PRZR and Child Support Registrar (Child support second review)

[2019] AATA 4617

PRZR and Child Support Registrar (Child support second review) [2019] AATA 4617 (8 November 2019)

Division:GENERAL DIVISION

File Number(s):      2019/1173

Re:PRZR

APPLICANT

AndChild Support Registrar

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:8 November 2019

Place:Sydney

The application for an extension of time is refused.

...............................[sgd].................................

Chris Puplick AM, Senior Member

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988 (Cth).

CATCHWORDS

CHILD SUPPORT – Extension of time application – whether there is an acceptable explanation for the delay – merits of substantial application – residency status – applicant deemed resident of Australia – child support debt – prejudice to other parties – extension of time application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Child Support (Assessment) Act 1989 (Cth) s 10

Child Support (Registration and Collection) Act 1988 (Cth) ss 89, 90, 91, 92, 93

Income Tax Assessment Act 1936 (Cth)

CASES

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

AWT15 v Minister for Immigration and Border Protection [2017] FCA 512

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Comcare v A’Hearn (1993) 45 FCR 441

David and High Court of Australia [2009] AATA 448

Hawkins v Minister for Home Affairs [2019] FCA 437

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

Jamal v Secretary, Department of Social Services [2018] FCA 513

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

O’Gorman and Comcare (Compensation) [2017] AATA 2192

O’Reilly v Mackman [1983] 2 AC 237

Parker v R [2002] FCAFC 133

Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109

Shi v Migration Agents Registration Authority [2008] HCA 31

Smith and Commissioner of Patents [2012] AATA 60

SECONDARY MATERIALS

Pearce D, Administrative Appeals Tribunal (4^th ed, LexisNexis Butterworth, 2015)

REASONS FOR DECISION

Chris Puplick AM, Senior Member

8 November 2019

1. PRZR (the Applicant) is seeking an extension of time (EOT) to contest an EOT refusal determination made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), which related to an objection decision made by the Child Support Registrar (the Respondent) about the Applicant’s residential status for the purposes of making child support assessments in relation to his three children. This, in turn, determines the payment which the Applicant has to make towards the support of his three children and former wife (the Wife).

2. The child support case was registered in 2011 and the Respondent had determined that the separated Wife had 100 percent care of the three children.[1]

   [1] Section 37 Documents (T Documents) at page 195.

3. The Applicant subsequently challenged the decision of the Respondent on the basis that, since 14 March 2015, he had been permanently residing in Thailand (which is a non-reciprocating country for child support purposes).

4. On 19 January 2017, the Respondent made a determination that from 19 October 2015, although the Applicant was physically present in Thailand, he was for the purposes of the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) a resident of Australia. The Respondent’s letter to the Applicant dated 19 January 2017 indicated that the Applicant had a period of 28 days in which to lodge an objection to this determination.[2]

   [2] Ibid at page 114.

5. It appears that the Applicant gave notice of his objection to the 19 January 2017 determination on 15 February 2018.[3] In lodging this objection the Applicant sought an EOT to so lodge, given that his application was well outside the statutory time limit.

   [3] Ibid at pages 174 and 184.

6. The Respondent did not object to the EOT being granted and advised him accordingly on 17 April 2018. When the Respondent granted the Applicant an EOT to lodge his objection on 17 April 2018, it advised him that he had until 16 July 2018 to provide any extra material for its consideration before a final determination was made on his objection to the decision.[4]

   [4] Ibid at page 190.

7. However, prior to that date, on 16 June 2018, the Respondent proceeded to make its decision and notified the Applicant that his objection had been disallowed.[5] In that notification letter, the Respondent advised the Applicant that he had “90 days” in order to make an appeal to the Administrative Appeals Tribunal (AAT) for a review of this decision to disallow his objection.

   [5] Ibid at page 219.

8. Upon recognising its error in making an objection decision prior to the date on which the Applicant was allowed to provide further evidence, the Respondent wrote to the Applicant on 27 July 2018 acknowledging its mistake and invited him to provide further material by 10 August 2018, indicating that consideration of this material could possibly result in a variation of the objection decision of 16 June 2018.[6] In this correspondence, the Respondent advised the Applicant that “as more than 28 days has passed since the making of the objection decision it will be necessary for you to obtain an extension of time from the AAT to lodge your appeal”.[7] This was contrary to what it had previously advised the Applicant (i.e. its reference to a 90–day period).

   [6] T Documents at page 276.

   [7] Ibid at page 277.

9. It is unclear as to how the Respondent could have advised the Applicant that he had a period of 90 days to appeal to the AAT when subsection 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) specifies that such appeals must be lodged within 28 days. Although sections 89 to 93 of the Child Support (Registration and Collection) Act 1988 (Cth) (the Registration Act) vary some provisions of the AAT Act, it is not clear that the 28 day rule was so varied in that situation.

10. The Tribunal observes that, under subsection 90(2) of the Registration Act, this 90 day rule is extended to people resident in a reciprocating jurisdiction. However, Thailand is not a reciprocating jurisdiction and in any event the Respondent had determined that the Applicant was actually a resident of Australia.

11. Nevertheless, it was not until 11 December 2018[8] that the Applicant lodged an EOT application with AAT1 seeking an extension of time to apply for a first review of the Respondent’s decision dated 16 June 2018. It therefore was substantially outside the statutory framework regardless of whether the rule in question was 28 or 90 days.

    [8] Ibid at page 282.

12. There is no doubt that, in that instance, the Applicant was required to lodge his application to AAT1 for a first review of the Respondent’s decision dated 16 June 2018 by 14 July 2018. That application was, therefore, some 150 days out of time.

13. In any event, the Applicant’s EOT application was considered by AAT1 on 22 January 2019 and a determination was made by that Division to refuse the EOT application.[9] The Applicant was notified by email accordingly on 31 January 2019. In this correspondence to the Applicant, AAT1 indicated in its cover letter that the Applicant may apply for a review of the EOT refusal by AAT1 but that “there is a 28 day time limit for doing so”.[10]

    [9] T Documents at pages 6–12.

    [10] Attachment A to Respondent’s Outline of Submissions dated 9 October 2019.

14. In explaining his reasons for delay in lodging his application for first review with AAT1, the Applicant addressed the Respondent’s error in making the objection decision by 16 June 2018 before the date on which he was allowed to provide extra material, being 16 July 2018. The Applicant’s response appears then to have been that he sought to have this error rectified and that he had contacted the Ombudsman about it – although the latter appears to have advised him to approach the Tribunal first.[11]

    [11] T Documents at page 8 para 13.

15. On 1 March 2019, the Applicant then applied to this Tribunal, the General Division of the AAT (AAT2), for a review of AAT1’s EOT refusal decision dated 22 January 2019.[12] As the Applicant was notified of the AAT1’s decision on 31 January 2019, the 28 day appeal period in this instance would have concluded on 28 February 2019. Unfortunately for the Applicant this was out of time, albeit by only one day.

    [12] Ibid at pages 1–5.

16. The Applicant knew that he had to lodge his application to this Tribunal within a prescribed time limit (he was aware of this from earlier proceedings described above) but he simply failed to do so.

17. In his application for review, the Applicant stated:

    I have done everything right I was preparing documents for the month of July 2018 which was the date I deemed the date I had to respond to.

    I am trying to work with the CSA and get back to Australia to see my kids. The debt outstanding is wrong as I have not worked. The matter I feel should be looked at as you will see I did everything right.[13]

    [13] T Documents at page 4.

18. Despite the Applicant’s admission that he was preparing material for submission and despite the fact that he was granted more time until 10 August 2018 to provide further material to the Respondent,[14] nothing was ever forthcoming either by that date or the date of the AAT2 hearing which was scheduled for 10 October 2019. Furthermore, despite the Applicant being given the opportunity to file further submissions by 18 October 2019, nothing was forthcoming in this case either.

    [14] See para 8 above.

    PRINCIPLES COVERING EXTENSION OF TIME APPLICATIONS

19. It is generally accepted that the “checklist” outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen,Minister for Home Affairs and Environment[15] (Hunter Valley Developments) should be taken as the guide by this Tribunal in determining EOT matters.

    [15] (1984) 3 FCR 344, affirmed by the Full Court in Parker v R [2002] FCAFC 133 at [6].

20. That list provides as follows:

    ·an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time;

    ·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;

    ·any prejudice to the respondent caused by the delay;

    ·whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;

    ·the merits of the substantial application; and

    ·“considerations of fairness as between the applicants and other persons” in a similar position.

21. There is, however, very powerful authority which stresses the importance of statutory time limits being observed.

22. McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor[16] 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.

    [16] (1996) 186 CLR 541 at 552–553. Footnotes and citations omitted.

23. His Honour also noted that:

    An applicant for an extension of time who satisfies those conditions [i.e. the conditions laid down in the relevant Act] is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.[17]

    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. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.[18]

    [17] Ibid at 551.

    [18] Ibid at 553–554.

24. Similarly, in Hunter Valley Developments, Wilcox J observed:

    Although the section [Administrative Decisions (Judicial Review) Act 1977 s 11] does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period” … is not to be ignored. (Ralkon Agricultural Co. Pty Ltd v. Aboriginal Development Commission (1982) 43 A.L.R. 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v. Nolan (1982) 45 A.L.R. 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time (Duff at 485; Chapman v. Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).[19]

    [19] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348.

25. Further refinement of this checklist was suggested in both Phillips v Australian Girls’ Choir Pty Ltd[20] and in Hillman and Australian Postal Corporation (Compensation),[21] where the essential principles were held to be:

    ·Delay;

    ·Prejudice;

    ·Merits; and

    ·Fairness.

    [20] [2001] FMCA 109.

    [21] [2017] AATA 1411.

    CONSIDERATIONS

26. In effect, the primary matters for consideration in applications such as the present are generally twofold: was there a reasonable explanation for the delay in lodging the application for review and, if the matter were to proceed to a full merits-based hearing, would it have reasonable prospects of being successful.[22] In this instance, there is also the question of any prejudice which might be suffered by another party, namely the Wife.

    [22] Smith and Commissioner of Patents [2012] AATA 60 at [29]–[31].

27. Equally, this Tribunal has noted that the checklist items in Hunter Valley Developments “are not to be applied mechanically” and that “an ‘acceptable explanation for the delay’ is not an essential precondition to the exercise of the discretion, although it is to be expected that such an explanation will normally be given”.[23]

    [23] O’Gorman and Comcare (Compensation) [2017] AATA 2192 at [13], citing Comcare v A’Hearn (1993) 45 FCR 441.

    Reasons for delay

28. The Applicant was clearly aware of the need to adhere to time restrictions and had already been the beneficiary of a previously granted EOT by the Respondent. He was familiar with the processes of the Tribunal and the review mechanism having previously applied for an EOT with AAT1. He was also on notice from the Respondent about the date by which additional material had to be received, a date which was well before both the AAT1 and AAT2 considerations of the Applicant’s EOT applications. He was further aware that he had a right to seek a review of the Respondent’s objection decision independently from his more general right of appeal to the AAT.

29. Although the Applicant’s application for review to AAT2 is only just out of time, it nevertheless fails to disclose any cogent reason why the Applicant could not submit material within the time prescribed. His own statement to the effect that he was “preparing documents for the month of July 2018” evidences that he was aware of his responsibilities in terms of adhering to time limits and making submissions.

30. The fact that he failed to meet the prescribed time limits to lodge applications for review with both the AAT1 and AAT2, and his failure to meet the (extended) time limits to submit further material to support his case, indicates to the Tribunal both that he rested on his rights and that his stated reason for the delay lacks any persuasive force or credibility.

    Merits of the application

31. In EOT applications it is not appropriate for the Tribunal to seek to canvass in any detail the substantive merits of the original application itself. However, it needs to be aware of the essentials of the case in question and have some appreciation of the issues likely to be canvassed at any full merits-based hearing.

32. In Jackamarra v Krakouer,[24] the High Court stated:

    The understanding of counsel for the appellant as to how the Court would examine "the merits" was consistent with the practice of the courts in a number of common law jurisdictions dealing with applications to extend the time for appealing. In R v Secretary for the Home Department; Ex parte Mehta, for example, Lord Denning MR 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."

    [24] (1998) 195 CLR 516 at 519 per Brennan CJ and McHugh J [also Kirby J at 540]. Footnotes omitted.

33. In Jamal v Secretary, Department of Social Services,[25] the Federal Court stated:

    The last relevant principle set out in Hunter Valley Developments was that the merits of the substantive appeal should to be taken into account. Her Honour followed the view expressed by Mortimer J in MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; 242 FCR 585 at [62], upheld by the Full Court in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110; 152 ALD 478, to the effect that it will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospect of success, given the additional resource demands that it would impose upon the parties and the Court, and the inevitable impact it would have on other users of the Court.

    [25] [2018] FCA 513 at [6] per Bromwich J.

34. The AAT1, in its decision refusing the Applicant’s request for an EOT, undertook an analysis of the factual background leading to the Respondent’s original objection decision. Any decision by this Tribunal must be on a de novo basis with consideration of any material placed before it by the parties which might not have been available to the original decision-maker.[26] In this instance there is no such material to consider other than the Applicant’s formal application of 1 March 2019 and Attachment A (a cover letter dated 31 January 2019 enclosing the AAT1 decision) of the Respondent’s Outline of Submissions dated 9 October 2019.

    [26] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.

35. The essential decisions of the Respondent to which the Applicant objected were that he was deemed an Australian resident for child support purposes and that he had a certain level of income.

36. The Assessment Act under which such decisions are made does not itself contain a definition of what constitutes Australian residency. Rather, section 10 of that Act provides:

    For the purposes of this Act, a person is a resident of Australia on a day if on that day the person is a resident of Australia for the purposes of the Income Tax Assessment Act 1936.

1. It is not necessary to canvass in detail the various versions of the “resides test” which are used to make an assessment under the Income Tax Assessment Act 1936 (Cth). It is suffice to say that, in making its decision, AAT1 relied upon the following:

   (a)The Applicant had departed Australia on 20 September 2015 and not returned;

   (b)At the time of his departure, the Applicant had indicated that it was his intention to return to Australia and in a residency questionnaire, received by the Respondent from the Applicant on 10 January 2017, the Respondent had confirmed he was an Australian resident departing Australia temporarily and that he had not applied for residency in any other country;

   (c)The Applicant, although now declaring that he had no intention to return to Australia, had not provided any evidence that he had sought either residency or citizenship in Thailand, or that he had a permanent home there; and

   (d)The Applicant had a number of active bank accounts, business commitments and two investment properties in Australia.[27]

   [27] T Documents at pages 10–11.

2. The claim made to the Respondent that the Applicant had no intention of returning to Australia is not consonant with his statement in his review application form that he was “trying to work with the CSA and get back to Australia to see my kids”.[28]

   [28] See para 17 above.

3. At no time has the Applicant provided to the Respondent, or to any hearings before the AAT, any evidence to establish that he is a permanent resident of any place other than Australia.

4. Although it is not the role of the Tribunal in proceedings such as the present to make a final determination on the Applicant’s residential status it would need, if inclined to grant an EOT, some support for the proposition that the Applicant would, on this point, have some reasonable prospect of success.

5. There is nothing to suggest that this would be the case.

6. The prospects of success in relation to this aspect of AAT1’s decision, confirming the Respondent’s determination, are not good.

7. Although the Applicant referred to an objection to his “debt outstanding” in his application for review,[29] a matter which arises from an income determination made by the Respondent and subsequently appealed to AAT1 (in another instance) by the Applicant, he has provided no further information in relation to this matter. Therefore, the Tribunal is unable to assess whether, in fact, the Applicant would have any prospect of success if it were to go to a full merits-based hearing on matters relating to his income level and child support debt. In the Respondent’s submission, they did not address this matter either.

   [29] T Documents at page 4.

8. It is not the Tribunal’s role to make the Applicant’s case for him. He must make and plead his own case.

9. As Professor Dennis Pearce observes in his definitive work on the Tribunal:

   The AAT may not base its decision on a ground not relied upon by the parties or raised at the hearing: Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442; 16 ALD 280.[30]

   [30] Dennis Pearce, Administrative Appeals Tribunal (4^th ed, LexisNexis Butterworth, 2015) at page 110 para 8.9.

10. Similarly, in Hawkins the Federal Court accepted the argument put by the Minister that an applicant could not advance a case “because it was not the subject of substantial clearly articulated arguments relying on established facts or did not clearly emerge from the materials”[31] immediately before the Court.

    [31] Hawkins v Minister for Home Affairs [2019] FCA 437 at [41] per Collier J, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [55] and [68]; AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46].

11. Allsop J (as His Honour then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs explained:

    … A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.[32]

    [32] [2004] FCA 1695 at [15].

    Prejudice to other parties

12. One of the other Hunter Valley Development issues is whether granting an EOT would have a prejudicial impact on any other party. In this instance, that party is the Wife who has 100 percent care of the former couple’s three children.

13. As Lord Diplock noted in O’Reilly v Mackman:[33]

    The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.

    [33] [1983] 2 AC 237 at 280-281.

14. Similarly in David and High Court of Australia,[34] it was stated that:

    Time limits for review of administrative action should be observed in order to assist the proper administration of government agencies. There is also a public expectation that there be (sic) degree of certainty of time limits. The Tribunal finds that this factor weighs against granting an extension of time.

    [34] [2009] AATA 448 at [10].

15. The Wife, as a third party in these proceedings, had a legitimate expectation that this matter was settled when the AAT1 decision of 22 January 2019 was made and has, presumably, arranged her affairs according to the terms of that decision. She may, or may not, have been aware that there was a 28 day window during which an application for review could be made but certainly thereafter she was entitled to regard the matter as settled.

16. It would be grossly prejudicial to her position were this matter to be allowed to drag on indefinitely.

    CONCLUSION

17. The Applicant has not supplied any persuasive or coherent reason why his application for review to AAT2 was lodged out of time, especially bearing in mind that he was intimately familiar with the process in question having availed himself of it on a previous occasion.

18. The application for review itself does not have serious prospects of success in challenging either the objection decision by the Respondent or the EOT refusal decision made by AAT1.

19. There would be unacceptable prejudice to the position of the Wife were the EOT to be granted.

    DECISION

20. The application for an extension of time is refused.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

............................[sgd]................................

Associate

Dated: 8 November 2019

Date(s) of hearing:	10 October 2019
Applicant:	In person
Solicitors for the Respondent:	Mr A Gardner, Department of Human Services