Tan v Chief Executive of the Ministry of Social Development

[2017] NZCA 369

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 235/2017 
[2017] NZCA 369

BETWEEN	KONG HWEE TAN Applicant
AND	THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	18 September 2017
Court:	Asher, Clifford and Gilbert JJ
Counsel:	Applicant in person N C Anderson for Respondent
Judgment:	10 October 2017 at 11.00 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.

BThe applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

1. Mr Tan lived in Singapore for over 48 years.  During this time he and his employer were required by the law of Singapore to contribute to the Singapore Central Provident Fund, a fund administered by the Singapore Government.  Mr Tan came to New Zealand in 1998, gained permanent residence in 2000 and became entitled to receive New Zealand Superannuation in October 2014. 

2. Mr Tan complains about two decisions made by the Chief Executive of the Ministry of Social Development who administers New Zealand Superannuation.  The first was to suspend Mr Tan’s payments for a brief period from 26 August 2015 because he failed to test his eligibility for a pension from the Singapore Central Provident Fund (the Fund).  The second was a decision in November 2015 to deduct SGD 668 per month from Mr Tan’s superannuation payments to take account of the amount he was found to be receiving from the Fund.  These deductions continued for only a short period and total $2,219.  All other amounts to which Mr Tan was entitled during the period of the suspension have been paid to him.

3. Although the sum in issue is modest, Mr Tan pursues his complaints on principle.  He considers that the decisions are wrong and that he has been unfairly discriminated against on the basis of his nationality.              

4. Mr Tan’s applications for review of these decisions were dismissed by the Benefits Review Committee.  Mr Tan appealed both decisions to the Social Security Appeal Authority (the Authority) but his appeal was dismissed in June 2016.[1]  Mr Tan then appealed to the High Court on two questions of law:

   (a)Did the Authority err in its interpretation of s 70 of the Social Security Act 1964 in concluding that payments received by Mr Tan from the Singapore Central Provident Fund should be deducted from his entitlement to New Zealand Superannuation?

   (b)Did the Authority err in its interpretation of s 69G(4) of the Social Security Act in concluding it was appropriate for the Chief Executive to suspend Mr Tan’s benefit entitlements from 26 August 2015?

   [1]Re Tan [2016] NZSSAA 57.

5. Brewer J dismissed Mr Tan’s appeal in a judgment delivered on 11 April 2017.[2]  The Judge found that the payments Mr Tan received from the Fund were “a periodical allowance” or “a pension” within the terms of s 70(1) of the Act and the Chief Executive was correct in the circumstances to suspend Mr Tan’s payments of New Zealand Superannuation from 26 August 2015.[3]    

   [2]Tan v Chief Executive of the Ministry of Social Development [2017] NZHC 711.

   [3]At [18] and [33].

6. Mr Tan seeks leave to bring a second appeal on the same two questions of law. 

Leave criteria

1. Section 12R of the Social Security Act provides that any appeal against a determination of the High Court under s 12Q (as is the case here) is to be dealt with in accordance with subpt 8 of pt 6 of the Criminal Procedure Act 2011 with necessary modifications.  Section 303 of the Criminal Procedure Act therefore applies.  This section provides that the Court of Appeal must not give leave for a second appeal unless it is satisfied that:

   (a)the appeal involves a matter of general or public importance; or

   (b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

2. As this Court observed in McAllister v R, these criteria are almost identical to the criteria for leave to appeal to the Supreme Court under s 13 of the Supreme Court Act 2003 (now found in s 74 of the Senior Courts Act 2016).[4]  For that reason, the Court considered that the same approach should generally be followed but taking into account that the Court of Appeal’s role differs from that of the Supreme Court.[5]

   [4]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [34].

   [5]At [39].

3. In Junior Farms Ltd v Hampton Securities Ltd (in liq) the Supreme Court held that the miscarriage of justice criterion has limited application in civil cases and was not intended by the legislature as a means of permitting a further exercise of error-correction.[6]  The Court considered that this ground could only justify leave in cases not involving general or public importance where the error was so apparent and substantial that it would be repugnant to justice to leave it uncorrected in the particular case.  The Court considered that such cases would be rare.

   [6]Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at [4]–[5].

4. In Prime Commercial Ltd v Wool Board Disestablishment Co Ltd the Supreme Court held that an application for leave to appeal is likely to be declined where the prospects of the appeal succeeding are low.[7]

   [7]Prime Commercial Ltd v Wool Board Disestablishment Co Ltd [2007] NZSC 9, (2007) 18 PRNZ 424 at [2].

5. We adopt these principles as applicable to the present application.

Decision

1. Mr Tan did not confine his submissions on the leave application to the proposed questions of law.  For example, he advanced submissions under the New Zealand Bill of Rights Act 1990, the Privacy Act 1993 and Magna Carta. We will address only those submissions that are relevant to the specific questions of law for which leave to bring a second appeal is sought.

2. We accept Mr Tan’s submission that the proposed appeal raises an issue of some potential general or public importance to the extent that other Singaporean citizens who are entitled to receive New Zealand Superannuation may also be affected by their entitlements under the Fund.  However, for the reasons that follow, we are satisfied that the application for leave to bring a second appeal must be declined because it has no realistic prospect of success.  The correct interpretation of s 70 of the Act is now well-settled.  The Authority’s decision, confirmed on appeal to the High Court, involved an orthodox application of this interpretation to the particular facts.  There is no appearance of error or of a miscarriage of justice.

First proposed question — did the Authority err in its interpretation of s 70 of the Social Security Act 1964 in concluding that payments received by Mr Tan from the Singapore Central Provident Fund should be deducted from his entitlement to New Zealand Superannuation?

1. Section 70 of the Social Security Act relevantly provides:

   70       Rate of benefits if overseas pension payable

   (1)       For the purposes of this Act, if—

   (a)any person qualified to receive a benefit under … the New Zealand Superannuation and Retirement Income Act 2001 is entitled to receive or receives … a benefit, pension, or periodical allowance     granted elsewhere than in New Zealand; and

   (b)the benefit, pension or periodical allowance, or any part of it, is in the nature of a payment which, in the opinion of the chief executive, forms part of a programme providing benefits, pensions or periodical allowances for any of the contingencies for which benefits, pensions, or allowances may be paid under this Act or under the New Zealand Superannuation and Retirement Income Act 2001 … which is administered by or on behalf of the Government of the country from which the benefit, pension, or periodical allowance is received—

   the rate of the benefit … that would otherwise be payable under … the New Zealand Superannuation and Retirement Income Act 2001 shall … be reduced by the amount of such overseas benefit, pension, or periodical allowance, or part thereof, as the case may be, being an amount determined by the chief executive in accordance with the regulations made under this Act.

2. Mr Tan’s principal contention is that the amounts he received from the Fund cannot be characterised as “payments” of a “pension” or “periodical allowance” for the purposes of s 70 of the Act because they are not “granted” as part of a welfare-based programme but, rather, were monthly refunds of his own money which he and his employer had contributed.  The payments stop when the funds contributed are exhausted.  This contrasts with New Zealand Superannuation where payments are not dependent on personal contributions and are paid until death.  Mr Tan argues that the monies he received were his and were “released” by the Fund board; they were not “payments”.  He says that if he had renounced his Singaporean nationality, he would have been entitled to receive the money in one lump sum.  He says that this demonstrates that the entitlement was not a pension or a periodical allowance — “[t]here is no country on this planet that gives out lump-sum pensions”.

3. The Authority observed that the Fund is a mandatory social security savings scheme funded by contributions from employers and employees and is intended by the Singapore government to replace income on retirement or old age.[8]  The Authority noted that the Fund is described on the official Singaporean government website as “a key part of Singapore’s social security system and serves to meet our retirement, housing and healthcare needs”.[9]  The Authority also found that the amounts received by Mr Tan were payable upon him attaining a particular age and were paid periodically.[10] 

   [8]Re Tan, above n 1, at [30].

   [9] Tan, above n 1, at [33].

4. The Authority therefore concluded that the payments received by Mr Tan from the Fund constituted a periodical allowance or a pension for the purposes of s 70.[11]  Brewer J agreed with the Authority’s analysis and conclusion.[12] 

   [11]At [33]–[34].

   [12]Tan v Chief Executive of the Ministry of Social Development, above n 2 at [18].

5. We see no error in the Authority’s analysis which was confirmed by the High Court.  It does not matter that contributions to the Fund are not in any way state-funded and that Mr Tan only received monies that he and his employer contributed to the Fund.  State-funding is not a requirement under s 70 and accordingly it is irrelevant that the payments can be viewed in the manner contended by Mr Tan, namely as refunds of his own money.  As Ellen France J said in Hogan v Chief Executive of the Department of Work and Income New Zealand: [13]

   … it is not necessary in terms of s 70 to conduct an inquiry as to how the relevant Government collects the funds and particularly whether they are from taxation or from another type of compulsory acquisition from a person’s income which the Government chooses not to call taxation. —

   [13]Hogan v Chief Executive of the Department of Work and Income New Zealand HC Wellington AP49/02, 26 August 2002 at [26].

6. The use of the word “granted” in s 70 does not assist Mr Tan.  This Court held in Dunn v Chief Executive of the Ministry of Social Development that “granted”
   

   [14]Dunn v Chief Executive of the Ministry of Social Development [2008] NZCA 436, [2009] NZAR 94 at [10].

   simply means “made available”.[14]  

7. Nor does it make any difference to the analysis that Mr Tan could have received his full entitlement in a lump sum if he had chosen to relinquish his Singaporean citizenship.  Mr Tan did not take that course and the funds remained subject to administration by the Singapore government as part of its social security system to meet retirement and other needs.  Because he retained his citizenship, Mr Tan was only entitled to receive the periodical allowance that became payable from the Fund upon his attainment of the requisite age.

8. We conclude that the proposed first question of law is not seriously arguable.  The amounts Mr Tan received from the Fund were clearly periodical allowances forming part of a programme administered by the government of Singapore which provided for one of the same contingencies for which New Zealand Superannuation is paid, namely income for its citizens in retirement or old age.  This outcome does not involve discrimination against Mr Tan on the grounds of his nationality.  It is simply the consequence of the correct application of s 70, which must be applied uniformly in respect of any applicable programme administered by the Government of any overseas country when calculating entitlements of foreign expatriates to New Zealand Superannuation.    

Second proposed question — did the Authority err in its interpretation of s 69G(4) of the Social Security Act in concluding it was appropriate for the Chief Executive to suspend Mr Tan’s benefit entitlements from 26 August 2015?

1. The answer to this question is contingent on the answer to the first and does not require separate consideration.  For the reasons already given, this question is also not seriously arguable.  

Result

1. The application for leave to appeal is declined.

2. The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.

Solicitors:
Crown Law Office, Wellington for Respondent