Charan v Secretary, Department of Social Services

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 08 August 2019
• Neutral Citation: [2019] FCAFC 134
• Date: 08 August 2019

FEDERAL COURT OF AUSTRALIA

Charan v Secretary, Department of Social Services [2019] FCAFC 134

Appeal from:	Charan v Secretary, Department of Human Services [2018] FCA 1942
File number:	NSD 1 of 2019
Judges:	RARES, PERRY AND JACKSON JJ
Date of judgment:	8 August 2019
Catchwords:	ADMINISTRATIVE LAW – eligibility for aged pension of husband and wife New Zealand nationals – whether appellants had achieved “10 years qualifying Australian residence” – consideration of the Agreement on Social Security between the Government of Australia and the Government of New Zealand – where residence requirement not satisfied – appeal dismissed
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 42A Social Security Act 1991 (Cth) s 43 Social Security (International Agreements) Act 1999 (Cth) ss 6, 7, Sch 3 Arts 5, 12
Cases cited:	Charan v Secretary, Department of Social Services (2016) 247 FCR 422 Charan v Secretary, Department of Social Services [2017] HCASL 35 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Kemppi v Adani Mining Pty Limited (No 2) [2019] FCAFC 117 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Macks; Ex parte Saint (2000) 204 CLR 158 Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (2013) 213 FCR 532
Date of hearing:	8 August 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	34
Counsel for the Appellants:	The appellants appeared in person
Counsel for the Respondent:	Mr N Swan
Solicitor for the Respondent:	Mills Oakley Lawyers

ORDERS

		NSD 1 of 2019
BETWEEN:	SURESH CHARAN First Appellant ; ANURADHA CHARAN Second Appellant
AND:	SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent

JUDGES:	RARES, PERRY AND JACKSON JJ
DATE OF ORDER:	8 AUGUST 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the respondent’s costs.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

THE COURT:

1. This is an appeal from a decision of a judge of the Court dismissing the appellants’ application for judicial review of decisions made by an authorised review officer of the Department of Social Services on 28 September 2017. The officer refused each appellant’s application for an aged pension.

Introduction

2. The appellants, Suresh and Anuradha Charan, are citizens of New Zealand who are entitled to, and do, reside permanently in Australia. The appellants were born in Fiji, Mrs Charan in January 1946 and Mr Charan in February 1943. Mrs Charan began residing in New Zealand on 1 January 2005 and Mr Charan on 30 June 2005. Mr Charan turned 65 in February 2008, and Mrs Charan turned 65 in January 2011. Mrs Charan arrived in Australia on 15 February 2014, followed by her husband on 5 April 2014, and they have resided here lawfully ever since.

3. In 2016, the primary judge had also heard and dismissed the appellants’ previous application challenging earlier decisions to refuse each of them an aged pension. The appellants appealed against that decision but the appeal was dismissed by the Full Court (Collier, Katzmann and Farrell JJ): Charan v Secretary, Department of Social Services (2016) 247 FCR 422.

4. On 2 March 2017, Nettle and Gordon JJ refused the appellants’ application for special leave to appeal to the High Court, finding that the appellants had not identified a question of law sufficient to warrant a grant of special leave to appeal and otherwise had advanced no arguable ground of appeal against the decision of the Full Court. Nettle and Gordon JJ said that: “an appeal to this court would enjoy no prospect of success”: Charan v Secretary, Department of Social Services [2017] HCASL 35.

5. Two weeks later, on 16 March 2017, Mr and Mrs Charan applied again, unsuccessfully, for an aged pension, leading to the present appeal.

6. The central issue in this appeal, as in the previous appeal, is whether each of Mr and Mrs Charan had achieved the minimum period of residence in Australia to qualify for an age pension after taking into account any relevant periods of residence in New Zealand.

The legislative context

7. Section 43(1) of the Social Security Act 1991 (Cth) relevantly provided:

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

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

8. Section 7(5) of the Social Security Act provided that a person had 10 years qualifying Australian residence if, and only if, the person had, at any time, been an Australian resident for a continuous period of not less than 10 years or had been an Australian resident during more than one period, one of which had to be continuous for five years or more and, in total, the aggregate had to exceed 10 years.

9. Clearly enough, under the provisions of the Social Security Act taken alone, Mr and Mrs Charan could not qualify for an aged pension because they had not yet achieved 10 years qualifying Australian residence since arriving here in 2014. However, Australia and New Zealand have entered into two treaties, namely, the Agreement on Social Security between the Government of Australia and the Government of New Zealand done at Canberra on 28 March 2001 (as amended) (the 2001 Agreement) and the Agreement on Social Security between the Government of Australia and the Government of New Zealand done at Wellington on 8 December 2016 (the 2016 Agreement). The 2016 Agreement appears to have come into force on 1 July 2017, that is, after Mr and Mrs Charan applied for the second time for their aged pensions, but before the impugned decisions were made.

10. Section 6(1) of the Social Security (International Agreements) Act 1999 (Cth) (the International Agreements Act) provided that scheduled international social security agreements between Australia and another country set out in a schedule to that Act “have effect despite anything in the social security law”, which included the Social Security Act. The International Agreements Act provided in s 7 that regulations could be made to amend a schedule to that Act so as to set out in the schedule the text of an agreement that amended, or otherwise affected the operation of, another agreement set out in the schedule. The regulations making such an amendment would come into force no earlier than the day on which the amending agreement comes into force for Australia.

11. For present purposes, there are some, but no material, differences in the terms of the operative provisions of the 2001 and 2016 Agreements that affect the appellants’ eligibility for an aged pension. For present purposes, it will suffice to set out the relevant provisions of the 2001 Agreement. The differences between those provisions and the corresponding articles in the 2016 Agreement are set out in the table in [13] below which the primary judge accurately distilled and included in his reasons together with his conclusions as to the effect of those changes. We gratefully adopt that distillation.

12. Relevantly, the 2001 Agreement provided:

ARTICLE 5

Residence Definitions

1. “Australian resident” has the meaning given to that term in the social security law of Australia but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia. …

5. “working age...