ANDRO MAHROUS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 355
•14 June 2012
[2012] AATA 355
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0347
Re
ANDRO MAHROUS
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy RFD
Date 14 June 2012 Place Brisbane The Tribunal decides that:
1. An extension of time is not required to proceed with the Application for Disability Support Pension;
2. The applicant satisfies the residence requirements of s 94(1)(e)(ii) of the Social Security Act 1991 (Cth); and
3. The decision under review is set aside.
................[Sgd]..................................
Senior Member Dr K S Levy RFD
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Disability support pension – New Zealand citizen – Residency requirements – International Agreement – Applicant qualified as resident under international agreement – Decision under review set aside
PRACTICE AND PROCEDURE – Extension of time – Not necessary to determine extension – Application lodged within 28 days
LEGISLATION
Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Evidence Act 1995 (Cth) s 48
Social Security Act 1991 (Cth) ss 7, 94Social Security (International Agreements) Act 1999 (Cth) Schedule 3
CASES
Ali and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 611
Australian Alliance Association Co Ltd v Attorney-General (Qld) and Goodwyn [1916] St R Qd 135
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 110 ALR 97
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Dietrich v The Queen (1992) 177 CLR 292
Gallow v Dawson (1990) 93 ALR 479
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Kruger v The Commonwealth (1997) 190 CLR 1
Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Polites v The Commonwealth (1945) 70 CLR 60
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Rhodes v Secretary, Department of Employment and Workplace Relations [2007] AATA 1164
Saeed v Minister for Immigration and Citizenship (2010) 267 ALR 204
The Commonwealth v Baume (1903) 2 CLR 405SECONDARY MATERIAL
Pearce, D. C. and Geddes, R. S., Statutory Interpretation in Australia, 2nd edn.
REASONS FOR DECISION
Senior Member Dr K S Levy RFD
14 June 2012
INTRODUCTION
The application in this case is made by Raif Mahrous who is the father of Andro Mahrous, a minor, who suffers from a number of significant disabilities. On his behalf, his parents applied for disability support pension (DSP) for him on 2 March 2011. He did not meet the residency requirements and as a result his application was rejected on 29 April 2011.
A review was requested on 7 September 2011 but the original decision was affirmed by an Authorised Review Officer (ARO) on 10 October 2011. It was subsequently reviewed again by the Social Security Appeals Tribunal (SSAT) and, on 29 November 2011, it affirmed the original decision.
Mr Mahrous claimed that he faxed an application to the Tribunal for review, but that a record of its receipt could not be found. He re-sent the fax but it was received outside the 28 day appeal period for lodgement of application under the Administrative Appeals Tribunal Act 1975 (Cth).
The present application before this Tribunal is made:
(i)for extension of time to appeal against the decision of the SSAT. Mr and Mrs Mahrous, parents of Andro Mahrous, prosecuted the application in person, unassisted by legal representatives; and
(ii) to appeal against the decision of the SSAT rejecting the application for DSP in support of Andro Mahrous.
ISSUES
The issues for determination in this matter are:
(i) whether an extension of time should be granted for a review of the decision of the SSAT; and
(ii) subject to the outcome of (i), whether the application for DSP fails on the ground of residency.
EVIDENCE
Andro Mahrous is the son of Raif Mahrous and his wife. Andro was born in Egypt on 27 March 1995. The family emigrated from Egypt to New Zealand in 1998 when Andro was 3 years old (approximately). The family, including Andro, became New Zealand citizens. They then moved to Australia on 6 November 2003.
Raif Mahrous provided evidence to the Tribunal that Andro was born a healthy baby. There were initial concerns that he was not talking but hearing and neurological tests revealed no disease or abnormality. When Andro and his family sought visas to move to New Zealand, medical tests were required and Andro and his parents all passed those tests. They were admitted to New Zealand and they have all since obtained citizenship of New Zealand.
While living in New Zealand and when Andro was about 4 years of age (approximately a year after arriving in that country), he became unwell. Andro began having epileptic seizures and it has been submitted he may have suffered brain damage as a result of that epilepsy. The record shows that the etiology of that condition is unknown. Andro has a confirmed intellectual impairment of some magnitude. The Tribunal was told the cause of the intellectual disability is also imprecisely documented, although the epileptic seizures may have been a contributory factor. Also, the parents suggest there is a diagnosis of cerebral palsy but the basis of that is said by the SSAT to be unclear.
In relation to the extension of time application to this Tribunal, Mr Mahrous said he did in fact fax a copy of the application to the Tribunal in December 2011, when he was within the prescribed time to appeal. He told the Tribunal that he then rang the registry shortly after sending the fax and asked “did you receive it?” and was told it had been received. He further told the Tribunal that after having heard no further information for some weeks, he again rang the registry and was told that the application could not be found. As a result he sent it again, the latter occasion being outside the prescribed 28 day period.
Following the hearing of the application for extension of time, there was a Telephone Directions Hearing with the parties who agreed that the determination of the substantive application should proceed without any further hearing. All the evidence to determine that issue had been presented at the hearing of the extension of time application. However, Mr Mahrous provided the Tribunal and the Respondent with copies of all medical evidence, some of which was referred to by the SSAT, but full reports were not lodged with this Tribunal’s registry.
In respect of the appeal against the decision of the SSAT, there is evidence of Dr Khalil, a General Practitioner who certified Andro would require 24 hour a day 7 day a week care. The Principal of the Narbethong State Special School certified similarly.
There is expert medical evidence of real substance or weight. This is shown in the report of Dr Robertson, paediatrician of the Mater Hospital, dated 14 March 2011, who found that Andro had “developmental delay and epilepsy which had been fully investigated previously. His epilepsy has been stable on medication”. Dr Ron James, Consultant Paediatrician, opined on 30 April 2009 that Andro’s epilepsy had stabilised on medication and stated Andro had had no seizures for 5 years at that time. He described Andro as having “global developmental delay”. Dr Anita Cairns, Paediatric Neurologist, in her report dated 24 November 2011, rejected a diagnosis of cerebral palsy and her professional opinion was that “Andro has intellectual impairment, visual impairment and symptomatic epilepsy”. Because the onset of Andro’s condition cannot accurately be determined whether it occurred in Egypt or New Zealand, Dr Cairns states he should not be penalised for that.
CONSIDERATION
Issue 1: The Extension of Time Application
The question to be answered in this issue is whether an extension of time should be granted. Section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) provides for granting of an extension if “it is reasonable in all circumstances to do so”.
Mr Mahrous submitted that his son is a very big young man and goes to a special school. He is now 16 years of age and leaves school at the end of this year. However, because of his age, size and the fact that he can be quite disagreeable, he cannot be handled by his mother. Mr Mahrous is concerned that he would have to give up work at the end of the year and then there would be then no means of support for his family. He would only be entitled to a carer allowance if his son was entitled to disability support pension. That has been rejected.
The Secretary concedes that the applicant is severely disabled but says that he cannot satisfy residency requirements and, therefore, the application for disability support pension cannot succeed. I was referred by the Secretary’s advocate to factors which would militate against approving an extension of time. The Secretary’s case is that an extension is warranted only where a refusal would result in an injustice (Gallo v Dawson (1990) 93 ALR 479). The Secretary also points specifically to factors of the length of the delay; the prospect of success; awareness of the appeal rights; and explanation of the delay.
One of the key authorities in answering an extension of time application is Hunter Valley Developments Pty Ltd v Minister forHome Affairs and Environment (1984) 3 FCR 344. There, Wilcox J said the applicant does not bear any onus of proof and special circumstances need not be shown. However, as will be seen shortly, there is no need to consider the application in any depth to resolve this issue because of subsequent evidence obtained as set out below.
Following the hearing, I referred the applicant’s contention to the Tribunal staff to investigate with the registry whether the claim by Mr Mahrous of faxing in an application could be verified. An officer who works in a more senior role recalled working in the registry on a “half-staff day” in December 2011. She recalled a man telephoning the registry about whether his fax had been received and on making an immediate inspection of the fax machine she told him that it had been received. She could not recall the name of the caller. This officer then, at my request, made further enquiries with the registry and the copy of the facsimile asserted by Mr Mahrous had indeed been recovered. It had been misfiled apparently during the December period. I have since sighted the original application as well as a statement by an officer of the Tribunal. While she did not recall the name of the applicant, she recalled the day she worked and it was subsequently shown that the date noted on the original fax coincides with the date of the officer’s recollection. There is no contrary evidence.
I therefore make a finding of fact that the original document was lodged with the Tribunal within the prescribed time period as asserted by Mr Mahrous. I have sighted the original document, which was faxed, and had noted on it the time of its receipt. The statement made by the officer who independently recalled receiving a telephone call from a person on the date of Mr Mahrous lodging the application by fax, is admissible and is corroboration that the faxed document was originally received within the statutory time period (Evidence Act 1995 (Cth), s 48(1)(a)).
I therefore find that it is not necessary to determine the application for an extension of time. The original document having been found, the application must be regarded as being on foot. That application should now be determined within the auspices of the Administrative Appeals Tribunal Act 1975 (Cth).
Issue 2: Does the Applicant satisfy the residency requirements of s 94(1)(e)(ii) of the Act?
The Secretary concedes the applicant is severely disabled but says he cannot satisfy the residency requirements and, therefore, the application cannot succeed.
Disability support pension is provided for in s 94 of the Social Security Act 1991 (Cth) (the Act). The Secretary conceded in the hearing that the applicant would satisfy all of the requirements of s 94, except the “residency” requirements in s 94(1)(e). That subsection requires that an applicant is either:
(i)an Australian resident when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residency or has a qualifying residence exemption for disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c), the person:
(A)is not an Australian resident; and
(B)is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident,…
The applicant is severely disabled and his parents are concerned as to how he will be looked after when he completes school this year. He is a big young man and the parents’ concerns are genuine.
It is apparent that Andro Mahrous was not an Australian resident when he first satisfied s 94(1)(c) of the Act. He therefore does not satisfy s 94(1)(e)(i) of the Act. On the facts presented, he also does not satisfy s 94(1)(e)(iii) of the Act.
The only substantive consideration therefore is whether he satisfies s 94(1)(e)(ii) of the Act. The Secretary submits that he does not have 10 years qualifying residence and would not achieve that condition until 6 November 2013.
The assessment of whether Mr Mahrous can satisfy s 94(1)(e)(ii) of the Act must be answered by examining the interaction of two statutes; The Social Security Act 1991 (Cth) and the Social Security (International Agreements) Act 1999 (Cth). There is an International Convention between Australia and New Zealand for Social Security matters and it is contained in the Social Security (International Agreements) Act 1999 (Cth), Schedule 3 (the Agreement). Clause 2 of Article 2 in the Agreement sets out a limitation to the application of Australian disability support pension for a New Zealand citizen. Clause 2(b) of that Article is satisfied on the basis of a concession by the Respondent that at the date of severe disablement, Andro Mahrous was a resident of one of the two countries to the Agreement (i.e. New Zealand). Article 12 of the Agreement is also relevant. However, clause 4 of that Article disentitles an applicant under that Article “unless he or she has accumulated 10 years of residence in Australia and/or New Zealand”.
The Secretary submitted that the applicant meets Article 2 of the Agreement but that he cannot meet Article 12. I accept the Secretary’s concession that Mr Mahrous should be regarded as satisfying Article 2. However, the question raised in relation to Article 12 is quite problematical from the point of view of the statutory construction to be placed on that provision. I have come to the conclusion that the applicant satisfies both of those Articles.
The Secretary argued that the term “10 years qualifying Australian residence” in s 94(1)(e)(ii) of the Act must be read strictly in accordance with the definition of that term in s 7(5) of the Act which requires an applicant to be an “Australian resident” for 10 years continuously. I have come to the conclusion that that interpretation of the two interacting statutes is not justified for the reasons set out below.
Firstly, it is apparent that s 94(1)(e)(ii) and s 7(5) of the Act were enacted in 1991 and have not been amended since. The Social Security (International Agreements) Act 1999 (Cth) has been enacted subsequently and, ordinarily, one must adopt the position that a later Act overrides an earlier Act. But here, the relevant question is how do these two statutes co-exist? In short, it seems the provisions of the Act enacted in 1991 apply strictly where there is no specific international agreement which has been given statutory force in Australian law. But the relative priority to be given to these two statutes, in cases of ambiguity and where an international convention or agreement is involved, must be treated in accordance with comprehensive pronouncements by the High Court of Australia over the past two decades.
In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Teoh), the question for consideration was in the context of Australia being a signatory to a United Nations Treaty on protection of children. The High Court (Mason CJ and Deane J) said in that case, where there is an ambiguity courts should tend towards a construction which is consistent with Australia’s obligations under an international convention or agreement (at p. 291). The Court also said that if the delegate or decision maker chose not to act consistently with the convention or agreement, then the respondent should be put on notice about that intention or choice and be permitted to make submissions about why that choice should not be implemented (at p. 291-292).
Teoh is relevant to the present circumstances of determining the correct interpretation of the interaction between s 94(1)(e)(ii) of the Social Security Act 1991 and Article 12, clause 4 of the Social Security (International Agreements) Act 1999, as it clarifies the following principles:
1.Ratification of international agreements or treaties by the Executive Government does not give it any standing in Australia’s domestic law, unless it is also covered by separate legislation properly enacted and proclaimed (Dietrich v The Queen (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J).
2.Where legislation is enacted but is ambiguous, then it should be given a construction which is consistent with Australia’s commitment to international agreements, either where the agreements were ratified before the legislation was enacted or where the legislation precedes the anticipated ratification of such an agreement (Polites v The Commonwealth (1945) 70 CLR 60 at 68-69 per Latham CJ; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; Kruger v The Commonwealth (1997) 190 CLR 1 at 71 per Dawson J).
Therefore, the Social Security Act 1991 (Cth) must be used subject to the Social Security (International Agreements) Act 1999 (Cth). This must be so particularly where an International Treaty has been given legislative effect in the law of Australia.
In respect of the interpretation to be given to Article 12, clause 4 of Schedule 3 of the Social Security (International Agreements) Act 1999 (Cth), I have also considered Rhodes v Secretary, Department of Employment and Workplace Relations [2007] AATA 1664 and Ali and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 611. In the latter case, the facts were very similar to the instant case and the applicant there was unsuccessful as his disability was incurred in India, not in New Zealand or Australia as is required by Clause 4 of Article 12. However, neither of those two authorities specifically addresses the submission which the Secretary has made here in relation to the interpretation of Article 12, clause 4.
The Secretary argues that Article 12 clause 4 provides a restriction on the application of Article 12 and cannot be read alone; rather it must be read subject to clauses 1, 2 and 3 of Article 12. The Secretary says clause 4 cannot apply to the applicant as he is 16 years of age and therefore does not fall within the age group 20-64 years, which is the definition of the term “working age residence” as used in clauses 1 to 3 of Article 12.
I accept that clauses 1 to 3 of Article 12 can operate as a restriction in clause 4. However, to argue it is not applicable to Mr Mahrous because he is 16 years old seems to me to be unsustainable for a number of reasons. Firstly, the heading of Article 12 is “Totalisation for Australia”. That is the subject matter which is the purpose of Article 12. “Working age residence” is merely one issue which provides a specific formula for calculating working age residence, if relevant. Here it is not relevant to the applicant, Mr Mahrous. Secondly, clause 4 (dealing with DSP) and clause 5 (age pension) are given special treatment and specify restrictions also. But those restrictions do not include any reference to “working age residence”.
There are a number of considerations to be taken into account when there are apparent inconsistencies within an Act. All words of a statute must be regarded as having some meaning. To assume Parliament intended that some words or content of a section to be meaningless would be a false premise upon which to determine how to resolve these apparent inconsistencies. As stated in DC Pearce and RS Geddes Statutory Interpretation in Australia (2nd edn., Chapters 2 and 4)[1], as a general principle, the Courts have pointed out that they are not at liberty to consider any word or sentence as superfluous or insignificant. All words must prima facie be given some meaning and effect (The Commonwealth v Baume (1903) 2 CLR 405 at 414 per Griffith CJ) (Baume). That principle has been affirmed consistently over the years. For example, in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 382, the joint judgment of McHugh, Gummow, Kirby and Hayne JJ said “… a court construing a statutory provision must strive to give meaning to every word of the provision”. That extended reference to Baume has been approved in many other cases since (e.g. Saeed v Minister for Immigration and Citizenship (2010) 267 ALR 204 at 215 per French CJ, Gummow, Hayne, Crennan and Kiefel JJ). However, where it is not possible to give meaning to every word, a conclusion which “provides the greatest harmony and the least inconsistency” should be adopted (Australian Alliance Association Co Ltd v Attorney-General (Qld) and Goodwyn [1916] St R Qd 135 at 161 per Cooper CJ; T v T (2008) 216 FLR 365 at 394). If a conflict seems elusive in trying to give meaning to all words, then a meaning which produces a more reasonable result should be sought (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321 per Mason and Wilson JJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574 per Gummow J).
[1] 1981, Butterworths, Sydney.
In relation to the application of these principles to clause 4 of Article 12 of the Social Security (International Agreements) Act 1999 (Cth), to read that subject to clauses 1 to 3 when those clauses can have no application to Mr Mahrous, would be tantamount to inferring conditions which are not specified in the statute. It would require an inference that would lead to an unreasonable result. In the case of minors such as the applicant, it would require an inference that Parliament intended that clause 4 of Article 12 would be otiose in some circumstances. That result would be absurd using the well-recognised canons of statutory construction as elucidated by court authorities of long standing.
I find that clause 4 of Article 12 empowers the interpretation in the applicant’s special circumstances such that clause 4 should not be read subject to clauses 1 to 3 of that Article. That is, he must be regarded as having more than 10 years residence in Australia and/or New Zealand as he has been a resident of either country continuously since 1998. Therefore, he satisfies clause 4. Consequently, he satisfies s 94(10(e)(ii) of the Act.
DECISION
The Tribunal decides that:
1.An extension of time is not required to proceed with the Application for Disability Support Pension;
2.The applicant satisfies the residence requirements of s 94(1)(e)(ii) of the Social Security Act 1991 (Cth);
3.The decision under review is set aside.
I certify that the preceding 38 (thirty- eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD.
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Associate
Dated 14 June 2012
Date(s) of hearing
29 March 2012
Applicant In person Advocate for the Respondent Donna Smith
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