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

[2018] AATA 4077

Subramaniam and Secretary, Department of Social Services (Social services second review) [2018] AATA 4077 (31 October 2018)

Division:GENERAL DIVISION

File Number:           2018/4077

Re:Rajanathan Subramaniam

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:31 October 2018

Place:Adelaide

The application for extension of time is refused.

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Senior Member B J Illingworth

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time – principles relevant to the grant of an extension of time – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused

LEGISLATION

Administrative Appeals Tribunal Act 1975

CASES

Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516

Comcare v A’Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Kulijic v Secretary, Department of Social Security (1994) 33 ALD 121
Re Grafton and Commonwealth (1998) 16 ALD 533
Re Romeo and Secretary Department of Social Security (1992) 26 ALD 248

Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381

REASONS FOR DECISION

Senior Member B J Illingworth

31 October 2018

INTRODUCTION

1. Mr Rajanathan Subramaniam (“the Applicant”) has applied for an extension of time to review the decision of the Social Services and Child Support Division (“AAT1”) made on 27 March 2018, which decided that the Applicant’s aged pension entitlement was to be calculated from 30 June 2017 on the basis that he was then a member of a couple.

2. On 30 June 2017, the Applicant remarried his former wife with whom he had been sharing accommodation since 14 September 2016. On 9 August 2017, the Applicant advised Centrelink of the marriage.

3. On 18 October 2017, Centrelink decided the Applicant was a member of a couple from 30 June 2017 and a debt of $744.10 was raised. The Applicant requested a review of this decision. The decision was reviewed by an Authorised Review Officer (“ARO”) who, on 11 December 2017, found the Applicant was a member of a couple from 7 April 2014 and thereby owed a debt of $15,729.94 as a consequence of an overpayment of his aged pension. The Applicant sought further review at the Tribunal.

4. On 27 March 2018, the AAT1 then overturned the decision by the ARO dated 11 December 2017 substituting a decision that the Applicant was a member of a couple since 30 June 2017 and the debt was reduced to $744.10.

5. The AAT1’s decision was posted to the Applicant on the 9^th day of April 2018. The Applicant had 28 days from receipt of notice of the AAT1 decision to review that decision.

6. On 18 July 2018, the Applicant applied for review by the General Division of the Administrative Appeals Tribunal (“AAT2”) of the AAT1 decision and in doing so was approximately 70 days out of time within which to review that decision. The Respondent opposes the application for extension of time.

   LEGISLATIVE FRAMEWORK AND THE LAW

7. Section 29(2) of the Administrative Appeals Tribunal Act 1975 (“the Act”) allows the Tribunal to extend the time for the making of applications “if the tribunal is satisfied that it is reasonable in all the circumstances to do so.”

8. In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J set out a number of non-exhaustive criteria that can be taken as a guideline for the Tribunal’s determination of extension of time applications.[1] The criteria can be summarised as:

   (a)Whether the Applicant has shown an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;

   (b)Whether the Applicant has rested on his rights and allowed the decision-maker to believe that the matter has finally concluded;

   (c)Whether there has been any prejudice to the Respondent as a result of the delay in the making of the application; and

   (d)Whether there is merit in the substantive application.

   [1] See also Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516.

9. I acknowledge that the decision in Hunter Valley was concerned with an extension of time in a different statutory context, namely the Administrative Decisions (Judicial Review) Act 1977. However, I note that the decision in Hunter Valley has been cited with approval by numerous Tribunal decisions, although with the caveat that “too slavish” adherence to the Hunter Valley guidelines should be avoided.[2]

   [2] Brown v Federal Commissioner of Taxation (1999) 42 ATR 118, 128 [41] per Hill J.

10. An applicant is expected to provide an acceptable explanation for the delay on bringing the application for review out of time.[3] In circumstances where an applicant is fully aware of the right to review the decision but failed to do so within time, the Tribunal has decided not to grant an extension of time.[4] 

    [3] Comcare v A’Hearn (1993) 45 FCR 441 at 444.

    [4] Re Grafton and Commonwealth (1998) 16 ALD 533; Re Romeo and Secretary Department of Social Security (1992) 26 ALD 248; Re Civic Tavern Pty Ltd and ACT Liquor Licensing Board (1993) 32 ALD 381.

11. The question of the consideration of the merits of the proposed application for review was considered in Kulijic v Secretary, Department of Social Security (1994) 33 ALD 121 at 122 where Justice Von Doussa said:

    One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on the appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.

    RESPONDENT’S SUBMISSIONS

12. The Respondent submitted that the following factors were relevant to the Tribunal’s consideration of the application namely:

    (a)the length of the delay,

    (b)the Applicants awareness of his appeal rights and the absence of acceptable explanation for the delay,

    (c)the prospects of success, and

    (d)alternative avenues of relief available to the Applicant.

13. The delay was said to be substantial, and when viewed against the reason for that delay it was argued that the Applicant “rested on his rights.” The reason for the delay is explained by the Applicant in his application form as follows:

    “I did not clearly understand that I did not have to pay for the second appeal. I was under the impression that I had to pay, due to the financial stress I was unable to make a decision. But now knowing that [sic] I will not have to pay I took the extension”.

14. The Respondent submitted that the explanation was wholly unsatisfactory and given the length of the delay, and the absence of any other explanation, the Tribunal should refuse the application. Further that given the stated reason for the delay, it was not fair and equitable to depart from the legislative time period within which to bring the application. Further that if the Applicant was truly aggrieved by the decision but concerned about the cost of bringing the application, his apparent failure to make any inquiry of the Tribunal about his rights and entitlement to wave any costs is significant. The Respondent referred to the letter sent to the Applicant together with the decision which relevantly said:

    “You may apply to the AAT for a second review of the decision. Information about how to apply is available at or by calling us on 1800 228 333.

    There are time limits for making an application for review (28 days after giving of the document setting out the terms of the AAT’s decision).”

15. The Respondent also argued that the Applicant did not refer in his application to any defect in the AAT1 decision. His sole reason for failing to make the application within time was a financial consideration. On the face of the application for extension of time, no merit in reviewing the decision of the AAT1 was apparent. Further it was argued that the AAT1 heard evidence from the Applicant and his wife and there is no suggestion of any factual error having been relied on by the AAT1 in coming to the decision. There has also been no further evidence tendered in these proceedings to suggest the factual circumstances have changed.

16. The Respondent also submitted that if there has been any change in the Applicant’s marital relationship since the decision, it was open to him to inform the Department of Human Services and request a change in his rate of pension.

    FINDINGS OF FACT

17. The Applicant did not dispute the findings of fact made by the ARO. It is useful to here detail those relevant findings, namely:

    (a)The Applicant and his wife divorced on 24 September 2004;

    (b)On 30 May 2016 the Applicant advised the Department that he was living with his former wife however would continue to be separated under one roof;

    (c)The Applicant and his wife were legally married on 30 June 2017;

    (d)Since 1 June 2016 the Applicant and his wife have lived together at a rental property with their son;

    (e)Prior to 21 December 2017, the funeral policy that the Applicant has with Insuranceline indicated that his wife was the beneficiary.

    APPLICANT’S SUBMISSIONS

18. The Applicant referred to the financial pressure he faced because of the change in his pension entitlement. He said he was an independent person who was previously married but divorced and lived separately from his wife and son. He acknowledged the change in that arrangement as identified by the AAT1.

19. The Applicant confirmed the reasons he and his wife resumed cohabitation was because of his health issues, and his son, who was approximately 18 years of age, had for some time been assisting the Applicant in his daily care. His son was living with his mother and because the son had started university studies, and with his son’s encouragement, the Applicant returned to live in the same premises as he and the Applicant’s former wife.

20. Following his return to the home a number of events occurred with Centrelink namely;

    (a)On 30 May 2016, the Applicant advised Centrelink that from 1 June 2016 he and his former wife would be living in the same premises albeit separately and apart under the same roof.

    (b)On 9 August 2016 the Applicant advised Centrelink that he and his former wife remarried on 30 June 2017, and as a consequence of that advice Centrelink decided that the Applicant was a member of  a couple on and from June 2017 and consequently a debt was raised against the Applicant in the sum of $744.10.

    (c)The Applicant applied to review that decision and the ARO decided that the Applicant was a member of a couple from 7 April 2014 and was therefore overpaid $15,729.94. The Applicant sought a further review and the AAT1 varied the ARO’s decision on 27 March 2018, deciding that the Applicant was a member of a couple with his wife from 30 June 2017 and the resultant debt was $744.10.

21. The Applicant said he was in a difficult situation at the moment given the current living circumstances. He does not know what his future holds once his son graduates from university. The Applicant and his wife occupy separate bedrooms however they share equally the general household living expenses and share general household duties.

22. With respect to his financial and household contributions, the Applicant gave evidence of the following:

    (a)Since 10 January 2018 the Applicant has paid $150 per fortnight towards the rent, and his wife meets the remaining rental costs;

    (b)The Applicant pays the quarterly gas bill and his wife pays the quarterly electricity bill;

    (c)The Applicant and his wife have separate bank accounts;

    (d)The Applicant’s wife cooks meals for the Applicant and does some of his washing. On occasion she also assists the Applicant with respect to his health issues; and

    (e)In all other respects the Applicant lives independently from his wife.

23. The Applicant said the reason for the delay in making the application was because of the Applicant’s health and monetary difficulties at the time. There was no medical evidence before the Tribunal about the Applicant’s health issues and his submission was general in nature and did not identify any pressing health issue which impacted upon him to an extent that he was prevented from making the application for review.

    CONCLUSION

24. At its highest the Applicant wanted the Tribunal to review the decision of the AAT1 to see if it was correct, rather than identifying any error in the findings of fact and reasoning which might give rise to any miscarriage of justice. The Applicant maintained that he is in financial difficulty because of the decision by the AAT1, and this has impacted upon his level of independence.

25. The Applicant knew of his right to review the decision of the AAT1. His reason for not doing so was because of his belief that there was an associated cost with the filing of the application, albeit it is not clear what he believed that cost may be. He did not contact the Tribunal to make any inquiry about such application, and on the material before me I am not satisfied that there was any health issue which was impacting upon the Applicant and preventing him from making any or adequate inquiry or filing the application within time.

26. The explanation for the delay in those circumstances is unsatisfactory.

27. The Respondent did not suggest any prejudice if the application for extension of time was accepted, however argued that given the delay and lack of explanation the Applicant had nonetheless “rested on his rights”. The Tribunal accepts the Applicant was fully aware of his appeal rights and allowed the Respondent to believe the matter had concluded.

28. The Applicant asked the Tribunal to grant the extension of time and review the decision of the AAT1 on “humanitarian grounds.” He wanted another, to look at the AAT1 decision to decide if it was correct. That submission demonstrated a lack of understanding of the role and function of the Tribunal in reviewing the decision of the AAT1.

29. It is not appropriate for this Tribunal to embark on a trial of the merits[5] on an application for extension of time, however the apparent merits of the Applicant’s case is relevant in considering whether granting an extension of time is appropriate. On the face of the evidence, in the absence of any identified error with respect to the findings of fact by the AAT1, and the application of those facts to general legal principles, the Tribunal finds there is no prospect of success on a review of that decision.

    [5] Brown v Federal Commissioner of Taxation (1999) 99 ATC 4516, [29], [38] per Hill J.

    DECISION

30. The application for extension of time is refused.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated: 31 October 2018

Date of interlocutory hearing:	14 September 2018
Applicant:	In person
Advocate for the Respondent:	Mr Joshua Stewart
Solicitors for the Respondent:	Department of Human Services