Sheikh Abdulahi and Secretary, Department of Social Services (Social services second review) - [2018] AATA 412

Sheikh Abdulahi and Secretary, Department of Social Services (Social services second review) [2018] AATA 412 (8 February 2018)
Division:GENERAL DIVISION
File Number: 2018/0083
Re:Hodon Sheikh Abdulahi
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:8 February 2018
Date of written reasons: 7 March 2018
Place: Melbourne

The Tribunal refuses the application under s 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge an application for review of a decision.
.........................[sgd]...............................................
Ms Anna Burke, Member
PRACTICE AND PROCEDURE – application for extension of time – delay of one year and nine months in lodging application - whether reasonable excuse for delay - no reasonable excuse for extensive delay - where prejudice would be incurred by respondent and public by allowing extension of time - where prospects of success do not weigh in favour applicant - not reasonable in all the circumstances to allow extension of time
Legislation
Administrative Appeals Act 1975
Social Security (Administration) Act 1999
Social Security Act 1991
Cases
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305
Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 62
Groth v Secretary Department of Social Security [1995] FCA 989
REASONS FOR DECISION
Ms Anna Burke, Member
7 March 2018
INTRODUCTION

Ms Abdulahi (the Applicant) is seeking an extension of time to lodge a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to raise and recover a Newstart Allowance debt on 7 July 2015. This decision was affirmed by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT first tier review) on 11 February 2016.
On 7 July 2015 Centrelink issued a notice to Ms Abdulahi. It stated that Ms Abdulahi had a legally recoverable Newstart Allowance debt of $13,336.45 for the period of 24 January 2012 to 25 September 2013, as she had failed to declare all her earnings from employment as an interpreter during this period. Centrelink is the service provider for the Department of Social Services.
The application was heard on 8 February 2018. Ms Abdulahi was self-represented and appeared in person. Ms Alisa Bramley, government lawyer in the Freedom of Information and Litigation Team, Department of Human Services, appeared for the Respondent.
The Tribunal provided an oral decision at the hearing, refusing the request for an extension of time as it was not satisfied the request was reasonable. Ms Abdulahi has subsequently requested written reasons for the decision in accordance with s 43(2A) of the Administrative Appeals Tribunal Act 1975 (the Act). These are those reasons.
THE ISSUES IN CONTENTION
The issue in contention is whether the Tribunal is satisfied that it is reasonable in all the circumstances to extend the time for Ms Abdulahi to make an application under s 29 (7) of the Act.
BACKGROUND
In respect of the issue before the Tribunal, Ms Abdulahi was in receipt of Newstart Allowance from 21 November 2010 to 26 September 2013. At various times she also received income for services as an interpreter.
On 27 February 2015 Centrelink wrote to the Department of Immigration and Border Protection (DIBP) seeking information about Ms Abdulahi’s employment between 1 July 2011 and 26 September 2013. Data matching was completed on the basis of information from the DIBP, income declared to the Australian Taxation Office and Ms Abdulahi’s reported income to Centrelink. Centrelink determined that Ms Abdulahi had a Centrelink debt.
On 7 July 2015 Centrelink wrote to Ms Abdulahi, advising she had been overpaid $13,336.45 in Newstart Allowance as her earnings from the DIBP were not taken into account when payment had been made, and therefore Centrelink was required to recover this amount.
On 12 August 2015 on internal review, a departmental Authorised Review Officer (ARO) affirmed the original decision and found that:
The amount of income a person earns each fortnight can reduce the amount of Newstart Allowance payable for that fortnight. While you were working for the Department of Immigration and Border Control you were declaring earnings and your payment amounts were reduced according to what you told us. However, investigations show that you earned more than you declared and your payments should have been reduced to a lower amount then was paid to you.
From 24 January 2012 to 25 September 2013 you were paid a total of $23,193.44. Based on your actual earnings as advised by the employer, I have worked out that you should have been paid $9856.99. This means you have a debt of $13,336.45.
I have also considered the rules that allow a debt to be waived. Firstly, your debt was caused by you telling the department incorrect amount of earnings. As the debt was not caused solely by the department’s error, it cannot be waived on this ground.
A debt may also be waived if there are special circumstances. Your circumstances need to be significantly unusual or uncommon as to be termed special and there is no evidence that this is the case.
This means that I have decided to have a debt of $13,336.45 that must be repaid.
On 11 February 2016 the AAT first tier review affirmed the decision of the ARO, that Ms Abdulahi had incurred a Newstart Allowance debt of $13,336.45 between 24 January 2012 and 25 September 2013, and that there were no grounds to write off or waive recovery of all or part of Ms Abdulahi’s debt. The Member stated:
The Tribunal noted Centrelink sent Ms Abdulahi reporting statements dated 25 November 2011 and fortnightly thereafter which required her to advise Centrelink within 14 days of any changes to her status including her income. The Tribunal noted that these reporting statements listed Ms Abdulahi fortnightly income as $44.53. In response to the Tribunal’s question, Ms Abdulahi said that she did not concern herself with these letters as it was a matter for her accountant. In response to the Tribunal’s questions, Ms Abdulahi confirm that she did not refer the Centrelink letters to her accountant. The Tribunal noted Centrelink also sent Ms Abdulahi a letter on 7 November 2013 requesting she provide verification of her earnings and the Tribunal noted she did not respond to that letter. The Department of Immigration & Border Protection provided information on 29 April 2015 about her earnings in response to requests made of it by Centrelink, as a consequence Centrelink raise the debt against Ms Abdulahi.
It is not in dispute that Ms Abdulahi did not advise Centrelink of her full income in the period under review and the Tribunal finds accordingly. The Tribunal is satisfied that Ms Abdulahi income was not taken into account by Centrelink in the period under review. The Tribunal has checked Ms Abdulahi Centrelink payment summary screens and is satisfied that she was paid new start allowance totalling $23,193.44 during the period 24 January 2012 to 25 September 2013 when she was entitled to be paid $9856.99. The Tribunal is satisfied that Centrelink has accurately calculated the quantum of the overpayment as $13,336.45 for the period 24 January 2012 to 25 September 2013.
In circumstances where a person does not provide advice in accordance with section 68 of the administration act and as a result the person is paid an excess benefit payment such as newstart allowance, the excess benefit is treated as a debt to the Commonwealth in accordance with section 1223 of the Act.(AAT decision p5)
On 4 January 2018 Ms Abdulahi sought an extension of time to apply for an AAT second tier review of the first tier review decision, stating that: I had been to offshore processing centre and I believe that I have been paying wrong debt from Centrelink ($14,000 and so-on) as they claim.
Relevant Legislation and Issues
Sections 29(7) – 29(10) of the Act provide that:
(7) 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) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so (emphasis added)
(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
(9) Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal
(a) give notice of the application to any persons the Tribunal or officer considers to be affected by the application
(b) require the applicant to give notice to those persons.
(10) If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.
CONSIDERATION
The Act provides the Tribunal with a broad discretionary power to grant an extension of time if the Tribunal is satisfied that it is reasonable in all the circumstances to do so. The Act does not provide guidance on what is reasonable. However, the Tribunal has been guided by the principles outlined in Hunter Valley Developments Pty Limited v Cohen (1984) 58 ALR 305 (Hunter Valley):
17. Section 11 of the Administrative Decisions (Judicial Review) Act does not set out any criteria by reference to which the Court's decision to extend time for an application for review under s.5 is to be exercised. Already there have been a number of decisions of Judges of this Court, all sitting at first instance, dealing with the approach proper to be taken. They differ a little, both in language and in emphasis, but I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the Court's discretion:
18. (a) Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at p 416) It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at p 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).
Given the above, the Tribunal first explored with Ms Abdulahi her reason for delay in submitting her application for review.
Ms Abdulahi advised the Tribunal she was aware of the 28-day rule to lodge an application for review, but she had been delayed in applying for over one year and nine months because she had taken an urgent job in Nauru as an interpreter for DIBP when the decision was sent to her home. When she returned home, her life had been embroiled in family conflict with her children, domestic violence, court appearances and intervention orders being taken out against her son.
She advised the Tribunal that while her children, who are adults, were in her home, they did not advise her of any mail sent to her from the Tribunal when she was working offshore. She had access to email in Nauru but had not provided the Tribunal with her email address. When she returned to Australia she had not been able to deal with any issue for a long time as there was so much conflict in her life. She advised the Tribunal she could not even apply for Centrelink payments or work during this period and had been living off her savings. She was a single mother of four children who had worked hard, was in significant financial hardship and was being treated unfairly for this debt, which she believed she had not incurred.
The Respondent contended that Ms Abdulahi’s explanation for the length of delay was not adequate as records demonstrated she had only been absent from Australia from 1 May 2016 to 8 May 2016. Further, Ms Abdulahi re-established regular contact with Centrelink by January 2017 and received payment of Newstart Allowance from 30 January 2017. The Respondent contended that the explanation given by Ms Abdulahi did not adequately explain the significant delay in lodging her application.
The Respondent contended Ms Abdulahi had rested on her rights during this period because she had not made Centrelink aware she was unhappy with the decision. This was despite the fact that she successfully reapplied for Newstart Allowance in January 2017 and had been repaying the debt by deductions from her Newstart Allowance.
The Tribunal was not satisfied with Ms Abdulahi’s explanation for the lengthy delay. This was exacerbated by the lack of corroborative evidence provided by Ms Abdulahi in respect of her absence from Australia and significant family issues with her children, particularly her son. The Tribunal did not find it plausible that Ms Abdulahi had been incapable of submitting an application for over one year and nine months.
As Wilcox J stated in Hunter Valley, special circumstances must be shown for a grant of an extension of time. This principle was further explored in Nedeljko Kuljic v Secretary, Department of Social Security [1994] FCA 62 where 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. Two questions therefore arise on the papers before the Court in this case: (1) whether an acceptable explanation for the delay has been proffered; and (2) whether, on the merits, there is any prospect of the appeal succeeding.
The Tribunal next explored the prospect of success in respect of Ms Abdulahi’s substantive application. The Tribunal asked her about any additional information she could provide to the Tribunal that would aid her case.
Ms Abdulahi advised the Tribunal she disputed she had ever received any Newstart payments in this period, that she was not an employee during this time but self-employed, had considerable costs associated with running her business, was a single mother and in great financial difficulty.
Ms Abdulahi advised the Tribunal she had no additional information to provide which substantiated her claims. She did not dispute she had earned the money declared in her tax returns during this period but contended they could not be considered by Centrelink as she had been self-employed during this period.
The Respondent submitted that Ms Abdulahi’s tax returns indicated she had derived income from three sources as a wage and salary earner, from Centrelink payments and from her own business. Whilst Ms Abdulahi advised Centrelink of income earned as an interpreter during this period, she had not declared all the income she had received from the DIBP. The Respondent also submitted that Centrelink had calculated Ms Abdulahi’s earnings taking into account all work-related deductions she had declared to the Australian Taxation Office, and her accountant had accompanied her at the AAT first tier hearing where he provided evidence about her earnings and deductions.
Section 1237A(1) of the Social Security Act 1991 (SS Act) provides grounds for the decision maker to waive recovery of any part of the debt. The SS Act provides that the Tribunal must waive a debt if it was attributable solely to an administrative error made by the Commonwealth and the debtor received the debt in good faith. The AAT first tier review found, and this tribunal concurs, that the debt occurred because Ms Abdulahi failed to notify Centrelink of all her earnings and not as a result of an error made by the Commonwealth.
Section 1236 of the SS Act allows the decision-maker to write off a debt if, and only if, the debt is irrecoverable at law; the debtor has no capacity to repay the debt; the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or it is not cost-effective for the Commonwealth to take action to recover the debt. The AAT first tier review found, and this Tribunal concurs, that none of these circumstances applied in respect of Ms Abdulahi. Most relevantly, Ms Abdulahi demonstrates a capacity to repay the debt as she has repaid a significant portion of the debt by withholdings from her current Newstart Allowance payments.
Section 1237AAD allows the decision maker to waive all or part of the debt if there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt. The expression “special circumstances” is not defined in the SS Act. However guidance can be found in Groth v Secretary Department of Social Security [1995] FCA 989 where Kiefel J said: …for present purposes it is sufficient to observe that it requires something to distinguish Mr Groth’s case from others, to take it out of the usual ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow if one to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. Ms Abdulahi did not present any factors to the Tribunal which demonstrated hardship or unfairness sufficient to justify waiving her debt.
The Respondent submitted there was no substantive reason or evidence provided by Ms Abdulahi which would impugn the correctness of the decision made by the AAT first tier.
The Tribunal found it would be futile to grant an extension of time as Ms Abdulahi’s substantive case had little prospect of success and all parties would be disadvantaged by progressing to a further hearing of the matter. Ms Abdulahi’s assertion that she had not received Newstart Allowance during the period was unsubstantiated and did not accord with the Centrelink records before the Tribunal. Ms Abdulahi’s assertion that as she was not an employee her income from the period in question should not be considered might have been a misunderstanding on her part. It also did not accord with her acknowledgement that her tax returns for the period were an accurate record of the money she had earned. Further Ms Abdulahi acknowledged that she had received regular requests from Centrelink to declare all changes in her circumstances, including monies earned. Ms Abdulahi advised the Tribunal she was currently in significant financial hardship but this reason alone is not sufficient to constitute special circumstances under the SS Act. Therefore, there was no basis on which to write off or waive recovery of the debt.
The Respondent advised Ms Abdulahi she could discuss her current financial circumstances with Centrelink to explore repayment options and for considerations to be made about her ability to repay the remainder of the debt, noting Ms Abdulahi had recently negotiated a lower repayment amount.
The Tribunal also considered the issue of prejudice to the public in allowing Ms Abdulahi’s application. In particular, the Tribunal refer to the judgement of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541:
An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates."….
... The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced. "But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

This is particularly relevant when Ms Abdulahi is applying for review one year and nine months out of time, in circumstances where she was aware of her right to seek review and the interests of an orderly conclusion to a process is unsettled by granting an extension. The Tribunal found there was no rationale for extending the period of time in which Ms Abdulahi could seek to appeal because she had not positively demonstrated the reasons for her delay or any merit in her substantive application.
Conclusion
Finally, the Tribunal note that submissions were made about the merits of Ms Abdulahi’s case by both parties. the Tribunal was, on the basis of its finding that there was no explanation for the extensive delay, satisfied that it would not be reasonable in all the circumstances to grant an extension of time. There was nothing in the application brought before the Tribunal to indicate that any prospect of success would outweigh the significant delay and consequential prejudice suffered by the public if the extension were to be granted.
The Tribunal does not find in this situation that it would be reasonable, in all of the circumstances, to allow an extension of time. Ms Abdulahi lodged her application one year and nine months after the reviewable decision was made. The Tribunal found that she had no valid explanation for the delay, had rested on her rights of which she was fully aware and no substantive reason or evidence had been provided which indicated any prospect of success of the substantive application. It was for these reasons that the Tribunal refused to exercise its discretion under s 29(7) of the Act.
The Tribunal refuses the application under s 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time to lodge an application for review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 11 February 2016.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the written reasons for the decision of Ms Anna Burke, Member

...................................[sgd]....................................
Associate
Dated

Dates of interlocutory hearing 8 February 2018

Applicant Self-represented

Advocate for the Respondent

Solicitors for the Respondent

Ms Ailsa Bramley

Department of Human Services,
Freedom of Information & Litigation Branch