Frugtniet v Secretary, Department of Social Services

1. The application for an extension of time within which to appeal against the judgment and orders of Pagone J made on 19 October 2017 be dismissed.
2. The applicant pay the respondent's costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 Mr Frugtniet (the applicant) seeks an extension of time to appeal from an order of a judge of this court (the primary judge) dismissing an appeal from the decision of the Administrative Appeals Tribunal (the Tribunal) refusing an application under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for an extension of time to lodge an application for review of a decision made on 15 February 2016 by the Social Services and Child Support Division of the Tribunal. 2 The applicant had been found by the Tribunal to be a member of a couple for the purposes of the Social Security Act 1991 (Cth) and liable to repay to the Commonwealth excess payments which had been made to him. 3 In order to bring his appeal, the applicant must first obtain an extension of time, under rule 36.05 of the Federal Court Rules 2011 (Cth) (the Rules), to file and serve his notice of appeal from the orders of the primary judge, because he was 8 days late filing the notice. 4 Given that this application is for an extension of time to file a notice of appeal and has not been referred to a Full Court, it is before a single judge: r 36.05 of the Rules. 5 The applicant did not dispute the primary judge's summary of the relevant facts: see Frugtniet v Secretary, Department of Social Services [2017] FCA 1227 at [2]-[5]. I therefore adopt that summary as follows. 6 The applicant had previously been granted single parenting payments with effect from April 2008 on the basis that he was separated from his former partner, Ms Callychurn. On 24 August 2012 parenting payments to him were cancelled because the applicant's dependent daughter turned 8 years of age. The applicant was then transferred to Newstart Allowance at the single rate. On 12 December 2012 the applicant advised Centrelink that his son, born on 8 May 2011, had entered his care and in consequence he was re-granted parenting payments with effect from 7 December 2012. 7 The applicant's entitlements were reviewed during 2013 and 2014, and in November 2014 a decision was made by Centrelink that he had wrongly received $52,159.20 in parenting payments in the period 9 April 2008 to 20 September 2011 due to undisclosed income. (The maximum payment made to "members of a couple" is lower than that payable to single parents, recognising the benefits of shared accommodation, pooling resources and expenses.) 8 The applicant successfully sought review of that decision, but in February 2015 Centrelink made a determination that he was a member of a couple with Ms Callychurn for the purposes of the Social Security Act 1991 (Cth) and suspended further payments to him. 9 The applicant was notified by letter dated 19 May 2015 that he had incurred a recoverable debt of $65,557.46 in the period between 4 May 2011 and 17 February 2015. 10 The applicant unsuccessfully sought to review those decisions. The matter was referred to authorised review officers of Centrelink, and on 1 June 2015 an authorised review officer set aside the decision to suspend the applicant's parenting payment and substituted a new decision that the payment be cancelled. 11 On 30 September 2015 another authorised review officer varied the decision to raise and recover a debt by increasing the debt amount to $66,349.27 in respect of the period 8 May 2011 to 17 February 2015. 12 In October 2015 the applicant applied to the Tribunal for an independent review of the decisions which had been made by the review officers on 1 June 2015 and 30 September 2015. On 12 February 2016 the Tribunal heard the applicant's applications and on 15 February 2016 decided the applications by setting them aside but remitting them to the Chief Executive of Centrelink for reconsideration and recalculation of the debt on the basis that the applicant was a member of a couple in the period 8 May 2011 to 17 February 2015. That decision was posted to him on 24 February 2016. 13 The Tribunal reasoned as follows at [13]-[14]: As pointed out by [the applicant], a person cannot be considered to be partnered if they are living separately and apart from the partner on a permanent or indefinite basis. [The applicant's] central contention is that during the period under review he and Ms Callychurn did not share a residence at all. [The applicant's] oral evidence to the Tribunal was that from 2009 on he was residing at Maxweld St Ardeer. The Tribunal does not accept this statement. [The applicant] denied telling the authorised review officer that during the period in question he lived in the house owned by his father at 3/900 Pascoe Vale Rd. The Tribunal could see no reason why the authorised review officer would have made up such a claim. Further to this, [the applicant] has clearly stated on several Centrelink forms in the period and on his 2012 - 13 and 2013 - 14 financial year income tax returns that his residential address is 3/900 Pascoe Vale Road Glenroy. Finally, in his Mod AC Accommodation details form signed on 13 March 2015 … [the applicant] states that he moved to Maxweld St Ardeer on 12 March 2015. These inconsistencies affect the Tribunal's overall impression of [the applicant's] credibility. Centrelink's investigations have indicated that from 2009 onwards [the applicant] did not in fact reside at 3/900 Pascoe Vale Road and the Tribunal so finds. The Tribunal also finds that he did not move to Maxweld St Ardeer until at least March 2015, at which time his parenting payment had been suspended. In the absence of any other explanations as to his residence which have been independently verified, the Tribunal finds that in the period 8 May 2011 to 17 February 2015 [the applicant] resided with Ms Callychurn and their children at Horizontal Drive Maribyrnong. 14 For a number of reasons that are not currently material, the Tribunal concluded that "[t]he excess amount paid to [the applicant] from 8 May 2011 to 17 February 2015, once recalculated on the basis of his and Ms Callychurn's income, is a debt to the Commonwealth under s 1223 of the [Social Security Act 1991 (Cth)]". 15 The Tribunal also concluded that because the applicant had made a number of false statements to Centrelink regarding his correct whereabouts, and that the Tribunal concluded this had been done with the intention that he continue to be paid monies to which he was not entitled, the Tribunal found that was not appropriate to waive the debt pursuant to section 1237AAD of the Social Security Act 1991 (Cth). 16 As set out above, the applicant did not seek an extension of time to review Tribunal's decision until almost one year later. 17 The application came on before Member Anna Burke first in April 2017. The application was dismissed, for reasons which the decision of the primary judge records, and which are set out below. 18 As the primary judge said (at [5]): [The applicant] could have, but did not, seek to review the decision of the Tribunal that [the applicant] was a member of a couple. [The applicant] submitted, however, that he had extensive contact with the Department about the recalculation of the debt after the decision of 15 February 2016 which had found that he was a member of a couple with Ms Callychurn during the period under review. He did not, however, apply for review of that decision until 7 March 2017 when he applied to the Tribunal for review of the decision and applied for an extension of time within which to make the application for review. His application for an extension of time was heard by the Tribunal on 19 April 2017 but was rejected on that day. [The applicant] then sought written reasons for the decision which had been given orally on 19 April 2017 and written reasons were given to him on 1 May 2017. It is from that decision, and on those reasons, that [the applicant] has appealed to this Court. 19 The appeal to the primary judge was brought pursuant to s 44(1) of the AAT Act. As the primary judge said (and the applicant did not dispute before me), that provision "requires there to be, and limits the appeal to, questions of law: see Brown v Repatriation Commission (1985) 7 FCR 302 at 304; TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at [90]. Whether an appeal raises a question of law is to be approached as a matter of substance rather than of form, and in cases of doubt, that may require the Court to consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal's reasons for its decision: see Haritos at [62(6)] and [94]". 20 The applicant (who was, as he is here, self-represented) identified the following questions of law before the primary judge (errors in original): 1. Whether the Tribunal erred in applying the correct legal test and misapplied the legal principles which govern the proper statutory construction to s 29(7)-(8) of the AAT Act, without adequately disclosing its reasoning process in relation to the applicant's prospects relevant to the merits of an arguable case in relation to the substantive matter. 2. Whether the Tribunal erred by its failure to consider relevant material matters into consideration being jurisdictional facts and not having regard to all the circumstances that the Applicant had not rested on his rights. 3. Whether the Tribunal erred by its failure to consider the prejudice to the Applicant given that the decision made by the Tribunal dated 15 February 2016 involved a partnering decision that would give rise to a debt and you could not have one without the other which has not been resolved to date, is inextricably linked and would cause the Applicant to be bankrupted. 21 The grounds relied upon by the applicant before the primary judge in seeking relief on these questions of law were (errors in original): 1. The Tribunal erred in its application of the statutory scheme in not applying the correct legal test and misapplied the legal principles which govern the proper statutory construction to s 29(7)-(8) as it was not reasonable in all the circumstances to do so, as it did not consider the merits of the Applicant's case before reaching the conclusion it did (first ground of appeal). 2. The Tribunal erred by its failure to apply the requisite legal principles that governed the exercise of the discretion by its failure to consider the relevant evidence which the Tribunal has not enumerated in its reasoning which would have evidenced that the Applicant had not rested on his rights (second ground of appeal). 3. The Tribunal erred in the exercise of the discretion pursuant to s. 29(7)-(8) of the AAT Act that it was not reasonable in all the circumstances by its failure to consider the prejudice to the Applicant (third ground of appeal). 22 As to the first ground of appeal, the primary judge held as follows at [8]-[14]: [The applicant's] first ground of appeal was that the Tribunal had not applied the correct legal test by not considering the merits of his case before reaching its conclusion. The Secretary's submissions identified two main elements of [the applicant's] first ground of appeal, namely, (a) that the Tribunal had required an acceptable explanation for the delay as a precondition for the grant of an extension of time and therefore had applied the wrong legal test, and (b) that the Tribunal had failed to consider the merits of [the applicant's] substantive application. In oral argument, however, a third basis emerged which [the applicant] submitted was also to be seen from the first question in his amended notice of appeal, namely, that the Tribunal's reasons were insufficient. [The applicant's] application to the Tribunal for an extension of time was made on 7 March 2017. The Secretary had opposed that application and had filed written submissions dated 21 March 2017 in opposition. On 9 April 2017 [the applicant] filed written submissions with an annexure in support of his application for an extension of time and an oral hearing was held by Member Burke on the following day. [The applicant] claimed at the hearing before Member Burke, and in his written submissions, that the reason he had not sought to review the decision within the time prescribed was that he had been in extensive communication with Centrelink before the expiry of the period and had been told "to wait as the decision had not been implemented, and if not satisfied could then appeal the decision, rather than fragment the process". The evidence [the applicant] relied upon was his own statement and some documents which the Tribunal did not consider sufficient to establish [the applicant's] claim, but Member Burke expressed her concern during the hearing on 10 April about whether [the applicant's] factual claims of not having appealed because of his having been told to wait had foundation and informed [the applicant] during the course of the hearing on 10 April 2017 that she would adjourn the hearing to enable those representing the Secretary to explore what Centrelink had been saying to him over the preceding 12 month period "to be scrupulously fair" in determining how to proceed with the matter. The learned member went on specifically to inform [the applicant] that she wanted to adjourn the proceeding because she wanted the Secretary's representative to explore what [the applicant] had been told. The Tribunal resumed hearing the application for an extension of time on 19 April 2017. [The applicant] filed additional written submissions dated 18 April 2017 although they had not been seen by the Tribunal member until shortly before resumption of the hearing on the 19th. Both [the applicant] and the representative for the Secretary were heard and the Secretary's case continued to be that the length of delay was inordinate and had not been explained but there was produced no further material to support [the applicant's] claim of having been told not to wait for the recalculation of the debt before seeking to appeal the decision which had been made on the basis that [the applicant] and Ms Callychurn were a couple for the purposes of the Social Security Act 1991 (Cth). The Tribunal, as mentioned above, gave oral reasons when deciding against [the applicant's] application for an extension of time. [The applicant] then made a formal request for the Tribunal to give written reasons. The Tribunal member informed [the applicant] that she would give written reasons but explained that they would be no longer than the oral reasons she had given to the effect that it was not reasonable to grant the extension of time he had sought. Section 43(2B) of the AAT Act required the Tribunal when giving written reasons to include "its findings on material questions of fact and a reference to the evidence or other material on which those findings are based". The Tribunal's written reasons were provided on 1 May 2017 in respect of the decision which had made on 19 April 2017 rejecting [the applicant's] application for an extension of time. … The Tribunal was not obliged to extend the time within which [the applicant] could make his application for review of a decision which had been made on 15 February 2016. The Tribunal had a discretion to extend the time for [the applicant] to make the application and [the applicant] must show in his appeal to this Court that the Tribunal erred in exercising its discretion (citing and quoting House v R (1936) 55 CLR 499 at 504-505). … [The applicant's] claim to the Tribunal had been that he had not exercised his right to seek review of the Tribunal's decision because of what he had been told by the defendant. The Tribunal was not obliged to accept the claim made by [the applicant] that the reason he had not sought review of the decision of 15 February 2016 was that he had been "told to wait" and that he could subsequently appeal if not satisfied once the decision which had been made came to be implemented. [The applicant's] claim was plausible of having been told to await the recalculation of the debt before deciding whether to appeal the foundation of the decision but the Tribunal member did not accept, and was not bound to accept, the claims which [the applicant] had made. The explanation he had given for his delay in making the application for review was that he had been told to wait until the decision was implemented and the Tribunal member plainly engaged with, and rejected, the evidentiary foundation upon which that submission was made. At [6]-[8] the Tribunal said: [The applicant] contended that he was waiting for Centrelink to action the direction of the Social Security and Child Support Division of the Tribunal (AAT1) of 15 February 2015. The substance of the decision did not change when it was actioned. The Applicant was aware of what that decision was. It was an assessment of whether he was a member of a couple. In the absence of an explanation, it is reasonable to conclude that by waiting for Centrelink to recalculate the debt he tacitly accepted the decision. [The applicant] further argued that if he was to lodge an application in respect of the 15 February 2015 decision, it may leave him in a situation where he had two applications before the Tribunal. He argued that he had contacted the Respondent about an appeal and been told to wait until the decision was implemented, and that he was only relying on such advice when he made his decision to wait. I was not persuaded by the Applicant's claims that he had contacted the Department of Human Services and made the enquiries he purports to have made. The only evidence the Applicant produced to support these claims was correspondence between the Applicant and the Commonwealth Ombudsman, and a letter from the Department of Human Services dated 24 February 2017 which related an assessment of an unspecified benefit. These were provided to the Tribunal and the Respondent after close of business the day before the interlocutory hearing, after it had already been adjourned to accommodate late submissions by the Applicant on the first occasion. These documents only establish that the Applicant complained to the Ombudsman and that at a point in time, the Department was making an assessment of a benefit he was receiving. They do not prove any history of contact with the department about possible appeals. In these passages the Tribunal complied with its obligation under s 43(2B) of the AAT Act of stating its findings on material questions of fact with a reference to the evidence and other material upon which the Tribunal's findings were based. The Tribunal was guided in the exercise of the discretion by the often cited passage in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and the words of s 29(7). The latter required that the Tribunal be satisfied that "it is reasonable in all the circumstances" to extend the time within which a person may make an application. There is a wide discretion granted by s 29(7) of the AAT Act but guidance in the exercise of that discretion may be gained from the observations made by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 [which the primary judge then set out] … These principles, as his Honour observed at 348, were "to guide, not in any exhaustive manner, the exercise" of the discretion and were not to be applied as if imposing strict rules or preconditions. Indeed, in Comcare v A'hern (1993) 119 ALR 85 the Full Court observed that an acceptable explanation for delay was not a precondition or prerequisite to the grant of an extension of time, although it was a factor that may be relevant and may warrant a favourable exercise of the discretion in an appropriate case. 23 Having set out in detail the relevant procedural history and the applicant's submissions in respect of the first ground of appeal argued before him, the primary judge held that the ground had no merit, reasoning as follows at [15]-[16]: The reasons given by the Tribunal were in part expressed in a way that might suggest the elevation of a requirement to provide an explanation for the delay as an impermissible precondition or prerequisite to the grant of an extension of time, but what the Tribunal said in that regard must be read in context. The Tribunal did not make a finding of inadequacy of an explanation (or even a finding of no explanation) as the basis for determining the application for an extension of time against [the applicant]. [The applicant] had provided an explanation and had made his explanation the basis for his application for an extension of time but the Tribunal was not persuaded by what he had said. The adjournment had not resulted in confirmation of what he had claimed and no further material was produced to support what he had said. The Secretary's submissions to the Tribunal, both written and oral, continued to rely upon the absence of merits in [the applicant's] case and that the Secretary would suffer prejudice if the application were granted. The Tribunal took into account both submissions and in relation to the merits of [the applicant's] case concluded that nothing in the application before the Tribunal indicated sufficient prospects of success which outweighed the significant, unacceptably explained, delay and the consequential prejudice suffered by the respondent and the public if the extension were to be granted. The decision was made by the Tribunal on 19 April 2017 following a hearing at which the Secretary's submissions about lack of merit and prejudice were made. The Tribunal was not obliged to embark on a trial of the merits when evaluating that as a factor in deciding whether to grant an extension of time: see Brown v Federal Commissioner of Taxation (1999) 42 ATR 118 at [24] and [25]. The subsequent reasons were brief but brevity is not an error (see NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279 at [15]) and the Tribunal had taken into account the submissions which had been made. The Tribunal did not treat the need for an acceptable explanation for the delay as a precondition for the granting of an extension of time but took into account the absence of an acceptable explanation in the context of other factors which included the Tribunal's finding that [the applicant] was aware, as he conceded at the hearing of the appeal, of a time limit of 28 days within which to make an application, that he had elected to wait for a recalculation of amounts following the decision of 15 February 2015, the absence of sufficient prospects of success outweighing an unexplained delay, and the consequential prejudice in the grant of an extension. Accordingly, there is no error in the test applied by the Tribunal. The Tribunal's reasons were not insufficient and it had not required an explanation for the delay as a precondition for the grant of an extension. 24 The primary judge then turned to consider the second ground of appeal before him. The primary judge held that the ground was without merit, reasoning as follows at [17]: The second ground of appeal was that the Tribunal failed to consider the evidence which would have shown that he had not rested on his rights. However at [6]-[8] of the Tribunal's reasons (quoted above), the Tribunal considered, but rejected, [the applicant's] claims of having contacted Centrelink and of having been told by Centrelink that there was no need to appeal until after the implementation of the decision which had been made on 15 February 2016. The decision made on 15 February 2016 required a recalculation upon a finding that [the applicant] was a member of [a] couple. The Tribunal noted at [8] that the evidence [the applicant] had produced to support his claims of having been told that he could wait was correspondence he had had with Commonwealth Ombudsman, and a letter from the Department of Human Services dated 24 February 2017, relating to an assessment of an unspecified benefit. Those documents were found by the Tribunal to establish only that [the applicant] had complained to the Ombudsman and that at a point in time the Department had been making an assessment of a benefit he was receiving, but that they did not prove a history of contact with the Department about possible appeals. 25 The third ground of appeal was also held to be without merit, as follows at [18]: The third ground relied upon by [the applicant] was a failure to have considered prejudice to him and that the Secretary had failed to adduce evidence of prejudice to the Secretary by reason of granting an extension of time after a lengthy period of delay. In that regard [the applicant] relied upon authorities indicating that a party opposing an extension on the grounds of prejudice should adduce evidence which shows the nature and extent of that prejudice: see Windschuttle v Deputy Commissioner of Taxation (1993) 46 FCR 235, 249 250; see also Brown v Federal Commissioner of Taxation at [32], [51] [54]. In this case, however, the relevant prejudice to the respondent and to the public was the inherent impact of the passage of time. That was not prejudice requiring evidence beyond the inferences flowing from the passage of time and the common knowledge that memory may fade with time and that making inquiries to test facts which are asserted may become increasingly difficult over time and to evaluate reliably. The prejudice to the Secretary may, on one view, not have been great but it was a factor able to be relied upon by the Tribunal as it did.