Weller v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] FCA 326

FEDERAL COURT OF AUSTRALIA

Weller v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 326

Citation:		Weller v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 326
Appeal from:		Application for leave to appeal: Weller v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (AAT, Deputy President Hack, 6 December 2012, Unpublished Decision)
Parties:		LUKE VINCENT WELLER v SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
File numbers:		NTD 1 of 2013 NTD 2 of 2013
Judge:		MANSFIELD J
Date of judgment:		12 April 2013
Date of last submissions:	6 March 2013
Date of hearing:	Heard on the papers
Place:	Darwin
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	23
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondents:	A Nanson
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 1 of 2013

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	LUKE VINCENT WELLER Applicant
AND:	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	12 APRIL 2013
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.The application for an extension of time within which to appeal from the decision of the Administrative Appeals Tribunal given on 6 December 2012 is refused.

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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 2 of 2013

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	LUKE VINCENT WELLER Applicant
AND:	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	12 APRIL 2013
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 1 of 2013

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	LUKE VINCENT WELLER Applicant
AND:	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent
NTD 2 of 2013
BETWEEN:	LUKE VINCENT WELLER Applicant
AND:	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent

JUDGE:	MANSFIELD J
DATE:	12 APRIL 2013
PLACE:	DARWIN

REASONS FOR JUDGMENT

1. There are two applications before the Court by Luke Weller arising from the same decision of the Administrative Appeals Tribunal (AAT) made on 6 December 2012. One is an application seeking an extension of time to appeal from the decision of the AAT under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), as the application to appeal from that decision under s 44 of the AAT Act was not brought within the 28 day period allowed. The second is an application for judicial review of the same AAT decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

2. The AAT decision affirmed an earlier decision by Centrelink made pursuant to s 80(1)(a) of the Social Security (Administration) Act 1999 (Cth) to cancel Mr Weller’s disability support pension.

   BACKGROUND

3. There is no dispute that Mr Weller is significantly disabled.  He commenced receiving a disability support pension on 28 January 2005 and continued to receive that pension until it was first cancelled following the decision of Centrelink on 20 January 2012.  The cancellation of that pension was deferred from time to time whilst that decision was first reviewed internally, then by the Social Security Appeals Tribunal (SSAT), and finally by the AAT.  The AAT decision affirming the cancellation of his disability support pension commenced to operate from 20 December 2012, so that Mr Weller could explore other avenues by which he may have become entitled to maintain or have restored that pension during that period of time. It is obvious that he has not done so successfully.

4. The Social Security Act1991 (Cth) (SS Act) was amended, relevantly, from 1 July 2011 to include in s 94(1) additional criteria for eligibility to continue to be qualified for a disability support pension. The amendment added sub-clause (ea) to the subsection. The sub-section as amended from that date relevantly prescribed as a criterion for eligibility that:

   (ea)     one of the following applies:

   (i)        the person is an Australian resident;

   (ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

5. As noted, for some time prior to that amendment Mr Weller had qualified for a disability support pension, having met the criteria in subclauses (a)-(d). It is not necessary to refer to them. He still meets those criteria.

6. For the purposes of his ongoing entitlement after 1 July 2011, the issue emerged as to whether Mr Weller is “an Australian resident”. That term is relevantly defined in s 7(2) of the SS Act as follows:

   An Australian resident is a person who:

   (a)       resides in Australia; and

   (b)      is one of the following:

   (i)        an Australian citizen;

   …

7. Section 7(3) of the SS Act sets out the matters to be taken into account when determining residency.  It is in the following terms:

   In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

   (a)       the nature of the accommodation used by the person in Australia; and

   (b)the nature and extent of the family relationships the person has in Australia; and

   (c)the nature and extent of the person’s employment, business or financial ties with Australia; and

   (d)      the nature and extent of the person’s assets located in Australia; and

   (e)       the frequency and duration of the person’s travel outside Australia; and

   (f)any other matter relevant to determining whether the person intends to remain permanently in Australia.

8. Consequently, at all material times there has been only one factual issue on which Mr Weller’s entitlement to a disability support pension has depended.  It is whether he is an Australian resident, which in turn is whether he resides in Australia.

   THE AAT DECISION

9. In the AAT, Mr Weller gave evidence and the AAT also had the benefit of the extensive material before the SSAT and before the earlier decision makers.  The AAT said in its reasons for decision the following:

   It is apparent that Mr Weller has no permanent accommodation in Australia. At best, he resides in backpacker accommodation – his evidence was that he had been living in the streets.  That, he asserted, was the consequence of decisions made by the Tribunal.  In Indonesia, on the other hand, he has much more settled accommodation renting a house with his carer. Mr Weller has a large family in Australia … however, it is not evident that he has any close relationships with any of his family.  On the material, the closest relationship that he has is with his carer in Indonesia.  It is not apparent that Mr Weller has any employment or business ties in Australia.  I assume that he has an Australian bank account into which his disability support pension would be paid. He appears not to have any assets located in Australia beyond some derelict motor cars and, according to his evidence at the Social Security Appeals Tribunal, some chattels stored with a friend outside Darwin.

   The Social Security Appeals Tribunal undertook an analysis of Mr Weller’s travel to and from Indonesia. It demonstrates that in the period of three or so years prior to the cancellation decision, Mr Weller spent approximately 66 per cent of his time outside of Australia.  That is consistent with his frequently stated desire, and consistent with him choosing, to reside in Bali rather than in Australia.  There seemed to be no other matters relevant to whether Mr Weller intends to remain permanently in Australia.  He has made a claim that that is not his preference.

   Consequently, the AAT said that the only conclusion available on the material is that the decision should be affirmed.  In effect, the only finding of fact available was that Mr Weller does not reside in Australia.

   CONSIDERATION

10. Mr Weller’s circumstance is an unfortunate one. It is plain that he suffers from a significant disability.

11. In his material before the earlier decision makers, it appears that he has a partner in Indonesia, who is an Indonesian national.  She too apparently has an acquired brain injury from an accident when she was young, but he described her as functioning better than he does.  They do have a rented property in Indonesia, and until his disability support pension was cancelled, he did spend considerable time in Indonesia and apparently sent about half his pension to his partner in Indonesia for her support and that of her child.  At one point, he said that he planned to bring his partner and her child to Australia and in June 2011 had applied for housing commission accommodation in Australia so that he would have somewhere to bring them if they were able to get admitted to Australia.

12. It is also apparent from Mr Weller’s submissions on these two applications that he has a firm and deeply held belief about having been wrongly treated some time in the past in relation to dealings with a political party, and with other Australian authorities.  It is apparent from the reasons for decision of the AAT, that he spent a considerable part of his time making submissions on those matters.  They are of no direct relevance to the present issues.

13. The additional material filed in support of the two applications, and in support of his application for an extension of time, did not add any material which legitimately could be considered on either of these two applications. That is because the role of the Court on these applications is a limited one. There may be some additional material which he now has which may support a review of his entitlement to the disability support pension. It may be that since December 2012 he has continued to reside in Australia, largely because he has no other option.  He is an Australian citizen, and (as he presented) is in effect derelict. He is in a most unfortunate situation. The attitude of the representative of Centrelink who appeared before the AAT indicated that there was some prospect of his becoming eligible for a disability support pension on another basis prior to the operation of the AAT decision cancelling his entitlement to a disability support pension, but apparently that did not occur. There is no reason why he cannot reapply for that pension and his eligibility then be assessed in the light of his recent circumstances. If he has continued to be in Australia since the disability support pension was cancelled, however harsh his living circumstances, it may be hard to conclude that he no longer resides in Australia. However, that is not the question to be decided on these two applications.

14. To revert to the matters in issue before the Court, it is necessary first to determine whether his application for an extension of time to appeal from the decision of the AAT should be granted. The Court generally considers two matters in relation to such an application. The first is the explanation for the delay, and its consequences, including whether the grant of the extension of time would be likely to cause any injustice in the circumstances. The second is whether the proposed appeal has any merit sufficient to justify it being considered by the Court.

15. In this matter the respondents do not contend that the reason for the delay is inappropriate, or that there is any prejudice which would be occasioned by reason of granting an extension of time within which to appeal. However, they contended that there is no merit in the application and so leave to appeal should be refused.

16. Section 44(1) of the AAT Act requires that an appeal from a decision of the AAT be on a matter of law. The Court is not empowered simply to rehear the claim on the merits. Mr Weller’s material includes a draft notice of appeal which does not, in my view, identify any question of law at all, far less one which has any real prospect of success: cf Commissioner of Taxation v Crown Insurance Services Ltd [2012] FCAFC 153 at [13]. His affidavit material suggests that he is complaining that the AAT did not have material upon which it could have based its decision, or alternatively that on the facts its decision was not correct. It also asserts that Mr Weller was not allowed to put material before the AAT which he considered relevant.

17. As to those matters, in my view the Court is simply being asked to review the merits of the AAT decision. That is not the proper role of the Court on an appeal under s 44 of the AAT Act. It is apparent from the recital of the AAT’s reasons, set out above, that there was material before the AAT upon which the AAT could reasonably have concluded that, at the time of its decision, Mr Weller was not living in Australia and therefore did not qualify as an Australian resident. Its reasons explain why that is so. As to the claim that he was not allowed to present material before the AAT, nothing has been identified in the material before me, either in affidavits or by reference to other material which could rationally have been probative of his status as an Australian resident. As I have noted, there is material which tends to raise matters about other things related to his personal background, but they do not and could not tend to support his claim to be an Australian resident.

18. For that reason, in my view, Mr Weller has failed to show that there is any prospect at all of him demonstrating that the decision of fact made by the AAT was made without evidence or was made by error of law. There is nothing to indicate that the AAT misunderstood the legal test to be applied, or in applying it did not properly understand the law.  Accordingly, in my view the application for an extension of time to appeal should be refused simply because there is no prospect of the appeal, if an extension of time is granted, being successful.

19. The grounds upon which the application may be brought under the ADJR Act are also confined to the matters referred to in s 5 of that Act. The application in that case complains of the treatment of Mr Weller by Centrelink, in part related to matters which are of no direct relevance to his status as an Australian resident, and in part because (he asserts) he had in the past never overstayed a 13 week limit of being out of Australia before he returned to Australia. It is apparent that he misconceives or does not appreciate the effect of the change in the SS Act introduced from 1 July 2011. Once that is understood, he has not identified any error which would give rise to reviewable error within the scope of s 5 of the ADJR Act. For that reason, his application under that Act should also be dismissed.

20. Counsel for the respondents contended that the application should be dismissed as an abuse of process. It is clear that bringing two separate legal proceedings if the relief sought could and should have been brought in one of them is an abuse of process: Moore v Inglis (1976) 9 ALR 509 at 513-514 per Mason J. I do not determine that that application under the ADJR Act should be dismissed on that ground. That is simply because, in my view, Mr Weller did not apprehend the difference between the two applications. He argued them as one application with one asserted factual error attached to the decision of the AAT. It is more appropriate, in my view, in the circumstances simply to dismiss that application on the merits. I accordingly do so.

21. In matter NTD 1 of 2013 the orders will be:

    (1)Application for an extension of time within which to appeal from the decision of the Administrative Appeals Tribunal given on 6 December 2012 is refused.

22. In matter NTD 2 of 2013 the order will be:

    (1)       Application dismissed.

23. I will hear the parties as to whether any further orders should be made.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: 

Dated:       12 April 2013