1) All documents written by DHS Staff, myself and other third parties, stemming from my application for the Disability Support Pension, excluding medical documents and the two court books, between 19 November 2013 and 25 March 2017;

2) All notes and other documents written by Ms Glenda Lee about my case between March 2011 and March 2017; and

3) All correspondence between Stephen Thomson and DHS in regards to my case.[3]

1. On 26 May 2017, the Respondent decided to refuse the request under s 24 of the FOI Act.[4] The Applicant sought internal review of the decision on 20 June 2017 which was subsequently affirmed by the Respondent on 21 July 2017.[5] On 14 September 2017 the applicant applied for Information Commissioner (IC) for review of the decision.[6]
2. On 24 June 2019, the IC decided 'QO' and Department of Human Services [2019] AICmr 46, finding that a practical refusal reason did not exist and, on that basis, the Department was required to process the Applicant's request and notify the applicant of its decision no later than 30 days after it receives the decision.[7]
3. On 26 August 2019, a deemed refusal decision was taken to have been made under s 15AC of the FOI Act.[8]
4. On 4 October 2019, Services Australia made a decision, notwithstanding the fact a deemed refusal decision was taken to have been made.[9] Services Australia advised the Applicant that it had identified 271 documents totalling 1188 pages relating to the scope of the request and decided to grant full access to 101 documents, part access to 31 documents and refuse access to 139 documents. Services Australia decided that parts of or entire documents were variously exempt under ss 47E(d), 42, 47G, 47C and 47F of the FOI Act.[10]
5. On 4 June 2024, the IC decided 'AKR' and Services Australia (Freedom of information) [2024] AICmr 112. It set aside the deemed decision and substituted it with a decision requiring the Respondent to provide the Applicant with copies of documents found not to be exempt edited under section 22 of the FOI Act, only to the extent necessary to delete exempt material within 28 days.[11]
6. On 4 July 2024, the Respondent released further material to the applicant in compliance with the IC decision.[12]

1. The issue for determination is whether it is reasonable in all the circumstances for the Tribunal to exercise the discretion in s 19 of the ART Act to extend the time for the Applicant to make an application for review of the decision.

(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:

(a) requiring agencies to publish the information; and

(b) providing for a right of access to documents.

(2) The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:

(a) increasing public participation in Government processes, with a view to promoting better - informed decision - making;

(b) increasing scrutiny, discussion, comment and review of the Government's activities.

(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.

(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

1. Section 11(1)(a) of the FOI Act provides that 'Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to: ... a document of an agency, other than an exempt document'.
2. Under the FOI Act, a document may be either an 'exempt document' or be 'conditionally exempt'.
3. Section 11A of the FOI Act relevantly provides:

(4) The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document. > > Note: Access may be given to an exempt document apart from under this Act, whether or not in response to a request (see section 3A (objects--information or documents otherwise accessible)). > > (5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

4. Under s 93A of the FOI Act, the IC has issued Guidelines (FOI Guidelines). Under s 9A of the FOI Act, decision-makers must have regard to the objects of the Act and the FOI guidelines when making decisions.

1. Section 18 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) contains the general rule that an application to the Tribunal for review of a decision must be made within the period prescribed by the rules. The Administrative Review Tribunal Rules 2024 prescribes that period as 28 days. Section 19(2) of that Act provides an exception to the general rule allowing the Tribunal to extend the period if the Tribunal 'considers that it is reasonable in all the circumstances to do so'.
2. Section 19(2) is in similar terms to s 29(7) of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act). I consider that the presumption from re-enactment being that words in an Act which have been the subject of judicial construction are presumed to bear the same construction when used in a subsequent Act applies here.[13] The Explanatory Memorandum supports this construction stating that s 19(2) is equivalate to s 29(7).[14]
3. The relevant considerations under s 29(7) of the AAT Act have been the subject of detailed consideration by the Administrative Appeals Tribunal. The case most often cited as setting out the relevant considerations is Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (Hunter Valley), in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) as modified by Budd v Secretary of Department of Education, Employment and Workplace Relations (Budd), in the context of social security.[15]
4. In Brown v Federal Commission of Taxation (Brown)[16] Hill J explored the applicability of the Hunter Valley 'principles' to other contexts. He pointed out that Wilcox J never suggested that he was laying down a series of principles to be applied in every case and that his Honour instead was seeking to distil from previous case law factors that would serve as a guide.[17] His Honour also warned that too slavish an adherence to the Hunter Valley factors should be avoided as a number them will often have no relevance to the matter at hand because of the context in which they were framed.[18]

1. Acknowledging the views of Hill J in Brown, in the absence of stated factors in the ART Act to guide my consideration of what could be considered reasonable in all the circumstances, the factors in Hunter Valley as modified by Budd are well established and I consider relevant to this application notwithstanding the differing context in which they were formulated.
2. However, I note they are 'non-exhaustive guiding principles';[19] that no one factor takes primacy over the other; that no matter is a condition precedent to the exercise of my discretion[20] and that all that are relevant to the particular case have to be weighed together in reaching a decision.[21]
3. The relevant factors for the consideration of the application are:

(a) explanation for delay, length of delay and whether the Applicant has rested on their rights > > (b) prejudice to the Respondent or other person affected by the decision and consideration of fairness as between the applicant and other persons in a similar position > > (c) strength of the Applicant's case and the significance of the issue to be determined, and > > (d) the availability of alternative remedies for the Applicant.

Explanation for delay, length of delay and whether the Applicant has rested on their rights

1. There is no dispute as to the facts that the Applicant's application was lodged 293 days outside of the 28-day period prescribed by s 18 of the ART Act and rule 5 of the ART Rules.[22]
2. The reason provided in the Applicant's extension of time application is that:

'the Australian Government has subjected me to a cruel cover up for 14 years. Hence this field is too small to outline my reasons for applying for an extension of (sic). I have already emailed the outline to Sydney.registry@art.gov.au. I have also put the outline in the appendix to this form'.

3. In an email dated 31 May 2025 to the Sydney Registry, the Applicant explains that he was presented with two review 'options' in the 4 June 2024 IC notice of decision. The first being to apply to the Tribunal for a review of the decision and the second being to make a complaint to the Commonwealth Ombudsman. The Applicant wrote that he preferred the latter option given 'the AAT failed to act independently in either of the two appeals that I made to it...'. The Applicant also wrote that: 'In retrospect, my decision not to exercise my right of review at the AAT was based on the naïve assumption that the CO would treat me fairly. That assumption is a primary reason I did not apply for a review of the OAIC's decision within the time limit. I hope that the ART does not exploit my naivety as an excuse not to proceed with an investigation.'
4. It has been said previously by the Tribunal and Courts that an acceptable explanation for the delay is not a precondition to the exercise of the discretion to allow an extension.[23] It has also been said although it is expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is needed.[24]
5. I also note previous Tribunal decisions which have said the brevity of the extension sought does not lead automatically to an order extending the time just as the fact that a lengthy period of time passed does not automatically lead to the refusal of such an order.[25]
6. At the hearing, the Applicant confirmed he was fully aware of his right to seek review of the decision by the Tribunal but decided instead to pursue a complaint with the Commonwealth Ombudsman because he considered it had broader investigative powers than the Tribunal. In his email he refers to being 'naïve' about the outcomes he could expect from the Ombudsman.
7. Given the Applicant's long history with the Tribunal and the Ombudsman, I agree with the Respondent's contention that the Applicant's argument that an extension of time should be granted because he instead progressed a complaint with the Ombudsman lacks substance because he could have applied to the Ombudsman and Tribunal at the same time.[26]
8. There is no evidence to support a finding that the Applicant was operating under the impression that applying to the Tribunal to review the IC decision and making a complaint to the Ombudsman was an either-or situation. The situation appears to be that it was only following the receipt of what he considered to be an unfavourable outcome from his complaint to the Ombudsman that he applied to the Tribunal.
9. At the hearing, the Applicant said that his grievance was with the Administrative Appeals Tribunal (AAT) and not this Tribunal because of his previous unsuccessful attempts at having decisions set aside by the AAT. He also said that he did not have the presence of mind to apply to the new Tribunal until after his unsuccessful result with the Ombudsman. I note that even if he did apply when the new Tribunal commenced in October 2024 his application would have still been out of time.
10. The Respondent referred the Tribunal to the Federal Court's decision in SZSDA v Minister for Immigration and Citizenship.[27] The Court said that while there is often sympathy for a litigant who does not understand the principles of time limits, where there is failure to apply for review within the stipulated timeframe, ignorance of those time requirements (without more), is generally not regarded as a satisfactory explanation for delay.[28]
11. In the present case, I find that the Applicant was in fact aware of the time limits and while there may be some extenuating circumstances, I do not consider his explanation for failing to lodge his application on time compelling given the long delay with lodging the application.
12. On balance, I consider that this factor weighs in the Respondent's favour as the Applicant's explanation for the delay is not entirely satisfactory.
13. Consistent with the authorities I will proceed to considering the other factors.

Prejudice to the Respondent or other person affected by the decision

14. I accept the Respondent's submission that it is in the interest of the Department and the general public that prescribed time limits are adhered to so as to ensure a final, predictable and orderly conclusion to matters.[29]
15. The Respondent submits that if extension of time were granted, it would be required to participate in proceedings however concedes that itself would not be significant prejudice.[30]
16. I note that the mere absence of prejudice is not enough to justify the granting of an extension of time.[31] As no submissions have been made about prejudice to other persons affected by the decision, I consider this factor weights in the Applicant's favour.

Consideration of fairness as between the applicant and other persons in a similar position

17. I have also considered the fairness to other applicants who have complied with statutory timeframes or have chosen not to seek review once they have realised the prescribed timeframe has passed as this could weigh against the granting of an extension of time if the justice of the case does not support the granting.
18. In Brown Hill J said that no question of fairness arises as other applicants are entitled to make review applications and if out of time seek an extension of time.[32]
19. However, the Respondent notes in its submissions the wider prejudice to the community in allowing lengthy delays to burden the system and those seeking to access it.[33] I find this to be a particularly pertinent consideration given that the Tribunal's caseload at the end of October 2025 was over 120,000 applications on hand.[34]
20. Also pertinent to this consideration is whether the Applicant's application has any real prospect of being successful on review to which I will now turn.

Strength of the Applicant's case and the significance of the issue to be determined

1. In Brown Hill J said that there is no doubt that if the Applicant's case is strong the more likely the discretion would be exercise in favour even where the explanation for the delay may not be strong.[35] Conversely, it was also said that it would be a futility to permit an extension of time for a case which is frivolous or bound to fail as a matter of law with the case having no arguable merits.[36]
2. The Tribunal has previously decided that while the Tribunal should not undertake a merits review of the reviewable decision at this stage, it is nonetheless necessary to decide whether the Applicant's case has any arguable merits[37] or some reasonable prospects of success.
3. The Respondent contends that the application for review does not substantively engage with the merits of the decision with the Applicant advancing the following contentions in relation to the application for review:[38]

(a) key evidence ignored > > (b) rationales vacuous and nonsensical, > > (c) refusal to meet with me in person.

4. The Respondent also points out that documents provided by the Applicant as part of this application to extend time shows that the complaint made to the Commonwealth Ombudsman was not about the reviewable decision.[39] Rather the Respondent claims it was centred on his grievances with the Respondent beginning in 2014 and the conduct of the IC review generally.[40]
5. The issue to be determined in the substantive review is whether access to certain documents should be refused in part or full because the documents are either exempt documents or conditionally exempt documents within the meaning of s 4 of the FOI Act.
6. The Respondent accepts that it cannot at this stage say that the Applicant has no prospects of success. I have been limited in my consideration of the merits of the Applicant's case due to the generalised description of the grounds contained in the Applicant's application for review.
7. At the hearing, the Applicant contended that the success of his application depends on whether the Tribunal member has the discretionary ability to look at the matter through a humanitarian lens. This raises the concern that the Applicant does not appreciate the role of the Tribunal in merits review. Although the Tribunal looks at the matter afresh considering all the evidence, it does so with the same powers, discretions and constraints given to or imposed on the original decision-maker under the relevant legislation.
8. Also at the hearing, I found it hard to obtain from the Applicant the key evidence that was ignored or why exactly he thought the IC's decision was wrong. It seems to me that the Applicant does not have a clear idea of what his case is or what it should be.
9. It also appears that the Applicant is seeking an explanation or vindication from the Tribunal related to his historical grievances which weighs against the granting of an extension of time.

1. The Respondent submits that given the passage of time since the original FOI request in 2017 the most efficient and cost-effective ways to proceed would be for the Applicant to lodge a new FOI request. It is further submitted that a new FOI request would allow the Applicant to access the same or updated documents related to the 2017 FOI request.
2. At the hearing, I alternatively suggested to the Respondent that, given the passage of time, the most efficient and cost-effective way to proceed could be to engage with the Applicant to determine if the documents he is seeking exist, and if they do whether they could be released administratively outside the FOI Act.
3. As the FOI Guidelines state that agencies [and ministers] are not legally bound to refuse access if a document is exempt and may consider disclosure of a document if this is not otherwise legally prohibited.[41]
4. In 'ACV' and Tertiary Education Quality and Standards Agency (Freedom of information) the IC said:[42]

'it is not readily apparent to me why the Agency felt compelled to maintain its denial of access to the documents at issue in this IC review. The documents seem to disclose very little more than what was necessarily disclosed to the applicant in the final version of the correspondence sent to him. Again, the fact that the documents might be thought - in this case, incorrectly - to attract legal professional privilege does not necessitate denial of access. Consistently with the evident pro-access parliamentary intention underpinning the FOI Act, it was open to the Agency to consider providing access to the relevant documents at all stages of this matter, including by way of a revised decision under s 55G of the Act once the matter had proceeded to IC review.'

5. I am of the view that out of time applicants ought to not be permitted to take up the limited resources and time of the Tribunal (at public expense) when other more supportive options could be made available to them.

1. Taking all of the matters into account which led to delay and the principles expressed in the authorities I have cited, I have decided that it is not reasonable in all the circumstances to extend the time within which to lodge the application. The delay is a lengthy one and a not entirely satisfactory explanation for it has been given. While the Respondent has conceded they will not be significantly disadvantaged in the preparation of its case, there could be wider prejudice to the community in allowing lengthy extensions to burden the system which could result in delays for applicants who have lodged their applications on time. Given the lack of particularised grounds for the substantive application, I am unable to conclude on its merits. However, weighing strongly against the exercise of my discretion is whether the proceedings will serve any useful purpose. I am concerned that the Applicant is attempting to seek an outcome from the Tribunal that may not be within its remit to deliver. This leads me to conclude that the alternative avenues of relief available to the Applicant are the better options.
2. The tribunal will not extend the time for lodging the application.

Date of interlocutory hearing: 12 November 2025

[1] Respondent's submissions opposing extension of time at [8].

[4] 'AKR' and Services Australia (Freedom of information) [2024] AICmr 112 (4 June 2024).

[12] Respondent's submissions opposing extension of time at [9].

[13] See RPPL Pty Ltd v Commissioner of Taxation [2025] FCA 1126 at [70] where Cheeseman J found in that case the presumption 'applies with force' in relation to s 172(1) of the ART Act and s 44(1) of the AAT Act.

[14] Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 at [307].

[15] (1984) 3 FCR 344; [2008] FCA 154 at [18]- [19].

[16] [1999] FCA 563 at [32]- [33].

[19] Re Spencer and Commissioner of Taxation [2007] AATA 1194; (2007) 100 ALD 389 at [42].

[20] Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 at 444; Dix v Crimes Compensation Tribunal [1993] VicRp 21; [1993] 1 VR 297.

[21] Zizza v Federal Commission of Taxation [1999] FCA 0037 at [42]- [44].

[22] Respondent's submissions opposing extension of time at [18].

[23] Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 ; 119 ALR 85; Re Rothsay and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 280; (2011) 121 ALD 184.

[25] Re Dolan and Comcare (1993) 29 ALD 887.

[26] Respondent's submission on applicant's request for extensions of time at [27].

[27] [2012] FCA 1319 at [38].

[29] Respondent's submission on applicant's request for extensions of time at [15].

[30] Respondent's submission on applicant's request for extensions of time at [32].

[31] Hutchinson and Comcare [2018] AATA 4600 at [14] applying Lucic v Nolan [1982] FCA 217; (1982) 45 ALR 411.

[32] [1999] FCA 563 at [56].

[33] Respondent's submission on applicant's request for extensions of time at [34].

[34] ART Caseload 2025-26, accessed 3 December 2025.

[35] [1999] FCA 563 at [58].

[37] Re Spencer and Commissioner of Taxation [2007] AATA 1194; (2007) 100 ALD 389 at [48]; Re Rothsay and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 280; (2011) 121 ALD 184 at [24].

[38] Respondent's submission on applicant's request for extensions of time at [37].

[39] Notice of Opposing Application for Extension of Time.

[41] [2023] AICmr 3.