Stonebridge and Secretary, Department of Social Services (Social services second review) - [2024] AATA 412

Stonebridge and Secretary, Department of Social Services (Social services second review) [2024] AATA 412 (13 March 2024)
Division:GENERAL DIVISION
File Number:2023/7910
Re:Anthony Stonebridge
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:13 March 2024
Place:Brisbane

The Tribunal dismisses the application for review pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
.............................[SGD]................................
Member D Mitchell

CATCHWORDS
PRACTICE AND PROCEDURE – JURISDICTION of the Tribunal – whether the General division has jurisdiction to review a decision made by the Social Services and Child Support Division to dismiss an application for no reasonable prospects of success pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – request for review of decision to refuse a claim for the disability support pension not made within 13 weeks – no reviewable decision – no jurisdiction – application dismissed
PRACTICE AND PROCEDURE – EXTENSION OF TIME - application for review of decision filed out of time – application for extension of rime considered – extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516
Chen and Secretary Department of Social Services [2023] AATA 344
Hunter Valley Developments Pty Ltd & Ors v The Hon. Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176
Re Laird and Australian Broadcasting Tribunal (1979) AAT 78/122
Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415.
Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309
Re Staats and National Archives of Australia [2009] AATA 598; (2009) 50 AAR 147
Stevenson and Secretary, Department of Social Services [2023] AATA 142
Zizza v Federal Commissioner of Taxation [1999] FCA 37; (1999) 55 ALD 451

REASONS FOR DECISION
Member D Mitchell
13 March 2024
INTRODUCTION

On 24 October 2023, Mr Anthony Stonebridge (the Applicant) sought a second-tier review of a decision made by the Social Services and Child Support Division (SSCSD) on
2 November 2022, together with an application for an extension of time for making an application for review of that decision.
BACKGROUND
The Applicant is ultimately seeking to have a decision made by the Respondent on

20 April 2007, to reject his claim for the disability support pension (DSP) made on

5 March 2007 reviewed.
The pathway to the present proceedings has been long and complex.
The Applicant made a claim for the DSP on 5 March 2007 (2007 DSP claim). That claim was refused by the Respondent on 20 April 2007. On 21 June 2013, the Applicant made a further claim for the DSP which was granted. On 25 October 2021, the Applicant made a claim for Compensation for Detriment caused by Defective Administration (CDDA), on the basis that the Respondent had incorrectly rejected his 2007 DSP claim. On

22 February 2022, the Respondent determined that compensation was not payable under the CDDA scheme. On 19 March 2022, the Applicant sought a release of information in respect of the 20 April 2007 decision. On 18 May 2022, the Respondent released various documents to the Applicant.
On 1 June 2022, the Applicant sought review of the 20 April 2007 decision by the SSCSD. The SSCSD dismissed his application on 20 June 2022, on the basis that it did not have jurisdiction to consider the application in circumstances where an internal review had not been sought.
On 29 June 2022, the Respondent, via an Authorised Review Officer (ARO) having reviewed the matter, affirmed the 20 April 2007 decision to refuse the Applicant’s 2007 DSP claim.
The ARO recorded in their notes the following record of the discussion with the Applicant on 29 June 2022:
During our discussion, the customer spoke about the incorrect JCA in relation to 2007 claim for DSP. He believes he qualified for payment in 2007 and was granted in 2013 because he contacted the Australian Human Rights Commission. He said the medical evidence provided for both claims was the same. He said he suffered financial loss and we touched on CDDA claim, which was rejected. I advised the customer that even if I found he qualified for DSP in 2007 he could not be back paid because he did not ask for a review within 13 weeks of the decision made on
20 April 2007. Customer said he only became aware of the reason for rejection after receiving paperwork under FOI. We spoke about the customer contacting the AAT (again) to request a review.
On 21 July 2022, the Applicant sought review of that decision by the SSCSD.
On 2 November 2022, the SSCSD dismissed the application pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) as it was satisfied that the review had no reasonable prospects of success. The SSCSD provided:
6.[The Applicant’s] application was heard by the tribunal on 2 November 2022. During the hearing, [the Applicant] acknowledged that he had been given notification of the decision to reject his claim for disability support pension. He said that he did not seek review at the time because the letter sent to him did not provide sufficient information to enable him to see that the decision was wrong. He said that it was not until he obtained additional documents under Freedom of Information that he discovered that Centrelink had erred in assigning him 10 points under the Impairment Tables rather than the 20 points that the medical evidence clearly warranted.
7.A copy of the letter, sent to [the Applicant], on 20 April 2007, can be found in the hearing papers at folio 164. During the hearing, the tribunal drew [the Applicant’s] attention to the explanation for the rejection of his claim that was provided in this letter. The letter advised that [the Applicant’s] claim had been rejected because he had been assessed as having a work capacity of 15 hours or more hours per week within the next two years. The tribunal put it to [the Applicant] that, under section 94 of the Act, this finding alone was sufficient to require Centrelink to reject his claim, regardless of his impairment points and that, if he and/or his GP were of the view that the finding regarding his work capacity was wrong, it was open to him to seek review. The tribunal pointed out to [the Applicant] that the letter also clearly explained his review rights and the consequences of not seeking review within 13 weeks.
8.[The Applicant] accepted that he had been given notice of the decision, an explanation of the decision and advice regarding his appeal rights. However, he told the tribunal that he did not think it reasonable or appropriate that a person’s right to back pay should be restricted in this fashion.
9.The tribunal is satisfied that the effect of subsection 109(2) of the Social Security (Administration) Act 1999, is such that even were the tribunal to decide that [the Applicant] qualified for disability support pension on 5 March 2007, his failure to seek review within 13 weeks of being provided with notice of the original decision means that the date of effect would be when he sought review in June 2022, not the date of his claim. As he was already in receipt of disability support pension when he sought review, such an outcome would be of no benefit to him.
10.It follows that his application for review has no reasonable prospect of success and can be dismissed pursuant to subsection 42B(1) of the AAT Act.
The SSCSD decision was sent to the Applicant by email with a cover letter dated

7 November 2022.
On 21 August 2023, the Applicant wrote to the Prime Minister, the Honourable Anthony Albanese MP. On 11 October 2023, an employee of the Respondent provided a response to the Applicant on behalf of the Minister for Social Services, the Honourable Amanda Rishworth MP. The letter provided:
I understand you disagree with the decisions made by Services Australia and the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1) not to pay you DSP from 2007. Qualification criteria for DSP are part of social security law and neither I nor the Minister have any discretion to vary the rules in individual cases.
There is a review system in place to provide an assurance that decisions relating to social security payments are made in accordance with legislation. A further appeal can be made to the General Division of the Administrative Appeals Tribunal (AAT2), if you disagree with the AAT1’s decision. I understand you have received the necessary forms to appeal to the AAT2. Please be assured that completing those forms is the fastest way to have the decision reviewed.
On 24 October 2023, the Applicant applied to this Tribunal for further review (second review) of the SSCSD decision made on 2 November 2022. The Applicant also applied for an extension of time to seek review of that decision.
The Applicant outlined that the reason he was making the application for an extension of time and the application for review was “because Centrelink did not do assessment right in the first place (backed by Basic Rights Qld). Found out after I received Freedom of Information Documents”.
By way of submissions dated 8 December 2023, the Respondent submitted that the Tribunal did not have jurisdiction to consider the application and opposed the granting of an extension of time to make the application for review should jurisdiction be found. The Respondent’s submissions attached the following annexures:
·     Cover Letter and the 2 November 2022 decision of the SSCSD.
·     Applicant’s Application for Review of the SSCSD decision and Extension of Time to make an application, including the attachments provided by the Applicant on lodgement of those applications.
·     2007 DSP rejection decision.
·     Applicant’s Centrelink Pension Status Screen.
·     Applicant’s Centrelink Online Document Recordings
·     Respondent’s acknowledgment of request for review letter dated 3 June 2022.
·     ARO Decision dated 29 June 2022.
A Telephone Interlocutory Hearing was conducted in this matter on

22 January 2024. The purpose of this hearing was to discuss the Tribunal’s jurisdiction to consider the Applicant’s extension of time to make an application for review of the SSCSD decision.
ISSUES
The present issues before the Tribunal are:
(a)whether the Tribunal has jurisdiction to review a decision of the SSCSD to dismiss an application pursuant to section 42B(1) of the AAT Act; and if so
(b)whether the Tribunal should exercise its discretion to grant the Applicant an extension of time to make an application for review of that decision pursuant to section 29(7) of the AAT Act.
JURISDICTION OF THE TRIBUNAL
The Tribunal’s role is to undertake an independent merits review of administrative decisions for which it has jurisdiction to hear.
The bounds of the Tribunal’s decision-making powers are found in section 43 of the AAT Act which provides:
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)Affirming the decision under review;
(b)Varying the decision under review; or
(c)Setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any direction or recommendations of the Tribunal.
The Tribunal cannot make a decision that is outside of the law that is in place. Concerns raised about the administration of social security laws that do not fall within the Tribunal’s jurisdiction are not a matter for the Tribunal to determine.
Section 25 of the AAT Act sets out the jurisdiction of the Tribunal as follows:
(1)Enactment may provide for applications for review of decisions
An enactment may provide that applications may be made to the Tribunal:
(a)for review of a decision made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
…….
As explained by Senior Member Constance (as he then was) in Re Staats and National Archives of Australia [2009] AATA 598; (2009) 50 AAR 147 at 149-150:
It is clear from the wording of section 25 of the Administrative Appeals Tribunal Act 1975 that the Tribunal can only review a decision if it is given the jurisdiction to do so by a specific provision of another enactment. It is essential to look very carefully at the provisions of the enactment said to give rise to the jurisdiction to review to make sure that the jurisdiction extends to the particular decision in respect of which a review is sought.
As such, the Tribunal is limited to reviewing decisions that it is given the jurisdiction to do so by a specific provision of an enactment. In the present matter, the enabling statute is the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Part 4 of the Administration Act deals with internal reviews of decisions with Part 4A dealing with both first and second reviews by the Tribunal.
Relevantly, section 142 of the Administration Act provides:
(1) Subject to section 144, application may be made to the AAT for review (AAT first review) of:
(a)a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer made under section 126 or 135; or
(b)a decision under this Act made personally by the Secretary or the Chief Executive Centrelink.
(4) For the purposes of subsection (1), the decision made by the Secretary, the Chief Executive Centrelink or the authorised review officer is taken to be:
(a)if the Secretary, the Chief Executive Centrelink or the authorised review officer affirms a decision —that decision as affirmed; and
(b)if the Secretary, the Chief Executive Centrelink or the authorised review officer varies a decision —that decision as varied; and
(c)if the Secretary, the Chief Executive Centrelink or the authorised review officer sets a decision aside and substitutes a new decision —the new decision.
Section 179 of the Administration Act provides:
(1) Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
(2) For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
a.    if an AAT first review affirms a decision —that decision as affirmed; or
b.    if an AAT first review varies a decision —that decision as varied; or
c.     if an AAT first review sets a decision aside and substitutes a new decision--the new decision; or
d.    if an AAT first review sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT —the directions or recommendations of the AAT.
PARTIES’ JURISDICTION SUBMISSIONS
The Applicant provided submissions with his application for review and his application for an extension of time to make the application for review, which outlined why he thought the original, CDDA, ARO and SSCSD decisions were wrong.
In an email dated 3 December 2023, the Applicant appeared to rely on the letter dated
11 October 2023 which was provided to him in response to his letter to the Prime Minister as providing the Tribunal with jurisdiction to consider his application.
At the Telephone Interlocutory Hearing, the Applicant told the Tribunal that:
·     He is a person who can apply for review pursuant to section 27 of the AAT Act, which gives the Tribunal jurisdiction to consider his application.
·     The government makes laws to take away public rights.
·      His rights cannot be taken away regardless of the laws the government put in place because the 1948 Universal Declaration of Human Rights applies.
·     He made a CDDA claim as the government has a duty of care to look after him.
·     He believes that the government failed to deliver that duty of care and for this reason, he should be compensated for reasonable economic loss.
·     Centrelink did not tell him what they wrote about him in 2007.
·     The Centrelink decision in June 2022 did not comment on his material and instead, purely focused on saying that even if they had found that he had qualified for the DSP at the time of his 2007 claim, he cannot get anything because of the 13-week rule.
·     The 13-week rule is fake and used purely because they do not want to pay for their mistakes.
·     The 2007 refusal to grant him the DSP had a high impact on his condition and 5 years later he reapplied using the same material and was granted the DSP.
·     The decision makers say that they have done nothing wrong, and that they are just following the law.
·     His initial DSP application in 2007 was not processed correctly by Centrelink.
·     He understands the Tribunal can only do what the law says.
·     He is preparing to take his story to the news and to protest outside of his local member’s office.
The Respondent submitted that the SSCSD decision in question was not made pursuant to section 43(1) of the AAT Act and as such, it was not reviewable by the General Division of the Tribunal. The Respondent submitted that section 179(1) of the Administration Act had not been enlivened. The Respondent further submitted that the various Tribunal decisions which found that the General Division had jurisdiction to consider an application where the SSCSD had made a decision to dismiss an application pursuant to section 42A(4) of the AAT Act,[1] should be distinguished.
[1] Having found that it did not have jurisdiction to consider the application.
The Respondent sought to rely on the Tribunal decision in Chen and Secretary Department of Social Services [2023] AATA 344 (Chen). The Respondent submitted:
45.In Chen the AAT1 dismissed an application for review in respect of Family Tax Benefit and Paid Parental Leave pursuant to subsection 42B(1) of the AAT Act for lack of prospects of success. The Applicant then sought further review of the dismissal decision with the General Division. The General Division found that the AAT1 had made a legal error in finding that the Applicant’s application for review had no prospects of success as the AAT1 had misinterpreted the relevant legislation.
46.The Secretary and the Applicant’s legal counsel in Chen submitted to the General Division that it should treat the AAT1 decision to dismiss as in effect being an affirmed decision made pursuant to subsection 43(1) of the AAT Act and therefore find it had jurisdiction to consider the merits of the case.
47.The General Division in Chen disagreed with the parties submissions that it could treat the subsection 42B(1) of the AAT Act dismissal as in effect being an affirmed decision. Instead, the Tribunal in Chen found that the dismissal was not a decision made pursuant subsection 43(1) of the AAT Act which would allow further review and noted the following:
The Applicant and the Respondent proposed that the General Division of the Tribunal could decide to treat the decision made by the AAT1 on 19 April 2021 to dismiss Ms Chen’s application under section 42B(1) of the AAT Act as ‘essentially affirm[ing] the decision under review’ and submitted this approach could allow the General Division to accept jurisdiction and hear Ms Chen’s application for review.
Compelling and consonant arguments to support this pragmatic approach were made by the parties. These included an observation that the AAT1 decision had written reasons that identified the facts and relevant legislation, and had an effect similar to the AAT1 making a decision to affirm the decision under review. Indeed, I accept that the last sentence of the AAT1 decision could have been written as, ‘As no discretions exist, the Tribunal affirms the decisions under review’, rather than ‘As no discretions exist, the Tribunal dismisses the application as there are no reasonable prospects of success’ (with a footnote reference to paragraph 42B(1)(b) of the AAT Act).
The Applicant’s legal representative further highlighted that adopting this approach would be consistent with section 2A of the AAT Act that states the Tribunal, in carrying out its functions, must pursue the objective of providing a mechanism of review that is:
·     accessible, fair, just, economical, informal and quick;
·     proportionate to the importance and complexity of the matter; and
·     promotes public trust and confidence in the decision‑making of the Tribunal.
I accept the AAT1 decision made on 19 April 2022 to dismiss the Applicant’s application under subsection 42B(1) of the AAT Act has similar characteristics to the AAT1 deciding to affirm the decision under review in accordance with section 43. However, for the following reasons, I cannot find that the AAT1 decision should be treated as though it was made under section 43 of the AAT Act either as a matter of form or of substance.
First, both section 237 of the PPL Act and subsection 43(1) of the AAT Act state that for a decision to be reviewed by the General Division of the Tribunal, a decision shall have been made to affirm, vary or set aside the decision under review. In particular, subsection 237(1) of the PPL Act only provides for an application to be made to the General Division of the Tribunal for review of a decision made by the AAT1 under subsection 43(1) of the AAT Act. I am satisfied there is no provision anywhere in the PPL Act or the AAT Act that allows the General Division to review a decision by the AAT1 to dismiss an application under section 42B of the AAT Act.
Although I am not bound by another Tribunal decision, I note that this finding is consistent with the decision in SPWX and Secretary, Department of Social Services (Social services second review) (SPWX), in which Member Burke determined the General Division’s jurisdiction to hear an application was not enlivened as the AAT1 had not made a decision to affirm, vary or set aside the decision under review.
Second, an application dismissed summarily under section 42B of the AAT Act is a final decision as it effectively ‘disposes of the application’. This is consistent with the case law; for example, his Honour French J (as he then was) in Duncan v Fayle found that the decision to dismiss the application under section 42B ‘was a decision by the Tribunal finally disposing of the proceeding’, which meant the decision was ‘amenable to appeal for error of law under s 44 of the [AAT] Act’…
Based on my reasons set out above, I am not satisfied the General Division of the Tribunal has jurisdiction to hear Ms Chen’s application to review the AAT1 decision made on 19 April 2022.
The Tribunal dismissing an application under section 42B of the AAT Act is enacting a power that is final. This is deliberate as the summary dismissal of an application allows the Tribunal to deal with applications that are vexatious or lack substance or are an abuse of Tribunal process at any stage of a proceeding. However, the courts – including the High Court in Spencer v Commonwealth of Australia – have consistently warned that the power to dismiss an application under section 42B of the AAT Act should be exercised with caution and the Tribunal should have a high degree of certainty about the ultimate outcome.
I acknowledge that, on the basis of this decision, there are significant ramifications for applicants where the AAT1 utilises the power under section 42B of the AAT Act to dismiss an application…”
48.In making its decision in Chen the Tribunal appeared to be drawing a distinction between cases where the AAT1 had dismissed a matter for lack of jurisdiction (subsection 42A(4) of the AAT Act) and cases where the Tribunal had made a decision finally disposing of the matter by means of subsection 42B(1) of the AAT Act.
……
51.The applicant in Chen following the General Division decision made an application to the Federal Court for an appeal of both the AAT1 decision and the General Division decision. The Secretary opposed the appeal in respect of the General Division decision but concurred in respect of the AAT1 decision. The Federal Court in consent orders dealt with the matter by setting aside the AAT1 decision and remitting the matter back to that division of the Tribunal.
52.The Secretary contends that the Tribunal was correct in its reasoning in Chen. A decision of the AAT1 to dismiss a matter pursuant to subsection 42B(1) of the AAT Act is a decision finally disposing of the matter and this can be distinguished from cases where the AAT1 has found it lacked jurisdiction. The avenue of relief to an applicant disaffected with a decision of the AAT1 to dismiss an application for review pursuant to subsection 42B(1) of the AAT Act is to seek judicial review either pursuant to either section 44 of the AAT Act or by means of the Administrative Decisions (Judicial Review) Act 1977.
53.The Secretary accordingly seeks a decision of this Tribunal to decline to accept the Applicant’s application for second review pursuant to subsection 42A(4) of the AAT Act.
CONSIDERATION ON JURISDICTION

As set out above, the Tribunal has no general review powers, its jurisdiction does not extend to reviewing all decisions made by government agencies. The Tribunal’s jurisdiction is limited to reviewing a decision if it is given jurisdiction to do so by a specific provision of an enactment.[2]
[2] Re Laird and Australian Broadcasting Tribunal (1979) AAT 78/122; Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309 and Chen and Secretary, Department of Social Services [2023] AATA 344.
It is, as stated in Re Staats and National Archives of Australia [2009] AATA 598; (2009) 50 AAR 149 at 149-150, “…essential to look very carefully at the provisions of the enactment said to give rise to the jurisdiction to review to make sure that the jurisdiction extends to the particular decision in respect of which a review is sought.”
As such, while the Tribunal acknowledges the Applicant’s continued dissatisfaction with the decision-making process in question, it is the Administration Act that outlines the Tribunal’s jurisdiction to consider the matter. To that end, the Tribunal agrees with the decision of the Tribunal in Chen and the submissions made by the Respondent.
The Tribunal has reviewed the precedents drawn to its attention in relation to its jurisdiction to undertake a second review where the SSCSD has made a decision pursuant to a provision other than section 43 of the AAT Act. The Tribunal agrees with the reasoning of Member Dr Bygrave in Chen (as set out above), that a decision to dismiss an application based on a finding of no reasonable prospects of success cannot be taken to have also been a decision made pursuant to section 43 of the AAT Act.
The Tribunal considers in the present case, where the SSCSD has decided to dismiss the application on the basis of finding it had no prospects of success due to an operation of law rather than due to having made an assessment of the substantive matter of which review was being sought, it is not reasonable to take that decision as being anything other than a decision made pursuant to section 42B of the AAT Act.
The Tribunal’s jurisdiction to undertake a second review has not been enlivened by section 179 of the Administration Act in circumstances where the SSCSD did not make a decision pursuant to section 43(1) of the AAT Act to affirm, vary or set aside and substitute a new decision.
For those reasons, the Tribunal finds that there is no reviewable decision before it and as such, it does not have jurisdiction to hear the application. Consequently, the Tribunal dismisses the application pursuant to section 42A(4) of the AAT Act.
IN THE ALTERNATIVE, SHOULD THE APPLICANT BE GRANTED AN EXTENSION OF TIME TO MAKE AN APPLICATON FOR REVIEW OF THE DECISION PURSUANT TO SECTION 29(7) OF THE AAT ACT?
For completeness, if the Tribunal is wrong in finding it does not have jurisdiction to hear the application, it has considered whether or not the Applicant should be granted an extension of time to make an application for review of the decision in question.
Section 29(2) of the AAT Act outlines that an application for review must generally be lodged within 28 days of the Applicant receiving notice of the decision. However, section 29(7) of the AAT Act permits the Tribunal to extend the time for the making of an application to the Tribunal, if it is satisfied that it is reasonable in all the circumstances to do so.
The Federal Court in Hunter Valley Developments Pty Ltd & Ors v The Hon. Barry Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176 set out a series of factors that may be relevant in considering whether an extension of time for an application should be granted. Those factors have widely been accepted by both the Federal Court and the Tribunal.
Consequently, the Tribunal considers that the relevant factors to be taken into consideration in the present matter include the length of delay, awareness of appeal rights and explanation for the delay, prospects of success, prejudice, and alternative avenues of relief. In determining whether to grant an extension of time, the Tribunal must weigh together all of the relevant factors.[3]
[3] Zizza v Federal Commissioner of Taxation [1999] FCA 37; (1999) 55 ALD 451.
At the Telephone Interlocutory Hearing, the Applicant told the Tribunal that the extension of time considerations should be disregarded. He said that the extension of time considerations were irrelevant because Centrelink did not do things right in the first place and had not actioned what it was that he had proved.
The Respondent provided submissions outlining its view that the Applicant’s application for an extension of time to make an application for review should be refused.
Length of Delay
In relation to the length of delay, the SSCSD decision was emailed with a cover letter dated 7 November 2022.
As the decision was served by email, the Applicant is taken to have received it on the day that the email was sent, meaning that an application for review should have been made by

5 December 2022, being within 28 days of 7 November 2022.
Consequently, the application for review of the SSCSD decision is approximately 323 days out of time.
At the Telephone Interlocutory Hearing, the Applicant said that the delay was irrelevant. The Respondent contended that the delay is significant.
The Tribunal considers the delay in this matter to be substantial and weighs against the granting of an extension of time.
Explanation for delay and awareness of appeal rights
The Tribunal observes that Parliament has provided in legislation a 28-day time limit to indicate the need for finality in decision‑making.
However, the Tribunal notes that the cover letter sent by the SSCSD with its decision, did not include review rights. As such, the Applicant was not put on notice of his review rights or the timeframe within which he was required to exercise them. In such circumstances, the Tribunal considers that it was not unreasonable for the Applicant not to seek further review of the decision within the 28-day timeframe. As such, the Tribunal considers that this factor weighs in favour of granting an extension of time.
Prospects of success
It is not appropriate at this juncture, for the Tribunal to embark on a full examination of the substantive issues of the application for review. However, it may be that the stronger the apparent merits of that application, the more likely that granting an extension of time would be appropriate.[4]
[4] Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516.
The substantive application in this matter relates to whether or not the Applicant met the requirements to be granted the DSP on 5 March 2007, when he made his claim or within 13 weeks thereafter (Relevant Period).[5]
[5] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.
At the very highest level,[6] in order to be eligible to be granted the DSP, a person is required during the Relevant Period to have:
(a)a physical, intellectual or psychiatric impairment;[7]
(b)impairments that attract 20 points or more under the Impairment Tables;[8] and
(c)a continuing inability to work.[9]
[6]     For a full outline of the DSP requirements see: Stevenson and Secretary, Department of Social Services [2023] AATA 142 at paragraphs 8-19.
[7] Section 94(1)(a) of the Social Security Act 1991 (Cth) (the Act).
[8]     Section 94(1)(b) of the Act and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
[9]     Section 94(1)(c) of the Act.
While the Applicant is seeking to have his eligibility for the DSP during the Relevant Period re-examined, both the ARO and the SSCSD have found that because the date of effect of any successful application would mean that the Applicant could only be paid the DSP from a date when he was already in receipt of the DSP, he had no reasonable prospects of success.
In most instances, where review rights exist under social security law, there is no fixed time frame within which a person may seek either internal review of an initial decision or review by the SSCSD of an ARO decision. The point in time that such a request for review is made does however, impact on the date of effect of a favourable determination resulting from such a review.
Section 107 of the Administration Act simply put, provides that where a decision is made rejecting a person’s claim for social security payments or a concession card and a request for review of that decision is not made within 13 weeks of the decision being made, the date of effect of any favourable determination arising from that review would be the date the request for review was made, rather than from the date that the reviewable decision was made.
Relevantly, section 107 of the Administration Act provides:
Subdivision A—Determinations relating to claims
107 General rule
(1) Subject to subsections (2), (3), (4) and (5), a determination under section 37 takes effect on the day on which the determination is made or on such earlier or later day as is specified in the determination.
(2) If:
(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment or a concession card; and
(b) the person is given a notice informing him or her of the original decision; and
(c) within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last‑mentioned decision takes effect on the day on which the determination embodying the original decision took effect.
(3) If:
(a) a decision (the original decision) is made rejecting a person’s claim for a social security payment or concession card; and
(b) the person is given a notice informing him or her of the original decision; and
(c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) a decision that the claim be granted is made as a result of the application for review;
the determination embodying the last‑mentioned decision takes effect on the day on which the application for review was made.
……
At the Telephone Interlocutory Hearing, the Applicant told the Tribunal that the 13-week rule was a fake front to avoid payment, and that it does not matter that he has proven that the 2007 decision was wrong.
The Respondent contended that:
78.The Applicant’s claim for a DSP was rejected on 20 April 2007 and he was given notice of this decision (Attachment C). The Applicant sought internal review of the decision on 1 June 2022 via the Tribunal (Attachment A and Attachment F).
79.The Applicant has been in receipt of a DSP from 21 June 2013
(Attachment D).
80.A review of the customer online document recordings for the period
20 April 2007 to 21 June 2013 shows no recording of the Applicant seeking review of the 20 April 2007 rejection decision (Attachment E).
81.This means that even if the Applicant is successful in respect of the review of the 20 April 2007 rejection decision, the date of effect of the new determination granting the claim would be 1 June 2022 a date from which the Applicant was already in receipt of a DSP.
82.When the AAT1 heard the application for review the Tribunal noted that the Applicant accepted that he had been given notice of the rejection decision, an explanation of the decision, and advice regarding his appeal rights, but that he did not think it reasonable or appropriate that a person’s right to back pay should be restricted.
83.For the same reasons that the AAT1 dismissed the Applicant’s preceding application for review the Secretary submits that the Applicant’s substantive application for review has no reasonable prospects for success and this weighs significantly against the granting of an extension of time in this case.
Based on the evidence before it, the Tribunal is satisfied that the Applicant did not seek internal review of the decision of 20 April 2007 to refuse his claim for the DSP until

1 June 2022. The Applicant did not dispute this fact. As such, it is clear that the Applicant did not seek a review of the 20 April 2007 decision within 13 weeks of having received the decision or at a time earlier than 1 June 2022.
Consequently, given the operation of section 107(3) of the Administration Act, even if the Tribunal was to find that the Applicant was eligible for the DSP at the time of making his 2007 claim, the date of effect of such a decision would be 1 June 2022. The Applicant had been granted the DSP from 21 June 2013. As such, in circumstances where no discretion exists, there is no facility available for back pay to be provided to the Applicant in relation to the period between 5 March 2007 and 21 June 2013.
The Tribunal acknowledges the Applicant’s submissions that he believes that his claim for the DSP was not correctly assessed and that his rights to the DSP cannot be extinguished by an operation of law. Unfortunately, there is no discretion available to the Tribunal that would affect the operation of section 107(3) of the Administration Act, meaning that any exercise of reassessment of his 2007 claim for the DSP would be futile. As such, the Tribunal has not engaged in an analysis of the Applicant’s prospects of success in relation to his eligibility for the DSP at the time of his 2007 claim, given that no practical effect would result from a favourable decision.
Consequently, the Tribunal considers that the Applicant’s prospects of success in relation to the substantive matter are extremely poor, if not, non-existent. This weighs against the granting of an extension of time.
Alternative avenues of relief
If the Applicant continues to seek review of the SSCSD decision, it is open to the Applicant to explore his Federal Court review rights. The Tribunal notes that the Federal Court may also have time limitations in place regarding timeframes for lodging an appeal.
The Tribunal considers that this factor is neutral in deciding whether to grant an extension of time.
Prejudice
In considering whether any prejudice or unfairness arises in relation to granting or not granting the Applicant’s extension of time application, the Tribunal refers to the general position that once a decision is made and a review period has been provided, beyond that period there is an expectation that the matter is finalised.[10]
[10] Mason and John Holland Pty Ltd (Compensation) [2018] AATA 415.
The Respondent contended that 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.
The Respondent further contended that it would suffer prejudice if an extension of time was to be granted on the basis of having to incur litigation costs in defending an appeal with no merit.
The Tribunal accepts that given its findings above in relation to the prospects of success and the time that has passed since the Applicant’s 2007 DSP claim, the Respondent would be rejoiced if an extension of time was granted.
The Tribunal considers that there is no injustice in not granting the Applicant an extension of time that would displace the principle that granting an extension of time in this matter would be contrary to the public interest. Finality of government decisions is a general public expectation and, in this case, to grant an extension of time to make an application would create perceptions of unfairness.
Conclusion
None of the factors outlined above are of themselves, determinative of whether or not, in the circumstances, it is appropriate to grant the Applicant an extension of time to make his application for review of the SSCSD decision. Consideration of the factors as a whole is necessary.
Based on the material before it, the Tribunal has found that the length of delay in making the application for review is significant, the reasons for that delay are reasonable, the prospects of success of the application are extremely poor, if not non-existent, there are alternative review rights that may be open to the Applicant, that there is no injustice that arises in this case that counteracts the prejudice to the public and the Respondent should an extension of time be granted.
Consequently, as a result of these findings, the Tribunal considers that if it did have jurisdiction to consider the Applicant’s application, it would not be satisfied that it was appropriate in the circumstances to grant the Applicant an extension of time to make the application pursuant to section 29(7) of the AAT Act. In such circumstances, if the Tribunal had jurisdiction to consider the Applicant’s application, it would refuse the Applicant’s application for an extension of time to make an application for review of the

2 November 2022 decision of the SSCSD.
DECISION
The Tribunal notes that the letter received by the Applicant dated 11 October 2023 from a representative of the Respondent on behalf of the Honourable Amanda Rishworth MP, indicated that he could seek review of the SSCSD decision by making an application to the General Division of the Tribunal. In general terms, such advice would ordinarily be sound. However in this instance, as the circumstances surrounding the Applicant’s application for review are outside of the ordinary course of second review applications[11] and he had not sought review within the prescribed time frame, the Tribunal has found that the Applicant does not have review rights as outlined in that letter.
[11] Being that the SSCSD decision was not made in accordance with section 43(1) of the AAT Act.
The Tribunal finds that it does not have jurisdiction to consider this application.
Consequently, pursuant to section 42A(4) of the AAT Act, the Applicant’s application for review is dismissed.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.......................[SGD].........................
Associate
Dated: 13 March 2024

Date of hearing:

22 January 2024

Applicant: By phone

Solicitors for the Respondent: Ms Simone Cameron
Services Australia

Date of hearing:	22 January 2024
Applicant:	By phone
Solicitors for the Respondent:	Ms Simone Cameron Services Australia