FEDERAL COURT OF AUSTRALIA Rahn v The Secretary, Families, Housing and Indigenous Affairs [2012] FCA 169 Citation: Rahn v The Secretary, Families, Housing and Indigenous Affairs [2012] FCA 169 Appeal from: Rahn v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 429 Parties: LORIS KAY RAHN v THE SECRETARY, FAMILIES, HOUSING AND INDIGENOUS AFFAIRS and ADMINISTRATIVE APPEALS TRIBUNAL File number: VID 796 of 2011 Judge: TRACEY J Date of judgment: 29 February 2012 Catchwords: PRACTICE & PROCEDURE – appeal from AAT decision – out of time - application for extension of time within which to file appeal – discretion to be applied – no reasonable prospects of success – no reasonably arguable grounds of legal error – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Social Security Act 1991 (Cth) s 7 Social Security (Administration) Act 1999 (Cth) s 29 Cases cited: Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 compared Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 cited Peczalski v Comcare (1999) 58 ALD 697 cited, applied Repatriation Commission v Owens (1996) 70 ALJR 904 cited, applied TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 cited Date of hearing: 29 February 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: The Applicant appeared by telephone link Counsel for the First Respondent: Mr D Brown Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting appearance IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 796 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: LORIS KAY RAHN Applicant AND: THE SECRETARY, FAMILIES, HOUSING AND INDIGENOUS AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: TRACEY J DATE OF ORDER: 29 FEBRUARY 2012 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for an extension of time within which to commence the proceeding be dismissed. 2. The applicant pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 796 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: LORIS KAY RAHN Applicant AND: THE SECRETARY, FAMILIES, HOUSING AND INDIGENOUS AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: TRACEY J DATE: 29 FEBRUARY 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Mrs Loris Rahn is an Australian citizen. She was born in Australia in 1945 and lived in this country until December 1969 when she left with her then husband to live in South Africa. 2 She has lived in South Africa since then. 3 In May 2010 Mrs Rahn made a claim for an age pension in Australia. That claim was rejected by Centrelink on the ground that she did not meet a statutory requirement that she be an Australian resident. The decision was affirmed by an authorised review officer. The Social Security Appeals Tribunal ("the SSAT") subsequently affirmed Centrelink's decision. 4 Mrs Rahn then lodged a further appeal with the Administrative Appeals Tribunal ("the Tribunal"). 5 The Tribunal affirmed the decision of the SSAT on 7 June 2011. 6 Mrs Rahn then sought to appeal to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). Her appeal was lodged on 26 July 2011. That appeal was out of time: see s 44(2A)(a) of the AAT Act. 7 Mrs Rahn applied to the Court to extend the time within which she could lodge her appeal. The application was opposed by the first respondent ("the Secretary"). 8 Her application has been pending for many months. Mrs Rahn has been in South Africa for most of that time and she has had certain health problems. As a result there have been a series of adjournments. 9 When the matter was called on this morning Mrs Rahn attended by telephone link to South Africa. Both parties had earlier filed and served written submissions. 10 Although the prima facie rule is that proceedings commenced out of time will not be entertained, the Court has power, in its discretion, to enlarge time for the commencement of appeals under s 44 of the AAT Act. 11 In Peczalski v Comcare (1999) 58 ALD 697 Finn J identified a number of factors which are potentially relevant when the Court is called on to exercise this discretion. His Honour identified those factors (at 701 [19]) as follows: "The particular factors that are of immediate significance are (a) the explanation given of the delay; (b) the actions of the applicant in contesting the decision otherwise than by appeal; (c) prejudice to the respondent; and (d) the merits of the application. I would add that in relation to factor (a) – the explanation given of the delay – the full court of this court in Comcare v A'Hearn (1993) 45 FCR 441 at 444 … noted that while there is no rule that an acceptable explanation is an essential precondition, 'it is to be expected that such an explanation will normally be given.'" 12 Mrs Rahn's appeal was lodged only a few weeks late. Her delay was explained by the fact that she was in South Africa and did not have access to legal advice. The first respondent has not asserted any prejudice by reason of the late filing of the appeal. Had matters rested there Mrs Rahn's case for a favourable exercise of the Court's discretion would have been extremely strong. 13 The Secretary, however, contended that the appeal had no reasonable prospects of success and that, as a result, there would be no utility in granting the application. I accept this contention. 14 An appeal under s 44 of the AAT Act is not competent unless it raises one or more questions of law: see TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 at 1070 (per Gummow J). Mrs Rahn's notice of appeal did not contain any true questions of law: cf Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60; Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at 254. 15 I do not discount the possibility that a relevant question of law might have been framed. Had it been, Mrs Rahn's appeal would have confronted the further difficulty that the grounds on which she relied in both written and oral submissions sought to challenge the merits of the decision to refuse her application for a pension. 16 The scope of review contemplated by s 44(1) of the AAT Act is necessarily of narrow compass. As already noted it is confined to questions of law. It is for the Tribunal to pass on the merits of any claim. That is forbidden territory for this Court. This reflects a "distribution of functions [which] is critical to the correct operation of the administrative law process": see Repatriation Commission v Owens (1996) 70 ALJR 904. Mrs Rahn's proposed appeal to this Court could, then, only succeed if, having raised a question of law, she was able to demonstrate a legal as opposed to a merits error on the part of the Tribunal. 17 Section 29 of the Social Security (Administration) Act 1999 (Cth) prescribes, as a necessary precondition to the payment to a person of an age pension, that that person be an Australian resident at the time at which he or she applies for the pension. There are certain immaterial exceptions to this precondition. 18 By s 7(2)(a) of the Social Security Act 1991 (Cth) an "Australian resident" is defined to mean a person who "resides in Australia". Sub-section 7(3) provides that: "In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to: (a) the nature of the accommodation used by the person in Australia; and (b) the nature and extent of the family relationships the person has in Australia; and (c) the nature and extent of the person's employment, business or financial ties with Australia; and (d) the nature and extent of the person's assets located in Australia; and (e) the frequency and duration of the person's travel outside Australia; and (f) any other matters relevant to determining whether the person intends to remain permanently in Australia." 19 In reaching its decision the Tribunal paid careful attention to each of these matters. Having done so it summarised its findings as follows: "… when I take into account the factors in s 7 sub-section (3) of the Social Security Act, [Mrs Rahn's] accommodation [in Australia over the past 40 years] has been only short term, staying with her brother; her family relationships are only with her brother and to a lesser extent, some nephews; that she has very little, if any, employment, business or financial ties with Australia; has virtually no assets in Australia; and has made a number of short visits to Australia." 20 It weighed certain other factors in Mrs Rahn's favour such as her stated intention to reside permanently in Australia in the future and concluded that she was not a "resident" within the meaning of the legislation at the time at which she applied for the pension. It necessarily followed that she was not qualified to receive the pension. 21 Having carefully examined the Tribunal's reasons for decision I cannot identify any reasonably arguable grounds that it erred in applying the relevant legislation. DISPOSITION 22 The application to enlarge time must be dismissed. 23 The applicant should pay the Secretary's costs of the application. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 29 February 2012