LABROOY v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 3025

LABROOY v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 3025[13 December 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-485-465[2016] NZHC 3025UNDER the Social Security Act 1964IN THE MATTER OF An appeal by way of case stated from thedetermination of the Social SecurityAppeal Authority at Wellington under s12Q of the Social Security Act 1964BETWEEN ANDREW LABROOYAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 11 October 2016Appearances: Appellant on own behalfM Nicholson and S Jerebine for the RespondentJudgment: 13 December 2016JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 13 December 2016 at 3 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Crown Law, WellingtonCopy To: AppellantIntroduction[1] The appellant is a dual citizen of Singapore and New Zealand. In 2014, heapplied for and was granted entitlement to New Zealand superannuation (NZS).However, the appellant refused a request by the defendant (Chief Executive) to takeall reasonable steps to obtain his overseas pension from Singapore. He did so on thegrounds that writing to the Central Provident Fund Board (CPFB) in Singapore wouldresult in his two sons being extradited and punished for failure to undertakecompulsory military service in that country. The Chief Executive suspended theappellant's NZS payments until such steps were taken.[2] The decision to request the appellant to take all reasonable steps, and tosuspend NZS payments, was upheld by the Social Security Appeal Authority(Authority) in a decision dated 1 December 2015.1 The appellant appeals by way ofcase stated from that decision. The question of law for the opinion of this Court is asfollows:2Did the Authority err in law in failing to consider the appellant's rights underinternational law in accepting that the Chief Executive was correct to exercisehis discretion under s 69G of the Social Security Act 1964 to give a writtennotice to the appellant pursuant to s 69G(2) or (3) of the Social Security Act1964 and to suspend or terminate his benefit?Background[3] The appellant lived in Singapore for over 50 years before emigrating with hisfamily to New Zealand in 2000. His sons were 8 years and 10 years at that time andare now aged 24 years and 26 years respectively. Both sons were educated in NewZealand. The eldest son is no longer living in New Zealand.[4] The appellant became eligible for NZS when he turned 65. He subsequentlyapplied for, and was granted, NZS on 25 November 2014.1 [2015] NZSSAA 100.2 Labrooy v Chief Executive of the Ministry of Social Development HC Wellington, CIV-2016-485-465, Case Stated on Appeal from a determination of the Social Security Appeal Authority.[5] Shortly beforehand, on 18 November 2014, the Ministry of SocialDevelopment sent a notice to the appellant requesting that he write to the CPFB inSingapore to see if he was entitled to a pension.[6] The notice was sent pursuant to s 69G of the Social Security Act 1964 (Act).The relevant parts of that section provide:69G Reasonable steps to be taken to obtain overseas pension(1) Every applicant for a benefit under this Act or under Part 6 of theVeterans' Support Act 2014 or under the New ZealandSuperannuation and Retirement Income Act 2001 shall provide to thechief executive information establishing, to the satisfaction of thechief executive,—(a) that the applicant and the spouse or partner of the applicanthave taken all reasonable steps to obtain any overseas pensionto which either or both of them may be entitled or that may begranted to either or both of them; and(2) The chief executive may give to—(a) an applicant for a benefit under this Act or under Part 6 of theVeterans' Support Act 2014 or under the New ZealandSuperannuation and Retirement Income Act 2001; ora written notice requiring that person to take all reasonable steps,within a period specified by the chief executive, to obtain any overseaspension to which that person may be entitled or that may be grantedto that person.(4) Where a person does not comply with a notice given by the chiefexecutive under subsection (2) or subsection (3), the chief executivemay—(a) refuse to grant the benefit applied for by the applicant:(b) suspend, from such date as the chief executive determines, thebenefit granted to the beneficiary until either—(i) the beneficiary provides information establishing, tothe satisfaction of the chief executive, that thebeneficiary and the spouse or partner of thebeneficiary have taken all reasonable steps to obtainany overseas pension to which either or both of themmay be entitled or that may be granted to either orboth of them or, as the case requires, that thebeneficiary has taken all reasonable steps to obtainany overseas pension to which any dependant of thebeneficiary may be entitled or that may be granted toany dependant of the beneficiary; or(ii) the benefit is terminated under subsection (5),—whichever occurs first.[7] Section 70 of the Act provides for any foreign, publicly provided benefit of asimilar type, which the applicant for a New Zealand benefit is entitled to receive, tobe deducted from any New Zealand benefit paid.[8] In subsequent telephone conversations between the appellant and Ministryofficials, the appellant refused to write to the CPFB. The appellant stated that he wasnot entitled to a Singaporean pension; that the request was not fair; that he consideredthe request to be discriminatory and racist; and that any entitlement to a Singaporeanpension was in the nature of Kiwisaver and could not be deducted from his NZSentitlement in any respect.[9] In a letter dated 10 February 2015, the appellant stated that he could not writeto the CPFB as requested because his two sons were liable for national service underSingapore's Enlistment Act.[10] The Chief Executive determined that the appellant's concern for his childrendid not make the steps required to apply for a pension unreasonable. Due to theappellant's continued refusal to take those steps, the Chief Executive suspended theappellant's NZS on 20 July 2015 with effect from 12 August 2015. That step wastaken pursuant to s 69G(4) of the Act and subsists until such time as reasonable stepsare taken.[11] At the appellant's request the Chief Executive's decision was internallyreviewed and then further reviewed by a Benefits Review Committee. The ChiefExecutive's decision was upheld. The appellant appealed to the Authority. TheAuthority dismissed the appeal for reasons expanded on below.[12] The Authority's decision was published on the Ministry of Justice's website.The appellant's name was suppressed. An article appeared in the Singapore StraitsTimes on 15 June 2016 entitled "S'porean denied pension in NZ for not using CPFfirst". The report canvassed the Authority's decision and cited from it in a number ofrespects.[13] The appellant says that the publication of this article may have seriousimplications for him and his sons. He says the Singapore Government's supercomputer, which stores a profile of everyone in the city state, could be used to find outwho the story refers to, and further link him to his whole family. He says he is nowgearing himself for the worst.Authority decision[14] Before the Authority, the appellant argued that the Chief Executive should haveexercised his discretion not to issue a notice requiring the appellant to take allreasonable steps to obtain the overseas pension, and not to suspend his NZS when hefailed to do so.[15] The appellant did not dispute that he had taken no steps to apply for anyentitlement to a Singaporean pension. Although he initially denied having access to aSingaporean pension, it now seems clear that there are reasonable prospects of theappellant being granted a pension from the CPFB fund.3[16] The Authority set out the background to the appeal and reviewed the relevantsubsections of s 69G. The appellant argued that if he were to make an application tothe CPFB, then the Singaporean authorities would discover his whereabouts and thatof his sons. He submitted that this would have significant repercussions for his sons,who had not registered or undertaken compulsory military service in Singapore.Neither the appellant, nor his sons, had returned to Singapore since they left in 2000.[17] After recording the appellant's arguments the Authority said:4The appellant was completely unable to explain what action the Singaporeauthorities might be able to take against him or his sons if they became awareof his residence in New Zealand.The Authority nevertheless went on to consider the Singapore Enlistment Act, theConstitution, and other materials relevant to national service in Singapore. TheAuthority noted that the Singapore Enlistment Act sets out the registration3 As outlined at [31] of the Authority's decision.4 At [21].requirements for military service, and the penalties for failing to register. That Act alsoprovides that those who have been registered, or children who are over the age of 13years, must obtain an exit permit to remain outside of Singapore. The Authorityinferred from these provisions that as the appellant was over the age of 50 years, andhis sons were both under the age of 13 years at the time they came to New Zealand,they were not required to obtain "exit permits" before leaving Singapore.[18] The Authority also considered a ministerial statement on national servicedefaulters by the then Minister for Defence in Singapore from 16 January 2006. Thatministerial statement announced a tougher stand to be taken against those whodefaulted on national service obligations. Provisions of the Constitution of theRepublic of Singapore were also referred to by the Authority.[19] After reviewing these materials, the Authority concluded:[27] It is unclear how the appellant disclosing his presence in New Zealandwould impact on either himself or his sons. The appellant himself is no longersubject to the Enlistment Act. He did not produce any evidence that theSingapore Government has ever sought extradition outside Singapore for abreach of the Enlistment Act. There was no evidence from either of theappellant's sons about their position or whether they are still citizens ofSingapore. One of the appellant's sons no longer lives in New Zealand, in anyevent.[28] As a Commonwealth country, no extradition treaty is required for anapplication for extradition to be made by the Government of Singapore inrespect of someone living in New Zealand, but an application can only bemade for an extraditable offence. Such an offence must be one that constitutesan offence in New Zealand and in respect of which there is a penalty of at leastone year's imprisonment. We are unaware of any equivalent New Zealandoffence to a breach of the Singapore Enlistment Act as there is no compulsorymilitary service in New Zealand.[29] We conclude that the possibility of either of the appellant's sons beingextradited to Singapore from New Zealand as a result of a breach of theEnlistment Act, is remote.[30] We are not satisfied that there is any real danger or disadvantage toeither the appellant or his sons if the appellant's whereabouts were to becomeknown to the government of Singapore.[20] Taking into account all of those circumstances, the Authority was satisfied thatthe Chief Executive had correctly exercised his discretion to give a notice to theappellant, and to suspend the appellant's NZS. The appeal was dismissed.Approach on appeal[21] Section 12Q(1) of the Act provides that any party dissatisfied with adetermination of the Authority as being erroneous in point of law may appeal to theHigh Court by way of case stated for the opinion of the Court on a question of lawonly. The appeal right is therefore limited to the question of law stated by the Authorityand set out at [2] above.[22] The appellant argues that the Authority erred in law by failing to take intoaccount New Zealand's obligations under art 8 of the International Covenant on Civiland Political Rights (ICCPR) and certain articles of the Constitution of the Republicof Singapore. Each of these grounds is considered below.Article 8 ICCPR[23] The appellant submits that a request that he contact the CPFB amounts to abreach of art 8 of the ICCPR. That article provides:Article 81. No one shall be held in slavery; slavery and the slave-trade in all theirforms shall be prohibited.2. No one shall be held in servitude.3.(a) No one shall be required to perform forced or compulsory labour;(b) Paragraph 3 (a) shall not be held to preclude, in countries whereimprisonment with hard labour may be imposed as a punishment fora crime, the performance of hard labour in pursuance of a sentence tosuch punishment by a competent court;(c) For the purpose of this paragraph the term "forced or compulsorylabour" shall not include:(i) Any work or service, not referred to in subparagraph (b),normally required of a person who is under detention inconsequence of a lawful order of a court, or of a person duringconditional release from such detention;(ii) Any service of a military character and, in countries whereconscientious objection is recognized, any national servicerequired by law of conscientious objectors;(iii) Any service exacted in cases of emergency or calamitythreatening the life or well-being of the community;(iv) Any work or service which forms part of normal civilobligations.[24] The appellant says that the rights in art 8 are protected by s 131 of theImmigration Act 2009 and accordingly should have been taken into account by theChief Executive. He submits that the art 8(3)(c) (ii) exception only applies in countrieswhere conscientious objection is recognised and national service is required byconscientious objectors. He contends that the Enlistment Act does not recogniseconscientious objection and he cites comments made in the second reading of theMaintenance of Religious Harmony Act in support. Accordingly, he says that nationalservice in Singapore amounts to compulsory labour which is prohibited under art 8.[25] There may be circumstances where international obligations are relevant to theexercise of the discretions in s 69G. But I agree with the Chief Executive's submissionthat it is difficult to see the relevance of art 8 in this case. The appellant is not seekingprotected person status in this country. The Immigration Act 2009 does not apply.Challenges to the legality of the Singaporean national service have little bearing onwhether the appellant should be requested to write to the CPFB, and whether his NZSshould be suspended until he does so.[26] Even if it is relevant, art 8 does not have the effect that the appellant contends.Contrary to the appellant's submissions, I consider the exception to the prohibition onforced or compulsory labour applies to any service of a military character and thereforeany national service. The exception would therefore appear to cover national servicein Singapore.[27] But if I am wrong about that, and art 8 does operate as the appellant submits,there is no evidence that writing to the CPFB would result in either him or his sonsbeing extradited, conscripted, or penalised for failing to comply. The absence of anyevidence establishing that risk means there was no need for the Authority to go on andconsider whether the risk of that happening breached international obligations, and ifso whether the Chief Executive should exercise his discretion to effectively exemptthe appellant from the requirements of the Act in those circumstances.[28] I do not consider the Authority erred by failing to have regard to art 8 in thiscase.Singaporean Constitution[29] The appellant also refers to a number of articles in the Constitution of theRepublic of Singapore in support of his appeal. Article 9(1) guarantees the right tolife and the right to personal liberty. Articles 128 and 131 of the Constitution providethat a citizen may not renounce citizenship unless they have first discharged theirliability for national service.[30] As with art 8, the relevance of these provisions to the exercise of the ChiefExecutive's discretion pursuant to s 69G of the Act is far from clear. The Authorityreferred to the Constitution, and the provisions relating to the renouncement ofcitizenship in its decision.5 That disposes of any claim that it erred in law by failingto have regard to those provisions.[31] The constitutionality of the national conscription policy, and penalties imposedfor breach, are not matters to be determined by this Court, and not in the context ofthis application.[32] But, even if they were, they would not advance the appellant's case. In theabsence of evidence of any risk of either extradition or penalties imposed on either theappellant or his sons, the constitutionality of national service has no bearing ondecisions made by the Chief Executive under s 69G of the Act.[33] I am satisfied that the Authority did not err in law in this respect either.Result[34] I am not persuaded that the Authority erred in law by failing to have regard tothe appellant's rights at international law. The question of law posed by the Authoritymust be answered "No".5 At [26].[35] The Chief Executive does not seek costs and no order is made.Edwards J