FEDERAL COURT OF AUSTRALIA

Jin v Centrelink [2011] FCA 337

THE COURT ORDERS THAT:

1.    The Notice of Motion filed on 25 November 2010 is dismissed.

2.    The applicant to pay the respondent’s costs, including reserved costs, if any.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    On 8 September 2010, the applicant, Mr Yin Cheng Jin (“Mr Jin”) filed a notice of appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”). The first directions hearing in the appeal was listed for 3 November 2010. On that day Mr Jin failed to attend Court. The Court dismissed the appeal due to Mr Jin’s non-attendance.

2    On 25 November 2010, Mr Jin filed a notice of motion seeking to have the order made on 3 November 2010 set aside and the appeal reinstated. That motion is returnable before the Court today.

3    On 23 March 2011 Mr Jin contacted my associate stating that he was unwell and would have to apply for an adjournment of today’s proceedings. Mr Jin was advised that to seek an adjournment he would need to provide supporting material prior to the hearing and that any adjournment application would be heard today.

4    No application for an adjournment or supporting material has been provided by Mr Jin, and he has not presented for Court today. As such, there is insufficient material to support the granting of an adjournment. It is appropriate, despite the absence of Mr Jin, to hear the matter today.

5    The order of 3 November 2010 dismissing the appeal has been entered. Pursuant to O 35 r 7(2)(a) of the rules of Court, the Court may set aside an entered order where a party was absent when the order was made.

6    It would be pointless to reinstate the appeal if the Court considered that it did not disclose an arguable case. The respondent submits that the appeal has no prospects of being successfully prosecuted so leave should not be granted as sought in the notice of motion.

7    The decision the subject of the appeal confirmed a decision of the Social Security Appeals Tribunal, which in turn confirmed a decision of a delegate of the respondent, that Mr Jin was not entitled to an extension of the portability period for his disability support pension (“the pension”).

8    A person in receipt of the pension may continue to receive the pension whilst absent from Australia. That is the combined effect of ss 1213 and 1217 of the Social Security Act 1991 (Cth) (“the Act”). The maximum portability period is 13 weeks, subject to exceptions provided in ss 1218AA and 1218C of the Act.

9    Section 1218AA permits the Secretary of the relevant government department to extend the portability period in very limited circumstances, all of which must exist. Those circumstances include that the recipient be terminally ill while receiving the pension. There was no evidence before the Tribunal that Mr Jin was terminally ill.

10    Section 1218C permits an extension to the portability period of all social security payments, not just the pension. It applies to recipients who are “unable to return to Australia” because of a catalogue of events set out at s 1218C(1)(a) to (k).

11    Section 1218C may be applicable to Mr Jin because he applied for an extension of the portability period whilst in China. The Tribunal’s finding of fact to the contrary is now conceded by the respondent to be wrong.

12    However, s 1218C(2) applies a fetter to the extension of a portability period. It prohibits the Secretary from extending the portability period unless the particular event which caused the need for the extension occurred or began during the period of absence.

13    The respondent claims that the proposed appeal cannot succeed despite the wrong factual finding of the Tribunal. It says that the factual error is immaterial to the outcome of the matter before the Tribunal. The respondent says s 1218C could not be satisfied because the “event” which allegedly prevented Mr Jin from returning to Australia did not begin while he was absent from Australia. Therefore the respondent contends that s 1218C(2) of the Act was not satisfied.

14    The Tribunal found at [18] that Mr Jin went to China “for the very purpose of agitating for the payment of proper compensation for his mother following her eviction and the demolition of her house. The event or events he relied on did not occur or begin after Mr Jin left Australia”.

15    The respondent refers to the catalogue of matters in s 1218C of the Act which are the events by reason of which a person may be unable to return to Australia. These matters are pre-conditions to the extension of a portability period. The Tribunal established that Mr Jin relied on s 1218C(1)(i) which refers to “political or social unrest in the country in which the person is located”. The “political or social unrest” was said by Mr Jin to be his mother’s eviction and the demolition of her house. The Tribunal found that that event occurred before Mr Jin left Australia.

16    Mr Jin now asserts that the event that caused him to stay in China was “a serious illness of…a family member” as covered by s 1218C(1)(b) of the Act. He has referred to his mother’s health problems and those of his brother. There was no evidence before the Tribunal about those matters.

17    Although the Tribunal erred in finding that Mr Jin made an application to extend his portability period before he left Australia to travel to China, it found, correctly, that there was no relevant event in the context of s 1218C(1) which occurred while Mr Jin was in China which caused him to be unable to return to Australia. On that later finding alone, Mr Jin was not capable of satisfying the requirements of s 1218C. Consequently the conclusion of the Tribunal as a matter of law was the correct one. Mr Jin did not meet the requirements for an extension of the portability period.

18    Given the above it is readily apparent that the appeal to this Court has no prospects of success. However, there is a more fundamental problem with the appeal. It does not identify an error of law in the Tribunal’s decision. Without the identification of an error of law the Court has no jurisdiction to entertain the appeal. See, for example, Hussain v Minister for Foreign Affairs (2008) 169 FCR 241, [2008] FCAFC 128 at [31] to [33]. The grounds of appeal refer in terms to findings of fact and take issue with those findings without reference to any legal error in the Tribunal’s reasons.

19    As the proposed appeal is without merit it would be pointless to set aside the order made by the Court on 3 November 2010 dismissing the appeal for Mr Jin’s non-attendance and allowing him to reinstate the matter. There is no utility in allowing a matter which has no prospect of success to be litigated.

20    For the foregoing reasons the motion of the applicant dated 25 November 2010 is dismissed, with costs.

Associate:

Dated:    7 April 2011