Aldefeary and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 948 (29 September 2011)

Last Updated: 19 January 2012

Administrative Appeals Tribunal

ORDER AND REASONS FOR ORDER [2011] AATA 948

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/3249

GENERAL ADMINISTRATIVE DIVISION		)
	Re		GHAZY ALDEFEARY

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

ORDER

Tribunal

Deputy President S D Hotop

Date 29 September 2011

Place Perth

Order

The applicant’s application, dated 30 August 2011, for an extension of time for lodging an application for review of the decision of the Social Security Appeals Tribunal, dated 4 November 2010, is refused.

.......................sgd.....................

S D Hotop
Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – application for extension of time to lodge application for review of decision of Social Security Appeals Tribunal (SSAT) dated 4 November 2010 – applicant received notice of SSAT decision on 12 November 2010 – applicant lodged application for review of SSAT decision on 12 August 2011 – applicant did not give satisfactory explanation for delay – applicant took no action to make respondent aware that he contested SSAT decision until 12 August 2011 – lack of merit of applicant’s application for review – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused

Administrative Appeals Tribunal Act 1975 (Cth), s 29

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

Re Johnson and Commonwealth of Australia [1990] AATA 1

REASONS FOR ORDER

17 January 2012

Deputy President S D Hotop

INTRODUCTION

1. On 29 September 2011 the Tribunal, at the conclusion of an interlocutory hearing held on that day, orally made an order which was subsequently set out in a written order in the following terms:

“ The applicant’s application, dated 30 August 2011, for an extension of time for lodging an application for review of the decision of the Social Security Appeals Tribunal, dated 4 November 2010, is refused.”

2. A copy of that written order was despatched to the parties by the Registry by post on 29 September 2011 under the cover of a letter of that date.
3. On 13 January 2012 the Registry received a facsimile from the respondent’s solicitors requesting a statement in writing of the Tribunal’s reasons for its order of 29 September 2011. The Tribunal’s statement of reason for that order follows.

THE RELEVANT BACKGROUND

4. On 4 November 2010 the Social Security Appeals Tribunal (“SSAT”) made a decision in respect of the applicant whereby it affirmed the relevant decision under review, namely:

“ A decision made by a Centrelink authorised review officer on 30 June 2010 to raise and recover a debt of $50,334.74 arising from overpayment of newstart allowance in the period 18 January 2002 to 26 August 2009.”

5. A copy of the SSAT’s decision was despatched by the SSAT Registry to the applicant under cover of a letter dated 12 November 2010. That letter also advised the applicant as follows:

“ You have a further right of appeal to the Administrative Appeals Tribunal (AAT) if you disagree with the decision. An AAT appeal must be lodged within 28 days of receipt of the SSAT decision. Information on how to lodge an appeal with the AAT can be found at http://www.aat.gov.au or by contacting the AAT on 1300 366 700.”

6. On 12 August 2011 the Registry of this Tribunal received from the applicant an application for review of the SSAT’s decision of 4 November 2010. In the application form (which, the Tribunal notes, is signed by the applicant but not dated), the applicant indicated that he had received notice of the SSAT’s decision on 12 November 2010 and he stated the reasons for the application as follows:

“ The reason for this application is because my financial circumstances are hard. And I can’t afford such a huge dept (sic) with my expenses that I have for daily living.”

7. By letter dated 12 August 2011 addressed to the applicant, an officer of the Registry:
   • acknowledged receipt of the applicant’s application for review;

• notified him that it appeared to have been lodged outside the prescribed period;
• informed him of his right to apply for an extension of time for lodging his application and enclosed a form for use by him for that purpose; and
• requested him to complete and return the form within 14 days and informed him that if the form is not returned within 14 days “the AAT will presume that [he does] not want to continue with [his] application”.

8. By letter dated 30 August 2011 an officer of the Registry wrote to the applicant as follows:

“ ...
On 12 August 2011 the AAT sent you an Application for Extension of Time for Lodging Application for Review of Decision.
As you have not lodged your Application for Extension of Time for Lodging Application for Review of Decision, I assume you do not wish to proceed with the application.
...”

9. On 31 August 2011 the Registry received from the applicant a completed Application for Extension of Time for Lodging Application for Review of Decision form signed by him and dated 30 August 2011. In that form the applicant indicated that he was seeking an extension of time until 12 August 2011 and he stated the reasons for that application as follows:

“The reason was because I have lodge (sic) the application outside the time limit. I am very busy person. I had to get a translator to translate the letter.”

10. By letter dated 31 August 2011 an officer of the Registry notified the respondent that the abovementioned application for an extension of time had been received and requested the respondent to inform the Registry, within 14 days, whether or not the respondent opposed that application.
11. On 8 September 2011 the Registry received from the respondent a completed form of notice opposing the applicant’s application for an extension of time. In that form the grounds for opposing that application are stated as follows:

“ ...
(a) The applicant does not have significant prospect of success as the Social Security Appeals Tribunal (‘SSAT’) decision appears sound. The Tribunal’s decision indicates that it conducted a thorough and fair examination of the evidence before it and made a conscientious and considered decision on the basis of that evidence.
(b) On 4 November 2010 the SSAT affirmed a decision that the applicant had a recoverable newstart allowance debt of $50,334.74 for the period 18 January 2002 to 26 August 2009. The Tribunal’s decision was dispatched on 12 November 2010. The applicant had 28 days from the SSAT decision to contest it. Nothing was done by the applicant to seek review of the decision until 12 August 2011. The respondent was entitled to infer that the applicant had rested on his rights and that the matter was finally concluded.

1. The applicant has stated that the reason for his delay was because he was ‘a busy person...’ and did not get the letter translated. In SDFaCS and Jonauskas [2001] AATA 72; (2001) 65 ALD 553 the Tribunal considered a matter regarding a debt which the applicant stated that due to language barriers he was unable to read the letters sent to him (sic). Deputy President Forgie noted that:

‘ ... There are avenues of assistance available to them and one of those is to telephone the Department, and now Centrelink, for assistance and guidance as to a person’s obligations. People who have difficulties and have the capacity to understand their difficulties use those avenues or at least make some attempt to’ (at 79).
The Secretary contends that Mr Al Defeary’s (sic) choice to not keep himself informed of the Tribunal’s decision and his further rights of review because he was ‘too busy’ is not an acceptable reason.”

12. On 29 September 2011 an interlocutory hearing was held by the Tribunal for the purpose of determining the applicant’s application for an extension of time. The applicant attended that interlocutory hearing without representation and he participated in that hearing through an interpreter in the Arabic language whose attendance had been arranged by the Tribunal at his request. At the conclusion of that hearing, the Tribunal orally made an order refusing the applicant’s application for an extension of time and gave its reasons for making that order.

THE RELEVANT LEGISLATION

13. Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) deals with the manner of applying to the Tribunal for a review of a decision. Paragraph (d) of s 29(1) provides that, in a case where “the terms of the decision were recorded in writing and set out in a document that was given to the applicant”, an application to the Tribunal for a review of that decision ”shall be lodged with the Tribunal within the prescribed time”.
14. Section 29(2) of the AAT Act relevantly provides:

“ ... the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision – the day on which a document setting out the terms of the decision is given to the applicant;”.

15. The Tribunal’s power to extend the time for the making of an application for review is conferred by ubs (7) and (8) of s 29 of the AAT Act as follows:

“ (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 time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.”

CONSIDERATION

16. Section 29(7) of the AAT Act confers on the Tribunal a broad discretionary power to grant an extension of time for the making of an application for a review of a decision if it is “satisfied that it is reasonable in all the circumstances to do so”.
17. As noted by the Tribunal (Deputy President R K Todd) in Re Johnson and Commonwealth of Australia [1990] AATA 1, it has been customary for the Tribunal, in determining applications for an extension of time for making an application for review, to be guided by the principles enunciated by the Federal Court of Australia (Wilcox J) in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348–350. Those general principles were summarised in Re Johnson (at para 19) as follows:

“ (i) It is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained. An extension of time will, however, be granted if it is proper to do so.
(ii) Consideration is to be given to the action taken by the applicant. Did he or she ‘rest on his or her rights’ so as to lead the decision maker to believe that the matter was concluded, or did he or she continue to make the decision maker aware that the decision was being contested?
(iii) Consideration should be given to whether any prejudice to the respondent would be caused by the grant of an extension.
(iv) There being no real prejudice to the respondent, consideration must be given to whether there will nevertheless be a wider prejudice to the public in terms of disruption to established practices ...
(v) Consideration of the merits of the substantial application should be made to see if these indicate that an extension of time should be granted.
(vi) Finally, consideration should be given to whether it is fair as between the applicant and other persons in a like position to grant the extension of time.”

18. In his application for review the applicant indicated that he received notice of the relevant decision of the SSAT on 12 November 2010. Accordingly, in the present case, pursuant to s 29(2)(a) of the AAT Act, the prescribed period, within which the applicant was required by s 29(1)(d) of the AAT Act to lodge his application for review of the SSAT’s decision, expired on or about 10 December 2010. Thus, the applicant’s application for review, which he lodged with the Tribunal on 12 August 2011, was lodged eight months after the expiration of the relevant prescribed period.
19. Although, as held by the Full Federal Court in Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441, the giving of an acceptable explanation for delay in lodging an application for review is not an essential pre-condition of the favourable exercise of the discretion to grant an extension of time for the lodging of such an application, the Full Court said (at 444) that “it is to be expected that such an explanation will normally be given, as a relevant matter to be considered”.
20. The applicant’s explanation for his delay in lodging his application for review of the SSAT’s decision of 4 November 2010, as stated in his application for an extension of time (see paragraph 9 above), is not entirely clear. At the interlocutory hearing, however, he sought to explain that delay as follows:
    • he “had no idea” that he was required to lodge an application for review within 28 days;
    • he did not receive anything about the SSAT decision;
    • he cannot read or write English – he asks people to fill in forms for him;
    • he went overseas in March or April 2011 and was away for about four months;
    • when he returned he went to the Immigration Department and it was they who told him that he had a right of appeal, and they called the Tribunal.
21. The applicant also said that:
    • he does not understand the SSAT’s decision and why he has to pay back the $50,000 to Centrelink;
    • he cannot decide whether the SSAT was right or wrong – “there are other people who can decide that”;
    • he did not ask anyone to explain the SSAT’s decision and letter to him.
22. In the Tribunal’s opinion, the applicant has not provided a reasonable or acceptable explanation for his failure to lodge his application for review within the prescribed period of 28 days from 12 November 2010 or his further delay in lodging it until 12 August 2011. The Tribunal accepts that the applicant, because of English language difficulties, required the assistance of a person to explain to him the contents of the SSAT’s decision and the covering letter from the SSAT Registry which informed him of his right of appeal to this Tribunal and the prescribed period for lodging such an appeal. The applicant acknowledged, however, that he did not ask anyone to explain the SSAT’s decision and letter to him, and his explanation for his delay in lodging his application for review related to his:
    • being a “very busy person”;
    • having to “get a translator to translate the letter”; and
    • being overseas for about four months from March/April 2011.

The Tribunal is not satisfied that the applicant has provided a reasonable explanation for his failure to lodge his application for review before the expiration of the prescribed period on or about 10 December 2010 or within a reasonable time thereafter prior to his departing for overseas in March/April 2011.

23. The Tribunal, furthermore, is satisfied that, in the period of nine months from 12 November 2010 (when he was formally notified of the SSAT’s decision) to 12 August 2011 (when he lodged his application for review of the SSAT’s decision), the applicant did not take any action that might have made Centrelink or the respondent aware that he was contesting, or was proposing to contest, the SSAT’s decision of 4 November 2010. In those circumstances, the Tribunal accepts that the respondent, by reason of such inaction on the part of the applicant, had reasonable cause to believe, and reasonably inferred, that the applicant had “rested on his rights” and that the matter was finally concluded.
24. As regards the merits of the applicant’s application for review of the SSAT’s decision, the Tribunal notes that the applicant has not sought to dispute the correctness of that decision. At the interlocutory hearing he did not refer to any arguable flaws in that decision and, in his application for review of that decision, the only reason he gave for making that application was that he was suffering financial hardship as a result of that decision. Having perused the SSAT’s Reasons for Decision, the Tribunal accepts the respondent’s submission that those reasons indicate that the SSAT “conducted a thorough and fair examination of the evidence before it and made a conscientious and considered decision on the basis of that evidence”. The Tribunal, as presently advised, is not satisfied that the applicant’s application for review has merit or would have real prospects of success if it were to proceed. In short, the merits of the applicant’s application for review do not, in the Tribunal’s opinion, indicate that his application for an extension of time should be granted in the interests of justice.
25. It is unnecessary in this case for the Tribunal to canvass in detail the other considerations referred to in Re Johnson (see paragraph 17 above). Suffice it to say that, in the Tribunal’s opinion, none of those other considerations militates in favour of the grant of the applicant’s application for an extension of time. On the other hand, the considerations discussed in detail above, in particular, the applicant’s unsatisfactory explanation for his delay in lodging the relevant application for review and the apparent lack of merit of that application for review, militate against the grant of his application for an extension of time. On balance, therefore, the Tribunal is not satisfied that it would be reasonable in all the circumstances to extend the time for the making by the applicant of an application for review of the SSAT’s decision of 4 November 2010 until 12 August 2011.
26. For the above reasons, the Tribunal refuses to grant, pursuant to s 29(7) of the AAT Act, the applicant’s application for an extension of time until 12 August 2011 to lodge an application for review of the SSAT’s decision of 4 November 2010.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the order herein of Deputy President S D Hotop

Signed: E Jordan .....................................................................................

Associate

Date of Hearing 29 September 2011

Date of Order 29 September 2011

Date of Request for Written Reasons 13 January 2012

Date of Written Reasons 17 January 2012

Representative of the Applicant Self-represented

Representative of the Respondent Ms M Conlon

Centrelink