Quitlong and National Disability Insurance Agency

[2024] AATA 1208

Quitlong and National Disability Insurance Agency [2024] AATA 1208 (24 May 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2023/6249

Re:Mr Paquito Quitlong

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:The Honourable Pru Goward AO, Senior Member

Date:24 May 2024

Place:Sydney

The Tribunal refuses to reinstate this application, pursuant to subsection 42A (9) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

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The Honourable Pru Goward AO, Senior Member

CATCHWORDS

NDIA – Reinstatement of substantive application – Failure to appear – substantive application relates to Access – application for reinstatement out of time – no evidence provided of errors or special circumstances – Tribunal refuses to reinstate application pursuant to subsection 42A(9) Administrative Appeals Tribunal Act 1975

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme (NDIS) Act 2013

CASES

Guan and Australian Securities & Investments Commission [2024]

James and Comcare (Compensation) [2023] AATA

McDermott and Comcare (Compensation) [2023] AATA

Mori v Secretary, Department of Social Services [2014] FCA333

REASONS FOR DECISION

The Honourable Pru Goward AO, Senior Member

24 May 2024

INTRODUCTION

1. The Applicant, Paquito Quitlong, is a 58 year-old man who seeks access to the National Disability Insurance Scheme (the Scheme) for Diabetic Neuropathy, Diabetic Retinopathy, Kidney Disease, Hypertension, Depression and Anxiety.

2. The Applicant first requested access to the Scheme on 16 April 2023. The Respondent decided not to grant access to him on 16 May 2023 (the Access Decision). A delegate of the Respondent made the decision to affirm the Access Decision (the Reviewable Decision) on 22 August 2023. The delegate determined that although the Applicant met the Age and Residency requirements, he did not meet the Disability or Early Intervention requirements.

3. On 23 August 2023, the Applicant sought review of the Reviewable Decision under s 100(6) of the NDIS Act by the Administrative Appeals Tribunal (Application for Review).

4. The Applicant attended the first case conference via telephone on 19 October 2023 and was assisted by a Tagalog interpreter.  At the conclusion of that conference, the Conference Registrar made directions, including for the collation and provision of medical and other evidence that would assist the Tribunal. The Applicant responded to this direction with an email describing his symptoms. Subsequently, a second case conference was listed for 12 March 2024.

5. On 12 and subsequently 19 March, the Tribunal scheduled case conferences at which the Applicant failed to appear. Accordingly, the matter was listed for a directions hearing on 28 March. Despite an email from the Tribunal Registry on 20 March 2024 and on the morning of the hearing to the Applicant, reminding him of the approaching hearing, the Applicant again failed to attend and the Tribunal dismissed the application under s 42A(2) of the AAT Act.

6. Following contact initiated by the Tribunal, the Applicant telephoned the Tribunal on 17 April, seeking to have his matter reinstated. An email requesting reinstatement was sent to the Tribunal on 30 April. Reinstatement was opposed by the Respondent and, accordingly, a hearing was scheduled for 16 May 2024. Despite efforts to contact the Applicant, again he failed to appear. The Tribunal notes it was open to it to dismiss the application on 16 May 2024 without proceeding to review the decision in accordance with s 42A 2 (a) but that the Respondent has requested written reasoning in this case.

   BACKGROUND

7. Although the Applicant’s substantive application relates to access to the Scheme this matter concerns the Applicant’s reinstatement application, following the Tribunal’s dismissal of the application for the non-appearance of a party, pursuant to s 42A(2) of the AAT Act, the Act. Relevantly, an Applicant may apply for reinstatement of their substantive application in accordance with the requirements of ss 42A(8)-(10).

8. Pursuant to s 42 A(9) of the Act, the Tribunal may reinstate the application if it considers it to be appropriate and subject to the constraints identified in s 42A(11) of the AAT Act. These include that the application for reinstatement be made within 28 days, although the Tribunal may grant an extension of time in special circumstances. In forming its decision, the Tribunal has relied on the identified case law, particularly Mori v Secretary, Department of Social Services [2014] FCA 333 (‘Mori) and James and Comcare (Compensation) [2023] AATA (James and Comcare’).

   CONTENTIONS

9. The Respondent contended that the Application for Reinstatement was made by the Applicant out of time, being more than 28 days after the Tribunal dismissed his application, and thus did not meet the requirements of s 42A(11)(a) of the AAT Act. The Respondent relied upon Mori and James and Com Care. The Tribunal notes that s 42A also enlivens the Tribunal’s discretion to reinstate the application if the dismissal was in error. For completion, the Tribunal will address the question of error in its reasoning.

10. The Respondent further contended that special circumstances warranting an extension of time consistent with s 42 A (11) (b) of the AAT Act did not exist in the present case.

11. The Respondent contended that the Applicant’s repeated non-appearances at Tribunal proceedings had not assisted the Tribunal’s determination of the issues in dispute, consistent with Guan and Australian Securities & Investments Commission [2024]. The Tribunal notes that the Applicant’s failure to appear at the hearing of 16 May 2024 to consider his application for reinstatement may also have met the requirements of s 42A 2 (a) of the Act which enable the Tribunal to dismiss the application.

12. The Respondent also contended that the Applicant failed to actively proceed his application, based upon the Applicant’s non-appearances and failure to provide evidence of sufficient probative value. The Respondent relied upon McDermott and Comcare (Compensation) [2023] AATA to submit that it would not be consistent with the objects of the Tribunal for the application for review to be reinstated without the Applicant demonstrating a good reason for doing so.

    THE ISSUES

13. The Tribunal is required to determine whether the Applicant’s hospitalisation during the period of his non-appearances at case conferences and a directions hearing constitute special circumstances which would warrant the Tribunal granting an extension of time. Further, whether there was an error made in the dismissal of the Applicant’s application for review of the reviewable decision.

14. The Tribunal is also to determine whether the Applicant’s efforts to provide evidence, and his non-appearance at a further directions hearing for reinstatement of his application, following his discharge from hospital, constitute a failure to actively proceed his application and are grounds for refusal of his application for reinstatement. Further, that such a refusal would be consistent with the objects of the Tribunal.

    EVIDENCE RELIED UPON

15. The Tribunal has had regard to various material before it, including:

    (a)T-Documents (filed 14 September 2023)

    (b)Letter of support from Associate Professor Christian M Giris (dated 20 September 2023)

    (c)Reply to targeted question from Dr Surjit Tarafdar (dated 20 November 2023)

    (d)Psychological Assessment report of Dr Reza Pishyar (dated 29 November 2023)

    (e)Reply to targeted questions from Dr M Dowla (dated 22 December 2023)

    (f)Medical certificate of Dr Wafik Latif (dated 5 April 2024)

    (g)Respondent’s written outline of submissions (dated 15 May 2024),

    (h)Annexure A – Chronology

    (i)Annexure A1 – File note of conversation between Respondent and Applicant (dated 19 March 2024)

    CONSIDERATION OF EVIDENCE

16. The Respondent asserted the application for reinstatement was not made within 28 days of the Tribunal’s notice of dismissal, as required by s 42A of the AAT Act. It is noted that although the Applicant contacted the Tribunal’s registry on 17 April 2024, that is, within time, regarding his application for review, that this had only been in response to an email from the Tribunal Registry asking the Applicant to reply urgently if he wished to continue. The Tribunal’s Registry then sent an email seeking to confirm the Applicant’s request in writing, noting a medical certificate had been received. His written application for reinstatement did not occur until 30 April 2024, a few days outside the 28-day period requirement.

17. On the simple matter of dates, and notwithstanding that the time gap was marginal, the Tribunal accepts the Respondent’s contention that the application for reinstatement was made out of time and the Applicant provided no evidence to the contrary.

18. The Tribunal appreciates that the Applicant speaks only limited English and has required the assistance of interpreters. However, it is clear from the email sent from the Tribunal Registry to the Applicant on 17 April that the Tribunal had made appropriate efforts to support and guide the Applicant. Firstly, they sent an urgent email reminder to him on 17 April and later that day discussing his application with him on the telephone. The Applicant, meanwhile, had provided a medical certificate and hospital discharge papers to the Tribunal, further indication that the Applicant had a clear apprehension of the steps he was required to take in seeking reinstatement. Despite the urgency applied to his application by the Tribunal Registry, the Applicant did not make his written application for a further 11 days, on 30 April 2024, and then provided only two, simple sentences:

    HI IM VERY SORRY THE INSIDENT BECAUSE IM VERY SICK THAT TIME IM IN HOSPITAL. PLEASE MAY I REQUEST REINSTATE MY CASE

19. However, relying on contemporaneous file notes, the Respondent made the point that the Applicant was able to take telephone calls in hospital because, following the case conference on 19 March 2024 which the Applicant had failed to attend, the solicitor for the Respondent had contacted him successfully in hospital and reinforced the importance of answering telephone calls from the Tribunal. 

20. The Tribunal considers that the Applicant’s two sentence email of 30 April detailing his request for reinstatement, as cited, was not one which required significant effort by the Applicant and could well have been written and provided within the 28-day period.

21. The Tribunal finds, on the balance of the evidence provided, that the application for reinstatement was made out of time. However, as explored in Mori, this is not the end of the matter. In Mori, Foster J considered that reinstatement in these circumstances could only be made under s 42A(10) in the case of error. As explored in James and Comcare (Compensation), errors should not be taken to be an unwise decision on the part of an Applicant, and certainly a “deliberate decision” would not be considered an error. Citing Goldie v Minister for Immigration and Multicultural Affairs, in James it is accepted that there is no “qualification or limitation on the word error”, meaning that the word should be applied in its natural sense to be something of an administrative or legal “mistake” which need not even attach fault. While it is always possible that there was a mistake made at some point in these proceedings, in the absence of any submissions from the Applicant, the Tribunal also finds there is no evidence of any errors on the part of either party or the Tribunal which would justify reinstatement.

22. The Applicant’s failure to attend hearings and case conferences was also not limited to his period of hospitalisation, noting that even during that period, he had been able to speak with the Respondent’s solicitor on one occasion, notwithstanding many other calls from the Tribunal which he did not take or respond to later during his hospitalisation.  He also failed to appear at the reinstatement hearing of 16 May 2024, listed at his request and with his knowledge and following appropriate advice from the Tribunal. This was after his discharge from hospital. The Applicant had been provided with the Respondent’s written outline of submissions in advance of that hearing, in which the Respondent provided further evidence to support the contention that the reinstatement application be dismissed. The Applicant did not respond or provide additional evidence with respect to those submissions and then, despite having an interpreter again available, failed to appear at the hearing without prior advice to the Tribunal and the Respondent.

23. Considering the evidence as a whole and consistent with the conclusions of the AATA in James and Comcare (Compensation) and Mori, the Tribunal accepts the Respondent’s contention that although the Applicant had been hospitalised for part of the period in question, noting that the hospitalisation only applied until 4 April, that even that during that time, the Applicant had been able to receive and respond to the Respondent’s solicitor. In particular, the Applicant’s failure to appear at the reinstatement hearing listed at his request, without explanation of that failure or attempt to advise the Tribunal at any stage to date, suggests this Applicant had not accepted the importance of adhering to the requirements of the Act and did not provide evidence or explanation which would suggest special circumstances applied.

24. The Tribunal finds, on the balance of the evidence provided, that there are no special circumstances which would warrant reinstatement.

25. The Tribunal is acutely conscious that the Applicant may well be a very unwell middle-aged man, struggling with a range of illnesses and emerging illnesses, which, in combination with his evident difficulties understanding and speaking English, must make processes of this nature challenging and even overwhelming for him. However, the processes of legal application, as set down in the AAT Act, are there to provide order, administrative efficiency and fairness to all parties and accordingly, should be adhered to by all parties. Therefore, the Tribunal accepts the Respondent’s contention that the Applicant’s repeated failure to appear at the case conferences and directions hearings previously identified, or to communicate in a timely way with either the Respondent or the Tribunal, has, consistent with Guan and Australian Securities and Investments Commission, not been helpful to the Tribunal in determining this dispute.

    CONCLUSION

26. Based on the findings outlined in the preceding paragraphs, the Tribunal concludes that the application for reinstatement was out of time and no evidence was provided of errors or special circumstances which might have allowed the Tribunal to grant an extension of time under s 42A(11) (b) of the AAT Act to hear the application.

27. In circumstances where the Tribunal has concluded that the application for reinstatement should be refused under s 42A(11) (a) of the AAT Act, it is not considered necessary to address the Respondent’s additional contention that the Applicant’s limited efforts to provide probative evidence of his medical conditions and functionality are not consistent with the objects of the Tribunal.

    DECISION

28. The application for reinstatement is refused under s 42A (9) of Administrative Appeals Tribunal Act 1975.

29.     I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward

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Associate

Dated:  24 May 2024