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

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
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.
On 20 January 2017, the Applicant applied to the AAT1 for a review of the ARO’s decision.
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.
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.
At the interlocutory hearing of the application for extension of time, the Applicant appeared in person. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

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

CaseChat Overview and Summary

This matter concerned an application by Mr Rahimi (the Applicant) for an extension of time to lodge an application for review of a decision made by the Administrative Appeals Tribunal (AAT) on 5 May 2017. The AAT had affirmed a decision that the Applicant was not qualified to receive a Disability Support Pension. The Applicant lodged his application for extension of time and the substantive application for review some 231 days, or over seven months, out of time. The Respondent was the Secretary, Department of Social Services.

The primary legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant the Applicant an extension of time to lodge his application for review, pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975. This required the Tribunal to consider the extent of the delay, whether there was a persuasive explanation for the delay, whether the Applicant had rested on his rights, and the merits of the substantive application.

The Tribunal considered the principles established in cases such as *Tran v Minister for Immigration and Border Protection*, which hold that the longer the delay, the more persuasive the explanation must be. While acknowledging the Applicant's submissions regarding a lack of English fluency and mental health concerns, the Tribunal was not persuaded that these provided an adequate or persuasive explanation for the seven-month delay, particularly as the Applicant was assisted by his wife, who reads English. The Tribunal also found little evidence that the Applicant had actively asserted his rights during the period of delay. Furthermore, upon reviewing the merits of the substantive application, the Tribunal noted that the Applicant had not provided evidence of additional medical conditions that were not considered by the AAT, and that the medical evidence provided related to current conditions rather than those at the time of the original decision.

The Tribunal agreed with the Respondent's submission that if a medical condition has progressed since the time of the original application, the appropriate course is for the applicant to make a fresh claim. Accordingly, the Tribunal refused the application for an extension of time.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 The application for extension of time is refused.

Ratio Decidendi

Legal Principle Established

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