Secretary, Department of Social Security v Secara & Ors
[1998] FCA 1510
•26 NOVEMBER 1998
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal - qualification for special benefit - principles governing exemption from newly arrived resident’s waiting period - whether change in circumstances must occur after arrival in Australia - erroneous belief that waiting period six months - resources sufficient for support for that period -whether learning of two year waiting period a substantial change in circumstances - belief formed following proper enquiry - whether change beyond person’s control.
WORDS AND PHRASES – “substantial change in circumstances beyond the person’s control”.
Acts Interpretation Act 1901 (Cth), ss 48(4) and 21(b)
Administrative Appeals Tribunal Act 1975 (Cth), s 44
Social Security Act 1991 (Cth), ss 23(1)(g), 201AA, 729(1), 729(2), 732(1), 739(1), 739A(7), 739B and 739C
Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997 (Cth), ss 2(1) and 3
Re Spooner & Secretary, Department of Social Security (1985) 3 AAR 345, considered
Re Zoarder and Department of Social Security (1998) 26 AAR 342, approved
Re Chelechkov and Antipina and Department of Social Security (1998) 26 AAR 321,
considered
Secretary, Department of Social Security v Cooper (1990) 26 FCR 13, approved
Atomic Skifabrik Alois Rohrmoser v Registrar of Trade Marks (1986) 13 FCR 199,
considered
Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997)
76 FCR 426, applied
Minister for Immigration and Ethnic Affairs v Tang (1993) 47 FCR 176, considered
Trade Practices Commission v Sun Alliance Ltd (1994) ATPR 41-286, approved
BT Australia Ltd v Bell Bros Pty Ltd (1981) 27 SASR 557, considered
Wentworth v Wentworth (1995) 37 NSWLR 703, considered
Federal Commissioner for Taxation v Arklay (1989) 22 FCR 298, applied
SECRETARY, DEPARTMENT OF SOCIAL SECURITY v CALIN-AL SECARA, ALINA-ANCA SECARA, and VLAD SECARA
SG 47 of 1998
VON DOUSSA, O’LOUGHLIN and MANSFIELD JJ
ADELAIDE
26 NOVEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 47 of 1998
BETWEEN:
SECRETARY, DEPARTMENT OF SOCIAL SECURITY
ApplicantAND:
CALIN-AL SECARA,
ALINA-ANCA SECARA, and
VLAD SECARA
RespondentsJUDGES:
VON DOUSSA, O'LOUGHLIN and MANSFIELD JJ
DATE OF ORDER:
26 NOVEMBER 1998
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
The appeal be allowed.
The decision of the Administrative Appeals Tribunal be set aside.
The decision of the Secretary by the delegate in respect of each claim for special benefit be restored.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 47 of 1998
BETWEEN:
SECRETARY, DEPARTMENT OF SOCIAL SECURITY
ApplicantAND:
CALIN-AL SECARA,
ALINA-ANCA SECARA, and
VLAD SECARA
Respondents
JUDGES:
VON DOUSSA, O'LOUGHLIN and MANSFIELD JJ
DATE:
26 NOVEMBER 1998
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
VON DOUSSA J:
I agree with the reasons for judgment prepared by Mansfield J, and with the orders he proposes.
I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.
Associate:
Dated: 26 November 1998
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 47 of 1998
BETWEEN:
SECRETARY, DEPARTMENT OF SOCIAL SECURITY
ApplicantAND:
CALIN-AL SECARA,
ALINA-ANCA SECARA, and
VLAD SECARA
Respondents
JUDGES:
VON DOUSSA, O'LOUGHLIN and MANSFIELD JJ
DATE:
26 NOVEMBER 1998
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
O’LOUGHLIN J:
I agree with the reasons for judgment prepared by Mansfield J, and with the orders he proposes.
I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.
Associate:
Dated: 26 November 1998
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 47 of 1998
BETWEEN:
SECRETARY, DEPARTMENT OF SOCIAL SECURITY
ApplicantAND:
CALIN-AL SECARA,
ALINA-ANCA SECARA, and
VLAD SECARA
Respondents
JUDGES:
VON DOUSSA, O'LOUGHLIN and MANSFIELD JJ
DATE:
26 NOVEMBER 1998
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
MANSFIELD J:
This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) by the Secretary, Department of Social Security (“the Secretary”) from two decisions of the Administrative Appeals Tribunal (“the AAT”) given on 12 March 1998. As the AAT was constituted by the President, the appeal is to the Full Court.
The decisions of the AAT concerned two applications, both made on 1 August 1997, by Calin-Al Secara and Alina-Anca Secara and separately by their son Vlad Secara, for special benefit under the Social Security Act 1991 (“the SS Act”). I shall refer to Calin-Al Secara, Alina-Anca Secara and Vlad Secara collectively as the Secaras as it appears that at no stage in the proceedings was a relevant point of discrimination between their respective positions identified. This appeal was conducted as if their interests were the same. The special benefit is, in essence, a payment of last resort under the SS Act made to people who are otherwise ineligible for a pension. The President of the AAT has described the special benefit as designed to enable a basic level of living, at a standard something more than mere survival: Re Spooner & Secretary, Department of Social Security (1985) 3 AAR 345 at 354.
At the time of the applications for special benefit, there was a two year residential qualifying or waiting period (“the newly arrived resident’s waiting period”), unless under s 739A(7) of the SS Act that waiting period did not apply.
The delegate of the Secretary, the Authorised Review Officer, and the Social Security Appeals Tribunal had each decided that the Secaras were not entitled to special benefit under the SS Act. That was because the special benefit was not payable during the newly arrived resident’s waiting period. The AAT reversed those decisions and ordered that each of the applications should be remitted to the Secretary to determine the Secaras’ entitlement to special benefit under the SS Act, with a direction that the newly arrived resident’s waiting period did not apply to them as they fell within the operation of s 739A(7) of the SS Act.
BACKGROUND
The Secaras lived in Bucharest, Romania. In 1993, they applied to emigrate to Australia. On 30 September 1996 they were first notified that their applications had been successful. That was by letter of that date from the Australian Embassy, Belgrade, Migration Section. That letter informed them that they were entitled to work in Australia, but stressed that the grant of a visa provided no guarantee of employment in Australia. It gave certain information as to the payment of social security benefits under the SS Act in the following terms:
“You will NOT be eligible to receive Job Search Allowance – (JSA) or Sickness Allowance (SA) for the first 26 weeks after your arrival. This means that during this period you must support yourself financially or seek support from your relatives or friends.”
The letter did not refer to special benefit under Pt 2.15 of the SS Act, which at that time was not subject to any qualifying period.
The Secaras then started to prepare for their move to Australia, including attempting to sell their apartment in Bucharest. They had some difficulty in selling that apartment, but in March 1997 were able to do so, albeit for a considerably lesser sum than they had first anticipated. At that time they expected to have about $US2000 to bring into Australia, and they contacted friends in Australia who told them they would provide assistance to the Secaras if necessary during what they understood to be the twenty-six week waiting period. It was upon that basis that they proceeded to sell their apartment. In fact, when they left Romania and arrived in Australia on 5 May 1997, they had only about $US1400 after payment of air fares and other expenses, including English lessons and a sum for Mrs Secara’s mother in Romania. At that point, as the AAT found, they had organised their affairs so that they could accommodate if necessary a twenty-six week waiting period until eligibility for benefits under the SS Act. They hoped to obtain employment to support themselves well within that period.
In the meantime, in February 1997, the Secaras had been telephoned by friends in Australia. They were urged to migrate soon, as the legislation might change and the waiting period might be extended. Mrs Secara then promptly telephoned the Australian Embassy in Belgrade to ask about any such change. She was told that the Embassy officers knew nothing of any change in the legislation, and that so far as they were aware the twenty-six week waiting period still applied.
The SS Act had not changed at that time. It changed on 4 March 1997 when the Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods And Other Measures) Act 1997 (“the amending Act”) relevantly came into force. Counsel for the Secretary informed the Court that the Bill to amend the SS Act was passed by the House of Representatives on 30 May 1996, and then by the Senate with amendments on 3 December 1996. The Bill as amended by the Senate was agreed to by the House of Representatives on 13 February 1997. Section 2(1) provided for its relevant provisions to commence on the day on which it received the Royal Assent. That assent was given on 4 March 1997.
Soon after their arrival in Australia, the Secaras rented an apartment. Their rental, their normal living expenses and establishment expenses quickly used up their available funds, but with the assistance of the friends as promised, they were able to maintain themselves for the first twenty-six weeks of their time within Australia. Unfortunately, they were not able to obtain employment within that period. Their friends have been unable to support them beyond that period. They are, and apparently have been for some time, effectively destitute. They receive fortnightly payments consisting of the family payment and rental assistance of $134.00 which does not even cover the rental.
On 7 May 1997, shortly after their arrival in Australia, the Secaras went to a Commonwealth Employment Services office in Adelaide as a first step to seeking employment. They then learnt for the first time of the newly arrived resident’s waiting period applicable to them. Prompted by that knowledge, Mr Secara and Vlad then applied for a Newstart allowance and special benefit, and Mrs Secara made a claim for parenting allowance and special benefit. Mrs Secara’s claim for family payment was allowed. As noted above, the other claims were refused because the Secaras were within the newly arrived resident’s waiting period. Then on 12 March 1998 the AAT reversed those decisions in relation to the claim for special benefit. It is that decision of the AAT from which this appeal is brought.
But for the changes to the SS Act introduced by the amending Act, the Secaras would have qualified for special benefit under the SS Act upon application, and for Newstart allowance after twenty-six weeks.
THE LEGISLATION
The amending Act relevantly came into force on 4 March 1997.
The amending Act, inter alia, extended the time before new migrants into Australia could become entitled to certain social security benefits under the SS Act to two years, and it applied that waiting time to special benefit under the SS Act. The references to the SS Act below incorporate the amendments effected by the amending Act.
Sections 729 - 731 deal with qualifications for special benefit. Section 729(1) provides that:
“A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.”
Section 729(2) contains a series of criteria which the Secretary is required to have regard to before determining that a special benefit should be granted under the Act. Subsection (e) provides:
“The Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person’s dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason;”
Until the AAT decision of 12 March 1998, as it had been determined on the applications that special benefit was not payable to the Secaras in any event, the Secretary had not needed to address that criterion. The AAT, having decided that the special benefit was payable to the Secaras notwithstanding that the newly arrived resident’s waiting period had not expired, remitted the matter to the Secretary for further consideration for the Secretary to address eligibility under s 729 of the SS Act including subs (2)(e).
Sections 732-739 of the SS Act deal with the payability of special benefit. Section 732 relevantly provides:-
“(1)Even though a person might otherwise be qualified for a special benefit, the benefit may not be payable to the person because:
…
(da)the person is subject to a newly arrived resident’s waiting period and that period has not ended (see section 739A); or
…”
Section 739A(1)(a) then provides that, subject to that section, a person who enters Australia on or after the commencement of s 732(1), namely 4 March 1997, is subject to the newly arrived resident’s waiting period. Thus, subject to any other relevant provisions, the Secaras, who entered Australia on 5 May 1997, are subject to a newly arrived resident’s waiting period. That period, in respect of a claim for a special benefit under the SS Act is two years: see s 23(1)(g) and s 201AA.
There is no issue as to any of those matters.
It is accepted that, but for s 739A(7), the Secaras would not be eligible to be paid special benefit under the SS Act until 4 May 1999.
Section 739A(7) of the SS Act provides:
“Neither subsection (1) nor (2) apply to a person if the person, in the Secretary’s opinion, has suffered a substantial change in circumstances beyond the person’s control.”
It is the only relevant subsection of s 739A to provide an exemption to the operation of s 732(1). As the President of the AAT said, the construction of that provision is the central issue in the case.
It is appropriate to note briefly some other relevant provisions. Section 739B of the SS Act provides that the Secretary must exercise the powers under s 739A(7) “in accordance with guidelines from time to time in force under subsection 739C(1)”. That subsection provides for the Minister, by determination in writing, to set guidelines for the exercise of the Secretary’s power. Such a determination is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901. On 21 March 1997, the Minister gazetted guidelines under s 739C. Within those guidelines was a paragraph providing that an unsponsored claimant for special benefit will not be entitled to special benefit unless the Secretary is satisfied that the claimant’s available funds are not depleted due to one of a number of listed events. The Secaras’ circumstances do not fall within any of those categories. On 25 June 1997, the guidelines as gazetted were disallowed by the Senate pursuant to s 48(4) of the Acts Interpretation Act 1901. The President of the AAT followed her earlier ruling in Re Zoarder and Department of Social Security (1998) 26 AAR 342 in concluding that it is the current law that is to be applied in respect of the Secaras’ applications, so that the Minister’s guidelines are of no binding force. No further ministerial guidelines have been set under s 739C(1). Counsel for the Secretary on this appeal did not seek to gainsay that conclusion.
There is one other incidental matter to which reference should be made. On 10 July 1997, the Secretary issued an instruction containing guidelines to assist delegates in reaching an opinion under s 739A(7). Those guidelines do not purport to be binding on decision makers, and have no statutory effect. For the purposes of this appeal, nothing turns upon those guidelines, and it is not suggested that the Secaras’ circumstances fall within any of the categories referred to within them.
Section 3 of the amending Act generally addressed the operation of the SS Act as amended, including transitional consequences. It relevantly provides:
“(1)To avoid doubt, any provision in this Act imposing a waiting period does not apply to:
…
(f)a person who has lawfully been a permanent resident of Australia at any time for a continuous period of not less than two years; or
…”
Clearly, it was the legislative intention that the amendments to the SS Act introduced by the amending Act should apply to persons in the position of the Secaras, or to any person who becomes a lawful permanent resident of Australia after 5 March 1997.
THE CIRCUMSTANCES
As the AAT noted, there is no real dispute as to the facts. The Secaras were not informed until they arrived in Australia that the newly arrived resident’s waiting period applied in their case. The Secretary nevertheless contends that they have suffered “no substantial change in circumstances beyond [their] control” under s 739A(7) of the SS Act, so that their entitlement to be paid special benefit under the Act cannot come into effect until 4 May 1999.
The Secaras relied upon two changes in circumstances.
One was the change in economic circumstances in Romania between late 1996 and early 1997 so that the realisable value of their apartment was less than half that expected by them, and consequently the funds available to them upon their arrival in Australia for their support were very much less than they had expected. The AAT adhered to the decision of the Secretary through the delegate, and on review, that in the particular circumstances those matters did not constitute a change in circumstances for the purposes of s 739A(7). That was because the decisive commitment to migrate to Australia was the sale of their apartment in March 1997. At that time, the change in economic circumstances had already occurred so the shortage of funds available to them upon arrival in Australia was not attributed to a change in economic circumstances after the decision to migrate, but to the decision to migrate in the light of the decline in the value of the apartment.
That matter was not raised by way of cross contention on this appeal. Subject to one question, it is not raised on the appeal and it is not necessary to address it further. The one question outstanding arises because the Secretary disputes that a change in circumstances which occurs before an intended migrant leaves his or her country of origin is capable of constituting a change for the purposes of s 739A(7). The AAT adopted the ruling in Re Chelechkov and Antipina and Department of Social Security (1998) 26 AAR 321 in holding that, in appropriate circumstances, an event which occurs before a migrant enters Australia may constitute a relevant change in circumstances. The question arose because the AAT applied that ruling when considering that claimed change in circumstances. It also falls for consideration with respect to the other change upon which the Secaras rely. That is the change in circumstances found by the AAT to fall within s 739A(7) so that the newly arrived resident’s waiting period did not apply to them.
That second change in circumstances, and the one which the AAT found attracted s 739A(7), is as follows:
“In the applicants’ case, a relevant ‘change’ took place when they arrived in Australia with resources (including assistance from friends) sufficient to last them for six months and discovered, for the first time, that the waiting period was not six months but two years, with the result that their resources were sufficient to see them through only a quarter of the requisite period. This, on any view of the matter, was a substantial change. That it was beyond the control of the applicants follows inexorably, in my view, from the undisputed fact that the applicants had no way of knowing of the two year waiting period before their arrival in Australia. Indeed they were given positively inaccurate information on this matter.”
That finding or conclusion was made on the basis of the learned President concluding that the difference between a migrant’s expectations as to a relevant aspect of life in Australia (such as cost of living, employment prospects or, as in the present circumstances, social security assistance) and, on the other hand, the reality of life in Australia is capable of constituting a change of circumstances for the purposes of s 739A(7). Such a change, so the AAT held, may occur when a migrant with false expectations as to life in Australia is confronted with, and required to accommodate to, the reality. The President added:
“The circumstances have both a subjective component (the migrant’s expectations) and an objective one (the reality of life here). Whether the change is a substantial one will depend upon the facts of each case. Whether it is beyond the control of the migrant will usually depend upon the source of the erroneous belief in the first place. If the migrant’s expectation is merely the product of wishful thinking or a failure to make appropriate enquires, then the change which occurs when expectation meet [sic] reality is probably not beyond the person’s control. However if the migrant’s erroneous belief as to life in Australia is the product of misleading, inaccurate or inadequate information received in the country of origin, then the difference between the expectation and the reality might well constitute a change in circumstances beyond the person’s control.”
The applications were sent back to the Secretary for further consideration for the reason described above, with the direction that the newly arrived resident’s waiting period did not apply to the Secaras.
THE SECRETARY’S CONTENTIONS
Principally, counsel for the Secretary contended that, on the events found by the AAT, it had erred in law in concluding that the Secaras had suffered a substantial change in their circumstances beyond their control, under s 739A(7). From 4 March 1997, when the amending Act introduced the newly arrived resident’s waiting period in respect of special benefit, it was argued that no change within the meaning of s 739A(7) occurred. The Secaras had an apartment which they were endeavouring to sell. They were in the process of completing their preparations to migrate to Australia. They finally committed to migrate to Australia later in March 1997, when they sold their apartment. At that time, the amending Act had commenced. From the time of its commencement, there was no real change in the amount of money they could have brought to Australia. The only “change” was their learning of the newly arrived resident’s waiting period shortly after their arrival, and so their learning of the need to provide for themselves from the funds available to them and from their friends’ support for that longer period rather than for the period of twenty-six weeks, in the event that they were unable to obtain employment. It was argued that such a change in their “expectations” could not constitute a change in circumstances because, s 739A(7) requires a change external to the Secaras, as opposed to a change in their internal expectations or thought processes.
It was argued, alternatively, that the only change was a change in their understanding of the law, as the law itself was the same from 4 March 1997 before they had finally committed to migration, and that awareness or understanding of the law could not constitute a change in circumstances under s 739A(7). In that regard, it was contended that the Secaras had been told what the law was, both by the letter of 30 September 1996 and in the telephone conversation of February 1997. They were not then misled as to the law. They were aware that the qualifying period might change. It could not be expected that the Australian Embassy would have detailed knowledge of the progress of all Bills before the Parliament. The telephone conversation may have preceded, or been around the time of, the Bill leading to the amending Act being further considered by the House of Representatives.
It was also contended that any change in circumstances was not one “beyond their control”. It was contended in this regard that the Tribunal erred in finding, in the passage quoted above, that it was “an undisputed fact” that the Secaras had no way of knowing of the newly arrived resident’s waiting period before their arrival in Australia.
An underlying, and alternative, contention by counsel for the Secretary was that noted above, namely that no event which occurs before a migrant arrives in Australia may constitute a relevant change in circumstances, or part of a relevant change in circumstances, for the purposes of s 739A(7).
CONSIDERATION OF CONTENTIONS
It is convenient to deal with that last mentioned submission first.
In Chelechkov (above, at 328-330), Matthews J expressly addressed the issue. Her Honour referred to the Second Reading Speech of the Minister for Immigration and Multicultural Affairs on the Bill leading to the Amending Act (Hansard, House of Representatives, 23 May 1996, 1311-1313) and to s 21(b) of the Acts Interpretation Act 1901 (Cth), and noted that the SS Act is beneficial legislation to be interpreted generously: Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 at 18. Her Honour concluded:
“Each case needs to be determined according to its own facts. It will no doubt be unusual for a change in circumstances which occurs before a migrant leaves his or her country of origin to fall within subs (7). This is because subs (7) will only apply to changes which are directly responsible for the migrant’s state of poverty in Australia.
…
It will be a question of fact in each case as to whether, at the time of the change relied upon under subs (7), the applicant retained a realistic choice as to whether to continue with the migration or not. The further back in time one goes between the arrival in Australia and the event which is relied upon as constituting the change, the less likely it will be that the person was irrevocably committed to the migration process. If he/she had not reached that stage then it could not be said that the person’s poverty in Australia was attributable to the change, but rather to the decision to migrate notwithstanding the change.”
I agree with her Honour’s reasons and conclusion.
There is no word or words in s 739A(7) which either expressly or by inference limit the time at which the change in circumstance may occur. I do not see any reason in logic or in fairness why a temporal limitation by reference to the person’s arrival in Australia should be specified. Take for example, a person migrating to Australia who has arranged employment in Australia, but whose proposed employer ceases trading before the employment actually commenced. Assuming such a change in circumstances is both ‘substantial’ and beyond that migrant’s control, why should s 739A(7) apply only if the ceasing to trade occurred after the migrant arrived in Australia? It may have occurred immediately before the journey to Australia commenced, but after the person was irrevocably committed to migrating to Australia. It may have occurred whilst that person was in transit. One can readily multiply examples.
In my judgment, the point at which in a sensible and realistic way it can be said that the person irrevocably committed to migrating to Australia marks one point in time from which s 739A(7) may operate. Earlier than that point, as Matthews J pointed out, any financial adversity in Australia due to a change of circumstances may well not be attributable to the change but due to the decision to migrate notwithstanding the change. I do not wish to be taken as indicating that there will be no cases in which a change in circumstances which occurs before an intending migrant irrevocably commits to migration to Australia may not constitute a relevant change in circumstances for the purposes of s 739A(7). One can posit, by way of example, the employment arrangement assumed above where the proposed employer, unbeknown to the migrant, ceases trading before that person irrevocably commits to migration. It may be that, in such a case, the verb “suffers” may indicate that it is the time when the intending migrant first learns of that circumstance in relation to the time when there is an irrevocable commitment to migration which is the critical point. It is sufficient in my view to indicate that s 739A(7) does not require as a matter of law that the event giving rise to or contributing to the “change in circumstances” must occur after the intending migrant has arrived in Australia. It will then be a matter of applying s 739A(7) to the particular facts before the relevant decision maker.
I turn to address the principal matters argued by counsel for the Secretary.
In Atomic Skifabrik Alois Rohrmoser v Registrar of Trade Marks (1986) 13 FCR 199, Jenkinson J addressed the phrase “circumstances beyond the control” in s 131(1) of the Trade Marks Act 1955(Cth). The Registrar had refused an application for an extension of the time for lodging notice of opposition to the registration of a trade mark. Section 131(1)(a) enabled the Registrar to extend that time if the failure was by reason of “circumstances beyond the control” of the person concerned. The failure to lodge notice of opposition within the time allowed was due to the negligence of an employee of the patent-attorney in the performance of her duty. Jenkinson J at 206 concluded:
“In the context in which it is found, the expression “circumstances beyond the control of the person concerned” does in my opinion designate – and designates only – occurrences which neither the person concerned nor any person acting on his behalf to do the act or take the step could prevent. The operations of nature and the activities of strangers may result in such occurrences. So, too, may the acts and omissions of certain independent contractors engaged by the person concerned or by his agent, as for example the carrier of mail or the office cleaner, either of whom causes the loss or destruction of a document to be filed. But the acts or omissions of the agent who on behalf of the person concerned is to do the act or take the step are not occurrences of the description specified in s 131(1)(a), in my opinion. Nor, in my opinion, are the acts or omissions of that agent’s servants. The section is I think, correctly described as a force majeure provision.”
His Honour thus found that s 131(1)(a) was not available because the control of the patent attorney or the employee of the patent attorney reflected or represented the control of the principal, so that the oversight of that person was not of such a character as to enliven that power to extend time.
The Court was also referred to Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 76 FCR 426. That case concerned, inter alia, review of a decision under the Social Security Act 1991 (Cth) as to whether forgetting to attend an interview constituted or could constitute a reason for failure to comply with a Case Management Activity Agreement “within the person’s control”: s 45(6)(a), which required that attendance. The SS Act required the recipient of Newstart allowance to satisfy the Employment Secretary that that person was taking reasonable steps to comply with the terms of such an agreement: s 45(5). Section 45(6) prescribed circumstances in which that person would be taking such reasonable steps, but in a negative way so that, except in certain circumstances, s 45(5) would be satisfied. Those circumstances were that there was a failure to comply with the terms of such an agreement and:
“(a)the main reason for failing to comply involved a matter that was within the person’s control; or
(b)the circumstances that prevented the person from complying were reasonably foreseeable by the person.”
Counsel for the Secretary submitted that those decisions support the contention that a change in circumstances will only be beyond a person’s control if that change occurred externally to that person and was not capable of being controlled, so that there was nothing that person could have done about it. It was further submitted then that, upon that test, the facts inevitably led to the conclusion that the change in circumstances upon which the Secaras relied and upon which the AAT found in their favour was not beyond their control. Counsel contended, in this regard, that it was not an “undisputed fact” that the Secaras had no way of knowing of the newly introduced newly arrived resident’s waiting period, or that the Secaras were given positively inaccurate information on that matter. To that extent, the Secretary challenged the factual findings of the AAT.
I accept that the Secretary did not concede or acknowledge at any time that the Secaras had no way of knowing of the newly arrived resident’s waiting period. What is apparent is that Mrs Secaras’ evidence about her conversation with the Australian Embassy in Belgrade was not challenged. I have referred to that evidence above. However, it is only necessary to consider whether the President fell into an error of law by accepting the ‘undisputed fact’ if, on the other issues canvassed in this appeal, the decision should be upheld.
I said in Ferguson about s 45(6)(a) and (b) of the Social Security Act 1991 (at 437-438):
“… in my view the scope of those provisions is not confined to external factors or matters. That is, if there is a failure to comply with the terms of the agreement, those provisions direct consideration of matters which may include factors going to his state of mind or his physical condition, for example, illness. They may also go to entirely external factors. But I do not think they permit consideration of matters which are entirely internal, for example, forgetting.
The expression in s 45(6)(a) requires that the main reason for the failure was something that the person had within that person’s control. The concept of “control” in that context is one of fact, but I think it is intended to mean something which the person could have done something about. If the person is ill, or there is some entirely external factor, eg, a transport strike, it may amount to circumstances which are not within that person’s control. The person, in those circumstances, would not recriminate that something should or should not have been done.”
I adhere to those views. They are consistent with the views of Jenkinson J in Rohrmoser (above) where the real issue was whether the acts of the patent attorney’s employee were on the part of the person concerned. It was not a serious issue, if that issue were answered affirmatively, that the oversight then disqualified the objector from relying on that provision of the Patents Act 1952 for an extension of time. That the matter is simply one of fact to be determined in all the circumstances is also indicated by the Full Court (Davies, Beaumont and von Doussa JJ) in Minister for Immigration and Ethnic Affairs v Tang (1993) 47 FCR 176 at 187. In relation to s 54Q(3)(c) to (f) of the Migration Act 1958 (Cth) (as then numbered prior to the commencement of the Migration Reform Act 1992 (Cth)), their Honours said:
“Paragraphs (c), (d), (e) and (f) of s 54Q(3) all prescribe tests which convey an interruption in the decision-making process that is beyond the control of the Department. Necessarily, such an interruption would be more likely to occur towards the end of the period after the usual enquiries have been made and the usual processes have been gone through. But, as s 54Q(3) shows, the interruption could occur at any time.
We do not propose to discuss at length the meaning of each of the paragraphs. The facts in relation to which the application of each may have to be considered will be diverse. In each case the question, which will be a factual question, is whether the facts meet the prescribed criterion.”
Einstein J in Trade Practices Commission v Sun Alliance Ltd (1994) ATPR 41-286 at 41,849 adopted a similar pragmatic approach to the application of s 85(1)(c) of the Trade Practices Act 1976. In Re Zoarder (above), Matthews J as president of the AAT also adopted a similar approach in applying s 739A(7) to the onset of an anxiety state by an applicant for benefits under the SS Act (see at 353-354).
In my view, whatever might be said in theory that the Secaras might have done to learn of the commencement of the newly arrived resident’s waiting period, or more generally of the change to the SS Act as effected by the amending Act, the findings of the President amount to an acceptance that, as a matter of practical common sense, their learning of those changes only as and when they did and not earlier was beyond their control. It is clear that the changes themselves were beyond the Secaras’ control.
For those reasons, in my judgment, no error of law is shown to have occurred in the AAT’s decision on this point.
It remains to determine whether the AAT erred, in the circumstances, in treating the change in the Secaras’ expectations as to the period during which they might have to support themselves (either alone or with the help of friends) before being eligible to receive special benefit under the SS Act as a “change in circumstances” suffered by the Secaras within the meaning of s 739A(7).
It is possible by a semantic exercise to illustrate that each party poses this question in a different way. For the Secretary, as noted above, it is contended that the only real change in circumstances applicable to the Secaras was the amending Act itself, which came into force on 4 March 1997. Their understanding of the law was flawed both before and after that date. Before 4 March 1997 they believed that they must wait six months for benefits under the SS Act, when in fact the special benefit was available with no qualifying period. After 4 March 1997 they believed they must wait six months for benefits, when in fact the qualifying period was two years. That flawed understanding of the law could not, by learning accurately of the qualifying period under the SS Act, constitute a ‘circumstance’ which thereupon changed. This submission poses the relevant question in narrow terms: does a changed expectation which is a correction of an erroneous belief as to the law constitute a ‘change in circumstances’ for the purposes of s 739A(7)?
For the Secaras it is contended that before their arrival in Australia they believed that they had access to sufficient funds to support themselves for the period before they became eligible to receive special benefit or benefits under the SS Act, but upon their arrival in Australia the fact altered in that they no longer had access to sufficient funds for that period. This submission poses the relevant question in broad terms: can the intending migrant’s expectations as to life in Australia, upon learning of the reality, constitute circumstances which change for the purposes of s 739A(7)?
In the passage referred to above, the President clearly answered both those issues in the affirmative. Her Honour indicated that the real control device upon too wide an operation of s 739A(7) will be the qualification that the change in circumstances must be “beyond the person’s control”, and in cases such as the present that will turn largely upon the foundation of the expectations. Thus, her Honour said:
“… if the migrant’s erroneous belief as to life in Australia is the product of misleading, inaccurate or inadequate information received in the country of origin, then the difference between the expectation and the reality might well constitute a change in circumstances beyond the person’s control.”
It is important to bear in mind the provisions of the SS Act, and in particular the context in which s 739A(7) appears. It is that context which will indicate the legislative intention as to what is encompassed within the expression “change in circumstances beyond the person’s control”. Similar expressions in other legislation do not greatly assist in the proper construction of that clause, precisely because they are found in their different legislative contents; see eg. BT Australia Ltd v Bell Bros Pty Ltd (1981) 27 SASR 557 concerning s 52(2) of the Company Take-overs Act 1980 (SA) and Wentworth v Wentworth (1995) 37 NSWLR 703 concerning ss 8 and 9(2)(b)(ii) of the Family Provision Act 1982 (NSW).
The intention of the amending Act in introducing the newly arrived resident’s waiting period is clear enough. It does not require paraphrasing. Section 739A(7) then is intended to relieve a person recently arrived into Australia from the consequences of the application of that waiting period in certain circumstances. It does not operate as a transitional provision. It operates on all persons who have arrived into Australia after 4 March 1997. It presupposes a newly arrived person in Australia is in sufficiently needy circumstances as to otherwise qualify, in the case of other Australian residents, for some form of benefit under the SS Act. It then contemplates that something will have happened to that person which, in a practical and realistic sense, that person could do nothing about. It indicates that that which has happened to that person is of sufficient significance to no longer impose upon that person the newly arrived resident’s waiting period. Thus, the change in circumstances cannot be the need itself for the benefit under the SS Act, as the possible existence of that need underlies the legislative policy that, for two years, it should not be met by benefits payable under the SS Act. In my judgment, the change in circumstances must be some event or events, not necessarily “external” to the person, which creates that need where it did not previously exist or if it did previously exist where it is no longer appropriate to respond to that need by application of the newly arrived resident’s waiting period. There are some circumstances where it is easy to discern its appropriate operation, such as unexpected severe illness, serious accident, or loss of employment. It is clear that in such circumstances the legislative policy is to permit the affected person to pursue benefits under the SS Act before the newly arrived resident’s waiting period has expired. Those circumstances will reflect that it is no longer appropriate to oblige the newly arrived person to provide self support for two years. The two elements which the events or matters constituting the changed circumstances must satisfy are first that the events or matters must be “substantial”, that is be of sufficient moment as to warrant that the primary self-support obligation imposed for a period of two years should not be insisted upon, and secondly that the events or matters be beyond the person’s control.
In identifying eligible events or matters as potentially falling within the description “change in circumstances”, in my view there is no clear or useful line necessarily to be drawn between a person’s expectations and objective events. That is because, in a practical sense, there may be only a difference of degree between them. An intending migrant may have sought to make arrangements for employment upon arrival within Australia. Those arrangements may result in an enforceable contract of employment, or an offer of employment, or a statement of intention to employ the particular person, or a statement from a particular employer about that employer’s intentions to offer employment to the prospective migrant specifically or to a number of persons with the prospective migrant’s skills and for which that person would be likely to be accepted for employment. It is possible to envisage a spectrum of certainty or uncertainty, and from the intending migrant’s viewpoint, to describe the arrangement as an expectation of employment of greater or less great strength. Like examples could be generated in relation to the arrangements an intending migrant has put in place or negotiated for support from family and friends upon arrival in Australia during the newly arrived resident’s waiting period. Similar examples could be generated with respect to other matters. It is unnecessary to do so. Once it is accepted, however, that s 739A(7) is capable of responding to changes in circumstances where the pre-existing circumstance is not a matter of absolute certainty but may be the prospect of something happening in the future, then in my judgment it is not helpful to exclude from qualifying changes in circumstances those which may attract the description “changes in expectations”. I have indicated above that the pre-existing circumstances to which the change occurs need not be truly certain future events. They may include the prospect of something happening in the future. Circumstances may change to make that prospect no longer a real one. I have referred above to a range of possible arrangements or “expectations” regarding employment once in Australia. Considerations of health may provide a further example: a person may migrate to Australia expecting to remain in good health, and perhaps having that expectation despite some underlying vulnerability. An illness, or a relapse, may occur beyond that person’s control which no longer enables that person to be self-sufficient. Federal Commissioner for Taxation v Arklay (1989) 22 FCR 298 was decided in respect of a different phrase “circumstances existed by reason of which it was reasonable to expect” in s 82AAS(2)(a) of the Income Tax Assessment Act 1936 (Cth). Nevertheless, in my view, the above approach is consistent with the approach of the Full Court (Sheppard, Wilcox and Hartigan JJ) in that case in particular at 303. Accordingly, I do not think that there is any necessary dividing line to be drawn which necessarily excludes ‘expectations’ from being considered in an appropriate case as providing a foundation for a substantial change in circumstances. In my judgment, the correct proposition is that it will only be by reference to the particular facts and matters pertaining to a particular applicant that it will be possible to determine whether there has been, in terms of s 739A(7), a “change in circumstances” and whether that change is substantial.
In the present matter, however, the identified change in circumstances is in reality no change at all. From the time when they irrevocably committed to migrating, the Secaras believed that they had to be in a position to support themselves, with the help of friends for the period of time which the SS Act specified as the waiting period. Their belief as to the length of time so specified was, from 4 March 1997, an erroneous one. Upon their arrival in Australia, they learnt that it was an erroneous belief. They planned or expected to be able to support themselves for six months after arrival in Australia. They remained able to do so. Nothing occurred to alter that capacity. In reality, the only “change” was their learning of the provisions of the SS Act imposing the newly arrived resident’s waiting period.
In my judgment, learning that a belief as to the law was wrong is not a “change in circumstances” within the meaning of s 739A(7). For the reasons referred to above, I consider the circumstances to which s 739A(7) is directed are facts, matters and events going to an intending migrant’s capacity to be self-sufficient, in the sense of not being entitled to receive certain benefits under the SS Act, for a period of two years following arrival in Australia and to the reasons why that person no longer enjoys that capacity or should be relieved of the disentitling effect of those provisions. I do not think there is within s 739A(7) the seed of a power to relieve a newly arrived migrant from that disentitling effect because that person did not know of its terms. The transitional provisions of the amending Act indicate that those provisions are to apply to persons arriving in Australia after 4 March 1997. It is not, therefore, a relevant inquiry as to whether the lack of knowledge of the provisions of the SS Act of a person in the position of the Secaras is “beyond the person’s control”. I have indicated above that I agree with the AAT’s conclusion that their inquiries on the topic were appropriate and reasonable, so that it is not in any sense a matter of criticism of them that they did not know of the newly arrived resident’s waiting period. But, in my view, that matter does not assist them unless their understanding of the law (which was in respect of eligibility for special benefit always flawed, but was otherwise correct, and which became incorrect from 4 March 1997) and their later learning of the change in the law introduced by the amending Act only upon their arrival in Australia, can constitute a change in circumstances for the purposes of s 739A(7) of the SS Act. For the reasons I have given, I think they must fail at that point.
Accordingly, in my judgment this appeal should be allowed and the decision of the AAT set aside. I would restore the decision of the Secretary by the delegate in each instance, that is in respect of each of the claims for special benefit, that the Secaras are not eligible to be paid special benefit under the SS Act until 4 May 1999.
I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Associate:
Dated: 26 November 1998
Counsel for the Applicant: Ms S Maharaj Solicitors for the Applicant: Australian Government Solicitor Counsel for the Respondents: Mr S Cole Solicitors for the Respondents: Legal Services Commission Date of Hearing: 1 September 1998 Date of Judgment: 26 November 1998
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