Simonsen and Secretary, Department of Social Services (Social services second review) - [2021] AATA 2442

Simonsen and Secretary, Department of Social Services (Social services second review) [2021] AATA 2442 (22 July 2021)
Division:GENERAL DIVISION
File Number(s): 2020/7526
Re:Mark Simonsen
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:22 July 2021
Place:Perth

The Applicant’s application for an extension of time to lodge an appeal against the reviewable decision of the AAT1 dated 26 May 2017, which was lodged on 16 November 2020, is refused.
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L M Gallagher, Member
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – income reporting – debt recovery – length of delay – awareness of appeal rights – explanation for delay – prejudice to Respondent or the general public – merits of substantive application – alternative avenues of relief – extension of time application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516
Comcare v A’Hearn (1993) 45 FCR 441
Hazelwood v Telstra Corporation [2012] AATA 901
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478
Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381
Re Grafton and Commonwealth (1988) 16 ALD 533
Re Hewson and Australian Postal Corporation (1998) 50 ALD 994
Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248
Secretary, Department of Family and Community Services and Roberts [2003] AATA 269
SECONDARY MATERIALS
Australian Government, The Guide to Social Policy Law: Social Security Guide version 1.283 (1 July 2021)
REASONS FOR DECISION
L M Gallagher, Member
22 July 2021
INTRODUCTION AND BACKGROUND FACTS

On 30 July 2009, the Applicant was granted Newstart Allowance (Newstart) and was paid at the partnered rate.[1]
[1]The Tribunal understands that as at December 2020, the Applicant was in receipt of JobSeeker Payment from the Agency, a repayment arrangement was in place and the outstanding balance of the debt was $115.05.
The Respondent has advised that for the period 12 September 2009 to 14 September 2011 (the debt period), Services Australia (the Agency)[2] sent the Applicant more than ten notices, which advised the Applicant of his reporting requirements and obligations under section 68(2) of the Social Security (Administration) Act 1999 (Cth) (Administration Act). The notices advised, amongst other things, that the Applicant was required to report income earned by himself or his partner.
[2]The Department of Human Services, as it was then known, was renamed Services Australia (the Agency) on 29 May 2019. For ease of reference, the term ‘Agency’ has been adopted throughout this decision, whether it be referring to a point in time where it was known as ‘Services Australia’ or, as it was previously known, as the ‘Department of Human Services’.
During the debt period, the Applicant reported income that his partner earned from her employment at a pharmacy (the first pharmacy).
The Tribunal understands from the Respondent that following review of the Applicant’s entitlement to Newstart, a data match with the Australian Taxation Office identified the Applicant’s partner had a second employer, being another pharmacy (the second pharmacy).
The Respondent has advised that:
(a)The Applicant did not report his partner’s income from the second pharmacy;
(b)On 1 December 2011, 2 December 2012 and 14 May 2013, notices under s 196 of the Administration Act were issued to the second pharmacy requesting employment information about the Applicant’s partner;
(c)The second pharmacy employer responded to these notices, detailing the Applicant’s partner’s fortnightly income for the period 14 September 2009 to 12 November 2011; and
(d)The information provided by the second pharmacy indicated that the Applicant’s failure to declare his partner’s earnings from this employer (in circumstances where there were discrepancies between the Applicant’s partner’s reported and actual fortnightly income) resulted in significant under-reporting of his partner’s income from the second pharmacy to the Agency.
On 21 May 2013, an officer of the Agency decided to raise and recover from the Applicant a Newstart debt of $4,171.06 arising from the overpayment of Newstart for the debt period (the Original Decision).[3]
[3]The Respondent has advised that in calculating the debt in the Original Decision, the Agency relied on payslips from the second pharmacy and the Applicant’s self-reports regarding the first pharmacy and that no income averaging was used by the Agency to calculate the Applicant’s debt (R1a [13]).
On 27 May 2013, the Applicant requested review of the Original Decision by an Authorised Review Officer (ARO) of the Agency.
On 17 January 2014, an ARO varied the Original Decision to the extent that the debt amount for the debt period was increased to $6,908.37 (the ARO Decision).
On 10 February 2017, the Applicant lodged an application with the Social Services and Child Support Division of the Administrative Appeals Tribunal (Tribunal) (AAT1).
On 26 May 2017, the AAT1 affirmed the ARO Decision (A7) (the Reviewable Decision).
On 6 June 2017, the Applicant was notified of the AAT1 decision.[4]
[4]The Respondent advised that the Applicant was notified of the Reviewable Decision on 6 June 2017 (R1a [18]). The Applicant indicated in A5 and A6 that he was notified of the Reviewable Decision on 16 November 2020. The Tribunal takes this to be an error in the circumstances in that it could not logically be the case.
On 16 November 2020, being approximately three years and four months after the expiry of the 28-day time frame period for doing so, the Applicant applied to this Tribunal for a review of the AAT1 decision (A6) and an extension of time to apply for the review (A5). The Respondent has opposed the Applicant’s application for an extension of time (R2).
The present matter concerns the Applicant’s application for an extension of time (A5).
RELEVANT LEGISLATION AND GENERAL PRINCIPLES
An application for review must generally be lodged within 28 days of the Applicant receiving notice of the decision (s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)).
However, the Tribunal is permitted to extend the time for the making by that person of an application to the Tribunal if the Tribunal is satisfied that it is reasonable in all the circumstances to do so (s 29(7) of the AAT Act).
In Re Hewson and Australian Postal Corporation (1998) 50 ALD 994,[5] (Re Hewson) Senior Member Allen stressed the desirability of finality in these matters[6]:
In my opinion the major factor in this matter is that prima facie proceedings commenced outside the limitation period ought not to be entertained. The respondent is entitled to pursue its business on the assumption that claims not pursued within the time limits laid down in the legislation can be regarded as finalised. This principle must give way if an applicant is shown on the materials adduced by either party to have a good case of succeeding in the action and there is little prejudice to the respondent.
[5]At 998.
[6]At [23].
A similar view was expressed by Judge Wilcox in the Federal Court decision of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348, a decision which also set out the principles commonly referred to (as they were in Re Hewson and numerous other decisions) in considering whether an extension of time should be granted in these matters. Those principles are well-known and can succinctly be put as:
(a)Delay - the length of the delay, awareness of appeal rights and whether the applicant seeking an extension of time can demonstrate an acceptable explanation for the delay;
(b)Prejudice - any prejudice to the parties or to the general public that might be suffered were an extension to be granted;
(c)Merits - the merits of the substantive application; and
(d)Fairness – alternative avenues of relief and considerations of fairness between the applicant and other persons in a similar position.
ISSUE FOR DETERMINATION
The issue before the Tribunal is whether the Applicant should be granted an extension of time to lodge his application for review of the Reviewable Decision, of which he was notified on 6 June 2017. This is turn begs the question of whether, it is reasonable in all the circumstances to do so.
As the Applicant has not sought to claim that the application for review was out of time, the sole issue for the Tribunal is whether it should exercise the discretion made available to it under s 29(7) of the AAT Act.
EVIDENCE
The present application was heard on the papers with the parties’ consent. The parties filed written submissions and supporting evidence in accordance with the Tribunal’s direction. The following evidence is before the Tribunal:
(a)Applicant’s Outline of Submissions filed on 11 January 2021 (A1a);
(b)Applicant’s Supplementary Submissions filed on 19 February 2021 (A1b);
(c)Applicant’s Further Supplementary Submission dated 30 March 2021 (A1c);
(d)Applicant’s list of documents requested from Respondent (A2);
(e)Documents provided to Applicant by Respondent (144 pages) (A3);
(f)Services Australia Information Sheet: Income test for Job Seeker Payment (A4);
(g)Applicant’s Application for an Extension of Time dated 16 November 2020 (A5);
(h)Applicant’s Application for Second Review of Decision dated 16 November 2020 (A6);
(i)AAT1 decision dated 26 May 2017 (A7);
(j)Secretary’s Outline of Submissions, with List of Authorities dated 22 December 2020 (R1a);
(k)Secretary’s Reply Submissions dated 18 February 2021 (R1b); and
(l)Respondent’s Notice of Opposing Application for an Extension of Time dated 1 December 2020 (R2).
Relevant aspects of the evidence before the Tribunal will be referred to below.
CONSIDERATION
The issue before the Tribunal is whether it is reasonable in all the circumstances to grant the Applicant’s application for an extension of time.
The Applicant, in effect, seeks an order which would have the effect of extending the time for lodging his application for review of the Reviewable Decision.
The Respondent, however, contends that the Applicant’s application for an extension of time is late and that it is not reasonable in all the circumstances to grant it.[7]
[7]R1a [25] and R1b [11].
Before considering matters relating to each of the relevant principles, the Tribunal makes the following preliminary comments and findings:
(a)The discretion to allow further time to request reconsideration is unfettered, the exercise of which is informed by the statutory time limit in subsection 29(2) of the AAT Act, as well as the power granted by subsection 29(7) of the AAT Act to extend that time limit.
(b)The Applicant lodged his application for review of the Reviewable Decision dated 26 May 2017 (which he received on 6 June 2017) on 26 November 2020, approximately 3 years and 4 months after the 28-day timeframe prescribed by subsection 29(2) of the AAT Act.
(c)The Applicant has not put any argument forward to the effect that his application for review was actually lodged within time.
(d)The Applicant has not taken issue with the Respondent’s claim that he was notified of the Reviewable Decision on 6 June 2017, or the existence of the related notice which refers to his appeal rights to this Tribunal and to the 28-day time limit for doing so.[8]
(e)Therefore, the Tribunal proceeds on the basis that it is not in dispute that the Applicant’s request was filed out of time and hence the issue for review is as previously stated at paras [18] and [19].
[8]R1a [31].
The Tribunal considers, from its review of the available material, that the extent of the Applicant’s evidence and related submissions regarding his application for an extension of time is mostly founded in the merits of the matter. Namely, the Applicant’s dissatisfaction with factual matters and findings relating to the Reviewable Decision (including, for example, how the Applicant’s debt was originally raised[9]), resulting in the remaining relevant principles in the present interlocutory application essentially being left unaddressed.[10]
[9]The Applicant’s various written submissions predominantly consist of the Applicant’s claims regarding the illegal, unethical and other shortcomings of the methods used to calculate the debt and incorrectness of the amount. See A1a [1]-[10], [13]
[10]See para [17] above.
Delay
The Tribunal has reviewed the Applicant’s submissions and related forms[11] and considers that the Applicant has not specifically sought to attribute his delay in lodging his application for review to any particular factor. Rather, the Applicant claims:[12]
(a)He initially sought further review of the Reviewable Decision directly from the Agency on numerous occasions, who advised they were unable to assist with further internal review.
(b)He then applied for further review to the Tribunal on advice from the Agency.
(c)His submissions and related documents regarding his claims as to how the debt was incorrectly calculated amount to a reasonable explanation for the delay in lodging his application for review and justify the grant of the extension of time. The Applicant submitted he was not aware of this previously.
[11]A1a, A1b, A1c, A5 and A6.
[12]A1a [11], [12], [14] and [16].
In relation to the length of the delay, the Respondent submitted:[13]
(a)While the length of the delay is a relevant consideration, the brevity of the extension sought does not automatically lead to an order extending the time.[14]
(b)The Applicant’s application for an extension of time is over three years out of time.
(c)The delay of over three years is significant and weighs heavily against allowing an extension of time.
(d)The Applicant also waited over three years to request review of the ARO decision by the AAT1.
(e)The Applicant has a history of resting on rights at multiple tiers of review, which, when combined, results in significant prejudice to the Respondent.
(f)A delay of this length should ordinarily be accompanied by a satisfactory explanation and the lack of satisfactory for the delay in this matter militates against granting an extension of time.
[13]R1a [26]-[29].
[14]Citing Secretary, Department of Family and Community Services and Roberts [2003] AATA 269 at [16].
The Respondent made the following submissions regarding the Applicant’s awareness of his appeal rights and his explanation for the delay:[15]
[15]R1a [30]–[38].
(a)It is to be expected that an applicant for an extension of time would normally provide an acceptable explanation for the delay.[16]
[16]Citing Comcare v A’Hearn (1993) 45 FCR 441, [444].
(b)The Applicant was aware of his appeal rights, including the 28-day time limit, as set out in the cover letter from the AAT1 notifying him of the Reviewable Decision.
(c)The majority of the Applicant’s statement regarding the reasons for requesting an extension of time[17] refer to the Applicant’s reasons for contesting the substantive decision and not reasons explaining his delay in seeking review of the Reviewable Decision.
(d)The Applicant’s statement that ‘[the Agency] uses averaging to calculate debt rather than any actual amounts. This has since been abandoned by [the Agency] due to errors and has been enforced through recent robodebt action.’[18]
(e)The use of the words ‘since’ and ‘recent’ suggests that the reason the Applicant may be seeking an extension of time is due to the Agency’s discontinuation of income averaging, which was still in place at the time of the Applicant’s AAT1 review.[19]
(f)The Applicant may be implying that his debt was raised using income averaging and therefore warrants a second review, because the Agency’s practices in raising such debts has changed.
(g)The Applicant’s debt was raised on the basis of fortnightly earnings information obtained from the second employer. No income averaging was used when calculating the Applicant’s debt.
(h)Therefore, any changes to the Agency’s use of income averaging when raising and recovering debts are irrelevant to the Applicant’s present application for an extension of time.
(i)The Applicant was content with the Original Decision and made repayments towards the debt for years.
(j)The Applicant has only acted and sought review from the Tribunal after taking notice of the media attention around ‘Robodebt’ and being mistaken as to how his debt was calculated.
(k)In circumstances where the Applicant has not identified a reason for the delay, it is not fair and equitable to depart from the legislative 28-day time period, one which indicates Parliament’s intention that there ought to be finality in government decision making.
(l)There is authority that the Tribunal has declined to grant an extension of time as it was satisfied that the Applicant was fully aware of the right to seek review of the decision in question and did nothing.[20]
[17]See A5.
[18]See A5.
[19]The Applicant’s later submissions at A1a [1] and [4]–[7] are consistent with this suggestion.
[20]Citing Re Grafton and Commonwealth (1988) 16 ALD 533; Re Romeo and Secretary, Department of Social Security (1992) 26 ALD 248; and Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381.
Having considered the available evidence and submissions, the Tribunal remains satisfied that the Applicant was informed of his right to seek review at the time he was notified of the Reviewable Decision. The Applicant does not dispute having received this information and has not sought to claim otherwise, even in circumstances where he was on notice of the Respondent’s written submission that he was aware as such.
The Tribunal considers that rather, it was by the Applicant’s own election that he continued to pursue his claim internally with the Agency on numerous occasions rather than lodge his application for review with the Tribunal within the 28 day period. This approach continued for a period exceeding three years, which the Tribunal considers to be significant.
Therefore, the Tribunal finds that there is insufficient evidence to conclude that the Applicant has disclosed an adequate explanation for the three year and four month delay which caused him to lodge his application for review outside of the prescribed 28-day time limit.
Prejudice
As to prejudice, the Respondent submitted that it would suffer prejudice if an extension of time were to be granted, on the following bases:[21]
(a)The Respondent’s ability to defend the Applicant’s application, obtain relevant documents and elicit reliable evidence has been seriously affected by the significant passage of time caused by:
(i)the three-year delay between the ARO Decision and the Reviewable Decision; and
(ii)the delay between the Reviewable Decision and the application for review to the Tribunal, respectively.
(b)Generally, it is in the public interest that there is an end to the appeal process. Time limits are imposed to ensure that there is a predictable and orderly conclusion to the process.
(c)The Respondent has every right to consider the matter closed and it would be an improper use of public resources to address this further application at the Applicant’s whim.
(d)The public interest and the interests of those applicants who comply with the prescribed time limits are unsettled by perceptions of unfairness and uncertainty if an extension of time is granted where the justice of the case does not permit that this should occur.
[21]R1a [39]–[41].

The Applicant’s responsive submission regarding prejudice is that contrary to the Respondent’s assertions in their submission, the Applicant would in fact be prejudiced by being shut-out completely and entirely from any further avenues of relief if the application for an extension of time is refused. The Applicant made no responsive submissions to the matters going to prejudice raised by the Respondent.[22]
[22]See para [33] above.
The Tribunal is of the view that there would be prejudice occasioned to the Respondent and the public generally in attempting to meet the Applicant’s case more than three years after the Reviewable Decision, for the reasons given by the Respondent.[23]
[23]See para [33] above.
Merits
The merits of the proposed review are relevant to the present application.[24] It will seldom be in the interests of justice to grant an extension of time where an appeal would have little prospects of success, given the additional resource demands that it would impose upon the parties and the Court.[25]
[24]Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121,122.
[25]MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478.
While it is neither necessary or appropriate for the Tribunal to attempt to do anything other than gauge the apparent merit of the proposed case,[26] it may be that the stronger the apparent merits of the case the more likely that an extension of time would be appropriate.[27]
[26] Hazelwood v Telstra Corporation [2012] AATA 901 [30].
[27] Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516 [29]; [38].
As to the Applicant’s prospects of success in his substantive application, the Applicant submitted that the amount of the debt and the methods and practices adopted to calculate it and the Respondent’s related submissions on these matters were incorrect, unethical, unconscionable, lacking in transparency, are based on incorrect income data and demonstrate incorrect application of the social security guide[28] and the relevant legislation and.[29] While not expressly contended by the Applicant, the Tribunal infers from the Applicant’s submissions that the Applicant believes his substantive application has good prospects of success.[30]
[28]Being Australian Government’s Guide to Social Policy Law: Social Security Guide (1 July 2021).
[29]See A1a [1]–[10], [13], A1b, A1c and related materials at A2, A3 and A4.
[30]See, for example, A1 [1], [15], [16].
The Respondent contended that the Applicant’s substantive application has limited success for a number of reasons, being:[31]
(a)The Applicant failed to report his partner’s income from the second pharmacy despite being informed of this requirement in writing on numerous occasions.
(b)During the debt period, the Applicant’s rate of Newstart was not calculated taking into account his partner’s income.
(c)The Applicant therefore received Newstart at a higher rate than to which he was entitled, an overpayment that, according to the legislation, is a debt to the Commonwealth that must be recoverable.
(d)The Agency relied on the best available evidence at the time and was entitled to do so.
(e)There is no basis on which to write off or recover the debt and no injustice in requiring the Applicant to repay money to which he was not entitled.
(f)The Agency correctly considered the Applicant’s disability pension as income for the purpose of calculating his rate of Newstart.
[31]See R1a [44]; R1b.
Having considered the parties’ submissions, The Tribunal finds that the apparent merit of the case is such that the Applicant’s substantive claim clearly presents with a number of issues and he would face significant hurdles given the matters raised by the Secretary.
Fairness
The Tribunal now turns to its assessment of fairness. Where, for example, to refuse the application would have the effect of denying an applicant any relief, in the sense that it would no longer be open to him or her, at any time to lodge a new claim and provide any additional evidence in support of that claim, that may weigh in favour of an extension of time.[32]
[32]See Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516.
As to fairness, the Respondent noted that:
(a)the Applicant can approach the Agency at any time and request a fresh decision to write-off and/or waive the debt. The Applicant does not need to agitate this aspect of the matter through the Tribunal.
(b)the Applicant may negotiate repayment arrangements with the Agency at any time.
The Respondent contended that in the all the circumstances, the ‘fairness’ factor alone does not make it reasonable for an extension of time to be granted.
The Applicant made the following submission in response to the Respondents’ submission that the Applicant would in fact have alternative avenues of relief:[33]
[The Respondent’s submission] is totally incorrect as I have on numerous occasions attempted to resolve the matter with the respondent and have been rejected each time and have been advised that no further reviews were available to me. Further, the respondent’s assertion…that I can approach the Agency at any time and request a fresh decision to write-off and/or waive the debt is misleading as I have previously approached the respondent with this request and have been rejected.
[33]A1a [16].
The Tribunal has considered the parties’ submissions on fairness and is of the view that as it remains open to the Applicant to lodge a new claim at any time, he would not be denied relief if his present application was refused.
CONCLUSION
Having considered the relevant principles, the Tribunal has found none of them are made out in the Applicant’s favour. In particular:
(a)the Applicant was aware of his appeal rights an failed to exercise them within the known prescribed timeframe;
(b)the Applicant’s delay in lodging his application for review in significant in length, without adequate explanation and would prejudice the Respondent and the public generally if the substantive application were to proceed;
(c)the Tribunal has gauged the apparent merit of the matter such that if the substantive application were to proceed, the Applicant would face significant hurdles regarding his claim; and
(d)the Applicant has an alternative avenue of relief, being to lodge a new claim and hence would not be denied fairness if the present application were refused.
Therefore, it is not reasonable in all of the circumstances of the case to grant the extension of time and hence it is not warranted under subsection 29(7) of the AAT Act.
DECISION
The Applicant’s application for an extension of time lodged on 16 November 2020, to appeal against the reviewable decision of the AAT1 dated 26 May 2017, is refused.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

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Associate
Dated: 22 July 2021