Charan v Secretary, Department of Social Services

The appeal in Charan v Secretary, Department of Social Services involved Mr and Mrs Charan, New Zealand nationals, challenging a decision of the Secretary of the Department of Social Services to deny them eligibility for an aged pension under the Social Security Act 1991. The primary issue was whether the appellants had fulfilled the requirement of "10 years qualifying Australian residence" as stipulated by the Agreement on Social Security between Australia and New Zealand. The appeal was heard by the Full Court, which found that the appellants had not satisfied the residence requirement, leading to the dismissal of their appeal.

The legal issues the court had to address were primarily concerned with the interpretation of the 2001 Agreement on Social Security between Australia and New Zealand, and whether the subsequent 2016 Agreement, which had not yet come into force at the time of the appeal, would have altered the outcome. The appellants argued that the Full Court’s decision in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous should be applied to their case, but the court held that Mahrous was not applicable as it pertained specifically to disability support pensions. Instead, the court found that Articles 12(1) and (5) of the 2001 Agreement were relevant for aged pension eligibility. The court confirmed that the accumulated aggregate of more than 10 years’ residence in Australia and/or New Zealand did not include periods of residence in New Zealand after the appellants attained the age of 65.

The court reasoned that even if the 2016 Agreement had applied, it did not introduce any changes that would have affected the appellants' capacity to satisfy the 10-year qualifying Australian residence requirement. The court found that both appellants were lawfully residing in Australia on special category visas, which did not alter their eligibility for the aged pension. Consequently, the court upheld the primary judge's decision and dismissed the appeal. The appellants were ordered to pay the respondent’s costs.

In conclusion, the appeal was dismissed, and the appellants were ordered to pay the respondent’s costs. The court confirmed that the appellants had not met the 10-year qualifying Australian residence requirement under the 2001 Agreement on Social Security, and that the 2016 Agreement did not affect their eligibility for an aged pension.