Xi Zhang and Secretary, Department of Social Services
[2015] AATA 131
•9 March 2015
[2015] AATA 131
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2015/0177
Re
Xi Zhang
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 9 March 2015 Place Sydney The 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 2 December 2014 is refused.
.................................[sgd].......................................
Ms N Isenberg, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE - extension of time to lodge application for review - extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 29(7)
Social Security Act 1991 s 7, 94(1)
CASES
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FRC 344
Re Secretary, Department of Family and Community Services and Roberts [2003] AATA 269REASONS FOR DECISION
Ms N Isenberg, Senior Member
9 March 2015
On 15 January 2015 Xi Zhang, the applicant, lodged an application with this Tribunal for review of a decision by the Social Security Appeals Tribunal (SSAT) dated 2 December 2014, but which was not posted to Mr Zhang until 12 December 2014. The SSAT affirmed a decision of a Centrelink Authorised Review Officer (ARO) to refuse Mr Zhang’s application for the Disability Support Pension (DSP). On 23 January 2015 Mr Zhang formally applied to this Tribunal for an extension of time within which to lodge his application for review of the SSAT decision (the substantive application), although it was not received by the Tribunal until 28 January 2015.
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
Although the decision by the SSAT was made on 2 December 2014, it was not despatched until 12 December 2014. Under s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the prescribed time for making an application for review is 28 days after notification of the decision. In the ordinary course of the post, the Applicant would have received the decision within two business days, being Tuesday 16 December 2014 (Australia Post standard delivery times for mail sent within the same state is two days)[1]. The 28th day after 16 December 2014 was 13 January 2015, and accordingly the 28 day time limit to lodge an appeal with the AAT expired on 13 January 2015. The application was therefore lodged 2 days out of time. It should be noted that brevity of the extension sought does not, however, lead automatically to an order extending the time: per Re Secretary, Department of Family and Community Services and Roberts [2003] AATA 269, at [16].
[1] >
The applicant stated in his application for an extension of time and in his evidence that he received the decision on 15 December 2014. He said he telephoned the interpreting service referred to in the letter he had received from the SSAT and was put through to a Tribunal officer, who told him she would send him a form on which to make his application for review. He produced an envelope from the Tribunal postmarked 6 January 2015 and said it had contained the blank form which he filled in and sent back. He could not remember when he had filled it in but thought he sent it back a day or 2 after having received it.
The applicant said the letter from the SSAT did not specify that he needed to make a written application for review and, in view of the invitation to ‘contact’ the Tribunal through the interpreter service, I accept that it is arguable that the applicant may have regarded his contact with the Tribunal as sufficient to have made the application for review, and that the ‘form’ he completed was by way of confirmation.
Has the applicant rested on his rights?
The applicant’s evidence was that he contacted the Tribunal on 2 January 2015. While the Tribunal does not record enquiries about possible applications for review, consistent with the applicant’s account, was the evidence that the Tribunal had sent him a blank application for review on 6 January 2015. While he did not contact Centrelink about his intended review, I accept he did not rest on his rights.
Prejudice to other parties and wider public considerations
There was no evidence to suggest that the respondent would suffer significant prejudice if an extension of time were granted. The Tribunal finds that this factor has minimal significance in determining whether to grant an extension of time.
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 degree of certainty regarding time limits. The Tribunal finds that this factor weighs against granting an extension of time.
Merits of the substantive application
In making its decision in relation to Mr Zhang’s claim for DSP, the SSAT considered that the evidence from his GP, Dr Paw, supported a finding that Mr Zhang suffered various conditions: headache, fatty liver and previous tuberculosis. No other conditions were recorded by Dr Paw. In respect of headache, Dr Paw reported that Mr Zhang had chronic headaches and was to have an MRI; he was on no treatment; and the condition was expected to last for 3-12 months. It was assessed by the SSAT as not being a permanent condition, which means it did not attract an impairment rating. Mr Zhang produced an MRI of his cervical spine dated 2 September 2014, which showed moderate spondylosis, mild canal stenosis and a C6 nerve root block was recommended. That information was outside the period under consideration, namely 13 weeks after his application was made, and, in any event, supports a finding that Mr Zhang’s headaches had not been fully investigated, treated and stabilised at the time of his application for DSP, or within 13 weeks of that date. On the basis of the evidence to hand, his headaches do not attract an impairment rating.
Dr Paw had apparently also ordered an xray of Mr Zhang’s neck, possibly in association with his headaches. The xray, dated 14 April 2014 (and therefore within the relevant period) was that there was C5/6 degenerative spondylosis with foraminal stenosis on the right side. It was identified as a potential source of C6 radiculopathy. It was this xray that lead to the MRI referred to above. While I accept that there was medical evidence as to some abnormality in respect of the applicant’s cervical spine that may relate to his headaches, there was no medical evidence that the condition had an impact upon Mr Zhang’s ability to work. In any event, in view of the recommendation for an MRI, it cannot be said that the applicant’s headaches, or his cervical spine condition, had been fully investigated, treated and stabilised during the relevant period.
As to Mr Zhang’s fatty liver and previous TB, Dr Paw was reportedly of the view that these conditions were well managed and had minimal functional impact. On the basis of the evidence to hand the conditions therefore do not attract an impairment rating.
Mr Zhang gave evidence before the SSAT that he has hepatitis C which was diagnosed in China and treated with Chinese medicine. There was no medical evidence for this condition and the SSAT did not consider it further.
Therefore, considering the evidence given by Mr Zhang before me and a reading of the decision of the SSAT, it appears unlikely that his conditions would attract an overall impairment rating of 20 or more points as required under s 94(1)(b) of the Social Security Act 1991 (the Act). Failure to meet just one of the requirements for DSP results in a failure to qualify for the DSP.
Furthermore, as the SSAT observed, Mr Zhang arrived in Australia in 2006 to join his family; he was not a refugee. The SSAT considered it was unlikely that he meets the residence criteria for DSP. The respondent made detailed submissions about this criterion. As Mr Zhang had only lived in Australia for about eight years before he lodged his claim for DSP, he does not have 10 years qualifying Australian residence and therefore does not meet the residence criteria: s 94(1)(e)(i) and s 7 of the Act.
For these reasons, I find that there is virtually no prospect of success in Mr Zhang’s substantive application, and this factor weighs heavily against granting an extension of time.
Considerations of fairness
There was no evidence of anything unique or special about Mr Zhang’s application or his circumstances that would make his situation markedly different to other applicants in similar situations.
CONCLUSION
In considering all of the relevant factors the Tribunal is not satisfied that that it is reasonable in all the circumstances to exercise the discretion to grant an extension of time.
DECISION
The Tribunal refuses Mr Zhang’s application for an extension of time.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ...............................[sgd].........................................
Associate
Dated 9 March 2015
Date(s) of hearing 25 February 2015 Applicant In person Solicitors for the Respondent Stefan Misrachi, Department of Human Services
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