Velitskos and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1430

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1430

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2007/26

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MARINA VELITSKOS

Applicant

And SECRETARY, DEPARTMENT OF EMLOYMENT AND WORKPLACE RELATIONS

Respondent

INTERLOCUTORY DECISION

Tribunal Associate Professor B W Davis AM (Part-time member)

Date15 June 2007

PlaceHobart

Decision The application for extension of time pursuant to s29(7) of the Administrative Appeals Tribunal Act 1975 is refused.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - welfare payments - disability support pension (DSP) - Greek residency - cancellation of benefits - SSAT decision - application for extension of time - application refused.

Administrative Appeals Tribunal Act 1975 - s29(7)

Social Security Act 1991

Social Security (Administration) Act 1999

Re Johnston and Commonwealth (5 January 1990) AATA 5619

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

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

REASONS FOR DECISION

15 June 2007 Associate Professor B W Davis AM (Part-time member)   

The Application

1.      The applicant, Marina Velitskos, has sought an extension of time to apply for AAT review of a decision made by the Social Security Appeals Tribunal (SSAT) on 20 January 2005, limiting payment of her disability support pension (DSP) to a period of 13 weeks after her departure from Australia on 19 September 2004.

2.      The respondent opposes the application for an extension of time, on grounds that nearly two and a half years have elapsed since the SSAT determination, when the normal time permitted for appeal is 28 days and she is attempting to reactivate a matter already determined, with no special circumstances shown.

Evidence

3.      A telephone hearing was conducted in Hobart on 13 April 2007, at which the parties presented their cases.    The applicant, Marina Velitskos, was in Greece; the respondent was represented by Mr David Wilson.

4.      The applicant advised the Tribunal that she had no income after DSP was cancelled and she could not return to Australia, as she had to help care for her parents.    She claimed she did not know she could appeal to the AAT, after losing her SSAT case, as mail was incorrectly addressed or delivered to an apartment in her street and she did not receive it for many months.   She appeared somewhat confused about dates and places and could not provide any substantiation of her claim.

5.      The respondent had provided a Secretary’s statement opposing the application, citing relevant statutory provisions and prior Federal Court and AAT determinations.    The statement was dated 11 February 2007 and Ms Velitskos claimed not to have received it.   After some discussion the Tribunal decided the applicant should be granted 28 days to receive and comment on the material, before the Tribunal determined the matter.   All correspondence would be transmitted as hard copy and e-mail.   The hearing was adjourned.

6.      Ms Velitskos responded on 11 May 2007 merely repeating her claims of personal disabilities, incapacity to work and numerous medical examinations, but also repeating her claim of prior incorrect delivery of mail sent to her.    She said she had proof of the latter, but no evidence was provided.

Analysis

7. Subsection 29(7) of the Administrative Appeals Tribunal Act 1975 states:

“(7) 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.”

8.      The issue for the Tribunal is whether there are grounds for granting the request.   Conditions which must be considered include the following (Re Johnson and Commonwealth, 5 January 1990 AATA 5619):

(a)whether or not the applicant rested on rights or took action to make the decision-maker aware the decision was contested;

(b)any prejudice to the respondent would be caused by granting the extension of time;

(c)any wider prejudice to the public in terms of disruption of established practices;

(d)the merits of the substantive application; and

(e)fairness in granting the extension of time as between the applicant and other persons in a like position.

Resting on Rights

9.      The respondent has argued that to wait two and half years before seeking an extension of time to request the review of a decision is unreasonable, given the allowed period for appeal is 28 days.    The Tribunal agrees this is the case i.e. the applicant has rested on her rights.   The applicant claims the cause was misdirected mail, but no specific evidence has been submitted this is so; in any event if a decision is pending and one fails to make inquiries about why the result has not been communicated, it is one’s own fault.   It is clear Centrelink tried on several occasions to keep the applicant informed and there is no specific evidence to show mail was incorrectly addressed or delivered.   In any event there was and is no obstacle to the applicant submitting a new claim for DSP, provided there is appropriate medical evidence at the time.

Hardship

10.     While one can feel sympathy for an individual who needs financial support, such as DSP offers, the reality is that to activate a long-past case imposes a cost to the relevant department (DEWR) and hence the Australian taxpayer.   Sound grounds are required to justify such an action and there is not the weight of evidence to make a further extension of time warranted in the current case.

Decision

11.     Having considered all available evidence, including the factors cited in Re Johnson. The application for extension of time pursuant to s29(7) of the Administrative Appeals Tribunal Act 1975 is refused.

I certify that the 11` preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  13 April 2007
Date of Decision  15 June 2007
Counsel for the Applicant         self-represented
Solicitor for the Applicant          
Counsel for the Respondent     Mr David Wilson
Solicitor for the Respondent      Australian Government Solicitor