Zavrski v Department of Social Services
[2019] FCA 381
•21 March 2019
FEDERAL COURT OF AUSTRALIA
Zavrski v Department of Social Services [2019] FCA 381
Appeal from: Secretary, Department of Social Services v Jasmina Zavrski (Administrative Appeals Tribunal, No. 2017/1662, 14 September 2017) File number: QUD 534 of 2017 Judge: RANGIAH J Date of judgment: 21 March 2019 Catchwords: SOCIAL SECURITY – appeal against decision of the Administrative Appeals Tribunal to refuse Disability Support Pension – residency requirements – claim that hearing inadequate – whether applicant had right to legal representation – claim of failure to provide relevant document – no error of law – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 37(1)(b), 37(1AE), 38AA, 44 and 44(8)
Social Security Act 1991 (Cth) ss 7, 7(2), 7(6), 7(6)(b), 7(6AA)(b), 23, 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(d), 94(1)(e)(i), 94(1)(e)(ii) and 94(1)(e)(iii)
Federal Court Rules 2011 (Cth) r 33.29
Cases cited: Dietrich v The Crown (1992) 177 CLR 292
New South Wales v Canellis (1994) 181 CLR 309
Nguyen v Minister for Immigration and Multicultural Affairs (2002) 101 FCR 20
P v Child Support Registrar (2015) 324 ALR 109
Rana v Repatriation Commission (2011) 126 ALD 1
Date of hearing: Determined on the papers Date of last submissions: 9 August 2018 (Respondent)
16 August 2018 (Applicant)Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 34 Counsel for the Applicant at First Case Management Hearing on 7 June 2018: The Applicant appeared in person with the Applicant’s carer Solicitor for the Respondent at First Case Management Hearing on 7 June 2018: Mr B Dube of Sparke Helmore ORDERS
QUD 534 of 2017 BETWEEN: JASMINA ZAVRSKI
Applicant
AND: DEPARTMENT OF SOCIAL SERVICES
Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
21 MARCH 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The applicant pay the respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) against a decision of the Administrative Appeals Tribunal (the Tribunal). The decision was made on 14 September 2017 and reasons were provided on 29 September 2017.
The parties have agreed that the appeal should be determined on the papers without an oral hearing.
The applicant is self-represented in the appeal. The applicant has relied upon her own affidavit and the affidavit of Vladan Zaporozhki. She has filed written submissions and submissions in reply to the respondent’s written submissions. The respondent has relied upon the affidavit of Ellen Joan Curran and has filed written submissions.
The decision under appeal is a decision by the Tribunal to set aside a decision of the Social Services and Child Support Division (SSCSD) of the Tribunal made on 14 February 2017. The Tribunal decided that the applicant was not qualified for Disability Support Pension (DSP) as she did not fulfil the residency requirements under s 94 of the Social Security Act 1991 (Cth) (the Act).
The applicant’s notice of appeal identifies four questions of law, described as follows:
(1) Inadequate trial;
(2)Damage by Legal Aid who did not act in accordance with the law and did not give Jasmina legal advice;
(3)The advocate from Department of Human Services who did not provide Jasmina with an important document in time, but during the hearing so Jasmina and her carer Vladan could not prepare their defence; and
(4)The non-acceptance of a document by the court AAT of a worsened health condition of Jasmine which would confirm that continued inability to work arose when Jasmina arrived in Australia. That document could have been crucial for Jasmina to get the DSP.
The applicant was born in Serbia and became an Australian resident on 5 July 2013. She entered Australia on a Permanent Partner visa, granted with effect from 20 May 2013.
On 1 April 2016, the applicant lodged a claim for DSP with the Department of Human Services (the Department). The respondent rejected that claim on 21 June 2016 on the basis that the applicant was not qualified to receive DSP.
The applicant sought internal review of the respondent’s decision. The decision was affirmed by an Authorised Review Officer on 23 November 2016.
The applicant subsequently lodged an application for review with the SSCSD and, on 14 February 2017, it set aside the decision and replaced it with a decision that the applicant satisfied the qualification requirements for DSP.
The respondent applied to the Tribunal for review of the SSCSD’s decision. On 14 September 2017, the Tribunal set aside the decision under review and found that the applicant was not qualified for DSP. That is the decision the subject of the present appeal.
Section 94 of the Act sets out the criteria for entitlement to DSP. The section relevantly provides that:
(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables;
and
(c) one of the following applies:
(i) the person has a continuing inability to work;
…
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; …
…
Section 7 of the Act defines “Australian resident” as follows:
7 Australian residence definitions
…
(2) An Australian resident is a person who:
(a)resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
…
(6)A person has a qualifying residence exemption for a social security pension, a social security benefit (other than a special benefit), a mobility allowance, a pensioner education supplement, a seniors health card or a health care card if, and only if, the person:
(a) resides in Australia; and
(b) is either:
(i) a refugee; or
(ii) a former refugee.
(6AA)A person also has a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, a mobility allowance, a seniors health card or a health care card if, and only if, the person:
(b) was a family member of a refugee, or former refugee, at the time the refugee or former refugee arrived in Australia; or
(f) holds or was the former holder of a visa that is in a class of visas determined, by legislative instrument, by the Minister for the purposes of this paragraph.
Section 23 of the Act defines “social security benefit” to mean:
(aa) widow allowance; or
(aab) youth allowance; or
(aac) austudy payment; or
(a) newstart allowance; or
(c) sickness allowance; or
(d) special benefit; or
(e) partner allowance; or
(ea) a mature age allowance under Part 2.12B; or
(f) benefit PP (partnered); or
(g) parenting allowance (other than non-benefit allowance).
In its decision record, the Tribunal noted that during the hearing the applicant had indicated she believed Legal Aid Queensland (Legal Aid) was due to represent her. The Tribunal also noted there was no indication on the Tribunal’s file that Legal Aid was representing the applicant, or that a grant of legal aid had been given to the applicant.
The Tribunal identified the statutory framework and issues for consideration under s 94 of the Act. The Tribunal observed that there was no issue that the applicant met the requirements of ss 94(1)(a), (b), (c) and (d) of the Act. The Tribunal identified the issue for determination to be whether the applicant satisfied s 94(1)(e) of the Act.
For the purposes of s 94(1)(e)(i) of the Act, the Tribunal examined whether the applicant was an “Australian resident” within the meaning of s 7(2), and whether she was an Australian resident at the time she first had a continuing inability to work. The Tribunal set out the medical evidence, referring to a report of Dr Zoran Protulipac dated 7 August 2016 which stated the applicant had become seriously mentally ill in 1999. Notably, the Tribunal said at [22]:
The clinical psychologist assessment states that the respondent has been unable to function in most respects since 2005; this indicates that the respondent’s continuing inability to work arose well before the respondent became an Australian resident on 5 July 2013.
Accordingly, the Tribunal found that the applicant did not satisfy s 94(1)(e)(i) of the Act.
The Tribunal then considered whether the applicant satisfied s 94(1)(e)(ii) of the Act. The Tribunal found that the applicant’s movement records showed that she first entered Australia on 5 July 2013, so it was clear she did not satisfy the 10 year residence requirement.
The Tribunal found that the applicant was not a refugee or former refugee as she did not hold a visa of the type set out in s 7(6)(b) of the Act and, therefore, did not satisfy the qualifying residence exemption for a social security pension, as defined in s 7(6) of the Act.
The Tribunal acknowledged that the Welfare Rights Centre had made a submission that the applicant was eligible for DSP under the residency requirements in that the applicant satisfied s 7(6AA)(b) of the Act as the applicant was a family member of a refugee or former refugee. The Tribunal accepted that the applicant would have been eligible for a qualifying residence exemption with respect to a “social security benefit”. However, it found that under s 23 of the Act, a social security benefit was not defined to include DSP. The Tribunal found that the applicant did not have a qualifying residence exemption which would enable her to obtain DSP. Accordingly, the Tribunal found that the applicant did not satisfy s 94(1)(e)(ii) of the Act.
It was not contended that the applicant satisfied s 94(1)(e)(iii) of the Act.
The Tribunal concluded that the applicant did not qualify for DSP. On that basis the Tribunal set aside the decision under review.
The applicant’s initial written submissions focussed on demonstrating that she has a continuing inability to work because of a psychiatric impairment, but did not address the grounds set out in her notice of appeal. The respondent’s written submissions addressed the grounds of appeal, submitting that they do not demonstrate any error of law on the part of the Tribunal. The applicant’s submissions in reply addressed the grounds of the appeal.
The applicant’s submissions in reply assert that the hearing before the Tribunal was inadequate because she did not receive legal advice. The applicant submits that if a person does not have legal advice, the trial should be terminated. She says that she told the Tribunal member that she had not received advice from the Legal Aid, but the member said that was between her and Legal Aid.
As to the second ground, the applicant asserts that she asked for help from Legal Aid and did not get it.
As to the third ground, the applicant appears to allege that the respondent’s representative provided her with a copy of s 23 of the Act during the hearing, but that the document ought to have been provided to her prior to the hearing.
As to the fourth ground, the applicant seeks to place further evidence before the Court, consisting of a doctor’s report, a birth certificate for her daughter, a letter from an English school and a list of her medications. These documents appear to go to the question of the applicant’s continuing inability to work.
In my opinion, there is no substance in any of the grounds of appeal.
The first and second grounds relate to the applicant’s inability to obtain legal advice. A part of the complaint seems to be that the Legal Aid Office did not provide her with advice. She does, however, seem to have had advice from the Welfare Rights Centre.
The Tribunal was under no obligation to ensure that the applicant had legal advice or representation. In Dietrich v The Crown (1992) 177 CLR 292, the High Court held at 297–298, 318, 343, 356–357 and 364–365 that a court has the power to stay or adjourn criminal proceedings until legal representation is provided at public expense. However, that principle is concerned only with the right to a fair trial of a party to criminal proceedings, not civil proceedings: New South Wales v Canellis (1994) 181 CLR 309 at 328; Nguyen v Minister for Immigration and Multicultural Affairs (2002) 101 FCR 20 at [18].
The Tribunal observed that there was no indication that a grant of legal aid had been given to the applicant, or that Legal Aid would represent her. The applicant does not assert that she applied for an adjournment in order to get legal advice. I cannot see any basis for the first and second grounds.
As to the third ground, in my opinion, ss 37(1)(b) and (1AE) and 38AA of the AAT Act do not require a copy of a legislative provision to be lodged with the Tribunal or given to a party. The respondent was under no legal obligation to give the applicant a copy of a legislative provision, although he or she could be expected to do so as a model litigant. The applicant did not apply for any adjournment to consider the provision that was handed to her during the hearing, and there was no denial of procedural fairness.
As to the fourth ground, the applicant’s written submissions state that the applicant’s former psychologist spoke to a Tribunal officer and “demanded” that he be permitted to forward a report from Dr Protulipac to the Tribunal, but the official refused as the applicant’s illness was not in question. The applicant now seeks to have the Court consider a report from Dr Protulipac, as well as other documents that were not before the Tribunal. These documents are said to “prove my working ability”. Under s 44(8) of the AAT Act and r 33.29 of the Federal Court Rules 2011 (Cth), the Court may receive further evidence on an appeal from a decision of the Tribunal. Further evidence may be received where the evidence would have a tendency to demonstrate an error of law: Rana v Repatriation Commission (2011) 126 ALD 1 at [20]; P v Child Support Registrar (2015) 324 ALR 109 at [48]. In this case, the further evidence that the applicant wishes to rely upon goes to a matter not in dispute before the Tribunal, namely that the applicant has a continuing inability to work. That evidence would not assist in demonstrating an error of law and will not be received in the appeal.
The applicant has not demonstrated any error of law on the part of the Tribunal. The appeal must be dismissed with costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 21 March 2019
0
7
3