Rubigny and Secretary, Department of Family and Community Services

[2002] AATA 1170

DECISION AND REASONS FOR DECISION [2002] AATA 1170

ADMINISTRATIVE APPEALS TRIBUNAL      )
  )           No Q2002/463
GENERAL ADMINISTRATIVE DIVISION          )        
           Re      LOUIS RUBIGNY   
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr R G Kenny, Member    

Date15 November 2002

PlaceBrisbane

Decision      The application for an extension of time is refused.     

.................…(Sgd)...................
  R G Kenny
  Member
CATCHWORDS
PRACTICE AND PROCEDURE – appeal from Social Security Appeals Tribunal – appeal lodged out of time – application for extension of time – relevant criteria – hearing in the absence of the parties

SOCIAL SECURITY – cancellation of mature age allowance

Administrative Appeals Tribunal Act 1975 ss 3(4), 29(1),(7)
Administrative Appeals Regulations 1976  reg 5(1)
Social Security Act1991 ss 1215(2), 1217(1)
Social Security (Administration) Act 1999 s 177

Hunter Developments Pty Ltd v Cohen (1984) 7 ALD 315
Re Knight and Comcare (1995) ALD 417
Re Purnell and Repatriation Commission (1991) 24 ALD 242.
Re Smith and Comcare (2001) 65 ALD 304

REASONS FOR DECISION

15 November 2002  Mr R G Kenny, Member                

Application

1. Louis Rubigny (the applicant) was in receipt of mature age allowance in accordance with the terms of the Social Security Act 1991 when, on 6 November 2000, a Centrelink delegate, on behalf of the Secretary of the Department of Family and Community Services (the respondent), determined that the allowance was no longer payable to him after 18 November 2000. That decision was affirmed by an authorised review officer on 12 November 2001 and, in turn, by the Social Security Appeals Tribunal (SSAT) on 6 March 2002.

2. On 29 May 2002, an Application for Review from the applicant was received by the Administrative Appeals Tribunal (the Tribunal) in relation to that decision. On the same day, an Application for Extension of Time for Lodging Application for Review of Decision from the applicant was also received by the Tribunal. 

3. In evidence were copies of various communications by letter and e-mail between the applicant and the Tribunal as well as between the applicant and Ms G Bolton, the principal solicitor of Welfare Rights Inc.
   Hearing

4. The Administrative Appeals Tribunal Act 1975 (the Act) makes provision for a hearing to be conducted in the absence of the parties. In that regard, section 34B of the Act reads:

   "34B  If:

   (a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and

   (b) the parties consent to the review being determined without a hearing;

   the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing."

1. It is not in dispute that the respondent has consented to the matter being dealt with in the absence of the parties.

2. The applicant resides in the Philippines and could not be contacted by telephone.  On 27 August 2002, the registry sent an e-mail message to the applicant which, in part, read:

   "If you consent, the Tribunal can deal with your application 'on the papers'. This means that no-one would be required to attend a hearing …"

3. On the same day, the applicant responded by e-mail message and said:

   "Thank you for your message of 27 August 2002. I accept your suggestion as I believe that it will simplify proceedings. I am then awaiting Centrelink arguments. Please provide the S.S.A.T. decision to Welfare Rights and I will also be awaiting their advice."

4. On 20 September 2002, Welfare Rights Inc advised the applicant that they were not able to provide him with any further advice or assistance with his application. On 7 October 2002, the applicant wrote to the Tribunal stating:

   "Please collect whatever material you can. I give up, which is the aim of the system, I believe. I can't spend any more on internet and postage for such a result…"

5. On 25 October 2002, the Tribunal again contacted the applicant by e-mail advising that if nothing was heard from him by 1 November 2002, the matter would proceed in the absence of the parties. In the absence of a response and in accordance with the terms of section 34B of the Act, I am satisfied that it is appropriate to proceed in the absence of the parties.
   Issues and Legislation

10. The Act makes provision for the means by and the time within which an application for review of a decision is to be made. This is in section 29 of the Act which, in so far as relevant in this matter, reads:

"(1) An application to the Tribunal for a review of a decision:

(a) shall be in writing; and

(b) may be made in accordance with the prescribed form; and

(c) …

(d) if the terms of the decision were recorded in writing and set out in a document that was furnished to the applicant … shall be lodged with the Tribunal within the prescribed time.

(2) Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:

(a) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is furnished to the applicant…"

11. The Act also makes provision for that 28 day period to be extended and sub-section 29(7) reads:

"The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section)."

12. The decision which the applicant wanted reviewed was that of the SSAT, which heard the matter on 6 March 2002, which made its decision on that day, and which published its decision and associated reasons for its decision at some time after 20 March 2002 on which date the presiding member in the SSAT signed the reasons for the decision. In his Application for Review, the applicant advised that he received that decision at his address in Cebu City, in the Philippines, on 5 April 2002. However, a letter, dated 3 April 2002, from the applicant was received in the Tribunal registry on 22 April 2002 and, in that letter, the applicant identified the SSAT decision and requested that the Tribunal send him a "review application form". The Tribunal responded on 22 April 2002 with a letter referring to an enclosed Application for Review and advised the applicant that he should complete and return it as soon as possible. The completed Application for Review is dated 15 May 2002 and, as noted above, was received by the Registry of the Tribunal on 29 May 2002.
13. The SSAT decision set out the findings on material questions of fact and the reasons for its decision and, therefore, the period prescribed in accordance with paragraph 29(1)(d) of the Act ended on the twenty-eighth day after that decision was furnished to the applicant. Sub-section 3(4) of the Act makes provision for the time when a document is deemed to have been furnished on a person. It reads:

"(4)For the purposes of a reference in this Act to the furnishing to a person of a document or statement, or the service on or giving to a person of a notice or other notification:

(a) a document or statement shall be deemed to be furnished to a person, or a notice or other notification shall be deemed to be served on or given to a person, as the case may be, if it is posted to the person by a pre-paid letter:

(i)where the document, statement or notice or other notification relates to a proceeding and the person has furnished an address at which documents in relation to the proceeding may be served—to that address; or

(ii)…

and

(b) a document or statement so posted shall be deemed to have been furnished, and a notice or other notification so posted shall be deemed to have been served or given, unless the contrary is proved, at the time when the document, statement or notice or other notification would have been delivered in the ordinary course of post."

14. Although, in his Application for Review, the applicant nominated 5 April 2002 as the date of receipt of the decision, his letter of 3 April 2002 indicates that he was in receipt of the decision on that day. In this case, I am satisfied that the SSAT decision was furnished on the applicant by 3 April 2002 and that the prescribed time for making the application ended by 1 May 2002.
15. The application for review of a decision must be in writing and, for that purpose, Form 1 is prescribed in sub-reg 5(1) of the Administrative Appeals Regulations 1976. However, it is not mandatory that the prescribed form be used: see Re Purnell and Repatriation Commission (1991) 24 ALD 242. In that sense, the letter received on 22 April 2002 did make reference to the SSAT decision and, prima facie, may well have been sufficient to comprise an application. However, the application is required to provide a statement of reasons and, although a detailed statement is not required (see Re Knight and Comcare (1995) ALD 417 at 425), there needs to be some reference to the basis for challenging the decision and this was not done in the letter of 3 April 2002. Accordingly, I am satisfied that the letter received on 22 April was not an application in accordance with sub-section 29(1) of the Act.
16. I am satisfied that the document which constitutes the Application for Review in this matter was that received on 29 May 2002 and I am also satisfied that it was not lodged with the Tribunal within the prescribed period of twenty-eight days. I am also satisfied that the applicant has sought an extension of time in writing as required by sub-section 29(7) of the Act. Accordingly, the issue for the Tribunal is whether that period should be extended in accordance with that provision.
Consideration
17. In Hunter Developments Pty Ltd v Cohen (1984) 7 ALD 315, Wilcox J referred to the factors that are to be taken into account in deciding whether or not to exercise the discretion to grant an extension and, although that case was concerned with an extension of time to lodge an application to the Federal Court under paragraph 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977, those factors are usually relied on as being relevant to the operation of sub-section 29(7) of the Act. In Re Smith and Comcare (2001) 65 ALD 304 at 307, the factors were summarised in the following way :

• "proceedings should not be commenced outside the prescribed time and to do so the applicant must offer an acceptable explanation for the delay and must demonstrate that the grant of an extension would be fair and equitable in the circumstances;

• action taken by the applicant, apart from making the application for review, which is relevant to the question of whether an acceptable explanation has been provided;

• any prejudice to the respondent;

• any unsettling of persons other than the respondent, or of established practices;

• the merits of the application for review;

• considerations of fairness between the applicant and other persons in a similar position."

18. The respondent provided a written submission in which it opposed the granting of an extension of time on the bases that the applicant had been made aware of the 28 day period in the correspondence forwarded to him with the SSAT decision and also because he had little prospect of succeeding with his substantive case.
19. Whilst the respondent has asserted that the applicant was aware of the 28 day time limit for lodging his application for review, the documentation which advised him of that period were not in evidence. Nevertheless, the SSAT is obliged by section 177 of the Social Security (Administration) Act 1999 to so advise the applicant and I am satisfied that this would have been routinely done in this case. In support of that finding, I note that the applicant has not indicated that he was unaware of the time limit. Moreover, his letter of 3 April 2002 to request an Application form indicates some awareness of and willingness to meet the relevant deadline.
20. In his application for an extension, he nominated the reason for being out of time as "postal delays due to my location overseas". In its written submission, the respondent said:

"The respondent acknowledges that there was only short delay by Mr Rubigny in lodging his appeal so has no issue in relation to resting on his rights, the length of the delay or in relation to prejudice."

21. The period of time between when the applicant received the SSAT decision on 3 April 2002 and when he completed the application for review on 15 May 2002 was some 42 days. There is no evidence before me to indicate the time that it would take in the normal course of post for a letter to pass between Brisbane and Cebu City in the Philippines. In relation to the applicant's letter to the Tribunal requesting an application form, there are 19 days between the date on the letter and the date it was received in the Tribunal. In relation to the Application for Review, there are 14 days between the date on the document and the date it was received in the Tribunal. Whilst I accept that those times do not necessarily coincide with the time for normal postal delivery, they indicate that there was some inevitable delay incurred in corresponding with the Tribunal. Any such period of delay could not be sufficient to explain the 42 days between being furnished with the SSAT decision and receipt of the Application for Review by the Tribunal. However, during that period, there was an exchange of letters between the applicant and the Tribunal and I accept that it was reasonable for the applicant to write to the Tribunal for the application form and that this goes some way to explaining the overall delay of 42 days.
22. The applicant's letter of 3 April 2002, in addition to requesting an application form, also referred to his wish to avail himself of legal support and he requested the Tribunal to provide him with advice about this. In its response, the Tribunal referred the applicant to information about Welfare Rights Inc and, although there is no record of any correspondence between the applicant and Welfare Rights before 24 July 2002, the reference by the applicant, in his letter to the Tribunal, of the desire for legal assistance along with the request for the application form leaves me satisfied that there was action taken by the applicant, apart from making the application for review itself, which indicated an interest in continuing with his application.
23. I am satisfied that, if an extension were granted in this matter, there would be no substantial degree of prejudice to the respondent; no unsettling of others or of established practices; and no adverse considerations of fairness between the applicant and other persons in a similar position. The final matter for consideration, therefore, is that of the merits of the application for review.
24. The qualifying criteria for mature age allowance are set out in part 2 of the Social Security Act 1991 and that Act also makes provision for the payment of the allowance, including in the situation where a recipient no longer is resident in Australia. In that regard, sub-section 1215(1) of that Act provides that some allowances, including the mature age allowance, may continue to be paid during a period of portability and sub-section 1217(1) of that Act sets the maximum length of that period of portability. Those provisions read:

"1215(1) If the person's maximum portability period for the payment is not an unlimited period, the following rules apply:

(a)throughout the person's portability period for the payment, the person's right to continue to be paid the payment is not affected merely by the absence;

(b) throughout so much (if any) of the period of absence as occurs after the end of the person's portability period for the payment, the payment is not payable to the person.

…
"1217(1) The person's maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:

(a) the payment (as specified in column 2 of the table); and

(b) the class of persons to which the person belongs (as specified in column 3 of the table)."

25. The table nominated in that latter provision prescribes a maximum portability period, during which the allowance may continue to be paid, of 26 weeks. This means that, after a recipient is outside Australia for more than 26 weeks, mature age allowance is no longer payable to that person. It was on that basis that the decision of Centrelink and of the SSAT were made. Reliance was placed on evidence that the applicant was absent from Australia and living in the Philippines from 20 October 1999 to 14 April 2000, from 20 May 2000 until to 14 November 2000 and from early December onwards, and that he married in the Philippines on 23 October 2000.
26. In correspondence which is on the applicant's file, in particular a letter written on 2 September 2002, it is apparent that he does not dispute the decision insofar as it relates to his absence from Australia. There, he said:

"While Centrelink might have made the correct decision in regard to my absence from Australia, this IS NOT the basis of my complaint."

27. Rather, his concern is with the conduct of and advice given by certain Centrelink staff. That is also revealed in the reasons given by him in his Application for Review where he said that he had not been given "all relevant information regarding the implications of my stay overseas".
28. The terms of sub-sections 1215(2) and 1217(1) of the Social Security Act 1991 are unambiguous. They do not admit of the prospect of a discretion being exercised to extend the period of portability. The applicant has not disputed the length of his absence from Australia and I am satisfied that it is inevitable that his application to review the decision of the SSAT will be unsuccessful.
29. Whist the evidence goes some way to explaining the late application in this case, there are no prospects of a successful outcome on the substantive issue. Indeed, the reason for delay is one that is related to the substantive issue itself because the mail delay was due to the fact that the applicant is living outside of Australia. In all of the circumstances of this case, I am satisfied that leave should not be given for an extension of time to lodge the Application for Review.
Decision
30. The application for extension of time is refused.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed:         Denise Burton
  Administrative Assistant

This Matter was Heard on the Papers
Date of Decision  15 November 2002

The Applicant was Self-Represented
Solicitor for the Respondent    Mr R McQuinlan, Departmental Advocate