FEDERAL COURT OF AUSTRALIA

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made on 24 March 2011 in proceeding number VID 420 of 2010 be set aside.

3.    In substitution for those orders, it be ordered that:

    (1)    the appeal be allowed.

    (2)    the decision of the Administrative Appeals Tribunal, made on 30 April 2010     in proceeding number 2009/6143, be set aside.

    (3)    the case be remitted to the Administrative Appeals Tribunal to be heard and     decided again.

    (4)    there be no order as to the costs of proceeding number VID 420 of 2010.

4.    There be no order as to the costs of the appeal.

5.    The respondent be granted a certificate to the effect that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent in respect of the costs incurred by him in relation to the appeal.

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

REASONS FOR JUDGMENT

GRAY J:

The nature and history of the proceeding

1    The respondent to this appeal, Mr Mouratidis, is in receipt of a disability support pension (“DSP”), pursuant to the Social Security Act 1991 (Cth) (“the Social Security Act”). Division 2 of Pt 4.2 of Ch 4 of the Social Security Act contains provisions about the portability of social security payments. A person in receipt of a DSP is entitled to continue to receive that pension if he or she leaves Australia only for a period of 13 weeks, unless the period is extended. The appellant, the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (“the Secretary”), has a power to extend that period if satisfied that any one of a number of specified events has occurred during the period of absence. The question that arises in this appeal is whether that power can be exercised in respect of a period of absence after the person concerned has returned to Australia and then departed again.

2    The appeal is from the judgment of a single judge of the Court, published as Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis (No 3) [2011] FCA 268. Her Honour dismissed an appeal by the Secretary from a decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 30 April 2010. The Tribunal affirmed a decision of the Social Security Appeals Tribunal (“the SSAT”) that the respondent is entitled to a continuation of the payment of his DSP from 29 March 2009.

The legislation

3    All of the following provisions are found in Div 2 of Pt 4.2 of Ch 4 of the Social Security Act. Section 1213 provides, so far as relevant to this proceeding:

This Division applies to a person during a period (the period of absence) throughout which the person is continuously absent from Australia, if:

(a)    immediately before the period of absence commenced, the person was receiving a social security payment (the payment) mentioned in column 2 of the table at the end of section 1217

Section 1215(1) of the Social Security Act provides:

If the person’s maximum portability period for the payment is not an unlimited period, the following rules apply:

(a)    throughout the person’s portability period for the payment, the person’s right to continue to be paid the payment is not affected merely by the absence;

(b)    throughout so much (if any) of the period of absence as occurs after the end of the person’s portability period for the payment, the payment is not payable to the person.

Section 1217 contains definitions relevant to those provisions, including:

(1)    The person’s maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:

(a)    the payment (as specified in column 2 of the table); and

(b)    the class of persons to which the person belongs (as specified in column 3 of the table).

...

(4)    If the person’s maximum portability period for the payment is a period of weeks, the person’s portability period for the payment, in relation to the period of absence, is the period:

(a)    beginning at the commencement of the period of absence; and

(b)    ending at the earlier of the following times:

(i)    the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;

(ii)    the end of the period of weeks that is the person’s maximum portability period for the payment.

Item 3 of the table at the end of s 1217 specifies in column 2 “Disability support pension”, specifies “All persons” in column 3 and provides for a maximum portability period of 13 weeks in column 5, subject to a reference to an exception in s 1218AA, which is of no significance for the purposes of this proceeding.

4    The power to extend a portability period is found in s 1218C:

(1)    The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:

(a)    a serious accident involving the person or a family member of the person;

(b)    a serious illness of the person or a family member of the person;

(c)    the hospitalisation of the person or a family member of the person;

(d)    the death of a family member of the person;

(e)    the person’s involvement in custody proceedings in the country in which the person is located;

(f)    a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);

(g)    robbery or serious crime committed against the person or a family member of the person;

(h)    a natural disaster in the country in which the person is located;

(i)    political or social unrest in the country in which the person is located;

(j)    industrial action in the country in which the person is located;

(k)    a war in the country in which the person is located.

(2)    The Secretary must not extend the person’s portability period under subsection (1) unless:

(a)    the event occurred or began during the period of absence; and

(b)    if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.

(3)    If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period.

The facts

5    The following summary of the facts is taken from the findings expressed by the Tribunal in its reasons for decision. Mr Mouratidis was born in 1949 in Greece. In or about 1965, his family emigrated to Australia. From about 1990, Mr Mouratidis became entitled to receive a DSP. By 2008, he was also receiving a carer’s pension because he was looking after his mother. On 23 May 2008, he accompanied his 90 year old mother on a visit to Greece, which was expected to be for a short period. Mr Mouratidis returned to Australia on 22 August 2008, just prior to the expiration of the 13 week period after which his DSP would have ceased to be payable. On 12 September 2008, he returned to Greece. On 2 December 2008, his mother was diagnosed as suffering from Alzheimer’s condition with psychotic syndrome, was assessed as needing assistance of a second carer, and was said to have become unable to travel overseas.

6    On 9 December 2008, Mr Mouratidis returned to Australia. On 16 December 2008, his mother was hospitalised after fracturing her right hip. She was recorded as suffering age-related dementia and pneumonic consolidation. On 28 December 2008, Mr Mouratidis returned to Greece. On 12 January, a psychiatrist gave an opinion that Mr Mouratidis’s mother was suffering advanced dementia, and was bedridden and incapable of caring for herself. On 15 January 2009, she was discharged from hospital.

7    On 29 March 2009, the payments of DSP to Mr Mouratidis ceased. At some time prior to 16 July 2009, Mr Mouratidis requested an extension of the time in which his DSP would continue to be paid beyond the 13 week period. This was refused on the basis that his mother was hospitalised prior to his departure from Australia. That decision was not overturned after internal reconsideration. Mr Mouratidis appealed to the SSAT, which decided that his DSP should continue to be paid after 29 March 2009.

8    Subsequently, a neurologist reported in November 2009 that Mr Mouratidis’s mother is suffering from the terminal stages of Alzheimer’s disease. Counsel informed the Court on the hearing of the appeal that Mr Mouratidis remained in Greece caring for his mother.

The Tribunal’s reasons for decision

9    In its reasons for decision, the Tribunal found that Mr Mouratidis’s mother was aged and frail when she went to Greece on 28 May 2008, and that she was then in need of a carer. It accepted that she may have been suffering Alzheimer’s disease at that point. It found that she was fit enough to undertake the journey to Greece.

10    The Tribunal then identified two events falling within s 1218C(1) of the Social Security Act. The first of these occurred on 2 December 2008, when Mr Mouratidis’s mother was certified as being unable to travel and as requiring the services of a second carer. The Tribunal said that her condition had changed from one in which she was merely old and frail with Alzheimer’s disease to one in which she had become seriously ill as a result of that disease. The second event occurred on 16 December 2008, when Mr Mouratidis’s mother fell and broke her right leg and was admitted to hospital. Prior to her discharge, she was found to be suffering advanced dementia.

11    The Tribunal then said:

29.    The Tribunal accepts that [Mr Mouratidis]’s two return trips to Australia from Greece in 2008 were made in order to secure a continuation of the payment of his DSP. He was however outside Australia at the time, in early December 2008, when the Tribunal is satisfied his mother’s condition deteriorated and she became seriously ill. It would be harsh and unreasonable if his return to Australia for the period between 9 December and 28 December 2008, in order to secure the continued payment of his benefit should act to disqualify him from receipt of the benefit if he is otherwise entitled, given that:

(a)    it is unclear whether he had been advised of the circumstances which may give rise to approval of portability,

(b)    the subsequent medical evidence that his mother’s condition had worsened was forthcoming, and

(c)    he was advised that an application to have the portability approved would not be successful.

The primary judge’s reasons for judgment

12    By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), an appeal to this Court from a decision of the Tribunal is limited to a question of law. By an amended notice of appeal, filed pursuant to leave granted by the primary judge, the Secretary raised two questions of law. The first is whether the Tribunal misinterpreted s 1218C of the Social Security Act by holding that there was a discretion to rely on an event as defined in s 1218C(1) that occurred before the portability period referred to in s 1218C in order to extend the portability period. The second question was whether the Tribunal erred in accepting that the deterioration of Mr Mouratidis’s mother’s condition constituted an “event” under s 1218C, that could be used to extend Mr Mouratidis’s portability period that began on 28 December 2008. The two grounds of appeal mirrored directly these two questions of law. Mr Mouratidis relied on a notice of contention, arguing that the Tribunal’s decision should be affirmed on grounds other than those on which the Tribunal relied. The first was that the Tribunal should have made a finding that the portability period that had begun on 12 September 2008 should be extended and that the relevant event that occurred in that period was the event of 2 December 2008. Alternatively, it was contended that the Tribunal should have made a finding extending the portability period that began on 28 December 2008 on the basis that the relevant event took place on 5 January 2009, when the combination of age-related dementia, a hip fracture and pneumonic consolidation was the subject of a report, or alternatively on 14 January 2009 when Mr Mouratidis’s mother was discharged from hospital.

13    In her reasons for judgment at [50], the learned primary judge pointed out that the Tribunal had not stated expressly that it extended a portability period and did not identify by reference to particular dates the portability period it extended. It had merely affirmed the decision that Mr Mouratidis was entitled to a continuation of his DSP from 29 March 2009. At [51], her Honour pointed out that there were two possible portability periods the subject of the extension. The first began on 12 September 2008 and the second on 28 December 2008. The Tribunal unambiguously located the event of 2 December 2008 during the first of those periods. At [52], her Honour accepted that the better view was that the Tribunal extended the portability period commencing on 12 September 2008.

14    At [53], her Honour posed the question whether “any return to Australia extinguishes the discretion to extend, and terminates an extension already granted, of a portability period...even if, during the respondent’s absence from Australia, the criteria for an extension were satisfied.” Her Honour then proceeded to deal with this question, rephrasing it at [54] into a question whether s 1218C of the Social Security Act mandated a division into separate portability periods, precluding reliance on an event which occurred in an earlier period to extend the latter, or whether it permitted the Tribunal to treat the earlier period in which the qualifying event occurred as the period to be extended. At [55], her Honour referred to the phrase “continuously absent from Australia” in s 1213 of the Social Security Act. Her Honour then proceeded to discuss the question, which she apparently raised with the parties, of the meaning of “continuously absent”. At [56], she referred to authorities dealing with the meaning of “continuously”, indicating that the word was not always construed literally and might apply despite a temporary break or interruption. At [57], her Honour said that s 1213 “does not pose an insuperable impediment to the construction of s 1218C I have adopted.”

15    After referring to the various provisions of Div 2 of Pt 4.2 of Ch 4 of the Social Security Act, her Honour pointed out at [66] that s 1218C “does not, in terms, prohibit the extension of the specified portability period either before or after it has expired, after a person has returned to Australia, or if it has already been exceeded.” Her Honour also said that s 1218C does not stipulate that an application for extension of the portability period must be made or granted within any particular time. At [67], her Honour described s 1218C as a “remedial provision”, which she said “should be liberally construed.” At [70], her Honour concluded that Mr Mouratidis’s return to Australia on 9 December 2008 did not exclude the discretion to extend the portability period commencing on 12 September 2008.

16    Her Honour then said:

[71]    Although the definition of the portability period in s 1217 depends on the commencement of the period of absence and the two concepts are closely related, they are not neither interchangeable nor necessarily coterminous. The period of absence may be shorter or longer than the portability period specified in s 1217.

[72]    The portability period specified in s 1217 delimits the term during which the person’s payment will continue to be paid despite his or her continuous absence from Australia. Section 1218C does not provide that an event must begin or occur within the portability period (whether the 13 week period specified in s 1217, or the period as extended). Rather, it specifies that the event must occur during the period of absence.

[73]    “The period of absence” is defined in s 1213 as a period “throughout which the person is continuously absent from Australia immediately before which the person was receiving a social security payment” (I have referred to judicial construction of the word “continuously” above). It is clear from, inter alia, s 1217 that the portability period there specified (which can be extended under s 1218C) commences at the same time as the period of absence.

[74]    In my view, provided that a relevant event which causes the person’s inability to return to Australia begins or occurs during the period of absence, the discretion under s 1218C to extend the portability period which commenced at the same time as the period of absence will arise. The extension may be made before or after the portability period specified in s 1217 has expired. The portability period as extended prevails over any other delimitation or sequence of separate portability periods that would otherwise apply.

[75]    Further, in my opinion (consistently with the view that the inability to return to Australia is not limited to a physical impossibility or incapacity), a person’s temporary return to Australia after the commencement of a period of absence during which an event occurred neither automatically terminates an extension already granted nor precludes the retrospective extension of the portability period which commenced on the date of the relevant period of absence.

[76]    In some cases, a return to Australia after the occurrence of an otherwise qualifying event might constitute strong evidence that it did not cause an inability to return to Australia in the requisite sense. In my view, however, a transient return to Australia, as occurred in this case, would go to the exercise, rather than the existence, of the discretion.

17    Her Honour then rejected an argument that s 1218AA should be treated as providing guidance by way of analogy. At [79], her Honour said that the first question of law in the amended notice of appeal should be answered in the negative.

18    At [100], the primary judge said:

Although in my view the Tribunal, as a matter of substance, found that the portability period commencing on 12 September 2008 should be extended on the basis of an event which occurred as at 2 December 2008, it did not expressly so find. Therefore, for the avoidance of doubt, I hold that the first ground of the notice of contention is made out. While it is unnecessary to address the respondent’s subsidiary alternative argument in para (b) of the notice of contention, I was not persuaded that the Tribunal should have made the finding as alleged.

19    The orders made by the primary judge on 24 March 2011 were as follows:

1.    The appeal brought by amended notice of appeal dated 18 November 2010 be dismissed.

2.    The allegation in paragraph (a) of the notice of contention dated 9 December 2010 be upheld.

3.    The applicant pay the respondent’s costs of the appeal.

20    Her Honour then proceeded to deal with the second question of law and ground of appeal. Her Honour held that the Tribunal did not misinterpret s 1218C. For present purposes, it is unnecessary to recount in detail her Honour’s reasoning on that question.

The issues on appeal

21    The grounds of appeal in the notice of appeal filed on 13 April 2011 are as follows:

1.    The primary Judge erred in finding that the discretion conferred by s 1281C of the Social Security Act 1991 (the Act), to extend the Respondent’s maximum portability period beyond the 13-week period fixed by s 1217 of the Act, was available to be exercised:

1.1.    despite the Respondent having returned to Australia on 9 December 2008, before the end of the Respondent’s maximum portability period, which had commenced on 12 September 2008;

1.2.    despite the Respondent having demonstrated, by his return to Australia, that he did not meet an essential requirement for the discretion to arise – namely, that he was “unable to return to Australia because of any of the ... events” prescribed in paragraphs (a) to (k) of s 1218C(1) of the Act;

1.3.    to extend the Respondent’s portability period to include a period during which the Respondent was not absent from Australia;

1.4.    to determine, as the Respondent’s portability period, a period throughout which the Respondent was not “continuously absent from Australia”, as required by s 1213 of the Act.

2.    The primary Judge erred in finding that, on the proper construction of s 1281C of the Act, it had been open to the Administrative Appeals Tribunal (the Tribunal) to extend the Respondent’s portability period commencing on 12 September 2008, in circumstances where, as the Tribunal found:

2.1.    the Respondent’s maximum portability period fixed by s 1217 of the Act commenced on 12 September 2008, when the Respondent departed from Australia;

2.2.    the event, by reference to which the Respondent asserted he was unable to return to Australia, occurred on 2 December 2008;

2.3.    the Respondent returned to Australia on 9 December 2008, before the end of his maximum portability period;

2.4.    the Respondent remained in Australia until 28 December 2008, when he again departed from Australia;

2.5.    the Respondent first applied to the applicant for an extension of his maximum portability period after 29 March 2009.

3.    The primary Judge should have held that:

3.1.    on the proper construction of the Act, the discretion conferred by s 1218C(1) of the Act to extend the Respondent’s maximum portability period, being a period that commenced on 12 September 2008, had not been available to the Tribunal; and

3.2.    to the extent that the Tribunal had purported to exercise the discretion conferred by s 1218C(1) of the Act to extend the Respondent’s maximum portability period commencing on 12 September 2008, the Tribunal had fallen into an error that was reviewable under s 44(1) of the Administrative Appeals Tribunal Act 1975.

22    Mr Mouratidis also filed a notice of contention, arguing that the judgment of the primary judge should be affirmed on grounds not relied on by the primary judge, namely that the Tribunal should have extended the portability period commencing on 28 December 2008 on the basis of the development of the serious illness of Mr Mouratidis’s mother on or about 5 January 2009 or on the basis of her release from hospital on about 15 January 2009.

The portability period beginning on 2 September 2008

23    The foundation for the provisions of Div 2 of Pt 4.2 of Ch 4 of the Social Security Act is the definition of “period of absence”, found in s 1213. Such a period is one “throughout which the person is continuously absent from Australia”. As it was characterised by the primary judge, the Tribunal’s decision was that Mr Mouratidis’s portability period commencing on 12 September 2008 was capable of being extended, so as to include a time when Mr Mouratidis was no longer absent from Australia, ie the time after his return to Australia on 9 December 2008. Likewise, the conclusion of the primary judge carries with it the proposition that a period of absence can continue, or can be extended, after absence has ceased.

24    This is a difficult proposition to sustain in the face of the language of s 1213 of the Social Security Act. It is difficult enough if the focus is confined to the phrase “absent from Australia”. In ordinary language, a person who has been absent from Australia but has returned is no longer absent from Australia. The proposition becomes even more difficult when the focus is broadened, so as to encompass the requirement that the person be absent “throughout” the period and be “continuously” absent. It is unlikely that Parliament would have chosen such definite language if it had intended that a cessation of absence, effected by a return to Australia, did not bring to an end a period of absence.

25    It is the case that courts have sometimes held that a requirement that a state be maintained “continuously”, or be “continuous”, can be satisfied even though there have been interruptions to the continuity of that state. Such authorities will depend upon the particular legislative provisions in contemplation, and especially on the nature of the state that is required to be continuous, or to be maintained continuously. Counsel for Mr Mouratidis attempted to argue that, if Parliament had intended that a return to Australia would bring about an end of a period of absence, the use of the word “continuously” would have been unnecessary. The argument was that Parliament must have been taken to have been aware of the authorities concerning the meaning of the word “continuously”, and to have inserted that word in order to make it clear that a period of absence may continue despite interruptions to the absence. This argument is highly problematic. If Parliament had intended to indicate that a period of absence was not necessarily brought to an end by the cessation of absence, it is highly likely that an adverb other than “continuously” would have been chosen to achieve that end. It is much more likely that the choice to include the word “continuously” was motivated by a desire to make clear that any interruption to absence would bring to an end the period of absence. The language used in the definition of “period of absence” in s 1213 of the Social Security Act is unambiguous. No argument based on the purpose of the legislation, or on any extrinsic material, was advanced. The Court should not be too ready to rewrite the language of Parliament when it is so clear. A period of absence cannot extend, or be extended, after the person concerned has ceased to be absent from Australia.

26    The definition of “period of absence” is used in s 1217(4) as the foundation for the definition of “portability period” in respect of a person who is subject to a maximum portability period of some weeks. Accordingly, it follows that a portability period must come to an end (in the sense that it will no longer be a portability period) if the state of absence ceases as a result of the person returning to Australia.

27    It is true, as the primary judge pointed out and as counsel for Mr Mouratidis argued, that the discretion to extend a portability period, for which s 1218C provides, is not subject to any limitation as to when application for its exercise may be made, or when a decision to extend may be made. The result is that, if Mr Mouratidis had not returned to Australia on 9 December 2008, and if he had applied later than 13 weeks after 12 September 2008 for an extension of his portability period, and if a finding had been made that an event had occurred that rendered him unable to return to Australia, a decision to extend the period could have been made. If, having been absent from Australia for longer than 13 weeks after 12 September 2008, Mr Mouratidis had then returned to Australia and then made an application to extend the period, an extension up to the date of his return to Australia could have been granted. It is impossible to say, however, that s 1218C permits extension of the period of absence, and therefore the portability period, beyond the time when absence has ceased. Upon return to Australia, Mr Mouratidis was again entitled to receive his DSP because he was in Australia. This entitlement itself reinforces the proposition that the creation of an additional entitlement, by extending a portability period beyond the date of return to Australia, is not intended.

28    The Tribunal’s concern about whether Mr Mouratidis had been advised correctly was not something on which it could rely to change the legislation. The issue for the Tribunal was not whether the outcome would be harsh or unjust if the portability period could not be extended. It was whether the power to extend the portability period could be exercised in the circumstances of the case.

29    It is true, as the primary judge pointed out, that s 1218C is a remedial provision. The principle that such a provision should be construed liberally is indisputable. Her Honour was in error, however, when she viewed the Secretary’s argument as an attempt to “imply an additional precondition” to the exercise of the discretion conferred by s 1218C. No implication is required. The terms of the definition of “period of absence” in s 1213, which in turn find their way into the definition of “portability period” in s 1217(4) supply an express limitation on the power to extend the portability period.

30    Her Honour was also in error at [71]-[75] in distinguishing between the period of absence and the portability period. Her Honour’s reasoning focused only on the commencement of the two periods. She overlooked the definition of “portability period” in s 1217(4), which makes it clear that a portability period is a period of absence. It was unnecessary for Parliament to provide in s 1217(4) that the portability period should come to an end when absence ceased, because it was clear from the definition of “period of absence” in s 1213 that this would be the case.

31    For these reasons, the primary judge’s conclusion that it was open to the Tribunal to exercise the discretion to extend Mr Mouratidis’s portability period that commenced on 12 September 2008 was in error.

32    Although it found that the worsening of the condition of Mr Mouratidis’s mother that was identified on 2 December 2008 was an event for the purposes of s 1218C of the Social Security Act, the Tribunal did not address itself specifically to the question whether that event was a cause of Mr Mouratidis being “unable to return to Australia”. It is easy to accept the proposition that s 1218C(1) does not require that the event make it impossible for a person to return to Australia. Practical inability to return, owing to the circumstances created by the event, will be sufficient. A determination of fact is required, however, and the Tribunal made none. If it had done so, the fact that Mr Mouratidis had in fact returned to Australia a week after the event had occurred would have had to play a significant role in the Tribunal’s reasoning. It is not for the Court to speculate as to whether the Tribunal would have made the necessary finding of fact in those circumstances. Nor was it open to the primary judge to uphold the contention in the first paragraph of the notice of contention that was before her, as she purported to do at [100] of her reasons for judgment. As her Honour acknowledged, the Tribunal did not expressly find that the portability period commencing on 12 September 2008 should be extended on the basis of an event occurring on 2 December 2008. It was not for her Honour to make findings of fact that the Tribunal did not make, particularly a finding that the event of 2 December 2008 rendered Mr Mouratidis unable to return to Australia when he had in fact done so. For this reason also, her Honour was in error.

The portability period commencing on 28 December 2008

33    Both at first instance and in this appeal, by notices of contention, Mr Mouratidis sought determinations that the Tribunal should have made findings that one or more events occurred during the portability period that commenced on 28 December 2008, which would have justified an extension of that period. The first of those events was said to be a further diagnosis of Mr Mouratidis’s mother’s condition on 5 January 2009 as being a combination of age-related dementia, a hip fracture and pneumonic consolidation. The second event was the release from hospital of Mr Mouratidis’s mother, suffering from her serious illness, on 15 January 2009.

34    The fact-finding function is one for the Tribunal. To make a finding that either of the suggested events was an event that satisfied the requirements of s 1218C required a consideration of the evidence and an evaluation of the degree of seriousness of each of the suggested events, which the Court is not in a position to make. In addition, it would be necessary to make a determination whether the suggested events were, or either of them was, such as to render Mr Mouratidis unable to return to Australia. That determination could only be made after an evaluation of the evidence. The Court is not in a position to make such an evaluation.

35    The express power to make findings of fact, conferred on the Court by s 44(7) of the AAT Act, is not intended to empower the Court to usurp the function of the Tribunal. There are cases in which the Court can make findings of fact supplementary to those made by the Tribunal. This is not one of those cases.

36    In order to perform its function of reviewing on the merits the decision of the SSAT to extend Mr Mouratidis’s portability period, the Tribunal was obliged to consider whether it could extend the portability period that commenced on 28 December 2008. If the characterisation of the Tribunal’s decision as a decision to extend the portability period that commenced on 12 September 2008 is correct, then the Tribunal has failed to discharge its function in this respect. Alternatively, if the Tribunal did consider extending the portability period that commenced on 28 December 2008, it did not address itself to the question whether any necessary event occurred during that period. Mr Mouratidis’s notices of contention at first instance and in this appeal have raised two suggested events. The Tribunal needed to consider, and reach a conclusion, as to whether either of those suggested events amounted to an event falling within the criteria in s 1218C of the Social Security Act, and rendering Mr Mouratidis unable to return to Australia. It has not done so. It should proceed to do so.

Costs

37    Counsel for the Secretary made it clear that the Secretary does not seek an order against Mr Mouratidis for costs, either of the appeal or of the proceeding at first instance.

38    Counsel for Mr Mouratidis applied for a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”). By s 6(1) of the Costs Act, the Court has a discretion to grant a costs certificate in respect of an appeal on the application of a respondent to the appeal, where a Federal appeal has succeeded on a question of law. Reference to the definition of “Federal appeal” in s 3(1), especially para (e) of that definition makes it clear that an appeal to the Full Court of this Court from a judgment of a single judge of this Court is a Federal appeal.

39    The leading authority on the exercise of the discretion is Bullock v The Federated Furnishing Trades Society of Australasia (No 2) (1985) 5 FCR 476. At 477, the Full Court made it clear that there is no automatic entitlement to a costs certificate, nor any presumption that one will be granted, merely because the prerequisites that an appeal has succeeded, and that it has succeeded on a question of law, are satisfied. The successful respondent must satisfy the Court “that it is appropriate in all the circumstances for a certificate to be granted” and “the circumstances which could properly influence that decision are many and various.” At 479, the Court regarded as a significant factor the fact that the respondents had obtained a positive advantage, and the successful appellants had suffered a corresponding disadvantage, by reason of the incorrect refusal of an interlocutory injunction at first instance. It was also relevant that that refusal had not been brought about by the respondents placing evidence before the Court, but by their reliance on legal argument, a course thought by the Full Court to involve obvious risk.

40    In Life Therapeutics Ltd v Bell IXL Investments Ltd (No 2) [2008] FCAFC 158 (2008) 170 FCR 595 at [5], the Full Court said:

It is apparent from our reasons published on 15 August 2008 that the appeal succeeded on a question of law. There were no matters which arose in the course of the conduct of the appeal by the first respondent which we consider ought to be taken into account in determining whether we should exercise the discretion given to the Court under s 6(1) of the Act against the grant of a costs certificate. Accordingly, we consider that the Court should grant to the first respondent a costs certificate in respect of the appeal.

41    The approach taken in Life Therapeutics has some of the appearance of the Full Court treating the entitlement to a certificate as presumptive once it is decided that an appeal has succeeded on a question of law. In the absence of any conduct of the respondent that might have been regarded as weighing against the grant of a certificate, the Court proceeded to grant one without considering whether there were factors weighing in favour of that result. The passage quoted in [40] above was cited by the Full Court in Minister for Immigration and Citizenship v SZNVW (No 3) [2010] FCAFC 102 at [3], following the observation that there were “no matters disentitling the respondent from the issue of” a certificate. It is clear, however, that the Full Court in SZNVW did not grant a certificate solely on the basis of the absence of disentitling factors. The Court proceeded to look at the “credit side of the ledger”, basing the decision to grant a certificate on the precedent value of the outcome achieved by the appellant. The better view is that, in considering whether to grant a costs certificate, the Court should consider all the circumstances of a case, if necessary balancing those favouring the grant against those tending to the opposite conclusion.

42    There can be no doubt that the appeal in the present case has succeeded on a question of law. Both at first instance and on appeal, the question has been one of the proper construction of the provisions of Div 2 of Pt 4.2 of Ch 4 of the Social Security Act, and the need to correct the primary judge’s incorrect construction of those provisions is the reason for the Secretary’s success on appeal. It is therefore necessary to turn to the circumstances of the case.

43    Although originally the applicant for an extension of the portability period for his DSP, Mr Mouratidis was taken to the Tribunal by the Secretary, who was dissatisfied with the decision of the SSAT in favour of Mr Mouratidis. Mr Mouratidis was then brought to the Court as the respondent to an appeal on the question of law and in turn on an appeal from the judgment of the primary judge on that question of law. The Secretary was no doubt seeking to establish a proper precedent for the approach to be taken to applications to extend portability periods for social security payments generally. This approach is confirmed by the Secretary’s willingness to forgo any possibility of a costs order in his favour, either in respect of the proceeding at first instance or in respect of this appeal. It is also likely to be the reason why Mr Mouratidis has been represented by senior and junior counsel, on a pro bono basis, at first instance and again on appeal. The outcome of this appeal therefore has significance in terms of precedent in the same way as the outcome of the appeal in SZNVW did. Further, Mr Mouratidis succeeded at first instance not so much on the basis of the argument properly put on his behalf by his counsel, but on the basis of the view advanced by the primary judge as to the meaning of the word “continuously” (see especially her Honour’s reasons for judgment at [56], where her Honour said, “As I raised the question only in the course of the hearing, the parties made no detailed submissions on the implications of s 1213, nor on the meaning of ‘continuously absent’”). These circumstances favour the grant of a costs certificate.

44    On the other side is the adoption by counsel for Mr Mouratidis in the appeal of the erroneous reasoning of the primary judge. It is one thing to take the benefit of her Honour’s mistaken view of the effect of the word “continuously”, but another to adopt the incorrect reasoning and to advance the various authorities on the meaning of “continuously” as a prominent part of the case on appeal, as Mr Mouratidis did. His counsel could have conceded that the reasoning of the primary judge was unsustainable and relied on the failure of the Tribunal to consider whether to extend the portability period that began on 28 December 2008. In addition, it could be said that Mr Mouratidis obtained a benefit from the outcome of the appeal. Instead of simply setting aside the Tribunal’s decision, the Court has decided to order that the case be remitted to the Tribunal, to be heard and decided again. Further, Mr Mouratidis has been relieved of a usual consequence of being the unsuccessful respondent to an appeal, because the Secretary does not seek an order for costs against him.

45    On balance, the considerations in [43] above outweigh those in [44]. To some extent, Mr Mouratidis was placed in a difficult position in the appeal. The choice of renouncing or defending the reasoning of the primary judge was not an easy one. The weight of the benefit of returning to the Tribunal is diminished considerably by the fact that Mr Mouratidis is only to receive what he was entitled to in the first place, a determination by the Tribunal of the application to extend the portability period according to law. It seems clear from the provisions of the Costs Act, particularly s 6(3), that the absence of a costs order against an unsuccessful respondent to an appeal is not intended to be an insuperable obstacle to the grant of a costs certificate. Separate provisions are made for a certificate covering the costs incurred by the respondent and for a certificate covering the costs the respondent has been ordered to pay to the appellant. The use of the conjunction “and” serves to indicate that one certificate can cover both types of costs, rather than that a certificate can only be granted if liability for both types of costs has been incurred. In all the circumstances, it is appropriate to grant a costs certificate to Mr Mouratidis. In accordance with s 6(3)(a) of the Costs Act, such a certificate will be to the effect that, in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Costs Act to the respondent in respect of the costs incurred by Mr Mouratidis in relation to the appeal.

Conclusion

46    The learned primary judge was in error in dismissing the appeal, and in upholding the notice of contention. It follows that the appeal from her Honour’s judgment must be allowed. The orders her Honour made on 24 March 2011 must be set aside.

47    The failure of the Tribunal to deal fully with the case before it requires that among the orders that should be made in lieu of those made by the primary judge should be an order setting aside the decision of the Tribunal and remitting the case to be heard and decided again. The Tribunal will then have an opportunity to do what it has failed to do, namely to focus on the question whether the portability period commencing on 28 December 2008 can and should be extended.

48    In substitution for the orders made by the primary judge, it should be ordered that the appeal from the Tribunal be allowed, the decision of the Tribunal be set aside, and the case be remitted to the Tribunal to be heard and decided again. In light of the Secretary’s attitude to questions of costs, referred to at [37] above, it should be ordered that there be no order as to the costs of the proceeding at first instance. For the same reason, it should also be ordered that there be no order as to the costs of the appeal. For the reasons given at [38]-[45] above, there should also be an order that a certificate pursuant to the Costs Act be granted, in the form described in [45] above.

Associate:

Dated:    19 March 2012

REASONS FOR JUDGMENT

FLICK J

49    The Respondent, Mr Mouratidis, was born in Greece. From about 1990 he has been in receipt of a disability support pension payable under the Social Security Act 1991 (Cth). Subject to the provisions of that Act, a number of discretionary powers are conferred upon the Secretary to permit such a pension to remain payable even if a recipient is not present in Australia. The Act refers to the period of time during which a pension may remain payable as the “portability period”.

50    In issue in the present appeal is whether the Secretary had power to extend the “portability period” so as to permit the continuation of payments to Mr Mouratidis.

51    The facts, in very summary form, relevantly commence in May 2008 when Mr Mouratidis accompanied his elderly and frail mother on a visit to Greece. He returned to Australia in August 2008 to preserve his entitlement to his pension but left again for Greece in September 2008. Mr Mouratidis again returned to Australia on 9 December 2008 and again returned to Greece on 28 December 2008.

52    In March 2009, the Appellant stopped payment of Mr Mouratidis’ pension. Mr Mouratidis was successful in having that decision overturned by the Social Security Appeals Tribunal.

53    On 30 December 2009, the Appellant applied to the Administrative Appeals Tribunal seeking review of the decision made by the Social Security Appeals Tribunal. On 30 April 2010, the Administrative Appeals Tribunal affirmed the decision under review: Re Secretary, Department of Families, Community Services and Indigenous Affairs and Mouratidis [2010] AATA 318.

54    The Secretary again appealed. The appeal was dismissed: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis (No 3) [2011] FCA 268, 121 ALD 41.

55    Not to be deterred, the Secretary now appeals to this Court. A Notice of Appeal was filed on 13 April 2011.

56    The appeal is to be allowed.

The Portability of Pensions

57    The “portability” of pensions is relevantly regulated by Division 2 to Part 4.2 of the Social Security Act. Part 4.2 is titled “Overseas Portability”.

58    The current ss 1213, 1215, 1217 and 1218C were inserted by the Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000 (Cth).

59    The effect of ss 1215 and 1217 is that a person’s right to continue to be paid a variety of payments – including a disability support pension – “is not affected merely by the absence” of the person from Australia for a maximum period of 13 weeks. Payment thereafter for present purposes is dependent upon the exercise of the discretion conferred by s 1218C.

60    One provision of central importance is s 1213 which provides as follows:

Persons to whom Division applies

This Division applies to a person during a period (the period of absence) throughout which the person is continuously absent from Australia, if:

(a) immediately before the period of absence commenced, the person was receiving a social security payment (the payment) mentioned in column 2 of the table at the end of section 1217; or

(b) during the period of absence, the person’s claim for such a payment is granted under the Social Security (Administration) Act 1999.

This section assumes central importance because it is the provision which identifies the persons to whom the Division applies and it does so relevantly in terms of a person who is “continuously absent”.

61    Another provision of central importance is s 1218C. That section relevantly provides as follows:

Extension of person’s portability period – general

(1)    The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:

…;

(b)    a serious illness of the person or a family member of the person;

(c)    the hospitalisation of the person or a family member of the person;

…

(2)    The Secretary must not extend the person’s portability period under subsection  (1) unless:

(a)    the event occurred or began during the period of absence; …

62    The structure of s 1218C is comparatively simple. Section s 1218C(1) confers a discretion to extend the “portability period” – i.e., the “Secretary may extend”. The condition precedent to the exercise of that discretion is the Secretary forming a state of satisfaction that a claimant is “unable to return to Australia because of” one or other of the “events” set forth in paragraphs (a) to (k). Section 1218C(2) thereafter imposes a constraint upon the availability of that discretion – i.e., the Secretary “must not extend the … portability period” unless the “event” falls within s 1218C(2)(a) or (b).

63    The term “event” takes its meaning primarily from s 1218C(1) itself. Dictionary definitions of that term assume only marginal relevance. An “event” for the purposes of s 1218C is one or other of those “events” thereafter set forth in s 1218C(1).

64    The meaning of s 1218C has received some attention in decisions of the Administrative Appeals Tribunal. Little difficulty seems to have been experienced in respect to the application of that section to the many factual scenarios that have come before the Tribunal. Hence, for example, the Tribunal has concluded that the discretion conferred by s 1218C is not available to be exercised where the person concerned has no intention of returning to Australia: Re Marincic and Secretary, Department of Family and Community Services [2004] AATA 157, 80 ALD 794.

65    As s 1218C(2) makes clear, the “event” relied upon must have “occurred or began during the period of absence”. Where the “event” does not occur or begin whilst a person is absent from Australia, a claimant cannot bring himself within s 1218C: Jin v Centrelink [2011] FCA 337.

The Findings of the Administrative Appeals Tribunal

66    It would appear that few of the facts relevant to the review process being undertaken by the Tribunal were in dispute. Much of the evidence apparently went unchallenged. The transcript of the hearing, however, was not reproduced in the materials available on appeal. Regardless of the state of the evidence or other materials available to the Tribunal, left for resolution by the Tribunal were the ultimate factual conclusions or inferences to be drawn and the application of the statutory provisions to those factual conclusions.

67    The Tribunal decided that Mr Mouratidis was “entitled to a continuation of the payment of his DSP from 29 March 2009”: Re Secretary, Department of Families, Community Services and Indigenous Affairs and Mouratidis [2010] AATA 318 at [31]. The route by which the Tribunal reached that decision, however, was not self-evident.

68    The confined jurisdiction of this Court when reviewing any decision of the Tribunal is to be constantly borne in mind. That jurisdiction is conferred by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). That section provides for an “appeal … on a question of law”. No jurisdiction is conferred to correct such factual errors as the Court may perceive to have been committed.

69    And, although expressed in terms of an “appeal”, the jurisdiction being exercised is an exercise by the Court of its original jurisdiction: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 410 per Bowen CJ and Deane J. The “question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it”: Brown v Repatriation Commission (1985) 7 FCR 302 at 304 per Bowen CJ, Fisher and Lockhart JJ. See also: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 at [38] to [39], 114 ALD 8 at 19 per Marshall, Tracey and Foster JJ. An appeal which does not identify a “question of law” and which is no more than an application to undertake a review on the merits may be struck out: eg, Kara v Comcare [2011] FCA 951.

70    The “question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ. No submission was advanced in the present appeal that a “question of law” did not arise.

71    It is within these constraints that power is conferred upon the Court to make orders in respect to a decision of the Tribunal.

72    It is thus necessary to identify the manner in which the Tribunal approached the construction of the statutory provision in issue and thereafter the manner in which the Tribunal applied that construction to the findings of fact as made.

73    The Tribunal considered the terms of s 1218C and set forth its approach to the construction of this provision as follows:

Consideration

[24] The decision under s 1218C of the Act to continue the payment of a benefit beyond the period permitted when a social security recipient is overseas is discretionary. The discretion can only be exercised because one of the events set out in the section renders the recipient unable to return to Australia. …

[25] In Manolev ([2005] AATA 398), the Tribunal stated that the use of the word “events” in s 1218C of the Act “means a specific identifying incident and not something which came on gradually” ([2005] AATA 398 at [28]). This Tribunal is unable to accept that limitation, which does not appear in the words of the section and there is no reason to read down the words used. As is apparent from the terms of s 1218C(2)(a) of the Act, the event must have “occurred” or “began” during the period of absence. For an illness to occur, this includes a condition manifesting itself. Among the meanings attributable to the verb “to occur” are “take place, befall, happen”, and it [is] in this sense that the noun “event” in s 1218C(2) of the Act should be understood.

No issue, it may be noted, is taken in the present appeal as to whether or not a deterioration of a medical condition may constitute an “event” for the purposes of s 1218C. That was an issue which had been argued before the Tribunal – but it is an issue which has fallen by the wayside in the hearing of the appeal. The sole issue to be resolved on appeal is whether – upon the facts as found by the Tribunal – the condition precedent to the exercise of the discretionary power had been satisfied.

74    Those findings of fact were expressed by the Tribunal as follows:

[26] There is no doubt the respondent’s mother was aged and frail when she went to Greece on 28 May 2008. She was then in need of the services of a carer. While there is no medical evidence to support such a finding, the Tribunal accepts that she may, as part of that frailty, have been suffering Alzheimer’s disease. She was however fit enough to undertake the journey to Greece.

[27] By 2 December 2008 the respondent’s mother was certified as being unable to travel and as requiring the services of a second carer. The Tribunal regards that medical assessment as representing an appreciable deterioration of her condition as clearly in May of that year she had been able to travel overseas, albeit with assistance. Moving from a state at which a person is able to travel overseas to one at which that is no longer possible, and no new condition is mentioned, is indicative of a deterioration in the person’s condition. Similarly the need to increase the number of carers required to look after her is indicative of her deterioration. As at 2 December 2008, it was reasonable to conclude, and the Tribunal does agree, that her condition had changed from one in which she was merely old and frail with Alzheimer’s disease to one in which she had become seriously ill as the result of that disease.

[28] On 16 December 2008, his mother fell and broke her right leg. She was admitted to hospital. Prior to her discharge, Dr Patelaros, a psychiatrist, certified her as suffering advanced dementia and that she was bedridden. This all occurred while the respondent was in Australia. He returned to Greece on 28 January 2009 where he has remained caring for his mother since.

[29] The Tribunal accepts that the applicant’s two return trips to Australia from Greece in 2008 were made in order to secure a continuation of the payment of his DSP. He was however outside Australia at the time, in early December 2008, when the Tribunal is satisfied his mother’s condition deteriorated and she became seriously ill. It would be harsh and unreasonable if his return to Australia for the period between 9 December and 28 December 2008, in order to secure the continued payment of his benefit should act to disqualify him from receipt of the benefit if he is otherwise entitled, given that:

(a)    it is unclear whether he had been advised of the circumstances which may give rise to approval of portability,

(b)    the subsequent medical evidence that his mother’s condition had worsened was forthcoming, and

(c)    he was advised that an application to have the portability approved would not be successful.

The Tribunal then went on to affirm the decision of the Social Security Appeals Tribunal.

75    The Administrative Appeals Tribunal, accordingly, made express findings of fact as to the mother’s condition as at 2 December 2008. But it failed to identify the “portability period” that was being extended.

76    That difficulty was addressed by the primary Judge as follows:

Portability period extended by the Tribunal

[50] In the present case, the Tribunal did not expressly state that it extended a portability period and did not identify, by reference to particular dates, the portability period it extended. Rather, it affirmed the decision of the SSAT that the respondent was entitled to a continuation of the payment of the disability support pension from 29 March 2009.

[51] There are two possible portability periods the subject of the extension. The first is a portability period commencing on 12 September 2008. The second is a portability period commencing on 28 December 2008. While the respondent returned to Australia on 9 December 2008, prior to the expiration of the 13 week period commencing on 12 September 2008, and hence, on one view, did not require an extension of that portability period, it was during his absence within that 13 week period that the Tribunal unambiguously located the occurrence, as at 2 December 2008, of an event which satisfied the statutory precondition for the existence of the discretion (namely, the appreciable deterioration of the respondent’s mother’s illness to the point where it became serious, as certified on 2 December 2008). If, on the other hand, the respondent’s return to Australia on 9 December 2008 and arrival in Greece on 28 December 2008 initiated a new portability period and a new period of absence, the 13 week portability period expired on 29 March 2009, yet the only circumstances relevant to an extension identified by the Tribunal within that period of absence was the mother’s diagnosis on 12 January 2008 and discharge from hospital on 15 January 2009. The Tribunal did not identify those circumstances as an event, although the respondent, in the Notice of Contention, alleges that such a finding could and should have been made.

[52] The respondent submitted, correctly in my view, that on the better construction, the Tribunal extended the portability period commencing on 12 September 2008 but failed to make an express finding to that effect. On the better reading of the reasons, the Tribunal extended the portability period commencing on 12 September 2008, in which it identified the occurrence of an event within the meaning of s 1218(1) during the respondent’s absence from Australia. It treated the respondent’s short return to Australia prior to the expiration of the portability period commencing on 12 September 2008 as potentially relevant to the exercise, rather than the existence, of the discretion.

[53] On that construction of the Tribunal’s reasons, the respondent’s return to Australia on 9 December 2008 would not constitute an impediment to the existence of the discretion unless, as the applicant contended, the Act imposes a temporal scheme where (in the context of extensions of the portability periods specified in the Act) any return to Australia extinguishes the discretion to extend, and terminates an extension already granted, of a portability period specified in s 1217 of the Act even if, during the respondent’s absence from Australia, the criteria for an extension were satisfied.

The primary Judge went on to conclude that the return to Australia on 9 December 2008 by Mr Mouratidis “did not exclude the discretion to extend the portability period commencing on 12 September 2008”: [2011] FCA 268 at [70]. The primary Judge also went on to conclude that it was unnecessary “that the serious illness ‘begin’ during the period of absence” and that “the occurrence of a ‘serious illness’ of a person or family member under s 1218(1)(b) would comprehend a change (including an appreciable deterioration) in the degree or nature, or the diagnosis of, an existing condition, sufficient to cause the inability to return to Australia during the period of absence”: [2011] FCA 268 at [95].

The Grounds of Appeal

77    The uncertainty as to the “portability period” that was extended by the Tribunal created difficulty for not only the primary Judge but for this Court on appeal.

78    The two principal issues which occupied the course of oral submissions, in very summary form, were:

    whether the return to Australia in December 2008 took Mr Mouratidis outside of the operation of Division 2 to Part 4.2 such that the Secretary (and thereafter the Administrative Appeals Tribunal) had no power to extend any portability period, irrespective of when it was said to have commenced; and

    whether the return to Australia in December 2008 inevitably meant that it was not open to the Tribunal to have found that he was “unable to return to Australia” within the meaning of and for the purposes of s 1218C(1).

79    The Notice of Appeal more fully sets forth these contentions as follows in the Grounds of Appeal:

Discretion to extend portability period not available

1.    The primary Judge erred in finding that the discretion conferred by s 1281C of the Social Security Act 1991 (the Act), to extend the Respondent’s maximum portability period beyond the 13 week-period fixed by s 1217 of the Act, was available to be exercised:

1.1.    despite the Respondent having returned to Australia on 9 December 2008, before the end of the Respondent’s maximum portability period, which had commenced on 12 September 2008;

1.2.    despite the Respondent having demonstrated, by his return to Australia, that he did not meet an essential requirement for the discretion to arise – namely, that he was “unable to return to Australia because of any of the … events” prescribed in paragraphs (a) to (k) of s 1218C(1) of the Act;

1.3.    to extend the Respondent’s portability period to include a period during which the Respondent was not absent from Australia;

1.4    to determine, as the Respondent’s portability period, a period throughout which the Respondent was not “continuously absent from Australia”, as required by s 1213 of the Act.

2.    The primary Judge erred in finding that, on the proper construction of s 1281C of the Act, it had been open to the Administrative Appeals Tribunal (the Tribunal) to extend the Respondent’s portability period commencing on 12 September 2008, in circumstances where, as the Tribunal found:

2.1.    the Respondent’s maximum portability period fixed by s 1217 of the Act commenced on 12 September 2008, when the Respondent departed from Australia;

2.2.    the event, by reference to which the Respondent asserted he was unable to return to Australia, occurred on 2 December 2008;

2.3.    the Respondent returned to Australia on 9 December 2008, before the end of his maximum portability period;

2.4.    the Respondent remained in Australia until 28 December 2008, when he again departed from Australia;

2.5.    the Respondent first applied to the applicant for an extension of his maximum portability period after 29 March 2009.

3.    The primary Judge should have held that:

3.1.    on the proper construction of the Act, the discretion conferred by s 1218C(1) of the Act to extend the Respondent’s maximum portability period, being a period that commenced on 12 September 2008, had not been available to the Tribunal; and

3.2    to the extent that the Tribunal had purported to exercise the discretion conferred by s 1218C(1) of the Act to extend the Respondent’s maximum portability period commencing on 12 September 2008, the Tribunal had fallen into an error that was reviewable under s 44(1) of the Administrative Appeals Tribunal Act 1975.

The Return to Australia — 9 December 2008

80    There is no real issue in the present appeal questioning the portability period that commenced on 12 September 2008 and ended on 9 December 2008. Mr Mouratidis departed for Greece on 12 September 2008 and returned to Australia on 9 December 2008. During this period he received a disability support pension. He remained overseas for less than the maximum period of 13 weeks.

81    The purpose of Mr Mouratidis’ return to Australia on 9 December 2008 was to secure the continuation of payments of this pension. His purpose in returning, however, assumes little relevance. He again departed for Greece on 28 December 2008.

82    Unless lawfully extended, the portability period that commenced on 12 September 2008 expired upon his return to Australia.

83    Presumably by reason of the acceptance that a condition precedent to the existence of the discretion conferred by s 1218C had been satisfied in respect to the September-December 2008 period, those appearing for Mr Mouratidis understandably sought to contend that the portability period that had commenced in September 2008 was available to be extended. The return to Australia in December 2008, it was contended, did not bring that earlier portability period to an end.

84    In that they were mistaken. The return to Australia meant that Division 2 of Part 4.2 no longer applied to him.

85    The phrase employed in s 1213, namely a “person … continuously absent from Australia”, is to be construed as referring to a person who is absent from Australia “without interruption”. Once Mr Mouratidis returned to Australia, he was not a person who was absent “without interruption” and, accordingly, not a person to whom the portability provisions set forth in Division 2 applied.

86    To construe “continuously absent” as meaning absent “without interruption” is to give those words their natural and ordinary meaning.

87    Reliance by the Respondent upon decisions as far afield as a 1942 decision of the Supreme Court of New York County (Turner v American Metal Co, Limited 36 NYS 2d 356 (1942)) was misplaced. Such reliance merely exposes the evils that computer search facilities now permit, if not encourage. In an appropriate case, recourse to decisions of foreign courts may prove of considerable utility and assistance. But the present is not such a case. The judgment of the legal representatives of the parties must constantly be exercised to ensure that it is those representatives – and not the Court – that return such spirits of far-off shores back into the genie lamps from which they are released due to excessive research. The pursuit of such a course of irrelevant research exposed, in the present appeal, the New York County Court stating for the purposes of the statutory provision there in question that the “law is well settled that a defendant is to be considered continuously absent from the state for a period of one year or more … even though he makes casual, temporary and irregular visits to the state during that period”. Reliance was also placed upon Re Wishart [1994] 1 Qd R 108 and Thomson v Repatriation Commission [2000] FCA 204, 61 ALD 58. The decision in Thomson concerned a phrase found in an eligibility provision set forth in the Veterans’ Entitlements Act 1986 (Cth), namely a requirement that a person had worked “for a continuous period of at least 10 years” in “any profession, trade, employment, vocation or calling”. Continuity, it was concluded, was relevant but not determinative. Each of these decisions was the product of the statutory context there under consideration.

88    A more certain field of analysis is to be found in the objects and purpose sought to be achieved by the statutory provisions in question and the terminology actually employed by the Parliamentary draftsman. It may be doubted whether the draftsman had the decision in Turner readily to mind.

89    The Outline and Financial Impact Statement set out in the Explanatory Memorandum that accompanied the Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Bill 2000 stated that the “Bill gives effect to a range of 1999 Budget and related matters namely: the simplification of international payments relating to portability”. A number of other matters were thereafter mentioned. Reference was also made to the “standardisation of the portability rules”. But the Court was not taken to such other amendments to the “portability rules” contained within other legislation.

90    Such guidance as may be gleaned from the Explanatory Memorandum suggests that an objective of the provisions now found in Division 2 of Part 4.2 was to simplify and standardise those circumstances in which a person should continue to receive payments notwithstanding the fact that he may have left Australia.

91    Guidance as to the correct construction of the phrase “continuously absent from Australia” – in addition to the guidance provided by the phrase itself – may also be found in expressions employed elsewhere within that Division, including:

    “throughout the period of absence” (s 1214(1);

    “merely by the absence” (s 1215(1)(a)) and “merely by the person’s absence”, (s 1218(2));

    an “allowable absence” (s 1217(2);

    “any absence” and “any temporary absence” (the “table” in s 1217);

    the “portability period” (s 1217(4)); and

    the “period of absence” (s 1218C(2)(a)).

Those provisions clearly enough demonstrate the attempt of the Parliamentary draftsman to set forth those persons to whom the Division applies (s 1213). Relevantly for the purposes of the present appeal, the “maximum portability period” for a person in receipt of a disability support pension is set at a period of 13 weeks (s 1217 and Item 3 to the “table”). As that “table” makes clear, “any absence” for a “maximum” of 13 weeks is “an allowable absence” (s 1217(2)(a)).

92    The legislative intent may, perhaps, have been achieved by far simpler language. Perhaps some of the apparently unnecessary variety in terminology may be attributable to the attempt to “standardise” portability provisions across a range of legislative regimes. But, whatever the difficulties, the legislative intent emerges relatively clearly: if a person is in receipt of a disability support pension, payments will continue to be made notwithstanding the fact that he may leave Australia and hence be “absent” for a maximum of 13 weeks. But a person ceases to have the benefit of any “portability period” once he returns. Once he returns, there is no need for the Legislature to address the ability of a person to continue to receive payments whilst he is no longer “absent” from Australia.

93    Upon such a simple approach to the legislation, there is no need to consider such difficult questions as may arise as to whether a return to Australia is “transient” or otherwise. This approach of the primary Judge ([2011] FCA 268 at [76]), with great respect, may have a tendency to defeat the “simplicity” otherwise sought to be achieved by the Parliamentary draftsman.

94    The return to Australia in December 2008 thus brought to an end any “portability period” to which Mr Mouratidis was otherwise entitled. He was obviously free to thereafter again depart from Australia, as he in fact did on 28 December 2008, and to continue to receive his disability support pension for a further maximum period of 13 weeks. But any exercise of the discretion conferred by s 1218C to extend this period would depend upon him again bringing himself within the reach of that provision.

95    The fact that instances may be provided of the legislation operating harshly, as were in fact provided by Senior Counsel for Mr Mouratidis, cannot alter the natural meaning of the words employed by the Legislature. The facts of the present case may be regarded by some as operating harshly upon Mr Mouratidis. If there is merit in such examples, however, that is a matter for the Legislature to address.

Unable to Return?

96    An alternative argument advanced on behalf of the Secretary was that it was simply not open to the Tribunal to have concluded that Mr Mouratidis was “unable to return to Australia” within the meaning of and for the purposes of s 1218C(1). More accurately, the submission was that it was not open to the Secretary – or the Tribunal when conducting its review – to be “satisfied that the person is unable to return to Australia”.

97    The success of the Secretary on the primary basis upon which he advanced his appeal makes it unnecessary to resolve this alternative argument. But it was the subject of both written and oral submissions and should be briefly addressed.

98    The difficulty confronting both the Secretary and Mr Mouratidis was that the Tribunal did not expressly conclude that he was “unable to return”. In concluding, however, that the portability period had been extended the Tribunal must necessarily have also concluded that he was “unable to return”. Although no such express conclusion is to be found in the reasons for decision of the Tribunal, in the absence of such a conclusion the portability period could not lawfully have been extended.

99    The resolution of any “question of law” that may be phrased in respect to the decision of the Tribunal thus necessarily started from very uncertain factual foundations.

100    Both the Secretary and Mr Mouratidis were nevertheless in agreement that an inability to return was not confined to a physical inability; the statutory expression, it was jointly accepted, embraced a practical inability. Such a practical inability may arise by reason of a myriad of circumstances, extending from financial circumstances to the need to provide emotional comfort to the “family member” who has been involved in a serious accident or illness. The matters to be taken into account would depend (at least in part) upon the “event” being relied upon.

101    But the agreement between the parties ended there.

102    It was properly conceded on behalf of the Secretary that it was far too late for reliance to be now placed upon any failure on the part of the Tribunal to comply with s 43(2B) of the Administrative Appeals Tribunal Act. That subsection provides as follows:

Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

A conclusion that a person is “unable to return to Australia” may properly be characterised as a conclusion reached upon the basis of one or other of a number of facts.

103    There are self-evident difficulties in discerning the basis upon which the Tribunal reached a conclusion as to the inability of Mr Mouratidis to return to Australia where such a conclusion was not expressly made and where the factual foundation for any such conclusion is not clearly set forth. The failure on the part of the Tribunal to set forth “its findings on material questions of fact” both hinders the Court in exercising the limited jurisdiction conferred upon it by s 44 of the Administrative Appeals Tribunal Act and sounds a caution to the Court to ensure that it does not trespass beyond that limited jurisdiction. A Court (for example) should resist reaching a conclusion that a Tribunal decision exposes no appellable error if it be assumed that a number of unstated factual findings “must” have been made. Given that assumption, no appellable error may have been committed. But it is not the task of the Court to assume that those unstated factual findings were implicitly made – the Tribunal may or may not have made such findings, had it directed its attention to the necessity to do so.

104    Notwithstanding those difficulties, the Secretary submitted that a finding of an inability to return was simply not open upon the facts as found. Such a forensic course accepted that such “questions of fact” as the Tribunal considered “material” to its decision had been made. The submission assumed compliance with s 43(2B). The danger of assuming that other unstated facts must also have been made was thereby avoided. On this approach, the facts as found could not support a conclusion that Mr Mouratidis was “unable to return”.

105    Whilst recognising these deficiencies in the Tribunal’s reasons for decision, Senior Counsel on behalf of Mr Mouratidis submitted that the factual foundation for such a conclusion could nevertheless be discerned from piecing together the statements made by the Tribunal at paragraphs [10], [22], [24], [29] and [30] of its reasons for decision. Paragraph [24] set forth the observations of the Tribunal as to an inability to return to Australia being demonstrated by “circumstances less well defined” than physical impossibility. The Tribunal thus instanced “an expectation that, in [the] ordinary course of human affairs, the recipient may not be expected to return, such as following the death or serious illness of a relative abroad”. If Mr Mouratidis was to succeed, the Tribunal stated that his circumstances must fall within this category of “less well defined circumstances”.

106    Within this constraint, Senior Counsel for Mr Mouratidis referred to the further observations of the Tribunal that Mr Mouratidis’ mother as at 2 December 2008 needed the “assistance of a second carer and could not travel overseas” (at [10]) and its reference to the “need for care” being “the relevant factor which happened prior to his seeking an extension of the portability” (at [22]). Paragraph [29] set forth an observation as to the mother becoming “seriously ill” and was followed (at [30]) by a statement that a person “suffering from a serious illness may remain in that state for a lengthy period of time and be unable to travel to Australia”.

107    The need to care for a “family member” who has suffered a “serious accident” or a “serious illness” may well be a factor going to an assessment as to whether a person is able to return to Australia.

108    But such findings or observations as have been made by the Tribunal do not unequivocally support a conclusion that Mr Mouratidis was “unable to return”. Such findings as have been made by the Tribunal make it equally difficult to unequivocally conclude that he was in fact able to return.

109    The importance of the Tribunal providing reasons for its decision and making findings on material questions of fact has long been recognised. Without compliance with such important statutory requirements as have been imposed by s 43 of the Administrative Appeals Tribunal Act, the ability of this Court to resolve a “question of law” is seriously undermined.

110    Had it been necessary to resolve the alternative manner in which the Secretary advanced his appeal, it may have been necessary to remit the proceeding to the Tribunal for reconsideration. Given the time taken to resolve the present claims, such a course would have been regrettable.

The Notice of Contention – A Later Portability Period

111    Both before the Administrative Appeals Tribunal and before the primary Judge, Senior Counsel on behalf of Mr Mouratidis advanced an alternative argument: it was submitted that a further portability period commenced on 28 December 2008 when Mr Mouratidis again returned to Greece.

112    On this alternative approach, it was submitted that the “event” which satisfied the condition precedent to the exercise of the discretion conferred by s 1218C(1)(b) was the “serious illness” of the mother which occurred subsequent to 28 December 2008 being:

    the diagnosis of the mother on 5 January 2009 that she was suffering from a combination of age related dementia, a hip fracture and pneumonic consolidation; and/or

    release from hospital on or about 14 January 2009.

This alternative argument was not resolved by either the Tribunal or the primary Judge.

113    These were the dates that assumed importance in the Notice of Contention as filed in this Court and dated 4 May 2011. That Notice was expressed as follows:

The respondent contends that the judgment of the Court given on 24 March 2011 from which this appeal is brought should be affirmed on the following grounds not relied upon by the Court below:

1.    On the facts of this case, the Administrative Appeals Tribunal should have made a finding having the effect of extending the respondent’s portability period commencing 28 December 2008 on the basis that the relevant event that occurred during that period of absence rendering the respondent unable to return to Australia was:

a.)    The occurrence of the respondent’s mother’s serious illness on or about 5 January 2009 being the combination of age related dementia, a hip fracture and pneumonic consolidation; or

b.)    The release from hospital of the respondent’s mother suffering from a serious illness on about 14 January 2009.

A comparable Notice of Contention had been filed in the proceeding before the primary Judge.

114    There are at least two reasons why the Notice of Contention should not be resolved in favour of Mr Mouratidis and why the proceeding should be remitted to the Tribunal for reconsideration in accordance with law.

115    The first reason springs from the role performed by this Court when entertaining an appeal from a decision of the Tribunal and the limited power of the Court to make findings of fact not made by the Tribunal.

116    When entertaining an appeal from a decision of the Tribunal, a limited power is conferred upon this Court to itself make findings of fact: Administrative Appeals Tribunal Act s 44(7). That subsection provides as follows:

If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:

(a)    the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and

(b)    it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:

(i)    the extent (if any) to which it is necessary for facts to be found; and

(ii)    the means by which those facts might be established; and

(iii)    the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and

(iv)    the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(v)    the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(vi)    whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and

(vii)    such other matters (if any) as the Court considers relevant.

This limited power is an adjunct to the jurisdiction conferred by s 44(1) to resolve a “question of law”.

117    The mere fact that the Notice of Contention is thus expressed in terms of inviting the Court to make a finding of fact is not in itself a reason why the Court should not entertain the Notice. To the extent that it was submitted otherwise on behalf of the Secretary, that submission is rejected.

118    The Notice of Contention, however, should nevertheless be rejected upon the basis that there is both an absence of a sufficiently certain evidential basis upon which the findings should be made; and by reason of the failure on the part of the Tribunal to itself make express findings of fact or state such other conclusions as may have assisted in the making of the findings sought in the Notice of Contention.

119    The making of such findings of fact as are sought in the Notice of Contention may also be complicated by the significance ascribed by the Tribunal to the circumstances as at 2 December 2008. As at that date, the Tribunal stated:

[27] … it was reasonable to conclude, and the Tribunal does agree, that her condition had changed from one in which she was merely old and frail with Alzheimer’s disease to one in which she had become seriously ill as the result of that disease.

That was a finding made obviously enough by the Tribunal for the purposes of reaching the conclusion in fact reached and not one made for the purposes of addressing (let alone resolving) the alternative case being advanced on behalf of Mr Mouratidis. But that finding may make more difficult any further finding that the mother’s condition in January 2009 had not “occurred or began” prior to Mr Mouratidis’ departure on 28 December 2008.

120    The second reason why the Notice of Contention should not be resolved by this court springs from the fact that s 1218C vests in the Secretary – and not this Court – the requirement that it is the Secretary that is “satisfied that the person is unable to return to Australia”. It is the task of the Tribunal to review on the merits the Secretary’s decision and it is the task of this Court to resolve on appeal any “question of law” that may be exposed by the Tribunal’s decision-making process. Although s 44(7) may confer a limited power to make findings of fact, any such power would not extend to the making of a finding not confined to the decision-making process but tantamount to an exercise of a statutory discretion. And that is the very purpose sought to be achieved by the Respondent. The finding which is sought is not truly to be characterised as the making of a finding of fact; it is truly to be characterised as an exercise of the discretionary power conferred by s 1218C(1). So much necessarily follows from the finding expressed in terms that the Tribunal “should have made a finding having the effect of extending the respondent’s portability period commencing 28 December 2008”. Section 44(7) does not confer any power to make such a finding.

121    In Osland v Secretary, Department of Justice (No 2) [2010] HCA 24, 241 CLR 320, the Victorian Civil and Administrative Tribunal had granted access to documents pursuant to a request made under the Freedom of Information Act 1982 (Vic). Documents could be released if the Tribunal was of the opinion that the public interest required that access should be granted. The Court of Appeal affirmed the original decision refusing access. Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) conferred a right of appeal “on a question of law” from an order of the Tribunal and further conferred upon the Court a variety of powers, including a power to make “any other order the court thinks appropriate” (s 148(7)). In commenting upon the ambit of these powers, French CJ, Gummow and Bell JJ concluded:

[20] The Court of Appeal, in the exercise of its jurisdiction under s 148 of the VCAT Act, may make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained. In that event, the Court can make the order that the Tribunal should have made. The language of s 148(7) is also wide enough to allow the Court of Appeal to make substitutive orders in other circumstances. But its powers must, as with the equivalent powers of the Federal Court in relation to the AAT, be exercised having regard to the limited nature of the appeal. Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment.

The course advanced on behalf of the Respondent in the Notice of Contention, it is respectfully concluded, would propel this Court into the factual merits of the very issue entrusted by the Legislature to the Secretary. The power conferred upon the Administrative Appeals Tribunal in the present proceeding by s 44(7) should likewise be “exercised having regard to the limited nature of the appeal”.

Conclusion

122    The appeal is to be allowed.

123    The Appellant Secretary has been successful in his principal submission that the return to Australia in December 2008 brought to an end any portability period, that may have had its origins in the “event” that occurred in September 2008. The phrase as employed in s 1213, namely “continuously absent”, is to be construed as simply meaning an absence from Australia “without interruption”.

124    The Appellant Secretary, however, has been unsuccessful in establishing that the facts as found by the Tribunal necessarily meant that Mr Mouratidis was in fact able to return to Australia.

125    Even though successful in his appeal, the Appellant Secretary does not seek an order for costs. The Respondent, however, does seek the grant of a certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth). The appeal has succeeded “on a question of law” within the meaning of s 6(1) of that Act and for the purposes of s 6(3) the Court is of the opinion that “it would be appropriate for the Attorney-General to authorize a payment” under the Act. For the purposes of s 6(3)(a) those costs would include the costs incurred both before the primary Judge and on appeal to this Court.

126    The Deputy President who constituted the Tribunal has now retired. The manner in which the Tribunal should be reconstituted for the purposes of re-hearing the application for review is a matter thus to be left to the discretion of the President: Administrative Appeals Tribunal Act s 20B. Given the absence of facts potentially relevant to the re-hearing, no direction should be made pursuant to s 44(5) of that Act precluding the Tribunal as reconstituted from hearing further evidence.

127    It is noted that Mr Mouratidis is presently continuing to receive his disability support pension whiles overseas. The further re-hearing of the application before the Tribunal should nevertheless proceed with as much expedition as the President sees fit.

128    Concurrence is expressed with the orders proposed by Gray J.

Associate:

Dated:    19 March 2012

REASONS FOR JUDGMENT

REEVES J:

129    I have had the opportunity to read the draft reasons for judgment of both Gray J and Flick J. They have come to the same conclusion for essentially the same reasons. I agree with that conclusion and the substance of their reasons. I also agree with the orders proposed by Gray J, including the grant of a certificate under the Federal Proceedings (Costs) Act 1981 (Cth).

Associate:

Dated:    19 March 2012