Hijazi v Secretary, Department of Social Security [1995] FCA 478

CATCHWORDS PRACTICE AND PROCEDURE - application for extension of time to serve notice of appeal from decision of Administrative Appeals Tribunal - whether likelihood of success on appeal - whether grounds of appeal not questions of law. SOCIAL WELFARE - social security payments - sole parent pension - determination taking effect on day person sought review - whether error of law in not backdating. Social Security Act 1991 (Cth), s268(3) HIJAZI v SECRETARY, DEPARTMENT OF SOCIAL SECURITY NO WG 48 OF 1995 R D NICHOLSON J PERTH 23 JUNE 1995

IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY) GENERAL DIVISION ) NO WG 48 OF 1995 B E T W E E N: HIJAZI Applicant and SECRETARY, DEPARTMENT OF SOCIAL SECURITY Respondent MINUTE OF ORDER JUDGE MAKING ORDER: R D NICHOLSON J DATE OF ORDER: 23 JUNE 1995 WHERE MADE: PERTH THE COURT ORDERS THAT: The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY) GENERAL DIVISION ) NO WG 48 OF 1995 B E T W E E N HIJAZI Applicant and SECRETARY, DEPARTMENT OF SOCIAL SECURITY Respondent CORAM: R D NICHOLSON J DATE: 23 JUNE 1995 PLACE: PERTH REASONS FOR JUDGMENT This is an application for an extension of time to file and serve a notice of appeal. The application is in relation to a decision of the Administrative Appeals Tribunal given on 10 February 1995 whereby the Tribunal affirmed a decision under review. The effect of that decision was to award to the applicant a sole parent pension with effect from the day on which she sought review, that is, 9 February 1994. In a supporting affidavit the applicant states that on 4 March 1992 she first made application for a sole parent pension. She was then told that she was not qualified on the ground that she had not completed 5 years continuous residence in Australia and would have to wait until the end of 1994. She was not told on that occasion anything concerning the eligibility for such pension if there was a separation or divorce or the distinction between those terms in Australian law. When she renewed her application for her pension she was re‑interviewed by the same departmental officer. During that interview she sought clarification concerning the distinction between separation and divorce. She told the officer that in 1992 she had misunderstood the difference between the concepts of separation and divorce and their application in the Australian legal context and the significance to her eligibility when she first applied in 1992. Upon being successful in the renewed application in 1994 the applicant sought a review of the decision made by the officer in 1992 on the ground that she was the victim of cultural ignorance or cultural unawareness. The applicant contends that the officer has misrepresented the discussion in 1992 and that her file at the Department has been subject to some alterations which did not exist when the original application was dealt with in 1992. Although the affidavit evidence from the applicant does not address the reasons why there was delay in making the present appeal and why justice requires that time should be extended, I do not consider it as necessary to make directions to allow time for the applicant to file further affidavit evidence because, on the view I take of the law, there are no prospects of success in the appeal. I add that in a statement by the applicant from the bar table she has said she provided an explanation for delay in correspondence to the Registrar. She appears here unrepresented. The grounds of law identified in the application are three‑fold. The first is "the mishandling of the applicant's review request by the Department's Regional Manager at the time the review was sought by the applicant" and the second is "the improper use of the applicant's file by the officer involved". These, I take it, are grounds which refer to the facts averted to in the applicant's affidavit concerning the misrepresentation by the departmental officer and the alleged alterations to her file. In my opinion they are unquestionably questions of fact and not questions of law and therefore cannot qualify as grounds for appeal. The remaining matter identified as a question of law is "the rigidity of s268(3) of the Social Security Act 1991 (Cth) which does not make provision for any exceptional circumstance, eg, the applicant's". Given that the applicant is unrepresented and has prepared the documentation herself there has been no objection on the part of the respondent, and the court accepts, that this ground is to be understood as raising the question of law whether the relevant section referred to in the Social Security Act has been properly interpreted in the decision of the Tribunal and consequently in the Tribunal's conclusion affirming the decision there under review. Section 268(3) of the Social Security Act provides that if four factors are satisfied the determination made pursuant to that subsection "takes effect on the day on which the person sought the review". The statute law enacted by Parliament therefore contains a mandatory provision that where an application is made to the Secretary under s1240 more than 3 months after the notice is given in order to review the previous decision, the determination resulting from the review can only take effect on the day on which the person sought the review. It could not, therefore, have been open to either the Tribunal or the decision maker to back date the successful application of the applicant in January 1994 beyond the date on which the review was sought. This is in contrast with the provision in subs268(2)(c) which provides that where a person applies to the Secretary for review within 3 months after the notice is given, the determination "takes effect on the day on which the previous decision took effect". On the facts as set out in the applicant's affidavit it is apparent that she did not apply within 3 months and that she did apply pursuant to subs(3) more than 3 months after the notice was given. Consequently, there can have been no error of law in the Tribunal affirming the decision to make the determination effective on the day on which the applicant sought review. It being clear that there are no prospects of success on the question of law raised by the applicant, I am of the opinion that no purpose would be served by extending time or allowing her to serve the notice of appeal. For these reasons I dismiss the application. I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson. Associate: Date: