Tighe and Secretary, Department of Social Services
[2017] AATA 408
•31 March 2017
Tighe and Secretary, Department of Social Services [2017] AATA 408 (31 March 2017)
Division:GENERAL DIVISION
File Number(s): 2012/5160; 2016/2828
Re:Craig Tighe
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:31 March 2017
Place:Sydney
Tribunal refuses the applications:
(a)to extend the time within which to lodge the application dated 27 May 2016, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth);
(b)to reinstate matter 2012/5160, pursuant to s 42A(9) of the Administrative Appeals Tribunal Act 1975 (Cth).
............................[sgd]............................................
Mrs J C Kelly, Senior Member
Catchwords
PRACTICE AND PROCEDURE – extension of time – application for review lodged out of time – whether satisfactory or acceptable explanation for delay – whether prejudice to the respondent – merits of substantive application – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused – reinstatement of application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 29(2), (7), 41(2), 42A(2), (4), (8A), (8B), (9), 43
Social Security Act 1991 (Cth) ss 7(2), (3), 94(1), 131
Cases
Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383; 72 ALD 652
Re Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Re White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
31 March 2017
The applications before the Tribunal
There are two applications before the Tribunal: an extension of time application and an application for a stay of a decision.
On 27 May 2016, the applicant, Mr Tighe, lodged an application asking the Tribunal to review a decision made by the Social Security Appeals Tribunal (the SSAT) on 15 October 2012. The application to this Tribunal was lodged more than three and a half years after the reviewable decision was made.
The SSAT affirmed a decision made on 18 April 2012 by an authorised review officer affirming a decision made on 28 March 2012 by a Centrelink delegate to cancel the applicant’s disability support pension (DSP). The DSP was cancelled because it was decided that the applicant did not satisfy the Australian resident qualification for that payment set out in s 94 of the Social Security Act 1991 (Cth) (the Social Security Act).
The applicant has also lodged an application for an extension of time within which to make the application because the application was made outside the 28 day period prescribed by s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The respondent opposes the extension of time application.
On 31 August 2016, the applicant requested a stay of the SSAT decision and of the decision of the “Chief Executive Centrelink of 15 October 2012” (the stay application). The respondent opposes that application on the ground that the Tribunal does not have an application before it, as yet. The respondent acknowledged that if the Tribunal granted the extension of time application or reinstated the 2012 application, the Tribunal had jurisdiction to make a stay order.
Background
The following matters are not contentious.
The applicant was granted DSP on 27 January 2009.
The applicant continued to receive his DSP payments after the decision was made to cancel his DSP on 28 March 2012 until the SSAT’s decision was made on 15 October 2012. He applied to the SSAT on 15 May 2012.
The applicant applied to this Tribunal in 2012 seeking review of the SSAT decision (AAT matter number 2012/5160). He was represented by a solicitor at that time.
The previous Tribunal stayed the decision to cancel the applicant’s DSP from 26 October 2012. The applicant continued to receive the DSP until the Tribunal dismissed the application on 3 June 2014 for non-appearance pursuant to s 42A(2) of the AAT Act.
The applicant was arrested in Thailand on 22 May 2014 and incarcerated from 23 May 2014 until 4 April 2016 when he was transferred to an Immigration Detention Centre. He boarded a flight on 6 April 2016 and returned to Australia on 7 April 2016. He was in a Thai gaol when the 2012 application was heard and dismissed on 3 June 2014.
On 3 August 2014 a debt of $30,882.56 was raised against the applicant for the period 26 October 2012 until 31 May 2014. Little of that debt had been repaid when the subject applications were heard by this Tribunal.
The applicant has applied unsuccessfully for DSP three times since returning to Australia. He is receiving Newstart allowance from which an amount is being deducted to repay the debt that was raised in relation to the cancelled DSP.
The applicant appeared at the Tribunal hearing by telephone and was granted until the end of October 2016 to provide any additional documents to support his claim, which he did.
The law
Relevantly, s 29(2) of the AAT Act provides that an application to the Tribunal for a review of a decision that is in writing, shall be lodged within “the period commencing on the day on which the decision is made and ending on the twenty-eighth day after” the decision is given to the applicant.
Relevantly, s 29(7) of the AAT Act provides that the Tribunal may extend the time for making an application “if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”. The time may be extended although that time has expired (s 29(8)).
Section 42A(8A) of the AAT Act provides that a party may apply for reinstatement of an application within a period referred to in s 42A(8B):
(a)28 days after the person receives notification that the application has been dismissed; or
(b)if the person requests an extension--such longer period as the Tribunal, in special circumstances, allows.
The notification specified in s 42A(8B)(a) does not have to be formal notification from the AAT: Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383; 72 ALD 652.
If the Tribunal considers it appropriate and reinstates the application, it may “give such directions as appear to it to be appropriate in the circumstances” (s 42A(9)).
The Federal Court set out principles to guide the consideration of an application to extend time for lodging an application to extend time in a judicial review context in Re Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344. In summary, those principles are:
·It is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained. It is a precondition to the exercise of discretion in the applicant’s favour that the applicant for an extension show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.
·Action taken by the applicant, other than by making an application for review, is relevant to whether an acceptable explanation for the delay has been furnished. For example, if the applicant has continued to make the decision maker aware that he contests the finality of the decision or has allowed the decision-maker to believe that the matter has been finally concluded.
·Any prejudice to the respondent occasioned by the delay, including in defending the proceeding.
·The mere absence of prejudice is not enough to justify the grant of an extension. The public interest is relevant. A delay which may result in the unsettling of other people if the application is successful, or of established practices, is likely to prove fatal to the application.
·The merits of the substantial application are properly to be taken into account. Considerations of fairness between the applicant and other persons in a like position are relevant.
As stated above, if the Tribunal decides to extend the time within which to lodge the application, it will have jurisdiction to stay the reviewable decision pursuant to s 41(2) of the AAT Act which provides:
(2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
The Tribunal’s jurisdiction
The respondent did not contend that the Tribunal did not have jurisdiction to consider the application lodged in May 2016 because there had been a previous identical application made to the Tribunal which had been dismissed in 2014 pursuant to s 42A(2) of the AAT Act. The Tribunal does have jurisdiction because there has been no decision on review pursuant to s 43 of the AAT Act.
The applicant could have applied for reinstatement of the 2012 application rather than making a new application to review the reviewable decision the SSAT made on 15 October 2012. The respondent made submissions in relation to the possibility that the Tribunal might treat the May 2016 application as a reinstatement application.
As the applicant is unrepresented, the Tribunal considers that it is appropriate to consider both possible paths for him to have the matter determined – as a new application and as an application for reinstatement.
The length of the delay, the explanation for the delay, and action taken by the applicant
The respondent argued that the applicant has not provided an acceptable explanation for the delay in lodging the application.
The respondent accepts in its written submissions that the applicant did apply to the Tribunal within time for review of the reviewable decision in 2012. The Tribunal accepts his explanation that he was incarcerated in a Thai gaol on 3 June 2014 and could not attend the hearing. Consequently, the application was dismissed. It also does not draw any adverse inference against the applicant for not contacting the Tribunal about the hearing when he had been suddenly arrested on 20 May 2014 and incarcerated on 23 May 2014 and was coming to terms with the conditions in a Thai gaol. There is no evidence to suggest that the applicant had ever been incarcerated before then. The Tribunal has taken into account that he had consular assistance while in prison but that fact does not change its view.
The Tribunal finds that the applicant lodged an application in the Tribunal on 15 June 2015, matter 2015/2892, which was dismissed pursuant to s 42A(4) on 16 July 2015 because it was in respect of a non-reviewable decision and the Tribunal did not have jurisdiction. That finding is based on the applicant’s evidence that he lodged an application with the Tribunal and on the Tribunal’s records.
The Tribunal has not had access to the application or to the notice of dismissal to determine what the terms of the application were to find out why there was no jurisdiction. The applicant was still incarcerated in a Thai gaol when he lodged the application and when the Tribunal dismissed it and was not assisted by a solicitor in relation to that application. It is not clear when he learned that the 2012 application had been dismissed.
In those circumstances, the Tribunal finds that the applicant had received notification of the 2014 decision while he was in gaol and did what he could, in very difficult circumstances, to have the decision changed. Having been unsuccessful, the applicant took no further steps to address that adverse decision until he returned to Australia on 7 April 2016. He lodged the present application in this Tribunal on 27 May 2016, more than 28 days after his return.
The respondent noted that the applicant attended an office of the Department on 13 April 2016 to lodge a claim for payment and a medical certificate seeking an exemption for looking for work in relation to his Newstart allowance. Given those activities, the respondent argued that it would have been reasonable to expect the applicant to have lodged his application earlier than 27 May 2016.
The Tribunal finds that the applicant has given an acceptable explanation for the delay in lodging the application and notes that if he had applied for reinstatement of the 2014 application in 2015, rather than making the application he did, the delay would have been about a year. The Tribunal finds that the respondent would have been alerted by the unsuccessful 2015 application, whatever its formulation, that the applicant continued to oppose the decision to cancel his DSP in 2012.
The Tribunal infers that the applicant made the application in May 2016 because he had not been granted DSP and deductions were being made from his Newstart allowance to repay the debt that had been raised in 2014 in relation to his DSP. The Tribunal does not consider the applicant’s delay in applying after he returned to Australia on 7 April 2016 to be unacceptable. He had to re-adjust to life in Australia after about 23 months in a Thai prison. He had made an unsuccessful application to the Tribunal in 2015. It is understandable that it may have taken him some time to find out what he could do about the cancellation decision. He claimed that the delay was because he had to make a Freedom of Information request to the Department of Foreign Affairs and Trade (DFAT) to obtain a record of his imprisonment in Thailand. The Tribunal accepts that he made that request some time before 19 July 2016 when he had a telephone conversation with a DFAT officer when he advised that he was refining the scope of his request. Given that his application was lodged on 27 May 2016, the Tribunal does not accept that obtaining that information was the cause of delay.
Prejudice to the respondent
The respondent argued that there was prejudice to the Secretary because the facts relevant to the substantive application occurred more than four years ago and the matter was decided by the SSAT more than 43 months before the applicant lodged the current application. Further, the respondent argued that there would be prejudice because the Secretary has already expended public funds in responding to the same appeal by the applicant in relation to matter number 2012/5160, between December 2012 and June 2014.
The respondent set out a detailed history of the proceedings in matter 2012/5160. There were four preliminary conferences. The matter was dismissed pursuant to s 42A(2) on 21 January 2014 because the applicant sought the adjournment of a telephone directions hearing (TDH) without providing a reason and did not appear. The applicant said that the Tribunal did not call him and that he was travelling in Thailand and was relying on his mobile telephone which had variable signal strength. He said that he called the Tribunal the same day.
The matter was reinstated by consent on 31 January 2014 and set down for hearing on 12 March 2014. On 12 February 2014 the applicant sought an adjournment of the hearing date. The applicant said that he had portability and was overseas. On 14 February 2014, the application was listed for a further TDH on 26 February 2014. On 25 February 2014, Legal Aid New South Wales requested an adjournment to allow the applicant’s legal aid application to be determined. The TDH date was vacated but not the hearing date.
The matter was adjourned part-heard on 12 March 2014 until 11 April 2014. The respondent claimed that the applicant hung up during cross-examination and attempts to reconnect with him failed. The applicant denied hanging up and claimed that the connection ended because of the signal strength.
On 30 March 2014, the 11 April 2014 hearing date was vacated because the applicant notified the Tribunal that he intended to appeal Legal Aid’s decision not to grant him legal aid. The matter was listed for a resumed hearing on 3 June 2014 with a direction that the applicant attend in person. On 1 April 2014, Legal Aid informed the Tribunal that the (Legal Aid) appeal application was listed for hearing on 16 April 2014.
On 11 April 2014, the applicant returned to Australia from Thailand and returned to Thailand on 20 April 2014.
The Tribunal accepts that considerable public funds have been expended in relation to matter 2012/5160. Some of that expense included preparation of s 37 documents (T documents) and a statement of facts and contentions which may need to be supplemented but would not need to be entirely redone. The most reliable evidence of the facts in this matter are the contemporaneous documents, which are mostly documents generated by Centrelink and are included in the T documents. As set out above, the issue in the substantive case is whether the applicant was an Australian resident when the decision was made to cancel his DSP.
The Tribunal accepts that there will be prejudice to the respondent if the Tribunal grants an extension time within which to lodge the application because the same case will have to be run again.
The public interest
The respondent argued that it would be substantially unfair to other unsuccessful applicants before the former SSAT, now the Social Services and Child Support Division of this Tribunal, if an extension of time was granted in this case in the absence of substantial and compelling reasons, and would unsettle established practices with the consequence that other applicants will pursue the same avenue and expect the same result.
Each case will depend on its own particular facts. The applicant’s 23 month incarceration in a Thai gaol which prevented him from appearing at the hearing in 2014, and his then lodging an unsuccessful application in the Tribunal during his incarceration, are facts particular to him.
The Tribunal accepts that the public interest is served by having finality in decision making. That is a factor to take into account in light of all the circumstances of the case.
Prospects of success of the substantive application
The respondent accepts that it cannot say that any application to this Tribunal will not be successful. However the respondent contends that on the basis of the material available, the substantive matter does not enjoy any reasonable prospects of success. The respondent contends that the merits of this case are poor.
To succeed in the substantive application, the applicant must establish that at the date of cancellation of his DSP on 28 March 2012, he satisfied the residency requirement set out in section 94(1)(e) of the Social Security Act. Section 7(2) of the Social Security act defines ‘Australian resident’ as meaning a person who resides in Australia and, relevantly, (b) is an Australian citizen, which the applicant is.
The issue in the substantive application is therefore whether the applicant resided in Australia at the time of cancellation. Section 7(3) of the Social Security Act set out factors relevant in to determine whether he was an Australian resident:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships a 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 matters relevant to determining whether the person intends to remain permanently in Australia.
The applicant argued fervently at the hearing that the Department had found that he was an Australian Permanent Resident on 9 January 2012, and that the SSAT decision was wrong. In his current substantive written application he referred to several documents in the T documents and provided many additional documents and references to the Tribunal, to support that position. The applicant made hand-written annotations to the documents.
The applicant pointed to statements in a letter from Centrelink dated 8 September 2011 which said:
This change does not affect Disability Support Pension customers who leave Australia temporarily. A customer can be paid for up to 13 weeks for a temporary absence from Australia.
The applicant said that the Department’s website included a very similar statement but “the com.law.gov.au website excludes/deletes this additional understanding of the law from the Social Security Act subsection 7(3)”.
The letter dated 8 September 2011 also stated:
From 1 July 2011 only permanent Australian residents are eligible for Disability Support Pension. This means that Australia needs to be a customer’s permanent place of residence in order for their Disability Support Pension to continue being paid.
…
Centrelink intends to conduct residence reviews to identify Disability Support Pension customers who may have ceased to be Australian residents. These reviews will commence after 1 January 2012, to allow customers enough time to adjust to the new residence requirements. After that date, we will contact all customers who have been selected for a review to discuss their individual circumstances.
The applicant argued that from 1 January 2012, a portability payment interview could only be given “if and only if”, the Review of Entitlement for DSP was favourable and he had been determined to be an Australian resident. He argued that the telephone conversation he had with Centrelink on 9 January 2012 was a “residence review” and he had been successful because he was granted portability.
At the hearing, the applicant said that during the 9 January 2012 telephone conversation, the supervisor at Caringbah said that he would only be given portability after his permanent residency test had had been successfully completed. He said that the conversation lasted 2.5 hours and he had to wait 40 minutes on the telephone. He said that he was asked questions. He said that his parents are in Australia. A case officer called Alison was also involved in the conversation.
The applicant also maintained that his DSP had not been cancelled until after the SSAT decision because he continued to be paid until then, including being granted an advance payment on 23 April 2012. The Centrelink records show that he was granted that payment.
It is clear to the Tribunal from the applicant’s evidence during the hearing, that the applicant did not appreciate that when the decision was made to cancel his visa on 28 March 2012, the decision-maker exercised the discretion under s 131 of the Social Security Act to approve the continuation of the applicant’s DSP pending the outcome of the review of the decision.
The respondent tendered a document setting out the applicant’s movement records from 13 December 1996 until 20 April 2014 when he departed Australia for the last time before being arrested and incarcerated in Thailand. The applicant departed Australia on 48 occasions in that period.
The applicant returned to Australia from Thailand on 6 January 2012, having departed on 26 October 2011. He contacted the department on 9 January 2012 seeking portability, which was granted until 10 April 2012. He departed on 10 January 2012 and returned on 30 March 2012. Thereafter the applicant departed Australia on 2 April 2012, 6 July 2012, 2 October 2012, 8 December 2012, 21 March 2013, 11 May 2013, 21 August 2013, 5 October 2013, 21 November 2013, 9 January 2014, 27 February 2014 and, finally, on 20 April 2014.
Although the cancellation decision had been made on 28 March 2012, the applicant continued to receive his DSP payment until the dismissal of the 2012 application to this Tribunal in 2014, as a consequence of the original decision-maker exercising the statutory discretion on 28 March 2012 to continue the payment, and the previous Tribunal’s decision to stay the cancellation decision. He continued to receive his DSP and was granted portability and travelled to Thailand on 12 occasions after the 2012 cancellation decision.
The applicant did not dispute that the records about his trips outside Australia were accurate. He did not dispute that during the five years from 1 January 2007 to 31 December 2011, he spent 45 weeks and six days in Australia and the remaining time in Thailand, that is 17.3 per cent of that period was spent in Australia. He did not dispute that since being granted the DSP on 27 January 2009, he had spent less time in Australia, about 11 per cent, and the remainder in Thailand. He did not dispute that in the two years prior to March 2012, the longest period he had stayed in Australia was eight days and that four stays in that time had only been for four days.
At the hearing, the applicant denied that he returned to Australia only to maintain portability of his DSP.
The applicant provided annotated copies of Centrelink records apparently forming part of the T documents in the 2012 Tribunal proceedings. He provided a copy of a “Suspension of your Disability Support Pension” dated 6 March 2012. The letter stated that the suspension had occurred because he had not replied to the Centrelink letter dated 5 January 2012. Another page in the annotated T documents the applicant provided shows that the letter of 5 January 2012 requested the applicant to contact Centrelink and discuss a suitable time for an interview in relation to the DSP Residence Review.
In general terms, the applicant claimed that Centrelink had fabricated information in documents with which he disagreed.
The applicant annotated the information recorded in two documents about the events of 9 January 2012. The print-out is in chronological order. In the first document, the applicant highlighted the section that showed he had contacted the Caringbah office of Centrelink regarding a Portability Enquiry. The complete record indicates that a portability inquiry was one of several possible inquiries that may have been made, including “Change of Address/Accommodation Details, Review of Entitlement for Disability Support Pension”. On the same document, the applicant highlighted “Record of Portability Interview”, which set out his planned travel, and the section stating that DSP “is portable until at least 10 APR 2012”.
On the second, later document, dated 9 January 2012, the applicant wrote “Contacted Centrelink Caringbah Sydney Call Centre”. He highlighted “Review of Entitlement for Disability Support Pension”. Again, the applicant’s highlighting is selective. The complete sentence is: “Customer contacted [Centrelink Caringbah Call Centre] on 9 JAN 2012 regarding General Enquiry, Change of Address/Accommodation Details, Review of Entitlement for Disability Support Pension”. Above the part the applicant highlighted is printed: “Extra Detail: Coding done: Portability”.
Neither document supports the applicant’s claim that he successfully underwent the Residence Review or that the letter of 5 January 2012 was mentioned during the conversation. The documents do reflect that he contacted Centrelink Caringbah Call Centre about portability, which was granted.
The applicant provided a copy of the letter sent to him on 9 January 2012 which dealt with his travel plans and the consequences for his DSP and concession card entitlements. He provided copies of letters in similar terms dated 30 March 2012, 28 September 2012.
The entry for 10 January 2012 includes the information that “A DSP residence review is currently been (sic) done on this customer’s record. If customer contacts Centrelink, please forward the phone call to [specified officer]”. The applicant annotated this record as follows:
DSP Residence Review was given to me on 9 Jan 2012 under Social Security Law by Centrelink Caringbah Call Centre [name] with supervisor of Caringbah Centrelink Call Centre DSP Residence Review conducted on 9 Jan 2012 was FAVOURABLE which enabled then the Centrelink payment portability Review to be given & also FAVOURABLY assessed.
The Centrelink record dated 9 March 2012 states that the applicant contacted Centrelink on that day “regarding Appointment with Centrelink for Customer Appointment System” and that a phone interview was to take place on 13 March 2012 at 3:30pm for 90 minutes “Re: residency review”.
The applicant annotated the 9 March 2012 record at the top:
Centrelink [name] herein fabricates/falsifies the reason why I called Centrelink 9.3.2012. The only reason I called Centrelink on 9 Mar 2012 is because Centrelink suspended my DS Pension just days before.
At the bottom of the 9 March 2012 record is printed:
ANNOTATE BY *CA ON 13 MAR 2012
Appointment Finalised, Customer attended interview
Underneath that annotation, the applicant wrote:
This is Centrelink fabrication/falsification on of 13 Mar 2012 as Centrelink NEVER called me on 13 Mar 2012. There was also absolutely NO MENTION of Centrelink customer interview appointment for 13 Mar 2102 on 9 Mar 2012 Centrelink phone call.
The applicant claimed that he had told the Centrelink officer on 9 March 2012 that he had replied to the 5 January 2012 letter on 9 January 2012 and had “favourably” done the DSP Residency Review. He claimed that the case officer apologised and lifted the suspension.
At the hearing, the applicant claimed that the conversation with a Centrelink officer occurred on 19 March 2012 at 5.30am and that a decision had been made without talking to him. He provided no document that supported his claim.
A record dated 21 March 2012 states that the applicant contacted Centrelink and wanted to discuss the residence decision with a Centrelink officer before contacting his solicitor and that the applicant was very distressed, felt pressured from Centrelink, and that the Centrelink officer had his contact details. There are two Centrelink annotations underneath that record.
The first Centrelink annotation states that on 22 March 2012, the officer called the applicant on that day but the applicant said he was in pain, whereupon the officer agreed to call him the next day. The second annotation shows that the officer called the applicant on 23 March 2012 and refers to the “Review DOC” for details.
There are three Centrelink records for 28 March 2012 in the documents the applicant provided. One is the “RESIDENCE DECISION” which sets out the matters taken into account. The applicant annotated those matters.
He denied telling a Centrelink officer in a telephone conversation in March 2012 while he was in Thailand, that he intended to continue living in Thailand. He did tell the officer, as he told the Tribunal, that the climate there is better for his physical condition and the cost of living is considerably less than in Australia.
The applicant claimed that the officer had fabricated the statement that the applicant said that he had held a long-term lease on an apartment in Thailand and stayed with family in Australia, but intended to seek cheaper accommodation in the same region.
The applicant claimed that the officer fabricated a statement that he had no meaningful assets in either Thailand or Australia, has a bank account in Australia, and other than that he only has the clothes he carries with him. The applicant also denied that he had said that he considers himself to be an Australian resident who is on an extended holiday in Thailand.
At the hearing, the applicant gave the following evidence which is relevant to whether he was an Australian resident at the time the DSP was cancelled.
The applicant was residing at his family home that is owned by his parents. He will inherit a third share with his two brothers when his parents die. He said that his inheritance was his asset. He said that he has no assets overseas and no girlfriend.
His brothers and parents are in Australia. He has three uncles living on the South Coast. One uncle had recently died. He told the Tribunal that a cousin had just called in while he was speaking to the Tribunal. He has aunties, a nephew and cousins. His younger brother visited him while he was in gaol in Thailand on a number of occasions.
The applicant was last employed in Australia after hurting his back while a tennis coach in Sydney on 15 April 1998. He tried to get work for a year or two, including doing store work. He did no work from about 2000. He was always hopeful that he could work.
He has no business ties but said that he may pursue a business interest when he gets his inheritance.
The applicant acknowledged that he married a Thai woman. Based on his evidence and documents in the 2012 application referred to by the respondent, it is apparent that they married on 25 May 2006. He applicant said that they divorced 12 or 13 months later in Thailand and he had to pay someone to be a witness, and the divorce papers were in that office in Thailand. When asked about his wife applying to come to Australia for a holiday in 2007, the applicant said that the marriage ended around that time and he has never seen her again.
Evidence before the Tribunal included copies of two pages of Mrs Tighe’s passport showing the Australian visa and an Australian Immigration arrival stamp, dated 12 November 2006.
The applicant was asked about his applications for DSP made in April 2007 and February 2009. The Tribunal has considered the documents relating to those applications. Neither of those documents contained a claim by the applicant that he was living in Thailand. The 2007 application did refer to his partner and that she was living in Thailand from 1982 to 2007. The 2009 application did not refer to his partner or living in Thailand.
When asked about his financial ties with Australia, the applicant said that the DSP was probably the only important thing. He said that DSP was his livelihood and he could not have travelled overseas without it. He claimed that it was proven that he was an Australian citizen when he was granted DSP in 2009.
When asked if his intention was to stay permanently in Australia, the applicant said that he travelled on a tourist visa which showed that he was an Australian resident.
The applicant said that he paid board when he was in Australia and even when he was not. It was not “big” while he was away but he had to maintain his place in the world. When asked if he was paying board in January 2012, the applicant said that he did not know, and then said that he would have been, because he normally did when he was overseas.
The applicant maintained that the 13 week portability periods are not to be counted against him and referred to the statement in the September 2011 letter from the Department that portability will not affect the rights of an Australian resident, and his claim that Centrelink has suppressed that and it has been deleted from the website.
Taking into account all the material before it, and in particular that the applicant put before the Tribunal and the arguments he made, as set out above, the Tribunal finds that the applicant has no real prospect of success in the substantive matter.
Alternative avenue of relief
The respondent argued that refusing the application for extension of time did not deny the applicant any relief because he could apply for DSP again. He has done so unsuccessfully three times since his return to Australia in 2016. The Tribunal finds that the applicant’s real concern is that if the Tribunal does not extend the time within which to lodge the application, he has no prospect of avoiding repaying the debt. It notes, as it observed during the hearing, that the applicant can seek to negotiate a lower amount being deducted from his Newstart allowance.
Conclusion – extension of time application
Taking into account all the matters discussed above, the Tribunal does not consider that it is reasonable in all the circumstances to extend time for making the application.
Reinstatement of the 2012 application
The respondent argued that no reinstatement application had been made. The Tribunal accepts that is so, however, the respondent addressed the possibility that the matter may be considered as a reinstatement application. The Tribunal considers that it is appropriate to consider this possibility in fairness to the applicant who is unrepresented and was in relation to the 2012 application.
Section 42A(8B)(b) allows an extension of time in “special circumstances”. Those words do not appear in s 29(7). The respondent referred to authorities about the relevant principles.
Deputy President Forgie set out three principles to consider in Re White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712. In summary they are:
(i)Reinstatement applications begin from the premise that the person whose proceedings have been dismissed should not be prevented from presenting his or her case, provided the person’s conduct has not prejudiced the other party.
(ii)Notions of fairness between the parties in the sense of the regard which the parties have paid to the case management system, including assessing whether the respondent has been prejudiced and whether the respondent is likely to be prejudiced again in the future by the applicant's conduct.
(iii)Whether the application, if reinstated, would have merits.
Conclusion – reinstatement application
The 2012 application was dismissed in 2014 as a consequence of the applicant being in a Thai gaol. For the reasons explained above, the Tribunal accepts that he could not attend the hearing in person or otherwise at that time and he did take steps in 2015 to do something about that decision. The applicant’s presence in Thailand before the hearing, during pre-hearing conferences, caused delay and additional expense to the respondent. Given that the applicant has been in Australia since his return in 2016, and he claims financial hardship because of receiving Newstart allowance and having deduction made to repay his DSP debt, the evidence does not suggest that he will return to Thailand or be overseas during a further proceeding so that delays or additional expenditure will be incurred for that reason.
However, for the reasons given above, the Tribunal considers that the substantive application has no real prospect of success and there would be prejudice to the respondent if the 2012 application were reinstated.
The Tribunal does not consider that there are special circumstances in this case such that it should extend the period within which to apply for reinstatement of the 2012 application.
Application for stay
The applicant has been unsuccessful in seeking an extension of time within which to lodge his application and in seeking a reinstatement of the 2012 proceedings. The question of a stay of the reviewable decision therefore does not arise.
Decision
For the above reasons, the Tribunal refuses the applications:
(a)to extend the time within which to lodge the application dated 27 May 2016, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth);
(b)to reinstate application 2012/5160, pursuant to s 42A(9) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 101 (one-hundred and one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
...............................[sgd].........................................
Associate
Dated: 31 March 2017
Date(s) of hearing: 4 October 2016 Date final submissions received: 31 October 2016 Applicant: In person Solicitors for the Respondent: Sparke Helmore
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