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

Snell and Secretary, Department of Social Services (Social services second review) [2019] AATA 3202 (26 August 2019)
Division:GENERAL DIVISION
File Number(s): 2019/3233
Re:Peter Snell
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Member M East
Date:26 August 2019
Place:Perth

The Tribunal grants the Applicant’s application for an extension of time to lodge an application for review of the AAT1 Decision.
....................[sgd]....................................................
Member M East
Catchwords
SOCIAL SECURITY – Extension of time – s 29 Administrative Appeals Tribunal Act 1975 (Cth) – factors that are relevant when considering an extension of time – length of delay – awareness of appeal rights – prejudice – merits of substantive application – alternative avenues of relief – Tribunal satisfied extension of time reasonable in the circumstances – application of extension of time allowed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A(b), 29(1)(d), 29(2), 29(7),
Social Security Act 1991 (Cth) – ss 7, 7(3)
Social Security (Administration) Act 1999 (Cth) – s 29
Cases
Brown v Commissioner of Taxation [1999] FCA 563
Comcare v A’Hearn (1993) 119 ALR 85
Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 276
Hunter Valley Developments Pty Ltd and Others v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Kim and Minister for Immigration and Border Protection [2018] AATA 155
Lucic v Nolan (1982) 45 ALR 411
Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76
Re Johnson and Commonwealth of Australia (unreported, No 5619, 5 January 1990)
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113
REASONS FOR DECISION
Member M East
26 August 2019
THE APPLICATION

The Applicant is seeking review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 5 April 2019. The AAT1 decision affirmed the decision to reject the Applicant’s claim for age pension which was lodged on 5 September 2018.
The Applicant lodged an application for extension of time to seek review of the AAT1 decision (the Reviewable Decision).
THE ISSUE
The issue is whether the Tribunal should exercise its discretion under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to extend the time for the

Applicant to make an application for review of the Secretary’s decision.
The Respondent opposes the extension of time application.
EVIDENCE
The application for extension of time was heard by the Tribunal on 13 August 2019.

The Applicant represented himself and the Respondent was represented by Ms Dinkha from the Department of Human Services.
The following exhibits were tendered:
·The application for extension of time dated 11 June 2019 received by the Tribunal on 13 June 2019 (Exhibit A1);
·The application for second review of decision dated 31 May 2019 received by the Tribunal on 10 June 2019 (Exhibit A2);
·Copy of AAT1 decision (Exhibit A3);
·Submission from Applicant entitled AAT 2^nd Pension Review, (Exhibit A4);
·Centrelink Statement completed by Applicant on 5 September 2018, (Exhibit A5);
·
Email from the Applicant dated 12 August 2019 forwarding email from

Senator Louise Pratt’s office and response from Tribunal dated 28 May 2019 (Exhibit A6);
·
Screen shot of phone log noting phone call to Tribunal on 10 May 2019,

under cover of email dated 12 August 2019 (Exhibit A7); and
·Respondent’s Outline of Submissions with attachments A – D (Exhibit R1).
The Applicant also gave oral evidence at the hearing.
RELEVANT LEGAL PRINCIPLES FOR AN EXTENSION OF TIME
Pursuant to ss 29(1)(d) and 29(2) of the AAT Act, the application for review of a decision must be lodged with the Tribunal within 28 days of the applicant receiving notice of the decision.
Section 29(7) of the AAT Act provides that the Tribunal may, upon application in writing, extend the time for the person making the application, if the Tribunal is satisfied in all the circumstances that it is reasonable to do so.
Section 29(7) of the AAT Act does not set out any principles which the Tribunal can refer to in order to be ‘satisfied that it is reasonable in all the circumstances’ to extend the time for making an application. However, relevant principles which the Tribunal may apply in assessing whether it is reasonable to grant an extension of time have been judicially considered.
A frequently cited authority is Hunter Valley Developments Pty Ltd and Others v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (‘Hunter Valley’), in which the Federal Court considered whether to grant an extension of time to allow the applicants to bring an application for judicial review under the Administrative Decisions
(Judicial Review) Act 1977 (Cth). In Hunter Valley, Wilcox J set out principles that were intended to be non-exhaustive guidelines which may be relevant when considering whether to grant an extension of time.
These principles are substantially similar to those applied in decisions concerning s 29(2) of the AAT Act, such as Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 at [17], where President O’Connor J applied the following principles considered by Deputy President Todd in Re Johnson and Commonwealth of Australia (unreported, No 5619, 5 January 1990):
(a)Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
(b)It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.
(c)Any prejudice to the respondent that would be caused by granting the extension of time is relevant.
(d)Any wider prejudice to the general public in terms of disruption to established practices is relevant.
(e)The merits of the substantial application are relevant.
(f)Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.
Some flexibility is permitted in applying the principles. The facts and circumstances of a particular case may warrant particular attention being given to one or more of the principles over others, some of which may be relevant or not relevant at all.
Additionally, whether an applicant has an acceptable explanation for the delay will be relevant, but ‘…there is no rule that such an explanation is an essential precondition’ to the success of the application for an extension of time (Comcare v A’Hearn (1993)

119 ALR 85 at 88).
CONSIDERATION
In determining whether an extension of time should be granted, the relevant factors the Tribunal should consider include:
·The length of the delay;
·The explanation of the delay and whether that explanation is satisfactory;
·Whether the Applicant was aware of his appeals rights and whether he rested on those rights;
·Any prejudice to the Respondent or the general public arising from an extension of time;
·The merits of the substantive application; and
·Alternative avenues of relief.
Length of the delay
The Applicant’s application for review was lodged with the Tribunal on 10 June 2019 and the application for an extension of time was received by the Tribunal on 13 June 2019. The Applicant said he received the decision on 15 April 2019 and ‘Tried website to request a review and followed up with phone call to confirm request received on
10 - 05 - 2019 case number given to AAT staff. Response by AAT was by phone but was not my current number. There was no attempt to reply by email as before’.
The Applicant said he received the decision on 15 April 2019 and therefore the last day for lodging the application for review was 13 May 2019. The Applicant attempted to lodge his application for review on 10 June 2019 and lodged his application for an extension of time on 13 June 2019. The application for review with accompanying request for an extension of time was therefore one month out of time.
The Tribunal notes that the length of the delay is relatively short. Whilst the brevity of the delay is not of itself in favour of extending the time for review, the Tribunal does not think that in this case to grant an extension after such a short period of time is inconsistent with the principle that there should be finality and certainty in administrative decision making. The Tribunal finds this weighs in favour of the Tribunal exercising its discretion to grant an extension of time.
Explanation for delay
The Applicant in his application for an extension of time said he had contacted the Tribunal to confirm his request was received on 10 May 2019.
The Applicant provided a copy of an email dated 28 May 2019 from Senator Louise Pratt’s office requesting a response to the Applicant’s phone call which he says took place on

10 May 2019. From the attached phone record, it appears he called the Tribunal’s 1800 number and the call lasted for 2 minutes and 26 seconds. His oral evidence confirmed this.
The Tribunal has responded to that email on the same day stating ‘Thank you for your email below. The phone number we have for Mr Snell appears to be disconnected. For a second review to be lodged with the General Division he will need to apply in writing’.
Annexure B to Exhibit R1 indicates the Respondent made enquiries with the Tribunal regarding the Applicant’s possible communication with the Tribunal on 10 May 2019.

The Tribunal’s response was that they could not ‘locate any information regarding a request for contact between 15 April 2019 and the email received by the Tribunal on
28 May 2019’.
The Tribunal has had due regard to the Applicant’s explanations that he did contact the Tribunal and was waiting for a response from them. The Tribunal accepts the Applicant’s explanations as credible regarding the history of events.
The Tribunal accepts the Applicant’s evidence that he did contact the Tribunal at an earlier date by telephone regarding lodging his application for review. This date would have been within the relevant time limit.
The fact that an unrepresented applicant called the Tribunal’s 1800 number and assumed he had correctly applied for review is not an unreasonable explanation for the delay in this matter. This weighs heavily in favour of the Tribunal exercising its discretion in the Applicant’s favour in deciding whether to grant an extension of time.
Awareness of appeal rights
The Applicant did not submit that he was unaware of his appeal rights. The Applicant was advised of his right of review of the decision by the Tribunal when he was sent the decision made by AAT1. Information regarding time limits for applying for a review was also provided at this time.
The Tribunal finds that this weighs against it exercising its discretion in the Applicant’s favour.
Prejudice to the Respondent or the General Public
The Respondent concedes that the Respondent would not suffer any direct or material prejudice due to the delay.
The Tribunal observes that the absence of prejudice is not itself sufficient to justify the granting of an extension (see Lucic v Nolan (1982) 45 ALR 411 at 416).
An objective of the Tribunal is to provide a mechanism of review that is ‘fair, just, economical, informal and quick’ (s 2A(b) of the AAT Act). In this instance, there is a relatively short delay in the applying for review. The Tribunal finds that the absence of prejudice in the context of all the circumstances of this matter is a factor that weighs in favour of the Applicant when considering whether the Tribunal should exercise its discretion.
Merits of the substantive application
As noted above, when deciding whether to grant an extension of time to an applicant,

the Tribunal may consider the merits of the applicant’s substantive application. The Tribunal should not undertake a substantive review of the merits of the application (Minister for Health and Aged Care v Pharmacia and Upjohn Pty Ltd (2001) 65 ALD 76), but, rather, should assess whether the applicant has an ‘arguable case’

(Brown v Commissioner of Taxation [1999] FCA 563 at [56]).
The Tribunal has previously declined to grant an extension of time to an applicant in cases where it considers the applicant would have little prospect of success at a substantive hearing of the matter (see, for example, Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 and

Hamilton and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 276).
The Respondent contends that the Applicant’s application has limited prospects of success and that this weighs heavily against the granting of an extension of time.
The Respondent has provided comprehensive submissions on this point as to whether

the Applicant was an Australian resident as at 5 September 2018 for the purpose of qualifying for the age pension as required by s 29 of the Social Security (Administration) Act 1999 (Cth) and defined in s 7 of the Social Security Act 1991 (SS Act).
In determining whether the applicant was an Australian resident, the Tribunal is required to have regard to the factors set out in s 7(3) of the SS Act. These are as follows:
(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a)the nature of the accommodation used by the person in Australia; and
(b)the nature and extent of the family relationships the person has in Australia; and
(c)the nature and extent of the person’s employment, business or financial ties with Australia; and
(d)the nature and extent of the person’s assets located in Australia; and
(e)the frequency and duration of the person’s travel outside Australia; and
(f)any other matter relevant to determining whether the person intends to remain permanently in Australia.
The Applicant has addressed what he regards as several inaccuracies in the record of his evidence is the AAT1 decision. As noted above, the purpose of this hearing is not to undertake a substantive review of the merits of the application. It is the Tribunal’s view that due to the differing accounts of the Applicant’s evidence and the Respondent’s submissions, that it is unable to qualitatively assess the strength of the Applicant’s application without having the benefit of a merit’s review. That is not the role of the Tribunal in this particular application.
The Tribunal is unable to form a view on the merits of the Applicant’s claim. The Tribunal finds this weighs in favour of it exercising its discretion in the Applicant’s favour.
Alternative avenues of relief
The Tribunal will often have regard to whether there are any alternative avenues of relief available to an applicant when considering an extension of time application

(see Rollins and Principal Member of the Veterans’ Review Board and Repatriation Commission [2011] AATA 113 at [18] and Kim and Minister for Immigration and Border Protection [2018] AATA 155 at [48]).
The Respondent submits that it is open to the Applicant to submit a fresh application for age pension at any stage should his circumstances change or apply for other benefits at this time. This submission, whilst correct, ignores the fact that if the substantive application is successful the Applicant may be entitled to a payment from the date of his application of his entitlements. The Applicant also gave evidence that he had contacted his local Centrelink office to apply for Newstart and was told he was too old to apply for it and needed to apply for the age pension
The Tribunal finds this weighs in favour of the Tribunal exercising its discretion in favour of the Applicant.
CONCLUSION
Having carefully weighed all the factors outlined above, the Tribunal finds it is reasonable in all the circumstances to grant an extension of time to allow the Applicant to lodge an application for review of the Reviewable Decision dated 5 April 2019.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of

............................[sgd]............................................
Associate
Dated: 26 August 2019

Date(s) of hearing:

13 August 2019

Applicant:

Solicitors for the Respondent:

Respondent:

Self-represented

Ms S. Dinkha

Secretary, Department of Social Services

[2019] AATA 3202

26 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction