Haider v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2010] FCA 841
•29 July 2010
FEDERAL COURT OF AUSTRALIA
Haider v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 841
Citation: Haider v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 841 Appeal from: Application for extension of time: Administrative Appeals Tribunal (oral decision) Parties: SOUAD HAIDER v SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS File number: VID 223 of 2010 Judge: NORTH J Date of judgment: 29 July 2010 Date of hearing: 29 July 2010 Date of last submissions: 29 July 2010 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 16 Counsel for the Appellant: Mr Haider (applicant's son, appeared in person) Counsel for the Respondent: Mr D. Brown Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 223 of 2010
BETWEEN: SOUAD HAIDER
ApplicantAND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
29 JULY 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application for an extension of time within which to file an appeal against the decision of the Administrative Appeals Tribunal made on 16 December 2009 is dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 223 of 2010
BETWEEN: SOUAD HAIDER
ApplicantAND: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
JUDGE:
NORTH J
DATE:
29 JULY 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
Before the Court is an application for an extension of time in which to commence an appeal against a decision of the Administrative Appeals Tribunal. The time within which an appeal must be commenced is no later than 28 days after the terms of the decision are given to the applicant (s 44(2A)(a) of the Administrative Appeals Tribunal Act1975 (Cth) (the Act)). In this case, the decision of the Tribunal was made on 16 December 2009 and received by the applicant on 22 December 2009. The application for an extension of time was filed by solicitors acting on behalf of the applicant on 31 March 2010.
Some relevant factors to be taken into account in the consideration of an application for an extension of time are:
a) whether an explanation for the delay in making application has been explained;
b) whether there is prejudice to the respondent in the grant of an extension of time; and
c) whether the appeal would, if able to be prosecuted, have a reasonable prospect of success.
It is accepted by the respondent that the applicant has provided an explanation for the delay. Furthermore, it is accepted by the respondent that he would not be prejudiced by the grant of an extension of time. Therefore, the application turns on a consideration whether the appeal has a reasonable prospect of success.
Such consideration involves a question of statutory construction. Before 20 September 2000, the relevant legislation provided that the rate of payment of an age pension would not be affected by a person leaving Australia. This situation was changed from 20 September 2000 so that the rate of age pension would be reduced on a specified formula if a person left Australia for more than 26 weeks. However, there was a saving provision which protected those who already qualified for the age pension. For such people, sch 1 cl 128 of the Social Security Act 1991 (Cth) as amended (cl 128), provided that the reduction provision did not apply provided that after 20 September 2000:
The person had not returned to Australia for a continuous period of 26 weeks or more since 20 September 2000.
THE FACTS
The facts concerning the application are not in issue. The applicant was born on 5 May 1924 in Lebanon. She arrived in Australia on 27 October 1983. After 10 years residence in Australia, she was entitled to, and granted, the age pension from 4 November 1993. On 24 July 1994 she returned to Lebanon where she lived for a number of years. On 22 August 2003 she returned to Australia to visit her children, all of whom continue to reside in Australia. She was then aged 79.
Soon after returning to Australia, she fell and fractured both wrists. As a result, she was hospitalised for a number of weeks, and both arms were placed in plaster for three or four months. She required Council assistance in order to undertake the ordinary activities of caring for herself. Her doctor refused to let her go back to Lebanon in such a condition. It was not until July 2004 that she returned to Lebanon together with her granddaughter, who accompanied her in order to provide the care which she needed and which was otherwise unavailable to her in Lebanon. The evidence established that the applicant’s visit to Australia was extended on account of the unfortunate injury which she suffered.
Evidence was produced during the hearing before the Tribunal that the Commonwealth publicised the change in the law in a publication sent to recipients of the age pension. Despite this, it was also accepted that the applicant did not receive those publications in Lebanon prior to her visit to Australia. It was accepted that she was not aware of the legislative change.
It was established therefore that the applicant remained in Australia in 2003 for a period of more than 26 weeks. In September 2007, a review officer determined that the saving provision did not apply to the applicant’s circumstances and the applicant’s pension was, therefore, affected by the new reduction provisions which operated from 20 September 2000.
This had a dramatic effect on the applicant. In 2007 the full rate of pension was $1,050.20 every four weeks. The reduced rate for the applicant was $25.52 every four weeks. The decision of the review officer on this question was upheld, first, by the Social Security Appeals Tribunal and then by the Tribunal.
THE CONSTRUCTION OF CLAUSE 128
The applicant seeks an extension of time so that she might appeal from the decision of the Tribunal. Such an appeal may only be brought on a question of law (s 44 of the Act). The ground of appeal sought to be raised by the applicant involves the construction of cl 128. The applicant contends that because she was forced by circumstances to stay in Australia beyond 26 weeks, the situation does not fall within the requirement that the person has returned to Australia. Clause 128 should be construed by reference to the intention of the person to return to Australia rather than by consideration of that person’s physical presence.
The applicant was initially represented in this Court by a solicitor who filed an outline of argument which emphasised the undisputed fact that the applicant only intended to return to Australia for a short stay. The submission argued that the word ‘return’ in cl 128 involved some volition. It argued that the applicant returned to Australia for the purpose of a family visit but stayed for the period in excess of 26 weeks. That was not, it was argued, the purpose for the return. The purpose was frustrated by the accident.
In my view the Tribunal was correct in determining that the saving provision did not apply to the applicant. The language of cl 128 is clear beyond argument. It does not provide for any mental element in the circumstances which bring the applicant to Australia. The only matter relevant for the operation of the provision is the physical fact of presence in Australia for the designated period. It follows that the appeal is bound to fail. Consequently it would be inappropriate to extend the time for bringing the appeal.
The Tribunal said:
My difficulty, as is often the case in these cases, is that, unfortunately, fairness and equity isn’t an over-riding factor in the legislation. I can only make a decision in accordance with the legislation. Often with these type of provisions there is a discretion which allows Centrelink, and then ultimately, this tribunal, to say if there are special circumstances, then you can ignore the provision of the law. Unfortunately in this particular provision there is no such discretion. It’s fairly plain words that the old provisions still apply unless you return to Australia and stay more than 26 weeks. So, it’s one of those where I feel very sympathetic and I would love to find a way in which we could overcome this provision of the legislation.
I echo the same sentiments. This is clearly a case in which the legislation operates harshly. It is most unfortunate to have had to come to the conclusion that an elderly lady otherwise entitled to a full pension is, by the operation of the legislation, forced to live on a very small percentage of the full pension. The situation arose completely without fault on her part and as a result of an unfortunate accident. The extension of her stay arose because of the ordinary family responsibility assumed by her children in Australia and on the advice of medical practitioners treating her. Whilst the words of the legislation are plain, it is likely that if such a situation had been drawn to the attention of parliament at the time these words were adopted, it would have made a provision for some mitigation in deserving circumstances such as the present. The applicant was represented on this application by her son. The limitation of the powers of the Court was explained to him and he accepts that the unfortunate position is one which the Court cannot remedy. It is to be hoped, however, that the authorities will give consideration to ameliorating the difficulties faced by the applicant.
COSTS
The respondent was represented by Mr Brown, a solicitor from the Australian Government Solicitor. He indicated that in the event, as has occurred, that the application was dismissed, the respondent would not seek costs. This, he explained, was partly as a result of the fact that the solicitors acting for the applicant had withdrawn just prior to the hearing of the application. The position announced by Mr Brown was the only proper approach to the question of costs in the circumstances. What was particularly commendable was that Mr Brown acted on his own initiative and took responsibility for instructions from the client. I regard his action as in the best traditions of the legal profession.
The order of the Court will be that the application for an extension of time within which to appeal against the decision of the Tribunal made on 16 December 2009 is dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 11 August 2010
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