Mohamed v Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 336

FEDERAL COURT OF AUSTRALIA

Mohamed v Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 336

FOWZIA ADEN MOHAMED v SECRETARY OF THE DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS and ADMINISTRATIVE APPEALS TRIBUNAL

VID 1084 of 2008

MIDDLETON J

9 APRIL 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1084 of 2008

BETWEEN: FOWZIA ADEN MOHAMED

Applicant

AND: SECRETARY OF THE DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE: MIDDLETON J

DATE OF ORDER: 25 MARCH 2009

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The description of the first respondent be amended to "Secretary of the Department of Families, Housing, Community Services & Indigenous Affairs". 2. The application for leave to appeal out of time be refused. 3. The appeal otherwise be dismissed. 4. The applicant pay the costs of the first respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1084 of 2008

BETWEEN: FOWZIA ADEN MOHAMED

Applicant

AND: SECRETARY OF THE DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE: MIDDLETON J

DATE: 9 APRIL 2009

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Background 1 This was an application for leave to appeal out of time from the decision of the Administrative Appeals Tribunal ('Tribunal') rejecting the applicant's claim to have been a resident for a six day period from 20 May 2001 to 26 May 2001 for the purposes of the Social Security Act 1991 (Cth) ('the Act'). 2 The applicant was granted New Zealand citizenship in 2000, having left Somalia as a refugee in 1991. On 20 May 2001 the applicant arrived in Sydney where she slept on the living room floor of friend's home in Belmore. The applicant lodged an application to acquire a resident's certificate with Centrelink on 1 May 2002 in order to gain access to social security benefits under the Act. On 16 May 2002 a delegate of Centrelink rejected the application for the certificate and, thereafter, the applicant pursued all avenues of appeal until reaching the Tribunal. Before the Tribunal the applicant had to show that she had commenced residing in Australia during the period of three months beginning on 26 February 2001 to be eligible for the certificate. The Tribunal affirmed the decision of the delegate. 3 Two issues arose for consideration in this application. The first was whether, in view of the fact the applicant received the Tribunal's decision on 3 February 2006, the Court should exercise its discretion to allow the applicant to bring the appeal out of time. Relevant to the exercise of the discretion are the merits of the proposed appeal. The second issue was whether the Tribunal fell into error by considering evidence relating to the applicant's conduct after 26 May 2001, or after the original decision maker's decision on 16 May 2002. 4 On 25 March 2009 I made final orders refusing the application for leave to apply out of time. I now provide my reasons for those orders.

THE TRIBUNAL'S DECISION 5 The Tribunal held that in order to succeed in her application the applicant had to demonstrate that she commenced residing in Australian during the period of three months commencing on 26 February 2001 to 26 May 2001. The Tribunal found that the applicant failed to prove on balance that she commenced residing in Australia between the time she first arrived in Australian on 20 May 2001 to 26 May 2001. It was not suggested by the applicant that the Tribunal fell into error by misdirecting itself as to the proper legal question to ask. 6 In its reasons, the Tribunal noted that under the Act access to all pensions, benefits and allowances is qualified by some form of residence criteria, usually being that the applicant is an Australian resident. The Tribunal discussed the history of the particular provision under which the applicant applied, noting that after the passage of the Family and Community Service Legislation Amendment (New Zealand Citizens) Act 2001 (Cth) (at [13]): New Zealand citizens who entered Australia after 26 February 2001 had their access to social security limited on the same basis as other migrants. However, a three month period following 26 February 2001 was granted to enable New Zealanders to establish residence following the commencement of the amended s 7. 7 The Tribunal then noted that the applicant could only be an Australian resident by being a person who is 'a special category visa holder who is a protected SCV holder': see s 7(2)(b)(iii) of the Act. By virtue of the applicant entering Australia after 26 February 2001, she had to demonstrate compliance with s 7(2C) of the Act, which provides: A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if: (a) the time is during the period of 3 years beginning on 26 February 2001; or (b) the time is after the end of that period, and either: (i) a determination under subsection (2E) is in force in respect of the person; or (ii) the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder. 8 As correctly identified by the Tribunal (at [16]): As far as s 7(2C) is relevant to Mrs Mohamed, the evidence must disclose that she commenced residing in Australia by 26 May 2001. If the evidence supported her claim that she was residing in Australia between 26 February 2001 and 26 May 2001, then it would be appropriate to examine s 7(2E) and s 7(2F) of the Act, which permit a resident residing during the three month period beginning on 26 February 2001 to apply to the Secretary for a determination stating that this was the case. However, if Mrs Mohamed was not residing in Australia by 26 May 2001, quite properly, the Secretary should refuse to make such a determination. 9 Therefore, before examining the application of ss 7(2E) and 7(2F), the Tribunal had to satisfy itself that upon entering Australia on 20 May 2001 and until 26 May 2001, the applicant had commenced residing in Australia. The Tribunal said (at [20]): There is only one issue in this matter and that is whether Mrs Mohamed commenced to reside in Australia by 26 May 2001. As she first arrived in Australia on 20 May 2001, the following six days is the period during which Mrs Mohamed is required to establish that she commenced residing in Australia. Nevertheless, as Deputy President Forgie pointed out in Re Firdousi, whether Mrs Mohamed established residence in that six day period can be assessed in light of her subsequent actions. It is the final sentence of this passage, and the consequences flowing there from, which the applicant took issue in her application to this Court. 10 Then, having set out a number of issues concerning the applicant's marriage, subsequent trips abroad, details of travel cards, and statements made by her friends, the Tribunal noted the following evidence relevant to the applicant's objective and subjective intention (at [32]): (a) upon her arrival in 2001, Mrs Mohamed stayed with a friend, Ms Ismail, living in what can only be described as a very temporary arrangement; and there was no evidence that Mrs Mohamed was at that time seeking any permanent form of accommodation; (b) Mrs Mohamed's brother-in-law lived in Melbourne and her husband resided in New Zealand but, save for those two persons, she had no other family members resident in Australia; (c) although Mrs Mohamed had opened a bank account in Australia, obtained a tax file number and registered with Centrelink, she did not work nor did she have any business or financial ties in Australia; (d) although Mrs Mohamed had an Australian bank account which contained a deposit of $10, there were no transactions on that account during the relevant period; (e) upon arrival in Australia in May 2001, Mrs Mohamed brought only some clothes and a blanket but no other assets; and (f) between 20 May 2001 and 25 April 2004, Mrs Mohamed was in Australia only for a period of five months and twenty-one days. 11 In concluding that it was not satisfied that the applicant had established or settled a permanent home in Sydney between 20 and 26 May 2001, the Tribunal relied on (at [36]-[38]): The fact that Mrs Mohamed opened a bank account, obtained a tax file number and registered with Centrelink when she first arrived in Australia does not carry significant weight. Even though her bank account was subsequently "topped up" with a further $200 when she was working in New Zealand, there were no other transactions on that account and, save for the fact that she said she had regularly looked for casual employment, there was no evidence that she had made any real effort to find employment upon first arriving in Australia. As for Mrs Mohamed's stated intention of residing permanently in Australia when she first arrived on 20 May 2001, the objective evidence is, in my opinion, against her on this point. Her behaviour after arriving in Australia for the first time was consistent with Mrs Mohamed not having made a decision to reside permanently in Australia at that time; although there is perhaps little doubt that she was considering such a proposition. Finally, it is significant that upon her return to New Zealand in 2002, Mrs Mohamed received social security payments during her stay in that country 12 It is the taking into consideration of events after 16 May 2002 (ie, after the decision of the original decision-maker) that is objected to by the applicant.

application to this court

Applicant's submissions 13 It is convenient to deal with the merits of any appeal if leave were to be granted to bring the appeal out of time. 14 The applicant submitted that under the relevant section of the Act, there were two questions for determination. First, whether the applicant is residing in Australia at the time of her application to Centrelink (ie, 1 May 2002) and, secondly, whether, the applicant commenced residing in Australia during the period of three months beginning on 26 February 2001. The applicant contended that the Tribunal fell into error by considering evidence after the date of the delegate's decision on 16 May 2002 and, that on this analysis, the Tribunal should have confined itself to the material before the original decision-maker as at the date of that decision, namely 16 May 2002. This, it was submitted, was because it was inherent in the nature of the particular decision that a review of the decision would be confined to identified past events. The applicant pointed to the following passages from the judgment of Kirby J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 ('Shi') (at [44]): Sometimes, it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events. If, for example, under federal legislation, a pension is payable at fortnightly rests, by reference to particular qualifications that may themselves alter over time, a "review" of an administrative "decision" to grant or refuse such a pension, by reference to statutory qualifications, may necessarily be limited to the facts at the particular time of the decision. His Honour then said (at [46]): There is thus a general approach deriving in particular from the statutory function of substituting one administrative decision for another. Nevertheless, the particular nature of the "decision" in question may sometimes, exceptionally, confine the Tribunal's attention to the state of the evidence as at a particular time. (Original emphasis; citations omitted.) 15 The applicant could not apply for the relevant determination under s 7(2E) unless she was found to be residing in Australia as at 1 May 2002. Current residence was a condition-precedent to eligibility to apply. Only when this pre-condition was satisfied, could the decision-maker go on to consider the historical question posed by s 7(2E)(b). The Tribunal does not appear to have addressed this threshold issue, however, nothing turns on it as all parties obliviously proceeded on the basis that the applicant was so resident. 16 The applicant puts the fundamental question of whether, in looking back in time to determine a particular state of things in the past, in a specific window, from 26 February 2001 to 26 May 2001, the Tribunal was restricted to the evidence before the original decision-maker. The applicant sought to distinguish the decision in Shi, arguing that the Tribunal was not called upon to make a current assessment of something as at the date of its decision. The applicant submitted that in the present case, circumstances subsequent to the date of the original decision could not alter the analysis of the anterior question. If, for example, the applicant did not leave Australia after 16 May 2002 that does not demonstrate that she commenced residing in Australia between 20 May 2001 and 26 May 2001, any more than her subsequent absences speak to the contrary proposition. 17 As a result, it was contended that the decision of the Tribunal is affected by an error of law. The applicant further contended that this error was of considerable consequence, because the Tribunal drew a number adverse inferences from the conduct of the applicant post 16 May 2002.

First Respondent's submissions in reply 18 The first respondent relied upon various observations in Shi. 19 In Shi Kirby, Hayne, Heydon, Crennan and Kiefel JJ held that s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) ('AAT Act') required the Tribunal to reach its own decision and, in doing so, the Tribunal is not ordinarily confined to material that was before the original decision-maker but is also to have regard to evidence of conduct and events that occurred after the decision under review. 20 Justice Kirby said (at [43]): Fourthly, although the foregoing considerations lead to a conclusion that the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision (61), the fact that the review contemplated by s 43 of the AAT Act is one addressed to a "decision", inferentially arising under a different federal enactment, makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review. 21 Hayne and Heydon JJ said (at [99]): Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation. 22 It was submitted that the Tribunal had identified the relevant question for consideration, namely whether the applicant had demonstrated that she was residing in Australia by 26 May 2001, a period of six days from when she first arrived in Australia in accordance with s 7(2C) of the Act. The first respondent submitted that the nature of the decision under review does not support the contention that the review is limited by reference to the material available to Centrelink when it made the decision on 16 May 2002. 23 The first respondent said that it was appropriate and reasonable for the Tribunal to consider the applicant's subsequent actions to enable it to determine whether the applicant had established residency during the relevant six day period.

Consideration 24 The starting point is to acknowledge, as the High Court in Shi directs, that s 43 of the AAT Act does not limit, by time or substance, the information or evidence the Tribunal may take into account in making its decision. However, this is only the beginning of the inquiry. Reference must then be made to the legislation under which the original decision was made and, having properly construed that legislation, the Tribunal must ask itself the question whether or not it is confined in considering information or evidence by virtue of a restriction of time or subject matter. 25 The applicant submitted that, as noted by Kirby J in Shi (at [44]), sometimes it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events. 26 Similarly, Hayne and Heydon JJ said in relation to the Migration Act 1958 (Cth) (at [101]): Nothing in the provisions of the Migration Act fixed a particular time as the point at which a migration agent's fitness to provide immigration assistance was to be assessed. Unlike some legislation providing for pension entitlements , in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements, the provisions of s 303 of the Migration Act contained no temporal element. It follows that when the Tribunal reviews a decision made under s 303, the question which the Tribunal must consider (is the Tribunal satisfied that the person concerned is not a fit and proper person to give immigration assistance?) is a question which invites attention to the state of affairs as they exist at the time the Tribunal makes its decision. MARA's argument to the contrary should have been rejected in the courts below. (Citations omitted). 27 Hayne and Heydon JJ cited Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 ('Freeman') for the potential fixing of time when considering the criterion to be satisfied for pension entitlements. 28 In Freeman, the Tribunal had affirmed the decision of the relevant department made on 19 May 1987 that the applicant was, as at that date, no longer entitled to a widow's pension and to cancel the applicant's pension accordingly. However, on 15 February 1989, the date of the Tribunal's review, it appeared from the evidence that the applicant might well be entitled to her former pension. Justice Davies held that in making its decision, the Tribunal was entitled to take into consideration all of the facts proved before the original decision-maker, but was not obliged to make a finding as to the applicant's entitlements as at the date of the Tribunal's decision. 29 In the course of reasoning, Davies J noted that (at 345): Regard must always be had to the nature of the decision which is under review. In Re Tiknaz, in Re Easton, in Jebb's case and in McGourty's case, the decision under review was a decision refusing to grant a pension or benefit that had been applied for. In each case, it was held that there was jurisdiction to consider entitlement not only as from the date of the application but also entitlement up to the date of the Tribunal's decision. This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal's decision. 30 Therefore, in my view the Tribunal the subject of this application before me was entitled to take into account all the facts proved before it, as long as the Tribunal focussed on the correct period of time. 31 There is nothing in the Act that prevents the Tribunal from taking into account evidence or material relevant to the period enquired into, here the three month period. 32 As in Freeman, once the Tribunal comes to a conclusion on the question of residence, no further matter remains for consideration. However, evidence going to this question, such as subsequent admissions or events relevant to that question may be considered by the Tribunal. 33 Shi was a case that did not involve, as in this case and in Freeman, the specific reference to a period of time. However, accepting this distinction, nothing in Shi or Freeman would lead to the conclusion that relevant evidence or material could not be led as to the specific period of time, which evidence or material may not have been before the original decision-maker. 34 As Davies J said in Freeman (at 345): In coming to its decision, the Tribunal was entitled to take into account all the facts proved before it. But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow's pension as at the date of the Tribunal's decision. 35 This is what Hayne and Heydon JJ were referring to when making the reference to pension entitlements, and referring to Freeman. Similarly, Kirby J was directing his attention to the same issue, namely the appropriate date upon which to focus attention. 36 The Tribunal considered the relevant matters under s 7(3) of the Act. The findings of fact made by the Tribunal were supported and confirmed by the applicant's subsequent actions, which demonstrated that the Tribunal's consideration of the relevant objective and subjective matters in reaching a decision about whether the applicant had established residency. 37 The Tribunal finding that the applicant had not established residency was a finding of fact. 38 The role of the Court on an application to review a decision of the Tribunal under s 44 of the AAT Act is limited. It is not open to the Court to have a rehearing of the matter before the Tribunal and it is not open to the court, except in very limited circumstances, to undertake any analysis of the factual matters before the Tribunal. The Court is limited to considering questions of law: see Sourouvali v Comcare [1999] FCA 1578 per Goldberg J and Waterford v Commonwealth (1987) 163 CLR 54 per Brennan J.

WHETHER TIME SHOULD BE EXTENDED FOR LEAVE TO APPEAL 39 Even if the applicant had an arguable case, in my view, time should not be extended to bring the appeal. 40 After a decision of the Tribunal a person affected by the decision has 28 days in which to lodge an application for leave to appeal (s 44(2A) AAT Act). The Tribunal handed down its decision on 3 February 2006, so the applicant is more than two years late in bringing her application. 41 Whether or not a Court should exercise its discretion to extend the time for making an application has been considered in numerous cases: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J; Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [21]-[24] per Weinberg J; and SZGCA v Minister for Immigration and Citizenship [2008] FCA 224 at [4] per Besanko J. 42 In my view the applicant has failed to give an adequate explanation for the substantial delay. 43 The applicant submitted that her delay in bringing the application was due to a number of personal issues arising from matrimonial and emotional difficulties, a series of medical ailments and financial constraints. It was further submitted that her transition from a country at war without government, to a modern industrial society had been traumatic and unsettling. The applicant's limited language skills, her having to come to terms with her divorce, and her resulting social isolation had all compounded to impact on her ability to seek and obtain legal advice and, when obtained, to fully appreciate her rights and obligations. 44 In response, the respondents submitted that the applicant was well aware of the appeal period. In relation to the delay, the respondents noted that: * The delay is two years and 11 months. * The medical material provided by the applicant did not substantiate an adequate explanation for the delay in either seeking to appeal from the original administrative appeal decision, or bringing a timely application for extension of time. * The applicant indicated she had consulted a lawyer in May 2008, but did not bring the application for extension for a further seven months at the end of December 2008. * The applicant maintained employment throughout the relevant period, and there was no evidence of any financial reasons for her inability to appeal provided to the Court. * The applicant's marital difficulties had been resolved by both a legal and a religious divorce by April 2004, which was two years before the Tribunal decision, and so those issues could not be relevant to the extension of time question. * The applicant's submission concerning her limited language skills as a reason for her failure to seek to review were not substantiated by the objective evidence. Namely, that she has been working, undertaken and completed two courses, one a certificate of child care level 3, and the other a certificate of aged care level 3. * The applicant's affidavit material in this matter was drafted in English. Further, the applicant had written letters in English, attended doctors, hospitals, Centrelink, and the Social Security Appeal Tribunal all without the need for an interpreter. Moreover, she gave evidence to the Tribunal that her level of reading and writing English was good. * The applicant had access to lawyers, or assistance in dealing with her applications before both the Social Security Appeals Tribunal and the Tribunal where she was represented by both counsel and a solicitor. Therefore, the first respondent submitted that no acceptable explanation for delay had been provided by the applicant.

Conclusion on application for leave 45 I agree with the respondent's submissions and I am not satisfied that there is any adequate explanation for the delay. While it may be true to say there is little (if any) prejudice to the respondents if leave is granted to allow the application out of time, there has been too long a delay and it has not been satisfactorily explained. 46 The applicant's reliance on her background, personal issues and experience, while no doubt traumatic, do not point to a real likelihood that she did not fully comprehend the consequences of delaying in bringing an application after receiving the Tribunal's decision. Indeed, the evidence suggests she had a good grasp of the English language and access to lawyers when appearing before the Tribunal. Whilst some of the matters relied upon by the applicant may explain some period of delay, they do not explain the whole period of delay in bringing this application. Even if there was an arguable case, I do not consider that an adequate case for extending the period in which to apply for leave to appeal has been made.

CONCLUSION 47 For the above reasons, I refused the application for leave to appeal out of time, and found that the appeal should otherwise have been dismissed. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate: Dated: 9 April 2009 Counsel for the Applicant: Mr G Gilbert

Solicitor for the Applicant: Erskine Rodan & Associates

Counsel for the Respondents: Ms A McMahon

Solicitor for the Respondents: Australian Government Solicitor

Date of Hearing: 25 March 2009

Date of Judgment: 9 April 2009