Simonsen and Secretary, Department of Social Services (Social services second review)

The Administrative Appeals Tribunal (AAT) considered an application by the Applicant for an extension of time to seek a review of a decision made by the Secretary, Department of Social Services. The Applicant sought to challenge a decision affirmed by the AAT1 on 26 May 2017, of which he was notified on 6 June 2017. The Applicant lodged his application for review and an application for an extension of time on 26 November 2020, approximately three years and four months after the expiry of the prescribed 28-day time limit. The Respondent opposed the application for an extension of time.

The sole legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant the Applicant's application for an extension of time to lodge his application for review. This required the Tribunal to exercise its discretion under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), which permits the extension of time if the Tribunal is satisfied it is reasonable to do so. The Tribunal noted that the Applicant had not disputed that his application was lodged out of time, nor had he taken issue with the notification of his appeal rights and the associated time limit.

In its reasoning, the Tribunal referred to established principles for considering applications for extensions of time, including the length of the delay, awareness of appeal rights, the explanation for the delay, prejudice to the parties or the public, the merits of the substantive application, and considerations of fairness and alternative avenues of relief. The Tribunal found that the Applicant's submissions predominantly focused on the merits of the substantive decision, particularly his dissatisfaction with the calculation of his debt, rather than providing a specific explanation for the significant delay. The Applicant's stated reasons for delay, such as seeking further review from the Agency and applying to the Tribunal on advice, were not considered to adequately address the extent of the delay.

Ultimately, the Tribunal concluded that it was not reasonable in all the circumstances to grant the Applicant's application for an extension of time. The Applicant had not demonstrated an acceptable explanation for the substantial delay, and his submissions largely addressed the merits of the original decision rather than the grounds for seeking an extension. Consequently, the application for an extension of time was refused.