Rajah Farhat and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 38

[2012] AATA 38

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/5524
Re	Rajah Farhat
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	24 January 2012
Date of written reasons	25 January 2012
Place	Sydney

Decision Summary

For reasons given orally at the hearing on 24 January 2012, the application for reinstatement or for an extension of time to lodge a new application is denied.

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

Senior Member JF Toohey

Catchwords - PRACTICE & PROCEDURE – disability support pension – application for review withdrawn – application dismissed – second application lodged – whether power to reinstate application – no error apparent in dismissal – application could not be reinstated – whether applicant could make a fresh application – whether extension of time should be granted to lodge fresh application – no prospect of success of substantive application – extension of time refused

Legislation

Administrative Appeals Tribunal Act 1975

Social Security (Administration) Act 1999

Cases

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652
Hunter Valley Developments v Cohen (1984) 3 FCR 344
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537

Secondary Materials

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REASONS FOR DECISION

Senior Member J F Toohey

25 January 2012

1. At a hearing on 24 January 2012, the Tribunal decided that Mrs Rajar Farhat should not be granted an extension of time to lodge a fresh application for review of a decision to refuse her claim for disability support pension (DSP). 

2. These written reasons reflect the decision and reasons delivered orally at the hearing.

   Background

3. Mrs Farhat applied to Centrelink for a disability support pension (DSP) in September 2010.  Centrelink decided she did not qualify for the DSP.  On 3 March 2011, the Social Security Appeals Tribunal (SSAT) affirmed that decision.

4. On 24 March 2011, Mrs Farhat applied to this tribunal for review of the SSAT’s decision.  Then, at a telephone conference on 19 October 2011, she said, through her daughter, that she did not wish to proceed with her application.  She subsequently signed a “Notice of withdrawal” confirming that she did not wish to proceed with her application.

5. On 26 October 2011, the Tribunal wrote to Ms Farhat confirming receipt of her withdrawal that her application had been finalised by being dismissed on 26 October 2011. 

6. On 21 December 2011, Ms Farhat lodged a further application for review of the SSAT’s decision.  The Secretary says, and I agree, that her application should be treated as an application for reinstatement or for an extension of time to lodge a fresh application.  

   The issues

7. Ms Farhat’s application raises the following questions:

   (i)can her application can be reinstated;

   (ii)if not, can she lodge a fresh application;

   (iii)if she can lodge a fresh application, should be she granted an extension of time to do so.

   Can the application be reinstated

8. Section 42 A of the Administrative Appeals Tribunal Act1975 (the AAT Act) concerns the discontinuance, dismissal and reinstatement of applications. Sections 42 A (8), (9) and (10) concern reinstatement of an application.

9. Sections 42A (8) and (9) concern reinstatement of an application after dismissal under s 42A (2) of the AAT Act for failure by the applicant to appear before the Tribunal. In such cases, the applicant has 28 days to apply under s 42A (8) for reinstatement of the application, and the Tribunal may reinstate the application if it considers it appropriate to do so.

10. As Mrs Farhat’s application was not dismissed under s 42 (A) (2), the power in s 42A (9) is not enlivened.

11. An application may also be reinstated under s 42 A (10), which provides:

    If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

12. The meaning of dismissed in error was considered in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652. Before Goldie, there had been differing views as to whether s 42 A (10) was limited to an administrative error on the part of the Tribunal. In Goldie, the Full Federal Court decided that the term dismissed in error concerns any error in the application of s 42 A that leads to a dismissal.

13. According to Mrs Farhat’s daughter, at the telephone conference they discussed with the conference registrar the kinds of medical evidence they would need in order to establish a claim for a DSP. They also discussed the possibility of Mrs Farhat lodging a fresh application with Centrelink after she had obtained further medical reports.  In that context, Mrs Farhat withdrew her application.  They did not know what to do next and so lodged the second application for review.

14. Although it appears that Mrs Farhat and her daughter found the proceedings confusing, there is nothing to suggest that the Tribunal dismissed Mrs Farhat’s application in error, administrative or otherwise. It follows that her application cannot be reinstated under s 42 A (10).

    Can Mrs Farhat lodge a fresh application

15. If a proceeding is dismissed it is taken to be concluded unless it is reinstated by the Tribunal,: s 42 A (6). Proceeding includes an application to the Tribunal for review of a decision: s 3. As Mrs Farhat’s application cannot be reinstated, for the reasons outlined above, that proceeding is taken to be concluded.

16. That said, the fact that a proceeding is concluded does not of itself seem to preclude a fresh application: see ReMulheron and Australian Telecommunications Corporation (1991) 23 ALD 309; Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537 at 544.

17. I do not propose to deal further with this question because, even allowing that a fresh application can be made, I am not satisfied, in all the circumstances, that it would be reasonable to grant Ms Farhat an extension of time in which to do so.

    Would an extension of time be reasonable in all the circumstances

18. As a general rule, an application for review must be given to the Tribunal no later than 28 days after an applicant has been given a reviewable decision: s 29 (2) of the AAT Act. The Tribunal may extend the time for making an application if, in all the circumstances, it is satisfied that it is reasonable to do so: s 29 (7).

19. In Hunter Valley Developments v Cohen (1984) 3 FCR 344, Wilcox J described at 348-349 the factors which guide the discretion to extend time as follows:

    (a)       whether there is an acceptable explanation for the delay;

    (b)whether the applicant rested on their rights or made the decision-maker aware they contest the finality of the decision;

    (c)       any prejudice to the respondent;

    (d)public considerations including the unsettling of others and established practices;

    (e)       the merits of the substantive application;

    (f)        fairness between the applicant and others in a like position; and

    (g)       whether it is fair and equitable in all the circumstances to extend time.

20. The decision under review was made on 3 March 2011.  Mrs Farhat’s second application for review was lodged on 21 December 2011, eight months or so after the 28 days during which she had to lodge an application for review.  Even allowing that, up until 19 October 2011, she was pursuing her first application, two months went by before she lodged her second application for review.

21. I accept that Mrs Farhat finds the proceedings confusing and this contributed to the delay in lodging her second application.  However, I am not satisfied, in all the circumstances, that it is reasonable to grant the extension of time. 

22. Mrs Farhat’s substantive application has no real prospect of success.  Her application for a DSP was refused because her medical conditions were not fully treated and stabilised, meaning they could not be given the rating necessary to qualify for a DSP.  In particular, her back condition, which is the most serious of her conditions, was not considered to be fully treated.  At the time of the Tribunal conference in October 2011, she was still having cortisone injections and, in about November 2011, her doctor recommended surgery.  Her application could only succeed if she qualified for a DSP at the date of her application in September 2010 or in the following 13 weeks: Social Security (Administration) Act 1999, ss 41, 42; sch 2 cl 4 (1). 

23. Mrs Farhat is in a difficult position.  Her husband apparently does not want her to have surgery because he thinks it would not help and would cause her unnecessary stress and strain.  In any event, it is clear that, when she applied for the DSP in September 2010, not all treatment options had been explored.  A recent medical certificate which Mrs Farhat produced to the Tribunal today does not help with the question the Tribunal would have to decide if she were granted the extension.

24. There would not be serious prejudice to the Secretary if the extension were granted.  However, finality of decision-making is an important consideration and there are sound policy reasons for not allowing parties to withdraw an application and make a fresh application without very good reason.  I am not satisfied that there is any good reason in this case or that it is reasonable to grant an extension of time.

I certify that the preceding 24 (twenty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member JF Toohey.

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

Associate

Dated 25 January 2012

Date(s) of hearing	24 January 2012
Applicant	In person
Solicitors for the Respondent	Bernard Slattery