Post by Banjo on Dec 21, 2013 7:39:20 GMT 7
This involves an international agreement which may interest some members.
THE COURT:
INTRODUCTION
This is an appeal from the judgment of a single judge of the Court, dismissing an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘Administrative Appeals Tribunal Act’) from a decision of the Administrative Appeals Tribunal (‘the AAT’). The effect of the judgment in this Court was to affirm the decision of the AAT, which had set aside a decision of the Social Security Appeals Tribunal (‘SSAT’). The SSAT had affirmed a decision of a delegate of the Secretary, Department of Families, Housing, Community and Indigenous Affairs (‘the Secretary’) to reject a claim for a disability support pension made on behalf of the respondent by his parents on 2 March 2011 (‘the claim’). The respondent, Andro Mahrous, was at that time almost sixteen years of age.
The issue on the appeal is whether the primary judge and the AAT correctly held that the respondent was eligible to be paid a disability support pension from 2 March 2011. For reasons set out below, we would uphold the judgment of the primary judge and dismiss the appeal.
BACKGROUND
By way of further background, we note that the claim was rejected on 29 April 2011 by the Secretary’s delegate on the basis that the respondent did not meet the residence requirements for a disability support pension in s 94(1) of the Social Security Act 1991 (Cth) (‘the Social Security Act’). An Authorised Review Officer and, as noted above, the SSAT affirmed the rejection of the claim.
On review, the AAT set aside the SSAT’s decision and held that the respondent satisfied the residence requirements for a pension: see Re Andro Mahrous and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 355, 129 ALD 24 (‘AAT Decision’). Since the Secretary accepted that the respondent met the other qualifications, the respondent was found to be eligible to be paid a disability support pension.
As already noted, an appeal from the AAT to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act was dismissed by a single judge: see Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275, 131 ALD 450 (‘Primary Judgment’). This is an appeal from that judgment.
CIRCUMSTANCES GIVING RISE TO THE ISSUE IN DISPUTE
The circumstances giving rise to the question on appeal, as found by the AAT, were as follows.
The respondent, Andro Mahrous, was born in Egypt on 27 March 1995. In 1998, when Andro was about three years old, his family emigrated to New Zealand. He and his family became New Zealand citizens. Some years later, on 6 November 2003, Andro, then about eight years old, moved to Australia with his family.
Approximately one year after arriving in New Zealand, Andro (then aged about four) became unwell and began having epileptic seizures. He now has “a confirmed intellectual impairment of some magnitude”, although the precise aetiology of his condition cannot accurately be determined: AAT Decision at [8]. In relation to the medical evidence before it, the AAT stated (at [11]-[12]):
In respect of the appeal against the decision of the SSAT, there is evidence of Dr Khalil, a General Practitioner who certified Andro would require 24 hour a day 7 day a week care. The Principal of Narbethong State Special School certified similarly.
There is expert medical evidence of real substance or weight. This is shown in the report of Dr Robertson, paediatrician of the Mater Hospital, dated 14 March 2011, who found that Andro had “development delay and epilepsy which had been fully investigated previously. His epilepsy has been stable on medication”. Dr Ron James, Consultant Paediatrician, opined on 30 April 2009 that Andro’s epilepsy had stabilised on medication and stated Andro had had no seizures for 5 years at that time. He described Andro as having “global developmental delay”. Dr Anita Cairns, Paediatric Neurologist, in her report dated 24 November 2011, rejected a diagnosis of cerebral palsy and her professional opinion was that “Andro has intellectual impairment, visual impairment and symptomatic epilepsy”. ...
Unsurprisingly, in light of this, the Secretary conceded in the AAT that Andro Mahrous is severely disabled. The Secretary’s contention before the AAT and before the primary judge was simply that he could not satisfy the residence requirements for a disability support pension: see AAT Decision at [15], [20]; Primary Judgment at [7].
The AAT rejected the Secretary’s contention, holding that the respondent satisfied the residence requirements. This was because, in the AAT’s view, s 6 of the Social Security (International Agreements) Act 1999 (Cth) (‘the International Agreements Act’) and the “Agreement on social security between the Government of Australia and the Government of New Zealand” in Schedule 3 to that Act (‘the Agreement’) had the effect that he met the residence qualification for a disability support pension in s 94(1)(e)(ii) of the Social Security Act: see AAT Decision at [37].
When the primary judge considered the issue, he noted that “no particular controversy attended a conclusion [by the AAT] that Andro did not satisfy either s 94(1)(e)(i) or s 94(1)(e)(iii) of the Social Security Act”: see Primary Judgment at [16]. (We interpolate here that a notice of contention filed on the respondent’s behalf on 23 January 2013 might have extended the controversy, but was abandoned prior to the hearing of the appeal.) After noting that the International Agreements Act “gives an overriding effect to the scheduled international social security agreements ... so far as ... ‘social security law’ is concerned”, the primary judge rejected the Secretary’s submission that article 12(4) of the Agreement was simply and absolutely a provision of limitation: see Primary Judgment at [23], [28], [38]. This meant, so the primary judge held, that Andro Mahrous satisfied the eligibility criterion in dispute: Primary Judgment at [39].
More here... www.austlii.edu.au/au/cases/cth/FCAFC/2013/75.html
THE COURT:
INTRODUCTION
This is an appeal from the judgment of a single judge of the Court, dismissing an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘Administrative Appeals Tribunal Act’) from a decision of the Administrative Appeals Tribunal (‘the AAT’). The effect of the judgment in this Court was to affirm the decision of the AAT, which had set aside a decision of the Social Security Appeals Tribunal (‘SSAT’). The SSAT had affirmed a decision of a delegate of the Secretary, Department of Families, Housing, Community and Indigenous Affairs (‘the Secretary’) to reject a claim for a disability support pension made on behalf of the respondent by his parents on 2 March 2011 (‘the claim’). The respondent, Andro Mahrous, was at that time almost sixteen years of age.
The issue on the appeal is whether the primary judge and the AAT correctly held that the respondent was eligible to be paid a disability support pension from 2 March 2011. For reasons set out below, we would uphold the judgment of the primary judge and dismiss the appeal.
BACKGROUND
By way of further background, we note that the claim was rejected on 29 April 2011 by the Secretary’s delegate on the basis that the respondent did not meet the residence requirements for a disability support pension in s 94(1) of the Social Security Act 1991 (Cth) (‘the Social Security Act’). An Authorised Review Officer and, as noted above, the SSAT affirmed the rejection of the claim.
On review, the AAT set aside the SSAT’s decision and held that the respondent satisfied the residence requirements for a pension: see Re Andro Mahrous and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 355, 129 ALD 24 (‘AAT Decision’). Since the Secretary accepted that the respondent met the other qualifications, the respondent was found to be eligible to be paid a disability support pension.
As already noted, an appeal from the AAT to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act was dismissed by a single judge: see Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) [2012] FCA 1275, 131 ALD 450 (‘Primary Judgment’). This is an appeal from that judgment.
CIRCUMSTANCES GIVING RISE TO THE ISSUE IN DISPUTE
The circumstances giving rise to the question on appeal, as found by the AAT, were as follows.
The respondent, Andro Mahrous, was born in Egypt on 27 March 1995. In 1998, when Andro was about three years old, his family emigrated to New Zealand. He and his family became New Zealand citizens. Some years later, on 6 November 2003, Andro, then about eight years old, moved to Australia with his family.
Approximately one year after arriving in New Zealand, Andro (then aged about four) became unwell and began having epileptic seizures. He now has “a confirmed intellectual impairment of some magnitude”, although the precise aetiology of his condition cannot accurately be determined: AAT Decision at [8]. In relation to the medical evidence before it, the AAT stated (at [11]-[12]):
In respect of the appeal against the decision of the SSAT, there is evidence of Dr Khalil, a General Practitioner who certified Andro would require 24 hour a day 7 day a week care. The Principal of Narbethong State Special School certified similarly.
There is expert medical evidence of real substance or weight. This is shown in the report of Dr Robertson, paediatrician of the Mater Hospital, dated 14 March 2011, who found that Andro had “development delay and epilepsy which had been fully investigated previously. His epilepsy has been stable on medication”. Dr Ron James, Consultant Paediatrician, opined on 30 April 2009 that Andro’s epilepsy had stabilised on medication and stated Andro had had no seizures for 5 years at that time. He described Andro as having “global developmental delay”. Dr Anita Cairns, Paediatric Neurologist, in her report dated 24 November 2011, rejected a diagnosis of cerebral palsy and her professional opinion was that “Andro has intellectual impairment, visual impairment and symptomatic epilepsy”. ...
Unsurprisingly, in light of this, the Secretary conceded in the AAT that Andro Mahrous is severely disabled. The Secretary’s contention before the AAT and before the primary judge was simply that he could not satisfy the residence requirements for a disability support pension: see AAT Decision at [15], [20]; Primary Judgment at [7].
The AAT rejected the Secretary’s contention, holding that the respondent satisfied the residence requirements. This was because, in the AAT’s view, s 6 of the Social Security (International Agreements) Act 1999 (Cth) (‘the International Agreements Act’) and the “Agreement on social security between the Government of Australia and the Government of New Zealand” in Schedule 3 to that Act (‘the Agreement’) had the effect that he met the residence qualification for a disability support pension in s 94(1)(e)(ii) of the Social Security Act: see AAT Decision at [37].
When the primary judge considered the issue, he noted that “no particular controversy attended a conclusion [by the AAT] that Andro did not satisfy either s 94(1)(e)(i) or s 94(1)(e)(iii) of the Social Security Act”: see Primary Judgment at [16]. (We interpolate here that a notice of contention filed on the respondent’s behalf on 23 January 2013 might have extended the controversy, but was abandoned prior to the hearing of the appeal.) After noting that the International Agreements Act “gives an overriding effect to the scheduled international social security agreements ... so far as ... ‘social security law’ is concerned”, the primary judge rejected the Secretary’s submission that article 12(4) of the Agreement was simply and absolutely a provision of limitation: see Primary Judgment at [23], [28], [38]. This meant, so the primary judge held, that Andro Mahrous satisfied the eligibility criterion in dispute: Primary Judgment at [39].
More here... www.austlii.edu.au/au/cases/cth/FCAFC/2013/75.html