Charan v Secretary, Department of Human Services

Federal Court of Australia|2018-12-05|Before: Flick J

The proceeding is dismissed.
The Applicants are to pay the costs of the Respondent, either as taxed or agreed.
If costs are taxed, the costs of the proceeding in the Supreme Court of New South Wales should be taxed in accordance with Div 40.2 of the Federal Court Rules 2011 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 The present proceeding has its origins in a Summons filed in the Common Law Division of the Supreme Court of New South Wales in December 2017. The Plaintiffs in that proceeding, Mr Suresh Charan and Mrs Anuradha Charan, sought judicial review of the decisions made by an Authorised Review Officer of the Department of Human Services on 28 September 2017 affirming decisions refusing each of their applications for an age pension. 2 The Defendant was the Secretary, Department of Human Services (the "Secretary"). 3 Both Mr and Mrs Charan were born in Fiji. They have both lived in New Zealand and Australia. They have long claimed that they are qualified to receive an age pension notwithstanding that they do not satisfy the criteria in s 43 of the Social Security Act 1991 (Cth) (the "Social Security Act"). Relevantly, section 43(1)(a) provides that a person is qualified to receive the age pension if they have reached pension age and have "10 years qualifying Australian residence". Although Mr and Mrs Charan have not been resident in Australia for 10 years, they nevertheless seek to satisfy the residence requirement by invoking 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 (the "Agreement"). Section 6(1) of the International Agreements Act provides that "[t]he provisions of a scheduled international social security agreement have effect despite anything in the social security law". The Agreement is a "scheduled international social security agreement" and the Social Security Act is a "social security law". 4 At the heart of the claims advanced in the Summons was a contention that the Secretary "had erred in law in holding contrary to the Social Security (International Agreements) Act 1999 (Cth) that the plaintiffs were required to add working age residence in New Zealand to apply totalisation to claim age pension in Australia". 5 In April 2018, an order was made by the Supreme Court transferring the proceeding to this Court. Mrs and Mrs Charan became the First and Second Applicants and the Secretary the Respondent. 6 On 28 June 2018, Mr and Mrs Charan filed in this Court an Interlocutory Application seeking an order that the Court be reconstituted. The matter was listed on 7 August 2018 for hearing of the Interlocutory Application and, if that application was unsuccessful, the substantive application. 7 Mr and Mrs Charan appeared in person at the hearing before this Court on 7 August 2018. The Secretary was represented by Counsel. 8 It has been concluded that: the Interlocutory Application should be refused; and that the proceeding should be dismissed with costs.

The Interlocutory Application - should the Court be reconstituted? 9 The basis upon which the Interlocutory Application was founded was that the Court as presently constituted had previously resolved the same legal issues against the interests of Mr and Mrs Charan in May 2016: Charan v Secretary, Department of Social Services [2016] FCA 486. 10 That decision was affirmed by a Full Court of this Court on appeal: Charan v Secretary, Department of Social Services [2016] FCAFC 175, (2016) 247 FCR 422 ("Charan"). The Full Court resolved the manner in which the "10 years qualifying Australian residence" required by s 43(1)(a) of the Social Security Act and the International Agreements Act and the Agreement are to be applied. 11 The issues to be resolved in the present case, it has been concluded, depend solely upon an application to the facts of the legal principles set forth by the Full Court in Charan [2016] FCAFC 175, (2016) 247 FCR 422. No question arises as to any ability in the present proceeding to put in issue the factual basis upon which the Authorised Review Officer proceeded or any necessity to resolve any question of credit. No matter how the Court may be constituted or reconstituted, the task entrusted to any primary Judge in the present proceeding is to simply apply the legal principles as established by the Full Court. 12 In such circumstances it is respectfully concluded that the Interlocutory Application seeking an order that the Court be reconstituted should be rejected. 13 The prior resolution of the same question of law by a judge, it has been held, provides no basis for an application for the disqualification of that judge or for an order reconstituting the Court: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J ("Re JRL"). "There is no such inflexible rule": SZVBN v Minister for Immigration and Border Protection (No 3) [2017] FCA 126 at [16] per Wigney J. In SZVBN v Minister for Immigration and Border Protection (No 2) [2017] FCA 123, Robertson J helpfully collated a number of further authorities, including both Kartinyeri v Commonwealth [1998] HCA 52, (1998) 156 ALR 300 ("Kartinyeri") and Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56, (1999) 166 ALR 302 ("Helljay"). 14 In Re JRL, Mason J observed (at 352): It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established" … In Kartinyeri, Callinan J (referring to the observations of Mason J in Re JRL) observed (at 303): [24] I do not think that the expression of an opinion as to a legal matter, whether as a practising lawyer or as a judge on a prior occasion, will ordinarily of itself give rise to a reasonable apprehension of bias according to the relevant test. Mason J in the passage I have already quoted points out that the making of a previous decision by a judge on issues of fact and law, although perhaps generating an expectation of a particular outcome, does not mean that the judge will not be impartial and unprejudiced in the relevant sense. (Footnote omitted, emphasis in original.) In Helljay, Hayne J (after also quoting the judgment of Mason J in Re JRL) observed (at 307): [12] The principles about apprehension of bias must be understood in the context of a judicial system founded in precedent and directed to establishing, and maintaining, consistency of judicial decision so that like cases are treated alike and principles of law are applied uniformly. The bare fact that a judicial officer has earlier expressed an opinion on questions of law will therefore seldom, if ever, warrant a conclusion of appearance of bias, no matter how important that opinion may have been to the disposition of the past case or how important it may be to the outcome of the instant case. Fidelity to precedent and consistency may make it very likely that the same opinion about a question of law will be expressed in both cases. But that stops well short of saying that the judicial officer will not listen to and properly consider arguments against the earlier holding. As Lush J said in Ewert v Lonie [[1972] VR 308 at 311 to 312]: Every reasonable man knows that consistency in decision is one of the aims of judicial or quasi-judicial institutions, but if he is exercising his quality of reasonableness he does not suppose that a tribunal will refuse to entertain or will fail to give proper attention to a submission opposed to its former decision merely because it is so opposed. In this case, the reasonable onlooker might have thought that the appellants would not have much chance of succeeding, but this is not the same thing as feeling or believing that they would not get a proper hearing. It is not a characteristic of the law's reasonable man either to be irrationally suspicious of every institution or authority or to think that every cynical appraisal represents an absolute truth. 15 Notwithstanding the reservations genuinely held by Mr and Mrs Charan that the legal conclusions previously expressed in May 2016 and as affirmed by the Full Court in December 2016 will also be reached in the present proceeding, the prospect of adherence to established principles it is respectfully considered provides no basis upon which an order should be made reconstituting the Court.

The facts of the earlier claims & the factual basis of the present claims 16 When Mr and Mrs Charan pursued their claims in May 2016, the facts upon which those claims were advanced were as follows: Mrs Charan Total Days Mr Charan Total Days Period of residence in New Zealand 1 January 2005 to 14 February 2014 3331 30 June 2005 to 4 April 2014 3200 Period in Australia 15 February 2014 to 1 January 2015 320 5 April 2014 to 30 June 2015 452

17 Based upon those facts, in September 2015 the Administrative Appeals Tribunal (the "Tribunal") affirmed a decision by the Social Security Appeals Tribunal refusing Mr and Mrs Charan's application for the aged pension: Re Charan and Secretary, Department of Social Services [2015] AATA 760. An appeal from that decision to this Court was dismissed: Charan v Secretary, Department of Social Services [2016] FCA 486. A further appeal was dismissed by the Full Court: Charan [2016] FCAFC 175, (2016) 247 FCR 422. 18 The difficulty then confronting Mr and Mrs Charan in their bid to obtain the age pension was that s 43 of the Social Security Act relevantly provided that to be qualified for an age pension a claimant must (inter alia) have "10 years qualifying Australian residence". Neither had been so resident. In order to confront this impediment, reliance was then also placed upon the International Agreements Act and the Agreement. 19 The Full Court in Charan [2016] FCAFC 175, (2016) 247 FCR 422 at 424, constituted by Collier, Katzmann and Farrell JJ, summarised this position as follows: [8] Considering the Social Security Act alone, the appellants do not satisfy s 43(1) as they did not have 10 years "qualifying Australian residence" within the meaning of s 7(5) of that Act nor are they "Australian residents" within the meaning of s 7(2) as they are not Australian citizens, holders of permanent visas or holders of protected SCV visas. [9] Section 6 of the International Agreements Act operates to modify the operation of the Social Security Act to enable people like the appellants who would not otherwise qualify for social security benefits to do so where they are covered by certain international agreements. Where a provision of an international agreement is in force and affects provisions of the Social Security Act, the provisions of the agreement override the provisions of the Act … Their Honours referred to the facts, the terms of the legislation and the Agreement and concluded as follows (at 437 to 438): [54] A person to whom the Agreement applies must have reached the age of 65: Art 12(5). The appellants satisfy that criterion. However, there is nothing in Art 12(5) which addresses the residence criterion. It would be an absurd interpretation of Art 12(5) to take the fact that there is no reference to a period of residence to mean that none is required. The fact that a period of residence is specified in relation to disability support benefits under Art 12(4) could not justify such an interpretation. [55] Article 12(1) applies to a person who has claimed an Australian benefit under the Agreement. The age pension is a "benefit": see Art 2(1) of the Agreement. [56] Article 12(1)(a) applies to the appellants because they cannot satisfy s 43(1)(a) even though the definitions of "Australian resident" in s 7(2) and "10 years qualifying Australian residence" in s 7(5) are affected by the definition of "Australian resident" by virtue of s 6 of the International Agreements Act and Art 5(1) of the Agreement. They cannot satisfy s 43(1)(a) because, at the time they applied for the age pension in October 2014, they had been lawfully resident in Australia for less than 10 years. At that date Mrs Charan had resided in Australia for eight months and Mr Charan for six months. [57] Article 12(1)(b) has no application because there is now no minimum period of "working age residence" in Australia required as a precondition to the operation of Art 12(1). Article 12(3) was amended in March 2001; Art 12(3)(b) now provides that "for the purposes of an Australian benefit payable to an Australian resident, there will be no minimum period". [58] The appellants have periods of "working age residence" in New Zealand as mentioned in Art 12(1)(c). As found by the AAT, at the time of their claims in October 2014, Mrs Charan had approximately 73 months of working age residence in New Zealand and Mr Charan 32 months. [59] The words after "then" in Art 12(1) deem "working age residence" in New Zealand to be a period in which each of the appellants was an "Australian resident" for the purpose of meeting the minimum qualifying period for the age pension under s 43(1)(a). [60] There is no period in which the appellants had "working age residence" in both Australia and New Zealand, so Art 12(2) has no work to do to avoid double counting under Art 12(1). [61] The "totalisation" performed by Art 12(1) is to combine the period in which the appellants were actually and lawfully resident in Australia (deemed to be "Australian residence" under ss 7(2) and (5) having regard to Art 5(1)) together with the period of their "working age residence" in New Zealand to see if that amounts to the "10 years qualifying Australian residence" required by s 43(1)(a). The AAT and the primary judge were not in error in their interpretation of Arts 5 and 12 or their approach to the impact of those articles of the Agreement on ss 7(2), (5) and 43(1)(a) of the Social Security Act by reason of s 6 of the International Agreements Act. A period of residence in New Zealand after attaining the age of 65 is not included in that calculation. [62] That interpretation of Arts 5 and 12 is consistent with the purpose of the Agreement. The Secretary correctly conceded that, if the appellants remain legally resident in Australia, when the appellants' period of "residence in Australia" taken with their periods of "working age residence" in New Zealand reaches 120 months, they will be entitled to claim an age pension, even if at that time they do not satisfy s 7(2)(b) or s 43(1)(a) (having regard to s 7(5)) "directly", assuming the law remains the same. 20 But time has moved on since those earlier claims made by Mr and Mrs Charan were resolved. Although the quantifications of the "working age residence" in New Zealand remain the same, the periods of residence in Australia have obviously increased. So much was recognised by the Authorised Review Officer in his letter to Mr Charan dated 28 September 2017 where he set forth part of the factual basis upon which he proceeded as follows: You began residing in New Zealand in June 2005 and left for Australia in April 2014. You turned 65 years of age on 22 February 2008. While you were in New Zealand for approximately 8 years and 10 months only the period until 22 February 2008 can be counted. This means you have approximately 32 months of working age residence in New Zealand. As at your Age Pension claim date of 16 March 2017 you had approximately 35 months as an Australian resident meaning your total residence was 67 months which is less than the 120 months required to qualify for the Age Pension. A letter of the same date addressed to Mrs Charan quantified her periods of residence as follows: You began residing in New Zealand in January 2005 and left for Australia in February 2014. You turned 65 years of age on 27 January 2011. While you were in New Zealand for approximately 9 years and 1 month only the period until 27 January 2011 can be counted. This means you have approximately 73 months of working age residence in New Zealand. As at your Age Pension claim date of 16 March 2017 you had approximately 37 months as an Australian resident meaning your total residence was 110 months which is less than the 120 months required to qualify for the Age Pension. 21 According to the Authorised Review Officer, the requirement that a claimant for an age pension have "10 years qualifying Australia residence" was not satisfied because: Mr Charan had a total of 67 months qualifying Australian residence, comprised of 35 months as an "Australian resident" and 32 months of "working age residence" in New Zealand; and Mrs Charan had a total of 110 months qualifying Australian residence, comprised of 37 months as an "Australian resident" and 73 months of "working age residence" in New Zealand. 22 Applying the reasons of the Full Court in Charan, it necessarily follows that: the quantification of the periods of "working age residence" in New Zealand were correctly quantified in the case of Mr Charan as 32 months and 73 months for Mrs Charan: [2016] FCAFC 175 at [58], (2016) 247 FCR at 438. There has been no relevant change in the facts between 2016 and the time of Mr and Mrs Charan's applications to reach any different calculation; the "totalisation" performed by Art 12 of the Agreement continues to operate so as "to combine the period in which [Mr and Mrs Charan] were actually and lawfully resident in Australia (deemed to be 'Australian residence' under s 7(2) and (5) having regard to Art 5(1)) together with the period of their 'working age residence' in New Zealand to see if that amounts to the '10 years qualifying Australian residence' required by s 43(1)(a)": [2016] FCAFC 175 at [61], (2016) 247 FCR at 438. Those calculations in respect to Mr and Mrs Charan continue to expose both as falling short of that 10 year requirement. It is not open to a single Judge of this Court to depart from the manner in which the Full Court in Charan construed the terms of the Social Security Act or the Agreement. Concurrence, in any event, is nevertheless expressed with the reasoning and conclusions of the Full Court. The submission advanced by Mr Charan that the Court should depart from the reasoning and the conclusions of the Full Court - particularly in respect to paras [58] and [61] of those reasons - is rejected. 23 It follows that the decisions of the Authorised Review Officer made on 28 September 2017 are correct and those decisions should not be set aside. 24 The fate of a further application apparently more recently made by Mrs Charan for an age pension remains a matter for the Secretary.

The 2017 amendments to the Agreement 25 No reason to reach any different conclusion arises by reason of amendments to the Agreement which came into effect on 1 July 2017. The amendments of present relevance are the amendments to Arts 5 and 12 of the Agreement. 26 That conclusion is reached either because: the amendments to the Agreement only apply to claims made after the date upon which those amendments came into effect - the claims in the present case being made on 16 March 2017 and the amendments coming into effect on 1 July 2017; and/or the amendments do not operate to effect any relevant substantive change to the Agreement and there is no reason to question the continued application of the decision of the Full Court in Charan. 27 With respect to the first of those conclusions, it has previously been said that the entitlement to the age pension is assessed by reference to the date upon which the claim was made: Charan v Secretary, Department of Social Services [2016] FCA 486 at [31]. The second conclusion should be briefly expanded upon. 28 Prior to the 2017 amendments, the Agreement as considered and applied by the Full Court in Charan provided in Art 5 as follows: Residence Definitions 1. "Australian resident" has the meaning given to that term in the social security law of Australia but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia. In deciding whether a person is residing in Australia, regard must be had to the following factors: (a) the nature of the accommodation used by the person in Australia; (b) the nature and extent of the family relationships the person has in Australia; (c) the nature and extent of the person's employment, business or financial ties with Australia; (d) the nature and extent of the person's assets located in Australia; (e) the frequency and duration of the person's travel outside Australia; and (f) any other matter relevant to determining whether the person intends to remain permanently in Australia; and "residence in Australia" has a corresponding meaning. 2. "New Zealand resident" means, in relation to New Zealand, a person who has or had New Zealand as their principal place of residence except where that person was unlawfully resident or present in New Zealand or lawfully resident or present in New Zealand only by virtue of: (a) a visitor's permit; (b) a temporary work permit; or (c) a permit to be in New Zealand for the purposes of study at a New Zealand school or university or other tertiary educational establishment; and "residence in New Zealand" has a corresponding meaning. 3. "permanent resident" in relation to Australia means a person who is a citizen of Australia or who holds a permanent visa under the Migration Act 1958 of Australia. 4. "third country residence" means a period of residence when a person was not either an Australian resident or a New Zealand resident. 5. "working age residence" in relation to a person means a period of residence between the ages of 20 and 64 years inclusive (being a maximum of 45 years) but does not include any period deemed pursuant to Article 8 or Article 12 to be a period in which that person was an Australian resident or a New Zealand resident. 29 Article 12, as amended by agreement between the Governments of Australia and New Zealand in 2001 and prior to the 2017 amendments, provided as follows: Totalisation for Australia 1. Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated: (a) a period as an Australian resident that is less than the period required to qualify that person, on that ground, under the social security law of Australia for a benefit; (b) a period of working age residence in Australia equal to or greater than the period identified in accordance with paragraph 3; and (c) a period of working age residence in New Zealand. then: That period of working age residence in New Zealand shall be deemed to be a period in which that person was an Australian resident only for the purposes of meeting any minimum qualifying periods for that benefit set out in the social security law of Australia. 2. Where a person's period of working age residence in Australia and a period of working age residence in New Zealand coincide, the period of coincidence shall be taken into account once only by Australia for the purposes of this Article as a period as an Australian resident. 3. The minimum period of Australian working age residence to be taken into account for the purposes of paragraph 1(b) shall be as follows: (a) for the purposes of an Australian benefit payable to a person residing outside Australia, the minimum period shall be one year of which at least 6 months must be continuous; but (b) for the purposes of an Australian benefit payable to an Australian resident, there will be no minimum period. 4. No person shall be entitled to claim a disability support pension under this Agreement unless he or she has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand. 5. A claimant for an age pension must be at least 65 years of age to be able to obtain the benefit of this Article. 30 The amendments to the Agreement taking effect from 1 July 2017, it has been concluded, do not operate such as to change the conclusions reached by the Full Court in Charan. The relevant amendments may be summarised as follows: Previous agreement Agreement as amended in 2017 Conclusion Article 5(1): "… but is lawfully residing in Australia." Article 5(1): "… but is lawfully residing in Australia on a special category visa." The amendment effects no change as Mr and Mrs Charan were at all material times lawfully residing in Australia on a special category visa. Article 5(5): "... a period of residence between the ages of 20 and 64 years inclusive …" Article 5(5): "... a period of residence … from the age of 20 until the qualifying age for age pension in Australia…" The amendment effects no change for Mr Charan as the previous reference to "64 years inclusive" is the same as the current qualifying age of 65 years for men born before 30 June 1952. For Mrs Charan, the pension age for a woman born between 1 January 1946 and 30 June 1947 is 64 years. Article 12(1)(a): "a period as an Australian resident that is less than the period required to qualify that person, on that ground, under the social security law of Australia for a benefit" Article 12(1)(a): "a period as an Australian resident that is less than the period required to qualify that person for that benefit under the legislation of Australia" The amendment effects no substantive change by removing the phrase "on that ground" or referring to the "legislation of Australia" rather than "the social security law of Australia". In any event, the application of Art 12(1)(a) was not previously an issue in the proceeding and is not now an issue in the current proceeding. Article 12(3): Article 12(3): The new provision effects no change to "the minimum period of working age residence" for Mr and Mrs Charan. The Applicants are "present long term in Australia" so there remains no minimum period. "… (a) for the purposes of an Australian benefit payable to a person residing outside Australia, the minimum period shall be one year of which at least 6 months must be continuous; but "… a. for the purposes of an Australian benefit payable to a person present long term in New Zealand, the minimum period shall be one year of which at least six months must be continuous; but (b) for the purposes of an Australian benefit payable to an Australian resident, there will be no minimum period." b. for the purposes of an Australian benefit payable to a person present long term in Australia there will be no minimum period."

31 None of these amendments effected in July 2017, even had they been applicable to claims made prior to the introduction of the amendments, would have led to any different conclusion by the Authorised Review Officer on 28 September 2017. 32 The 2017 amendments to the Agreement thus assume no present relevance.

The discretionary refusal of relief 33 The Secretary further contends that relief should be refused in the exercise of the Court's discretion. 34 One basis upon which the discretion should be exercised, so the Secretary contends, arises by reason of the right of review conferred upon the Tribunal to review the September 2017 decision of the Authorised Review Officer. The decision of that Officer was made under s 135(1)(b)(i) of the Social Security (Administration) Act 1999 (Cth); jurisdiction is conferred upon the Tribunal to review such a decision by s 142(1)(a) of that Act. 35 On the facts of the present case, Mr and Mrs Charan did avail themselves of the opportunity to seek review by the Tribunal. But that application was dismissed by the Tribunal on 14 February 2018 pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) because both parties failed to participate at the hearing. Section 42A(8A) provides that a party whose application has been dismissed pursuant to s 42A(2) "may … apply to the Tribunal for reinstatement of the application". Pursuant to s 42A(8B), a time limit of 28 days is imposed, although there is a discretionary power for the Tribunal to extend that time in "special circumstances". No application was made within 28 days after 14 February 2018 and no application has been made seeking an extension of time within which an application may now be made. 36 A right of review on the merits by the Tribunal is a basis upon which this Court may refuse relief. Although the source of the jurisdiction now invoked by Mr and Mrs Charan has not been identified, it is most probably either s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("Judicial Review Act") or s 39B of the Judiciary Act 1903 (Cth). Whatever the source of jurisdiction, the existence of the discretion may be accepted. Section 10(2)(b) of the Judicial Review Act relevantly provides that this Court "may, in its discretion, refuse to grant an application … for the reason … that adequate provision is made by any law … to seek a review … by another tribunal". Notwithstanding the expiration of the time limit within which an application may be made pursuant to s 42A(8A) of the Administrative Appeals Tribunal Act, the right of review conferred by s 142(1)(a) of the Social Security (Administration) Act remains an "adequate provision ... to seek a review": cf. Kimberly Clark Ltd v Commissioner of Patents (1988) 83 ALR 714 at 718 per Jenkinson J. If the source of jurisdiction now being exercised by this Court is that conferred by s 39B of the Judiciary Act, it is likewise recognised that relief may be refused under that Act in the exercise of the Court's discretion by reason of the existence of a right of review before the Administrative Appeals Tribunal: Military Rehabilitation and Compensation Commission v Administrative Appeals Tribunal [2005] FCA 559 at [10], (2005) 87 ALD 1 at 3 per Nicholson J; Von Stieglitz v Comcare [2014] FCAFC 97 at [54], (2014) 64 AAR 356 at 368 per Foster, Davies and Rangiah JJ. 37 Assuming both that: the Secretary's consent to an extension of time in which an application could be made pursuant to s 42A(8A) of the Administrative Appeals Tribunal Act had been forthcoming; and an ability on the part of the Tribunal to grant an age pension, at least in the case of Mrs Charan, there may have been some utility in Mrs Charan pursuing merits review rather than the present proceeding. But, as has previously been concluded, the entitlement of a claimant to an age pension is not determined by reference to the date of the Tribunal decision but rather the date upon which the claim was made: Charan v Secretary, Department of Social Services [2016] FCA 486 at [31]. 38 The present submission of the Secretary thus has to be resolved upon the basis that Mr and Mrs Charan had an opportunity to seek merits review, pursued that review, failed to appear and have not applied for an extension of time in which to have their application relisted for further argument. 39 Given the practical inability confronted by Mr and Mrs Charan in disputing the quantification by the Authorised Review Officer of their "qualifying Australian residence", and the fact that their periods of "working age residence" in New Zealand have not increased as between May 2016 and the present, any prospects of success that they had in challenging the Officer's decision rested with this Court rather than in pursuing merits review. 40 The discretion would thus not have been exercised to dismiss the proceeding upon the basis that they did not further pursue their applications before the Tribunal. Had Mr and Mrs Charan further pursued their applications for review before that Tribunal, the Tribunal would have been bound to have affirmed the decisions of the Authorised Review Officer by reason of the decision of the Full Court in Charan.

CONCLUSIONS 41 The decisions of the Authorised Review Officer made on 28 September 2017 were correct. 42 The proceeding should be dismissed. 43 There is no reason why the normal rule should not be applied, namely that costs should follow the event. In opposing such an order, Mr Charan contended that the 28 September 2017 letters failed to adequately explain the basis upon which the decision sought to be reviewed had been made and that it was not their "fault" that they had to commence the present proceeding. That submission is rejected. Mr and Mrs Charan chose the course of seeking review of the decisions of the Authorised Review Officer and that course has proved unsuccessful. They should, accordingly, pay the costs of the Secretary. 44 Mr and Mrs Charan should be ordered to pay the costs of the Respondent, either as taxed or agreed. Provided the parties do not agree on costs, as this proceeding was transferred to this Court from the Supreme Court of New South Wales, an order should be made pursuant to r 40.05 of that Federal Court Rules 2011 (Cth) that the costs in the Supreme Court should be taxed in this Court in accordance with Div 40.2 of the Rules. 45 After the hearing of the application, the Applicants sought to file further written submissions. Those submissions were received by the Court as correspondence on 10 September 2018 but were not accepted for filing. No leave was granted for the Applicants to make further submissions and accordingly those submissions have not been considered. On 29 November 2018, the Applicants also sought to file an Interlocutory Application and a supplementary affidavit. Again, those documents were not accepted for filing. No leave had been granted to file the documents. In any event, the Interlocutory Application canvassed the same issues as those raised by the Interlocutory Application that has already been filed and has been resolved, namely, that the proceeding be transferred to another Judge.

THE ORDERS OF THE COURT ARE:

The proceeding is dismissed.
The Applicants are to pay the costs of the Respondent, either as taxed or agreed.
If costs are taxed, the costs of the proceeding in the Supreme Court of New South Wales should be taxed in accordance with Div 40.2 of the Federal Court Rules 2011 (Cth). I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

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