Reimund Peter and Secretary, Department of Social Services The Hon R J Groom AO (Deputy President) 7 January 2014 Hobart
[2014] AATA 2
[2014] AATA 2
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5294
Re
Reimund Peter
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
INTERLOCUTORY DECISION
Tribunal The Hon R J Groom AO (Deputy President)
Date 7 January 2014 Place Hobart The decision under review is affirmed.
[Sgd Hon R J Groom]
Deputy President
PRACTICE AND PROCEDURE – extension of time – length of delay – prospects of success – substantive application lacking in merit – application to extend time refused
Administrative Appeals Tribunal Act 1975, ss 29(2), 29(7)
Social Security (Administration Act) 1999, s 29(1)
Acts Interpretation Act (Cth), s 36
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Lucic v Nolan (1982) 45 ALR 411
Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535
Re Secretary, Department of Social Security and Hall (1992) 28 ALD 282
REASONS FOR INTERLOCUTORY DECISION
The Hon R J Groom AO (Deputy President)
7 January 2014
INTRODUCTION
On 12 September 2012 Mr Peter, who at all relevant times has resided in the Philippines, lodged a claim for the Australian Age Pension. On 14 November 2012 the claim was refused by Centrelink. This was because it was determined that he did not “… meet the Australian residential requirements for this payment”.
The original decision was reconsidered by an Authorised Review Officer who affirmed the decision. Mr Peter then applied to the Social Security Appeals Tribunal (“SSAT”) for a review of the decision. In its decision of the 30 August 2013 the SSAT affirmed the earlier decision.
Mr Peter now asks this Tribunal to review the decision refusing his pension claim. Unfortunately the application to the Tribunal was lodged after the 28 day time limit specified in section 29(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) had expired. He has now applied to extend the time for lodging an application for review pursuant to section 29(7) of the AAT Act.
BACKGROUND
Mr Peter was born in Germany. He lived and worked in Australia from 1963 until 1972. He then lived in the United States of America until 2008. Mr Peter now resides in the Philippines under an extended tourist visa. At the time he claimed the Australian age pension he was a resident of the Philippines.
As mentioned, the SSAT decision was made on 30 August 2013. It was posted to Mr Peter on 6 September 2013. It is not in dispute in these proceedings that the decision was received by Mr Peter on 16 September 2013.
In calculating the 28 day limitation period the date of receipt of the decision is excluded (see section 36 of the Acts Interpretation Act (Cth) and Re Secretary, Department of Social Security and Hall (1992) 28 ALD 282). The limitation period therefore commenced on the 17 September 2013 and concluded on the 28th day thereafter. The 28th day is Monday 14 October 2013. Mr Peter’s application for review was received in the Hobart Registry of the Tribunal on Tuesday 15 October 2013. That date appears on the “received” stamp indicating when the application was received by the Registry. The Tribunal finds that the application to the Tribunal was lodged the day after the 28 day limitation period had expired and was therefore out of time.
THE LAW
Section 29(7) of the AAT Act provides to the Tribunal a discretion to extend the time for lodging an application for review if the Tribunal is satisfied “it is reasonable in all the circumstances” to do so.
The AAT Act does not itself give any detailed guidance as to the matters to be properly considered when the Tribunal is considering whether to extend time. In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 the Federal Court distilled a number of principles which provide some guidance in the exercise of the discretion. These guiding principles are, in essence, as follows:
(a)Is there a satisfactory explanation for the delay?
(b)Is there any prejudice to the respondent occasioned by the delay?
(c)Does the application have merit?
(d)Considerations of fairness as between an applicant and other persons
SHOULD THE DISCRETION BE EXERCISED IN THIS CASE?
The application was lodged only one day out of time. The applicant was living overseas at the time he decided to apply for a review by this Tribunal. The Tribunal accepts that there is a satisfactory explanation for the delay.
The fact that the delay is short does not mean that an extension should automatically be granted. The prescribed period of 28 days in not to be ignored (see Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 and 550). It was said both in Hunter (at 348) and Lucic v Nolan (1982) 45 ALR 411 that it is the prima facie rule that proceedings outside the limitation period are not to be entertained. A one day delay cannot simply be overlooked. Proper considerations must still be given as to whether in all the circumstances it is reasonable to extend time.
The respondent readily concedes that there will be no prejudice to the Secretary if time is extended. Questions of unfairness to any other party or persons also do not arise as distinct considerations in this case.
Without question the principal matter for consideration is the apparent lack of merit in Mr Peter’s substantive application. As Fitzgerald J said in Lucic (at 417) a full investigation of the merits of a substantive application should not normally be attempted on an application to extend time however some apparent weakness in an applicant’s case may be properly considered when deciding whether to extend time.
The undisputed facts in this matter clearly indicate that the substantive application is lacking in merit. The granting in these circumstances of an extension of time would serve no useful purpose and indeed would cause the parties further pointless effort and expense.
Section 29(1) of the Social Security (Administration) Act (1999) (“the Administration Act”) provides as follows:
“(1) Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:
(a) is an Australian resident; and
(b) is in Australia.
(2) Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made”.
Section 30, 30A, 31, 31A, 31B and 32 have no relevance to this application.
As Mr Peter was not in Australia at the time he made his claim for the age pension the claim is taken not to have been made.
Under the Social Security (International Agreements) Act 1999 Australia has entered into agreements with a number of countries. These agreements override the provisions of the
Administration Act including the requirements of section 29 of that Act. It is sufficient for the making of a claim if the person is a resident of a country with which Australia has such an agreement or is then residing in a third country in which Australia has an agreement.The problem for Mr Peter is that Australia has no such agreement with the Philippines. There is, however, an agreement with Germany and also with the United States of America. But Mr Peter last resided in Germany in 1963. He has only visited that country twice since then. Mr Peter last lived in the United States of America in 2008. At the time he made the claim for the age pension Mr Peter was not residing in either Germany or the United States of America or in a third country with which Australia has an agreement.
Mr Peter has stated that he is “vehemently protesting against section 29(1) of the Administration Act”. He said he “should not suffer any penalty or mental trauma or anguish by virtue of the fact the claim was made when I was in the Philippines”.
As far as Mr Peter’s substantive application is concerned the Tribunal has no discretion simply to determine what it believes would be fair in all the circumstances. It is required by law to interpret and apply the relevant legislation as enacted by the Australian Parliament.
CONCLUSION
Mr Peter’s substantive application has no realistic prospect of success. The Tribunal therefore finds that it would not be reasonable in all the circumstances to grant an extension of time to lodge the application for review.
DECISION
The decision under review is affirmed.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the interlocutory reasons for the decision herein of The Hon R J Groom AO (Deputy President) [Sgd]
Administrative Assistant
Dated : 7 January 2014
Date(s) of hearing 5 December 2013 Applicant Appeared by telephone Solicitors for the Respondent Mr B Sparkes, Program Litigation and Review Branch
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