FEDERAL COURT OF AUSTRALIA

Charan v Secretary, Department of Social Services [2019] FCAFC 134

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the respondent’s costs.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

THE COURT:

1    This is an appeal from a decision of a judge of the Court dismissing the appellants’ application for judicial review of decisions made by an authorised review officer of the Department of Social Services on 28 September 2017. The officer refused each appellant’s application for an aged pension.

Introduction

2    The appellants, Suresh and Anuradha Charan, are citizens of New Zealand who are entitled to, and do, reside permanently in Australia. The appellants were born in Fiji, Mrs Charan in January 1946 and Mr Charan in February 1943. Mrs Charan began residing in New Zealand on 1 January 2005 and Mr Charan on 30 June 2005. Mr Charan turned 65 in February 2008, and Mrs Charan turned 65 in January 2011. Mrs Charan arrived in Australia on 15 February 2014, followed by her husband on 5 April 2014, and they have resided here lawfully ever since.

3    In 2016, the primary judge had also heard and dismissed the appellants’ previous application challenging earlier decisions to refuse each of them an aged pension. The appellants appealed against that decision but the appeal was dismissed by the Full Court (Collier, Katzmann and Farrell JJ): Charan v Secretary, Department of Social Services (2016) 247 FCR 422.

4    On 2 March 2017, Nettle and Gordon JJ refused the appellants’ application for special leave to appeal to the High Court, finding that the appellants had not identified a question of law sufficient to warrant a grant of special leave to appeal and otherwise had advanced no arguable ground of appeal against the decision of the Full Court. Nettle and Gordon JJ said that: “an appeal to this court would enjoy no prospect of success”: Charan v Secretary, Department of Social Services [2017] HCASL 35.

5    Two weeks later, on 16 March 2017, Mr and Mrs Charan applied again, unsuccessfully, for an aged pension, leading to the present appeal.

6    The central issue in this appeal, as in the previous appeal, is whether each of Mr and Mrs Charan had achieved the minimum period of residence in Australia to qualify for an age pension after taking into account any relevant periods of residence in New Zealand.

The legislative context

7    Section 43(1) of the Social Security Act 1991 (Cth) relevantly provided:

A person is qualified for an aged pension if the person has reached pension age and any of the following applies:

(a) the person has 10 years qualifying Australian residence.

8    Section 7(5) of the Social Security Act provided that a person had 10 years qualifying Australian residence if, and only if, the person had, at any time, been an Australian resident for a continuous period of not less than 10 years or had been an Australian resident during more than one period, one of which had to be continuous for five years or more and, in total, the aggregate had to exceed 10 years.

9    Clearly enough, under the provisions of the Social Security Act taken alone, Mr and Mrs Charan could not qualify for an aged pension because they had not yet achieved 10 years qualifying Australian residence since arriving here in 2014. However, Australia and New Zealand have entered into two treaties, namely, the Agreement on Social Security between the Government of Australia and the Government of New Zealand done at Canberra on 28 March 2001 (as amended) (the 2001 Agreement) and the Agreement on Social Security between the Government of Australia and the Government of New Zealand done at Wellington on 8 December 2016 (the 2016 Agreement). The 2016 Agreement appears to have come into force on 1 July 2017, that is, after Mr and Mrs Charan applied for the second time for their aged pensions, but before the impugned decisions were made.

10    Section 6(1) of the Social Security (International Agreements) Act 1999 (Cth) (the International Agreements Act) provided that scheduled international social security agreements between Australia and another country set out in a schedule to that Act “have effect despite anything in the social security law”, which included the Social Security Act. The International Agreements Act provided in s 7 that regulations could be made to amend a schedule to that Act so as to set out in the schedule the text of an agreement that amended, or otherwise affected the operation of, another agreement set out in the schedule. The regulations making such an amendment would come into force no earlier than the day on which the amending agreement comes into force for Australia.

11    For present purposes, there are some, but no material, differences in the terms of the operative provisions of the 2001 and 2016 Agreements that affect the appellants’ eligibility for an aged pension. For present purposes, it will suffice to set out the relevant provisions of the 2001 Agreement. The differences between those provisions and the corresponding articles in the 2016 Agreement are set out in the table in [13] below which the primary judge accurately distilled and included in his reasons together with his conclusions as to the effect of those changes. We gratefully adopt that distillation.

12    Relevantly, the 2001 Agreement provided:

ARTICLE 5

Residence Definitions

1.     “Australian resident” has the meaning given to that term in the social security law of Australia but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia. …

5.     “working age residence” in relation to a person means a period of residence between the ages of 20 and 64 years inclusive (being a maximum of 45 years) but does not include any period deemed pursuant to Article 8 or Article 12 to be a period in which that person was an Australian resident or a New Zealand resident.

ARTICLE 12

Totalisation for Australia

1.     Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated:

(a)  a period as an Australian resident that is less than the period required to qualify that person, on that ground, under the social security law of Australia for a benefit;

(b)  a period of working age residence in Australia equal to or greater than the period identified in accordance with paragraph 3; and

(c)  a period of working age residence in New Zealand.

then:

That period of working age residence in New Zealand shall be deemed to be a period in which that person was an Australian resident only for the purposes of meeting any minimum qualifying periods for that benefit set out in the social security law of Australia.

2.     Where a person’s period of working age residence in Australia and a period of working age residence in New Zealand coincide, the period of coincidence shall be taken into account once only by Australia for the purposes of this Article as a period as an Australian resident.

3.     The minimum period of Australian working age residence to be taken into account for the purposes of paragraph 1(b) shall be as follows:

(a)  for the purposes of an Australian benefit payable to a person residing outside Australia, the minimum period shall be one year of which at least 6 months must be continuous; but

(b)  for the purposes of an Australian benefit payable to an Australian resident, there will be no minimum period.

4.       No person shall be entitled to claim a disability support pension under this Agreement unless he or she has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand.

5.     A claimant for an age pension must be at least 65 years of age to be able to obtain the benefit of this Article.

(emphasis added)

13    The primary judge’s table setting out the differences between the relevant wording of Articles 5 and 12 in the 2001 and 2016 Agreements is reproduced below:

The appellants’ submissions

14    As earlier explained, the substantial question arising on the appeal is the same as arose in the previous round of litigation, namely: whether Mr and Mrs Charan correctly contend that Art 12(1)(b), combined with Art 12(3)(b), had the effect of deeming a combination of their total periods of residence, whether of working age or not, in New Zealand and Australia so as to enable them to satisfy the 10 years qualifying Australian residence requirement in s 43(1)(a) of the Social Security Act. Clearly enough, a combination of their respective periods of residence simpliciter in both countries on the basis for which they contend would have entitled them to do so.

15    However, the previous Full Court held that that was not the correct construction of Art 12 of the 2001 Agreement. Collier, Katzmann and Farrell JJ held that, in substance, Art 12(1) allowed the period of working age residence in New Zealand, together with the period of any relevant working age residence in Australia, to be aggregated with any further period of residence in Australia so as to enable a person to accumulate a total of 10 years based on those periods for the purposes of establishing the 10 years qualifying Australian residence prescribed in s 43(1)(a) of the Social Security Act: see Charan 247 FCR at 438 [57], [60], [61].

16    Mr and Mrs Charan argued that because Art 12(3)(b) provided that there was no minimum period of working age residence in Australia for the purposes of an Australian benefit to be payable to an Australian resident (as they now are), then Art 12(1)(b) had the effect of truncating the 10 year qualifying period to whatever was the total of the periods of their Australian residence and working age residence in New Zealand. They contended that when Art 12(1)(b) provided that a period of working age residence in Australia equal to or greater than the period identified in accordance with Art 12(3) was to be counted towards their qualifying Australian residence, and Art 12(3)(b) provided that there was no minimum period applicable to them, they were simply entitled to be credited with their total residence in both countries as Art 12(4) allowed and therefore they must be taken to have met the 10 year qualifying period.

17    They submitted that this followed from the decision of the Full Court in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (2013) 213 FCR 532 on the construction of Art 12(4).

Consideration

18    We reject the appellants’ argument. Mahrous 213 FCR 532 has no application at all to the present issue. In Mahrous, Kenny, Flick and Kerr JJ held that Arts 12(1) to (3) were general provisions that applied to any Australian benefit, including a disability support pension, claimed under the 2001 Agreement. However, their Honours found that Art 12(4) was a specific provision that, therefore, took precedence in the construction of the 2001 Agreement in respect of the method for calculation of qualifying residence for a disability pension as Art 12(4) in its terms provided (Mahrous 213 FCR at 543-544 [47]-[48] and see also at 547 [62]-[63]). Accordingly, the Court held that, for the purposes of calculating qualifying Australian residence for a disability support pension, the accumulated aggregate of more than 10 years’ residence in Australia and/or New Zealand had to be taken into account.

19    However, Mr and Mrs Charan did not apply for a disability support pension and therefore Art 12(4) had no application to them. In Charan 247 FCR at 435-436 [44]-[47], Collier, Katzmann and Farrell JJ held that Mahrous 213 FCR 532 gave no support to the appellants because it applied only to disability support pensions. They held that Art 12(1) and (5) were relevant for the purposes of qualification for an aged pension. They held (Charan 247 FCR at 438 [61]) that:

The “totalisation” performed by Art 12(1) is to combine the period in which the appellants were actually and lawfully resident in Australia (deemed to be “Australian residence” under s 7(2) and (5) having regard to Art 5(1)) together with the period of their “working age residence” in New Zealand to see if that amounts to the “10 years qualifying Australian residence” required by s 43(1)(a)…. A period of residence in New Zealand after attaining the age of 65 is not included in that calculation.

20    That construction is undoubtedly correct, as the refusal of special leave to appeal to the High Court confirmed. That means that if this appeal is decided under the terms of the 2001 Agreement, we are bound by the previous Full Court decision, as was the primary judge.

21    If, on the other hand, the 2016 Agreement applied, it contained no relevant changes to the structure or operation of the 2001 Agreement so far as each affected the capacity of a person to satisfy the requirement of 10 years qualifying Australian residence in s 43(1)(a) of the Social Security Act. Art 5(1) in the 2016 Agreement does now add the qualification “on a special category visa” to the earlier criterion of a person “lawfully residing in Australia”. However that does not affect the appellants’ position because each of them is lawfully residing in Australia on a special category visa, as his Honour found, and as is accepted by the Secretary. Art 12(3) of the 2016 Agreement also inserted the expression “a person present long term in Australia” in place of the expression “an Australian resident” in the 2001 Agreement. Again, that change does not affect the position of Mr and Mrs Charan since they fell within the terms of each expression, and as we have explained, Art 12(3)(b) does not advance their case.

22    Accordingly, the appeal must fail.

Was the primary judge disqualified for apprehended bias?

23    Mr and Mrs Charan also contended that the primary judge ought to have disqualified himself because when their present application, the subject of this appeal, was docketed to him he had decided the previous application adversely to them. They sought to rely on what Mason J said in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.

24    In our opinion what Mason J said justified and required the primary judge not to disqualify himself. Mason J said (161 CLR at 352):

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [(1969) 122 CLR 546 at 553-554]; Watson [(1976) 136 CLR 248 at 262]; Re Lusink; Ex parte Shaw [(1980) 55 ALJR 12 at 14; 32 ALR 47 at 50-51]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

(emphasis added)

25    Here, first, there were no issues of credibility to be determined in the assessment of whether or not Mr and Mrs Charan could make out a case for judicial review of the officer’s decisions to refuse their applications, and, secondly, his Honour was bound to apply the law as authoritatively determined in Charan 247 FCR 422. Mr and Mrs Charan appeared to have assumed that his Honour, or another judge, would have been free to come to a different decision on the construction of the 2001 or 2016 Agreements and the Social Security Act in respect of their entitlement to an aged pension from that which the Full Court had determined to be the law in Charan 247 FCR 422.

26    That was a misconception. The role of the courts in our system of government is to determine what the law is, and to apply it to the facts of a particular case. Once a court has determined what the law is, that decision has, unless set aside by another court or negated by an Act of Parliament, the effect of the force of law throughout Australia. And an order made by a superior court of record, such as this Court, even if made without jurisdiction, is not a nullity, but rather it is valid and binding until set aside on appeal or under s 75(v) of the Constitution: Re Macks; Ex parte Saint (2000) 204 CLR 158 at 177-178 [22]-[23] per Gleeson CJ, 185-186 [52]-[53] per Gaudron J, 215-216 [151]-[152] per McHugh J, 235-236 [216] per Gummow J, 248-249 [255]-[257] per Kirby J, 279 [343]-[344] per Hayne and Callinan JJ.

27    Therefore, the primary judge was bound to apply, as was any judge of the Court sitting as a single judge, the decision of the Full Court on the very issue which Mr and Mrs Charan had sought to reagitate without any relevant change in circumstances apart from having spent a longer, but still insufficient, period as Australian residents since the last refusal of their application for a pension.

28    As Gleeson CJ, McHugh, Gummow and Hayne JJ said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [8]:

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

(emphasis added)

29    Likewise, in a case like the present where the asserted connection was that the primary judge was bound to follow the Full Court’s decision on the proper construction of the legislation applicable to the claim, there can be no reason to think that the primary judge would not have determined the matter on its merits and impartially, as we find he did.

The unpursued application for merits review

30    For completeness, we should add that the primary judge referred in his reasons to Mr and Mrs Charan having sought merits review in the Administrative Appeals Tribunal of the officer’s decisions about two weeks after they filed their summons in the Supreme Court of New South Wales challenging the same decisions. The Supreme Court subsequently cross-vested that proceeding to this Court under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and this came to be docketed to the primary judge.

31    The Tribunal dismissed the merits review application for non-appearance of both applicants under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth). That section provided:

(2)       If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

(a)        if the person who failed to appear is the applicant—dismiss the application without proceeding to review the decision; or

(b)        in any other case—direct that the person who failed to appear shall cease to be a party to the proceeding.

32    Importantly, where the Tribunal dismisses an application under s 42A(2)(a), as here, it does not proceed to undertake the review. Thus, the Tribunal did not affirm the officer’s decisions; rather it dismissed the application to review them without proceeding to a determination on the merits. Accordingly, the operative decisions remained the decisions of the officer made on 28 September 2017. It follows that the appellants retained their rights to challenge those decisions in this Court by way of judicial review, although they also had the right, had they sought to pursue it, to challenge the decisions by way of merits review in the Tribunal. Had they done so and failed before the Tribunal, that might have given rise to questions of, first, whether the Court would exercise its discretion to refuse to entertain the application for judicial review, or secondly, whether they were precluded from doing so, because they had challenged the officer’s decisions rather than the Tribunal’s decision (as discussed in Kemppi v Adani Mining Pty Limited (No 2) [2019] FCAFC 117 at [98]-[100] per Rares ACJ and Robertson J, with whom Perry J agreed).

33    Although the availability of administrative review of a decision on the merits enlivens the Court’s discretion as to whether or not to entertain an application for judicial review of the same decision, the primary judge did not consider that to be a reason why he should not determine the appellants’ application on its merits. We agree with his Honour.

Conclusion

34    For these reasons the appeal must be dismissed with costs.

Associate:

Dated:    15 August 2019