Federal Court of Australia

Englezos v Secretary, Department of Social Services [2023] FCA 31

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time filed 1 February 2021 be refused.

2.    Order 2 of the Orders of 28 May 2021 be vacated.

3.    The applicant pay the respondent’s costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

INTRODUCTION

1    Before the Court is an application for an extension of time to appeal from a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 November 2020 in Englezos and Secretary, Dept of Social Services (Social Services Second Review) [2020] AATA 4650. Relevantly, the Tribunal set aside a decision of the respondent, the Secretary of the Department of Social Services (Secretary) to raise a carer payment debt (of which the applicant is the debtor) in the sum of $17,725.04. The Tribunal substituted the Secretary’s decision to raise the debt as follows:

(i)    The Applicant has a legally recoverable debt arising from the overpayment of his carer payment during the period of 18 January 2018 to 29 July 2019;

(ii)    In accordance with section 1237A of the Social Security Act 1991 (Cth), the right to collect part of the debt relating to the period of 22 January 2018 to 3 May 2018 is waived; and

(iii)    The matter is further remitted to the Respondent to recalculate the Applicant’s debt in accordance with this decision.

2    The matter came before me for hearing on 22 June 2021. At this time the applicant was self-represented and I adjourned the matter to give the parties an opportunity to attend mediation, and to provide the applicant a referral certificate in accordance with r 4.12 of the Federal Court Rules 2011 (Cth) for pro bono legal assistance.

3    I note that the mediation was unsuccessful and the parties came before me for continuation of the hearing on 16 February 2022. At that hearing the applicant was represented on a pro bono basis by Mr Carter of DSS Law. Mr Kyranis appeared for the respondent.

BACKGROUND

4    The background facts in this matter were set out in the Tribunal’s decision at [1]-[16] and are not controversial. It is convenient to briefly set out those facts here.

5    Materially, the applicant has been a recipient of a carer’s payment from Centrelink (the Agency) for the care of his father since 18 September 2009.

6    On 11 January 2018 the applicant advised the Agency that he was getting married. As a result the applicant was advised that he was required to complete a “MOD P” form with details concerning his fiancé. Relevantly, that advice noted that the form was required to be submitted by 26 January 2018 to prevent the applicant’s carer’s payments being rejected or cut off.

7    The applicant was subsequently married and lodged the MOD P form with the Agency on 22 January 2018. Attached to the MOD P form was the applicant’s wife’s payslips for the period 29 November 2017 to 26 December 2017.

8    On 24 January 2018 the Agency commenced a review of the applicant’s ongoing entitlements to his carer’s payment. In doing so it requested that the applicant provide financial information relating to the 2016-17 financial year for both his wife and himself.

9    On 19 February 2018 the applicant’s carers payment was suspended and the applicant received correspondence stating that the combined annual income used for calculating the applicant’s payment was $17.50.

10    In the following months, correspondence between the applicant and the Agency ensued, referrable to the applicant’s wife’s income, including in relation to purported income from trusts and companies of which the applicant’s wife was a silent director.

11    On 3 May 2018 the Agency advised the applicant that his carer’s payment had been cancelled as the Agency had not received replies to various letters sent to the applicant. It is of note at this point that the Agency advised in the cancellation correspondence that the combined annual income used for calculating the applicant’s payment was $17.50.

12    On 19 June 2018 the Agency advised the applicant that the carer’s payment would be back-paid for the period 15 February 2018 to 21 June 2018 in the amount of $5,449.45. Again, the Agency noted in this correspondence that the combined annual income forming the basis of this assessment was $17.50.

13    Following this there was further correspondence between the applicant and the Agency regarding the applicant’s entitlements to the carer’s payment in the period 19 July 2019 to 13 September 2019.

14    On 13 September 2019, Services Australia (formerly the Department of Human Services) raised a “carer payment” debt in the sum of $23,173.22 against the applicant (original debt) pursuant to s 1223(1) of the Social Securities Act 1991 (Cth). This debt was founded on the basis that the applicant had been overpaid as the applicant’s wife’s income had not been taken into account for the period 12 January 2018 to 29 July 2019.

15    On 11 November 2019 the applicant applied for an internal review of the decision by an Authorised Review Officer. As a result of that review the debt was reduced to $17,725.04 (reviewed debt) as the Review Officer considered that the applicant’s entitlement to rental assistance benefits had not been taken into account in the original debt calculations.

16    On 30 January 2020 the applicant applied for further review in the Social Services and Child Support Division (SSCS Division) of the Tribunal. On 28 March 2020 the SSCS Division affirmed the decision under review, finding that there were no special circumstances to justify the waiver of any part of the reviewed debt.

17    On 14 April 2020 the applicant sought a second review of the reviewed debt pursuant to s 179(1) of the Social Security (Administration) Act 1999 (Cth) in the General Division of the Tribunal. It is this decision of the Tribunal which is the subject of this application.

Decision of the Tribunal

18    The Tribunal ultimately set aside the decision under review and remitted the remaining debt amount to the respondent to recalculate.

19     The relevant issues for the Tribunal were set out at [20] of its reasons as follows:

(a)    whether the applicant was overpaid the carer payment for the amount of $17,725.04 for the period of 18 January 2018 to 29 July 2019;

(b)    whether any overpayment of the carer payment constitutes a debt to the Commonwealth and if so

(c)    whether any debt owed to the Commonwealth is recoverable in part or in full.

20    The Tribunal then set out the applicable provisions at [21] – [30].

21    In relation to the first issue for consideration for the Tribunal, the Tribunal accepted the evidence that the applicant had informed the Agency of his marriage and, accordingly, for the purposes of receiving the carer’s payment, the applicant was a member of a couple and taken to have pooled their income and assets on a 50/50 basis: s 1064-A2 of the Social Security Act 1991 (Cth).

22    The Tribunal accepted in this regard that the Agency had incorrectly calculated the applicant’s carer’s payments from 18 January 2018 to 29 July 2019. Accordingly, the Tribunal’s answer to the first issue was “yes”. The Tribunal at [33] of it reasons for reaching this conclusion were evidenced by:

(a)     Payslips belonging to the wife of the Applicant tendered to the Agency on 22 January 2018, for the period of 29 November 2017 through to 26 December 2017, showing that year to date gross earnings as of 26 December 2017 were $34,817.4719.

(b)     A completed and signed “MOD P” form tendered to the Agency on 22 January 2018, clearly stating that the Applicant’s wife’s fortnightly earnings were $2,575, including listing the name of her employer.

(c)     A Notice of Assessment for the financial year ended 30 June 2017 tendered to the Agency on 28 February 2018, confirming the Applicant’s wife’s taxable income of $67,403 for the year.

(d)     A copy of the personal income tax return of the Applicant’s wife for the 2016-17 financial year tendered to the Agency on 14 March 2018.

(e)     Payslips belonging to the wife of the Applicant tendered to the Agency on 5 August 2019, for the period of 29 November 2017 through to 9 July 2019. These payslips show that the year to date gross earnings to 9 July 2019 were $2,653.84; for the 2018-19 financial year to date gross earnings were $70,037.35; and for the 2017-18 financial year to date gross earnings were $68,858.69.

(footnotes omitted)

23    In relation to the second issue, the Tribunal held that the answer was also “yes”. The Tribunal observed at [38] – [39]:

38.     The Tribunal has found that the Applicant has received a greater amount of the carer payment than what they were otherwise entitled to receive during the period of 18 January 2018 to 29 July 2019.

39.     The Tribunal finds that the amount of the carer payment received by the Applicant that was calculated on the incorrect combined income of the Applicant and his wife during the period of 18 January 2018 to 29 July 2019, is a debt due to the Commonwealth by the Applicant and constitutes a legally recoverable debt pursuant to s1223 (1) of the Act.

24    Lastly, and importantly, the Tribunal held at [46] that the debt could not be written off given that the debt was recoverable at law, the applicant had capacity to repay the debt, the applicant’s whereabouts were known, and there was no evidence that the recovery of the debt by the Commonwealth would not be cost effective. Further, the Tribunal considered whether the debt should be waived as attributable solely to an administrative error pursuant to s 1237A of the Social Security Act. Relevantly, s 1237A provides as follows:

(1)     Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

(emphasis added)

25    Clearly, the Act requires an element of good faith. The Tribunal noted at [50] the applicant’s attempts to comply with directions of the Agency and subsequently observed at [51] the Agency’s error in not updating the applicant’s information. However, at [52] the Tribunal detailed the occasions on which the Agency wrote to the applicant which stated that the assessments of his income was based on a combined total of $17.50.

26    In considering whether the applicant had acted in good faith, the Tribunal turned to the decisions in Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127 and Jazazievska v Secretary Department of Family & Community Services [2000] FCA 1484. In particular, the Tribunal noted that the Court in Prince and in Jazazievska held that the state of mind of the person receiving the payment was relevant to the consideration of good faith. This does not require, as Cooper J noted in Jazazievska at [40], an element of fraud in order for a finding that the applicant lacked good faith, rather that the applicant will demonstrate a lack of good faith in circumstances where the recipient acted without an honest belief that he or she was entitled to the payment. In this respect, his Honour continued at [41] that a person does not act in good faith where they turn a blind eye to the circumstances which could raise doubt as to their entitlement to receive such payment. The Tribunal then referred to a decision of the Tribunal in Panacci and Secretary, Department of Employment and Workplace Relations [2008] AATA 30 where it was observed that the state of mind of the applicant was entirely subjective; at [25].

27    Overall, having regard to the material before it, the Tribunal considered that the applicant had acted in good faith for a portion of the period, namely from 22 January 2018 to 3 May 2018. In respect of the remainder of the overpayment period the Tribunal found as follows:

63. For the remaining period of the debt (being 4 May 2018 to 29 July 2019), the Tribunal is of the view that the debt was not solely due to an administrative error on the basis that the Applicant was informed on multiple occasions after having providing updated material to the Agency, that their payment was still being calculated on the basis of a combined income of $17.50. This view is made with specific reference to letters sent by the Agency to the Applicant on 3 May 201845; and 19 June 2018 46. There is no evidence before the Tribunal that the Applicant sought to update their income from 4 May 2018.

28    The Tribunal considered whether there were special circumstances to justify a waiver under s 1237AAD of the Social Security Act. That section provides:

1237AAD Waiver in special circumstances

The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)     the debt did not result wholly or partly from the debtor or another person knowingly:

(i)     making a false statement or a false representation; or

(ii)     failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

(b)     there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c)     it is more appropriate to waive than to write off the debt or part of the debt.”

29    Ultimately, the Tribunal determined that there were no such special circumstances, noting at [69] – [70]:

69.     In the present application, it is the Tribunal’s view that the Applicant’s debts were not a result of the Applicant knowingly failing to omit or comply with the notices issued under the Administration Act, nor providing false or misleading statements.

70.     In terms of special circumstances, the Applicant had submitted to the SSCSD of the Tribunal that they suffered from Crohn’s disease, however when this was put to the Applicant at the hearing they did not wish to press this47.

71.     Based on the evidence before the Tribunal, the Tribunal does not consider the Applicant’s circumstances are sufficiently special or unusual to warrant the exercise of the discretion in s1237AAD of the Act to waive the Applicant’s debt.

30    It follows that the Tribunal’s answer to issue 3 was in the affirmative and remitted the matter to the respondent to recalculate the applicant’s debt.

CONSIDERATION

31    The Tribunal’s decision was provided to the applicant on 19 November 2020. The applicant was required by r 33.12 of the Federal Court Rules and s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) to file his application not later than 28 days after the day the decision is given, being by 17 December 2020. The applicant’s application for an extension of time was accepted for filing on 1 February 2021. Clearly, the applicant did not file his application within the time prescribed, and was 46 days out of time.

32    The principles governing the Court’s discretion to grant an extension of time are well settled. In summary, the Court will have regard to :

(1)    Whether there is an adequate explanation for delay on the part of the applicant;

(2)    Prejudice to be faced by the parties; and

(3)    Merits of the proposed grounds of appeal.

See AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176 at [35]; GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 at [23]; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20].

33    It is also well established that, as a general principle, the Court will not exercise its discretion unless it is in the interests of justice to do so; AZAFF at [35], Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349; MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62].

34    The Secretary opposed the grant of an extension of time on the basis that the explanation for the delay was inadequate, and there were insufficient prospects of success in respect of the proposed grounds of appeal. In relation to prejudice the applicant submitted that given the relatively minor quantum of the Tribunal decision, the respondent was highly unlikely to suffer any prejudice if the extension of time were to be allowed. At the hearing the respondent conceded that there was little to no prejudice to the Secretary, other than in relation to the time and resources to be spent in litigation, and that the critical issue in this case concerned the merits of the application.

Explanation for delay

35    In support of the applicant’s application for an extension of time, the applicant relied on his affidavits filed on 1 February 2021, 8 February 2021 and 16 February 2021. In short, the applicant deposed in those affidavits that the substantive explanation for the delay in filing his appeal was referrable to:

    being a litigant in person and not understanding the process for filing of an appeal;

    waiting for pro bono assistance from LawRight;

    A delay in the postage of his application which was stated to have been sent to the Federal Court Registry on 4 January 2021; and

    Once realising on 29 January 2021 that his application was incomplete, subsequently having to attend the Registry of the Federal Court in person to provide missing documents on 1 February 2021.

36    The applicant submitted that:

    As the applicant is a lay person with no legal knowledge, additional weight should be allocated to the steps that the applicant took to attempt to obtain legal advice and then file his application, including that:

•    The applicant was able to have his affidavit in support witnessed on 31 December 2020 despite the Christmas period;

•    The applicant intended to file the application on 4 January 2021, and therefore had he been successful at this time this would have resulted in an 18 day delay;

•    The applicant attended the Registry promptly after realising on 29 January 2021 that his application had not been accepted by the Registry.

    Given the proximity to the Christmas period, it is likely that shutdown periods could have impacted the applicant’s ability to obtain advice in a timely manner; and

    Minor indulgences should be granted by the Courts to self-represented litigants so as to avoid any injustice.

37    The respondent submitted, in summary:

    The applicant’s delay in filing this application was significant, in that it was almost double the statutory limit;

    Ignorance of the law, as a self-represented litigant, is not an adequate explanation for delay;

    The applicant’s affidavit material has failed to explain why he only completed an online application for legal assistance with LawRight on 14 December 2020 and not promptly after the decision had been made, noting that the applicant was on notice of a potential time limit on the cover letter provided by the Tribunal;

    The applicant deposed that he received procedural advice from LawRight on 22 December 2020 explaining how to lodge an appeal and the time limit for doing so, yet despite this, the applicant did not fill out the forms until the last week of December 2020 because he was “not familiar with this process had trouble answering the some of the questions on the forms”;

    Despite deposing to posting the completed application for an extension of time to the Registry on 4 January 2021 the applicant has provide no evidence of postage;

    It was the responsibility of the applicant to correctly lodge his appeal and any application for an extension of time; and

    The applicant has provided no explanation as to why he did not attend the Registry in person to lodge the application at an earlier date.

38    As a general position, I note that an inability to obtain legal advice does not, in itself, form an adequate explanation for delay. Whilst the Court may have sympathy for a litigant in person, a failure to abide by any stipulated timeframe in the filing of an appeal by virtue of a professed ignorance of the relevant rules is not an adequate reason for delay: BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40]; SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17 at [38]; MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25]. Although a person wishing to bring an action or appeal is entitled to seek assistance from legal practitioners, it is ultimately the proposed applicant’s case and responsibility to ensure compliance with the relevant requirements; see for example SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]. Of course, there will be exceptions, such as whereby a lay person relies on the advice of a legal practitioner to their detriment: see for example BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [6]. However, that is not the case currently before the Court.

39    Without good reason, a litigant in person is not inherently exempt from the rules. The time limits prescribed by the Federal Court Rules and AAT Act are not “mere aspirational guidelines” and the applicant must provide a good reason to explain the delay, particularly when that delay is lengthy: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3]; BJT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 870 at [40].

40    In my view, taking into consideration the evidence of the applicant and submissions of the parties, the applicant has failed to provide an adequate explanation for the delay. I have formed this view for the following reasons.

41    First, the applicant at para [7] of his affidavit filed 8 February 2021 deposed as follows:

7.     To the best of my memory, I made approximately 6 phone calls to the Registry during the period of 26th November 2020 to 23rd December 2020 seeking advice about how to lodge an appeal. The Registry told me what forms and documents I needed for my civil law case, and what content of those forms was relevant to my case.

42    Despite this admission, the applicant provides no further explanation as to what further information the applicant required in order to file his appeal and why he was incapable of doing so at this point, taking into consideration that the applicant ultimately filed his application as a self-represented litigant.

43    Second, the applicant deposed in the 8 February 2021 affidavit at para [8] that he only lodged his online application for legal advice and assistance to LawRight on 14 December 2020, being 3 days before the limitation period was due to expire. The applicant then received correspondence from LawRight on 18 December 2020 requesting further information about the applicant’s case, including a copy of the Tribunal’s decision. At no point did the applicant appear to raise a concern with LawRight regarding the expiry of the appeal period nor flag the urgency in which he required the advice.

44    Third, I note the applicant’s oral submissions that the process of obtaining a LawRight appointment was lengthy, and that LawRight did not advise the applicant that he was out of time to file the appeal until 22 December 2020. However, the applicant also gave evidence at [11] of the 8 February 2021 affidavit that he received an email on that day from LawRight containing procedural advice about how to lodge an appeal, and advising him that he would need to apply for an extension of time. If the applicant was not sufficiently aware in the period 26 November – 23 December 2020 as a result of his various phone calls to the Registry, the applicant was undoubtedly aware at this point of the appropriate forms and manner in which to file an appeal or extension of time in the Federal Court.

45    Fourth, despite this, the applicant did not send his Notice of Appeal, Application for an Extension of Time and supporting affidavit to the registry for filing until 4 January 2021. Although the applicant’s solicitor indicated this may be a result of the Christmas period, the applicant has provided no evidence as to why the documents could not have been filed earlier once he became aware of the time limitations and requirement to file an application for leave.

46    Fifth, the applicant deposed in the 8 February 2021 affidavit as follows:

18.     On 29th January 2021 I called the Registry to check the status of my documents. During the conversation, I recall that Registry staff told me that an email had been sent requesting additional documents. I became aware that this email had been sent to the wrong address. I corrected my email address over the phone, and I was told by Registry staff that my application was missing a photocopy of my concession card and some pages of the AAT decision.

47    Although the applicant can be seen to have attempted to lodge his application on 4 January 2021, and had taken steps to obtain legal advice, I do not accept that the applicant has provided an adequate explanation for the delay in doing so.

48    In the interests of completeness however I will also consider the merits of the applicant’s proposed appeal.

Merits of proposed grounds of appeal

49    Despite obtaining pro bono legal representation, the applicant did not file an amended draft notice of appeal. Relevantly, the applicant’s “questions of law” and proposed grounds of appeal are as follows:

Questions of law

The Respondent’s errors of judgement

…

Grounds relied on

1.    The Respondent’s administrative errors in claiming any debt is owing by the Applicant

2.    The Respondent making mistakes three times concerning the amount

3.    The Respondent has never demanded payment in writing from the Applicant until this matter was put to the Administrative Appeals Tribunal hearings,

4.    Evidence in Annexure A is attached being Secretary’s Statement Of Facts & Contentions of the Respondent, because the Applicant believes that the Administrative Appeal Tribunal ruled in the Applicants favour because the tribunal agreed that the following numbered items of the Secretary’s Statement Of Facts & Contentions of the Respondent, are false:

a.    Item 9 to item 10

b.    Item 12

c.    Item14 to item 16

d.    Item 20

e.    Item 29

f.    Item 55 to item 60

(errors in original)

50    I note the submissions of the applicant’s solicitor in relation to the grounds of appeal, as follows:

36.     Given this appeal is brought pursuant to Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth), it must be appealed in relation to a question of law.

37.     The Courts have considered the approach which is to be used pursuant to Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and determined that: While it is ‘of great importance that the question or questions of law should be stated with precision’ whether or not the appeal is on a question of law ‘is to be approached as a matter of substance rather than form’, and in a ‘common sense way’.

38.     The Notice of Appeal identifies the Question of Law as “The Respondent’s errors of judgement”.

39.    The Grounds of Appeal identify four (4) grounds on which the appeal is based.

40.    It is clear that the Notice of Appeal is not drafted with precision, however the language choices made by the Applicant as a self-represented litigant ought not to be taken in a legal context.

41.     When reviewing the grounds, it could be synthesised that the Appeal is a question of law based on the following:

42.     Whilst it is apparent that the Notice of Appeal is not clearly articulated. Having regard to the fact it was drafted by a self-represented litigant who does not have the legal knowledge to formulate the principles on which the Appeal should be based, the above synthesisation assists the Court and the Respondent to clarify on what grounds the Appeal is based.

43.    As a result of the above, at the very least, it is least sufficiently arguable that the Notice of Appeal has merit.

(footnotes omitted)

51    Further, the applicant submitted in summary as follows:

    The respondent has mishandled the applicant’s documents in the past;

    Due to the respondent’s administrative errors the applicant incurred the debt. The respondent continues to persecute the applicant for its errors;

    The respondent has made false accusations against the applicant;

    On 14 October 2020 the applicant attended the offices of the respondent at which time two staff members admitted to making errors “all the time”;

    The decision of the Tribunal is absurd as the applicant won the case on the grounds of the respondent’s administrative errors and false accusations, including that the Tribunal agreed that various items of the respondent’s Statement of Facts and Contentions were false;

    A copy of the respondent’s “Record of discussion with customer” admits that the applicant was overpaid and that there was a clerical error;

    A newspaper article from the Guardian titled “Woman Wins Two-Year Battle With Centrelink After it Demanded She Pay Back $27,000” dated 14 January 2021 evidences clerical errors made by the respondent; and

    The applicant’s proposed grounds have merit in that they are reasonably arguable, sufficiently arguable or have reasonable prospects of success.

52    The respondent submitted, in summary:

    The applicant is misguided in the format of this application, given that the applicant contended that the Secretary has made an error, when in fact this application for review required the applicant to establish that it was the Tribunal which made a legal error;

    The sole proposed question of law identified in the applicant’s notice of appeal did not constitute a question of law;

    Similarly, the proposed grounds of appeal did not raise questions of law but rather disputed factual findings by the Tribunal;

    Accordingly, the applicant’s case was an impermissible plea for merits review;

    In relation to ground 1, the applicant complained that the Tribunal should have waived the entirety of the applicant’s debt as a result of the Secretary’s administrative error. This was without merit given that the Tribunal made findings at para [62] of its reasons that only part of the debt arose due to the administrative error. It was open to the Tribunal to make such a finding;

    In relation to ground 2, it was open to the Tribunal to remit the matter for recalculation after finding that only part of the applicant’s debt ought to be waived;

    In relation to ground 3, this complaint did not reveal any error on behalf of the Tribunal; and

    In relation to ground 4, there was no finding in the Tribunal’s reasons that the specific paragraphs identified in the Secretary’s State of Facts and Contentions were incorrect. In addition it was difficult to comprehend the alleged Tribunal’s error when the applicant believed that the Tribunal had “ruled” in his favour.

53    In considering the merits of the proposed grounds of appeal the Court should do so with the aim of identifying whether those grounds were ‘reasonably arguable’, ‘sufficiently arguable’ or have ‘reasonable prospects of success’: MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]. In other words, the Court is required to undertake only an impressionistic examination of the grounds, and not delve into a full review into the grounds of appeal: GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169; see also Jamal v Secretary, Department of Social Services [2017] FCA 916 at [14].

54    In my view, the proposed grounds of appeal lack merit, and I do not consider that it is in the interests of justice to grant the applicant leave to rely on them out of time. Plainly, the applicant’s grounds of appeal constitute an invitation for the Court to undertake a review of the Tribunal’s decision on the merits. I note Perry J’s observations at [15] in Jamal v Secretary Department of Social Services [2017] FCA 916:

[15]     Rule 33.12(2)(b) of the Federal Court Rules 2011 (FCR) provides that the “precise” question or questions of law sought to be raised under s 44 of the AAT Act must be stated in the notice of appeal. Manifestly none of the proposed questions of law comply with this requirement. Merely to assert, as does the applicant, that the Tribunal has erred in law is not to state a question of law: Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) at [92]. Nor are the grounds relied on in support of the relief sought stated “specifically” in the notice of appeal in compliance with FCR r 33.12(2)(e). Furthermore, generally self-represented litigants are not exempt from these requirements: see by analogy SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [15]. However, while the existence of a question of law is necessary to found the jurisdiction of the Court under s 44 of the AAT Act, the failure to state a question of law does not go to the existence of the Court’s jurisdiction under that provision; rather, the question of whether a question of law is raised must be ascertained as a matter of substance: Haritos at [62](4) and (6) and [94].

[16]     For the reasons set out below, the applicant does not have any reasonable prospect of succeeding on any of his proposed questions of law and, indeed, no question of law properly so called is raised as a matter of substance by the proposed appeal.

55    I do not accept the assertion of the applicant that “the Respondent’s errors of judgement [sic]” is a sufficiently precise question of law for consideration by the Court. I do not accept the submission that a “synthesisation” of the applicant’s grounds of review assists the Court and the respondent to clarify on what grounds the appeal is based, or provides sufficient clarity to warrant the grant of an extension of time. I note in this respect that:

    At para [41] (a) of the applicant’s submissions the appeal was described as “against the decision of the Tribunal not to waive the entirety of the debt”. This statement was insufficient to justify review of the Tribunal’s decision;

    At para [41] (b) of the applicant’s submissions the applicant submitted that “reasons of decision do not address why the entirety of the debt was not waived”, when in fact the reasons of the Tribunal expressly addressed this point at [63], [69]–[71], namely because in the Tribunal’s view the debt was not solely due to an administrative error and there were no special circumstances warranting the waiver of the debt;

    At para [41] (c) of the applicant’s submissions the applicant contended that the Tribunal failed to give (unparticularised) consideration to “allegations raised by the applicant about the agency’s purported failures to calculate the amount owing”, when in fact the Tribunal made specific findings of fact regarding the administrative errors of the respondent, including by waiving part of the debt period based on the evidence before it. In this respect I particularly note paragraphs [61]–[63] of the Tribunal’s reasons; and

    At para [41] (d) of the applicant’s submissions the applicant contended that the Tribunal failed to correctly interpret or give consideration to s 1237A of the Social Security Act. I do not accept this submission, particularly in light of the Tribunal’s reasoning at [48]–[63] of the Tribunal’s reasons.

CONCLUSION

56    For the reasons I have outlined, the applicant’s application for an extension of time should be refused. Costs follow the event.

57    I note that the respondent recalculated the applicant’s debt in accordance with the decision of the Tribunal, in the amount of $14,159.33. On 28 May 2021 I ordered that enforcement of the debt of $14,159.33 owing from the applicant to the respondent be stayed until further order. In light of my decision to refuse an extension of time to allow the applicant to appeal the decision of the Tribunal, it is appropriate that my order of 28 May 2021 be vacated.

Associate:

Dated:    30 January 2023