Secretary, Department of Family & Community Services v Michael [2001] FCA 1811

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Family & Community Services v Michael [2001] FCA 1811 SOCIAL SECURITY – invalid pension – residential qualification – whether respondent entitled to receive disability support pension – when applicant first had a continuing inability to work – whether the respondent satisfied subpar 94(1)(e)(i) of the Social Security Act 1991 (Cth)

WORDS & PHRASES – Continuing inability to work Social Security Act 1991 (Cth), ss 94(1), 94(2), 94(5)

Social Security (Administration Act) 1999 (Cth), s 37, s 29(1)

Secretary, Department of Social Security v Raizenberg (1993) 47 FCR 531, considered SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES v SAMIR MICHAEL Q 161 of 2001 DRUMMOND, KIEFEL and DOWSETT JJ 18 DECEMBER 2001 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 161 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

APPLICANT

AND: SAMIR MICHAEL

RESPONDENT

JUDGES: DRUMMOND, KIEFEL AND DOWSETT JJ

DATE OF ORDER: 18 DECEMBER 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The matter be remitted to the Administrative Appeals Tribunal for further consideration. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 161 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

APPLICANT

AND: SAMIR MICHAEL

RESPONDENT

JUDGES: DRUMMOND, KIEFEL AND DOWSETT JJ

DATE: 18 DECEMBER 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT

DRUMMOND J: 1 I have had the benefit of reading the reasons in draft of Dowsett J. 2 Section 94(1) the Social Security Act 1991 (Cth) declares that an applicant for a disability support pension must satisfy the five criteria there set out to be qualified for the grant of that pension. Under s 37 Social Security (Administration) Act 1999 (Cth) (formerly s 114 Social Security Act), the Secretary can only determine to grant the pension if he is satisfied that the applicant then, ie, at the date of determination of the pension claim, meets those criteria. Having determined that an applicant has an impairment which satisfies each of the criteria in s 94(1)(a) and (b) at that date, the Secretary will next have to determine whether the applicant satisfies the criterion in s 94(1)(c)(i), as defined in s 94(2), ie, to determine whether, at the date of deciding the pension claim, that particular impairment is sufficient of itself to prevent the applicant from doing any work, as defined in s 94(5), within the next two years, ie, the two years following the date of the decision. If the Secretary accepts that the applicant satisfies this third criterion, the next matter for determination is whether the applicant satisfies s 94(1)(d) at that same date of decision, ie, whether the applicant has turned 16 by then. 3 If the applicant satisfies all four of these criteria, the Secretary must finally determine whether the applicant satisfies the criterion in s 94(1)(e)(i). If s 94(1)(e)(i) is read literally, a pension applicant who satisfies s 94(1)(c)(i) will automatically satisfy this final criterion: the only date at which a pension applicant must satisfy s 94(1)(c)(i) is the date on which the decision on the claim is made. But a person must be an Australian resident on that date since only an Australian resident can lodge a valid claim for a disability support pension: s 29(1) the Social Security (Administration) Act (formerly s 110 Social Security Act). It would follow that a person who satisfies s 94(1)(c)(i) necessarily also satisfies the criterion in s 94(1)(e)(i) (if the theoretical possibility is ignored that a person may lodge a claim while resident here but may cease to be so resident at the date of determination of the claim). 4 The literal reading of the provision gives it no work to do. It is plain that par (e) of the sub-section was intended by Parliament to ensure that a non-Australian resident who enters Australia with an impairment that is sufficient to satisfy s 94(1)(c)(i) will not be entitled to a disability support pension until the person has resided in Australia for the substantial period of time sufficient to amount to "10 years qualifying Australian residence" within s 94(1)(e)(ii) (unless the person, though a non-Australian resident at the time, contracted that impairment while the dependent child of an Australian resident parent and subsequently entered Australia while still so dependent: see s 94(1)(e)(iii)). 5 Section 94(1)(e)(i) should therefore be read as requiring the pension applicant to be an Australian resident when the person first suffers the particular impairment which is found, as at the date of determination of the pension claim, to be sufficient to prevent the person from doing any work within the two years immediately following that date. 6 Subject to the foregoing, I agree with Dowsett J's reasons for allowing the appeal and with the order he proposes. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.