Out of Time: Time Extensions in the AAT
To be successful, applications for extensions of time to appeal to the AAT2 require good reasons
Extensions of time to lodge applications for reviews of decisions by the AAT1 are controlled by s 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which provides applicants a 28-day period after the AAT1 decision to apply for review. Sometimes, the exact way in which those 28 days should be understood can be questionable.
Recently, an applicant argued that provisions of the Evidence Act 1995 (Cth) relating to presumed dates of the receipt of letters, should apply to the 28-day rule, even though the rules of evidence do not, under s 33(c) of the AAT Act, apply in the AAT. The applicant cited another case in which the Tribunal had relied on these Evidence Act provisions before.
The provisions, ss 160 and 163, did not just outline presumed receipt dates, but each provision also provided in parentheses that evidence raising doiubt about the presumption could be adduced to rebut and overcome the presumption.
As it happened, COVID-19 had also interrupted normal delivery time expectations, with notices being posted on the Australia Post website warning of changes. This was evidence likely to rebut the presumption; however, it is unclear who adduced this evidence. Perhaps the applicant, as it would have meant that a 1-day delay would have affected the delivery of the AAT1 decision letter.
In any case, these submissions came to nought, because, on any calculation of the days on which the AAT1 decision letter had arrived in the applicant’s mailbox, the 28-day requirement was not and could not have been met.
There was no argument, then, that an extension of time was not needed. Having established as much, the questions was then whether an extension of time could be granted to the applicant.
One needs good reasons
The Tribunal reasoned that cogent reasons were needed for an extension to be granted; they could not just be granted as a matter of course. The Tribunal, perhaps curiously, drew from the High Court decision of Brisbane South Regional Health Authority v Taylor to identify four reasons why time limitations are an important part of the legal process.
This is curious, and arguably of limited application, because in administrative law, we don’t think of plaintiffs and defendants so much as citiziens who seek to challenge the decisions and actions of government agencies. Indeed, the needs of applicants in the AAT are surely different to those of litigators or defendants or prosecutors in the courts.
In any event, the Tribunal also cited a checklist that had apparently become an established checklist — one relied on the by the tribunal before — in relation to considering whether an extension of time should be granted. The checklist came from the judgment of Wilcox J in the FCA decision Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment.
That checklist required, among other things, that the applicant to provide an ‘acceptable explanation,’ that the extension of time be ‘fair and equitable,’ and that the ‘merits of the substantial applications’ were considered (and, presumably, that they were meritorious).
When the Tribunal considered the circumstances of the applicant’s application for an extension, it noted that the was 119 days out of time and that, according to the applicant, some health-related issues had formed the basis of the delay. The Tribunal reported difficulty in identifying the reasons provided by the applicant for her delay; however, it determined that these reasons were based on their confusion about the appeal process, and their belief that the refusal of a delay would be wrong. Notably, however, the applicant had been in touch with Centrelink and had apparently had, as a result of language difficulties, had trouble in filling out the forms.
The Tribunal recognised that a ‘mechanical’ application of the checklist from Hunter Valley was not appropriate and that a positive explanation would not be strictly neccessary in all cases, even if desirable.
However, the Tribunal, even considering this ‘non-mechanical’ proviso to the checklist, concluded that there was no ‘good reason advanced for the not insubstantial delay’ (para 31).
One also needs good prospects of success
Thr Tribunal then went on to consider the prospects of success for the applicant’s actual claim. First, it was noted that no prejudicial aspects of the applicant’s case were identifiable; it would hurt no one for the appeal to proceed. Second came the consideration of the merits of the case. When the Tribunal considered these, it said it became clear that the merits were not there, because there was nothing in evidence that indicated that the findings of the AAT1 (or the ARO—the administrative review officer) were quiestionable.
In essence, the applicant was a person who was receiving the disability support payment (DSP) in 2011, but then travelled overseas in 2019, and had the DSP cancelled. The applicant subsequently returned from overseas, at the end of 2019, and applied for and began receiving Newstart Allowance (NA). However, the applicant also reapplied for DSP but was refused. After meeting with a Job Capacity Assessor, the applican't’s impairment was rated at 5 points, instead of the requisite 20.
New evidence will not neccessarily affect the status of a historical application
The applicant brought new evidence of her medical condition to the extension of time hearing, and the Tribunal considered it. However, because the new evidence adduced in 2020 did not render wrong the rejection of the DSP application that was now the subject of the extention of time application — that DSP application having been submitted in 2019 — the applicant was ultimately refused an extension of time.
The Tribunal discussed the appliant’s other options briefly. It said that the applicant could challnge the original decision to refuse the DSP; however, it noted that this application was also out of time (requiring an extension application) and that no clear issues relarting to the decision were apparent. The Tribunal also noted that the AAT1 had not considered the rightness or wrongness of the decision to refuse the DSP, and that it could therefore not be considered by the AAT2.
This story demonstrates the importance of applying to the AAT2 on time, or of preparing very strong reasons for an extension application.