Foster v Administrative Appeals Tribunal [2008] FCA 1320

Foster v Administrative Appeals Tribunal [2008] FCA 1320

Although there was a reasonable explanation for the short delay and no asserted prejudice, the proposed appeal was not arguable because Mr Foster was not terminally ill, his purpose in Thailand was not to be with or near a family member or to return to his country of origin, and no question of law was raised as required for an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The extension of time was therefore refused and the application dismissed.

Jurisdiction
Australia
Judgment Date
22 August 2008
Procedural Posture
Application for Extension of Time to Appeal to the Federal Court From a Decision of the Administrative Appeals Tribunal / Extension of Time Application
Outcome
Application dismissed; extension of time to file and serve a notice of appeal refused.
Legal Topics
['disability Support Pension Portability' 'appeal From Administrative Appeals Tribunal' 'question of Law' 'extension of Time' 'ministerial or Secretary Discretion Under Social Security Act 1991 (cth) S 1218 Aa']
['administrative Law' 'social Security'] ['disability Support Pension Portability' 'appeal From Administrative Appeals Tribunal' 'question of Law' 'extension of Time' 'ministerial or Secretary Discretion Under Social Security Act 1991 (cth) S 1218 Aa']

Case Brief

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Procedural Posture

Application for Extension of Time to Appeal to the Federal Court From a Decision of the Administrative Appeals Tribunal / Extension of Time Application

Legal Issues

  1. 1 ["Whether time should be extended for Mr Foster to appeal against the Tribunal's decision given on 14 May 2008." 'Whether the proposed appeal had reasonable prospects of success or was arguable.' 'Whether Mr Foster could satisfy the mandatory requirements for unlimited portability of Disability Support Pension under Social Security Act 1991 (Cth) s 1218AA.' 'Whether the proposed appeal raised a question of law as required by Administrative Appeals Tribunal Act 1975 (Cth) s 44.']

Ratio Decidendi

Although there was a reasonable explanation for the short delay and no asserted prejudice, the proposed appeal was not arguable because Mr Foster was not terminally ill, his purpose in Thailand was not to be with or near a family member or to return to his country of origin, and no question of law was raised as required for an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The extension of time was therefore refused and the application dismissed.

Court Disposition

Application dismissed; extension of time to file and serve a notice of appeal refused.

Orders

  • ['The application be dismissed.']