Rahimi and Secretary, Department of Social Services (Social services second review)

[2018] AATA 2109

Rahimi and Secretary, Department of Social Services (Social services second review) [2018] AATA 2109 (5 July 2018)

Division:GENERAL DIVISION

File Number:           2018/0435

Re:Reza Rahimi

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:5 July 2018

Place:Adelaide

The application for extension of time is refused.

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Senior Member B J Illingworth

CATCHWORDS

PRACTICE AND PROCEDURE – Application for extension of time – Application for Disability Support Pension – Consideration of principles which apply to extensions of time – Extent of delay – Whether there is a persuasive explanation for the delay – Whether Applicant rested on his rights – Whether there is merit in substantive application – Extension of time refused.

LEGISLATION

Social Security Act 1991

Administrative Appeals Tribunal Act 1975, s 29(7)
Social Security (Administration) Act 1999, Sch, Pt 2, cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Active Participation for Disability Support Pension) Determination 2014

CASES

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344

Brown v Federal Commissioner of Taxation (1999) 42 ATR 118
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Greenhow and Commonwealth Superannuation Corporation [2016] AATA 791
Thomas and Secretary, Department of Social Services [2016] AATA 1047
Comcare v A’Hearn (1993) 45 FCR 441
Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

REASONS FOR DECISION

Senior Member B J Illingworth

5 July 2018

1. This is an application by Mr Rahimi (the Applicant) who is seeking an extension of time within which to lodge an application for review in respect of the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT1) made on 5 May 2017 namely that the Applicant was not qualified to be paid Disability Support Pension (DSP) pursuant to the Social Security Act 1991 (the Act).

   THE FACTS

2. On 1 July 2016, the Applicant submitted a claim for DSP which was rejected by the Department on 1 September 2016, and on 21 December 2016 an Authorised Review Officer (ARO) affirmed the rejection.

3. On 20 January 2017, the Applicant applied to the AAT1 for a review of the ARO’s decision.

4. On 5 May 2017, the AAT1 affirmed the ARO’s decision which decision the Applicant received that day. The Applicant then had 28 days within which to apply for a review of the AAT1 decision, namely by 2 June 2017.

5. On 19 January 2018, the Applicant lodged with this Tribunal both an Application for Extension of Time for making an Application for Review Decision, together with the substantive Application for Review of the AAT1 decision. It was 231 days or in excess of seven months out of time.

6. At the interlocutory hearing of the application for extension of time, the Applicant appeared in person. He was supported by his wife. A Dari interpreter was also present. The Respondent was represented by Mr Morris.

7. This application was first listed before me for argument on 16 March 2018. For reasons that I do not need to detail, the application was adjourned, but before doing so I directed the Applicant’s attention to the Respondent’s outline of submissions and the issues that he would need to address on the application for extension of time. I explained to the Applicant the relevance of the qualification period with respect to the date upon which his qualification and impairment ratings must be determined.[1] I repeatedly urged the Applicant to seek legal advice or other assistance to enable him to properly present his argument. The matter was adjourned to 24 April 2018.

   [1] Social Security (Administration) Act 1999, Sch, Pt 2, cl 4(1).

8. On 24 April 2018, prior to the resumed interlocutory hearing, the Applicant lodged a bundle of documents relating to his various medical conditions. At the resumed interlocutory hearing, he advised that he had not obtained any legal advice and did not intend to do so. He said that he had spoken to his treating doctor (GP) and that he wished to proceed with the application for extension of time and the substantive application. The matter was set down for argument on the application for extension of time to be heard on 17 May 2018. I again urged the Applicant to reconsider obtaining advice because of the complexities of the matters that needed to be argued.

   THE LEGISLATIVE FRAMEWORK

9. Section 29(7) of the Administrative Appeals Tribunal Act 1975 allows the Tribunal to extend the time for the making of applications “if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.

10. In the case of Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 (Hunter Valley), Wilcox J sets out a number of non‑exhaustive criteria that can be taken as a guideline for the Tribunal’s determination of extension of time applications. The criteria can be summarised as:

    (a)Whether the Applicant has shown an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;

    (b)Whether the Applicant has rested on his rights and allowed the decision‑maker to believe that the matter has finally concluded;

    (c)Whether there has been any prejudice to the respondent as a result of the delay in the making of the application;

    (d)Whether the respondent or the general public would suffer any prejudice as a result of the granting of the extension of time;

    (e)Whether there is merit in the substantive application; and

    (f)More generally, the considerations of fairness as between the Applicant and other persons in a similar position.

11. I acknowledge that the decision in Hunter Valley was concerned with an extension of time in a different statutory context, namely under the Administrative Decisions (Judicial Review) Act 1977. However, I note that Hunter Valley has been cited with approval by numerous Tribunal decisions, although with the caveat that “[t]oo slavish” an adherence to the Hunter Valley guidelines should be avoided.[2] Indeed, as I understood the Respondent’s submissions, the Respondent contended that there were four criteria relevant for this application, which are:

    (a)The length of the delay;

    (b)The explanation for the cause of the delay;

    (c)Whether the Applicant rested on his rights in relation to this matter; and

    (d)The strength of the substantive application.

    [2]     Brown v Federal Commissioner of Taxation (1999) 42 ATR 118, 128 [41] (Hill J).

12. I agree with the Respondent’s submission. Accordingly, on 17 May 2018, I heard argument from the parties relating to these four criteria. The Applicant was at all times assisted by a Dari interpreter.

    THE APPLICANT’S SUBMISSIONS

    Reasons for delay

13. The Applicant said that:

    (a)He did not read or understand English and hence he did not understand from the correspondence he received at the relevant time that he had 28 days from the date of the AAT1 decision within which to review that decision.

    (b)His wife can read English but nonetheless they received a number of different letters from the Respondent at or about that time and she did not read the relevant correspondence carefully enough.

    (c)He was in regular contact with his GP. It was not until four to five months after the receipt of the decision that the fact of the decision came up in discussion with the GP. The Applicant showed the GP the correspondence from the AAT1, at which time the GP advised the Applicant that he was out of time to file an application for review.

    (d)It was about one to two months after that appointment with the GP that the Applicant filed the application for extension of time. There was no explanation for the additional delay, other than the suggestion in the Applicant’s extension of time application that he was “mentally too sick and depressed” about his health, which was also affecting his children.

    Whether the Applicant rested on his rights in relation to this matter

14. The Applicant made no submissions addressing this point and did not suggest that, at any point during the passage of the seven months or so, he had done anything to demonstrate an intent to assert his rights.

    The strength of the substantive application

15. The Applicant stated that:

    (a)At the time of the claim and the AAT1 review he suffered from a number of medical conditions, he was unable to work and he relied on his GP to provide the medical evidence. The Applicant said he believed the GP failed to refer to some of his medical conditions.

    (b)Because of the GP’s failure to refer to all of his medical conditions, the evidence before the AAT1 was incomplete.

    (c)With the assistance of the Applicant’s wife he further explained that he and his wife had recently obtained legal advice and they now understood that the Applicant’s current condition could not be taken into account and further, that it was the evidence of his medical condition in 2016 at the time of the filing of the claim that was to be considered. Both the Applicant and his wife mistakenly believed his current condition could now be taken into account.

    (d)He maintained his position that his medical condition in 2016 was not properly considered because that information was not put before the AAT1.

16. When invited to identify where within the relevant documents including those provided on 24 April 2018 there was evidence about his medical condition in 2016 that was not before the Tribunal, he responded that it was “very hard”, that “I cannot drive”, and that “I cannot read and go through old documents”. He was unable to identify any additional evidence.

17. When referred to the findings of the AAT1 and the impairment ratings of 5 and 10 points made in respect of Impairment Tables 3 and 4 respectively of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, the Applicant did not maintain that the ratings were incorrect. Nor did he maintain that he would have been entitled to an impairment rating of 20 points or more for any other medical condition from which he suffered in 2016 that was not considered by AAT1.

18. The Applicant did not suggest that he actively participated in a program of support within the meaning of the Act.

    CONSIDERATION

19. In Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) , Wigney J at [38] said “[i]n general the longer the delay, the more persuasive the explanation needs to be … The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for extension of time”.

20. I note that the principle elucidated in Tran is not confined to the specific legislation considered in that matter, as the general principle has been cited with approval in Greenhow and Commonwealth Superannuation Corporation [2016] AATA 791 at [24] and Thomas and Secretary, Department of Social Services (Social Services Second Review) [2016] AATA 1047 at [20]‑[21].

21. Having regard to the submissions by the Applicant, with respect to the lack of fluency in English and the Applicant’s mental health, I am not persuaded that these amount to an adequate or persuasive explanation for the delay of seven months in bringing the application for an extension of time. The Applicant was at all times assisted by his wife, who does read English, and very little explanation was given as to why it took over seven months for the Applicant to make the extension of time application. Similarly, it is not clear on the evidence before me that the Applicant’s mental health had much impact on the delay in the making of the application. Whilst I accept that an acceptable explanation for the delay is not a pre-condition for the granting of an extension of time,[3] I nevertheless note that the lack of such an explanation weighs against the Applicant.

    [3]     Comcare v A’Hearn (1993) 45 FCR 441, 444; Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 [20].

22. With respect to whether the Applicant rested on his rights, I make the observation that there is very little evidence before me that the Applicant asserted his rights in any meaningful manner during the passage of the seven months. This again weighs against the Applicant.

23. I have also reviewed the decision of the AAT1 to assess the merits of the applicant’s substantive application and to see if there was any demonstrable error that would give rise to a miscarriage of justice should the extension of time be refused.

24. The Applicant submitted that he had a number of medical conditions all of which were not referred to by the medical practitioner, and were not before the AAT1 for consideration. However the applicant has not provided any evidence of those additional conditions before this Tribunal.

25. The further medical evidence provided by the Applicant on 24 April 2018 predominantly relate to his developing and current medical condition, which is not a relevant consideration for this Tribunal. I also note that through the Applicant’s wife it was said that in 2016 a number of the Applicant’s various conditions had not been fully diagnosed, treated or stabilised.

26. Additionally, even if the Applicant cumulatively attracted 20 points from more than one table, in order to qualify for DSP, he would need to have actively participated in a program of support within the meaning of the Social Security (Active Participation for Disability Support Pension) Determination 2014. The Applicant did not suggest that he had done so and indeed the Respondent’s records indicate that he did not meet this requirement.

27. I am satisfied that there is no demonstrable error in the AAT1 decision and that the impairment ratings of 5 and 10 points for left knee arthritis, and ankylosing spondylosis and low back pain respectively were appropriate. No injustice would arise should the application for extension of time be refused. Having considered the totality of the merits of the Applicant’s substantial application, I find that it also weighs against granting an extension of time.

28. The Respondent submits that the remarks in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] are relevant, namely:

    Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application.

    The Respondent submits that an extension of time should be refused and the Applicant’s focus should be directed towards a fresh claim. I agree with that submission.

    DECISION

29. The application for extension of time is refused.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

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Administrative Assistant

Dated: 5 July 2018

Dates of hearing:	16 March 2018, 24 April 2018 and 17 May 2018
Applicant:	In Person
Solicitors for the Respondent:	Mr O H F Morris FOI and Litigation Branch Department of Human Services