FEDERAL COURT OF AUSTRALIA
Clausen v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 445
Social Security Act 1991 (Cth) s 1217
ADRIAN E A CLAUSEN v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
TAD 3 of 2008
HEEREY J
1 APRIL 2008
HOBART
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IN THE FEDERAL COURT OF AUSTRALIA |
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TASMANIA DISTRICT REGISTRY |
TAD 3 of 2008 |
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BETWEEN: |
ADRIAN E A CLAUSEN Applicant
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AND: |
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent
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HEEREY J |
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DATE OF ORDER: |
1 APRIL 2008 |
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WHERE MADE: |
HOBART |
THE COURT ORDERS THAT:
1. The application for leave to appeal out of time be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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TASMANIA DISTRICT REGISTRY |
TAD 3 of 2008 |
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BETWEEN: |
ADRIAN E A CLAUSEN Applicant
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AND: |
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent
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JUDGE: |
HEEREY J |
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DATE: |
1 APRIL 2008 |
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PLACE: |
HOBART |
REASONS FOR JUDGMENT
1 The applicant applies for an extension of the time for filing and serving a notice of appeal from the decision of the Administrative Appeals Tribunal, constituted by Ms Mary Imlach, Senior Member.
2 On 9 December 2005 the Tribunal affirmed the decisions of Centrelink cancelling the applicant’s disability support pension on 8 January and 6 June 2005. The reason for cancellation was the applicant’s absence overseas for a period in excess of thirteen weeks, which was not an allowable absence within the meaning of s 1217 of the Social Security Act 1991 (Cth).
3 The delay is obviously a very substantial time but for present purposes I will assume that some reasonable explanation has been given for it. Nevertheless, I think that leave should not be granted because no arguable prospects of success are revealed. The Tribunal at [32] decided, on the grounds of both the documentary and verbal evidence provided by Mr Clausen, that no robbery or serious crime was committed against him during his overseas absences in South Africa from 21 August 2004 to 26 February 2005 or from 8 March 2005 to 6 June 2005, nor had there been any criminal proceedings for which he would be required to remain outside Australia. That is plainly a finding of fact and an appeal to this court lies only on a question of law.
4 The applicant made some fairly generalised critical comments about the state of the justice system in South Africa, but that does not raise any arguable merits as far as the proposed appeal is concerned.
5 The application for leave to appeal out of time will be dismissed with costs.
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I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. |
Associate:
Dated: 1 April 2008
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Counsel for the Applicant: |
Applicant appeared in person |
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Counsel for the Respondent: |
K Heba |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
1 April 2008 |
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Date of Judgment: |
1 April 2008 |
