FEDERAL COURT OF AUSTRALIA Zandieh-Nadem v Secretary, Department of Family & Community Services [2000] FCA 1422 Social Security – Benefits – Newly arrived residents – Two year waiting period – Exception of special benefit – Meaning of "substantial change in circumstances beyond the person's control" – arrival with funds substantially less than needed for two years – illness and disease exacerbate after arrival in Australia – Social Security Act 1991 (Cth) ss729(1) and (2), 732(1)(da), 739A(7). Social Security Act 1991 (Cth) ss 729(2), 732(1)(da), 739B, 739C, 739A(1), 739A(5), 739A(7) Migration Act 1958 (Cth) s42 Acts Interpretation Act 1901 (Cth) s48(4) Chelechkov and Department of Social Security, Re (1998) 26 AAR 321 Social Security, Department of, Secretary v Cooper (1990) 26 FCR 13 Social Security, Department of, Secretary v Secara (1998) 89 FCR 151 Spooner and Secretary, Department of Social Security. Re (1985) 3 AAR 345 Zoarder and Department of Social Security, Re (1998) 26 AAR 342 Wong v Silkfield Pty Limited (1999) 73 ALJR 1427 CDJ v VAJ (1998) 72 ALJR 1548. NAZROLLAH ZANDIEH-NADEM & ANOR v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES N633 of 2000 CONTI J 11 OCTOBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 633 OF 2000 BETWEEN: NAZROLLAH ZANDIEH-NADEM & ANOR APPLICANTS AND: SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT JUDGE: CONTI J DATE OF ORDER: 11 OCTOBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Order that the Appeal be upheld and the Decision of the Tribunal and the Decisions under review be set aside. 2. Further order that the case be remitted to the Tribunal for rehearing and determination. 3. Further order that the Respondents pay the Applicants' costs of the Appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 633 OF 2000 BETWEEN: NAZROLLAH ZANDIEH-NADEM & ANOR APPLICANTS AND: SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT JUDGE: CONTI J DATE: 11 OCTOBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal under s44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (the AAT) which affirmed a decision made by the Social Security Appeals Tribunal (the SSAT) on 1 February 2000 that a special benefit pursuant to s729 of the Social Security Act 1991 (the Act) not be paid to the Applicants. The decision of the SSAT affirmed a decision of the Respondent (the Secretary) not to pay the Applicants that benefit. Factual Background 2 The facts of this matter are set out in the Reasons For Decision of the AAT handed down on 19 May 2000. As there stated, there was little, if any, dispute about the facts presented in the Applicants' statement of facts and contentions. They are mainly a recapitulation of the narrative set out in the Reasons For Decision of the SSAT. 3 The Applicants Mr Nazrollah Zandieh-Nadem and his wife Mrs Nayerah Mahdavi-Shahandashti were born in Iran and migrated to New Zealand on 15 August 1994. Mr Zandieh-Nadem is 80 years old, and his wife is 68 years old. They have six children aged between 40 and 51 years, each of whom live in other countries. Two daughters presently live in Germany, two daughters and one son live in Canada and one son lives in the United States of America. The Applicants' children are said to be aware of their parents' predicament, but have problems of their own to which it is unnecessary to refer, other than to point to the finding of SSAT that the Applicants "have no realistic possibility of assistance from any of their children all of whom live overseas". 4 The Applicants had Iranian friends who had travelled to and settled in New Zealand. The Applicants ascertained in Iran that New Zealand was a stable country and they decided to travel there where they were accepted as refugees. They received special social security benefits in New Zealand by reason of being so accepted as refugees. They lived in Auckland and engaged with a small Farsi speaking community there. Farsi is their first language. They became dependent on friends in this community, particularly a women known as Shahim who could speak English. As it was very difficult to obtain a Farsi speaking interpreter and there were no Farsi speaking doctors in Auckland, the Applicants were greatly assisted by Shahim who interpreted for them. After about two years, Shahim indicated that she was going to leave New Zealand and live in the USA. They were unable to manage well without Shahim, and felt somewhat socially isolated. Learning English was too difficult for them. The Applicants travelled to Canada to see their children who lived there and to determine whether they ought to live there as well. Their children in Canada were also living in difficult circumstances and the weather was too cold for them in Canada. In any event, the Applicants were not permitted to remain there, and consequently they returned to New Zealand. 5 Mrs Mahdavi-Shahandashti became anxious and depressed upon the Applicants' return from Canada to New Zealand and cried a lot. Although there were other Farsi speaking people living in the Auckland district, they were busy with their own lives, or were of a different age group and were not interested in forming a closer friendship. To heighten their sense of insecurity caused by understandable factors of age, health etc., the home in which they were living was broken into in Auckland. They did not know how to contact the police when they had an intruder in their house, and had to hide and wait for the intruder to leave. 6 Mrs Mahdavi-Shahandashti was diagnosed in New Zealand as suffering from anxiety and osteoporosis. A scan of her left knee taken on 12 February 1999 disclosed as follows: "… there is severe osteoporosis of the patellofemaral joint with relative normality of the medial and lateral compartments. There is virtually no residual cartilage in the patellofemaral joint with considerable cortical irregularity and sclerosis…." 7 The Applicants' had a number of acquaintances who had relatives in Australia, and who told them that there was a larger Iranian community in Australia, and further that there was much better access to interpreters here. Under Section 42 of the Migration Act 1958 (Cth), as citizens of New Zealand and as holders of New Zealand passports, the Applicants did not require visas to enter Australia. Whilst they made no official inquiries in New Zealand, they were given to understand that people who were of employable age were entitled to social security payments in Australia after six months of taking up residence. Because they were too old to work, the Applicants believed that they would not be made subject to any such waiting period for social security payments. They made arrangements for certain of their personal belongings, including their white goods, to be shipped to Australia. They arrived in Australia on 17 September 1999 with about $400.00 in cash, which they were told would be needed to obtain a health care card. Upon their arrival, the Applicants were met by relatives of their Farsi speaking acquaintances in New Zealand and took up residence with them. They had not planned for how long they would or could stay in residence with these people. They assumed that such stay in residence would only be brief before they would obtain Australian social security benefits. On 20 September 1999 they applied for "special benefit" under the Act (see [11-14] below), stating in their claim form the following reasons for migrating to Australia: "To live in Australia rather than New Zealand as the weather in Auckland was too wet and aggravated both of our arthritis. Lived in New Zealand for 5 years and were receiving special benefit there. Language difficulty in New Zealand. Heard there were many Iranian doctors in Australia that could treat us. Brought all our belongings and furniture to Australia." 8 On 24 September 1999, the Applicants received a letter from Centrelink which rejected their claim for special benefit. An appeal to SSAT was lodged on 8 November 1999. SSAT found that it "… had no difficulty being satisfied that the couple have suffered a change in circumstances in the ordinary sense. They have experienced deteriorating health and the loss of their main social/emotional support arrangements" (paragraph 39 of SSAT Reasons for Decision). 9 There is no apparent dispute that the Applicants are presently destitute and are dependent upon newly formed acquaintances and on an Iranian charity organisation for shelter and subsistence, and upon the Australian public health system to the extent that public benefits are available to persons in their circumstances. More significantly for present purposes, the Applicants' health has deteriorated since arrival in Australia. Their food vouchers do not provide the sustenance they need in their deteriorating state of health and physical condition. Mrs Mahdavi-Shahandashti's previous condition of stress and depression has worsened since arrival in Australia due to the uncertainty surrounding the Applicants future residence and financial support, and she has experienced menstrual bleeding for the first time for 20 years which, according to her doctor, was attributable to stress. She has been on medication to assist this condition. She has also been on medication for depression (Arapax), osteoporosis (Didronel) and anxiety (Oxazepam). Mr Zandieh-Nadem's health has also been deteriorating, but to a more serious extent. On 28 February 2000 he was admitted to hospital with chest pain and dyspnoea, with a provisional diagnosis of angina. He has since been diagnosed as suffering from ischaemic heart disease and chronic airways limitation, and was hospitalised for eight days. He also has a benign large prostate. None of these conditions suffered by Mr Zandieh-Nadem appear to have been diagnosed when the couple lived in New Zealand. A radiologist's report made in Australia on 4 April 2000 reveals as follows: "… Mr Zandieh-Nadem has attended this medical centre since 13.12.99. On 13.12.99 he attended with shortness of breath and was treated for chronic bronchitis. He attended on 22.2.00 with chest pain and dyspnoea and was admitted to Hornsby Hospital with provisional diagnosis of angina. He was admitted to hospital from 22.2.00 to 28.2.00. Diagnosis: Ischaemic heart disease and chronic airway limitation (C.A.I.) … Mrs Mahdavi-Shahandashti suffers from hypertension and osteoporosis and also anxiety exacerbated by her husband's ill health." 10 The Applicants' accommodation situation would doubtless contribute to their respective stressful situations, in that they are sleeping in the lounge room of a two bedroom home where there is stored the white goods which they acquired in New Zealand. They are now in debt to the acquaintance in whose house they have been living. The family with whom they are so living have young children. The Applicants are dependent upon food vouchers, health care cards and supplementation from a charitable organisation for shortfalls in payment of medical services. They had less than $200.00 left in cash at the time evidence was given by them to the Social Security Appeals Tribunal. A comprehensive report from North Sydney Health (Hornsby Ku-ring-gai Child Adolescent and Family Team) of 29 February 2000 concluded as follows: "Australia offers this previously healthy for age couple an opportunity to maintain a social network of Farsi speaking community and professionals not available to them in NZ. They had entitlement to Australian medical services and hospitals under their present circumstances. They do not have access to a small reliable and independent income that could promote privacy, independence and peace of mind to enable them to be selfcaring members of Australian society. It seems an irony that they will be cared for in hospital, fed and clothed but not in the outside world. Mr Zandieh has been discharged from hospital [which] prescribed medications that require supervision, explanation and incur some cost. He has not previously required these. Mr Zandieh was advised of further tests but refused these, unwilling to take on further anxiety and distress. I am enclosing a statement of Mr Zandieh-Nadem's stay in hospital. I feel these circumstances are adding to their illhealth. If based on change, the granting of Special Benefit seems inevitable as these circumstances will continue to deteriorate, adding to their anxieties and distress, furthering their risk of associated illness and entitlement of health services. It seems to me that the granting of Special Benefit to this couple would not only be the proper way to act but sensible and humane." The Legislation 11 The Act changed on 4 March 1997 when the Social Security Legislation amendment (Newly Arrived Resident's Waiting Periods and Other Measures) Act 1997 (Cth) (the amending Act) came into force. The amending Act extended the time before new migrants entering Australia could become entitled to social security benefits under the Act from 26 weeks to 2 years. This particular waiting period was applied to "special benefit" under the Act as well as to other such benefits, except that "special benefit" alone can be the subject of shortening of the two year waiting period: see [15] below. "Special benefit" has been described as a payment of last resort under the Act made to people who are otherwise ineligible for a pension: see Secretary Department of Social Security v Secara (1999) 89 FCR 151 at 153. Secara was a unanimous decision of the Full Federal Court, the reasons for judgment having been written by Mansfield J and agreed with by Von Doussa and O'Loughlin JJ. "Special benefit" has also been described by the President of the AAT as designed to provide a basic level of living, at a standard something more than mere survival: Re Spooner and Secretary Department of Social Security (1985) 3 AAR 345 at 354. It is Part 2.15 of the Act which regulates "special benefits". 12 Sections 729 to 731 of the Act deal with the subject of qualification for "special benefit". Subsection 729(1) provides as follows: "A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period. Note: special benefit is a discretionary benefit and is available only to a person who is notable to get any other income support payment (see 2(a) and (b) below)." Such reference to "2(a) and (b) below" is to paragraphs of subsection 729(2) extracted in [13] below. 13 Subsection 729(2) contains a number of criteria to which the Secretary may have regard, prior to determining whether a "special benefit" ought to be granted under the Act. Those criteria material for present purposes are as follows: "729(2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if: (a) no social security pension is payable to the person during the period; and (b) no other social security benefit is payable to the person for the period, and … (e) the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason…" 14 Sections 732 to 739C of the Act deal with qualifications for and disqualifications from "special benefit". Section 732, so far as is presently relevant, provides: "(1) Even though a person might otherwise be qualified for a special benefit, the benefit may not be payable to the person because: … (da) the person is subject to a newly arrived resident's waiting period and that period has not ended (see section 739A)…." 15 The Applicants are subject to the newly arrived resident's waiting period under the abovementioned section 739A of the Act, unless the Secretary is of the opinion that they have "suffered a substantial change in circumstances beyond their control". Section 739A relevantly provides as follows: "739A(1) Subject to this section, a person who, on or after the commencement of this subsection: (a) enters Australia; or (b) is subject to a newly arrived resident's waiting period. … 739A(5) If: (a) a person is subject to a newly arrived resident's waiting period; and (b) neither subsection (3) nor (4) apply to the person; the waiting period starts on the day on which the person: (c) first entered Australia; or … whichever occurs last, and ends on the day after the person has been in Australia for a period of, or periods totalling, 104 weeks after that day. … 739A(7) Neither subsection (1) nor (2) apply to a person if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control." It is subsection 739A(7) which mainly falls for consideration on this Appeal. 16 Section 739B requires that the relevant Department Secretary must exercise the powers under subsection 739A(7) in accordance with Ministerial guidelines from time to time in force under subsection 739C(1). Whilst the Minister gazetted guidelines on 21 March 1997 under Section 739C, those guidelines were disallowed by the Senate pursuant to Subsection 48(4) of the Acts Interpretation Act 1901 (Cth). For a summary of how that occurred, see Secara at 155-6. No Ministerial guidelines have been in force of relevance to the present appeal. The Minister's Second Reading Speech however contained the following: "A newly arrived resident's waiting period will apply to the following payments: … · special benefit except for those situations where a migrant's circumstances have changed significantly following their arrival in Australia, and for reasons beyond their control. … In addition, a newly arrived resident's waiting period will also be imposed for the seniors health card, health care cards under the disadvantaged persons scheme and for the payment of more than the minimum standard family payment rate. … Mr Speaker, the changes to the newly arrived resident's waiting periods in this Bill are modest and reasonable and will ensure that taxpayers only pay for those in need." The AAT's Reasoning and Conclusions 17 The process of reasoning of the AAT below commenced by citation from the first sentence of the following passage in that part of the judgment of Mansfield J in Secara at 159 which appears at the commencement of his Honour's examination of the legislation: "There is no word or words in s739A(7) which either expressly or by inference limit the time at which the change in circumstance may occur." In so observing, as pointed out by the AAT, his Honour agreed with what Matthews J said as to the same theme in Re Chelechkov and Department of Social Security (1998) 26 AAR 321 at 329 as follows: "Each case needs to be determined according to its own facts. It will no doubt be unusual for a change in circumstances which occurs before a migrant leaves his or her country of origin to fall within subs (7). This is because subs (7) will only apply to changes which are directly responsible for the migrant's state of poverty in Australia. The present Appeal no longer pursues any issue concerning the provision of incorrect information to the Applicants' prior to their arrival in Australia. The sole issue arising on appeal concerns changes to the health and physical well-being of the Applicants since their arrival in Australia, and whether such changes are capable of attracting the notion of substantial change in circumstances within subsection 739A(7); see the sole ground of appeal extracted in [21] below. 18 The circumstances in Secara were that newly arrived residents had been granted permanent residence about five months before the legislative amendments which I have extracted in [15] took effect, and they arrived in Australia two months after the same had taken effect. The first issue which arose concerned the point in time when the event giving rise to the statutory concept of "change in circumstances" occurred, that is to say, whether before or after arrival in Australia (as to which see again the dicta extracted from Secara in [17] above), the Court holding that the former time could apply to an occasion of irrevocable commitment to immigration to Australia. Being previously unaware of the recently introduced two year waiting period, such newly arrived residents in Secara had insufficient financial resources upon arrival in Australia because of their misconceived expectation of a waiting period of only 26 days before crystallisation of entitlement to social security benefits. The Court found that although as a matter of practical common sense, the ascertainment by the newly arrived residents of the changes to the waiting period in Australia, that is to say the recently enacted postponement for two years, was "beyond their control" within subsection 739A(7), nevertheless such change in their expectations as to the continuation in operation of the previous lesser period for eligibility to receive the special benefit was not a "change of circumstances" within subsection 739A(7). In short, absence of knowledge of a newly arrived resident of the statutory lengthening of the period of qualification for "special benefit" did not fall within the concept of substantial change in circumstances of such person, the same being merely an erroneous belief as to the law. A not dissimilar position was adopted unsuccessfully by the present Applicants before the AAT, in that they sought to rely on their receipt of incorrect information in New Zealand as to the period of time for social security qualification as providing a relevant change in circumstances (see paragraphs 10 and 14 of the AAT's Reasons for Decision which I have not extracted). Such basis for qualification was not pursued on appeal to this Court, and hence it becomes unnecessary to elaborate upon the AAT's citation from its earlier decision in Re Zoarder and Department of Social Security (1998) 26 AAR 342, and in particular the dictum extracted therefrom in [20] below. However no deterioration in physical and/or emotional condition of the newly arrived residents subsequent to migration was involved as an issue in Secara. The sole ground of the present appeal to this Court (see [21] below) constitutes the distinguishing basis for this present Appeal from the circumstances in Secara. 19 The AAT has cited in paragraph 11 of its Reasons for Decision below the following passages from the judgment of Mansfield J in Secara appearing at pages 163 and 164 respectively concerning the operation of subsection 739A(7): Page 163 C-D "It [ie subsection 739A(7)] presupposes a newly arrived person in Australia is in sufficiently needy circumstances as to otherwise qualify, in the case of other Australian residents, for some form of benefit under the SS Act. It then contemplates that something will have happened to that person which, in a practical and realistic sense, that person could do nothing about. It indicates that that which has happened to that person is of sufficient significance to no longer impose upon that person the newly arrived resident's waiting period. Thus, the change in circumstances cannot be the need itself for the benefit under the SS Act, as the possible existence of that need underlies the legislative policy that, for two years, it should not be met by benefits payable under the SS Act. In my judgment, the change in circumstances must be some event or events, not necessarily "external" to the person, which creates that need where it did not previously exist or if it did previously exist where it is no longer appropriate to respond to that need by application of the newly arrived resident's waiting period." … Page 164 C-D "Circumstances may change to make that prospect [ie of something happening in the future] no longer a real one. I have referred above to a range of possible arrangements or "expectations" regarding employment once in Australia. Considerations of health may provide a further example: a person may migrate to Australia expecting to remain in good health, and perhaps having that expectation despite some underlying vulnerability. An illness, or a relapse, may occur beyond that person's control which no longer enables that person to be self-sufficient." The AAT has in such first citation emphasised in bold print the words "… the change in circumstances cannot be the need itself for the benefit under the SS Act, as the possible existence of that need underlies the legislate policy that, for two years, it should not be met by benefits payable under the SS Act". And in such second citation, the AAT has similarly emphasised the words "An illness, or a relapse, may occur beyond that person's control which no longer enables that person to be self-sufficient". 20 It is to be borne in mind that the foregoing passages from Secara were extracted in the AAT's Reasons for Decision in the context of the AAT addressing the twofold basis upon which review was then being sought by the Applicants from the AAT, the first being the unavailability of the social security benefits which they believed would be their entitlement in Australia, and the second being the deterioration in the health and physical well-being of each of them that had occurred since their arrival in Australia and their ascertainment from Australian medical practitioners of the reasons for such deterioration. Such first basis was not pursued on this appeal, and as I have earlier indicated, the AAT's Reasons for Decision below need to be read on that basis, but the second basis is maintained on appeal, and in relation to such second basis, the AAT found (inter alia) as follows: "12 [The Applicants] are now both ill, Mrs Mahdavi-Shahandashti's illness being diagnosed before leaving New Zealand. Mr Zandieh-Nadem has now been diagnosed as suffering from angina, apparently not diagnosed until he arrived in Australia. It is a circumstance which is beyond his control. However, although involving them in increased expenditure to purchase medication and obtain medical treatment, those factors have no impact on the Applicants ability to be self-sufficient. They were never going to be self-sufficient unless they were immediately paid special benefit on arrival in Australia. … 16. In Re Zoarder the applicant became obsessively anxious about his financial situation having arrived in Australia with what he thought was a substantial amount of money but which turned out not to be so. He failed to obtain employment. The Tribunal found that Mr Zoarder's anxiety state, which then impeded his prospects of employment, was a substantial change in his circumstances beyond his control. Ms Koller (the Applicants' legal representative before the AAT) put to the Tribunal that the decision in Re Zoarder had not been disapproved in Secara's case. However any change in the [Applicants'] health due to their anxiety in not being paid special benefit under the Act has not affected their ability to be self-sufficient. (The reference to Re Zoarder is of course to the AAT decision identified in [18] above; I would not read the above reference to "… anxiety in not being paid special benefit under the Act" as attributing to such absence of payment the sole or even the main cause of the Applicants' anxiety: for other or additional reasons for such anxiety, I would refer to what appears within paragraph 9 concerning each Applicant; and I would also refer to what appears in paragraph 27 of the SSAT Reasons for Decision). … 19. The Tribunal finds that any deterioration in the Applicants' health since coming to Australia has not impacted on their means of support. Certainly their circumstances in New Zealand changed when their friend left but they were aware of this change before being irrevocably committed to coming to Australia. It was not a change in circumstances falling within subsection 739A(7). It was after the Applicants became aware that their friend was leaving to live in the USA that they went to Canada to see if they could live there and get support through their family. They did not have permission to stay in Canada. Mrs Mahdavi-Shahandashti said that they would not have come to Australia if they had known that they would have to wait for financial support here, but she will not return to New Zealand. What has happened to the Applicants is not of sufficient significance to no longer impose upon them the newly arrived resident's waiting period. If the legislature had wanted to provide a discretion to a decision-maker so that special benefit could be paid to people in the very distressing circumstances the Applicants find themselves in, the relevant legislation would have so provided. What is to happen to the Applicants the Tribunal does not know. They did not have an erroneous belief as to life here, but rather, an erroneous belief as to the law." (The reference to the law is of course to subsections 739A(1) and (2) extracted in [15] above). Issue Arising On Appeal 21 The sole ground of appeal to the Court was framed as follows: "Whether it is a requirement of s739A(7) of the Social Security Act 1991 (Cth) that a 'substantial change in circumstances' have an 'impact on' or 'affect' a claimant's 'ability to be self-sufficient', or [have an "impact on" or "effect"] his or her 'means of support'." The Applicants contend that the context and purpose of subsection 739A(7) do not permit the critical statutory expression "substantial change in circumstances" to be confined to circumstances having a financial character or effect, or having an economic consequence. Such notions of "financial character or effect" and 'having an economic consequence" reflect the substance of the disqualifying themes appearing in paragraphs 12, 16 and 19 of AAT's Reasons for Decision (extracted in full at [20] above), and in particular in those sentences reproduced therefrom below: "They were never going to be self-sufficient unless they were immediately paid special benefit on arrival in Australia." … "However any change in the [Applicants'] health due to their anxiety in not being paid special benefit under the Act has not affected their ability to be self-sufficient." … "The Tribunal finds that any deterioration in the Applicants' health since coming to Australia has not impacted on their means of support… It was not a change in circumstances falling within subsection 739A(7)… If the Legislature had wanted to provide a discretion to a decision-maker so that special benefits could be paid to people in the very distressing circumstances the Applicants find themselves in, the relevant legislation would have so provided." In postulating these propositions, the AAT has adopted the approach to statutory interpretation of the SSAT. 22 Both parties seek support from the passages in the judgment of Mansfield J in Secara which are extracted in full in this Judgment (see [19] above and [27] below). The foundation for relief claimed in Secara was one of change of circumstances not involving deterioration in health, but involving instead non-availability of sufficient funds for the litigants to support themselves in Australia beyond their anticipated wait of only 26 days, such litigants not having found out about the newly introduced two year waiting period prescribed by Section 739A until after their arrival in Australia. The foundation claimed for relief in Zoarder (as to which see again [18] and [20] above)was twofold, namely a rapid and unanticipated depletion of his funds upon the new resident's arrival in Australia, and a consequential severe anxiety state which detrimentally affected his language and communication skills in Australia, and thus his employment opportunities in Australia. The foundation for relief in Chelechkov (see again [17] above) was an unanticipated increase in airfares after the newly arrived residents had committed themselves to migration to Australia, being an increase having the consequence that such surplus funds they possessed by the time of arrival would inevitably run out. The newly arrived residents failed in Secara but succeeded in Zoarder and Chelechkov. None of those three authorities directly involved the issue the subject of this present appeal referred to in [21] above. 23 In the present case the AAT has not attributed any subsection 739A(7) significance to the deterioration in health, both in terms of physical and emotional well-being, that has occurred to each of the Applicants since their arrival in Australia. Having regard to the additional basis upon which the case for the Applicants in the present litigation was presented to the AAT below, namely the receipt of incorrect advice upon social security entitlements before their arrival in Australia, the AAT understandably identified a degree of analogy to that disqualifying circumstance of erroneous belief in Secara as to social security entitlement formed in advance of migration. In any event, the AAT assigned no significance below to the deterioration in the general health of the Applicants as a discrete basis for qualification to "special benefit", notwithstanding that the AAT recognised such deterioration as "… involving them in increased expenditure to purchase medication and other medical treatment" (paragraph 19 of the AAT's Reasons for Decision extracted in [20] above). 24 The thrust of the AAT approach to the circumstances of the Applicants after their arrival in Australia, as appears from paragraphs 12, 16 and 19 of the AAT's Reasons for Decision extracted in [20] above, and in particular those individual sentences forming part thereof [21] above, is that the Applicants can never suffer "a substantial change in circumstances" within the statutory two year period, because they have never been self-sufficient since arrival in Australia, and never will be in the future, unless and until they receive the special benefit to enable them to be so, and that the Applicants' deterioration in health since arrival has not impacted, and can never impact, upon any present or future self-sufficiency (as the case may be) because they can never achieve such status. It is this approach of the AAT which the Applicants have described on appeal as an attempt to confine the statutory concept of substantial change in circumstances to those having an economic consequence or consequences. Thus the Secretary has contended at the hearing of the appeal that a substantial change in circumstances cannot be constituted by persons such as the Applicants with no present self-sufficiency or means of support, and no prospects of ever gaining the same otherwise than by obtaining the special benefit in the first place without first travelling the path of subsection 739A(7). Consequently the AAT has observed below that "If the legislature had wanted to provide a discretion to a decision-maker so that special benefit could be paid to people in the very distressing circumstances the Applicants find themselves in, the relevant legislation would have so provided". If that be right, the enigmatic consequence is that persons in such very distressing circumstances as the Applicants are forever disqualified for all practical purposes, but able-bodied younger persons such as in Zoarder and Chelechkov can (and did) duly qualify. 25 It would be surprising if the Legislature had contemplated the result indicated in [24] above. As has been cited in authorities to which I have already referred (for example in Secara at 158), the Full Federal Court in Department of Social Security v Cooper (1990) 26 FCR 13 at 18 (Morling, Burchett and Lee JJ) has emphasised, albeit by reference to the Social Security Act 1974 (Cth), that"[the Act] should be construed generously so that the palliation it offers any rigidity …may be fruitful in favour of the disadvantaged persons with whose claims it is concerned…". There is no reason in principle why the same observation should not be true of the subject 1991 legislation. The AAT has posited that any "substantial change in circumstances" must reflect adversely on an ability otherwise to be self-sufficient (see [21] above). The legislation does not however purport to define or describe the nature of the "change in circumstances" other than it must be "substantial". Nor did the Second Reading Speech of the Minister [16], which in terms of expression tends against the AAT view which the Secretary presently seeks to uphold. Realities of experience in life dictate that there is a substantial difference on the one hand between dependency of aged persons upon others such as friends or relatives or charitable organisations for free accommodation and sustenance, where such aged persons nevertheless enjoy tolerable health, and on the other hand where physical and emotional health of aged persons in such situations is materially deteriorating and is likely to continue to do so. In the kind of circumstances just postulated, ordinary human experience and perception dictates that aged persons in such circumstances of constrained dependency undergo the trauma of loss of dignity, helplessness and despair. They would be further susceptible to the emotional strain of guilt and humiliation arising out of the knowledge that they could not reciprocate in favour of those willing enough to care for and support them in their conditions of ever increasing dependency for upon medical, hospital, home nursing and treatment and the provision of pharmaceutical supplies (to the extent that the cost thereof exceeds that which Governments are able to provide). It is in this context that the AAT has conceded in paragraph 19 of its Reasons for Decision (extracted within [20] above) that "What is to happen to [the applicants] the Tribunal does not know". 26 As the AAT observed, and as I have already mentioned, there is no significant dispute as to the circumstances of the Applicants, when viewed at times both before and after migration occurred. It may be deduced that the Applicants were dependent upon assistance from friends in New Zealand and did not enjoy good health in New Zealand, and that they were subjected there to the kind of emotional and physical disadvantages that can often attend elderly people. But the Applicants raise for consideration not just the continuing deterioration but also the exacerbation of their respective states of health and physical and emotional conditions since arrival in Australia, and in particular what has been revealed concerning the physical disabilities of Mr Zandieh-Nadem [9]. The AAT has correctly identified "… the very distressing circumstances the Applicants find themselves in", and has demonstrated a measure of dilemma on its own part in concluding "What is to happen to [the Applicants] the Tribunal does not know". Such concluding remarks invite a closer search for a generous construction of Section 739A, to adopt the Court's approach in Cooper (see [25] above). 27 I would therefore return to Secara to explore for further assistance, bearing in mind of course that the issue of statutory interpretation raised by the Applicants on appeal was not the same as that involved in Secara or any of the other authorities which I have earlier identified. Extracted from Mansfield J's judgment at 163 is the following dictum which immediately follows that firstly extracted in [19] above: 'There are some circumstances where it is easy to discern its appropriate operation, such as unexpected severe illness, serious accident, or loss of employment. It is clear that in such circumstances the legislative policy is to permit the affected person to pursue benefits under the SS Act before the newly arrived resident's waiting period has expired. Those circumstances will reflect that it is no longer appropriate to oblige the newly arrived person to provide self support for two years. The two elements which the events or matters constituting the changed circumstances must satisfy are first that the events or matters must be 'substantial', that is be of sufficient moment as to warrant that the primary self-support obligation imposed for a period of two years should not be insisted upon, and secondly that the events or matters be beyond the person's control." To the foregoing extract I would set out below certain concluding dictum at 164G to 165A as follows: "In my judgment, learning that a belief as to the law was wrong is not a 'change in circumstances' within the meaning of s739A(7). For the reasons referred to above, I consider the circumstances to which s739A(7) is directed are facts, matters and events going to an intending migrant's capacity to be self-sufficient, in the sense of not being entitled to receive certain benefits under the SS Act for a period of two years following arrival in Australia and to the reasons why that person no longer enjoys that capacity or should be relieved of the disentitling effect of those provisions. I do not think there is within 739A(7) the seed of power to relieve a newly arrived migrant from the disentitling effect because that person did not know of its terms." 28 In neither of the above passages extracted from the judgment in Secara can there be distilled support for the proposition, espoused in the subject proceedings first by the SSAT and subsequently by the AAT, to the effect that there can be no "substantial change in circumstances beyond the person's control" in situations (such as here), where it may be concluded that the newly arrived resident can have no capacity to be self-sufficient or self-supporting in the absence of receipt of the special benefit within the two year waiting period. That proposition is not to be derived from the passages in Secara extracted in [19] and [27] above. TheFull Federal Court was addressing in Secara the circumstance of newly arrived residents' mistaken understanding of applicable Australian law, and those persons' "need" arising from their migration to Australia without sufficient funds for their financial support, caused by their mistake as to the period of time during which they might have had to support themselves. Whilst the same mistake also attended the Applicants here upon their arrival in Australia, there was also present the additional and discrete situation of what the AAT described as "… the very distressing circumstances [in which the Applicants] find themselves." Such circumstances are not disqualified from attracting a favourable application of subsection 739A(7) because of the concurrent existence of their mistake in law, that is to say, their erroneous belief as to qualification for social security benefits shortly after arrival from New Zealand. The latter factor constituted a potentially independent basis for review which was nevertheless misconceived in law, as Secara makes clear, and has been correctly discarded by the Applicants from the present appeal to the Court. 29 The approach to construction of subsection 739A(7) adopted by the SSAT and AAT, which is still pursued on this appeal, to the effect that the same has no application to the circumstance of newly arrived residents who were "…never going to be self-sufficient, unless they were immediately paid special benefit on arrival in Australia", depends upon an interpretation of such subsection to the effect that such disqualifying circumstance must prevail throughout the ensuing period of two years, irrespective of what changes to that person's circumstances may subsequently occur during that ensuing period, such as the onset of serious illness or serious aggravation of existing illness or accidental injury. The plain or ordinary meaning of the words used in the subsection do not express any such operation thereof, and I do not think that the same should be implied, particularly in the light of the approach to construction referred to in [25] above. Section 739A(7) is not confined by matters not required by its terms or context: Wong v Silkfield Pty Limited (1999) 73 ALJR 1427 at 1429; CDJ v VAJ (1998) 72 ALJR 1548 at 1556, 1565. When Mansfield J used the expression in Secara at 163C-D "Thus, the change in circumstances cannot be the need itself for the benefit under the Act", he did so in the context of what preceded that dictum as set out in [19] above to the effect that something would have "…happened to that person…of sufficient significance to no longer impose upon that person the newly arrived resident's waiting period…" (my emphasis). Similarly in the passage at 164G-A extracted at [27] above, I would emphasise His Honour's qualifying words "… or should be relieved of the disentitling effect of those provisions". 30 I have therefore concluded that the AAT (and SSAT) erred in their interpretation of subsection 739A(7) to the extent of the operation thereof on the sole basis pursued on appeal, namely the deterioration in the bodily and emotional health of the Applicants since arrival in Australia. I therefore propose to remit the proceedings the subject of this Appeal to the AAT for determination of the Applicants' entitlement to special benefit. It will be a matter for the AAT and the parties as to whether the evidence of the Applicants should be updated with a view to ascertaining whatever improvement or deterioration in the relevant physical and emotional conditions of each Applicant may have occurred since the hearing before the AAT. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 11 October 2000 Counsel for the Applicant: Mr M.B. Smith Solicitor for the Applicant: Welfare Rights Centre Counsel for the Respondent: Ms R.M. Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 September 2000 Date of Judgment: 11 October 2000