Federal Court of Australia

Haque v Secretary Department of Social Services (Centrelink) [2024] FCA 295

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application for judicial review be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding incurred on and from 12 October 2023, save for the costs of the second day of the hearing, which are disallowed as between party and party.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    The applicant seeks judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of an alleged decision in respect of an application that he made for certain pensions and payments under the Social Security Act 1991 (Cth).

2    The applicant claims that he made an application by letter dated 30 September 2022 (the application letter) for a portable income support payment and, in the alternative, a special needs age pension in respect of a period commencing 29 November 2022 during which the applicant stated that he would be absent from Australia for the purpose of obtaining life-saving medical treatment. For reasons that I will explain, I am satisfied that, at the time of the application, the applicant was in receipt of jobseeker payments. There appear, in fact, to be three types of payments that the applicant sought in the application letter in the alternative, which I will identify later. The applicant alleges that the Centrelink website contained no form by which the payments that he sought could be claimed, which was the reason for which he wrote the application letter.

3    The applicant claims that the Secretary, who is the respondent to this proceeding, failed to make a decision on his application. The orders originally sought by the applicant were directed to relief under s 7 of the ADJR Act, which is concerned with an order of review where there has been unreasonable delay. As explained below, the application as originally framed has been overtaken by events.

4    For the reasons that follow, the applicant’s application for judicial review will be dismissed.

Background

5    The applicant was born in January 1960, and has been an Australian citizen since October 1994. In the application letter dated 30 September 2022 he sought portable pension benefits for a proposed period of absence from Australia commencing on 29 November 2022. In support of his application for portability, the applicant made the following claims in the application letter –

(1)    The applicant stated that he migrated to Australia in July 1992, and that from time to time after 27 July 1992 he received Centrelink benefits, and that he had been receiving income support payments continuously since 11 September 2009.

(2)    The applicant was suffering from a number of ailments which he said were related to age. In particular, he annexed a copy of a report of a CT coronary angiogram dated 26 July 2022 that showed various levels of stenosis in some of his arteries, and which recommended an angioplasty.

(3)    The applicant stated that his cardiologist had referred him to the Alfred Heart Centre on 12 July 2022 for an angioplasty. The applicant stated that he believed that a coronary-related problem needed to be treated immediately, and that despite the lapse of 70 days he had not received an appointment from the hospital. The applicant stated that he had therefore decided to obtain “life-saving treatments” from overseas. The applicant annexed to his letter a travel document evidencing a booking on a flight departing Melbourne for Bangkok on 29 November 2022.

(4)    The applicant claimed that he was suffering from financial hardship. In support of his claim of financial hardship, the applicant stated that he had been psychiatrically impaired since 2009, and had been unfit for work for seven to eight years. The applicant claimed that he had held a disability support pension card due to psychiatric impairment from 21 August 2014, and that he was currently holding such a card. The applicant annexed to his letter a report from a psychiatrist, Dr Kwong, dated 11 September 2013 who diagnosed the applicant as having had paranoid schizophrenia since 2009, and which noted dosages of antipsychotic and antidepressant medications. The applicant also annexed to one of his affidavits, without objection, the decision of his Honour Judge Dyer in Haque v State of Victoria [2014] VCC 2035. Whether the applicant currently suffers from any psychiatric impairment is not an issue that arises for determination by the Court. I note in passing that a referral from the applicant’s general practitioner to a specialist dated 1 September 2022 that was annexed to the application letter did not identify any antipsychotic or antidepressant medications amongst the medications that the applicant was prescribed.

(5)    The applicant referred to his financial commitments, such as mortgage liabilities to his bank, rates, and body corporate fees, and to Centrelink payments that he was receiving. In light of these commitments, the applicant sought continuation of payments during the period of temporary absence overseas for at least three months from 29 November 2022.

6    By the application letter, the applicant sought three types of payments, expressed in the alternative –

(1)    First, the applicant sought an extension of the portability period pursuant to s 1218D of the Social Security Act, which has as its heading, “Extension of person’s portability period—life-saving medical treatment overseas”.

(2)    In the alternative, the applicant sought a special needs age pension while he was temporarily absent from Australia. In relation to this benefit, the applicant cited in his letter s 772 of the Social Security Act.

(3)    In the further alternative, the applicant claimed in the letter that he qualified for a special needs disability support pension, citing ss 94 and 773 of the Social Security Act. In this context, the applicant stated in the letter that he first received a disability support pension card due to psychotic impairment from 21 August 2014, and that he currently held such a card.

7    After setting out the three bases on which portable payments were sought, towards the conclusion of the application letter, the applicant stated (set out verbatim) –

By considering the above facts & legislative authorities, the applicant is humbly & respectfully requesting the honorable secretary to continue the applicant’s payments during his temporary absent from the Australia from 29/11/2022 for at least three months and/or until further report/return back to his home country, pursuant to section 772(d & f) of the Act or any other portable options that the authority deems to be fits & appropriate. The special needs age pension is within the group of all pensions and has unlimited period of portability (Table of section 1217; row-1, item-1).

8    In affidavits affirmed 12 October 2023 and 4 December 2023, the applicant referred to some subsequent events –

(1)    The applicant attended hospital on 20 October 2022 for an angioplasty where the cardiologist “advised for medicine therapy”, which I interpret to mean that the cardiologist advised against an angioplasty, but prescribed medication.

(2)    The applicant stated that he did not get any relief from medication, and continued to suffer from chest pains and breathing problems. The applicant stated that he decided to go to Thailand for a second opinion, and then to Bangladesh to have a stent inserted.

(3)    On 29 November 2022, the applicant left Australia, returning on 31 March 2023.

(4)    Upon the applicant leaving Australia, Centrelink issued a notice of suspension of the applicant’s jobseeker payment on the ground that the applicant was not in Australia, and which noted that if the payment was not automatically restored when he returned to Australia, he should contact Centrelink. It appeared to be common ground that I should infer that the notice of suspension of the applicant’s jobseeker payments was generated by a computer program, and that the notice was triggered by the applicant’s departure from Australia: see Social Security (Administration) Act 1999 (Cth) (Administration Act) s 6A.

9    At the first case management hearing in this proceeding on 25 August 2023, I ordered the Secretary to file and serve a document to be titled “Response to the applicant’s application for judicial review”. That document was subsequently filed and served on 21 September 2023. Amongst other things, the Secretary acknowledged that there had been a failure to respond to the application letter, stating –

17.    The Secretary regrets that the applicant did not receive a reply to his letter of 30 September 2022, and apologises to Mr Haque for the failure to provide a reply.

18.    However, the Secretary contends that the applicant was not eligible for receipt of the portable payments, or for the extension to portability, sought in that letter.

19.    The Secretary has since arranged for Mr Haque’s portability request in the 30 September 2022 letter to be actioned. In a decision dated 19 September 2023 it was determined that the applicant could not have his Jobseeker payment made portable upon his departure from Australia on 29 November 2022.

10    As indicated in the response document filed in this proceeding, on 19 September 2023 an officer of “Services Australia”, also identified as “Centrelink”, wrote to the applicant stating that the evidence that he had provided was not sufficient to support a jobseeker payment in respect of the period he was outside Australia. The material part of the letter stated –

I have carefully considered the evidence you provided in relation to your travel outside of Australia on 29 November 2022. A decision has been made under Section 1212 of the Social Security Act 1991 that the evidence provided is not sufficient for payment of your Jobseeker Payment whilst you were outside Australia.

11    The letter of 19 September 2023 also gave notice to the applicant of his rights of internal review by a review officer, by the Social Security Appeals Tribunal, and by the Administrative Appeals Tribunal, noting a time limit of 13 weeks within which to ask for a review. The reference in the letter to the Social Security Appeals Tribunal was redundant, because on 1 July 2015 that Tribunal merged with the Administrative Appeals Tribunal, and a two-tiered process of review in the Administrative Appeals Tribunal was introduced: Tribunals Amalgamation Act 2015 (Cth) Schedule 3. The Secretary should review the form of notices that are issued by Services Australia so that incorrect and potentially confusing information is not given.

12    At the case management hearing on 28 September 2023, I drew attention to the potential for administrative, merits-based review, but the applicant was firm in stating that he sought judicial review. The applicant sought and obtained leave to amend his application for judicial review. The subject matter of the applicant’s amended application for judicial review is now the ostensible decision of 19 September 2023, which the applicant challenges on a number of grounds that are referable to grounds of review available under s 5 of the ADJR Act.

Previous litigation

13    To the extent that the applicant claims an entitlement to a special needs age pension, this is not the first occasion on which the applicant sought this payment, or on which a refusal of a claim by the applicant has been the subject of an application to the Court. In Haque v Secretary, Department of Social Security [2023] FCA 474, Snaden J dismissed the applicant’s application for judicial review of the Secretary’s claimed failure to determine requests by the applicant for portable income support payments that were made in relation to a previous period of absence from Australia between February 2020 and May 2021. The application was dismissed on two grounds. First, it was held that the applicant had not made a claim in a form approved by the Secretary as required by s 16 of the Administration Act, and therefore there was no competent claim for payment. Second, and in any event, Snaden J held that it was plain that the applicant was not eligible for the benefit, and therefore it would be futile to grant relief. His Honour held that the eligibility criteria in s 772 of the Social Security Act were cumulative, rejecting the applicant’s claim that they were independent. While there were a number of reasons the applicant had no entitlement to a special needs age pension, it was sufficient to point to the fact that the applicant had not attained 65 years of age, which is one of the criteria under s 772.

The legislation

14    I will now refer briefly to some material features of the Administration Act and the Social Security Act to which I have referred, which form part of the “social security law”, as defined by s 23(17) of the Social Security Act.

Social Security (Administration) Act 1999 (Cth)

15    Under s 6A of the Administration Act, a decision made by the operation of a computer program under the Secretary’s control for the purposes of making decisions under the social security law is taken to be a decision made by the Secretary.

16    Under s 7, subject to any direction of the Minister the Secretary is to have the general administration of the social security law.

17    Under s 11, a person who wants to be granted a social security payment or concession card must make a claim in accordance with Division 1 of Part 3 of the Act. Within that Division is s 16, which sets out the requirements for the making of a claim. Under s 16(1) there are two ways in which a claim may be made: (a) by lodging a written claim in accordance with a form approved by the secretary; or (b) by making the claim in a manner approved by the Secretary for the purposes of s 16(7).

18    Under s 36, the Secretary is obliged to determine a claim, by either granting or rejecting the claim. Under s 37, the Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that: (a) the claimant is qualified for the social security payment; and (b) the social security payment is payable. Correspondingly, under s 80, if the Secretary is satisfied that a social security payment is being, or has been, paid to a person who is not, or was not, qualified for the payment, or to whom the payment is not, or was not, payable, the Secretary is to determine that the payment is to be cancelled or suspended.

19    Under s 39, if the Secretary does not make a determination regarding a claim within the period of 13 weeks after the day on which the claim was made, the Secretary is taken to have made, at the end of that period, a determination rejecting the claim.

20    Under s 126, the Secretary may review a decision of “an officer under the social security law” if the Secretary is satisfied that there is sufficient reason to review the decision. This provision authorises review whether or not an application for review is made. The expression “officer” is defined by s 23 of the Social Security Act as meaning “a person performing duties, or exercising powers or functions, under or in relation to the social security law”, and that definition is picked up by s 3(2) of the Administration Act. As I have noted, the phrase “the social security law” includes both the Social Security Act and the Administration Act.

21    Under s 129, a person affected by a decision of “an officer under the social security law” may apply to the Secretary for review of the decision. Under s 129(5), a reference in s 129 to a decision of an officer under the social security law includes a reference to a determination that the Secretary is taken, by virtue of a provision of the social security law, to have made. An example of such a decision would be a decision made by the operation of a computer program as authorised by s 6A of the Administration Act. Another example would be a deemed refusal of a claim under s 39 of the Administration Act. If a person applies under s 129 for review of a decision, then under s 135 the Secretary, the Chief Executive Centrelink, or an authorised review officer must review the decision.

22    Under Part 4A of the Administration Act, an application may be made to the Administrative Appeals Tribunal to review certain decisions. Generally speaking, the decisions that are reviewable are those that are made upon internal review under ss 126 and 135. Primary decisions, such as a decision under s 16, are outside the scope of the review jurisdiction of the Tribunal: see s 144(f). There are two tiers of review by the Tribunal, which are referred to in the legislation as “AAT first review” and “AAT second review”.

23    Under s 234 of the Administration Act, the powers of the Secretary under the social security law are delegable, with some limited exceptions.

Social Security Act 1991 (Cth)

24    There are three sets of provisions of the Social Security Act that require attention in this application.

25    The first is s 94, which relates to the qualifications for a disability support pension. I do not need to set it out. As I have mentioned, I am satisfied that the applicant was not in receipt of a disability support pension, but was in receipt of jobseeker payments.

26    The second is s 772 and s 773, which concern special needs pensions. Section 772 sets out the qualifications 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.

27    Section 773 sets out the qualifications for a special needs disability support pension –

773    Qualification for special needs disability support pension

A person is qualified for a special needs disability support pension if:

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

(b)    the person is severely disabled; and

(c)    the person has turned 16; and

(d)    at the time when the person first satisfied paragraph (b), the person was in Australia or temporarily absent from Australia; and

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

Note:    A person who is receiving a special needs disability support pension may be automatically transferred to the special needs age pension if the person becomes qualified for the special needs age pension (see subsection 789(3)).

28    The third is Division 2 of Part 4.2 of the Social Security Act, which relates to overseas portability of payments, within which are the following provisions.

29    Section 1212 defines the meanings of a number of terms. The term “eligible medical treatment”, in relation to a person, is defined to mean “medical treatment of a kind that is not available to the person in Australia”.

30    Section 1213 provides that Division 2 of Part 4.2 applies to a person who, immediately before the period of absence commenced, was receiving a social security payment, or to a person who, during the period of absence, had a claim for such a payment granted.

31    Section 1215 is a central provision, because it provides for the consequences of the “maximum portability period” provided for by s 1217 –

1215    Some payments generally portable with time limit

(1)    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.

Note:    Section 1217 defines the person’s maximum portability period and portability period for the payment.

(2)    This section is subject to Subdivision B of this Division (which contains exceptions) and section 1220.

32    Section 1217 provides for the content of a person’s “maximum portability period” –

1217    Meaning of maximum portability period, allowable absence and portability period

Meaning of maximum portability period

(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).

Meaning of allowable absence

(2)    The person’s absence is an allowable absence in relation to the payment at a particular time if, at that time:

(a)    it is an absence specified in column 4 of the item in the table at the end of this section that is applicable to the payment and the person; and

(b)    except where an unlimited absence is specified in column 5 of the item or a provision of Subdivision B applies, the absence does not:

(i)    exceed the period specified in column 5 of that item; or

(ii)    in the case of item 2—cause the total number of days (whether consecutive or not) of the person’s temporary absence from Australia in the last 12 months to exceed 28, ignoring days in accordance with that item.

Meaning of portability period if unlimited maximum portability period

(3)    If the person’s maximum portability period for the payment is an unlimited period, the person’s portability period for the payment, in relation to the period of absence, is an unlimited period beginning at the commencement of the period of absence.

Meaning of portability period if maximum portability period limited

(4)    If the person’s maximum portability period for the payment is not an unlimited period, 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 that is the person’s maximum portability period for the payment.

Note:    People will be required (under the Social Security (Administration) Act 1999) to notify changes in circumstance.

33    There is a table under s 1217. Relevant to the present case are items 1, 2, 2AA, and 15 of the table –

…

34    The significance of items 2 and 2AA is that they relate to portability periods for a disability support pension. The applicant submitted to the Court that he was in receipt of a disability support pension. For reasons that I will give below I reject that claim, and I find that the applicant was at the time of the application letter in receipt of jobseeker payments, to which item 15 of the table relates.

35    Under s 1218D of the Social Security Act, the Secretary may extend a person’s portability period for a payment if the Secretary is satisfied that financial assistance is payable to the person under the Medical Treatment Overseas Program –

1218D    Extension of person’s portability period—life-saving medical treatment overseas

(1)    The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that, under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953, financial assistance is payable in respect of the person’s absence from Australia.

(2)    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 applicant’s grounds of review

36    The applicant’s amended application for judicial review raises grounds that are directed to review of what the applicant claims is a decision of the Secretary made 19 September 2023, being the date of the letter to the applicant from Services Australia to which I referred at [10] above. The applicant raised four grounds, claiming that –

(1)    the decision was made in bad faith, in that it was made “without proper invocation of the Centrelink law”;

(2)    procedures required by law were not observed;

(3)    there was an abuse of power, and that the applicant was deprived of natural justice; and

(4)    in making the decision, the decision-maker took into account irrelevant considerations.

37    In support of his grounds of review, the applicant claimed that by his application letter of 30 September 2022, he had made claims for portable income support payments pursuant to: (1) s 772(d); (2) s 1218D; and (3) ss 1212 and 94(1)(ea)(i) of the Social Security Act. The applicant additionally claimed that he had been on a disability support pension, and that he qualified for the special needs disability support pension the subject of the qualifications in s 773. The applicant claimed that in rejecting his claim for portability by reference only to s 1212 of the Act, the Secretary failed to consider his claims for portable payments of social security on the bases on which they were advanced.

Consideration

38    It is unfortunate that the applicant’s claims appear to be the product of a significant degree of confusion on his part as to the nature of the payments that he was receiving, and in relation to the qualifications for the entitlement to other benefits. That confusion has probably not been assisted by the Secretary’s failure to address his claims when they were made or, even now, to address the claims in a clear manner.

39    The resolution of the applicant’s claims for relief under the ADJR Act involves the consideration of the following issues –

(1)    What payment was the applicant receiving at the time of the application letter?

(2)    What are the issues raised by the applicant’s review application?

(3)    What powers did the Secretary exercise in relation to those issues?

(4)    Has there been any reviewable error shown in any purported exercise of power or failure to exercise power by the Secretary?

(5)    In any event, would relief under the ADJR Act be futile?

40    The fifth issue is overriding, because I am of the clear view that the applicant’s claims for portable payments were misconceived, and even if the applicant had established some reviewable error, there is just no point in giving any relief under the ADJR Act.

(1)    What payment was the applicant receiving at the time of the application letter?

41    The applicant submitted to the Court that at the time he sent the application letter he was in receipt of a disability support pension. In support of this submission, the applicant relied on his possession of pensioner concession cards over the relevant period.

42    I do not accept the applicant’s submission that he was in receipt of a disability support pension. The most reliable evidence on this question before the Court is a notice to the applicant from Services Australia dated 29 November 2022 stating that the applicant’s jobseeker payment had been suspended from that day. That notice supports a finding that the applicant was in receipt of jobseeker payments. The applicant’s possession of a pensioner concession card does not suggest otherwise. In the period before the applicant was 60 years of age, he may have qualified for a pensioner concession card under s 1061ZA(2B) of the Social Security Act on the grounds that he was receiving a jobseeker payment and had a partial capacity for work. In the period after the applicant attained 60 years of age, he may have qualified for a pensioner concession card under s 1061ZA(2) on the grounds that he had attained 60 years of age, and had been receiving a jobseeker payment for a period of not less than 39 weeks. Therefore, it does not follow from the mere fact that the applicant has possessed a pensioner concession card that he has been receiving any form of disability pension. The right to hold a pensioner concession card can be a wholly separate entitlement from the right to be paid a disability pension. Possessing a pensioner concession card does not gainsay the conclusion that the applicant was receiving jobseeker payments.

43    For these reasons I find that at the time of the application letter the applicant was in receipt of a jobseeker payment.

(2)    What are the issues raised by the applicant’s review application?

44    On a fair reading of the application letter, the applicant raised four issues that may have provided the foundation for impugning the ostensible decision recorded in the 19 September 2023 letter –

(a)    a purported claim for a disability support pension under s 94 of the Social Security Act;

(b)    a purported claim for a special needs age pension under s 772 of the Act;

(c)    a purported claim for a special needs disability support pension under s 773 of the Act; and

(d)    a request for an extension of the portability period applicable to the payment the applicant was receiving, pursuant to s 1218D of the Act.

45    There is also a further issue, (e), which was not raised in the application letter, namely whether the applicant’s jobseeker payment remained payable during his period of absence because the applicant was outside Australia for “eligible medical treatment”.

46    Finally, there is an issue, (f), concerning the legal significance of the letter sent by Services Australia to the applicant dated 19 September 2023.

(3)    What powers did the Secretary exercise in relation to those issues?

Issues (a), (b) and (c) — purported claims for certain pensions

47    To understand what powers the Secretary exercised in relation to the applicant’s purported claims for certain pensions, and whether the applicant has impugned any exercise of power by the Secretary in relation to those claims, it is necessary to decide whether the applicant in fact made any “claim” at all.

48    Mr Brown, who appeared for the Secretary, submitted that, for the purposes of s 16 of the Administration Act, the application letter was a claim for portability of the applicant’s social security payment. However, in relation to the applicant’s claims for pensions under ss 94, 772, and 773 of the Social Security Act, I am not persuaded that the applicant made a claim for the purposes of s 16 of the Administration Act. The effect of s 16 is that a person makes a claim for a social security payment only if that person lodges a written claim in accordance with a form approved by the Secretary, or makes the claim in another manner approved by the Secretary for the purposes of s 16(7) of the Administration Act.

49    The applicant tendered a six-page list of approved Centrelink forms that he said he had downloaded from a website. Otherwise, the evidence as to the nature of the Secretary’s approved forms was scant. The list refers to a “Claim for Disability Support Pension form (SA466)”. This is likely to be a form approved by the Secretary for the purposes of making a claim for a disability support pension. The list contains no obvious reference to any forms approved by the Secretary specifically for the purposes of making a claim for a special needs age pension or a special needs disability support pension. I do not, however, have a positive state of satisfaction that there were not, amongst the Secretary’s approved forms, forms that would be suitable for claims for payments under ss 772 and 773 of the Social Security Act. Further, there is no evidence that the Secretary had approved some other manner for making a claim for the purposes of s 16(7) of the Administration Act.

50    On the basis of the above analysis, I am not satisfied that the applicant made any claim for any of the payments described in s 94, s 772, or s 773 that engaged ss 11 and 16 of the Administration Act. The result of this is that the applicant has not established that there was any decision in relation to these three pensions that could be the subject of this Court’s review jurisdiction under the ADJR Act. The applicant’s challenges in relation to ss 94, 772, and 773 therefore fail at this threshold.

51    In the event that I am wrong in my conclusion that, in respect of the pensions, the applicant did not make a claim for a payment that engaged ss 11 and 16 of the Administration Act, then the Secretary’s failure within 13 weeks to make a determination regarding those claims resulted in a deemed refusal of the claims pursuant to s 39 of the Administration Act. Upon that occurrence, it would have been open to the applicant to apply to the Secretary under s 129 of the Administration Act for review of the deemed decision. He made no application for review by the Secretary.

52    Nothing in the 19 September 2023 letter from Services Australia to the applicant purports to re-open the deemed refusal of any claim the applicant made for any of these three pensions.

Issue (d) — request for an extended portability period

53    As for the applicant’s reference in the application letter to s 1218D of the Social Security Act, I am not satisfied that this was a “claim” in the relevant sense at all. To understand why, it is necessary to notice some features of the Social Security Act and the Administration Act. Part 3 of the Administration Act is entitled “Provision of benefits”. Division 1 of that Part is titled “Claim for social security payment or concession card”, and Subdivision A of that Division is headed “Need for claim”.

54    In dealing with the provision of benefits, the scheme of Part 3 of the Administration Act is that a claim for a benefit is made, and then determined. If the claim is granted, the benefit is provided. Various determinations may then be made along the way. In certain circumstances, the Secretary can cancel or suspend the provision of the benefit.

55    Subdivision A of Division 1 of Part 3 has to be seen in that context. Section 11 of that Subdivision provides in part that “a person who wants to be granted: (a) a social security payment; or (b) a concession card … must make a claim for the payment or card”. Within this part of the statutory scheme, then, a “claim” is not simply a request or demand that something happen. It is rather the process by which someone “who wants to be granted” a particular kind of benefit makes a claim “for the payment or card” (emphasis added). Section 36, which deals with the determination of claims, likewise relates to “determin[ing] a claim for a social security payment or a concession card” (emphasis added). And the outcome of the determination may be “either granting or rejecting the claim”. Section 39 has a similar focus. The result is that the provisions of Part 3 of the Social Security Act are apt to deal with claims by which a person makes a formal request for a particular benefit. There is no “claim” in this sense if the person merely requests that the Secretary exercise some other power, or make some other decision, beyond a determination to grant a benefit.

56    Section 1218D relates to extending the portability period of a pre-existing benefit. A representation to the Secretary that the power under s 1218D should be exercised is, therefore, not a “claim for a social security payment or a concession card” to which s 36 or s 39 could apply. Rather, the applicant’s reference to s 1218D was a representation in support of the portability of one of the other pensions that were referred to in the letter. On another view, it may have been a representation in support of the portability of the applicant’s existing jobseeker payment. However, at the hearing the applicant disclaimed that he was by the application letter seeking portability of his jobseeker payment, which in a way was consistent with the applicant’s submission, which I have rejected, that he was not in receipt of jobseeker payments.

57    To the extent that the applicant’s representation in the application letter about s 1218D was a request for an extension of the portability periods of the pensions the applicant was claiming under ss 94, 772, and 773 of the Social Security Act, s 1218D had no application. Division 2 of Part 4.2 of the Social Security Act is titled “Portability of social security payments”. Within that Division, s 1213 relevantly provides that Division 2 “applies to a person during a … period of absence … if … immediately before the period of absence commenced, the person was receiving a social security payment (the payment)” (emphasis in original). Sections 1215, 1217, and 1218D then all refer to the person’s maximum portability period or portability period “for the payment”. In context, then, the power in s 1218D to extend the portability period “for the payment” can only be exercised to extend the portability period of a payment that the person was receiving immediately before the period of absence commenced (s 1213(a)), or which is granted during the period of absence (s 1213(b)).

58    The applicant has never been granted any entitlement referable to s 94, s 772, or s 773. If the application letter was a request by the applicant for the Secretary to exercise power under s 1218D in relation to any such entitlement, it requested something beyond the competence of the Secretary absent a decision to grant one of those other pensions. The Secretary has no power under s 1218D to extend the portability period of a payment that a person has not been granted and has never received. It can therefore not have been an error for the Secretary not to do so.

59    If the reference in the application letter is better understood as a request for an extension of the portability period for the applicant’s jobseeker payment, then I find that, before this proceeding commenced there was no consideration by the Secretary, or a delegate, of the potential application of s 1218D to any entitlement of the applicant to jobseeker payments. There was therefore no exercise of power in relation to that request. At the hearing, however, the Secretary tendered a pro forma application form for financial assistance under the Medical Treatment Overseas Program. The information sought by that form is extensive, and Parts C and D of the form require completion by a medical specialist. There is no evidence that the applicant ever applied for financial assistance under the Medical Treatment Overseas Program, and the applicant accepted during argument that he had not. There was therefore no basis disclosed by the evidence on which the Secretary could ever have been satisfied that any such financial assistance was payable to the applicant.

Issue (e) — portability of the applicant’s jobseeker payment for “eligible medical treatment”

60    At the outset, I should say that the applicant’s application letter makes no reference to the question of eligible medical treatment. Nor is this question raised in the amended application for judicial review. In fact, as I have mentioned, the applicant disclaimed that he was entitled to receive jobseeker payments while overseas on the basis that he was seeking “eligible medical treatment”. However, this issue was raised by the Secretary in the response document filed in this proceeding.

61    Now, the letter to the applicant from Services Australia dated 29 November 2022 plainly records a decision under an enactment. The decision in question was a decision to suspend the applicant’s jobseeker payments because he was not in Australia. Based on the statutory scheme, I consider this was likely to be a decision under s 80(1) of the Administration Act to suspend the payment on the basis that the Secretary was satisfied that the jobseeker payment was no longer “payable” to the applicant within the meaning of s 80(1)(b). To summarise one effect of the statutory regime, jobseeker payments cease to be “payable” if a recipient leaves Australia without a permitted reason. This then enlivens the Secretary’s power and obligation in s 80(1) of the Administration Act.

62    As I have noted, both parties accepted that this decision was made by a computer. Section 83 of the Administration Act provides that, if payment of a social security payment is based upon data in a computer, and the payment is suspended because of the operation of a computer program used under the control of the Secretary, and the program causes the change for a reason for which the Secretary could make the change by determination, then the change is taken to have been made by the Secretary by determination for that reason.

63    It appears that, here, the suspension of the applicant’s jobseeker payment was triggered by the applicant’s departure from Australia combined with the absence of anything in the computer system extending the applicant’s portability period. There is simply no reason to doubt that the computer caused the suspension because of the applicant’s departure, in combination with the fact that the applicant was not seeking eligible medical treatment. That was a basis upon which the Secretary could have made a determination under s 80(1), given that the Secretary may have formed the view that the jobseeker payments were no longer payable under s 1215(1)(b). The effect of s 83 of the Administration Act is to deem this to be a determination made by the Secretary for that reason. In this proceeding, the applicant does not challenge the decision on 29 November 2022 to suspend his jobseeker payment.

Issue (f) — the 19 September 2023 letter

64    The statutory basis for the purported decision recorded in the letter from Services Australia of 19 September 2023 is far from clear. The best view would seem to be that the letter from Services Australia of 19 September 2023 addresses an issue that the applicant in submissions to the Court disclaimed raising by his application letter, namely portability of his jobseeker payment for the period during which he was outside Australia. As I have found that the applicant was in receipt of a jobseeker payment at the time of the application letter, it is hardly surprising that the officer would seek to address the portability of that payment. The only aspect of the Services Australia letter that would qualify as reasons would be that “[a] decision has been made under Section 1212 of Social Security Act 1991 that the evidence provided is not sufficient for payment of your Jobseeker Payment whilst you were outside Australia”. There was otherwise no obligation on the officer to give reasons, and the applicant did not request any reasons.

65    To the extent this letter evidences a decision under an enactment, that decision related to the portability of the applicant’s jobseeker payments. As I have noted, the applicant does not contend that Secretary erred in suspending his jobseeker payments.

(4)    Has there been any reviewable error shown in any purported exercise of power or failure to exercise power by the Secretary?

Issues (a), (b) and (c) — purported claims for certain pensions

66    I have concluded that there was, in fact, no exercise of power by the Secretary in relation to the applicant’s purported claims under s 94, s 772, or s 773 of the Social Security Act, because I am not satisfied that any valid claim was made. Even if there had been a valid claim, then there was a deemed refusal of that claim, and there was no error in that refusal, because it occurred by force of s 39 of the Administration Act. The applicant’s review application seeks to establish an error in the way the 19 September 2023 letter dealt with his purported claims under ss 94, 772, and 773. But for the reasons I have explained, that letter did not, and did not have to, address those purported claims, as there was no claim on foot, and if there had been a deemed refusal of the claims, no application for review was made under s 129 of the Administration Act.

Issue (d) — request for an extended portability period

67    Further, as I have explained, there could have been no error in the Secretary’s failure to extend the portability period of any of these payments, as the power to do so was never enlivened.

Issue (e) — portability of the applicant’s jobseeker payment for “eligible medical treatment”

68    Nor did the applicant claim or establish that there was any error in the suspension of his jobseeker payment. The applicant has not demonstrated that any ground of review has been established in connection with the decision not to treat his jobseeker payment as being portable. It was open to the Secretary on the material submitted by the applicant to conclude that the medical treatment that the applicant sought overseas was available to him within Australia, and therefore outside the defined term “eligible medical treatment”. For this reason, the applicant has not demonstrated any error in the decision to suspend his jobseeker payments for the period of his absence from Australia. But in any event, as I have noted, the applicant disclaimed any contention that he was entitled to receive jobseeker payments while he was abroad, and has not sought any orders directed to the suspension that occurred on 29 November 2022.

Issue (f) — the 19 September 2023 letter

69    The core of the applicant’s challenge is directed to the letter from Services Australia dated 19 September 2023. I am not persuaded, however, that the letter discloses any reviewable error.

70    The reference by the officer to s 1212 of the Social Security Act appears infelicitous, as s 1212 provides for the meaning of various terms, including “eligible medical treatment”. Although the letter does not purport to be a statement of reasons, it at least indicates that the officer considered whether the applicant qualified for a portability period for his jobseeker payment for the purposes of item 15 in the table under s 1217 on the ground that there was a temporary absence by the applicant from Australia for the purpose of seeking eligible medical treatment. In any event, the applicant does not claim that he was entitled to receive jobseeker payments outside Australia by virtue of seeking eligible medical treatment. The result is that the applicant has not demonstrated any error in what was actually decided and evidenced by the 19 September 2023 letter.

71    Part of the applicant’s challenge is that the 19 September 2023 letter was affected by a reviewable error because it failed to engage with issues other than the portability of his jobseeker payment. In my view, however, this challenge is misconceived. The applicant had no claim on foot for a pension under s 94, s 772, or s 773 of the Social Security Act. The applicant had not sought review of the deemed refusals of these claims, if there were ever any claims at all. Nor had the Secretary embarked upon a review of those deemed refusals. There was therefore no issue arising out of the applicant’s purported claims that the 19 September 2023 letter needed to address. As a result, it was no error for Services Australia not to engage with any such issue.

72    Further, for the reasons I have already set out, there was no application under s 1218D that needed to be addressed in the letter. For one thing, the applicant does not claim that Services Australia should have determined that he was entitled to an extended portability period for his jobseeker payment. The claim he makes is that he was entitled to an extended portability period in relation to at least one other payment. But as I have explained, the power to make a decision under s 1218D in relation to a payment a person is receiving is not enlivened unless the person has actually been granted that payment. The applicant was not granted any payment other than jobseeker payments. It cannot have been an error for the decision-maker not to have engaged with s 1218D.

(5)    In any event, would relief under the ADJR Act be futile?

73    The relief under the ADJR Act which the applicant seeks is directed to ordering that the Secretary make a determination that the applicant was eligible for portable pensions under s 772 or s 773, or a portability period for an “Australian residence disability support portable pension” under s 1212 or s 1218D of the Social Security Act, or an extended portability period for one or more payments under s 1218D. The relief sought would be futile for the following reasons –

(a)    the applicant has disclaimed any contention that his jobseeker payment remained payable on the basis that he was obtaining “eligible medical treatment” overseas;

(b)    the applicant did not make a valid claim for a disability support pension, or a special needs age pension, or a special needs disability support pension;

(c)    even if the applicant did make any such claim, then there was a deemed refusal of the claim in respect of which the applicant did not seek review by the Secretary;

(d)    to the extent that the applicant seeks relief in support of a claim for a special needs age pension under s 772, it is clear that the applicant would not qualify for that pension for reasons including that he has resided in Australia since 7 May 1973, and has yet to turn 65, being two of the cumulative conditions of s 772 that must be met: see Haque v Secretary, Department of Social Security [2023] FCA 474 at [34], [43]-[44] (Snaden J);

(e)    it is clear that the applicant would not qualify for a special needs disability pension under s 773 because he has resided in Australia since 7 May 1973; and

(f)    there is no realistic prospect that the Secretary could be satisfied that financial assistance under the Medical Treatment Overseas Program was payable to the applicant, and therefore no realistic prospect that s 1218D would be engaged even in relation to his jobseeker payment.

74    For completeness, Mr Brown on behalf of the Secretary did not submit that relief should be refused on the discretionary ground that the applicant had failed to pursue rights of merits-based review under the Administration Act. Had such a submission been made, and had it been necessary to consider that submission, then it may have had some force. The Court has a discretion to refuse relief on the ground that there were other remedies available to the applicant that would likely have involved a full review, including a review by the Secretary under s 129 of the Administration Act and, subsequently, a review by the Administrative Appeals Tribunal pursuant to s 142 of the Administration Act: see ADJR Act ss 10(2)(a), 16. Generally speaking, unsuccessful claimants for payments under the Social Security Act should pursue these remedies rather than approaching the Court seeking judicial review.

Conclusion

75    The amended application for judicial review will be dismissed. I will hear the parties on costs.

Associate:

Dated:    28 March 2024