SOTIRIOS VASSILIOU and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 254

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 254

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0193

GENERAL ADMINISTRATIVE DIVISION		)
Re		SOTIRIOS VASSILIOU

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date20 April 2009

PlaceAdelaide

Decision The Tribunal refuses the application for an extension of time.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time in which to apply to the Administrative Appeals Tribunal for review of a decision of the Social Security Appeals Tribunal – reasons for delay in making application considered – consideration of prospects of success – prejudice to the respondent – extension refused

Administrative Appeals Tribunal Act 1975 s 29

Social Security (Administration) Act 1999 s 109(2)

Hunter Valley Developments Pty Ltd & Others v Cohen (1984) 7 ALD 315
Re Callis and Australian Postal Corporation [2008] AATA 556

REASONS FOR DECISION

20 April 2009   Senior Member L Hastwell   

1.      Sotirios Vassiliou seeks an extension of time in which to lodge an application to the Administrative Appeals Tribunal with respect to a decision of the Social Security Appeals Tribunal (SSAT) made on 14 August 2008.

2.      Mr Vassiliou lodged his application for an extension of time on 15 January 2009.  His application was opposed by the respondent (the Department) and came on for hearing before the Tribunal on 17 February 2009.

3.      The sole issue for determination at the preliminary hearing was whether the Tribunal should extend the time within which Mr Vassiliou can lodge an application for review of the SSAT decision of 14 August 2008 to this Tribunal.  

relevant legislative provision

4. Under s 29 of the Administrative Appeals Tribunal Act 1975, the Tribunal has the power to extend the time within which a person can make application for review to this Tribunal.

5. Section 29 provides as follows:

“29       Manner of applying for review

…

Tribunal may extend time for making application

(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.

…”

discussion of the principles to apply

6.      The relevant section gives no guidance with respect to the meaning of the words “that it is reasonable in all the circumstances to do so”. 

7.      The principles to consider in an extension of time application have been enunciated in a number of cases and are well established. 

8.      The leading authority is considered to be the judgment of Wilcox J in the case of Hunter Valley Developments Pty Ltd & Others v Cohen (1984) 7 ALD 315. In the case of Re Callis and Australian Postal Corporation [2008] AATA 556 in this Tribunal, I summarised the principles enunciated by Wilcox J in the following terms:

9.      The principles enunciated in that decision can be summarised as follows:

“…

·Proceedings commenced outside the prescribed period will not be entertained.  However, an extension of time will be granted if it is proper to do so.

·It is not incumbent upon an applicant for an extension of time to give an explanation for the delay, but normally it is to be expected that such an explanation will be given (Comcare v A’Hearn [1993] FCA 498).

·There is no onus of proof on the applicant in this Tribunal.  Nevertheless, the applicant for an extension of time must place material before the Tribunal to justify the exercise of the discretion in his or her favour.

·The Tribunal must consider whether the applicant took any action to make the decision-maker aware that the decision was being contested.

·Is there prejudice to the respondent if the extension of time is granted?

·Is there going to be any wider prejudice to the general public?

·What are the potential merits of the substantial application?

·What is the fairness of granting an extension of time as between the applicant and other persons in a like position?

…”

10.     It has been stated in many cases that the guidelines are not exhaustive, but they do provide a useful framework for the Tribunal to consider.

the evidence in this case

11.     Mr Vassiliou gave evidence to the Tribunal with the assistance of an interpreter in the Greek language.  His wife was also present and spoke to the Tribunal.

12.     In October 2007, Mr Vassiliou left his wife and his family home in Adelaide without any explanation to his family.  On 18 October 2007, he left Australia and travelled to Cyprus.  He did not advise Centrelink that he was leaving Australia, nor was his family aware of his whereabouts.

13.     At the time that he left Australia, he was a recipient of Disability Support Pension (DSP), which he had been receiving for a number of years. 

14.     Because his wife works, he is subject to a reporting requirement with respect to family income.

15.     In a notice dated 28 November 2007, Centrelink advised him, at the address that they had recorded for him on his file, that his pension had been cancelled with effect from 31 October 2007, due to a failure to report.  Because he was in Cyprus at the time, he did not receive the notice.  At the time, his wife was not aware of his whereabouts and did not send the notice to him. 

16.     He returned to Australia on 1 March 2008.  On 4 March 2008, he contacted Centrelink and applied for re-instatement of his pension.  This was a date some 18 weeks after the date that his pension was cancelled.

17.     He was granted DSP effective from 4 March 2008.

18.     He wanted his DSP re-instated to the date of cancellation.

19.     He sought review of that decision to the SSAT who determined the case on 14 August 2008.

20.     Mr Vassiliou did not then seek review of the SSAT decision to this Tribunal within 28 days.  He travelled overseas once more during that 28 day appeal period.  He was absent from Australia from 16 August 2008 until 19 December 2008.

21.     He told the Tribunal that he was aware that there was a limited time within which to appeal.  However, he thought that he would lodge his review application upon his return.

22.     He was unable to give the Tribunal any other good reason for his delay in lodging his application for review of the SSAT decision.

23.     He lodged his application for an extension of time shortly after the Christmas break and within a few weeks of his return.

consideration and application of the law

24.     The Tribunal considered all the relevant material.

25.     There has been no administrative error on the part of the Department, nor is such an error alleged.  It appears that Mr Vassiliou’s DSP was quite properly cancelled in this case because of his failure to respond to notices sent by the Department to him at his last known address. 

26.     Mr Vassiliou is a long-term recipient of DSP and by all accounts he travels overseas each year.  It is surprising that on this occasion he did not give notice to the Department of his intended trip.   The Tribunal accepts that he was depressed in October 2007 and he was not in a good frame of mind at the time.  It appears likely that his decision to travel on that occasion may have been impulsive.

27.     His application for review of the decision to re-instate his DSP to the date of his re-application, namely 4 March 2008, was lodged some 18 weeks after his DSP was cancelled.

28.     The Tribunal must consider the realistic prospect of success of any review application by Mr Vassiliou.

29. Even if Mr Vassiliou persuaded this Tribunal that he was entitled to an extension of time for review of the SSAT decision and even if he persuaded this Tribunal to make a finding in his favour, s 109(2) of the Social Security (Administration) Act 1999 states that if a person is given notice of an adverse determination, such as a cancellation decision, and they take more than 13 weeks to request a review of a decision and a new determination in made in their favour, the date of effect is the date the person sought review.  In other words, backdating to the date of cancellation is not possible.

30.     The DSP was in this case granted effective from the day that Mr Vassiliou sought re-instatement.  He could not argue for a backdating as s 109 of the Administration Act appears to preclude this possibility even if he was successful in his application for review.

31.     In this case there has been no adequate reason given for the delay in seeking review.  Mr Vassiliou does not give any good reason for his decision to travel overseas at a time when he knew that the SSAT decision was about to be handed down.  The format of a SSAT decision is such that the time within which an application for review must be made is very clearly spelled out. 

32.     His wife opened his mail and was aware of the SSAT decision and the outcome.  Mr Vassiliou had an obligation to be proactive with respect to his appeal rights and ensure that he lodged a request for review in time if he was not happy with the decision.  That request could have been lodged by a third party on his behalf and did not require his presence in Australia.  He could have made that arrangement before leaving Australia.

33.     For the reasons set out, it is unlikely that the substantial application can succeed in any event as the outcome will not alter, in real terms, the date of re-instatement of his entitlement.

34.     The Tribunal must also have regard to the inconvenience to the Department and the expense involved if the extension of time is granted.  One must balance the fairness of granting an extension of time as between the applicant and other persons in a like position and the Department.  There is nothing compelling in this case that would persuade the Tribunal to grant an extension of time.

35.     In the circumstances, the Tribunal declines to extend the time for Mr Vassiliou to seek a review of the SSAT decision to this Tribunal.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member
L Hastwell

Signed:         .....................................................................................
  Associate

Date of Hearing  17 February 2009
Date of Decision  20 April 2009
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Mr C Goldsworthy
  Centrelink Legal Services and Procurement Branch