In Joyful Kids Pty Ltd and Secretary, Department of Education, the Australian Administrative Appeals Tribunal concerned an application by the Applicant (Joyful Kids Pty Ltd) for an extension of time for lodgement of an application for review of the decision by the Department to not to approve the Applicant as a “provider” under ss 194A and 194B of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth). Applications for review by the Tribunal must be made within 28 days. However, the Tribunal does have discretion to extend this time.
Intially, the Department refused the Applicant provider approval for several reasons (para. 16):
the experience and expertise of Joyful Kids, Ms Radi, and Ms Rady, weighs against a finding that they are “fit and proper persons” for the purpose of para 194E(1)(k) of the Administration Act;
the Department was not satisfied that Joyful Kids’ governance documentation demonstrated a sufficient commitment by it to complying with family assistance law obligations in operating a provider or service, and this weighs against a finding of fitness and propriety;
Ms Radi and Ms Rady have a reduced capacity to comply with family assistance law due to their involvement with another entity, being a registered training organisation; and
the manner in which Joyful Kids has structured its arrangements suggested to the Department that Joyful Kids, Ms Radi, and Ms Rady, have not formed a sufficiently detailed understanding of how family assistance law should be given effect, and how family assistance law operates in association with the National Law.
The Applicant argued that it required an extension of time (EOT) to lodge an application for a review of the Department's decision because of delays in obtaining legal advice.
The Tribunal's decision in relation to the application is set out in paras.45-7:
The Tribunal has concluded that there is one factor weighing against granting the EOT Application, specifically, the public interest giving rise to an expectation that parties will observe statutory timeframes when seeking review before this Tribunal.
The Tribunal has concluded that there are three factors weighing in favour of granting the EOT Application, specifically:
(a) based on a preliminary assessment of the evidence, the Tribunal is satisfied that the proposed substantive application cannot be said to be lacking in merit and is, at least, arguable;
(b) the Tribunal considers the explanation given by Joyful Kids for the delay as being acceptable; and
(c) the Respondent has not suffered any prejudice as a result of the delay.
The Tribunal considers that the factors weighing in favour of granting the EOT Application outweigh the single factor weighing against it....
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