Zeynel Uluer and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 353

[2013] AATA 353 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0425
Re	Zeynel Uluer
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	19 April 2013
Date of written reasons	29 May 2013
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

Administrative Appeals Tribunal Act 1975 s 29(7)

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

29 May 2013

1. On 29 January 2013 Zeynel Uluer lodged an application with this Tribunal for review of a decision by the Social Security Appeals Tribunal (SSAT) dated 2 November 2012.  The SSAT had affirmed a decision by a Centrelink Authorised Review Officer (ARO) that Mr Uluer was a member of a couple for the purposes of assessment of disability support pension (DSP).  A Centrelink officer had originally assessed Mr Uluer as partnered for the purposes of DSP on 27 April 2012.  The Centrelink officer’s decision was affirmed by the ARO on 17 May 2012.  On 29 January 2013 Mr Uluer also applied to the Tribunal for an extension of time within which to lodge his application for review of the SSAT decision (the substantive application).

ISSUE

1. 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

1. Section 29(7) of the Administrative Appeals Tribunal Act 1975 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.

2. Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 stated 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

1. The decision by the SSAT was despatched on 8 November 2012 and Mr Uluer’s application to this Tribunal was at least 78 days out of time.  In his application for an extension of time Mr Uluer stated: Copy of decision wasn’t received by me.  However, in his application for review (the substantive application) he stated that he received notice of the decision on 5 January 2013.  Mr Uluer told the Tribunal that he had moved out of his home and confirmed that he had received the decision on 5 January 2013, but blamed computer problems for the delay in not lodging his application for review until 29 January 2013.

2. While Mr Uluer has provided an explanation for the delay, it is not satisfactory.  He received a notice from the SSAT explaining that he had 28 days to lodge an application for review with this Tribunal.  When he left his former residence he should have made arrangements to receive his mail.  In any case when he received the notice on 5 January 2013 he must have been aware that he was already out of time, and could have contacted the Tribunal to seek advice.  The Tribunal does not accept Mr Uluer’s assertion that computer problems prevented him from lodging his application for a further 24 days, particularly as the application form does not need to be completed in a typewritten format.  The Tribunal is not satisfied that Mr Uluer 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?

1. From the date of despatch of the SSAT decision on 8 November 2012 until the date of lodgement of the application for review with this Tribunal on 29 January 2013, Mr Uluer made no attempt to notify the respondent of his intention to seek review.  The Tribunal finds that Mr Uluer rested on his rights and that this factor weighs against granting an extension of time.

PREJUDICE TO OTHER PARTIES

1. The respondent and Mr Uluer’s former wife (if she were to be joined as a Third Party to the proceedings) would suffer prejudice if an extension is granted in terms of costs incurred, inconvenience and the need to obtain evidence about events that occurred some time ago.  The Tribunal finds that this factor weighs against granting an extension of time.

WIDER PUBLIC CONSIDERATIONS

1. 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 of time limits.  The Tribunal finds that this factor weighs against granting an extension of time.

THE MERITS OF THE SUBSTANTIVE APPLICATION

1. In his application for review Mr Uluer stated that after separation in January 2009 he moved to Bowral, New South Wales but returned to Melbourne seven months later to be closer to his children, and lived with his parents.  However it was found to be more convenient to move back into the family home, and he said that he lived upstairs and separately from Mrs Uluer.  He explained that the house remained in their joint names for the sake of the children, and that joint bank accounts were maintained for specific reasons and were later closed.   

2. Evidence was given to the SSAT that Mr and Mrs Uluer owned their home and demonstrated no desire to divide the property as part of a settlement between them.  Mr Uluer moved back into the home to reside with his wife and children.  They had access to each other’s bank accounts for the payment of household bills.  Both were registered on the same Medicare card until Centrelink decided to treat Mr Uluer as a member of a couple, and both were included on Mrs Uluer’s private health insurance policy.  Mr Uluer was the registered owner of two motor vehicles, the costs of which were paid by Mrs Uluer. 

3. The SSAT noted that Mr and Mrs Uluer shared meals and common areas of the home, and Mr Uluer did the cooking.  Mr Uluer told the SSAT that he would support Mrs Uluer if needed and expected her to support him.  Friends of the couple were not aware of any separation, and no plans had been made at the relevant time for divorce or a change to the existing living arrangements.       

4. On all the material it is apparent that the ARO and the SSAT considered all relevant factors in reaching a conclusion that at the relevant time Mr Uluer was a member of a couple.  Nothing submitted by Mr Uluer changes the Tribunal’s view that the evidence is overwhelmingly in favour of a finding that he was a member of a couple.  Consequently the Tribunal finds that there is little merit in the substantive application and that this factor weighs against granting an extension of time.

CONSIDERATIONS OF FAIRNESS

1. There is nothing unique or special about Mr Uluer’s application or his circumstances that would make his situation markedly different to other applicants in similar situations.  The Tribunal finds that this factor weighs against granting an extension of time.

CONCLUSION

1. 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

1. The Tribunal refuses the application for an extension of time.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for the decision of G. D.  Friedman, Senior Member.

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

Administrative Assistant

Dated 29 May 2013

Date of hearing	19 April 2013
Applicant	In person
Advocate for the Respondent	Mr T de Uray
Solicitors for the Respondent	Department of Human Services