Budd and Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 citing Lucic v Nolan (1982) 45 ALR 411 at 416.
In this matter the Applicant lodged her review application roughly 22 months late. This represents a significant delay.
EXPLANATION FOR DELAY
Particularly in the context of a significant delay it is of importance (albeit not essential)[11] that there be an adequate explanation for it. In this regard, it “…is a matter of common sense that the longer the delay the more difficult it will be for an applicant to persuade any tribunal that an extension of time should be granted. It is also a matter of common sense that the longer the delay the better the explanation will need to be.”[12]
[11] Comcare v A’Hearn (1993) 45 FCR 441.
[12] Makarov v Minister for Home Affairs [2020] FCA 734 at [36].
While the absence of an adequate explanation is not fatal to an extension application, it does weigh heavily against its grant.[13] An adequate explanation is normally to be expected.[14]
[13] Social Security, Secretary, Department of Van Dan Boogaart (1995) 37 ALD 619 at 261.
[14] Swanton and Military Rehabilitation and Compensation Commission [2017] FCA 1142 at [33].
Moreover, an applicant, fully aware of the right to seek review of a decision but who does nothing, cannot simply rest on his or her rights and then seek indulgence at the Tribunal to extend time.[15]
[15] Re Custodial Limited and Australian Securities and Investments Commission (2005) 88 ALD 510. So too Windram and Secretary, Department of Social Services (Social services second review) [2017] AATA 804 at [30].
In this matter, the Applicant said that after her receipt of the AAT1 decision she was confused and did not know what to do. She then received correspondence concerning what have been characterised as “Robodebt” claims and this gave her some hope in this matter (albeit that it was not contended that the Applicant’s Austudy debt reflected such a claim).
I infer from this that the Applicant was aware that she had a right to seek review of the AAT1 decision but was uncertain for some time as to whether she should seek to exercise the right but, in the end, was encouraged to do so by the success achieved by others in challenging debt repayment claims made by the Respondent.
I do not consider that this represents an adequate explanation for the Applicant’s delay.
PREJUDICE IN GRANTING EXTENSION
As I see it, there would be a specific prejudice to the Respondent were the Applicant’s extension application granted, as well as a more general prejudice to the public interest.
While it might normally be the case that a party who claims to be prejudiced should adduce evidence showing its nature and extent,[16] to some extent prejudice might be inferred from the mere passage of time. Such prejudice does not require evidence “…beyond the inferences flowing from the passage of time and the common knowledge that memory may fade with time and that making inquiries to test facts which are asserted may become increasingly difficult over time…”.[17]
[16] Zizza v Commissioner of Taxation [1999] FCA 37.
[17] Frugtniet v Secretary, Department of Social Services [2017] FCA 1227 at [18].
The decision which the Applicant seeks to have reviewed was made around two years ago. It relates to facts and circumstances applicable in 2014 and 2015.
I infer that, by reason of the lapse in time, the Respondent’s capacity to adduce evidence as to those facts and circumstances would be prejudiced.
As for general prejudice, there is “a public interest in the finality of litigation, and in resolving litigation in a timely fashion.”[18]
[18] SZTOR v Minister for Immigration & Border Protection [2019] FCA 349 at [6]; See also Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
Moreover, there is a prejudice to the administration of justice when a party ignores “…legislative timeframes. In this regard the Tribunal notes the obvious and accepted public interest in the finality of decision-making, and the need to prevent disruption to established practices.”[19]
[19] Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415 at [31]; See also Hutchinson and Comcare (Compensation) [2018] AATA 4600 at [28].
MERITS OF UNDERLYING APPLICATION
As a general proposition 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.”[20]
[20] DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10 at [57]; See too Wekerle v Department of Home Affairs [2020] FCA 1300 at [7].
Despite the fact that the Applicant does not dispute her indebtedness, it might be said that her claim cannot now be considered to be devoid of merit or to lack prospects.
Were the Applicant’s underlying application for review to proceed, it may be that she would have contended that the Respondent’s right to recover the admitted debt ought be waived on the basis of “special circumstances”.[21] (In this regard, I note that, in objecting to the AAT1 decision, the Applicant claimed that insufficient consideration had been given to her vulnerability as a single former bride migrant with limited English.)
[21] Social Security Act 1991, s1237AAD.
In the context of an extension of time application, it has been said that the Tribunal is unable to conclude that the relevant underlying application lacks merit where the applicant seeks to rely on a “special circumstances” claim. “In cases such as the present, where there is provision to alleviate the application of a statutory provision in an appropriate case because of special circumstances, the tribunal would generally not be appraised of all of the facts that might ultimately be taken into account in order to determine whether or not special circumstances exist, and if so, whether it is appropriate to exercise the relevant statutory discretion. In such cases, the tribunal would not generally, on an extension of time application, be in a position to conclude that… the application could be characterised as “hopeless, unarguable or bound to fail” on the merits.” [22]
[22] Wallis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 45 at [23].
It is unnecessary for me to decide whether that general proposition ought be applied in the circumstances of this case. In those circumstances (having regard, in particular, to the factors and principles to which I have earlier referred), I am not satisfied that it is reasonable to grant the extension sought by the Applicant.
DECISION
The Applicant’s application to extend the time for the making by her of an application for review of the AAT1 decision is refused.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member C.J. Furnell

.....................[sgd]...................................................
Associate
Dated: 22 February 2021

Date of hearing: 22 February 2021

Applicant: Self-represented

Advocate for the Respondent: Mr Brian Sparkes

Date of hearing:	22 February 2021
Applicant:	Self-represented
Advocate for the Respondent:	Mr Brian Sparkes