PSZD and Secretary, Department of Social Services (Practice and procedure)

[2025] ARTA 69

PSZD and Secretary, Department of Social Services (Practice and procedure) [2025] ARTA 69 (6 January 2025)

Applicant/s:  PSZD

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2024/5919

Tribunal:Senior Member T Simon

Place:Sydney

Date:6 January 2025  

Decision:The Tribunal refuses to extend the time for the making of an application for second review of the decision.

Statement made on 06 February 2025 at 12:09pm

........................................................................

Senior Member T Simon

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 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.

Catchwords

PRACTICE AND PROCEDURE – Social Services – application for extension of time – length of delay not significant – whether there was a reasonable explanation for the delay – whether the substantive application for review has merits – whether granting of extension of time would prejudice the Respondent or the general public – extension of time request refused

Legislation

Administrative Appeals Tribunal Act1975
Administrative Review Tribunal Act 2024
Administrative Review Tribunal Rules 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Evidence Act 1995
Social Security Act 1991

Social Security (International Agreements) Act 1999

Cases

Englezos v Secretary, Department of Social Services [2023] FCA 31
Ralkon v Aboriginal Development Commission [1984] FCA 153; (1982) 43 ALR 535
Hunter Valley Developments Pty Ltd and Others v Cohen [1984] FCA 176
Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR
541

Other Materials
Agreement on Social Security between the Government of Australia and the Government of New Zealand

Statement of Reasons

1. These reasons deal with an application lodged by the applicant on 20 August 2024. The applicant seeks an extension of time to request second review of a Tribunal decision.

2. On 14 August 2024 the applicant had lodged an application with the Administrative Appeals Tribunal for second review of a Tribunal decision which had been determined on 28 June 2024. The Tribunal had affirmed a decision of Services Australia – Centrelink (Centrelink), to reject her claim for disability support pension. The claim had been rejected on the basis that the applicant did not meet the residency requirements under paragraph 94(1)(e) of the Social Security Act1991. The applicant also did not qualify under the Agreement on Social Security between the Government of Australia and the Government of New Zealand, as set out in schedule 3 to the Social Security (International Agreements) Act1999.

3. The hearing was held on 20 January 2025. The applicant’s mother attended the Tribunal hearing by telephone and gave oral evidence. The respondent also appeared, through its representative, by telephone.

4. The applicant had provided a bundle of documents (applicant’s documents) with the application for an extension of time. Written submissions had been received from the respondent.

5. Having considered the material provided and the oral evidence from the applicant’s mother, the Tribunal has decided to refuse the application to extend time for the making of the application for second review if the decision.

   CONSIDERATION

6. From 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal. Item 24 of the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides proceedings that were not finalised in the Administrative Appeals Tribunal prior to 14 October 2024 must continue and be finalised by the Administrative Review Tribunal in a manner that the is efficient and fair.

7. Pursuant to s 131D of the Administrative Review Tribunal Act 2024 a person whose interests are affected by an ‘ART social services decision’ may apply to the Tribunal for second review of the decision. An ‘ART social services decision’ includes an eligible social services decision which has been affirmed by the Tribunal; s 131D(3)(a). An eligible social services decision includes a decision made under the Social Security Act; s 131C(g).

8. The decision made by the Tribunal on 28 June 2024 is an eligible social services decision and the applicant’s interests are affected by the decision.

9. Section 29 of the former Administrative Appeals Tribunal Act 1975 prescribed that the time for lodging an application was within 28 days after the decision was given. The applicant could seek an extension of time to apply.

10. Similarly, section 18 of the Administrative Review Tribunal Act 2024 and rule 5 of the Administrative Review Tribunal Rules 2024 prescribe a period of 28 days for the making of the application. Subsection 19(2) of the Administrative Review Tribunal Act allows for the Tribunal to order the extension of the period to apply to the Tribunal for review. The provision provides that time should be extended if ‘the Tribunal considers that it is reasonable in all the circumstances to do so’.

11. Considerations which may be relevant to the Tribunal determining whether it is reasonable in all the circumstances to extend time will generally include:

    (a)The length of delay;[1]

    (b)The explanation for the delay;[2]

    (c)Any prejudice to the respondent;[3]

    (d)The public interest;[4]

    (e)Whether the substantive application has reasonable prospects of success.[5]

    CONSIDERATION

    [1] Ralkon v Aboriginal Development Commission [1984] FCA 153; (1982) 43 ALR 535 at 550

    [2] Hunter Valley Developments Pty Ltd and Others v Cohen [1984] FCA 176 at [18], Doyle v Chief of Staff [1982] FCA 124; (1982) 42 ALR 283 at 287

    [3] Hunter Valley Developments Pty Ltd and Others v Cohen [1984] FCA 176 at [20]

    [4] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR

    541

    [5] Hunter Valley Developments Pty Ltd and Others v Cohen [1984] FCA 176 at [22]

    Delay

12. In the matter of Englezos v Secretary, Department of Social Services [2023] FCA 31 the Court said at [39]:

    39. Without good reason, a litigant in person is not inherently exempt from the rules. The time limits prescribed by the Federal Court Rules and AAT Act are not "mere aspirational guidelines" and the applicant must provide a good reason to explain the delay, particularly when that delay is lengthy: BLD 16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3]; BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40]

13. The first review decision is dated 28 June 2024. The Tribunal records indicate that the decision was sent by post to the applicant with a cover letter dated 5 July 2024. Pursuant to section 160 of the Evidence Act1995, the applicant is taken to have received notice of the Tribunal decision on 16 July 2024. The 28-day appeal period expired on 13 August 2024. The applicant made the application for second review on 14 August 2024, which was 1 day late. The delay is not lengthy. However, the fact that the delay is not significant does not itself guarantee an extension of time.

14. In her substantive application the applicant states she received the decision on 17 July 2024. That may also be a matter that weighs in favour of the granting of the extension of time.

15. At the hearing, the applicant’s mother stated that she had delayed in making the application because she was gathering material and seeking information in relation to the second review.

16. However, in the covering letter enclosing the decision, which is dated 5 July 2024, the applicant was informed:

    You may apply to the AAT for second review of the decision. An application for second review must be made online or in writing. Information about how to apply is available at or by calling us on 1800 228 333.

    There are time limits for making an application for review (28 days after giving of the document setting out the terms of the AAT’s decision).

17. Given the applicant was put on notice of the time for making an application for second review, the explanation for the delay is not adequate and weighs against the granting of an extension of time.

    Prejudice to the respondent and the public interest

18. If the extension of time were granted the respondent would be required to participate in the proceedings. However, the respondent has not demonstrated any prejudice beyond that if the extension of time to make the application was granted. On that basis there would not be significant prejudice to the respondent in participating in the proceedings if the extension of time was granted.

19. The respondent submits that the public interest, and the interests of those applicants who comply with the prescribed time limits, are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that it should occur.

20. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25 at [6], Toohey and Gummow JJ explained that one of the rationales for time limitations is that the public interest requires that disputes be settled as quickly as possible. This matter has been ongoing for some time and the prospects of success are important to determining whether it is in the public interest to allow the extension of time.

    Reasonable prospect of success

21. The applicant was born in the Cook Islands on 17 March 1984 and then moved to New Zealand on 24 October 2015.[6] The applicant arrived in Australia on 8 November 2019. Records provided by Centrelink indicate that the applicant arrived in Australia on a subclass 444 special category visa.[7] On 24 January 2024, the applicant lodged an application making a claim for a disability support pension.[8]

    [6] Applicant’s documents, p 61

    [7] Applicant’s documents, p 60

    [8] Applicant’s documents, p 16 -25

22. A disability support pension ‘medical eligibility assessment recommendation’ was completed in relation to the claim and the applicant was found to be manifestly medically eligible for a disability support pension based on the conditions which had been assessed. They were an intellectual disability and hypothyroidism.[9] However, on 28 February 2024 the applicant’s claim for a disability support pension was rejected on the basis that she was living in the Cook Islands when her disability started and she did not qualify for a disability support pension in Australia or under the New Zealand Agreement within the Social Security (International Agreements) Act 1999.[10] On 10 April 2024, an authorised review officer for Centrelink, affirmed the original decision.[11] As noted above, the Tribunal subsequently affirmed the decision on 28 June 2024.

    [9] Applicant’s documents pp 65 - 67

    [10] Applicant’s documents p 26

    [11] Applicant’s documents, pp 29 - 31

    Residency Requirements

23. The requirements for qualification for a disability support pension are set out in section 94 of the Social Security Act. It is not in dispute between the parties that the applicant medically qualifies for a disability support pension under paragraph 94(1)(a) and 94(1)(b) of the Social Security Act because of her congenital hypothyroidism and profound intellectual disability.

24. Paragraph 94(1)(e) of the Social Security Act relevantly provides that, to qualify for a disability support pension:

    (e) the person either:

    (i) is an Australian resident at the time when the person first satisfies paragraph (c); or

    (ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for disability support pension; or

25. The applicant was not an Australian citizen or permanent visa holder at the time of making the application for the disability support pension. 

26. ‘Australian Residence’ is defined in section 7 of the Social Security Act. Subsection 7(2) of the Social Security Act provides that an Australian resident is a person who resides in Australia and holds a protected special category visa. Paragraph 7(5)(a) provides that a person has qualifying Australian residence if the person has been in Australia for continuous period of not less than 10 years. At the time of the application, the applicant had only been residing in Australia for a total of 4 years, 5 months, and 16 days, and would not qualify in that regard. Further, there is no evidence that the applicant had been in Australia for the required period prior to 8 November 2019 so as to meet the aggregate qualifying period as required by paragraph 7(5)(b).

27. Paragraph 94(1)(e)(iii) of the Social Security Act sets out that a person may qualify for a disability support pension if the individual:

    (iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

    (A) is not an Australian resident; and

    (B) is a dependent child of an Australian resident; and the person becomes an Australian resident while a dependent child of an Australian resident.

28. Paragraph 94(1)(c) of the Social Security Act refers to a person having a continuing inability to work.

29. The applicant’s mother made submissions at the hearing that the applicant’s continued inability to work did not arise during her time in the Cook Islands, rather it only arose after she arrived in Australia when her condition became much worse.  The applicant also relies on a letter from a doctor dated 10 December 2019 from her time in New Zealand. The letter notes:[12]

    [the applicant] has been classified as having Congenital Infantile hypothyroidism and having mild mental retardation.

    She is quite a winsome woman but is slow mentally and this still under the care of both parents.

    [12] Applicant’s documents, p 55

30. The applicant’s mother submits that the letter demonstrates that her daughter’s condition was not so severe while in the Cook Island’s and New Zealand and only became worse when she was in Australia. While the Tribunal accepts that there is reference to “mild” mental retardation in the letter, when the letter is read in the context of overall evidence, it does not establish that the applicant’s continued inability to work arose in Australia.

31. On the application, the applicant noted the following under the headings of ‘disability or medical condition’.[13]:

    [13] Applicant’s documents p 20

    Condition                    My ability to work is affected by the

    following condition(s): congenital infantile hypothyroidism

    Condition start date    Approximately 17 March 1984

    Country living in         I was living in COOK ISLANDS when this condition began to significantly impact my ability to work.

    ConditionMy ability to work is affected by the following condition(s): profound intellectual disability.

    Condition start date    Approximately 17 March 1984

    Country living in         I was living in COOK ISLANDS when this condition began to significantly impact my ability to work.

    ConditionMy ability to work is affected by the following condition(s): anemia from menorrhagia.

    Condition start date    Approximately 10 June 2022

    ConditionMy ability to work is affected by the following condition(s): hypercholesterolemia.

    Condition start date    Approximately 10 June 2022

    Condition My ability to work is affected by the following condition(s): menorrhagia.

    Condition start date    Approximately 23 February 2023.

32. Further, in a letter dated 1 May 2020 from a clinical psychologist in Australia it states that based on information provided by the applicant’s mother and aunty: [14]

    [the applicant] has never attended a school due to her low comprehension and skills. She is unable to read and write and has limited language skills. She can copy a single letter but unable to write words or form sentences. She has a limited attention span and needs prompting and support with self care and simple tasks.

    [the applicant’s] communication and socialisation skills are very limited. She is unable to initiate and maintain conversations. She requires consistent support from her parents and extended family to socialise.

    [the applicant] is able to dress herself but needs to be told to have a shower. She is unable to travel anywhere on her own and needs assistance to cross a road. She has never handled her finances or banking. She cannot be left on her own. She has never been in paid employment.

    [14] Applicant’s documents, p 53

33. The applicant’s mother stated that her daughter would not have attended school in the Cook Islands because she was shunned by the community because of her condition.

34. The evidence from the clinical psychologist in Australia and the answers that that the applicant her provided on the application form to claim the disability support pension, demonstrate that the applicant’s continual inability to work arose in the Cook Islands and was present from when she was first had congenital infantile hypothyroidism and profound intellectual disability at birth.

35. On that basis of the evidence, the applicant does not satisfy paragraph 94(1)(c) of the Social Security Act. The Applicant was a resident of Cook Islands when she first had a continued inability to work.

    The New Zealand Agreement

36. At the hearing, the applicant's mother submitted that her daughter arrived using her New Zealand Passport. The evidence does not support that contention. In any case, that would not have altered her position regarding eligibility under s 94(1) of the Social Security Act.

37. Having been born in the Cook Islands, the applicant was a New Zealand citizen from birth.

38. The Social Security (International Agreements) Act1999 provides for limited circumstances for New Zealand citizens to qualify for specified payments such as a disability support pension. The Social Security Agreement between Australia and New Zealand (the NZ Agreement) is contained in Schedule 3 of the Social Security (International Agreements) Act.

39. Article 2 of the NZ Agreement provides that payment of the Australian disability support pension is limited to a person who is severely disabled and who was a resident of either New Zealand or Australia at the date they became severely disabled. 

40. It is not in dispute that the applicant is presently ‘severely disabled’. 

41. There is no medical evidence provided demonstrating an exact date for the applicant’s diagnosis of congenital infantile hypothyroidism and profound intellectual disability. However, the answers on the application form completed for the claim for the disability support pension indicate that the applicant’s congenital infantile hypothyroidism and profound intellectual disability began when she was in Cook Islands as at her date of birth of 17 March 1984. Further in her application for second review its states:[15]

    There is no dispute that [the applicant] is severely disabled. She was born with a profound congenital intellectual disability as a result of congenital hypothyroidism.

    …

    However, [the applicant]  has been severely disabled since she was born in 1984. At the time [the applicant]  is living in the Cook Islands’

    [15] Applicant’s documents p 4

42. The evidence demonstrates that the applicant was severely disabled at birth in Cook Islands when she was born with congenital infantile hypothyroidism and intellectual disability. She did not reside in New Zealand or Australia at that date.

43. In the Tribunal’s view, there are no reasonable prospects of success in relation to the applicant’s substantive application.

    Conclusion

44. Weighing up the relevant factors, the Tribunal does not grant an extension of time for the making of this second review application.

45. There has not been a considerable delay, in the making of the application and there is no significant prejudice to the respondent if the matter were to proceed. However, the reasons given for the delay are not adequate. The applicant has already had an internal review of the decision and first review of the decision, both of which have been unsuccessful. The second review application, as put by the applicant, lacks reasonable prospects of success. It is not in the public interest that the application progress where it lacks merit.

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

2. It is noted that at the hearing the respondent did not dispute the applicant’s medical qualification for a disability support pension and was sympathetic to her position. The respondent indicated that the applicant may seek to apply for an act of grace payment. The granting of such a payment is discretionary. The representative for the respondent indicated that if time was not extended by the Tribunal, they would forward the applications forms for such an application to the applicant. 

   DECISION

   The Tribunal refuses to extend the time for the making of an application for second review of the decision.

Date(s) of hearing:	20 January 2025
Applicant:	By telephone
Solicitors for the Respondent:	A. Raveendiran, Services Australia