FEDERAL COURT OF AUSTRALIA

Aldefeary v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 633

THE COURT ORDERS THAT:

1.    The application for judicial review be dismissed.

2.    The applicant to pay the costs of the respondent, to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) refusing to grant the applicant an extension of time for lodging an application for review of a decision of the Social Security Appeals Tribunal. On the hearing dates for the appeal, the applicant (Mr Aldefeary) appeared unrepresented but assisted by an interpreter.

2    Having presented his argument which, on its face, appeared very much like a challenge to the merits of the decision, Mr Aldefeary then objected to the respondent’s counsel relying upon an affidavit in support sworn by Mr Peter John Corbould on the basis that he contended he had not been served with the affidavit. Counsel for the respondent indicated that the respondent’s records showed that the affidavit had been posted to Mr Aldefeary on 10 February 2012. Notwithstanding this, Mr Aldefeary was adamant that he had not received the affidavit. Counsel for the respondent sought a short adjournment to enable the contents to be translated to him. I was not satisfied in the circumstances that it would have been possible for Mr Aldefeary to come remotely near to comprehending the contents of the affidavit within half an hour or an hour and had no option it seemed in the circumstances other than to adjourn the appeal application for 14 days. Mr Aldefeary was provided with a copy of the affidavit by counsel in the course of the hearing.

3    I reminded Mr Aldefeary on a number of occasions that it was necessary for him to find a proper foundation for judicial review involving legal error on the part of the Tribunal. The submissions of Mr Aldefeary were regrettably focussed more on the merits and on his explanation as to the mistake which had been made by Centrelink when assuming that income he had received had been from the sale of 70 cars over a two year period whereas in fact he had only sold eight.

4    On the resumption of the adjourned hearing on 11 June 2012, Mr Aldefeary repeated the submissions concerning the errors made by Centrelink. Mr Aldefeary repeated his explanation that the findings reached in the Social Security Appeals Tribunal (the SSAT) were incorrect and that he could explain where he derived the income to which the SSAT enquiry was directed. Mr Aldefeary brought with him some tapes which he said recorded the early inquiries, as I understood it, by the SSAT and implicitly invited me to listen to those tapes which he said explained everything. Secondly, he repeated the point that ‘Consumer Affairs’ had pursued him in court for recovery of the same amounts and had then discontinued or withdrawn the proceedings, implicitly in recognition that they had made a mistake. He produced to me paperwork showing the adjournment of some proceedings against him in the Magistrates Court of Western Australia but in respect of which no other evidence was available. The proceedings were not self evidently related to this application. Ms Ladhams, counsel appearing for the respondent, was unable to throw any light on these documents (in respect of which she had received no notice) other than to indicate that she had made enquiries of her client in relation to discontinuance of any claim it had against Mr Aldefeary and that there had been no such claim. Ms Ladhams was unable to reconcile the Magistrates Court papers with the claims the subject of this proceeding. Even if there was some unidentifiable correlation in the claims in respect of which there was no admissible evidence, the documents simply showed the adjournment of some proceeding and nothing more.

5    Doing the best one reasonably can to make allowance and provision for Mr Aldefeary’s apparent difficulty with English and legal process, it was difficult to see how any of the matters informally raised by him could be relied upon in an application for judicial review especially given that the respondent, when invited to throw light on the topics which he raised, was quite unable to do so even with the benefit of having taken instructions. While endeavouring to be astute to prevent a miscarriage of justice, it is difficult to see that there is any support in the matters rather obliquely raised by Mr Aldefeary which could go to judicial review. Certainly none of them could explain the very substantial nine month delay between pursuing the application in the Administrative Appeals Tribunal (the AAT) and the further delay in pursuing the application in this Court.

6    For those and the following reasons, no proper basis was made out for the extension of time to appeal.

BACKGROUND

7    The following facts and decision summaries (taken in large measure and without repeated attribution) are adopted from the respondent’s submissions.

8    The evidence showed that Mr Aldefeary was first granted a Newstart Allowance on 7 August 2000 and received Newstart Allowance payments for most of the period from that date until 26 August 2009.

9    Throughout this period, Centrelink officers have raised debts totalling $50,334.74 to be paid by the respondent as a result of overpayments made to him. The details of these debts are as follows:

1.    On 3 February 2004, a Centrelink officer raised a debt of $62.04 in relation to the period 28 November 2003 to 11 December 2003 because Mr Aldefeary’s income from employment with Lansdale Strawberry Farm had not been taken into account in setting the rate of Newstart Allowance.

2.    On 30 January 2008, a Centrelink officer raised a debt of $399.10 in relation to the period 4 January 2008 to 16 January 2008 because Mr Aldefeary was not in Australia during that period.

3.    On 19 February 2008, a Centrelink officer raised a debt of $4,500.38 in relation to the period 2 June 2007 to 26 October 2007 because Mr Aldefeary’s income from weekly compensation payments had not been taken into account in setting the rate of Newstart Allowance.

4.    On 7 December 2009, a Centrelink officer raised a debt of $5,689.99 in relation to the period 27 October 2007 to 6 June 2008 because Mr Aldefeary was precluded from receiving Newstart Allowance during this period due to the receipt of a lump sum compensation payment.

5.    On 14 January 2010, a Centrelink officer raised a debt of $39,683.23 in relation to the period 18 January 2002 to 26 August 2009 because Mr Aldefeary had received into his bank accounts unexplained deposits to the value of $323,573.29 in the period 2 October 2001 to 2 September 2009.

10    Mr Aldefeary requested a review of each of the abovementioned debt decisions. On 30 June 2010, a Centrelink authorised review officer (ARO) affirmed the decisions to raise and recover the debts in full. On 21 July 2010, Mr Aldefeary lodged with the SSAT an application for review of the ARO's decision of 30 June 2010. On 4 November 2010, the SSAT affirmed the decision under review. A copy of this decision was sent to Mr Aldefeary by letter dated 12 November 2010.

11    Nine months later, on 12 August 2011, Mr Aldefeary lodged with the AAT an application seeking review of the SSAT's decision. On 31 August 2011, Mr Aldefeary lodged with the AAT an application for an extension of time and on 8 September 2011, the respondent filed a notice opposing the extension of time. On 29 September 2011, the AAT refused Mr Aldefeary’s application for an extension of time. The AAT provided oral reasons for its decision. On 17 January 2012, the AAT provided written reasons at the request of the respondent.

12    On 10 November 2011, Mr Aldefeary filed in this Court an application for review of the AAT’s decision.

THE SSAT'S DECISION

13    The SSAT affirmed the decision under review 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.

14    The SSAT noted that it was not in contention that Mr Aldefeary had earned income from employment at Lansdale Strawberry Farm and that this had not been taken into account in calculating the rate of Newstart Allowance. The SSAT decided that the overpaid amount of $62.04 was a debt due to the Commonwealth.

15    The SSAT noted that it was not in contention and found that Mr Aldefeary received weekly compensation payments of $464 which were not taken into account in calculating his Newstart Allowance for the period 2 June 2007 to 26 October 2007, and that he received a lump sum compensation payment of $48,500 on 26 October 2007. The SSAT decided that the weekly compensation payments were ordinary income of Mr Aldefeary, that Mr Aldefeary had been overpaid $4,500.38 for the period 2 June 2007 to 26 October 2007 and that this amount was a debt due to the Commonwealth. The SSAT further decided that the lump sum compensation payment precluded Mr Aldefeary from receiving Newstart Allowance for the period 27 October 2007 to 6 June 2008, that Mr Aldefeary had been overpaid $5,689.99 and that this amount was a debt due to the Commonwealth.

16    The SSAT found (at [34]) that the source of Mr Aldefeary’s income was unclear, and felt that he was being untruthful in much of what he told the SSAT in relation to the money belonging to his family and friends. With respect to Mr Aldefeary’s income from sources other than Centrelink or wages, the SSAT considered the explanations provided by Mr Aldefeary and made the following findings:

1.    The SSAT did not accept (at [31]) Mr Aldefeary’s evidence that he bought and sold motor vehicles for his sons. Mr Aldefeary had told the SSAT that he did this because his sons had lost their driver's licences, but the SSAT noted that there was no requirement for a person to hold a driver's licence in order to register a motor vehicle. The SSAT also noted that Mr Aldefeary had been asked to provide documentary evidence to Centrelink regarding the vehicle transactions and had failed to do so.

2.    Mr Aldefeary had told the SSAT that his children (somewhat unusually) put money in his bank account as it was their intention to purchase a house. The SSAT noted (at [32]) that money going into Mr Aldefeary’s bank account appears to have been spent at a similar rate to that at which it was received, and found that there was never enough money in his bank account to give any weight to his suggestion that his children were saving to purchase a house.

3.    The SSAT noted that Mr Aldefeary provided a letter from Ms Lidia Flores stating that she gave Mr Aldefeary $12,000 in cash in 2008 and 2009 but no detail was provided as to the purpose of the cash.

17    The SSAT agreed with the approach adopted by Centrelink (at [35]) of applying s 1073 of the Social Security Act 1991 (Cth) (Social Security Act) to income from sources other than wages or other sources identified by Centrelink and treating 1/52 of each deposit as ordinary income for each week in the 12 month period following the receipt of each deposit. The SSAT decided that the overpayment of $39,683.23 that resulted from this approach was a debt due to the Commonwealth.

18    The SSAT noted (at [37]) that it was not in contention and found that Mr Aldefeary left Australia on 4 January 2008 and continued to receive Newstart Allowance until 16 January 2008. Mr Aldefeary claimed that he had travelled to Bangkok and Phuket to receive ‘treatment on his back’ but the SSAT did not accept that this was treatment of a kind that was not available in Australia. The SSAT found that Mr Aldefeary had been overpaid an amount of $399.10 and that this is a debt due to the Commonwealth.

19    The SSAT also considered whether recovery of the debt should be waived or written off. The SSAT decided that it was not appropriate for all or part of the debt to be waived or written off for the following reasons:

1.    The SSAT noted that recovery of a debt must be waived if the debt is attributable solely to an administrative error by the Commonwealth and the debtor received the payments in good faith. The SSAT found that in the present case, Mr Aldefeary had been informed of the requirements to advise Centrelink when, amongst other things, he started any form of paid work, he decided to leave Australia, his income changed, he received a lump sum payment from any source or that he received compensation. Mr Aldefeary failed to comply with his notification obligations and the debts arose for this reason. The debt could therefore not be attributed solely to an administrative error on the part of the Commonwealth, and the SSAT consequently found that it could not waive recovery of the debt on this basis.

2.    The SSAT also noted (at [49]) that recovery of a debt can be waived where there are special circumstances, but that for this to be possible the SSAT must first be satisfied that the debt did not result from Mr Aldefeary or another person knowingly making a false statement or representation, or failing or omitting to comply with the provisions of the social security law. The SSAT did not accept that Mr Aldefeary did not understand his obligations to Centrelink because of his lack of English skills. The SSAT noted that Mr Aldefeary had regular contact with Centrelink in person and over the phone and regularly requested assistance from Arabic interpreters. Mr Aldefeary attended Centrelink to apply for advance payments on a number of occasions and also advised Centrelink on three separate occasions that he was going overseas to attend an acute family crisis (thereby continuing to receive Newstart Allowance whilst overseas). He also reapplied for Newstart Allowance on several occasions, operated four bank accounts and had registered 10 vehicles in his name. The SSAT was satisfied that Mr Aldefeary had actual knowledge when lodging application for payment forms that he was making false statements and omitting to comply with his obligations.

3.    The SSAT also noted that a debt can be written off in certain circumstances. The SSAT was satisfied that Mr Aldefeary had capacity to pay the debt and that it was not appropriate for the debt to be written off under s 1236 of the Social Security Act.

THE AAT'S DECISION

20    The AAT refused Mr Aldefeary’s request for an extension of time to seek review of the SSAT's decision. In so doing, the AAT referred to a frequently cited passage in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (at 348), where Wilcox J said:

…

1.    … The "prescribed period" of twenty-eight days is not to be ignored …, it is the prima facie rule that proceedings commenced outside that period will not be entertained... It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time... (citations omitted)

…

21    These principles were recently reiterated in SZOEC v Minister For Immigration and Citizenship [2012] FCA 129 where Bromberg J said (at [11]-[13]:

EXTENSION OF TIME – LEGAL PRINCIPLES

11.    Rule 36.05 of the Rules provides for the power to grant an extension of time in which to file a notice of appeal. Section 25(2)(b) of the Federal Court of Australia Act 1976 (Cth) provides that applications for an extension of time within which to institute an appeal to the Court may be heard and determined by a single judge or by a Full Court. A number of decisions of this Court have considered the criteria to be applied in determining whether leave should be granted in a case of this kind. Those decisions include: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348–349 (Wilcox J); Jess v Scott (1986) 70 ALR 185 at 193 (Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (Spender, O'Loughlin and Dowsett JJ); Peck v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]- [17] (Foster J); and more recently SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16] – [25] (Cowdroy J).

12.    At paragraph [6] of Parker the Full Court referred to the following considerations:

(1)    applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The appellant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

(2)    action taken by the appellant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

(3)    any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension ;

(4)     however, the mere absence of prejudice is not enough to justify the grant of an extension; and

(5)    the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

13.    As the Full Court further noted at [10] and [13], the purpose of the rule in relation to the grant of leave is to give the Court discretion to extend time in order to avoid injustice. This is intended to enable substantial injustice to prevail over technical default. In Wilson v Alexander [2003] FCAFC 272, Ryan, Heerey and Allsop JJ posited the test succinctly as requiring an applicant to:

(1)    provide a satisfactory explanation for the delay in bringing the application; and

(2)    demonstrate that there is a prospect of success on the substantive appeal.

22    The AAT found:

1.    The prescribed period within which Mr Aldefeary should have lodged his application for appeal expired on or about 10 December 2010. Mr Aldefeary lodged his application on 12 August 2011, some eight months after the expiry of the prescribed period.

2.    Mr Aldefeary had not provided a reasonable or acceptable explanation for his failure to lodge his review application on time. The reasons provided by Mr Aldefeary included that he ‘had no idea’ he had to lodge an application for review within 28 days, he could not read English well, he went overseas in March or April 2011 for about four months and found out upon his return that he had a right of appeal. Mr Aldefeary also said that he did not ask anyone to explain the SSAT decision to him and his delay in making the application was as the result of being very busy and needing a translator to translate the letter.

3.    Mr Aldefeary did not, in the nine month period from when the SSAT decision was handed down to when he lodged an application for review, take any action that may have suggested to Centrelink that he was contesting, or proposing to contest, the SSAT decision.

4.    Mr Aldefeary did not dispute the correctness of the decision under review. The SSAT had conducted a thorough and fair examination of the material before it and came to a conscientious decision based on that evidence. The application would have little prospect of success were it allowed to proceed.

MR ALDEFEARY'S APPLICATION TO THIS COURT - JURISDICTION

23    Mr Aldefeary does not specify in his application the jurisdictional basis on which he seeks review of the AAT's decision, although he has used a form 66, suggesting he is applying for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

24    The AAT decision was made on 29 September 2011 and this application for review was filed on 10 November 2011.

25    If Mr Aldefeary relies for jurisdiction on either s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) or s 11 of the ADJR Act, the prescribed time for filing this application would have expired on 28 October 2011. Mr Aldefeary would need to seek an extension of time before this matter could proceed, which he has not done.

26    There may be jurisdiction for the Court to hear this application pursuant to s 39B(1A) of the Judiciary Act 1903 (Cth). I will assume in Mr Aldefeary’s favour that there is no time restriction on the Court's jurisdiction under that provision.

RELEVANT LEGISLATION FOR EXTENSION OF TIME APPLICATION TO AAT

27    A decision of the SSAT may be reviewed by the AAT. Section 29 of the AAT Act deals with the manner of applying to the AAT for a review of a decision.

28    Subsection 29(1)(d) 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 AAT for review of that decision shall be lodged with AAT within the prescribed period. As stated above, this was not done by Mr Aldefeary.

29    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

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

Tribunal may extend time for making application

…

(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

No reviewable error disclosed in Mr Aldefeary's application

31    Mr Aldefeary sets out in his application two grounds of application, which are:

1.    that he is unable to understand proper English and is not able to read letters sent to him, and

2.    that he is a pensioner and does not have a job and cannot pay debt quickly.

32    Neither of these grounds discloses a reviewable error of law.

33    The ‘orders sought’ by Mr Aldefeary include an order that he be granted an extension of time, presumably an extension of time before the AAT. This is not an appropriate order to make. Were I to be satisfied that a ground of review was made out by Mr Aldefeary, the appropriate order would be to remit the matter to the AAT for reconsideration.

34    In para 1 of his affidavit affirmed on 10 November 2011, Mr Aldefeary deposed that he ‘believe[s] the examination of the evidence before making a decision was not enough and has to be done [to] reconsider applicant's facts’. This would appear to indicate that Mr Aldefeary is seeking review on the merits, which is beyond the Court’s jurisdiction.

No error in the AAT decision

35    The AAT was required to decide whether Mr Aldefeary should be granted an extension of time to seek review of the decision of the SSAT.

36    In so doing, the AAT has:

1.    considered, so far as it was necessary to do so in the circumstances, the principles in Hunter Valley Developments Pty Ltd (at 348-350) relevantly set out above and in so doing, applied the correct law in making its decision;

2.    afforded Mr Aldefeary procedural fairness by giving Mr Aldefeary an opportunity to be heard and make submissions with the assistance of an Arabic interpreter;

3.    considered all reasons provided by Mr Aldefeary for his delay in lodging an application for review; and

4.    given Mr Aldefeary an opportunity to comment on the merits of the decision of the SSAT (albeit, as the AAT found, Mr Aldefeary ‘did not refer to any arguable flaws in that decision’).

37    Mr Aldefeary deposed that the form in which he stated that he was late in seeking review because he was a ‘busy person’ was written by a family member, who ‘wasn’t sure about what to write and who didn’t know much of the case’. These also do not constitute reviewable errors on the part of the AAT. The AAT gave Mr Aldefeary opportunity at the hearing to provide further reasons and took these further reasons into account. It is not an error for the AAT to take into account what was written by Mr Aldefeary in his application.

38    There is no error in the AAT's decision.

No error in the SSAT decision

39    Importantly, and as accepted by the AAT (at [24]), 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’. Mr Aldefeary has not presented any admissible evidence which challenges the correctness of the SSAT decision and which could support an extension of time for review of that decision by the AAT.

40    There is no good reason to consider that the decision under review was incorrect. There would be no merit and no utility in a review of the SSAT decision by the AAT.

CONCLUSION

41    The application will be dismissed with costs. The following orders are made:

1.    The application for judicial review be dismissed.

2.    The applicant to pay the costs of the respondent, to be taxed if not agreed.

Associate:

Dated:    19 June 2012