Re Hugo Rupbert Wilson v the Secretary, Department of Social Security [1986] FCA 24 (13 February 1986)

FEDERAL COURT OF AUSTRALIA

Re: HUGO RUPBERT WILSON
And: THE SECRETARY, DEPARTMENT OF SOCIAL SECURITY
No. ACT G40 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.
Neaves J.
Pincus J.

CATCHWORDS

Administrative Law - Administrative Appeals Tribunal - Appeal - Invalid pension - Applicant in receipt of pension under reciprocal arrangements with New Zealand - Applicant returned to New Zealand before establishing 10 years' continuous residence in Australia so as to qualify for pension under general provisions of statute without relying on reciprocal arrangements - Pension suspended and then cancelled - Invalid benefit granted under New Zealand legislation - Whether applicant qualified to receive Australian pension - Whether such qualification barred by absence of physical presence of applicant in Australia when claim made.

Administrative Appeals Tribunal Act 1975, s. 44

Social Security Act 1947, ss. 20, 24, 25, 45, 46, 83AA, 83AB, 83AE, 83AF, 135TJ, 137

Social Services (Reciprocity with New Zealand) Regulations, regs 5, 6, 7, 8, 11, 15

HEARING

CANBERRA
13:2:1986

ORDER

The application be dismissed.

The applicant pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Hugo Rupbert Wilson ("the applicant") has appealed to the Court from a decision of the Administrative Appeals Tribunal, constituted by a presidential member, given on 3 December 1984 affirming a decision of the Director-General of Social Services made on 29 June 1981 pursuant to s. 46 of the Social Services Act 1947 (Cth), as it was then called, cancelling the invalid pension which had, prior to its suspension pursuant to that section on 20 February 1981, been paid to the applicant. The appeal is brought pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 which permits a party to a proceeding before the Tribunal to appeal to the Court from a decision of the Tribunal but only on a question of law.

2. It is necessary to an understanding of the submissions put to the Court on behalf of the applicant to refer, at least in outline, to the relevant facts as found by the Tribunal.

3. The applicant, having become permanently incapacitated for work in the United Kingdom, arrived in New Zealand from that country on 8 April 1963. Thereafter he was paid an invalid's benefit pursuant to the Social Security (Reciprocity with the United Kingdom) Act 1956 (N.Z.). On 27 February 1971 the applicant arrived in Australia from New Zealand. He made an application for an invalid pension under the Social Services Act 1947 (Cth) ("the Act") but that application was not approved. The matter was later reviewed and, on 13 June 1972, the grant of an invalid pension, effective from the date of his arrival in Australia, was approved. The pension payable was, however, that provided for in the reciprocal arrangements between Australia and the United Kingdom. Under those arrangements he was not to receive more by way of pension than the amount which he would have received under the United Kingdom legislation if he had remained in that country (see reg. 5 of the Social Services (Reciprocity with United Kingdom) Regulations). That amount was less than the amount that would have been payable under the Act had the applicant been able to bring himself within its provisions without the necessity of relying on the reciprocal arrangements.

4. The receipt of pension at the lower United Kingdom rate led to representations being made on the applicant's behalf for a review of his entitlement. As a result, a decision was made that, under the provisions of the Act as modified by the Social Services (Reciprocity with New Zealand) Regulations, an invalid pension at the standard rate was payable to the applicant with effect from 19 April 1973, being the first pension payday after ten years' combined continuous residence in New Zealand and Australia.

5. On 1 August 1980 the applicant left Australia and went to New Zealand where he has remained. He applied for benefits under the New Zealand legislation but it was not until September 1983 that he was successful in obtaining a favourable decision. That decision, however, approved payment of an invalid's benefit under the New Zealand legislation as from 2 February 1981.

6. As has already been mentioned, the invalid pension which had been paid to the applicant under the provisions of the Act as modified by the Social Services (Reciprocity with New Zealand) Regulations was suspended on 20 February 1981 and cancelled on 29 June 1981.

7. It is convenient, before identifying the issues that were the subject of argument before the Court, to refer to the relevant legislative provisions. For this purpose it is sufficient, except where otherwise indicated, to refer to the provisions of the Social Security Act 1947 (Cth) as they appear in the reprint of that Act (Reprint No. 2) as at 1 August 1982. The short title of the Act was changed from the Social Services Act 1947 to the Social Security Act 1947 by the Social Services Legislation Amendment Act 1982.

8. Subject to the Act, a person above the age of 16 years who is not receiving an age pension and -

(a) is permanently incapacitated for work;
and

(b) is residing in, and is physically
present in Australia on the date on
which he lodges his claim for a pension,

is qualified to receive an invalid pension (s. 24). It is a condition of the grant of such a pension, in the case of a claimant under s. 24 who is permanently incapacitated for work, that he became so incapacitated while in Australia or during a temporary absence from Australia or while in an area that was, at the time he became permanently incapacitated for work, an external Territory, other than Norfolk Island (s. 25(1)(b)). But a person who became permanently incapacitated for work while outside Australia (otherwise than during a temporary absence from Australia) is, for the purposes of s. 25, to be deemed to have become permanently incapacitated for work while in Australia if he has at any time been continuously resident in Australia for a period of not less than 10 years (s. 25(2)). In certain circumstances a claimant is deemed, for the purposes of the provisions of the Act dealing with invalid pensions, to have been resident in Australia during a period of absence from Australia and to have had continuity of residence in Australia notwithstanding absence in an external Territory (s. 20). The Director-General of Social Security may cancel or suspend a pension if, by reason of the failure to comply with, inter alia, s. 45 or for any other reason, he considers it appropriate to do so (s. 46). It may be noted that that section had, by the time the matter came before the Tribunal, been repealed and replaced by s. 135TJ which, in respects relevant to this matter, is in identical terms. By virtue of sub-s. 45(8), a pensioner is not to leave Australia without first giving notice of his intended departure from Australia.

9. Part IVAA of the Act (comprising ss. 83AA - 83AG inclusive) is headed "Payment of Certain Pensions and Benefits to Persons outside Australia" and commenced on 8 May 1973. In that Part, "pension" includes an invalid pension (s. 83AA). Sections 83AB and 83AE provide:

"83AB. Except as provided by this Part, the right
of a person to commence, or to continue, to be paid
a pension granted to him is not affected by the fact
that he leaves Australia after the commencement of
this Part."

"83AE. Except as provided by regulations giving
effect to an agreement referred to in section 137, a
pension payable by virtue of those regulations is
not payable in respect of any period during which
the pensioner is outside Australia."

10. Section 137 of the Act provides, inter alia, that for the purposes of giving effect to any agreement between the Government of the Commonwealth and the Government of any other part of Her Majesty's dominions providing for reciprocity in matters relating to pensions under the Act, the regulations may provide for modifying or adapting the Act in its application to cases affected by the agreement. The Social Services (Reciprocity with New Zealand) Regulations, which came into operation on 1 July 1949, have as their object the giving effect to the agreement on social security made between the Governments of Australia and New Zealand on 15 April 1949, a copy of which is set out in the Schedule to the regulations (reg. 5(1)). The provisions of the regulations, to the extent to which they are inconsistent with any provisions of the Act, modify the Act to that extent in its application to any person to whom the regulations apply (reg. 5(2)).

11. Part II of the regulations (comprising regs. 6-10 inclusive) applies to any person who, having at any time resided in New Zealand, is permanently resident in Australia (reg. 6(1)). A person is, by reg. 6(2), deemed to be permanently resident in Australia for the purposes of Part II -

(a) if he is resident in Australia and
satisfies the Director-General of Social
Security that he is residing permanently
in Australia; or

(b) if he is resident in Australia and his
residence has been continuous for not
less than six months, unless the
appropriate authorities (as defined) of
Australia and New Zealand agree to the
contrary.

For the purposes of a claim under the Act by a person to whom Part II of the regulations applies, the residence in New Zealand of that person is to be deemed to be residence in Australia (reg. 7(a)) but a person residing in Australia is not to be entitled, by virtue of that Part, to receive an invalid pension under the Australian legislation unless that person, if residing in New Zealand, would have been qualified under the relevant New Zealand legislation on residential grounds to receive an invalid's benefit (reg. 8).

12. Part III of the regulations (comprising regs 11-13 inclusive) applies to any person ordinarily resident in Australia who is temporarily resident in New Zealand (reg. 11(1)). Sub-regulations 11(2) and (3) provide:

"(2) Subject to the next succeeding sub-regulation,
a person who, in the opinion of the Social Security
Commission, is not residing permanently in New
Zealand shall not, by reason only of his temporary
absence from Australia, be disqualified from
claiming or receiving any pension, allowance,
endowment or benefit under the Act to which he would
have been entitled if he had remained in Australia.

(3) The Director-General may, in his discretion,
withhold payment of the whole or such part of the
pension, allowance, endowment or benefit as he
thinks fit until the return of that person to
Australia."

13. Regulation 15 provides:

"15. A person shall not be entitled to receive any
pension, allowance, endowment or benefit under the
Act by virtue of Part III of these Regulations in
respect of any period for which he is entitled to
receive the comparable benefit under the Social
Security Act."

The reference to the Social Security Act is a reference to the appropriate New Zealand legislation.

14. Before the Tribunal it was argued on behalf of the applicant that no sufficient ground existed for the cancellation of the pension payable to him. In particular, it was argued that there had been no failure on his part to comply with sub-s. 45(8) of the Act in that notification of his intended departure from Australia on 1 August 1980 had been duly given. That issue was resolved adversely to the applicant though the Tribunal did not find it necessary to go on to consider whether a decision to cancel the pension on that ground was the correct or preferable decision in the exercise of the discretion which s. 46 conferred.

15. The respondent contended before the Tribunal that there were additional grounds upon which cancellation of the pension was justified. It was submitted that the decision to grant the applicant an invalid pension at the standard rate under the provisions of the Act as modified by the Social Services (Reciprocity with New Zealand) Regulations had been incorrectly made, the applicant at no time having an entitlement to a pension under those provisions because the condition prescribed by reg. 8, on the construction which that regulation on the respondent's submission properly bore, had not been fulfilled. Alternatively, that is to say on the assumption that the pension had been properly granted, it was submitted that the applicant's entitlement ceased at the expiration of six months' continuous residence in New Zealand, it being contended that, at the expiration of that period and in the absence of agreement to the contrary by the appropriate authorities of both countries, the legislation required the applicant to be deemed to be permanently resident in New Zealand. It followed, according to the respondent's submission, that the applicant had ceased to be permanently resident in Australia and his entitlement to a pension under the reciprocal arrangements ceased by virtue of reg. 6(1).

16. The Tribunal rejected both those contentions for reasons which it is unnecessary now to consider but upheld a further submission on behalf of the respondent that, by reason of the applicant's entitlement to receive the comparable benefit under the New Zealand legislation in respect of the period from 2 February 1981 to the date when the matter was before the Tribunal and continuing, reg. 15 of the Social Services (Reciprocity with New Zealand) Regulations precluded the payment of a pension under the Act in respect of the same period. On that basis the decision cancelling the pension was upheld.

17. In the course of considering the various submissions made to it, the Tribunal concluded that the applicant was, from 1 August 1980 until 2 or 20 February 1981 (it is not altogether clear which), ordinarily and permanently resident in Australia although temporarily absent in New Zealand (where he was temporarily resident) but that he became permanently resident in New Zealand "by 1982", the date not being otherwise identified. Those findings were made in the context of considering whether Parts II and III of the Social Services (Reciprocity with New Zealand) Regulations continued to apply to the applicant (see regs 6(1) and 11(1) of those regulations).

18. On the hearing of the appeal no challenge was made by either party to any of the findings of fact made by the Tribunal. Nor, except as to the final conclusion affirming the decision under review, was any challenge made to the conclusions reached by the Tribunal. The case made on behalf of the applicant was that there had been a failure on the part of the Tribunal to consider whether the applicant had become entitled to an invalid pension by virtue of the operation of ss. 24, 25 and 83AB of the Act independently of, and without the necessity to rely upon, the provisions of ss. 83AE and 137 of the Act and the Social Services (Reciprocity with New Zealand) Regulations. It was submitted that, being under an obligation to consider that question, the Tribunal's failure to do so amounted to an error of law attracting the jurisdiction of the Court. The Tribunal's obligation to consider the question was said to arise notwithstanding that no claim that the applicant was entitled to a pension on the basis proposed had been made to the respondent and the Tribunal had not been invited to consider the issue. Indeed, it is apparent from a reading of the transcript of the proceedings before the Tribunal that the applicant's then legal advisers accepted the position that entitlement to an invalid pension otherwise than under the reciprocal arrangements would only arise if the applicant returned to Australia and remained there for a further, though possibly short, period.

19. The provisions of ss. 24, 25 and 83AB of the Act, so far as they are relevant to the submissions put on behalf of the applicant, have been referred to earlier in these reasons. It being accepted that the applicant became permanently incapacitated for work while outside Australia (otherwise than during a temporary absence from Australia), it was necessary for the applicant to show, in terms of s. 25(2) of the Act, that he had been continuously resident in Australia for a period of not less than 10 years. Having first arrived in Australia on 27 February 1971, he had not satisfied that requirement when he left Australia on 1 August 1980. Further, it was acknowledged by counsel for the applicant that the Tribunal had not, in terms, made any finding, for the purposes of s. 25(2), that the applicant had, by 27 February 1981 (or, indeed, by any later date), been continuously resident in Australia for a period of not less than 10 years. It was submitted, however, that the effect of the findings which the Tribunal made in considering the application of Parts II and III of the Social Services (Reciprocity with New Zealand) Regulations - findings which are referred to above - was to establish continuous residence in Australia for the requisite period. But on the basis that the Court might not accept that submission, an alternative submission was put that the Court should set aside the decision of the Tribunal and remit the matter to it for further consideration.

20. On the view which we take of the matter it is not necessary to express a definitive opinion on any of the above matters as there is an insuperable obstacle to the applicant's establishing an entitlement to an invalid pension without reliance upon the modifications made to the Act by the Social Services (Reciprocity with New Zealand) Regulations. That obstacle is found in s. 24(1)(b) of the Act which prescribes as a qualification for the receipt of an invalid pension not only residence in, but also physical presence in, Australia on the date on which an applicant lodges his claim for a pension. A claim for an invalid pension on the basis which the applicant's submissions postulate was not, and could not have been, made prior to 27 February 1981 and by that date he was not physically present in Australia. Indeed, he had not been so since 1 August 1980. To meet this difficulty, counsel for the applicant sought to place a construction on s. 24(1)(b) that would limit its application to the first, and not to a subsequent, grant of an invalid pension or, alternatively, would make it inapplicable to cases in which there is a continuous entitlement to an invalid pension and all that is involved is a change in the basis of that entitlement.

21. Even if it were to be accepted, though we must not be taken as expressing any opinion on the point, that the suggested alternative construction of s. 24(1)(b) is correct, the applicant's case would not be advanced as, on the findings of the Tribunal, there could be no continuity of entitlement. This is because the Tribunal found that, in terms of reg. 15 of the Social Services (Reciprocity with New Zealand) Regulations, the applicant was not entitled to receive a pension by virtue of Part III of those regulations in respect of the period from 2 February 1981 to the date of the Tribunal's decision, 3 December 1984. Thus, even on the view most favourable to the applicant, there would be a break in continuity of entitlement between 2 and 27 February 1981.

22. We are unable to accept the submission that s. 24(1)(b) applies only to the first, and not to a subsequent, grant of an invalid pension. The language of the provision is clear and unambiguous and we are unable to find elsewhere in the Act other provisions which, as a matter of construction, would require the clear words of s. 24(1)(b) to be given a more restricted operation than, on their face, they have.

23. For completeness, it should also be mentioned that the applicant can gain no assistance from the provisions of s. 83AF of the Act in the form in which that section stood at any relevant time.

24. It follows that the appeal should be dismissed. The applicant should pay the respondent's costs of the appeal.