Dowker v Secretary, Department of Social Services
[2017] FCA 1175
•5 October 2017
FEDERAL COURT OF AUSTRALIA
Dowker v Secretary, Department of Social Services
[2017] FCA 1175
Appeal from: Dowker v Secretary, Department of Social Services [2016] AATA 763 File number: SAD 269 of 2016 Judge: CHARLESWORTH J Date of judgment: 5 October 2017 Catchwords: STATUTORY INTERPRETATION – crisis payment payable under social security legislation where claimant leaves home because of an extreme circumstance – meaning of extreme circumstance – claimant forcibly evicted and homeless for nine months after forcible eviction from home – claimant on notice – claimant not eligible on facts – government policy inconsistent with statute – policy not an aid to construing statute Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Migration Act 1958 (Cth)
Social Security Act 1991 (Cth), s 1061JH
Federal Court Rules 2011 (Cth), r 4.12
Cases cited: Arcibal v Secretary, Department of Family and Community Services [2002] FCA 1313
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
Kowalski v Repatriation Commission [2009] FCAFC 107, (2009) 259 ALR 444
Kumar v Minister for Immigration and Ethic Affairs (1997) 50 ALD 488
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secretary, Department of Social Security v “SRA” (1993) 43 FCR 299
Date of hearing: 20 April 2017 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 42 Counsel for the Applicant: Ms G Walker with Ms H Stanley Counsel for the Respondent: Mr B Dube Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
SAD 269 of 2016 BETWEEN: MARGARET LEE DOWKER
Applicant
AND: SECRETARY, DEPARTMENT OF SOCIAL SERVICES
Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
5 OCTOBER 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
On 19 June 2015 the applicant, Mrs Dowker, was evicted from her rental home. The eviction occurred pursuant to orders for vacant possession made by the District Court of South Australia in favour of Mrs Dowker’s landlord. The eviction was effected with the assistance of a court bailiff and members of the South Australia Police and occurred in circumstances permitting Mrs Dowker insufficient time to gather up all of her possessions. Save for a few days, Mrs Dowker and her partner lived out of their car with their 10 dogs for about nine months before securing alternative rental accommodation.
Soon after her eviction, Mrs Dowker applied for a crisis payment pursuant to s 1061JH of the Social Security Act 1991 (Cth) (SS Act). The application was rejected by a delegate of the respondent (Secretary) on 1 July 2015. The Secretary’s decision was affirmed by an authorised review officer and then by the Social Services and Child Support Division of the Administrative Appeals Tribunal. A senior member of the Tribunal affirmed that decision on 25 August 2016, and delivered written reasons on 30 September 2016. This is an appeal from the Tribunal’s decision.
REASONS OF THE TRIBUNAL
Section 1061JH of the SS Act provides:
1061JH Qualification—extreme circumstances forcing departure from home
(1)A person is qualified for a crisis payment if, after the commencement of this section:
(a)the person has left, or cannot return to, his or her home because of an extreme circumstance; and
(b)the extreme circumstance makes it unreasonable to expect the person to remain in, or return to, the home; and
(c)the person has established, or intends to establish, a new home; and
(d)at the time the extreme circumstance occurred, the person was in Australia; and
(e)the person makes a claim for a crisis payment within 7 days after the extreme circumstance occurred; and
(f)on the day on which the claim is made:
(i)the person is in severe financial hardship (see section 19D); and
(ii)the person has made a claim (whether on the same day or on an earlier day) for a social security pension or benefit and the person is qualified for the pension or benefit; and
(g)during the 12 months immediately preceding the day on which the claim is made, no more than 3 crisis payments have been payable to the person based on:
(i) the qualifications set out in this section; or
(ii)the qualifications set out in section 1061JHA (remaining in home after removal of family member due to domestic or family violence).
Note: Examples of extreme circumstances that would qualify a person for crisis payment are the person’s house being burnt down, or the person being subjected to domestic or family violence.
(2)A person is not qualified for a crisis payment in respect of an extreme circumstance if the Secretary is satisfied that the extreme circumstance is brought about with a view to obtaining a crisis payment.
It was common ground before the Tribunal that Mrs Dowker met the criteria in subs 1061JH(1)(b), (c), (d) and (e). Although the criterion in s 1061JH(1)(f) was disputed, the Tribunal found that it, too, was fulfilled on the facts. The remaining issue before the Tribunal was whether Mrs Dowker was a person who had left or could not return to her home because of an “extreme circumstance” within the meaning of s 1061JH(1)(a). The Tribunal’s determination of that question now becomes the central issue on this appeal.
The Tribunal referred to the judgment of Heerey J in Arcibal v Secretary, Department of Family and Community Services [2002] FCA 1313. That case involved a claim for a crisis payment by a person who was evicted from his rental property after failing to make rental payments. On review of a decision to refuse the application, the Tribunal in that case said (at [7]):
Whilst it would appear that the applicant was evicted because of arrears of rent, that fact of itself is not an ‘extreme circumstance’. On the one hand, the landlord is exercising his tenancy rights. On the other hand, if there has been a contravention of Tasmanian laws with respect to domestic tenancies, the applicant has rights that he may choose to exercise.
Examples of ‘extreme circumstances’ are recorded within the Act as being a person’s house being burnt or a person being subjected to domestic or family violence. None of those events or type of events occurred. The applicant was apparently evicted because he did not pay rent. However, the landlord did deliver him to other premises and paid for those premises. On the next day the applicant qualified for alternative housing and the rent for the first week was paid by a local welfare agency. At all relevant times the applicant has had accommodation. He continued to receive his social security benefits. There have been no interruption in the availability to him of accommodation, nor has there been any interruption in pension payments. …
Heerey J held that the Tribunal had not erred in denying the crisis payment in the circumstances described. His Honour said (at [9]):
The eviction of a tenant who does not pay rent is a normal and inevitable consequence and the Tribunal was entitled to find that it was not, in the relevant sense, and extreme circumstance. Moreover, I think the Tribunal was entitled to look at the whole of the circumstances in which the applicant left his home.
On the basis of what was said in Arcibal, the Tribunal in Mrs Dowker’s case turned to consider all of the circumstances in which she and her partner had left their home. The following is a summary of the findings made by the Tribunal, based on the oral evidence given by Mrs Dowker and the documents admitted in evidence before it.
(1)Mrs Dowker and her partner lived at the property for about 15 years. In 2013 they experienced difficulties meeting their mortgage repayments and they were under pressure by their bank to sell the property. A local man, here named Mr P, offered to buy the property and to allow them to stay on as tenants. Mr P purchased the property and granted a 12 month lease to Mrs Dowker commencing in May 2013. Mrs Dowker and Mr P were in dispute about, among other things, the period for which Mrs Dowker and her partner were entitled to stay on as tenants.
(2)Mr P refused to renew the lease after it expired. He obtained an order for vacant possession of the property after a trial in the District Court of South Australia. Mrs Dowker appealed to the Full Court of the Supreme Court of South Australia. Her appeal was unsuccessful. The Full Court nonetheless stayed the order for vacant possession whilst Mrs Dowker applied for special leave to appeal to the High Court.
(3)Mrs Dowker appeared self-represented before Nettle J of the High Court on 15 June 2015 on an application to further stay the execution of the order for vacant possession, pending the determination of her application for special leave to appeal. Nettle J observed that the chances of Mrs Dowker and her partner succeeding on the application for special leave were “not particularly good”. His Honour continued:
More significantly, however, even on the applicants’ own case, at least as it is recorded in the Full Court’s reasons for judgment, the applicants’ agreement with the respondent went no further than that they could remain in possession as tenants for at least 24 months from the date of 9 July 2013. It therefore appears that they have now been in possession for almost the whole of the time upon which they agreed. Thus, even if the applicants were successful in their application for special leave to appeal, and succeeded in the appeal, they would still be required to vacate the property.
(4)Nettle J refused the application for the stay of the orders for vacant possession. Four days later, Mr P attended at the property with a bailiff and police and forced the eviction of Mrs Dowker and her partner. In the words of the Tribunal (at [17]):
This was a traumatic experience. They barely had time to gather some of their positions, which included 10 dogs that lived with them.
(5)After sleeping for three nights in their car, Mrs Dowker and her partner stayed in the house of a family member for two weeks. Whilst there, Mrs Dowker made her claim for the crisis payment. She told Centrelink that although the SA Housing Trust had provided her with a bond to secure alternative accommodation, there were not many properties available that would accommodate her animals and that were within a reasonable distance of medical facilities Mrs Dowker required because of certain conditions she suffers from.
On her application for review before the Tribunal, Mrs Dowker claimed that there existed an “extreme circumstance” within the meaning of s 1061JH(1)(a) of the SS Act by virtue of her having been evicted from her rental home without notice. In rejecting that submission, the Tribunal said:
20. … It is not correct to say that the eviction was without notice. The owner and landlord had not exercised any self-help remedies when the lease expired after 12 months in May 2014. In fact, there were lengthy court proceedings in which Mrs Dowker was unsuccessful at trial, and on appeal, and ultimately in the High Court with respect to her stay application which was refused.
21. I find that Mrs Dowker did in fact have considerable notice. She must have been aware that it was likely that the landlord would enforce his rights soon after the hearing on 15 June 2015 when she failed to obtain a stay. She must have been aware that it was likely that a bailiff or some other enforcement authority would attend to evict her from her property, which is what did happen on 19 June 2015.
Whilst the Tribunal accepted that the nine months in which Mrs Dowker had lived in her car was extremely traumatic and exacerbated her numerous medical conditions, the Tribunal concluded that none of those facts established an extreme circumstance that caused her to leave the property. The reason for leaving the property was, the Tribunal held, the enforcement by the landlord of the District Court order and the exhaustion by Mrs Dowker of her attempts to have the order stayed beyond July 2015.
ISSUES ARISING ON APPEAL
The appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). It is not an appeal in the strict sense. Rather, it is an action commenced within the original jurisdiction of the Court: Kowalski v Repatriation Commission [2009] FCAFC 107; (2009) 259 ALR 444 at [4]. An appeal under s 44(1) of the AAT Act is limited to questions of law.
Mrs Dowker commenced the appeal as a self-represented litigant. As originally framed, the originating application did not identify a question of law so as to attract the jurisdiction of the Court and was subject to a notice of objection to competency filed by the respondent. The Court issued a certificate pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) referring Mrs Dowker for legal assistance. Ms Walker of Counsel represented Mrs Dowker on the appeal pursuant to the referral certificate together with Ms Stanley. The Court gratefully acknowledges their assistance.
On 15 November 2016, Mrs Dowker filed an amended notice of appeal and the notice of objection to competency was not pressed by the respondent. The amended notice of appeal raises the following questions:
1.What is the proper construction of the term ‘an extreme circumstance’ for the purpose of section 1061JH(1)(a) of the Social Security Act 1991.
2.Is ‘an extreme circumstance’ for the purpose of section 1061JH(1)(a) of the Social Security Act 1991 capable arising where:
a.an applicant has caused or contributed to the circumstances which led to their leaving their home, such as where:
i.an applicant has breached the terms of the tenancy agreement in respect of that home; and/or
ii.an applicant has been forced to leave by a person exercising their legal rights to obtain possession of that home; and/or
b.an applicant had actual or constructive notice that they may be or were required to leave their home.
3.On the facts as found by the Tribunal, did the Applicant leave her home on 15 June 2015 because of ‘an extreme circumstance’ within the meaning of section 1061JH(1)(a) of the Social Security Act 1991.
These question
sturn upon the proper construction of s 1061JH(1)(a) of the SS Act. I am satisfied that they raise questions of law for the purposes of s 44(1) of the AAT Act.SUBMISSIONS
The SS Act is beneficial legislation and, accordingly, is to be interpreted liberally in favour of the person claiming social security benefits under it. The interpretation adopted must nonetheless “be restrained within the confines of the actual language employed and what is fairly open on the words used”: Khoury v Government Insurance Office(NSW) (1984) 165 CLR 622 at 638 (Mason, Brennan, Deane and Dawson JJ). As Black CJ said in Secretary, Department of Social Security v “SRA” (1993) 43 FCR 299 at 303:
Although the Social Security Act is concerned with social policy, and being remedial legislation should not receive a narrow or pedantic construction (see Rose v Secretary, Department of Social Security (1990) 21 FCR 241 at 244), the settled rules of construction apply and ordinary words used in the Act should receive their ordinary and natural meaning, unless, in accordance with the accepted rules of statutory construction, there is good reason to prefer some other meaning.
A number of preliminary observations may be made, having regard to the text of the provision and the context in which the expression “extreme circumstance” appears.
First, the expression is clearly intended to describe the reason why a person has left or cannot return to his or her home (s 1061JH(1)(a)) and the reason why it would be unreasonable to expect the person to remain in, or return to, the home (s 1061JHJ(1)(b)). It is not intended to characterise the situation a person may subsequently find himself or herself in, by reason of being unable to remaining in or return to it. That is not to say that the whole of the person’s circumstances may not be considered. However, when considering the whole of the surrounding circumstances, the enquiry is to remain focused on whether the person left or cannot remain or return to the home because of an extreme circumstance. Events occurring after the person has left the home may be taken into account insofar as they legitimately bear upon that enquiry.
Second, s 1061JH(1)(a) is to be construed having regard to s 1061JH(2). The latter provision recognises that an objectively extreme circumstance may be brought about by a person “with a view to obtaining a crisis payment”. On its terms, s 1061JH(2) recognises that an extreme circumstance may arise because, or partly because, of the conduct of the person concerned. It operates to disqualify such a person from receiving the payment only if the Secretary is satisfied that the extreme circumstance is brought about with a view to obtaining a crisis payment. The mere fact that a person has brought about the extreme circumstance will not be sufficient to disqualify the person from receiving the payment in accordance with s 1061JH(2).
Third, apart from the disqualifying operation of s 1061JH(2), there are no express words in the provision to the effect that an “extreme circumstance” could not include a circumstance brought about, whether wholly or partially, by the very person claiming the crisis payment.
Fourth, the fact that a person is in severe financial hardship is a separate and distinct criterion qualifying a person for a crisis payment: s 1061JH(1)(f)(i). However, there is nothing to suggest that severe financial hardship might not also be recognised as a factor constituting or contributing to an extreme circumstance within the meaning of s 1061JH(1)(a).
Counsel for Mrs Dowker submitted that the word extreme “requires consideration of the degree to which the circumstance is removed from or outside of ordinary or average circumstances”. That submission, too, is to be accepted, subject to the proper focus of the enquiry identified earlier in these reasons.
In Arcibal, Heerey J referred to the Oxford English Dictionary definition of the word extreme as “presenting in the utmost degree some particular characteristic”. By referring with approval to that definition, his Honour should not be understood as saying that a circumstance will not be extreme if a circumstance even more removed from the ordinary or average is capable of being imagined.
In Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 487 Foster J referred to the statutory phrase “extreme hardship” in the Migration Act 1958 (Cth) as connoting:
… an area within which an ascertainable burden of hardship may fall and properly merit the description ‘extreme’. Within that area that area there may be varying degrees of burden, one less than another, but each meriting the description …
See also Kumar v Minister for Immigration and Ethic Affairs (1997) 50 ALD 488 at 492.
The same is true of the word extreme in the present statutory context. I do not understand the respondent to contend otherwise.
An extreme circumstance may, Counsel submitted, “arise by a single event or by the convergence of a number of factors at a point in time”. That submission should also be accepted.
Blameworthiness and victimhood
Mrs Dowker’s submissions in relation to the second question of law identified on the amended notice of appeal focused in large part on the question of whether a crisis payment may be made to a person who has brought upon themselves the extreme circumstance necessitating departure from his or her home. The phrase “extreme circumstance” was, Counsel submitted, not concerned with questions of moral blameworthiness or deservedness.
Reliance was placed on the policy document Guide to Social Security Law (the Guide). The Guide states (at 3.7.4.20) that an “extreme circumstance” for the purpose of s 1061JH(1)(a) may include a scenario in which a person who is an alleged or actual perpetrator of domestic violence cannot return to the home for legal reasons. By analogy, it was submitted, an extreme circumstance may include a scenario, such as the present, in which the owner of a property enforces a legal order to secure vacant possession.
Counsel for the respondent acknowledged that the Guide is a policy document of a kind that is to be followed by an administrative decision-maker unless there are cogent reasons to the contrary: ReDrake v Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634. The respondent points to pt 3.7.4.60 of the Guide which states that a crisis payment is not payable where a person is evicted from his or her home because such a person is not a “victim of an extreme circumstance for the purpose of the Crisis Payment”.
I accept that the Guide is in the nature of a policy document that may, of course, be used by decision-makers in the administration of the SS Act, provided that it is consistent with the requirements of the SS Act itself. To the extent that it is not consistent with the SS Act, then it should not, of course, be followed.
To the extent that the Guide refers to a person evicted from their home not being a “victim of an extreme circumstance” and so not qualifying for the payment, to my mind the Guide introduces a disqualifying criterion that does not find expression in the SS Act itself. The Guide seems to recognise that a lawful eviction necessitating the removal of a person from their home may constitute an extreme circumstance, but purports to preclude payment to a person who has brought that extreme circumstance (being the eviction) upon him or herself, because they are not to be regarded as a “victim” of it. A standalone criterion based upon notions of victimhood or moral blameworthiness is not expressly included among the criteria in s 1061JH(1) of the SS Act. Nor is there any basis to imply an absolute and unqualified disqualifying criterion of that kind, save to the extent that a claim for crisis payment is contrived in a way contemplated by s 1061JH(2). There is no suggestion that s 1061JH(2) applies in Mrs Dowker’s case.
If Parliament had intended that a crisis payment only be available to persons who must leave their home through no fault of their own, plain words could have been used to achieve that end. But not such words are used.
The phrase “extreme circumstance” nonetheless permits consideration of the extent to which the reasons for leaving a home (such as a forcible eviction) might have been reasonably anticipated and therefore avoided. However, those considerations are not to be treated as determinative in all cases, and the weight to be afforded such consideration is for the decision-maker, acting reasonably and within the confines of his or her powers.
Furthermore, where a person is lawfully evicted from a home, it would be incorrect to say that the eviction in and of itself is the reason why a person has left the home and cannot return to it, and to disregard what may be a complex array of preceding events or circumstances culminating in and justifying the landlord’s right to evict. The task of identifying the reason why a person has left his or her home, or cannot return to it, is not restricted to identifying the most recent precipitating factor. The beneficial legislation requires a more expansive enquiry, such that the entire history of events, dealings and relationships culminating in the person leaving the home are to be considered. Thus, where a breach or the expiry of a tenancy occurs so culminating in a lawful eviction, it is not sufficient to say that the eviction is an ordinary legal consequence of the breach or the expiry, and therefore not capable of being an extreme circumstance. Proper regard may, indeed must, be given to all of the circumstances in which the breach or expiry of the lease has occurred.
It is against these broader observations that the second and third questions of law are to be determined.
The second question should be answered “yes”.
The question is expressed in terms of whether certain facts, whether alone or in combination, are capable of giving rise to an extreme circumstance. Whether or not factors of the kind set out in the second question constitute an extreme circumstance in a given case may depend upon (without being exhaustive) the reasons for the breach or expiry of the tenancy and the reason why the person persisted in his or her occupation of the home to the point of his or her forcible eviction, rather than establishing alternative accommodation. The degree to which a person’s reasons for leaving the home are removed from the ordinary or average must be assessed against all of the surrounding circumstances.
The third question, being a mixed question of fact and law, should be answered “no”.
The Tribunal properly took the whole of the surrounding circumstances into account. The circumstances were not as simply stated as the bare facts set out in the second question of law. The Tribunal was entitled to have regard to the suddenness and predictability of the eviction, and to the whole of the historical legal dispute, because those factors went to explain why Mrs Dowker had persisted in her occupation of the property to the point of her forcible removal.
Importantly, the Tribunal rejected Mrs Dowker’s allegation of fact that she had no notice of her impending eviction. It is clear that the Tribunal placed significant weight on the circumstance that Mrs Dowker “must have known” that she may not be permitted to remain in the property. On a fair reading of the Tribunal’s reasons, little or no weight was given to Mrs Dowker’s claim that the eviction occurred in circumstances giving her little time to gather her possessions and no time to arrange alternative accommodation in advance. Importantly, Mrs Dowker did not allege before the Tribunal that she had in fact made reasonable but unsuccessful attempts to find alternative accommodation in the event of her eviction so as to explain her remaining in occupation of the property through to the date of her traumatic eviction. Nor did she allege that she was disabled in any physical or mental sense from anticipating and avoiding her forcible eviction.
It is implicit in the Tribunal’s reasons that Mrs Dowker remained in occupation of the property, thus necessitating her forcible removal, because she had enjoyed the benefit of the stay of the District Court’s order and was resolute in her hope that the stay would continue and her appeal would succeed.
It is all of these features of the case that led the Tribunal to conclude that the circumstances because of which Mrs Dowker left the property were not extreme. That conclusion was open to it on the unchallenged facts.
Accordingly, the appeal should be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 5 October 2017
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