FEDERAL COURT OF AUSTRALIA

Charan v Secretary, Department of Social Services [2016] FCA 486

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Applicants are to pay the costs of the Respondent.

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

REASONS FOR JUDGMENT

1    Mr and Mrs Charan were born in Fiji. They relocated to New Zealand in 2005.

2    They moved to Australia in early 2014, each on a 444 special category visa. They seek an entitlement to be paid an age pension under the Social Security Act 1991 (Cth) (the “Social Security Act”).

3    In September 2015 the Administrative Appeals Tribunal affirmed a decision refusing payment: Re Charan and Secretary, Department of Social Services [2015] AATA 760. They now “appeal” to this Court, although by virtue of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) it is brought as an application in this Court’s original jurisdiction: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 410 per Bowen CJ and Deane J.

4    In very summary form, Mr and Mrs Charan accept that they have not been residents in Australia for the period set forth in s 43(1) of the Social Security Act. Their claims to an entitlement to be paid an age pension is said to derive from the Social Security (International Agreements) Act 1999 (Cth) (the “1999 Act”) and the terms of an Agreement on Social Security between the Government of Australia and the Government of New Zealand (the “Agreement”). The Applicants claim that the Tribunal erred in rejecting that contention.

5    They appeared before this Court unrepresented. The Respondent was represented by Mills Oakley Solicitors.

6    The appeal is to be dismissed.

THE SOCIAL SECURITY ACT & THE NEW ZEALAND AGREEMENT

7    To qualify for an age pension a person must satisfy s 43 of the Social Security Act. That section provides in part as follows:

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

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

(b)    the person has a qualifying residence exemption for an age pension …

Section 7(2) defines the expression “Australian resident” as follows:

An Australian resident is a person who:

(a)    resides in Australia; and

(b)    is one of the following:

(i)    an Australian citizen;

(ii)    the holder of a permanent visa;

(iii)    a special category visa holder who is a protected SCV holder.

Section 7(2)(b)(iii) may be left to one side as it requires a person to have been living in Australia on a special category visa on 26 February 2001. Section 7(5) further provides as follows:

A person has 10 years qualifying Australian residence if and only if:

(a)    the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or

(b)    the person has been an Australian resident during more than one period and:

(i)    at least one of those periods is 5 years or more; and

(ii)    the aggregate of those periods exceeds 10 years.

8    But the qualification for an age pension as set forth in s 43 of the Social Security Act has relevantly been changed with respect to residents of New Zealand by the 1999 Act. Section 6(1) of the 1999 Act stipulates that the “provisions of a scheduled international social security agreement have effect despite anything in the social security law”. A “scheduled international social security agreement” is relevantly defined by s 5 as meaning an agreement set out in a Schedule to the 1999 Act. The Social Security Act is a “social security law”.

9    Of present relevance is Sch 3 to the 1999 Act, which sets out the Agreement between the Governments of Australia and New Zealand first entered into in 1994, and later amended in 1995 and 1998. The Preamble to the Agreement provides that the object and purpose of the Agreement is in part as follows:

WISHING to strengthen the existing friendly relations between the two countries, and

DESIRING to coordinate the operation of their respective social security systems and to enhance the equitable access by people covered by this Agreement to specified social security benefits provided for under the laws of both countries …

10    Article 12 to the Agreement provides as follows:

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 working age residence in Australia to be taken into account for the purposes of subparagraph 1(b) shall be 12 months, of which at least 6 months must be continuous.

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.

But, as the introductory words to Part B of that Agreement make clear, there were subsequent discussions between the Australian and New Zealand Governments in March 2001. One result of those discussions was an agreement to vary Art 12, by deleting para 3 to Art 12, and substituting the following:

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.

The expression “Australian resident” as employed in Art 12(1) is defined in Art 5(1) of the Agreement as follows:

“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. In deciding whether a person is residing in Australia, regard must be had to the following factors:

(a)    the nature of the accommodation used by the person in Australia;

(b)    the nature and extent of the family relationships the person has in Australia;

(c)    the nature and extent of the person's employment, business or financial ties with Australia;

(d)    the nature and extent of the person's assets located in Australia;

(e)    the frequency and duration of the person's travel outside Australia; and

(f)    any other matter relevant to determining whether the person intends to remain permanently in Australia;

and “residence in Australia” has a corresponding meaning.

The expression “working age residence” as employed in Art 12 is defined in Art 5(5) as follows:

“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.

11    Article 12 was the provision which assumed relevance in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75, (2013) 213 FCR 532. The manner in which the 1999 Act affected the entitlement to a disability support pension and the manner in which Art 12(4) “overrode” the provisions of the Social Security Act need not be repeated. The Full Court there concluded that a claimant who could satisfy Art 12(4) of the Agreement was entitled to a disability support pension notwithstanding s 94(1)(e)(ii) of the Social Security Act. By virtue of s 6 of the 1999 Act, Art 12(4) prevailed over s 94(1)(e)(ii). The Court concluded:

[66]    When a claim for a disability support pension was made on behalf of the respondent on 2 March 2011, the respondent had more than 10 years of residence in New Zealand and Australia and thus met the residence criterion in Art 12(4). Pursuant to Art 12(4) of the Agreement, the respondent was “entitled to claim a disability support pension”. This meant that, under the Agreement, not only could he claim a disability support pension but he also satisfied the residence criterion for the pension set out in this article. By virtue of s 6 of the International Agreements Act, this residence criterion overrode the residence requirement in s 94(1)(e)(ii) of the Social Security Act. In the circumstances of the case, the respondent can be taken to be eligible to receive a disability support pension from the date when his parents first claimed the pension on his behalf.

THE RESIDENCE OF MR & MRS CHARAN

12    The facts to which these provisions were to be applied by the Tribunal were not put in issue.

13    It was thus common ground that Mr Charan was born in February 1943 in Fiji. He moved to New Zealand in June 2005. He turned 65 years of age in February 2008. Although there appears to be some inconsistency regarding this date, he appears to have moved to Australia in April 2014, when he was 71 years of age. He applied to the Australian Department of Social Services for an age pension in October 2014. That claim was rejected later than month.

14    It was also common ground that Mrs Charan was born in January 1946 in Fiji. She moved to New Zealand in January 2005. She turned 65 years of age in January 2011. She moved to Australia in February 2014 when she was 68 years of age. She too applied for an age pension in October 2014. That claim was also rejected.

15    The Social Security Appeals Tribunal rejected the claims for the pensions sought in March 2015.

16    The Administrative Appeals Tribunal affirmed the decision made in September 2015.

17    Although it seems to have differed from the Social Security Appeals Tribunal over the date on which Mr Charan arrived in Australia, the Administrative Appeals Tribunal accepted that the following Table correctly set forth the periods of residence in Australia and New Zealand for Mr and Mrs Charan:

18    But for such amendments or modifications as may have been effected by the 1999 Act, Mr and Mrs Charan could not satisfy s 43 of the Social Security Act. They simply had not been residents in Australia for the qualifying period of 10 years and did not have a qualifying residence exemption for an age pension.

19    It was in order to confront this difficulty that Mr and Mrs Charan sought refuge in Sch 3 to the 1999 Act, being the Agreement between the Governments of Australia and New Zealand. In order to qualify for a pension they would necessarily have to rely upon their residence in New Zealand.

20    The primary argument advanced on behalf of Mr and Mrs Charan was that they each satisfied the 10 year qualifying residence requirement imposed by s 43(1) by reason of Art 5(1) of the Agreement. Art 5(1), they contend, deems their residence in New Zealand to be residence in Australia.

21    The argument is to be rejected.

22    Article 5(1) of the Agreement extends the reach of the definition of an “Australian resident” set forth in s 7 of the Social Security Act to include “a New Zealand citizen who is … lawfully residing in Australia…”. But it does so only for the “purposes of the Agreement”. The work that Art 5(1) has to do, and the work that it does for the “purposes of the Agreement”, is that it relevantly gives content to the expression “Australian resident” as employed in Art 12(1). “For the purposes of the Agreement”, the term “Australian resident” as employed in Art 12(1) thus includes “a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia”. Article 5(1) cannot be construed as varying the definition in s 7 such that for the purposes of the Social Security Act, an “Australian resident” includes a New Zealand citizen “who is not the holder of an Australian permanent visa” and is not “lawfully residing in Australia”. Article 5(1) does not operate such that a New Zealand citizen who has been “lawfully residing in Australia” for a period of less than 10 years is nevertheless taken to have qualified for an age pension. This would obviate the requirement for 10 years of qualifying Australian residence. Indeed, such a construction of s 7 would free New Zealand citizens from a qualification which Australian residents would have to meet. Mr and Mrs Charan did not dispute this consequence. Neither Mr nor Mrs Charan have been “lawfully residing in Australia” for a period of ten years.

23    The Administrative Appeals Tribunal was thus correct when it concluded:

[33]    Article 5(1) does not deem all New Zealand residents to be Australian residents. Nor does it render all periods of residency in New Zealand as periods of residency in Australia. The Article clearly states that it extends the definition of an Australian resident to include New Zealand citizens who are “lawfully residing in Australia”.

The Tribunal was also correct when it further concluded on the facts of the present case:

[35]    On the evidence before me, Mr and Mrs Charan were residing in New Zealand from 2005 to early 2014. They worked in New Zealand and lived there permanently. It was not suggested, beyond the argument that Art 5 deems their New Zealand residence to be Australian residence, that they were in fact living in Australia. I can see no reason to regard Mr and Mrs Charan as residing anywhere other than New Zealand in the period before they arrived in Australia. As such, they could not be regarded as residing in Australia whilst they were in New Zealand.

[36]    Accordingly, Mr and Mrs Charan were not Australian residents within the definition in Art 5(1) before they moved to Australia in 2014. They cannot therefore rely upon Art 5 to satisfy the 10 year residence requirement for the grant of age pension.

24    In order to qualify for an age pension, and in order to bring themselves within s 43 of the Social Security Act, Mr and Mrs Charan necessarily had to invoke Art 12 of the Agreement. That is the Article which directs attention to those circumstances confronting a New Zealand citizen who cannot otherwise satisfy the requirements of s 43. It is Art 12(1) which provides for those circumstances confronting a New Zealand citizen whose period of Australian residence “is less than the period required to qualify that person, on that ground…”.

25    But Art 12 does not confer any entitlement to an age pension upon either Mr or Mrs Charan. Both Mr and Mrs Charan may well satisfy Art 12(1)(a) and (b) of the Agreement by reason of their Australian residence being for a period “less than the period required” (Art 12(1)(a)) and the “period of working age residence in Australia” for the purposes of Art 12(1)(b) being no “minimum period” by reason of Art 12(3)(b) of the Agreement as varied in 2001.

26    It is Art 12(1)(c) which Mr and Mrs Charan cannot satisfy. Article 12(1)(c) requires them to meet the “period of working age residence in New Zealand”. The definition in Art 5(5) of the expression “working age residence” confines attention to that period of residence in New Zealand for Mr and Mrs Charan up to the time when they each reached 65 years of age.

27    On the facts of the present case, if the period of residence in New Zealand be confined to that period up to their each turning 65 years of age, the period of residence in New Zealand for Mr Charan was a period of less than 3 years and the period for Mrs Charan was a period of about 6 years. These periods of residence, combined with their residence in Australia fall short of the 10 year period prescribed by s 43(1).

28    The Administrative Appeals Tribunal was correct in so concluding: [2015] AATA 760 at [42] to [43].

29    Unlike the facts presented in Mahrous, the present case falls to be determined by reference to Art 12(1) of the Agreement and the inability of Mr and Mrs Charan to satisfy Art 12(1)(c). It was unnecessary in Mahrous to consider the effect of the definition of “working age residence”. Unlike the facts in Mahrous where the claimant could satisfy the requirement of Art 12(4) which related specifically to a disability support pension, on the facts of the present case neither Mr nor Mrs Charan could satisfy the requirements of Art 12(1)(c).

30    The conclusion reached by the Tribunal, with respect, does no disservice to the object and purpose of the Agreement as set forth in its Preamble. The conclusion accepts that Mr and Mrs Charan can rely on their periods of working age residence in New Zealand up to that point at which they each reached 65 years of age, and then aggregate those periods with their subsequent periods of residence in Australia. The conclusion “enhance[s] the equitable access” by residents of New Zealand who become residents of Australia by allowing them to rely on a period of working age residence in New Zealand and count it as a period of working age residence in Australia. Assuming that both Mr and Mrs Charan remain residents of Australia, the Secretary accepts that each can again apply for an age pension at the dates on which each of them separately accumulated the 10 year period required by s 43(1)(a).

31    It is unnecessary to resolve a further question raised on appeal, namely whether the Tribunal was correct to conclude that Mr Charan would still not qualify for an age pension, even assuming his construction of Art 5(1) of the Agreement to be correct. In the Notice of Appeal Mr Charan separately contended that he would have been entitled to an age pension “from 1 July 2015”. In order for his argument to prevail, he would need to satisfy cl 4 of Sch 2 of the Social Security (Administration) Act 1999 (Cth). Schedule 2 to that Act sets forth the rules for working out the relevant “start day” of an “early claim”. Clause 4 of that Schedule provides as follows:

Start day–early claim

(1)    If:

(a)    a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)    the person is not, on the day on which the claim is made, qualified for the payment; and

(c)    assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)    the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

Even had the argument of Mr Charan been accepted, he would not have acquired 10 years of residence within 13 weeks after the date on which he made his claim for an age pension. The Tribunal was nevertheless correct in concluding as follows:

[45]    Eligibility is assessed at the date of claim or in the thirteen weeks thereafter. In the case of Mr Charan, had I accepted his argument, he would still not have achieved 10 years qualifying residence until June 2015. This is almost some 9 months after the date on which his claim was lodged. He could not therefore have qualified for the age pension with respect to this present claim.

CONCLUSIONS

32    The Grounds of Appeal as formulated by Mr and Mrs Charan do not identify any “question of law” with sufficient precision to satisfy s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). It is nevertheless sufficient to note that a properly drafted Notice of Appeal could well have been prepared which identified the questions sought to be resolved.

33    However those questions may have been formulated, the arguments advanced should be rejected. The Tribunal did not err in reaching its conclusions. The Tribunal did not err in its construction and application of Arts 5 and 12 of the Agreement and did not fail to consider the claims made by Mr and Mrs Charan.

34    Although the argument need not be resolved, it would also seem to follow that Mr Charan still did not qualify for the age pension on 1 July 2015.

35    The appeal is to be dismissed. There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Applicants are to pay the costs of the Respondent.

Associate:    

Dated:    11 May 2016