Sharma and Secretary, Department of Social Services (Social services second review) - [2020] AATA 3443

Sharma and Secretary, Department of Social Services (Social services second review) [2020] AATA 3443 (7 September 2020)
Division:GENERAL DIVISION
File Number(s): 2020/4516
Re:Sushila Sharma
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:7 September 2020
Place:Sydney

The application for an extension of time to lodge an appeal against the reviewable decision of the AAT1 dated 15 June 2018, which was lodged on 27 July 2020, is refused.
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Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – whether there is an acceptable explanation for delay – whether Respondent is prejudiced by delay – whether Applicant rested on her rights – considerations of fairness between Applicant and others in a similar situation – whether substantive application has merits – carer payment – whether it is reasonable in all the circumstances to grant the extension – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 29(7), 42A
CASES
Bennett v Secretary, Department of Employment, Education and Workplace Relations [2009] AATA 1002
BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Gildersleeve v Secretary, Department of Social Services [2019] AATA 2955
Hillman v Australian Postal Corporation (Compensation) [2017] AATA 1411
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra v Krakouer (1998) 195 CLR 516
Jamal v Secretary, Department of Social Services [2018] FCA 513
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
Manoli v Secretary, Department of Social Security [1994] 35 ALD 133
Mulheron v Australian Telecommunications Commission [1991] 23 ALD 309.
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110
Parker v The Queen [2002] FCAFC 133
Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109
Pohahau v Minister for Home Affairs [2019] FCA 1243
White v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712
Zablotsky v Secretary, department of Social Services [2019] AATA 4367
REASONS FOR DECISION
Chris Puplick AM, Senior Member
7 September 2020

This is an application by Ms Sushila Sharma (the Applicant) for an extension of time (EOT) to lodge a new claim for a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) which she had previously withdrawn.
The Applicant, in making her EOT application, framed her request as being one to “reopen” her original application.[1]
[1] Applicant’s Extension of Time application (18 July 2020) page 2.
The Secretary, Department of Social Services (the Respondent) opposed both an extension of time being granted in this instance and, in the alternative, took the application to be one for reinstatement of the original application, which was also opposed.
Background[2]
[2] Details are taken from the Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 3 June 2019.
On 16 September 2009 the Applicant applied for a carer payment on behalf of her daughter. The claim took some time to resolve due primarily to the failure of the Applicant to provide the Department with some relevant information which the Department required in order to assess the claim. In due course, the claim was granted on 5 January 2010, backdated to 7 September 2009.
The rate of carer payment was calculated on the basis that the Applicant’s combined annual income was $10,783.28. This was based upon information supplied by the Applicant to the Respondent. In giving that information, the Applicant advised that she and her husband had a primary home but that they did not have any other properties or unstated income.
When the carer payment was granted, the Applicant was advised by the Respondent that she needed to inform them of any changes in her income or asset situation and that her payment would cease if her assets were found to exceed the then allowable limit of $283,486.00.
There was a small hiatus in the Applicant’s payments between 30 November 2011 and 7 December 2011 due to the Applicant’s failure to provide updated information to the Department. Payments resumed on that latter date.
On 9 April 2016 the Department received a “tip off” that the Applicant and her husband had a substantial and undisclosed property portfolio. In May 2016, this led the Department to undertake an investigation of the Applicant’s circumstances. During the course of interviews with the Department, the Applicant initially denied and then later conceded that they were the owners of five properties other than the family home.
The initial investigation triggered the suspension of the Applicant’s payment on 6 May 2016 and its eventual cancellation on 2 September 2016.
On 25 November 2016 the Department assessed that the Applicant had been overpaid carer payment in the period from 7 September 2009 to 2 May 2016 in the amount of $102,427.87, which it sought then to recover as a debt due to the Commonwealth. At the request of the Applicant, this calculation was reassessed by an Authorised Review Officer (ARO) of the Department who confirmed the assessment on 9 August 2017.
The Applicant then appealed that decision to the AAT1 which heard the matter over two days (27 March 2018 and 6 June 2018) which allowed the Applicant to tender certain material before it.
On 15 June 2018 the AAT1 made its decision which confirmed that the Applicant had a debt to the Commonwealth but remitted it to the Respondent to recalculate that debt in line with its specific findings, the details of which are not relevant in this instance. The AAT1 also confirmed a determination of the Department that the Applicant was, at all relevant times, a member of a couple for the purpose of the social security legislation.
On 30 July 2018 the Applicant lodged an appeal for a second-tier review of the AAT1 decision,[3] but on 3 July 2019 withdrew that application due to “family issues”.[4]
[3] Matter 2018/4271.
[4] Applicant’s Application for Second Review of Decision (18 July 2020).
In the meantime, the Department, acting upon the directions of the AAT1 recalculated the Applicant’s debt and determined it to be a recoverable debt of $102,707.13. Arrangements were put in place for the Applicant to commence a series of repayments by way of deductions from her sons’ disability support pension payments.[5]
[5] Evidence to this effect given in oral testimony before the Tribunal on 19 August 2020.
The matter rested until 17 February 2020 when the Applicant made contact with the Tribunal registry to ask that her claim for a review of the AAT1 decision be reinstated. She was advised to fill out a new application form and to submit an EOT application. The Applicant then made a formal request, sometime in March 2020 (by post) for her matter to be reinstated. The Tribunal does not appear to have acted upon that immediately and, after she followed up with an inquiry to the status of the matter,[6] the Applicant also lodged an EOT application on 27 July 2020.
[6] Applicant’s email to Tribunal Registry dated 6 May 2020.
The Respondent notified the Tribunal of its objection to both a grant of an EOT and any implied grant of reinstatement and the matter was heard by the Tribunal on 19 August 2020. The hearing took place with all parties on the telephone due to the COVID-19 restrictions imposed upon Tribunal operations, but the Tribunal is satisfied that both parties were accorded procedural fairness in terms of their ability to present their arguments.
One or two applications
As will be explained, this matter must be treated solely as an EOT application under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) as the Applicant herself is barred by other provisions of that Act from bringing an application for reinstatement of the proceedings, although the Respondent has taken this as an application for both an EOT and as an application for reinstatement of proceedings.[7]
[7] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [17] – [39].
“Reinstatement” application
Reinstatement applications may be made to the Tribunal under section 42A of the AAT Act. It provides:
Application for Reinstatement
(8) If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8A) If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8B) For the purposes of subsections (8) and (8A), the period is:
(a) 28 days after the party receives notification that the application has been dismissed; or
(b) if the party requests an extension--such longer period as the Tribunal, in special circumstances, allows.
(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10) 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.
There is a degree of uncertainty about the extent of the Tribunal’s powers to reinstate matters which it has dismissed.
The Applicant’s withdrawal of her application on 3 July 2019 took place in accordance with section 42A(1A) of the AAT Act:
(1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
This causes the dismissal of the matter under section 42A(1B):
(1B) If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision.
Once a matter is dismissed under section 42A(1B), the Applicant is then prevented, under section 42A(8), from seeking to reinstate the matter.
Although section 42A(8A) empowers an applicant to seek the reinstatement of a dismissed matter, this applies only to matters dismissed under section 42A(2) which itself relates only to dismissals where a party fails to appear at a hearing. That is not the case in this instance.
Leaving for a moment the question of section 42A(9), it is also clear that section 42A(10) is not applicable in this instance as there is no suggestion that the original application was dismissed in error.
Reverting to section 42A(9), the question becomes whether or not the section is entirely contingent upon the requirements in the preceding section 42A(8A).
In Gildersleeve, the Tribunal held that sections 42A(8) and section 42A(9) “are to be read together with the effect that the power to reinstate an application under s 42A(9) is only enlivened where the application has been dismissed under s 42A(2).[8]
[8] Gildersleeve v Secretary, Department of Social Services [2019] AATA 2955 [18].
This interpretation was specifically not followed by the Tribunal in Zablotsky[9] where an application was reinstated under section 42A(9) without reference to sections 42A(8) or 42A(2). That case was unusual in that the matter before the Tribunal involved two parties who were both challenging the same decision, although each seeking different outcomes. Both were proceeding within the framework of the application for review having been initiated by one of the parties only. The Tribunal held in Zablotsky that the initiating party’s withdrawal could not be allowed to prejudice the continuing interests of the other party and that the latter’s reinstatement application should be allowed in order to continue proceedings which were already on foot without that party having to go through the more complex path of making an EOT application to reopen the whole matter de novo. It held that this was consistent with the specific objectives of the AAT Act to ensure a “fair, just, economical, informal and quick” (s 2A(b)) outcome of applications.
[9] Zablotsky v Secretary, Department of Social Services [2019] AATA 4367.
The essential facts in Zablotsky are thus distinguishable from this application in that there is no case currently on foot and there are not two parties both seeking the decision under review to be set aside and different determinations made.
In any event, even if section 42A(9) were to be the chosen route to re-enliven proceedings, it would not have effect unless the Tribunal were satisfied that it would “appear to be appropriate in the circumstances.”
Applications for extension of time
The Tribunal is bound by court authority as to a range of factors which it should take into account in deciding whether or not to grant EOT applications.
Time limits are important for the reasons outlined by McHugh J in the High Court case of Brisbane South Regional Health Authority v Taylor. His Honour gave four reasons why such limitations are an important part of the legal process. His Honour noted that:
…First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
…The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.[10]
[10] (1996) 186 CLR 541, 552-553. Footnotes and citations omitted.
While acknowledging that applications received out of time will generally not be accepted, it is also generally accepted that the “checklist” outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[11] (Hunter Valley) should be taken as the guide by this Tribunal in determining EOT matters.
[11] (1984) 3 FCR 344, 348-349.
That list provides as follows:
(a)an applicant must show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend the time;
(b)a distinction is to be made between an applicant who has “rested on his rights” and allowed the decision-maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;
(c)any prejudice to the respondent caused by the delay;
(d)whether any others or the general public would suffer any prejudice as a result of the extension, or established practices be upset;
(e)the merits of the substantial application; and
(f)“[c]onsiderations of fairness as between the applicants and other persons” in a similar position.
This checklist has been endorsed in many further decisions of the courts, albeit on occasion with slight variations or modifications.[12] However, the Tribunal has accepted that this checklist effectively covers all the matters to which the Tribunal should have regard.
[12] Hillman v Australian Postal Corporation (Compensation) [2017] AATA 1411; Phillips v Australian Girls’ Choir Pty Ltd [2001] FMCA 109; BHC16 v Minister for Immigration and Border Protection [2019] FCA 1326 [3]; Parker v R [2002] FCAFC 133 [6].
In the first instance, the Tribunal must consider whether there has been a reasonable explanation for the delay. Section 29(2) of the AAT Act requires that appeals against reviewable decisions be lodged within 28 days of the decision in question being made.
As already noted, the Applicant acted within time to seek an initial appeal against the ARO’s decision and the matter proceeded to the AAT1 for hearing. Thereafter, the Applicant acted within time to appeal against that decision but subsequently withdrew their application.
In the first instance, the reason given for the withdrawal was “family issues”. In the EOT application the Applicant writes: “I had family issues that why I withdraw my application. Has (handwriting unclear) I would like my case to reopen.”
At the hearing, the Applicant referred to a series of deaths and illnesses within her family which provided her no opportunity to deal with matters involving the Respondent. She also drew attention to the fact that a Departure Prohibition Order had been taken out against her (as from 11 August 2020) because of her unpaid debts to the Commonwealth.
The passage of time between 3 July 2019 and 18 July 2020 is substantial and the Tribunal does not believe that any compelling reason has been advanced for the delay. In any event, the Applicant was actively engaged with the Department through the process of paying off part of the debt under an agreed payment plan during this period.
There is nothing unusual about the issue of a Departure Prohibition Order in circumstances such as this and, if the Applicant has a genuine need to travel overseas she is free to make an application for a Departure Authorisation Certificate (refusal of which would itself be a reviewable decision).
There is no indication that the Applicant took any steps prior to lodgement of the reinstatement or EOT application to indicate to the Respondent that she did not regard the matter as concluded or that she contested the finality of the AAT1 decision. In this respect, she rested on her rights. Indeed, the Respondent drew attention to the fact that the Applicant had caused them difficulties by causing scheduled conferences to be vacated and rescheduled thereby causing the Respondent “considerable inconvenience.”[13]
[13] Secretary’s Submissions Opposing Applicant’s reinstatement Application (dated 18 August 2020) [41].
The Respondent asserted that granting an EOT would cause them further prejudice, especially in the prolonging of resolution of the matter. In Mulheron, Tribunal President O’Connor stated:
(16) The competing policy considerations that applicants should not be allowed to affect the Tribunal's processes by failing to take reasonable steps to allow their application to be determined on the merits (for instance, by failing to attend preliminary conferences or hearings), that matters be disposed of once and for all and that litigation not be prolonged are important. However, as Deputy President Forgie pointed out in Re Nicholson and Secretary, Department of Social Security to allow a fresh application in such circumstances does not give an applicant whose application has been dismissed a right to bring endless fresh applications. As in this case, where an application is dismissed and a second application is brought the second application will generally be lodged after the prescribed time has elapsed. Accordingly, the Tribunal will have a discretion as to whether to extend the time for making an application and these policy objectives can be achieved by the exercise of discretionary power which takes into account the particular circumstances of the application.[14]
[14] Mulheron v Australian Telecommunications Commission [1991] 23 ALD 309.
The Tribunal agrees that in this instance the Respondent had every right to regard the matter as settled and that it would not be required to relitigate the whole claim and subsequent determinations.
The question of what matters are to be considered, and how they are to be assessed in addressing the merits of the substantive application, have been examined by a number of authorities.

In Kuljic, von Doussa J stated:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.[15]
[15] Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121, 123.
In Pohahau, Wigney J stated:
It will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success. Such a finding should ordinarily only be made where the grounds of the application on their face appear to have little or no prospects of success and there is no need for any detailed argument in respect of the merits. It follows that an assessment of the prospects of success on an extension of time application should not ordinarily travel “beyond an examination of the grounds at what should be a reasonably impressionistic level … into a fuller consideration of the arguments for and against each ground of review.[16]
[16] Pohahau v Minister for Home Affairs [2019] FCA 1243 [35]. Citations omitted.
In Jackamarra, the High Court quoted with approval the remarks of Lord Denning MR in R v Secretary for the Home Department; Ex parte Mehta where His Lordship said:
We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.[17]
[17] Jackamarra v Krakouer (1998) 195 CLR 516, 519 per Brennan CJ and McHugh J and 540 per Kirby J.
Thus, without going into prescriptive detail of the matters which might be before a full merits review, it is necessary to say something further of the outline of any case which might be considered there.
The matter is relatively straightforward. When the carer payment was granted, the Applicant withheld from the Department the details of substantial property holdings which belong to her and her husband. She failed on numerous occasions to bring these to the attention of the Department and completed several formal declarations and statements in which she did not disclose them. The evidence is to the effect that when eventually confronted with details of the properties she initially denied and only subsequently admitted to their ownership. No details were provided as to any rental income derived from the properties nor the value or income level of her husband’s taxi business.
The detailed calculations made by the Department and the ARO in the first instance and then remade by the Department following the AAT1 decision have established that under any set of circumstances the income and assets held by the Applicant exceed those permitted by the legislation to qualify for the carer payment.
In MZABP, Mortimer J stated:
As I have observed previously, it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage.[18]
[18] MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 [62]. Citations omitted.
Her Honour’s comments were endorsed on appeal[19] in this case and have been referred to in several further decisions of the Federal Court.[20]
[19] MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110.
[20] Jamal v Secretary, Department of Social Services [2018] FCA 513 [6]; Pohahau v Minister for Home Affairs [2019] FCA 1243 [35].
The same principle was enunciated specifically in relation to reinstatement applications by Deputy President Forgie:
I would add to these two principles, a third. That is whether the application, if reinstated, would have merits. That does not require an exhaustive consideration of the merits but it does require a consideration of whether the application would have any chance of success if reinstated. To reinstate an application in circumstances in which there can be no chance at all of its being successful is to give false hope to an applicant as well as to waste the resources of both parties let alone of the Tribunal.[21]
[21] White v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712 [25].
The evidence is persuasive of the fact that this application, if subjected to a full merits-based hearing would have very low prospects of success and thus there is no substantial basis upon which it should be allowed to go forward.
Finally, the Tribunal notes that if such an appeal were to go forward it would prejudice other applicants for review who have acted in accordance with the normal legislative requirements and it would be unfair to people in similar circumstances.
It is thus not established that there is any basis upon which the EOT application should be granted, and the same principles and reasoning apply had an application for reinstatement in this matter been before the Tribunal.[22]
[22] Bennett v Secretary, Department of Employment, Education and Workplace Relations [2009] AATA 1002 [5] and [16]; Manoli v Secretary, Department of Social Security [1994] 35 ALD 133 [14].
Conclusion
The application of the Hunter Valley principles to both the reinstatement and the EOT application indicate that none of them are made out in favour of the Applicant and indeed that, given the lack of substantive merits in the applications, it would be against the interests of justice for them to be allowed to proceed.
DECISION
The application for an extension of time to lodge an appeal against the reviewable decision of the AAT1 dated 15 June 2018, which was lodged on 27 July 2020, is refused.

I certify that the preceding 58 (fifty - eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 7 September 2020

Date of hearing: 19 August 2020

Applicant: In person

Solicitors for the Respondent: Mr G Lozynsky, Services Australia

Date of hearing:	19 August 2020
Applicant:	In person
Solicitors for the Respondent:	Mr G Lozynsky, Services Australia