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). 20 However, the report, was concerned only with the condition of Mr Huynh as of the date on which Dr Jones' examination took place. 21 When asked in chief what he did all day in New Zealand, Mr Huynh said, "It was really cold, I could not do much, but I tried to grow flowers and vegetables and cutting grass". When asked whether anybody helped him with that garden, he replied, "No, I just was working in the complex of my own unit". 22 The following exchange also occurred: Tribunal Member: "When you went to the doctor and hospitals in New Zealand, what health conditions were you going to see them about?" Mr Huynh (via an interpreter): "I was requested to attend very often medical exams. I don't know exactly for what, but I was never hospitalised, I was only given prescriptions to take home". Tribunal Member: "About how often were they asking you to go to the doctor?" Mr Huynh: "In the beginning, after I finished the course, I was asked to go there four times a month and then gradually for the last two years it's less often." Tribunal Member: "Before you left, how often did you have to go?" Mr Huynh: "After I was given that unit to live, if I had to attend the exam I had to pay him because I didn't have money I didn't go often" Tribunal Member: "Do you know anything about what health conditions you might have?" Mr Huynh : "I know what, because since I was not sure I had a lot of scar and I think I must have some problem inside and it always required surgery but I didn't have surgery". Tribunal Member: "You mentioned to me that you thought you had trouble breathing?" Mr Huynh: "Yes, problem with breathing and my eyesight is very poor. I cannot see you, Mr Member, clearly even the lady I can't see clearly and my hearing also is not good, if you speak low voice I cannot hear". 23 Later on, Mr Huynh was asked about whether he did any work for anybody after he first went to Cabramatta. When asked whether anybody gave him money to clean up their garden, he replied, "No, they look at me and they say no, I cannot hire you, you are too old, when I was younger, maybe". When asked whether he any did any pruning or any work like that for someone who then perhaps gave him food or money, he said, "It did happen sometimes, half a day maybe". When asked if he remembered how many times he did that sort of thing, he said: "I think there were four or five places I went to, to do that sort of job for half a day but even after I stopped working for them they still gave me some money when I came to see them." 24 The following exchange then took place: Tribunal Member: "Do you think you could do any more work like that?" Mr Huynh "If I am in better health I can, but not right now." (via interpreter): Tribunal Member: "What health problems do you feel you have right now?" Mr Huynh: "First is the eyesight poor, then my hearing is not good and also I feel a little bit something like chopping me inside, the last thing is I feel tired somewhere here tired." Tribunal Member: "So is that tight or tired?" Mr Huynh: "Tight." Tribunal Member: "Can I just ask to save the problem of going through it again, can you tell him if there was a cough?" 25 There then followed questions by the Tribunal concerning coughing and bleeding together with loss of weight and difficulty in swallowing, smoking, headaches and stomach problems. 26 All of the questions were directed to the present condition of Mr Huynh, save for the questions concerning his cough. Mr Huynh's response indicated that he has coughed during night for the preceding two years. In answer to a question whether the cough was getting worse or better, he said, "It doesn't get better. When I have really serious cough, I feel quite exhausted, happily it doesn't happen often". 27 In cross-examination Mr Huynh was asked about visits to hospital and his use of medications. He also said that when in New Zealand he was "on tablets" especially when it was cold. He stated that he had taken tablets every two or three days. 28 It may be that no temporal limitation in relation to a person's arrival in Australia arises in relation to the application of s 739A(7). The change in circumstances contemplated by s 739A(7) cannot be the need itself for a benefit under the Social Security Act. The possible existence of that need underlies the legislative policy that for two years it should not be met by benefits payable under the Act - see The Secretary, Department Of Social Security v Calin-Al Secara89 FCR 151 at 159 ("Secara's case"). 29 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 residents' waiting period - see Secara's case at 163. Whether or not the change in circumstances must occur after arrival in Australia, the Tribunal, as is apparent from paragraphs 38 and 39, concluded that there had been a substantial change in Mr Huynh's health status which had occurred since his arrival in Australia. The question is whether that conclusion was open to the Tribunal on the material to which I have referred. 30 It is common ground that the presiding member of the Tribunal is a medical practitioner, although there is nothing in the reasons to indicate that the Tribunal relied upon any particular expertise in reaching the conclusion stated in the reasons. It was put on behalf of Mr Huynh that it was open to a member of the Tribunal with medical expertise to make conclusions, as it did, that at least two of Mr Huynh's conditions had reached a level where they could be characterised as very significant disabilities in an elderly person who is prone to wander in search of food and accommodation. It was also put that it was open to the Tribunal to conclude, as it did, that physical exertion by Mr Huynh should be avoided until the cause of his chest pain is clarified which thereby limits his ability to engage in moderate manual work. 31 Mr Huynh, through his counsel, then contended that it was open to the Tribunal to apply its commonsense and medical experience to those conclusions, together with its own observations of Mr Huynh, so as to form an opinion that there had been a deterioration in his medical conditions during the eighteen months that Mr Huynh had been living in Australia and to form a view as to its likely extent and impact. It was argued that, when that is added to Mr Huynh's evidence pointing to a greater level of fitness in Australia, it was open to the Tribunal to conclude that the deterioration meant that Mr Huynh had, since reaching Australia, lost any capacity for work. 32 There is an internal tension in the Tribunal's reasons in one respect. At one stage the Tribunal recorded its conclusion that there had not been a substantial change in Mr Huynh's apparent general ability to work. On the other hand, in paragraph [38], the Tribunal concluded that the substantial change in Mr Huynh's health status since his arrival in Australia, which it found, had affected any work capacity that he may have previously enjoyed. 33 It may be reasonable to assume that, with age, there is deterioration in the physical condition of a human being. However, there was no evidence before the Tribunal of the rate of such deterioration in relation to any particular age. There is nothing before the Tribunal to indicate that medical knowledge would enable an inference to the drawn from observations of a person of the time over which deterioration in the condition of that person had occurred. I cannot find any evidence before the Tribunal as to the medical condition of Mr Huynh at any time prior to the hearing and the date of the report of Dr Jones. 34 It may be that the presiding member in his reasoning relied on some unexpressed inference drawn from observations that he had made. If that were the way in which the member reasoned to his conclusion, there may well have been a different error, namely failure to state proper reasons. Such a ground, however, is not relied on. 35 In the absence of some material indicating that an inference can be drawn from observations as to the time at which some deterioration in a medical condition might occur, I do not consider that it would be open to the Tribunal to reach a conclusion as to when a deterioration occurred. In paragraph [38] of its reasons the Tribunal refers to Mr Huynh's evidence as to his health complaints when in New Zealand and at the time of his arrival in Australia. There is nothing in the evidence to indicate that there was any change between the time of arrival in Australia and the time of his giving evidence before the Tribunal. 36 The Tribunal also noted the evidence of poor eyesight and hearing and throat constriction at the time of the hearing (at paragraph [38]). In the absence of anything to indicate that some conclusion can be drawn from the state of eyesight and hearing at one time as to a time when a change had occurred, that evidence cannot support a conclusion of substantial change since arrival in Australia. 37 In essence there was no evidence before the Tribunal of deterioration in Mr Huynh's health since his arrival in Australia. Mr Huynh did not, in any of his oral evidence, indicate that his medical problems had become worse since his arrival in Australia. His difficulties with his eyesight and hearing were present in New Zealand. His night cough had lasted for the last two years and his headaches had been with him from the time that he had been in Thailand. 38 The evidence before the Tribunal appears to me to have been directed only to Mr Huynh's state of health at the time of the hearing. It was not open to the Tribunal to conclude on the material before it that there had been a substantial change in his medical condition since arrival in Australia. It follows, in my opinion, that the error of law complained of is made out and, as a result, that the appeal should be allowed. I certify that the preceding thirty eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 19 February 2002 Counsel for the Applicant: T.Reilly Solicitor for the Applicant: Sparke Helmore Counsel for the Respondent: M.Smith Solicitor for the Respondent: Legal Aid Commission of NSW Date of Hearing: 6 February 2002 Date of Judgment: 19 February 2002