Thien Hong Van and Secretary, Department of Social Security
[2013] AATA 951
[2013] AATA 951
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5367, 5368
Re
Thien Hong Van
APPLICANT
And
Secretary, Department of Social Security
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 25 November 2013 Date of written reasons 9 January 2014 Place Melbourne The Tribunal refuses the application for an extension of time
..............................[sgd]..........................................
G. D. Friedman, Senior Member
PRACTICE AND PROCEDURE – extension of time to lodge application for review – application refused
Administrative Appeals Tribunal Act 1975 s 29(7)
Social Security Act 1991 s 1237A, 1237AAD
Social Security (Administration) Act 1999 s 68
Hunter Valley Developments Pty Ltd v Cohen,Minister for Home Affairs and Environment (1984) 3 FCR 344
REASONS FOR DECISION
G. D. Friedman, Senior Member
9 January 2014
On 13 May 2013 a Centrelink authorised review officer (ARO) made a decision that Mr Van had newstart allowance debts of $16,635.71 for the period 29 July 2004 to 4 October 2006 and $46,987.06 for the period 9 January 2007 to 7 November 2012.
On 9 September 2013 the Social Security Appeals Tribunal (SSAT) set aside the ARO decision, remitting the matter to Centrelink with directions that the debts be recalculated, omitting the payments made into one of Mr Van’s bank accounts.
On 18 October 2013 Mr Van applied to this Tribunal for review of the SSAT decision and on 24 October 23 he lodged an application for an extension of time.
ISSUE
The issue before the Tribunal is whether an extension of time within which to lodge an application for review should be granted.
RELEVANT LEGISLATION AND PRINCIPLES
Section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) states:
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.
In determining applications for extensions of time, the Tribunal has been guided by the principles enunciated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. He stated at [18]:
…The ‘prescribed period’ of 28 days is not to be ignored… Indeed, it is the prima facie rule that proceedings commenced outside the period will not be entertained… It is a pre-condition to the exercise of the discretion in his favour that the application of an extension of time show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.
His Honour set out another five principles:
·Whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as having been finalised;
·Any prejudice to the respondent or any other party;
·The absence of such prejudice is insufficient to justify the grant of an extension and any wider prejudice to the general public in terms of disruption to established practices or the unsettling of other people;
·The merits of the substantive application are to be properly taken into account;
·Considerations of fairness between the applicant and other people in a similar position are relevant to the exercise of the discretion.
The legislation under which the decision under review was made is the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act), and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
Section 94 of the Act details the qualification for disability support pension:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
….
CONSIDERATION
EXPLANATION FOR THE DELAY
Mr Van, through the assistance of an interpreter, told the Tribunal that he had misread the letter from the SSAT explaining that he had 28 days to lodge an application for review with this Tribunal. Mr Van also told that Tribunal that the person assisting him by translating the letter made a mistake in their translation of the relevant application period.
Mr Van’s statement that he misread the SSAT letter is not an appropriate explanation for the delay. Mr Van has been an Australian resident since 1990, during which time he has received social security benefits that have required regular completion of application for payment forms and compliance with the activity test. Therefore, he is familiar with the necessity to comply within particular periods.
The Tribunal is not satisfied that Mr Van has a reasonable excuse for being out of time and finds that this factor weighs against granting an extension of time.
HAS THE APPLICANT RESTED ON HIS RIGHTS
The SSAT made its decision on 9 September 2013 and despatched it to Mr Van on 12 September 2013. Mr Van has not attempted to notify the respondent or the Tribunal of his intention to seek review prior to his application to the Tribunal on 18 October 2013. The Tribunal finds that Mr Van has rested on his rights and this factor weighs against granting an extension of time.
PREJUDICE TO OTHER PARTIES
There is little evidence to suggest that the respondent would suffer significant prejudice if an extension of time were granted and the Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.
WIDER PUBLIC CONSIDERATIONS
Time limits for review of administrative action should be observed in order to assist the proper administration of government agencies. There is also a public expectation that there be a degree of certainty relating to time limits. The Tribunal finds that this factor weighs against granting an extension of time.
THE MERITS OF THE SUBSTANTIVE APPLICATION
Mr Van’s entitlement to newstart allowance is subject to an income test. Centrelink undertook an investigation into Mr Van’s income and assets during the period he was in receipt of newstart allowance, finding that due to his level of income from July 2004 onwards he was paid more than his correct entitlement. During his SSAT hearing Mr Van was unable to explain the source of payments made into several of his bank accounts, and funds were found to have come from undisclosed sources. The SSAT did find that payments into one bank account were made from his payments of newstart allowance and remitted the matter to the respondent with directions that his debts be recalculated, omitting payments made into that bank account. Mr Van told the Tribunal that he was not satisfied with the SSAT’s decision, however he could not produce any additional documents to this Tribunal supporting his contentions about the source of deposits in his bank accounts.
The respondent accepts that Mr Van’s debt will need to be recalculated in light of the SSAT decision. The respondent submitted that following the recalculation Mr Van was overpaid newstart allowance of $15,071.55 for the period 29 July 2004 to 4 October 2006 and $46,039.18 for the period 9 January 2007 to 7 November 2012.
Under section 1237A of the Social Security Act 1991 (the Social Security Act ) Mr Van’s debts cannot be waived due to his failure to comply with the information notices about income disclosures under section 68 of the Social Security (Administration) Act 1991.
Section 1237AAD of the Social Security Act provides that a debt may be waived in certain circumstances. As Mr Van knowingly made false representations to Centrelink resulting in his debts, his circumstances do not meet the requirements for a waiver under this provision.
The Tribunal finds that there is little prospect of success in the substantive application, so this factor weighs against granting an extension of time.
CONSIDERATIONS OF FAIRNESS
There is nothing unique about Mr Van’s situation, or in the reasons he put forward to explain his delay in seeking review by the Tribunal, that would make his situation markedly different to other applicants in similar situations. The Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.
CONCLUSION
The Tribunal finds that the two significant factors against granting Mr Van an extension of time are the lack of an acceptable explanation for the delay and the little prospect of success in his substantive application. In considering all of the relevant factors the Tribunal is not satisfied that is reasonable in all the circumstances to exercise the discretion to grant an extension of time.
DECISION
The Tribunal refuses the application for an extension of time.
I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. ..............................[sgd]..........................................
Associate
Dated 9 January 2014
Date of hearing
Date of written reasons
25 November 2013
9 January 2014
Applicant Self-represented Advocate for the Respondent Mr T Noonan Solicitors for the Respondent Department of Human Services Legal Division
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