FEDERAL COURT OF AUSTRALIA Khan v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 612 Citation: Khan v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 612 Parties: SHER AFZAL KHAN v SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS File number: NSD 560 of 2010 Judge: FLICK J Date of judgment: 11 June 2010 Catchwords: PRACTICE AND PROCEDURE – interlocutory decision - application for extension of time – no satisfactory explanation for delay – no prospects of success – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth), s 24(1A) Federal Court Rules, O 52 r 10(2A)(b), O 53 r 3(2)(b) Social Security Act 1991 (Cth) Cases cited: Budd v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 345, cited Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 1138, cited Creditors of Antal-Air Pty Ltd v Antal-Air Pty Ltd [2004] FCAFC 303, 51 ACSR 473, cited Croker v Commonwealth of Australia [2008] FCA 972, cited Garrett v Universal Holidays Pty Ltd [2007] FCA 526, cited Re Khan and Secretary, Department of Families Housing Community Services and Indigenous Affairs [2010] AATA 44, cited Khan v Secretary, Department of Family Housing Community Service and Indigenous Affairs [2010] FCA 420, cited Mentyn v Westpac Banking Corporation [2004] FCAFC 149, cited Date of hearing: 11 June 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 22 The Applicant: The Applicant appeared in person Solicitor for the Respondent: Mr A Carter, Sparke Helmore Lawyers IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 560 of 2010 BETWEEN: SHER AFZAL KHAN Applicant AND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent JUDGE: flick j DATE OF ORDER: 11 JUNE 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Notice of Motion as filed on 21 May 2010 is dismissed. 2. The Applicant is to pay the costs of the Respondent. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 560 of 2010 BETWEEN: SHER AFZAL KHAN Applicant AND: Secretary, department of families, housing, community services and indigenous affairs Respondent JUDGE: flick j DATE: 11 june 2010 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 5 May 2010 a Judge of this Court, Edmonds J, ordered that the Applicant's Amended Notice of Appeal be struck out and that the Applicant pay the costs of the Respondent: Khan v Secretary, Department of Family Housing Community Service and Indigenous Affairs [2010] FCA 420. 2 On 21 May 2010 the Applicant filed a Notice of Motion seeking an extension of time in which to seek leave to appeal from the decision of Edmonds J and also seeking leave to appeal. That Notice of Motion came on for hearing today. 3 It is considered that an extension of time should not be granted. The Decision of the Primary Judge 4 In November 2005, the Applicant was apparently granted carer payment and carer allowance in respect of his wife pursuant to the provisions of the Social Security Act 1991 (Cth) ("Social Security Act"). Section 198 of that Act provides that a person is qualified for a carer payment if "constant care" is provided. In October 2008, Centrelink wrote to the Applicant pointing out that he had been out of Australia on 24 occasions since January 2006 whilst his wife had remained in Australia. 5 Thereafter, decisions were made byCentrelink and later affirmed by the Social Security Appeals Tribunal to cancel the Applicant's carer payment and carer allowance. The Applicant sought review of the decision of the Social Security Appeals Tribunal by the Administrative Appeals Tribunal. According to the reasons for decision of the Administrative Appeals Tribunal, the Applicant had, by Application made on 6 July 2009, sought review by that Tribunal of the following decisions of the Social Security Appeals Tribunal: · to cancel the Applicant's carer allowance for the period 10 August 2006 to 8 October 2008; · to raise and recover a carer allowance debt for the period 10 August 2006 to 8 October 2008; · to cancel the Applicant's carer payment for the period 10 August 2006 to 8 October 2008; · to raise and recover a carer payment debt for the period 10 August 2006 to 8 October 2008; · to reject the Applicant's new claim for carer allowance; and · to reject the Applicant's claim for carer payment. 6 Before the Administrative Appeals Tribunal, the Applicant maintained that whilst he was absent from Australia his wife had been cared for by a Mr Singh, a friend of the Applicant's. The Administrative Appeals Tribunal rejected the claims advanced by the Applicant. It was not satisfied that Mr Singh provided either "constant care" or "care and attention on a daily basis" to the Applicant's wife. The Administrative Appeals Tribunal affirmed the decisionof the Social Security Appeals Tribunal under review: Re Khan and Secretary, Department of Families Housing Community Services and Indigenous Affairs [2010] AATA 44. 7 On 19 February 2010 a Notice of Appeal was filed in this Court seeking to appeal from the decision of the Administrative Appeals Tribunal. On 24 March 2010, Edmonds J granted the Applicant leave to file and serve an Amended Notice of Appeal. The Amended Notice of Appeal then filed by the Applicant provided in part as follows: THE QUESTIONS OF LAW raised on appeal are (a) Incorrectly interpreting a statute relevant to the proceeding. (b) Denying procedural fairness to a party. (c) Miscourage [sic] of justice. 8 Perhaps not surprisingly, a Notice of Motion was then filed by the Respondent seeking a variety of orders including an order that summary judgment be entered in its favour or that the proceeding be struck out. 9 Edmonds J referred to O 53 r 3(2)(b) of the Federal Court Rules and the necessity to identify the question or questions of law to be raised on appeal. His Honour concluded: [11] The amended notice of appeal does not state any question of law and the applicant did not articulate any such question during the hearing of the motion notwithstanding being given the opportunity of doing so. An Extension of Time and Leave To Appeal? 10 The decision of the primary Judge is an interlocutory decision: cf. Mentyn v Westpac Banking Corporation [2004] FCAFC 149 at [3] per Kiefel, Weinberg and Stone JJ; Creditors of Antal-Air Pty Ltd v Antal-Air Pty Ltd [2004] FCAFC 303 at [15], 51 ACSR 473 per Ryan, Weinberg and Crennan JJ. Leave to appeal is required: Federal Court of Australia Act 1976 (Cth), s 24(1A). 11 Order 52 r 10(2A)(b) of the Federal Court Rules provides that any application for leave to appeal must be made "within 7 days after the date on which the interlocutory judgment was pronounced; or within such further time as the Court or a Judge may allow". 12 In the present proceeding the judgment in respect to which leave is sought was delivered on 5 May 2010. The Notice of Motion seeking leave to appeal was filed on 21 May 2010 – a period slightly in excess of one week outside the time prescribed by the Rules. 13 Relevant to the exercise of the discretion to grant or refuse an extension of time are such factors as: · any explanation for delay in making the application; · the prospects of success; and · any prejudice or injustice that may be suffered by an applicant. This list is by no means exhaustive. See: Garrett v Universal Holidays Pty Ltd [2007] FCA 526. Where no reason has been made out upon which an extension of time ought to be granted and where there are no prospects of success and no injustice, an extension of time has been refused: e.g., Croker v Commonwealth of Australia [2008] FCA 972. 14 Although each case must necessarily depend upon its own facts and circumstances, an application for an extension of time and leave to appeal has been refused in other like applications seeking to appeal from a decision of the Administrative Appeals Tribunal: e.g., Budd v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 345; Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 1138. 15 In the present proceeding, there has been no satisfactory explanation for the delay in seeking leave to appeal. The explanation provided was that the Applicant was confused by what he had been told when he approached the Registry of this Court to file his appeal. But that uncertainty can be left to one side. If the appeal had any prospects of success, time would have been extended. 16 But the proposed appeal has no prospects of success. 17 It is not considered that the decision of Edmonds J is attended with any error. Having been given an opportunity to amend the Notice of Appeal as first filed in February 2010, the Amended Notice of Appeal again failed to identify any question or questions of law to be raised on appeal. Edmonds J was clearly correct in concluding that the Amended Notice of Appeal failed to identify any question of law as required by O 53 r 3(2)(b) of the Federal Court Rules. 18 Nor is there considered to be any prejudice or injustice suffered by the Applicant. He has had the opportunity before the Administrative Appeals Tribunal to seek review on the merits and those merits have been resolved adversely to him. To the extent that the Applicant contends that that Tribunal had no jurisdiction to review any decision to recover a debt said to be owing and that he has been denied an opportunity to resist such a claim by reason of "special circumstances", the argument is without merit. It was an argument addressed by the Administrative Appeals Tribunal and resolved adversely to him. That Tribunal, in its reasons for decision, referred to ss 1236, 1236(1A) and 1236(1C) of the Social Security Act, being the provisions stating that "a debt is recoverable" by the means there stated and providing that a debt may be "writ[ten] off" if a person has "no capacity to repay the debt" or if repayment of the debt would result in "severe financial hardship". Section 1237AAD provides that the recovery of a debt may be "waive[d]" if there are (inter alia) "special circumstances". The Administrative Appeals Tribunal went on to conclude (without alteration): [43] Applying subsection 1236(1A) to this matter, I do not regard any of the criteria in that subsection to apply to the Applicant so as to excuse him from repayment of the debt. In particular the debt can be recovered from deductions from an social security benefit paid to the Applicant. … No evidence was adduced for me demonstrating incapacity to repay a negotiated sum, … [44] Section 1237A SSA permits waiver of a debt that arose solely to administrative error on the part of the Commonwealth. The Applicant has conceded that he did not inform Centrelink of every trip he made outside Australia, notwithstanding notification of this requirement to him at the time of granting the benefits in dispute. It cannot be said therefore that the debt or part of it arose solely due to administrative error. … [47] Paragraph 1237AAD(6) SSA provides that special circumstances are not constituted by financial hardship alone. Apart from financial hardship, I cannot find any circumstances in the Applicant's case that would amount to special circumstances. [48] In considering the Applicant's case, I find I cannot reconcile the case of a person who claims to be in straightened financial circumstances yet manages to have frequent trips abroad. In 2006 he made 11 trips, in 2007 he made 9 trips and in 2008 he made14 trips. These trips were to Pakistan or New Zealand, and while the Applicant may have been able to obtain cheap flights the trips still represent a significant outlay for a person allegedly dependent upon social security benefits. I also find that any civil litigation pursued by the Applicant in New Zealand was a matter of individual choice. [49] I am unable to find any special circumstances to justify the waiving of the Applicant's debt to the Commonwealth and as I am satisfied that at no time was he providing either constant or day to day care to his wife the overpayments were correctly raised against him. Similarly for the same reasons the refusal of his claim for carer payment and carer allowance lodged on 2 December 2008 was correct. 19 An independent review of the Administrative Appeals Tribunal's decision does not reveal any self-evident error. Conclusions 20 The application for an extension of time is refused. Even though the extension of time sought may be comparatively short, no point would be gained by granting an extension of time as the application for leave to appeal, even if it had been made within time, would have itself been refused. 21 There is no reason why the Applicant should not pay the costs of the Respondent. ORDERS 22 The Orders of the Court are: 1. The Notice of Motion as filed on 21 May 2010 is dismissed. 2. The Applicant is to pay the costs of the Respondent. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 16 June 2010