Curtis-Smith v Secretary, Department of Social Services

[2015] FCA 1115

FEDERAL COURT OF AUSTRALIA

Curtis-Smith v Secretary, Department of Social Services [2015] FCA 1115

Citation:	Curtis-Smith v Secretary, Department of Social Services [2015] FCA 1115
Appeal from:	Curtis-Smith and Secretary, Department of Social Services [2015] AATA 152
Parties:	JAMES CURTIS-SMITH v SECRETARY, DEPARTMENT OF SOCIAL SERVICES
File number(s):	NSD 650 of 2015
Judge(s):	BUCHANAN J
Date of judgment:	22 October 2015
Catchwords:	ADMINISTRATIVE LAW – appellant not granted social security payment (age pension) under Social Security (Administration) Act 1999 (Cth) – Administrative Appeals Tribunal found appellant not an “Australian resident” under Social Security Act 1991 (Cth) s 7 – appellant had relocated to Philippines at time of making social security payment application – Administrative Appeals Tribunal considered each element in Social Security Act 1991 (Cth) s 7(3) – appellant claimed personal exception to “General rule” of Social Security (Administration) Act 1999 (Cth) s 29 – appellant’s argument misconceived – no error on a question of law by the Administrative Appeals Tribunal – appellant did not meet the requirements of Social Security (Administration) Act 1999 (Cth) s 29 to obtain social security payment
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth), s 44 Social Security Act 1991 (Cth), ss 7, 7(3), 43 Social Security (Administration) Act 1999 (Cth), ss 29, 29(1), 29(1)(a), 29(1)(b), 30, 30A, 31, 31A, 32
Date of hearing:	Heard on the papers
Date of last submissions:	17 August 2015 (appellant) 11 September 2015 (respondent)
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	28
Solicitor for the Appellant:	The appellant was self-represented
Solicitor for the Respondent:	S Thompson of Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 650 of 2015

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	JAMES CURTIS-SMITH Appellant
AND:	SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	22 OCTOBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 650 of 2015

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	JAMES CURTIS-SMITH Appellant
AND:	SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent

JUDGE:	BUCHANAN J
DATE:	22 OCTOBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This judgment deals with a statutory appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) against a decision of the Administrative Appeals Tribunal (“the AAT”). Such an appeal is only available on a question of law. The appeal was, by consent, argued in writing and without an oral hearing.

2. The questions of law were identified as follows: 

   1.Whether the heading “General rule” to section 29 of the Social Security (Administration) Act 1999 is such that the application of section 29 is not mandatory on all claims for a social security payment, but discretionary.

   2.Whether the discretion is limited to the statutory exemptions to the application of Section 29 as…