Janjua and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 579 (13 July 2010)

Last Updated: 6 August 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 579

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2247

GENERAL ADMINISTRATIVE DIVISION		)
	Re		ABDUL JANJUA

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Date 13 July 2010

Place Melbourne

Decision

Upon hearing Mr Janjua in person and Ms Bramley on behalf of the Respondent, and for the reasons given orally at the conclusion of the hearing on 13 July 2010, in accordance with s 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal refuses to extend the time for the making of an application for review of the decision of the Respondent.

(sgd) John Handley
Senior Member

PRACTICE AND PROCEDURE – application for extension of time – whether granting the extension is reasonable - principles in Hunter Valley – merits of the substantive application – application for low income health care card – applicant a citizen of New Zealand – residency requirements - qualifying residents' exemption - newly arrived residents waiting period.

Administrative Appeals Tribunal Act 1975 (Cth) s 29(7)

Social Security Act 1999 (Cth) ss 7(2), 7(3), 7(2B), (2C) and (2D), 7(6), 7(6AA), 1061ZO, 1061ZQ

Migration Act 1958 (Cth) s 32

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441
Australian Girls Choir Pty Ltd v Kerry Hayes Productions Pty Ltd [2001] FMCA 109

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

REASONS FOR DECISION

5 August 2010

Mr John Handley, Senior Member

1. On 3 June 2010, Mr Janjua (the applicant) applied for an extension of time for the lodgement of an application for review. On 13 July 2010, at the conclusion of the interlocutory hearing, I delivered oral reasons for the decision then made to refuse to extend the time.
2. The applicant subsequently made enquiries of the Tribunal seeking clarification of the reasons then delivered. I have decided in those circumstances to provide written reasons for the decision made.
3. The proceedings were not transcribed. Therefore, a transcript is not available to confirm or reconcile the reasons which appear below with the reasons then delivered. Nonetheless, I am confident that the reasons that follow are consistent with the reasons delivered orally.
4. Section 29(7) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) allows the Tribunal to extend the time for the making of an application to the Tribunal for the review of a decision. The Tribunal may extend time, if it is reasonable in all the circumstances to do so. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, Wilcox J set out a number of principles which guide the Tribunal when exercising the discretion available under s 29(7) of the AAT Act.
5. Those principles have been modified in subsequent cases (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441; Australian Girls Choir Pty Ltd v Kerry Hayes Productions Pty Ltd [2001] FMCA 109; Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540. In summary, the principles to be considered are:
   • ➢ reasons for the delay;
   • ➢ whether the applicant rested on his rights;
   • ➢ whether an extension will prejudice the respondent;
   • ➢ whether an extension will unsettle other people or established practices;
   • ➢ the merits of the substantive application; and
   • ➢ issues of fairness as between the applicant and other persons in a like position.
6. Prior to the commencement of the hearing, the respondent lodged a statement setting out reasons for objecting to the extension of time, primarily on the basis that the Applicant’s substantive application had no merit. The respondent accepted that if an extension was granted, prejudice would not be suffered, established practices would not be unsettled and it would not cause unfairness to other persons in a similar position to the applicant.
7. The reasons for the applicant’s delay in applying for review where not addressed by either party. However, the Tribunal notes that there was a relatively short period of time between receipt of the decision of the Social Security Appeals Tribunal (the SSAT) (23 February 2010) and the date that the application was lodged (3 June 2010). The applicant was residing in New Zealand when the decision under review was received and that may explain the delay.
8. The principle issue for consideration in this application was whether the substantive application had merit.
9. The Tribunal is not required to conduct a full scale review during an extension of time application, but rather give consideration to whether the substantive application has merit (Hunter Valley at 349 and 352). Nonetheless, to assist the applicant to comprehend the reasons for refusing to extend time (as he has subsequently requested), the following issues were considered in assessing the merits.
10. In his substantive application, the applicant is seeking a review of a decision made by the SSAT to affirm a decision made by an Authorised Review Officer of Centrelink to reject his claim for a health care card.
11. Section 1061ZO of the Social Security Act 1991 (the Act) sets out the eligibility criteria for a health care card as follows:

(1) A person is qualified for a health care card on a day if this section applies to the person on that day.
(2) This section applies to a person on a day if, on that day:
...
(b) in the case of a person other than a child—the person is:
(i) an Australian resident or a special category visa holder residing in Australia; and
(ii) in Australia; and
...

Section 7(2) of the Act provides:

(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.

12. Accordingly, the issues that emerge from s 1061ZO and s 7(2) of the Act and which will be discussed are, whether the applicant is:
    • ➢ residing in Australia;
    • ➢ an Australian citizen;
    • ➢ a holder of a permanent visa;
    • ➢ a special category visa (SCV) holder; and
    • ➢ a protected SCV holder.
13. Section 7(3) of the Act sets out the factors to be considered in deciding whether a person is residing in Australia, namely, the nature of accommodation, the extent of family relationships in Australia, the nature of the person’s employment or financial ties to Australia and the extent of their assets in Australia, the frequency and duration of travel outside Australia and other relevant matters. The applicant is living in backpackers’ accommodation and there was no evidence that he had any familial or financial ties in Australia. On his claim form for the health care card, he indicated that he frequently travelled to Pakistan. He first arrived in Australia on 18 July 2009 and claimed a health care card 24 days later, on 11 August 2009. In these circumstances, I am not satisfied the applicant was residing in Australia at the date of his claim or at the date of these proceedings.
14. At the time the applicant made his claim for the health care card and on the day of these proceedings, he was not an Australian citizen and he did not hold a permanent visa.
15. The applicant entered Australia on a New Zealand passport and holds a SCV (s 32 of the Migration Act 1958). However, for reasons which will follow, the applicant is not a protected SCV holder.
16. A Protected SCV holder is defined in s 7(2A) of the Act either as a person who was in Australia on 26 February 2001 and was a SCV holder on that day, or was a person who had been in Australia for a period totalling 12 months in a two year period immediately before 26 February 2001.
17. Alternatively, a person may be a protected SCV holder as defined in s 7(2B), (2C) and (2D) only if the person was either residing in Australia on 26 February 2001 or was temporarily absent from Australia on that date or had been residing for a period of three months beginning on that date. The applicant does not satisfy any of those requirements. As recorded above, he arrived in Australia, for the first time, on 18 July 2009.
18. The applicant does not satisfy any of the qualifying elements recorded at paragraph 12.
19. The applicant will not qualify for an exemption under s  7(6) of the Act for a qualifying residence exemption because he was not either a refugee or a former refugee. Section 7(6AA) permits qualification for residence exemption if the person was a family member of a refugee or was the holder of a visa within a class of visas determined by a legislative instrument for the purposes of s 7(6AA) of the Act. The applicant also does not satisfy these provisions. He is not a refugee, he has never been a refugee nor is he a family member of a refugee.
20. Persons who enter Australia after 1 February 2000 are subject to a newly arrived residents waiting period of 104 weeks (s 1061ZQ of the Act). The applicant arrived on 18 July 2009. Therefore, even if he satisfied the residency requirements in s 7(2) of the Act, he will most likely be required to serve a newly arrived residents’ waiting period.
21. It follows in all of the above circumstances that the applicant cannot qualify for a health care card. I am satisfied that the substantive application lacks merit. However, I am also satisfied that an extension of time would serve no useful purpose. The applicant made his claim on 11 August 2009 while in Australia. He returned to New Zealand on 15 September 2009 and remained there until 29 June 2010. As the applicant was absent for more than 13 weeks, his health care card, if issued, would have expired because of the operation of s 1061ZUC(3) of the Act. It would be futile to allow the application to be lodged because even if the applicant succeeded, the currency of the health care card sought expired on 16 November 2009, being 13 weeks after its notional issue. It would not be reasonable in all the circumstances to extend the time to make the application (s 29(7) of the AAT Act).
22. It is for all of the above reasons that I decided on 13 July 2010 to refuse the application for an extension of time.
    

I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

Signed: Olympia Sarrinikolaou

Legal Assistant

Date of Hearing 13 July 2010

Date of Written Reasons 5 August 2010

Advocate for the Applicant Self Represented

Advocate for the Respondent Ms A Bramley, Centrelink Legal Services