Golovcenco v Centrelink [2003] FCA 527

FEDERAL COURT OF AUSTRALIA

Golovcenco v Centrelink [2003] FCA 527 SOCIAL SECURITY - eligibility for social security benefits - Newstart allowance - whether applicant entitled to social security benefits under Social Security Act 1991 (Cth) Migration Act 1958 (Cth) s 36 Social Security (Administration) Act 1999 (Cth) Social Security Act 1991 (Cth) Social Security (International Agreements) Act 1999 (Cth)

Minister for Immigration and Multicultural Affairs v Savvin (2000) 98 FCR 168 Revenko v Secretary of State of the Home Department [2001] QB 601 (CA) QAAE of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 46 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Re East; Ex parte Nguyen (1998) 196 CLR 354 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 ALEXEI GOLOVCENCO v CENTRELINK Q112 OF 2002 COOPER J BRISBANE 30 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q112 OF 2002

BETWEEN: ALEXEI GOLOVCENCO

APPLICANT

AND: CENTRELINK

RESPONDENT

JUDGE: COOPER J

DATE OF ORDER: 30 MAY 2003

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant to pay the respondent's costs of and incidental to the application, including reserved costs, to be taxed if not agreed. 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 Q112 OF 2002

BETWEEN: ALEXEI GOLOVCENCO

APPLICANT

AND: CENTRELINK

RESPONDENT

JUDGE: COOPER J

DATE: 30 MAY 2003

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 On 15 July 2002, the applicant applied for an order of review of a decision of the respondent not to grant to him social security benefits. The ground relied upon was that in so refusing, the respondent acted in breach of Article 24 of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ('the Refugees Convention'). 2 At the time of making his application to the Court, the applicant had not made a claim for a benefit by completing and lodging a claim in the approved form as required by s 16(1) and s 16(7) of the Social Security (Administration) Act 1999 (Cth) ('the SSA Act'). The applicant's request for social security benefits was made orally to Centrelink as part of a Newstart claim interview conducted at the Stones Corner Service Centre of Centrelink in Brisbane. The applicant was advised during that interview that he was ineligible for social security benefits because he was only the holder of a bridging visa (sub-class 050). 3 On 22 August 2002, the applicant contacted Centrelink about claiming a social security benefit called 'Special Benefit'. 4 It appears that Centrelink treated the contact as a claim for a special benefit and by letter of that date sought documentary material in support of the application. On 3 September 2002, the applicant was advised that his claim for a special benefit was rejected on the ground that he was not residentially qualified. He was advised that the decision was a reviewable decision made under the Social Security Act 1991 (Cth) ('the Act') and of his rights to seek review of it. The applicant did not seek review of that decision. 5 In order that there be in existence a relevant decision of Centrelink, the Court directed the applicant to make a claim for Newstart allowance in the approved form with the necessary supporting material. The applicant lodged the form on 12 September 2002. The applicant's claim for Newstart was rejected on that day on the ground that he did not meet the Australian residence requirements for the payment of a Newstart allowance. He was advised of his review rights by an Authorised Review Officer, however he has not sought to utilise the review of decision processes provided for in Part 4 of the SSA Act. 6 The applicant has submitted that the respondent was obliged to provide him with social security benefits, including Newstart allowance, because: (a) Australia is a signatory to the Refugees Convention; (b) Australia is a signatory to the Convention Relating to the Status of Stateless Persons done at New York on 28 September 1954 ('the Stateless Persons Convention'); (c) the applicant was both a refugee and a stateless person; (d) Article 24(1)(b) of the Refugees Convention required Australia to provide to him as a 'refugee' the same treatment as is accorded to its nationals in respect of social security benefits; (e) Article 24(1)(b) of the Stateless Persons Convention required Australia to provide to him, as a 'stateless person', the same treatment as is accorded to its nationals in respect of social security benefits; (f) his entitlement to such payments arose under each of the Conventions and was independent of his rights, if any, under the Act; and (g) he was not constrained by any provision of the Act or the SSA Act from receiving such benefits, nor in seeking review of the decision, to refuse to pay to him such benefits, outside the preview processes provided for in the SSA Act. 7 Centrelink submitted that it is not authorised to pay Newstart allowance otherwise than to a person who is eligible under the Act to receive it. That, as the applicant is not eligible because he does not satisfy the eligibility criteria, he has, and had, no entitlement to a payment and that the decision refusing his application was correct. 8 One of the requirements of eligibility for a Newstart allowance is that the applicant is an Australian resident: s 593(1)(g)(ii) of the Act. The definition of 'Australian resident' contained in s 7 of the Act requires that the person resides in Australia and is an Australian citizen or the holder of a permanent visa, or is a person who is likely to remain permanently in Australia and is the holder of a special category or a special purpose visa: s 7(2)(b) of the Act. The applicant holds a temporary bridging visa E (sub-class 050), which does not satisfy any visa category for the purpose of s 7(2)(b) of the Act. Accordingly, he was not entitled to be paid Newstart allowance under and in accordance with Chapter 2 part 2.12 of the Act. 9 The decision to refuse to pay the applicant Newstart allowance under the Act on the ground that he did not satisfy the eligibility requirements to payment thereunder was correct. 10 I turn now to the claim of a personal enforceable entitlement under the Refugees Convention and/or the Stateless Persons Convention to payment of social security in the form of, or equivalent to, Newstart allowance payable under the Act. 11 The Refugees Convention has been implemented as part of Australian domestic law by the Migration Act 1958 (Cth) ('the MA'). Section 36 of the MA provides for a class of visas to be known as protection visas. The criterion for a protection visa is that the applicant for the visa is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Protocol relating to the Status of Refugees: s 36(2) of the MA. Australia has protection obligations to persons who satisfy the definition of 'refugee' under the Refugees Convention. A person who holds a protection visa is a 'refugee' for the purposes of the Act and thereby has a qualifying residence exception for a social security pension or benefit: s 7(6B) and s 7(6H) of the Act. In this way, Australia has implemented in Australian domestic law the obligation contained in Article 24(2)(b) of the Refugees Convention. 12 The applicant applied for a protection visa under the MA on 3 December 1999. It was refused on 18 April 2000. The Refugee Review Tribunal ('the RRT') affirmed the decision to refuse the visa on 27 March 2002. The applicant applied to this Court for review on 10 May 2002. That application was refused and the application dismissed on 1 October 2002. An appeal from the dismissal of the application was dismissed by a Full Court of this Court on 17 March 2003. 13 The applicant does not hold, has never held, and is not presently entitled to a protection visa because the Minister for Immigration and Multicultural and Indigenous Affairs is not satisfied that he is a person to whom Australia has protection obligations. That is, the Minister is not satisfied that the applicant is a 'refugee' as defined. Accordingly, the applicant cannot satisfy the requirements of s 36(2) of the MA. 14 In deciding the applicant's request for review, the RRT found that the applicant was a 'stateless person' having renounced the citizenship of Moldova, the nation of his birth. However, being stateless by itself is insufficient to establish refugee status: Minister for Immigration and Multicultural Affairs v Savvin (2000) 98 FCR 168; Revenko v Secretary of State of the Home Department [2001] QB 601 (CA); QAAE of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 46 at [12]. 15 The Stateless Persons Convention has not been adopted into Australian domestic law, notwithstanding that Australia is a party to it. The applicant submits that the fact that Australia has not ratified the Stateless Persons Convention by its incorporation into domestic law does not mean that Australia does not have to discharge the obligations under it. The applicant submitted that the decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 required that Australian legislation be interpreted in a way which gives effect to Australian treaty obligations, notwithstanding a lack of ratification of the treaty. 16 The Stateless Persons Convention, not having been incorporated into the domestic law of Australia by statute, does not form part of Australian law: Teoh at 287. Unless it is incorporated into domestic law, the entry into a treaty by Australia does not create enforceable rights and obligations: Re East; Ex parte Nguyen (1998) 196 CLR 354 at 362 [19]. The Parliament of Australia may determine, by adopting legislation, the method by which Australia's treaty obligations are to be given effect to by enacting laws creating rights and obligations and providing certain remedies. If a Convention is incorporated into Australian domestic law, the rights or obligations thereby created are to be ascertained from the terms of the Australian law properly construed. Whether or not such an enactment provides for private enforceable rights is a matter of statutory interpretation of the enactment: Re East; Ex parte Nguyn at 362 - 363, par [20]; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405. 17 The Stateless Persons Convention, not having been adopted into Australian domestic law, the applicant has no personal enforceable rights under Article 24 of that Convention, nor does the Commonwealth of Australia have any obligations under that Article which are enforceable against it under the domestic law at the suit of the applicant. 18 The decision in Teoh does not assist the applicant. The section of the majority judgment on which the applicant relies (which is emphasised) appears in the following context (at 286 - 288): 'It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. (Chow Hung Ching v The King (1948) 77 CLR 449 at 478; Bradley v The Commonwealth (1973) 128 CLR 557 at 582; Simsek v Macphee (1982) 148 CLR 636 at 641 - 642; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 211 - 212, 224 - 225; Kioa v West (1985) 159 CLR 550 at 570; Dietrich v The Queen (1992) 177 CLR 292 at 305; J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418 at 500). This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. (Simsek v Macphee (1982) 148 CLR 636 at 641 - 642). So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way. It is not suggested that the declaration made pursuant to s 47(1) of the Human Rights and Equal Opportunity Commission Act has this effect. But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, (Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38), at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law (Polites v The Commonwealth (1945) 70 CLR 60 at 68 - 69, 77, 80 - 81). The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations (R v Secretary of State for Home Department; Ex parte Brind [1991] 1 AC 696 at 748).' (Emphasis added) 19 Properly understood, what the High Court said in Teoh was that consistency with the obligations of treaties to which Australia is a party is a canon of construction when one encounters an ambiguity in a statute or in subordinate legislation. In the present case the applicant does not, and cannot, point to any ambiguity in a statutory enactment which ought to be construed so as to give him enforceable rights to obtain social security benefits on the basis of his being a stateless person. 20 Finally, the applicant made reference to the Stateless Persons Convention in the Agreement between Australia and the Republic of Austria on Social Security, done at Canberra on 1 April 1992 ('the Agreement'), which is Schedule 10 to the Social Security (International Agreements) Act 1999 (Cth) ('the SSIA Act'). Article 5 of the Agreement makes provision for the payment of benefits to a class of people which includes 'refugees' and 'stateless persons' as defined by Article 1 of the Agreement. A stateless person, for the purposes of the Agreement, is a person who satisfies the definition in the Stateless Persons Convention. Article 5 must be read with Article 3, which deals with the 'Personal Scope' of the Agreement. Whatever the operation of Article 5, the Agreement in relation to Australia and the Act only deals with age, invalid, wife, carer and widowed persons pensions: Article 2(1)(a). It has no application to other benefits, pensions and allowances payable in Australia under the Act. Thus, the applicant obtains no entitlement as a stateless person to a benefit under the Agreement which is given effect to in Australian domestic law by s 5 and s 6 of the SSIA Act. 21 The Agreement is but an example on how, in a limited and particular way, the Stateless Persons Convention may be acknowledged and given some effect to in respect of social security arrangements between the two countries. However, it does not amount to ratification of the treaty by its adoption into Australian domestic law. 22 For these reasons, the application is dismissed with costs to follow the event. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.