Federal Court of Australia

Haque v Secretary, Department of Social Security [2023] FCA 474

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs to be assessed in default of agreement in accordance with the court’s costs practice note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

Introduction

1    By an originating application dated 31 August 2021, the applicant, Dr Haque, charges the respondent, the Secretary of the Department of Social Services (the “Secretary”), with having wrongfully failed to decide an application that he claims that he made for “portable income support payment” under the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”). That application is said to have been made by means of two letters directed to the Secretary: one dated 30 January 2020 and one dated 31 May 2021 (together, the “Portability Requests”).

2    By those letters, Dr Haque asserted his eligibility for a taxpayer-funded “special needs age pension” under the Social Security Act 1991 (Cth) (hereafter, “SS Act”). He sought to have that payment made receivable (or “portable”, to use the legislative nomenclature) throughout the period of an overseas trip that he planned to take commencing on 26 February 2020 (of which he gave notice).

3    Prior to the Portability Requests, Dr Haque was eligible to and did receive social security support payments in the form of what was then called a “newstart allowance” (now a “jobseeker payment”). That income support was suspended upon his departure from Australia, in line with the requirements of the legislative scheme.

4    Dr Haque’s return to Australia was delayed by executive reaction to the COVID-pandemic (specifically, the sudden and prolonged closure of Australia’s international borders). Upon his return in May 2021, his newstart allowance income payments resumed. He did not receive any income support for the period that he spent overseas (although he was assisted financially in the form of loans extended by, or with the assistance of, the Department of Foreign Affairs and Trade).

5    Dr Haque seeks to challenge by way of judicial review the Secretary’s alleged failure to determine his Portability Requests. He seeks relief from this court to compel the Secretary to determine his claim.

6    Separately, Dr Haque asks the court to award him compensation in the amount of $18,670.96. The basis upon which the court might entertain that request is not clear; but appears to hinge upon additional claims made in the originating application for payment of a different social security benefit known as disaster recovery allowance. More is said about those claims below.

7    The Secretary denies that the Portability Requests amounted to a claim that he was obliged to determine. Further, he resists the relief that Dr Haque seeks on the basis that it is futile, given that he (Dr Haque) is quite obviously precluded, on multiple fronts, from accessing the portability scheme for which he claimed to be eligible.

8    The matter was tried on 3 April 2023. Dr Haque appeared on his own behalf. He read without objection an affidavit that he affirmed on 31 August 2021 in support of his application for judicial review. Additionally, the court received into evidence—again, by consent—the content of an application book that was prepared by the Secretary (and which contains documents the relevance and provenance of which is not in contest).

9    For the reasons that follow, the application must (and will) be dismissed.

Statutory Framework

10    The SS Act provides for the payment of certain social security pensions, benefits and allowances. The SS Act and Administration Act collectively comprise the “social security law” (see SS Act, s 23(17)) and it is convenient here to adopt that phraseology.

11    At the time of the Portability Requests, Dr Haque’s entitlement to newstart allowance was governed by Part 2.12 of the SS Act. As has been said above, it is not controversial that he was entitled to—and received—income payments in the form of newstart allowance prior to his Portability Requests. It is also not controversial that that entitlement (and any eligibility for others) ceased for so long as Dr Haque was absent from Australia, save insofar as it (or they) engaged the “portability” provisions described below.

12    Section 16 of the Administration Act concerns the making of social security claims. It relevantly provides (and provided) that:

16 How to make a claim

(1)    A person makes a claim for a social security payment or a concession card:

(a)    by lodging a written claim for the payment or card; or

(b)    by making the claim in accordance with subsection (7).

(2)    A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.

…

(7)    A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.

…

13    Section 772 of the SS Act stipulates the criteria that a person must meet in order to qualify for a special needs age pension:

772 Qualification for special needs age pension

A person is qualified for a special needs age pension if:

(a)    the person has not resided in Australia at any time after 7 May 1973; and

  (b)    the person has turned:

(i)    if the person is a woman—60; or

(ii)    if the person is a man—65; and

(c)    the person ceased to reside in Australia after the person had turned:

(i)    if the person is a woman—55; or

(ii)    if the person is a man—60; and

(d)    the person had resided in Australia for a period that was, or for periods that in the aggregate were, not less than 30 years; and

(e)    the person would:

(i)    if the person had lodged a claim immediately before the person ceased to reside in Australia—have been qualified under section 25 of the 1947 Act to receive an age pension; or

(ii)    if the person had not ceased to reside in Australia, were physically present in Australia and lodged a claim for an age pension—be qualified under section 25 of the 1947 Act to receive an age pension; and

(f)    the person is, in the opinion of the Secretary, in special need of financial assistance.

14    Part 4.2 of the SS Act governs overseas portability of social security payments. Section 1217 contains (and contained) a table that identifies various species of payment, and the permissible length of absence and maximum overseas portability period that applies to each. Item 15 of that table concerns newstart allowance (now jobseeker payment) and states that portability is available for a maximum period of six weeks for:

A temporary absence for any of the following purposes:

(a)    to seek eligible medical treatment;

(b)    to attend to an acute family crisis;

(c)    for a humanitarian purpose.

15    Each of those terms is relevantly defined: s 1212C defines “temporary absence” as referrable to a period of absence throughout which a person does not cease to reside in Australia and, relevantly, “eligible medical treatment” means a medical treatment not available to a person in Australia: SS Act, s 1212.

16    There are no criteria (temporal or otherwise) that condition the portability of a special needs age pension: SS Act, s 1217, Item 1. In other words, a person eligible to receive payment in that form may continue to receive it indefinitely whilst outside of Australia for any reason.

17    It is incumbent upon the Secretary to make a determination in relation to a claim for a social security payment by either granting or rejecting that claim: Administration Act, s 36(1). Section 39(1) of the Administration Act operates to deem a claim that has not been determined within 13 weeks of its making as having been rejected.

18    The Administration Act provides for a process of internal review of decisions made by the Secretary or officers acting under his supervision. That process is the subject of ss 126 and 129, which it is convenient to replicate here:

126 Review of decisions by Secretary

(1)    The Secretary may review, subject to subsection (2), a decision of an officer under the social security law if the Secretary is satisfied that there is sufficient reason to review the decision.

(2)    The Secretary may review a decision:

(a)    whether or not any person has applied for review of the decision; and

(b)    even if an application has been made to the AAT for review of the decision.…

(3)    The Secretary may:

(a)    affirm a decision; or

(b)    vary a decision; or

(c)    set a decision aside and substitute a new decision.

(4)    If:

(a)    the Secretary sets a decision aside under subsection (3); and

(b)    the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;

the Secretary may, if satisfied that it is reasonable to do so, determine that the event is taken to have occurred for the purposes of the social security law.

…

129 Application for review

(1)    Subject to subsections (3) and (4), a person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision.

…

19    If an application is made for an internal review of a decision, the Secretary is obliged to review it and must either affirm it, vary it or set it aside: Administration Act, s 135(1).

20    Pt 2.23B of the SS Act is titled “disaster recovery allowance”. It provides for a species of social security benefit that is paid to eligible recipients to offset income lost as a result of declared events such as natural disasters. The criteria that qualify access to disaster recovery allowance are set out at s 1061KA(1) of the SS Act. At the risk of over-simplification, they include that the Secretary be satisfied that an applicant has lost income that he or she would otherwise derive by working in an area and industry affected by a declared event, or by living or working in an area so affected: SS Act, s 1061KA(1)(e), (3) and (4).

Factual Circumstances

21    The background facts relevant to the application emerge without controversy from the evidential material upon which the parties relied.

22    On 30 January 2020, Dr Haque sent a letter addressed to the Secretary with the subject line “[a]pplication for special need age pension for financial assistance during the applicant’s temporary absent from the Australia” (“30 January Letter”). In that letter, he indicated that he would be temporarily absent from Australia from 26 February 2020 until 10 May 2020 due to “health and other reasons”. He then made reference to his personal circumstances, both financial and medical, and remarked that he had reached the pensioner age, which he stated to be “60+”. The letter made reference to ss 772 and 1217 of the SS Act and ss 126 and 135 of the Administration Act, before stating:

By considering the applicant’s financial hardship situation…pursuant to section 772(f) & 1217 of the ‘Social Security Act 1991’; the applicant is humbly and respectfully requesting the honourable secretary to continue the applicant’s payment during his temporarily absent from the Australia…Please let me know your decision before 26/2/2020…

23    Dr Haque proceeded to depart Australia on 26 February 2020. No response was received from the Secretary to the 30 January Letter, however, Dr Haque was advised—by notification received from Centrelink on the same day that he departed (26 February 2020)—that his newstart allowance had been suspended due to his absence from Australia (the “Suspension Decision”). On 27 March 2020, Dr Haque received a similar transmission which advised that his newstart allowance had been cancelled from 26 February 2020 (“Cancellation Decision”). As matters unfolded (and for reasons already explored), Dr Haque’s planned two-and-a-half month absence turned into more than 12 months. He eventually returned to Australia on 10 May 2021.

24    On 31 May 2021, Dr Haque wrote a second letter to the Secretary, part of which repeated the contents of the 30 January Letter; but the majority of which concerned the circumstances that he faced due to his extended absence from Australia (the “31 May Letter”). The subject line to that letter stated, “Re: Application for review/recovery/compensation recovery arrear payment due to pandemic COVID-19; pursuant to section 16 of the Social Security (Administration) Act 1999”. By that letter, Dr Haque made the following request additional to what he requested by his 30 January Letter (errors original):

The applicant's circumstances have changed after March 2020 due to pandemic disaster for COVID-19. That was the main reason why the applicant requesting the honorable secretary to review the applicant's application which was lodged on 30/01/2020…in conjunction with the new application with supporting further documents. The applicant is humbly & respectfully requesting the honourable secretary to resume the applicant's arrear portable payments during his temporary absent from 27/2/2020 to 07/5/2021. And that comes around 62 weeks x $603.73/2= $18,715.63. Alternatively the applicant is also seeking for alterative decision from the honourable secretary for temporarily recovery or compensatory recovery payment of the same amount from 27/2/2020 to 07/5/2021; as the circumstances was beyond the control of the applicant due to pandemic COVID-l9. Or any other lost/recovery payments that the honourable secretary deems to be fits or appropriate. The applicant is expecting a written decision from the honourable secretary.

25    Although not pitched at that (or any obvious) level, the Secretary interpreted the 31 May Letter as an application for an internal review of his decision of 26 February 2020 to suspend Dr Haque’s newstart allowance. On 10 June 2021, Services Australia (which is the agency that administers Centrelink and the making of payments under the social security law) sent Dr Haque a letter acknowledging that it had received his application for an internal review of the Secretary’s decision to suspend his newstart allowance. That review, it was said, would be conducted by an Authorised Review Officer (“ARO”) within 49 days.

26    On 10 September 2021, an ARO affirmed the decision of 26 February 2020 to suspend Dr Haque’s newstart allowance payments. Under cover of a letter titled “[f]ormal review of decision”, it was explained that that affirmation had been arrived at because Dr Haque “…did not travel for an approved reason, and Newstart Allowance is not payable when you are outside of Australia.”

27    On 16 September 2021, the ARO sent Dr Haque further correspondence, apparently by way of response to a discussion had with him on 9 September 2021 concerning his eligibility for a special needs age pension. By that correspondence, Dr Haque was informed that he could not be “transferred” to a special needs age pension because (amongst other reasons) he had not yet attained the qualifying age of 65 years.

The Application for Judicial Review

28    By his originating application, Dr Haque seeks judicial review of “…the failure of the [r]espondent (Centrelink) to decide that, whether the applicant was qualified/entitle for his claim for portable income support/recovery payment from the respondent during his temporary absent from the Australia.” That application is said to be made pursuant to s 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (hereafter, “AD(JR) Act”).

29    The applicant’s sole ground of review is expressed in two parts under the heading “Ground 1: Failures to make decision or unreasonable delay in making the decision” (errors original):

(a)    On 30/1/2020 the applicant applied to the secretary for portable income support payment, but the applicant did not receive any reply. On 31/5/202l the applicant lodge another application in conjunction with the applicant's first application. On 3/6/2021 the respondent has conducted a telephone interview with the applicant about his claim. On 10/6/2021 the applicant received an acknowledgement letter from the respondent. And informed to the applicant that, an authorised review officer will review their conventional decision made by the Centerlink's computer programs on 26/2/2020. Conventional decision means, the usual decision made by the authority by using their online computer programs pop-up system, when any Centrelink recipients temporary absent from the Australia (sec 6A). However the applicant's claim for arrear portable compensatory payment remains undecided. The respondent held the applicant's application for a quite long time without making any decision. Even unreasonable delaying to review the decision. That breaches sections 8 & 36 of the Social Security (Administration) Act 1999. In the Social Security Act there is no time frame how long the decision maker will take times to make a decision in relation to a new or review application. Section 13 of the Administrative Decisions (Judicial Review) Act 1977 established that, decision maker must made reasons for decision as soon as practicable and in any even within 28 days, after receiving the request…

(b)    The power conferred by the Commonwealth government to the "Secretary" as a general administrative chief for the protection of the Australian community guided by the Commonwealth Act. Section 8 of the Social Security (Administration) Act 1999 describes the duties, functions & responsibilities of the secretary vested by the Commonwealth Act. The key points are, the Secretary has regards to: (i) the need to ensure that social security recipients have adequate information regarding the system of review of decisions under the social security law; and also to (ii) deliver decision under the law in a fair, courteous, prompt and cost-efficient manner; with minimum abuses of the social security system: apply to the government policies in accordance with the law, etc. Notwithstanding the respondent ignored all of his functions, duties & responsibilities and simply failed to apply his/her discretionary power for the purported power conferred by the Commonwealth Government for the protection & welfare of the Australian Community.

30    The relief for which Dr Haque moves is described as follows in his originating application:

1.    The applicant is seeking for similar decision from the honourable court or an order from the Court to pay all the applicant's unpaid arrear benefits due to pandemic COVID-19 from the respondent during the applicant's temporary absent from the Australia from 27/2/2020 to 6/5/2021 and that come around 433 (days) x $43. 12/day ( $603.73/ 14) = $18,670.96; and

2.    10% Interest on $18,670 for 18 months (27/2/2020 to 27/8/2021) and that comes around $2,800…

Dr Haque’s Case

31    Dr Haque’s chief contention is that the Secretary failed to exercise a statutory power to make a decision in relation to his Portability Requests, which he says was required under the social security law. A secondary complaint raised in the originating application concerns Dr Haque’s alleged entitlement to disaster recovery allowance and whether any compensatory relief should flow from it.

32    I begin with the main issue before the court. Dr Haque’s case is that the Secretary failed to make a decision in relation to his Portability Requests. He submits that those requests were an application, made under or in accordance with s 16 of the Administration Act, for income payments in the form of a special needs age pension to be made portable during his temporary absence from Australia. The Secretary denies that the Portability Requests were, in fact, such a “claim”. In any event, he submits that any claim that Dr Haque might be said to have made for a special needs age pension is foredoomed to fail, as he cannot conceivably satisfy the qualifying criteria. That being so, it is said that it would be entirely futile to grant any relief and, as a matter of discretion, the application should be dismissed.

33    Dr Haque made submissions as to the merits of his alleged entitlement to a special needs age pension. By his written submissions, he contended (errors original):

The applicant contention was that, if any applicant fulfils any one of the criteria under sub-section 772 of the Act then, the applicant is entitling for special needs age pension. It is not necessary for the applicant have to fulfil all the criteria’s. Even, pursuant to section 772(d); if a child born in Australia or migrated to Australia of one year old, then after 30 years of age the person will be entitle for Special needs age pension. So the age bar is one of the criteria but not mandatory.

On 26/6/2022 the applicant’s total length to reside in Australia will be 30 years. However the applicant was qualified for the special needs age pension due to his financial hardship; under sub-section 772(f). This sub-section is further discretionary consideration of the Secretary. The applicant is a single person and unfit for work nearly 7 years and had been receiving Centrelink benefits since from September 2009. There are short term and long term portability payment options are available in Centrelink law. The age pensioners are entitle to receive portable payment for unlimited period of absent from the Australia.

34    The Secretary submitted that s 772 of the SS Act must be read cumulatively. A special needs aged pension, it was explained, is a “legacy” entitlement. It is applicable to a vanishingly small number of recipients (if, indeed, there are any). To qualify, a person would need to have been at least 55 years of age in 1973 and must no longer reside in Australia. It is worth repeating the qualifying criteria. To qualify as eligible for a special needs age pension, a person:

(1)    must not have resided in Australia since 1973 (SS Act, s 772(a));

(2)    must have ceased residing in Australia after attaining at least 55 years of age (SS Act, s 772(c));

(3)    if male, must have reached the age of at least 65 years (SS Act, s772(b)); and

(4)    must, before leaving, have resided in Australia for a total of at least 30 years (SS Act, s 772(d)).

35    By his application for judicial review, Dr Haque identified various ways in which the Secretary was obliged to make a decision in relation to his Portability Requests. That duty was said to be conferred at least by s 36 of the SS Act. In reply, the Secretary contended that s 36 of the SS Act is engaged on the basis that a “claim” requires compliance with an approved form.

36    Dr Haque separately seeks some form of compensatory relief relating to his alleged entitlement to income payments under the disaster recovery allowance regime for which the SS Act provides. By his originating application, under the heading “DETAILS OF CLAIM”, he expressed the following (errors original):

9.    The respondent does not taken into consideration the Centrelink’s compensation recovery payment option due to COVID-19.

…

10.    The respondent avoided our prime minister’s special announcement on March 2020 for pandemic COVID-19. On 23/3/2020 our prime minister declared COVID-19 as a ‘National Crisis’ and the Australia has moved into pandemic mode (section 36 & 36A). The applicant believes; his section also partially applicable for the applicant.

37    During the course of the oral hearing, Dr Haque identified both the 31 May Letter and paragraphs 9 and 10 of his originating application as supporting a “compensatory application or compensatory payment or disaster allowance payment”.

Consideration

38    The AD(JR) Act confers upon this court jurisdiction to review certain species of administrative decisions (or, as is here alleged, failures to decide) and, where appropriate, grant relief on identified grounds. Broadly, the court has a statutory discretion to (amongst other things) set aside or refer for further consideration such decisions; or, in the case of failures to decide, require that a decision be made: AD(JR) Act, s 16.

39    The exercise of that discretion is informed by the usual considerations. Relevantly for present purposes, one such consideration is the utility that the visitation of relief might serve (or not serve, as the case may be): Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 108-109 [56]-[58] (Gaudron and Gummow JJ); Lambs v Moss (1983) 5 ALD 446, 461 (Bowen CJ, Sheppard and Fitzgerald JJ); JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297, 318-319 [83] (Flick J; with whom Jessup and Tracey JJ agreed in the result).

40    There are two reasons why the relief for which Dr Haque moves should not be granted. First, the evidence does not establish that his claim for portability assumed a form that was approved by the Secretary. It quite apparently did not and was, therefore, not a competent claim under the social security law. During the course of the oral hearing, Dr Haque accepted that, if his Portability Requests did not amount to a claim in the approved form (as required by s 16 of the Administration Act), the relief for which he moves in this court could not be granted. With respect, that was an appropriate concession.

41    Second and in any event, Dr Haque is very plainly ineligible for the benefit that he sought and it would be entirely futile to require, whether by means of prerogative relief or equivalent under the AD(JR) Act, that the question be determined. It is necessary to explain that ineligibility.

42    By his written submissions, Dr Haque contended:

The applicant contention was that, if any applicant fulfils any one of the criteria under sub-section 772 of the Act then, the applicant is entitling for special needs age pension. It is not necessary for the applicant have to fulfil all the criteria’s. Even, pursuant to section 772(d); if a child born in Australia or migrated to Australia of one year old, then after 30 years of age the person will be entitle for Special needs age pension. So the age bar is one of the criteria but not mandatory.

43    With respect, that submission is most assuredly incorrect. Section 772 of the SS Act makes clear that eligibility for a special needs age pension requires, at the least, that a male applicant has attained the age of 65 years. Dr Haque had not done so. That is a complete answer to his claim (though there are others equally compelling).

44    Dr Haque’s submission that the qualifying criteria in the sub-sections to s 772 of the SS Act are to be read as separate rather than cumulative is not correct. The provision very clearly requires satisfaction of each criteria. As much is clear from the use of the conjunctive “and” following each subsection.

45    It follows that, even had I been satisfied that Dr Haque’s Portability Requests amounted to a “claim” under s 16 of the Administration Act, I would nonetheless decline for want of utility to exercise the court’s discretion to grant the relief sought.

46    All that remains is to address Dr Haque’s claim to disaster recovery allowance. I confess some difficulty appreciating precisely what it is that Dr Haque asks the court to do on that front, to say nothing of how it is that it might do it. During the course of the hearing and after an exchange in which I asked him to identify the basis upon which he pressed his application for disaster recovery allowance, Dr Haque submitted that his position was that the Secretary had failed to make a decision in relation to his request for it. That submission cannot be accepted for the very simple reason that there is no evidence that any such request was ever made. The first time that Dr Haque appears to have asserted any entitlement to disaster recovery allowance was in his originating application. There is no occasion to compel the Secretary to make a decision about a claim that has not been made.

47    Even were that not so, it is all but impossible to see what utility there might be in compelling the Secretary to do that which Dr Haque maintains that he has failed to do. Beyond broad references to the covid-19 pandemic, it is unclear what declared event is said to have occasioned Dr Haque any loss of income. Nor is it clear that he might be thought to have lost any income as a result of working or living in an industry or area declared to have been affected in a way that s 1061KA of the SS Act contemplates. I am not satisfied that the applicant has established any entitlement, or even potential entitlement, to that payment, let alone identified any jurisdiction pursuant to which this court might, as an exercise of discretion or otherwise, grant it (or anything else). Even if Dr Haque could be understood to have made a claim for relief in the form of disaster recovery allowance, I would in any event decline for want of utility to exercise the court’s discretion to grant the relief that is now sought.

Disposition

48    The application must be dismissed. There is no reason why costs should not follow the event and they will.

Associate:

Dated:    17 May 2023