Dowker v Secretary, Department of Social Services

issues arising on APPEAL 10 The appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). It is not an appeal in the strict sense. Rather, it is an action commenced within the original jurisdiction of the Court: Kowalski v Repatriation Commission [2009] FCAFC 107; (2009) 259 ALR 444 at [4]. An appeal under s 44(1) of the AAT Act is limited to questions of law. 11 Mrs Dowker commenced the appeal as a self-represented litigant. As originally framed, the originating application did not identify a question of law so as to attract the jurisdiction of the Court and was subject to a notice of objection to competency filed by the respondent. The Court issued a certificate pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) referring Mrs Dowker for legal assistance. Ms Walker of Counsel represented Mrs Dowker on the appeal pursuant to the referral certificate together with Ms Stanley. The Court gratefully acknowledges their assistance. 12 On 15 November 2016, Mrs Dowker filed an amended notice of appeal and the notice of objection to competency was not pressed by the respondent. The amended notice of appeal raises the following questions: 1. What is the proper construction of the term 'an extreme circumstance' for the purpose of section 1061JH(1)(a) of the Social Security Act 1991. 2. Is 'an extreme circumstance' for the purpose of section 1061JH(1)(a) of the Social Security Act 1991 capable arising where: a. an applicant has caused or contributed to the circumstances which led to their leaving their home, such as where: i. an applicant has breached the terms of the tenancy agreement in respect of that home; and/or ii. an applicant has been forced to leave by a person exercising their legal rights to obtain possession of that home; and/or b. an applicant had actual or constructive notice that they may be or were required to leave their home. 3. On the facts as found by the Tribunal, did the Applicant leave her home on 15 June 2015 because of 'an extreme circumstance' within the meaning of section 1061JH(1)(a) of the Social Security Act 1991. 13 These questions turn upon the proper construction of s 1061JH(1)(a) of the SS Act. I am satisfied that they raise questions of law for the purposes of s 44(1) of the AAT Act.

SUBMISSIONS 14 The SS Act is beneficial legislation and, accordingly, is to be interpreted liberally in favour of the person claiming social security benefits under it. The interpretation adopted must nonetheless "be restrained within the confines of the actual language employed and what is fairly open on the words used": Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638 (Mason, Brennan, Deane and Dawson JJ). As Black CJ said in Secretary, Department of Social Security v "SRA" (1993) 43 FCR 299 at 303: Although the Social Security Act is concerned with social policy, and being remedial legislation should not receive a narrow or pedantic construction (see Rose v Secretary, Department of Social Security (1990) 21 FCR 241 at 244), the settled rules of construction apply and ordinary words used in the Act should receive their ordinary and natural meaning, unless, in accordance with the accepted rules of statutory construction, there is good reason to prefer some other meaning. 15 A number of preliminary observations may be made, having regard to the text of the provision and the context in which the expression "extreme circumstance" appears. 16 First, the expression is clearly intended to describe the reason why a person has left or cannot return to his or her home (s 1061JH(1)(a)) and the reason why it would be unreasonable to expect the person to remain in, or return to, the home (s 1061JHJ(1)(b)). It is not intended to characterise the situation a person may subsequently find himself or herself in, by reason of being unable to remaining in or return to it. That is not to say that the whole of the person's circumstances may not be considered. However, when considering the whole of the surrounding circumstances, the enquiry is to remain focused on whether the person left or cannot remain or return to the home because of an extreme circumstance. Events occurring after the person has left the home may be taken into account insofar as they legitimately bear upon that enquiry. 17 Second, s 1061JH(1)(a) is to be construed having regard to s 1061JH(2). The latter provision recognises that an objectively extreme circumstance may be brought about by a person "with a view to obtaining a crisis payment". On its terms, s 1061JH(2) recognises that an extreme circumstance may arise because, or partly because, of the conduct of the person concerned. It operates to disqualify such a person from receiving the payment only if the Secretary is satisfied that the extreme circumstance is brought about with a view to obtaining a crisis payment. The mere fact that a person has brought about the extreme circumstance will not be sufficient to disqualify the person from receiving the payment in accordance with s 1061JH(2). 18 Third, apart from the disqualifying operation of s 1061JH(2), there are no express words in the provision to the effect that an "extreme circumstance" could not include a circumstance brought about, whether wholly or partially, by the very person claiming the crisis payment. 19 Fourth, the fact that a person is in severe financial hardship is a separate and distinct criterion qualifying a person for a crisis payment: s 1061JH(1)(f)(i). However, there is nothing to suggest that severe financial hardship might not also be recognised as a factor constituting or contributing to an extreme circumstance within the meaning of s 1061JH(1)(a). 20 Counsel for Mrs Dowker submitted that the word extreme "requires consideration of the degree to which the circumstance is removed from or outside of ordinary or average circumstances". That submission, too, is to be accepted, subject to the proper focus of the enquiry identified earlier in these reasons. 21 In Arcibal, Heerey J referred to the Oxford English Dictionary definition of the word extreme as "presenting in the utmost degree some particular characteristic". By referring with approval to that definition, his Honour should not be understood as saying that a circumstance will not be extreme if a circumstance even more removed from the ordinary or average is capable of being imagined. 22 In Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 487 Foster J referred to the statutory phrase "extreme hardship" in the Migration Act 1958 (Cth) as connoting: … an area within which an ascertainable burden of hardship may fall and properly merit the description 'extreme'. Within that area that area there may be varying degrees of burden, one less than another, but each meriting the description … See also Kumar v Minister for Immigration and Ethic Affairs (1997) 50 ALD 488 at 492. 23 The same is true of the word extreme in the present statutory context. I do not understand the respondent to contend otherwise. 24 An extreme circumstance may, Counsel submitted, "arise by a single event or by the convergence of a number of factors at a point in time". That submission should also be accepted.

Blameworthiness and victimhood 25 Mrs Dowker's submissions in relation to the second question of law identified on the amended notice of appeal focused in large part on the question of whether a crisis payment may be made to a person who has brought upon themselves the extreme circumstance necessitating departure from his or her home. The phrase "extreme circumstance" was, Counsel submitted, not concerned with questions of moral blameworthiness or deservedness. 26 Reliance was placed on the policy document Guide to Social Security Law (the Guide). The Guide states (at 3.7.4.20) that an "extreme circumstance" for the purpose of s 1061JH(1)(a) may include a scenario in which a person who is an alleged or actual perpetrator of domestic violence cannot return to the home for legal reasons. By analogy, it was submitted, an extreme circumstance may include a scenario, such as the present, in which the owner of a property enforces a legal order to secure vacant possession. 27 Counsel for the respondent acknowledged that the Guide is a policy document of a kind that is to be followed by an administrative decision-maker unless there are cogent reasons to the contrary: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. The respondent points to pt 3.7.4.60 of the Guide which states that a crisis payment is not payable where a person is evicted from his or her home because such a person is not a "victim of an extreme circumstance for the purpose of the Crisis Payment". 28 I accept that the Guide is in the nature of a policy document that may, of course, be used by decision-makers in the administration of the SS Act, provided that it is consistent with the requirements of the SS Act itself. To the extent that it is not consistent with the SS Act, then it should not, of course, be followed. 29 To the extent that the Guide refers to a person evicted from their home not being a "victim of an extreme circumstance" and so not qualifying for the payment, to my mind the Guide introduces a disqualifying criterion that does not find expression in the SS Act itself. The Guide seems to recognise that a lawful eviction necessitating the removal of a person from their home may constitute an extreme circumstance, but purports to preclude payment to a person who has brought that extreme circumstance (being the eviction) upon him or herself, because they are not to be regarded as a "victim" of it. A standalone criterion based upon notions of victimhood or moral blameworthiness is not expressly included among the criteria in s 1061JH(1) of the SS Act. Nor is there any basis to imply an absolute and unqualified disqualifying criterion of that kind, save to the extent that a claim for crisis payment is contrived in a way contemplated by s 1061JH(2). There is no suggestion that s 1061JH(2) applies in Mrs Dowker's case. 30 If Parliament had intended that a crisis payment only be available to persons who must leave their home through no fault of their own, plain words could have been used to achieve that end. But not such words are used. 31 The phrase "extreme circumstance" nonetheless permits consideration of the extent to which the reasons for leaving a home (such as a forcible eviction) might have been reasonably anticipated and therefore avoided. However, those considerations are not to be treated as determinative in all cases, and the weight to be afforded such consideration is for the decision-maker, acting reasonably and within the confines of his or her powers. 32 Furthermore, where a person is lawfully evicted from a home, it would be incorrect to say that the eviction in and of itself is the reason why a person has left the home and cannot return to it, and to disregard what may be a complex array of preceding events or circumstances culminating in and justifying the landlord's right to evict. The task of identifying the reason why a person has left his or her home, or cannot return to it, is not restricted to identifying the most recent precipitating factor. The beneficial legislation requires a more expansive enquiry, such that the entire history of events, dealings and relationships culminating in the person leaving the home are to be considered. Thus, where a breach or the expiry of a tenancy occurs so culminating in a lawful eviction, it is not sufficient to say that the eviction is an ordinary legal consequence of the breach or the expiry, and therefore not capable of being an extreme circumstance. Proper regard may, indeed must, be given to all of the circumstances in which the breach or expiry of the lease has occurred. 33 It is against these broader observations that the second and third questions of law are to be determined. 34 The second question should be answered "yes". 35 The question is expressed in terms of whether certain facts, whether alone or in combination, are capable of giving rise to an extreme circumstance. Whether or not factors of the kind set out in the second question constitute an extreme circumstance in a given case may depend upon (without being exhaustive) the reasons for the breach or expiry of the tenancy and the reason why the person persisted in his or her occupation of the home to the point of his or her forcible eviction, rather than establishing alternative accommodation. The degree to which a person's reasons for leaving the home are removed from the ordinary or average must be assessed against all of the surrounding circumstances. 36 The third question, being a mixed question of fact and law, should be answered "no". 37 The Tribunal properly took the whole of the surrounding circumstances into account. The circumstances were not as simply stated as the bare facts set out in the second question of law. The Tribunal was entitled to have regard to the suddenness and predictability of the eviction, and to the whole of the historical legal dispute, because those factors went to explain why Mrs Dowker had persisted in her occupation of the property to the point of her forcible removal. 38 Importantly, the Tribunal rejected Mrs Dowker's allegation of fact that she had no notice of her impending eviction. It is clear that the Tribunal placed significant weight on the circumstance that Mrs Dowker "must have known" that she may not be permitted to remain in the property. On a fair reading of the Tribunal's reasons, little or no weight was given to Mrs Dowker's claim that the eviction occurred in circumstances giving her little time to gather her possessions and no time to arrange alternative accommodation in advance. Importantly, Mrs Dowker did not allege before the Tribunal that she had in fact made reasonable but unsuccessful attempts to find alternative accommodation in the event of her eviction so as to explain her remaining in occupation of the property through to the date of her traumatic eviction. Nor did she allege that she was disabled in any physical or mental sense from anticipating and avoiding her forcible eviction. 39 It is implicit in the Tribunal's reasons that Mrs Dowker remained in occupation of the property, thus necessitating her forcible removal, because she had enjoyed the benefit of the stay of the District Court's order and was resolute in her hope that the stay would continue and her appeal would succeed. 40 It is all of these features of the case that led the Tribunal to conclude that the circumstances because of which Mrs Dowker left the property were not extreme. That conclusion was open to it on the unchallenged facts. 41 Accordingly, the appeal should be dismissed. 42 I will hear the parties as to costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.