Christina Rus and Secretary, Department of Social Services
[2015] AATA 367
•28 May 2015
[2015] AATA 367
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2015/1291
Re
Christina Rus
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal John Handley, Senior Member Date 28 May 2015 Place Melbourne The application to extend time to lodge the application for review is refused
........[sgd]................................................................
John Handley, Senior Member
SOCIAL SECURITY – whether applicant a primary victim of overseas terrorism – applicant was a passenger on a train approaching central London which was stopped before its intended destination on 7 July 2005 – passengers directed to alight and exit underground rail loop – intention to continue journey by bus from Tavistock Square – ordinarily would have been on a No. 30 bus – numbers of persons which boarded it caused her to take another bus – No. 30 bus was bombed when she was 142 meters away from it – declared terrorist act – applicant was not in the place where the terrorist act occurred – decision affirmed.
Legislation
Acts Interpretation Act 1901 sections 15AA and 15AB
Social Security Act 1991 sections 1061PAA and 35B
Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Act 2012Social Security (Declared Overseas Terrorist Act) Declaration 2013
Cases
Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121
Atieh v Civil Aviation Safety Authority [2013] FCA 20
Taylor v The Owners – Strata Plan No 11564 (2014) 306 ALR 547
Herbert Adams Pty Ltd v Federal Commissioner of Taxation (1932) 47 CLR 222
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
Hananeia and Secretary, Attorney Generals Department [2015] AATA 319
Secondary Materials
Explanatory Memorandum, Social Security Amendment (Supporting Australian Victims Of Terrorism Overseas) Bill 2011
REASONS FOR DECISION
John Handley, Senior Member
28 May 2015
Ms Rus, the applicant in this review, was in London on 7 July 2005 when a bus, she would have ordinarily taken to her workplace, was bombed by a terrorist.
Her application for an Australian Victim of Terrorism Overseas Payment (the payment) was refused by the respondent. An appeal against that decision before the Social Security Appeals Tribunal was unsuccessful.
The applicant sought review of that decision in this Tribunal but her application was lodged out of time. The respondent opposed extending the time to permit her to institute the review application, for a number of reasons, the most prominent being, that the application was without merit and there was no prospect of success.
The respondent relied on the Federal Court decision of von Doussa J in Kuljic v Secretary, Department of Social Security (1994) 33 ALD 121 where at page 122 his Honour decided:
One of the principal considerations to be addressed in deciding whether it is fair and equitable in all the circumstances to extend time is whether the merits of the proposed appeal are such that if an extension of time is granted there is some prospect of success in the appeal. If a consideration of the merits indicates that there is no question to be agitated on appeal, and there is no prospect of success, it would be futile to grant an extension of time and most unjust to the respondent to subject the respondent to the costs of defending a pointless appeal.
That decision has been followed in many other applications subsequently, the most recent that I can find is in another Federal Court decision of Atieh v Civil Aviation Safety Authority [2013] FCA 20 at [14] where it was decided:
Mr Atieh will not be granted an extension of time within which to apply for leave to appeal in this case because to do so would be futile. Mr Atieh does not have sufficient prospects of success to justify the grant of leave to appeal at all.
An application made to extend the time to commence the proceedings was heard on 20 May 2015. The only issue then considered was whether the application had merit and whether the application, if time was extended, had some prospect of success.
I have concluded, by regard to the applicable legislation and to the applicant’s circumstances which were heard during the application, that there is no prospect of success and to grant an extension of time would be futile.
The Legislation
The Social Security Act1991 (the Act) was amended by the Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Act 2012 (the amending Act) by introducing s 1061PAA into the Act in the following (relevant) terms:
(1)A person is qualified for an Australian Victim of Terrorism Overseas Payment if:
(a)the person is a primary victim or a secondary victim of a declared overseas terrorist act;
(b)…
(c)…
…
(2)A person is a primary victim of a declared overseas terrorist act if the person:
(a)was in the place where the terrorist act occurred; and
(b)was harmed (within the meaning of the Criminal Code) as a direct result of the terrorist act.
On 20 September 2013, the Prime Minister, pursuant to a power within s 35B(1) of the Act made a declaration by Legislative Instrument F2013L01801 entitled the Social Security (Declared Overseas Terrorist Act) Declaration 2013 (the Declaration). The Declaration declared seven overseas terrorist acts, of which, for the purpose of this application, paragraph 4(3) applies namely:
the bus bombing at Tavistock Square and the train bombings in the Circle Line tunnel between Liverpool Street and Aldgate stations, on the Circle Line outside Edgware Road, and in a Piccadilly Line tunnel between King’s Cross and Russell Square in London, United Kingdom on 7 July 2005.
The Explanatory Memorandum presented to the Parliament in support of the amending Act is in the following terms:
Paragraph (2)(a) provides that the person must be in the place where the terrorist act occurred. The intention of paragraph (2)(a) is to disqualify persons who have watched or heard of the event through any form of public media from making a claim. Although they may be distressed by observing or hearing of the event, this is not enough to qualify for benefits.
The person must be physically ‘in a place’ where the overseas terrorist act occurs. This could be in the hotel foyer, an adjacent car park or across the road. However there must be close proximity to the overseas terrorist act.
The respondent contended that in addition to being in close proximity to the terrorist act, the person must also witness it. It was learnt that the respondent has decided, as a matter of policy, that that qualification must also be achieved. There is no warrant for imposing that qualification. The legislation is silent on that issue. The first requirement for qualification as a primary victim is being in the place where the terrorist act occurred.
The second requirement is the person must have been harmed within the meaning of the Criminal Code. The applicant suffered a cerebro vascular accident (stroke) of extensive proportion a few weeks after 7 July 2005 which she contends was a consequence of the bombing in Tavistock Square. Fortunately, she has made a remarkable recovery but does retain some disabling legacies. I will not consider whether the applicant was harmed, as a direct result of terrorist act in this decision, it being confined to whether the application has merit.
The Applicant
A statement completed by the applicant on 30 September 2014, when she first applied to Centrelink is found at T9 pages 49 and 50. The T-documents also include a number of photographs obtained by the applicant of locations in and around Tavistock Square and copies of searches taken from Google Earth. A photograph of the bus that was bombed is found at T14, page 83.
The applicant said on 7 July 2005 she left home at about 8:30 am intending to travel into London by train, in the underground loop, commencing her journey at the Preston Road Station. Ordinarily the train would have travelled to or through St Pancras station. As the train approached Baker Street station (the last stop before St Pancras station), a message was passed through the train to all passengers to alight and obtain bus transport for the rest of the journey.
The applicant said such a message was not unusual because trains were frequently banked at or approaching St Pancras station. She did not then know that a bomb had exploded near St Pancras station.
The applicant left the train and intended to take the No. 30 bus from Tavistock Square which, by her previous experience, travelled near her workplace. When she arrived in Tavistock Square, she said there were about 3000 people, who had been evacuated from the underground, waiting for buses. She was about 30 meters from the bus stop in a queue with other people.
Whilst waiting in the queue, a No. 18 bus approached and stopped immediately in front of where she was standing. She decided to board it because it travelled towards her office. Before the No. 18 bus departed, a No. 30 bus approached. She considered getting onto that bus, but many others were in the process of filling it and she decided to remain where she was.
The No. 18 bus left Tavistock Square and the applicant remained on it until she alighted at Euston station, because the bus driver said he had been redirected. She crossed the road and was walking towards her office. She remembered that there were many emergency vehicles in the vicinity and she had passed them when she was on the bus. She remembered their sirens and flashing lights. She also remembered that police were redirecting traffic.
Whilst walking toward her office, the applicant heard the sound of an explosion and she felt the ground tremor under her. She was in a relatively open area and the sound of the blast echoed. She continued to walk to her office and told her boss of the explosion, the tremor and the chaos in the streets. She said her boss told her that she was delusional. She opened her computer and looked at BBC News online and saw photographs of the No. 30 bus blown up in Tavistock Square. The applicant said she was shocked and felt numb. She rang her parents and reassured them that she was safe. Her boss apologised for her earlier comments. She recalled that her office and all other offices in London were locked down for the remainder of the day and employees working in London were told not to return into the city centre the following day. The applicant walked home that evening, over a distance of about 5 kilometres (because the Underground was closed) and passed Tavistock Square and saw the remains of the No. 30 bus.
About two weeks later on 21 July 2005, there were four bomb attacks intended but not detonated (not declared as an overseas terrorist act) and understood to be terrorist inspired. Three or four days later the applicant suffered the stroke.
Using the Google Earth facility, and by regard to her location when walking in Euston Road, the applicant was 142 metres from Tavistock Square (T9, page 51) when she heard the explosion and felt the tremor. She had no direct line of sight to Tavistock Square, nor could she see the bus, smoke or anything else which would indicate that there had been a bombing. Between her and Tavistock Square, there was a church and a row of trees. (She learnt later that shrapnel from the bombing had been found near the trees).
Later that morning, she found out that there had been two other bombings in the Underground that morning. She understood that terrorists had intended to disable the underground rail system in all four directions but after the first two bombings, that strategy was impaired (by the first two bombings) and a suicide bomber had boarded the No. 30 bus.
Conclusion and reasons for decision
The applicant’s experience during the morning of 7 July 2005 must have been horrific. It was fortunate that she decided to stay on the No. 18 bus and it is not difficult to imagine the shock and fright she would have experienced when she learnt shortly after arriving at her workplace of the bombing in Tavistock Square. The effects of her stroke were profound (refer report of Dr Cohen, her treating neurologist in London –T5, page 21). She continues to have psychological care from Mr Salter and her general practitioner Dr Silver, both in Melbourne who have provided reports at T6, page 32 and T7, page 37, respectively. Dr Silver reported that the applicant suffers post-traumatic stress disorder (PTSD) and has memory and speech deficits. The applicant said she presently has limited function of her right arm.
The issue which must be determined is whether she was in the place where the terrorist act occurred.
I will pause at this stage to draw attention to the phrase declared overseas terrorist act in s 1061PAA(2) of the Act. It is defined in paragraph 4 of the Declaration and at sub-paragraph (3) (paragraph 9 above), it describes four distinct events. Each, by description, occurred in four different locations. A construction of paragraph 4(3), by the conjuctive and, suggests that a person must be in the place of each terrorist act. The disjunctive or would be preferable and it is the construction I prefer. Failing to substitute or for and would leave what appears to be a drafting error uncorrected; it would defeat the object of the Act and would be inconsistent with a purposive interpretation (Taylor v The Owners – Strata Plan No 11564 (2014) 306 ALR 547 at [36]-[38]). Failing to do so would mean, for the purposes of s 1061PAA of the Act, that a person would need to be in the place[s] where [each of] the terrorist act[s] occurred, which is inconsistent with the singular language used in the Act and the intended basis of qualification described in the Explanatory Memorandum.
The terrorist act which the applicant connects with her injury was the bombing of the No. 30 bus. It occurred in Tavistock Square.
The applicant said the words in the place should be interpreted as the location where she physically experienced and reacted emotionally to the tremor and had heard the noise of the explosion. She said the place should be extended beyond the precise location where the bus was bombed.
Section 15AA of the Acts Interpretation Act1901 provides that interpretation of legislation which promotes the purpose or object of it, whether or not that purpose or object is expressly stated, shall be preferred to a construction that would not promote the purpose or object. Section 15AB of the same legislation permits the use of extrinsic material when interpreting an Act and specifically permits (ss (2)(e)) consideration of an Explanatory Memorandum relating to a Bill before a House of the Federal Parliament.
I am satisfied the words in the place should, be interpreted by their common and ordinary everyday meaning… in ordinary colloquial speech (refer Starke J in Herbert Adams Pty Ltd v Federal Commissioner of Taxation (1932) 47 CLR 222 at 225). I am also satisfied that the words (assisted also by the Explanatory Memorandum) should be construed purposively (refer Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297).
I am satisfied the word in, in the context of s 1061 PAA, means to be within or located in immediate or close proximity of the place, and the word place, is intended to identify the location where the terrorist act occurred. The legislation does not suggest that the place should be pin-point confined, that is, where the bus was located (being the precise place where the bomb was detonated – to do so would mean there would never be a primary victim) but extended to its immediate surrounds. The declaration refers to the bombing at Tavistock Square, which might suggests the boundary of it may constitute the place.
The words within the composite phrase in the place, are intended to mean that a primary victim is a person who was within the immediate vicinity of or close proximity to the location – the place – of the terrorist act. The legislation intends to limit the scope of eligibility for the payment and the words of s 1061PAA(2)(a) evince that objective.
In the circumstances of this application, the place where the terrorist act occurred was in Tavistock Square. The applicant was not in the immediate vicinity or close proximity of that place. The applicant had her experience of that terrorist act when she was 142 metres away when it occurred. Although she was aware something was happening within her vicinity, indicated by sirens, emergency vehicles, traffic diversions, the sound of a blast and earth tremors, she did not know that the bombing had occurred until she arrived at her workplace and saw photographs on the Internet.
For all of the above reasons I am satisfied that a review of the decision of the SSAT sought by the applicant would have no prospect of success and granting an extension of time to commence the proceedings would be futile.
The application to extend time to lodge the application for review is refused.[1]
[1] On 14 May 2015, a Deputy President of the Tribunal delivered a decision in Hananeia and Secretary, Attorney Generals Department [2015] AATA 319. I was not aware of that decision at the hearing in the present application on 20 May 2015.
It was an application seeking payment as a victim of terrorism. The declared terrorist act was the bombing on 12 October 2002 of the Sari Club in Bali, Indonesia.
The applicant gave evidence that he heard and felt the immediate effects of the explosion. The Tribunal found at [40] that the applicant was then 600 metres in a straight line or 1.9 kilometres in a direct route from the site of the Sari Club bombing, being one of three sites which were bombed on that date.
In relation to the phrase was in the place where the terrorist act occurred, the Tribunal decided the place was the Sari Club, where the relevant bombing occurred and was not the place where the applicant physically experienced and perceived that a terrorist act had occurred.
In reaching those findings, the Tribunal had regard to the Social Security Act 1991 (sections 35B(1) and 1061PAA), the Acts Interpretation Act 1901 (sections 15AA and 15AB) and the Explanatory Memorandum relating to the Social Security Amendment (Supporting Australian Victims Of Terrorism Overseas) Bill 2011.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member ....[sgd]....................................................................
Associate
Dated 28 May 2015
Date(s) of hearing 20 May 2015 Applicant In person Solicitors for the Respondent James Henderson, Centrelink Program Litigation and Review Branch
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