Dept of Family & Community Services v Huynh [2002] FCA 112

FEDERAL COURT OF AUSTRALIA

Dept of Family & Community Services v Huynh [2002] FCA 112 Department of Family & Community SERVICES v SUU VAN HUYNH

N 1393 OF 2001 EMMETT J 19 FEBRUARY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1393 OF 2001

BETWEEN: DEPARTMENT OF FAMILY & COMMUNITY SERVICES

APPLICANT

AND: SUU VAN HUYNH

RESPONDENT

JUDGE: EMMETT

DATE OF ORDER: 19 FEBRUARY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. the decision of the Administrative Appeals Tribunal of 6 September 2001 be set aside; 2. the matter be remitted to the Tribunal to be determined according to law;

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 1393 OF 2001

BETWEEN: DEPARTMENT OF FAMILY & COMMUNITY SERVICES

APPLICANT

AND: SUU VAN HUYNH

RESPONDENT

JUDGE: EMMETT

DATE: 6 FEBRUARY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") constituted by Dr J D Campbell given on 6 September 2001. The respondent to this appeal, Mr Suu Van Huynh, sought a review of a decision of the Social and Security Appeals Tribunal made on 9 November 2000. That decision affirmed a decision made by a Centrelink delegate of the appellant, the Secretary of the Department of Family and Community Services ("the Secretary") on 25 July 2000. 2 By that decision the delegate rejected Mr Huynh's claim for a "special benefit". That decision was affirmed by an authorised review officer on 28 September 2000. The Tribunal determined that the decision under review be set aside and, in substitution thereof, determined that Mr Huynh was entitled to payment of a special benefit from the date of its decision. 3 The appeal to this Court is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision the relevant ground of appeal is that the decision involved an error of law. The question raised by the amended notice of appeal is whether the Tribunal erred in law by finding that there had been a substantial deterioration in Mr Huynh's health since his arrival in Australia when there was no evidence or other material before the Tribunal to support that finding. 4 The Tribunal found that Mr Huynh was born on 15 June 1928 in Vinh Long, Vietnam and that his experiences earlier in life resulted in particular personal trauma. After a period of some six years in a refugee camp in Thailand, Mr Huynh arrived in New Zealand in 1996. In 1999 he was granted New Zealand citizenship. During his period in New Zealand Mr Huynh received social security benefits and after one year of varying accommodation he secured permanent accommodation in a veteran's hostel. However, Mr Huynh found the cold in New Zealand difficult to bear and, after the death of his two neighbours in the hostel, he was the only Asian person in the hostel. Mr Huynh therefore borrowed money and flew to Australia, arriving on 25 March 2000 with $100. 5 The Tribunal found that Mr Huynh made the decision to come to Australia to escape his circumstances in New Zealand. He did not seek to inquire as to the continuity of social security payments, believing that they would continue. However, he was informed by Centrelink on 4 April 2000 that there would be a two-year waiting period before payment of special benefit begin. 6 He then met with and received advice from Sister Margaret Moore, who is National Coordinator of the Mercy Refugee Service. Sister Margaret Moore provided Mr Huynh with a cash advance and Father Chee arranged for temporary accommodation. Mr Huynh was advised to return to New Zealand if the special benefit is not available. The owner resumed the accommodation arranged for Mr Huynh within a few weeks and, as a result, he has been moving through a variety of accommodation. Mr Huynh lodged claims for special benefit on 5 June 2000 and 12 July 2000. 7 Since his arrival in Australia Mr Huynh has sought to undertake some gardening activities for a Mr Doh and others arranged by Mr Doh. On account of his age, general appearance and circumstances, little work has been offered to him. However, the Tribunal found that Mr Huynh was reasonably well nourished. His main medical disabilities are episodic chest pain which is made worse by climbing stairs. Audiometry and visual acuity testing revealed significant defects in both hearing and vision. 8 Mr Huynh's entitlement to special benefit turns upon the operation of s 739A of the Social Security Act which provides relevantly as follows: "(1) A person who: (a) enters Australia…… is subject to a newly arrived resident's waiting period. (5) The waiting period starts on the day on which the person first enters Australia… and ends on the day after the person has been in Australia for a period of, or periods totalling, 104 weeks after that day". 9 Thus the effect of those provisions is that Mr Huynh was subject to a two-year waiting period before he was entitled to receive the special benefit. However, s 739A(7) provides that those provisions do not apply to a person "if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control". 10 The Tribunal found that Mr Huynh was subject to the waiting period of 104 weeks, commencing on 23 March 2000. The question for the Tribunal was whether Mr Huynh had suffered a substantial change in circumstances beyond his control within the meaning of s 739A(7). The Tribunal concluded that there had not been a substantial change in Mr Huynh's nutritional status, his accommodation status, his financial situation or his apparent general ability to work. In reaching that conclusion the Tribunal said that it had considered Mr Huynh's evidence and his apparent status in each of those circumstances at the time of his arrival in Australia. 11 The Tribunal then considered Mr Huynh's health status. It observed that he is now seventy-three years old and that there is evidence that he has significant health conditions and disabilities. The Tribunal found that Mr Huynh's loss of hearing is a significant disability and considered that his poor visual acuity was also a significant disability. The Tribunal found that, together, those two disabilities were very significant disabilities in an elderly person who is prone to wander in search of food and accommodation. 12 The Tribunal also noted the presence of episodic chest pain made worse by climbing stairs. The Tribunal concluded that, in practical terms, exertion by Mr Huynh should be avoided until the cause of chest pain is clarified. That limits Mr Huynh's ability to engage in any form of moderate manual work. 13 This appeal turns on the conclusion of the Tribunal concerning Mr Huynh's health, which is expressed in the following paragraphs: "38. In the absence of any medical information other than that of the applicant at the time of his arrival, the Tribunal notes the applicant's evidence as to his health complaints when in New Zealand and at the time of his arrival in Australia, his evidence as to his poor eyesight and hearing and throat constriction at the time of the hearing and the medical assessment by Dr Jones. In considering this evidence the Tribunal concludes that there has been a substantial change in the applicant's health status since his arrival in Australia and that this now affects any work capacity that the applicant may have previously enjoyed. 39. Further, the Tribunal finds that such changes in the applicant's health circumstances (the level of both his hearing and vision difficulties being significant both alone and in combination) are of such a nature as to create significant hazards for an individual carrying on an every day existence. More so the Tribunal finds the applicant's deterioration in his physical health since his arrival are of such a nature that they can be judged as a substantial change in circumstances beyond the applicant's control." The Tribunal concluded that Mr Huynh qualified for special benefit. 14 The Secretary contends that it was incumbent upon the Tribunal, in applying s 739A(7) in the circumstances of this case, for the Tribunal to identify a relevant change in Mr Huynh's health and determine the time at which it occurred, being a time that postdated his arrival in Australia. The Tribunal purported to find that such a change had occurred after his arrival in Australia but the Secretary contended that the material before the Tribunal did not permit such a conclusion. 15 There is not, as I apprehend it, any dispute between the parties as to the principles to be applied in considering the question raised in this appeal. Entitlement to the special benefit depends upon the formation of an opinion by the Secretary, or other decision-maker standing in the applicant's place, as to whether a substantial change in the circumstances of the person applying for the relevant benefit has occurred. In reaching such an opinion, a decision-maker must not act dishonestly, capriciously or arbitrarily. It is sufficient if the decision-maker acts upon circumstances which give a rational ground for the opinion reached – see, for example, The Commissioner of Taxation of the Commonwealth of Australia v Brian Hatch Timber Company Sales Pty Ltd (1972) 128 CLR 28 at 57. An opinion must be honestly held and not reached capriciously or arbitrarily and must not be irrational. An alternative way of expressing the principle is whether the opinion reached was open at law on the material before the Tribunal. If it was not, then the decision must be treated as bad in accordance with the foregoing principles. 16 Rider A The Tribunal had before it evidence comprising reports from Sister Margaret Moore, a medical report of Dr R P Jones, a medical adviser with Health Services Australia, of an examination of Mr Huynh on 3 April 2001, and oral evidence given by Mr Huynh through an interpreter. However, the Tribunal did not refer to any specific evidence as to the time at which any change in the health status of Mr Huynh might have occurred. 17 By chance, Sister Moore had met Mr Huynh in a refugee camp in Thailand in 1993 and 1994. She met him unexpectedly again in Australia when he appeared to her to be "very distressed, helpless, emotional and even disoriented", as she said in her report of 28 February 2001. She observed in that report that Mr Huynh's psychological health "is being affected" and that in conversation he showed little ability to make decisions. 18 In a further report of 21 May 2001, Sister Moore referred to a number of later occasions when she had visited Mr Huynh. On one occasion on 11 April 2001 she found him to be quite confused about where to live and how he would manage to survive with no material resources available to meet his daily needs. She reported that he looked like a man in great need of personal care and of social support. She reported that a young Vietnamese couple, with whom he was living, had asked that, as a matter of urgency, he be given access to Medicare. Sister Moore said that this was a matter of urgency since "he was an old man and his health is, of course, deteriorating as he ages and his resistance to infection naturally weakened". 19 The report of Dr Jones describes Mr Huynh's condition under the following headings: · chest condition, · weight, · appearance and nutrition, · joints and musculoskeletal, · possible dysphasia, · headaches, · hearing loss, · other conditions (which described his visual acuity).