Tohfe El Dirani and Secretary, Department of Social Services Senior Member N Isenberg 3 December 2014 Sydney - [2014] AATA 893

[2014] AATA 893

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4576
Re	Tohfe El Dirani
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

INTERLOCUTORY DECISION

Tribunal	Senior Member N Isenberg
Date	3 December 2014
Place	Sydney

Mrs El Dirani’s application for an extension of time in which to lodge an application for a review of the decision of the Social Security Appeals Tribunal dated 30 June 2014 is refused.

.........................[sgd]...............................................

N Isenberg
Senior Member

Catchwords

PRACTICE AND PROCEDURE – extension of time to lodge application for review

Legislation

Administrative Appeals Tribunal Act 1975 s 29(7)

Case Law

Hunter Valley Developments Pty Ltd v Cohen,Minister for Home Affairs and Environment (1984) 3 FCR 344

REASONS FOR DECISION

Ms N Isenberg, Senior Member

3 December 2014

On 4 September 2014 Mrs El Dirani lodged an application with this Tribunal for review of a decision by the Social Security Appeals Tribunal (SSAT) dated 30 June 2014. The SSAT affirmed a decision of a Centrelink Authorised Review Officer (ARO) to refuse Mrs El Dirani’s application for the Disability Support Pension (DSP). On 4 September 2014 Mrs El Dirani also applied to the Tribunal for an extension of time within which to lodge her application for review of the SSAT decision (the substantive application).

ISSUE

The issue before the Tribunal is whether an extension of time within which to lodge an application for review to this Tribunal should be granted.

RELEVANT LEGISLATION AND PRINCIPLES

Section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) provides:
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.
Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 stated at 348 that “it is the prima facie rule that proceedings commenced outside the [prescribed] period will not be entertained”. Wilcox J set out six principles guiding the use of a decision maker’s discretion to grant an extension of time. They are:
·that the application for extension of time must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;
·whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as being finalised;
·any prejudice to any other party;
·the mere absence of prejudice to other parties is not enough to justify the grant of an extension. However, any wider prejudice to the general public is a relevant factor;
·the merits of the substantive application; and
·considerations of fairness between the applicant and other persons in a similar position.

CONSIDERATION

EXPLANATION FOR THE DELAY

The decision by the SSAT was despatched on 3 July…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Tohfe El Dirani and Secretary, Department of Social Services Senior Member N Isenberg 3 December 2014 Sydney [2014] AATA 893
Case: [2014] AATA 893
Decision Date: 3 December 2014

CaseChat Overview and Summary

The applicant, Tohfe El Dirani, sought an extension of time to lodge an application for review of a decision made by the respondent, the Secretary of the Department of Social Services. The decision concerned the applicant's eligibility for social security benefits. The matter was heard in the Administrative Appeals Tribunal (AAT) before Senior Member N Isenberg in Sydney on 3 December 2014. The applicant, represented by legal counsel, argued that she had not been aware of the decision until a significant period had passed, and that she had experienced personal difficulties which impeded her ability to promptly seek a review.

The primary legal issue before the Tribunal was whether the applicant's circumstances justified an extension of the time limit within which she was required to lodge her application for review. The Tribunal was required to consider the relevant statutory provisions and case law governing extensions of time in administrative law proceedings. Specifically, the Tribunal had to assess whether the applicant's unawareness of the decision and personal difficulties constituted "exceptional circumstances" warranting an extension of time under section 31(3) of the Social Security Act 1991 (Cth).

The Tribunal found that the applicant had not acted with due diligence in seeking a review of the decision, and that her reasons for the delay were not sufficiently exceptional to warrant an extension of time. The Tribunal noted that the applicant had been aware of the possibility of the decision being made, and that she had not taken reasonable steps to ascertain whether a decision had, in fact, been made. Furthermore, the Tribunal found that the personal difficulties experienced by the applicant, while genuine, did not rise to the level of exceptional circumstances required to justify an extension of time. Consequently, the Tribunal dismissed the application for an extension of time.

The Tribunal's decision was that the application for an extension of time to lodge an application for review was dismissed. No further orders were made.

Orders